Janak Rani, complainant (here-in-after referred to as 'complainant') has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against Oriental Insurance Company Ltd., & another (here-in-after referred to as 'opposite parties').
Briefly stated, the case of the complainant is that complainant and her husband Rajesh Kumar are permanent resident of Goniana Mandi, Distt. Bathinda. They are having bank account with Oriental Bank of Commerce Goniana Mandi.
It is pleaded that opposite party No. 1 issued one Medi-Claim insurance policy No.233200/48/2016/1834 w.e.f. 15-09-2015 to 14-09-2016 under cashless scheme at Goniana Mandi, Distt. Bathinda through OBC Goniana with TPA opposite party No. 2 under the scheme of Oriental Bank Mediclaim Policy to their account holders. Cashless card was also issued. Under this policy, Rajesh Kumar husband of the complainant and complainant Janak Rani are duly insured under cashless for Rs.4.00 Lacs each. As per medi-claim insurance, any person of the policy holder can avail insurance upto Rs.4.00 Lacs on first basis or both can use the said amount i.e. upto Rs. 4.00 Lacs.
It is alleged that opposite parties never issued any complete policy to the complainant or her husband till date. They have issued insurance certificate only. The opposite parties assured the complainant that in case of any emergency, the claim can be lodged in anywhere in India with the nearest offices of the opposite parties and admitted in any hospital in India. It was also assured that this is cashless insurance and the opposite parties will pay the entire claim upto the sum assured i.e. Rs.4.,00 Lacs directly to the hospital.
As per complainant, she has no problem of heart or any other diseases like DM (Diabetic) and HTN (Hypertension) etc.. She never undergone any hospitalization in the past history. The complainant has only minor hypertension. There is no question of concealment of pre-existing disease.
It is also pleaded that for the first time, on 16-8-2016, all of sudden, the complainant had Chest Pain. She was immediately taken to Jindal Heart. Institute and Infertility Centre, Power House Road, Bathinda. The family of the complainant lodged cashless claim with the hospital as the said hospital is duly network hospital for cashless treatment in the Insurance. The hospital sent information and registered claim with the opposite parties under their system by e-mail. The complainant was duly treated by Dr. Rajesh Jindal DM Cardiologist and CART (Coronary Angiography) was done on 16-08-2016, which revealed (SVD)(Single Vessel Disease) Primary PTCA/S (Angioplasty Stent) to D1 with I/V Gp2b/3a inhibitor (tirofiban) done in same sitting. The complainant was discharged on 20-08-2016 in stable condition. The treatment given by doctor duly mentioned in the treatment record that the complainant had no history of DM, no history of HTN. The doctor never prescribed any medicine of HTN to the complainant even at the time of treatment in the hospital or even after discharge from the hospital. The complainant spent Rs.1,37,604/- for treatment, stent and medicine charges etc., The original bills with original treatment file were submitted with the opposite parties for reimbursement.
It is alleged that opposite parties firstly not provided cashless treatment from hospital. Thereafter they did not show readiness to reimburse the expenses made by complainant and her husband from their pocket.
It is also alleged that the opposite parties denied legal claim of the complainant with illegal grounds that the expenses related to the treatment of HTN is not covered in first two years of policy. It is against the facts as there is no history of HTN. Moreover, Dr. Rajesh Jindal issued Certificate that the patient has denied any Hypertension (HTN). The patient was not taking any HTN Drug but the opposite parties did not listen the same. The Complainant requested the opposite parties for release of claim of Rs. 1,37,604/- but finally on 03-05-2017, the opposite parties through mail rejected the claim on flimsy ground with Exclusion clause No. 4.2. The amount of Rs. 1,37,604/- is still pending with the opposite parties. Original bills with original medical file is still in possession of the opposite parties. The Exclusion Clause was neither supplied to the complainant at the time of Insurance nor at the time of rejecting the claim, although it is mandatory as per law settled by Apex Court.
It is also pleaded that this clause is not in the knowledge of the complainant as the same is not part of the insurance policy. This clause is not applicable on the complainant as there is neither any HTN past history of the complainant nor she was treated for HTN related disease nor any drug for HTN was taken by her in the past nor during treatment with Jindal Heart Hospital.
It is alleged that rejection of claim is illegal. The opposite parties were required to settle the claim within two months from the date of intimation. 'No Claim' e-mail was issued on 03-05-2017 after six months.
On this backdrop of facts, the complainant has claimed Rs. 1,00,000/- as compensation for mental agony and pains in addition to Rs. 50,000/- as cost of litigation and recovery of Rs. 1,37,604/- with interest. Hence, this complaint.
Upon notice, none appeared on behalf of opposite party No. 2, as such, it was proceeded against exparte.
The opposite party No. 1 appeared through counsel and contested the complaint by filing written reply. In written reply, the opposite party No. 1 raised legal objections that complaint has been filed by the complainant only to injure goodwill and reputation of the opposite party. The complaint is false, frivolous and vexatious to the knowledge of the complainant. It is liable to be dismissed with special cost under section 26 of the 'Act'. That intricate questions of law and facts are involved in the complaint, which require voluminous documents and evidence. That the complainant has concealed material facts and documents from this Forum.
As per opposite party, on receipt of claim papers from the complainant, the claim was referred to opposite party No. 2 Medi Assist India Pvt. Ltd., which has been constituted as TPA (Third Party Administrator) to settle the medi-claim cases. The opposite party No. 2 has processed and scrutinized the same. Thereafter, opposite party No. 2 found that complainant was admitted at Jindal Heart Institute and Infertility Centre on 16-8-2016 with CAD, ACWMI, HTN, CART AND PTCA done and was discharged on 20-8-2016. Complainant is covered under Oriental Bank Medi-claim Policy since 15-9-2015. As per policy, expenses related to the treatment of HTN and related complications are not admissible during first two years of policy inception. Accordingly, opposite party No. 2 repudiated the claim of the complainant under Exclusion 4.2. An intimation in this respect has been given to the complainant well within time. The complainant has filed the present complaint on flimsy grounds by twisting the actual facts. Further legal objections are that complainant has no locus standi or cause of action to file the complaint against the opposite party. That the complaint is not maintainable and lastly that the complainant is not consumer under the 'Act as there is no deficiency in service or unfair trade practice on the part of the opposite party.
On merits, it is not denied that complainant and her husband are having bank account with Oriental Bank of Commerce, Goniana Mandi and it is stated to be matter of record. It is also not denied that opposite party issued medi-claim insurance policy as revealed by complainant and it is stated to be matter of record. It is denied that complainant and her husband were insured under cash less scheme for Rs. 4,00,000/- each. It is also denied that complainant was not issued complete policy. Rather it is asserted that detailed policy documents have been issued to the complainant.
It is further mentioned that the duty of the insured is to get himself aware about the terms & conditions of the policy before signing the proposal form. On the insurance certificate also, it is specifically mentioned that insurance under this policy is subject to conditions, clauses, warranties and endorsements. It was further cleared that for policy details please visit web site of OIC or OBC at www.orientalinsurance.org.in All other averments of the complainant are denied. The opposite party has reiterated its stand as taken in preliminary objections and detailed above to justify repudiation. In the end, the opposite party prayed for dismissal of complaint.
Parties were afforded opportunity to produce evidence. In support of her claim, complainant has tendered into evidence her affidavit dated 17-9-2017 (Ex. C-1), photocopy of policy schedule (Ex. C-2), photocopy of discharge summary (Ex. C-3), photocopy of certificate (Ex. C-4), photocopy of claim form (Ex. C-5), photocopy of bills and receipts (Ex. C-6 to Ex. C-17), photocopy of e-mail (Ex. C-18) and photocopy of intimation letter (Ex. C-19).
In order to rebut this evidence, opposite party has tendered into evidence affidavit dated 12-7-2017 of R L Baleem (Ex. OP-1/1), photocopy of letter dated 4-7-2017 (Ex. OP-1/2), photocopy of Reimbursement Claim File (Ex. OP-1/3), photocopy of Claim Form (Ex. OP-1/4), photocopy of intimation (Ex. OP-1/5), photocopy of letter dated 24-8-2016 (Ex. OP-1/6), photocopy of discharge summary (Ex. OP-1/7), photocopy of certificate (Ex. OP-1/8), photocopy of angiography report (Ex. OP-1/9), photocopy of angioplasty report (Ex. OP-1/10), photocopy of policy schedule (Ex. OP-1/11), photocopy of policy terms and conditions (Ex. OP-1/12) and closed the evidence.
The complainant has also submitted written arguments.
We have heard learned counsel for the parties, gone through the record and written arguments of complainant.
The learned counsel for the complainant has submitted that material facts are not denied. It is admitted that complainant and her husband were insured under the policy in question. It is admitted that complainant got treatment from Jindal Heart Institute and Infertility Centre, Bathinda, and submitted bills. The opposite parties have repudiated the claim vide letter dated 14-7-2017 (Ex. OP-1/2) on the ground that expenses related to treatment of HTN and related complication are not admissible during first two years of policy. The opposite parties have also taken shelter of Exclusion Clause 4.2 stated to be mentioned in the policy. The complainant has repeatedly asserted that no policy containing terms and conditions were supplied to the complainant and the condition, if any, against the interest of complainant cannot be applied against complainant and these are not binding upon her. The opposite parties were required to prove by evidence that policy documents were supplied to the complainant or her husband. There is no such evidence. No despatch register or postal receipt is brought on record to prove this fact. Therefore, exclusion clause, if any, is not applicable against the complainant.
It is further submitted by learned counsel for the complainant that even otherwise the opposite parties are not justified to repudiate the claim under the shelter of Exclusion Clause 4.2. It is revealed in the repudiation letter that expenses related to the treatment of HTN and related complication are not admissible during first two years of policy. The complainant has produced on record discharge summary (Ex. C-3). The history of the complainant is revealed in this document. It is categorically mentioned that patient is having history of Non DM/Non HTN. The medication prescribed to the complainant is also briefed in this discharge summary. There is nothing to show that complainant was given treatment for HTN. There is also nothing on record to prove that treatment was relating to HTN. Therefore, Exclusion Clause is not applicable in the case of complainant. From both angles repudiation of claim is not justified. As such, it amounts to deficiency in service. The complainant is entitled to the reliefs prayed for.
In support of his submissions, learned counsel for the complainant has cited :
(i) First Appeal No.1717/2003 Decided on 27.05.2009 titled Gurlal Singh Vs. O.I.C.
(ii) First Appeal No.1579/2004 Decided on 05.03.2010 titled O.I.C. Vs. Puneet Pasricha
(iii) 2010(1) CPJ 189 titled The New India Assurance Co. Vs. Arun Mangla
(iv) 2005(3) CPR 138 Titled O.I.C. Vs. Neeraj Rani
(v) 2008(4) CPJ 89(NC) titled LIC vs. Kunari Devi
(vi) 2007(4) CPJ 319 LIC vs. Darshana Devi
(vii) 2005(4) CPJ 599 titled LIC vs. Kusum Lata
(viii) 2008(4) CPJ 19(NC) titled Santosh Kanwar vs. LIC
(ix) 2008(2) CPJ 300(NC) titled LIC vs. Chandra Kanta
(x) 2008(3) CPJ 120 titled LIC vs. Sarabjit Kaur
(xi) FAO No.566 of 2008 Date of Decision- 15.11.2012 titled LIC vs. Raj Rani-
(xii) 2008(3) CPJ 279 titled LIC vs. Satinder Kaur
(xiii) 2008(3) CPJ 296 titled LIC vs. Santosh Devi
(xiv) 2009(1) CPJ 424 titled LIC vs. Shakuntla Devi
(xv) 2009(1) CPJ 402 titled LIC vs. Kastura Ram
(xvi) 2007(3) CPJ 336(NC) titled as Abiba Life Insurance Co. vs. T. Umawathi
(xvii) 2005(2) CPJ 78(NC) titled LIC vs. Joginder Kaur
(xviii) 2005(2) CPJ 32(NC) titled as Surinder Kaur vs. LIC of India
(xix) 2004 (1) CPJ 91(NC) titled LIC vs. Promila Malhotra
(xx) 1997(2) CPJ 1(NC) titled New India Assurance Co. Ltd. vs. P.P.Khanna
(xxi) 2005(2) CPJ 662 titled LIC vs. Kala Venkat Rao
(xxii) 2005(2) CPJ 449 titled LIC vs. Belmati Hira
(xxiii) 2005(2) CPJ 354 titled LIC vs. Harpreet Kaur
(xxiv) 1996 (3) CPJ 136(NC) titled B. Chinnamma vs. LIC of India
(xxv) 1997(1) CPJ 310 titled LIC vs. Jeeto Devi
(xxvi) 1998(1) CPJ 568 titled LIC vs. T.Venkateshwarlu
(xxvii) 2007(2) CPJ 452 titled LIC vs. Sudha Jain
On the other hand, learned counsel for opposite party has submitted that complainant has not approached this Forum with clean hands and has rather concealed the material facts. The complainant has brought on record copy of cover note (Ex. C-2). It is categorically mentioned in this document that 'for policy details please visit the web sites', address of which is also given in this document. It is also mentioned that policy is subject to conditions, clauses, warranties and endorsements. Therefore, insured was made aware of the fact that this policy is subject to certain conditions and he was also made aware that they can access the conditions from the web site. It is not statutory policy. It is optional policy. Therefore, it is also not believable that insured will pay such amount as premium without understanding terms and conditions of the policy. Even otherwise complainant is under obligation to get information of the policy at his own level. Non-supply of terms and conditions of the policy is no excuse and does not provide any shelter to the complainant.
To support this contention, learned counsel for the opposite party has cited Aman Kapoor Vs. National Insurance Company Ltd., 2017 (2) CTJ 372 (NC).
The conditions including Exclusions detailed in the policy document are also applicable to the complainant. The opposite party has placed on record copy of policy Ex. OP-1/12. Some of the disease/surgeries detailed in this condition are excluded for a particular period. This condition also contains treatment for hypertension. The complainant herself has placed on record copy of discharge summary (Ex. C-3). The complainant was diagnosed for CAD/Ac. WML SVD. The procedure done is CART i.e. heart ailment. This Forum can also take judicial notice of the fact that hypertension is the main cause for this disease. Therefore this treatment is also related to hypertension and is excluded under condition No. 4.2. The opposite parties are justified to repudiate the claim.
It is further submitted by learned counsel for the opposite party that even otherwise if this Forum comes to the conclusion that complainant is entitled to reimbursement, then she is entitled to reimbursement only as per limit briefed in the policy document.
We have carefully gone through the record, case law cited by learned counsel for the parties and have considered the rival contentions.
It is admitted that opposite parties issued the policy in question. The complainant and her husband Rajesh Kumar were also covered under the policy. The complainant has placed on record copy of policy schedule (Ex. C-2) to prove this fact. It is also admitted that complainant took treatment from Jindal Heart Institute and submitted claim. The opposite parties have repudiated the claim under the shelter of condition No. 4.2.
Therefore firstly it is to be seen whether the complainant was made aware of the policy document containing terms and conditions. The complainant has denied having received the policy documents. The opposite parties have also not produced on record any evidence to prove despatch of policy documents. Therefore, this matter is to be decided on the basis of other documentary evidence available on record.
It is not a statutory policy. The complainant was not under obligation to avail this policy. The policy schedule (Ex. C-2) relied upon by the complainant also shows that this policy is subject to conditions, clauses, warranties and endorsements. It is also mentioned in this document that 'for policy details, insured can visit web sites of OIC or OBC. The address of the site is also mentioned in this document.
Hon'ble National Commission in the case of Aman Kapoor Vs. National Insurance Company Limited (supra) has also observed that it is incumbent upon the consumer to be informed and responsible consumer in order to avail all relief under Consumer Protection Act. Ignorance of the terms and conditions of the policy is no excuse and not provide any shelter to the complainant.
Therefore, keeping in view these facts, it is to be accepted that complainant was aware of the terms and conditions contained in the policy documents.
The next point for determination is whether the opposite parties were justified to repudiate the claim. Letter dated 14-7-2017 (Ex. OP-1/2) reveals that opposite parties repudiated the claim on the ground that 'As per the policy expenses related to the treatment of HTN and related complication, are not admissible during first two years of policy inception'.
The opposite parties have presumed that complainant has obtained treatment for HTN and related complications. No evidence has been collected by the opposite parties to prove that complainant was suffering from HTN. The complainant has also produced on record Discharge Summary (Ex. C-3) which reveals her history as 'Non DM/Non HTN'. The complainant has also produced on record copy of certificate (Ex. C-4) issued by treating doctor. Vide this certificate it is mentioned that 'Patient had denied to be hypertensive during admission and was taking no anti hypertensive drugs, so she was reported as non hypertensive during her hospital stay.'
Therefore, documentary evidence produced by complainant also shows that she was not suffering from HTN. The opposite parties have not collected any evidence to prove that complainant was suffering from HTN and she was treated for HTN or related complications. Only from the fact that patient took treatment for cardiac problem, it cannot be concluded that patient was suffering from HTN. Therefore, repudiation of claim is not justified.
Now the question is regarding amount for which complainant can be reimbursed. Of course the complainant has placed on record bills (Ex. C-6 & Ex. C-7) and receipts (Ex. C-8 & Ex. C-9). She has also produced on record bills (Ex. C-10 to Ex. C-17) to prove that she has spent Rs. 1,37,604/- and has claimed reimbursement of this total amount. The opposite party has placed on record policy document (Ex. OP-1/2) which details hospitalization benefits. It is also mentioned that liability under the policy is limited in some matters/diseases. Therefore, the complainant is entitled to reimbursement in accordance with the terms and conditions mentioned in the policy document and this is to be settled by the opposite parties as per terms and conditions.
In view of what has been discussed above, this complaint is partly accepted with Rs. 10,000/- as cost and compensation against the opposite parties. The opposite parties are directed to settle the claim of the complainant and pay the amount found payable to her.
It is made clear that opposite parties will furnish the details of the claim found payable/non-payable viz-a-viz conditions contained in the policy document. It is further made clear that the opposite parties will be at liberty to seek any other information/clarification, if legally required in connection with the claim in question.
It is further made clear that complainant will be at liberty to avail remedy as per law, if not satisfied with the settlement of claim made by opposite parties.
The compliance of this order be made by the opposite parties within 45 days from the date of receipt of copy of this order.
The complaint could not be decided within the statutory period due to heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost and file be consigned to the record.
Announced :
08-02-2018
(M.P.Singh Pahwa )
President
(Jarnail Singh )
Member
