Haryana

Yamunanagar

CC/1145/2012

Som Parkash s/o Sh.Krishan Lal, - Complainant(s)

Versus

NIC Ltd. - Opp.Party(s)

Naveen Kaushal

11 Jul 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                    Complaint No. 1145 of 2012

                                                                                    Date of institution: 30.10.2012    

                                                                                    Date of decision: 11.07.2017

 

Som Parkash son of Shri Krishan Lal, resident of House No.230, Rampura Colony, Yamuna Nagar.

 

…Complainant.

                                                            Versus

National Insurance Company Limited Divisional Office, Yamuna Nagar through its Divisional Manager.                                                                                 

 

                                                                                                …Respondent.

 

BEFORE:         SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                        SH. S.C.SHARMA………………………….MEMBER.

                        SMT. VEENA RANI SHEOKAND...………MEMBER

 

Present:           Shri Naveen Kaushal, Advocate for complainant.

                        Shri Parmod Gupta, Advocate for OP.

 

 

ORDER (ASHOK KUMAR GARG, PRESIDENT)

 

1.                     The present complaint has been filed under section 12 of the Consumer Protection Act. 1986 against the respondents (hereinafter referred as OP).

2.                     Brief facts of the complaint, as alleged in the complaint are that, the complainant had taken a Medi claim cashless policy for a sum insured of Rs.2 lac from the OP vide Insurance Company policy No.422100/48/12/8500000008 and policy was valid from 15.04.2012 to mid night 14.04.2013 and had paid premium to the tune of Rs.3393/-. It has been further mentioned that the complainant has got his medi claim policy for the last three year i.e. 2010 to 2011 and 2011 to 2012 excluding present policy and the previous policy number is 2011/42040248118500000025. The payment/premium was accepted by the OP and thereafter the present policy was issued to the complaint and at the time of inception of the said policy, the OP had undertaken to indemnify the complainant to the tune of Rs.2 lac on the treatment for the disease. On 15.02.2012, the complainant, all of a sudden developed some pain in his chest and ultimately he went to PGI where the Angiography was done. Thereafter, the patient again visited to PGI on 03.03.2012 and 09.04.2012 and again on 17.04.2012 and the doctor of the PGI told to the complainant that stunt was to be installed in the artries but instead of getting treatment from the PGI, the complainant went to the Medanta the Medicity Gurgaon for check up on 10.05.2012 and on 11.05.2012 the doctor of the Medanta told to the complainant that there was a necessity of bye pass surgery and they told to the complainant for submitting the insurance paper for cashless treatment through Medsave Healthcare (TPA) Pvt. Ltd. Chandigarh. However, despite sending all the documents vide letter dated 17.05.2012, the OP repudiated the claim of the complainant on some false ground stating therein that the “Patient is having DOE II SINCE YRS AND HTM SINCE 5 YEARS. Therefore, HTM and related ailments are not payable as per clause 4.1. The complainant was admitted in the hospital and the doctor of the hospital told to the complainant that the cashless claim of the complainant has been repudiated by the company hence the complainant should deposit the treatment money and on their asking the complainant deposited Rs.2,50,000/- for operation money to the hospital for the treatment as there was a necessity of urgent operation. Where the complainant was operated on 16.05.2012 and he was discharged on 24.05.2012. The said repudiation of the claim by the OP is totally illegally and arbitrary and the complainant never suffered any disease at any point of time prior to taking policy or after taking the policy. The chest pain suffered by the complainant was a single instance. It is pertinent to mention here that at the time of check up with the local doctor. Therefore, the repudiation of the claim of the complainant is totally malafide and arbitrary and amounts to unfair trade practice as the OP Insurance Company after acceptance of the premium amount and during the course of policy are bound to indemnify the complainant in all respects. Lastly prayed for directing the OP Insurance Company to release the claim amount of Rs.2,20,290/- to the complainant along with interest and also to pay compensation as well as litigation expenses. Hence, this complaint.

3.                     Upon notice, OP Insurance Company appeared and filed its written statement taking some preliminary objections such as complaint is not legally maintainable; there is complicated question of law and fact involved in this case which needs elaborate evidence, therefore, this Hon’ble Forum has got no jurisdiction to hear and decide the present complaint; complainant has no locus standi to file and maintain the present complaint, complainant has no cause of action to file the present complaint; present complaint is bad for mis-joinder and non-joinder of necessary parties; complainant is estopped from filing the present complaint by his own act and conduct; complainant has not come to the Forum with clean hands and has concealed the true and material fact from this Forum and has filed the false and frivolous complaint and on merit it is stated that the complainant took National Swasthya Vima Policy from the OP for self and for Seema and Navodit, effected from 14.4.2012 to 14.04.2013 which was taken by Bank of India, Yamuna Nagar on account of Som Parkash and the name of TPA was clearly mentioned on the policy and the complainant has not impleaded the TPA in this case, who is dealing with the claim file. However, after lodging the complaint in District Forum, Yamuna Nagar at Jagadhri, the claim status was asked from TPA who has after going through the documents observed that no claim is reported by the complainant either to TPA or to the Answering OP. However, only cashless papers were received by the TPA from the hospital and no other file was received through the complainant and cashless facility was denied vide Clause No.4. as (pre existing disease, as per documents received and the patient is having DOE II since years and HTN since five years and as such the cash less was denied legally and validly)and to say that the same is repudiated on false grounds, is a total lie. As per the declaration of the complainant it is clearly mentioned that he is not having any pre existing disease including Hyper Tension etc. and as such the claim is not maintainable. Rests contents of the complaint were denied being wrong and incorrect and lastly prayed for dismissal of the complaint.

4.                     In support of his case, learned counsel for the complainant tendered into evidence his affidavit as Annexure CW/A, photocopy of Insurance policy as Annexure C-1, photocopy of discharge and follow up card of PGI as Annexure C-2, photocopy of mandanta hospital Bills as Annexure C-3, photocopy of claim form as Annexure C-4, photocopy of medical certificate as Annexure C-5,photocopy of medical certificate of Medanta as Annexure C-6 and (photocopy of pre authorization request which was not tender into evidence and the same is on the case file along with Annexure C-1 and the same be read as Annexure C-7) and closed the evidence on  behalf of complainant.

5.                     On the other hand, counsel for the OP tendered into evidence affidavit of Shri Parveen Arora, Administrative Officer as Annexure RW/A, photocopy of Insurance Policy as Annexure R-1 and R-2, photocopy of treatments notes of PGI as Annexure R-3, photocopy of Aadhar Card as Annexure R-4 and R-5, photocopy of discharge and follow up card of PGI, Chandigarh as Annexure R-6, photocopy of treatment record of Medanta Hospital as Annexure R-7 to Annexure R-9, attested copy of insurance policy as Annexure R-10, photocopy of terms and conditions of Swasthya Bima Policy as Annexure R-11 and closed the evidence on behalf of OPs. 

6.                     We have heard the learned counsel for parties and have gone through the, pleadings as well as documents placed on the file very carefully and minutely.

7.                     It is not disputed that complainant had taken a medi claim cashless policy No.422100/48/12/8500000008 for a sum of Rs. 2 lacs which was valid from 15.04.2012 to 14.04.2013. It is also not disputed that prior to this policy, the complainant was having insurance policy bearing No. 2011/420 402/48/118500000025, which is duly evident from the photocopy of Insurance policy (Annexure C-1/R-2). It is also not disputed that on 15.02.2012, complainant all of sudden suffered some pain in his chest and ultimately he went to PGI where the angiography was done and also visited on 03.03.2012, 09.04.2012 and 17.04.2012 which is duly evident from the photocopy of treatment/discharge card (Annexure C-2). Further, it is also not disputed that after that the complainant went to Medanta in Medicity Gurgaon where the doctors  of the Medanta told to the complainant that there is a necessity of bye pass surgery, upon which the complainant submitted the Insurance Papers for cashless treatment through Medsave Health Care (TPA) Private Limited Chandigarh vide letter dated 17.05.2012 which is also duly evident from the photocopy of pre authorization Form (Annexure C-7). Further it is not disputed that complainant Som Parkash remained admitted in Medanta Hospital Gurgaon from 16.05.2012 and under went CABG on 18.05.2012  and during treatment/surgery steel wires have been put to unite the Sternum which is duly evident from the certificate issued by Medanta Hospital (Annexure C-5) and other treatment papers placed on file. Further, it is also not disputed that complainant spent Rs.2,20,290/- on his treatment in the Medanta Hospital which is also duly evident from the photocopy of bills placed on file (Annexure C-3).

8.                     The only grievance of the complainant is that the OP Insurance Company has wrongly and illegally rejected the request of Pre Cashless Authorization on the false ground. Learned counsel for the complainant argued at length that the OP Insurance Company never supplied the terms and conditions of the Insurance Policy to the complainant and draw our attention towards the photocopy of only two pages of Insurance Policy as Annexure C-1. Learned counsel for the complainant further argued that the OP Insurance Company has totally failed to prove that complainant has ever mis-represented regarding his health status at the time of obtaining the Insurance Policy as no proposal Form has been placed on file by the OP Insurance Company to prove that the complainant has obtained the Insurance policy by suppressing the material facts regarding his health from the OP Insurance Company. Learned counsel for the complainant further argued that  the conditions of 36 months was  never disclosed to the complainant at the time of issuance of Insurance policy in question. Moreover, the treatment of the complainant falls under the second insurance policy, so it cannot be said that the complainant had obtained the Insurance Policy just prior few days from the Insurance Policy in question and lastly referred the case law titled as Oriental Insurance Company Limited Vs. Vivek Rekha 2014(3) CLT 202, Oriental Insurance Company Limited Vs. Asim J. Pandeya, 2006(1) CPJ, 115 (NC), “M/s Modern Insulators Limited Vs. Oriental Insurance Company 2001 CPJ (1) (SC)” and also case titled as “Atlas Vs. NIA exclusion case, 2005(3), CPR , 24 (NC) and another case titled as NIA Vs. Pavhati Sridevi 2013(1) CLT 589 NC and other case law titled as “OIC Limited Vs. Satpal Singh 2014(2) CLP, 305 (NC) 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 counsel submitted another case law reported in case titled as “National Insurance Company Limited Vs. Sardar Kulbir Singh, 2010 (3) CPC 488, wherein it has been held that

“medi claim policy- insurance under went artery bye pass grafting on 15.07.1998 during substance of medial claim policy, claim was repudiated on the ground that insured had suppressed the fact that he was having a problem when policy was taken- it was pleaded that insured was suffered from chronic state angina for last 10 years – but no evidence including evident of doctor was produced in support of this allegation etc. discharge summary- concealment of material disease no prove – relief granted by for a below amounting of Rs.1,73,850/-  with 9 % per annum and cost of Rs.15000/- upheld.

Learned counsel for the complainant lastly prayed for acceptance of the complaint.

9.                     On the other hand, learned counsel for the OP argued that the Pre-Authorization request of the complainant has been rightly declined by the TPA under clause 4.1 as the patient was having pre existing disease DOE-II since years and HTN since 5 years. Learned counsel for the OP further argued after that complainant never submitted any documents with the OP Insurance Company except the pre-authorization request. Learned counsel for the OP draw our attention towards the 3^rd page of the treatment record of PGI (Annexure R-6) wherein under history it has been mentioned that HTN 5 years and argued that from this it is clear that the complainant was having pre existing disease which was not covered for a period of 36 months as per terms and conditions of Insurance policy and lastly prayed for dismissal of the complaint.

10.                   After hearing both the parties, we are of the considered view that the OP Insurance Company has failed to prove by cogent evidence that they had supplied any terms and conditions of the policy to the complainant along with policy certificate. Further, the citations Oriental Insurance Company Limited Vs. Vivek Rekha, Oriental Insurance Company Limited Vs. Asim J. Pandeya, “M/s Modern Insulators Limited Vs. Oriental Insurance Company, Atlas Vs. NIA exclusion case, NIA Vs. Pavhati Sridevi, “OIC Limited Vs. Satpal 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 it was a second insurance policy  of the complainant. Mere mentioning under the head history HTN -5 years is not sufficient to hold that the complainant has concealed the true and material facts from the OP insurance at the time of obtaining the insurance policy in question. Further the OP Insurance Policy had not placed on file any proposal form filled by the complainant at the time of obtaining the Insurance policy in question and in the absence of that documents , it cannot be presumed that complainant misrepresented the OP Insurance Company Law citation tendered by the OP is not identical to the facts of the present case because the OP Company failed to prove by any cogent evidence that complainant has having pre existing disease prior to taking insurance policy as no treatment record of any doctor or hospital for the period of prior to obtaining the insurance policy in question has been placed on file. So, in view of the detailed facts narrated above, we are of the confirmed view that the OP Insurance Company is admittedly deficient in providing proper service to the complainant and also guilty of committing unfair trace practice by rejecting the Pre-Authorization request as well as repudiating the genuine claim of the complainant.

11.                   Hence, in these circumstances noted above and after going through the law citied above, we have no option except to allow the  present complaint, 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 lacs i.e. insured amount out of 2,20,290/-  (which has been spent by complainant on his treatment) to the complainant under the medi claim policy along with simple interest @ 7% per annum from the date of institution of the present complaint till realization and further;
2. to pay Rs.2200/-  as litigation expenses.

 

Order of this Form be complied within a period of 30 days failing which the complainant is at liberty to knock the door of this Forum as per provision of Consumer Protection Act. Copies of this order be supplied to the parties concerned free of cost as per rules. File be consigned to the record room after due compliance.

Pronounced in open Forum:

Dated: 11.07.2017.

 

 

 

		(ASHOK KUMAR GARG) PRESIDENT,DCDRF, YAMUNA NAGAR.
(VEENA RANI SHEOKAND) MEMBER	(S.C.SHARMA)    MEMBER