BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 260 of 2017
Date of Institution: 24.04.2017
Date of Decision: 24.11.2017
Mr.Gurinder Singh son of Sh.Harbans Singh, resident of care of Raja Ram & Sons, O/S Hall Gate, Amritsar.
Complainant
Versus
Star Health and Allied Insurance Company Limited, through its Chairman/ Managing Director/ Principal Officer, through its Branch Office at District Shopping Complex, Ranjit Avenue, Amritsar through its Branch Manager.
Opposite Party
Complaint under section 12 & 13 of the Consumer Protection Act, 1986 (as amended upto date).
Present: For the Complainant: Sh.Deepinder Singh, Advocate
For the Opposite Party: Sh.S.S.Salaria, Advocate
Coram
Sh.Anoop Sharma, Presiding Member
Ms.Rachna Arora, Member.
Order dictated by:
Sh.Anoop Sharma, Presiding Member
1. The complainant has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that the complainant got health benefit mediclaim insurance for himself and family from Opposite Party covering the risk period 10.01.2017 to 09.01.2018 and hence the complainant is the consumer as provided under the Act ad is competent to invoke the jurisdiction of this Forum. The complainant unfortunately fell ill and was to be hospitalized at Nayyar Hospital, Amritsar from 11.01.2017 till 16.01.2017, the discharge summary is annexed. The treatment cost of the said hospitalization came to Rs.5 lacs and the Opposite Party was immediately informed about the said hospitalization and the treatment to be taken thereof as the said policy was issued on cashless basis and is worth mentioning over here that the sum insured for the medical benefit is for Rs.3 lacs. But the Opposite Party instead of making the said payment has repudiated the genuine claim of the complainant on the frivolous grounds vide their repudiation letter dated 16.3.2017 that the complainant was having pre existing disease which infact was totally wrong and against the true facts. The aforesaid acts of the Opposite Party in repudiataing the genuine claim of the complainant on frivolous grounds is an act of deficiency in services, mal practices, unfair trade practice and has caused lot of mental agony, harassment, inconvenience besides financial loss to the complainant for which the Opposite Party is liable to pay compensation. Vide instant complaint, the complainant has sought the following reliefs.
a) Opposite Party be directed to pay the amount of Rs.3 lacs alongwith interest @ 12% per annum from 16.3.2017 till realization.
b) Opposite Party be directed to pay the compensation of Rs.50,000/- to the complainant.
c) Opposite Party be directed to pay the adequate cost of the litigation.
d) Any other relief to which the complainant is entitled to under the law, equity, justice and fairplay be also awarded.
Hence, this complaint.
2. Upon notice, Opposite Party appeared and contested the complaint by filing written statement taking preliminary objections therein inter alia that the complainant has not come to the Forum with clean hands and suppressed the true and material facts from this Forum and as such, he is not entitled to any relief as claim. It is alleged that the complainant obtained the policy of Family Health Optima Insurance Policy from the Opposite Party covering the complainant himself, his wife Sukhwinder Kaur, Master Ishmeet Kaur dependent child as policy No.P/211111/01/2016/004719 from 29.12.2015 to 28.12.2016 and policy No.P/211111/01/2017/006829 from 10.1.2017 to 9.1.2018 (12 days break) w.e.f.15:30. The preamble of the policy clearly states the proposal, declaration and other documents, if any given by the proposer form the basis of the policy of insurance “subject to terms, conditions, exclusions and definitions contained herein or endorsed or otherwise expressed hereon, the company undertakes if the insured person shall contract any disease or suffer from any illness or sustain any bodily injury through accident and if such disease or injury shall require the insured person, upon the advice of the duly qualified physician/ Medical Specialist/ Medical Practitioner or duly qualified surgeon to incur hospitalisation expenses for medical / surgical treatment at any nursing home/ hospital in India as herein defined as an inpatient the company will pay to the insured person the amount in respect by or on behalf of the insured person up to the limits indicated.” The company’s liability in respect of all claims admitted during the period of insurance shall not exceed the sum insured per family mentioned in the schedule. The terms and conditions of the policy were explained to the complainant at the time of proposing policy and the same was served to the complainant alongwith the policy schedule. It is clearly mentioned that the insurance under the policy is subject to conditions, clauses, warranties, exclusion etc. During the second year policy, the insured was admitted in Nayyar Heart Institute and Super Speciality Hospital, Amritsar on 11.1.2017 for the treatment of CVA/CAD-DVD/ Inferior wall MI/LVDF vide claim No.CLI/2017/211111/0438926 and submitted pre authorisation request for cashless treatment and the same was denied on the ground that the claim falls during the break period. The insured was also requested to submit the claim records for reimbursement of claim and the same was communicated to the insured vide letter dated 12.1.2017. The insured has submitted the claim records for reimbursement of medical expenses. On scrutiny of the claim records, it is observed that as per the discharge summary, the insured was admitted on 10.01.2017 09:42 AM and discharged on 16.1.2017 04:56 PM and diagnosed as CVA CAD, AWMI. The consultation report dated 10.1.2017 of Dr.Kewal Krishan states that the insured patient has consulted the doctor at 09:00 AM which is during the break in policy period as the above policy is renewed only at 15:20 Hours on 10.1.2017. As per the condition No.9 of the said policy, the company is not liable to protect the insured person between the policy expiry dated and the date of payment of renewal premium and hence the claim is not payable and the same was rightly repudiated and the same was communicated to the insured vide letter dated 18.3.2017. On merits, the Opposite Party 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 with cost was made.
3. In his bid to prove the case, complainant tendered into evidence affidavit Ex.C-1 in support of the allegations made in the complaint and also produced copies of documents Ex.C2 to Ex.C8 and closed his evidence.
4. On the other hand, to rebut the evidence of the complainant, the Opposite Party tendered into evidence the affidavit of Sh.P.C.Tripathy, Zonal Manager Ex.OP1 alongwith copies of documents Ex.OP2 to Ex.OP22 and closed the evidence on behalf of the Opposite Party.
5. We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.
6. The complainant has submitted his affidavit Ex.C1 in which he has reiterated the facts as detailed in the complaint and contended that the complainant got health benefit mediclaim insurance for himself and family from Opposite Party covering the risk period 10.01.2017 to 09.01.2018 and hence the complainant is the consumer as provided under the Act ad is competent to invoke the jurisdiction of this Forum. The complainant unfortunately fell ill and was to be hospitalized at Nayyar Hospital, Amritsar from 11.01.2017 till 16.01.2017, the discharge summary is annexed. The treatment cost of the said hospitalization came to Rs.5 lacs and the Opposite Party was immediately informed about the said hospitalization and the treatment to be taken thereof as the said policy was issued on cashless basis and is worth mentioning over here that the sum insured for the medical benefit is for Rs.3 lacs. But the Opposite Party instead of making the said payment has repudiated the genuine claim of the complainant on the frivolous grounds vide their repudiation letter dated 16.3.2017 that the complainant was having pre existing disease which infact was totally wrong and against the true facts. It is further argued by the ld.counsel for the complainant that the Opposite Party has not produced on record the authorization of the competent authority in favour of the appearing authority before this Forum and in this regard, he has placed on record the ruling of Hon’ble Supreme Court of India as well as our own Hon’ble State Commission, Punjab, Chandigarh and hence there is deficiency in service on the part of the Opposite Party.
7. On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that the complainant obtained the policy of Family Health Optima Insurance Policy from the Opposite Party covering the complainant himself, his wife Sukhwinder Kaur, Master Ishmeet Kaur dependent child as policy No.P/211111/01/2016/004719 from 29.12.2015 to 28.12.2016 and policy No.P/211111/01/2017/006829 from 10.1.2017 to 9.1.2018 (12 days break) w.e.f.15:30. The preamble of the policy clearly states the proposal, declaration and other documents, if any given by the proposer form the basis of the policy of insurance “subject to terms, conditions, exclusions and definitions contained herein or endorsed or otherwise expressed hereon, the company undertakes if the insured person shall contract any disease or suffer from any illness or sustain any bodily injury through accident and if such disease or injury shall require the insured person, upon the advice of the duly qualified physician/ Medical Specialist/ Medical Practitioner or duly qualified surgeon to incur hospitalisation expenses for medical / surgical treatment at any nursing home/ hospital in India as herein defined as an inpatient the company will pay to the insured person the amount in respect by or on behalf of the insured person up to the limits indicated.” The company’s liability in respect of all claims admitted during the period of insurance shall not exceed the sum insured per family mentioned in the schedule. The terms and conditions of the policy were explained to the complainant at the time of proposing policy and the same was served to the complainant alongwith the policy schedule. It is clearly mentioned that the insurance under the policy is subject to conditions, clauses, warranties, exclusion etc. During the second year policy, the insured was admitted in Nayyar Heart Institute and Super Speciality Hospital, Amritsar on 11.1.2017 for the treatment of CVA/CAD-DVD/ Inferior wall MI/LVDF vide claim No.CLI/2017/211111/0438926 and submitted pre authorisation request for cashless treatment and the same was denied on the ground that the claim falls during the break period. The insured was also requested to submit the claim records for reimbursement of claim and the same was communicated to the insured vide letter dated 12.1.2017. The insured has submitted the claim records for reimbursement of medical expenses. On scrutiny of the claim records, it is observed that as per the discharge summary, the insured was admitted on 10.01.2017 09:42 AM and discharged on 16.1.2017 04:56 PM and diagnosed as CVA CAD, AWMI. The consultation report dated 10.1.2017 of Dr.Kewal Krishan states that the insured patient has consulted the doctor at 09:00 AM which is during the break in policy period as the above policy is renewed only at 15:20 Hours on 10.1.2017. As per the condition No.9 of the said policy, the company is not liable to protect the insured person between the policy expiry dated and the date of payment of renewal premium and hence the claim is not payable and the same was rightly repudiated and the same was communicated to the insured vide letter dated 18.3.2017 and hence there is no deficiency in service on the part of the Opposite Party.
8. Ld.counsel for the complainant has mainly contended that the written version filed on behalf of the Opposite Party has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party. He has relied upon the judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment, it was held that
“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”
Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the
“bear authority is not recognised under law and ultimately, it was held that the plaint was not instituted by an authorised person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”
Recently our own Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by an unauthorized person has no legal effect.
9. For the sake of arguments, if it is admitted that the written version filed by the Opposite Party is legal, on merits, also the main ground for the repudiation of the claim of the complainant is that during the second year policy, the insured was admitted in Nayyar Heart Institute and Super Speciality Hospital, Amritsar on 11.1.2017 for the treatment of CVA/CAD-DVD/ Inferior wall MI/LVDF vide claim No.CLI/2017/211111/0438926 and submitted pre authorisation request for cashless treatment and the same was denied on the ground that the claim falls during the break period. The insure was also requested to submit the claim records for reimbursement of claim records and the same was communicated to the insured vide letter dated 12.1.2017. the insured has submitted the claim records for reimbursement of medical expenses. On scrutiny of the claim records, it is observed that as per the discharge summary, the insured was admitted on 10.01.2017 09:42 AM and discharged on 16.1.2017 04:56 PM and diagnosed as CVA CAD, AWMI. The consultation report dated 10.1.2017 of Dr.Kewal Krishan states that the insured patient has consulted the doctor at 09:00 AM which is during the break in policy period as the above policy is renewed only at 15:20 Hours on 10.1.2017. As per the condition No.9 of the said policy, the company is not liable to protect the insured person between the policy expiry dated and the date of payment of renewal premium and hence the claim is not payable and the same was rightly repudiated, but the Opposite Party could not examine any medical practitioner/ doctor who has treated the complainant for such disease nor the Opposite Party has filed any affidavit of any doctor who has medically treated the complainant for the disease prior to taking of the policy. It has been held by the Hon'ble National Commission in case New India Assurance Co.Ltd & Anr Vs. Murari Lal Bhusri 2011(III) CPJ 198 (NC) that where the Insurance company failed to produce any evidence to show that respondent was aware of any pre-existing disease at the time when insurance policy was taken, opposite party was not justified in repudiating the claim of the complainant on the ground of pre-existing disease. It has been held by the Hon'ble Supreme Court of India in case P.Vankat Naidu Vs. Life Insurance Corporation of India & Anr 2011(3) CPC 350 that where no cogent evidence was produced by the respondent to prove that insured/deceased had concealed any fact about his illness or hospitalization, it was held that no material fact was suppressed by the deceased in this respect. It has been held by the Hon'ble State Commission of Punjab in case Life Insurance Corporation of India Vs. Miss Veenu Babbar and another 2000(1) CLT 619 that repudiation on the basis of history recorded in the hospital records is illegal and arbitrary and the same could not be treated as substantive material to base any decision. Same view has been taken by the Hon'ble National Commission in case Life Insurance Corporation of India & Ors. Vs. Kunari Devi IV(2008) CPJ 89 (NC) that where no document has been produced in support of allegation of suppression of disease at the time of taking policy or revival of policy, history recorded in hospital's bed ticket, not to be treated as evidence as doctor, recording history not examined, suppression of disease not proved, insurer was held liable under the policy. It has further been held by the Hon'ble National Commission in case Sahara India Life Insurance Co. Ltd. & Anr Vs. Hansaben Deeepak Kumar Pandya IV(2012) CPJ 13(NC) that where the opposite party insurance company has failed to produce on record any evidence to show that deceased insured ever consulted doctor for taking treatment of heart disease, the repudiation of the claim on the ground of suppression of material fact is totally illegal. It has been held by Hon’ble State Consumer Disputes Redressal Commission, Chandigarh in case titled as Ashwani Gupta & Ors. Vs. United India Insurance Company Limited 2009(1) CPC page 561 that where the claim of the complainant has been repudiated on the ground that the assured had pre-existing disease which was not disclosed- apparently, burden to prove lies upon the insurer- If assured was suffering from pre-existing disease why insurer had not checked it at the time when proposal form was accepted by its staff-Respondent has failed to fulfill this requirement before repudiating the claim and the appellant was held entitled to claim. Hence, the repudiation of the claim on this ground can not be denied. Ld.counsel for the Opposite Party was unable to convince before this Forum how the written version has been filed by authorised person on behalf of Opposite Party. No other point was argued.
- In view of the above discussion, we are of the opinion that the Opposite Party has wrongly repudiated the claim of the complainant. Consequently, we allow the complaint with costs and the Opposite Party is directed to pay the amount of Rs.3 lacs (three lacs) on account of medical expenses, within one month from the date of receipt of copy of this order failing which the complainant shall be entitled to interest @ 6% per annum on this amount from the date of filing of the complaint till the payment is made to the complainant. Opposite Party is also directed to pay litigation expenses to the complainant to the tune of Rs. 2000/-. Copies of the order be furnished to the parties free of cost. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
Dated: 24.11.2017. (Rachna Arora) (Anoop Sharma)
Member Presiding Member
