Punjab

Faridkot

CC/15/174

Vinod Kumar - Complainant(s)

Versus

Oriental Bank of - Opp.Party(s)

Anil Kumar Chawla

04 Jul 2016

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

Complaint No. :      174

Date of Institution:  17.12.2015

Date of Decision :     4.07.2016

 

Vinod Kumar s/o Sh Diwan Chand r/o Chaudhary Narata Ram Street, Jaitu Tehsil Jaitu, District Faridkot.

                                                                                     ...Complainant

Versus

1. Oriental Bank of Commerce, Jaitu District Faridkot through its Branch Manager.

2. Oriental Insurance Co. Divisional Office, Bathinda through its Divisional Manager.

                                                                                                .......Ops

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum: Sh. Ajit Aggarwal, President,

               Smt Parampal Kaur, Member,

               Sh P Singla, Member.

 

Present: Sh Anil Kumar Chawla, Ld Counsel for complainant,

              Sh R P Goyal, Ld Counsel for OP-1,

              Sh Vinod Monga, Ld Counsel for OP-2.

 

(Ajit Aggarwal, President)

 1                                          Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to make payment of medical insurance claim worth Rs. 1,90,020/- and for further directing OPs to pay Rs 2,00,000/- as compensation for harassment, inconvenience, mental agony and litigation expenses of Rs.20,000/-

2                                     Briefly stated, the case of the complainant is that complainant purchased a Mediclaim Insurance Policy bearing no. 23320048/2015/345 effective from 5.05.2014 to 4.05.2015 vide which complainant was fully insured for his medical claim and at the time of purchasing the said policy, complainant was quite fit and same was released to him after undergoing thorough medical check up. Thereafter, complainant suffered with attack of paralysis and he was admitted in S D Mahabir Dal Hospital, Mata Ram Devi Diagnostic Centre, Old Bust Stand, Bathinda on 16.12.2014 and he remained admitted there and was discharged on 31.12.2014. Thereafter, he remained under treatment of various doctors in other hospitals and got conducted his diagnose and spent Rs.1,90,020/- on his treatment and he is still under treatment and spending for it. After recovery from said ailment, complainant submitted all the relevant bills and record regarding his treatment to OPs vide claim no. 10736760, but OPs kept lingering on the matter on one pretext or the other and vide SMS repudiated the claim of complainant. All this amounts to deficiency in service and trade mal practice on the part of OPs and it has caused harassment and mental agony to complainant for which he has prayed for directions to Ops to pay the insurance claim and Rs.2,00,000/- as compensation besides Rs.20,000/-as cost of litigation. Hence, the present complaint.

3                                       The counsel for complainant was heard with regard to admission of the complaint and vide order dated 21.12.2015, complaint was admitted and notice was ordered to be issued to the opposite party.

4                                    On receipt of the notice, OP-1 filed reply taking preliminary objections that complaint against answering OP is not maintainable as there is no privity of contract between complainant and OP-1 and policy in dispute is issued by OP-2. It is asserted that complaint is bad for misjoinder of parties and bank is a referral agent/facilitator and its role is limited to the extent of providing leads to Oriental Insurance Company ltd and if there is any relationship, then that is between insured/complainant and insurer/Insurance Company. Complaint is not maintainable in the present form and has concealed true and material facts from this Forum. Moreover, it is settled principle of law under Section 230 of Indian Contract Act that an agent can neither sue nor it can be sued except under special circumstances. Complainant is an educated person and he was explained all terms and conditions and benefits of different products of OP-2 and complainant after understanding all the pros and cons of the product of Insurance Company, agreed to purchase the Insurance Policy. Answering OP has simply forwarded the insurance premium on behalf of complainant to OP-2 and there is no deficiency in service on the part of OP-1. However, on merits, OP-1 has denied all the allegations levelled  by  complainant being wrong and incorrect and reiterated that OP-1 did not pursue complainant to purchase policy, rather complainant after understanding all the pros and cons of the Company agreed to purchase the said policy and answering OP has simply forwarded the insurance premium on behalf of complainant to OP-2. Complainant has unnecessarily dragged answering OP in uncalled litigation. It is averred that complainant neither submitted his claim documents nor gave any letter regarding repudiation of his claim to answering OP. All matter relates with OP-2 and answering OP has no role to play in it. It is further averred that there is no deficiency in service on the part of answering OP and all the other allegations levelled have been denied being wrong and incorrect and a prayer for dismissal of complaint is made with costs.

5                                       OP-2 also filed reply taking legal objections that complaint filed by complainant is not maintainable in view of the terms and conditions of policy of insurance as the claim was duly considered by Medi Assist India TPA Pvt ltd and was found the patient Vinod Kumar was admitted with case of Cerebro Vascular Accident, hypertension for which Medical Management was done during hospitalization. Inception of policy is from 5.05.2014 and discharge summary clears that it is a case of hypertension, which requires waiting for two years and this condition is not being fulfilled as per terms and conditions of the policy and therefore, claim of complainant is not permissible and has been rightly denied and there is no deficiency in service on the part of answering OPs. However, on merits, OP-2 has denied all the allegations levelled by complainant being wrong and incorrect and asserted that complainant purchased the said policy bearing no.233100/48/2015/345 valid from 5.05.2014 to 4.05.2015 for Mediclaim of himself and his wife and he was explained all the terms and conditions of the policy, which are also available on the website of OP-2. It is asserted that Discharge Summary recorded by Dr S K Bansal, Bathinda reveals that complainant was admitted with the case of Cerebro Vascular Accident, hypertension for which Medical Management was done during hospitalization, but this ailment holds a waiting period of two years and this conditions is not being fulfilled in present case. Thus, as per terms and conditions of Insurance Policy, Clause 4.2, the claim of complainant was not found permissible and was repudiated and complainant was duly informed about this fact by TPA Medi Assist Pvt Ltd vide letter dt 21.02.2015. It is further averred that complainant lodged claim of Rs1,90,020/-, which was found admissible by TPA to the tune of Rs1,85,586/-. It is further averred that claim of complainant was duly processed and considered but as per terms and conditions of policy of insurance, the claim was not admissible as detailed in legal objections and therefore, it was denied being not permissible. All the other allegations levelled by complainant are denied being wrong and incorrect and reiterated that there is no deficiency in service or unfair trade practice on the part of OP-2. The allegations with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with costs.

6                                               Parties were given proper opportunities to prove their respective case. The complainant tendered in evidence his affidavit Ex.C-1 and documents Ex C-2 to C-4 and then, closed his evidence.

7                                   In order to rebut the evidence of the complainant, the OP-1 tendered in evidence, affidavit of Satwinder Pal Singh, Branch Manager Ex OP-1/1 and then, closed the evidence. Ld Counsel for OP-2 tendered in evidence affidavit of Charanjit Singh as Ex OP-2/1 and document Ex OP-2/2 and closed the same on behalf of OP-2.

8                                      Ld Counsel for complainant vehementally argued that complainant purchased a Mediclaim Insurance Policy bearing no. 23320048/2015/345 effective from 5.05.2014 to 4.05.2015 to insure himself and his spouse for medical claim and at the time of purchasing the said policy, complainant was quite fit and insurance policy was released to him after thorough medical check up. Thereafter, complainant suffered attack of paralysis and he was admitted in S D Mahabir Dal Hospital, Mata Ram Devi Diagnostic Centre, Bathinda on 16.12.2014 and he remained there for treatment and was discharged on 31.12.2014. Thereafter, he remained under treatment of various doctors in other hospitals and got conducted his diagnose and spent Rs.1,90,020/- on his treatment and he is still under treatment and spending for it. It is further submitted that after recovery from said disease, complainant submitted all the relevant documents pertaining to his treatment to OPs vide claim no. 10736760, but OPs kept lingering on the matter on one pretext or the other and vide SMS repudiated the claim of complainant. All this amounts to deficiency in service and trade mal practice on the part of OPs. Complainant made many requests to OPs to make payment of his genuine claim, but all in vain and all this has caused great harassment and mental tension to complainant and it amounts to deficiency in service on the part of OPs. Complainant has prayed for accepting the complaint with costs.

9                                                    To controvert the allegations of complainant, ld counsel for OP-1 argued that complaint against answering OP-1 is not maintainable as there is no privity of contract between complainant and OP-1 and policy in dispute is issued by OP-2. Complaint is bad for misjoinder of parties and bank is a referral agent/facilitator and its role is limited to the extent of providing leads to Oriental Insurance Company ltd and if there is any relationship, then that is between insured/complainant and insurer/Insurance Company. It is not maintainable in the present form and has concealed true and material facts from this Forum. Moreover, it is settled principle of law under Section 230 of Indian Contract Act that an agent can neither sue nor it can be sued except under special circumstances. Complainant is an educated person and he was explained all terms and conditions and benefits of different products of OP-2 and complainant after understanding all the pros and cons of the product of Insurance Company, agreed to purchase the Insurance Policy. OP-1 has simply forwarded the insurance premium on behalf of complainant to OP-2 and there is no deficiency in service on the part of OP-1. Complainant has wrongly dragged OP-1 in litigation. It is averred that complainant neither submitted his claim documents nor gave any letter regarding repudiation of his claim to OP-1. All matter relates with OP-2 and answering OP has no role to play in it. It is further averred that there is no deficiency in service on the part of answering OP and all the other allegations levelled have been denied being wrong and incorrect and a prayer for dismissal of complaint is made.

10                            Ld Counsel for OP-2 also reiterated that there is no deficiency in service on the part of OP-2 and has denied all the allegations levelled against them being wrong, incorrect and vexatious. It is asserted that complainant purchased the said policy bearing no.233100/48/2015/345 valid from 5.05.2014 to 4.05.2015 for Mediclaim of himself and his wife and he was explained all the terms and conditions of the policy, which are also available on the website of OP-2. It is asserted that Discharge Summary recorded by Dr S K Bansal, Bathinda reveals that complainant was admitted with the case of Cerebro Vascular Accident, hypertension for which Medical Management was done during hospitalization, but this ailment holds a waiting period of two years and this conditions is not being fulfilled in present case. Thus, as per terms and conditions of Insurance Policy, Clause 4.2, the claim of complainant was not found permissible and was repudiated and complainant was duly informed about this fact by TPA Medi Assist Pvt Ltd vide letter dt 21.02.2015. It is further averred that complainant lodged claim of Rs1,90,020/-, which was found admissible by TPA to the tune of Rs1,85,586/-. It is further averred that claim of complainant was duly processed and considered but as per terms and conditions of policy of insurance, the claim was not admissible and therefore, it was denied being not permissible. Prayer for dismissal of complaint is made.

11                               We have heard the arguments addressed by all the parties and have also gone through the evidence and documents led by the parties.

12                                The case of complainant is that complainant  purchased a Mediclaim Insurance Policy of OP-2 through OP-1 and during the period of policy, complainant got attack of Paralysis and he remained admitted in the hospital from 16.12.2014 to 31.12.2014 and after that complainant remained under treatment of various doctors and spent about Rs.1,90,020/- on his treatment. After recovery from his ailment he duly lodged claim before OPs              for reimbursement of medical bills, but OPs kept putting off the matter on one pretext or the other. In reply, OP-1 argued that Op-1 is mere facilitator and has no role to play in it as claim sought by complainant payable only by OP-2 and whole matter relates only with complainant and OP-2. In reply Opposite Party No. 2 argued that disease of complainant does not fall under the Policy. As per exclusion clause 4.2, claim of complainant was not permissible and was repudiated as per terms and conditions of insurance policy and it was duly informed to complainant by TPA vide letter dt 21.02.2015. Op-2 submitted that complainant is a case of hypertension and this ailment holds waiting for a period of 2 years and this conditions is not being fulfilled in present case. Therefore, in these circumstances, as per conditions of Insurance Policy Clause 4.2, the case of complainant was not found permissible and was rightly repudiated as per terms and conditions of the policy.

13                                          The counsel for complainant argued that neither at the time of purchase of policy, OP-1 nor OP-2 have disclosed terms and conditions of the policy and exclusion clause to them. Even OPs did not send any terms and conditions and policy document to them. They only sent Policy Schedule and Handbook and on it, there was nothing mentioned about exclusion clause. As such, exclusion clause is not binding upon them. In support, he has placed reliance on the citation titled as United India Insurance Co. Ltd & Anr Vs S. M.S. Tele Communications & Anr 2009 (4) Consumer Law Today 145 wherein Hon’ble National Consumer Disputes Redressal Commission, New Delhi held that Consumer Protection Act, 1986 Section 2 (1) (g) - Insurance Act, 1938, Section 114 (A)- Insurance Regulatory and Development Authority (Protection of Policy Holders’ Interest) Regulations, 2002, Regulation 3 – Insurance claim – Exclusion clause – Held that being aware of the existence of the policy is one thing and being aware of the contents and meaning of clauses of the policy is another – Not the case of the petitioner-Insurance Company that the contents and the meaning of the policy were made known to the complainant as the policy was taken by the Bank– Insurance Company had explained the meaning of all the exclusion clauses to the Bank–Findings of the Fora below that exclusion clause not binding on the respondent-complainant upheld. He argued that complainant purchased the policy through Bank/Op-1 and they did not disclose any terms and conditions of exclusion clause at the time of purchase of policy. Moreover, the disease suffered by complainant is not of such nature which have any pre existing history or symptoms which can be known to a person beforehand. So, the Insurance Company can not deny the claim of complainant on this ground.

14                                             We have carefully gone through the file and from the  above discussion, we come to the conclusion that the OPs did not disclose the terms and conditions of exclusion clause to complainant at the time of purchase of insurance policy and did not send copy of terms and conditions of exclusion clause to complainant and plea of OP-2  that  it is  written  in the  Policy  Schedule     that for policy details, please visit the website of O. I. C.  or  O. B. C.       at www.orientalinsurance.org.in has no force. Therefore, in these circumstances, we are fully convinced with  the   arguments  and   case   law    produced   by   the   complainant  and             complainant succeeds in  proving  his  case. The act of OPs in repudiating  the genuine claim of complainant amounts to deficiency in service and trade mal practice. Present complaint is hereby allowed. OPs are ordered to pay the  Mediclaim  worth    Rs.1,85,586/-  as  found  admissible by TPA to complainant alongwith interest at the rate of 9% per anum from 21.02.2015 i.e when they repudiated the claim of complainant till final realization. OPs are also directed to pay Rs.10,000/- as compensation for harassment and mental agony and Rs.3,000/- as litigation expenses to complainant. Compliance  of  this  order  be  made  within  one  month  from  the  date   of receipt of the copy of the order,  failing which   complainant   shall    be    entitled   to    proceed under Section 25 and 27 of the Consumer Protection Act. Copy of order be given to parties free of cost under rules. File be consigned to record room.

Announced in Open Forum

Dated : 4.07.2016         

 

  Member            Member                   President

                      (P Singla)         (Parampal Kaur)      (Ajit Aggarwal)