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 complainant is having account with Punjab National Bank-Opposite Party No.4. Complainant is having health Insurance policy with Oriental Insurance company namely PNB-Oriental Mediclaim Policy-Group Health Insurance Policy for the period 29.09.2020 to 28.09.2021. Prior to expiry of the policy, complainant got port his policy to Star Health & Allied Insurance Company Ltd. vide policy bearing no.P/900000/01/2022/000039 for a sum assured of Rs.7,50,000/- valid from 29.09.2021 to 28.09.2022. Further alleged that policies of both the companies i.e. PNB Oriental as well as Star Health and Allied Insurance Co. has been purchased and ported through Punjab National Bank. On 12.10.2021 complainant suffered high fever and visited at Sham Nursing Home and Heart Centre, Moga for the treatment of the same and as per the advise of the doctor he got himself admitted in the hospital. As the said hospital was not having cashless facility, so the complainant had to bear all the expense from his own pocket. After getting discharge from the hospital, complainant immediately approached to Opposite Party No.3 i.e. branch office of Opposite Party No.1 and submitted his claim for the reimbursement of Rs.36,440/- and also submitted the relevant documents as demanded by representative of the Opposite Party No.3 for the settlement of the claim. However, to an utter surprise of the complainant on 04.03.2022 complainant was informed by Opposite Party No.3 that his claim was repudiated by Opposite Parties no.1 & 2 vide email dated 28.01.2022. The email dated 28.01.2022 is altogether wrong and based upon baseless, false and frivolous facts. Thereafter on 02.05.2022 a legal notice was also served upon the Opposite Parties, but to no effect. Hence this complaint. Vide instant complaint, the complainant has sought the following reliefs:-
a) Opposite Parties may be directed to pay the amount of Rs.36,440/- alongwith interest @ 12% p.a. from the date of bill till its actual realization.
b) To pay an amount of R.10,000/- as compensation on account of mental as well as physical harassment.
c) To pay an amount of Rs.10,000/- as litigation expenses.
c) 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 No.1 to 3 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 required voluminous documents and evidence for determination which is not possible in the summary procedure under Consumer Protection Act and appropriate remedy, if any, lies only in Civil Court; the complainant has concealed material facts and documents from this Commission as well as from the Opposite Parties, therefore, the complainant is not entitled to any relief. Further alleged that complainant availed the Star Group Health Insurance Policy- (Gold-for Bank customers only) having policy no.P/211222/01/2022/005071 for the period 29.09.2021 to 28.09.2022 and in this policy complainant and his wife namely Sarita Kansal was insured for an amount of Rs.7,50,000/-. 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 from Oriental Bank of Commerce to Star Health and Allied Insurance Company and same was served to complainant alongwith the policy schedule. It is clearly stated in the policy schedule that "The Insurance under this Policy is subject to conditions, clauses, warranties, exclusions etc. 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 and no pre-existing disease except the DM was declared by the insured. The claim in dispute is reported by the complainant in the first year of the policy. The complainant was hospitalized from 12.10.2021 to 16.10.2021 at Sham Nursing Home and Heart Centre, Moga for the diagnosis and treatment of Diabetes Mellitus, Acute Febrile Illness, Thyrombo Cytopenia and Ischemic Heart Disease and the reported claim was registered. On perusal of submitted records and as per the statement of the insured it was observed that “the insured patient had IHD (Ischemic heart disease) since 5 years which is prior to inception of medical policy. Moreover, before repudiation the proper investigation was conducted and thereafter vide letter dated 28.01.2022 the claim was repudiated and complainant was duly informed. Moreover, the present complaint has been filed for claiming Rs.36,440/- regarding the treatment taken from Sham Nursing Home, Moga 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 alongwith the claim form that it is the case of pre-existing disease, so the complaint is liable to be dismissed on this ground alone. Further submitted that 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. Hence, the answering Opposite Parties are not liable to pay any claim. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.
3. Opposite Party No.4 filed written reply taking preliminary objection therein inter alia that the complaint is not maintainable against opposite party no.4. Opposite Party no.4 bank is not liable to make any payment to complainant. The complainant has full knowledge that opposite party no.4 has nothing to do with the claim lodged by the complainant with Opposite Parties no.1 to 3. The insurance contract is only between the complainant and Opposite Parties no.1 to 3. Opposite Party no.4 has not issued any insurance policy in favour of the complainant. Neither any claim has been lodged with opposite party no.4 nor opposite party no.4 has repudiated any claim of the complainant. No cause of action arose to complainant against opposite party no.4. The complainant has no locus standi to file above noted complaint against opposite party no.4. The complaint is bad for mis-joinder of parties. opposite party no.4 has been arrayed unnecessarily. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.
4. In order to prove his case, complainant tendered in evidence his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C12, which includes discharge summary and medical bills.
5. To rebut the evidence of the complainant, Opposite Parties no.1 to 3 tendered in evidence copies of documents Ex.OP1 to 3/1 to Ex.OP1 to 3/10 and CD Ex.OP1 to 3/11 and affidavit of Sh.Sumit Kumar Sharma, Senior Manager, Star Health & Allied Insurance Co. Ltd. Ex.OP1 to 3/12.
Whereas, Opposite Party No.4 tendered in evidence affidavit of Sh.R.K.Arora, Branch Manager of Punjab National Bank Ex.OP4/1 alongwith copy of reply of the legal notice Ex.OP4/2.
6. We have heard the counsel for the parties and also gone through the documents placed on record.
7. The main dispute arises between the parties, when the claim lodged by the complainant for the expenses incurred by him on his treatment was repudiated by the Opposite Parties, vide letter dated 28.01.2022 on the ground that “the insured patient has IHD (ischemic heart disease) since 2 years and diabetes mellitus since 5 years which is prior to inception of medical insurance policy”. But the repudiation made by the Opposite Parties on the abovesaid ground is not genuine, as from the perusal of policy document Ex.OP1 to 3/3 on 6th page, it is evident that complainant is covered under pre-existing disease. Moreover at the first page of said document in the column under the heading Details of Insured Person(s), it is mentioned that Pre-existing disease: Diabetes Mellitus and its complications meaning thereby the Opposite Parties are well aware that the complainant is suffering from Diabetes Mellitus and its complications.
8. Moreover, as per the version of the Opposite Parties insurance policy of the complainant was ported from Oriental Bank of Commerce to their company i.e. Star Health and Allied Insurance Co. Ltd. If the complainant ported his insurance policy from the previous insurance company to the present insurance company of the Opposite Parties, then it is the duty of the Opposite Parties to get the details with regard to the health status of the complainant and treatment taken by him during the policy coverage, from the previous insurance company. Moreover, if the complainant was suffering from any disease prior to issuance of the policy, in question, the same must not have escaped the notice of the empanelled doctors of the Insurance Company. 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.
9. Furthermore, as per the policy document, at the time of porting the policy, the life assured has duly mentioned his age as 11.02.1955 (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 the 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 insured 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.
10. Now come to the quantum of amount to be awarded to the complainant. Vide instant complaint, the complainant claimed the amount of Rs.36,440/-, which is fully proved on record.
11. From the above discussion, we partly allow the complaint of the complainant and direct the Opposite Parties No.1 to 3 to pay an amount of Rs.36,440/- (Rupees Thirty Six Thousand Four Hundred Forty only) to the complainant for the expenses incurred by him for the treatment. Opposite Parties No.1 to 3 are further burdened with compensation of Rs.10,000/-(Rupees Ten Thousand only) to be paid to the complainant, not only rendering deficient services but also for unfair trade practice resorted to by them while rejecting the genuine claim. Further Opposite Parties No.1 to 3 are also burdened with cost of Rs.5,000/-(Rupees Five Thousand Only) as litigation expenses. However, complaint against Opposite Party No.4 stands dismissed. The compliance of this order be made by the Opposite Parties No.1 to 3 within 45 days from the date of receipt of copy of this order, failing which, the Opposite Parties No.1 to 3 are burdened with additional amount of Rs.7,000/-(Rupees Seven Thousand only) to be paid to the complainant 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
