Complainant Satish Kumar vide the present complaint filed U/S 12 of the Consumer Protection Act, 1986 (hereinafter for short The Act) for issuance of the necessary directions to the titled opposite party to pay Rs.2,00,000/- alongwith interest @ 18% P.A. from the date of filing of complaint till its realization and opposite parties be further directed to pay Rs.5,000/- as litigation expenses to him, in the interest of justice.
2. The case of the complainant in brief is that he had account in the bank of the opposite party no.2 and its Manager and employees have compelled him to take insurance policy from the opposite party no.1 as their bank had tie up with the opposite party no.1 and they are acting as Agent of the opposite party no.1, so he got himself and his wife Asha Rani, Daughter Sneha and son Sparsm insured under the Policy Family Floater Plan i.e. Mediprime vide Insurance Policy No.0200156100 which was commenced on 11.4.2013 and valid upto 10.4.2014. He paid premium of Rs.10,685/-. As per the policy schedule, the opposite party is to pay medical claim upto Rs.3,00,000/- which is evident from the policy of the schedule. He has further pleaded that Sparsm his son all of sudden had some problem and he got admitted on 12.9.2013 in Artemis Hospitals, Artemis Medicate Services Ltd. Gurgaon Haryana. He was admitted on 12.9.2013 and was remained there under treatment and discharged on 21.9.2013 and he spent Rs.2,00,000/- on his treatment. He submitted his medical claim to the opposite party but the opposite party illegally repudiated his claim on 18.9.2013. Thus there is deficiency in service on the part of the opposite parties. Hence this complaint.
3. Upon notice, the opposite party No.1 appeared through its counsel and filed its written version taking the preliminary objections that the complainant has no cause of action to file the present complaint; the complainant has not come to the Forum with clean hands and as such not entitled for any relief and the present complaint is liable to be dismissed; the present complaint is not maintainable and since the son of the complainant had pre existing illness before the inception of the policy with the opposite party, cashless was denied to him as it was violation of Policy Condition Section 3 (d) and also the proposal form clearly states that pre-existing deceases are not covered under the policy. On merits, it was submitted that since the son of the complainant was suffering from pre-existing disease and which was in violation of policy terms and conditions, declaration made in the proposal form. The complainant violated one of the essential Principles of Insurance i.e. The Principle of Utmost Good Faith wherein the complainant knowingly with a fraud intention has not disclosed that his son was suffering from a disease at the time of taking the policy from the opposite party. Also that the complainant has violated Section 3 of the Policy Terms and condition which clearly states that “Pre-existing Conditions will not be covered until 48 months of continuous coverage have elapsed, since inception of the first MediPrime Policy with Us.” All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.
4. Upon notice, the opposite party No.2 appeared through its counsel and filed its written version taking the preliminary objections that the complaint is not maintainable against the opposite party as the complainant is not consumer of the opposite party; opposite party no.2 cannot carry on insurance business as per the provisions of Banking Regulations Act 1949, therefore does not offer insurance products; it is settled principal of law u/s 230 of The Indian Contract Act that an agent can neither sue nor be sued except under the special circumstances mentioned therein and the present complaint is not maintainable as there is no deficiency in service on the part of the opposite party Bank as defined under section 2 (1) (o) of the Consumer Protection Act 1986. On merits, it was submitted that complainant has a bank account with the opposite party. It was wrong and denied that opposite party have compelled the complainant to purchase the insurance policy and the complainant has to put to the strict proof thereof. It was further submitted that complainant was explained about all the terms and conditions of the policy by the Financial Planning Consultant of the opposite parties after which the complainant had given his consent to go ahead with the policy. The complainant has opted for the said insurance policy after understanding its pros and cons and various features of the said policy. There is no contract between complainant and opposite party no.2, hence the opposite party may be deleted as the party and complaint is liable to be dismissed as against opposite party no.2. It was admitted that opposite party is corporate/referral agent/facilitator of opposite party no.1. The complainant is not consumer of the opposite party as the agent is a facilitator for insurance company only. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.
5. Complainant tendered into evidence his own affidavit Ex.C1 along with the other documents exhibited as Ex. C2 to Ex.C18 and closed the evidence.
6. Counsel for the opposite party no.1 tendered into evidence affidavit of Sh.Mohamad Azhar Wasi Head North Zone Ex.OP-1, alongwith the other documents Ex.OP2 to Ex.OP6 and closed the evidence.
7. Sh.Nikhil Kaushal, Assistant Branch Head Axis Bank of opposite party no.2 tendered into evidence his own affidavit Ex.OP-2/1 and closed the evidence.
8. We have thoroughly examined the available documents/evidence on the records so as to interpret the meaning and purpose of each document and also the scope of adverse inference on account of some documents ignored to be produced by the contesting litigants against the back-drop of the arguments as put forth by the learned counsels of the present contestants. We find that the present dispute has arisen on account of (Ex.OP2) the repudiation/ denial dated 18.09.2013 by the OP1 insurers of the ‘cash less service’ at the hospitalization of Master Sparsh (S/o Satish Kumar, the complainant) who was duly covered under the applicable Insurance Policy # 0200156100 (Ex.C2) valid during that period. Further, the medical expenses Bills Ex.C4 to Ex.C17 (allegedly aggregating to Rs.2.00 Lac) had to be paid by the complainant with no reimbursement from the OP1 insurers on the ground of ‘pre-existing disease’ as per the affidavit Ex.OP1. No doubt, the Discharge Card Ex.OP4 proves that the patient Master Sparsh was hospitalized at K.D. Hospital, Amritsar; on 21.10.2011 (3 months in age) diagnosed for ‘Acute Hydrocelptalia’ etc and subjected to appropriate surgery; but no cogent evidence has been produced on the records of the present proceedings that the current hospitalization/ diagnosis/medical treatment (in question) has been for the same ‘ailment’. No doubt, the complainant produced Medical Report Ex.C18 dated 12.09.2013 does indicate ‘difficulty in standing since 10-15 days’ with past history as: “The child is an operated case of VP shunt who had got operated in Amritsar at 3 months of age . ……. .However since the past 10-15 days he has been having difficulty in standing as his left leg buckles down easily”. However, there has been no mention of ‘recurrence’ etc of some pre-existing disease etc. Thus, we find that the evidence as available on records does not prove that the current ailment has been a pre-existing disease.
9. In the light of the all above, we partly allow the present complaint and thus ORDER the OP1 insurers to settle the impugned claim on merits strictly in terms of the related policy in accordance with the IRDA guidelines on ‘settlement of claims’ besides to pay Rs.5,000/- as compensation and Rs. 3,000/- as litigation expenses to the complainant within 30 days of receipt of the copy of these orders otherwise the aggregate awarded amount shall carry interest @ 9% PA from the date of the orders till actual payment.
10. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Naveen Puri)
President
Announced: (Jagdeep Kaur)
May 06, 2016 Member
*MK*
