Order by:

Smt.Aparana Kundi, Member

1.       The complainant  has filed the instant complaint under section 35 of Consumer Protection Act, 2019 on the allegations that the complainant took the medi claim insurance policy namely Star Comprehensive Insurance policy Revised 2019 bearing No.P/211222/01/2021/000909 which was valid from 29.07.2020 to 28.07.2021. After the lapse of said policy the complainant was again insured by the opposite party for period 29.07.2021 to 28.07.2022 after taking the premium of Rs.31,164/-, even after rejecting the claim raised by complainant which is the subject matter this complaint, by making false and frivolous grounds. Under the policy in question the complainant was insured for the amount of Rs. 15,00,000/- qua the medical expenses, if any, incurred during the policy period by the complainant for any of his treatment. The complainant was supplied with the only policy cover of the said policy and no terms and conditions were supplied to him despite many requests made to the opposite parties. During the policy period in the month of June 2021, when the complainant was in Zirakpur Mohali due to his business work and was stayed in the house of one of his relative then on 25.06.2021 he suddenly felt suffocation and uncomfort to take breath then said relative took the complainant at Mehar Super Specialty Hospital, Zirakpur Mohali where the doctors of said hospital diagnosed that the complainant has pain due to Epigastric Reason and is also suffering from Hypertension from the last 6-7 years and they also done ECG upon complainant which was normal. Even after giving the medicine and injection by the doctors of said hospital, the complainant faced the same problem again and due to unsatisfied from the treatment of said hospital, he came back to Moga by leaving the said hospital (LAMA) and after paying the charges of said hospital to the tune of Rs.9,000/-. Thereafter the complainant got admitted in Aastha Hospital, Dutt Road Moga where the doctors of the said hospital also gave treatment to the complainant and also adopted the due procedure to cure the problem of complainant, but ultimately when the problem was not cured even after remained admitted in the said hospital from 25.06.2021 to 27.06.2021 then the doctors of said hospital referred the complainant to some higher hospital after taking their charges of medicines and of to Rs.34,000/-. Thereafter as referred by the doctors of Aastha Hospital Moga, the family members of complainant admitted him in the Dayanand Medical College & Hospital, Ludhiana on 27.06.2021 where the doctors of said hospital diagnosed the complainant suffering from Acute Necrotising Pancreatitis and gave him treatment for the said problem and discharged him on 03.07.2021in a satisfactory condition. During the admission of complainant in DMC & Hospital, Ludhiana the doctors of said hospital applied for cashless treatment as per the policy of complainant and the same was registered vide claim No.CIR/2022/211222/2798758, but the opposite parties approved only Rs.20,000/- in a pick and choose manner and rejected the remaining cashless treatment. Moreover, the opposite parties did not pay the said approved amount of Rs.20,000/- rather vide letter dated 03.07.2021 rejected the total cashless claim approval with a reason that the complainant is suffering from chronic alcoholic pancreatitis and the same is come under the exclusion clause 12 of the terms and conditions of the insurance policy in question, which is totally a vague ground made by the opposite parties to reject the genuine claim of the complainant because as revealed by the agent of the opposite parties at the time of giving the insurance policy in question every type of treatment was covered under the policy in question. Moreover, the complainant is not a chronic alcoholic and takes moderate quantity of liquor occasionally. The complainant spent Rs.1,02,000/- on his diet, medical expenses and treatment at DMC & Hospital, Ludhiana from his own pocket. Thereafter on 28.08.2021 the complainant lodged the claim with the opposite parties along with all the required documents. Instead of giving the genuine claim of the complainant, the opposite parties repudiated the claim vide letter dated 04.01.2022 by making a ground that as per clause 12 of the terms and conditions the claim is not covered under the policy, however no policy terms and conditions have been supplied to the complainant till today and moreover policy has already been renewed for the further period from 2021-22 which proves that the insurance company i.e. opposite parties very well know that they have rejected the claim of complainant only on false grounds, hence this complaint. Vide instant complaint, the complainant has sought the following reliefs:-

a)       Opposite Parties may be directed to Rs.1,45,000/- as medical expenses, diet charges and travel charges paid by the complainant regarding his treatment alongwith interest @ 12 % p.a.

b)      To pay an amount of Rs.2,00,000/- as compensation on account of mental tension, harassment and agony suffered by the complainant.

c)       To pay an amount of Rs.22,000/- as litigation expenses.

d)      And any other relief which this Commission may deem fit and proper be granted to the complainant in the interest of justice and equity.

2.       Opposite parties appeared through counsel and contested the complaint by filing written version taking preliminary objections therein inter alia that the present complaint is filed without any cause of action, as the claim of the complainant was denied by the answering Opposite Party on the ground that the expenses incurred for the treatment are not covered by the terms and conditions of the insurance policy in question. It is established from the medical/treatment records as filed by the insured and as received from the treating hospital that the insured was admitted in the hospital for the treatment of Chronic Alcoholic pancreatitis and expenses for this treatment are not admissible in accordance with the Excl. 12 of the policy, thus, the claim was found not payable. Moreover, the insured/complainant by not disclosing the fact that he used to consume alcohol, before procuring the policy 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. The present application pertains to insurance claim under Star Comprehensive Policy bearing no. P/211222/01/2021/000909 valid from 29.07.2020 to 28.07.2021 covering the complainant for a sum of Rs.15,00,000/-. However, it is submitted that the aforesaid insurance policy was issued to the insured by the answering Opposite Party subject to the terms and conditions of the insurance policy. The said terms and conditions were handed over and supplied to the insured at the time of the contract. Moreover the terms and conditions of the policy were explained to the complainant at the time of proposing policy and the same were served to the complainant along with policy schedule. Further alleges that the Policy is contractual in nature and the claims arising therein are subject to the terms and conditions forming part of the policy. The complainant has accepted the Policy agreeing and being fully aware of such terms and conditions and executed the Proposal Form. The terms and conditions were served to the complainant at the time of issuance of the policy and it is to state that the complainant not raised any dispute with respect to policy terms and conditions in the Free look period, which indicate the insured is accepting the terms and condition and binding on him. Further alleges that a claim for cashless treatment was received for hospitalization of insured and upon scrutiny, of the medical documents as provided by the insured, it was found by the answering insurance co., that the insured had admitted for the treatment of ACUTE NECROTIZING PANCREATITIS/HTN and raised a request for pre authorization for cashless treatment and an amount of Rs.20,000/- was initially approved on dated 28.06.2021. Later the pre authorization was withdrawn vide letter dated 03.07.2021 stating that the following details came into light: "The insured patient has been admitted for the treatment of chronic alcoholic/pancreatitis. Expenses for this treatment are not admissible in accordance with the Excl. 12 of the policy". Further the insured had subsequently submitted claim records towards reimbursement of medical expenses of hospitalization for the treatment of ACUTE NECTROTIZING PANCREATITIS for Rs.1,28,708/- and on perusal of the claim records it is observed that

a.       As per the discharge summary dated 27.06.2021, the insured was diagnosed with Acute Necrotising Pancreatitis, chronic alcoholic, seizure disorder and HTN.

b.       That apart from 2 main cause ALCOHOL CONSUMPTION and GALL STONE, Pancreatitis may also result from

          i. Injury to the pancreas

ii. Medication side effects

iii. High cholesterol

iv. High calcium levels in the blood

v. Autoimmune diseases, such as lupus

vi. Pancreatic tumor

          No other cause is mentioned in any of the medical document other than consumption of alcohol. Further alleges that the insured has undergone treatment for the above said disease which is due to abuse of alcohol and claim was repudiated under the ambit of specific exclusion clause no.12 as mentioned under the policy terms and conditions. Moreover as per policy terms and conditions the company is not liable to make any payment on account of any fact which was not disclosed at the time of purchasing the policy. The policy clearly states that:

"Exclusion-Code Excl 12 of the policy:"

The company is not liable to make any payment in respect of expenses incurred at the hospital for the treatment for alcoholism, drug or substance abuse or any addictive condition and consequences thereof.

          As such, in terms of the said provision of the insurance policy, the insurance company have repudiated the claim of applicant in a proper manner, after due application of mind vide letter dated 04.01.2022. Opposite Parties put reliance on citation of Hon'ble State Consumer Disputes Redressal Commission, Chhattisgarh in the matter of the Star Health Allied Insurance Co. Ltd Vs. Sanjay Goyal 2019(3)CPJ3, Hon,ble Supreme Court of India in its latest judgment in the matter of Satwant kaur sandhu vs New India Assurance Co. Ltd 2009(4)RCR Civil 692, Hon'ble National Consumer Disputes Redressal Commission in its latest judgment in the matter of LIC Vs Kuldeep Singh 03.06.2015. Another Reference may also be made from a National Commission authority i.e. Dr Manmohan Singh vs United India Ins. 2015(35)RCR Civil 182 and etc. In order to prove its case, the opposite parties will have to lead evidence and examine its witnesses and expert evidences. The Complainant has got no cause of action and locus-standi to file the present complaint. The instant complaint is false, malicious, incorrect and with malafide intent and is nothing but an abuse of the process of law and is an attempt to waste the precious time of this Commission, as the same has been filed by the complainant just to avail undue advantage. The instant complaint is neither maintainable in law nor on facts and the same is liable to be dismissed in limine. This Hon'ble Forum has got no jurisdiction to try and decide the present complaint. No deficient services have been rendered by the answering opposite parties as alleged by the complainant. The claim in question was duly entertain, inquired into and after due application of mind the alleged claim has been repudiated vide repudiation letter dated 04.01.2022 on the basis of terms and conditions of insurance policy. On merits, remaining facts mentioned in the complaint are denied and a prayer for dismissal of the complaint is made.

3.       Complainant has filed replication to the written version of the Opposite Parties stating that firstly as admitted by the opposite parties they approved a meager amount Rs.20,000/- for pre authorization cashless treatment and later instead of approving treatment amount spent by complainant on his treatment even withdrawn the said approved amount of Rs.20,000/- on false and frivolous grounds. Even after rejecting the claim raised by complainant which is the subject matter of this complaint, the opposite parties again insured the complainant for the next year by renewing insurance policy for the further period from 29.07.2021 to 28.07.2022 which itself shows that the Opposite Parties  only make false grounds to repudiate the genuine claim of the complainant. Other remaining objections raised by the opposite parties are denied by the complainant.

4.       In order to prove his case, the complainant tendered in evidence his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C11.

5.       To rebut the evidence of the complainant, opposite parties tendered in evidence affidavit of Sh.Sumit Kumar Sharma, Senior Manager, Star Health & Allied Insurance Co. Ltd. Ex.OP1,2/A alongwith copies of documents Ex.OP1,2/1 to Ex.OP1,2/16.

6.       The case of the complainant is that complainant was insured with opposite parties for period 29.07.2021 to 28.07.2022. Under the policy in question the complainant was insured for the amount of Rs.15,00,000/- qua the medical expenses. On 25.06.2021 he suddenly felt suffocation and uncomfort to take breath then, he was brought to Mehar Super Specialty Hospital, Zirakpur Mohali where the doctors of said hospital diagnosed that the complainant has pain due to Epigastric Reason and is also suffering from Hypertension from the last 6-7 years and they also done ECG upon complainant which was normal. Even after giving the medicine and injection by the doctors of said hospital, the complainant was not cured. Thereafter, he got admitted in Aastha Hospital, Dutt Road Moga where the doctors of the said hospital also gave treatment to the complainant, but when the problem was not cured, then the complainant got admitted in Dayanand Medical College & Hospital, Ludhiana on 27.06.2021 where the doctors of said hospital diagnosed the complainant suffering from Acute Necrotising Pancreatitis and gave him treatment for the said problem and discharged him on 03.07.2021in a satisfactory condition. During the admission of complainant in DMC & Hospital, Ludhiana the doctors of said hospital applied for cashless treatment as per the policy of complainant and the same was registered, but the opposite parties approved only Rs.20,000/- and rejected the remaining cashless treatment. The complainant spent Rs.1,02,000/- on his diet, medical expenses and treatment at DMC & Hospital, Ludhiana from his own pocket. Thereafter on 28.08.2021 the complainant lodged the claim with the opposite parties along with all the required documents. Instead of giving the genuine claim of the complainant, the opposite parties repudiated the claim vide letter dated 04.01.2022.

7.       The first plea raised by Opposite Parties is that claim for cashless treatment was received for hospitalization of insured and upon scrutiny, of the medical documents as provided by the insured, it was found by the Opposite Party Company that the insured had admitted for the treatment of ACUTE NECROTIZING PANCREATITIS/HTN and raised a request for pre authorization for cashless treatment and an amount of Rs.20,000/- was initially approved on dated 28.06.2021. Later the pre authorization was withdrawn vide letter dated 03.07.2021 on the ground that "The insured patient has been admitted for the treatment of chronic alcoholic/pancreatitis. Expenses for this treatment are not admissible in accordance with the Excl. 12 of the policy", thus, the claim was found not payable. Further contended that the insured/complainant by not disclosing the fact that he used to consume alcohol, before procuring the policy has violated the policy document/contract and had obtained the policy through concealment of material facts. We have perused the copies of  medical record placed by Opposite Parties of the treating hospital, there is no affidavit of doctor of the treating hospital as well as affidavit of investigator to establish this fact placed on the record. In the absence of any affidavit of investigator and the affidavit of treating doctor of the hospital, we do not reply upon these documents, as pressed into by the Opposite Parties. Moreover, if the life assured was suffering from Chronic Alcoholic Pancreatitis prior to issuance of the policy, in question, the same must not have escaped the notice of the empanelled doctors of the Insurance Company, because the complainant has been purchasing the policies from the opposite parties from the last about four years. However, no such investigation record has been produced by the opposite parties. In case Bajaj Allianz Life Insurance Co. Ltd. & Ors. Vs. Raj Kumar III (2014) CPJ 221 (NC), it was held by the Hon’ble National Commission that “usually, the authorized doctor of the Insurance Company examines the insured to assess the fitness and after complete satisfaction, the policy is issued. It was held that the Insurance Company wrongly repudiated the claim of the complainant.”

8.       Furthermore, as per the policy document, at the time of obtaining the policy, the life assured has duly mentioned his age as 22.06.1968 (meaning thereby which is more than 45 years, so it was the bounden duty of the Opposite Parties-Insurance Company to get the life assured medically examined before issuing the policy in his name who was above 45 years of age. In support of his contention Ld.counsel for the complainant placed reliance upon I.R.D.A.I Rules and Instructions with regard to thorough medical examination if the insured is more than 45 years which is reproduced as under:-

“As per instructions issued by the Insurance Regulatory and Development Authority of India (IRDAI), it was bounded duty of the insurer to put insured to thorough medical examination in case Mediclaim insured was more than 45 years and if insurance company failed to do so then insurance company has no right to decline the insurance claim on account of non disclosure of the facts of pre existing disease when the policy was taken. The above observations is supported by law cited in SBI General Insurance Company Limited Vs. Balwinder Singh Jolly” 2016(4) CLT 372 of the Hon’ble State Commission, Chandigarh.”

However, the Opposite Parties-Insurance Company has not placed on record any evidence that before issuing the policy they ever got medically examined the insured. So the abovesaid law squarely covers the case of the complainant that it was the duty of the insurer to get medically examined while issuing the policy and once the policy was issued the insurer cannot take the plea of pre-existing disease of the insured.

9.       It also needs to be mentioned that Section 19 of the General Insurance Business (Nationalization) Act, 1972 states that it shall be the duty of every Insurance Company to carry on general insurance business so as to develop it to the best advantage of the community. The denial of medical expenses reimbursement is utterly arbitrary on the ground that disease in question was pre-existing disease. It is mere an excuse to escape liability and is not bona fide intention of the insurance company. Fairness and non-arbitrariness are considered as two immutable pillars supporting the equity principle, an unshakable threshold of State and public behavior. Any policy in the realm of insurance company should be informed, fair and non-arbitrary. When the insurance policy has exclusions/conditions to repudiate the claim or limit the liability, the same must be specifically brought to the notice of the insured and are required to be got signed to show that such exclusions and conditions have been brought to his/her notice.  Recently, our own Hon’ble State Consumer Disputes Redressal Commission, Chandigarh in  First Appeal No. 50 of 2019 titled as Bajaj Alliance General Vs. Arjan Singh decided on 04.03.2021 also held so.

10.     The need for interpreting a contract always arises in two situations, (i) when a gap is needed to be filled in the contract and (ii) an ambiguity is needed to be resolved in the contract, then to find out correct intention of the contract, spirit behind it is required to be considered. Normally, the insurance policy is a contract of adhesion in which other party is left with hardly any bargaining power as compared to the insurer. Insurance contracts are standard form contracts and are drafted by the insurance company and as such, insurance company is at higher footing than the insured. The benefit of such clause, as exclusion clause, would go to the insured unless the same is explained in clear terms by the insurer. In such circumstances, the tribunal would be more oriented towards the interpretation which goes against the party who has inserted/drafted the disputed clause in the agreement/contract. The adjudicating authority is required to look into whether the intention of the party is to exclude or limit liability has been appropriately explained to the other party or not. This Commission while interpreting insurance agreement is to honour the intention of the parties, who have signed the agreement. Even if the agreement had general exclusion/condition for misrepresentation still fraudulent misrepresentation and non-disclosure may not be there. The innocent and negligent misrepresentations are to be ignored.  The insurance companies are in haste to charge the premium, but when the time to pay the insurance claim comes, they generally take up one excuse or the other to avoid their liability.

11.     The next plea taken by the opposite parties is that insurance policy was issued to the insured by the answering Opposite Party subject to the terms and conditions of the insurance policy. The said terms and conditions were handed over and supplied to the insured at the time of the contract. 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.”

12.     In such a situation the repudiation made by Opposite Parties-Insurance Company regarding 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 seems 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.

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.

14.     In view of the aforesaid facts and circumstances of the case,  we partly allow the complaint of the Complainant and direct Opposite Parties-Insurance Company to pay Rs.1,19,474/- (Rupees One Lac Nineteen Thousand Four Hundred Seventy Four only) as refund of medical expenses only alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 04.03.2022 till its actual realization. The compliance of this order be made by the Opposite Parties within 60 days from the date of receipt of copy of this order, failing which the complainant shall be at liberty to get the order enforced through the indulgence of this District Consumer Commission.  Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Commission.