O R D E R
K.S. MOHI, PRESIDENT
The complainant has filed the present complaint against the O.Ps u/sec. 12 of Consumer Protection Act, 1986. The facts as alleged in the complaint are that the complainant had taken a mediclaim policy for Rs.4,50,000/- vide insurance policy bearing No.271601/48/2013/631 valid for the period from 17.06.2012 to 16.06.2013 from the O.P-1. On 27.12.2012 complainant suffered with some health problem i.e. pain in the chest and was admitted in Fortis Escort Heart Institute and Research Centre Ltd., Okhla Road, New Delhi. It is alleged that on being examined by the Doctors the complainant was advised to undergo a heart surgery as there was blockage in the artery. The complainant was treated by Dr. Ashok Seth and stenting was given effect to. Thereafter the complainant was discharged on 29.12.2012. It is further alleged that the final bill raised by the Hospital stood at Rs.3,76,200/- and the O.P-2 reimbursed Rs.2,31,400/- to the complainant leaving a balance of Rs.1,44,800/-. It is alleged that the remaining amount of Rs.1,44,800/- was paid by the complainant to the Hospital on the assurance from the O.Ps that the same would be reimbursed to the complainant at the earliest. It is further alleged that the complainant has been repeatedly reminding and requesting the O.Ps to reimburse the amount paid by him but of no avail. On 04.01.2013 the complainant sent a letter to the O.P-1 giving details of the amount to be reimbursed and requesting the O.Ps to remit the amount of Rs.1,44,800/-. It is alleged that in reply to the said letter dated 04.01.2013 the O.P-2 proposed to close the claim of the complainant by paying a sum of Rs.9,300/- against the amount of Rs.1,44,800/-. Complainant has also sent a legal notice dated 19.03.2013 but to no avail. On these facts complainant prays that O.Ps be directed to pay the mediclaim amount of Rs.1,46,340/- with interest @ 18% p.a. and also to pay cost and compensation as claimed.
2. O.P-1 appeared and filed written statement. In his written statement O.P-1 has not disputed that complainant had taken policy refer to above. It has also not been disputed that complainant was admitted in Hospital for treatment of pain in chest for the period from 27.12.2012 to 29.12.2012. It has also not been disputed that the complainants have filed a claim in respect of the said treatment. It is alleged that O.P-1 appointed M/s Vipul Med Corp. a Third Party investigator to investigate and settle the claim of the complainant. On processing the claim a sum of Rs.2,31,400/- was paid by the O.P towards the settlement the claim of the complainant. It is further alleged that after receiving a representation from the side of the complainant a sum of Rs.9,300/- was paid to the complainant and in this manner a total sum of Rs.2,40,700/- was paid by the O.P-1 towards the full and final settlement of the claim of the complainant. It is alleged that the complainant was also intimated by the O.P regarding the non-payment of the remaining amount of the hospital bill raised by the complainant as the same was not payable by the O.P-1 as per the terms and conditions of the insurance policy. Dismissal of the complaint has been prayed for.
3. Complainant has filed his affidavit affirming the facts alleged in the complaint. He has also proved documents exhibited as Ex. CW-1/1 to CW-1/13. On the other hand Shri Satish Kumar Sharma, Divisional Manager has filed affidavit in evidence on behalf of O.P-1 (OIC) testifying all the facts as stated in the written statement. Parties have also filed their respective written submissions.
4. We have considered the submissions raised by counsels for the parties and have also perused the record.
5. The case of the complainant is that he had submitted the claim for a sum of Rs.3,76,200/- towards medical expenses on account of illness for the O.P process the same by sum of Rs.2,31,400/-. It has further stated that further sum of Rs.9,300/- has also paid by O.P-1 thereby totaling a sum of Rs.2,40,700/- out of the claim sum of Rs.3,76,200/- leaving a sum of Rs.1,35,500/-. Case of the O.P, on the other hand is that acting upon the terms and conditions of the policy, the full payment could not be made to the complainant. The case of O.P is that a sum of Rs.500/- towards misc. charges and another sum of Rs.1,000/- towards admission charges were not made as per the terms and conditions of the policy. It has been further stated that policy clause 1.1 provides that company will pay to the insured the amount of such expenses which are reasonably and necessarily incurred and clause 3.12 explains reasonable and customary expenses being reasonable and customary surgical medical treatment expenses to treat the condition for which the insured person was hospitalized and policy clause 13.1 provides that reasonable and customary expenses for networked hospital would mean the rate pre-agreed between networked hospital and the TPA for surgical/ medical treatment. It is also case of O.P that patient was treated in Forties/ Escorts Heart Institute where the package were fixed for heart surgery. Plus 3 choices are given for stents:-
- Imported medicated stent for Rs.1,18,000/-.
- Indigenital Medical Stent Rs.66,500/-.
- Bare Medical Stent Rs.5,500/-.
6. Now it is to be seen whether the insurance was justified in deducting the medical expenses of the injured or not. The answer is in the negative. It is a well settled law that where medical claim is sought by the insured the terms and conditions of the policy will automatically come into play and would decide the real controversy existing between the parties. We have perused the policy which as such does not contain the alleged terms and conditions but merely provides that policy shall pay for hospitalization expenses for medical/ surgical treatment taken as an in-patient at any Nursing Home/ Hospital in INDIA as defined in the policy. Obviously nothing has been mentioned in the policy itself. However, the O.P has taken the shield to evade the claim under the so called terms and conditions which do not form part of the policy but it is a separate document which was never furnished to the insured at the time of execution of the policy. Therefore, the O.P was unjustified in rejecting the claim of insured on the basis of terms and conditions which were never supplied to him. In case titled IV (2014) CPJ 14A (CL) HAR. Oriental Insurance Co. Ltd. Vs Vivek Rekhan, the claim filed on the basis of mediclaim policy was repudiated by the insurance company on the basis of exclusion clause. The court held that the insurance company vaguely denied without pointing out as to in which manner and on which date terms and condition were supplied to the complainant. Therefore, unless terms and condition have been supplied to the complainant before taking a policy, exclusion clause cannot be enforced. In another case titled I (2000) CPJ 1 (SC) M/s Modern Insulators Ltd. Vs Oriental Insurance Co. Ltd., it was held that it is the fundamental principle of insurance law, that utmost good faith, must be observed by the contracting parties, and good faith forbids either party, from non-disclosure of the facts, which the parties knew. The insured has a duty to disclose all the facts, and similarly it was the duty of the insurance company, and its agents, to disclose all the material facts, in their knowledge, as obligation of good faith applies to both equally.
7. It is for the forgoing reasons that insurance company was under obligation to disclose all the facts and circumstances relating to the insurance policy including the terms and conditions coupled with the exclusion clause. Since terms and conditions were not supplied to the complainant, he was neither aware of the exclusion nor was bound by the same.
8. Keeping in view the discussion above the O.Ps repudiate the claim on frivolous grounds, therefore, deficiency in service. We award a sum of Rs.1,35,500/- with interest @ 6% from the date institution of the complaint till payment, the further award of Rs.2,500/- towards harassment mental agony loss of time and Rs.2,000/- towards litigation cost.
Copy of this order be sent to the parties as per rules.
Announced this 07th day of Decemebr, 2015.
(K.S. MOHI) (SUBHASH GUPTA) (SHAHINA)
President Member Member
