Before  the District Consumer Dispute Redressal Commission [Central], 5th Floor                                         ISBT Building, Kashmere Gate, Delhi

                               Complaint Case No.331/dated 17.12.2012

Naresh Bajaj son of Late Radha Krishan,

 2129/2  Prem Nagar,  New Delhi-110008

Contact No. 9654652556.                                              ...Complainant

                                      Versus

National Insurance Co. Ltd.

7th Floor, Hemkunt Tower-6,

Rajendra Place, New Delhi

 Contact : -011-43191000.                                             ...Opposite Party

                                                                    Order Reserved on:     21.02.2023

                                                                   Date of Order:             21.04.2023

Coram: Shri Inder Jeet Singh, President

              Shri Vyas Muni Rai,    Member

              Ms. Shahina, Member -Female

Inder Jeet Singh

                                             ORDER

1.1. (Introduction to case of parties) : The consumer dispute between the parties is that the complainant was hospitalised on 11.11.2011 during the subsistence of Pariwar Medi-claim Policy issued by OP, he was discharged from National Heart Institute and then he wrote a letter for claim, however, it was replied by the OP that the said policy is not more than two years old, to say it is not in continuation for more than two years to entitle the complainant for claim. OP has invoked clause no. 4.3 in letter dated 13.03.2012 to exclude the claim of complainant. That is why complaint was filed for appropriate directions.

1.2: Whereas the OP has opposed the complaint that parties are governed by terms and conditions of policy, which are with the prior approval of IDRDA. Since the exclusion clauses no. 4.1 and 4.3 of Parivar Medi-claim policy are applicable, the claim of complainant was properly repudiated.

1.3.  The complaint, under consideration, is in English language, initially it was filed by the complainant in person. However, there are many syntax flaw or some incomplete expressions or not properly worded apart-from not depicting in chronology, however,  care is being taken in this Order to express them completely, with proper wordings and syntax to make  it appear in the context it is filed.  Moreover, relevant and material facts will be narrated for the sake of brevity.  It is complaint under the provisions of the Consumer Protection Act.1986.

2.1 (Case of complainant ) :. That Complainant is  a consumer under the meaning and within the purview of the Consumer Protection Act. That Complainant is  permanent resident of 2129/2, Prem Nagar,  New Delhi-110008. Complainant's son Vaibhav Bajaj  got issued the group Mediclaim Insurance Policy by his employer M/s Taj Mahal Hotel, New Delhi, where he worked w.e.f. 02.11.2009 to 13.11.2010. The first policy was w.e.f. 02.11.2009 to 23.06.2010 purchased from Cholamandalam vide policy No.HWT00002800-000-00 (now Exh. CW-1/4) and the second policy was from 24.06.2010 to 13.11.2010, purchased from ICICI GIC Ltd. vide Policy No.0160004590/00/000 (now Exh. CW1/3). The  Complainant  and his wife were also covered/beneficiaries under this group Mediclaim Insurance Policy along-with their son. However, during currency of  policy, the Complainant also purchased Parivar Mediclaim Policy No.360203/48/09/850002674 valid for the period 12.03.2010 to 11.03.2011 (now Exh. CW-1/6) from OP, which was renewed as policy No.360203/48/10/8500003391 for period 12.03.2011 to 11.03.2012 (now Exh. CW-1/7).

2.2: On 11.11.2011 the Complainant  got hospitalized at National Heart Institute, East of Kailash, then hospital  had informed OP by email regarding hospitalization of the complainant  and for cashless facility for the hospital charges but OP in its reply by email to the hospital denied the cashless facility on the plea that the policy has not been continuing/existing for more than two years, Thus after discharge from the hospital, the complainant through agent of OP lodged and signed claim form along-with other documents.

          However,  on 08.01.2012 (now Exh. CW-1/1)., the Complainant  received a letter from M/s Park Medi-claim TPA Pvt. Ltd. asking for documents - (i) all records of treatment taken in 2-3 months before hospitalization and (ii) all the policy copies confirming coverage of the patient under medi-claim policy prior to 12.03.2010. Despite collecting the required information from the Complainant , the OP closed the claim vide its letter dated 13.03.2012 (now Exh. CW-1/2) citing Exclusion Clause 4.3 of Parivar Mediclaim Policy. On 16.05.2012, the complainant  sent a letter (now Exh. CW-1/8) to the OP to reconsider the claim, while furnishing copy of the cards, letter of Taj Mahal Hotel (now Exh.CE1/5) and
"No Claim" letter received from company. Then on 22.05.2012 and by its  reminder dated 21.06.2012, the OP inquired from Cholamandalam through its email about the status of the policy bearing No HTV00002800-000-00, it was informed by email dated 22.05.2012 (now Exh. CW-1/9) "no claim was lodged by the complainant' . Again by letter dated 27.08.2012 (now Exh. CW-1/10), the OP repudiated the claim of the complainant citing another Exclusion Clause 4.1 and clause 4.3 of the terms and conditions of the policy.

          Then on 03.09.2012, the complainant wrote letter to Divisional Manager, DAB and  also sent its copy to DGM Branch, Branch Manager and Grievance Cell with the request to relook into the matter and process the claim but OP through its letters, dated 12.09.2012 and 26.10.2012 repudiated the claim (which are now Exh. CW1/  11,12 & 13). Whereas,  complainant  has been  obtaining following policy continuously:-

(i) From 24.06.2009 to 23.06.2010 with Cholamandalam Policy No.
HWT00002800-000-00,

(ii) From 24.06.2010 to 23.06.20011 with ICICI GIC Ltd. Policy No.0160004590/00/000

(iii)  From 12.03.2010 to 11.03.2011 with National Insurance Company, Policy No.360203/48/09/8500002674 Parivar Mediclaim Policy, and

(iv)  From 12.03.2011 to 11.03.2012 with National Insurance Company, Policy No.360203/48/10/8500003391 Parivar Mediclaim policy.

2.3  The Complainant had also furnished undertaking, issued by the Taj
Mahal Hotel,  that the Complainant  had not  made any claim and also informed the OP vide letter dated 16.05.2012 that the policies have been continuing for more than two years and latest guide-linens regarding inward portability of medi-claim policy covers the previous policy benefits provided the insured join the another office before 45 days of expiry of the previous policy but the OP repudiated the claim.

          The Complainant  has taken the policy from the OP by six months prior to the previous policy. The  policy has been subsisting and continuous one but by taking the shelter of Clause 4.1 and 4.3 in repudiating the claim, the OP is not justified. A valid and genuine claim of the Complainant  has been repudiated by the OP on false and frivolous grounds, which are not tenable under law. Because of acts of OP, the complainant has not only suffered financial losses, but harassment, pain
and mental agony etc. The complainant requests for appropriate direction against the OP and also to direct the OP to compensate the complainant for Rs.2,00,000/-.

3.1 (Matrix of case of OP) - The OP denies the claim of complainant and also opposed it. The complainant has no locus-standi to file the complaint. All the policies, whether Mediclaim or any other policy. are launched for general public with prior approval of IRDA Regulator and the OP has no authority or power to change the terms and conditions or the exclusion clause mentioned in the policy of its own without the permission of the IRDA Regulator. This fact was very well informed to the complainant also prior to the issuance of the policy and as such the complaint deserves dismissal. The complaint is barred under Exclusion clause 4.1 and 4.3 of Parivaar Mediclaim Policy. However in the present case the claimant is covered under policy since 12.03.2010 and disease first time diagnosed on 09.09.2011 as "per hospital records. Patient did not have any past policy. Moreover, as per HO technical health insurance portability provisions/guidelines "Inward portability from other insurer group mediclaim to any NIC individual/ family floater policy is not allowed and only inward portability from other insurer individual medi-claim policy/family floater medi-claim policy to any NIC individual/family floater medi-claim policy is allowed". The claim merits repudiation as per Exclusion clause 4.1 and 4.3 of the Parivaar Mediclaim Policy. Therefore the OP was justified  while repudiating the claim.

           Moreover, there is breach of  terms and condition of the Mediclaim Policy as well as non-compliance thereof, the present complaint needs dismissal. The complainant is trying to take the benefit of his own wrong.  he also tried to mislead this  Forum by submitting false facts as well as suppressing the material facts vis a vis OP being trustee of public funds and it is the duty of the OP to protect the interest of the general public from the persons like complainant,

3.2.1  Whereas, the true facts of the case are that Shri Vaibhav Bajaj was an employee of Taj Mahal Hotel New Delhi. He along-with his family was covered under the group Mediclaim Policy for employees and the details of the insurance policies are (i) 02.11. 2009 to 23.06. 2010 under GMP of M/S Taj Hotels with Cholamandalam, (ii)  24.06..2010  to 13.11. 2011 with ICICI Limbard under GMP Then on complainant Shri Naresh Bajaj's request (being father of Shri Vaibhav Bajaj), OP had issued Parivaar Mediclaim Policy bearing no. 360203/48/09/8500002674 being insurance cover note in favour of Naresh Bajaj subject to standard terms and conditions of Parivaar Mediclaim Policy. The Insurance cover was valid  for period 12.03.2010 to 11.03.2011 from the direct agent branch of DO-5 Rajendra Place, New Delhi. Then the  policy was renewed  by policy no. 360203/48/09/8500003391 for the period from 12.03.2011 to 11.03.2012 from the same office.

3.2.2 The complainant was admitted from 11.11.2011 to 21.11.2011 (during the second year of policy) with diagnosis of Acynotic Congenital Heart disease & underwent pericardial patch closure of 'Atrial Septal Defect' in National Heart Institute Delhi. In medical opinion 'Atrial Septal Defect' is internal congenital disorders which always occur at birth, it usually undergoes spontaneous closure and if at all it is to be operated then surgery is normally conducted in early childhood.

          Thus, after receipt of the claim from the complainant, the OP company had deputed Claim Department of Park Mediclaim TPA Pvt Limited to assess the claim of the complainant, who submitted their report to the OP stating that the claim was not tenable under following exclusion clauses 4.1. and 4.3 of Parivar mediclaim policy. The claim department after discussing in detail gave their report-

Exclusion clause 4.1 - All diseases/injuries which are pre existing when the cover incepts for the first time. However those diseases will be covered after four continuous claim free policy years. For the purpose of applying this condition, the period of cover under medi-claim policy taken from National Insurance OP only will be considered This exclusion will also apply to any complications arising from pre existing ailment/disease/injuries. Such complications will be considered as a part of the pre existing health condition or disease.

Exclusion clause 4.3 -During the first two year of the operation of the policy the expenses on treatment of diseases such as Cataract, Benign Prostatic Hypertrophy, Hysterectomy, Hernia, Hysrocoele, Internal congenital defects/diseases or anomalies, Fistula in anus, Piles, chronic fissure in anus, Pilonidal sinus, Sinusitis, Stone disease of any size, Benign lumps/growths in any part of the body, joint replacement of any kind unless arising out of accident, surgical treatment of tonsils & Adenoids, deviated nasal septum and chronic diseases are not payable, if these diseases are pre-existing at the time of proposal, they will not be covered even during subsequent period of renewal too.

3.3.3.Thereafter, OP also examined the claim and came to the conclusion that the claim department rightly repudiates the claim of the complainant since ASD has not occurred suddenly but was present since birth though the manifestations were not seen. Hence, this is considered as internal congenital defect and becomes payable under our policy after twenty four months of the inception of the policy. Further as per HO technical health insurance portability provisions/guidelines "inward portability from other insurer group medi-claim to any NIC individual/ family floater policy is not allowed and only inward portability other insurer individual medi-claim policy/family floater medi-claim policy to any NIC individual/family floater medi-claim policy is allowed". Since the insured was covered under group medi-claim policies of Taj Mahal Hotel with other insurers, therefore, continuity benefits cannot be given to the complainant and the policy taken by the OP is to be considered as a fresh cover with terms and conditions as applicable under Parivar Mediclaim Policy. Moreover, the Complainant had represented in RCRC and then DGM also, however, the committee  as well as DGM had also opined that as per policy terms and conditions the claim is not payable for the first 2 years and accordingly claim was rejected.

3.4.  The OP company has considered the case carefully after going through the entire matter and after due application of its mind came to the conclusion that the claim of the complaint is not payable as per aforementioned reasons, consequently there is no deficiency in service on the part of the OP company but the complainant has wrongly stated that the OP had not considered to the claim after receipt of the information/documents or OP had been adopting delaying tactics.

4. (Rejoinder)- The complainant filed rejoinder as reply to written statement of complainant. He explains that the complainant had furnished undertaking to OP issued by the Tai Mahal Hotel that the complainant has not claimed any claim. Further the complainant has also informed the OP vide letter, dated 16.05.2012 that the policy is more than two years old and as per  the latest guide-linens regarding inward portability of medi-claim policy covers the previous policy benefits provided the insured join the another office before 45 days of expiry of the previous policy, the insured has taken the policy from the OP  six-months prior to the previous policy. Since policy was subsisting and continuous one and by taking the shelter of clauses 4.1 and 4.3 in repudiating the claim, is not justified. The complainant has the locus stand to file the present complaint as the policy was a Parivar Mediclaim Policy/Family Floater Mediclaim Policy and the complainant is the father of the insured and comes within the purview of the policy. Moreover, in  the discharged summary dated 21.11.2011, issued by Consultant Cardiac Surgeon, National Heart Institute, it  has been clearly mentioned that the there is no history of suggestive of Cyanosis, PND, Orthopnoea, Infective Endocarditis, Asthma or Allergy;  there is no similar family history. The discharge summary shows that the complainant was not suffering from any pre-existing ailment but neither the OP nor its TPA has made any inquiry from the hospital regarding the ailments. Complaint's  genuine claim has been repudiated by the OP on false and frivolous grounds which are not at all tenable in law.

5.1 (Evidence) : Complainant Shri Naresh Bajaj filed his affidavit in detail by referring the documentary record also, which was filed with the complaint and it has already been introduced in the matrix of case of complainant.

5.2 OP filed affidavit of evidence of Sh.R.K. Allabadi, Senior Divisional Manager, it is on the pattern of written statement and it also reproduces exclusion clauses no. 4.1 and 4.3 to oppose the complaint and to establish the plea of OP.

6.1 (Final hearing) : Complainant Shri Naresh Bajaj made the oral submissions himself, although he was given option that he may have services of legal aid counsel at State expenses, however, he opted to make submissions himself.

6.2: On the other side, Sh. V.K. Gupta, Advocate for OP made the submissions, the complaint has been opposed.

          It does not require to reiterate the submissions of both the sides as the same will be referred appropriately. During the submissions circular dated 09.09.2011 issued by Insurance Regulatory and Development Authority was also referred on the point of portability.

7.1 (Findings) : The contentions of both the sides are analysed and considered on the basis of material on record, statutory provisions of law of Consumer Protection Act, 1986,  apart from the case law and circular dated 09.09.2011.

7.2.1: By reconciling the dates of policies, from time to time, the same were not disputed by the parties, however, the dispute is whether the policy taken by the complainant from the OP are to be considered in continuation of the policy which was taken from Choldamandalum by son of the complainant, particularly in view of the circular dated 09.09.2011 health insurance portability.

7.2.2. The rival plea of the parties give rise to some issues, first question is whether policy period is to be considered from 02.11.2009 as contended by the complainant  or from 12.03.2010 as contended by the OP. The second question for determination is on point of exclusion clauses 4.1. and 4.3. However, both the questions are intermingled, thus both are being taken together. The discovery of their answer will also determine whether or not there is deficiency in services by the OP. They are being considered in sub-paragraphs 7.3 7.4.and 7.5

7.3.1: Complainant's case, simply, is that he was never knowing about the disease ASD since inception of taking the policy on 2.11.2009 by employer of his son, the policy was also renewed  and later complainant took policy from OP  which was also renewed and there was no claim lodged prior to the issue under consideration, since no treatment of such ailment was taken. Although, complainant was never informed of the exclusion clauses being relied upon by OP, it is just to deny the valid claim, despite it do not apply. The complainants had gone to hospital, then it was made known about the diagnose of disease.  There was no question of pre-existing of disease or concealment of any fact, rather it is also case of OP that it  comes to light all of sudden.

7.3.2. Whereas, OP  has reservations to the claim of complainants, while referring complainant's record as well as terms and conditions of the policy.  The complainant is covered by policy w.e.f. 12.03,2010 , he was found case of ASD,  It is a  clear case of pre-existing disease being covered exclusion clauses 4.1. and 4.3. on its plain reading. Because of inward portability clause, the date of policy will be of 12.03.2010, as it was obtained from OP. The terms and conditions of insurance policy are known to the complainants, which are matter of record. The complaint is liable to be dismissed.

7.3.3. Clause 1.1 (portability) of circular dated 09.09.2011 is a very simple  & clear clause and it makes option available to the policy holder to switch from one insurer to another insurer or from one plan to another plan of the same insurer, provided the previous policy has been maintained without any break. Its other clause no. 3 also provides that when a policy holder desirous of porting his policy to another insurance company, it shall apply to such insurance company at least before 45 days before premium renewal date of his/ her existing policy.  Both the clauses are reproduced for ready reference.

"Clause 1.1 – Portability: Portability means the right accorded to an individual health insurance policyholder (including family cover) to transfer the credit gained by the insured for pre-existing conditions and time bound exclusions if the policyholder chooses to switch from one insurer to another insurer or from one plan to another plan of the same insurer, provided the previous policy has been maintained without any break”.

" Clause 3 – A policyholder desirous of porting his policy to another insurance company shall apply to such insurance company at least 45 days before the premium renewal date of his/ her existing policy”.

          By referring to the insurance policies, it begins from 02.11.2009 to 23.06.2010 and then from 24.06.2010 to 13.11.2010 with the Cholamandlam and ICICI GIC Ltd. respectively,  then further policies were obtained by the complainant from OP with effect from 12.03.2010 to 11.03.2011 and then renewed from 12.03.2011 to 11.03.2012. Because of portability clause in the circular, the continuity of the policy shall be from 02.11.2009 and it continued up to 11.03.2012. The date of episode of medical treatment is of 11.11.2011, which is within the subsistence of last policy issued by OP from the period 12.03.2011-11.03.2012. Accordingly this issue of continuity of policy stands disposed off and continuity of policy will be computed from 02.11.2009 as contended by complainant and not from 12.03.2010 as contended by OP. Thus,  portability clause by IRDA Circular dated 09.09.2011 hits the clause 4.1 of Policy issued by OP on the face of it,  it is contrary to circular issued by IRDA.

7.3.4.  Moreover, in United India Insurance Co. Ltd. vs Jai Prakash Tayal [2018 (247) DLT 379] it has been held by Hon'ble High Court of Delhi that exclusion of genetic disorder is discriminatory since right to health is a fundamental right and right to healthcare is also a fundament right, by excluding any particular category of individuals who are with genetic disorders, from obtaining health insurance or having their claims honored based on genetic disposition would be discriminatory and violation of citizens right to health. Further, reliance can also be placed on Srinivas vs SBI Life Ins. Co. Ltd and Ors. [2018 (2) Apex Court Judgment (SC) 81] that if underwriter is to accept the premium based on the medical examination and not otherwise, it was held that very fact they accepted the premium waived the condition precedent of medical examination.

Accordingly, this case does not fall in the category of pre-existing disease or to say OP cannot exclude the claim by invoking clause 4.1-existing disease.

7.4. Since the continuity of policy begins from 02.11.2009, therefore, the episode of 11.11.2011 is after two years period being covered by subsequent/last policy obtained from OP, thus exclusion clause 4.3. will also not be applicable.

7.5.  Thus, non-settle of complainant's claim, despite it could be settled, it is deficiency of services.  The OP had already asked the complainant to record, which complainant had also furnished.

7.6. Now, question arises since the complainant's claim was repudiated by letter dated 27.08.2012, then for what claim the complainant would be entitled? As per contents of complaint as well as affidavit of evidence, the complainant has not pleaded and mentioned any amount of claim or bills. Whereas, as per section 14(1) of the Consumer Protection Act, 1986, the complaint is required to prove allegation of the complainant. The complainant has proved deficiency of services on the part of OP. The complainant prays for pass appropriate directions as well as compensation.

7.7: Since the OP had just invoked the exclusions clauses, however, it has already determined that such exclusion clauses do not apply, therefore, OP is required to consider/settle the amount of claim of the complainant.  The OP is already having record of case. Moreover, the complainant was constrained to file this complaint after exhausting energy, visits and facing other trauma for want of settlement of his valid claim.  He is also entitled for compensation/damages of Rs.25,000/-in his favour against OP.

7.8.  Accordingly, the OP is directed to settle the amount claim of complainant at the earliest, preferably within 90 days from the date of this order i.e. on or before 20th July 2023 without fail.  Since the compensation of Rs.25,000/- is allowed, it will also be payable by the complainant within same period.   

8.. Copy of this Order be sent/provided forthwith to the parties free of cost as per

9:  Announced on this 21st April 2023 [वैशाख 01, साका 1945].

[Vyas Muni Rai]                        [ Shahina]                            [Inder Jeet Singh]

           Member                            Member (Female)                              President