Tamil Nadu

South Chennai

CC/167/2016

M/s.M.Shakila Banu - Complainant(s)

Versus

The Manager, Policy serving Branch, Bajaj Allianz Life Insurance Company Ltd - Opp.Party(s)

R.Abdulhakim and others

16 Aug 2022

ORDER

Date of Complaint Filed : 12.05.2016

Date of Reservation      : 15.07.2022

Date of Order               : 16.08.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B. JIJAA, M.L.,                                            : PRESIDENT

                        THIRU. T.R. SIVAKUMHAR, B.A., B.L.,           :  MEMBER  I 

                       THIRU. S. NANDAGOPALAN., B.Sc., MBA.,     : MEMBER II

 

CONSUMER COMPLAINT No. 167/2016

TUESDAY, THE 16^th DAY OF AUGUST 2022

M.Shakila Banu,

W/o, Mohmed Iqbal,

No.6, Nabinayakam Street,

Thiruvannamalai – 606601.                                                 ... Complainant                

 

..Vs..

1.The Manager,

   Policy Serving Branch,

   Bajaj Allianz Life Insurance Company Ltd,

   Thiruvannamalai.

 

2.The General Manager,

   Bajaj Allianz Life Insurance Company Ltd,

   Coimbatore.                                                            ...Opposite Parties

 

******

Counsel for the Complainant          : M/s. R. Abdulhakim

Counsel for the Opposite Parties     : M/s. S. Namasivayam

 

        On perusal of records and after having heard the oral arguments of the Counsel for the Complainant and the Counsel for the Opposite Parties, we delivered the following:

ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1.   The Complainant has filed this complaint as against the Opposite Parties under section 12 of the Consumer Protection Act, 1986 and prays to payment of Rs.2,66,847/- and for payment of interest of 18% p.a from the date of petition until payment of the award amount along with cost.

2.     The averments of Complaint in brief are as follows:-

The Opposite Parties had marketed a medical insurance policy scheme known as Bajaj Allianz Family Care First. During the year 2009, the Complainant’s husband B.Muhamed Iqbal had joined in the Opposite Parties' medical insurance scheme from 28.03.2009 under Policy No. 0124460412. In the said policy the Complainant in her capacity as the wife of Mohamed Iqbal was also covered under the policy called "Dependent members". The Complainant's husband was regularly paying the premium amount of Rs. 8,386/-. The Complainant's husband Mohamed Iqbal died on 20.03.2012. Thereafter the Opposite Parties revoked the earlier policy of Mohamed Iqbal. The Opposite Parties have advised the Complainant that she should take a new policy in order to get medical insurance cover under Bajaj Allianz Family Care First. The Complainant became a subscriber to the Bajaj Allianz Family Care First Medical Insurance Policy from 09.06.2012 and has been paying an annual permium of Rs. 4,438.22 paise regularly until then. The policy Number is. 0270504717. As per the terms of the policy the Complainant shall get a reimbursement upto Rs. 2 lakhs in respect of any expenditure incurred for taking treatment for the illness of the Complainant. She was affected by an illness called Urinary Tract Infection and Obstructive Uropathy. The Complainant got admitted into Apollo Hospital, Chennai on 24.10.2014. The Complainant underwent an operation called Ureteroscopy and DJ Stenting and was discharged from hospital 29.10.2014. In respect of the treatment a total sum of Rs. 1,81,847/- was paid by the Complainant to Apollo Hospitals. The Complainant made a claim to the company of the Opposite Parties for reimbursement of the said sum of Rs. 1,81,847/- towards the medical expenses incurred by the Complainant. The Opposite Parties company sent a repudiation letter dated 13.01.2015 refusing to admit the claim of the Complainant. The letter of repudiation dated 13.01.2015 the Opposite Parties has stated under clause 6(b) of the policy, the company shall not be liable for treatment following the diagnosis within the waiting period. The Opposite Parties had also referred clause 7(d) on the policy according to which a policy holder shall not be entitled to a claim in respect of certain diseases within 2 years of the policy commencement date. The claim of the Complainant does not fall within the purview of both the policy clauses 6(b) and 7(d). The Complainant became a subscriber to the medical policy as on 10.06.2012; but the Complainant got admitted for treatment into the hospital on 24.10.2014, which is clearly after the period of 2 years from the date of policy. In fact, the Complainant became a beneficiary of the medical scheme right from the date of policy of her husband on 28.03.2009, since the Complainant happened to be a dependent member. The treatment given to the Complainant was for obstructive Uropathy and the said decease never comes within the catagery of deceases covered under 7(d) of the policy clause. Any clause incorporated in the terms and conditions of the policy with a  view to abrogatethe liability of the company amounted to unfair trade practice and the same is not binding upon the Complainant. The mediclaim policy is a contract of indemnity and the insurer is liable to reimburse the Complainant without any unreasonable terms and conditions. Under sec. 125 of the Indian Contract Act, the liablity of the indemnifier is absolute and the insurer cannot put any qualified liability. Now only, the Complainant understands that these types of mediclaim policy floated by the company of the Opposite Parties are only to extract money from the public without having any bonafide intention to honour the commitments towards their policy holders. The act of the Opposite Parties amounted to deficiency of service. Hence the complaint.

4. Written Version filed by the Opposite Party in brief is as follows:-

The Complainant became a beneficiary of the medical scheme right from the policy of her husband on 28.03.2010 since the happened to be dependent member are denied as totally incorrect. After the initial payment of a premium amount of Rs 9423/-, the policy holder had not paid any further premiums even though the due date for the next premium was 28-03-2010. However, even after the expiry of grace period of one month the policyholder did not pay the premium amount and as such, the policy was terminated on 28-04-2010. As such the policy of the Complainant's policy had lapsed and was not renewed and none could benefit out of it.  

 The policy of Mr.B. Muhamed Iqbal.B bearing No. 0124460412 for a period of 3 years commenced on 28-03-2009.

Clause 6(b) on 'Exclusions' under the terms and conditions of the policy availed by the Complainant read as follows.

The company shall not be liable to make any payment if Hospitalization or medical expenses or claims are attributable to, or based on, or arise out of, or are directly or indirectly connected to any of the following:

(b) Hospitalization and/or treatment within the waiting period and Hospitalization and/or treatment following the diagnosis within the waiting period' and

Clause 7d of the terms and conditions dealing with 'Waiting period' read as below. The Company shall not be liable to make any payment ever during the currency of the policy if claims are made due to:

(d) Any of the following illnesses if diagnosed or Hospitalization medical expenses incurred due to the following within two years of the policy commencement date or date of revival whichever is later: i) Kidney stone/ Ureteric stone/ Lithotripsy ii) Cancer of any kind iii) Treatment of any kind of joint disorder: Excludes Arthritis (2 year waiting period), Total knee and hip replacement and Arthroscopy (4 year waiting period) iv) Cataract, Hysterectomy. Cholelithiasis, Choledocholithiasis, Surgery of Gall bladder and Bile ducts excluding malignancy, Surgery of Benign Prostatic Hypertrophy, Hernia (Inguinal), Hemorrhoids, Anal Fissure, Fistula-in-anus, Exploratory Laparotomy, Lapchole, diagnostic laparoscopy, any gynaecological disease, Hydrocoele, Fibroids.

 In the circumstances the allegations that as per the terms and conditions of policy, in law and contract the Opposite Parties are liable to pay the Complainant in respect of medical expenses meted out by the Complainant for the treatment are denied as absolutely baseless and the Complainant is put to strict proof of the same. In fact the communication of repudiation clearly highlighted the policy conditions.                                                                                                                                                                                                                                                                                                                               The Complainant's reference to section 125 of Contract Act is not relevant to the facts and circumstances of the case. Section 125 is contract of indemnity where 'the promisee in a contract of indemnity, acting within the scope of his authority, is entitled to recover from the promisor-all damages, all costs and all sums paid based on promise. On the other hand mediclaim is a contract of insurance based on utmost good faith and subject to the terms of the policy. Having signed agreement and it is not open to the Complainant to question the terms of the agreement to suit her purpose. Hence prayed to dismiss the complaint.

2.      The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-4  were marked.   

The Opposite Parties submitted his Proof Affidavit and Written Arguments. On the side of the Opposite Parties, documents Ex.B-1 to Ex.B-2  were marked.      

5.     Points for Consideration

1. Whether there is deficiency in service on the part of the Opposite Party?

2. Whether the Complainant is entitled for reliefs claimed?

3. To what other reliefs the Complainant is entitled to?

Point No.1:-

Upon perusal of Ex.A-1, the Insurance Policy dated 10.06.2012 issued by the Opposite Party, it is evident that the Complainant had taken Medical Insurance Policy from the Opposite Party bearing  Policy No.0270504717 for a period of three years commencing from 09.06.2012 to 08.06.2015 with annual premium of Rs.4,438.22 and the sum assured is Rs.2,00,000/-. As per Ex.A-2, the Discharge Summary dated 29.10.2014 the Complainant had got admitted in the Apollo Hospital, Chennai on 24.10.2014 for Urinary Tract Infection and Obstructive Uropathy. The Complainant had underwent an operation known as Ureteroscopy and DJ stenting and was discharged on 29.10.2014. The Complainant had spent a sum of  Rs.1,81,847/- for her treatment at Apollo Hospital as found in Ex.A-3. Being a Mediclaim Policy Holder she had made a claim to the Opposite Party  for reimbursement of the medical expenses incurred by the Complainant, which was repudiated by the Opposite Party by its letter dated 13.01.2015 as found in Ex.A-4, for the reason that as per CT report dated Nov. 2012, there was evidence of renal calculus, which is in waiting period of the policy and as per policy, disease diagnosed in waiting period are not payable by extracting the relevant clause of the policy given below: Clause 6(b) ‘Exclusions’:

The Company shall not be liable to make anypayment if Hospitalization or medical expenses or claims are attributable to, or based on, or arise out of, or are directly or indirectly connected to any of the following:

(b) Hospitalization and / or treatment within the waiting period and Hospitalization and / or treatment following the diagnosis within the waiting period’ and

Clause 7 (d) ‘Waiting Period’

The Company shall not be liable to make any payment ever during the currency of the policy if claims are made due to :

Any of the following illnesses if diagnosed or Hospitalization or medical expenses incurred due to the following within two years of the policy commencement date or date of revival which ever is later: i) Kidney stone / Ureteric stone / Lithotripsy ii) Cancer of any kind iii) Treatment of any kind of joint disorder : Excludes Arthritis ( 2 year waiting period), Total knee and hip replacement and Arthroscopy (4 year waiting period) iv) Cataract, Hysterectomy, Cholelithiasis, Choledocholithiasis, Surgery of Gall Bladder and Bile ducts excluding malignancy, Surgery of Benign Prostatic Hypertrophy, Hernia (Inguinal), Haemorrhoids, Anal Fissure, Fistula-in-anus, Exploratory Laparotomy, Lapchole, diagnostic laparoscopy and gynaecological disease, Hydrocoele, Fibroids.’

The alleged CT scan, Ex.B-2,Pg 36 relied by the Opposite Party that  on 24.11.2012 shows

“Large calculus measuring 14 mm (1300 HU) seen in the right distal ureter just abovevesico ureteric junction

Two small calculi measuring 5 mm (700 HU) and 7 mm (720 HU) also seen in the right distal ureter just above the larger calculus”

However the final portion of the CT Scan reads

“Impression:

…..

No evidence of renal calculi”

Hence the reason for rejection of the Mediclaim of the Complainant, stating that the Complainant had undergone treatment for Right Renal Calculi with obstructive Uropathy and the CT report dated Nov.2012 there is evidence of renal calculus  which is in waiting period of the policy is not sustainable. Moreover, the Complainant had taken policy on 10.06.2012, however, she has undergone treatment in the hospital on 24.10.2014 which is after the 2 years waiting period from the date of policy.

Considering the facts and circumstances of this case and the Exhibits marked on the side of Complainant and the Opposite Party, this Commission is of the view that the Opposite Party by repudiating the Mediclaim of the Complainant during the subsistence of the Policy on the ground of illness during the waiting period when  there was no illness during the waiting period as mentioned in clause 7(d) and the Complainant having taken treatment after the waiting period of 2 years from the date of policy, had committed deficiency in service. Accordingly Point No.1 is answered.

Point No.2 and 3:-

As discussed and decided Point No.1 in favour of the Complainant, the Opposite Party is liable to pay the claim amount of  Rs.1,81,847/- and a sum of  Rs.20,000/- towards the deficiency of service and mental agony caused to the Complainant along with cost of Rs.3000/-. Accordingly, Point No.2 is answered in favour of the Complainant. As Point Nos.1 and 2 are answered in favour of the Complainant, the Complainant is not entitled for any other reliefs. Accordingly, Point No.3 is answered.

In the result the complaint is allowed in part. The Opposite Party is directed to pay the claim amount of  Rs.1,81,847/- (Rupees One Lakh Eighty One Thousand Eight Hundred and Forty Seven Only) with 6 % interest from the date of the complaint i.e., 20.05.2016 till date of realization and a sum of  Rs.20,000/-(Rupees Twenty Thousand Only) towards the deficiency of service and mental agony caused to the Complainant along with cost of Rs.3000/-(Rupees Three Thousand Only), within 8 weeks from the date of receipt of this order, failing which the above amounts shall carry interest at the rate of 6% p.a from the date of this order till the date of payment.

In the result the Complaint is allowed.

Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 16^th day of August 2022.  

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                 B.JIJAA

         MEMBER II                       MEMBER I                        PRESIDENT

 

List of documents filed on the side of the Complainant:-

 

Ex.A1	10.06.2012	Copy of Xerox copy of policy issued by Bajaj Allianz care to the Complainant
Ex.A2	29.10.2014	Copy of Xerox copy of discharge summary issued by the Apollo Hospital, Chennai
Ex.A3	29.10.2014	Copy of Xerox copy of the Bill from 24.10.2014 to 29.10.2014 issued by the Apollo Hospital Chennai
Ex.A4	13.01.2015	Copy of Repudiation letter issued by the Opposite Parties to the Complainant

 

List of documents filed on the side of the Opposite Parties:-

 

Ex.B1	08.06.2012	Copy of Proposal form for Health plan with Terms and Conditions
Ex.B2	24.10.2014	Copy of Claim Form, discharge summary and Repudiation

 

 

 

S. NANDAGOPALAN               T.R. SIVAKUMHAR                   B.JIJAA

         MEMBER II                       MEMBER I                         PRESIDENT