| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C. No. 251 of 20-09-2018 Decided on : 21-04-2022 Krishna Devi Garg aged about 71 years W/o Sh. Madan Lal Garg R/o #5146 Cozy Home, Nai Gasti, Gali No. 6, Bathinda 151 001. ........Complainant
Versus Oriental Insurance Co. Ltd., 4501 Bank Street, Bathinda, through its Divisional Manager. Raksha Health Insurance TPA Pvt.Ltd., SCO 359-260, Ist Floor, Sector 44-D, Chandigarh 160 047, through its Manager/Authorized Signatory .......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh. Kanwar Sandeep Singh, President Sh. Shivdev Singh, Member Smt. Paramjeet Kaur, Member Present For the complainant : Sh. Naresh Garg, Advocate. For opposite parties : Sh.M L Bansal, Advocate, for OP No. 1. OP No. 2 exparte. ORDER Kanwar Sandeep Singh, President The complainant Krishna Devi (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 Company Limited and another (here-in-after referred to as opposite parties). Briefly stated the case of the complainant is that she is having one bank account with opposite party No. 1 and opposite party No. 1 issued Medi-claim insurance policy No. 233200/48/2018/2801 w.e.f. 10-11-17 to 9-11-18 under cashless scheme at Bathinda through Oriental Insurance Company with TPA opposite party No. 2 under the scheme of Orietal Bank Medi-claim Policy to their account holder and cashless card with ID No. 055619121629 was issued in this regard. It is alleged that previously, the complainant was insured with the opposite parties through same OBC Bank from 02.03.2016 but the opposite parties neither informed nor renewed the Insurance in 2017. When lapse came to the knowledge of the complainant, she immediately got renewed the policy from 10.11.2017 to 9.11.2018. The complainant, being illiterate lady, was not aware of the technicalities of the Insurance. The Bank Manager of OBC and the opposite parties at the time of selling the Insurance in the year 2016, assured, that they will provide best services and that the Insurance will be renewed automatically from the Bank Account of the complainant, but they miserably failed of meet their assurance. The complainant alleged that as per said Medi claim Insurance, policy holder can avail the Insurance upto Rs.3,00,000/-. The opposite parties never issued any complete policy to the complainant till date, rather they have issued only Insurance certificate. The opposite parties also assured the complainant that in case of any emergency, the claim can be lodged in anywhere in India with the nearest offices of the opposite parties and can get herself admitted in any hospital in India. The opposite parties also assured that this is the cashless insurance and the opposite parties shall pay the entire claim upto the sum assured i.e. Rs.3,00,000/- directly to the hospital. It is alleged that on 5-1-18, complainant slipped down from the stairs and sustained injuries. Son of the complainant, admitted her in Jaura Orthopaedic & Maternity Hospital, Bathinda on 05.01.2018 where she remained admitted and was discharged on 08.01.2018. The complainant spent Rs.17,249/- for treatment and Medicine charges etc., The original bills with original treatment file was submitted with the opposite parties for reimbursement and the said claim of Rs.17,249/- is still pending with the opposite parties. The complainant also alleged that second time, she was admitted with the problem of Phacomorphic glaucoma (LE) and had to undergo cataract surgery as an emergency procedure. The said problem is not pre existing deceases. The complainant was admitted in Grover Hospital, Bathinda on 05.06.2018 and was discharged on 08.06,2018. The complainant spent Rs.31,502/- for treatment and medicine charges etc., Original bills with original treatment file submitted with the opposite parties for reimbursement and the said claim of Rs.31,502/- is still pending with the opposite parties. It is further alleged that 3rd time, complainant was admitted with the problem of Right Eye Cataract with corneal opacity with glaucoma and was admitted in Max Super Speciality Hospital, Bathinda on 14.06.2018 and was discharged on the same day. The complainant spent Rs.39,763/- on treatment and medicine charges etc., and the original bills with original treatment file was submitted with the opposite parties for reimbursement of the same and said claim of Rs.39,763/- is still pending with the opposite parties. The complainant alleged that her son repeatedly requested the opposite parties to release the claim of Rs.17,249/- but finally on 11.06.2018 & 20.06.2018, the opposite parties rejected the claim of Rs.17,249/- on the flimsy ground that "Hospital inpatient facility was not allowed to check by the doctor. In absence of indoor case papers and hospital verification, the claim falls out of scope of the policy. Claim non payable" as per clause 2.1. and such Exclusion Clause was never supplied to the complainant. It is further alleged that thereafter complainant requested the opposite parties to release the claim of Rs.31,502/- but finally on 21.06.2018 & 29.06.2018 the opposite parties rejected the claim of Rs.31,502/- on the flimsy ground that "Expenses related to cataract are payable after 2 years as per policy terms & conditions, policy is in first year. So, that the claim is recommended to be non-payable". as per clause 4.2. The said decease was not pre existing and moreover, the Policy was not in Ist Year. The amount of Rs.31,502/- is still pending with the opposite parties. The complainant also alleged that she requested the opposite parties to release the claim of Rs.39,763/-, but finally on 02.07.2018, 10.07.2018 & 11.07.2018, the opposite parties rejected the claim of Rs.39,763/- on the flimsy grounds that "Expenses related to cataract are payable after 2 years as per policy terms & conditions and policy is in first year, so, claim is recommended to be non-payable" as per clause 4.2. It is further alleged that complainant repeatedly requested the opposite parties for releasing the claim of Rs.88,514/- ( i.e.1.7,249/- (+) Rs.31,502/- (+) Rs.39,763/-) but the opposite parties rejected the claim of Rs. 88,514/- on the above said flimsy grounds. Due to non-payment of Rs.88,514/- as detailed above, the complainant suffered mental agony and pain for which she claims compensation to the tune of Rs.50,000/-. On this backdrop of facts, the complainant has prayed for directions to the opposite parties to pay claimed amounts i.e. Rs. 17,249/- with interest w.e.f. 8-01-2018; Rs. 31,502/- with interest w.e.f. 8-6-18; Rs. 39,763/- with interest w.e.f. 14-6-18 in addition to Rs. 50,000/- as compensation besides Rs. 25,000/- as litigation expenses. Registered notice of complaint was sent to the opposite parties. None appeared on behalf of opposite party No. 2. As such, exparte proceedings were taken against opposite party No. 2. The opposite party No. 1 put an appearance through counsel and contested the complaint by filing written reply raising legal objections that the complaint has been filed by the complainant only to injure the goodwill and reputation of the opposite party. Even otherwise, the complaint is false, frivolous vexatious, to the knowledge the of complainant. That the intricate questions of law & facts are involved in the present complaint, which requires voluminous documents and evidence for determination which is not possible in the summary procedure under the 'Act'.That the complainant has concealed material facts and documents from this Commission. It has been pleaded that the true facts are that on receipt of claim papers regarding first claim for Rs.17,249/- from the complainant, the claim of the complainant was referred to opposite party No.2. The opposite party No.2 has processed the claim and found that case of the complainant fall out of the scope of the policy as Hospital Inpatient facility was not allowed to check by the Doctor. In absence of indoor case papers and hospital verification, claim is not payable as per clause 2.1. Accordingly, opposite party No. 2 repudiated the claim of the complainant vide letter dated 20.06.2018 and intimation in this regard was given to the complainant by opposite party No. 1 vide registered letter dated 20.06.2018. It has also been pleaded that as regards the 2nd and 3rd claim of the complainant to the tune of Rs.31,502/- and Rs.39,763/- respectively, both the claims were referred to opposite party No. 2 and while processing the claims, opposite party No. 2 observed that as per policy terms & conditions, expenses related to cataract are payable after 2 years whereas the policy is in 1st year. Accordingly, both the claims of the complainant were repudiated by opposite party No. 2 vide their letter dated 21.06.2018 and 2.7.2018 respectively as per clause 4.2 and an intimation regarding the same was given to the complainant by opposite party No. 1 vide registered letters dated 29.6.2018 and 10.07.2018 respectively. However, the complainant has filed the present complaint on flimsy grounds by twisting the actual facts. Further legal objections are that the the complaint is bad for non-joinder of necessary parties. The complainant has not impleaded OBC Bank as party to the complaint. That the complainant has no locus standi or cause of action to file the present complaint. That the complaint is not maintainable in its present form. That the complainant is not consumer as there is no deficiency in service or unfair trade practice on the part of opposite party No. 1. On merits, it has been pleaded that the complainant herself was under legal obligation to get the policy renewed by making the payment of requisite premium and since, the complainant herself has failed to get her first policy renewed, the same was lapsed as per terms & conditions of the policy. Thereafter, on the request of the complainant, fresh/new policy was issued and as per terms and conditionn of the policy, the policy was/is in first year. The opposite party No. 1 has pleaded that complete policy documents including terms conditions thereof were issued to the complainant. Moreover, it is well settled law that a consumer is supposed to get herself aware about the terms & conditions of the policy before signing the proposal form. Thus, there is presumption that complainant submitted the proposal form after getting herself aware about the terms & conditions of the policy. The claim, if any, was/is to be settled only as per terms & conditions of the policy. Since all the three claims have already been repudiated, so the question of releasing the alleged claim amount does not arise at all and all the three claims of the complainant has rightly been repudiated. After controverting all other averments of the complainant, the opposite party No. 1 prayed for dismissal of complaint. In support of her complaint, the complainant has tendered into evidence her affidavit dated 20-9-18 (Ex. C-1), photocopy of policy (Ex. C-2), photocopy of ID Cards (Ex. C-3 & Ex. C-4), photocopy of medical file (Ex. C-5), photocopy of bills (Ex. C-6), photocopy of claim form (Ex. C-7), photocopy of medical file (Ex. C-8), photocopy of bills (Ex. C-9), photocopy of claim form (Ex. C-10), photocopy of medical file (Ex. C-11), photocopy of bills (Ex. C-12), photocopy of claim form (Ex. C-13), photocopy of no claim letters (Ex. C-14 to Ex. C-20). In order to rebut the evidence of complainant, opposite party No. 1 tendered into evidence affidavit dated 2-11-2018 of Ashwani Kumar (Ex. OP-1/1), photocopy of letters (Ex. OP-1/3 to Ex. OP-1/5), photocopy of break-up detail (Ex. OP-1/6), photocopy of letters (Ex. OP-1/7 & Ex. OP-1/8), photocopy of claim forms (Ex. OP-1/9 & Ex. OP-1/10), photocopy of final bills (Ex. OP-11), photocopy of letters (Ex.OP-1/12 to Ex. OP-1/14), photocopy of envelop (Ex. OP-1/15), photocopy of bills (Ex. OP-1/16 to Ex. OP-1/18), photocopy of certificate (Ex. OP-1/19) and photocopy of letters (Ex. OP-1/20 & Ex. OP-1/21). The opposite party No. 1 also tendered into additional evidence terms and conditions (Ex. OP-1/22). The learned counsel for complainant and opposite party No. 1 reiterated their stand as taken in their respective pleadings and detailed above. We have heard learned counsel for the parties and gone through the record. There is no dispute between the parties that complainant was insured vide Oriental Bank Mediclaim Policy No. 233200/48/2018/2801 for the period from 10-11-2017 to 9-11-2018 for the sum insured of Rs. 3,00,000/- (Ex. C-2/Ex. OP-1/2). The complainant has alleged in para No. 2 of her complaint that peviously she was insured with the opposite parties from 2-3-2016 but the opposite parties neither informed nor renewed the insurance in 2017 and when it came to her notice, she immediately got the policy renewed, but complainant has not placed on file the said previous policy. In the case in hand, the complainant filed three claims with the opposite parties and all the three claims have been repudiated by the opposite parties. The first claim of the complainant is that on 5-1-18, she slipped down from the stairs and sustained injuries and remained admitted in Jaura Orthopaedic & Maternity Hospital, Bathinda from 05.01.2018 till 08.01.2018. The complainant spent Rs.17,249/- on her treatment and Medicine charges etc., The complainant filed claim with the opposite parties and her claim was repudiated vide letter dated 20-6-2018 (Ex. C-14) under Clause 2.1 of the policy. Clause 2.1 of the policy (Ex. OP-1/22) reads as under :- Hospital/Nursing Home ; a hospital/nursing home means any institution established for in-patient care and day care treatment of illness and/or injuries and which has been registered as a hospital with the local authorities under the clinical establishments (Registration and Regulations) Act, 2010 or under the enactments specified under the schedule of Section 56(1) of the said Act or complies with all minimum criteria such as – has qualified nursing staff under its employment round the clock; has at least 10 in patient beds, in towns having a population of less than 10,00,000 and 15 inpatients beds in all other places; has qualified medical practitioner(s) in charge round the clock; has a fully equipped operation theater of its own where surginal procedures and carried out; maintain daily records of patients and makes these accessible to the insurance company's authorized personnel. The terms Hospital/Nursing Home shall not include an establishment which is a place of rest/or recuperation, a place for the aged persons, a rehabilitation centre for drug addicts or alcoholics, a hotel or a similar place. In the case cited as 2010 (1) CPJ 189 titled New India Assurance Co. Ltd., & Anr. Vs. Arun Kumar Mangal, Hon'ble State Commission, Punjab, has held that :- “..16. It appears really surprising if the insured has first of all to find out if the hospital where he was going to get the medical treatment falls within the terms and conditions of the insurance policy. His first concern obviously is to get the medical treatment and then to claim the reimbursement. It appears unreasonable for the Insurance Companies to insist that the insured should first find out the specifications of the hospital and only then he should get the admission or start getting medical treatment, although he may die while searing for the said hospital. Therefore, these conditions appear to be uncreasonable. Hon'ble Punjab & Haryana High Court in CWP No. 22482 of 2017 (O&M) D/d 14-1-2019 case titled Ram Pal Vs. Central Administrative Tribunal and Others has held :- “Medical Reimbursement Claim – Cannot be rejected solely on ground that Hospital where he was treated was not included in Government Order.” Therefore, repudiation of claim by the opposite parties on the ground that Hospital Inpatient facility was not allowed to check by the Doctor and in absence of indoor case papers and hospital verification, claim is not payable as per clause 2.1, is not sustainable. The complainant filed second and third claim to the tune of Rs.31,502/- and Rs.39,763/- respectively regarding cataract surgery. The opposite parties repudiated both the claims vide letters dated 29-6-18 & 10-7-2018 (Ex. C-16 & Ex. C-18) under clause 4.2 of the policy on the ground that the expenses related to cataract are payable after 2 years whereas the policy was in 1st year. A perusal of file reveals that opposite parties tendered in evidence insurance policy in question on 20-11-2018 and no terms and conditions were attached with it. Thereafter, opposite parties tendered in additional evidence terms and conditions of the said policy. Production of terms and conditions in additional evidence at later stage itself suggests that these terms and conditions were not supplied to complainant. Terms and Conditions placed on file (Ex. OP-1/22) does not bear the signatures of complainant and even it does not bear the signatures of the Insurance Company. Hon'ble State Commission in the case New India Assurance Co. Ltd., & Anr. Vs. Arun Kumar Mangal (supra) has also observed in Para No. 18 that : “The law has been settled by the Hon'ble Supreme Court in a number of judgement that when the Insurance Companies want to apply the Exclusion Clause to deny the Insurance claim, they have to prove the Exclusionary Clause was duly communicated to the insured and it was duly signed by him. Reference can be made to the judgement reported as M/s. Modern Insulators Ltd., Vs. Oriental Insurance Co. Ltd., 2000 (1) CPJ 1 (SC) in which it was held : 9. In view of the above settled position of law, we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of standard policy wherein the exclusion clause was included were neither a part of the contract or insurance or disclosed to the appellant, respondent cannot claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.” Thus, the complainant is not bound by such terms and conditions which were never supplied to her. Hence, repudiation of claims of complainant under clause 4.2 on the ground that expenses related to cataract are payable after 2 years whereas the policy was in 1st year, is not justified. The opposite party No. 1 has based its case on the observations of opposite party No. 2, but opposite party No. 2 did not appear and contest the complaint. Further opposite party No 1 did not dispute the amount of claim. In the result, this complaint is partly allowed with Rs 5,000/- as cost and compensation. The opposite parties are directed to pay aforesaid three claims to complainant i.e. Rs. 88,514/- (Rs. 17,249/- + Rs. 31,502/- + Rs. 39,763/-) with interest @8% p.a. w.e.f the date of respective repudiation, till payment. 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 covid pandemic and heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced : 21-4-2022 (Kanwar Sandeep Singh) President (Shivdev Singh) Member (Paramjeet Kaur) Member
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