| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C.No. 175 of 5-7-2018 Decided on : 22-6-2023 Ajay Bhandari aged about 57 years S/o Sh. Labhu Ram Bhandari/OHIG 1422, Model Town, Phase-I, Bathinda. ........Complainant Versus Oriental Insurance Co. Ltd., 4501, Bank Street, Bathinda-151001, through its Divisional Manager. M/s Medi Assists India, No.4/1, IBC Knowledge Park, Tower “D” 4th Floor, Bannerghatta Road, Bangalore-560029, through its Manager/Incharge.
.......Opposite parties Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh. Lalit Mohan Dogra, President Sh. Shivdev Singh, Member Present : For the complainant : Sh. Naresh Garg, Advocate. For opposite parties : Sh. Vinod Garg, Advocate. ORDER Lalit Mohan Dogra, President The complainant Ajay Bhandari (here-in-after referred to as complainant) has filed this complaint U/s 12 of Consumer Protection Act, 1986, ( Now C.P. Act, 2019 here-in after referred to as 'Act') before this forum (Now Commission) against Oriental Insurance Co. Ltd. & another (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that opposite party No.1 issued one Medi-Claim Insurance policy No.233200/48/2017/103 w.e.f. 10.04.2016 to 09.04.2017 under cashless scheme through P.N.B., Bathinda with TPA opposite party No.2 under the scheme of PNB-Oriental Royal Mediclaim Policy to their Account Holders. In the said policy, complainant Ajay Bhandari & his wife Amita Rani are duly insured under cashless for Rs.5,00,000/- each and the said insurance is continuous insurance. As per said Medi claim Insurance any person of the policy Holder can avail the Insurance upto Rs.5,00,000/- on the 1st basis or both can use the said amount i.e. upto Rs.5,00,000/-. The opposite parties again renewed the insurance from 2017 to 2018. The opposite parties never issued any complete policy to the complainant till date, rather they have issued Insurance certificate only. The said insurance is cashless insurance with the opposite parties. The opposite parties also assured the complainant that in case of any emergency, the claim can be lodged in anywhere in India. It is further alleged that the complainant has no problem of heart or any other diseases and HTN (Hypertension) etc. and he never undergone any hospitalization in the past history. The complainant has only minor hypertension, as such there is no question of concealment of pre-existing disease. It is alleged that complainant first time on 25-2-2017, all of sudden, had some health problem and got himself checked on 01.03.2017 from Dr. Naresh Goyal at Delhi Heart Institute & Multispecialty Hospital, Bathinda and angiography was performed on 02.03.2017. After angiography doctors referred the complainant to New Delhi and the complainant was immediately shifted to Medanta The Medicity, New Delhi on the intervening night of 03/04.03.2017 and discharged on 21.03.2017 wherein surgery was done on 08.03.2017. It is alleged that the family of the complainant lodged cashless claim with the said Hospital. The complainant was duly treated by Dr. Naresh Trehan at Medicity and Cardio-Thoracic Vascular was performed on 08.03.2017, which revealed (TVD) (Triple Vessel Disease) which was done in same sitting and complainant was discharged on 21.03.2017 in a stable condition. The above said treated doctor also duly mentioned in the treatment record that the complainant had no History of HTN. Moreover, the doctor never prescribed any medicine of HTN to the complainant even at the time of treatment in the hospital or even after discharge from the Hospital. The complainant alleged that he spent Rs.5,800/- + Rs.5,51,837/- = Rs.5,57,637/- for stent, treatment and Medicine charges etc. and the original Bills with original treatment file were submitted with the opposite parties for reimbursement of the same. The complainant alleged that opposite parties firstly not provided cashless treatment from the above said Hospital and thereafter they did not reimburse the expenses incurred by complainant from his pocket. On 06.02.2018 the complainant requested the opposite parties to pay claim amount, but the opposite parties neither replied the same nor paid the claim to the complainant. The opposite parties again demanded the documents and then on 13.03.2018, complainant again sent all the original medical bills including hospital bills, medicine bills and diagnosis bills along with receipts, original medical files with copies of discharge summaries. It is also alleged that on 25.04.2018 the complainant again sent the reminder regarding reimbursement of claim amount but to no effect rather the opposite paries again and again demanded the same documents. The complainant never received any letter except denial of cashless treatment vide which it was conveyed that the claim file has been closed on the ground of 3 years exclusion clause of pre-existing disease. It is again stated that no such exclusion clause was supplied to the complainant till date. The insurance is continuous since 2015. The complainant was neither having any history of heart problem prior to 25.02-2017 nor was he hospitalized before 01.03.2017. The said claim of Rs.5,57,6371- is withheld and is still pending with the opposite parties. The complainant also alleged that due to non-payment of claim amount of Rs.5,00,000/- by the opposite parties, he is suffering from mental agony and pain for which he claims compensation to the tune of Rs.1,00,000/-. On this backdrop of facts, the complainant has prayed for directions to the opposite parties to pay claim amount of Rs. 5,00,000/- in addition to Rs. 1,00,000/- as compensation besides Rs. 50,000/- as litigation expenses. Upon notice, opposite parties appeared through counsel and contested the complaint by filing joint written reply raising legal objections that intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in summary procedure under C.P. Act and appropriate remedy, if any, lies at the Civil Court. That complainant has concealed material facts and documents from this Commission as well as the opposite parties therefore the complainant is not entitled to any relief. It has been pleaded that the complainant has concealed the fact that the cashless request was denied by opposite party No. 2 as it was suspected to be a case of pre-existing disease as there is two years waiting period for hypertension as per policy terms and conditions. The above said fact was also intimated by opposite party No.1 to the complainant vide letter dated 21.02.2018. There is a delay of 367 days in submitting claim papers and the complainant was called upon to explain the reasons thereof. The complainant has violated mandatory terms and conditions of the insurance policy including condition No. 5.5 which makes it mandatory that the claim has to be submitted along with detailed claim and documents within 7 days from the date of discharge from hospital. Further, the opposite party No.2 (TPA) sent email dated 16.07.2018 asking for submission of final hospital bill with bill number for Rs.4,52,750/- (The provided intermediate Bill was without bill number and signature and seal of hospital authority), Proper detailed final bill with break up with pre-numbered cash paid receipt for Rs.75,258/- (The provided intermediate Bill was without bill number and signature and seal of hospital authority), pre-numbered cash paid receipt for remaining charges of Rs.1,07,780/-, pre-numbered cash paid receipt for the charges of Rs.10,709/- dated 23.03.2018, letter from treating doctor stating duration of hypertension, diabetes mellitus and heart disease and to clarify the reasons for delay in submission of claim documents and to get concurrence from opposite party No.1 insurer to condone the delay in submission of claim documents. The complainant did not submit these documents and clarifications rather filed the present complaint on false grounds, which is premature. The opposite parties reserves a right to decide the claim as and when the claim is submitted along with above said documents and verifications as per terms and conditions of the policy. So, no amount is payable at this stage. The other legal objections are that the complaint is liable to be dismissed for non joinder of necessary parties as the complainant has not impleaded Punjab National Bank, who is otherwise necessary party to the present complaint. The complainant is not the consumer of the opposite parties. The complainant has no locus standi or cause of action to file the present complaint against opposite parties. The complaint is not maintainable in the present form and is liable to be dismissed. On merits, opposite parties have reiterated their version as pleaded in legal objections and detailed above. After controverting all other averments of the complainant, the opposite parties prayed for dismissal of complaint. In support of his complaint, the complainant has tendered into evidence his affidavit dated 5.7.2018 (Ex.C-1) and documents (Ex.C-2 to Ex.C-20). In order to rebut the evidence of complainant, the opposite parties have tendered into evidence affidavit of Roop Lal Baleem Dated 23.8.2018 (Ex. OP-1/6) and documents (Ex.OP-1/1 to Ex.OP-1/5). The learned counsel for the complainant has argued that complainant alongwith his wife had obtained PNB Oriental Royal Mediclaim Policy and were duly covered for cashless treatment upto Rs. 5.00 Lacs each. It is further argued that during continuation of policy, all of sudden, on 25-2-2017, complainant suffered from health problem and consulted doctor on 1-3-2017 at Delhi Heart Institute & Multispeciality Hospital, Bathinda, wherein angiography was peformed on 2-3-2017 and thereafter complainant was shifted to Medanta The Medicity, New Delhi and surgery was performed there on 8-3-2017. The complainant had spent Rs. 5800/- at Delhi Heart Hospital and Rs. 5,51,837/- at Medanta The Medicity, New Delhi. The family of the complainant lodged cashless claim with the said hospitals. However, the said claim was denied by the opposite parties. The opposite parties, thereafter, unnecesssarily kept on demanding the documents and on 13-3-2018, complainant sent all the document demanded by the opposite parties. However, the opposite parties had closed the claim file of the complainant on false and flimsy grounds i.e. within 3 years exclusion of pre-existing dissease. It is further argued that no such exclusion clause was ever supplied to the complaiant till date. Learned counsel for complainant has further argued that the opposite parties cannot refuse to pay amount in dispute in respect of claim of complainant on the ground of alleged terms and conditions, which were never supplied or explained to complainant at the time of inception of insurance policy. In this regard, he placed reliance on citations : (i) 2001(1)CPR 93 (Supreme Court) 242 titled as M/s Modem Insulators Ltd Vs The Oriental Insurance Company Ltd, wherein Hon'ble Apex Court held that clauses which are not explained to complainant are not binding upon the insured and are required to be ignored. Furthermore, it is generally seen that Insurance Companies are only interested in earning the premiums and find ways and means to decline the claims. (ii) 2008(3)RCR (Civil) Page 111 titled as New India Assurance Company Ltd Vs Smt Usha Yadav & Others, wherein Hon'ble Punjab & Haryana High Court held that it seems that Insurance Companies are only interested in earning premiums and find ways and means to decline the claims. The conditions, which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any Policy. The Insurance Companies in such cases rely upon the clauses of agreement which a person is generally made to sign on dotted lines at the time of obtaining the policy. (iii) 2012(1) RCR (Civil) 901 titled as IFFCO TOKYO General Insurance Company Ltd Vs Permanent Lok Adalat (Public Utility Services), Gurgaon and others, wherein Hon'ble Punjab and Haryana High Court held that Contract Act, 1872 - Insurance Act, 1938-contract among unequal Validity Mediclaim Policy -Exclusion Clause Pre Existing Disease - Exclusion Clause is standard form of contracts when bargaining power of the party is unequal and consumer has no real freedom to contract-Courts can strike down such unfair and unreasonable clause in a contract where parties are not equal in bargaining power. So deficiency stand proved and the opposite party Nos. 1 & 2 have incorrectly refused the payment of the claim. On the other hand, learned counsel for the opposite parties has argued that complainant has concealed the fact that cashless request was denied by opposite party No. 2 as it was a case of suspected to be a case of pre-existing disease as there was two years waiting period of hypertention as per policy terms and conditions. It is further argued that there is delay of 367 days in submitting the claim papers and as such, complainant has violated policy condition No. 5.5 which mandates that claim has to be submitted alongwith detailed claim form and documents within 7 days from the date of discharge from hospital and has pleaded that there is no deficiency in service and has prayed for dismissal of complaint. We have heard learned counsel for the parties and gone through the case law cited by learned counsel for the complainant and the evidence on file. It is admitted fact that complainant and his wife have obtained PNB-Oriental Royal Medi-claim Policy and both the complainant and his wife are duly covered for cashless treatment upto Rs., 5.00 Lacs. The complainant and his wife had obtained the said policy from 10-4-2015 to 9-6-2016 which is Ex. C-2 and thereafter said policy was continuously renewed as per Ex. C-3 & Ex. C-4. It is further admitted fact that cashless claim lodged by complainant in respect of amount of Rs.5,57,637/- was declined by the opposite parties and thereafter claim filed by complainant was also declined on the ground that it was a suspected case of pre-existing disease and as there is 2 years waiting period for hypertension as per policy terms and conditions. However, this Commission is of the view that complainant is insured for cashless treatment w.e.f. 10-4-2015 and complainant for the first time suffered health problem on 25-2-2017 which is approximately one month less than alleged period of two years as claimed by opposite parties No. 2 & 3. However, a perusal of record shows that treating doctor had issued certificate dated 2-3-2017 as per which it is clearly mentioned that “Duration of DM and HTN – Patient don't have any history of DM and HTN.” The opposite parties have not placed on file any record to this effect that complainant was already suffering from alleged disease and complainant fraudulently obtained policy of insurance by concealing alleged disease. As such, this Commission is of the view that refusal and denial of claim to the complainant by the opposite parties on the basis of exclusion clause, amounts to deficiency in service. Reliance can be placed upon the judgment of Hon'ble Apex Court in case New India Assurance Co. Ltd. & Ors. Vs. Paresh Mohanlal Parmar, 2020(2) RCR (Civil) 1006 in which it has been held as under:- “Consumer Protection Act, 1986 Section 23 Burglary and house breaking insurance policy-Non informing of terms and conditions to insured-Compensation-Held, in absence of insued being made aware of terms of exclusion, not open to insurer to rely upon exclusionary clauses.” Moroever in this case, opposite parties have neither proved nor pleaded that such exclusion clauses were ever explained or served upon the complainant. As such, this Commission is of the view that opposite parties cannot take shalter of such clauses to deny the rightful claim of the complainant and denial of claim to the complainant amounts to deficiency in services on the part of opposite parties. Accordingly, present complaint is partly allowed and opposite parties are directed to pay the claim amount of Rs. 5,00,000/- i.e. sum assured, as per policy of insurance, to complainant, alongwith interest @9% p.a. from the date of filing of complaint till realization. The complainant is also held entitled to compensation of Rs. 5,000/- on account of mental tension and harassment and cost of litigation. The compliance of this order be made by the opposite parties jointly and severally within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record room. Announced:- 22-6-2023 - (Lalit Mohan Dogra)
President (Shivdev Singh) Member
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