BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 685 of 2019
Date of Institution : 28.11.2019
Date of Decision : 10.03.2022.
Sandeep Kamboj aged about 39 years son of Shri Krishan Partap Kamboj, resident of H. No. 13/767, Jandi Wali Gali Khairpur, Sirsa, Tehsil and District Sirsa.
……Complainant.
Versus.
- Star Health and Allied Insurance Company Ltd., Ground Floor, Rathore Tower, Near Hotel Mehak, Dabwali Road, Sirsa through its Branch Manager/ Authorized Signatory.
- Star Health and Allied Insurance Company Ltd., Grievance Department No.1, New Tank Street, Valluvar Kottam High Road, Vungam Bakkam Chennai- 600034 through its Managing Director.
- Star Health and Allied Insurance Co. Ltd. Sri Balaji Complex, 15, Whites Road, Chennai- 600014 through its Director.
…….Opposite Parties
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. PADAM SINGH THAKUR……. PRESIDENT
MRS.SUKHDEEP KAUR……………MEMBER.
SH. SUNIL MOHAN TRIKHA……… MEMBER
Present: Sh. Ashish Singla, Advocate for the complainant.
Sh. Mukesh Saini, Advocate for opposite parties.
ORDER
In brief, the case of the complainant is that complainant purchased a medi claim policy named as “Family Health Optima Insurance Plan” from the ops which was effective from 20.3.2018 to 19.3.2019 with limit of coverage of Rs.five lacs. The said policy was got subsequently renewed from 20.3.2019 to 19.3.2020 vide policy No.P/211121/01/2018/004237 and vide renewal endorsement No. P/211121/01/2019/006307. The complainant had paid annual premium of Rs.13,057/- to the ops for purchase of policy and also paid said amount at the time of renewal and the limit of coverage enhanced to Rs.6,25,000/- with a recharge benefit of Rs.1,50,000/-. There was no pre existing disease to the complainant and a declaration to this effect was submitted by him to the ops. The ops had not got conducted any medical checkup of complainant.
2. It is further averred that complainant had also purchased an insurance policy from Tata AIA Life Insurance effective from 27.3.2018 to 27.3.2058 for which his medical checkup was got conducted from the penal of doctors of Tata AIA Life Insurance and he was declared fit and fine for all purposes. Unfortunately on 1.7.2019, complainant was diagnosed with Right PUJ obstruction with poorly functioning kidney known as right sided hydronephrosis. The complainant visited Jeewan Jyoti Hospital, Sirsa but the doctor referred him to Shah Satnam Ji Super Specialty Hospital, Sirsa for thorough check up and on confirmation of medical complication, he approached Sir Ganga Ram Hospital, New Delhi and also visited Medanta Hospital, Gurugram for treatment. Ultimately, the complainant was got admitted at MAX Super Specialty Hospital, Saket New Delhi from 9.7.2019 to 12.7.2019. He was operated on 9.7.2019 with Robit Assisted Pyeloplasty and Pyelolithotomy and DJ stenting was done on 9.7.2019. The complainant applied for cashless treatment but surprisingly ops denied for any cashless treatment vide letter dated 9.7.2019.
3. Thereafter, again complainant was admitted in the said hospital on 19.8.2019 and was operated for removal of DJ stent and still he is undergoing follow up treatment which shall last long. The complainant had spent approximately an amount of Rs.5,50,000/- on his entire treatment till date and further requires more than Rs. two lacs for treatment. That ops have wrongly rejected the claim of complainant referring to the waiting clause No. 3(ii) A of the policy schedule stating that claim is not admissible for two years from the date of inception of policy which is wrong and illegal as firstly the terms and conditions mentioned in the policy were not read over and explained to the complainant and secondly there is no signatures or acceptance/consent of the complainant to the terms and conditions mentioned in the schedule of the policy. These are only unilateral conditions and are not binding upon the insured as the same were not within his knowledge prior to the rejection of claim and said condition is applicable only in case of pre existing disease. However, in the present case medical reports clearly show that there was no such pre existing disease to the complainant at the time of inception of policy. The act and conduct of ops clearly amounts to deficiency in service, unfair trade practice and gross negligence. Hence, this complaint.
4. Ops were served and they filed written statement taking certain preliminary objections that complaint is false, frivolous, baseless and misconceived and there was/is no deficiency in service on the part of ops, that complainant has not come with clean hands and has suppressed the material facts from this Commission, that no cause of action ever arose in favour of complainant and complaint is liable to be dismissed with heavy costs, that complaint involves intricate question of law and fact, plethora of records to be introduced and number of witnesses to be examined and therefore, the subject matter cannot be adjudicated in this Commission, that registered and corporate office of ops is situated in Chennai and branch office at Sirsa issued the policy in question, hence, this Commission has no jurisdiction to try, entertain and decide the present complaint, that complaint is hopelessly time barred and complainant has no locus standi to file the present complaint.
5. On merits, it is submitted that branch office of ops at Sirsa had issued the policy in question for sum insured of Rs.5,00,000/- for the period from 20.3.2018 to 19.3.2019 covering complainant, his wife Mrs. Neetu Rani and child Harshit Kamboj . The policy was issued as per terms and conditions of insurance policy believing that the information provided by the insurer in his proposal form are true and correct. The policy is contractual in nature and 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. It is clearly stated in the policy schedule that insurance under this policy is subject to conditions, clauses, warranties, exclusions etc. The insured sought for pre authorization request for cashless treatment on 9.7.2019. On the scrutiny of the documents, it was observed that patient was admitted with complaints of incidentally detected right sided hydronephrosis which is swelling of a kidney due to build up of urine. It happens when urine cannot drain out from the kidney to the bladder from a blockage or obstruction and the provisional Diagnosis is Pelvo Ureteric Junction Obstruction and from the diagnosis of the disease was arisen within the first two years of the commencement of the policy, hence the ops are unable to settle the claim as per terms and conditions of the policy. As per Exclusion clause No. 3(ii) of the policy, a waiting period of 24 consecutive months of continuous coverage from the inception of the policy will apply to the specified ailments/ illness/ diseases. Hence, the pre authorization was repudiated and same was communicated to the insured vide letter dated 9.7.2019.
6. It is further submitted by ops that terms of the policy shall govern the contract between the parties and they have to abide by the definition given therein and all those expressions appearing in the policy should be interpreted with reference to the terms of the policy. The ops issued the policy on the basis of declaration made by the insured at the time of obtaining the policy. The complainant has not approached for reimbursement of medical expenses, hence, ops are not aware of the expenses incurred by the complainant. The complainant has not provided the claim documents with discharge summary and bills for reimbursement, hence the ops are not aware of the treatment details and as such expenses incurred by insured as stated in the complaint are vehemently denied. Moreover, claim is not payable as per terms and conditions of the policy and thus, they have legally repudiated the same. The claim of complainant was not rejected under the clause of pre existing disease which has arisen within first two years of commencement of the policy. The ops are unable to settle claim under exclusion clause No. 3 (ii) A of the policy. Rest of contents of the complaint are also denied to be wrong and prayer for dismissal of complaint made.
7. The complainant has tendered in evidence his affidavit Ex.CW1/A in which he has reiterated all the contents of his complaint. He has also tendered Ex.C1 welcome/ thanks letter of ops for availing health insurance policy, Ex.C2 Family Health Optima Insurance Plan w.e.f 20.3.2018 to 19.3.2019 having limit of coverage of Rs.5,00,000/- with recharge benefit of Rs.1,50,000/-, Ex.C3 thanks letter for renewal, Ex.C4 renewal policy with effect from 20.3.2019 to 19.3.2020 with limit of coverage of Rs.6,25,000/- with recharge benefit of Rs.1,50,000/-, Ex.C5 advance premium receipt of Rs.13,057 dated 15.3.2019, Ex.C6 rejection of authorization for cashless treatment, Ex.C7 to Ex.C34 medical reports, diagnosis and prescription slips of the hospitals where from complainant has taken treatment and bills etc. and complainant has also placed on file his adhar card Ex.C35.
8. The ops have tendered affidavit of Sh. Rajiv Jain, Chief Manager as Ex. RW1/A, proposal form Ex.R1, insurance plan Ex.R2, thanks letter Ex.R3, policy schedule/ renewal endorsement Ex.R4, receipt Ex.R5, thanks letter for renewal of policy Ex.R6, terms and conditions of policy Ex.R7, claim form Ex.R8, rejection of authorization for cashless treatment Ex.R9 and rejection of authorization for cashless treatment dated 9.7.2019 Ex.R10.
9. We have heard learned counsel for the parties and have perused the case file.
10. Learned counsel for complainant contended that ops have wrongly rejected claim of complainant by referring the Waiting Period Clause No.3 (ii) of the policy schedule stating that claim is not admissible for two years from the date of inception of the policy. The terms and conditions mentioned in the policy were not read over and explained to the complainant before payment of premium and ops have not obtained signatures or acceptance/ consent of the complainant to the terms and conditions mentioned in the schedule of the policy. These are only unilateral conditions and are not binding upon the insured as the same were not within the knowledge of complainant. The rejection is also unlawful because condition mentioned in the letter dated 97.2019 is only applicable in case of pre existing disease, however, in the present case, the medical reports clearly show that there was no such pre existing disease to the complainant at the time of inception of the first policy. The complainant had purchased first policy in the year 2018 and further got renewed in year 2019 with effect from 20.3.2019 to 19.3.2020 and ops have caused mental harassment and shock to the complainant when they have rejected claim of complainant on the ground that disease has occurred within two years after issuance of the policy and prayed for acceptance of the complaint.
11. On the other hand, learned counsel for ops has contended that terms and conditions of the policy shall govern between the parties as it is a contract between the parties. The policy was issued as per terms and conditions of the insurance policy believing that information provided by the insured in his proposal form are true and correct. The insured sought for the pre-authorization request for cashless treatment on 9.7.2019. On scrutiny of the documents submitted by the insured, it was observed that insured patient was admitted with complaints of incidentally detected right sided hydronephrosis which is swelling of a kidney due to build up of urine. It happens with urine cannot drain out from the kidney to the bladder due to blockage or obstruction and the diagnosis is PUJO i.e. Pelvo Ureteric Junction Obstruction. The insurance company has rightly rejected claim of complainant as per exclusion clause No. 3 (ii) of the policy. Counsel for ops further relied upon the judgments passed by Hon’ble Apex Court in case titled as Aman Kapoor Vs. National Insurance Co. Ltd. and others in which it was held by Hon’ble Supreme Court that “Ignorance of terms and conditions of the policy is no excuse and provides no shelter to the petitioner complainant.” He further relied upon judgment of Hon’ble Supreme Court in case titled as Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance Co. Ltd. (2010) 10 SCC 567 in which it was observed as under:-
‘Insurance Act 1938, Section 64- Insurance Contract- In a contract of insurance, right and obligation are strictly govern by the terms of the policy and no exception or relaxation can be given on the ground of equity. Further Held- In construing the terms of a contract of insurance, the words used therein must be given paramount importance and it is not open for the Court to add, delete or substitute any words. It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by insured on account of risk covered by the policy, its terms have to be strictly construed to determine the extent of liability of insured”.
12.Counsel for ops has further relied upon judgment of Hon’ble Apex Court in case titled as General Assurance Society Limited vs. Chandumall Jain & anr. reported in 1966 AIR (SC) 1644 in which it has been held that “In interpreting documents relating to a contract of insurance, the duty of the Court is to interpret the words in which the contract is expressed by the parties because it is not for the Court to make a new contract. He has also relied upon judgment of Hon’ble Supreme Court in case titled as United India Insurance Co. Vs. Harchan Rai Chandan Lal 2004 (8) SCC 644 and contended that in view of the judgments and law laid down by Hon’ble Apex Court, the claim of complainant has been rightly rejected as per terms and conditions of policy.
13. We have duly considered the rival contentions of the parties. The clause No.3 (ii) of the policy reads as under:-
3 (ii)- A waiting period of 24 consecutive months of continuous coverage from the inception of this policy will apply to the following specified ailments/ illness/ diseases:-
- Treatment of Cataract and diseases of the anterior and posterior chamber of the Eye, Diseases of ENT, Diseases related to Thyroid, Prolapse of Intervertebral Disc (other than caused by accident), Varicose veins and Varicose ulcers, Desmoid Tumor, Umbilical Granuloma, Umbilical Sinus, Umbilical Fistula, all Diseases of Prostate, Stricture Urethra, all Obstructive Uropathies, all types of Hernia, Benign Tumors of Epididymis, Spermatocele, Varicocele, Hydrocele, Fistula, Fissure in Ano, Hemorrhoids, Pilonidal Sinus and Fistula, Rectal Prolapse, Stress Incontinence and Congenital Internal disease/ defect.
14. The insurance company has wrongly rejected claim of complainant under clause 3 (ii) (a) of the policy as disease of complainant is no where mentioned in the exclusion clause and more so, it is specifically mentioned in clause 3 of Waiting periods “that any disease contracted by the insured person during the first 30 days from the commencement date of the policy. This waiting period shall not apply in case of the insured person having been covered under any health insurance policy (individual policy) with any of the Indian General Insurance companies/ health insurance companies for a continuous period of preceding 12 months without a break”. In the sub clause second of clause 3 it is mentioned that “ A waiting period of 24 consecutive months of continuous coverage from the inception of the policy will apply to the specified ailments/ illness/ diseases”. Since the complainant was suffering from right sided hydronephrosis i.e. swelling of kidney due to Pelvo Ureteric Junction Obstruction which is not mentioned in exclusion clause 3 (i), 3(ii) (a) of the terms and conditions of the policy and thus, ops have wrongly rejected claim of complainant. More so, the complainant was not having any pre existing disease. The ops in their written statement have also admitted that pre-authorization request for cashless treatment was rejected and the complainant has not submitted any bills of his treatment to the insurance company neither applied for reimbursement. Since disease of complainant is not mentioned in the exclusion clause of the policy, therefore, arguments put forth by counsel for ops are not sustainable on record. The plea of the ops that claim of complainant is not payable as per terms and conditions of the policy is totally wrong and amounts to negligence and deficiency of service on the part of ops. Thecomplainant is entitled for reimbursement of his medical bills and compensation for harassment and also entitled to litigation expenses from the ops. The complainant in his pleadings has averred that he has spent approximately amount of Rs.5,50,000/- on his treatment. The perusal of medical bills/ receiptsEx.C17 to Ex.C23, Ex.C25, Ex.C28, Ex.C29 and Ex.C30 reveals that he has spent total of amount of Rs.3,48,519/- on his treatment/ medical expenses. Besides, this learned counsel for complainant at the time of arguments has also placed on file copy of statement of account which reveals that on 12.7.2019, an amount of Rs.48671/- was also paid to Max Super Hospital which was pending as amount of Rs.3,03,999/- was already paid to the said hospital against bill amount of Rs.3,52,670/- and remaining amount of Rs.48671/- was paid on 12.7.2019. As such complainant is entitled to total amount of Rs.3,97,190/- (in round figure Rs.3,97,500/-) spent by him on his treatment.
15 . Keeping in view of aforesaid reasons and findings, the present complaint is hereby allowed and ops are directed to make reimbursement of the amount of Rs.3,97,500/- to the complainant alongwith interest @7% per annum from the date of filing of present complaint i.e. 28.11.2019 till actual payment. We further direct the ops to pay a sum of Rs.25,000/- as compensation to the complainant for harassment and an amount of Rs.15,000/- as litigation expenses to the complainant. The ops are directed to comply this order within a period of 45 days from the date of receipt of this order. In case, ops fail to comply with this order within above stipulated period, complainant shall be at liberty to initiate proceedings under Section 71/72 of the Consumer Protection Act, 2019 against the ops. A copy of this order be supplied to the parties free of costs. File be consigned to the record room after due compliance.
Announced. Member Member President,
Dated: 10.03.2022. District Consumer Disputes
Redressal Commission, Sirsa.
JK
