Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 428.
Instituted on : 16.09.2015.
Decided on : 07.02.2017.
Radhey Shyam Gupta s/o Sh. Ram Partap Gupta R/o H.No.751/18, Shastri Nagar, Arya Nagar, Rohtak.
………..Complainant.
Vs.
- Oriental Insurance Company Ltd. through its Manager, Jawahar Market, Opp. D.Park, Delhi Road, Model town, Rohtak.
- Medi Assist India TPA Pvt. Ltd. 47/1, Sri Krishna Arcade, 1st Main 9th Cross Sarakki Industrial Layout, III-Phase, J.P.Nagar, Bangalore, Through its Managing Director.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH. VED PAL, MEMBER
Present: Sh.Deepak Jain, Advocate for the complainant.
Sh.R.K.Bhardwaj, Advocate for the opposite party No.1.
Opposite party no.2 exparte.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that he had obtained a mediclaim policy(with family floater) from opposite party no.1 covering mediclaim risk upto Rs.5 lacs for himself and his family members w.e.f. 29.12.2012 to 28.12.2013, 29.12.2013 to 28.12.2014 and 29.12.2014 to 28.12.2015 and kept paying the premium in time. It is averred that this is a cashless policy and in the month of April 2015 the complainant was got admitted with complaint of palpitation and shortness of Breath in Maharaja Agarsain Hospital Delhi but from there he was referred to Medanta the Medicity, Gurgaon. He was admitted in the said hospital on 14.04.2015 where he was operated for Heart Ailment and Coronary Angiography was done on 14.04.2015, ICD Implantation(medtronic) was done on 16.04.2015 and programming was done on 17.04.2015 and the complainant was discharged on 18.04.2015 from Medanta the Medicity Gurgaon. It is averred that the complainant had spent more than Rs.5 lacs on his treatment as he was paid Rs.524005/- to the Medanta Hospital and spent amount Rs.20000/- on purchasing medicine from outside. It is averred that a request for cashless hospitalization for Mediclaim Insurance policy was sent to the opposite party no.2 who is TPA for opposite party no.1 but the opposite party no.2 vide letter dated 16.04.2015 informed Medical Superintendent Medanta Hospital that patient is a known case of heart diseases from 10 years with diabetes from 2-3 years. As the policy is 3rd year running and the disease is pre-existing the claim is denied vide exclusion clause 4.1. The patient may obtain the treatment as per his treating doctor advice and submit the full claim papers to us for possible reimbursement subject to admissibility of the claim as per terms and conditions of the policy. It is averred that complainant submitted the claim with the opposite party No.1 alongwith all required documents and bills and kept on requesting the opposite party no.2 for reimbursement of the treatment amount sent by him but the opposite party sent a letter dated 18.08.2015 vide which the complainant has been informed that his claim has been denied under policy exclusion clause 4.1 on account of reason as stated in letter. It is averred that act and conduct of the opposite party is illegal and amounts to deficiency in service. As such it is prayed that complaint may kindly be allowed and opposite parties be directed to reimburse/pay the spent amount by the complainant for his treatment i.e. about Rs.600000/- alonwith interest, compensation and litigation expenses to the complainant.
2. On notice opposite party No.1 appeared and filed its written reply submitting therein that the claim of the complainant is not maintainable because it falls under exclusive clause 4.1 of the terms and conditions of the policy. Therefore the insurance company is not liable to pay any compensation. On merits, it is submitted that it is denied that the complainant was firstly admitted in Maharaja Aggarsain Hospital and then referred to Medanta Hosptial Gurgaon. It is wrong that the complainant has spent more than Rs.5 lacs on his treatment and he has paid Rs.524005/- and also spent Rs.20000/- on medicine. It is averred that No claim was rightly passed against the complainant because the claim of the complainant falls under policy exclusion clause 4.1, therefore the insurance company is not liable to pay any compensation to the complainant. All the other contents of the complaint were stated to be wrong and denied. Opposite party prayed for dismissal of complaint with costs. However, opposite party no.2 did not appear despite the notice through registered post and opposite party no.2 was proceeded against exparte vide order dated 25.01.2016 of this Forum.
3. Both the parties led evidence in support of their case.
4. Ld. Counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C2 to Ex.C12 and closed his evidence. On the other hand ld. Counsel for the opposite parties has tendered affidavit Ex.R1, documents Ex.R2 to Ex.R5 and has closed his evidence.
5. We have heard ld. counsel for the parties and have gone through the material aspects of the case carefully.
6. In the present case it is not disputed that as per policy schedule Ex.C3 the complainant was insured with the opposite party for the period from 29.12.2014 to 28.12.2015, as per policy Ex.C4 for the period 29.12.2013 to 28.12.2014. It is also not disputed that complainant had taken treatment for CAG and has applied for claim through claim form Ex.C5 with the opposite party but the opposite party vide its letter Ex.C6 has denied the claim vide exclusion clause 4.1. As per hospital bill Ex.C8, complainant had spent an amount of Rs.524005/- on his treatment. Complainant has also placed on record copy of bills Ex.C9 to Ex.C11. Ex.C12 is the another letter whereby the claim has been denied on the ground that as per cashless request form, patient is having history of diabetes since 2-3 years and heart disease since 10 years. Since the current ailment is related to both of them and are present prior to policy inception. Hence, the claim is being repudiated under policy exclusion of above mentioned policy clause 4.1.
7. After going through the file and hearing the parties it is observed that the claim of the complainant has been repudiated by the opposite party on the ground that the complainant was suffering from diabetes since 2-3 years and heart disease since 10 years. But to prove its contention, opposite party no.1 has not placed on record any hospitalization or treatment record of life assured that he was suffering from the alleged diseases. The repudiation letter is based upon the claim request form Ex.C5 but the same is not sufficient to prove the past history of illness of policyholder. In this regard ld. counsel for the complainant has placed reliance upon the law cited in IV(2011)CPJ6(SC) titled as P.Vankat Naidu Vs. LIC of India & Anr. whereby Hon’ble Supreme Court of India has held that : “Respondents did not produce any tangible evidence to prove that deceased withheld information about his hospitalization and treatment”, as per 1(2005)CPJ32(NC) titled as Surinder Kaur & Ors. vs. LIC of India & Ors. whereby Hon’ble National Commission has held that : “Suppression of material facts-Contention, deceased chronic alcoholic for last 12 years, not disclosed, not acceptable as no record produced in support-Doctor’s opinion based on hospital history, not sufficient-No treatment record prior to proposal produced-Repudiation on basis of hospital record unjustified-Company liable under policy”. We have also placed reliance upon the law cited in III(2014)CPJ 340 (NC) titled as New India Assurance Co. Ltd. vs. Rakesh Kumar whereby Hon’ble National Commission has held that : “O.P.did not produce any evidence to prove that which medication and for how long the complainant was taking for diabetes/hypertension-OP cannot apply hard and fast rule to presume that complainant was suffering for long duration i.e. before taking the policy-People can live for months, even years, without knowing they have the disease and it’s often discovered accidentally after routine medical check-ups-concealment not established-Repudiation not justified”. Moreover it is not proved on file that the alleged Exclusion clause were the part of policy and that the terms and conditions of the policy were supplied to the complainant. In this regard we have placed reliance upon the law cited in 2015(1)CLT591 titled as Star Health and Allied Vs. Asha & Others, whereby it is held that: “Insurance policy-Exclusion clause-Not explained to insured when cover note was issued-Insurance company cannot derive any benefit from exclusion clause”, as per 2013(1)CLT 589 titled as New India Asurance Co. Ltd. Vs. Pabbati Sridevi & Others Hon’ble National Commission has held that: “Terms and conditions therein, not communicated to the insured-Whether can be used by Insurance Company-No-Held that the terms and conditions were never issued to the insured-Policy is in the nature of standard, printed documents. There is nothing to show that its contents were part of the policy document issued to the insured-Terms and conditions in insurance policy cannot be rely upon by insurance company”. In view of the aforesaid law which are fully applicable on the facts and circumstances of the case, it is observed that the repudiation of claim by the opposite party No.1 is illegal and unjustified and the complainant is entitled for the claim amount as per policy. On the other hand, law cited by ld. counsel for the opposite party titled as IV((2011)CPJ603(NC) titled as Life Insurance Corpn. Of India Vs. Francis Antony D’souza, 1(2014)CPJ 496(NC) titled as Life Insurance Corporation of India Vs. S.S.Jamuna and III(2015)CPJ4B(CN) (UT Chd.) titles as Sushil Mittal Vs. Aegon Religare Life Insurance Co. Ltd. & Anr. are not fully applicable on the facts and circumstances of the case as the authorities cited above are based upon the treatment record but in the present case no treatment record of the insured prior to taking the policy has been placed on file.
8. In view of the facts and circumstances of the case it is observed that complainant is entitled for the claim amount as per policy. The complainant has placed on record copy of bills of treatment for Rs.524000/- vide bill Ex.C8 and Ex.C9 for Rs.1172/-. But as per the policy Ex.R2 the sum insured under the policy is Rs.5 lacs. Hence the complainant is entitled for Rs.500000/- only.
9. In view of the facts and circumstances of the case, it is directed that opposite party No.1 shall pay the claim amount of Rs.500000/-(Rupees five lacs only) along with interest @ 9% p.a. from the date of filing the present complaint i.e. 16.09.2015 till its realization and shall also pay a sum of Rs.3500/-(Rupees three thousand five hundred only) as litigation expenses to the complainant maximum within one month from the date of decision failing which the opposite party No.1 shall be liable to pay interest @ 12% p.a. on the awarded amount from the date of decision. Complaint is allowed accordingly.
10. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
07.02.2017.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
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Ved Pal, Member
