Delhi

North

CC/115/2016

RAVINDER KUMAR GUPTA - Complainant(s)

Versus

NIC - Opp.Party(s)

16 May 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

Consumer Complaint No.:115/2016

 

Sh. Ravinder Kumar Gupta

F-234, Prashant Vihar,

Sector-14, Rohini,

Delhi-110085.                                                             …            Complainant

                                                          Vs

M/s National Insurance Co. Ltd.

Through Branch Manager

Divisional office -26,

2^nd Floor, EMCA House,

23/23-B, Ansari Road,

Daryaganj, Delhi-110002.                                                …                  Opposite Party

ORDER

16/05/2024

Ashwani Kumar Mehta, Member:

 

(1)      The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986. The brief details of facts, as alleged by the Complainant in the Complaint in hand, are that:-

1. the Complainant had taken Hospitalization benefit policy from the National Insurance Company Limited for the period from 10/01/2014 to 09/01/2015 vide Policy No. 361500/48/13/850003576 covering himself and his family. During the existence of the said policy, the complainant's wife fell ill and was admitted to the hospital for treatment. The present complaint has been filed for the reimbursement of the medical expenses incurred toward the treatment of the complainant's wife.
2. the Complainant has taken the policy initially from Reliance General Insurance for the period of 11/01/2010 to 10/01/2011. Thereafter, the complainant and his family was Insured with the National Insurance Company Limited/Opposite Party under Hospitalization benefit policy continuously for the following periods: -

1. 10/01/2011 to 09/01/2012,
2. 10/01/2012 to 09/01/2013,
3. 10/01/2013 to 09/01/2014,
4. 10/01/2014 to 09/01/2015.

The copies of the policies have been annexed with the complaint as Annexure C-1 (colly).

3. at the time of taking Insurance premium, the representative of Opposite Party had assured the complainant that the policy will cover every disease and any hospitalization expenses and medical bills will be reimbursed. No policy terms and conditions were provided to the complainant.
4. on the said assurances, the complainant continued to insure himself and his entire family. On 11.2.2014 the Complainant's wife felt breathless, chest pain and body ache and thus she was admitted in Deepak Memorial Hospital on 11/02/2014 where it was recorded that "Patient admitted with complaints breathlessness, chest pain and body ache.......".
5. the X-ray chest report dated 12/02/2014 of Deepak Memorial Hospital also recorded that “there is slight cardiac enlargement and obliteration of left C. P. angle.........".
6. Certificate dated 13/02/2014 of Dr. Kapil Khanna MD, Medicine, of, Deepak Memorial Hospital also stated that “.. Cardiac enlargement with bilateral basal congestion and obliteration of left C.P. angle......". Copy of the X-ray reports has been enclosed with the complaint as Annexure C-3 (colly).
7. the complainant's wife was discharged on 17/02/2014. The discharge summary of Deepak Memorial Hospital along with copies of bills and receipts has been enclosed with the complaint as Annexure C-2 (colly).
8. Since the Opposite Party had denied cashless treatment and the complainant had to pay the entire expenses of Rs.1,80,000/- (Rupees One Lac Eighty Thousand only) to complete the discharge process. The Complainant lodged the claim for re-imbursement of treatment expenses with the Opposite Party on 20.3.2014.
9. the Opposite Party sought  Doctor's certificate and the complainant submitted the certificates dated 19/04/2014, 28/08/2014 and 20/03/2015 of Dr. Kapil Khanna, MD, (Medicine), Deepak Memorial Hospital. Copies of certificates dated 19/04/2014 and 28/08/2014 have been enclosed with the complaint as Annexure C-4 (colly). Copy of certificate dated 20/03/2015 has been enclosed with the complaint as Annexure C-5.
10. As per the above mentioned Doctor's certificates, it is crystal clear that the complainant's wife was not suffering from any ailment in the past. The wife of the Complainant died on 15/07/2014. The copy of death certificate has been enclosed with the complaint as Annexure C-6.
11. the Opposite Party repudiated the claim of the complainant vide letter dated 31/07/2014 by invoking exclusion clause 4.9 of the terms & conditions.   The copy of the repudiation letter dated 31/07/2014 has been enclosed with the complaint as Annexure C-7.
12. the complainant requested the Opposite Party to reconsider the claim vide letters dated 30/08/2014, 07/01/2015, 09/04/2015 but no response received from the Opposite Party. Copies of the letters dated 30/08/2014, 07/01/2015, 09/04/2015 have been enclosed with the complaint as Annexure C-8 (colly).

 

(2)      It has been alleged that the rejection of the claim of the Complainant by the opposite party is totally arbitrary, illegal and baseless being unsustainable in the eyes of law. The conduct of the opposite party amounts to unfair trade practice and deficiency of service. Due to the acts and omission of the Opposite Party, the Complainant suffered extreme mental agony, harassment and pain and is entitled to be appropriately compensated. Therefore, the present complaint has been filed praying that:-

1. The Opposite party be directed to pay Rs.1,80,000/-(Rupees One Lakh Eighty Thousand only) for the hospitalization and medical expenses, which the complainant incurred upon the treatment of his wife.
2. The Opposite party be directed to pay interest @ 18% per annum from 20/03/2014 (i.e. date of lodging the complaint with the opposite party) till 30/05/2016 i.e. Rs 68,528/- and thereafter upto the date of realization.
3. The Opposite party be also directed to pay Rs.75,000/- towards causing mental agony and harassment.
4. The Opposite party be directed to pay the cost of Rs. 30,000/- for this forced litigation.

 

(3)      Accordingly, notice was issued to the OP and in response, the OP has filed its reply with preliminary objection stating that:-

1. the present complaint is liable to be dismissed in view of the fact that the patient Smt. Kusum Gupta was hospitalized on 11th February, 2014 in the Deepak Memorial Hospital with the complaint of difficulty in breathing. As per the discharge summary and other medical documents, the patient is diagnosed with obstructive sleep apnoea and obesity with OHS with LRTI type II respiratory failure, Pulmonary Hypertension, CAD, USA (Trop T+ve) which are the result of morbid obesity.
2. As per Exclusion Clause 4.9 of the Policy "Treatment for obesity or conditions arising there from (including morbid obesity) and any other weight control and Management program/services/supplies or treatment", the claim is not payable. Thus, the claim has rightly been repudiated by letter dated 31-07-2014.
3. the grievance of the insured was again forwarded to the Regional Customer Relationship Committee for reconsideration. The matter was reviewed and the complainant was requested to provide the following documents before the final decision:-

1. A certificate from the attending consultant providing the duration for which the patient is a known case of asthma, obstructive sleep apnoea and obesity.
2. Report of treatment taken by the patient after first detection of the above stated disease.

However, the complainant has not submitted any of the aforesaid documents despite repeated requests, which is also a violation of Condition No.5.1 of Pariwar Mediclaim Policy which states as under :-

"Non Disclosure of the material facts".

 

4. The Insurance Policy containing the terms and conditions is a contract between the complainant and the O.P. and the terms and conditions therein has to be followed strictly by both of the parties and any violation in respect thereof deserves the complaint to be dismissed with exemplary costs.
5. the complainant has not come to this Hon'ble Court with clean hands and has suppressed the material facts. The complaint is liable to be dismissed on this ground.
6. there is no deficiency of service on the part of the answering opposite party. The claim has rightly been rejected in view of violation of the terms and conditions of the Parivar Mediclaim Policy.

 

(4)      The OP has also filed Parawise reply on merits to the complaint as under:-

1. Para 1 to 4 are matter of record.
2. the contents of para no.5 of the Complaint are wrong and vehemently denied. The complainant is well aware of the terms and conditions of the Policy. The terms and conditions has been provided to the complainant.
3. the contents of para no.7 of the Complaint are wrong and denied. The complete facts have not been averred in this para. The discharge summary of the hospital has divulged the entire facts in respect of the ailment.

 

(5)      Both parties have filed evidence by way of Affidavit, written arguments and have also led oral arguments. Accordingly, the complaint has been examined in view of the facts of the case and averments/documents/Evidence/arguments put forth by the parties and it has been observed that:-

1. In para 5 of the complaint, it has been alleged by the complainant that no terms and conditions were provided by the OP and this allegation has neither been replied properly nor any proof of delivery of the terms & conditions has been filed with the reply of the OP. While replying to this allegation in the reply, the OP has  simply denied the allegations without any evidence as under:-

“The contents of para no.5 of the Complaint are wrong and vehemently denied. The complainant is well aware of the terms and conditions of the Policy. The terms and conditions has been provided to the complainant.”

 

2. The Complainant had also stated in his letter dated 25.12.2014, duly acknowledged by opposite party, that no terms and conditions were provided to him.
3. It has also been noticed that OP has also filed two sets of terms and conditions.

In the set of T&C (Bearing No. 19126) filed with evidence by the OP as OPW-1/3, the Exclusion Clause 4.9 & 5.1 has been mentioned as under:-

                             “4.9 Obesity

Treatment for obesity or condition arising therefrom (including morbid obesity) and any other weight control and management program/services/supplies or treatment.

                             5.1. Disclosure to information norm

The policy shall be void and all premium paid hereon shall be forfeited to the company, in the event of misrepresentation, mis-description or non-disclosure of any material fact.”

 

And in the another set of T&C, filed by the OP at the time of arguments, the provisions of  Clause 4.9 and 5.1 has been mentioned as under:-

“4.9 General debility, external congenital anomaly Convalescence, general debility, run down condition or rest cure, external congenital anomaly.        

                             5.1 Disclosure of information

The policy shall be void and all premium paid hereon shall be forfeited to the company, in the event of mis-representation, mis-description or non-disclosure of any material fact.”

 

This is sufficient to conclude that the OP is not sure as to which terms and conditions were applicable on the policy in question at the time of issuance of the first policy.

4. It has also been found from perusal of the copies of the previous insurance policies filed by the complainant, that there is no mention of delivery of terms and conditions alongwith the copies of policies issued by the OP.
5. In this regard, the judgment passed by the Hon’ble Supreme Court of India in the matter of Texco Marketing Pvt Ltd Vs Tata AIG General Insurance Co. Ltd & others - (2023) I SCC 428 is relevant in the matter wherein it has been held that the Insurance Company cannot rely upon the terms and conditions if the same had not been supplied to the insured.
6. The following observations of the Hon’ble NCDRC in the matter of M/S. Anjaneya Jewellery vs New India Assurance Co. Ltd. & 2 Ors. Passed on 14 February, 2023 in CC/1094/2018 are also relevant:-

“Applying the Principles laid down by the Hon’ble Supreme Court referred to above, to the facts of the present case, we find that there is no material on Record to establish that the Opposite Party Insurance Company had given the Terms and Conditions of the Special Package Insurance Policy or at any point of time or ever informed the Complainant about the same. Thus, the Exclusion Clause on the basis of which the Opposite Party Insurance Company had repudiated the Insurance Claim of the Complainant, cannot be sustained as the Opposite Party Insurance Company could not rely upon the same. The Repudiation letter is, therefore, set aside.There had been Deficient in Service by the Opposite Party Insurance Company in repudiating the genuine claim of the Complainant.”

7. The judgement of Hon'ble Supreme Court in Modern Insulators Ltd. versus Oriental Insurance Company Limited [(2000) 2 SCC 734] is also relevant in the matter wherein it has been held that if the exclusion clause has not been communicated to the insured, then insurer cannot claim benefit of that clause.

(6)      In view of the above observations, we are of the considered view that the OP has repudiated the claim in unjustified way and the complainant has suffered directly due to deficient service of the OP-1 (M/s National Insurance Co. Ltd.) in terms of the deficiency defined in the Act which includes  any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained in relation to any service and includes any act of negligence or omission or commission by such person which causes loss or injury to the consumer. Therefore, we feel appropriate to direct the OP to pay:-

 

1.  Rs.1,80,000/-(Rupees One Lakh Eighty Thousand only) as reimbursement of claim of hospitalization and medical expenses, within thirty (30) days from the date of receipt of this order, with interest at the rate of 9% p.a. from 20-04-2014 (date of expiry of 30 days period from filing of claim by the complainant with OP) till the date of the payment;
2. Rs.75,000/- (Rs. Seventy Five thousand only) as compensation for mental agony and harassment caused to the complainant;
3. Rs.10,000/-(Rs. Ten thousand only)  as litigation expenses.

 

(7)      It is clarified that if the amount ordered in para 6 (i) to (iii) shall be paid by the OP to the Complainant within the 30 days as directed above, failing which the OP shall be liable to pay interest @12% per annum from the date of expiry of 30 days period.

(8)      Order be given dasti to the parties in accordance with rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

 

 

ASHWANI KUMAR MEHTA                                                DIVYA JYOTI JAIPURIAR

          Member                                                                                    President 

    DCDRC-1 (North)                                                                     DCDRC-1 (North)