Complaint No: 218 of 2022.
Date of Institution: 21.10.2022.
Date of order: 10.01.2024.
Neelam Saini wife of Suresh Kumar resident of Village Pakho Chak, Tehsil and District Gurdaspur.
….........Complainant.
VERSUS
1. Star Health and Allied Insurance Co. Ltd., Sri Bala Ji Complex 15, Whites Road Chennai – 600034, through its Authorized Managing Director / Authorized Representative.
2. Star Health and Allied Insurance Co. Ltd., 2nd Floor, Khajuria Complex, Opposite Hotel Venice, Dhangu Road, Pathankot, through its Manager. Pin Code – 145001.
….Opposite parties.
Complaint Under Section 35 of Consumer Protection Act, 2019.
Present: For the Complainant: Sh.Gagandeep Saini, Advocate.
For the Opposite Parties: Sh.Sandeep Ohri, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Neelam Saini, Complainant (here-in-after referred to as complainant) has filed this complaint under section 35 of the Consumer Protection Act, 2019 (here-in-after referred to as 'Act') against Star Health & Allied Ins. Co. Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant alongwith her husband purchased one policy "Family Health Optima" Insurance Plan bearing Policy No.P211212/01/2023/001236 from the opposite parties. The complainant got this policy after assurance of the opposite parties. Thus, she falls under the definition of consumer under the opposite parties. The period of the policy is 19.06.2022 to 18.06.2023 and the complainant and her husband are covered for a sum insured of Rs.3,00,000/- against the said policy. It was a continuous policy. The complainant paid the premium of Rs.7,700/- to the opposite parties. It is pleaded that the complainant was pregnant and she was got admitted in Dr. Rama Sofat Hospital, 435 College Road, Ludhiana on dated 11.06.2022 for the purpose of delivery and the complainant gave birth to twins (boy and girl) at 4.00 P.M. and after about one hour, the B.P. of the complainant started fluctuating and the doctor of said Hospital referred the complainant to the higher Center / Hospital i.e. Dayanand Medical College and Hospital Managing Society, Ludhiana. It is further pleaded that the complainant got treatment from Dayanand Medical College and Hospital Managing Society for seeking B.P treatment where the complainant remained admitted from 21.06.2022 to 17.07.2022 and an amount of Rs.4,80,000/- were incurred on B.P treatment of the complainant as well as on the medicines. It is further pleaded that timely intimation has been given to the opposite parties regarding admission of the complainant in the said Hospital under policy No.P/211212/01/2023/001236 and the complainant applied for cashless medical treatment with the opposite parties. The claim has been duly lodged vide Claim No.CIR/2023/211212/0358062 on dated 24.06.2022 with the opposite parties. The complainant fulfilled all the formalities as and when demanded and asked by the opposite parties. It is further pleaded that to the utter surprise of complainant, the opposite parties rejected the cashless treatment of the complainant as per letter dated 24.06.2022 by assigning vague reason for rejection of cashless treatment of the complainant. It is further pleaded that the opposite parties by not making payment of amount on baseless observations are trying to back out from its pious obligation of making payment of amount spent by the insured/policy holder on her treatment with mala-fide intention and ulterior motive without any reason or rhyme. This decision of the opposite parties is liable to be set aside and the complainant is entitled to receive amount spent on her treatment as per terms and conditions of the Insurance Policy. Due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. So, there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to pay Rs.3,00,000/- spent on her treatment as mentioned in Claim No. CIR/2013/211212/0358062 alongwith interest @ 18% per annum from the date of discharge of the complainant from the Hospital, till its realization and the opposite parties may also be burdened with compensatory costs to the tune of Rs.50,000/- on account harassment, mental pain and deficiency in service alongwith Rs.20,000/- as litigation expenses to the complainant, in the interest of justice.
3. Upon notice, the opposite parties appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complainant has no cause of action to file the present complaint against the answering opposite parties No. 1 & 2 and the complainant has no locus standi to file the present complaint against the opposite parties. The insurance is a contract between the two parties. Both the parties bind with the policy and its terms and conditions. It is pleaded that the contract of insurance is based upon utmost good faith and the insured breached the said good faith and concealed the material facts regarding health at the time of getting policy and as such the complaint is liable to be dismissed. It is further pleaded that there is no deficiency in service on the part of the Insurance Company. The terms and conditions of the Insurance Policy were explained to the complainant at the time of receipt of proposal and the same was served to the complainant along with the Policy Schedule.
Policy details:-
The insured availed Family Health Optima Insurance Plan vide policy No. P/211212/01/2023/001236 for the period of 19.06.2022 to 18.06.2023 covering Mr. Suresh Kumar-self and Mrs. Neelam Saini for the sum insured of Rs.3,00,000/- Insured was earlier covered with Universal Sompo General Insurance Co. Ltd for the period of 2019-2020 to 2020-21. It is further pleaded that the terms and conditions of the Policy were explained to the complainant at the time of receipt of proposal and the same was served to the complainant along with the Policy Schedule. The insured preferred claims in the 1 year policy with Star Health and 3 under portability.
Facts of the Case:-
- Claim No. CIR/2023/211212/0358062
- Name of the Hospital:- Dayanand Medical College and Hospital
- Period of Hospitalization:- 21.06.2022
- Diagnosis (As Per D/S):- Shock
- Medical/Surgical Management:- Medical Management
- Pre Auth / Reimbursement:- Cashless only
- Claimed Amount (Claim Form):- Insured did not come for reimbursement
- Claimed amount in complaint copy:- Rs.300,000/-
It is further pleaded that grounds mentioned in cashless rejection letter dated 24.06.2022. The Insured patient Mrs. Neelam Saini was admitted at Dayanand Medical College & Hospital on dated 21.06.2022 for the treatment of Atonic uterus with postpartum hemorrhage and raised pre authorization request for cashless treatment. On scrutiny of the medical documents it was observed that:-
- The patient conceived after being treated for infertility via IVF technique.
- LSCS was done at hospital elsewhere, where in the operative patient developed atomic PPH. Hence, emergency hysterectomy was done. This was followed by sepsis, shock, ΑΚΙ hem peritoneum etc.
- The patient was referred higher center for cesarean hysterectomy and intra operative complication there of
Since, the complication and hospitalization is related to pregnancy and related condition Hence, claim has been rejected vide letter dated 24.06.2022 and same got communicated to insured.
Policy condition for claim rejection:-
As per exclusion no.18:- The Company shall not be liable to make any payments under this policy in respect of any expenses what so ever incurred by the insured person in connection with or in respect of Medical treatment expenses traceable to childbirth (including complicated deliveries and caesarean sections incurred during hospitalization) except ectopic pregnancy. It is further pleaded that it has been held by Hon'ble Supreme Court in the matter of United India Insurance Company Ltd. Vs. Harchand Rai Chandan Lal (2004) 8 SCC 644) as under:-
"It is settled law that terms of the policy shall govern the contract between the parties, they have to abide by the definition given therein and all those expressions appearing in the policy should be interpreted with reference to the terms of policy and not with reference to the definition given in other laws. It is a matter of contract and in terms of the contract, the relation of the parties shall abide and it is presumed that when the parties have entered into a contract of insurance with their eyes wide open, they cannot rely on definition given in other enactment.
On merits, the opposite parties have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.
4. Learned counsel for the complainant has tendered into evidence affidavit of Neelam Saini, (Complainant) as Ex.CW-1/A alongwith other documents as Ex.C-1 to Ex.C-6.
5. Learned counsel for the opposite parties has tendered into evidence affidavit of Sh. Sumit Kumar Sharma, (Senior Manager, Star Health & Allied Ins. Co. Ltd., New Delhi) as Ex.OPW-1/A alongwith other documents as Ex.OP-1 to Ex.OP-10.
6. Written arguments not filed by both the parties.
7. Counsel for the complainant has argued that complainant has purchased a health policy form the opposite parties and the complainant was pregnant and was admitted in Dr.Rama Sofat Hospital, 435 College Road, Ludhiana on 11.06.2022 and gave birth to twins i.e boy and girl at 4.00 P.M. and one hour after B.P. of the complainant started fluctuating and the complainant was referred to D.M.C. Ludhiana where she remained admitted from 21.06.2022 to 17.07.2022 and had spent an amount of Rs.4,80,000/-. On claim being lodged the same was repudiated by the opposite parties vide their letter dated 24.06.2022 which amounts to deficiency in service on the part of the opposite parties. Counsel for the complainant has further argued that the claim has been repudiated on the basis of terms and conditions mentioned in the policy which were never supplied to the complainant in respect of her claim. "In support of their contentions the appellants have relied upon the judgments of the Hon'ble National Commission titled "New India Assurance Company Ltd. Vs. Rekha Malhotra", 2016 (4) CPR 455 on the ground that claim was preferred within a period of two years and it was squarely covered under the exclusion clause so it was not liable to be paid by the Ins. Co. and also as per the judgment of Hon'ble Supreme Court in case "Export Credit Guarantee Corp. of India Ltd. Versus M/s Garg Sons International" as the terms of the contract as it may affect the interests of the parties adversely. It was prayed that the impugned order being unjust and arbitrary be set-aside.
8. Counsel for the opposite parties has argued that issuance of policy of insurance is admitted. However, since the complications and hospitalization is related to pregnancy and related condition hence the claim has been rejected vide letter dated 24.06.2022 by relying upon exclusion clause No.18 and as such there is no deficiency in service on the part of the opposite parties and complaint is liable to be dismissed. Counsel for the opposite parties have also relied upon judgment of Hon'ble Supreme Court of India reported in (2004) 8 SCC 644.
9. We have heard the Ld. counsels for the parties and gone through the record.
10. To prove her case complainant has placed on record her duly sworn affidavit Ex.CW-1/A, copy of policy of insurance Ex.C1, copy of history regarding treatment Ex.C2, bill Ex.C3, copy of rejection of authorization for cashless treatment Ex.C4, copy of legal notice Ex.C5 and postal receipt Ex.C6 whereas opposite parties have placed on record affidavit of Sumit Kumar Sharma Senior Manager Ex.OPW-1/A, copy of policy document Ex.OP-1, copy of probability form Ex.OP-2, copy of policy document Ex.OP-3, copy of terms and conditions Ex.OP-4 consisting 1 to 12 pages, copy of claim form for cashless Ex.OP-5, copy of prescription slip Ex.OP-6, copy of admission notes Ex.OP-7, copy of CT report Ex.OP-8, copy of query on authorization for cashless treatment Ex.OP-9 and copy of rejection of authorization for cashless treatment Ex.OP-10.
11. It is admitted fact that complainant had purchased Family Health Optima Insurance Plan from the opposite parties valid from 19.06.2022 to 18.06.2023 with sum assured of Rs.3,00,000/-. It is further admitted fact that during the continuation of the policy complainant suffered complications during delivery of the children on 11.06.2022. It is further admitted fact that complainant remained admitted for treatment from 21.06.2022 to 17.07.2022 and had spent Rs.4,80,000/-. It is further admitted fact that claim for cashless treatment was rejected vide letter dated 24.06.2022. The only disputed issue before this Commission for adjudication is whether the opposite parties were justified in repudiating the claim by relying upon the terms and conditions of the policy.
12. The main dispute between the parties is that the complications and hospitalization of the complainant was related to pregnancy and as per exclusion clause No.18 the company is not liable to make payment for the medical treatment expenses related to child birth, caesarean sections except ectopic pregnancy. We have gone through the policy document Ex.C1 which shows that only policy document comprising of two pages was supplied to the complainant and the terms and conditions and exclusion clause is a separate document Ex.OP-4 comprising of number of pages and it is nowhere proved on record that said policy document and conditions and exclusion clause Ex.OP-4 was part of the policy and the said terms and conditions and exclusion clause No.18 was explained to the complainant. As such we are we are of the view that in the absence of evidence regarding terms and conditions being part of the policy document and complainant having been explained about the same, rejection of the claim by the opposite parties is totally unjustified. Moreover, we are of the view that as of today most of deliveries are taking place through caesarean sections due to change of life style of the ladies in India especially in urban areas as such the insertion of exclusion clause No.18 for excluding deliveries and caesarean sections itself amounts to business malpractice. Moreover, we are of the view that no lady shall happily or out of her free will consent for caesarean and caesarean sections takes place only due to the emergency during the deliveries to save the child and the mother whose life must be in danger as per the opinion of the treating doctor. As such we are of the view that repudiation of the claim by the opposite parties is totally unjustified by relying upon exclusion clause No.18. As such we have no hesitation in holding that repudiation of the claim by the opposite parties amounts to deficiency in service.
13. From the aforesaid discussion, it transpires that the genuine claim of the complainant has been repudiated by the opposite parties without any reasonable excuse. It is usual with the insurance companies to show green pastures to the consumers when they are to sell their policies. But however when it comes to the payment for claim, they invent all sort of excuses to deny the claim. Reliance in this connection can be had on 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.
14. Accordingly, by relying upon facts, evidence and documents on record and after going through the case laws referred above we are of the view that repudiation of the claim by the opposite parties on the basis of exclusion clause is unjustified and amounts to deficiency in service and business malpractice.
15. Accordingly, present complaint is allowed and opposite parties are directed to pay sum assured i.e. Rs.3,00,000/- to the complainant alongwith interest @ 9% P.A. from the date of filing of the complaint till realization. Opposite parties are further directed to pay Rs.5,000/- as compensation on account of mental tension, harassment and cost of litigation. Entire exercise shall be completed within 30 days from the date of receipt of copy of this order.
16. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Jan. 10, 2024 Member.
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