Chandigarh

DF-II

CC/968/2019

Satnam Singh - Complainant(s)

Versus

The New India Assurance Company Limited - Opp.Party(s)

Gaurav Bhardwaj Adv.

20 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

Consumer Complaint  No	:	968 of 2019
Date  of  Institution	:	20.09.2019
Date   of   Decision	:	20.03.2023

 

 

 

 

 

Satnam Singh S/o Sh. Late Parkash Singh, R/o # 556, Phase 3B-1, Mohali, Punjab.

            …..Complainant

 

Versus

The New India Assurance Company Limited, S.C.O 2939-40, First Floor, Sector-22 C, Chandigarh, through its senior Manager.   

    ….. Opposite Party

BEFORE:  MR.AMRINDER SINGH SIDHU,       PRESIDENT

                MR.B.M.SHARMA                 MEMBER

                               

Argued by  :Sh.Gaurav Bhardwaj, Counsel of complainant

 :Sh. Sukaam Gupta, Counsel of OP.

 

ORDER BY AMRINDER SINGH SIDHU, M.A.(Eng.),LLM,PRESIDENT

1. The complainant filed present complaint Under Section 12 of the Consumer Protection Act, 1986(amended up to date) now Under Section 35 of the Consumer Protection Act, 2019 pleading deficiency in service and unfair trade practice on behalf of O.P.seeking Redressal along with  Compensation from this Commission. The Complainant alleged that he is duly assured with the opposite Party Vide New India Mediclaim Insurance
2. policy valid from 15^th of June 2018 to 14^th of June 2019 for a sum assured for Rs. 3,00,000/- Plus Rupees 30,000/- as an cumulative bonus amount. It was further pleaded by the Complainant that Complainant has been insured with the opposite party since 2006 and accordingly, the said policy was renewed every year by the opposite party. Complainant pleaded that at no point of time any terms and conditions of policy including the exclusion clause were ever supplied to the Complainant. In the month of March, 2019 and further stated that at the time of admission in the hospital, some common sort of inquired were made by the attending doctor and one of the specific inquiry was about the taking of liquor and the attendance of the Complainant had replied in positive, whereupon the same was recorded in medical record of the Complainant and as per investigation carried out by the hospital medical problem of Complainant was diagnosed as a case of (A) acute pancreatitis and (B) Sirs positive. The Complainant spend an amount of Rs.3,67,911 on his treatment out of which add amount Rs. 1,72,000/- was paid through cheque and the balance amount of Rs. 1,95,911/-was paid in cash to the hospital by the Complainant. After getting discharge from the hospital, Complainant lodged the claim with the opposite party for reimbursement of the  above said  amount of Rs. 3,67,911/- and complaint  submitted each and every document with opposite party as required for the processing of the claim in question. The Complainant was shocked to see a letter dated 15^th of April 2019, where the claim of the Complainant was repudiated on the filmsy ground that Complainant was admitted as a case of acute pancreatitis and the Complainant has history of alcohol consumption and hence as per the clause number 4.4.6 of terms and conditions of the insurance policy and alcohol related ailment is not covered. The condition of “exclusion” under the policy document were neither communicated to the Complainant nor the same were provided to the complainant at any point of time since 2006. The Complainant relied upon the judgment of the Hon’ble Supreme Court. In case titled as Bharat Watch Company Versus National Insurance Company Ltd C.P. No. 3912 of 2019 decided on 12^th of April 2019. Thereafter, the Complainant moved an application dated 17^th of July 2019 Under RTI seeking information from the opposite party, but opposite party replied it in a very vague and casual manner. That available medical literature confirms that cause of acute pancreatitis can be gall bladder stones, obesity, family history of pancreatitis extra Elbeit alcohol intake too is considered one of reasons of “Sirs positive” but it cannot be attributed to alcohol intake alone as there are various other factors for such disease. The act and conduct of O.P amounts to deficiency in service and unfair trade practice as the opposite party have repudiated the general claim of the Complainant which created physical and mental harassment to the Complainant for which he should be compensated along with costs. Lastly, complainant that prayer for direction to opposite party to pay amount of Rs. 3,67,911/- along with 12% interest along with compensation and costs.

    (II)    After the service of notice upon the opposite parties, the opposite parties appeared  through their Counsel before  this Commission  and filed the written version to complaint which was taken on record taking preliminary objections that brief history of complaint is that copy of terms and conditions from year  to year since 2006.  The opposite party replied that the claim was repudiated by the opposite party as it was outside the ambit of terms and conditions of insurance policy. Clause 4.4.6.1 of the policy states as Under:-“4.4.6.1:- convalescence, general debility, ‘run down’ conditions or rest cure, obesity treatment and its complications, treatment relating to all psychiatric and psychosomatic disorders, infertility, sterility, Venereal diseases, international, self injury and illness or injury caused by the use of intoxication drugs/alcohol. There is no deficiency or unfair trade practice on the part of the answering party in providing service to the complainant. Lastly the opposite party prayed for the dismissal of the Complaint.

(iii)   The Complainant filed an replication to the written version reiterating that opposite party repudiated claim of the Complainant, wrongly and arbitrary while ignoring the norms and guidelines issued by IRDAI circular reference number IRDAI/HLT/REG/CIR/152/06/2020 dated 11^th of June 2020.

12. Moratorium Period:-

        “After completion of eight continuous years policy no look back to be applied. This period of eight years is called as moratorium period. The moratorium would be applicable for the sums insured of the first policy and subsequently completion of 8 Continuous years would be applicable from date of enhancement of sums insured only on the enhanced limits. After the expiry of moratorium period no health insurance claim shall be contestable except for proven fraud and permanent exclusion specified in the policy contract. The policies would however be subject to all limits, sub limits, co-payments, deductibles as per the policy contract”).

 

(IV)    Parties led evidence in support of their contentions.

(V)     We have heard the Counsel for the parties and have gone through the entire record.

 (VI)   The main question involved in the present complainant is whether O.P. repudiated the claim of the Complainant wrongly and arbitrarily or not?

(VII)   In order to find out answer to this question, the following factors of complaint are material to decide the same:- 

8. Complainant alleged that the terms of conditions were never supplied to the Complainant. Now the onus to prove that the terms and conditions including exclusion Clause was supplied to the Complainant is upon the O.P as O.P took a stand that the same were supplied to the Complainant but O.P failed to discharge the onus by bring any evidence on record that terms and conditions including exclusion clause were ever supplied to Complainant. Hence, O.P is not entitled to get benefit of exclusion Clause No. 4.4.6.1. Therefore, repudiation based upon exclusion Clause is not good in the eyes of law.

Hon’ble Supreme Court of India in case of Bharat Watch Company VS National Insurance Co. Ltd decided on 12  April, 2019 Under Section Civil Appeal No. (S): 3912 of 2019 held that where the terms of exclusion were not made known to insured there exclusion clause is not applicable/attracted. 

9. Further, it is an admitted fact that the Complainant is insured with O.P since year 2006 duly proved by Annexure C-2 placed on record.
10.  Further, it is admitted by the O.P in Para No. 1 of his preliminary objections that Complainant was insured since 2006 with answering respondent (O.P) and respondent (O.P) are renewing the said policy of insurance. Further copy of above mentioned circular is annexed as Annexure 11 along with replication filed by the Complainant. So, it is very clear that complainant falls within the moratoriums period Clause i.e. Complainant has been continuously getting his policy renewed from last 13 years (Since 2006 to 2019) without any break.
11. Further O.P. repudiated the claim of Complainant on the ground that while dealing with claim documents it was noted and pointed out that the Complainant was diagnosed as a case of (A) acute Pancreatitis (alcohol) included and complainant was having history of alcohol consumption and as per the clause No. 4.4.6.1 alcohol related ailment was not covered under the policy of insurance.

  So, it is clear that O.P relied upon just a passing reference noted by the treating doctor during treatment. Neither the evidence to this effect placed on record of the concerned treating doctor nor any convincing evidence is brought on record that the diseased occurred to the complainant alone due to consumption of alcohol. Further there are many other factors which caused this diseased such as gall bladder stones, obesity, family history of pancreatitis etc. So, it is not proved on file by the O.P that this occurred due to consumption of alcohol by the Complainant/insured. The Complaint is partly allowed.

12. So, taking into account facts and circumstances of the present case it can safely be concluded that O.P has repudiated the claim of the insured/complainant wrongly and arbitrarily and therefore, liable to be set aside and same is set aside. The Complaint is party allowed.  O.PS are directed to pay Rs. 3,67,911/- to the complainant within 90 days from the date of order, failing which O.P shall be liable to pay interest @ 9% per annum from the date of its repudiation till date of actual payment of the amount to the complainant by O.P.

13. The pending application(s) if any, stands disposed of accordingly.

(XIV) Certified copy of this order be sent to the parties, as per rules. After compliance file be consigned to record room.

Announced in open Commission

20.03.2023                         (Amrinder Singh Sidhu)

                                   PRESIDENT

 

                                 

                                   (B.M. SHARMA)

                                   MEMBER.