Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-282 dt 25.10.2018 [original CC No.-279 dt 27.09.2017]
Pawan Aggarwal s/o Late Sh. Laxmi Narain
r/o 606/8, Gali No.-8, Adarsh Mohalla,
Maujpur, Delhi-110053 …Complainant
Versus
OP1- The Oriental Insurance Company Ltd.
Registered Office- Oriental House P.B. No. 7037
A-25/27 Asaf Ali Road, New Delhi-110002
through Chairman/ Regional Manager
OP2- Divisional Manager, Oriental Insurance Company Ltd.
Divisional Office No. 24 (215100),N-36 Bombay Life Building,
Connaught Circus, New Delhi-110001
OP3- Chairman, Oriental Insurance Company Ltd.
Regional Office,A-25/27 Asaf Ali Road, New Delhi-110002 ...Opposite Parties
Date of filing 25.10.2018
[Date of filing 27.09.2017]
Date of Order: 02.09.2023
Coram: Shri Inder Jeet Singh, President
Shri Vyas Muni Rai, Member
ORDER
Inder Jeet Singh , President
1.1. (Introduction to case of parties) – The complainant took medi-claim policy no. 215100/48/2016/3472 with effect from 12.10.2015 to 11.10.2016 (hereinafter referred as policy) for the cover of family members (namely Smt. Asha Aggarwal-wife, Ms. Madhu Aggarwal-daughter, Mr. Sumit Aggarwal- son and Mr. Vikas Aggarwal-other dependent child) from the OPs. However, complainant’s daughter took treatment from St. Stephen’s Hospital as well as from Sir Ganga Ram Hospital, however, the medical bills raised were
not reimbursed on flimsy reasons. There is deficiency of services. That is why the complaint for release of medical bills amount of Rs.1,00,809/-, compensation of Rs. 1,00,000/-, litigation charges of Rs. 11,000/-, besides other relief.
1.2. The application was opposed vehemently by OP that neither there is any deficiency of services nor the claimed amount was admissible because of exclusion clause 4.11, which was mentioned in the repudiation letter dated 17.02.2017. The claim was also found not tenable by other exclusion clause no. 4.1 of pre-existing disease and clause no. 5.5 for want of furnishing the claim form and documents within 7 days from the discharge from hospital/nursing home. The complaint suffers from non-joinder of TPA as a party and mis-joinder of OP1 & OP3.
1.3. It is relevant to mention that initially the complaint was filed before DCDR Forum (New Delhi District) vide CC no. 448 dated 27.09.2017, however, it was transferred to the Central District by order of Hon'ble State Commission, Delhi; consequently it was assigned CC no. 282/2018. However, the initial date of filing /institution is 27.09.2017, it will remain the same since on transfer of matter there remains continuity of matter.
2.1. (Case of complainant) – The complainant took the medi-claim policy from OP1/ registered office through its agent Mr. Sunil Kumar Ratesh. OP2 is Divisional Manager of OP1 and OP3 is Chairman of OP1. The insured and his four family members are covered under the policy that in the eventuality of illness of the complainant or any of them, they would be medically treated by the doctors in the hospital and the risk would be covered upto Rs. 6,00,000/- vis-à-vis the bills will be borne by the Insurer.
2.2. The complainant’s daughter Ms. Madhu Aggarwal became serious ill, she was to admit in St. Stephen’s Hospital from 18.04.2016 to 26.04.2016, where an amount of Rs. 61,336/- were spent for her treatment. She was diagnosed for Sepsis, Urticaria and Vitamin-D deficiency. Further she was also medically examined and hospitalized in Sir Ganga Ram Hospital from 09.05.2016 to 10.05.2016 and an amount of Rs. 39,473/- was spent on her treatment, where she was diagnosed Sepsis, Urticaria and Vitamin-D deficiency. The total amount spent on treatment was Rs. 1,00,809/-, it was during the validity of insurance policy.
2.3. The complainant submitted all the required documents to OP1 through its agent Sh. Sunil Kumar Ratesh, however, OP1 refused the claim on 17.02.2017 by letter under the signature of OP2. The reason for decline of the claim is very ironical by OPs and it was refused intentionally and deliberately. The complainant had informed OPs about admission and treatment of his daughter, however, the claim could not be lodged in time because agent of the complainant took all the documents of treatment of his daughter and he failed to submit the same in time. The complainant had also filed written complaint on 24.10.2016 against agent Mr. Sunil Kumar Ratnesh, the documents are still in his possession. That is why the complainant is unable to produce original documents before this Commission.
2.4. The complainant had been writing email to the OPs but all went in vain, therefore, he wrote OP1 a letter which was received on 18.01.2017, however, thereafter complainant’s claim was rejected on 17.02.2017 on bogus and false reasons by OP2 on behalf of OP1 and OP3. The complainant paid medical bills of Rs. 1,00,809/- under constraints and he was upset and facing financial crisis, he also suffered mental harassment and agony on the part of OPs, for which he is entitled for compensation of Rs. 1,00,000/-. The complainant sent legal notice dated 22.02.2017 to OPs but neither there was any reply nor his claim was settled. There is deficiency of services. That is why, the complaint, it is within time.
2.5. The complaint is accompanied with photocopy of medi-claim policy delivered, copy of bills of Sir Ganga Ram Hospital & St. Stephens Hospital, discharge summary issued by hospitals, copy of letter dated 24.10.2016, 18.01.2017, emails, OP’s letter dated 17.02.2017 of denial of claim and legal notice dated 22.07.2017 with postal receipt.
3.1 (Case of OP)- At the outset, the written statement is signed by OP2 but under the heading the written statement is on behalf of OP1, OP2 and OP3, without support of any authority letter in favour of OP2 by OP1 and OP3 to write & verify written statement on behalf of OP1 & OP3. OP2 being Division Office cannot assume authority for Chairman and Regional Manager/Office of Insurer, which are higher in hierarchy.
Moreover, in the body of written statement, it is mentioned that terms & condition of insurance policy and repudiation letter are annexed with the written statement, but neither terms and conditions of policy nor repudiation letter was enclosed with the written statement.
3.2. The complaint is opposed that it is misconceived and it was filed without clean hands by the complainant. The complaint was filed to make unlawful gains out of lust for money. There was no deficiency of services to make the complainant entitled for any relief.
3.3. The written statement reproduces the contents from the discharge summary issued by Sir Ganga Ram Hospital. The TPA M/s Raksha TPA were supplied the documents after much delay but out of goodwill gesture, the documents were processed by the TPA. The complainant failed to fulfill the claim formalities [viz. treating doctor’s certificate mentioning probable etiology of the present ailment in this case, copy of complete set of Indoor case papers and vital and charting and all original investigation reports dated 19.04.2016, 20.04.2016, 21.04.2016, therefore, complainant’s claim was closed on 13.12.2016 for want of compliances.
However, the complainant insisted for process of his claim, without submitting the requisite documents, then on process of the claim, the TPA found that majority of the investigations carried out in the hospital but there was no active treatment given, consequently exclusion clause 4.11 of policy was found applicable. The claim was inadmissible. It was repudiated on 17.02.2017 on the recommendation of TPA, which was further confirmed in reply dated 06.10.2017 to the complainant. The written statement reproduces the exclusion clause 4.11 and also other exclusion clause 4.1 that because of pre-existing health condition the claim is otherwise not made out. The written statement also reproduces clause no.5.5 that documents were required to be furnished in original with claim form within seven days, being requirement of clause 5.5. The claim was rightly repudiated and there is no deficiency of services. However, the complainant is projecting the claim in a manner to gain sympathy of this Commission.
3.4. The complaint is bad for non-joinder of TPA, it ought to have been joined. The complaint is also bad for mis-joinder of OP1 and OP3 being not necessary party. The issue involved can be determined by the Civil Court as there are serious questions of fact and law, which cannot be determined in a summary procedure.
3.5. Since the claim was inadmissible, it was contrary to terms and conditions of policy and it was rightly repudiated. The complaint deserves dismissal.
4.1 (Replication of complainant) – The complainant filed detailed paragraph-wise reply to the written statement, he reiterates all the averments of complaint as correct as well as all the allegation in the written statement are denied.
4.2. The subject matter can be determined by the Consumer Commission, there is no need of adjudication by the Civil Court. The complaint explains status of each of OPs, therefore, it does not suffer from mis-joinder of any of the OPs. TPA is also not a necessary party. The complainant was not provided with the terms and conditions of the policy nor made aware about such exclusion clauses, therefore, those conditions cannot be invoked against the complainant. The complainant’s daughter was examined, admitted in the hospital and she was given treatment, consequently the plea of OP does not sustain. The complainant had furnished all the original documentary record to OPs' agent Mr. Sunil Kumar Ratnesh, he failed to furnish it to OPs or TPA, the complainant cannot be blamed for it. The documentary record is enough to show that not only complainant’s daughter was examined and given treatment in the hospitals but also the complainant paid medical bills amount, he is entitled for its reimbursement since the treatment was during the currency of insurance policy cover and the ailments are covered under the policy.
5.1. (Evidence)- The complainant Sh. Pawan Aggarwal led his evidence by filing detailed affidavit, it is on the pattern of complaint, with the support of documentary record filed with complaint.
5.2. OPs led evidence by filing detailed affidavit of Sh. Surender Mehra, Senior Divisional Manager/ OP2, his detailed affidavit is reproduction of reply filed on behalf of OPs. Moreover, the affidavit also reflects filing of terms and conditions of policy or copy of repudiation letter, but the same were not filed/annexed.
6. (Final hearing) - The complainant and the OPs filed their respective written arguments, followed by oral submissions by Sh. Pawan Bedi, Advocate for complainant and Sh. Bhupesh Chandna, Advocate for OPs. It does not require to write their rival contentions, since case of each party has already been detailed and other contentions will also be referred appropriately.
7.1 (Findings)- The rival contentions are considered, keeping in view the material on record in the form of evidence as well as the provisions of law. At the outset, since written statement is exclusively signed by OP2 and OP2 has neither mentioned in the written statement to be authorized to sign it for OP1 and OP3 nor there is any written authority with OP2 by his superiors to file written statement for them, therefore, despite writing 'written statement on behalf of opposite parties', the written statement will be considered for OP2 exclusively. Moreover, evidence cannot be beyond the pleadings, therefore, when there is no written statement of OP1 and OP3, then evidence led by Sh. Surender Mehra, Senior Divisional Manager/ OP2 will not be read evidence of evidence OP1 & OP3. With this preliminary findings, now other features are being considered.
7.2.1. There are some issues raised on the point of law, first of all, they are being dealt with one by one.
The OP2 contends that the consumer Forum lacks jurisdiction since the matter involves mixed question of law and fact to be determined by Civil Court, however, it is opposed by the complainant that issued involved can be decided by this Forum.
On the plain reading of case of the parties, it is apparent that the claim is being disputed by the OP2 on the basis of exclusion clause or so on. Whether or not, the exclusion clause applies, it can be determined on the basis of material on record and documents, it does not involved serious question of law or facts to be determined by the Civil Court. The present Commission/Forum is competent to adjudicate them, therefore, this issue is determined against OPs.
7.2.2. The OP2 has another contentions that complaint suffers from non-joinder of TPA, which is opposed by the complainant. Whether TPA is a necessary party that in its absence the consumer dispute cannot be determined?
TPA is a facilitator to process the claim of claimant and appropriate recommendations are made to the Insurer. The TPA is a professional body but while rendering services for process of the claim as a facilitator, it acts are of an agent of Insurer, therefore, such agent/TPA need is not a necessary party to be impleaded as OP. Further, TPA need not to be impleaded as a party to the complaint [Reliance can be placed on Kewal Krishan Aggarwal vs New India Assurance Co. Ltd. FA No. 324/2019 [SCDRC, Punjab (Chandigarh)].
Had the TPA been a necessary party, the OP2 could have also requested specifically to the Forum/Commission to implead it, since law does not bar OP2 to apply for impleading of TPA as a party. But OP2 did not apply so, since it was knowing that TPA is not a necessary party. Moreover, the complainant is master of his lis, to whom to be pleaded. Accordingly, this issue is also decided against the OPs.
7.2.3. Both the sides have also reservations on the point of mis-joinder of parties. Accordingly to OP2, the issuing office is of OP2, consequently there was no requirement to implead OP1 and OP3. The complaint suffers from mis-joinder of parties/OP1 & OP3. Whereas according to complainant, the OP1 is the Registered office and OP3 is the Regional office of the Insurer, that is why both were also impleaded.
As appearing from the contentions of the parties as well as narration given in paragraph no. 2 of the compliant about the status of parties, it would not demerit the complaint nor complaint is bad for joining OP1 and OP3 as a party to the complaint. In addition, OP1 and OP3 have not filed their written statement to counter the plea of complainant. Similarly, the concerned party could have applied for deletion of name of parties from the array of OPs, but neither OP1 nor OP2 applied so. This contention is also disposed off against OPs.
8.1. It needs to discuss about the terms & conditions of policy, since there are juxtaposition plea of the parties, already referred.
The complainant has filed copy of insurance policy and there are three pages, numbered as 1/3, 2/3 and 3/3, which has been filed by the complainant on record. No terms & conditions were appended with this insurance policy covered nor the insurance cover contains terms & conditions like 4.11 or 4.1. However, in the insurance cover filed it mentions the claim documents to be submitted within seven days of discharge. Simultaneously, the OP2 mentions about filing of terms & conditions as part of written statement or annexed as part of affidavit, however, those terms & conditions were never filed by the OP2 at any stage of the case. It fortifies the contention of complainant that he was issued insurance cover/policy running into three pages, which has already been filed and there was no separate terms & conditions supplied or delivered to him. It also confirms/proves the plea of complainant that he was not made aware about the exclusion clause (s). Since, the complainant was not equipped with terms & conditions of the policy nor he was made aware of it, therefore, the following precedent and case law supports the case of complainant:-
(a) Bharat Watch Company (through its partners) vs National Insurance Co. Ltd., Civil Appeal no. 3912/2019 in SLP(C) no. 25468/2016, it was held that in the absence of appellant being made aware of terms of exclusions, it is not open to the insurer to rely upon exclusionary clauses.
(b) National Insurance Co. Ltd Vs Radhey Shyam Balwada & anr [(II) 2014 CPJ 201 NC] - held that insurer has also duty to act in good faith, which obliges him to enter into contract without concealing material fact like exclusion clauses. Further, an insured is not bound by the exclusion clauses of policy, if the same is not explained to him.
8.2. Further, the OP2 has reproduced clause no. 5.5 (regarding stipulated period of 7 days for filing the documents) and clause no. 4.1 (regarding pre-existing disease) in the written statement vis-à-vis the OP2 also concedes that claim of complainant was entertained even after stipulated period as a goodwill gesture but complainant had vehemently protested that document were handed over to the agent of OPs, the complainant should not be blamed for when claim was lodged through the authorized agent. Otherwise, since the claim was processed by OPs, thus issue of delay in furnishing documents remained no more alive of clause 5.5.
With regard to pre-existing disease, it has already been held in paragraph 8.1 above that complainant was not made aware of terms & conditions of policy, secondly, in the repudiation letter dated 17.02.2017 it was never the case of pre-existing disease of OPs as the letter just confines on single clause no. 4.11. Reliance can be placed on:-
(a) J&K Industries Pvt Ltd. Vs Oriential Insurance Co. Ltd Civil Appeal No.7930/2022 dod 18.10.2022, it is held that repudiation letter is an important document in case of insurance claim. The wordings of repudiation letter should be clear and include all possible valid ground of repudiation. Since in later stages or in court of law, an insurance company cannot take stand other than what is mentioned in the repudiation letter.
Therefore, plea of OP2 that there was pre-existing disease is an after-thought and it OP2 is estopped to raise such plea, when it was never the case of OPs.
8.3. The remaining issue pertains to admissibility of claim as well as whether or not exclusion clause 4.11 would be applicable, as, according to OP2 certain expenses incurred on vitamins and tonics are not admissible unless the same are certified to be included. This was the objection taken in the repudiation letter. Moreover, the OP2 also took the objection that the complainant was admitted in the hospital just for investigations and evaluations purposes, which are not covered under the policy by virtue of exclusions. By taking into account stock of all the circumstances, the following conclusions are drawn:-
(i) It is settled law that contract of insurance is a contract of utmost good faith, which applies to the insured as well as to the insurer.
In Manmohan Nanda Vs United- India Assurance Co. [Civil Appeal no. 8386/2013) decided on 6.12.2021 by Hon'ble Supreme Court of India has also dealt the regulations 'the IRDA (Protection of Policyholder' Interests) Regulations 2002' and it was held (in paragraph 34 thereof) "that just as insured has a duty to disclose all material facts, the insurer must also inform the insured about the terms and conditions of policy that is going to be issued to him and must strictly confirm to the statement in the proposal form or prospectus or those made through its agents. Thus, principle of utmost good faith imposes meaningful reciprocal duties owned by the insured to the insurer and vice-versa".
(ii) There are two episodes of admission of daughter of complainant, firstly, in St. Stephen’s Hospital, Delhi where complainant remained admitted from 18.04.2016 to 26.04.2016. She was to rush there as she has swelling all over the body for the last 10 days, rashes with etching all over body for 02 days, etc. and she was diagnosed Sepsis (which simply means body’s extreme response to as infection. It is life threatening medical emergency. Sepsis happens when an infection has already triggered a chain of reaction through the body) & Urticaria (which simply means an acute and chronic itchy rash that can be quite irritating. As per discharge summary issue by Stephen Hospital, various tests and investigation were carried inclusive of cortisol (CLIA)-0.50 (remarks: law levels). Little cortisol may be due to a problem in the pituitary gland or the adrenal gland (Addison's disease). Further, in the discharge summary treatment given is mentioned which includes many injections were administered inclusive of Inj. Monosef (which is given to treat severe allergic reactions and it is also used in the management of certain types of edema which there is excess swelling), other inj was Dexa ( it is treat sever allergic reactions), inj. avil ( it is given to treat allergic condition such as rashes, skin conditions, respiratory track conditions, food allergy), Atarax (it is used to allergic skin) besides lotion and Inj. architol (it is for the treatment and prevention of vitamin D and calcium deficiency).
Ld. Counsel for OP2 has strong contentions that the nature of injections given are either antibiotic or anti-acid, which falls within the parameter of investigations and evaluations. Whereas, the entire discharge summary is to be read, which reflects the complaint of swelling all over the body for the last ten days, rashes with etching all over the body for two days and then investigations were carried and complainant’s daughter was diagnosed Sepsis, Urticaria, Vit. D deficiency, Vit. B12 deficiency. Therefore, in case the patient was administered certain injections of antibiotic or anti-acid, it does not mean that it was not a treatment and it was just an investigation or evaluation, especially in the discharge note it was mentioned that she was discharged in stable condition as compared to when she was brought in the hospital. Otherwise, the treatment given and all injections administered were not of tonics but for treatment also. She was also advised review with certain reports at M-OPD and Skin OPD.
(iii) The second episode is in respect of admission of complainant’s daughter in Sir Ganga Ram Hospital from 09.05.2016 to 10.05.2016, she was diagnosed of cushing syndrome-exogenous. In the history, the diagnosis done by St. Stephen’s Hospital was also mentioned apart from history of hypomenorrhoea (i.e. short or scanty period or when extremely light menstrual blood flow) and the complainant’s daughter was admitted for further evaluation and management. The discharge summary issued by St. Stephen’s Hospital also gives detail about the investigations by hematological and biochemical parameters (those harmonical tests to study the blood disorder are carried by hematologist, who are highly trained experts in that field).
Ld. Counsel for OP2 has reservations that the patient was advised vitamins and calcium tables, which covers under evaluation and investigation, consequently, the claim for such evaluation is not admissible under the policy. Whereas, the discharge summary is clear in itself on the face of it that the patient was examined and certain observations were recorded in the discharge summary inclusive of the course in the hospital to manage the patient. The patient was admitted for evaluation and management purposes and course of the hospital both were also done, therefore, in case at the time of discharge vitamins and calcium tables were prescribed for further follow up, it does not mean that it will be an exclusive case of evaluation or of investigation. There were investigations, evaluation and also management of the patient. Lastly, the patient was further advised for review with pending reports at the OPD.
(iv) By taking the chronology of events, the complainant’s daughter was continuously in treatment firstly at St. Stephen’s Hospital, Delhi and then Sir Ganga Ram Hospital, the case of complainant’s daughter is not of exclusively for investigation and evaluation but also for her treatment as well as management of her ailments.
(v) Therefore, by taking the clause no. 4.1 [as mentioned in the body of written statement by OP2], does not apply to the case of complainant for the reasons and conclusions drawn hereinabove (i) to (iv). Moreover, antibiotic, anti-acid and many injections monocef, allegra, lactocalamine lotion, telecast-L, Inj dexa, Inj Arachitol, Inj avil, etc. mentioned in the discharge summary of St. Stephen’s Hospital are neither tonics or vitamins. Similarly, the patient had underwent 2 site dexa scan and MRI brain besides she was managed in the hospital are also not tonics or vitamins in the discharge summary of Sir Ganga Ram Hospital but certain vitamins and calcium were advised on her discharge being advises. Therefore, even it is believed that there is clause 4.1. in the policy (since terms & conditions have not been filed by the OPs), even then the same are not proved by the OPs being exclusion clause.
9. In view of the above, the complainant’s daughter has undergone treatment at St. Stephen Hospital, where an amount of Rs. 61,336/- were spent on medical expenses, which have been proved by the complainant, since the amount of bill is not disputed, vis-à-vis the bills were handed over to the agent of OPs. Similarly, the complainant’s daughter has also undergone treatment at Sir Ganga Ram Hospital, where an amount of Rs. 39,473/- was spent on medical expenses, which have been proved by the complainant, since the amount of bill is not disputed, vis-à-vis the bills were handed over to the agent of OPs. To say, the complainant had spent total amount of Rs. 1,00,809/- as medical and hospitalization expenses on the treatment of her daughter and it is covered under the policy since sum insured is Rs. 6,00,000/-.
The complainant has proved that his valid claim was declined by OPs despite the medical expenses were covered under the policy. It amounts to deficiency of services.
10.1 The facts and circumstances proves case of complainant that he lodged valid medical claim of amount of Rs. 1,00,809/-. Thus, complainant is entitled for reimbursement of Rs.1,00,809/-.
10.2. The complainant has also sought damages of Rs.1,00,000/- towards harassment, mental tension and agony and also costs of Rs.11,000/-. By considering totality of circumstances of case of both sides, damages are quantified as Rs 20,000/- apart from cost of litigation of Rs.11,000/-in favour of complainant and against the OPs.
10.3. The complainant has sought other appropriate relief. Since complainant had paid medical bills from his own pocket, despite insurance cover to meet sudden needs, therefore, he was deprived to use his money because of payment of bills. It entitles the complainant for interest on claim amount. Therefore, interest at the rate of 8% pa is allowed in his favour and against OPs, it would be justified for both ends, interest will be computed from the date of complaint till realization of amount against the OPs.
10.4. Accordingly, the complaint is allowed in favour of complainant and against the OPs to pay/reimburse jointly and/or severally the medical bills claim amount of Rs. 1,00,809/- along-with simple interest @ 8%pa from the date of complaint till realization of amount; besides to pay damages of Rs.20,000/- & costs of Rs.11,000/- to complainant.
OPs are also directed to pay the amount within 30 days from the date of receipt of this order. In case amount is not paid within 30 days from the date of receipt of order, the interest will be 10% per annum on amount of Rs. 1,00,809/-.
Announced on this 2nd September 2023 [भाद्र 11, साका 1945].
11. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances.
[Vyas Muni Rai] [Inder Jeet Singh]
Member President
