District Consumer Disputes Redressal Forum, Near F.C.I. Godowns, Muradpura, Tarn Taran (Punjab)
Consumer Complaint No: 58 of 2015
Date of Institution: 02.11.2015
Date of Decision: 28.07.2016
Kanwaljit Singh son of Surinderjit Singh, resident of Plot No.79, Focal Point, Opposite Bus Stand, Tarn Taran, Tehsil & District Tarn Taran.
…Complainant
Versus
- National Insurance Company Limited, Office at Fatehgarh Churian Business Center First Floor, Canara Bank Building, Ajnala Road, Fatehgarh Churian, District Gurdaspur, through its Authorized Officer.
- National Insurance Company Limited, office at Jandiala Byepass Chowk, Jandiala Road, Tarn Taran through its Authorized Officer.
- National Insurance Company Limited, Head Office at 3, Middleton Street, Post Box No. 9229, Kolkata-700071 through its Executive Head.
…Opposite Parties
Complaint Under Section 11, 12 and 13 of the Consumer Protection Act, 1986.
Quorum: Sh. A.K.Mehta, President.
Smt.Jaswinder Kaur, Member
For complainant Sh.M.P.Arora, Advocate
For Opposite Parties Sh. P.N.Khanna, Advocate
A.K. Mehta, President
1 Sh. Kanwaljit Singh complainant has filed the present complaint under section 11, 12 sand 13 of the Consumer Protection Act (herein-after called as ‘the Act’) against National Insurance Company Limited, office at Fatehgarh Churian Business Center First Floor, Canara Bank Building, Ajnala Road, Fatehgarh Churian, District Gurdaspur, through its Authorized Officer and others (Opposite Parties) on the allegations of deficiency in service with prayer to direct the Opposite Parties to pay Rs.5 lacs as sum insured under the policy and Rs.50,000/- as compensation for harassment and mental agony and Rs.20,000/- as litigation expenses.
2 The case of the complainant in brief is that the complainant is resident of Tarn Taran and on the pursuance of agent of Opposite Parties-Insurance Company, purchased medi-claim policy for himself and his family members i.e. wife Ravinder Kaur and son Master Jasnoor Singh and daughter baby Amreen Kaur, from Opposite Parties-Insurance Company for the period from 7.2.2014 to 6.2.2015 for floater sum insured of Rs.5 lacs and paid the premium of Rs.10,693/- on 7.2.2014; that unluckily Master Jasnoor Singh son of the complainant became sick and took treatment from PGI Chandigarh firstly from 24.5.2014 to 19.7.2014 and spent Rs.5,40,741/- and then again from 31.8.2014 to 17.10.2014 and spent Rs.3,14,485/- and as such, the complainant spent total amount of Rs.8,55,226/- and accordingly filed claim with Opposite Parties-Insurance Company and also submitted all the documents alongwith bills as required by Opposite Parties-Insurance Company; that the Opposite Parties-Insurance Company has lingered on the settlement of the claim on one pretext and the other and when the complainant repeatedly enquired about his claim, then the claim was repudiated afterward in a arbitrarily manner without assigning any reason. It was averred that Opposite Parties-Insurance Company deposited the amount of Rs.27,000/- approximately in the account of the complainant in a very arbitrarily manner, but remaining amount of the claim was not paid by Opposite Parties-Insurance Company inspite of requests. Hence the complaint was filed.
3 After formal admission of the complaint, notice was sent to Opposite Parties-Insurance Company. Opposite Parties-Insurance Company appeared through counsel and filed joint written reply contesting the complaint on the preliminary objections that the complaint is not legally maintainable as the complaint should have been filed against Insurance Company which is corporate body and can sue or can be sued in its corporate name whereas the complaint has been filed against individual authorities of National Insurance Company Limited which is not legally maintainable; that the complainant Kanwaljit Singh is not covered under the definition of ‘consumer’ because the claim pertains to Master Jasnoor Singh and as such, the complaint should have been filed by said Master Jasnoor Singh in his own name or through guardian if he is minor, but the complaint is filed by Kanwaljit Singh, who is not the consumer and as such, is not legally maintainable; that the claim preferred by the complainant has been dealt with by M/s.Dedicated Healthcare Services India Private Limited which is duly authorized to deal with the claim by Insurance Regulatory & Development Authority and said TPA has not been impleaded in the complaint; that as per the Exclusion Clause 4.1 of the Floater Policy, any pre existing disease is not payable under the policy unless the policy had run continuously for 48 months and only thereafter the said pre existing disease become payable and the discharge summary of Master Jasnoor Singh shows that Master Jasnoor Singh was also admitted in PGI, Chandigarh from December, 2009 to April, 2010 and the treatment now obtained from PGI, Chandigarh from 24.5.2014 to 19.7.2014 is of the same disease regarding which Master Jasnoor Singh had taken earlier treatment in the year 2009 and as such, the claim was not payable under the policy; that previously the complainant had been taking the personal policy in his name as well as in the name of his family members with restricted sum insured and as per the personal policy for the year 2009-2010, the sum insured regarding Master Jasnoor Singh was Rs.50,000/-+ Rs.5,000/- as cumulative bonus i.e. total sum insured comes to Rs.55,000/- and as this policy had run for more than four years, therefore, the TPA instead of rejecting the claim in the present policy which has been taken for the first time, considered the claim as per earlier personal policy and gave benefit of the sum insured i.e. Rs.55,000/- and after applying the terms and conditions of the personal individual policy, the claim was settled at Rs.27,550/- and the said amount was credited in the account of the complainant in the month of August/ September, 2014 and no objection was raised against said payment and the complainant accepted the said payment without any protest and the complainant has also admitted this fact in the complaint, through complainant wrongly mentioned the amount as Rs.27,000/- instead of Rs.27,550/- and as such, the present complaint which was filed after long period from the receipt of payment shows that this complaint is result of after-thought but in order to wriggle out of the said acceptance of the amount, the complainant is now taking the plea that he never accepted the said amount and also made number of requests regarding re-consideration of his claim, but has not mentioned any reference of any such representation or protest in this regard; that TPA while making the payment to the complainant sent the details of the same to the complainant and as such, the claim stands settled in full and final and the said amount has been accepted by the complainant without any protest and as such, the complaint is not maintainable and nothing is further payable by Opposite Parties-Insurance Company. The complaint is also contested on merits on the same line as were taken in the preliminary objections and denied all other allegations of the complaint and a prayer was made for the dismissal of the complaint with costs.
4 Sufficient opportunities were granted to the parties to lead evidence in order to prove their respective case. The complainant produced his affidavit Ex. C-1, affidavit of Gurvinder Singh Ex.C2, copy of bill Ex.C3, copy of policy Ex.C4 and closed evidence and thereafter ld. counsel for Opposite Parties tendered affidavit of Dheeraj Seth Ex.OP1 to 3/1, affidavit of Sh.Anahita Daver Ex.OP1 to 3/2, copy of discharge summary Ex.OP1 to 3/3, copy of brief summary Ex.OP1 to 3/ 4, copy of discharge and follow up card Ex.OP1 to 3/5, copy of process sheet Ex.OP1 to 3/6, copy of deficiency letter Ex.OP1 to 3/7, copy of process sheet Ex.OP1 to 3/8, copy of deduction details Ex.OP1 to 3/9, copy of letter dated 14.12.2015 Ex.OP1 to 3/10, affidavit of Dr.Suresh Aggarwal Ex.OP1 to 3/11, Medical opinion dated 31.3.2016 Ex.OP1 to 3/12, copy of insurance claim Ex.OP1 to 3/13, insurance policy alongwith terms and conditions Ex.OP1 to 3/14, copy of policy Ex.OP1 to 3/15, copy of floater policy alongwith terms and conditions Ex.Op1 to 3/16 and closed evidence.
5 We have heard the ld.counsel for the parties and also gone through the evidence and documents produced by parties.
6 Ld.counsel for the complainant argued the complaint on the same lines as were taken in the complaint and further contended that the complainant is holder of the policy in question and the claim has also been filed under the said policy, though the claim is with regard to Master Jasnoor Singh and is also insured under the policy in question and as such, the complainant being holder of the policy is a consumer of the Opposite Parties-Insurance Company. He further contended that TPA is not the necessary party and as such is not required to be impleaded in the complaint. Moreover, this fact is disclosed by the Opposite Parties-Insurance Company only in written reply. He also contended that the Opposite Parties-Insurance Company has wrongly paid the amount of Rs.27,550/- as claimed by the Opposite Parties-Insurance Company and has not paid the remaining claim amount and as such, the complaint is required to be allowed and the Opposite Parties-Insurance Company is required to be directed to pay the remaining claim amount alongwith compensation and litigation expenses.
7 Ld.counsel for Opposite Parties-Insurance Company filed written arguments and took same pleas as were taken in the written reply. It is contended that the complainant is not entitled to the benefits under the policy in question as said policy was obtained by the complainant first time on 7.2.2014 and as such the complainant is not entitled to claim amount as the disease from which Master Jasnoor Singh was suffering, was pre existing disease and in view of the clause 4.1 of the policy in question, the complainant is not entitled to compensation of the said disease. It is further contended that case of the complainant was considered under previous policy of 2009-2010 and 2010-2011 and an amount of Rs.27,550/- was found due and paid to the complainant in his bank account, but it is also mentioned in the written arguments that lateron the claim was re-assessed and an amount of Rs.26,020/- was found due to the complainant and Opposite Parties-Insurance Company is ready to pay this amount to the complainant and nothing more is due to the complainant and the complaint is required to be dismissed.
8 It is admitted fact between the parties that complainant Kawaljit Singh had been taking medi-claim policies from the opposite parties for long period. The case of the opposite parties is that previously the complainant was taking individual medi-claim policies and for the first time in the year in dispute i.e. 2014-15, the complainant took Privar Medi Claim Floater Policy. The complainant has not rebutted this version of the opposite parties on the file nor proved his case that he was taking Privar Medi Claim Floater Policy since the day he was taking medi-claim policy from the Opposite Parties. There is no dispute between the parties regarding admission of Master Jasnoor Singh son of complainant Kawaljit Singh in the hospital for treatment. The only dispute between the parties in this complaint is that complainant spent more than Rs. 5,00,000/- on the treatment of Master Jasnoor Singh and as such claim amount of Rs. 5,00,000/- i.e. the insured amount as per policy he took on 7.2.2014. However the contention of the opposite parties is that Master Jasnoor Singh was suffering from pre existing disease and as such was not entitled to claim amount as per policy in question. The complainant has only proved the insurance policy in dispute Ex. C-4 but without its terms and conditions. The insurance policy Ex. C-4 is Privar Medi Claim Floater Policy as is mentioned on the policy Ex. C-4 itself and insured amount as per this policy is Rs. 5,00,000/- for complainant and his family members. The complainant has not proved any other policy on the file. As per clause 4.1 of the terms and condition of Parivar mediclaim policy in question, all pre existing diseases have been excluded from the cover unless the policy has completed 4 claim free policy years. As the policy in question i.e. Ex. C-4 was taken for the first time, therefore as per clause 4.1, complainant is not entitled to claim amount of Rs. 5,00,000/- as contended by Opposite Party. Otherwise, the opposite parties considered the case of the complainant under previous policy as the complainant had been taking the medi claim policies for a long period though previously taking different policy. The Opposite Parties have proved discharge summery of Master Jasnoor Singh issued by PGI Chandigarh and it shows that Master Jasnoor Singh remained admitted in PGI Chandigarh from 24.5.2014 to 19.7.2014 and discharge summary further shows that the patient was having the symptoms of the disease since may 2009 and was suffering from Seizures though the duration between Seizures increased later on and he was admitted in the Hospital. In case titled “Tarun Bansal & Anr. Vs Reliance General Insurance Company Ltd. & Ors. II(2007) CPJ 295, the complainant took medi claim policy and later on suffered treatment and filed insurance claim when a question arose as to whether exclusion clause mentioned in the insurance policy is applicable and it was observed by Hon’ble Punjab State Consumer Disputes Redressal Commission, Punjab, Chandigarh that if for certain ailments including hysterectomy medical treatment/ operation was under taken within first year of operation of policy then no claim would be entertain-able and reimbursement for treatment of said disease is not admissible and insurer would not be liable. In case titled M/s Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs United India Insurance Co. Ltd. and another 2010(4)RCR(Civil) page 845 it was observed by Hon’ble Supreme Court of India that breach of condition of insurance contract by the insured then insurance not liable to pay compensation in case of loss. The same principle of law was held in case titled “M/s V.K. Kariyana Store Vs The Oriental Insurance Co. Ltd. and others 2014(3) CLT page 47 (NC)”. In case titled “A Sujata(Smt.) Vs Life Insurance Corporation of India & Anr. 2014(2) CPC Page 76 (N.C) the husband of complainant obtained insurance policy in the year 2006 but he concealed the fact that he was suffering from liver since 2005 and was on hemodialysis and did not disclose the fact of pre existing disease in violation of contract of insurance and claim was repudiated by insurance company and on filing complaint, the same was allowed by the District Forum but order was set aside by Hon’ble State Commission in appeal against which revision was filed and it was observed by the Hon’ble National Consumer Disputes Redressal Commission that impuged order does not suffer from any error as insured has suppressed the material facts and repudiation of claim was upheld. In case in hand also as per terms and conditions of the policy, the complainant is not entitled to costs of treatment of a pre existing disease unless policy has completed four claim free years and as such the claim was rightly repudiated by the insurance company under the insurance policy in question though claim was considered under previous issued insurance policy which had completed 4 years and in view of this, as Master Jasnoor Singh was suffering from pre existing disease when he took policy Ex. C-4/O.Ps. 1 to 3/16 in question and as per clause 4.1, the complainant is not entitled to the claim amount of Rs. 5,00,000/-. Opposite Parties initially considered the case of the complainant under medi-claim policy Ex. OPs 1 to 3/13 and calculated the amount to be paid to the complainant as 27,5,50/- as insured amount for Master Jasnoor Singh was Rs. 50,000/- and cumulative Bonus amount as Rs. 5,000/-. Clause 1 of terms and conditions of Medi claim insurance policy (individual) provides that 50% of the sum insured is to be given for one illness and as the insured amount was Rs. 55,000/- including cumulative bonus, therefore, opposite parties calculated the amount as Rs. 27550/- and paid the same in the account of complainant which the complainant has admitted in the complaint though stated that amount of Rs. 27,000/- approximately was received by him in his account but complainant has not produced any document in this regard. However in the individual medi claim policy for the period 7.2.2010 to 6.2.2011 Ex. OPs 1 to 3/14, the insured amount for Master Jasnoor Singh was increased to Rs. 1,00,000/- with cumulative bonus as Rs. 7500/-. Master Jasnoor Singh was admitted in PGI Chandigarh on 24.5.2014 and as such disease was more than 4 years old from the date of issuance of medi-claim policy Ex. OPs 1 to 3/14 and as such claim of the complainant was to be considered under this policy and the Opposite Parties also later on after filing the written reply, rectified this mistake and considered claim of the complainant by taking the insured amount of Rs. 1,07,500/- including cumulative Bonus. However the Opposite parties took the due amount wrongly as Rs. 53,570/- whereas it should be Rs. 53,750/- as is mentioned in Para 7 of the affidavit Ex. OP1 to 3/2 of Anahita Daver, Chief Administrative Officer and as such, opposite parties have wrongly calculated the due amount as Rs. 26,020/- where as the correct due amount comes to Rs. 26,200/- and as such the complainant is entitled to Rs. 26,200/- more under the policy considering the amount which the complainant has already received in his account. The complainant is not entitled to claim amount of Rs. 5 Lacs in view of terms and conditions of policy in dispute, though he is only entitled to total amount of Rs. 53,750/- and as such complainant is now entitled to Rs. 26,200/- more than the amount he has already received.
9 Definitely the conduct of the Opposite Parties must have caused harassment and mental agony to the complainant because even in the written reply, Opposite Parties contended that complainant is not entitled to any other amount than the amount already paid to him and only at the time of evidence, the opposite parties have taken stand that complainant is also entitled to Rs. 26,020/- more as per affidavit Ex. OP1 to 3/2 and as such complainant is entitled to compensation on account of harassment and mental agony.
10 Therefore, in the light of above discussion the complaint succeeds in part and same is hereby allowed in part in favour of complainant and against the opposite parties and complainant is held entitled to recover Rs. 26,200/- more i.e. total Rs. 53,750/- including amount already received by him from the Opposite Parties under medi claim policy. The complainant is also entitled to recover Rs. 5,000/- as compensation on account of harassment and mental agony and Rs. 2,000/- on account of litigation expenses. The Opposite Parties insurance company is directed to comply with the order within one month from the date of receipt of copy of order failing which the complainant shall be entitled to interest at the rate of 9% per annum on the due amount from the date of complaint till realization of the awarded amount. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.
Pronounced in Open Forum
Dated 28.07.2016.
