SMT. RAVI SUSHA  : PRESIDENT

This complaint has been filed by the complainant U/S  35 of the Consumer Protection Act 2019,  seeking to get an  order directing  opposite parties to pay Rs.70,000/- towards monitory loss and Rs.50,000/- towards compensation for mental agony and hardship caused to him due to the deficiency of service on the part of opposite parties.

    The  facts of the complaint are that the complainant had taken a Medi claim policy  with OPs 1&2 from 2016 onwards and the policy  covering  him ,his wife and children. As per the assurance of 3^rd OP, the sum insured was increased from Rupees 1 lakh to  3 lakhs and the policy was upgraded from  5/6/2021.  On 18/2/2022, complainant was admitted to Aster MIMS Hospital for Umbilical Hernia and surgery was conducted and he incurred Rs.70,000/- as hospital expense.  But the claim amount was denied by OPs 1&2 raising a ground that ailment Hernia is excluded in the first year of the coverage.  According to the complainant since he had upgraded the  earlier policy, his claim could not have been denied  on the ground  exclusion  clause as raised by OPs 1&2, thus the repudiation of claim of the complainant was groundless.  Hence the complaint.

     The above contention was denied by the OPs.  OPs 1 and 2 stated that the complainant had taken an Arogya plus  policy  for the period from  5/6/2021 to 4/6/2021 under policy No.0000000023247396 subject to policy terms and conditions. That during  the first year any claim arising out of all types of Hernia is an exclusion. While so, the complainant was treated for Hernia, under the policy  Hernia is an named  exclusion for the  first year of coverage.   OPs  1&2 further stated that the claim of the complainant for reimbursement of the hospitalization does not fall within the policy purview as the ailment Hernia is an exclusion in the first year of the coverage.  OPs further pleaded  that it is not possible for a Group Health Insurance policy to be upgraded to Retail Health insurance  and the  complainant cannot claim it as continuation to the earlier  Group policy.  It is further stated that, the  claim denial was in line with the policy , According to OPs the  terms  of the  agreement have to be  strictly  construed to  determine  the extent of liability of the insurers.  The insured cannot claim anything more than what is covered by the insurance policy. There is no deficiency in service on the part of the OPs 1&2 and prayed for the dismissal of the complaint.

     After receiving notice 3^rd OP remained absent and not contested the case.  Hence 3^rd OP was declared as exparte.

   At the evidence stage, complainant has filed his chief affidavit and documents.  Complainant was examined as PW1 and the documents were marked as Exts.A1 to A7.  On the side of OPs 1&2, Consumer Litigation claims Manager of OPs 1&2 has filed his  chief affidavit  and has been examined as DW1 and  Exts.B1 to B4 were marked.

   After that, the learned counsels of  complainant  and OPs 1&2  filed their written argument notes and argued the matter.  The learned counsel of complainant submitted some judgment of the Apex court.

   We have perused the pleadings of both parties, evidence adduced, documentary evidence available and considered the submissions of both learned counsels  and  also the view of Supreme Court in the similar issues.

   Complainant’s allegation is that the repudiation of the claim by the OPs 1&2 is not justified.  According to complainant he had taken Medi claim policy  with OPs 1&2 from 2016 onwards and as per the assurance of 3^rd OP, the sum insured was increased from Rupees 1 lakh to  3 lakhs and the policy was upgraded from  5/6/2021.  On 18/2/2022, he was admitted to Aster MIMS Hospital for Umbilical Hernia and surgery was conducted and he incurred Rs.70,000/- as hospital expense.  But the claim amount was denied by OPs 1&2 raising a ground that ailment Hernia is excluded in the first year of the coverage.  According to the complainant since he had upgraded the  earlier policy, his claim could not have been denied  on the ground  exclusion  clause as raised by OPs 1&2, thus the repudiation of claim of the complainant was groundless.

   The learned counsel of OPs 1&2 argued that the complainant  had taken an Arogya plus policy from OPs 1&2 and it was issued for the period  5/6/2021 to 4/6/2022.  According to OPs  1&2 the claim of the complainant for reimbursement of the hospitalization does not fall within the policy purview as the ailment Hernia is an exclusion in the first year of the coverage.  OPs further pleaded  that it is not possible for a group Health Insurance policy to be upgraded to Retail Health insurance  and the  complainant cannot claim it as continuation to the earlier  Group policy.  According to OPs, the claim denial was in line with the policy , hence there is no deficiency in service on the part of the OPs 1&2.  According to OPs the  terms  of the  agreement have to be  strictly  construed to  determine  the extent of liability of the insurers.  The insured cannot claim anything more than what is covered by the insurance policy.

   Complainant submitted that he has maintained an interrupted policy since 2016 and the purpose behind remitting additional payment to 3^rd OP was solely to increase the insured sum.  Complainant pleaded that if the contention of OPs 1&2, that upgrading was not possible,  is accepted, no insured person  would abandon their existing policy to obtain a new one, creating  a one year gap in insurance coverage.  Further stated that if this were the case, 3^rd OP should have informed the complainant about the consequences.  If such advice had been provided, the complainant could have continued with the earlier policy.  DW1 during cross-examination deposed that ഒരു മെഡിക്ലയിം പോളിസി നിലനിൽക്കേ ഒരു വർഷത്തിനുശേഷം നിലവിൽ വരുന്ന മറ്റൊരു പോളിസി എടുത്ത്  ഒരു വർഷത്തെ  പ്രൊട്ടക്ഷൻ വേണ്ട എന്ന് സാധാരണ ഗതിയിൽ ആരും ചെയ്യാറില്ല? ഇല്ല .   Complainant further submitted that the OPs 1&2 received the application for the policy , along with the premium as required by 3^rd OP , and subsequently issued the policy.  Policy issue    ചെയ്യുന്നത് പ്രൊപോസൽ  ഫോമും പണവും കിട്ടിയ ശേഷമാണ്. However, there was no prior communication of the policy conditions to the complainant.  Consequently OPs 1&2 cannot argue that the complainant is bound by the terms of the policy.

      The learned counsel of complainant submitted a judgment of Hon’ble Supreme Court in Anju Kalsi vs HDFC Ergo 2022(6)SCC 394 , established that unless the insurance company can convincingly demonstrate that the special conditions of the policy were brought to the notice of the account holder, for whose benefit the insurance cover extends , the claim should not be rejected.  This principle can also be applied to the present case.

   The facts of the OPs 1&2 is that complainant previously , he was covered under GHI (Group Health  insurance) policy issue to State Bank of India account holders and he had discontinued the policy and taken a new health insurance policy namely Arogya Plus policy for a higher sum insured of Rs.3,00,000/-.  Further stated that, it is not possible for a Group Health insurance policy to be upgraded to Retail health insurance.

   Then a new contract, and  therefore, no benefit  of  cashless treatment is eligible to the complainant for the 1^st year of inception of the new policy to the ailment Hernia.

   Complainant’s  main allegation is that terms and conditions of the new policy was supplied by neither of the OP.  Complainant pleaded that  he had taken the disputed policy as per the instigation of 3^rd OP bank.  Here 3^rd OP remained absent and became  exparte.  OPs 1&2 also not proved that prior to take new policy they had informed the complainant about the exclusion conditions.

   Here our view  is that  onus of proof lies upon OPs 1 to 3 that terms and conditions of the policy were informed to the insured before taking the policy.  It is a settled position that insured not bound by the terms and conditions of insurance policy unless it is proved that it was supplied to the insured by the Insurance company. Therefore the claim was repudiated without any basis.  Ops 1 to 3 are failed to prove that the disputed policy is a new policy by taking fresh declaration .

  Considering the view  of Hon’ble Supreme Court in Anju Kalsi vs HDFC Ergo 2022(6) SCC 394, the claim of complainant should not be rejected , there is deficiency in service on the part of OPs 1 to 3.  Hence complainant is entitled to get relief.

     In the result complaint is allowed in part. The  opposite parties 1 to 3 are directed to  pay Rs.70,000/- to the complainant .  Opposite parties 1 to 3  are also directed to pay Rs.15,000/- towards compensation. Opposite parties 1 to 3  are jointly and severally  liable to pay the awarded amount  to the complainant  within one month  date of  receipt of the  certified copy of this order, failing which the awarded  amount carries interest @7% per annum from the  date of order till  realization .  Complainant can  execute the order as per the provisions in Consumer Protection Act 2019.

Exts:

A1-Copy of insurance card

A2-Copy of ID card

A3-Copy of letter

A4- Reply letter

A5-letter issued by OP

A6-Discharge summary

A7 series- Medical bills

B1-Policy with terms and conditions

B2-claim  form

B3-Discharge summary

B4- Repudiation letter dtd.22/3/22

PW1- Dinesh.V- complainant

DW1 –Leo John.V.LM.Ravindran-  witness of OPs 1&2

Sd/                                                                        Sd/                                                     Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                          Sajeesh K.P

eva                                                                                   /Forwarded by Order/

                                                                                         ASSISTANT REGISTRAR