For the Complainant:Self
For theOP No.1:Sri D.R.Bohidar, Advocate, Bhawanipatna
For the OP No.2: Sri S.K.Agarawal Advocate, Bhawanipatna.
JUDGEMENT
The facts of the complaint in brief is that the complainant has taken a SBI General Health Insurance from the Opp.Party NO.1 on dt.03.09.2017 vide Policy No.0000000007103949 dt.11.09.2017 which was valid from 05.09.2017 to 04.09.2018 . The premium amount of Rs.1864/- was deducted from the account of the complainant vide A/c No.31193100854 dt.05.09.2017. On dt.24.12.2017 the complainant admitted at CHC Banpur, Khurda for his treatment of SCORTL FILARIASIS but the Opp.Party did not listen to the petitioner and bluntly refused to pay any amount for his treatment. The complainant spent huge amount for his treatment of his own pocket though the complainant is eligible to get insurance benefit from the SBI General Insurance – Opp.Party No.1. The complainant has approached several times both written and oral. Hence prayed to direct the Ops to pay compensation of Rs.1,00,000/- for mental agony, financial loss and return the insured amount along with interest. Hence, this complaint.
Being noticed the Opp.Party No.1 & 2 appeared through their Counsel and filed written version denying the petition allegations on all its material particulars.
It is submitted by the OP No.1 that
The Opposite Party No.3 submitted that
FINDINGS
We have heard the advocate appearing for both the parties. Sri N.R.Mishra, Advocate for the complainant submitted that the petitioner had no pre-existing diabetic or cardiac problem during the year of his hospitalization i.e. before 2016 or before and therefore, the insurance claim made by the complainant was fully justified and Clause 4.1 of the terms and conditions of the mediclaim insurance policy raised by the Opposite Party cannot be invoked in the present case and the Insurance Company ought to have reimbursed the expenses incurred by the complainant in his treatment and hospitalization.
On the other hand Sri S.K.Behera, Advocate for the Insurance Company submitted that as the mediclaim insurance policy taken by the complainant was lapsed on 29.03.2015 and it was not renewed before its expiry or on its expiry date and a fresh insurance policy was taken on 27.05.2015 , the Insurance Company was justified in rejecting the claim on the ground that the complainant is a known case of CAD since 2013 and as per Clause 4.1 of the terms and conditions of the mediclaim insurance policy the claim has been rightly invoked.
It is admitted fact that the complainant has been availing mediclaim insurance policy from the Opposite Party since 2013 and it is also admitted by both the parties that the third year mediclaim policy has been renewed after lapse of 58 days of second policy. It is further admitted by the Insurance Company that when the complainant got admitted in the Apollo Hospital, Visakhapatnam and claimed for cashless treatment ,the policy was in force. But the Opposite Party repudiated the claim on the ground that the complainant renewed his mediclaim policy after lapse of 58 days of the previous policy for which this policy is treated as first year policy as per term and conditions of the mediclaim insurance policy. But the Opposite Party has not filed any document which shows that they have intimated the complainant prior to the completion of the renewal date . Since the complainant is taking his mediclaim policy since 2013 and the complainant is an account holder of the Opposite Party Bank and the OP Bank himself has initiated the insurance policy by deducting the premium amount from the Savings Bank account of the complainant, it is the utmost duty of the OP Bank and OP Insurance Company to give reminder in writing prior to expiry of the insurance policy mentioning the consequence of non renewal of the mediclaim policy regarding the terms and conditions of Clause 4.1 of their Mediclaim Policy basing on which they have repudiate the claim for non renewal of the policy in time and in the present case the Ops have not done which is a clear deficiency in service on the part of the Ops.
The complainant had continuously taken the mediclaim insurance policy since 30.03.2013 with a break period from 30.03.2015 to 26.05.2015. The complainant got admitted in the Apollo Hospital, Visakhapatnam on 07.02.2016 and undergone angioplasty, the insurance claim has been repudiated by the Opposite Party No.3 on the ground that there was a break in the policy in renewal in 2015 and hence the disease was pre-existing and the claim was not payable.
We perused the case law in the instant case where it is held and reported in CPC- 1991, page -540 where in the Hon’ble Haryana State Commission held that when ever there is any delay or dilatoriness in finalizing the insurance claim, the same would be tantamount to a deficiency in service and thus comes squarely within the purview of Consumer Forum. Once it is held that default or negligence in the settlement of an insurance claim is a deficiency in service then an arbitrary or mischievous rejection of an insurance claim would patently be a default within its larger meaning. On principle , it would seem some what manifest that the mere repudiation of the insurance claim cannot itself operate as a jurisdiction bar for redressal forums under the Act. it is held and reported in CPR-1991(2), page No.18 where in the Hon’ble National Commission clearly defines the mere unilateral rejection of medi claim as claimed by the complainant does not per se operate as jurisdictional bar to seek redressal before the forums under the Act. It is on the strength of the above decision the instant case is admitted by this forum.
In the case of Biman Krishna Bose Versus United Insurance Co. Ltd. and Anr., the Apex Court has held that :
Where an Insurance Company under the provisions of the Act having assumed monopoly in the business of general insurance in the country and thus acquired the trappings of the State being other authorities under Article 12 of the Constitution, it required to satisfy the requirement of reasonableness and fairness while dealing with the customers. Even, in an area of contractual relations, the State and its instrumentalities are enjoined with the obligations to act with fairness and in doing so, can take into consideration only the relevant materials. They must not take any irrelevant and extraneous consideration while arriving to a decision. Arbitrariness should not appear in their actions or decisions.
It is further held that “ A renewal of an insurance policy means repetition of the original policy. When renewed, the policy is extended and the renewed policy in the identical terms from a different date of its expiration comes into force. In common parlance, by renewal, the old policy is revived and it is sort of a substitution of obligations under the old policy unless such policy provides otherwise. It may be that on renewal, a new contract comes into being, but the said contract is on the same terms and conditions as that of the original policy”.
Applying the principles laid down in the aforesaid cases, we find that the present case challenges the arbitrary action of the Insurance Company which is covered under Article 12 of the Constitution of India in rejecting the claim of the complainant on wholly untenable grounds to which we do not agree and examining the genuineness of repudiation by the Insurance Company.
Clause 4.1 of the terms and conditions of the Insurance Policy reads as under :
“ 4.1 Such diseases which have been in existence at the time of proposing this insurance pre-existing condition means any injury which existed prior to the effective date of this insurance. Pre-exiting conditions also means any sickness or its symptoms which existed prior to the insured person had knowledge that the symptoms were relating to the sickness. Complications arising from pre-existing disease will be considered part of that pre-existing condition”.
From a reading of the aforesaid clause, we find that it will apply to such disease which were in existence at the time of proposing the insurance policy i.e. prior to the effective date of the insurance. It is the case of the OP Insurance Company when the fresh policy was issued on 30.03.2013 vide policy No.345300/48/2013/3520 in the proposal form the complainant had declared that there was no preexisting complaint regarding his health that
The O.Ps in written argument contended that the complainant concealed the many material facts concerning to this case. In the present case the O.Ps have entered in to an insurance contract with the complainant and by repudiation of such claim they have defeated the very purpose of the insurance. Hence the complainant is deemed to have not suppressed any material facts and after due consideration the O.Ps have issued the policy accepting the conditions.
The O.Ps in written argument further contended that the breach of contract is committed by the complainant himself. For this we perused the case law. It is held and reported in C.P.R 2008(1) page No. 52 where in the Hon’ble National Commission observed “The insurance is a contract between the insured and insurer so the parties are governed by the terms of contract”.
We also perused the Memo of Citation filed by the Advocate for the Opposite Party No.3 i.e. Revision Petition No.1265 of 2007 ,NCDRC, The Oriental Insurance Company Ltd. Vs. Pankaj Jain, Appeal No.FA 2016/200 Chhattisgarh SCDRC, Raipur, Smt. Priyanka Agrawal Vars. Oriental Insurance Co. Ltd. and Revision Petition No.642 of 2007 NCDRC, National Insurance Co. Ltd. Vs. Ashok Kumar Gupta . After going through the aforesaid decisions of the apex court, we found that the above decisions are related to the matter of preexisting diseases. Further more the OP had not filed any documents to show that the complainant had got any preexisting ailment contrary to the policy. Further when the premium is excepted the policy runs as original.
In the above facts, circumstances & on perusal of the record, the complaint petition, documents, and referring on above Citations there exists a strong “prima-facie” case in favor of the complainant.
On the strength of the aforesaid rulings of the Apex court this forum allow this case in part. Hence to meet the ends of justice, the following order is passed. ORDER
In the result with these observations, findings & discussion the complaint petition is allowed in part on contest. Though O.P No.1 delayed payment of insurance premium but the same was due to lack of instruction from the complainant. But even if the premium was paid, policy was subsequently issued and as such the policy deems to continue as original and OP No.3 is bound to pay the mediclaim amount.
Hence, the O.P 3 is directed to settle the Mediclaim Insurance and pay the insured amount i.e. Rs.2.00,000/- along with cost of litigation of Rs.2,000/- to the complainant within 90 days from the date of receipt of this order and failing to pay the same within the stipulated period of 90 days , the OP No.3 is liable to pay 9% interest on the above awarded amount till the date of its payment.
Pronounced in open forum today on this 23rd day of April,2018 under the seal and signature of this forum.
Member Member President
Documents relied upon:
By the complainant:
- Copy of mediclaim policy – 5 Nos.
- Copy of discharge summary .
- Copy of Certificate issued by Dr.N.K.Panigrahi
- Copy of Medical Report of the petitioner.
- Copy of Reimbursement claim application
- Copy of Letter dt.19.03.2016 of OP No.2
- Copy of letter of the Complainant dt.28.03.2016 to OP No.2
- Copy of letter of OP No.2 dt.01.04.2016,11.04.16
- Copy of letter dt.22.08.2016 of the Complainant to OP No.3
- Copy of letter of OP No.3 regarding Repudiation of the Claim dt.12.09.2016
- Copy of Pass Book of OBC Bank of the Complainant
By the OP No.3:
- Copy of Prospectus of Oriental Bank Mediclaim Policy
- Copy of Discharge Summary of Complainant
President
