Before the District Consumer Dispute Redressal Commission [Central District] - VIII,         5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi

Complaint Case No.29/2018

MRS. SAVITA GUPTA

W/O SH. RAM NIWAS GUPTA

 R/O E-2/236, SHASTRI NAGAR,

DELHI-110052  ….COMPLAINANT

VERSUS

1. ORIENTAL INSURANCE CO. LTD.

THROUGH ITS CHIEF MANAGER,

      CORPORATE OFFICE AT

 2/2A, UNIVERSAL BUILDING, ASAF ALI ROAD,

 DARYAGANJ, DELHI-110006.

2. CUSTOMER SERVICE DEPARTMENT

ORIENTAL HOUSE, A/25/27, ASAF ALI ROAD,

DELHI.

3. ORIENTAL INSURANCE CO. LTD.

THROUGH ITS DEPUTY GENERAL MANAGER,

10TH FLOOR, HANSALYA BUILDING,

BARAKHAMBA ROAD, DELHI.

4. ORIENTAL INSURANCE CO. LTD.

 THROUGH ITS DIVISIONAL MANAGER,

 101, LSC, IS FLOOR, H-BLOCK MARKET,

 VIKASPURI, NEW DELHI.

5. RAKSHA HEALTH INSURANCE TPA PVT. LTD.

THROUGH ITS DIRECTOR/S

C/O ESCORTS CORPORATE CENTER,

15/5 MATHURA ROAD, FARIDABAD,

• .

   …OPPOSITE PARTY

                                                                                 Date of Filing: 12.12.2018

                                                                            Date of Order: 21.09.2024

By the present order, this Commission, disposes of the complaint filed by the complainant alleging deficiency in service on the part of the Opposite Parties (OPs), specifically in relation to the repudiation of her insurance claim.

OP1, OP 3 and OP4 are the insurance company through Chief Manager, Deputy General Manager and Divisional Manager respectively, and hereby mentioned as OPs and OP2 and OP5 are customer service department and TPA respectively and mentioned as it is as OP2 and OP5 repectively.

1. Complainant case
   1. It is the case of the complainant that she procured a Medi-claim insurance policy, .Happy Family Floater - 2015, from the OPs under Policy No. 212203/48/20017/204, upon payment of a premium amounting to Rs.  37,703/, valid from 18.04.2016 to 17.04.2017. It is asserted that the complainant has maintained this policy continuously for the last 10 to 15 years, making timely premium payments without default. The OPs assured the complainant that she would receive cashless treatment whenever required.
   2. On 25.03.2017, the complainant was admitted to Sir Ganga Ram Hospital, Delhi, with complaints of fever, weight loss, abdominal pain, and vomiting. Following a detailed investigation, she was diagnosed with a Haemorrhagic Renal Cyst and treated with intravenous antibiotics to address a kidney infection. She was discharged on 08.04.2017 after completing treatment. At the time of her admission, the Third-Party Administrator (TPA) authorized a cashless treatment up to Rs. 90,000/-. However, this authorization was subsequently revoked by the TPA, citing reason that genetic disorder not covered under the policy. Consequently, the complainant was compelled to pay the medical expenses out of pocket. The OP (insurance company) later denied reimbursement of these expenses on the same grounds. The complainant asserts that the OP failed to disclose this exclusion at the inception of the policy and assured her that she would be entitled to benefits for all diseases up to the sum assured.
   3. The complainant further submits that the categorization of diseases was not disclosed to her by the OPs, and she was unaware of any genetic disorder prior to her hospitalization. Therefore, she is entitled to the benefits under the policy. The purpose of obtaining the insurance policy was to secure protection during distress, which was denied by the OPs. The OPs have access to her complete medical records, establishing that there was no concealment on her part. It is submitted  that despite sending a legal notice dated 03.07.2017 to OPs, which remained unanswered and approaching various authorities, her grievance remains unresolved. The complainant alleges that the conduct of the OPs is mala fide, unethical and unprofessional and constitutes a failure to provide efficient service. The complainant submits that the denial of her claim by the OPs has caused her significant financial loss, mental agony, harassment and psychological stress. She prays for reimbursement of the expenses incurred at Sir Ganga Ram Hospital, Rs.  2,00,000/- towards compensation for mental agony and harassment, Rs.  2,00,000/- for deficiency in service by the OPs, and INR 51,000/- towards litigation costs.
2. Case of OPs
   1. Upon receiving notice, the OPs appeared and filed their reply. This is observed that only one reply filed on behalf of OP1 to OP5, whereas OP2 and OP5 are the separate entity and no authority letter filed by them to file the reply along with OP1, OP3 and OP5. The practice adopted by insurance company (herein OPs) is reprimanded and reply cannot be accepted on behalf of OP2 and OP5 in absence of any authority letter by them in favour of OPs.
   2. OPs challenging the jurisdiction of this Commission, arguing that the present complaint involves complex questions of fact and law requiring detailed evidence, including examination and cross-examination of witnesses. They further assert that the complaint should be dismissed as there is no deficiency in service on their part.
   3. OPs admit to the existence of the policy but contend that the complainant was suffering from a haemorrhagic cyst, a genetic disorder which is not covered under the policy, as per Exclusion Clause 4.15. They further argue that the complainant's assertion that the policy's terms and conditions were not provided to her is incorrect, as the policy clearly states that it is subject to conditions, clauses, warranties and endorsements as per the attached form. The OPs allege that the complainant deliberately omitted these terms and conditions from her complaint, which they have now filed as Annexure R1. The OPs submit that there is no deficiency on their part and request that the complaint be dismissed.
3. Evidence and Arguments:
   1. Both sides have submitted their respective evidence, endorsing the documents filed with their pleadings to support their case, followed by written arguments.
   2. In support of her case, complainant has filed letter dated 13.4.2017 written to OPs for the reimbursement of the expenses incurred by the complainant; copy of the insurance policy, copy of medical documents dated 25.03.2017, copy of request form for cashless hospitalisation dated 25.03.2017, queries dated 25.03.2017, 28.03.2017 from the TPA to Ganga Ram hospital; copy of letter dated 29.03.2017 for extension of credit facility issued by TPA to the hospital granting initial approval of Rs. 30,000/; copy of letter dated 30.03.2017 issued by TPA to the hospital extending credit facility granting further approval of Rs. 60,000/; copy of certificate dated 03.04.2017 issued by the hospital; copy of letter (un -dated) for denial of credit policy issued by TPA to the hospital as the disease falls under genetic disorder, copy of discharge summary along with other medical records and copy of bills raised by the hospital.
   3.  The OPs have filed only emails dated 09.05.2018 and 11.05.2018. 
4. Analysis by the Commission

The Commission has perused the documents on record and heard the oral arguments from the parties.

1. The issue of jurisdiction must be addressed first. The memo of parties shows OPs are within territorial jurisdiction of this Commission, and further, based on the facts of the case, it is evident that no complicated question of law or fact is involved, the complaint pertains to deficiency in service on the part of the OPs, which falls squarely within the purview of the Consumer Protection Act, 2019, therefore, this Commission has jurisdiction to adjudicate the present complaint.
2. On merit, there is no dispute regarding the relationship between the parties as insurer and insured, the Medi-claim policy issued by the OPs, its tenure or the premium paid. The hospitalization of the complainant, her medical treatment, and the payment of medical bills by the complainant are also undisputed, as the cashless facility request was initially entertained by the OPs and the complainant furnished all requisite medical papers, including the discharge summary and certificates issued by the treating doctors.
3. The points for determination are:
   1. Whether the complainant was suffering from a pre-existing genetic disease, and if so, whether this was concealed from the OPs?
   2. Whether the complainant is entitled to reimbursement of the medical bills claimed under the insurance policy and other relief, with reference to the applicability of Exclusion Clause 4.15?
4. The complainant has filed the policy but not the terms and conditions, asserting that they were not provided to her. The bottom portion of the policy mentions that it is subject to conditions, clauses, warranties, and endorsements as per the attached form. However, this .form. has not been filed by either of the party to the complaint.
5. The OPs have filed emails which actually are internal exchanges within the OPs' office. The email dated 09.05.2018 pertains to documents related to the current complaint case, while the email dated 11.05.2018 carries attachments titled .policy. and a letter, but these are also internal communication to the OPs and no where it is shown that the same has been sent to complainant. OPs have failed to establish that the policy terms and conditions were supplied to the complainant.
6. The OPs repudiated the complainant's cashless treatment request on the grounds that the disease diagnosed was a genetic disorder not covered under the policy. However, they have failed to submit any document to substantiate this claim. OPs have not filed the T&C of the policy nor the exclusion clause 4.15 of the policy on which they are relying. There is also no evidence to suggest that the complainant was aware of this exclusion clause at the time of obtaining the policy. Moreover, the OPs have not provided any record to show that the complainant was examined by their doctors before the policy was issued in order to determine whether she was suffering from any such disease. On the other hand, the complainant has submitted documents indicating that she was unaware of any genetic disorder. The reply by the treating hospital to the TPA's query dated 25.03.2017, filed by the complainant, states that the complainant was not on any treatment prior to her hospital admission. The certificate dated 03.04.2017 from hospital confirms that the complainant was admitted with complaints of fever and abdominal pain, was diagnosed with multiple Haemorrhagic Renal Cysts that ruptured, resulting in haematuria, and required further hospitalization for 3 to 5 days.

5. In the case of Jagdish versus LIC of India, FA No. 1055/2033, decided on 17.12.2007 by the Hon'ble State Commission, the parameters for determining the existence of a pre-existing disease were laid down, particularly in para 10(ii) and 10(iv), which are extracted below:

 .(ii) Such a disease should not only be existing at the time of taking the policy but also should have existed in the near proximity. If the insured had been hospitalized or operated upon for the said disease in the near past, say, six months or a year he is supposed to disclose the said fact to rule out the failure of his claim on the ground of concealment of information as to pre-existing disease.

 (iv) If the insured had been even otherwise living a normal and healthy life and attending to his duties and daily chores like any other person and is not declared as a diseased person as referred above, he cannot be held guilty for concealment of any disease, the medical terminology of which is even not known to an educated person unless he is hospitalized and operated upon for a particular disease in the near proximity of the date of the insurance policy, say, a few days or months..

 It is further held that non-disclosure of hospitalization or operation for a disease, especially in close proximity to the date of the Medi-claim policy, is the only ground on which a claim can be repudiated and on no other ground.

6. Commission's Findings:
   1. The OPs have failed to produce any document in support of their claim that the complainant was suffering from a pre-existing genetic disorder at the time of obtaining the policy or that she was having the knowledge of her disease or she was enquired about her medical history or she was medically examined by the OPs. Furthermore, there is no evidence to prove that the complainant was aware of such a disorder or that she concealed it from the OPs. For want of proof of such circumstances by OPs, it cannot be inferred that there is concealment of previous medical history by the complainant or that she was having the knowledge of disease which is termed as pre-existing disease by OPs. The complainant, on the other hand, has provided medical records, test reports and certificates from her treating doctors to show that she was not suffering from any such disease before admitting to the hospital and only after diagnosis made by the doctor there, she came to know about her disease.
7. In light of the aforementioned judgment and in the absence of any documentary evidence presented by OPs to substantiate that the complainant was suffering from any pre-existing condition and considering the medical records, treatment papers, test reports and certifications provided by the treating doctor and hospital, it is unequivocally established that the complainant was not suffering from a pre-existing genetic disease at the time of obtaining the policy and was not aware of any such condition until her hospitalization on 25.03.2017 and thus, there was no concealment from the OPs. Consequently, Exclusion Clause 4.15 of the insurance policy does not apply in this case. The issues raised under points 4.3.1 and 4.3.2 are accordingly decided in favour of the complainant and against the OPs. The complainant is, therefore, entitled to full reimbursement of the medical expenses incurred, as claimed under the insurance policy, as well as other related reliefs. The repudiation of the claim by the OPs constitutes a clear deficiency in service, as they failed to honour a legitimate claim. The OPs cannot derive any benefit from their own acts of omission or commission, as it was their obligation to ascertain the insurability of the complainant prior to issuing the Mediclaim policy.
8. As a result, the complainant is entitled to reimbursement of her medical expenses, which, as per the bills submitted, amount to  Rs. 2,83,185/-. The OPs have neither specified an alternative claim amount nor issued a formal repudiation letter, instead only acknowledging the repudiation in their written statement. Therefore, it is hereby directed that the OPs shall pay the complainant the sum of Rs. 2,83,185/- with interest @ 6%  p.a. from the date of filing of the complaint, i.e., 12.12.2018, until the full realization of the amount as she had to parted with her money while paying the bill and till date the money is lying with the OP.
9. Furthermore, the complainant has sought damages of Rs. 2,00,000/- for harassment and mental agony and an additional Rs. 2,00,000/- for deficiency in service on the part of the OPs, along with litigation costs of  Rs. 51,000/-. It has been conclusively proven that the complainant endured harassment, mental anguish, physical distress and financial loss due to the deficiency in service by the OPs, specifically through their denial of cashless treatment during her medical care, when she was in dire need of assistance and subsequent refusal to pay her claim. Accordingly, the complainant is entitled to compensation, for which sum of Rs. 30,000/- is deemed appropriate and is being awarded to the complainant and against OP1, OP3 and OP4. Further, given that the complainant was compelled to initiate this complaint to pursue her claim, she is also awarded litigation costs amounting to Rs. 20,000/- against OP1, OP3 and  OP4.
10. OP2 is the customer care department and has no liability towards complainant as it only a mean of communication between OPs and the insured. Similarly OP5 is also not liable, as it acted solely as a facilitator between the insurance company and the hospital; hence, the complaint against OP2 and OP5 is dismissed.
11. Accordingly, the complaint is hereby allowed in favour of the complainant and against OP1, OP3 and OP4 and dismissed qua OP2 and OP5.
12. OP1, OP3 and OP4 are directed as follows :
    1. To reimburse medical bill of the complainant amounting to Rs. 2,83,285/- along with interest, 6% p.a. from the date of filing the complaint i.e. 12.12.2018 till it’s realisation by the complainant,
    2. Pay compensation of Rs. 35,000/- .
    3. Pay  litigation cost of 20,000/-.

The above stated amount be paid within 45 days from the date of this order, failing which the interest amount upon Rs. 2,83,285/- shall increase from 6% p.a. to 9% p.a. till its realisation by the complainant. The OPs are at liberty to deposit the said amount in the Registry of this Commission by valid instrument in the name of complainant.

13. Copy of this order be sent forth with to the parties free of cost as per rules and to upload it on the website of this commission and thereafter file be consigned to record room.
14. Announced on 21.09.2024.

[Rashmi Bansal]      

                                                                                                         Member (Female) 

CC-29/2018. Savita Gupta Vs Oriental Insurance Company Ltd.

Per se -  Inder Jeet Singh, President

I have gone through the order and findings rendered by my colleague/ Member to this Commission,  while allowing the complaint in aforementioned directions  However, I have some other reasons and additional reasons to add not only for weighing the rival plea. to clarify on some aspects and to dispose off all issues involved;  the same are being taken

( A)  As appearing , the OP does not have any objection on the point of territory jurisdiction of this Commission but objections on the point of jurisdictions on the subject matter that the Consumer Fora cannot adjudicate the complaint as if there is requirement of detail examination of documents, witnesses or their cross examination, which could be done in the Civil Court.

          However, the OP failed to show at any stage of proceedings in this complaint, as to which documents or aspect involves detail examination of documents or witnesses witness to warrant trial by civil court. There is no material shown by and on behalf of OP nor any material is appearing so that detailed examination of documents or witnesses/party is required or  it involves any question of fact or law or mixed question of fact and law to be determined by the Civil Court exclusively.  Thus, this Commission is competent to try and determine the issue under summary procedure on the basis material on record.

(B). The written statement/reply is signed and verified by Shri Ravinder Singh Rawat, Divisional Manager, Insurance company/Insurer (being OP1, OP3 and OP5) but the title of written statement is intentionally mentioned as reply for and m behalf of OP1 to OP5; there is no authority by OP2 and OP5 in favour  Shri Ravinder Singh Rawat  to sign, verify and file reply for OP2/Customer Service Department and for OP5/TPA. The written statement also mentions  expression OP in body of written statement and evidence exclusively Insurer, it also proves the written statement and evidence is of Insurer and it  is to be read only for Insurer and for none-else/or for OP2 and OP5.

(C)  The complainant has filed replication by declining the case of OP as well as that she was not furnished terms and conditions of the policy. It is settled law that insured is to be provided with terms and conditions of insurance policy by the Insured, otherwise how insured would know the terms and conditions of policy or comply with them. Reliance is also placed on Bharat Watch Company (through its partners) vs National Insurance Co. Ltd.[Civil Appeal no. 3912/2019 in SLP(C) no. 25468/2016], wherein 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.  The situation of this complaint is not an exception to  it.

(D)  Announced on this 21^st day of September 2024 [भाद्र210, साका1946]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.