Delhi

West Delhi

CC/18/332

ANANT KUMAR - Complainant(s)

Versus

NATIONAL INSURANCE - Opp.Party(s)

14 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTE REDRESSAL commission-III(WEST)

C 150-151, COMMUNITY CENTRE, PANKHA ROAD,JANAKPURI,

NEW DELHI-110058

 

CC No. 332/2018

 

IN RE:

 

Anant Kumar

S/o Dharam Pal Singh

R/o –RZ B-108, Dabri Extension East,

New Delhi – 110045.                                                        .......... Complainant

 

VERSUS

 

1.M/s National Insurance Company Limited,

(Parent Company)

3, Middleton Street, Kolkata,

West Bengal – 700071

 

2.National Insurance Company Limited

(Branch of Parent Company)

B-18, Ist Floor, Commmunity Centre,

Janak Puri, New Delhi-110018

 

3.East West Assist TPA Pvt. Ltd,

Service Provider of parent company

404, DLF Place, Saket, Office Mall Block,

4^th Floor, Court Yard, District Centre, Saket,

New Delhi-110017                                                           ……..Opposite Parties

 

Coram:                                                                            

MS.SONICA MEHROTRA, PRESIDENT

MS.RICHA JINDAL, MEMBER

MR.ANIL KUMAR KOUSHAL, MEMBER

 

Present: Complainant in person.

               OP ex parte.

Date of Institution:24.08.2018

Judgment reserved on:02.02.2023

Date of Decision:14.03.2023

 

 

ORDER

PER: ANIL KUMAR KOUSHAL, MEMBER

 

          In order to appreciate the dispute, facts of the present complaint may be noted hereunder:

1.       Complainant submits that he had continued his “National Parivar Mediclaim” policy with OP Nos. 1 & 2 by paying cheque number 000192 dt. 18^th January, 2018 of HDFC Bank of Rs.13283/-  as premium in the name of OP No.1 for the period 2018-19. Thereafter, the complainant received policy document and three mediclaim cards and booklet of list of hospitals and nursing home covered by OP No.1 against Policy No. 361801501710001298. The  Policy was  effective from 24/1/18 to 23/1/19, for a  sum insured of  Rs.4,00,000.00 The policy cover mentioned details of diseases which are not covered under this policy. The Policy documents reflected only three diseases which are not covered under the policy and they are: (A) Critical Illness, (B) Pre Existing Diabetes Cover & (C) Existing Hypertension Cover.

2.       Complainant submits that his  Wife Premlata Pal had complained of stomach pain on April 1, 2018. Same day, the complainant had taken her to nearest  Mata Chanan Devi Hospital, C1 Janak Puri, New Delhi. The doctors there advised some tests and asked to visit next day. On April 2, 2018 doctors again did some tests and concluded that complainant’s wife had "Missed Abortion". During treatment of Missed Abortion, the complainant had incurred total expense of Rs.25000/-. As per complainant, in the last week of April, 2018 he had personally visited OP No.1’s Branch in Janak Puri, New Delhi and submitted the claim papers along with all original hospital lab tests, discharge summary and bills. On May 2, 2018, the complainant received  an SMS from OP No.3 informing him  of his claim number 600385. After that the complainant tried rigorously to contact the TPA/OP No.3 online as well as telephonically but all in vain.   Thereafter the complainant had sent an email to customer care ID of OP No.1 and after their intervention the complainant received an unfortunate SMS from OP No.3/TPA  on May 15, 2018 informing him  that his claim was rejected. On May 16, 2018 the complainant received an email from OP No.2, giving reason of rejection of complainant’s claim. As per email, complainant’s claim was rejected due to below mentioned clause:

“Clause no: 1.2.11 Maternity - The Company shall pay to the hospital or reimburse the insured the medical expenses, incurred as an in-patient, for delivery or Termination upto the first two deliveries or termination of pregnancy during the Lifetime of the insured or his spouse, if covered by the Policy, provided the Policy has been continuously in force for thirty six Months from the inception of the Policy or from the Date of inclusion of the insured person by the Policy, whichever is later.

3.       Complainant submits that his objection  is to the above hidden clause as same is not mentioned anywhere in four page policy documents sent by OP No.1 to him.  The complainant has been  continuously sending his complaint through email to senior officials of OPs 1 & 2  from May 16, 2018 to till date but he has  received only few replies that too only reminding him about above mentioned hidden draconian clause. Complainant  submits that on getting no solution from OPs, he had sent an email on July 23, 2018 asking OPs to return his original hospital documents but that too has not been returned to him  till date. Further the complainant had sent written complaint letter to OPs on July 27, 2018 which had been received by OPs on July 30, 2018 but again till date OPs have not given any solution to his complaint. This casual attitude of OPs clearly reflects that they are not serious in resolving customer's complaints and OPs  are just collection centers who are duping customers while collecting premium from the customers and when customers ask for refund of claim then they show their hidden draconian clauses to the customers.

4.       Complainant further submits that as he had been paying his insurance premium on time, therefore, OPs are bound to refund his claim amount, pay heavy compensation, exemplary costs for subjecting him and his family to serious inconvenience, hardship and mental agony. The complainant seeks the following reliefs from this Commission:

1. to refund his claim amount of Rs.25000/- with interest @  8% per annum.

2. to pay a sum of Rs.300/- per day towards the damages from 16-05-18 till the date of refund of his claim.

3. to pay a sum of Rs.25000/- towards the compensation for mental agony, hardship and serious inconvenience.

4. to pay costs of Rs.10000/- and pass such and further order or orders which this Commission deems fit and proper in the circumstances of the case.

5.       Complainant attached copies of the insurance policy, three mediclaim cards, prescription dated 29.03.2018 of Mata Chanan Devi Hospital, details of tests conducted and treatment taken at the Mata Chanan Devi Hospital, New Delhi from 01.4.2018 to 02.04.2018, email exchanged between the complainant and OPs from 08.04.2018 to 23.07.2018, with the complaint.

6.       Upon admission of the complaint on 30.08.2018, joint written statement was filed by OPs 1, 2 and 3.   In the written statement, OPs submitted that the present complaint is a glaring example of harassment which is being done to the Insurance Company by cleverly twisting the true facts and moulding the same for achieving illegal gains and hence, the complaint has not come before this Commission  with clean hands. OPs submitted that the present complaint involves disputed questions of facts, adjudication of which requires recording of detailed oral and documentary evidence. The matter, therefore, falls within the domain of Civil Courts. This Commission has no jurisdiction to entertain the present complaint. The Consumer Protection Act is a beneficial piece of legislation to provide relief to aggrieved consumers and the purpose of creation of this noble Commission is to provide relief to aggrieved consumers. However, it is unfortunate that certain persons, having vested interests, are misusing this noble Commission and the process of law for their own personal agendas, for claiming the benefits of their own wrongs, for satisfying their egos and for their personal gains. The complaint is devoid of merits, based on concealment of facts including suppression of material facts. The present complaint is an after-thought and has been filed with the Mala fide intention to cause financial loss and in order to extort huge amount from the OP Company.

7.       OPs submitted that the complainant had lodged a false and frivolous claim and is maliciously trying to mislead this Commission. There is no deficiency in service on the part of  OPs. The competent authority of the OP company repudiated the claim in light of the terms and conditions of the policy  after full application of mind. As per  clause no.1.2.11 “Maternity” of the policy which states that:

"the company shall pay to the hospital or reimburse the insured the medical expenses, incurred as an in-patient, for delivery or Termination up to the first two deliveries or terminations of pregnancy during the lifetime of the insured or his spouse, if covered by the policy, provided the policy has been continuously in force for thirty six months from the inception of the Policy or from the date of inclusion of the insured person by the policy, whichever is later"

The claim of the complainant is squarely covered under the above clause as in the present case the policy inception year is 2017 with policy number 36180148168500009191 and this policy was renewed on 24.01.2018 vide policy number 361801501710001298 under which the present claim has been made by the complainant. Thus it is amply clear that the present policy has not been continuously in force for thirty six months from the inception of the policy. Therefore, the claim of the complainant is not maintainable.

8.       According to OPs, in the present case the complainant had taken the policy product i.e. NATIONAL PARIVAR MEDICLAIM POLICY under which the policy has to be continuously in force for thirty six months from the inception of the policy or from the date of inclusion of the insured person by the policy, whichever is later. The wife of the complainant is a case of Missed Abortion and as per the terms and conditions of NATIONAL PARIVAR MEDICLAIM POLICY, the same is covered under the policy only after 3 years (36 months) waiting period of the same policy product. Moreover, the wife of the complainant is Gravida 3 (i.e. 3rd Pregnancy) and as per clause no. 1.2.11 “Maternity” of the policy(quoted above), OP will pay expenses only for delivery or termination up to the first two deliveries or terminations of pregnancy during the lifetime of the insured or his spouse which is not the case of the complainant. The said policy was issued along with terms and conditions. The complainant was bound to follow the terms and conditions in order to take the benefit of the policy. Thus the present case falls in clause no. 1.2.11 “Maternity” of the policy and the claim of the complainant is not maintainable.

9.       OPs submitted that the insurance policy is a contract between the insured and the insurer, the terms and conditions thereof are strictly adhered to by both the parties. There is no cause of action  or deficiency in service against the answering OPs.

10.     OPs denied that the Policy documents are reflecting only three diseases which are not covered under the policy and they are (A) Critical Illness (B) Pre Existing Diabetes Cover & (C) Existing Hypertension Cover.  OPs submitted that the complainant was provided with the policy along with its  terms and conditions. The complainant was bound to follow the terms and conditions in order to take the benefit of the policy.

11.     OPs denied that the complainant had sent an email on July 23, 2018 asking OPs to return his original hospital documents. OPs further denied that the complainant had sent written complaint letter to OPs on July 27, 2018. OPs denied the allegation of complainant  that OPs are not serious in resolving customer's complaints and  are just collection centers for duping customers while collecting premium from them and when customers ask for refund of claim then they show their hidden draconian clauses to the customers. OPs  prayed for dismissal of the complaint  with heavy exemplary costs.

12.     OPs filed with their written statement copy of the insurance policy along with its terms and conditions.

13.     Dissatisfied with the reply of OPs, complainant filed rejoinder in rebuttal thereof.

Complainant submitted that instead of replying on the cause of delay in service and resolution of customer's complaint OPs have just repeated only his words.   Complainant submitted that the Clauses which the OPs have mentioned in Para-2 of under preliminary submissions of their written statement are supposed to be written along with three diseases which are not covered under the policy. By hiding the exclusion clauses, OPs are indulging in unfair trade practices and extorting money from consumers in terms of yearly premium. Complainant submitted that his wife did not go to hospital voluntarily neither for delivery nor for termination of pregnancy. It was a case of stomach pain and due to the excess pain,  all complications started  and they lost their unborn baby.  

14.     Complainant reiterated that the three diseases which are not covered under the present policy are clearly written on page 1 of the Policy.   Complainant denied that he was issued the policy with full terms and conditions.  He also reiterated that  on getting no solution from opposite parties, he had sent an email on July 23, 2018 asking opposite party to return his original hospital documents.  Further the complainant had  sent written complaint letter to opposite parties on July 27, 2018 which had been received by opposite parties on July 30, 2018. Complainant reiterated and re-affirmed the submissions made in the complaint.

15.     Evidence by way of affidavit was filed by the complainant and he exhibited the documents filed on record.  OPs did not file affidavit of evidence  despite grant of various opportunities and imposition of costs.  Accordingly vide order dated 12.09.2022, OPs were proceeded against ex parte.

16.     Oral arguments were heard on 02.02.2023 when the complainant advanced arguments.  He submitted that he is  having only one child presently and this was the second case of pregnancy of his wife. 

17.     Though the OPs in their written statement  have been in denial mode on  all the issues raised  in the complaint  be it the cheque for the premium amount of Rs.13283/- given towards  the insurance premium on 18.1.2018 and the policy to be effective from 24.1.2018 to 23.1.2019 or supply of complete set of the policy document. The OPs though denied that the complainant had given the said cheque towards the renewal premium amount but admitted that the policy was renewed on 24.01.2018. The complainant in the very first line of the complaint itself had very clearly stated that  he had continued his earlier policy.  However, broadly speaking there are three aspects raised in the present complaint for adjudication which are to the following effect:

          1. whether the clause 1.2.11 “Maternity”  making the claim permissible only after 36 months, is arbitrary as  concealed/withheld from the complainant.

          2.whether the complete set of policy document was supplied to the complainant or note.

          3. Whether there is any evidence to show that the case of wife of complainant  was a case of third pregnancy.

18.         Notwithstanding  that the contract of insurance is one which is based on good faith  and at the same time the Courts cannot tweak or interpret the terms and conditions of the policy to suit the interests of a particular party as is the settled law by the Hon’ble Supreme Court in the cases of  M/s Suraj Mal Ram Niwas Oil Mills  vs United India Insurance Co.Ltd.(CIVIL  APPEAL No. 1375 OF 2003), decided on 8 October, 2010, Export Credit Guarantee Corpn. of India Ltd. Vs. M/s Garg Sons International(Civil Appeal No.  1557  of 2004), decided on 17.01.2013, Oriental Insurance Co. Ltd vs Sony Cheriyan, decided  on 19 August, 1999,  as the exceptions made  are not on ground of  equity and have to be read strictly  as they are without altering the nature of contract, but  such terms and conditions of a contract or a term thereof is substantively unfair if such contract or the term thereof is in itself harsh, oppressive or unconscionable to one of the parties. The object of the insurance policy  is to cater to  expenses incurred by the insured in distress.  That is the main purpose of the contract of insurance. If the insurer accepted the proposal  and issued the insurance cover, what for the said cover  would be if such  clauses  which permit taking treatment only after three  years of issue of  the policy, are allowed to impede.  However, we observe that giving textual/restrictive effect  to such  clauses  would in most cases render the mediclaim cover meaningless; the policy would be reduced to a contract with no content in the event of happening of a contingency.  Such clauses cannot be allowed to override the insurer’s primary liability to indemnify the insured.  If we go by the proposition of the OP, the insured, on detection of any sudden illness would be compelled to continue to suffer the pain and pend taking the treatment for the ailment till such time the clauses of the policy are complied with.    

19.     In the case of Hari Om Agarwal vs. Oriental Insurance Co. Ltd, decided by the Hon’ble High Court of Delhi on 17.09.2007 while relying on the judgment of the Apex Court in the case of Life Insurance Corporation of India vs. Consumer Education and Research Centre, 1995(4) SCC 482,  it was observed that  actions of the State, its instrumentalities and public authorities or of persons whose actions bear insignia of public law element or public character are amenable to judicial review  and that legality of such actions would be tested upon the anvil of Article 14.  Fairness and non-arbitrariness are considered as two immutable pillars supporting the equality principle, an unshakable threshold of state and public behaviour.  Every action, policy or even change of policy in the realm of State activity should be informed, fair and non-arbitrary. Further the exclusion clause  in the context of a contract of insurance, which is an assurance whose main purpose has to be given prominence, should be construed strictly.  The primacy given to the “main purpose” notwithstanding that contracting parties agreed to certain exclusions, is founded on the principle of interpretation that if contracting parties seek to achieve  a certain purpose by entering into an agreement, the existence of exclusion clauses should be strictly interpreted and if it tends to defeat the main purpose, should be read down by the Court and if that is not possible, the Court should altogether ignore it.

20.     In Manmohan Nanda vs. United India Assurance Company Limited, (Civil Appeal No. 8386/2015), decided on 6^th December, 2021, the Hon’ble Supreme Court  held as under:

“The object of seeking a mediclaim policy is to seek indemnification  in respect of a sudden illness or sickness which is not expected or imminent and which may occur overseas.  If the insured suffers sickness or ailment which is not expressly excluded  under  the policy, a duty is cast on the insurer to indemnify the insured for the expenses incurred thereunder”

21.     Having appraised the facts of the case, we observe  that the complainant was kept in dark about  the  clause 1.2.11 “Maternity”.  If the claim in relation to the said maternity clause, which in any case is not an exclusion clause as per own admission of the OPs, could be admissible only after 36 months of taking the policy, as to why the Insurance company/OP.1 was taking full premium for the same purpose in advance for the last two years. Why the complainant was not apprised of such arbitrary terms in advance, as alleged by the complainant that he was only given first four pages of the insurance policy but no terms and conditions which were detrimental to his interest.  This amounts to  unjust enrichment on the part of OPs to take full premium for the disease/ailment but to allow the insured to seek reimbursement  of claim only after 36 months.  That means to say that a person after taking the policy has to wait for thirty six months to think of bearing a child or to face the eventuality of mishap of  miscarriage/missed abortion. The complainant had not dreamt that she will face the issue of miscarriage in between. These are all natural phenomenon which are beyond the knowledge and control of any ordinary person.  Can any woman predict that she will face miscarriage in between or when she will conceive. All these eventualities are acts of God.

22.     The second issue was whether the complainant was provided with complete set of the policy document  at the time of taking the policy or renewal thereof.   In the present case, the complainant submits that he was never earlier informed of such draconian clause like 1.2.11. Had  he been aware of such clause, he would have taken recourse to some other policy or  may not have even opted for such a policy having clauses which amount to  unfair trade practice of  enticing the gullible consumers by charging hefty insurance premia  and then denying the claims when the opportunity arises on the ground of hidden clauses. 

23.        In United India Insurance Co. Ltd vs M.K.J. Corporation  (CASE NO. Appeal (civil) 6075-6076 of 1995), decided on 21^st August,1996, the Hon’ble Supreme Court observed that :        

“It is a fundamental principle of Insurance Law that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing (non-disclosure) what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. Just as the insured has a duty to disclose, "similarly, it is the duty of the insurers and their agents to disclose all material facts within their Knowledge, since obligation of good faith applies to them equally with the assured.”

24.     Further, in M/S Modern Insulators Ltd vs The Oriental Insurance Co. Ltd, decided  on 22 February, 2000, the Hon’ble Supreme Court held as under:

“It is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good faith forbids either party from non-disclosure of the lads which the parties known. The insured has a duty to disclose and similarly it is the duty of the insurance company and its agents to disclose all material facts in their knowledge since obligation of good faith applies to both equally. In view of the above settled position of law we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant respondent cannot claim the benefit of the said exclusion clause. Therefore.. the finding of the National Commission is untenable in law.”

25.     In the present case , as noted above, the contention of the complainant throughout has been  that he was never made aware of  such exclusion or restrictive clause 1.2.11 (Maternity)  before  opting for the policy in question.   The OP has also not proved on record that  complete  set of the insurance policy containing the terms and conditions thereof was supplied to the complainant.  Therefore, this issue is decided in favour of the complainant and against the OPs.

26.     Thirdly, the OPs have talked of case of complainant’s wife being a Gravida 3(i.e. 3^rd pregnancy) which as per clause No.1.2.11 “Maternity” of the policy, OPs will pay only for delivery or termination upto the first two deliveries or terminations of pregnancy during the lifetime of the insured or his spouse.   Here what is the basis of OPs reaching to such a conclusion without any cogent documentary evidence.  The complainant had taken the present policy as per own admission of the OPs in 2017 and renewed it in 2018.  The OPs have insured the complainant, his wife and their five year child under the policy. This goes to show that  the miscarriage leading to medical termination of pregnancy of wife of the complainant under the continuation of the present policy was the first case of its kind and not the third case as alleged by the  OPs.   The OPs have nowhere proved on record that during the currency of the present Insurance policy since 2017, the complainant had earlier filed any such claim which was allowed or rejected.  Accordingly, this issue is also decided in favour of the complainant and against the OPs.

27.     The upshot of our above discussion is that Clause 1.2.11 “Maternity under the present  National Parivar Mediclaim” policy of OPs was concealed by OPs from the complainant due to non-supply of the complete set of insurance policy which is  against the principles of natural justice and goes against the OPs. Accordingly, the complaint is allowed and the OPs are held guilty of deficiency in service and following unfair trade practice in denying the legitimate claim of the complainant.   OP No.1 and 2 are directed to refund to the complainant  the amount of Rs.25,000/- along with interest @ 6% p.a. from the date of filing of the complaint  till final realisation.   For the mental harassment and mental agony faced by the complainant,  OP Nos.1 & 2 are directed to pay a sum of Rs.20,000/- as compensation and Rs.15,000/- as litigation expenses to the complainant.  Let this order be complied with by OPs 1 & 2 within a period of thirty days from the date of receipt of copy of this order.

A copy of this order shall be supplied to parties to the dispute free of cost on a written requisition being made in the name of President of the Commission in terms of Regulation 21 of the CPR, 2020.

     File be consigned to record room.

 

(Richa Jindal)                               (Anil Kumar Koushal)                        (Sonica Mehrotra)

  Member                                   Member                                       President