BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.514 of 2019
Date of Instt. 29.10.2019
Date of Decision: 07.08.2024
Smt. Pushpa Rani, aged 74 years, w/o late Shri Puran Chand Arora, S. R. No.153917 R/o House No.189, Dilbagh Nagar Near Bawa Lal Dyal Mandir, Jalandhar-144002. Through her LRs:-
a) Sushma Arora W/o Pardeep Malik D/o Late Shri Puran Chand Arora R/o Kangra Colony, Amritsar.
b) Manju Bala W/o Paramjit Kumar D/o Late Shri. Puran Chand Arora R/o H.No. 6. Gharrma Patti, Samana, Patiala.
c) Mamta Arora W/o Rakesh Kumar D/o Late Shri Puran Chand Arora R/o H. No.116, Karol Bagh, Near GNDU Campus, Ladhewali Road, Jalandhar.
d) Deepak Arora S/o Late Shri Puran Chand Arora R/o H. No.189, Dilbagh Nagar, Basti Guzan, Jalandhar.
e) Jagdish Arora S/o Late Shri Puran Chand Arora R/o H. No.189, Dilbagh Nagar, Basti Guzan, Jalandhar.
..........Complainant
Versus
1. The New India Assurance Company Limited, Divisional Office no.2, (361000), 356, Guru Teg Bahadur Nagar, Jalandhar- 144003, Through the senior Divisional Manager.
2. Life Insurance corporation of India, Divisional Office, "Jeevan Parkash", Model Town Road, Jalandhar-144001, Through its Senior Divisional Manager.
3. M.D, India Health Insurance TPA Private Limited, S.No-46/1, E-Space, Building A2, 3rd Floor, Vadgaonsheri, Pune-Nagar Road, Pune-411014 (Maharashtra)
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Amit Sharma, Adv. Counsel for Complainant.
Sh. R. K. Sharma, Adv. Counsel for OPs No.1 & 3.
None for OP No.2.
Order
Dr. Harveen Bhardwaj, (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the complainant (now deceased) retired as Steno on 28.02.1998 from the service of OP No.2. The employees were covered under the contributory scheme for reimbursement of hospitalization and maternity expenses to all classes of its in service employees/retired employees alongwith their dependants/additional dependants covered under LIC Group Mediclaim Insurance Policy for sum insured depending upon their basic/salary/pension for normal and optional coverage of risk. The scheme is a regulated by Group Mediclaim Policy covering against risk from any disease suffered from any illness or injury and surgical operation during the period of insurance stated in schedule or during continuance of the policy of renewal. The complainant wife of retiree deceased employee has been covered under Group Mediclaim Insurance Policy of LIC employees and its retiree ever since while in active service and after superannuation continuously and retiree death without any gap or default. Puran Chand Arora retiree husband of the complainant to her misfortune and ill luck expired on 07.12.2016. After unfortunate death, the complainant being widow and co-insured intimated the unfortunate death of her husband to OP No.2. The cashless facility for hospitalization was applied through Patel Hospital Pvt. Ltd, Jalandhar where her husband had been under treatment as inpatient on 23.11.2016. The OP No.3 declined cashless facility on 24.11.2016 to said Hospital. During the hospitalization and treatment, the husband of the complainant expired on 07.12.2016 in Fortis. The complainant after the demise of her husband submitted two separate mediclaim prescribed Claim Form A and B alongwith all relevant supportive document of treatment firstly taken from Patel Hospital Pvt. Ltd. and secondly from Fortis Hospital, Ludhiana to OP No.3 through OP No.2. All the documents are with the OPs No.2 and 3, but the same was repudiated on the ground that the patient is having history of chewing use of tobacco as per terms and conditions use oif tobacco leading to cancer is excluded. Hence claim is not payable. The OP No.3 repudiation of claim on hyper technical ground is not sustainable since OP No.3 TPA is not permitted to settle and reject and make any deduction as per Section 33 (c) HIR 2016 and the claims reasons for such repudiation of claim, as per Section 33 (d) (In order to prove their respective versions, both the parties produced on the file their respective evidence.) HIR, 2016 but OPs have not adhered to and violated the same. The denial of mediclaim has been made wrongly, arbitrarily, malafide and illegally and unauthorized by OP No.3 and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay mediclaim expenses in the sum of Rs.2,53,030/- paid for hospitalization with interest @ 12% per annum from the date of death of Puran Chand Arora husband of the complainant upto the date of payment/reimbursement of mediclaim. Further, OPs be directed to pay a compensation of Rs.50,000/- for causing mental tension and harassment to the complainant and Rs.10,000/- as litigation expenses.
2. Notice of the complaint was given to the OPs and accordingly, OPs No.1 & 3 filed their joint written reply and contested the complaint by taking preliminary objections that the complaint is not maintainable against the OPs No.1 and 3 as such, the same is liable to be dismissed. It is further averred that the claim of the complainant was efficiently handled and processed by the MD India Health Insurance TPA Pvt. Ltd., the third party administrator under the policy and repudiated the same as per terms and conditions of the insurance policy after due application of mind and the complainant was informed accordingly vide letter of repudiation dated 02.04.2018 produced by the complainant. It is further averred that there is no deficiency in service or negligence or unfair trade practice on the part of the OPs. Repudiating the claim which is not payable as per terms and conditions of the insurance policy does not amount to any deficiency in service or negligence or unfair trade practice on the part of the OPs. On merits, the factum with regard to taking insurance policy by the complainant is admitted. It is also admitted that the husband of the complainant was expired on 07.12.2016. The factum with regard to lodging the claim by the complainant and repudiation of the same is also admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. OP No.2 filed its separate written reply and contested the complaint by taking preliminary objections that the complaint is not maintainable in the present form nor under the law, rather the complaint is infructuous. It is further averred that the complaint is bad for non-joinder and mis-joinder of proper party. It is further averred that the complaint is false and frivolous to the knowledge of the answering OP No.2. It is further averred that the complainant has no cause of action to file the present complaint. The complainant has not come to the Court with clean hands. On merits, the factum with regard to taking insurance policy by the complainant is admitted. It is also admitted that the husband of the complainant was expired on 07.12.2016. The factum with regard to lodging the claim by the complainant is also admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
4. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.
5. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
6. We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for the complainant very minutely.
7. The husband of the Smt. Pushpa Rani, the father of the LRs, namely Puran Chand Arora retired as a Steno on 28.02.1998 from OP No.2. The employees were covered under the contributory scheme for reimbursement of hospitalization and maternity expenses to all the employees. The schemer is regulated by group mediclaim policy covering the risk from any disease suffered from any illness or injury during the period of insurance. It has been alleged that the OP No.1 has been nominated servicing office for the complainant covered by LIC Group Mediclaim Insurance Policy. Alongwith Puran Chand Arora, the wife of the complainant namely Pushpa Rani has been covered under Group Mediclaim Insurance Policy of LIC employees.
8. It has been alleged that the husband of the complainant passed away on 07.12.2016. Intimation to the OP was given about his death. The cashless facility was declined by the hospital where the deceased was under treatment on 24.11.2016 and ultimately, the husband of the complainant expired on 07.12.2016 in Fortis Hospital. The claim was lodged, but the same was repudiated vide letter dated 02.04.2018 on the ground that the patient was having history of chewing tobacco and the same is excluded from the policy. The complainant has proved on record Ex.C-1, the death certificate and the cause of death has been mentioned as Carcinoma Lung with Pleural Effusion and Septic. Immediate cause has been mentioned as Refractory Shock. Ex.C-2 is the death certificate. Ex.C-3 is the intimation letter given to the OP regarding the death of Pooran Chand. Ex.C-4, the bills of the hospital regarding the treatment of the deceased were sent to the OP. The bill has been proved as Ex.C-5. Ex.C-6 to Ex.C-9 are the claim forms.
9. The OPs have admitted the submission of claim form to the OP, but it has been alleged that vide Ex.C-14, the claim was rightly repudiated on 02.04.2018. As per the notification form by the doctor Ex.C-1, the cause of death is Carcinoma Lung with Pleural Effusion and this was due to the fact that deceased Puran Chand was having the history of Tobacco chewing which lead to Lung Cancer and as per exclusion clause of policy terms and conditions use of tobacco leading to cancer is excluded from the policy. Perusal of Ex.C-14, the repudiation letter show that the same was repudiated on 07.04.2018 by MD India which is OP No.3 and is TPA, but there is no privity of contract of the complainant with the TPA. The privity of contract of the complainant is with the insurance company and the TPA has no authority to reject the claim that too after the mandatory period of 30 days as per the guidelines of IRDAI. It has been held by the Hon’ble State Commission, in a case titled as ‘Sukhdev Singh Nagpal Versus The New Karian Pehalwal Cooperative Agriculture Service Society & Ors.’ in First Appeal No.1105 of 2014, Decided on 25.04.2017 that ‘TPA has no authority to reject the claim such power lies exclusively with the insurance company.’ It has been held by Hon’ble State Commission, in a case titled as ‘Dr. Sudarshan Jindal Vs. The United India Insurance Co. Ltd. etc.’ that ‘TPA had no right to repudiate the claim of the complainant. The competent authority of Insurance Company is only competent to pass orders, accepting or rejecting the insurance claim. ’ The claim form was submitted by the wife of the complainant on 30.01.2017 and letter was also written by the complainants for deciding the claim Ex.C-12, but the claim was not settled rather on 02.04.2018 the same was repudiated. The claim was repudiated after one year of the submission of the claim.
10. The contention of the OP that the deceased Puran Chand was having lung cancer, which was due to the habit of chewing Tobacco of the deceased Puran Chand and this comes under the exclusion clause, but this contention is not tenable. As per submission of the complainant, the terms and conditions of the policy were never supplied to the deceased nor were brought to the notice of the complainant. . It has been held in a case titled as “Bajaj Allianz General Insurance Co. Ltd. Vs. Rajwant Kaur and Other”, 2021 (3) CLT 540 (CHD) that ‘the onus is on the appellant insurance company to prove that it provided the terms and conditions of the policy to the complainant and the same were in her knowledge.’ It has been held in a case titled as “National Insurance Co. Ltd. & Ors Vs. M/s Saraya Industries Ltd”, 2020 (1) CLT 278 (NC) that ‘it is the duty of the insurance company to supply all the terms and conditions of an insurance policy to the policy holder-there cannot be any presumption under law on the terms and conditions’. It has been held in a case titled as “Bhanwar Lal Vishnoi Vs. Oriental Insurance Co. Ltd.”, cited in 2017 (1) CLT 401, that ‘the insurance co. has to prove that the exclusion clause under which the claim is sought to be repudiated was communicated to the complainant.’
11. The OP has now produced on record the schedule of Group Medical Insurance Master Policy, but it has not been proved that this schedule was ever supplied to the complainant or was brought to the notice of the complainant as per the law laid down by the Hon'ble National Commission. Ex.OP1-B is letter written to the insurance company by the TPA. As per Ex.OP1-B the claim is closed as the requisite documents were not supplied and the exact cause of carcinoma of lung illness from treating doctor was also not supplied. The OP has proved on record the prescription by DMC Hospital dated 07.11.2016, but this document nowhere shows that the deceased was in the habit of chewing tobacco. It is settled law that the party who asserts is to prove the case. It was obligatory upon the OP to prove that the complainant was in the habit of chewing tobacco, therefore, he had suffered a lung cancer as alleged by the OP. Ex.C-10 is the discharge summary which shows that the deceased Puran Chand was having history of Squamous Cell Carcinoma Lung (Bronchus mass), Depression/Bipolar Disorder for 15 years. He was admitted in the hospital on chief complaint of difficulty in breathing, chest congestion and pain in chest right side. Now the point is as to whether the deceased Puran Chand had carcinoma lung because of chewing tobacco. The complainant has produced on record the medical literature. Perusal of this literature shows that as per Mayo Clinic Staff, Chewing tobacco and other smokeless tobacco products often are promoted as safer than cigarettes. That’s because they aren’t linked to lung cancer. But these products are not harmless. As per Medical Literature, the definition of Cancer is that the use of chewing tobacco and other smokeless tobacco products raises the risk of cancer of the mouth, throat and pancreas. Smokeless tobacco also raises the risk of getting small white patches in the mouth called leukoplakia (loo-koh-PLAY-key-uh). These patches could turn into cancer. So, as per the Medical Literature, the use of chewing tobacco can increase the risk of cancer of mouth, throat and pancreas and not lung cancer as alleged by the OPs. The OPs have not produced on record any document or any law or any medical literature or medical term, which may prove that due to chewing the tobacco, there is a risk of lung cancer or chewing tobacco is linked with lung cancer. Even no prescription has been proved to show that he was habitual in chewing the tobacco and regular user. Chewing the tobacco has been denied by the wife of the complainant even in Ex.C-12. Thus, the repudiation of the claim by the complainant is wrong and illegal and the same is hereby set-aside.
12. In view of the above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to pay mediclaim expenses of Rs.2,53,030/- to the complainant with interest @ 6% per annum from the date of death of the deceased Puran Chand i.e. 07.12.2016 till its realization. Further, OPs are directed to pay a compensation of Rs.15,000/- for causing mental tension and harassment to the complainant and Rs.8000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
13. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
07.08.2024 Member Member President
