BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.75 of 2023
Date of Instt. 10.03.2023
Date of Decision: 13.08.2024
1. Anuj Mehta aged 48 years son of Sh. Kewal Krishan resident of House No.101, Tagore Nagar, Jalandhar.
2. Omansh Mehta age 22 years son of Anuj Mehta resident of House No.101, Tagore Nagar, Jalandhar.
..........Complainants
Versus
1. The Oriental Insurance Co. Ltd., Divisional Office, Opp. Bus Stand, G.T. Road, Jalandhar, through its Sr. Divisional Manager.
2. The Branch Manager, Oriental Insurance Company Limited 1st Floor, Rattan Tower, Namdev Chowk, Jalandhar City. Punjab 144001.
3. M/S Park Mediclaim TPA Pvt. Ltd. 702, Vikrant Tower, Rajindera Palace, Delhi, 110008 Through its Manager.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Anuj Mehtra, Adv. Counsel for Complainants.
Sh.Venayak Sekhri, Adv. Counsel for OPs No.1 & 2.
OP No.3 exparte.
Order
Dr. Harveen Bhardwaj, (President)
1. The instant complaint has been filed by the complainants, wherein it is alleged that the complainant no.1/Anuj Mehta hired the services from the OPs No.1 and 2 for more than last 10 years by obtaining Health Companion Policy for his family, which covered he himself, his wife Aarti Mehta and two sons namely Omansh Mehta i.e. complainant no.2 and Shivay Mehta. The complainants in the last year paid an amount of Rs.26,419/- as premium against medical policy i.e. Happy Family Floater-Gold, vide policy bearing no.233102/48/2022/957 to the OPs No.1 and 2 and the same is duly valid from the period dated 29.03.2022 till 28.03.2023. At the time of inception of the said policy, the complainants have also opted for the extra benefit of additional coverage i.e. "Sum Insured Restoration of 50%" meaning thereby as per information provided that an extra sum of Rs 3 Lacs will be more covered in case the first primary limit of Rs.6 Lacs has been used or exhausted. So, accordingly complainants have also paid around 15% extra premium amount for opting the said additional clause. However, at that time it was told and assured to the complainants that the Basic Sum Insured under the policy would remain as Rs. 6 Lacs and whenever any claim has been accrued, then the claim would be settle on basis of said primary limit of Rs. 6 Lacs and in case the said limit has been exhausted then extra coverage of additional sum insured benefit of Rs. 3 Lacs will automatically restore. So, under the said policy it was assured to the complainants that Sum Insured will be enhanced from Rs 6 lacs to Rs. 9 Lacs in case the same would require by any insured person. The policy bearing no.233102/48/2022/957 dated 29/03/2022 which was provided to the complainants also clarify the same thing. However the OPs or their representatives had never shown, explain or provided any other detailed of the policy to the complainants at any point of time. Unfortunately, the complainant No. 2 Omansh Mehta was suddenly diagnosed with the problem of Tumor of "Ewing Sarcoma" in his Right Kidney and his treatment got started from "Rajiv Gandhi Cancer Research Centre at Rohini, New Delhi. During the said treatment, whenever cashless claim of the complainant no.2 was applied to the OPs, then they themselves were not cleared about their criteria for the approval of the claims and no explanation has been given in this regard by the OPs. They had shown their unfair trade practice while passing the said cashless partial claims by deducted huge amount without any basis. Further on dated 17.10.2022, when cashless claim of the complainant no.2 was filed in the said Hospital, then the same was rejected by the OP No.3 i.e. (TPA) on 17.10.2022 with the remark that the policy Sum Insured amount of Rs.6 lacs has already been exhausted and he is not entitled under additional sum restoration clause. Thereafter complainant no.1 gave several calls and sent emails to TPA/OP No.3, but no response was given. Thereafter the complainant no.1 was not having any other option to pay the whole bill of the Hospital and paid Rs.92,422/-. Due to this the complainant has suffered harassment. The complainant No.1 also gave his written representation on 05.11.2022 to the OPs. During that period the complainant No.2 got admitted for his further treatment at Rajiv Gandhi Cancer Institute on 07.11.2022 and discharged on 08.11.2022 and this time complainants paid an amount of Rs.29,697/- from their own pocket and again he got admitted for his further treatment at Rajiv Gandhi Cancer Institute on 28.11.2022 and discharged on 02.12.2022 and complainant paid an amount of Rs.98,023/- and also paid Rs.19,000/- for PET Scan. On 12.12.2022 the complainant No.1 again gave written representation to the OP No.1, but OPs failed to pass the genuine claim. Thereafter, the complainant No.2 was admitted for his further treatment at Rajiv Gandhi Cancer Institute on 19.12.2022 and discharged on 20.12.2022 and this time complainant paid Rs.24,373/- and then again admitted on 09.01.2023 and discharged on 13.01.2023 and complainants paid Rs.1,01,600/- and thereafter again two times the complainant No.2 admitted and paid Rs.32,356/- and Rs.29,200/-. The complainants received on one letter dated 13.02.2023 on 15.02.2023 from OP No.2 whereby the OPs refused to entertain the claims of the complainants. Due to this act of the OPs, the complainant suffered mental tension and harassment and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay compensation alongwith claim amount of Rs.6,00,000/- with interest @ 18% per annum i.e. Rs.3,00,000/- for balance payment as per Sum Insured Clause plus Rs.1,00,000/- as loss suffered being excess amount paid due to Room Rent Charges Clause alongwith the damages to the tune of Rs.2,00,000/- for causing harassment and mental agony.
2. Notice of the complaint was given to the OPs, but despite service OP No.3 did not appear and ultimately OP No.3 was proceeded against exparte, whereas OPs No.1 and 2 appeared through its counsel and filed its joint written reply and contested the complaint by taking preliminary objections that the complaint of the complainants is not maintainable against OPs No.1 and 2 as they have concealed and suppressed the material facts from this Forum and have not approached the forum with clean hands and as such their complaint deserves dismissal on this ground alone. It is further averred that no cause of action has accrued to complainants to file the present complaint against the OPs No.1 and 2. The OPs No.1 and 2 have been unnecessarily dragged into the litigation. It is further averred that the complainant has not suffered any mental tension and physical torture as alleged in the complaint. There is no untrade practice on behalf of OPs No.1 and 2 as alleged in the present complaint. It is further averred that complaint of the complainant is not maintainable against the OPs No.1 and 2 as there is no deficiency of service on the part of OPs No.1 and 2. On merits, the factum with regard to taking Happy Family Floater policy by the complainant is admitted. It is also admitted that the last policy was valid from 29.03.2022 to 28.03.2023. It is also admitted that the complainant availed restoration of sum assured from 29.03.2022 to 28.03.2023. The factum with regard to accepting the extra premium for adding the clause at the inception of the policy, is also admitted. It is admitted that the basic sum insured was Rs.6,00,000/-, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.
4. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
5. We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for the OPs No.1 and 2 very minutely.
6. It is admitted that the complainant No.1 obtained Health Companion Policy for his family for the last more than 10 years. It is also admitted that the last policy was valid from 29.03.2022 to 28.03.2023. The insurance policies have been proved as Ex.C-1/OP-1. It is also admitted that the complainant availed restoration of sum assured from 29.03.2022 to 28.03.2023.
7. The complainant has alleged that his son complainant No.2 was diagnosed with the problem of Tumor of ‘Ewing Sarcoma’ in his right kidney and treatment was started from Rajiv Gandhi Cancer Research Centre at Rohini New Delhi. During the treatment, cashless claim of the complainant No.2 was applied, which was rejected by the OP No.3 with the remarks that ‘the policy sum insured amount of Rs.6,00,000/- has already been exhausted and the complainant is not entitled to additional sum restoration clause.’ All the facts have been admitted. It has been alleged by the OPs that the complainant No.2 was suffering from Cancer, which is pre-existing disease. As per terms and conditions of the policy, the OPs No.1 and 2 can pay the sum assured, which is before 48 months prior to the current policy issued by the insurer. In the present case, 48 months have not been completed, therefore, the complainant is not entitled to reimbursement of any amount. Balance amount of Rs.2140/- is available and the maximum amount insured is Rs.6,00,000/-, which has already been exhausted by the complainant. It has further been alleged that in case during the policy period, the sum insured gets reduced or exhausted on account of claim under the policy, the sum insured is automatically restored to the extent of the claim amount, but not exceeding the restoration limit opted i.e. 50% or 100% of sum insured at the inception of the policy. It has further been alleged that since the complainant has not adopted the restoration of sum assured clause in his policy from 29.03.2021 to 28.03.2022, therefore, he is not entitled to restoration clause.
8. Now the point in controversy is as to whether the complainant is entitled to the restoration of sum assured or not. It is not disputed that the complainant had paid the 15% extra premium for opting the extra benefit of additional coverage i.e. sum insured restoration of 50%. It is admitted that the OPs have accepted the extra premium for adding the clause at the inception of the policy. It has further been alleged that the complainant was never supplied terms and conditions as alleged by the OP. It is also not disputed that prior to opting the extra benefit of restoration clause, the sum assured was Rs.6,00,000/-. The OP has relied upon terms and conditions of the policy Ex.OP-2, wherein it has been mentioned that if during the policy period, the sum insured gets reduced or exhausted on account of claim under the policy, the sum insured is automatically restored to the extent of claim amount, but not exceeding the restoration limit opted at the inception of the policy. The case of the OP is that since the complainant had not opted for restoration of assured amount in the previous policy, therefore, he is not entitled, but this contention is not tenable. The insurance policies have been proved on record by the complainant. The complainant has also produced on record the entire medical record of his son. Perusal of Ex.OP-1, the policy schedule clearly shows that the complainant had obtained for restoration of sum insured to the extent of 50% value and restoration benefit is an add on feature in health insurance policies that provides an additional sum insured amount after the primary sum insured is exhausted in a policy year and this benefit restores the primary sum insured. In the present case, the ground taken by the OP is that the complainant did not opt for this extra benefit in the previous year and when he came to know about the illness of his son, he opted for this, but there is no condition in Ex.OP-1 that 48 months should have been completed or are required for seeking the extra benefit nor this fact was brought to the notice of the complainant at the time of accepting extra premium for add on facility. It is admitted and proved that the basic sum insured was Rs.6,00,000/-. This basic amount was never enhanced by the complainant rather the complainant has paid the premium for extra benefit i.e. restoration of sum insured, meaning thereby that basic sum insured remained the same, but it restored the policy after the entire amount is exhausted in the policy year that means as per the option of the complainant, it restored the benefit upto 50% i.e. upto Rs.9,00,000/. As per submission of the complainant, the terms and conditions of the policy were never supplied to the complainant. . It has been held in a case titled as “Bajaj Allianz General Insurance Co. Ltd. Vs. Rajwant Kaur and Other”, 2021 (3) CLT 540 (CHD) that ‘the onus is on the appellant insurance company to prove that it provided the terms and conditions of the policy to the complainant and the same were in her knowledge.’ It has been held in a case titled as “National Insurance Co. Ltd. & Ors Vs. M/s Saraya Industries Ltd”, 2020 (1) CLT 278 (NC) that ‘it is the duty of the insurance company to supply all the terms and conditions of an insurance policy to the policy holder-there cannot be any presumption under law on the terms and conditions’. It has been held in a case titled as “Bhanwar Lal Vishnoi Vs. Oriental Insurance Co. Ltd.”, cited in 2017 (1) CLT 401, that ‘the insurance co. has to prove that the exclusion clause under which the claim is sought to be repudiated was communicated to the complainant.’ Even otherwise, once the policy is on the yearly basis, the policy will come to an end on the expiry of a year and the period of four years (48 months) would never reach and the condition laid down of waiting period of four years becomes of no value and meaningless. It has been held by the Hon’ble State Commission, in case titled as “New India Assurance Co. Ltd and others Vs. Ravinder Pal Singh”, 2008 CTJ 769 (CP) (SCDRC) that ‘the exclusionary clause, where there is a condition of three years cannot be made basis for repudiating the claim since the policy run on yearly basis after being renewed by the holder, the condition of three years had no logic underlying it-clearly it was a continuous Good Health Mediclaim Policy.’ The letters relied upon by the OPs clearly show that it has been mentioned specifically that when the sum insured gets reduced or exhausted on account of a claim under the policy, the sum insured is automatically restored to the extent of claim amount, but not exceeding the restoration limit opted i.e. 50%/100% of sum insured. In the present case, the coverage amount of the policy has already been exhausted, therefore, the complainant is entitled to restoration of the policy as he has already got the extra benefit of the restoration of the sum insured after paying the extra premium for the same. Even if there is any such term and condition, these are vague term and condition, which have not been explained to the complainants at the time of inception of the policy. It has been held by the Hon’ble Punjab & Haryana High Court, in Civil Revision No.2318 of 2008, decided on 22.04.2008, titled as “New India Assurance Company Limited Vs. Smt. Usha Yadav & Others”, that ‘the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy’. It has been held by the Hon’ble Supreme Court in Civil Appeal No.6277 of 2004, decided on 24.09.2004, in a case titled as ‘United India Insurance Co. Ltd. Vs. M/s Harchand Rai Chandan Lal’ that ‘The vague and misleading terms inserted in the insurance policies are contrary to the very object of the insurance-All terms in insurance policies must be directed towards achieving the object of the Act by satisfying the purpose of insurance- Any such complicated or misleading conditions and clauses which are beyond the understanding and expectation of a common man and lead to defeating the very purpose of insurance, must be modified.’ It has further been held by the Hon’ble Supreme Court in Civil Appeal No.4436 of 2004, decided on 01.09.2009, in a case titled as ‘New India Assurance Company Ltd. Vs. M/s Zuari Industries Ltd. & Ors.’ that ‘In case of ambiguity in a contract of insurance the ambiguity should be resolved in favour of the claimant and against the insurance company.’ As per Ex.C-2 the cashless facility has been rejected on the ground that sum insured exhausted, but there is no reference of the restoration of sum insured. As discussed above, the complainants have got the sum insured policy i.e. he is entitled to extra benefit of sum insured policy i.e. after the restoration of sum insured the basic amount becomes Rs.9,00,000/- i.e. the 50% of restoration of sum insured i.e. extra benefit. The complainant has proved on record all the correspondence between the complainant and the OP and the bills Ex.C-3 to Ex.C-26. Perusal of Ex.C2, the repudiation letter show that the same was repudiated on 17.10.2022 by Park Mediclaim Insurance Pvt. Ltd., which is OP No.3 and is TPA, but there is no privity of contract of the complainant with the TPA. The privity of contract of the complainant is with the insurance company and the TPA has no authority to reject the claim. It has been held by the Hon’ble State Commission, in a case titled as ‘Sukhdev Singh Nagpal Versus The New Karian Pehalwal Cooperative Agriculture Service Society & Ors.’ in First Appeal No.1105 of 2014, Decided on 25.04.2017 that ‘TPA has no authority to reject the claim such power lies exclusively with the insurance company.’ It has been held by Hon’ble State Commission, in a case titled as ‘Dr. Sudarshan Jindal Vs. The United India Insurance Co. Ltd. etc.’ that ‘TPA had no right to repudiate the claim of the complainant. The competent authority of Insurance Company is only competent to pass orders, accepting or rejecting the insurance claim. ’ So, the repudiation is held to be illegal. For not paying the amount and taking lame excuses for rejecting the claim, the OPs have committed deficiency in service and unfair trade practice. Therefore, the repudiation letter is set-aside and the complainant is held entitled to the amount as per the bills produced by the complainant and is also entitled for the sum insured of Rs.9,00,000/-. Further, he is also entitled to the excess amount paid by the complainant for room rent charges clause of the policy.
9. In view of the above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to give the benefit of extra amount of Rs.3,00,000/- and make the payment of claim with interest @ 9% per annum from the date of repudiation of the claim till its realization. Further, OPs are directed to pay the amount as per the bills produced by the complainant and further to pay a compensation of Rs.20,000/- for causing mental tension and harassment to the complainant and litigation expenses of Rs.8000/-. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
10. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
13.08.2024 Member Member President
