DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016
Case No.763/2009
Sh. Gaurav Agarwal
H-226B, Western Avenue Lane No.8,
Sainik Farms, New Delhi ….Complainant
Versus
1. Oriental Insurance Company Ltd.
Divisional Office-25,
G-8, Hauz Khas Market,
New Delhi-110016
Also at:
A-25/27, Asaf Ali Road,
New Delhi-110002
2. Raksha TPA Limited
202, Okhla Industrial Estate,
Phase-III, New Delhi ….Opposite Parties
Date of Institution : 14.10.09 Date of Order : 29.10.18
Coram:
Sh. R.S. Bagri, President
Ms. Naina Bakshi, Member
ORDER
Naina Bakshi, Member
Briefly stated, the case of the complainant, in nutshell, is that the complainant had taken a mediclaim policy from the OP No.1 vide cover note No.930611 dated 27.04.11 after paying total premium of Rs.4825/- for himself and his mother, namely, Mrs. Anjulika Aggarwal for sum assured of Rs.1,00,000/- and Rs.3,00,000/- respectively for the period from 27.04.01 to 26.04.02 which was lastly renewed vide policy No.272600/48/2010/144 on 27.04.09 for the period from 27.04.09 to 26.04.10. The complainant included his wife Mr. Geetanjali Aggarwal in the said policy. As per the terms and conditions of the policy, it covers hospitalization and domiciliary hospitalization benefits and also provides cashless facility at selected hospital. On 02.01.07 the mother and co-insured of the complainant was admitted in the Paras Hospital, Gurgaon wherein she had undergone total abdomen hysterectomy with bilateral salipingo opherectomy with umbilical hernia repair surgery on 05.01.07 and was discharged on 10.01.07. Immediately after hospitalization the complainant informed the OP No.1 through fax on 02.01.07. After discharging from the hospital the complainant filed a claim for reimbursement on 17.01.07 for an amount of Rs.1,46,208/- incurred on the treatment of his mother and submitted necessary documents and bills requesting the OP No.2 to make the reimbursement of the same. The complainant received a letter dated 19.02.07 from OP No.1 wherein OP No.1 refused to make the payment on the ground that the said claim falls under policy exclusion clause No. 4.1 i.e. most the illness diagnosed were either pre-existing or complications related to pre-existing disease. The complainant sent a letter dated 23.03.07 to the OP and informed that the said treatment has no relation with the pre-existing disease as the said medical policy of the complainant had in existence for last 6 years and the same was renewed from time to time but no reply was received from the OP. In the meantime the mother of the complainant was again hospitalized in Healers Hospital, Golf Course Road, Gurgaon on 06.08.07 and discharged on 12.08.07 for the treatment of illness ‘INCISIONAL HERNIA’. The complainant further incurred expenses on the treatment & informed the OP-1 vide letter dated 16.08.07 for an amount of Rs.1,10,541/-. It is submitted that the complainant made several visits and requested the OP-1 to reimburse the claim. The OP-1 vide letter dated 02.11.07 reiterated the ground for rejection of the claim mentioned under letter dated 19.02.07. Hence pleading deficiency in service on the part of the OPs the complainant has filed the present complaint with the following prayers:-
- Direct the OPs to pay the amount of Rs.2,56,749/- (Rs.1,46,208 and Rs.1,10,541/-) alongwith 18% interest from the date when the claim was made by the complainant for reimbursement of the medical expenses till the date of payment and/ or
- Direct the OPs to pay compensation of Rs.2,00,000/- to the complainant in lieu of the mental and physical harassment suffered by the complainant due to callous and arbitrary attitude of the OP and / or
- Direct the OPs to pay the litigations cost of Rs.21,000/-.
OP No.1 in its written statement has inter-alia stated that it is admitted that the OP No.1 vide letter dated 19.02.07 repudiated its liability with respect to the claim lodged by the complainant for treatment taken at Paras Hospital, Gurgaon on the ground that the claim falls under policy exclusion clause No. 4.1 i.e. the most of the illness diagnosis either pre-existing or complications related to pre-existing disease. The contents of the letter dated 02.11.07 of the complainant are also not disputed. The claim of the complainant is not maintainable under the relevant mediclaim policy and the decision with respective to the above was duly communicated to the complainant. The claim of the complainant was not found payable being excluded as per exclusion clause 4.1 of the mediclaim policy which reads as follows:
“4.0 The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of:
“4.1 All diseases/injuries which are pre-existing when the cover incepts for the first time. For the purpose of applying this condition, the date of inception of the initial Mediclaim Policy taken from any of the Indian Insurance Companies shall be taken, provided the renewals have been continuous and without any break.”
It is submitted that the allegation made by the complainant are denied. The claim of the complainant was duly processed and on basis of scrutiny of the documents the claims of the complainant were made no claim. OP has prayed for dismissal of the complaint.
OP No.2 was proceeded exparte vide order dated 17.12.09.
Complainant has filed rejoinder reiterating the averments made in the complaint.
Affidavit of Sh. L. K. Bhalla, DM of the OP has been filed in evidence on behalf of the OP.
Written arguments have been filed on behalf of the parties.
We have heard the arguments on behalf of the parties.
We have also gone through the file very carefully.
Admittedly, the complainant took a mediclaim policy from the OP No.1 vide cover note No.930611 dated 27.04.11 after paying total premium of Rs.4825/- for himself and his mother, namely, Mrs. Anjulika Aggarwal for sum assured of Rs.1,00,000/- and Rs.3,00,000/- respectively for the period from 27.04.11 to 26.04.12 which was lastly renewed vide policy No.272600/48/2010/144 on 27.04.09 for the period from 27.04.09 to 26.04.10. The complainant has filed the Happy Floater Policy as Annexure-1. The complainant submitted the hospitalization benefit claim on 17.01.07 as Annexure-2 alongwith the claim form. The OP No.1 vide letter dated 19.02.07 as Annexure-3 repudiated the claim of the complainant. The complainant vide letter dated 13.03.17 as Annexure-4 requested the OP No.1 to settle the claim. The complainant vide letter dated 23.3.07 sent a legal notice to the OP No.1. The OP No.1 vide letter dated 02.11.07 repudiated another claim of the complainant as Annexure-8. The OP No.1 filed the mediclaim insurance rules and regulations as Annexure OP3.
The complainant has filed copies of judgments passed by the Hon’ble Delhi High Court in case No. WP(C) No. 656/07- Hari OM Aggarwal Vs. Oriental Insurance Co. Ltd. and another judgment by Hon’ble National Commission in No. RP No. 257/14 - The New India Assurance Co. Ltd. Vs. Rakesh Kumar.
In Hari OM Agarwal’s case (supra) it is held that “it would be apparent that giving a textual effect to clause 4.1 would in most such cases render the mediclaim cover meaningless; the policy would be reduced to a contract with no content, in the event of the happening of the contingency. Therefore, I am of the opinion that clause 4.1 cannot be allowed to override the insurer’s primary liability; the main purpose rule would have to be pressed into service.”
In the case of The New India Assurance Co. (supra) it is held that “.. He stressed upon the fact that the complainant concealed his preexisting disease; he was suffering from Diabetes and Hypertension. He brought our attention to the hospital records like Lama Summery of Mukat Hospital, Chandigarh and Discharge Summery of Delhi Heat and Lung Institute, Delhi. On perusal of both records we find that there is a mention of Essential Hypertension and Diabetes Mellitus. But, it is quite surprising that, no where it was stated that, the duration of diabetes/hypertension that how long the complainant was suffering. Therefore, it appears to be a just vague, which did not carry any evidentiary value. Even also, the OP did not produce any evidence to prove that which medication and for how long the complainant was taking for diabetes/hypertension. The counsel vehemently argued that, diabetes and hypertension are chronic disease, having long duration, but as per the complainant it was diagnosed after 19 months of taking the policy. It is known that, many times the healthy persons are unaware of such silent ailments of diabetes and hypertension, which come to their knowledge first time during health checkup camps or in any emergent situation. Thus, OP cannot apply a hard and fast rule to presume that, the complainant was suffering for long duration i.e. before taking the policy. Therefore, we are not convinced with this argument. No doubt the medical literature states that, the Hypertension and Diabetes are risk factors for Coronary Artery Disease, but the OP failed to prove that those diseases were pre-existing in this case. It was just a hypothetical presumption of OP to repudiate the claim of the complainant. Such argument is bereft of any merit and has no medical basis….”
In view of the above judgments, they are applicable to the facts and circumstances of the present case. Therefore, even otherwise OP-1 had repudiated the claim according to clause 4.1 of terms and conditions of the policy. It is clear that the policy in question was in continuation coverage for more than 9 years and hence was not covered under clause 4.1. Therefore, the rejection of the claim by the OP-1 was totally illegal, perverse, unjust and uncalled for.
In the above discussion, we do not find any concealment made by the complainant. The repudiation of the claims by the OP-1 is unjustified and amounts to deficiency in service. We allow the complaint and direct the OP No.1 to pay sum of Rs.2,56,749/- along with @ 6% p.a. interest from the date of filing of the complaint till realization and Rs.25,000/- towards harassment and cost of litigation etc. to the complainant within 30 days from the date of receipt of copy of this order failing which the OP-1 shall become to pay interest @ Rs.7% per annum on the amount of Rs.2,56,749/- to the complainant from the date of filing of the complaint till realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
Announced on 29.10.18.
