Order by:

Smt.Aparana Kundi, Member

1.       The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 on the allegations that the complainant has been purchasing the ‘Family Health Optima Insurance Plan’ Policies from the opposite party regularly from the last seven years continuously. Lastly the policy was renewed for the period w.e.f. 23.12.2021 to 22.12.2022 and thereafter the period w.e.f. 23.12.2022 upto 22.12.2023 for a sum assured of Rs.15,00,000/-. During the policy coverage period of 23.12.2021 to 22.12.2022, on 04.08.2022, the complainant felt some uneasiness and became unconscious and due to emergency case, he was brought to the nearest hospital i.e. Harbans Nursing Home & Maternity Hospital, Dharamkot Road, Kot Ise khan District Moga, where he was completely diagnosed and found that he was suffering with pneumonia and acute pancreatitis + high grade fever with chills and productive cough as well as suffering from vomiting  alongwith sudden severe abdominal pain and remained admitted in the hospital till 13.08.2022. In this regard, the opposite parties were duly informed and Opposite Parties was asked for  cashless treatment under the policy, but the officials of opposite parties told that there may occur some delay in sending the case of the complainant for cashless treatment to the higher authority and the complainant has to pay the expenses from his own pocket and after discharge, the medical treatment claim amount will definitely be reimbursed under the policy. In these circumstances, the complainant paid the amount of expenses from his own pocket. For his treatment, the complainant paid an amount of Rs.1,46,656/- to Harbans Nursing Home & Maternity Hospital. After discharge from the hospital, the complainant lodged the claim for the reimbursement of the medical expenses with opposite parties and also completed all the required formalities and submitted all the required documents with the opposite parties, but they did not pay any heed to the request of the complainant. Initially, the opposite party lingered on the matter on one pretext or the other and at last vide repudiation letter dated 10.12.2022, the opposite parties have repudiated the claim of the complainant on the false and frivolous ground that the insured patient admitted and treated in an excluded provider hospital and as per Exclusion clause no.11 of the policy, the expenses incurred towards treatment in any hospital or by any medical practitioner or any other provider specifically excluded by the insurer. But the repudiation of the claim by the Opposite Parties is totally wrong and incorrect. Further alleged that at the time of issuing the policy in question, the opposite parties never issued any terms and conditions of the policy documents. As such, the alleged terms and conditions, particularly the exclusion clause of the policy in question is not binding upon the insured. Further alleged that complainant was admitted in hospital in emergency conditions and it is quite natural at the time of emergency where there is threat to the life of patient, the patient or his attendants immediately will approach to the nearest hospital or doctors and will take treatment as per the advice of doctors to save the life of the patient and not supposed to find the empanelled hospital or go for the treatment as per alleged terms and conditions of insurance Company which can be fatal for patient. The complainant approached the opposite parties time and again for the reimbursement of his genuine medical claim, but to no effect. As such, there is deficiency in service as well as unfair trade practice on the part of the Opposite Parties. Hence, this complaint. Vide instant complaint, the complainant has sought the following reliefs:-

a)       Opposite parties may be directed to reimburse the medical claim of the complainant amounting to Rs.1,46,656/- alongwith future interest @ 12 % p.a. from the date of payment till its actual realization.

b)      To pay an amount of Rs.1,00,000/- as compensation on account of damages, mental tension and harassment.

c)       To pay an amount of Rs.21,000/- as cost of complaint.

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 reply taking preliminary objections therein inter alia that 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 C.P. Act and appropriate remedy, if any, lies only in the Civil Court. The complainant has concealed the material facts and documents from this Commission as well as from the Opposite Parties, therefore, the complainant is not entitled to any relief. Further averred that the complainant  availed the Family Health Optima Insurance Plan Policy bearing no.P/21122/01/2022/008052 for the period 23.12.2021 to 22.12.2022 covering himself and his wife namely Jasvir Sukhija for a sum of Rs.15,00,000/-. The terms and conditions of the policy were explained to the complainant at the time of proposing policy as the complainant ported his earlier policy into the company of Opposite Parties from 23.12.2020 and the same were served to the complainant along with policy schedule. Moreover, it is clearly stated in the policy schedule that “The insurance under this policy is subject to conditions, clauses, warranties, exclusions etc.” Further averred that the policy is contractual in nature and the claims arising thereunder are subject to terms and conditions of the policy. The complainant has accepted the policy agreeing to and being fully aware of such terms and conditions and executed the proposal form. The claim in dispute is reported qua the treatment taken from Harbans Nursing Home from the period 04.08.2022 to 13.08.2022 for Pancreatitis for an amount of Rs.1,46,556/- and the claim was registered vide claim no.CIR/2023/211222/1183752. The claim was submitted along with supporting documents, on perusal, the medical team of Opposite Parties is of the opinion that ‘the insured patient was admitted and treated in an excluded provider hospital. As per clause no.11 of Exclusion clause the expenses incurred towards treatment in any hospital or by any medical practitioner or any other provider specifically excluded by the insurer and disclosed in its website/notified to the policy holders are not admissible. Further averred that insured was admitted on 04.08.2022 as per complaint, but claim was lodged on 07.12.2022. Moreover, before repudiation the proper investigation was conducted and vide letter dated 10.12.2022 the claim was repudiated and the complainant was duly informed. Moreover, the present complaint has been filed for claiming the amount of Rs.1,46,556/- as mentioned in the complaint regarding the treatment taken from Harbans Nursing Home and the medical records were prepared by the complainant from the concerned doctor only to take the claim and moreover it is clear from the medical record submitted by the complainant along with the claim form that it is a case of exclusion clause, so, the complaint is liable to be dismissed on this ground alone. Further averred that the complainant is not the consumer of Opposite Parties and the complaint is liable to be dismissed. The complainant has no locus standi or cause of action to file the present complaint against the Opposite Parties. The complaint is not maintainable in the present form. The complainant has violated the terms and conditions of the policy. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.

3.       In order to prove his case, complainant tendered in evidence his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C21.

4.       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 alongwith copies of documents Ex.OP2 to Ex.OP12.  

5.       We have heard the counsel for the parties and also gone through the documents placed on record.

6.       There is no dispute that complainant has purchased the health insurance policy bearing No. P/211222/01/2022/008052 for the period 23.12.2021 to 22.12.2022. During the policy period complainant suffered pneumonia and acute pancreatitis and got admitted in Harbans Nursing & Maternity Hospital, Kot Ise Khan, Tehsil Dharamkot, District Moga on 04.08.022 and remained admitted till 13.08.2022 is also not disputed. The main dispute between the parties is that complainant got treatment from Excluded Provider Hospital that’s why the claim was repudiated and denied. It is not the case of the Opposite Party that the treating hospital from where the complainant treatment has charged more than the empanelled hospital. However, the rejection of claim on the ground that policy holder got the treatment from excluded provider hospital is totally arbitrary. Sometime it is not possible for the policy holder to approach the listed hospitals due to any reasons. On the point, we are well guided by judgement of  Hon’ble Supreme Court of India in case titled  Shiva Kant Jha Vs. Union of India in Civil Writ Petition No. 694 of 2015, decided on 13.04.201, in which it is held that:-

Can it be said that taking treatment in Specialty Hospital by itself would deprive a person to claim reimbursement solely on the ground that the said Hospital is not included in the Government Order. The right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors/Hospitals concerned. 

In the facts of the present case, it cannot be denied that complainant was admitted in Harbans Nursing & Maternity Hospital, Kot Ise Khan, Tehsil Dharamkot, District Moga in emergency conditions due to pneumonia and acute pancreatitis. Moreover, the law does not require that prior permission has to be taken in such situation where the survival of the person is the prime consideration. Once, it is established, the claim cannot be denied on technical grounds. Clearly, in the present case, by taking a very inhuman approach, the Opposite Parties have denied the grant of medical reimbursement to the Complainant and forcing him to approach this District Commission. 

7.       Moreover, the plea taken by the Opposite Parties is that complainant was admitted and treated in an excluded provider hospital, so they rejected the claim of the complainant as per terms and conditions of the policy specifically exclusion no.11. But the Opposite Parties 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.”

8.       Now come to the quantum of amount to be awarded to the complainant. Vide instant complaint, the complainant claimed the amount of Rs.1,46,656/-. However, vide Bill Assessment Sheet Ex.OP12, the Opposite Parties assessed the final admissible amount to tune of Rs.1,16,546/-. Hence we allow the same.

9.       From the above discussion, we partly allow the complaint of the complainant and direct the Opposite Party to pay an amount of Rs.1,16,546/- (Rupees One Lakh Sixteen Thousand Five Hundred Forty Six only) to the complainant. Opposite Parties are also directed to pay compository costs of Rs.10,000/-(Rupees Ten Thousand only) as compensation and litigation expenses to the complainant. The compliance of this order be made by the Opposite Parties within 45 days from the date of receipt of copy of this order, failing which, the Opposite Parties are further burdened with additional cost of Rs.10,000/-(Rupees Ten Thousand only) to be paid to the complainants for non compliance of the order. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced on Open Commission