Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi Complaint Case No.122/18.03.2014 Rajeev Kumar Madan (dead ) through his LRs (i) Madhu Madan w/o Late Rajeev Kumar Madan (ii) Kunal Madan s/o Late Rajeev Kumar Madan (iii) Kapil Madan s/o Late Rajeev Kumar Madan 7/19, West Patel Nagar, New Delhi -110008 ...Complainant Versus OP1. Park Medi-claim, TPA Pvt. Ltd.
702,Vikrant Tower, Rajendra Place, New Delhi-110008 OP2 National Insurance Company Limited
B-5,2nd Floor, near m Metro Pillar No..380 Rajouri Garden, New Delhi-110008 ...Opposite Party Order Reserved on: 01.02.2023 Date of Order: 03.04.2023 Coram: Shri Inder Jeet Singh, President Shri Vyas Muni Rai, Member Ms. Shahina, Member -Female Inder Jeet Singh ORDER 1.1. (Introduction to status of parties & nature of consumer dispute) : The complainant Shri Rajeev Kumar Madan (since deceased) has been obtaining medi-claim policy for himself and then also for his family members from the insurer/OP no.2 for the last many years. OP1 is TPA of OP2 to look into the claim matters, their names are shown in the array of parties. But during the pending of complaint, the complainant died, consequently his legal representatives were allowed to be brought on record, as shown in the array of parties. 1.2: What happened that initially the complainant took individual Medi-claim policy and after a few years, Parivar Medi-claim policy. When during the currency of last insurance policy, he raised medical claim, his two medical claim were considered and allowed but when another bill was raised, it was partly allowed on the ground that maximum limit of sum insured is Rs.1,00,000/- while considering the third bill claim, whereas the sum insured was Rs.4,00,000/- in the year of policy.. 1.3: Whereas, OP2 opposed that the claim was considered as per terms and conditions of policy, which are specific to the covenants as initially it was individual policy for sum insured of Rs.1,00,000/- from period from 6.11.2005 till the policy period upto 5.11.2010, later Parivar Medical policy was for sum insured of Rs.3,00,000/-, which was further increased to Rs.4,00,000/- for period from 6.11.2012 to 5.11.2013. The Parivar medi-claim policy of the complainant is in its 3rd year and the previous policy being an individual policy, was considered in continuity but the sum insured applicable will be that of Individual Medi-claim Policy for the illness for which the complainant has been treated as it is covered after 4 continuous claim free policy years, apart from the claim of the complainant lies under the exclusion clause no. 4.1 of the terms and conditions of policy. The maximum limit of sum insured was Rs.1,00,000/-, consequently the bill of Rs.15,008/- was allowed. There is no deficiency of services. 2.1 (case of complainant): The complainant is a law abiding and peace loving senior citizen of India and he residing at address mentioned above. The OP1 is TPA/agent of OP2. OPs have approached complainant and represented that they are one of most reputed service provider in insurance sector including medi-claim policy etc and also represented the benefit medi-claim, by believing so, the complainant took the Parivar medi-claim policy. The complainant has been taking the medi-claim policy from opposite parties for the last 13 years i.e. since 2001. The complainant also got renewed his medi-claim policy lastly in the year 2012 vide policy no.360203/48/12/8500001934 effective from 06.11.2012 to 05.11.2013 (its cover-note is Annexure-A) 2.2. However, the complainant developed end stage of renal failure in January 2013 and since then on dialysis. The complainant filed its claim with OP2 within 30 days of discharge from the hospital but OP2 shifted its office to Rajauri Garden, due to which initial claim of complainant is delayed for 8-9 months; however, complainant did not make any issue for the same, keeping in view the customer relation of years. The two claims of complainant were duly paid though with delay of number of months and number of paper formalities over and time again (its copies of letters/settlement of 27.1.2013 are Annexure-B). 2.3. That complainant had submitted claim no.NICDR2/86773 of an amount of Rs.80,070/- only but it shocked him and total dismay on receipt of letter ref no. NICDR2/86773 dated 08.02.2014 of disapproved amount of Rs. 65,062/-, without assigning any detailed reason, whereas the policy of complainant is for an amount of 4 lakhs from last 4 years but complainant was paid claim of Rs.1,00,000/- only. The OPs dismissed the claim of complainant arbitrarily and without assigning any reason, which constitute deficiency in services, breach of trust, negligence, tantamount to bringing more hardship to a man, who is already under renal failure and solely depended upon the policy for his medical concerned. Since OPs failed to provide efficient consumer services and has mastered in art of repudiation/ rejection/ delaying the claim of the person. who is in fiduciary relationship, the act are liable to not only for civil damage but also criminal proceeding for inducing the layman for purchasing policy of OPs with false promise and mala-fide to repudiate or delay such claim on one pretext or other. The OP's letter received (Annexure-C is letter dated 15.2.2014) is abuse and high handedness of OP1 qua already suffering
layman. 2.4. The complainant had sent several written and oral reminder to clear the claim of the complainant, apart from legal notice dated 15.02.2014 (Annexure-D) to OPs but to no avail. OPs are having mala-fide &
arbitrary and due to their gross deficiency in service and illegal acts of not clearing the claim of the complainant, he suffered great financial loss besides mental tension and agony, the complainant is entitled for compensation of Rs. 3,05,070/- [viz. Rs. 200,000/- mental suffering & agony + Rs. 80,070/- amount of medical claim+ Rs. 25,000/- costs] along-with interest @ 18% pa from the date of institution of the complaint till realization. The complaint is within the limitation period. 3.1 (Case of OP2) : The OP1/TPA of the OP2 had very carefully considered the claim of the complainant within the purview of the terms and conditions of the policy, which the complainant was entitled to and also wrote letter dated 09.10.2014 (Annexure-R3) to the complainant for doing certain formalities to release the balance claim amount of Rs.15,008/. The complaint is pre-mature, since the complainant instead of giving his consent to get the remaining balance of Rs. 15,008/- of his claim, directly rushed to this Forum without having any cause of action. The complainant was entitled only to the insured sum of Rs. 1,00,000/- with cumulative Bonus thereon, The OPs have never repudiated the claim of the complainant but the complainant has exhausted the maximum limit of sum insured, OP is ready to pay the remaining balance sum of Rs. 15,008/- to the complainant. Thus, the complaint is abuse of process of law, there is no deficiency of service on the part of OPs and complaint is liable to be dismissed. 3.2. The complainant has not come before this Forum with clean hands and has suppressed and concealed the material facts. That the complainant has been taking the Individual Medi-claim Policy from 06.11.2005 to 05.11.2010 from the OP2 covering the sum insured for the complainant of Rs.1,00,000/- for every year (its copies Annexure R-1 colly). The complainant obtained the Parivar medi-claim Insurance policy from the OP2 vide policy no. 360203/48/10/8500002018 for a total sum insured for Rs.3,00,000/- valid for the period from 06.11.2010 to 05.11.2011 and again got the said policy renewed for a sum of Rs.3,00,000/- vide policy no. 360203/48/11/8500001830 wef 06.11.2011 to 05.11.2012 and again got renewed the policy for a sum insured of Rs.4-lakhs being policy no. 360203/48/12/8500001934 valid from 06.11.2012 to 05.11.2013. However, the complainant has very cleverly not filed the policy with its terms and conditions as issued to him, which are being filed (as annexure R-2). The claim of Rs.1 lakh has already been paid to him and for remaining balance of Rs.15,008/-, OP1 also wrote letter to the complainant for giving his consent as well as requested him to do certain formalities so that the OPs can release the balance claim amount of Rs.15,008/-, but the complainant failed to do so. The Parivar medi-claim policy of the complainant is in its 3rd year and the previous policy being an individual policy, is considered in continuity but the sum insured applicable will be that of Individual Medi-claim Policy for the illness for which the complainant has been treated as it is covered after 4 continuous claim free policy years. The claim of the complainant lies under the exclusion clause no. 4.1 of the terms and conditions of the policy, which is:- 4. Exclusions The Company shall not be liable to make payment under this policy in respect of any expenses whatsoever incurred by any 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 However, those diseases will be covered after four continuous claim free policy years. For the purpose of applying this condition, the period of cover under Medi-claim policy taken from National Insurance Company only will be considered. Pre-existing disease like Diabetes and Hypertension will be covered from the inception of the policy on payment of additional premium by the insured" Since the complainant has availed and exhausted the maximum limit of sum insured except remaining balance claim amount of Rs.15,008/- payable to the complainant, which OP is offering too and rest of the other claim amount is not payable under the terms and conditions of the policy. The remaining claims falls under the Exclusion clause no.4.1 of the policy, accordingly it was rightly denied. There is no cause of action arose in favour of the complainant nor there is deficiency of service on the part of the OPs to file the complaint under the consumer law, it is liable to be dismissed. 3.2. OP1 has not appeared nor filed any reply to the complaint. 4 (Replication of complainant). The complainant filed rejoinder after reply of complainant, he re-affirms his complaint correct. The rejoinder also denies allegations of the reply as well as explanation to certain allegations of the reply. He denies that OP1/T.P.A. had very carefully considered the claim or complaint is pre-mature or the
complainant instead to give his consent to get the remaining
balance of Rs. 15,008/- of his claim, directly rushed to this Forum without having any cause of action. balance of Rs. 15,008/- of his claim but the complainant is entitled to full amount as claimed, There was no pre-existing disease at the time
of taking medi-claim policy from OP2 It is
denied that the claim has exhausted the maximum limit of sum
insured. 5. (Evidence) : Complainant Rajeev Madan had filed detailed affidavit of evidence (during his life time) while relying upon the documentary record file with the complaint. On the other OP2 filed affidavit of evidence of Shri R K Alabadi, Sr. Divisional Manager, his affidavit coupled with record is on the lines of reply. 6.1 (Submission of Parties) : At this stage of hearing, none appeared for complainant but Shri Sanjay Kumar, Advocate for OP2 made oral submission. Moreover, there are also written arguments by the parties. Thus, entire record will be considered. 6.2. On 17.3.2023 Counsel for complainant requested to consider the written arguments and also filed the case law of National Insurance Co. Ltd. Vs D P Jain 2007 SCC Online NCDRC 38 that when the exclusion clause was not delivered and explained to the complainant, it is to be ignored about pre-existing disease, otherwise the complainant was not suffering from any disease prior to taking policy to be construed as pre-existing disease. 7.1 (Findings) : The contentions of both sides are considered, which is manifest from their pleading, evidence and arguments. Both the parties have rival contentions on the point of claim. 7.2. At the out-set there is no dispute of insurance policy contract between the parties from time to time beginning from individual medical policy and then Parivar Medi-claim policy for different sum insured from to time. There is also no dispute that during currency of last policy contract, the complaint was paid twice medical bills. 7.3. However, lastly complainant raised third bill of Rs.80,070/- out of which Rs.15,008/- was determined/settled but an amount of Rs.65,062/- was disallowed, considering maximum allowable limit of Rs.1,00,000/- as well as previously settled amount of two bills. That is consumer dispute in this complaint. After taking stock of all the material and pleas, the complaint is allowed partly to the extent of claim of Rs.15,008/-, which was also settled by OP, for the following reasons:- (i) since parties does not dispute the previous policy contracts between the parties, the OP2 has proved previous polices too to establish the terms and conditions of policies. The complainant contends (while relying upon National Insurance Co. Ltd. vs D.P. Jain, supra) that terms and conditions were not provided to the complainant but OPs counters the submissions that terms and conditions were supplied to the complainant which are withheld by the complainant from record. Whereas, the copies of insurance policy placed on record clearly specifies, at its bottom as a special note(i.e. N.B.) qua those conditions of policy. (ii) there is specific clause in the insurance cover that for increased SI more than 2/3 slab the waiting period as in exclusions 4.1./4.2/4.3 of the policy shall apply on the enhanced SI as if it is a new policy. The benefit shall accrue for PED or waiting period disease once the policy with enhanced SI completes the waiting period in the policy for these disease,. (iii) the exclusion clause 4.1 is part of contract (already reproduced in paragraph 3.2 above), the complainant had taken policy for enhanced sum assured of Rs.4,00.000/-, it would be treated as first policy for the purposes of claim free period vis a vis when claim was raised, then the previous Parivar Medi-claim policy was in third year and prior to it, it was individual policy, which was considered by OP2 in continuous and limit of sum insured was considered of that individual medi-claim policy since complainant has been treated as covered after four continuous claim free policy years, (iv) the OP2 objected that the complaint is pre-mature as without taking the amount from OP2, the complainant rushed to the Commission, however, the complainant had served legal notice upon the OPs vis a vis the complainant was denied claim of Rs.65,062/-, the grievances felt by the complainant was giving rise for cause of action, irrespective of the fact that he had not opted to take amount of claimed settle as Rs.15,008/-or had the complainant received the amount, then circumstances would have been the same and complainant could file the complaint (v). the complaint urged that he was not suffering from any pre-existing disease to deny the claim, however, to some extent there appears to be inconsistent stand of OP2 , however, factually it is no so since the OP2 allowed previously two bills, which were within the maximum limits of Rs.1 lakh, out of total three bills, consequently permitting two bills means that claim was not denied on ground of pre-existing disease, and (vi). no other amount is payable either as damages or interest for want of establishing the same, since amount of medical bills determined by OP2 stand proved as only amount payable. 7.4: Accordingly, the complaint is allowed in favour of complainant and against the OPs to pay jointly or severally a sum of Rs.15,008/- within 30 days from the date of receipt of this order. No order as to costs. 8. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance. 9. It is appropriate to record that this Commission is facing great difficulty in day to day its functioning for want of regular PA and stenographer, since only one stenographer Gr-III is provided for all work. 10. Announced on this 3rd day of April, 2023 [चैत्र 13, साका 1945]. [Vyas Muni Rai] [ Shahina] [Inder Jeet Singh] Member Member (Female) President | 
