O R D E R
SUBHASH GUPTA, MEMBER
The present complaint has been filed by the Complainant against the Opposite Party, hereinafter to be referred as OP, under section 12 of Consumer Protection Act, 1986 hereinafter to be referred as the ‘Act’ The brief facts as alleged in the complaint are that the complainant obtained a mediclaim policy No.311600-34/07/20/00000372 for a sum of Rs.1,00,000/- valid from 21.5.2007 to midnight of 20.5.2008 from OP. During the subsistence of the policy, the complainant fell down and got her right leg fractured, she was admitted for treatment in the Jaipur Golden Hospital, Rohini, Delhi on 12.3.2008 and discharged on 12.3.2008. During the course of admission she was operated upon on 15.3.2008. The Hospital authorities, at the time of admission in the hospital on 12.3.2008 sent a fax message to the OP regarding the illness of complainant, admission, medical treatment and operation but the OP deliberately and intentionally did not reply to the message of the hospital or the complainant. The complainant incurred total expenses to the tune of Rs.58607/- for her medical treatment in the Jaipur Golden Hospital. As the OP has not reimbursed the expenses, hence vide the present complaint the complainant is claiming refund of Rs.58607/- plus conveyance and other expenses of Rs.10,000/-. The complainant is also claiming Rs.30,000/- as damages for mental torture etc.
2. Notice of the complaint was issued to the OP which has filed its reply/ written statement. In written statement, OP has pleaded that no formal claim was lodged for reimbursement with the OP or their authorized agent, M/s Raksha TPA. It has been pleaded that only cashless request was received by the TPA from Jaipur Golden Hospital for the treatment of pyrexia bleed pedal oedema, fracture right hip displaced. It has also been pleaded that on clarification from the Jaipur Golden Hospital, cashless treatment was declined due to Pre-existing disease as per clause No.4.1 of the terms and conditions of the insurance policy as the patient was admitted to the follow up the case of right hip fracture 2 to 3 years back whereas the policy commenced in the year 2007 only. It has been also pleaded that till the date of filing of the written statement/reply, no claim was registered with the OP for reimbursement, the same being pre-mature, therefore, complaint is not maintainable and liable to be dismissed.
3. Complainant has filed his affidavit in evidence affirming the facts alleged in the complaint. On the other hand Shri P.C. Sidhu, Representative has filed affidavit in evidence on behalf of O.P testifying all the facts as stated in the written statement. Parties have also filed their respective written submissions.
4. The complainant has filed a copy of the insurance cover and payment receipts vide which Jaipur Golden Hospital was paid a sum of Rs.58607/- in three installments of Rs.25,000/-, Rs.20,000/- and Rs.13607/-. The complainant has also filed medical record consisting of medical tests, x-ray and other investigations etc. OP has also filed a copy of the insurance cover note issued by the OP. It has further filed a copy of letter of TPA vide which details of medical documents have been asked and the letter vide which cashless facility was denied/rejected in terms of clause 4.1 of the terms and conditions of the policy. The OP has also filed the along with the documents the terms and conditions of the policy.
5. We have carefully gone through the record of the case and have heard submission of Ld. Counsel for the complainant.
6. During the course of proceedings vide order dated 13.1.2011 the claim documents in original numbering from 1 to 43 were delivered to the Counsel for the OP to process/settle the claim of the complainant. The OP vide letter dated 8.11.2012 repudiated the claim under clause 4.1 of the terms and conditions of the policy as the hospital record which states sepsis is as a post-operative complications of fracture occurred two years back.
7. We have gone through the pleadings of the parties as well as documentary evidence filed by both the parties. The existence and subsistence of the policy during which the complainant remained admitted in the Jaipur Golden Hospital has not been denied by the OP. The OP has also not denied the admission of the complainant in the above said hospital and the treatment received by the complainant. The contention of the OP that the claim was pre-mature is also not tenable as during the course of the proceedings the claim along with documents were supplied to the OP and it repudiated the claim. The only ground for repudiation of the claim is the conditions contemplated under clause 4.1 of the terms and conditions of the policy which reads as under:
“Such diseases which have been in existence at the time of proposing this insurance. Pre-existing conditions means any injury which existed prior to the effective date of his insurance. Pre-existing conditions also means any sickness or its symptoms which existed prior to the insured person had knowledge that the symptoms were relating to the sickness. Complications arising from pre-existing disease will be considered part of that pre-existing condition”.
8. The OP has pleaded that the medical record of the hospital dated 7.5.2012 reveals that sepsis is post-operative complication of the facture which occurred two years back i.e prior to the inception of the policy, accordingly the claim has been rightly repudiated. This plea of the OP is not tenable as the complainant was admitted in the hospital on 12.3.2008 and the claim is also of the same period. The OP has not proved on record any medical documentary evidence in support of its case that the complainant was operated upon prior to the date of commencement of the insurance policy, also the OP has failed to prove by documentary evidence as to on which date and by which mode the terms and conditions of the policy were delivered/served on the complainant. The OP has also not proved on record that in the proposal form the complainant has suppressed any material information which was in its knowledge or policy has been obtained by playing fraud on the insurance company. It is well settled legal position that the terms and conditions cannot be enforced unless and until the same are communicated to the person. We find support in this regard from the following case law:
“The insurance repudiated the claim stating that the complainant was having a pre-existing disease it was excluded upto 4 years of the policy under clause No.4.1. The insurance company their relying upon the exclusion clause pertaining to pre-existing ailments rejected the claim of the complainant. The controversy as to whether the repudiation is justified the answer in the negative. First of all the policy issued to the complainant does not find incorporated the terms and condition of the insurance policy. The terms and condition appear to be a separate document filed by the insurance alongwith its reply. No evidence has placed on record as to whether the terms and condition ever supply to the complainant. In case titled IV (2014) CPJ 14A (CL) HAR. Oriental Insurance Co. Ltd. Vs Vivek Rekhan, the claim filed on the basis of mediclaim policy was repudiated by the insurance company on the basis of exclusion clause. The court held that the insurance company vaguely denied without pointing out as to in which manner and on which date terms and condition were supplied to the complainant. Therefore, unless terms and condition have been supplied to the complainant before taking a policy, exclusion clause cannot be enforced. Next question arises is whether the ailments suffered by the complainant said to be pre-existing disease the answer is again in the negative.”
9. Keeping in view the above discussion the repudiation of the claim by the OPs was on frivolous grounds, therefore, OP was deficient in service. Accordingly, we award a sum of Rs.58,607/- with interest @ 6% from the date institution of the complaint till payment. We further awarded a sum of Rs.7,000/- towards damages for mental torture etc. which will also include the cost of litigation.
Copy of this order be sent to the parties as per rules.
Announced this 30th day of April, 2016.
(K.S. MOHI) (SUBHASH GUPTA) (SHAHINA)
President Member Member
