Order by:

Sh.Amrinder Singh Sidhu, President

1.           The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 on the allegations that the complainant has purchased a New India Flexi Floater Group Mediclaim Policy bearing No. 3611003418040000027 for himself, and for his family members for a period w.e.f. 26.09.2018 to 25.09.2019 from Opposite Party No. 1 through Punjab National Bank, Moga against the paid up premium of Rs.10,251/-. This policy was cashless. During the policy period, the complainant unfortunately fell ill and was diagnosed with both kidney failure and remained hospitalized in Medanta Hospital, Gurgaon for kidney transplant where he spent a sum of Rs.7,26,966/- on his medical treatment. Before the treatment, the complainant through his father had informed the Opposite Party No.1 regarding his medical illness and regarding his treatment vide letter dated 21.12.2018 and as per the instructions of the Opposite Parties, the complainant got himself treated from Medanta Hospital where he remained in the hospital for the period w.e.f. 23.12.2018 to 01.01.2019, where the kidney donor was none-else but his mother Smt.Harjinder Kaur whose kidney was transplanted to the complainant. At the time of admission in the hospital, the complainant showed the insurance policy issued by Opposite Party No. 1 for cashless facility, but the treating hospital refused to provide cashless facility without the health cards. At the time of discharge from the hospital, the complainant also made a request to the Opposite Parties to make the hospitalization bills, as the policy purchased by the complainant was cashless, but the Opposite Parties refused, so under the compelling circumstances, the complainant made the whole payment to the hospital from his own pocket. After discharge from the hospital, the complainant submitted the claim for the reimbursement of his amount with the Opposite Party No.1 amounting to Rs.7,26,966/- on 31.01.2019 and in the month of February, 2019,  Opposite Party No.1 informed the complainant that the claim file has been sent to Opposite Party No. 2 and after receiving the report from Opposite Party No. 2, the claim will be paid. Not only this, after filing the claim by the complainant, the Opposite Parties also required the ultrasound report of the complainant's father namely Pardeep Singh and to avoid the further delay of the payment of claim, the complainant also got the whole abdomen ultrasound report dated 26.07.2019 of his father Pardeep Singh, which clearly established the fact that both the kidneys are normal in size. No hydronephrosis or calculi seen. Parenchymal thickness and cortico-medullary differentiation are well maintained'. Thereafter, the complainant again went to the office of the Opposite Party No. 1 and enquired about the payment. The concerned officer of the Opposite Party No. 1 told the complainant that they did not receive the final report from TPA i.e. from the OP No. 2, and after receiving the final report, they will transfer the claim amount in the bank account of the complainant. But the complainant did not receive any amount. Thereafter, the complainant through his counsel served a legal notice dated 01.12.2020 to the Opposite Parties to make the payment of insurance claim. But, no reply had been given by the Opposite Parties. Later on, through his counsel, the complainant submitted a complaint to IRDA against the Opposite Parties. In reference to this complaint, the Opposite Party No. 1 had informed the complainant vide letter dated 10.02.2021 that his medi-claim had already been repudiated as the genetic disorder are not payable under the policy. The complainant again and again visited the office of the Opposite Party No. 1, but they did not listen anything. At last on making the complaint to IRDA, the complainant has received a letter dated 10.02.2021 from Opposite Party No.1 vide which they repudiated the claim of the complainant on the ground that "The matter with Vidal Health TA for the status of your claim and we have received their mail dated 10.02.2021 with reply that your claim has been rejected as the genetic disorder are not payable under the policy." Further alleges that at the time of issuing the policy in question as mentioned above, alongwith this cover note, the Opposite Parties never issued any terms and conditions of the policy documents. As such, the alleged terms and conditions, particularly the exclusion clause of the policy in question is not binding upon the insured. Complainant put reliance on judgment titled as Modern Insulators Ltd. Vs Oriental Insurance Company Limited (2000) 2 SCC 734, pronouncement of Hon'ble State Commission, Punjab, Chandigarh in First Appeal No.871 of 2014 decided on 03.02.2017 in case titled as Veena Mahajan (Widow) and others Vs. Aegon Religare Life Insurance Company Limited and pronouncement of Hon’ble National Consumer Diputes Redressal Commission, New Delhi in case titled as The Oriental Insurance Company Limited Vs. Satpal Singh & Others 2014 (2) CLT paged 305. Further alleges that at the first time of purchasing the policy, the complainant and his family members were fully medically got checked up by the Opposite Parties from their own doctors with their own expenses and after full satisfaction, the Opposite Parties issued the policy cover note i.e. family medical policy and thereafter without any break, the complainant has been purchasing the policy in question continuously by making the hefty amount of premium since 2016. In view of this there is a clear cut deficiency in service on the part of the Opposite Parties as it has illegally repudiated the genuine and legal claim of the complainant taking the false and frivolous ground on the report of TPA. Hence this complaint. Vide instant complaint, the complainant has sought the following reliefs:-

a)       Opposite Parties may be directed to pay reimburse the medical claim of the complainant of Rs.7,26,966/- as per final bill alongwith interest @ 12 % per annum from the date of payment to the respective hospital till its actual realization.

b)      To pay and amount of Rs.50,000/- on account of compensation due to mental tension and harassment suffered by the complainant.

c)       To pay an amount of Rs.50,000/- as litigation expenses.

d)      And any other relief which this Commission may deem fit and proper be granted to the complainant in the interest of justice and equity.

2)      Opposite Party No.1 appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that the complaint is not maintainable. The complainant has got no locus-standi. No deficiency in service has been attributed to the opposite parties and from the allegations in the complaint no deficiency in service is made out. The claim of complainant is barred by limitation and by the terms and conditions of the insurance policy. The complaint is absolutely false and frivolous. Complicated questions of law and facts are involved in the present complaint. Moreover lengthy examination-in-chief and cross examination of the parties/witnesses are required in the complaint. So, the complaint is required to be decided by the civil court and this Commission has got no jurisdiction to entertain, try and dispose off as such the deserves dismissal. The complainant has not approached this Commission with clean hands rather he has willfully concealed the material and patent facts from this Commission while filing the present complaint which ipso-facto disentitles the complainant to seek any relief against the opposite party. The claim of the complainant is non payable as Genetic Disorders are not payable, as per the terms and conditions of the insurance policy. The claim of the complainant has been rightly repudiated as non payable as per mail sent by opposite party no.2. Therefore, the claim was repudiated by the Vidal Health, vide mail dated 10.02.2021. The complaint is false, frivolous, baseless, vague and malicious, therefore, in the event of dismissal of the complaint the Opposite Parties are entitled to special costs as provided under Consumer Protection Act. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.

3.       Upon service of notice, none has come present on behalf of opposite party no.2. Hence, opposite party no.2 was proceeded against exparte.

4.       Complainant has also filed replication to the written reply of opposite party no.1, in which all the objections raised by the opposite party no.1 are denied.

5.       In order to prove his case, complainant tendered in evidence his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C15.

6.       To rebut the evidence of complainant, opposite party no.1 tendered in evidence affidavit of Smt.Sunita Mahajan, Senior Divisional Manager, New India Assurance Co. Ltd.  Ex.OP1/1 alongwith copies of documents Ex.OP1/2 to Ex.OP1/4.

7.       During the course of arguments, ld. counsel for both the parties have mainly reiterated the same facts as narrated in the complaint as well as written reply. The case of the complainant is that he has purchased a New India Flexi Floater Group Mediclaim Policy bearing No. 3611003418040000027 for himself and for his family members for a period w.e.f. 26.09.2018 to 25.09.2019 from Opposite Party No.1 and paid the premium of Rs.10,251/-. This policy was cashless. During the policy period, the complainant unfortunately fell ill and was diagnosed with both kidney failure and he remained hospitalized in Medanta Hospital, Gurgaon for kidney transplant where he spent a sum of Rs.7,26,966/- on his medical treatment. Before the treatment, the complainant through his father had informed the Opposite Party No. 1 regarding his medical illness and regarding his treatment vide letter dated 21.12.2018 and as per the instructions of the Opposite Parties, the complainant got himself treated from Medanta Hospital where he remained in the hospital for the period w.e.f. 23.12.2018 to 01.01.2019, where the kidney donor was none-else but his mother Smt.Harjinder Kaur whose kidney was transplanted to the complainant. At the time of admission in the hospital, the complainant showed the insurance policy issued by Opposite Party No. 1 for cashless facility, but the treating hospital refused to provide cashless facility without the health cards. At the time of discharge from the hospital, the complainant also made a request to the Opposite Parties to make the hospitalization bills, as the policy purchased by the complainant was cashless, but the Opposite Parties refused, so under the compelling circumstances, the complainant made the whole payment to the hospital from his own pocket. After discharge from the hospital, the complainant submitted the claim for the reimbursement of his amount with the Opposite Party No. 1 amounting to Rs. 7,26,966/- on 31.01.2019 and in the month of February, 2019, they informed the complainant that the claim file has been sent to Opposite Party No. 2 for investigation and after receiving the report from Opposite Party No. 2, the claim will be paid. But the complainant did not receive any amount. Complainant through his counsel served a legal notice dated 01.12.2020 to the Opposite Parties, but all in vain. The complainant again and again visited the office of the Opposite Party No. 1, but they did not listen anything. At last on making the complaint to IRDA, the complainant has received a letter dated 10.02.2021 from Opposite Party No.1 vide which they repudiated the claim of the complainant. Ld. counsel for the opposite party no.1 has repelled the aforesaid contentions of ld. counsel for the complainant on the ground that the complainant has not approached this Commission with clean hands rather he has willfully concealed the material and patent facts from this Commission while filing the present complaint which ipso-facto disentitles the complainant to seek any relief against the opposite party no.1. The claim of the complainant is non payable as Genetic Disorders are not payable, as per the terms and conditions of the insurance policy. The claim of the complainant has been rightly repudiated.

8.       We have perused the rival contentions of ld. counsel for both the parties and gone through the record. As per contention of ld. counsel for the opposite party no.1 claim of the complainant was repudiated on ground that Genetic disorders are not payable as per the terms and conditions of the policy. But the Opposite Party could not produce any evidence to prove that terms and conditions of the policy were ever supplied to  the complainant insured, when and through which mode? It has been held by Hon’ble National Commission, New Delhi in case titled as The Oriental Insurance Company Limited Vs. Satpal Singh & Others 2014(2) CLT page 305 that the insured is not bound by the terms and conditions of the insurance policy unless it is proved that policy was supplied to the insured by the insurance company. Onus to prove that terms and conditions of the policy were supplied to the insured lies upon the insurance company. From the perusal of the entire evidence produced on record by the Opposite Party, it is clear that Opposite Party has failed to prove on record that they did supply the terms and conditions of the policy to  the complainant insured. As such, these terms and conditions, particularly the exclusion clause of the policy is not binding upon the insured. Reliance in this connection can be had on Modern Insulators Ltd.Vs. Oriental Insurance Company Limited (2000) 2 SCC 734, wherein it is held that “In view of the above settled position of law, we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent can not claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.”  Our own Hon’ble State Commission, Punjab, Chandigarh in First Appeal No.871 of 2014 decided on 03.02.2017 in case titled as Veena Mahajan (Widow) and others Vs. Aegon Religare Life Insurance Company Limited in para No.5 has held that

“Counsel for the appellant argued that copy of insurance policy was not supplied to the appellant and hence, the exclusion clause in the contract of the insurance policy is not binding upon him. He further argued that no proof of sending of insurance policy was ever produced by the respondent despite specific contention raised by the complainant that the insurance policy was never received by him. He argued that though there is an averment of the OP that the policy in question was delivered through Blue Dart Courier to the complainant. In order to prove their contention, no affidavit of any employee of Blue Dart was produced who would have made a statement to have the effect that the policy was delivered to the complainant nor any acknowledgement slip for having received the article by the complainant through courier company was produced by the insurance company. He argued that since no policy document was received by the insured and argued that the terms and conditions as alleged to be part of the insurance policy were not binding upon the insured. He argued that policy was issued in the name of deceased Sh.Vijinder Pal Mahajan with his wife Mrs.Veena Mahajan as beneficiary and the same was never refused by the OP and the proper premium for insurance was paid by late complainant. He argued that as per the specific allegations made in the complaint in para No.4, no rebuttal to that contention was specifically there in their written reply in para No.2 and para No.4 in the reply filed by OP in the District Forum. He argued that Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case of "Ashok Sharma Vs. National Insurance Co. Limited", in Revision Petition No. 2708 of 2013 held in para No.8 to the point of non-delivery of terms and conditions of the policy. He also cited Hon'ble Supreme Court's decision given in the matter of "United India Insurance Co. Limited Vs. M.K.J.Corporation" in Appeal (civil) 6075-6076 of 1995 (1996) 6 SCC 428 wherein the Apex court held that a fundamental principle of Insurance Law makes it that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. Just as the insured has a duty to disclose, "similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge, since obligation of good faith applies to them equally with the assured and further argued that since the terms and conditions were not supplied even on repeated requests the same cannot be relied upon by the opposite party in order to report to repudiate the genuine claim of the wife of the deceased policy holder.”

9.       Moreover, if the complainant was suffering from any disease prior to issuance of the policy, in question, the same must not have escaped the notice of the empanelled doctors of the Insurance Company. However, no such investigation record has been produced by the opposite party. In case Bajaj Allianz Life Insurance Co. Ltd. & Ors. Vs. Raj Kumar III (2014) CPJ 221 (NC), it was held by the Hon’ble National Commission that “usually, the authorized doctor of the Insurance Company examines the insured to assess the fitness and after complete satisfaction, the policy is issued. It was held that the Insurance Company wrongly repudiated the claim of the complainant.”

10.        Furthermore, perusal of the document placed on record by the opposite party Ex.OP1/3 shows that the opposite party only relied upon the opinion of TPA and till date has not made any effort to decide the claim. Moreover TPA has no authority to reject the claim as only the Insurance companies after making investigations can decide the claim. Reliance in this connection can be placed upon Sukhdev Singh Nagpal Vs. New Karian Pehalwal Cooperative Agriculture Service Society & others in First Appeal No. 1105 of 2014 decided on 25.4.2017 of our own Hon’ble State Consumer Disputes Redressal Commission, Chandigarh wherein it was held that

“The TPAs have no authority to reject the claim – Such power lies , exclusively with the Insurance Companies – The TPA can only process the claim and forward the same to the Insurance Company and the competent authority of the Insurance company is to decide about the same-The claim of the complainant was illegally and arbitrarily rejected by the TPA, against the instructions of the IRDA”.

11.      In such a situation the repudiation made by Opposite Parties-Insurance Company regarding genuine claim of the complainant have been made without application of mind. It is usual with the insurance company to show all types of green pasters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation.  This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible.  It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-

“It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.  The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.

12.     In view of the above discussion, we hold that the Opposite Party-Insurance Company have wrongly and illegally rejected the claim of the complainant. The complainant has claimed the amount of Rs.7,26,966/-. However perusal of copy of bill Ex.C14 shows that complainant spent an amount of Rs.6,21,519/- on his treatment.

13.     In view of the aforesaid facts and circumstances of the case, we partly allow the complaint of the Complainant and direct Opposite Parties-Insurance Company to pay Rs.6,21,519/- (Rupees Six Lac Twenty One Thousand Five Hundred Nineteen only) alongwith interest @ 8% per annum from the date of filing the present complaint i.e.09.12.2021 till its actual realization. The compliance of this order be made by the Opposite Parties within 60 days from the date of receipt of copy of this order, failing which the complainant shall be at liberty to get the order enforced through the indulgence of this District Consumer Commission.  Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Commission.