BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 265 of 2018
Date of Institution : 29.10.2018
Date of Decision : 07.06.2022.
Balbir aged about 50 years son of Shri Dhana Ram, resident of village Dhingtania, Tehsil and District Sirsa.
……Complainant.
Versus.
1. Religare Health Insurance Company Ltd. 5th Floor, 19 Chawla House, Nehru Palace, New Delhi- 110019.
Correspondence Address: Religare Health Insurance Company Ltd. Vipul Tech Square, Tower C, 3rd Floor Golf Course Road, Sector 43, Gurgaon- 122009 (Haryana) through its authorized person.
2. Indusind Bank Ltd. Branch at village Farwain Kalan, Tehsil and District Sirsa through its Branch Manager.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. PADAM SINGH THAKUR ……………PRESIDENT.
SMT. SUKHDEEP KAUR…………….…….MEMBER
SH. SUNIL MOHAN TRIKHA……………..MEMBER
Present: Sh. Rajender Bhakar, Advocate for the complainant.
Sh. H.S. Raghav, Advocate for opposite party no.1.
Opposite party no.2 already exparte.
ORDER
The case of the complainant, in brief, is that complainant is an agriculturist by profession. In the month of March, 2016, the complainant got opened a KCC loan account with op no.2. That as per the norms of bank it was mandatory for every person taking loan to get a health insurance policy from op no.1. As such, complainant also purchased health insurance policy bearing No.10627506 from op no.1 on 30.3.2016 and an amount of Rs.4452/- was deducted from the bank account of complainant as premium and insurance policy was also issued in the name of complainant and a copy of the same was also handed over to him. That said policy was valid for a period of three years i.e. from 31.3.2016 to 30.3.2019 and the sum assured was Rs.9,00,000/- and all the risks including accidental damages were also covered in the said policy. It is further averred that on 25.2.2018 around 2.00 p.m., complainant was going from village Dhingtania to village Gandhi on his motor cycle No. HR-24M-1970 and when he reached in front of Rajendra Petrol Pump village Kagdana, District Sirsa, a car bearing No. DL-2FEC-0093 which was being driven by its driver in a rash and negligent manner came from the side of village Gandhi and struck the same into the motor cycle of complainant on account of which he received serious, grievous injuries on his person and got fractures as well. The complainant suffered injuries on his right leg below knee joint, right forearm on the front, right forearm on the back, right knee joint, left shoulder and right hand fingers and as a result of the same he became permanent disabled person to the extent of 80%. The motor cycle of complainant was also badly damaged in the said accident. It is further averred that after the accident on the statement of brother of complainant namely Om Parkash eye witness, a case FIR No.25 dated 26.2.2018 for the offences under Sections 279/337/338/427 IPC was registered against the driver of the car in police station Nathusari Chopta. The complainant was taken to Jain Orthopedic and Multispecialty Hospital Sangwan Chowk, Sirsa and thereafter, he was shifted to Shanti Ved Imaging and Research Centre, Agra for treatment and huge amount has been incurred by the family of complainant on his treatment. Still he is under treatment and huge amount is still required for his further follow up treatment. That being the policy holder, complainant lodged his claim with op no.1 under claim no.90605404 and op issued a letter dated 6.6.2018 to the complainant vide which he was required to submit some documents as detailed therein and complainant immediately submitted the documents with the op but inspite of that, no response has been received by the complainant from the side of op no.1 with regard to his claim. It is further averred that complainant made requests to indemnify the claim and ultimately the op no.1 vide letter dated 1.8.2018 rejected the claim of complainant with the remarks “Reject- influence of drugs, alcohols or other intoxications or hallucinogens” and number of claim was also wrongly mentioned in the said letter. It is further averred that there is no medical record of the complainant showing him to be under the influence of drugs, alcohols or other intoxicants or hallucinogens at the time of accident. The aforesaid rejection letter dated 1.8.2018 is wrong, incorrect, illegal and against the terms and conditions of the policy and is not as per actual and factual position rather said fact has been opined by the insurance company itself with a view to reject the claim of complainant on imaginary ground and to avoid its legal liability and thus same is liable to be withdrawn. That in this manner, op no.1 not only violated the terms and conditions of the insurance policy but has also caused unnecessary harassment and mental tension to the complainant. That complainant also got issued a legal notice to the op no.1 on 27.9.2018 calling upon to indemnify the claim of complainant by making the payment of the amount of sum assured and also to pay compensation of Rs.1,00,000/- alongwith penalty and litigation charges, but to no effect. Hence, this complaint.
2. On notice, opposite party no.1 appeared and filed written statement taking certain preliminary objections. It is submitted that during continuation of above stated policy, the complainant was admitted at Jain Orthopedic Multispecialty Hospital, Sirsa on 25.12.2018 (actually 25.02.2018) due to the injuries sustained in road traffic accident. The complainant was later on shifted to Shri Ram Babu Gupta Medicine Center, Agra wherein he underwent surgery for debridement of right lower leg wound. It is further submitted that complainant approached the op for the reimbursement of the expenses incurred during the treatment taken in both the above stated hospitals i.e. from 27.2.2018 to 7.3.2018 and on 25.2.2018. On the receipt of above stated claims, the op raised query vide letter dated 6.6.2018 to seek various necessary documents including all treatment and hospitalization records after injury, police final investigation report and all X-ray films done in the case. Since there was no response on the query raised, a query reminder letter was also sent vide letter dated 18.6.2018 to the complainant. The complainant in response to the above stated letters submitted certain documents with the op. It is further submitted that on the basis of the documents submitted by complainant himself in query reply, the op observed the following:
a. As per the doctor’s sheet, issued by Shri Ram Babu Gupta Medicine center dated 27.2.2018, the complainant had a history of C2H50 i.e. Ethanol (Alcohol).
It is further submitted that above stated prescription indicate towards the fact that the complainant was under the influence of alcohol at the time of the incident. Since the complainant was under the influence of alcohol at the time of incident, op rejected both the claims of the complainant vide letter dated 1.8.2018 under Clause 3(a) (vi) of the policy terms and conditions which permanently excludes treatment for injuries attributable to influence of drugs, alcohol or other intoxication or hallucinogens. Remaining contents of the complaint are also denied to be wrong and prayer for dismissal of complaint made.
3. Op no.2 did not appear despite issuance of notice through registered cover and after waiting for stipulated period as none appeared on behalf of op no.2, therefore, op no.2 was proceeded against exparte.
4. The complainant tendered in evidence his affidavit Ex. CW1/A, copy of statement of account Ex.C1, copy of letter dated 20.4.2016 sent by op no.1 to complainant alongwith policy documents Ex.C2, copy of final report under Section 173 Cr.P.C. Ex.C5, copy of MLR Ex.C6, copy of admission card of Jain Hospital Ex.C7, copy of laboratory test report Ex.C8 and copies of treatment record Ex.C8 to Ex.C24, copy of disability certificate Ex.C25, copy of letter dated 6.6.2018 Ex.C26, copy of repudiation letter dated 1.8.2018 Ex.C27, copy of legal notice Ex.C28, postal receipts Ex.C29, Ex.C30, copies of bills/ receipts of treatment Ex.C31 to Ex.C63 and driving licence and adhar card Ex.C64.
5. Op no.1 tendered in evidence affidavit of Ms. Tanya Kapoor, Legal Manager authorized signatory Ex.R1, copy of letter dated 20.4.2016 Ex.R2, copy of policy certificate Ex.R3, copy of claim form Ex.R4, copy of claim form Ex.R5, copy of claim form Ex.R6, copy of letter dated 6.6.2018 Ex.R7, copy of letter dated 18.6.2018 Ex.R8, copy of doctor’s sheet Ex.R9 , copy of repudiation letter dated 1.8.2018 Ex.R10 and copy of policy terms and conditions Ex.R11.
6. We have heard learned counsel for the parties and have perused the case file carefully.
7. Learned counsel for complainant contended that during the subsistence of the policy in question i.e. on 25.02.2018 complainant suffered grievous and multiple injuries on his person in a road side accident due to the rash and negligent driving of the driver of the Car bearing registration No. DL-2FEC-0093 as he struck his car into his motor cycle. The complainant received injuries on his right leg below knee joint, right forearm, right knee joint, left shoulder and on right hand fingers and his right leg below knee joint has been amputated and he has become permanent disabled person to the extent of 80%. He has further contended that as the complainant was insured with op no.1, therefore, he lodged the claim under the policy in question to op no.1 but his genuine claim has been wrongly and illegally rejected by op no.1 vide letter dated 1.8.2018 on the ground that complainant was under influence of intoxications. However, he was not under influence of any drug or alcohol and op no.1 has failed to prove the ground of repudiation of claim by leading convincing and cogent evidence and prayed for acceptance of complaint. Learned counsel for complainant has also relied upon decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as New India Assurance Co. Ltd. vs. Ashminder Pal Singh II (2015) CPJ 758 (NC).
8. On the other hand, learned counsel for op no.1 has contended that on the basis of documents submitted by complainant himself it was found that as per doctor’s sheet issued by Shri Ram Babu Gupta Medicine Center dated 27.2.2018, the complainant had a history of C2H5O i.e. Ethanol (Alcohol) and said prescription indicates towards the fact that complainant was under the influence of alcohol at the time of accident. Therefore, as per clause 3(a) (v) of the terms and conditions of policy which permanently excludes treatment for injuries attributable under influence of drugs, alcohol or other intoxication or hallucinogens, the claims of complainant have been rightly repudiated vide letter dated 1.8.2018 and op no.1 is not liable to pay any claim/ insured amount of policy to the complainant and prayed for dismissal of complaint.
9. We have considered the rival contentions of both the parties.
10. Admittedly, complainant was having insurance policy from op no.1 and said policy bearing No.10627506 was valid for a period of three years i.e. from 31.03.2016 to 30.03.2019 and all the risks including accidental damages were covered in the said policy and the sum insured under the policy in question was of Rs.9,00,000/- and for obtaining this policy, premium amount of Rs.4452/- was paid from the account of complainant which fact is evident from the copy of statement of account of complainant as Ex.C1. The complainant in order to prove that he was having insurance policy in question from op no.1 has placed on record policy certificate Ex.C2 as well as terms and conditions of policy in question. There is also no dispute of the fact that on 25.02.2018 i.e. during the period of policy in question, complainant met with an accident when he was going to village Gandhi from his village on a motor cycle No. HR-24M-1970 as in the way his motor cycle was struck by a Car bearing no. DL-2FEC-0093. In the said accident, complainant received multiple grievous injuries on his person. He was taken to Jain Orthopedic and Multispecialty Hospital, Sirsa and doctor R.K. Jain prepared medico legal report (Ex.C6) which reveals that right leg of complainant below knee joint was crushed and besides this he also received severe and grievous injuries on his person as is evident from above said medico legal report Ex.C6. In the admission and discharge card Ex.C7, said Dr. R.K. Jain also mentioned about crushing of his right lower limb with bones (tibia fibula loss) and complainant Balbir Singh was discharged on 26.2.2018 from the said hospital as his condition was serious and her attendants desired to shift him to higher institution. Then he was taken to hospital at Agra and thereafter he was taken to Apollo Hospital, New Delhi. In the medical report prepared by Doctor of Apollo Hospital, Delhi (Ex.C13), it is mentioned that traumatically amputated right leg below knee joint and amputated part badly crushed, so left at site of accident and as such complainant took treatment for a long time and spent huge amount on his treatment as is evident from treatment record/ investigation report, copies of medical bills/ receipts placed on file by complainant as Ex.C31 to Ex.C63. From the copies of bills/ receipts, it is also proved on record that complainant has spent huge amount of Rs.2,52,808/- and according to complainant he is still under treatment and still huge amount is required for his further follow up treatment. According to complainant, as he has become permanent disabled person to the extent of 80%, therefore, as per terms and conditions of policy in question, he is entitled to the insured amount of Rs.9,00,000/- (Rs. nine lacs) from op no.1. In this regard, complainant has also placed on file copy of disability certificate Ex.C25 which is issued by board of doctors from the office of Civil Surgeon, Sirsa in which he has been shown 80% permanent disabled due to amputation of right lower limb. So, it is proved on record that complainant has become 80% permanent disabled as his right leg up to knee has been amputated.
11. It is also proved on record and admitted fact that complainant submitted his claim to op no.1 and op no.1 vide its letter dated 6.6.2018 and 18.6.2018 initially required certain documents from the complainant which according to complainant were duly submitted by him to op no.1 and even same is admitted by op no.1 but thereafter claim of complainant has been repudiated vide letter dated 1.8.2018 on the ground that claim is not payable as per policy terms and conditions and reason of rejection of claim of complainant is given as “Reject- Influence of drugs, alcohols or other intoxications or hallucinogens”. To strengthen the plea of rejection by op no.1, the op no.1 has also relied upon copy of Doctor’s sheet of Shri Ram Babu Gupta Medicine Center, Agra which is of dated 27.02.2018 in which history is mentioned as C2H5O and according to op no.1 as the complainant had a history of C2H50 i.e. Ethanol (Alcohol) which indicates that complainant was under the influence of alcohol at the time of accident, so as per clause 3(a) (v) of the policy terms and conditions, the claim of complainant has been rightly repudiated by op no.1 as complainant has violated the terms and conditions of policy in question by taking alcohol at the time of driving of a motor cycle. In this regard, op no.1 has also relied upon Permanent Exclusions clause No.3 of the policy in question, which is reproduced as under:-
3(a) Any claim in respect of any insured Person for, arising out of or directly or indirectly due to any of the following shall not be admissible, unless expressly stated to the contrary elsewhere in the Policy:
- to (v) xxxx
- (vi) Influence of drugs, alcohols or other intoxications or hallucinogens.
12. Though, op no.1 has placed on file above said doctor’s sheet of Shri Ram Babu Gupta Medicine Center, Agra but said document is not at all helpful to the op no.1 because the column of name of patient of said doctor’s sheet is vacant and it is not proved through any cogent and convincing evidence that said document relates to the complainant Balbir Singh. So, when the column of name of the patient in the said sheet is vacant, it cannot be said that said document actually pertains to complainant Balbir Singh and not pertains to any other patient. The op no.1 has also failed to prove said document by leading cogent and convincing evidence by examining any of staff of said hospital or doctor who prepared this very document to prove that it actually pertains to patient Balbir Singh. Though, op no.1 stated that they have summoned Dr. Subhash Chander Gupta of above said hospital but op no.1 did not make best efforts to serve summon upon said Dr. Subhash Gupta despite availing number of opportunities including last and final opportunities and as such an adverse inference is to be drawn against op no.1 for not examining above said doctor and any other staff member of the above said hospital and therefore, it can be presumed that above said document is not related to the complainant and has only been produced on record to deny genuine claim of complainant. Moreover, there is no other evidence on record to prove that complainant was under the influence of alcohol and any other intoxication at the time of accident. After the accident, firstly complainant was taken to Jain Orthopedic and Multispecialty Hospital, Sirsa on the date of accident i.e. on 25.2.2018 and he remained admitted there up to 26.2.2018 and Dr. R.K. Jain of said hospital prepared medico legal report of complainant but he did not found that complainant was under influence of any intoxication. Further more, in the medical report dated 27.2.2018 (Ex.C13) of complainant which is of Apollo Hospital, Delhi, there is also no mention that patient Balbir Singh was under influence of any intoxication. The production of only one photostat document allegedly a doctor’s sheet by op no.1 even without patient name and without proving it by producing any another supporting document i.e. admission/ discharge record of the said hospital and without producing any affidavit in support of this very document Ex.R9 is not sufficient to prove the plea of op no.1 and the possibility of this document to be fake one and preparation of the same at later stage to deny genuine claim of complainant cannot be ruled out. Further more, in absence of any test like urine test report etc., it cannot be said that complainant was under influence of any intoxication and op no.1 has not proved on record through cogent and convincing evidence that complainant has violated any terms and conditions of the policy in question. In this regard, we also found support from the decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as New India Assurance Co. Ltd. vs. Ashminder Pal Singh, II (2015) CPJ 758 (NC) relied upon by learned counsel for complainant. So, the op no.1 has wrongly, illegally and willfully rejected the claim of the complainant which is proved to be genuine one as right lower limb of his right hand has been amputated in a road side accident which is covered under the policy in question issued by op no.1.
13. Now the question arises for consideration that to what amount of claim the complainant is entitled for? In this regard, complainant has asserted that as he has become permanent disabled to the extent of 80%, therefore, as per terms and condition of policy in question, he is entitled to full amount of sum insured i.e. Rs. nine lacs from op no.1. We are also agreed in this regard with the contention of complainant. As already discussed above, it is proved on record from the disability certificate produced on record by complainant Ex.C25 that complainant has become permanently disabled to the extent of 80% due to amputation of right lower limb of right leg. In this regard, in the clause no.2.2 of the terms and conditions of policy regarding benefits in case of permanent total disablement (PTD), it is mentioned that in case of physical separation of one entire foot in the accident, the insured will be entitled to 100% of the sum insured and as the right lower limb of right leg of complainant has been amputated in the accident including entire foot, therefore, as per above said terms and conditions of insurance policy, the complainant is entitled to 100% of sum insured amount i.e. Rs.nine lacs from the opposite party no.1.
14. During the course of arguments, learned counsel for op no.1 has also contended that complainant has also filed a claim petition under Section 166 of the Motor Vehicles Act for grant of compensation of Rs. forty lacs on account of grievous and multiple injuries received in above said accident resulting into permanent disability to the extent of 80% on the person of claimant i.e. present complainant. In this regard, learned counsel for op no.1 has also placed on record copy of above said claim petition titled as Balbir Singh Versus Sukhdev Singh and others filed before Motor Accident Claims Tribunal, Sirsa and contended that as complainant will receive compensation for the above said disability in that claim petition, therefore, complainant is not entitled to any amount in this complaint case. But however, we found no substance in this contention of learned counsel for op no.1 because complainant paid premium amount to op no.1 insurance company for insuring risks to his person including accidental damages and therefore, filing of claim petition before Motor Accident Claim Tribunal by complainant against the driver of offending vehicle i.e. Car and insurance company (with which said car was insured) does not debar the complainant from filing present complaint seeking sum insured against op no.1 which entered into contract with complainant covering risk to his person including accidental injuries. In this regard, Hon’ble Supreme Court of India in case titled as Helen C. Rabello versus Maharashtra State Road Transport Corpn. CA No. 1904 of 1989 decided on 18.9.1998 has held that “Motor Vehicles Act, 1939, Sections 92A, 110B and 168 (1) Compensation- Computation of compensation- Whether life insurance money of deceased is to be deducted from the claimant’s compensation receivable under Motor Vehicles Act, 1939- Held, compensation under Motor Vehicles Act is statutory, while it is contractual under Life Insurance Policy- No co-relation between two amounts even remotely- Amount receivable under Motor Vehicles Act is on account of injury or death without making contribution- Insured contributes his own money in Life Insurance Policy- Amount received by claimant on Life Insurance of deceased is not deductable from compensation under Motor Vehicles Act, 1939”. The above said authority is also fully applicable in this case and as such complainant is entitled to sum insured of Rs.nine lacs in this case from op no.1. However, no liability of op no.2 of any kind is made out.
15. Thus, as a sequel to our above discussion, we allow the present complaint qua opposite party no.1 and direct op no.1 to pay the sum insured amount of Rs.9,00,000/- (Rs.Nine Lacs) to the complainant alongwith interest @6% per annum from the date of filing of present complaint i.e. 29.10.2018 till actual realization within a period of 45 days from the date of receipt of copy of this order. We also direct op no.1 to further pay a sum of Rs.25,000/- as compensation for harassment, mental agony and also to pay a sum of Rs.10,000/- as litigation expenses to the complainant. The op no.1 is liable to comply with this order within above said period, failing which complainant will be at liberty to initiate proceedings under Section 71/72 of the Consumer Protection Act, 2019 against op no.1. However, complaint qua op no.2 stands dismissed. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced: Member Member President,
Dated: 07.06.2022. District Consumer Disputes
Redressal Commission, Sirsa.
JK
