Delhi

North

CC/544/2008

VIJAY BANSAL - Complainant(s)

Versus

NATIONAL INSURANCE CO. - Opp.Party(s)

04 Mar 2016

ORDER

ROOM NO.2, OLD CIVIL SUPPLY BUILDING,
TIS HAZARI, DELHI
 
Complaint Case No. CC/544/2008
 
1. VIJAY BANSAL
A-2/12, SECTOR-11, ROHINI, DELHI
...........Complainant(s)
Versus
1. NATIONAL INSURANCE CO.
4th FLOOR, JEWAN VIKAS BUILDING, 30-31A, ASAF ALI ROAD, DELHI
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. JUSTICE K.S. MOHI PRESIDENT
 HON'BLE MR. Subhash Gupta MEMBER
 HON'BLE MRS. Smt. Shahina MEMBER
 
For the Complainant:
For the Opp. Party:
ORDER

O R D E R

K.S. MOHI, PRESIDENT

The complainant has filed the present complaint against the O.Ps u/sec. 12 of Consumer Protection Act, 1986.  The facts as alleged in the complaint are that the complainant had taken a mediclaim policy (family) bearing No.354100/48/06/8500003227 for the period from 18.03.2007 to 17.03.2008 from the O.P-1.  It is alleged that Sahil Bansal, son of the complainant, was admitted in the Ekansh Nurshing Home, Sahabad Delhi on 29.11.2007 and was discharged on 04.12.2007.  It is further alleged that later on the complainant paid all the hospital bills and submitted his claim for reimbursement of Rs.21,947/- to the O.P-2.  It is alleged that inspite of submitting all the papers the O.P-2 sent the cheque an amount of Rs.20,918/- and disallowed the sum of Rs.1,030/- on the vague ground of extra charges of Nebulization and Tegaderm vide letter dated 22.01.2008 inspite of the fact that on the hospital counter the rate list is specified and the Tegaderm is a medicine as mentioned in the bill of the Nurshing Home.  It is further alleged that nothing extra has been charged from the complainant by the Nurshing Home.  It is alleged that after receiving the deducted amount the complainant contacted the insurance agent and asked from him that under which clause of the policy the O.P deducted the same.  He advised the complainant that the complainant had to ask from O.Ps about the same.  It is further alleged that thereafter the complainant sent a registered letter to the O.Ps on 11.02.2008 and protested to the illegal/ unjustified and arbitrary deduction of the amount which the complainant had already paid to the treating Nurshing Home and gave them notice of 7 days to reimburse the amount so deducted.  It is alleged that even after expiry of more than 5 months neither the O.Ps reimburse the illegally deducted amount nor replied to the letter of the complainant.  On these facts complainant prays that O.Ps be directed to pay the mediclaim amount of Rs.1,030/- towards the deducted amount of claim alongwith interest @ 18% p.a. and also to pay cost and compensation as claimed. 

2.     O.P-1 & 2 appeared and filed its written statement.  In the written statement O.P-1 & 2 have not disputed that complainant had taken policy referred to above.  It is alleged that the total claim of the complainant was for a sum of Rs.21,947/- and the O.P-2 allowed the claim for a sum of Rs.20,918/-.  The complainant having received the sum of Rs.20,918/- is not entitled to any further amount as the amount of the Rs.1,030/- was not found to be payable as under the terms and condition of the policy.  It is further alleged that the nebulization charges are not payable under the terms and conditions of the policy and such the complaint of the complainant is liable to be dismissed.

3.     Complainant has filed rejoinder reiterating all the facts as mentioned in the complaint.  He has also filed his affidavit affirming the facts alleged in the complaint.  On the other hand Mr. H.P. Srivastava, Asstt. Manager has filed affidavit in evidence on behalf of O.P-1 testifying all the facts as stated in the written statement and Mr. Ajay Roy, Authorized Signatory has also filed his evidence by way of affidavit on behalf of the O.P-2.  Parties have also filed their respective written submissions. 

4.     We have carefully gone through the record of the case and have heard submissions of Ld. Counsels for the parties.

5.     In this case the stand taken by O.Ps is that it had already allowed the claim of the complainant for the sum of Rs.20,918/- on the recommendation O.P-2.  However, the complainant was not entitled to further amount of Rs.1,030/- as per the terms and conditions of the policy.  Needless to say that complainant had filed a claim of Rs.21,943/- out of which the O.P allowed to the tune of Rs.20,918/- leaving an amount of Rs.1,030/- being now entitled to.  It is strange that O.Ps has nowhere in written statement, evidence or in written submissions as to what were the terms and conditions under which it disallowed the amount of Rs.1,030/-.  Admittedly, these terms do not form part of the insurance policy.  Rather it is a full-fledged separate document.  Term 1.0 talks about the payment for medical claim with regard to room/ boarding/ nurshing expenses.  It has also circumscribed the maximum limit payable by the O.P.  Now the question arises as to whether the O.P is justified in relying upon the terms and conditions is Ex.RW-1/1 for deductions.  The answer is in the negative.  It is now well settled law that terms and conditions can be relied upon by the insurance company only if the same were furnished to the insured either at the time of execution of the policy or thereafter.  It has also come on record that the terms and conditions of the policy were never supplied to the complainant.  In case titled 14A (CL) HAR. Oriental Insurance Co. Ltd.  Vs Vivek Rekhan, the claim filed on the basis of mediclaim policy was repudiated by the insurance company on the basis of exclusion clause.  The court held that the insurance company vaguely denied without pointing out as to in which manner and on which date terms and condition were supplied to the complainant.  Therefore, unless terms and condition have been supplied to the complainant before taking a policy, exclusion clause cannot be enforced.  This was also held in this case that as per settled principle of law, it is responsibility of the Insurance Company to prove the pre-existing disease through medical evidence.

7.     Keeping in view the discussion above the O.Ps repudiate the claim on frivolous grounds, therefore, deficiency in service.  We award a sum of Rs.1,030/- with interest @ 6% from the date institution of the complaint till payment, the further award of Rs.5,000/- towards harassment mental agony loss of time which will also include cost of litigation.

Copy of this order be sent to the parties as per rules.

Announced this 04th day of March, 2016.

  (K.S. MOHI)                (SUBHASH GUPTA)                     (SHAHINA)

     President                          Member                                Member

A.G.

 
 
[HON'BLE MR. JUSTICE K.S. MOHI]
PRESIDENT
 
[HON'BLE MR. Subhash Gupta]
MEMBER
 
[HON'BLE MRS. Smt. Shahina]
MEMBER

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