Order by:
Sh.Amrinder Singh Sidhu, President
1. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (as amended upto date) on the allegations that he purchased a family policy i.e. Family Health Optima Insurance Plan from Appolo Munich valid for the period 05.03.2014 to 05.03.2015 and thereafter, said policy was renewed continuously from time to time without any break and lastly, it was ported in the Opposite Party company valid for the period 5.03.2020 to 04.3.2021 for Rs.5 lakhs. Unfortunately, during the policy period, Naman Ahuja son of the complainant suddenly suffered from kidney problem and due to stone in the kidney, he was admitted in Super Speciality Hospital on 18.11.2020 and discharged on 19.11.2020 where the treating doctor removed the stone and Flex x 2 URS (Stent) were placed in both the kidneys after conducting operation. Again Naman Ahula hospitalized on 10.12.2020 where D.J.Stent were removed and discharged on the same day. In the said hospital, the complainant spent more than Rs.one lakh on the treatment. Due information was given to the Opposite Parties well within time. Thereafter, the complainant lodged the claim with the Opposite Parties for the reimbursement of the hospital bills and also completed all the formalities, but the Opposite Parties repudiated the claim of the complainant vide letter dated 18.11.2020 on the false and frivolous grounds. In this way, said conduct of the Opposite Parties clearly amounts to deficiency in service and as such, the Complainant is left with no other alternative but to file the present complaint. Vide instant complaint, the complainant has sought the following reliefs.
a) Opposite Parties may be directed to pay the insured amount of Rs.1 lakhs on account of medical expenses alongwith interest @ 12% per annum from the date of claim till its actual realization and also to pay Rs.1 lakh as compensation on account of mental tension, physical harassment besides Rs.15,000/- as litigation expenses or any other relief to which this District Consumer Commission may deem fit be also granted.
2. Opposite Parties-Insurance Company appeared through counsel and contested the complaint by filing the written version on the ground inter alia that the complaint is not maintainable; that there is no deficiency in service on the part of the Opposite Parties and that the complaint is absolutely false and frivolous. The intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under the Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court. The complainant has not approached this District Consumer Commission with clean hands, rather he has wilfully concealed the material and patent facts from this District Consumer Commission which ipso-facto disentitles the complainant to seek any relief against the Opposite Party. In fact, the claim of the complainant was repudiated under the policy terms and conditions on the ground of pre-existing disease and non disclosure of the material facts. It is established from the medical/ treatment record as filed by the insured and as received from the treating hospital that the insured was a k/c/o renal calculus since November 2019 and the same was never disclosed at the time of procurement of policy. Moreover, the treatment against which the present claim was filed was also related to the ailment of Renal Calculus, as the treatment taken by the insured and the ailment diagnosed was B/L Nephrolithiasis (Nephrolithiasis is the term employed for kidney stones, also known as renal calculi, and they are crystal concretions formed typically in the kidney) thus the claim was found not payable. Since the insured by not disclosing the PED before procuring the policy and has violated the policy document/ contract and also the core principle of insurance i.e. the Principle of good faith and had obtained the policy through concealment of material facts. It is not disputed that the present application pertains to insurance claim under Family Health Optima Insurance Plan policy bearing No. P/211222/01/2020/005155 valid from 05.03.2020 to 04.03.2021 covering the complainant self, Renu Ahuja-spouse, Jatin Ahuja and Naman Ahuja dependant children for a sum of Rs.5 lakhs. It is also not disputed that insured had insurance policy earlier with Apollo Munich since 05.03.2014 ported his policy with Opposite Parties under portability. The claim was received for hospitalisation of Naman Ahuja from the insured on cashless basis for the treatment of B/L Nephrolithiasis for Rs.83,820/-, but upon scrutiny of the medical treatment as provided by the insured, it was found by the Opposite Parties vide treating doctor certificate dated 18.11.2020 that the insured Naman Ahuja was suffering from and was a known case of Renal Canculus since November, 2019 only homeopathy treatment done so far. But the insured has not disclosed the medical history in the proposal form and other portability forms at the time of porting the policy, thus the claim was found not payable and hence the claim of the complainant was rightly repudiated. On merits, the Opposite Parties took up the same and similar pleas as taken up by them in the preliminary objections. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint was made.
3. In order to prove his case, the complainant has tendered into evidence the copy of aadhar card Ex.C1, affidavit Ex.C2 alongwith copies of documents Ex.C3 to Ex.C16 and closed his evidence.
4. On the other hand, to rebut the evidence of the complainant, Opposite Parties tendered into evidence affidavit of Sh.Sumit Kumar Sharma Ex.Ops1,2/A, affidavit of harpreet Singh Ex.OP1,2/B alongwith power of attorney Ex.Ops1,2/C alongwith copies of documents Ex.OP1,2/1 to Ex.OP1,2/11 and Ex.Ops1,2/12A and Ex.OP1,2/12B and closed the evidence on behalf of the Opposite Parties.
5. We have heard the ld.counsel for the parties and gone through the documents placed on record.
6. During the course of arguments, ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that the complainant purchased a family policy i.e. Family Health Optima Insurance Plan from Appolo Munich valid for the period 05.03.2014 to 05.03.2015 and thereafter, said policy was renewed continuously from time to time without any break and lastly, it was ported in the Opposite Party company valid for the period 5.03.2020 to 04.3.2021 for Rs.5 lakhs. Unfortunately, during the policy period, Naman Ahuja son of the complainant suddenly suffered from kidney problem and due to stone in the kidney, he was admitted in Super Speciality Hospital on 18.11.2020 and discharged on 19.11.2020 where the treating doctor removed the stone and Flex x 2 URS (Stent) were placed in both the kidneys after conducting operation. Again Naman Ahula hospitalized on 10.12.2020 where D.J.Stent were removed and discharged on the same day. In the said hospital, the complainant spent more than Rs.One lakh on the treatment. Due information was given to the Opposite Parties well within time. Thereafter, the complainant lodged the claim with the Opposite Parties for the reimbursement of the hospital bills and also completed all the formalities, but the Opposite Parties repudiated the claim of the complainant vide letter dated 18.11.2020 on the false and frivolous grounds and in this way, said conduct of the Opposite Parties clearly amounts to deficiency in service.
7. On the other hand, ld.counsel for Opposite Party No.1 has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that first of all, the intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under the Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court. The complainant has not approached this District Consumer Commission with clean hands, rather he has wilfully concealed the material and patent facts from this District Consumer Commission which ipso-facto disentitles the complainant to seek any relief against the Opposite Party. Further contended that in fact, the claim of the complainant was repudiated under the policy terms and conditions on the ground of pre-existing disease and non disclosure of the material facts. It is established from the medical/ treatment record as filed by the insured and as received from the treating hospital that the insured was a k/c/o renal calculus since November 2019 and the same was never disclosed at the time of procurement of policy. Moreover, the treatment against which the present claim was filed was also related to the ailment of Renal Calculus, as the treatment taken by the insured and the ailment diagnosed was B/L Nephrolithiasis (Nephrolithiasis is the term employed for kidney stones, also known as renal calculi, and they are crystal concretions formed typically in the kidney) thus the claim was found not payable. Since the insured by not disclosing the PED before procuring the policy and has violated the policy document/ contract and also the core principle of insurance i.e. the Principle of good faith and had obtained the policy through concealment of material facts. It is not disputed that the present application pertains to insurance claim under Family Health Optima Insurance Plan policy bearing No. P/211222/01/2020/005155 valid from 05.03.2020 to 04.03.2021 covering the complainant self, Renu Ahuja-spouse, Jatin Ahuja and Naman Ahuja dependant children for a sum of Rs.5 lakhs. It is also not disputed that insured had insurance policy earlier with Apollo Munich since 05.03.2014 ported his policy with Opposite Parties under portability. The claim was received for hospitalisation of Naman Ahuja from the insured on cashless basis for the treatment of B/L Nephrolithiasis for Rs.83,820/-, but upon scrutiny of the medical treatment as provided by the insured, it was found by the Opposite Parties vide treating doctor certificate dated 18.11.2020 that the insured Naman Ahuja was suffering from and was a known case of Renal Canculus since November, 2019 only homeopathy treatment done so far. But the insured has not disclosed the medical history in the proposal form and other portability forms at the time of porting the policy, thus the claim was found not payable and hence the claim of the complainant was rightly repudiated.
8. Ld.counsel for the Opposite Parties mainly contended that the intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under the Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court and this District Consumer Commission has no jurisdiction to try and decide the present complaint. So far as the objection that complicated question of the fact is involved as such the Insured be relegated to go before Civil Court, is concerned, The Consumer Protection Act, 1986 (as amended upto date) (hereinafter referred to as the Act) was enacted with object to provide for better protection of the interests of the consumers and for that purpose, to make provision for the establishment of consumer council and other authorities for settlement of consumer disputes and other matter connected therewith. Section 13 (4) confers same powers upon the authorities under the Act, which are vested in Civil Court under Code of Civil Procedure, 1908, while trying a suit in respect of (i) The summoning and enforcing the attendance of any defendant or witness and examining the witness on oath, (ii) the discovery and production of any document or other material object producible as evidence, (iii) the reception of evidence on affidavits, (iv) the requisitioning of the report of the concerned analysis or test the appropriate laboratory or from other relevant source, (v) issuing of any commission for the examination of any witness and (vi) any other matter which may be prescribed. The authorities are conferred jurisdiction to decide the issue of “unfair trade practice” which has been defined under Section 2 (r) of the Act. This definition is similar to the definition of “fraud” as given under Section 17 of Indian Contract Act, 1872. From these provisions it is clear that this Commission can hold a full trail as held by civil court or adopt summary procedure for decision of any complaint. Under the Act, although the jurisdiction of the authorities is limited to consumer complaint, but while deciding such complaint no limit has been fixed for adjudicating of the dispute. Three Judges Bench of Supreme Court in Dr. J.J. Merchant Vs. Shrinath Chaturvedi, (2002) 6 SCC 635, (paragraph-7) held that the object and purpose of the Act is to render simple, inexpensive and speedy remedy to the consumer with complaint against defective goods and deficient services and the benevolent piece of legislation, intended to protect a large body of consumer from exploitation. Consumer Forum is an alternate Forum, established under the Act, to discharge the function of Civil Court. Under the Act, the consumers are provided with an alternative efficacious and speedy remedy. As such the Consumer Forum is an alternative forum established under the Act to discharge the functions of Civil Court. Therefore, delay in disposal of the complaint would not be a ground for rejecting the complaint and directing the complainant to approach the Civil Court. The argument that the complicated question of fact cannot be decided by the Forum, has been specifically rejected (In paragraph-12). Similar view has been taken in Amar Jwala Paper Mills Vs. State Bank of India, (1998) 8 SCC 387, CCI Chambers Coop. Hsg. Society Ltd. Development Credit Bank Ltd. (2003) 7 SCC 233. Hon’ble National Commission, New Delhi in CC No. 101 of 2009 titled as Mahalaxmi Dyes & Chemicals Ltd. Vs. New India Assurance Company Limited decided on 07.09.2021 also held so. Hence, this District Consumer Commission is not convinced with the aforesaid contention of the ld.counsel for the Opposite Party.
9. Further contention of the ld.counsel for Opposite Parties is that that the claim of the complainant was repudiated under the policy terms and conditions and contended that the claim was received for hospitalisation of Naman Ahuja from the insured on cashless basis for the treatment of B/L Nephrolithiasis, but upon scrutiny of the medical treatment as provided by the insured, it was found by the Opposite Parties vide treating doctor certificate dated 18.11.2020 that the insured Naman Ahuja was suffering from and was a known case of Renal Canculus since November, 2019 only homeopathy treatment done so far. But the insured has not disclosed the medical history in the proposal form and other portability forms at the time of porting the policy, thus the claim was found not payable. But on the other hand, ld.counsel for the complainant has specifically denied this averment of Opposite Parties and contended that no such terms and conditions were ever conveyed or supplied to the complainant at the time of insurance of the cows and the alleged terms and conditions are not applicable on the case of complainant. In this way, the main ground for rejection of claim of the complainant by the Opposite Parties is that complainant has violated the terms and conditions of the policy in question and as per the terms and conditions of the policy, the complainant is not entitled to the claim of the insured as claimed. But the Opposite Party could not produce any evidence to prove that terms and conditions of the policy were ever supplied to the complainant insured, when and through which mode? It has been held by Hon’ble National Commission, New Delhi in case titled as The Oriental Insurance Company Limited Vs. Satpal Singh & Others 2014(2) CLT page 305 that the insured is not bound by the terms and conditions of the insurance policy unless it is proved that policy was supplied to the insured by the insurance company. Onus to prove that terms and conditions of the policy were supplied to the insured lies upon the insurance company. From the perusal of the entire evidence produced on record by the Opposite Party, it is clear that Opposite Party has failed to prove on record that they did supply the terms and conditions of the policy to the complainant insured. As such, these terms and conditions, particularly the exclusion clause of the policy is not binding upon the insured. Reliance in this connection can be had on Modern Insulators Ltd.Vs. Oriental Insurance Company Limited (2000) 2 SCC 734, wherein it is held that “In view of the above settled position of law, we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent can not claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.” Our own Hon’ble State Commission, Punjab, Chandigarh in First Appeal No.871 of 2014 decided on 03.02.2017 in case titled as Veena Mahajan (Widow) and others Vs. Aegon Religare Life Insurance Company Limited in para No.5 has held that
“Counsel for the appellant argued that copy of insurance policy was not supplied to the appellant and hence, the exclusion clause in the contract of the insurance policy is not binding upon him. He further argued that no proof of sending of insurance policy was ever produced by the respondent despite specific contention raised by the complainant that the insurance policy was never received by him. He argued that though there is an averment of the OP that the policy in question was delivered through Blue Dart Courier to the complainant. In order to prove their contention, no affidavit of any employee of Blue Dart was produced who would have made a statement to have the effect that the policy was delivered to the complainant nor any acknowledgement slip for having received the article by the complainant through courier company was produced by the insurance company. He argued that since no policy document was received by the insured and argued that the terms and conditions as alleged to be part of the insurance policy were not binding upon the insured. He argued that policy was issued in the name of deceased Sh.Vijinder Pal Mahajan with his wife Mrs.Veena Mahajan as beneficiary and the same was never refused by the OP and the proper premium for insurance was paid by late complainant. He argued that as per the specific allegations made in the complaint in para No.4, no rebuttal to that contention was specifically there in their written reply in para No.2 and para No.4 in the reply filed by OP in the District Forum. He argued that Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case of "Ashok Sharma Vs. National Insurance Co. Limited", in Revision Petition No. 2708 of 2013 held in para No.8 to the point of non-delivery of terms and conditions of the policy. He also cited Hon'ble Supreme Court's decision given in the matter of "United India Insurance Co. Limited Vs. M.K.J.Corporation" in Appeal (civil) 6075-6076 of 1995 (1996) 6 SCC 428 wherein the Apex court held that a fundamental principle of Insurance Law makes it that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. Just as the insured has a duty to disclose, "similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge, since obligation of good faith applies to them equally with the assured and further argued that since the terms and conditions were not supplied even on repeated requests the same cannot be relied upon by the opposite party in order to report to repudiate the genuine claim of the wife of the deceased policy holder.”
Recently, Hon’ble State Consumer Disputes Redressal Commission, Punjab at Chandigarh in First Appeal No.415 of 2019 decided on 18th June, 2021 in case Bajaj Allianz General Insurance Co. Vs. Rajwant Kaur and others has specifically held that the onus is on the insurance company to prove that it provided the terms and conditions of the policy to the complainant and the same were in his knowledge. In para No. 18 has held that the appellant has filed to produce on record any cogent evidence to prove that the said terms and conditions were supplied to the complainant and she was fully aware of the same. The matter is no more res integra the Hon’ble Supreme Court of India in case “Bharat Watch Company through its partner Vs. national Insurance Company Limited 2019(6) SCC 212 and held that the conditions of exclusion under the policy document were not handed over to the appellant by the insurer and in the absence of the appellant being made aware of the terms of the exclusion, it is not open to the insurer to rely upon the exclusion clauses. Hon’ble Hon’ble Supreme Court of India relied upon above referred judgement in case New India Assurance Company Limited & Others Vs. Paresh Mohan Lal Parmar in Civil Appeal no. 10398/2011 decided on 04.02.2020. Further, the law on the question of applicability of exclusion clause, suppression of the relevant factually position regarding any pre-existing disease from which the insured was suffering and the treatment thereof, if any, received from any hospital etc., has been the subject matter of number of decisions by the Hon’ble National Commission as also by the Hon’ble Supreme Court of India. In nutshell, the settled position is that it is the duty of the insured to disclose the above mentioned information to the insurance company at the time of buying the insurance policy and, if the same was not disclosed by the insured, the insurance company was well within their rights to repudiate the claim. However, the insured was under no obligation whatsoever to foresee, assess and apprehend the probable and future complications, which might or could suddenly arise from the earlier disorder. In this regard, the Hon’ble Supreme Court in their latest judgment in case Civil Appeal No.8386 of 2015 titled as “Manmohan Nanda Vs. United India Assurance Co. Ltd. & Anr.” decided on 06.12.2021, has held the object of buying a Medi-claim Policy is to seek indemnification in respect of a sudden illness or sickness which is not expected or imminent and that may occur overseas, “If the insured suffers a sudden sickness or ailment, which is not expressly excluded under the Policy, a duty is cast upon the insurer to indemnify the appellant for the expenses incurred there under”. In this regard, recently Honble State Consumer Disputes Redressal Commission, Punjab at Chandigarh in First Appeal No.482 of 2019, decided on 10.01.2022 in case titled as Bajaj Allianz General India Insurance Company Versus Kewal Singh Kainth also held so.
10. Moreover, it is not disputed that the complainant has been purchasing the health insurance policies i.e. Family Health Optima Insurance Plan from Apollo Munich valid for the period 05.03.2014 to 05.03.2015 and thereafter, said policy was renewed continuously from time to time without any break and lastly, it was ported in the Opposite Party company valid for the period 5.03.2020 to 04.3.2021 for Rs.5 lakhs. As per the said policy document placed by the Opposite Parties itself Ex.OP1,2/2 it is clearly mentioned that the continuity benefits are applicable to all the four members including the complainant in the policy in question. Furthermore, in the policy itself, it is also clearly mentioned that 30 days waiting period is waived, Ist year exclusions not applicable, first two year exclusion waived and Pre existing disease is covered. The Opposite Parties themselves also placed on record the Field Visit Report of Dr.Punit Bansal Ex.OP1,2/7 which is more important to mention here. In the said report, the Visiting Doctor Punil Bansal has specifically mentioned in column No.7 under the Head FVO’s Observation/ Suggestions: PED if any, Source of Verification of PED: No PED. Which means the insured was no Pre Existing Disease. On the other hand, the Opposite Parties has repudiated the claim of the complainant on the ground that the insured was having pre existing disease and this specific report of the Visiting Doctor is true and correct and goes against the version of the Opposite Parties and hence we are of the view that the Opposite Parties are blowing hot and cold in the same breath.
11. In such a situation the repudiation made by the Opposite Party -Insurance Company regarding remaining genuine claim of the complainant have been made without application of mind. It is usual with the insurance company to show all types of green pasters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
12. The complainant in this complaint has prayed for reimbursement of the bill amounting to Rs.1 lakhs, but the copies of final bill invoices Ex.C5 shows that after providing the discount of Rs.7,000/-, the treating hospital charged Rs.88,000/-, so the complainant is entitled to claim the paid up amount of Rs.88,000/-.
13. In view of the above discussion, we hold that the Opposite Party -Insurance Company have wrongly and illegally rejected the claim of the complainant. Resultantly, the instant complaint is allowed and the Opposite Party-Insurance Company is directed to make the hospital bills amounting to Rs.88,000/- (Rupees Eighty eight thousands only) to the complainant alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 23.04.2021 till its actual realization. Opposite Parties-Insurance Company is are also directed to pay the lump sum compensation to the complainant to the tune of Rs.10,000/- (Rupees ten thousands only) on account of harassment, mental tension and litigation expenses. Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.
Announced in Open Commission.
Dated:11.05.2021.
