Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 168/28.08.2018
Preetam Singh
r/o H-190, 3rd Floor, Vikas Puri
New Delhi-110018 …Complainant
Versus
OP1-Manager, New India Assurance Company Ltd
Divisional/Zonal Office 902-905 Hemkunt House,
Rajendra Place, New Dehli-110008.
OP2- Manager, Raksha Health Insurance TPA Pvt. Ltd.
Regd Office - 202 First Floor, Okhla Industrial Estate,
Phase-III, New Delhi -110020 ...Opposite Parties
Date of filing: 28.08.2018
Date of Order: 03.08.2024
Coram:
Shri Inder Jeet Singh, President
Ms Rashmi Bansal, Member -Female
FINAL ORDER
Inder Jeet Singh , President
This case scheduled for Order today (item no.6)
1.1 (Dispute of parties) - The complaint was filed with allegations of negligence, breach of trust and deficiencies in services against OPs since complainant/insured was not reimbursed balance medical bills of Rs. 1,85,193/- in respect of treatment of his insured-son Master Santpreet Singh. The complaint informed the OP2, immediately on hospitalisation of his son. However out of total bill of Rs.2,21,382/-, the complainant was reimbursed part claim of Rs.55,000/-. The comlainant also spent post discharge medical expenses of Rs.18,811/- Then claim for balance amount was lodged with original documents but it was not reimbursed.
1.2 The complaint is opposed by other side that neither there was negligence nor breach of trust nor deficiency in services. The complainant is without cause of action, since admissible amounts of Rs.55,000/- under the policy were allowed. The terms and conditions of the policy are binding the parties. The clause no.3.10 and 4.4.6.2 of policy are applicable, accordingly amounts were allowed. Then no claim is made out,
1.3. It is appropriate to mention that the written statement was also filed by OP2 under the signature of Shri Vinay Batra, General Manager, stated to be authorised signatory/representative but without support of authority to sign, verify and file the reply. It was directed to file authority letter but instead the OP2 stopped appearing. There is no board resolution or other form of authority in favour Shri Vinay Batra, to write, verify, sign and file the written statement for and on behalf of OP2. Moreover, there was no counsel appointed by OP2 but written statement was presented in own private capacity. Consequently, the written statement filed will not be read for OP2 for want of authority in favour Shri Vinay Batra and consequently he had no locus standi to sign, verify and file it.
2.1 (Case of complainant) - The matrix of case of the complainant is that he took New India Floater Mediclaim Scheme vide policy no. 21230034172800000402 in August 2010, which was being getting renewed regularly and last renewal was from 25.08.2017 to 24.08.2018 (hereinafter referred as “insurance policy”) from OP1 to cover the complainant himself, his wife and their son and daughter. The complainant's son Master Santpreeet Singh (briefly insured-patient) was feeling pain in his ankle, the local doctor was consulted and after investigation and check ups, he was admitted in Sir Ganga Ram Hospital on 20.10.2017, where after appropriate investigations, consultations, etc he was diagnosed of triple arthrodesis and surgery was performed, he remained hospitalized till his discharge on 26.10.2017. The insured-patient was admitted in that hospital since its name was in the list of approved hospital.
2.2 The complainant had given necessary information to the OPs about admission of insured-patient. The hospital had raised bill of Rs. 2,21,382/-, which was informed to the OPs besides completion of all documentation and other formalities for release of the amount; the original documents were also collected by the TPA/OP2 on behalf of insurer/OP1. But the complainant was released just an amount of Rs. 55,000/- out of bill amount of Rs. 2,21,382/- by the OP1. The OP1 failed to reimburse the balance amount of Rs. 1,66,383/- for which the complainant has been requesting for release of the amount, which it was under obligation to reimburse the entire medical expenses incurred by the complainant. Moreover, the complainant also made representation to OP2 by letter dated 21.02.2018 but there was no response. The complainant also incurred post discharge medical expenses for an amount of Rs. 18,811/-, which includes cost of dressing, post surgery and follow up consultations.
Since the valid claim was not settled, the complainant was constraint to send legal notice dated 26.04.2018 through counsel by asking the OPs to settle the claim. Thence, after service of notice dated 26.04.2018, it was 28.04.2018 when the complainant had received a letter dated 17.04.2018 from OP2, while seeking original documents for settlement of the claim. Immediately, the complainant visited the office of OP1 to submit his original documents and to enquire actual status of the claim. The complainant was assured by the official of OP1 that claim will be settled and while handing over the original documents the complainant was also asked one cancelled cheque to be used for appropriate detail for transfer of claim amount into the bank account of the complainant; the original documents and cross cheque were acknowledged by the OPs on 03.05.2018. In addition, the complainant was pressurized to write letter to withdraw legal notice dated 26.04.2018, otherwise the claim will not be settled and he was also asked to write another letter dated 02.05.2018 in the name of OP2 that original documents are being furnished, both such letters were got from him .
However, despite all, the complainant was made to run from pillar to post by the OPs and complainant also wrote letter dated 26.06.2018 to the OP2 to enquire status of settlement of the claim but it was not responded nor any information was given. But after few days the OP1 informed the complainant on telephone that only Rs. 11,000/- would be reimbursed and no further payment will be made. The OPs failed to settle the valid claim for balance amount, there is negligence, breach of trust and cheating to the complainant. The complainant had furnished claims for Rs.1,85,193/-, which was not settled by the OPs. The OPs played breach of trust, cheating and deficiency of services to the disadvantage to the complainant; they have caused harassment, mental tension and agony. They are liable for the same. That is why the complaint for reimbursement of medical claim of Rs.1,85,193/-, compensation of Rs.2,00,000/-in lieu of harassment, agony and cost of Rs. 50,000/- besides other consequential reliefs.
2.3 The complaint is accompanied with copies of - medical bill, receipt dated 26.10.2017 of amount of Rs. 1,66,382/-, other bills of period from 12.10.2017 to 15.10.2017 and further post discharge bills from 01.11.2017 to 23.01.2018, letter dated 21.02.2018, legal notice dated 26.04.2018 with postal receipt, letters dated 02.05.2018, 03.05.2018 and 25.06.2018
3.1 (Case of OP1) - The OP1's case, as set up in the written statement, is it does not dispute of issue of insurance policy to the complainant. The OP2 is an independent functionary under IRDA, the OP1 has no role at all in the functioning of TPA. The parties are bound by conditions of insurance policy. Moreover, complicated question of law is involved, which requires elaborate oral and documentary evidence including examination in chief and cross examination of the witness/doctor. The complaint is beyond the scope and jurisdiction of this Consumer Fora.
3.2. The complaint is not maintainable as it is without of cause of action, the admissible amount was released as per terms and conditions of the policy. The amount of admissible claim of Rs.55,000/- was calculated as per policy terms and conditions, which are being filed with the written statement.
3.3. As per discharge summary the insured-patient was diagnosed of Equinovarus deformity left foot/post CTEV. The ailment of patient was externally congenital and is therefore covered after 4 years of mediclaim coverage as per clause 3.10 r/w clause 4.4.6.2. of the terms and conditions of the policy [the written statement reproduces these clauses].
3.4. The OP1 also denies other allegations of the complaint. The complainant visited office of OP1 and tendered written apology on 03.05.2018 and also submitted documents lately, which were asked by the TPA vide its letter dated 17.04.2018. The TPA also clarify in the letter that conclusion regarding the eligibility of coverage/admissibility of amount can only be arrived at, once they have full set of requested documents. The complainant withheld that letter. The complainant had withdrawn the legal notice of his own free will and without any coercion.
Under these circumstances the claim is not maintainable and admissible. The OP1 further supplements that neither there is any breach of trust, negligence nor deficiency in services but there are false allegations, therefore, the complaint is liable to be dismissed.
3.5 The written statement is accompanied with copies of -New India Floater Mediclaim policy bearing IRDA/NL-HLT/NIA/P-H/V.1/467/13-14 (pages 6-32), discharge summary of insured-patient, letter dated 17.04.2018 of OP2, letters dated 02.05.2018 & 03.05.2018 of complainant.
3.6. (Case of OP2) – As already mentioned in para 1.3 above, there is no plea or defence of OP2 for want of valid and competent written statement.
4.1 (Replication to the written statement of OP1) - The complainant filed rejoinder to the written statement of OP1. He denies all allegations of the written statement by reaffirming whatever was stated in the complaint. In addition, the complainant was never provided terms and conditions of the policy at any point of time, the complainant was not knowing those terms and conditions being projected in the written statement. Moreover, the complainant has been subscribing the policy since the year 2006, thus after 48 months of continuous coverage, the insured-patient is covered under the policy. The complainant was never served with such terms and conditions as being filed with the reply but the insurance schedule itself was containing appropriate condition. The complainant also denies other allegations that the legal notice was withdrawn out of sweet will but the complainant was forced to withdraw it to secure settlement of the claim. The complainant is entitled for the claim of balance medical bills and expenses.
The complainant also filed original policy scheduled for the years 2009-10 and 2010-11 to demonstrate his plea in the case.
4.2 (Replication to the written statement of OP2) – The complainant has filed replication to the written statement of OP2, however, in view of the observation made in sub-paragraphs 1.3 and 3.6 above, it does not require to refer the contents of replication.
5.1 (Evidence of parties) - The complainant led his evidence by filing detailed affidavit, duly supported by the record filed with the pleading.
5.2. OP1 also led its evidence by filing affidavit of Sh. H S Bharti, Senior Divisional Manager. In fact major part of affidavit is deposed as written statement to the complaint, it is not proper way. The affidavit of evidence ought to be for evidence instead of reply to complaint.
5.3. The OP2 abstained from the proceedings and for want of valid pleadings, there was no evidence on its behalf.
6.1 (Final hearing) - Both the complainant and OP1 filed their respective written arguments, which are on the lines of complaint and evidence led by them. The parties were given opportunities to make oral submission. Shri Gurpreet Singh, Advocate for complainant and Shri Dheeru Nigam, Advocate for OP1 presented their respective submission. The case law presented and their submission will also be considered while appreciating the case of parties, instead of repeating them here.
6.2 During the course of arguments, the complainant has fortified its contentions while relying upon the following cases :-
(a) Biman Krishna Bose Vs. United India Assurance Co. Ltd. [(2001) 6 SCC 477]-A renewal of health policy means repetition of the original policy on identical terms but from different date from its expiration comes into force.
(b) National Insurance CO. Limited Vs. Raj Narayan [I (2008) CPJ 501 (NC)]- held that a patient may be suffering from certain disease, but he may be totally unaware of the symptom of the disease, hence he cannot be allow to suffer by non-payment of claim.
(c) Trilok Chand Khanna Vs. United India Insurance Co. [I (2012) CPJ 84 (NC)] and (d) Sukumar Beg Vs. Oriental Insurance Co. Ltd. [(2008) 4 CPR 399 (NC)]- The onus lies on the insurance company to prove that the complainant was suffering from pre-existing disease or prior to taking medical policy, for which the insured have knowledge.
(d) Jacob Punnen and anr Vs United India Insurance Co Ltd (Civil Appeal no.6778/2013), the precedent Biman Krishna Bose case (supra) was referred and held that Insurer is duty bound to inform the policy holder about the limitation of policy issued. It was also held that on renewal of policy, insurer is duty bound to inform about change of limitations on its liability that being introduced.
6.3 Ld. Counsel for the OP1 has reservations that the case law presented do not apply to the case in hand and especially case (d) is also not applicable, as there were no change of terms and conditions of policy.
7.1 (Findings)- The contentions of both the sides are considered, keeping in view the evidence of the parties, provisions of law and case law
7.2 The OP1 has objection that since there is question of law, which can be determined by the civil court by examining the witnesses, consequently the same cannot be determined in summary procedure by the Consumer Commission. However, this objection is appearing to be just for the sake of objection, since there is no iota of whisper as to what question of law or mixed question of fact and law is involved to be determined by the civil court. Both the parties have furnished their documentary record inclusive of insurance schedule and terms and conditions by the OP, by considering them on the face of such record, the facts can be analyzed and consumer dispute can be determined. Therefore, it is held that the consumer dispute can be resolved under summary procedure, the present Consumer Commission is competent to decide the dispute.
The complainant has used expression that he felt 'cheated or breach of trust' in the pleading, in loose sense, whereas the insurance policy is insurance contingent contract. The OP1 is being swayed away by this expression. It will not given any benefit to the OP. Accordingly, this issue stand determined.
7.3.1 There are rival plea on the point of terms and conditions of the policy, the OP1 invokes the terms and conditions filed with the written statement but complainant denies of supply of terms and conditions with the policy. The OP refers terms and conditions and its clauses 3.10 and 4.4.6.2 to show that because of these terms and conditions the admissible amount was allowed and the remaining amount was not admissible. The complainant could have accessed the terms and conditions of the policy on the website of insurance company, if the same were not provided to him. The complainant is deemed to the aware of those terms and conditions.
On the other side the complainant refers original policy schedule filed with the replication and renewed policy, filed with the complaint. The schedule of insurance policy bears endorsement by way of four rubber stamp impressions of terms and conditions of the policy. Similarly, the last insurance policy is also issued in the same fashion bearing the endorsement by rubber stamp impression. None of those terms and conditions endorsed with rubber stamp bear such clauses [viz. 3.10 and 4.4.6.2] as invoked with the written statement. Moreover, the terms and conditions filed with the written statement bears at bottom (on left side) IRDA/NL-HLT/NIA/P-H/V.1/467/13-14 (pages 6-32), which clearly reflects that these terms and conditions are of the year 2013-14 or of subsequent period but the same were not provided to the complainant at any point of time of original policy issued in 2009-10 or renewal of the policy, then how it could be binding on the complainant?. Lastly, there was no reason to access the website of insurance company, when the insurance schedule with endorsement in rubber stamp were provided, without any indication or advices to visit the website of insurance company for particular purposes. The OP cannot deny valid claim of the complainant.
7.3.2 The submission and counter submission of the parties are assessed, in view of the material on record. The contention of the parties recorded in sub- paragraph 7.3.1 above is in fact based on material and documents on record. To say, the terms and conditions filed by the OP1 is pertaining to period of 2013-14 or subsequent period and none of the insurance policy issued from the inception were accompanied with separate terms and conditions of the policy. In fact, endorsement on the policy with rubber stamp in different colours, gives a clear impression to the insured that the policy schedule is a complete document and such additional condition endorsed are also to be applied. There were no separate terms and conditions provided to the complainant at any point of time by the OP.
7.3.3 The insurance policy is an insurance contract, it is governed by Chapter-III ( of contingent contracts). The parties are bound by those terms and conditions of contingent contract entered between the parties. The parties are supposed to be aware of those covenant to be followed by them. Unless they are aware of those covenants, the same cannot be complied by them. The insurance policy and its terms and conditions are prepared and issued by insurance company, the insurance company is duty bound to provide complete terms and conditions of the contract to the insured to be complied with. It would not escape the insurance company just by saying that the website of insurance company could be accessed, it is neither the law nor the insurance company can take shelter under the garb of maintaining website. Since, the OP has charged insurance premium and it also issued policy schedule, it was required to provide physical terms and conditions of policy with policy schedule. What prevents the OP1/Insured from supplying the terms and conditions of policy. In case OP1 does not provide such terms and conditions of policy with the policy, then the OP1/insurer does so at its risks. Moreover, there is also settled law on these issues, which is held in:-
(i) Bharat Watch Company (through its partners) vs National Insurance Co. Ltd.[Civil Appeal no. 3912/2019 in SLP(C) no. 25468/2016], it was held that in the absence of appellant being made aware of terms of exclusions, it is not open to the insurer to rely upon exclusionary clauses.
(ii) Manmohan Nanda Vs United- India Assurance Co. [Civil Appeal no. 8386/2013) decided on 6.12.2021 by Hon'ble Supreme Court of India has also dealt the regulations 'the IRDA (Protection of Policyholder' Interests) Regulations 2002' and it was held (in paragraph 34 thereof) "that just as insured has a duty to disclose all material facts, the insurer must also inform the insured about the terms and conditions of policy that is going to be issued to him and must strictly confirm to the statement in the proposal form or prospectus or those made through its agents. Thus, principle of utmost good faith imposes meaningful reciprocal duties owned by the insured to the insurer and vice-versa".
7.3.4 In view of the above, it stand crystal clear and established by the circumstances that OP1 had not provided terms and conditions of the policy to the complainant nor the terms and conditions proved by OP are pertaining to the period when complainant was issued the insurance policy in the beginning and getting it renewed from time to time. The OP1 also could not establish that those terms and conditions were provided to the complainant on the eve of renewal of policy. The case law presented, on behalf of the complainant, also applies to the situation in hand. Thus the clause nos. 3.10 and 4.4.6.2 being invoked on behalf of OP are not applicable and it cannot be read.
8.1 After taking into account stock of all such materials, the following conclusions are drawn:-
(i) Since the OP had not provided terms and conditions to the complainant nor there is any proof by the OP that the parties had entered into insurance contract for which clause 3.10 and 4.4.6.2 were agreed upon between them to be binding for insurance cover and settlement of the claim.
(ii) There is no dispute of hospitalization of insured/patient as well as the amount of medical bills and expenses incurred by the complainant, out of which Rs. 55,000/- was settled by the OP1 by invoking those clauses of 10% of the average sum insured.
(iii) Since those covenants/clauses were not agreed by the parties, therefore, the complainant cannot be bound to them.
(iv) The complainant had proved medical bills for the treatment of his son. It was total bill amount of Rs. 2,21,382/- out of which an amount of Rs. 55,000/- was reimbursed and balance amount of Rs. 1,66,382/- was declined. The complainant has also proved bills of further post discharge expenses of Rs. 18,811/-, the same are also covered under the policy.
(v) When the matter was at the stage of final hearing in August 2023, the OP1 had filed copy of letter/email dated 03.06.2022 written by OP2 to the OP1 by showing how the amount of Rs. 55,000/- was calculated in October 2017, which was never detailed either in the written statement nor in the evidence by OP1 but this letter was brought at much later stage. It infers two things- firstly, the OP1 & OP2 were having dialogue with each other, even after finalization of claim of Rs. 55,000/- by the OP2 in October 2017. Secondly, the OP2 in its the OP1 was not knowing how this amount of Rs. 55,000/- was actually computed by OP2, that is why detailed was obtained in June 2022 from OP2 and
that is no detail was mentioned in the written statement or evidence.
(vi) Similarly, at the stage of final hearing, the complainant has also filed copy of letter dated 18.10.2017 which was written by OP2 to Sir Ganga Ram Hospital that the amount was pre-authorized for Rs. 60,000/- but the complainant was actually paid Rs. 55,000/- and similar amount of Rs.55,000/- was mentioned by OP2 in its email of June 2022 OP1. It further spells out something behind the veil, that OP2 in its letter to Hospital pre-authorizes amount of Rs.60,000/- but complainant was adjusted amount of Rs.55,000/-, it could be only when hospital was instructed otherwise than in the letter for Rs.60,000/- .
(vii) OP2 abstained from the proceedings but keeping its constant dialogue with the OP1in the matter. The testimony of complainant remained unchallenged in respect of allegations against OP2, although OP2 had limited role of facilitator.
(viii) The complaint was filed for reimbursement of balance medical bills of Rs. Rs.1,85,193/-, besides other relief and prior to filing of the complaint even legal notice was also sent to OPs. The complainant has also proved in this complaint that medical bills during hospitalisation of complainant his insured- son from 20.10.2017 to 26.10.2017 and post discharge bills from 01.11.2017 to 23.01.2018. The complainant has spent total amount of Rs. 2,21,382/- on the treatment of his son. The bills were partly reimbursed of Rs.55,000/-.
(ix) The aforementioned sub-clauses reflect the acts and deeds of OPs, it clearly shows deficiency of services on their part for want of settlement of valid claim.
8.2. In view of above conclusions, it is established that complainant's son was advised admission for treatment and he was hospitalized. The claim was lodged with all original papers but valid claim was not cleared by OPs, under their own estimate and average calculations (that too were detailed at the stage of final hearing of this complaint by OP1). The OP1 could not prove its case and stand. There is unfair trade practice and deficiency in services on the part of OPs. Therefore, the complainant is held entitled for refund of paid medical bills amount of Rs.1,85,193/- against OP1, which is within the sum insured of Rs.8,00,000/- and also during the currency of policy.
9.1 The complainant claims compensation of Rs. 1,00,000/- on account of harassment and agony. It is apparent that OPs have not processed and settled the valid claim within the normal course under the policy, instead it invoked their own method, which was never revealed in the written statement or evidence but at the stage of final hearing. The circumstances are speaking themselves the strategy adopted by OPs to avoid obligation under the policy but it caused harassment to complaint, these aspects are suggesting that complainant deserves compensation to be consonance with the situation in lieu of harassment, un-certainty, inconvenience, agony. Therefore, compensation of Rs.50.000/- is awarded in favour of complainant and against OP1.
9.2 Besides, the circumstances are also speaking that OPs called the complainant for documents and on that occasion incident of writing of letter happened. OPs had not written to notice issuing Advocate regarding its withdrawal by the complainant. It does not appear to be voluntarily withdrawal of notice, once legal notice was given and in case it was to be withdrawn, the same would be in the same way, that too through the counsel, who was instructed to issue the legal notice, so that he may remain aware of it.
9.3 The complainant also claims cost of Rs. 50,000/- besides other relief. Since, complainant has to file the complaint to seek reimbursement of balance amount of valid claim after exhausting all efforts including legal notice, had it been processed, settled and paid, he need not to file complaint. Hence, costs of Rs.25,000/- is allowed in favour of complaint and OP1 to the situation of this case.
9.4 The complainant has also claimed other appropriate relief. Since he had parted with money from his pocket to clear medical bills for treatment his son-insured and it also remained unpaid for want of settlement of claim. It is appropriate to award reasonable interest, therefore, interest @ 5% per annum is allowed [on amount of Rs.1,85,193] from the date of complaint till realisation of amount in favour of complaint and against OP1.
9.5. The role of OP2 is of a facilitator to process the claim, the OP2 is TPA of OP1 but the OP1 is Insurer projecting as if OP1 has nothing to do with working of OP2.. As such an agent/TPA cannot be fastened with any liability. Simultaneously, it will be appropriate to mention that OP2 stopped appearing after filing written statement, even it failed to lead evidence. OP2 never informed the complainant about status of claim lodged. However, when the matter was at the final hearing, then OP1 presented a sheet bearing page no.5, it is e-mail extract of 03.06.2022 from OP2 (TPA) to OP1 (Insurance Company) without showing occasion for such email but it is demonstrating the event bet ween OP1 and OP2 behind the veil (but this email was not led in evidence). Was OPs not bound to inform this calculations to the complainant at the very beginging?
10.1 Accordingly, the complaint is allowed in favour of complainant and against the OP1 to refund/reimburse balance medical bills/expenses amount of Rs.1,85,193/- along-with simple interest @ 5%pa from the date of complaint till realization of amount; apart from to pay compensation of Rs.50,000/- and costs of Rs.25,000/- to complainant. The OP1 will pay the amount within 45 days from date of this order, failing which the OP1 will be liable to pay enhanced interest at the rate of 7% per annum on amount of Rs.1,85,193/-. The OP1 may deposit the amount in the Registry of this Commission by way of valid instrument in the name of the complainant.
10.2. The complaint against OP2 is dismissed.
11. Announced on this 03th day of August 2024 [श्र!वण 12, साका 1946]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.
[Rashmi Bansal]
Member (Female)
]ijs-99] [Inder Jeet Singh]
President
