Order no. 18 dated 30.9.15
Case of the complainant in short is that the complainant being a senior citizen and his wife Rita Bhanja are the policy holders of BOI National Swastha Bima Policy since 8.2.2008 (policy no.153600/48/07/8500004131) and the premium was to be paid by virtue of automatically debited from their Savings Bank account (A/c no.428910110000981) maintained in the OP no.2 Bank of India, Chinsurah Branch in favour of OP no.1 National Insurance Co. Ltd. , Chandernagore for year wise renewal and accordingly the OP 2 was duly authorized for the same without liability for payment of usual premium by the complainant physically and personally to the OP no.1 Insurance company. It is further case of the complainant that the Policy was renewed automatically for the 2nd year in the year 2009 and continued accordingly for further year 2010, 2011, 2012 , lastly 21.5.2013 without any intention to stop the policy. But it is unfortunate for the complainant to have noticed that in the third year between 2010-2011 being the policy no.153600/48/10/8500001017 has not been cleared from the said Bank account inspite of sufficient fund in credit of the complainant during the period of due date of renewal towards the policy . Though the payment of premium was made from the account on 17.5.2010 by the OP to which the complainant had no role . The matter of delay in payment of premium due to fault of the OP Bank and the Insurance company. The complainant should not be liable to suffer the loss . Rather , the Ops are liable for breach of contract in the matter of renewal of the policy. Since, the duty of the complainant maintained the qualified balance in his Bank account, the oP/Bank is bound to debit the premium in time for renewal of the policy and the oP /Insurance company is to receive the same from the Bank in compliance with the relationship between the oP/ Bank and the OP/ Insurance company under the integrated models and activities for the progress of Mediclaim Insurance policy of the customers. This is the grievance of the complainant that he submitted entire bills and documents for proper reimbursement from the OP/Insurance company but without reason the claim has been repudiated on the plea of five pre existing diseases during certain period which is denied by the complainant. Being aggrieved the complainant has come before us under due legal notice to the Ops for getting relief as categorically mentioned in the petition of complaint.
Op Insurance company contested the case by filing Written version claiming therein that the case is not maintainable for want of cause of action as for the first policy of the complainant being his number 153600/48/108500001017 w.e.f. 20.5.2010 to 19.5.2011 and the complainant was medically treated from 14.1.2013 to 15.2.2013 (as per discharge summary) during third policy since the complainant was a patient of HTM for 20 years with CKD from 2007 which exposes his pre existing diseases . As per policy condition the pre existing diseases are not covered under consecutive three claim free years . Thus, the alleged claim for medical reimbursement as placed by the complainant could not be settled and thereby the case should be dismissed against the oP/ Insurance company.
OP no.2, Bank of India, challenged that the case is not maintainable on the ground that there was no effective scheme of automatic debit without consent of the complainant being the policy holder had one year policy under the oP no.1/Insurance company and the Bank had no authority to debit any amount automatically. It is obligation of the complainant to keep sufficient fund in his account and to give due consent to the Bank for debiting premium amount . But there is no clear instruction duly given to the Bank for necessary deduction in order to maintain his policy . Thus, the claim of the complainant is false and fabricated and as such the same should be dismissed against the OP /Bank.
Upon the case of both parties the following issues are framed :
ISSUES
Whether the case is maintainable in its present form ?
Whether there is cause of action for presentation of this petition of complaint ?
Whether the complainant is entitled to get relief as prayed for ?
DECISION WITH REASONS:
All the issues are taken up together for the sake of convenience and brevity of discussion.
Ld. Advocate for the complainant argued that the complainant is a bona fide Medi claim Policy holder under the OP no. 1/National Insurance Company Ltd. by virtue of regular payment of premium through OP no. 2 Bank of India under the scheme of ‘BANK OF INDIA NATIONAL SWASTHA BIMA POLICY’ and accordingly the same is maintained by him virtue of keeping viable balance on regular basis in his Savings Bank A/c being its no.428910110000981 with the said Bank for the purpose of Systematic Payment of premium to the OP no.1 Insurance Company . In this connection, the relevant documentary evidence is pointed out and discussed at a good length before us and argued on the strength thereof that both the Ops are unable to have established the fact that there was no scheme for automatic debit scheme for the purpose of maintenance and renewal of policy with the Insurance company. Further, argued that the plea of pre existing ailments as raised by the Ops should not be considered as a good public policy and reliable evidence to debar the claim of the complainant mere case of Hypertension for 20 years or previous Artery Bypass, headache, weakness, constipation or diabetes cannot be accepted as solid and convincing materials for the purpose of repudiation to the claim of the complainant . In this connection, decisions reported in several number of renowned cases are discussed widely. Thus, the right of repudiation cannot be granted in favour of the Insurance companies mere on such vague and flimsy ground. Ld. Advocate has concluded his argument with giving sufficient stress that there is no evidence on the part of the oP/Insurance company claiming that at the time of proposal for the policy there was necessary investigation to detect the alleged fact of pre existing diseases of the policy holder. Now, at the time of payment , the Insurance company is found to have raised this sort of weakened ground against the claim of the complainant which should instantly be thrown out in the question of present case.
Ld. Advocate for the OP Bank in reply submitted that the complainant has no locus standi to file the case and the same is not maintainable on the ground that the complainant is not a consumer . The premium of the Mediclaim policy was not a subject for automatically debited from the account of the complainant without consent. So it is not possible for the oP/Bank to debit the premium amount and making payment thereof to the Insurance company. So, it is not liable for the Bank to suffer any loss for causing alleged breach of contract towards the renewal of the policy without consent of the complainant. Admittedly, the policy is of “BOI National Swastha Bima Policy” so there is no responsibility under the said Mediclaim policy that this OP Bank accepted any correspondence for pursuation with the insurance company being a third party administrative organization. Thus, there is no evidence of fault in any manner whatsoever against the oP Bank nor any case of automatic debit liability in respect of the payment of premium amount to the OP Insurance company. To this context, there exists no deficiency on the part of the Bank and thus the case should be dismissed accordingly .
Lastly, ld. Advocate appearing for the OP no.1 Insurance company in a very laconic form eloquently made his transparent argument referring to the explicit terms and conditions relating to the policy. First, it is incumbent upon the Policy holder for making payment of premium before expiry of the previous policy just to secure the benefit of continuity of the same with cumulated bonus if he is merited to avail of . It is pointed out by the learned Advocate that after delay of 104 days of the expiry of previous policy the payment of premium is to qualify to have a fresh policy and in the circumstances the present policy is designated to be the effect of first policy and the claim to be considered not as a continued policy w.e.f. the previous policy. The diseases as covered in the discharge summary are the pre existing ailments are to be covered only after consecutive three claim free years. In this context, the material information on the diseases as disclosed in the discharge summary is referred to and submitted that the complainant was a patient of HTN for 20 years, DM since 2007 , CAD since 2001 and CKD since 2007 and on that ground the complainant was admitted for treatment . Those form of
ailments are clearly pre existing diseases and in no way the claim can be admissible in the third year of the policy. Thus , the case of repudiation does not amount to the allegation of deficiency in service against the Insurance company. So, the case should be dismissed against the OP no.1 Insurance company.
We have carefully considered the submission of all concerned and perused the documentary evidence particularly in the S.B. Pass Book Account statement and it appears that there was sufficient and capable balance in the said account of the complainant to meet the regular payment of insurance premium to the OP -1 Insurance company through OP no.2 Bank of India under National Saswath Bima Policy /Health Insurance Plan of Bank of India. Thus, the plea of having no authority for automatic deduction of the premium amount out of balance of the S.B.Account for the purpose of regularization and up-keeping of the policy in the favour of the complainant. The proposal form itself is very much clear and it explicitly shows and indicates that the premium will be deducted from the A/c by the Bank and paid to the National Insurance Company. Simultaneously, it is interestingly noticed that the OP no.2 Bank debited premium amount on each and every occasion dated 6.2.2009 Rs.2,638/- preceding to which the balance stood Rs.16,290/- again on 17.5.2010 amount of premium Rs.3,331/- out of balance Rs.17,461/- and again on 16.5.2011 deduction on account of Insurance Renewal charges Rs.3,331/- against the balance of Rs.5,173/- . Whatever may be the reason for delay in depositing premium amount as to the case of the oP Bank , we do not find any evidence showing that necessary intimation to that effect was duly been made to the policy holder /complainant from the end of Bank authority. We have very sincerely considered this aspect particularly in the light of explicit guideline and instruction as superscribed by the Insurance Regulatory and Development Authority duly circulated under its no.52/15/IRDA/Health/SN /08-09 dated March, 31, 2009 that All Health Insurance Policies shall contain a clause that provides for a mechanism to condone delays in renewal for upto 15 days from the renewal due date , so that the insured persons is/are treated as continuously covered in terms of continuity benefits . So the plea of delay has no role for holding any adverse interest against the complainant in the matter of continuity of the policies . Thus , there is no doubt left for us to believe and accept the case of the OP Bank that the complainant was suffering from lesser amount of balance for the purpose of making payment of premium in favour of his policy. No reply as such is available in favour of the Bank that they have not debited any amount for renewal amount. Since the policy being attractive with the scheme of Health Insurance Plan from the Bank of India with the OP no.1 National Insurance Co. Pvt. Ltd. , the question of repudiation on flimsy ground of pre existing diseases as raised by the Insurance company and at the same time shortage of fund or absence of authorization for debiting the premium amount as pleaded on behalf of the OP no.2 Bank cannot be accepted.
Now, the question raised by the OP Insurance company that the complainant is not entitled to get benefits of his claim on the ground of the alleged fact that the insured person was a patient of pre existing diseases . We have very seriously taken up this issue in the back ground of entire case of the parties to that effect. The discharge summary produced by the complainant is found to have disclosed the nature of ailments along with its respective periods in this connection it is to be established it is very much vital that whether the fact of pre existing diseases were suppressed by the complainant at the time when he furnished the proposal form intending to take the relevant policies . In such a case burden of proof is on the OP no.1 insurer to establish that there was suppression of material facts on the part of the insured and unless the insurer is able to prove the fact , there should not be any question of the policies being avoided for the purpose of granting the claim for medical reimbursement. Under the present circumstances when the claimant raised a demand for relief the OP Insurance company has no scope to repudiate the same against the complainant.
As to the question of liability alleged by the complainant, it is very much relevant to give effect and procedural importance towards the approach of the Insurance company as outlined in their written letter dated 7.1.2014 in the context of the present policies as per strategic alliance of the Corporate offices , Bank of India which are to be as Development office and the respective Bank branch is an agent . It is responsibility on the part of the Bank to debit the premium from the customer’s account after the consent of the beneficiary and to send the full premium for renewal . The Op further admitted in the said letter that continuation benefits are not allowable for inordinate delay of submission of the renewal premium and there is no such treaty between the Bank and Insurance company that the premium will be automatically debited and the policy shall be issued. Ultimately, the Op Insurance company repudiated the claim of the complainant mainly on two- fold- ground viz. discontinuation of policies and pre-existing diseases .
Considering, the stipulated guideline of IRDA as discussed hereinabove and the scheme of Bank of India National Swastha Bima Policy /Health Insurance Plan from the Bank of India together with the terms and conditions appearing in the proposal form , S.B. A/c statement , the both the Bank and Insurance company are deemed to have systematic strategy by virtue of their practice in the matter of continuation of the policy subject to qualified balance maintained as on the scheduled date of premium .
Under the facts and circumstances, as discussed hereinabove , it is held and decided that there exists joint negligence on the part of both parties leading to have committed failure of legal liability towards the statutory claim of the complainant and thereby repudiation is not justified.
Accordingly, all the issues are disposed of in favour of the complainant.
Hence ordered
That the case be and the same is allowed on contest .
The complainant is entitled to get Rs.2,00,000/- ( two lakhs) only on account of medical reimbursement claim with 9.25% interest from the date of filing of this case till payment and Rs.1,00,000/- (one lakh) only as compensation and Rs.10,000/- for litigation cost payable by the Ops 50 : 50 equally .
Both parties are hereby directed to make payment accordingly within 60 days from the date of this order.
Let a copy of this order be made over to the parties free of cost.
