SMT. RAVI SUSHA: PRESIDENT

This complaint has been filed U/s 12 of Consumer Protection Act 1986, for getting an order directing opposite parties to pay an amount of Rs.1,59,925 towards Medical expenses for the treatment and an amount of Rs.1,00,000/- towards compensation for the mental agony caused to the complainant alleging deficiency of service and unfair trade practice.

            The brief facts of the complaint are that the complainant is having a savings account with OP No.1 that they are having Health Insurance policy tie up with the other OPs.  OP No.1 promised that if the complainant took a Health insurance policy from him, he will be arranged reimbursement of all medical expenses spent by the complainant.  Believing the words of OP No.1, complainant took a health insurance Policy for Rs.2,00,000/- and the premium amount was debited by OP No.1 to his account on 20/06/2017.  It is submitted that after remitting the premium amount, the complainant was issued a policy bearing Number is 02875140060000, valid from 20/06/2017 to 19/06/2018. But the OPs never issued the policy document to the complainant till this date. Even though the complainant requested the respondents several times to issue the policy document, but they did not issue the policy document so far to the complainant.  During the coverage period the complainant had undergone a checkup on 27/12/2017 at Meitra Hospital, Kozhikode for back pain.  Before the expiry of the insurance coverage period the complainant was hospitalized at Meitra Hospital, Kozhikode for “L4 to 5 Disc prolapsed with instability, Bilateral L5 radiculopathy”.  He was hospitalized from 01/03/2018 to 06/03/2018 for the treatment and spent an amount of Rs.1,59,925/-.  When the complainant applied for cashless treatment at Meitra Hospital Kozhikode, the hospital did not provide the cashless treatment to the complainant.  As such the complainant had to pay the bills issued by the hospital in cash.  So the complainant submitted his hospitalization bills for the treatment he had undergone for the above said period to the 1^st OP bank.  But the same was willfully rejected by the OPs without assigning any reasons.  It was not mentioned the reason for rejection of the policy claim.  The action of the OP in rejecting the claim of the complainant is unlawful and illegal.  In fact the complainant was covered under Medi Prime policy which was valid and in force during the hospitalization period.  The service, procedure and treatment availed by him is a covered plan benefit.  Denial of reimbursement by the OP has caused acute mental agony and distress to the complainant.  Therefore, the respondents are liable to compensate for that aspect also.  Hence filed this complaint.

            1^st OP filed version stating that the allegation that the “opposite parties” are conducting the business of providing health insurance policy under the name and style of “TATA AIG General Insurance Co. Ltd” is not applicable to this OP.  This OP is doing Banking Business.  This OP and OP No.2 and 3 are separate and different legal entities.  OP No.1 is not liable for the acts of commission or omission on the parts of OP Nos. 2 and 3 vice-versa.  OP Nos.2 and 3 are the “insurer” and the complainant is the “insured” and if during the policy period the complainant makes any claim the insurer alone is liable to settle the said claim as per the terms and conditions contained in the insurance policy issued by OP Nos.2 and 3 to the complainant.  Therefore, in case of any claim, the 2 and 3^rd OPs are the final authority for settling and paying the claim amount to the complainant on satisfying the terms of the policy and their decision in the matter is final.  This OP is therefore, not at all liable for the claim preferred by the Complainant.  The complainant on his own had selected the policy and paid the premium to OP Nos.2 and 3.  The averment that believing the words of OP No.1 the complainant took the policy is hence false.  The policy document is to be issued by the OP Nos.2 and 3, the insurer and not by this OP and in this regard the complainant did not contact this OP as alleged in the complaint.  This OP is not aware of the averments of the complaint regarding the complainant’s hospitalization, treatment undergone and the expenses incurred for the said treatment.  As the claim preferred by the complainant is to be settled by OP Nos. 2 and 3, the complainant’s claim was immediately forwarded by this OP to OP Nos.2 and 3 for settlement.  This OP has no contractual liability to settle the claim preferred by the complainant as alleged.  This OP has not committed any deficiency in services.  The complainant has not suffered any mental agony as alleged in the complainant.  Hence prayed for the dismissal of the complaint.

            OPs 2 and 3 filed written version stated that the complainant had taken a health insurance policy namely Medic Prime Policy from the OP.  Further, the policy was issued for the period from 20/06/2017 to 19/06/2018, under policy No.028751400 subject to policy terms and conditions.  That, a claim was lodged in the above policy alleging hospitalization of complainant at Meitra Hospital, Calicut. Further on receipt of the clam documents it was noted that ailment for which hospitalization claimed was with L4-L5 Disc prolapsed with instability and Bilateral L5 radiculopathy.  However, the said ailment has a specific waiting period of 2 years as per section 3© of the policy wordings.  That, it is not in dispute that the policy is in the 1^st year of coverage the claim for the said ailment is not payable in this policy in this policy.  Hence, the OP is justified in repudiating the claim stating that the claim is for the illness which has a specific two years of waiting period as per section 3© of the policy terms and conditions.  The insurance policy between the insurer and the insured represents and contract between the parties.  Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer.  The insured cannot claim anything more than what is covered by the insurance policy.”  In this case the exclusions are clearly and expressly worded, and ailment is squarely hit by the said exclusion thereof.  Hence the policy does not underwrite the risk for the said ailment in the initial two years of coverage.  Thus, the claim was rightly repudiated.  It is submitted that the claim was repudiated as per the policy terms and conditions, further the exclusion in the policy are clear and unambiguous.  Hence the claim is not payable in the policy, thus repudiated.

Further submitted that there was no denial of claim by the OP arbitrarily, as alleged in the complaint.  There is no deficiency in service on the side of the OP in settling the claim of the complaint.  Therefore, there is no deficiency in service or unfair trade practice from the side of OP.  Hence prayed for the dismissal of complaint.

            The power of Attorney holder of complainant has filed chief affidavit and was examined as Pw1.  Ext.A1 to A6 were marked.  She has been cross-examined for OPs 1 to 3.   1^st OP has not adduced oral evidence.  On behalf of 2^nd OP, the legal Manager of its Insurance Company has filed chief-affidavit and was examined as Dw1-Ext.B1 to B6 were marked on the side of OP No.2.

            After that Learned counsel of complainant has filed written argument note and learned counsel of 1st OP has also filed written argument note.  Learned counsel of OPs 2 and 3 made oral argument.

            Records has been perused.  Submissions have been considered.

            Admittedly, OPs 2 had issued the Health Insurance policy under the name and style of TATA AIG General Insurance company Ltd.  The sum insured is Rs. 2,00,000/- and the policy was valid for a period from 20/06/2017 to 19/06/2018.  Insurance policy has been placed by OP No.2 and 3 marked as Ext.B1.  It is also admitted between the parties that the complainant was admitted in Meitra Hospital, Kozhikode for back pain on 01/03/2018 to 06/03/2018 and diagnosed as L4-5 disc prolapsed with instability, bilateral L5 radiculopathy and the procedure done LA-L5 decompression and TLIF done on 02/03/2018.  Discharge summary from Meitra Hospital was produced by the complainant marked as Ext.A6.

            Complainant has pleaded that an amount of Rs.1,59,925/- was spent on the hospitalization and medical treatment of the complainant.  For proving that impatient bill Ext.A4 was produced from the side of complainant.  Besides that bill Pharmacy bill (Ext.A5) also produced.

            It is admitted by the parties that complainant had submitted claim form (Ext.B5) to OP No.2 and it was repudiated by OP No.2 through Ext.B6 stating the reason that “submitted claim is for the illness which has a specific two years of waiting period as per the policy and the policy start dated is 20/06/2017.  Hence the claim is repudiated under section 3© of the policy.

            The learned counsel for the OPs 2 and 3 made reference to the terms and conditions of the Insurance policy (Ext.B2) and it was submitted that the said disease is excluded by clause 3© of the terms and conditions of the Insurance policy.  Clause 3© read as under: Exclusions: specific waiting periods. Companies are not liable for any treatment which begins during waiting periods except if any Insured Person suffers an accident. The illness  and treatments listed below will be covered subject to a waiting period of 2 years as long as in the third Policy Year the Insured Person has been insured under an Medi Prime Policy continuously and without any break.

            Illness: arthritis if non infective; calculus diseases of gall bladder and urogenital system; cataract; fissure/fistula in anus, hemorrhoids, pilonidal sinus, gastric and duodenal ulcers; gout and rheumatism; internal tumors, cysts, nodules, ployps including breast lumps (each of anykind unless malignant); osteoarthritis and osteoporosis if age related; polycystic ovarian diseases; sinusitis and related disorders and skin tumors unless malignant.

            On the other hand, the submission of learned counsel for the complainant was that the terms and conditions of the insurance policy were not communicated to the complainants till this date nor these were explained to the complainant.

            Here complainant has not produced the neither insurance policy nor the terms and conditions before this commission.  It is also nowhere mentioned in Ext.B2 submitted by OP2 and 3 that the terms and conditions were communicated to the complainant and the insured has given signature for that.  There is no note on the Insurance policy Ext.B2 that the terms and conditions of the insurance policy were duly communicated and explained to the insured.  Even it was not pleaded by the OPs 2 and 3 in the written version that the terms and conditions of the insurance policy were communicated or explained to the insured.  Therefore there is no evidence that the terms and conditions of the insurance policy were duly communicated or explained or sent to the insured.

            It is a settled position of law by the Hon’ble Supreme Court that when the Insurance companies want to apply the Exclusion clause to deny the insurance claim, they have to prove that the exclusionary clause was duly communicated to the insured.

            OPs have taken a plea that on receipt of the claim document it was noted that ailment for which hospitalization claimed was with L4-L5 Disc prolaps with instability and Bilateral L5 radiculopathy.  However the said ailment has a specific waiting period of 2 years as per section 3(c) of the policy terms OP is justified in repudiating the claim.  Further contended that the insured cannot claim anything more than what is covered by the Insurance policy.

            In the instant case as the above terms and condition for standard policy where in the exclusion clause was included, were neither a part of the insurance nor disclosed to the complainant, OP Insurance company cannot claim the benefit of the said exclusion clause.

            Here OP 2 and 3 do not have a case that the treatment availed by the insured was not within the policy period and also the medical impatient bill Ext.A5 is not a genuine one and further complainant has not claimed for getting policy benefit.  Hence from the facts of this case and the law on the subject, OPs 2^nd and 3 Insurance company are bound to refund the amount mentioned in the Impatient bill (Ext.A5) to the complainant as he had already paid the said amount to the hospital.  Ext.A5 reveals that the bill amount is Rs.1,57,858.

From the facts of this case, the repudiation of the claim application of the complainant (Ext.B5) through Ext.B6 amounts deficiency of service on the part of Insurance Company.  Since complainant failed to prove that OP No.1 had forced the complainant to take policy and promised that OP No.1 will make arrangement to disburse all medical expenses spent by the complainant, we are of the view that there is no deficiency in service  on the part of  OP No.1  and hence OP No.1 bank is exempted from the liability.

            In the result complaint is allowed in part.  Opposite party No.2 and 3 are directed to pay Rs.1,59,925/- with 4% interest from the date of filing of this complaint till the date of realization to the complainant.  Opposite party No.1 also directed to pay Rs.15,000,/- as compensation and Rs.5,000/- cost to the proceedings of this case.  Opposite parties 2 and 3 shall comply the order within one month from the date of receipt of this order, failing which the  amount Rs.1,59,925/- carries interest @ 9 % per annum from the date of filing of this complaint till the date of realization to the complainant.  Complainant is at liberty to file execution application against opposite parties 2 and 3 as per the provisions of Consumer Protection Act 2019 for realization of the awarded amount.

Exts.

A1- Consultation and registration receipt dated 27/12/2017

A2- Consultation charge dated 01/03/2018

A3- IP bill dated 06/03/2018

A4- IP bill dated 06/03/2018

A5- Medicine bill dated 06/03/2018

A6- Discharge summary

B1- Proposal and policy copy

B2- Policy with terms and conditions

B3- Discharge summary

B4- Scan report

B5- Claim form

B6- Repudiation letter

      Sd/                                                                  Sd/                                                Sd/

PRESIDENT                                                                   MEMBER                                                   MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

                                                                           /Forward by order/

                                                                         Assistant Registrar