Haryana

Yamunanagar

CC/1040/2010

Ravinder Garg S/o Rameshwar Dass - Complainant(s)

Versus

NIA Ltd. - Opp.Party(s)

S.C.Jindal

08 May 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                    Complaint No.  1040  of 2010.

                                                                                    Date of institution: 2.11.2010.

                                                                                    Date of decision: 8.5.2015

Ravinder Garg son of Sh. Rameshwar Dass of M/s Mahadeva Steel resident of VPO Balachaour, Chhachhroli, District Yamuna Nagar.  

 

                                                                                                                       …Complainant.

                                                Versus

 

1. The New India Assurance Company Ltd. Opposite Madhu Palace, Jagadhri Road, Yamuna Nagar through its Branch Manager. 
2. The New India Assurance Company Ltd. Divisional Office, 100 The Mall, Ambala Cantt. through its Divisional Manager. 

                                                                                                           …Opposite parties. 

                        Complaint under section 12 of

                        the Consumer Protection Act.

 

CORAM:          SH. A.K.SARDANA PRESIDENT,

                        SH. S.C.SHARMA, MEMBER.

 

Present: Sh. R.K.Radauri proxy counsel for Sh. S.C.Jindal, Advocate, for complainant.   

              SH. Naveen Kaushal proxy counsel for Smt. Aruna Sharma, Advocate, for Ops.

ORDER

 

                        Complainant has filed the present complaint alleging therein that the complainant had taken one medi claim insurance cover for himself and his wife Smt. Saroj Garg vide policy No. 353503/48/03/20/00000314 w.e.f. 21.7.2003 to 20.7.2004 for a sum insured of Rs. 2,00,000/- for each insured persons by paying the premium of Rs. 7582/- to the OP No.1 who is working under the control and supervision of OP No.2. The complainant got the said policies renewed up to 20.8.2008 i.e. Annexure C-1 to C-5 and thereafter got it renewed from 13.8.2008 to 12.8.2009, 13.8.2009 to 12.8.2010 and lastly from 13.8.2010 to 12.8.2011 and as such the complainants have got 8 cover notes for the same sum insured from the OPs i.e. for himself and his wife. The OPs had issued one page cover note and thereafter one page policy but they never issued or supplied the terms and conditions with this policy to the complainant till today. The complainant went to Delhi for routine health check up in Indraprastha Appollo Hospitals, New Delhi in the month of July 2010 i.e. during the subsistence of policy (Annexure C-7) where he got himself checked from doctors but as the charges were very high in Appolo Hospital, therefore the complainant went to MEDANTA, the Medicity owned by Dr. Trehan and after going through all the investigations, reports of patient, the doctors diagnosed it as a case of CABG and advised for immediate operation. The complainant got himself admitted in Medanta Hospital on 12.7.2010 and underwent CABG ( By Pass Surgery) on 14.7.2010. The complainant paid a sum of Rs. 2,57,717/- for the said operation/surgery and submitted his claim to the Ops alongwith all the relevant papers i.e. discharge summary, original bills, original investigation reports etc. in order to get his claim settled at the earliest which was duly acknowledged by OPs. Thereafter, the complainant received a letter from Raksha TPA dated 7.9.2010 bearing Ref. No. 905101171620 to the effect that his claim has been made Non-Tenable for the reasons given in the said letter.  It has further been alleged that the said Raksha TPA Pvt. Limited never associated or joined the complainant in their investigations while deciding the claim nor asked the complainant to submit any clarification. The OPs have failed to prove their legality to get the investigations done from third party and reject the claim of complainant on their decision. The OPs never wanted to pay the lawful and genuine claim and tried to find out flimsy grounds to reject the claim of the complainant.  In the end, complainant has prayed for directing the Ops to release the payment of Rs. 2,57,717/- including bonus alongwith interest at the rate of 24% per annum from the date of payment till its actual payment to the complainant and also to pay compensation as well as litigation expenses.  

2.                     Upon notice, Ops appeared through counsel and filed written statement raising preliminary objections qua non-joinder of necessary parties as Raksha TPA has not been impleaded as OP. It has further been urged that the present complaint is not maintainable and the same is liable to be dismissed as the claim of the complainant is not covered as per the terms and conditions of the policy. It is however admitted that the complainant purchased Medi claim policy from them but it was denied that these eight policies were issued without its terms and conditions and  after making aware of the contents thereof. It has been further submitted that the policies in question are not continuous as there is a gap of 23 days between the 5^th policy and the next policy. The maximum renewal period provided is 7 days and as the renewal period exceeded 23 days, the next policy after 5^th policy  has to be treated as 1^st Policy and thereafter 2^nd policy and 3^rd policy and so on. It has further been submitted that on the 2^nd policy and on the subsequent policies there is increase of 5% bonus on each policy per year. As such the complainant availed 5% bonus on 2^nd policy, 10% on 3^rd policy, 15% on 4^th policy and 20% on 5^th policy but as there was a gap of 23 days the 6^th policy was treated as 1^st policy and no cumulative bonus was given and on subsequent policies again 5% cumulative bonus with increase of 5% each year was given. This fact is very much clear to the complainant and policies C-1 to C-8 filed and relied upon by the complainant clearly corroborate the version of the answering OPs. Raksha TPA has been fully authorized by the answering OPs and they fully endorse the repudiation of the claim by the Raksha TPA. The claim has thus been repudiated legally and justifiably and no amount is payable under the policy in question to the complainant. The complaint is without any merit and the same is liable to be dismissed with costs.

3.                     To prove his case, counsel for complainant has tendered affidavit  of complainant as Annexure CX and documents as Annexures C-1 to C-10 and closed evidence on behalf of complainant. On the other hand, counsel for the OPs has tendered affidavit of Sh. B.L.Jagwan, Divisional Manager as Annexure RX and documents as Annexures R-1 to R-3 and  closed evidence on behalf of OPs.  

4.                     We have heard the learned counsels for both the parties and have gone through the pleadings as well as documents placed on file. Learned counsel for the complainant argued that the complainant purchased eight Medi-claim policies for himself and his wife Smt. Saroj Garg for a sum insured of Rs. 2,00,000/- each which were effective from 21.7.2003 to 12.8.2011 as clear from Annexures C-1 to C-8. The complainant went to Delhi for routine health check up in the month of July 2010  and after going through all the investigations, reports of patient, the doctors diagnosed it as a case of CABG and advised for immediate operation. The complainant got himself admitted in Medanta Hospital on 12.7.2010 and underwent CABG ( By pass surgery ) on 14.7.2010 and he paid a sum of Rs. 2,57,717/- for the said operation including all the tests and surgery. The complainant was shocked to receive a letter dated 9.9.2010 (Annexure C-10) from the OPs regarding non payable of claim under policy No. 35350334091100000093 for the reasons mentioned in the letter of Raksha TPA dated 7.9.2010. In the letter dated 4.9.2010 ( received by OPs on 7.9.2010) of Raksha TPA Pvt. Ltd. it has been observed and opined that the patient suffered from DM, HTN, CAD, TVD. The treatment of DM, HTN and its complications like CAD comes under 1^st two years exclusion clause. The policy is in 2^nd year of inception, therefore the claim is non payable as per clause 4.3 of the policy. On going through the records it is found that patient is suffering from DM from last 15 years. Policy in 2^nd year of inception therefore claim is non payable as per clause 4.1 of the policy.  It has further been argued by the counsel for the complainant that the opposite parties had issued one page cover note and thereafter one page policy but they never issued or supplied the terms and conditions with this policy to the complainant. The OPs Insurance Company used to issue cover notes to the complainant without any terms and conditions and thereafter neither the insurance policies nor any terms and conditions thereof were ever supplied to the complainant till date. The OPs have neither mentioned to whom these terms and conditions were supplied nor there is any proof of sending the same to the complainant and draw the attention of this Forum towards the case law delivered by Hon’ble State Consumer Disputes Redressal Commission, Panchkula in case titled as Oriental Insurance Company Limited Versus Vivek Rekhan, 2014(3) CLT page 202 wherein it has been held that “Insurance Claim (Medi-claim)- Pre existing disease- Exclusion Clause- Held-Unless the terms and conditions have been supplied to the complainant before taking the policy, the same cannot be enforced- Exclusion clause not binding- Oral version cannot take the place of proof unless supported with some documentary evidence”. Besides it, counsel for complainant also submitted a case law titled as Oriental Insurance Company ltd. Versus Asim J Pandya, 1 (2006) CPJ page 115 ( NC) wherein it has been held that “terms & conditions of exclusion clauses not supplied-Disease not congenital or external- No Deformity or defect noticed as child has been normal since birth-Pre-existing disease not proved-Revision dismissed”.  

                        To further substantiate the aforesaid version, the counsel for the complainant submitted various case laws reported in 1(2000) CPJ page 1 Supreme Court of India titled as M/s Modern Insulators Ltd Vs. Oriental Insurance Company Ltd., 2005(3) CPR page 24 NC titled as Atlas vs. NIA Exclusion cause,2013 (1) CLT page 589  (National Commission) titled as NIA versus Pabhati Sridevi etc. and 2014(2) CLT page 305 (National Commission) titled as The Oriental Insurance Company vs. Satpal Singh wherein it has been held that “ when the terms and conditions have not been supplied/ communicated to the consumer, it cannot be invoked against the consumer. When the exclusion clause was never disclosed to the insured, the insurance company cannot take the benefit of the said clause. Insured/consumer cannot be affected by such exclusionary clause”.  

                        To further substantiate the aforesaid version, the complainant’s counsel submitted another case law reported in case titled as National Insurance Company Ltd. Vs. Sardar Kulbir Singh, 2010(3) CPC page 488 wherein it has been held that “ Medi-Claim Policy-Insured underwent Artery Bye Pass Grafting on 15.7.1998 during subsistence of mediclaim policy-Claim was repudiated on the ground that insured had suppressed the fact that he was having a heart problem when policy was taken- It was pleaded that insured was suffering from Chronic State Angina for last 10 years- But no evidence including affidavit of doctor was produced in support of this allegation  expert discharge summary-Concealment of material disease not proved-relief granted by Fora below amounting to Rs. 173850/- with 9% per annum interest and cost of Rs. 15,000/- upheld”.

                        On the other hand, counsel for the OPs argued that there is a gap of 23 days between the 5^th policy and the next policy. The maximum renewal period provided is 7 days and as such the period of renewal exceeded 23 days, the next policy after 5^th policy has to be treated as 1^st policy and thereafter 2^nd policy and 3^rd policy and so on.  As such, the complainant availed 5% bonus on 2^nd policy, 10% on 3^rd policy, 15% on 4^th policy and 20% on 5^th policy but there is a gap of 23 days and thus the 6^th policy was treated as 1^st policy and no cumulative bonus was given and on subsequent policies again 5% cumulative bonus with increase of 5% each year was given. Learned counsel for the OPs further argued that the OPs have rightly rejected the claim of complainant vide letter dated 9.9.2010 and relied upon the case law reported in case titled as Parkash P.N. Versus The Manager, New India Assurance Company Ltd. and others, 2013(3) CLT page 443  ( Kerala ) wherein it has been held that  “ Insurance claim- Mediclaim -terms & conditions of policy-Policy sum enhanced from Rs. 40,000/- to Rs. 1 lakh-condition in the policy that if the policy is to be renewed for enhanced sum insured then the restriction as applicable to a fresh policy will apply to additional sum insured as if a separate policy has been issued for the difference-In other words, the enhanced sum insured will not be available for an illness, disease, injury already contracted under the preceding policy period-Held mediclaim policies are issued to insured on specific terms and conditions and contract of insurance is based on good faith-Claim disallowed-appeal dismissed”. To further substantiate the aforesaid version, the OP’s counsel submitted another case law reported in case titled as New India Assurance Co. Ltd. & Another Versus Nanak Singla & Others, 1(2015) CPJ page 599 (NC) wherein it has been held that Medical reimbursement- Exclusion clause-Coverage under policy disputed-Claim repudiated-Alleged deficiency in service-District Forum allowed complaint-State Commission dismissed appeal- Hence revision- Policy was not continuously renewed as mentioned-for a below committed grave error in concluding that “ Plea of OPs that policy was not run for two years and comes under exclusion clause is not acceptable for the reasons that complainant’s have purchased policy on 29.12.2004 and continued the policy till 2010 and therefore, complainants are entitled for insurance benefits under the policy” Repudiation justified.”

                        In view of the aforesaid discussion we are of the confirmed view that the OPs failed to prove by cogent evidence that they had supplied any terms and conditions to the complainant alongwith policy certificates. Further the authorities Oriental Insurance Company Limited Versus Vivek Rekhan, Oriental Insurance Company ltd. Versus Asim J Pandya,  NIA versus Pabhati Sridevi etc,  The Oriental Insurance Company vs. Satpal Singh, M/s Modern Insulators Ltd. vs. Oriental Insurance Co. Ltd,  National Insurance Company Ltd. Vs. Sardar Kulbir Singh (supra) tendered by the complainant are fully identical to the facts and circumstances of the present case because the complainant had not taken the policy a few days before his ailment rather he has purchased the polices 8 years ago whereas the authorities Parkash P.N. Versus The Manager, New India Assurance Company Ltd. & others   and  New India Assurance Co. Ltd. & Another Versus Nanak Singla & Others (supra) tendered by the OPs is not identical to the facts of the present case because the OPs have failed to prove by cogent evidence that the complainant was having pre-existing disease prior to taking insurance policy.   

                        So, in view of the detailed facts narrated above, we are of the confirmed view that the OPs are admittedly deficient in providing proper services to the complainant and are also guilty of committing unfair trade practice by wrongly repudiating the genuine claim of the complainant. Hence, in these circumstances, we have no option except to allow the present complaint and thus we direct the OP insurance company to comply with the following directions within 30 days from the communication of this order:-

1. To release the insurance claim amounting to Rs. 2,00,000/- out of Rs. 2,57,717/- (which has been spent by the complainant on his treatment) to the complainant as sum insured under the medi-claim policy alongwith simple interest @ 9% per annum from the date of institution of complaint to the date of decision including the benefit of bonus etc., if any, accrued upon the policy.
2. To pay Rs. 15,000/- as compensation on account of harassment & mental agony etc. caused to the complainant for a long period of about 5 years (i.e. from the date of treatment to till the date of decision) by the negligent act of the insurance company.
3. To pay Rs. 10,000/- as costs for unwanted litigation including the advocate’s fee etc.

                  The aforesaid directions must be complied with by the OPs-Insurance Company within the stipulated period otherwise all the aforesaid awarded amounts shall fetch further simple interest @ 12% per annum for the period of default. The complaint is decided accordingly in the above terms. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced: 8.5.2015

                                                                                          (A.K.SARDANA)

                                                                                           PRESIDENT

 

                                                                                          (S.C.SHARMA)

                                                                                           MEMBER