BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 668 of 2016
Date of Institution: 14.12.2016
Date of Decision: 20.11.2017
Kajal Sharma wife of Late Sham Sharma, resident of H.No. 473, Anandpur, Pathankot
Complainant
Versus
Star Health & Allied Insurance Company Limited , SCO 25, First Floor, Ranjit Avenue, District Shopping Complex, Amritsar through its Branch Manager/Person over all Incharge
Opposite Party
Complaint under section 11 & 12 of the Consumer Protection Act
Present: For the Complainant : Sh.Munish Kohli, 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. Kajal Sharma,complainant has brought the instant complaint under section 11 & 12 of the Consumer Protection Act on the allegations that husband of the complainant had obtained Family Health Optima-New Policy from the opposite party vide Mediclaim Policy bearing No. P/211111/01/2014/003878 commencing from 6.3.2014 to 5.3.2015 and the said policy is continued upto date and the last payment of premium to the tune of Rs. 7612/- was paid by the husband of the complainant to the opposite party on 5.3.2014 against proper receipt. The sum assured in the policy was to the tune of Rs. 3,00,000/- alongwith bonus Rs. 75000/- . The said policy covers all the family members of the complainant as mentioned in the said Family Health Optima Insurance policy Schedule issued by the opposite party. The husband of the complainant had been regularly paying the premium to the opposite party since March 2013. The husband of the complainant was holder of cashless medical hospitalization facilities under the policy having Card No. 2766258-I issued by the opposite party to provide cashless hospitalization facilities to the holder of this card. During the validity period of the said policy, the husband of the complainant met with an accident on 3.9.2014 when he alongwith his wife Kajal Sharma i.e. present complainant and brother in law Sh. Pawan Kumar were going from Pathankot to Damtal in a Swift Car bearing No. PB-35-T-3415 and when they reached Near Chakki Bridge Pathankot, the Swift car was struck with a Truck No.PB-10-CZ-2728 from backside and the husband of the complainant received multiple serious and grievous injuries and got admitted in DMC Hospital, Ludhiana on 4.9.2014 and ultimately died in the said hospital on 7.9.2014. The postmortem of husband of the complainant was also conducted on 8.9.2014 . The complainant spent huge amount of Rs. 2,18,065/- on the medical treatment of his husband . The original bills, cash memos and other documents were submitted to the opposite party for payment of claim under the impugned insurance . The impugned claim was lodged for reimbursement of medical expenses with the opposite party and all the requisite documents and original medical bills were supplied to the opposite party, but the opposite party has failed to process the claim of the complainant and rather repudiated the same on 9.7.2015 on the flimsy ground that “we have processed the claim records relating to the above insured-patient seeking reimbursement of hospitalization expenses for treatment of mesenteric tear, # frontal bone, ARF, hepatitis. It is observed from the prescription dated 3.9.2014 of Mahesh Mahajan Multispecialty Hospital and Trauma Centre that the insured patient was under the influence of alcohol at the time of sustaining the injury. As per Exclusion No.10 of the above policy, the company is not liable to make any payment in respect of any expenses for treatment of complication due to use of alcohol. We are,therefore, unable to settle your claim under the above policy and we hereby repudiate your claim”. Whereas the fact remains that the death of husband of the complainant was caused due to the injury to the vital organ/brain hemorrhage leading to shock. Moreover from the postmortem report it is clearly evident that at the time of said accident the husband of the complainant was not under the influence of alcohol. As such the repudiation of impugned claim is unlawful, arbitrary and without any basis , which is a gross negligence, carelessness and deficiency in service on the part of the opposite party. Vide instant complaint, complainant has prayed for the following reliefs:-
- Opposite party be directed to pay the sum insured to the tune of Rs. 2,18,065/- alongwith interest @ 18% p.a. ;
- Compensation to the tune of Rs. 50000/- alongwith litigation expenses to the tune of Rs. 11000/- may also be awarded to the complainant.
Hence, this complaint.
2. Upon notice, opposite party appeared and filed written version in which it was submitted that the husband of the complainant namely Sham Sharma had obtained the policy as Family Health Optima New valid from 6.3.2013 to 5.3.2014 which was renewed vide policy No. P/211111/01/2014/003878 valid from 6.3.2014 to 5.3.2015. The husband of the complainant was admitted in Dayanand Medical College and Hospital, Ludhiana on 4.9.2014 for the treatment of RTA, MESENTERIC TEAR, # FRONTAL BONE, ARF and HEPATITIS and submitted claim records for reimbursement of medical expenses. However, on scrutiny of the claim record, it was observed that the patient was consulted with Dr. Munish Mahajan on 3.9.2014 on the day of accident and then further admitted at Dayanand Medical College and Hospital, Ludhiana on 4.9.2014. The prescription slip dated 3.9.2014 of Mahesh Mahajan Multispecialty Hospital and Trauma Centre submitted in response to the query states that the patient was under the influence of alcohol at the time of sustaining the injury. It was stated that as per exclusion clause No. 10 of the policy, the company is not liable to make any payment in respect of any expenses for treatment of complication due to use of alcohol, which exclusion clause reads as “10. In the event of Convalescence, general debility, Rundown condition or rest cure, Psychosomatic disorder, congenital external disease or defects or anomalies, infertility, venereal disease, intentional self injury and use of intoxicating drugs alcohol, the company is not liable to make any payment under the policy in respect of any expenses whatsoever incurred by the insured person in connection with or in respect of same. Hence the claim of the complainant is not payable and same was duly communicated to the insured Sham Sharma vide repudiation letter dated 9.7.2015. It was further stated that on receipt of representation of the husband of the complainant, the company team re-examined the claims records and again it was observed that from the prescription dated 3.9.2014 of Mahesh Mahajan Multispecialty Hospital and Trauma Centre submitted in response to the query states that the insured patient was under the influence of alcohol at the time of sustaining the injury. Further as per declaration of Mr. Pawan Kumar (brother in law of the patient_) Mr. Sham Sharma was driving the car at the time of RTA. Hence, the claim of the complainant was rightly repudiated as per the policy terms and conditions. As far as postmortem is concerned, the same has no relevancy as the accident took place on 3.9.2014 and husband of complainant was under influence of alcohol at that time when he was consulted with Mahesh Mahajan Multispecialty Hospital and Trauma Centre and he was admitted in DMC hospital Ludhiana on 4.9.2014 and was discharged on 7.9.2014 and hence, it is not possible to trace the alcohol contents during the post mortem after lapse of such a long period of over four days. On account of abovestated reasons, the claim of the complainant is not payable and same is rightly repudiated . While denying and controverting other allegations, dismissal of complaint was prayed.
3. In his bid to prove his case Sh. Munish Kohli, Adv.counsel for the complainant tendered into evidence duly sworn affidavit of the complainant Ex.C-1, copy of medical record od DMC dated 3.6.2015 Ex.C-2, copy of intimation of death claim Ex.C-3, copy of status of intimation to opposite party Ex.C-4, copy of FIR Ex.C-5, copy of translation to FIR Ex.C-6, coy of postmortem report Ex.C-7, affidavit of Pawan Kumar Bhardwaj Ex.CW2/A, copy of application moved by the complainant Ex.C-8, copy of policy schedule Ex.C-9, copy of bank pass book Ex.C-10, copy of bills Ex.C-11 to Ex.C-13 , copy of bills Ex.C-14, Ex.C-15 and Ex.C-16, affidavit of Dr. Munish Mahajan Ex.CW3/A and closed the evidence on behalf of the complainant.
4. To rebut the aforesaid evidence Sh.S.S.Salaria,Adv.counsel for the opposite party tendered into evidence affidavit of Sh.P.C. Tripathy, Zonal Manager Ex.OP1, copy of terms and conditions Ex.OP2, copy of proposal form Ex.OP3, copy of policy schedule 2013-14 Ex.OP4, copy of policy schedule 2014-15 Ex.OP5, copy of policy schedule 2015-16 Ex.OP6, claim form part A Ex.OP7, copy of claim form Part B Ex.OP8, copy of FIR Ex.OP9, copy of certificate issued by Dayanand Medical College Ex.OP10, copy of plain CT Head report dated 3.9.2014 Ex.OP11, copy of report of Mahesh Mahajan Hospital dated 3.9.2014 Ex.OP12, copy of radio diagnosis report dated 4.9.2014 Ex.OP13, copy of CT Head Plain report Ex.OP14, copy of FUCT CT Scan Head Plain report Ex.OP15, copy of CT Scan Head Plain report Ex.OP16, copy of radio diagnosis report Ex.OP17, copy of detailed bill dated 7.9.2014 Ex.OP10, copy of bill dated 7.9.2014 Ex.OP19, copy of bill payable proforma Ex.OP20, copy of status of intimation Ex.OP21, copy of repudiation letter dated 9.7.2015 Ex. OP22, copy of repudiation dated 27.8.2015 Ex.OP23 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 record on the file.
6. Ld.counsel for the complainant has reiterated the facts narrated in the complaint and has submitted that husband of the complainant had obtained Family Health Optima-New Policy from the opposite party vide Mediclaim Policy bearing No. P/211111/01/2014/003878 commencing from 6.3.2014 to 5.3.2015 with the sum assured to the tune of Rs. 3,00,000/- alongwith bonus Rs. 75000/- . The said policy covers all the family members of the complainant as mentioned in the said Family Health Optima Insurance policy Schedule issued by the opposite party. It was submitted that the husband of the complainant was holder of cashless medical hospitalization facilities under the policy having Card No. 2766258-I issued by the opposite party to provide cashless hospitalization facilities to the holder of this card. It was submitted that during the subsistence of the policy period, the husband of the complainant met with an accident on 3.9.2014 when he alongwith his wife Kajal Sharma i.e. present complainant and brother in law Sh. Pawan Kumar were going from Pathankot to Damtal in a Swift Car bearing No. PB-35-T-3415 and when they reached Near Chakki Bridge Pathankot, the Swift car was struck with a Truck No.PB-10-CZ-2728 from backside and the husband of the complainant received multiple serious and grievous injuries and got admitted in DMC Hospital, Ludhiana on 4.9.2014 and ultimately died in the said hospital on 7.9.2014. The postmortem of husband of the complainant was also conducted on 8.9.2014 . The complainant spent huge amount of Rs. 2,18,065/- on the medical treatment of his husband . The impugned claim was lodged for reimbursement of medical expenses with the opposite party by submitting all the requisite documents and original medical bills to the opposite party, but the opposite party has repudiated the same on 9.7.2015 on the flimsy ground that the company is not liable to make any payment in respect of any expenses for treatment of complication due to use of alcohol. Whereas the fact remains that the death of husband of the complainant was caused due to the injury to the vital organ/brain hemorrhage leading to shock. Moreover from the postmortem report it is clearly evident that at the time of said accident the husband of the complainant was not under the influence of alcohol. Ld. Counsel for the complainant submitted that the repudiation made by the opposite party is illegal and all this amounts to deficiency in service.
7. On the other hand ld. Counsel for the opposite party has repelled the aforesaid contentions of the complainant on the ground that the husband of the complainant namely Sham Sharma had obtained the policy as Family Health Optima New valid from 6.3.2013 to 5.3.2014 which was renewed vide policy No. P/211111/01/2014/003878 valid from 6.3.2014 to 5.3.2015. The husband of the complainant was admitted in Dayanand Medical College and Hospital, Ludhiana on 4.9.2014 for the treatment of RTA, MESENTERIC TEAR, # FRONTAL BONE, ARF and HEPATITIS and submitted claim records for reimbursement of medical expenses. However, on scrutiny of the claim record, it was observed that the patient was consulted with Dr. Munish Mahajan on 3.9.2014 on the day of accident and then further admitted at Dayanand Medical College and Hospital, Ludhiana on 4.9.2014. The prescription dated 3.9.2014 of Mahesh Mahajan Multispecialty Hospital and Trauma Centre submitted in response to the query states that the patient was under the influence of alcohol at the time of sustaining the injury. It was stated that as per exclusion clause No. 10 of the policy, the company is not liable to make any payment in respect of any expenses for treatment of complication due to use of alcohol. Hence, the claim of the complainant was rightly repudiated as per the policy terms and conditions. It was further submitted that as far as postmortem is concerned, the same has no relevancy as the accident took place on 3.9.2014 and husband of complainant was under influence of alcohol at that time when he was consulted with Mahesh Mahajan Multispecialty Hospital and Trauma Centre and he was admitted in DMC hospital Ludhiana on 4.9.2014 and was discharged on 7.9.2014 and hence, it is not possible to trace the alcohol contents during the post mortem after lapse of such a long period of over four days. Ld.counsel for the opposite party submitted that the repudiation made by the opposite party is legal and there is no deficiency in service on the part of the opposite party.
8. But, however, from the appreciation of the facts and circumstances of the case, it becomes evident that the husband of the complainant has obtained Family Health Optima-New Policy from the opposite party vide Mediclaim Policy bearing No. P/211111/01/2014/003878 commencing from 6.3.2014 to 5.3.2015 with sum assured Rs. 3,00,000/- alongwith bonus Rs. 75000/-copy of policy is Ex.C-9 on record. The husband of the complainant was holder of cashless medical hospitalization facilities under the policy having Card No. 2766258-I issued by the opposite party to provide cashless hospitalization facilities to the holder of this card. It was the case of the complainant that during the validity period of the said policy, the husband of the complainant met with an accident on 3.9.2014 when he alongwith his wife Kajal Sharma i.e. present complainant and brother in law Sh. Pawan Kumar were going from Pathankot to Damtal in a Swift Car bearing No. PB-35-T-3415 and the Swift car was struck with a Truck No.PB-10-CZ-2728 in which the husband of the complainant received multiple serious and grievous injuries. FIR was also got registered at P.S. Division No.2, Pathankot, copy of FIR is Ex.C-6 on record. The husband of the complainant was got admitted in DMC Hospital, Ludhiana on 4.9.2014 where he ultimately died on 7.9.2014. The postmortem of husband of the complainant was also conducted on 8.9.2014 . The complainant spent huge amount of Rs. 2,18,065/- on the medical treatment of his husband . In this regard complainant has placed on record hospital bills of Dayanand Medical College & Hospital, Ludhiana. Thereafter the complainant lodged claim with the opposite party by submitting all the requisite documents. But however, the opposite party repudiated the claim of the complainant on the ground that that the insured patient was under the influence of alcohol at the time of sustaining the injury and as per Exclusion No.10 of the above policy, the company is not liable to make any payment in respect of any expenses for treatment of complication due to use of alcohol. In this regard opposite party has relied upon prescription of Mahesh Mahajan Multispeciality Hospital & Trauma Centre Ex.OP12 that the patient was consulted with Dr. Munish Mahajan on 3.9.2014 on the day of accident and then further admitted at Dayanand Medical College & Hospital, Ludhiana on 4.9.2014. The complainant has placed on record copy of letter written by Medical Supdt. Of Dayanand Medical College & Hospital to the Mediclaim Pvt.Ltd. copy of which is Ex.C-2 on record, which proves that the patient was a case of road side accident when he was in a car and collided with a truck. It was also mentioned that as per record patient was not under influence of alcohol at the time of accident . On the other hand opposite party has relied upon the prescription dated 3.9.2014 of Mahesh Mahajan Hospital in which in response to the query, it was written that the patient was under the influence of alcohol at the time of sustaining the injury. As the insured patient was under the influence of alcohol, as such as per exclusion clause 10 , the company is not liable to make any payment in respect of any expenses for treatment of complication due to use of alcohol. But the opposite party could not file any affidavit of any Dr. , who could depose that he medically treated the insured patient and the insured patient was under the influence of alcohol. It has been held by the Hon'ble National Commission in case National Insurance Co.Ltd. Vs. Sardar Kulbir Singh 2010(3) CPC 488 that where the claim was repudiated by the insurance company on the ground that insured had suppressed the fact that he was having a heart problem when policy was taken but no evidence including the affidavit of doctor was produced in support of this allegation except discharge summary held that concealment of material disease not proved by the Insurance company. It has been held by the Hon'ble National Commission in case LIC of India & Anr. Vs. Ashok Manocha 2012(1) CLT 185 that where certificate of the hospital which has been submitted as evidence by the LIC , does not have the seal of the doctor, who had signed it, there is no affidavit of the said doctor nor of any officer of the petitioner/Insurance company to prove the authenticity of medical treatment at hospital as also the medical certificate issued thereafter, held that pleadings cannot be taken as evidence and in the absence of any evidence in support of the case set up the certificate produced by the petitioner from the hospital is of no help to the petitioner.
9. On the other hand complainant has placed on record affidavit of Dr. Munish Mahajan of Mahesh Mahajan Multispeciality Hospital & Trauma Centre , who has deposed on oath that on 3.9.2014 Mr. Sham Sunder insured patient was brought to the hospital and at that time he was in very critical condition due to head injuries and continues bleeding from his head due to injuries sustained in the road accident and he was given only the first aid treatment to said Mr. Sham Shunder and except first aid treatment he was not being treated in any manner. The said doctor further deposed that he had never stated that Mr. Sham Sunder i.e. insured patient was under the influence of alcohol at the said relevant time nor any information was provided to the hospital. However, the opposite party has failed to rebut the affidavit of said Dr. Munish Mahajan nor any effort was made by the opposite party to cross examine the said doctor. As such the plea taken by the opposite party that as the insured patient was under the influence of alcohol, as such the complainant is not liable for any claim, is not sustainable. The postmortem report submitted by the complainant also falsified the stand of the opposite party that at the time of accident the insured patient was under the influence of alcohol as in the postmortem report it was clearly mentioned that the cause of death is injury to vital organ (brain) & Heamorrhage which is sufficient to cause death in natural cause of death. Moreover, it is usually seen that insurance companies show green pastures to the insured persons at the time of selling the insurance policy 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.
10. Regarding the quantum of claim, the opposite party himself placed on record affidavit of Sh. P.C. Tripathy, Zonal Manager, Ex.OP1, who admitted that the maximum quantum of liability under the terms of the policy shall be Rs. 1,98,313/-. As such the complainant is entitled to that amount i.e. Rs. 1,98,313/- only and not Rs. 2,18,065/- as incurred on the treatment of the husband of the complainant as alleged by the complainat.
11. So we hold that the opposite party wrongly repudiated the claim of the complainant. Consequently we allow the complaint with costs and the opposite party is directed to reimburse the amount of Rs. 1,98,313/- to the complainant alongwith interest @ 6% p.a from the date of filing of the complaint till payment is made to the complainant. Opposite party is also directed to pay litigation expenses Rs. 2000/- to the complainant. Copies of the orders be furnished to the parties free of costs. 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 : 20.11.2017
