IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

Monday the 25^th  day of October, 2021.

                                      Filed on 26-02-2019

Present

1. Sri.S.Santhosh Kumar  BSc.,LL.B  (President )
2. Smt. P.R Sholy, B.A.L,LLB (Member)

In

CC/No.59/2019

between

Complainant:-                                                             Opposite parties:-

Sri.Sudhakara Shenoi                                           1.     The Manager

S/o Sreenivasa Shenoi                                          The New India Assurance Co.Ltd.

Sreenivas, 4/1337A                                                     Divisional office, 1^st floor,

Shastiparambu, North Cherlai                                     J&J Avenue, VCSB Road,

Mattancherry, Cochin-2                                              Near YMCA Bridge,

Ernakulam- 682002                                                     Alleppey- 688011

(Adv.Sri.Dinesh Mallan N)                                         (Adv.Sri.TS Suresh)

                                                                             2.     The Manager

                                                                                     Vidal Health Insurance TPA (P)

                                                                                     Ltd., D.No.40/3232, 2^nd floor

                                                                                     S.L Plaza, Palarivattom P.O.

                                                                                     Cochin-25,  Ernakulam

                                                                                     (Exparte)

                                                                             3.     The Manager

                                                                                     Canara bank, Mullackal branch

                                                                                     Mullackal, Alappuzha-688001

                                                                                     (Adv.Sri.M.P Venugopal)

O R D E R

SRI. S.SANTHOSH KUMAR (PRESIDENT)

Complaint filed under Sec.12 of the Consumer Protection Act, 1986. 

          Material averments briefly stated are as follows:-

          Complainant renewed his health insurance policy coverage – Medi claim insurance in 2018 with 1^st opposite party through 3^rd opposite party- broker/ agent -  Canara bank by a special scheme for their account holders.  Complainant commenced the SB account with the Canara bank in the year 2013 with A/c No.0706101049181.  Due to the attractive offer of reimbursement of entire hospitalization expenses, the complainant renewed the medi claim insurance policy through 3^rd opposite party and remitted the required premium of Rs.12,097/- on 07-04-18 to the Canara bank Alappuzha.  Complainant had disclosed about the previous continuous medical insurance since 2010 with National Insurance Company and the period of insurance was not broken.  The period of insurance with National Insurance Company was from 09-04-2017 to 08-04-2018.  In order to get strict continuity of the coverage the complainant remitted the premium and the 3^rd opposite party debited the amount from his account on 07.04.18.    On the date of renewal the complainant had submitted the previous copies of insurance.

2.      On 21-04-18 complainant received the policy schedule and collection receipt cum adjustment voucher from 1^st opposite party by ordinary post.  As per the policy schedule the insurance coverage commenced from 11.04.18 to 10.04.19 and the amount of premium charged was only Rs.10,251/-.  Since there was difference in the period of coverage and the premium amount he filed a complaint.  Complainant remitted the insurance premium of Rs.12,097/- on 07.04.18 with the 1^st  opposite parties agent Canara bank to get coverage from 09.04.18 to 08.04.19.  The opposite parties willfully mentioned the wrong date of commencement in the policy and ignored the previous policies.  1^st opposite party unilaterally altered the period of insurance and thereby changed the status of insurance without consent of the complainant.  Hence there is a deficiency in service. 

3.      In connection with chest discomfort, abdominal pain and vomiting the complainant was admitted at the emergency department of Lakshmi hospital, Ernakulam on 25.05.18 and discharged on 30.05.18.    The illness was diagnosed as acute cholecystitis with CBD dilation.  Complainant had taken medication at Lakshmi hospital and for further evaluation and expert management he was referred to Medical Trust hospital, Ernakulam on 30.05.18 with a reference letter.   On 30.05.18 itself complainant was subjected to detailed radiological examination at Medical Trust hospital Ernakulam and the result of EUS showed GB sludge.  Though the complainant first consulted medical trust hospital on 30.05.18 the date was wrongly reported in the EUS as 05.04.18 instead on 30.05.18.  Rs.5,000/- was remitted by complainant on 30.05.18 as endosonography charges.

4.      On 03.06.18 the complainant was admitted at Medical trust hospital, Ernakulam for ERCP (Endoscopic Retrograde Cholangio Pancreatography) with sphincterectomy and discharged on 05.06.18, and now he is under medication.  For the whole medication complainant spent an amount of Rs.74,026/- and thereafter OP medication is going on.  The complainant intimated the hospitalization to the 2^nd opposite party on 31.05.18 by registered post letter and not received any reply.  Thereafter on 13.07.18 complainant submitted whole documents by registered post to the 2^nd opposite party for realizing the amount.  Thereafter the 2^nd opposite party demanded certain other clarification in respect of claim and the complainant furnished it on 17.08.18 by registered post.  The 2^nd opposite party sorted the whole claim with two separate claim numbers.  Inspite of several request the claim was not settled.  Complainant had issued registered notice on 01.11.18 and intimated the agent of the 1^st opposite party.

5.      On 09.11.18 complainant received a letter from 1^st opposite party stating the denial of the claim as per clause 4.1 (Pre existing disease).   The rejection letter also showed that the complainant was admitted for ERCP on 05.04.18 whereas the policy is from 11.04.2018. If the complainant is not satisfied he was advised to approach the grievance cell.  The action of the 1^st opposite party is unilateral and malafide.  Though a grievance letter was sent on 12.12.18 and a clarification letter obtained from Dr.Sunil Mathai was sent it was ignored by the opposite parties.  The denial of the claim is a deficiency in service and caused much monitory loss to the complainant.  Hence the opposite parties may be directed to release the claim amount of Rs.74,026/-, to refund Rs.1,846/- being the excess premium collected and Rs.50,000/- as compensation.

 6.     1^st opposite party filed a version mainly contenting as follows:-

         Policy in favour of the complainant from 11.04.18 to 10.04.19 is admitted.  The expiry date of previous policy with National Insurance Company was 08.04.18.  So there was a gap for 3 days.  Moreover the previous policy with National Insurance Co. was a composite policy and it was not a tie up policy between the National Insurance Company and the 3^rd opposite party Canara bank.

7.      This opposite party received only Rs.10,251/- from the 3^rd opposite party as premium.  After the receipt of premium this opposite party issued policy with effect from 11.04.2018.    The allegation that this opposite party unilaterally altered the period of insurance is false. 

8.      The alleged medical expense of Rs.74,026/- is not correct and hence denied.  The claim was not settled since there was difference in the commencement date.   This opposite party admits a tie up policy with 3^rd opposite party Canara bank in favour of the complainant.  The policy issued by this opposite party is a fresh policy with effect from 11.04.18 to 10.04.19.  It will not cover pre existing disease.   The policy will cover all pre-existing diseases after the lapse of 48 months continuously if the policy is alive without any break.  The previous policy was not a tie up policy.   As per the information sheet rate of premium is Rs.10,251/- and sum assured is Rs.5,00,000/-. 

9.      If any policy holder who is currently insured with any insurer with tie up of Canara bank and on renewal wished to renew the policy with us, then he/ she shall be given the benefit of continuity.   There is a period of three years in the policy for pre-existing disease.  As per the terms it is clear that complainant is not entitled for the continuity benefit of previous policy with National Insurance Company, since it was not a tie up policy.  Complainant is not entitled for any relief and hence the complaint may be dismissed with cost and compensatory cost.

10.    3^rd opposite party filed a version mainly contenting as follows:-

3^rd opposite party is an unnecessary party and this Forum lacks territorial jurisdiction to entertain the complaint.  Complainant is an account holder of 3^rd opposite party but not a consumer.  3^rd opposite party is not an agent or broker of the 1^st opposite party.   There is no compulsion, persuasion from the side of 3^rd opposite party to renew the health insurance policy of the complainant.  3^rd opposite party has not assured any insurance coverage to the complainant.  There is no contract between 3^rd opposite party and the complainant. Complainant is not entitled for any relief from this opposite party and hence the complaint may be dismissed with cost. 2^nd opposite party remained exparte.

11.    On the above pleadings following points were raised for consideration :-

1. Whether there is any deficiency of service from the part of the opposite parties?
2. Whether the complainant is entitled to realise an amount of Rs.74,026/- from the opposite parties as prayed for?
3. Whether the complainant is entitled to realise an amount of Rs.1,846/- being the difference of insurance premium ?
4. Whether the complainant is entitled to realise an amount of Rs.50,000/- as compensation for non-settlement of claim in time?
5. Reliefs and cost?

12.   Evidence in this case consists of the oral evidence of PW1 and Exts.A1 to A28 from the side of the complainant and the oral evidence of  RW1 from the side of the 3^rd opposite party.  Opposite party No.1 has not adduced any oral evidence and marked Ext.B1 to B14.

13.    Point Nos.1 to 4:-

PW1 is the complainant in this case.  He filed an affidavit in tune with the complaint and marked Ext.A1 to A28. 

14.    RW1 is the senior manager of 3^rd opposite party.  He filed an affidavit in tune with the version.

15.    Complainant  who is a septuagenarian  is a  SB account holder of 3^rd opposite party M/s Canara Bank, Mullackal Branch. There was  a special insurance scheme  known as New India Canara mediclaim policy for  employees and  customers of  Canara Bank.  On 7/4/2018 complainant took a mediclaim policy and  cheque for Rs.12,097/- along with connected papers  were submitted to 3^rd opposite party.  Though the cheque was debited in his Ext.A2 Account, Ext.A1 policy was issued only from 11/4/2018 to 10/4/2019 and the premium collected was Rs. 10,251/-. Earlier complainant had a policy with M/s National Insurance Company from 9/4/2017 to 8/4/2018.   Mean while complainant became ill and was admitted at M/s Lakshmi hospital, Diwans Road, Ernakulam on 24/5/2018 and was discharged on 30/5/2018 and the illness was diagnosed as acute  Cholecystitis.   On 30/5/2018 he was referred to  M/s Medical Trust Hospital , Ernakulam and  had preliminary checkup.  On 3/6/2018 complainant was admitted at Medical Trust Hospital, Ernakulam for Endoscopic Retrograde Cholangio Pancreatography(ERCP) and discharged on 5/6/2018.   An amount of Rs.74,026/- was spend by the complainant for the treatment and he  submitted application for  reimbursement along with  connected papers including bills.  The insurance company considered the claim of  Lakshmi hospital and Medical Trust hospital separately  as two claims and both the claims were repudiated. On a contention that as per clause 4.1  there was PRE-EXISTING DISEASES/CONDITION BENEFITS will not be available for any condition(S) as defined in the policy, until 48 months of continuous coverage have elapsed, since inception of the first policy with us.

16.    As insisted by the insurance company though complainant approached the grievance cell his claim was not settled.   Aggrieved by the same the complaint is filed claiming the amount of medical bills, Rs. 1846/- collected as excess from him and Rs.50,000/- as compensation. 1^st opposite party filed a version admitting the issuance policy from 11/4/2018 to 10/4/2019.  The previous policy issued from M/s National Insurance Company ltd was only up to 8/4/2018 and so there was a gap of 3 days.  It was also contended that the previous policy with National Insurance Company was not a tie up policy with the Canara bank and so complainant is not entitled for continuity benefits.   Hence it is to be considered that the policy issued by the 1^st opposite party is a fresh policy and it will not cover any pre-existing disease. The policy will cover all pre-existing disease after the lapse of 48 months continuously alive without any break.  They had collected only an amount of Rs.10,251/- and sum assured was Rs.5,00,000/-.  So they justified the rejection of policy. 2^nd opposite party remained exparte and 3rd opposite party filed a version contenting that they are not agent or broker of the 1^st opposite party.  There was no compulsion or persuasion from the side of  3^rd opposite party to renew the health insurance policy.   According to them they have no role in accepting or rejecting the mediclaim of the complainant and so they are unnecessary party it was contented.   However the version was silent regarding the amount collected in excess.  Complainant got examined as PW1 and Ext.A1 to A28 were marked.  The Senior Manager of 3^rd opposite party was examined as RW1.  The Divisional Manager of the 1^st opposite party though filed a chief affidavit did not mount the witness box.   Ext.B1 to B14 were marked from their side.

17.    Ext.A1 policy schedule issued by the 1^st opposite party shows that the period of insurance of PW1 is from 11/4/2018 to 10/4/2019.  But according to PW1 earlier he was having another policy with the National Insurance Company Ltd which was upto 8/4/2018.  Hence on 7/4/2018 he issued a cheque to opposite party No.3 bank for Rs.12,097/-.   Ext.A2 3^rd opposite party’s pass book shows that the cheque was debited in the account of PW1 on 7/4/2018 and the particulars shown is mediclaim.  So it is crystal clear that before the expiry of earlier policy on 8/4/2018,  PW1 took another policy with the  1^st opposite party and paid the amount on  7/4/2018 ie, on the previous day of the last day of the earlier policy.  However from Ext.A1 it is revealed that the policy was issued from 11/4/2018 to 10/4/2019. In the version and the chief affidavit 3^rd opposite party contented that they are not an agent or broker of the 1^st opposite party. But the documents produced by the complainant and the 1^st opposite party shows otherwise.  In Ext.A1 policy the agency name is shown as Canara Bank. Further in Ext.B1 and B6 the name of the policy is shown as New India Canaramediclaim policy.  It is also stated in Ext.B1 that the policy is meant for employees and customers of Canara bank.  So the contention of  3^rd opposite party that they are not the agent of 1^st opposite party is utter false hood.   It is  true that from Ext.A1 it is revealed that the policy commenced only on 11/4/2018.  But from Ext.A2 it can be seen that  an amount of Rs.12,097/- was debited from the account of PW1 on 7/4/2018  ie, on the previous day  of the expiry of the earlier policy.  So  3^rd opposite party M/s Canara Bank cannot wash their hands from the liability. It is also noticed that  though an amount of Rs.12,097/- is debited from the account of PW1 on 7/4/2018 (Ext.A2),  from Ext.A1 it is revealed that  only an amount of 10,251/- was paid as premium. 3^rd opposite party has no explanation regarding the difference amount of Rs.1846/-(12,097-10,251).   Admittedly earlier PW1 was having a policy with M/s National Insurance company from 9/4/2017 to 8/4/2018.  In the complaint it is stated that he was holding a policy since 2010.  Though PW1 paid the premium amount of Rs.12,097/- on 7/4/2018 along with  relevant documents  the policy is seen issued on 11/4/2018.  It is not known as to who made the default in delaying the issuance of policy.  Poor PW1 who is a septuagenarian was under the impression that he will get continuation of policy but due to the negligent act of either opposite party No.1 or opposite party No.3 Ext.A1 policy was issued only on 11/4/2018.  Strictly speaking the liability of 1^st opposite party will arise only from 11/4/2018.  However here in this case it is to be noted that PW1 paid Rs.12,097/- on 7/4/2018 and  it was debited in his account on the very same day.   The premium amount was only Rs.10,251/-. However the policy is seen issued only from 11/4/2018. 

18.    Admittedly PW1 was admitted at Lakhsmi hospital on 24/5/2018 and   discharged on 30/5/2018.  As per Ext.A8 reference letter dtd. 30/5/218 he was referred to Medical Trust hospital for expert management.  PW1 consulted at Medical Trust Hospital on 30/5/2018 and he was admitted on 3/6/2018 for ERCP and discharged on 5/6/2018.    The total mediclaim amount of PW1 comes to Rs. 74,026/-. 1^st opposite party considered the claim of  Lakshmi hospital  and  Medical Trust hospital separately and as per Ext.A15 dated. 9/11/2018 and Ext. A15(a)  dated 15/1/2018  repudiated both claims on a contention that PRE-EXISTING DISEASES/CONDITION BENEFITS will not be available for any condition(S) as defined in the policy, until 48 months of continuous coverage have elapsed, since inception of the first policy with us. Though in Ext.A15 it is stated that there was pre-existing disease the nature of disease is not mentioned.  In other words the policy holder was kept in dark regarding the pre-existing disease without explaining the same.  From Ext.A1 it can be seen that the policy commenced on 11/4/2018 and Ext.A15 it can be seen the PW1 was admitted at Lakshmi hospital on  24/5/2018 and discharged on 30/5/2018.  From Ext.A15(a) it is seen that  PW1 was admitted at Medical Trust hospital on 3/6/018 and discharged on5/6/2018.  So both the treatments are well within the period of insurance and so 1^st opposite party cannot repudiate the claim on a contention that there was pre-existing disease.  In the EVS report furnished from Medical Trust hospital the date is noted as 5/4/2018.  However Ext.A17 clarification letter was issued by Dr. Sunil.K.Mathai attached  Medical Trust hospital stating that the date noted as 5/4/2018 is  erroneous  and actually EVS was done on 30/5/2018.  The connected records produced by PW1 also shows that  EVS was done only on 30/5/2018.   By Ext.A10 copy of bill dated 30/5/2018 PW1 had paid Rs. 320/- being registration charges   and consultation fee. It will show that PW1went to Medical Trust Hospital only on 30/5/2018 that is why registration charges was collected from him. Ext.A28 also shows that PW1 was first consulted at Medical Trust Hospital on 30/5/208.  Further Ext.A11 is a receipt dtd.30/5/2018 by which Medical Trust hospital collected Rs.5000/- for endosonography. It will also shows that EVS was done on 30/5/2018 and the  date was wrongly mentioned in the report as 5/4/2018.   Since the  policy of PW1 commenced on 11/4/2018 and EVS was done on 30/5/2018 ie, during the period of insurance policy, 1^st opposite party cannot reject the claim on that ground. 

19.    As discussed earlier though it was contented by the 1^st opposite party in the repudiation letter that there was pre-existing disease no documents is available to prove the same.  It is not even mentioned in the repudiation letter as what was the pre-existing disease.  If the nature of pre-existing disease is disclosed  then only PW1 can give explanation regarding the same.   1^st opposite party may be relying upon Ext.B11 discharge summary issued from Medical Trust hospital.  In Ext.B11  Diagnosis:

known case of CAD(EF:55%) 

Type II diabetes mellitus

Hypertension

Choledocholithiasis with CBD stone

ERCP with  Sphincterectomy.

20.    However  these  not put to PW1  while he was in the witness box.  Relying upon Ext.B1 learned counsel appearing for the 1^st opposite party contented that PW1 is not entitled for continuity benefits since there was a break of 3 days and so that the earlier policy was not  a tie- up policy.  As discussed earlier PW1 cannot be blamed for the break. Prior to the  last day of previous policy he  contacted 3^rd opposite party Canara Bank and paid premium on 7/4/2018.  For the best reason known to  opposite party 1 and 3 the policy was issued only from 11/4/2018 to 10/4/2019.   So PW1 cannot be blamed for the break of policy.  

21.    There is yet another hurdle in this case. According to PW1 he was served with Ext.A1 containing 2 pages by ordinary post.  Ext.A1 is collection receipt cum adjustment voucher and the policy schedule.  The details of policy and its conditions were not supplied to PW1 and was produced by 1^st opposite party and marked as Ext.B1.    As held by the Hon’ble Supreme Court in 2000 1CCC 61 NS ( M/s Modern Insulators Ltd  Vs.  The Oriental Insurance Co.Ltd.)

1. Insurance – Principle of utmost good faith – insurance claim not  settled on the basis of exclusion clause – said clause not  communicated to appellant –  whether the respondent insurance company can claim the benefit of the said exclusion clause? – held no.

22. So here in this case also since the exclusion clause which was produced and marked as Ext.B1 was not communicated to PW1.1^st opposite party cannot take shelter under the exclusion clause and repudiate the policy.It was held by the Hon’ble National Consumer Disputes Redressal Commission in 2015 1 consumer 54 NS (Bajaj Allianz General Insurance Co. Ltd  Vs.              Smt. Achala Rudraniwas Marde)

“Health Insurance Cover – evidence by complainant that the opposite party provided only 1 ½page policy- clauses forms and conditions were not attached – held that non- disclosure of terms and conditions isviolation of utmostgood faith which is the base of insurance contract – repudiation of policy – unjust and arbitrary.”

Here in this case also PW1 was provided with only two pages (Ext.A1) of the policy.So as held by the decisions supra 1^st opposite party cannot repudiate the claim on the basis of exclusion clause.

In the resultcomplaint is allowed in part.

B) 3^rd opposite party is directed to refund Rs. 1846/- along with interest @ 9% from 7/4/2018 till realization to the complainant.

C) Complainant is allowed to realize an amount of Rs.15,000/- each as compensation from 1^st and 3^rdopposite parties.

The order shall be complied within one month from the date ofreceipt of this order.

Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 25^th   day of October, 2021.

   Sd/- Sri.S.Santhosh Kumar(President)

                                              Sd/-Smt. Sholy.P.R(Member)

Appendix:-Evidence of the complainant:-

PW1                    -        Sudhakara Shenoy( Complainant)

Ext.A1                -        Original Collection Receipt cum Adjustment Voucher

Ext.A2                -        Attested Copy of Bank Pass book      

Ext.A3                -        Copy of  Protest Letter issued to 1^st OP

Ext.A4                -        Copy of Intimation Letter issued to 2^nd OP

Ext.A5                -        Original Postal Registration Slip dtd. 2/6/18

Ext.A6                -        Copy of Covering Letter

Ext.A7                -        Original Postal Registration Slip dtd.13/7/18

Ext.A8                -        Copy of reference Letter issued by Lakshmi Hospital

Ext.A9                -        Copy  of discharge Summary Medical Trust Hospital

Ext.A10              -        Copy of Bill issued by Medical Trust Hospital dtd.30/5/18

Ext.A11              -        Copy of Bill issued by Medical Trust Hospital dtd.30/5/18

Ext.A12              -        Copy of Leter issued   to 1^st opposite party (Sub to Obj)  

Ext.A13              -        Original Postal Registration Slip.

Ext.A14              -        Acknowledgment Card

Ext.A15              -        Copy of denial letter issued by 1^st OP

Ext.A16              -        Copy of letter issued by complainant

Ext.A17              -         Copy of letter issued by Dr. Sunil Mathai

Ext.A18              -        Original Postal Registration Slip

Ext.A19              -        Original Acknowledgment Card

Ext.A20              -        Original previous insurance Policy

Ext.A21              -        Original previous insurance Policy with clause

Ext.A22              -        Copy of letter dated.11/1/2019

Ext.A23              -        Original Postal registration Slips

Ext.A24              -        Original Policy issued by New India Assurance Co.

Ext.A25              -        Original cover addressed to the complainant

Ext.A26              -        Original repudiation letter issued by 1^st OP

Ext.A27              -        Copy of discharge summary Lakshmi Hosptial ,Ekm.

Ext.A28              -        Copy of patient  Registration Card. Medical Trust  Hospital

                                       Ernakulam.

Evidence of the opposite parties:-

RW1                    -        Sreekumar.P(Witness)

Ext.B1                 -        Copy of Insurance Policy

Ext.B2                 -        Copy of National Insurance Policy

Ext.B3                 -        Copy of Rejection Letter

Ext.B4                 -        Registered letter

Ext.B5                 -        Registered letter

Ext.B6                 -        New India Flexi Floater Group Mediclaim Policy.

Ext.B7                 -        Canara Bank Circular dtd. 16/62017

Ext.B8                 -        Endoscopy Report dtd. 30/5/2018

Ext.B9                 -        Echocardiogram Report dtd. 4/6/2018

Ext.B10               -        Laboratory Report

Ext.B11               -        Discharge Summary

Ext. B12              -        Prescription/Summary

Ext.B13               -        Medical Certificate

 Ext. B14             -          Bill/Receipt

///True Copy ///

To     

          Complainant/Oppo. party/S.F.

                                                                                                     By Order

                                                                                                Senior Superintendent

Typed by:- Br/-

Compared by:-