Punjab

Patiala

CC/15/10

Subhash Chander Behal - Complainant(s)

Versus

O I C - Opp.Party(s)

Sh Narinder singh

04 Jun 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

 

                                      Complaint No. CC/15/10 of 6.1.2015

                                      Decided on:        4.6.2015

 

 

Subhash Chander Behal aged about 63 years son of Sh.Ram Behal, resident of H.No.580,Sham Nagar, Ropar.     

 

 

                                                                   …………...Complainant

                                       Versus

 

1.      Oriental Insurance Company through its Divisional Manager, Sai Market, The Lower Mall, Patiala.

2.      Punjab National Bank, Model Town Branch, Patiala, through its Branch Manager.

                                                                   …………….Ops

 

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

 

                                      QUORUM

 

                                      Sh.D.R.Arora, President

                                      Smt.Neelam Gupta, Member        

                            

                                                                            

Present:

For the complainant:   Sh.Narinder Singh, Advocate

For Op No.1                 Sh.B.L.Bhardwaj,Advocate          

                                     

                                         ORDER

D.R.ARORA, PRESIDENT

1. It is the case of the complainant that he had purchased three PNB- Oriental Royal Medical Health Insurance Polices from the Ops as per the particulars thereof given in para no.1 of the complaint, which were valid for the period 13.10.2011 to 12.10.2012, 13.10.2012 to 12.10.2013 and 13.10.2013 to 12.10.2014. It is averred by the complainant that the Ops had not supplied the policy terms and conditions as also the cashless card. The ops even failed to dispatch the policy for the current year i.e. 2013-14 qua the cashless card.
2. On 5.1.2014, the complainant suffered heart problem and therefore, he was got admitted in Max Super Speciality Hospital, SAS Nagar, Mohali on the said date , where he remained admitted from 5.1.2014 to 11.1.2014. In the absence of the current policy bearing No.233500/48/2014/1242, valid for the period 13.10.2013 to 12.10.2014 as also the cashless card, the complainant could not avail the cashless facility from the said hospital and therefore, he had to make the payment of Rs.3,70,423/- as also the other expenses incurred on his treatment. The Ops supplied the third year policy in the mid of January,2014 after treatment and  that too after various requests made by the complainant, which amounted to a grave negligence on the part of the Ops. The complainant was already insured since four months before the issuance of the third year policy. Had he been equipped with the cashless card, it would have been very easy for him to get the cashless benefit as it would have been the responsibility of the Ops to pay for the treatment.
3. It is further averred that the claim of the complainant for the reimbursement of the expenses incurred by him on his treatment had been pending with the ops since five months before the  filing of the complaint, the complainant having submitted his claim with the Ops on 1.2.2014 by hand.The complainant supplied all the necessary documents including three policies, which were required for the reimbursement of the claim through branch office of Op no.1 at Ropar sent through registered post No.RA-318807141.The insured code of the complainant is 45464673, reimbursement claim numbers are 9793876,  979876 and review number is 9988195, MAID no. being 5011255889.
4. Two months before the filing of the complaint, the complainant had received an oral intimation from the Ops regarding the denial of his claim. At this the complainant approached the Divisional Office of the Ops, when the claim file was opened and reviewed, review number being 9888195 in respect of reimbursement claim No.9793876 and MAID number being 5011255889 but the same was denied. The Ops informed the complainant telephonically about the denial of his claim on 9.8.2014 and sent the repudiation letter dated 4.9.2014 having repudiated his claim under Clause 4.2 of the policy on the ground that the diseases of hypertension and diabetes are not covered but no such terms and conditions were provided by the Ops to the complainant. The complainant suffered the harassment as also the mental agony at the hands of the Ops. He got the Ops served with a legal notice sent through registered post on 24.5.2014, which was received by Op no.1 on 27.5.2014 but they failed to respond. Accordingly the complainant brought this complaint against the Ops under Section 12 of the Consumer Protection Act,1986 ( for short the Act) for a direction to the Ops to release the amount of Rs.3,70,423/- as also the other expenses incurred by him on his treatment with interest @18% per annum from the date of the payment i.e. 5.1.2014 ; to award him a sum of Rs.50,000/-by way of compensation on account of the harassment and the mental agony experienced by him and further to award him the costs of the complaint.
5. The cognizance of the complaint was taken against Op no.1 only , who on appearance filed the written version. It is admitted by the Op that PNB-Oriental Royal Mediclaim policy Schedule bearing policy No.231402/48/2012/680 valid for the period 13.10.2011 to 12.10.2012, policy No.231402/48/2013/581 valid for the period 13.10.2012 to 12.10.2013 and policy No.233500/48/2014/1241 valid for the period 13.10.2013 to 12.10.2014 had been issued by the Op alongwith terms and conditions. Every insured is briefed about the terms and conditions of the insurance policy by the concerned official of the PNB at the time of the issuance of the policy. It is denied that the policy for the period 13.10.2013 to 12.10.2014 was delivered to the complainant in the mid of January,2014. The policy is issued immediately on receipt of the premium.
6. It is further the plea taken up by the op that the claim case of the complainant was erroneously and inadvertently repudiated by the Op vide letter dated 4.9.2014 under Clause 4.2 of the terms and conditions. On receipt of the notice of the complaint, filed before the Forum, it was transpired while scrutinizing the claim case that the repudiation letter dated 4.9.2014 had erroneously and inadvertently been issued having repudiated the claim under Clause 4.2 due to oversight and typographical error whereas the claim was required to be repudiated under the Exclusion Clause 4.7 of the PNB-Oriental Royal Mediclaim Policy, as per the advice of the TPA dated 12.2.2014 and the subsequent advices of the TPA dated 14.5.2014 and 14.8.2014 on the ground, “ On perusal of claim documents it is found that claimant covered under the above mentioned policy was admitted at Max Hospital for the treatment of CAD, Hypertension, RHD on 5.1.2014 and Discharged on 11.1.2014. As per the submitted documents, it is evident that the claimant is a chronic smoker consuming 2 packets a day. Smoking is major predisposing factor to the development if Heart Ailments. Hence, we regret our inability to admit this liability under present policy condition and the claim is being repudiated under Exclusion 4.7 of above mentioned policy. We also reserve the right to repudiate the claim under any other ground/s available to us subsequently”. Repudiation letter dated 4.9.2014 has been cancelled vide letter dated 25.1.2015.
7. It is further the plea taken up by the Op that the claimant is not entitled to any compensation as per the terms and conditions of the insurance policy because it is provided under Exclusion Clause 4.7 that claim is not payable in case the ailment is on account of pre existing or covered under clause 4.7, which is in the following terms, “Convalescence, general debility, “run down” condition or rest cure, congenital external and internal diseases or defects or anomalies, sterility, any fertility, sub-fertility or assisted conception procedure, venereal diseases, intentional self injury/suicide, all psychiatric and psychosomatic disorders and diseases/accident due to an/or use, misuse or abuse of drugs/alcohol or use of intoxicating substances or such abuse or addiction etc”.  Since the claim has been repudiated under Exclusion Clause based on the ground of smoking, the claim is not payable. The medical record discloses that at the time of the admission, the complainant was noted to be a heavy smoker with HO: “Smoking present (cigarette two packets /day). Heavy smoking by the complainant could be a major cause of blockage of   thrombus 99% and arteries 90% as per angiography report dated 14.5.2014 of Max Super Speciality, Hospital and said condition of the complainant had not occurred instantly. After denouncing the other averments of the complaint, going against the Op, it was prayed to dismiss the complaint.
8. In support of his complaint, the complainant produced in evidence Ex.CA his sworn affidavit alongwith documents Exs.C1 to C18 and his counsel closed the evidence.
9. On the other hand, on behalf of the Op, it’s counsel tendered in evidence Ex.OPA, the sworn affidavit of Sh.A.S.Dhingra, Sr.Divisional Manager of the OP alongwith documents Exs.OP1 to OP11 and closed the evidence.
10. The Op filed the written arguments. We have examined the same, heard the learned counsel for the parties and gone through the evidence on record.
11. Ex.C6 is the copy of the discharge summary, in respect of the patient Subhash Behal, dated January 11,2014. Under the heading Diagnosis , it is recorded: “CAD-ACUTE INFERIOR WALL MI

S/P PTCA TO LAD [6/1/14]

S/P PTCA TO RCA [5/1/14]  

 

 RHD-MILD MS/MODERATE MR, LVEF-45-50%

?CONTRAST INDUCED NEPHROPATHY-RECOVERING RENAL FUNCTION”

Under the heading PATIENT HISTORY, it is recorded:

“THE PATIENT PRESENTED TO ER WITH H/O CHEST PAIN RADIATING TO LEFT ARM AT 5:00 AM TODAY MORNING. THE PATIENT WAS ADMITTED IN A HOSPITAL OUTSIDE AND DIAGNOSED THEREAS INFERIOR WALL MI.PT WAS GIVEN ECOSPRIN 300MG AND SORBITRATE 5 MG AT HOSPITAL. HE WAS THEN ADMITTED FOR FURTHER EVALUATION AND MANAGEMENT”.

Under the heading PAST HISTORY, it is recorded:

H/O HYPERTENSION-PT WAS ADVISED ANTIHYPERTENSI VES BUT PT IS NOT TAKING REGULAR MEDICATIONS.

NO H/O DM TYPE 2/TB/BA

H/O OCCASIONAL ALOCOHOL INTAKE+

H/O SMOKING PRESENT(CIGARETTE 2 PACKETS/DAY)”

Under the heading COURSE IN HOSPITAL, it is recorded:

THE PATIENT WAS ADMITTED WITH THE ABOVE COMPLAINTS. HE WAS TAKEN UP CAG AND SUBSEQUENTLY UNDERWENT PTCA TO RCA AND LAD. DETAILED REPORTS HANDED OVEER TO THE PATIENT. HE TOLERATED THE PROCEDURE WELL. HOWEVER, HE DEVELOPED WORSENING RENALFUNCTION IN HOSPITAL STAY. HE WAS MANAGED WITH MUCOMIX 600MG TWICE DAILY AND ORAL AND IV HYDRATION. HIS RENAL FUNCTIONS SUBSEQUENTLY IMPROVED IN HOSPITAL STAY. THERE WAS GOOD URINE OUTPUT AND HE DID NOT HAVE ANY REQUIREMENT FOR DIALYSIS. HIS CREATININE AT DISCHARGE WAS (UR-66.3,CR-2.47-11/1/14). HE IS NOW BEING DISCHARGED IN A STABLE CONDITION”.

12. Ex.C7 is the copy of the letter dated 4.9.2014, written by the op to the complainant on the subject: Denial of claim 979387G under 233500/48/2014/1241 and, interlaid, informed, “On perusal of claim document, it is found that claimant covered under the above mentioned policy was admitted at Max Hospital for the treatment of CAD, Hypertension, RHD on 5.1.2014 and Discharged on 11.1.2014. As per the Policy Terms and Conditions, during the period of insurance cover, the expenses on treatment of ailment/diseases/surgeries for Hypertension disease for specified periods of 2 yrs are not payable if contracted and /or manifested during the currency of the policy. Hence , we regret our inability to admit this liability under present policy conditions and the claim is being repudiated under Exclusion 4.2 of above mentioned policy. We also reserve the right to repudiate the claim under any other ground/s available to us subsequently”. The letter also contains the Description of Exclusion Clause 4.2 given as under: “ The expenses on treatment of following ailments/diseases/surgeries for the specified periods are not payable if contracted and/or manifested during the currency of the policy. If these diseases are pre-existing at the time of proposal , the Exclusion Clause 4.1 for pre-existing condition shall be applicable in such cases. xvii Hypertension t-years”
13. It is the plea taken up by the Ops that they had earlier  repudiated the claim of the complainant vide their letter dated 4.9.2014 by way of inadvertence and under a typographical mistake and that the same was required to be repudiated under Exclusion Clause 4.7 of the PNB-Oriental Royal Mediclaim Policy, as per the TPA advice dated 12.2.2014 and the subsequent advices dated 14.5.2014 and 14.8.2014. In this regard they have also produced Ex.OP1, the letter dated 25.2.2015, written by the Sr. Divisional Manager of Op no.1 to the complainant on the subject: Denial of claim 9793876 under policy No.233500/48/2014/1241 and informed him, “Further to our letter dated 04.09.2014 vide which your above stated claim was repudiated under Clause 4.2 of the Terms and Conditions of the Insurance Policy with the condition that the Insurance Company also reserve the right to repudiate the claim under any other ground/s available to the Company subsequently.

That on receipt of the notice of your complaint having been filed by you before the Hon’ble District Consumer Disputes Redressal Forum, Patiala, it has now revealed while scrutinizing your claim case file that repudiation has erroneously and inadvertently been issued under clause 4.2 due to an oversight and typographical error whereas your above claim was required to be repudiated under exclusion clause 4.7 of PNB-Oriental Royal Mediclaim Policy as per TPA advice .dt.14.5.14 and advice dated 4.8.2014”.

14. Here, it may be noted that under PNB-Oriental Royal Mediclaim Policy,( copy Ex.OP11) Exclusion clause 4.7 has been described as under, “Convalescence, general debility, “run down” condition or rest cure, congenital external and internal diseases or defects or anomalies, sterility, any fertility, sub-fertility or assisted conception procedure, venereal diseases, intentional self-injury/suicide, all phychiatric and psychosomatic disorders and diseases/accident due to and/ or use, misuse or abuse of drugs /alcohol or use of intoxicating substances or such abuse or addiction etc.”.
15. It was submitted by Sh.Narinder Singh, the learned counsel for the complainant that the plea taken up by Op no.1 that earlier the Op had repudiated the claim of the complainant under exclusion clause 4.2 of the policy terms and conditions by way of inadvertence and under a typographical error is made up plea because the Op vide letter,Ex.C7 dated 4.9.2014 had covered the case of the complainant under category no.xvii in respect of hypertension provided under exclusion clause 4.2 in which a period of two years is provided but the policy of the complainant had already become more than two years old and therefore, the Op realizing their folly , repudiated the claim of the complainant on the basis of the letter dated 25.2.2015,Ex.OP1 under exclusion clause 4.7 but the Op has miserably failed to show that the complainant had made any abuse of intoxicating substances. In this regard, Sh.Narinder Singh, the learned counsel for the complainant made a reference to the discharge summary Ex.C6 dated January 11,2014, in which in the  Past History , it is recorded, interalia: “H/O Occasional Alcohol Intake. Smoking present [Cigarette 2 packets/day]. No where in the discharge summary, it is recorded that the problem of the CAD-Acute Inferior Wall MI S/P PTCA to LAD[6.1.2014] S/P PTCA to RCA [5/1/2014] Hypertension-RHD-Mild MS/Moderate MR,LVEF-45-50% was due to the heavy smoking  by the patient as per the plea taken up by the OP in the written version. He also placed reliance upon the citation Vanitaben Retilal Fulbaria Versus LIC of India 2009(1)CPJ (N.C.) 161 :2009(1) CPR(NC) 208: 2009(2)CLT 560 of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi for the observation: “From the Postmortem report issued by the J.J. Hospital, it is clear that the deceased died on account of heart failure and jaundice .Neither in the certificate issued by Rashid Hospital nor from the post-mortem report, it is stated that the deceased died due to drinking or smoking. Respondent company has failed to prove that the deceased had either any pre-existing disease relating to heart or that he died because of his drinking or smoking habits.

10.    In the face of the oral statements of the petitioner to the effect that deceased was not in the habit of drinking and smoking daily duly supported by the two agents of the insurance company and the fact that the certificate issued by the Rashid Hospital, Dubai is not supported by the affidavit of the Doctor who had examined the deceased, it is held that the respondent company has failed to prove that the deceased had taken the policies by withholding relevant and true facts in the proposal form”.

16. On the other hand, it was submitted by Sh.B.L.Bhardwaj, the learned counsel for the Op that in the document, Ex.OP5, which is of the Emergency Department Initial Assessment, in respect of patient Subhash Behal, it isrecorded in the heading Presenting complaints: “PATIENT PRESENTED TO ER WITH H/O CHEST PAIN RADIATING TO LEFT ARM AT 5:00 TODAY MORNING. PT WAS ADMITTED IN A HOSPITAL OUTSIDE AND DIAGNOSED THERE INFERIOR WALL MI, TAB. ECOSPRIN 300 MG GIVEN, TAB. SORBITRATE 5 MG STAT GIVEN, INJ. VOVERON 1AMP IV GIVEN,

KCO HTN NOT ON REGULAR T/T

H/O SMOKING (2-3 PACKS/DAY) FOR 20 YRS”

17. It may, however be noted that on our asking, Sh.Bhardwaj, the learned counsel for the Op failed to show as to how this document has been prepared because the same is not shown to be a part of the medical record prepared in the Max Super Speciality Hospital, regarding the admission and discharge of patient namely Subhash Chander Behal. In the discharge summary,Ex.C6, the history of smoking has been recorded as “Cigarette 2 packets/day and this is the only document in which history of smoking has been recorded as : 2-3 packets/day for 20 years. Again in Ex.OP6, which is IP Cardiology Summary, the history of smoking has been recorded Cigarette 2 packets /day . Even in the discharge summary Ex.C7, produced by the Op, the history of smoking has been recorded Cigarette 2 packets /day. Therefore,  we can not rely upon the history of smoking as given in Emergency Department Initial Assessment Ex.OP5, in which the history of the smoking has been given as 2-3 packets /day for 20 years because there is no basis for the same.
18. Even if for the sake of arguments, we rely upon Ex.OP5 in which the history of smoking has been given as 2-3 packets/day for the last 20 years, there is no evidence to have been lead by the Op that  the cause of CAD-Acute Inferior Wall MI  or of Hypertension-RHD Mild MS/Moderate MR,LVEF-45-50% was due to heavy smoking by the patient. The said fact should have been mentioned in the discharge summary Ex.C6. Even under the follow up instructions given in the discharge summary,Ex.C6, it is no where provided that the patient should abstain smoking.Simply because in the Past History, disclosed by the patient, it was recorded that he was smoking cigarette two packets a day, it cannot be assumed that the smoking was the cause of CAD/Acute Inferior Wall MI and hypertension RHD Mild/Moderate MR LVEF-45-50%.
19. It appears that the Op firstly having taken the shelter  of Exclusion Clause 4.2 had repudiated the claim of the complainant vide letter,Ex.C7 dated 4.9.2014 but when the Op realized that the period of Exclusion Clause in respect of the disease Hypertension given under Sr.No.xvii is two years, they thought of repudiating the claim of the complainant under Exclusion clause 4.7 so as to state that the complainant had abused alcohol or intoxicating substances but as discussed the Op has utterly failed to show that  the cause of CAD Acute Inferior wall MI and hypertension RHD Mild MR/Moderate LVEF 45-50% was due to heavy smoking. Consequently, we are of the considered view that the Op had no justification in repudiating the claim of the complainant.
20. Now coming to the entitlement of the complainant regarding the reimbursement of his claim, the complainant has produced the bill,Ex.C14 dated 11.1.2014 showing the date of admission as 5.1.2014 and date of discharge as 11.1.2014 for Rs.3,65,429.79 , out of which a discount of Rs.20,000/- was provided. The complainant had already deposited Rs.3lacs and he had to deposit a sum of Rs.45,429,79 more . Thus the complainant is entitled to the reimbursement of a sum of Rs.3,45,429.79. We cannot award the amount of settlement receipt,Ex.C13 dated 11.1.2014 because it pertains to the amount deposited by the complainant with the Op in connection with the treatment and is not a bill for the treatment. Similarly, we cannot disburse the claim in respect of the invoice-cum-receipt dated 22.2.2014, issued by Max Super Speciality Hospital, because the complainant got himself treated from the said hospital during the period 5.1.2014 to 11.1.2014 and the said receipt-cum-bill is dated 22.2.2014. Accordingly, we accept the complaint and direct Op no.1 to make the payment of Rs.3,45,429.79 to the complainant with interest @9% from the date of the repudiation made vide letter Ex.C7 dated 4.9.2014 till final payment. In view of the facts and circumstances of the case, the complaint is accepted with costs assessed at Rs.5000/-.The order be complied by the Op within one month on receipt of the certified copy of the order.
21.  

Dated:4.6.2015

 

                                      Neelam Gupta                        D.R.Arora

                             Member                                  President