Delhi

North

CC/120/2019

BHAWESH ANAND - Complainant(s)

Versus

NATIONAL INSURANCE COMPANY LTD. & ANR. - Opp.Party(s)

LALIT BHATI

11 Dec 2023

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

Consumer Complaint No.: 120  /2019

 

In the matter of

 

Bhawesh Anand,

S/o Late Sh. Prem Prakash Anand,

 M-11, Saket, New Delhi-110017                                       . ...COMPLAINANT

 

VERSUS

1.National Insurance Company Limited,

   Direct Agent Branch 21, Daryaganj,

   New Delhi-110002. ...                                                             

Having its registered office:

3, Middleton Street, Kolkata-700071.                                 ……Opposite party-1

 

2.Vipul Medcorp Insurance TPA Pvt. Ltd.

   219, Ansal Chamber II, Bhikaji Cama Place,

   New Delhi-110066.                                                         ……Opposite Party-2

 

 ORDER/

11/12/2023

 

Ashwani Kumar Mehta, Member:

 

1.       The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986. The brief details of facts, as alleged by the Complainant in the Complaint in hand, are that the complainant has taken the insurance policy no. 361503501710000820 namely "NATIONAL PARIVAR MEDICLAIM POLICY" for sum assured of Rs. 5,00,000/- on payment of premium of Rs. 27,126/-  which was effective from 15.03.2018 to midnight of 14.03.2019 (Both days inclusive) from the OP-1. The copy of policy documents are annexed with the complaint as Annexure A-2. It is further stated that on 28.03.2018, the complainant got severe heart attack and got admitted in emergency at Max Super Specialty Hospital, Saket for his immediate treatment. The complainant intimated the opposite party-1 under the prescribed time which the opposite party no. 1 forwarded to its designated third party i.e. opposite party no. 2 (which was never disclosed/ mentioned to the complainant) at time of issuing policy. A copy of discharged summary has been annexed with complaint as Annexure A-3.

2.       It has further been alleged that cashless treatment was denied bu the OP-1 and complainant paid the treatment expenses to the hospital through his own arrangement to get discharged on 31.03.2018 from mediclaim policy. Thereafter, the complainant had submitted claim for reimbursement of expenses to the opposite party on 12.09.2018. A copy of claim form has been annexed  as Annexure A-4 alongwith the complaint. It has been alleged that the opposite parties  have failed to make the payment to the complainant till date. A copy of medical bills has been annexed as Annexure A-5.

3.       It is further alleged that on 3.10.2018, opposite parties denied to make the payment of medical expenditure through email dated 03-10-2018 which has been annexed as Annexure A-6 with the complaint. Thereafter, the complainant has made many requests to the opposite party but the opposite party has not paid any heed and proper attention on the request of the complainant. The complainant has also sent two legal notices dated 4.05.2019 and 22.05.2019 to the opposite party which was duly served upon the Opposite Parties but the opposite party has not responded. A copy of the Legal Notices has been annexed as Annexure A-7 (04.05.2019) and Annexure A-8 (22.05.2019) with the complaint. The complainant has stated that he is legally entitled to recover the amount spent during treatment but the opposite party have raised false and baseless objection to avoid its liability to make the payment against the medical treatment of the complainant. Therefore, this complaint has been filed praying for directions to OPs to:-

a. pay the claim amount of Rs. 2,32,489/- alongwith interest

     @ 18% per annum till realization;

 b) Pay Rs. 2,00,000/- to the complainant on account of   

     deficiency of service, mental tension, pain and suffering;

 c) Grant litigation expenses Rs. 55,000/-;

 d) Any other or further relief which this Hon'ble court deem       

     fit and proper in the facts and circumstances of the case

 

4.       Accordingly, notices were issued to the OPs and in response, the OP1 has filed reply whereas the OP-2 (TPA) did not participate in the proceedings. Since the OP-2 is the TPA of the OP-1, the reply of OP-1 has been considered sufficient to decide the dispute. The OP-1 has contended that the complainant has failed to prove that there was deficiency of service on part of the OP-1 as per the provisions of the Section 2(1) (g) of the Consumer Protection Act, 1986. Further, the complaint is frivolous and vexatious and the same is liable to be dismissed under section 26 of the Consumer Protection Act, 1986. The complainant has not approached the commission with clean hands and has suppressed the most material facts. The OP-1 has stated that the insured was admitted in Max Smart Super Speciality Hospital on 28.03.2018 i.e. during the first thirty days from the inception of his Policy and as per discharge summary, complainant’s diagnosis & Co-Morbidities are Coronary Artery Disease, Acute Coronary Artery Disease, Acute Coronary Syndrome, Acute Anterior Wall MI & underwent CAG followed by PTCA and Stent to LAD during his hospitalization period. Hence, the claim falls under clause 4.2 of the National Parivar Medicaim Policy which provides 'First Thirty Days Waiting Period' and further states that 'Any disease contracted by the insured person during the first thirty days from the inception of the first Policy. This shall not apply in case the insured person is hospitalized for injuries, suffered in an accident which occurred after inception of the first policy is excluded.'  Copy of the Policy has been annexed as ANNEXURE- A with the reply.

5.       It is further stated that the OP-1 has treated the claim as "NO CLAIM" and as such, has no liability under the policy and the present complaint is not maintainable.  The OP-1 has further stated that as per clauses 4.2 and 4.3 of the National Parivar Mediclaim Policy, the claim is rightly repudiated finally vide email dated 03.10.2018. Copy of the E- mail dated 03.10.2018 has also been annexed as ANNEXURE-B with the reply. The claim of the complainant was denied vide letter dated 31.12.2018 with remark "As per the policy clause 4.3 (2 years waiting period for HTN & Related Complications and clause 4.2 (30 days waiting period). Copy of the Repudiation Letter has also been annexed as ANNEXURE-C with the reply. The OP-1 has further stated that there was no deficiency in service on its part.

6.       The complainant has filed rejoinder to the reply furnished by the OP-1 and has affirmed the allegations levelled in the complaint. It has been stated that the Opposite Parties concealed all these material facts from the complainant at the time of taking premium and has not given any kind of document regarding terms and conditions which is raised in the written statement at this stage. There is no such condition mentioned in the proposal form which is annexed with the plaint as Annexure A-1 neither the same is mention in document issued by the O.P. after taking premium which is annexed with the plaint as Annexure A-2.  The Complainant has alleged that the agent of the O.P. No. 1 with connivance of each other, fraudulently sold policy no. 361503501710000820 to the complainant by concealing the material facts regarding the alleged waiting period of one month and the exclusion clauses which is unfair trade practice. The agent of the O.P. no. 1 and the O.P. No. 1 were duty bound to disclose the each and every terms and condition to the complainant expressly and impliedly but they intentionally and deliberately did not disclose the material facts at the time of selling the policy and receiving the premium amount and admittedly provided only such documents, which was totally silent regarding the alleged waiting period of one month and the exclusion clauses. The O.P. No.1 never provided the policy annexed as Annexure-1 with its written statement to the complainant at any point of time in any manner whatsoever. The O.P. No. 1 has failed to produce the survey report on record which was done by its third party i.e. O.P. No. 2.

7.       The complaint has been examined in view of the facts of the case and averments/evidence/arguments submitted by both the parties and it has been observed that the complainant has contended in the rejoinder that such terms & conditions ( reflecting clause 4.3 &  4.2 which has been referred to repudiate the claim)  were never communicated to him. The copy of the rejoinder was given to OP-1 on 23-12-2021 but OP-1 has neither rebutted this contention of the complainant nor filed any documents with evidence/arguments to prove that the terms & conditions referred in the reply, were communicated to the complainant. In view of this position, the allegations of the complainant stand proved that the OP is deficient in providing service.

8.       In this regard, “judgment passed  by the Hon’ble Supreme Court of India in the matter of Texco Marketing Pvt Ltd Vs Tata AIG General Insurance Co. Ltd & others - (2023) I SCC 428 that the Insurance Company cannot rely upon the terms and conditions  if the same had not been supplied to the insured” is relevant to adjudicate this dispute.

9.       In view of the above observations, we are of the considered view that the OP has repudiated the claim on the basis of terms & conditions which were never supplied/communicated/explained to the complainant and this act of OP-1 amounts to deficiency in service.  We have also observed that the complainant has suffered directly due to deficiency in service on the part of the OP-1 in terms of the deficiency defined in the Act which includes any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained in relation to any service and includes any act of negligence or omission or commission by such person which causes loss or injury to the consumer. Therefore, we feel appropriate to direct the OP-1 to:-

 

I. Pay Rs.214061/- (Rs. Two Lakh Fourteen Thousand Sixty One only) (the amount paid by the Complainant to the Hospital at the time of discharge) with interest @ 9% per annum from for the period from 03-10-2018 till the date of payment within 30 days from the date of receipt of this order;

II. Pay Rs. 50,000/- (Rupees Fifty Thousand only) as compensation to the Complainant for the mental pain, agony and harassment.

 

10.     It is clarified that if the abovesaid amount is not paid by the OPs to the Complainant within the period as directed above, the OPs shall be liable to pay interest @12% per annum from the date of expiry of 30 days period.

11.     Order be given dasti to the parties in accordance with rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

 

                           ASHWANI KUMAR MEHTA                                        HARPREET KAUR CHARYA

                                           Member                                                                                   Member      

                                    DCDRC-1 (North)                                                                DCDRC-1 (North)

 

DIVYA JYOTI JAIPURIAR

President 

DCDRC-1 (North)