Punjab

Faridkot

CC/15/71

Sanjeev Kumar - Complainant(s)

Versus

Oriental Insurance Company Limited - Opp.Party(s)

Abjit Singh Kang

15 Dec 2015

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT

 

Complaint No. :      71

Date of Institution:  27.05.2015

Date of Decision :   15.12.2015

 

Sanjiv Kumar s/o Roshan Lal Monga r/o Mohalla Sethian, Faridkot,  Tehsil and District Faridkot.                                           ...Complainant

Versus

1. The Oriental Insurance Company Limited through its Branch Manager, near Old Grain Market, Kotkapura, District Faridkot.

2. Punjab National Bank, Main Bazaar, Faridkot.

3. Oriental Insurance Company, 4501, Bank Street, Bathinda through its Branch Manager.

   .....Opposite Parties

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

 

Quorum: Sh. Ajit Aggarwal, President,

               Smt Parampal Kaur, Member,

               Sh P Singla, Member.

 

Present: Sh Abjit Singh Kang, Ld Counsel for complainant,

              Sh Deep Chand Goyal, Ld Counsel for OP-1 and 3,

              Sh Y P Bansal, Ld Counsel for OP-2.

 

(Ajit Aggarwal, President)

                               Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against OPs seeking directions to OPs to make payment of medical claim amount worth Rs.65,233/-from the date of treatment till realization and for further directing OPs to pay Rs 10,000/- as compensation for harassment, inconvenience, mental agony besides litigation expenses.

2                                        Briefly stated, the case of the complainant is that on assurance of Ops, complainant is holder of PNB Oriental Insurance Royal Mediclaim Policy bearing no. 233200/48/2014/4468 valid from 7.03.2014 to 6.03.2015 covering complainant, his wife and his two children. Said policy was sold by OP-2 and issued by OP-3. It is further contended that son of complainant was suffering from Pilonidal Sinus and was admitted in Fortis Hospital, Ludhiana and he underwent Wide Excision Pilonidal Sinus and Limburg’s Flap on 1.10.2014 at 12.30 pm under regional anaesthesia. He was admitted in hospital on 1.10.2014 and was discharged on 4.10.2014. Intimation regarding this was given to OPs and complainant lodged claim worth Rs 59,918/-by furnishing all the documents and completed all formalities. Son of complainant was again admitted in Fortis hospital for treatment and was subjected to Laser Hair Reduction Bikni Area for 7.04.2015 and amount of Rs 5,315/- was incurred on his treatment and bill no. CS73947 for Rs 5,315/- was also delivered to OPs, but despite repeated requests, OPs have not paid the claim. Complainant served legal notice dt 5.05.2015 to OP-3, but till now, they have not made payment of genuine claim of complainant, which amounts to deficiency in service and trade mal practice on the part of Ops and it has caused harassment and mental agony to complainant for which he has prayed for directions to Ops to pay Rs 10,000/-as compensation alongwith litigation expenses besides the main relief. Hence, the  present complaint.

3                             The counsel for complainant was heard with regard to admission of the complaint and vide order dated 25.06.2015, complaint was admitted and notice was ordered to be issued to the opposite party.

4                                    Op-1 and 3 in their written statement took preliminary objection that complicated questions of law and facts are involved in this case, which cannot be decided in summary proceedings and therefore, complaint is not maintainable in this Forum. However, on merits, OPs asserted that disease of son of complainant is not payable for a specific period of two years as per exclusion clause 4.3 (x). On perusal of documents, it is found that Shivam Monga son of complainant was admitted at Fortis Hospital for treatment of Pilonidal Sinus on 1.10.2014 and discharged on 4.10.2014 and as per terms of Policy, during the period of insurance cover the expenses on treatment of disease for FISSTURE AND FISTULA  IN ANUS disease for specified period of two years is not payable for contracted and or manifested during the pendency of the policy and thus, said claim is not payable as per exclusion clause and intimation regarding it was given to complainant and thus, complainant is not entitled to any compensation. All the other allegations levelled by complainant are denied being wrong and incorrect and it is reiterated that there is no deficiency in service or unfair trade practice on the part of answering OPs. The allegations with regard to relief sought too were refuted with a prayer that complaint deserves to be dismissed with costs.

5                                 On receipt of the notice, the opposite party-2 filed written statement taking preliminary objections that this Forum has no jurisdiction to hear and try the present complaint and there is no deficiency in service on the part of OP. Complaint is very complicated and cannot be decided in summary proceedings as it requires detailed adjudication and is therefore not maintainable in this Forum. Moreover, complainant is estopped from his own act and conduct as till today no intimation regarding alleged treatment is given to OP-2 and there is no privity of contract between complainant and OP-2. It is further averred that OP-2 has been unnecessarily impleaded as party and complaint is bad for misjoinder of parties. Thus, complaint filed by complainant is not maintainable and is liable to be dismissed. However, on merits Op-2 has denied all the allegations levelled by complainant being wrong and incorrect and asserted that no information regarding disease of son of complainant and about his admission in hospital was given by complainant to OP-2.  It is also denied if amount of Rs 59,918/- and Rs 5,315/-was incurred by complainant. It is averred that there is no deficiency in service on the part of answering OP.

6                                        Parties were given proper opportunities to prove their respective case. The complainant tendered in evidence his affidavit Ex.C-1, and documents Ex C-2 to C-13 and then, closed his evidence.

7                                           In order to rebut the evidence of the complainant, the opposite party 1 and 3 tendered in evidence, affidavit of Sh S K Sharma, Div. Manager Ex OP-1,3/1 and documents Ex OP-2  and OP-3 and then, closed the evidence. Ld Counsel for OP-2 tendered in evidence affidavit of Dev Raj Dutta Sr Manager as Ex Op-2/1 and then, closed the same.

8                                     The Ld Counsel for complainant argued that complainant purchased a Mediclaim policy called PNB Oriental Insurance Royal Mediclaim Policy of Insurance Company of OP-1 and 3 through their agent OP-2 covering himself, his wife Geetu and two children Vikas Monga and Shivam Monga for the first time on 5.03.2013, which was valid  up to 4.03.2014 and got it renewed from 7.03.2014 to 6.03.2015. OPs sent only copy of Insurance Policy Schedule and cards to complainant and never sent any terms and conditions to complainant. Copy of Policy Schedule are Ex C-10  and 11. Said Policy was issued by OP-1 and 3 and it was sold through their agent Op-2 Bank. Shivam Monaga son of complainant was suffering from Pilonidal Sinus and was admitted in Fortis Hospital Ludhiana and he underwent wide Excision Pilonidal Sinus and Limburg’s anaesthesia. He remained admitted in hospital from 1.10.2014 to 4.10.2014. Complainant paid Rs 59,918/-to the hospital for treatment of his son. The complainant gave due intimation to OPs for treatment and lodged claim for reimbursement of medical policy. Again Shivam Monga remained under treatment in Fortis Hospital, Ludhiana for Laser Hair Reduction Bikni Area on 7.04.2015 and complainant paid Rs 5,315/-as expenses for treatment. The complainant duly delivered the bill for the same to OPs. The copies of bills and  receipts are Ex C-2, 3, 7 to 9 and 12. Despite repeated requests of complainant, the OPs did not make payment of Mediclaim of complainant. Complainant also served legal notice to OPs requesting them to make payment of insurance claim of complainant but they did not do anything on it. The copy of legal notice is Ex C-4, postal receipt Ex C-5 and acknowledgment receipt is Ex C-6. Due to all this act of OPs, complainant has suffered great harassment and mental agony and this act of Ops amounts to deficiency in service and trade mal practice on their part. It is prayed that OPs may be directed to pay the insurance claim of complainant alongwith interest and compensation.

9                                     To controvert the arguments of complainant counsel, ld counsel for OP-1 and 3 argued that complainant has no cause of action to file the present complaint. They admitted that complainant purchased the Mediclaim insurance policy from OP-1 and 3 through OP-2. They argued that disease suffered by son of complainant is not covered under the policy and the expenses for     its treatment are not payable for the first two years of the Policy as per exclusion clause 4.3 (x). The copy of the terms and conditions and exclusion clause is Ex OP-1, 3/2. At the time of purchase of policy, the terms and conditions of the policy were duly sent to complainant. It is agreed that complainant lodged a claim for reimbursement of expenses borne by him for the treatment of his son. From the perusal of the claim documents, it is found that son of complainant was admitted at Fortis Hospital, Ludhiana for treatment of Pilonidal Sinus on 1.10.2014 to 4.10.2014. As per terms and conditions of the Policy, the treatment of Fissure and Fistula in Anus is not covered for the first two years of the policy. So, the Mediclaim of complainant is rightly repudiated by OP-1 and 3 as per exclusion clause and it was duly informed to complainant vide letter, copy of which is Ex Op-1,3/3. The complainant never lodged any claim for the treatment taken by his son on 7.04.2015 to OPs. The claim of complainant is not payable as per terms and conditions of the exclusion clause of the policy. So, OP-1 and 3 rightly repudiated his claim. Therefore, there is no deficiency in service or trade mal practice on the part of OP-1 and 3 and present complaint may be dismissed against them.

  10                                To controvert the arguments of complainant counsel, ld counsel for OP-2 argued that the complainant is not the consumer of OP-2. There is no privity of contract regarding insurance between complainant and OP-2. OP-2 has nothing to do with the insurance claim of complainant. It is only between complainant and OP-1 and 3. OP-2 is a bank and cannot carry on insurance business and deals with only banking business. Banks are allowed only to market insurance products to its customers in a limited manner as agent of Insurance Company. As per Indian Contract Act, an agent cannot be personally bound or sued for the acts which are done by him on behalf of his principal, so, OP-2 is unnecessarily impleaded as party to this complaint and complaint is not maintainable against OP-2. There is no deficiency in service on the part of OP-2. Complainant lodged his Mediclaim directly to OP-3 and OP-2 has nothing to do with it. Claim of complainant was processed by OP-1 and 3 and the same was repudiated by them. If there is any claim of complainant, it is to be reimbursed by OP-1 and 3 and not by OP-2. So, there is no deficiency in service on the part of OP-2 and prayed for dismissal of complaint against OP-2.

11                                        We have heard the arguments addressed by all the parties and have also gone through the evidence and documents led by the parties.

12                                    The case of complainant is that he purchased Mediclaim Insurance Policy of OP-1and 3 through OP-2, but OP-1 and 3 sent only Policy Schedule and Handbook to them and did not send any terms and conditions of Policy and policy documents. They renewed the policy for second year also. During the period of policy, Shivam Monga, son of complainant got admitted in hospital for treatment of Pilonidal Sinus and his treatment was conducted and he remained admitted in the hospital from 1.10.2014 to 04.10.2014. Complainant duly lodged claim before OP-1 and 3 for reimbursement of their medical bills, but OP-1 and 3 illegally and wrongly repudiated their claim.

13                                                In reply OP-1 and 3 argued that disease of son of complainant does not fall under the Policy. As per exclusion clause, this disease is covered under the policy after first two years. Copy of terms and conditions is Ex OP-1,3/2. As per terms and conditions of exclusion clause 4.2 (x), this disease does not come under the policy.

14                                                The counsel for complainant argued that neither at the time of purchase of policy, OP-2 nor OP-1 and 3 have disclosed terms and conditions of the policy and exclusion clause to them. Even OPs did not send any terms and conditions and policy document to them. They only sent Policy Schedule and Handbook and on it, there was nothing mentioned about exclusion clause. As such, exclusion clause is not binding upon them. In support, he has placed reliance on the citation titled as United India Insurance Co. Ltd & Anr Vs S. M.S. Tele Communications & Anr 2009 (4) Consumer Law Today 145 wherein Hon’ble National Consumer Disputes Redressal Commission, New Delhi held that Consumer Protection Act, 1986 Section 2 (1) (g) - Insurance Act, 1938, Section 114 (A)- Insurance Regulatory and Development Authority (Protection of Policy Holders’ Interest) Regulations, 2002, Regulation 3 – Insurance claim – Exclusion clause – Held that being aware of the existence of the policy is one thing and being aware of the contents and meaning of clauses of the policy is another – Not the case of the petitioner-Insurance Company that the contents and the meaning of the policy were made known to the complainant as the policy was taken by the Bank – Insurance Company had explained the meaning of all the exclusion clauses to the Bank – Findings of the Fora below that exclusion clause not binding on the respondent-complainant upheld. He argued that complainant purchased the policy through Bank/Op-2 and they did not disclose any terms and conditions of exclusion clause at the time of purchase of policy. Moreover, the disease suffered by the son of complainant is not of such nature which has any pre existing history or symptoms which can be known to a person beforehand. So, the Insurance Company cannot deny the claim of complainant on this ground.

  15                                         We have carefully gone through the file and from the above discussion, we come to the conclusion that the OPs did not disclose the terms and conditions and exclusion clause to complainant at the time of purchase of insurance policy and did not send copy of terms and conditions and exclusion clause to complainant. Moreover, the disease of son of complainant is of such type, which has no pre existing symptoms or history. Therefore, in these circumstances, we are fully convinced with the arguments and case law produced by the complainant and complainant succeeds in proving his case. The act of OP-1 and 3 in repudiating the genuine claim of complainant amounts to deficiency in service and trade mal practice.

16                         From the evidence produced by the complainant, it is transpired that complainant only lodged claim for the reimbursement of medical bills for Rs 59,918/- i.e for the treatment taken by his son from Fortis Hospital, Ludhiana from 1.10.2014 to 4.10.2014. The complainant failed to prove any evidence regarding lodging of claim of Rs 5315/-for the treatment taken on 7.04.2015 and even he has failed to prove that he or his son was covered under the policy on that day i.e 7.04.2014 as he produced copies of insurance policy Ex C-11 which was valid from 7.03.2014 to 6.03.2015 only. He did not produce any evidence that he got renewed his policy after that period. Therefore, in these circumstances, the complainant is not entitled for reimbursement of Rs5315/-. However, he is entitled for the reimbursement for Rs.59,918/-, which was spent by him on treatment taken from 1.10.2014 to 04.10.2014. Hence, in these circumstances, present complaint is hereby partly allowed.  OP-1 and 3 are ordered to pay the Mediclaim worth Rs 59,918/- to complainant alongwith interest at the rate of 9% per anum from 29.06.2015 i.e when they repudiated the claim of complainant till final realization. OP-1 and 3 are also directed to pay Rs 5000/-as litigation expenses to complainant. Complaint against Op-2 stands dismissed. Compliance of this order be made within one month from the date of receipt of the copy of the order, failing which complainant shall be entitled to proceed under Section 25 and 27 of the Consumer Protection Act. Copy of order be given to parties free of cost under rules. File be consigned to record room.

Announced in Open Forum

Dated : 15.12.2015                 

 

     Member            Member                   President

                      (P Singla)         (Parampal Kaur)      (Ajit Aggarwal)