Haryana

Yamunanagar

CC/179/2014

Parveen Goel S/o Sat Parkash - Complainant(s)

Versus

Punjab national Bank - Opp.Party(s)

Mukesh Garg

12 Sep 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                    Complaint No. 179 of 2014

                                                                                    Date of institution: 26.03.2014

                                                                                    Date of decision: 12.09.2016.

Parveen Goel, aged about 53 years son of Sh. Sat Parkash resident of patialian Street, Mustafabad, Tehsil Jagadhri, Distt. Yamuna Nagar.                          

           …Complainant.

                                                     Versus

1. Punjab National Bank, Thana Chhapper Mustafabad Road, Thana Chhapper, Sub Tehsil Mustafabad, District Yamuna Nagar through its Branch Manager.
2. Oriental Insurance Company Ltd. Sabharwal Market Railway Road, Kurukshetra through its Branch Manager.
3. Medi Assist India TPA Private Ltd. SCO 61, 2^nd floor, Phase 7, Mohali (Pb) through its General Manager.   

                                                                                                …Respondents.                                       

 

 

BEFORE: SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                 SH. S.C.SHARMA………………………….MEMBER.

 

Present:    Sh. Mukesh Garg, Advocate, counsel for complainant.  

                 None for respondent No.1.

                 Sh. Rajiv.Gupta, Advocate, counsel for respondents No.2 & 3.     

 

 

ORDER  (Ashok Kumar Garg President  )

 

1.                     The present complaint has been filed under section 12 of the Consumer Protection Act 1986.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that at the instance of respondent No.1 (Respondent hereinafter referred as OP) complainant obtained a medi-claim insurance policy bearing No. 261303/48/2013/1391 for a sum of Rs.1,00,000/- valid w.e.f. 19.02.2013 to 18.02.2014 from Op No.2 under Punjab National Bank Oriental royal Mediclaim Policy scheduled by paying the premium of Rs. 1749/-. On 14.10.2013 complainant suffered  headache as well as pain and stiffness towards back of his neck and in this regard for medical treatment visited the CLR Multispecialty General Hospital at village Gadhauli, District Yamuna Nagar, where the concerned doctor, after diagnosis as Cervical pain, prescribed the medicine but the complainant does not feel any relief, so, he approached the hospital of Dr. Parveen Garg, Jagadhri who after conducting various tests on 24.10.2013, prescribed the some medicines but the problem remained as it is and ultimately on 25.10.2013 the complainant visited Jindal Hospital Jagadhri with the same problem. Dr. Yogesh Jindal of Jindal Hospital Jagadhri advised C.T. Head (Plain) and other tests and thereafter advised surgery and referred for further treatment.

3.                     After that complainant visited Sir Ganga Ram Hospital, Rajinder Nagar, New Delhi and as per the advice of Dr. Ansul Gupta Neuro surgeon got admitted on 27.10.2013 for further medical treatment pertaining to his ailment. The surgery was conducted on 28.10.2013 and the complainant was discharged in hale and hearty condition on 30.10.2013. Prior to the ailment, the complainant was quite hale and hearty having no ailment except he used to take a pil of aten H-25 and having no ailment of hypertension. It has been further mentioned that at the time of admission complainant gave the intimation through fax message to the TPA i.e. Op No.3 Mediclaim Assistant India Private Ltd. with a request for cashless hospitalization but the same was refused without any cogent reason. The complainant had incurred more than Rs. 1,80,000/- upon his treatment. After discharge from the Hospital, the complainant submitted his claim pertaining to the above mediclaim policy vide claim No. 9697897 dated 23.12.2013 to the Op No.2 alongwith all the relevant documents including medical bills but the Ops No.2 & 3 illegally, arbitrarily and without any cogent reason repudiated/denied the claim of the complainant vide its letter dated 03.02.2014 and 04.02.2014 on the ground that as per terms and conditions of the insurance policy i.e. exclusion clause 4.1and 4.2 the expenses on the treatment of ailment/disease/surgery  for hypertension disease for specified period of 2 years are not payable if contracted and/or manifested during the currency of policy. As per record submitted by the complainant, the complainant was suffering from ailment of hypertension for the past 5 years. The ailment of hypertension is pre disposing factor to the development of subdural heamatoma. It has been further mentioned that the terms and conditions mentioned in the insurance policy were never disclosed or explain to the complainant at the time of obtaining the said policy and the application form singed by the complainant while accepting the same was also contained no such clause. The OP No.2 Insurance Company never supplied or informed any terms and conditions of the policy in question to the complainant containing such exclusion clause. Lastly prayed for acceptance of the complaint with the direction to the Ops to make the payment of Rs. 1,00,000/- as insured amount on account of medical expenses and also to pay compensation as well as litigation expenses.

4.                     Upon notice, on behalf of OP no.1, Sh. Arvind Gupta Bank Manager appeared on 23.01.2015 and stated that he does not want to file any reply/written statement.

5.                     OP No.3 appeared and failed to file any written statement and its defence was struck off vide order dated 23.01.2015.

6.                     OP No.2 appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable; there is no negligence or deficiency in service; complainant has not come to this Forum with clean hands; complainant has no locus standi; forum has got no jurisdiction to entertain and try the present complaint; complainant has not come to this Forum with clean hands and has suppressed the material facts from this Forum. The true facts are that a claim intimation dated 29.10.2013 was received by Op No.3 from Sir Ganga Ram Hospital regarding hospitalization of complainant with request for cashless facility under the insurance policy in question but the same was denied by OP No.3 as there was two (2) years exclusion clause for the disease of complainant under the policy in question. Thereafter, on receipt of the claim papers, the claim in question was duly processed by the TPA/OP No.3 as per terms and conditions of the insurance policy and it was observed and found that the claim was not payable in view of following:-

                 “ Patient was admitted in Sir Gang Ram Hospital on 27.10.2013 with and diagnosed as a case of right fronto temporal parietal subdural hematoma and policy inception date is 19.02.2013. As per the medical record produced by the complainant, he was a known case of hypertension for the last five (5) years i.e. prior to the inception of this policy. The ailment of hypertension was pre disposing factor to development of subdural heamatoma, so the claim was rightly denied under exclusion clause No.4.1 and 4.2 and the complainant was duly informed vide letters dated 04.02.2014 and 29.02.2014.”

and On merit controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections. Lastly, prayed for dismissal of complaint being no deficiency in service proves against the OPs No.2 & 3.  

7.                     To prove the case, complainant tendered into evidence his affidavit as Annexure CW/A and photo copies of documents such as :- copy of insurance policy as Annexure C-1, copy of cashless card as Annexure C-2, copy of request form for cashless as Annexure C-3, copy of emails as Annexure C-4, copy of denial letter for cashless request as Annexure C -5, copy of receipt of courier as Annexure C-6, copy of letter as Annexure C-7, Copy of repudiation letter as Annexure C-8 and C-9, copy of prescription slip of CLR Multi-specialty General Hospital Jagadhri dated 14.10.2013 as Annexure C-10, Prescription slip of Jindal Hospital, Jagadhri dated 25.10.2013 as Annexure C-10, Prescription slips of Rameshwar Dass Memorial Hospital, Jagadhri dated 24.10.2013 as Annexure C-11 and C-12, C.T.Scan report of Jindal Hospital as Annexure C-13 and medical record alongwith medical bills of Sir Ganga Ram Hospital Delhi as Annexure C-14 to C-24 and closed his evidence.

8.                     On the other hand, counsel for the Ops No.2 & 3 tendered into evidence affidavit of sh. N.K.Goyal Senior D.M, O.I.Co. Ltd. as Annexure RW/A and photo copies of documents such as :- copy of insurance policy with its terms and conditions as Annexure R.2/1, discharge summary of Sir Ganga Ram Hospital as Annexure R.2/2, denial letter of cashless request as Annexure R.2/3 and repudiation letter dated 04.02.2014 and 29.02.2014 as Annexure R-.2/4 and R.2/5 and closed the evidence on behalf of Ops No.2 & 3.

9.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

10.                   It is not disputed that complainant had obtained a medi claim policy bearing No. 261303/48/2013/1391 for a sum of Rs. 1,00,000/- valid w.e.f. 19.02.2013 to 18.02.2014 at the instance of Op No.1 which is duly evident from the copy of insurance policy Annexure C-1/R.2/1. It is also not disputed that complainant firstly visited the CLR Multispecialty General Hospital at village Gadhaurli, District Yamuna Nagar on 14.10.2013 on account of headache as well as pain and stiffness towards back of his neck and was diagnosed as cervical pain and due to that some medicines were prescribed which is duly evident from Annexure C-11.                      Further it is also not disputed that when the complainant does not feel any relief then he visited Dr. Parveen Garg on 24.10.2013 for the same purpose which is duly evident from his OPD slip Annexure C-11. After that when the problem remained subsists then the complainant visited Jindal Hospital, Jagadhri on 25.10.2013 which is also evident from the prescription slips of the hospital as Annexure C-10 and C-13 i.e. C.T. Scan report. It is also not disputed after that complainant remained admitted in Sir Ganga Ram Hospital, Rajinder Nagar, New Delhi from 27.10.2013 to 30.10.2013 and necessary surgery pertaining to his ailment was conducted on 28.10.2013 which is duly evident from the discharge summary and medical record as Annexure R.2/2/C-14 to C-24. Further it is also not disputed that complainant spent more than Rs. 1,80,000/- on his treatment which is duly evident from the medical bills Annexure C-19 to C-23.

12.                   The only version of the OP Insurance Company is that as per medical record produced by the complainant, he was a known case of hypertension for the last five (5) years i.e. prior to inception of medi claim insurance policy in question. The ailment of hypertension was pre-disposing factor to development of subdural hematoma, so, the claim of the complainant was rightly repudiated under exclusion clause No.4.1 and 4.2 as per terms and conditions of the insurance police in question. Learned counsel for the Ops No.2 & 3 draw our attention towards the repudiation letter dated 04.02.2014 Annexure R2/4 is reproduced here as under:

Exclusion Clause 4.2. The expenses on treatment of following ailment/ disease/ surgery for the prescribed period are not payable if contracted and/or manifested during the currency of the policy. If these diseases are pre-existing at the time of proposal, the exclusion no.4.1 for pre-existing condition shall be applicable in such cases. Hypertension (2) two years.

13.                   Learned counsel for the OPs No.2 & 3 also relied upon the case law titled as Vikram Green Tech Pvt. Ltd. and another Versus New India Insurance Company Ltd, 2009(2) RCR (Civil) page 817 wherein the Hon’ble Apex Court has held that court while construing the terms of the policy is not expected to venture into extra liberalism that may result in writing the contract or substituting the terms which were not extended by the parties. An insurance contract is a piece of commercial transaction and must be construct like other contract to its own terms and by itself, in a contract of insurance, there is requirement of ubermmiafides.

14.                   Learned counsel for the OPs No.2 & 3 further argued that this Forum have no jurisdiction as the complainant has obtained the insurance policy in question from the Branch Office Kurukshetra through the PNB Branch Kurukshetra and obtained the treatment from Sir Ganga Ram Hospital, New Delhi, hence, this Forum have no jurisdiction and lastly prayed for dismissal of complaint.

15.                   On the other hand, counsel for the complainant hotly argued at length that genuine claim of the complainant has been wrongly repudiated by the Ops No.2 & 3 Insurance Company on the flimsy ground. Learned counsel for the complainant draw our attention towards the prescriptions slips/OPD slips of Rameshwar Dass Memorial Hospital dated 24.10.2013 Annexure C-11, CLR Multispecialty Hospital Gadhauli, Jagadhri (Annexure C-10 and prescription slips and C.T.Scan report of Jindal Hospital as Annexure C-10 and C-13 and argued that first time complainant had obtained the treatment from the various doctor at Jagadhri, which is duly evident from these receipts. Hence, partly cause of action had arisen at Jagadhri and further learned counsel for the complainant argued that complainant was not having any ailment and hypertension prior to taking the insurance policy in question from the Ops and he was firstly diagnosed as a case of right fronto temporal parietal subdural hematoma on 14.10.2013.  Learned counsel for the complainant further argued that even at the time of issuance of insurance policy, the Ops have neither disclosed or explain nor supplied any terms and conditions containing such exclusion clause to the complainant and referred the case law titled as Bajaj Allianz General Insurance Company Ltd. Versus Vaisa Jose, IV (2012) CPJ page 839 (NC) wherein it has been held that Consumer Protection Act, 1986-Sections 2(1)(g), 14(1)(d), 21(a)(ii)- Angioplasty of right coronary artery- Reimbursement of medical expenditure- Claim repudiated- Mental agony and harassment-state Commission allowed complaint- Hence appeal- Discharge summary from hospital merely states that respondent had been taking medicine for hypertension and for cholesterol which was reportedly normal- Hypertension is usually a lifestyle disease and easily controlled with conservative medicine- No evidence that it was so acute or high that it was responsible for respondent’s subsequent angioplasty- repudiation not justified.

16.                   Learned counsel for the complainant has also relied upon the case law titled as National Insurance Company limited and others Versus Balvinder Singh 2012(1) CLT page 34 wherein the Hon’ble Punjab State Commission, Chandigarh has held that “ Insurance claim- Medi claim policy- Repudiation- Pre existing disease- Exclusion clause- Suppression of material facts- Appellants have not produced any evidence to prove that before the purchase of the policy the OPs had taken any treatment from any doctor or any hospital and the insured/complainant had the knowledge that he was suffering from the ailment of heart disease and concealed this fact from the appellants at the time of issuance of medi claim policy- In the absence of any reasonable evidence, the insurance company was not corrected in repudiating the claim under the policy- Order of District Forum allowed the complaint upheld.

17                    Learned counsel for the complainant further relief upon the case law titled as Oriental Insurance Company Ltd. Versus A.K.Mittal and another 2011(4) CLT page 155 wherein it has been held that medi claim policy- insurance claim- repudiation- Suppression of material facts- There is no iota of evidence on record to prove that the complainant had any kind of knowledge with regard to ailment with which he suffered in the year 2004 i.e. after about 9 months of taking the medi claim policy- It cannot be said that at the time when the proposal form was  filled by the complainant and he took the mediclaim policy, he had any symptom with regard to the ailment related to kidney- District Forum rightly allowed the complaint and impugned order does not require any interference. Appeal is liable to be dismissed.

18.                   After hearing both the parties and going through law referred above, we are of the considered view that there is deficiency in service on the part of Ops No.2 & 3 as the Ops Ins Co. have totally failed to file any cogent evidence to prove that complainant was suffering from disease/ hypertension from the last five (5) years as alleged in their written statement. Even no affidavit has been placed on file of any doctors to prove that complainant was having any pre-existing disease from the last more than 2 years. Mere filing of the insurance policy, it cannot be held that the Ops Insurance Company has discharged its onus to prove the stand taken in the written statement. We have perused the OPD slips issued by CLR Multispecialty General Hospital dated 13.10.2013 (Annexure C-10) and Rameshwar Dass Memorial Hospital, Jagadhri dated 24.10.2013 (Annexure C-11) and Jindal Hospital, Jagadhri dated 24.10.2013 wherein no such opinion or history of any ailment from the last 5 years as alleged by the Ops have been mentioned. Even from the perusal of OPD slip dated 124.10.2013 issued by CLR Multispecialty General Hospital, Village- Gadhauli(Yamuna Nagar) Annexure C-10, wherein, it has been specifically mentioned that complainant was having history of headache on and off from last 1 month only. Further we have also perused the medical record of Sir Ganga Ram Hospital, wherein also no such history of pre-existing ailment of 5 years has been mentioned. The arguments advanced by the counsel for the Ops No.2 & 3 that they have supplied the terms and conditions to the complainant is also not tenable as no such record has been filed to prove that they have ever supplied the terms and conditions containing exclusion clause to the complainant. Even, the Ops also did not bother to file any proposal form in support of their version. The plea of the Ops No.2 & 3 Insurance Company that complainant was having hypertension from the last 5 years is also not tenable as hypertension is a usually a life style disease and easily controlled with conservative medicine.  The same view has been held by the Hon’ble National Commission in case titled as Bajaj Allianz General Insurance Company Ltd. V/s Vaisa Jose, National Insurance Co. Ltd. and others Versus Balvinder Singh and Oriental Insurance Company Ltd. Versus A.K.Mittal and another (Supra) whereas the case law titled as Vikram Green Tech Pvt. Ltd. and another Versus New India Insurance Company Ltd (supra) is not disputed but not helpful in the present case.   

19.                   The another plea of the Ops No.2 & 3 that this forum have no jurisdiction to entertain and try the present complaint is also not tenable as from the perusal of OPD prescription slips of Jindal Hospital, Rameshwardass Memorial Hospital, Jagadhri and CLR Multispecialty General Hospital, Gadhauli Annexure C-10 to C-13, it is clearly evident that firstly complainant obtained the treatment from the Jagadhri and was also referred from Jagadhri for further treatment. So, the partly cause of action has arisen at Yamuna Nagar and this forum have territorial jurisdiction to try and decide the present complaint.

20.                   From the other angle also, the insurance companies i.e. OPs Company cannot avoid from its legal liability because at the time of obtaining the policy in question, the complainant was thoroughly checked up by the authorized Doctor and at that time no pre existing disease was found. It appears that instead of acting fairly the insurance company is trying to avoid from his liability by making one pretext or the other, which cannot be allowed to do so. The complainant has been able to prove on case file that he was not suffering from any pre-existing disease as for the first time he visited the CLR Hospital on 14.10.2013 (Annexure C-10) for taking treatment for headache as well as pain and stiffness towards back of his neck. It is quite suppressed that at the time of taking business of issuance of mediclaim policy, the authorized Doctors of the OPs declared the complainant fit for mediclaim policy and when the complainant applied for insurance claim then they repudiate the claim of the complainant on the ground that disease was pre existing disease. The act and conduct of the Insurance Company shows that being on the dominate position they are free to do everything as per their wishes which cannot be allowed. It is well proved on the case file that complainant remained under treatment during the subsistence of insurance policy and spent huge amount for the same, which is duly evident from medical prescriptions slips and medical bills Annexure C-14 to C-24.

21.                   Whereas, Ops Insurance Company has not produced any evidence on record to show that the complainant had ever taken any treatment for alleged pre-existing disease prior to taking of mediclaim policy from the insurance company. The Hon’ble National Commission in case titled as LIC V/s Joginder Singh and another 2005(2) CLT page 229 has clearly held that in the absence of any reasonable enquiry and in the absence of reasonable evidence, the insurance company was not correct in repudiating the claim under the policy.

22.                   In the circumstances noted above and the law cited by the counsel for the complainant, we are of the considered view that the claim of the complainant has been wrongly repudiated by the Ops No.2 & 3 Insurance Company. As such the complainant is entitled for relief.

23                    Although the complainant has mentioned in his complaint that he has spent more than Rs. 1,80,000/- on his treatment but from the perusal of insurance policy Annexure C-1/R.2/1, it is evident that the complainant was insured for a sum of Rs. 1,00,000/- only and as such he is entitled for reimbursement of only Rs. 1,00,000/- against the policy in question from the Ops No.2 & 3 Insurance Company.

24.                   Resultantly, we partly allow the complaint of complainant and direct the Ops No.2 & 3 to pay a sum of Rs.1, 00,000/-( Rs. one Lacs)  to the complainant alongwith interest at the rate of 7% per annum from the date of filing of complaint till its realization and further to pay a sum of Rs. 5000/- as compensation for mental agony, harassment as well as litigation expenses. Order be complied within 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court 12.09.2016.           

                                                                                    (ASHOK KUMAR GARG )

                                                                                    PRESIDENT,

                                                                                   

 

                                                                                    (S.C.SHARMA )

                                                                                    MEMBER.

 

 

Copy of judgment contains one to eleven pages and all the pages bear my signature.

 

           (ASHOK KUMAR GARG )

                                                                                    PRESIDENT,