| Final Order / Judgement | CONSUMER DISPUTES REDRESSAL COMMISSION – X GOVERNMENT OF N.C.T. OF DELHI Udyog Sadan, C – 22 & 23, Institutional Area (Behind Qutub Hotel) New Delhi – 110016 Case No.223/2018 MRS. ASHA DHAWAN W/O. SHRI PAWAN DHAWAN R/O. A-31, THE SUMMIT DLF PHASE 5 SECTOR-54 …..COMPLAINANT Vs. RELIGARE HEALTH INSURANCE COMPANY LIMITED VIPUL TECH SQUARE 19 CHAWLA HOUSE, NEHRU PLACE, NEW DELHI-110019 ..…..OPPOSITE PARTY Date of Institution-04/10/2018 Date of Order- 02/11/2022 O R D E R RASHMI BANSAL– Member The present complaint has been filed by the complainant against the repudiation of the Mediclaim by the OP praying for the reimbursement of the Mediclaim along with the compensation due to the deficiency in services by OP and for her mental agony, pain and harassment. - It is the case of the complainant that she had taken a cashless (floater) health insurance policy no. 10324291 for a period of one year, from 04.07.2015 to 03.07.2016, providing coverage to complainant and her spouse up to Rs.1,00,000/-. The said policy was renewed two times for a period from 2016–17, 2017–18 and premium was also paid accordingly. No claim was lodged for a period of three years therefore, the total amount of Rs.10 lakhs was increased to Rs.17 lakhs.
- Complainant submitted that she was admitted in the hospital, the Fortis Memorial Research Institute, Gurugram, Haryana on 13.03.2018 and was discharged on 19.03.2018 after undergoing for treatment of advanced degenerative joint disease of both knees and underwent procedure for knee replacement of both legs and a bill for Rs. 6,47,629/- , was submitted to OP for reimbursement.
- However, the OP has repudiated the claim of the complainant vide email dated 29.05.2018, 31.05.2018 and 07.06.2018 cancelled the Mediclaim policy for the year 2017–18 and forfeited the premium on the ground of concealment of the pre-existing disease of complainant of operation of Aneurysm vide letter dated 21.05.2018. Complainant submitted that her claim has been wrongly and illegally repudiated by OP without any logic on the basis of alleged PED which has no correlation with the present policy.
- The complainant further submits that she had disclosed all the current ailments that she has been suffering at the time of taking of the policy as well as the medicines being taken at the time. The complainant has been diagnosed with Aneurysm for which she was treated and operated in Netherlands in 2014 and thereafter no medication or further treatment was required for her. Therefore there was no reason to hide the same. Complainant further stated that the wife of complainant has been living a normal and healthy life since 2014 and no disease existed at the time of obtaining the medi-calim policy and also did not got any treatment or medication for aneurysm till date, therefore, same cannot be termed as any pre-existing disease. Moreover, she has been treated for the replacement of the knees which has no connection with the treatment/operation of the eyes done four years back and she cannot be branded as diseased person. The rejection of the claim on the ground of only pre-existing diseases is wrong, illegal and arbitrary and has caused her great mental pain, agony. The legal notice dated 18.07.2018 was served upon OP. The OP reaffirmed its stand of rejection of Mediclaim vide its reply dated 20.08.2018. In support her case complainant has filed following documents:
- Copy of insurance policy; Ex. CW1/ 1
- Copies of medical treatment bills and discharge slips; Ex. CW1/2
- Repudiation email and other correspondence; Ex. CW1/3
- Letter dated 21.05.2018; Ex. CW1/4
- Legal notice dated 18.07.2018 along with postal receipts, Courier receipts, email and their delivery reports; Ex. CW1/5
- Reply dated 20.08.2018 of legal notice; Ex. CW1/ 6
- The Opposite Party contested the case by filing reply and raised some preliminary objections as to the maintainability of the present complaint on the ground of territorial jurisdiction and contended that this commission lacks on territorial jurisdiction since neither the OP, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain or the cause of action arose nor the treatment of the complainant has taken from the hospital within territorial jurisdiction of this commission. The treatment was taken at Gurugram, Haryana and the policy was issued from the Gurugram office of Haryana. The repudiation letter and various other emails are also under the correspondence from the office of the OP at Gurugram. The OP relied on the judgment of the Hon'ble Supreme Court of India in “Sonic Surgical versus National Insurance Company Limited” in civil appeal number 1560 of 2004 and stated that as per the provision of Consumer Protection Act 1986, courts at Delhi do not have territorial jurisdiction to entertain the present complaint and the courts of Gurugram or the competent courts.
- On merits, OP contended that the claim of the complainant was rightly rejected as the policy of the complainant was found cancelled on account of non-disclosure of the pre-existing ailment of the complainant on the basis of the consultation sheet dated 22.11.2017 of Fortis Memorial Research Institute, Gurugram, Haryana, as she had a history of operation of Aneurysm in 2014 in Holland, i.e., before the inception of the policy and the same was never disclosed to the OP at the time of taking of the policy. In the light of non-disclosure of PED, the cashless facility request of the insured was denied by the OP and the same was intimated to the complainant vide its repudiation letter dated 13.03.2018. OP has further submitted that this fact was also not disclosed into the proposal form and had the correct health status of the proposed life to be insured been disclosed at the proposal stage then the company would not have issued the policy. Therefore, in the light of nondisclosure of the material information on the part of insured the OP cancel the policy in accordance with the clause 7.13(a) of the policy terms and conditions vide letter dated 21.05.2018 and 14.08.2018. A cancellation notice of the policy was sent by the OP to the complainant vide letter dated 21.05.2018, the policy was not renewed. OP has relied upon “Satwant Kaur Sandhu versus new India assurance Co Ltd” decided by Hon'ble Supreme Court of India in civil appeal number 2776/2002.
- In support of its case, OP has filed following documents:
- Copy of the policy along with renewal and terms and conditions, Ex. RW1
- Copy for the cashless claim facility request form; Ex. RW2
- Query letters dated 10.03.2018, 12.03.2018, 13.03.2018; Ex. RW3;
- Consultation sheet dated 22.11.2017; Ex. RW4
- Letter dated 13.03.2018 of the OP; Ex. RW5
- Copy of the proposal form; Ex. RW6
- Copy of letter dated 21.05.2018 and 14.082018; Ex. RW7 and RW8
- Copy of reply dated 21.06.2018; Ex. RW9
- Copy of reply of legal notice dated 20.08.2018; Ex. RW10
- The complainants filed their Rejoinder rebutting the written statement filed by the OP. Both the parties filed their Evidence by way of Affidavit in order to prove their averments on record. After the completion of the pleadings, the Final Arguments on part of the both the parties were heard.
- We have heard the counsel for both the parties and perused through the material on record.
- The issuance of the policy and its renewal is not in dispute. The factum of the operation of complainant for Aneurysm in 2014 is also admitted i.e., that is before the inception of the policy. Complainant admitted that the same was never disclosed to the OP at the time of taking the policy and also not mentioned in the proposal form as same has been done four years earlier than the taking of policy and there was no medication / treatment at the time of taking of policy. This is also a matter of record that in the proposal form under the heading “pre-existing disease details” the complainant has written ‘no’ against the query with respect to the declaration of any pre-existing illness/injury during the last 48 months at the time of filling the proposal form.
- Before delving into the merits of the case, we deem it appropriate to adjudicate preliminary issues as to the maintainability of the Consumer Complaint.
- The first question for consideration is whether this commission has the territorial jurisdiction to adjudicate the present complaint under Section 11 of the Consumer Protection Act, 1986?
- Analysis of Section 11 of the Consumer Protection Act, 1986 leads us to the conclusion that this commission shall have the territorial jurisdiction to entertain cases where OP at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain or the cause of action arose.
- Hon’ble Supreme Court in Sonic Surgical vs National Insurance Company Ltd. (2010) 2 SCC 135 has while adjudicating section 17 of Consumer Protection Act 1986 categorically held that “State Commission where the “branch office” of OP is situated would have jurisdiction to entertain complaints, only if cause of action had also arisen wherein branch office is situated. Thus, mere existence of branch office would not confer jurisdiction”.
- Relying on Sonic Surgical vs National Insurance Company Limited the Hon’ble NCDRC in Kaizad Marzban Baraiya vs National Insurance Ltd RP No. 2710/2015 has held that: “Therefore, the place of registered office of respondent no.2 by itself shall not confer jurisdiction on the Consumer Forum which otherwise do not have the territorial jurisdiction.”
- The Hon'ble NCDRC in Prem Joshi vs Jurassic Park Inn, RP 575/2018 has also held vide its order dated 01.03.2018 that “in terms of Section 11 of the CPA, 1986, a complaint can be instituted inter-alia in a District Forum within the local limit of whose jurisdiction the cause of action wholly or in part arise.”
- Hon'ble NCDRC, in “Sarvesh Kumar Singh vs Kailash Healthcare Hospital 2019 (3) CPR 627” rejected the contention that the registered office of the OP would confer territorial jurisdiction to Delhi State Commission. In this matter no part of cause of action took place at Delhi and the neither the doctor against whom the medical negligence was pleaded, worked for gain in territorial jurisdiction of Delhi State Commission. The cause of action took place at Noida and the doctor also worked in Noida, hence the Hon’ble NCDRC held that State Commission situated at Lucknow would have jurisdiction.
- Having discussed the statutory position, the facts of the present case reflect that neither the OP is not residing or having branch office or works for gain within the territorial jurisdiction of this commission nor complainant or her husband was treated within the territorial jurisdiction of this Commission. The policy of health insurance has been issued by the office of OP at office of Noida and the authorised signatory issued the policy from its office at Noida. The registered office of the OP is at Saket New Delhi at the time of taking of the policy, which is also not within the jurisdiction of this commission. The pre- authorisation request form filled by complainant shows the hospital name and address as Fortis Memorial Research Institute at Gurgaon – 122002. The hospital where the complainant was treated is also the Gurgaon, Haryana. The address for correspondence given by the OP was from Noida. We find that no cause of action accrued in favour of the complainant against the OP within territorial jurisdiction of this commission, consequently this forum has no jurisdiction to try and entertain the present complaint and the complaint is hereby returned for lack of territorial jurisdiction with liberty to file before the District Forum of appropriate jurisdiction, subject to limitation.
- File be consigned to record room after providing copy of the order to the party in terms of the CPA, 1986.
- The complaint could not be decided in time due to heavy pendency of the cases.
- The order comprises 7 page, each bearing my signature.
(Dr. RAJENDER DHAR) (RASHMI BANSAL) (MONIKA SRIVASTAVA) MEMBER MEMBER PRESIDENT | |
