Kerala

Idukki

CC/44/2022

Shaji Musthafa - Complainant(s)

Versus

Niva bupa Helth insurance co ltd - Opp.Party(s)

24 Apr 2023

ORDER

DATE OF FILING : 02/03/2022

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 24^th day of April 2023

Present :

              SRI.C.SURESHKUMAR                                               PRESIDENT

              SMT.ASAMOL P.                                                          MEMBER

              SRI.AMPADY K.S.                                                        MEMBER

CC NO.44/2022

Between

Complainant                                :  Shaji Musthafa, S/o Musthafa,

                                                        Ukkiniveettil House, Edavetty P.O.,

                                                         Karikodu

                                                         (By Adv.K.M.Sanu))                                                           And

Opposite Party :                      :  1 . The Manager,

                                                         Niva Bupa Health Insurance Co.Ltd.,

                                                      (Formerly Max Bupa Health Insurance Co.Ltd.,),

                                                         7-B, Puthuran Plaza, M.G.Road,

                                                         Kochi- 682 035.

                                                   2 . The Manager,

                                                         Niva Bupa Health Insurance Co.Ltd.,

                                                         Door No.CC 39/3633/D1, 3^rd Floor,

                                                         Land Mark Enclave, S.A.Road,

                                                        Valanjamabalam, Ernakulam – 682 016.

                                                        (Both by Adv.Saji Issac K.J.)

                                                   3 . The Manager,

                                                         Bajaj Fin Serv Ltd., 4 Lane Bypass Road,

                                                         Thodupuzha, Thodupuzha P.O.

                                                         (By Adv.Eswar Raj)

 

O R D E R

SRI.AMPADY K.S., MEMBER

 

This complaint is filed under S.35 of Consumer Protection Act, 2019, raising the following allegations against opposite parties.

 

1 . Complainant availed a loan from 3^rd opposite party in July 2021.  3^rd opposite party is having a policy of insuring its customers under a group  health   insurance   scheme   with   1^st   and   2^nd   opposite   parties. 

(Cont....2)

-2-

 

Complainant  paid an amount of Rs.3346/- as premium through 3^rd opposite party and he became a member in the group master policy and he was allotted a policy having number 113002391690.  Period of insurance is from 04/08/2021 to  03/08/2022 with a sum assured of 5 Lakhs.  Policy offers coverage upto Rs.5 Lakhs treatment expenses.

2 . While the policy was in force the complainant on 05/08/2021 at 8 PM admitted at St.Mary’s Hospital Thodupuzha due to sudden cheat pain.  Complainant underwent different types of tests and Coronary Angiogram was done.  Doctors opined that 95-99% block.  The situation was so critical and suddenly Angioplasty was done and stent was fixed.  After the procedure, complainant was discharged on 11/08/2022.  Complainant spent Rs.1,22,330/- as hospital bills.

3 . After the discharge the complainant lodged a claim before opposite party with relevant documents to get the policy benefits.  1^st and 2^nd opposite parties denied the claim application on the ground that the illness is within 30 days of inception of the policy and is not payable.

4 .  The opposite party repudiated the claim on unreasonable ground.  Eventhough the policy includes a clause of 30 days of waiting period the same clause give coverage for treatment for accident, cardio or neurological emergency.  The complainant was admitted and treated with cardiological emergency.   So, the repudiation is not on a reasonable  ground.

5 . Repudiation of claim on unreasonable ground amounts to deficiency in service and unfair trade practice on the part of the opposite parties.  The complainant is entitled to get the policy benefits and also entitled to get compensation for deficiency in service and unfair trade practice.

 

(Cont....3)

-3-

1 . Opposite parties may be directed to give an amount of Rs.1,,22,330/- being hospital bills as the policy benefits.

2 . Rs.50,000/- may be allowed as compensation for deficiency in service and unfair trade practice on the part of opposite party.

3 .Rs.10.000/- maybe allowed as litigation costs.

4 . Such other reliefs that are found to be just and proper by the Hon’ble Commission.

1^st and 2^nd opposite parties filed written version jointly and 3^rd opposite party filed separate written version with preliminary objections.  Counsel for complainant raised objection to the written version filed by 3^rd opposite party on the ground that it was filed out of time. 

Contentions of 1^st and 2^nd opposite parties are as under:-

1 . Complaint is not maintainable either in law or on facts.

2 . The complainant had availed a Max Health Plus Policy  from these opposite parties and the policy was valid for the period  from 04/08/2021 to 03/08/2023.   The policy availed by the complainant was the first policy of the complainant with these opposite parties.

3 .Contract of  insurance is a contract based on the terms, conditions and exclusions of the policy and these opposite parties are liable to compensate the complainant only according to the conditions and exclusions of the policy.

4 .   According to the conditions of the policy, “A waiting period since beginning of cover under the first policy, specified in the Policy Schedule/ Certificate of Insurance shall apply to any Illness contracted and or Medical Expenses incurred in respect of any illness by the Insured

 

(Cont....4)

-4-

Person other than Hospitalization due to Accident”.  The certificate of insurance produced by the complainant himself shows that there is an initial waiting period of 30 days.

5 .The complainant was admitted for the treatment on 05/08/2021, the very next  day of inception of the policy and hence fell within the initial waiting  period of 30 days.  These opposite parties had repudiated the claim of the complainant by letter dated 22/09/2021.

6 .  The complainant himself has admitted in para 4 of the complaint that there is an initial waiting period of 30 days.  The allegation in para 4 of the complaint that the complainant was admitted for cardiological emergency and so the repudiation is not on a reasonable ground is false and hence denied.  The initial waiting period is applicable for all illness and hence the cardiological emergency of the complainant which arose on the very next day of policy inception is not payable.

7 . The allegation in para 5 of the complaint that the repudiation of claim on unreasonable ground amounts to deficiency in service and unfair trade practice on the part of the opposite parties is false and hence denied.  The allegation in para 5 of the complaint that the complainant is entitled to get the policy benefits and also entitled to compensation for deficiency in service and unfair trade practice is false and hence denied.  There has been no deficiency in service or unfair trade practice on the part of the opposite parties.

8 .The cause of action as stated in the complaint is non existent.  There is no cause of action for the above complaint.

9 .  The complainant is not entitled to any of the reliefs claimed in the complaint.  The complainant is not entitled to the amount of Rs.2,22,339/- or for compensation of Rs.50,000/- or Rs.10,000/- as litigation cost.

 

(Cont....5)

-5-

10 . Even assuming without admitting, the liability of these opposite parties is limited to the terms, conditions and exclusions of the policy.

Contentions of 3^rd opposite party are briefly discussed hereunder:-

1 .The complainant has not come with clean hands and has suppressed the real facts from this Hon’ble Commission.  The complainant has no reason to file this complaint against the opposite parties.  The contents of the application are denied by the opposite parties.  The complainant has filed this complaint with the intention to harass the opposite parties and capitalise  thing.  For all these reasons the complaint is not maintainable and is liable to be rejected with costs against this opposite parties.

2 .That, the complaint is not maintainable against the opposite parties both in fact and law.  The opposite party denies and dispute all the contentions, claims, demands, allegations, averments of the complainant against the opposite party, save what is matter of record and what has seen specifically admitted herein.

3 . That before filing the captioned complaint the complainant has not made any communication with this opposite parties.  If complainant would have reached to the opposite party would have cleared all the doubts and confusions of the complainant, but the complainant directly approached this Hon’ble Commission.

4 . Complainant’s main dispute is with respect to the claim of the insurance which got rejected by the 1^st and 2^nd  opposite parties for which this opposite party is not accountable.

5 .  3^rd opposite party  had availed the insurance from the 1^st and 2^nd opposite parties  which was sourced to the complainant for a sum assured of Rs.5 Lakhs vide Policy No.50106700202100.   That the said fact is evident from the copy of certificate of insurance, statement of account and the E agreement attached.

(Cont....6)

-6-

 6 . It admitted contentions of para 1 of complaint.  Complainant availed various loans in the past out of which one is closed and the other is active. With regard to disputed loan account, he availed personal loan of Rs.1,50,000/- dated 04/08/2021 with EMI of Rs.6451/- for 36 months.

7 . It is contented that with regard to para 2 of complaint, the facts are a matter of record and needs no reply.  Complainant has raised allegations against 1^st and 2^nd opposite parties only and not against them.  3^rd opposite party is a mere financier providing loans to needy people and has no role to play in the acceptance or rejection of insurance policy.  As no cause of action exists against them, they may be deleted from party array.  It is also contended that present matter is purely contractual and commercial in nature. They had however taken up the matter with 1^st and 2^nd opposite parties and they replied stating that the claim was raised within the initial tenure of 30 days.  Insurance is an agreement between insurer and customer and there is no privity of contract with financing company.  There is no deficiency in service on their part and they have acted in good faith.  Complainant is not entitled to any relief and the complaint is not maintainable and is liable to be dismissed summarily.  It is also stated by them that loan accounts are closed and also the claim has been paid out and therefore the complaint is infructuous.  Hence 3^rd opposite party prayed for dismissal of complaint with their costs.

Complainant produced copy of 4 documents and that were marked as Exts.P1 to P4 as follows:-

1 . Ext.P1 – Claim status letter dated 20/09/2021 as ‘Denied’ with claim details of Rs.1,22,330/-

2 . Ext.P2 – certificate of insurance “Health Plus” with terms and conditions.

3 . Ext.P3 – Discharge summary dated 11/08/2021.

 

(Cont....7)

-7-

4 . Ext.P4 –Breakup of bills from 05/08/2021 to 11/08/2021 amounting to Rs.119778/- (2^nd page of bill not produced). 

No oral evidence in adduced on behalf of complainant.

1^st to 3^rd opposite parties also not adduced any oral evidence.  As 3^rd opposite party have filed written version after the stipulated time, they cannot rely upon it.  However, they can take part in the proceedings as held by Hon’ble Supreme Court.  Copy of documents produced on behalf of 3^rd opposite party are as under:-

1 . Ext.R1 –Status of trade mark as ‘registered’ as on 24/02/2020.  But it is printed thereon that (NOT FOR LEGAL USE).  It seems to be not an authenticated one.

2 . Ext.R2 – Certificate of incorporation dated 13/04/2007 of Bajaj Fin serv Ltd.,

3 . Ext.R3 – Certificate of insurance. (This and Ext.P2 are same.)

4 .Ext.R4 – Loan details of complainant.

5 . Ext.R5 – Terms and conditions of loan(e-agreement).

Complainant filed argument notes re-iterating the averments in complaint.  Heard counsel for opposite parties.

We have examined the rival pleadings of both sides and perused the records.  On an careful analysis of the same, following points arise for consideration.

1 . Whether 3^rd opposite party is a necessary party to the complaint?

2 . Whether there is any deficiency in service on the part of opposite parties?

3 . Whether the complainant is entitled to the reliefs prayed for?

(Cont....8)

-8-

4 . Order to be passed?

Point No.1

It is seen from Ext.R4 that complainant availed loan from Bajaj Finance Ltd., but he impleaded Bajaj Fin Serv Ltd., as 3^rd opposite party.  No explanation is offered for this.  However, financing company Bajaj Finance Ltd., has contested the case.  Crucial issue involved is the denial of insurance claim by 1^st and 2^nd opposite parties.  In these circumstances, we are of the view that 3^rd opposite party is not a necessary party and no cause of action arose against them.  Hence point No.1 is answered accordingly.

Point Nos.2 and 3 are considered together

Contentions of 1^st and 2^nd opposite parties are that contract of insurance is based on terms, conditions and exclusions of the policy.  There is no doubt with regard to that but if the terms and conditions are one sided, Commission can take appropriate decision.  Their main contention is with regard to initial waiting period of 30 days.  Contention against the terms of policy by the insurer themselves is not sustainable.  In Cl.(b) of the terms and conditions attached to the policy under the head ‘waiting periods’ it is stated as follows.

“Waiting period 30 days.  We will not cover any treatment taken during the first 30 days since the date of commencement of coverage for the primary insured, unless the treatment needed is the result of an Accident, or Cardio or Neurological Emergency”.  From the wordings of this clause, it is evident that certain treatments like cardio and other emergencies are excluded from the purview of waiting period.  Contention of complainant on this aspect seems to be correct. Insurance is taken to meet the expenses under unforeseen circumstances.  Insurer is duty bound to honour the claim as per policy.  Considering the facts, law and   circumstances   of   the   case   we   are  of  the  concrete  view  that

(Cont....9)

-9-

complainant is entitled to get treatment expenses of Rs.1,19,778/- (Rupees One Lakh Nineteen Thousand Seven Hundred and Seventy Eight only) from 1^st and 2^nd opposite parties.  Here, 1^st and 2^nd opposite parties denied the policy benefits in an irresponsible manner and against the terms of policy which is clearly deficiency in service on their part for which they are liable to pay reasonable compensation of Rs.25,000/- to complainant.  Point Nos.2 and 3 are answered as above.

Point No.4

In the light of our findings on point Nos. 2 and 3, we order that 1^st and 2^nd opposite parties should pay Rs.1,19,778/- (Rupees One Lakh Nineteen Thousand Seven Hundred and Seventy Eight only) to complainant with compensation of Rs.25,000/- (Rupees Twenty Five Thousand only) and litigation costs of RS.5,000/- (Rupees Five Thousand only) within 30 days of receipt of this order, failing which they are also liable to pay simple interest @ 9% per annum on amounts granted except on litigation costs from the date of order till realization.

In the result, complaint is allowed in part as stated above.

Pending application if any shall stand disposed of.  Parties shall take back extra copies without delay.

Pronounced by this Commission on this the 24^th  day of April 2023.

 

                                                                                                 Sd/-

                                                                            SRI.AMPADY K.S., MEMBER

                                                                                              Sd/-                                                                  

                                                                SRI.C.SURESHKUMAR, PRESIDENT

                                                                                              Sd/-

                                                                        SMT.ASAMOL P., MEMBER

 

 

 

(Cont....10)

-10-

 

APPENDIX

Depositions :

On the side of the Complainant :

Nil

On the side of the Opposite Party :

Nil

Exhibits :

On the side of the Complainant :

Ext.P1 – Claim status letter dated 20/09/2021 as ‘Denied’ with claim

               details of Rs.1,22,330/-

Ext.P2 – certificate of insurance “Health Plus” with terms and conditions.

Ext.P3 – Discharge summary dated 11/08/2021.

Ext.P4 –Breakup of bills from 05/08/2021 to 11/08/2021 amounting to

              Rs.119778/- (2^nd page of bill not produced).

On the side of the Opposite Party :

Ext.R1 –Status of trade mark as ‘registered’ as on 24/02/2020.  But it is

              printed thereon that (NOT FOR LEGAL USE).  It seems to be not

               an authenticated one.

Ext.R2 – Certificate of incorporation dated 13/04/2007 of

                Bajaj Fin serve Ltd.,

Ext.R3 – Certificate of insurance.

Ext.R4 – Loan details of complainant.

Ext.R5 – Terms and conditions of loan (e-agreement).

 

 

 

                                                                                              Forwarded by Order  

 

 

                                                                                        ASSISTANT REGISTRAR