Hon’ble Mrs. Rumpa Mandal, Member.
The non-payment of mediclaim has dragged the Complainant before this Commission for redressal of his grievance. The Complainant Sri Phanindra Saha purchased one Health Insurance plan with accident coverage of Complainant as well as his wife from O.P. No.1 i.e. HDFC ERGO General Insurance Company Ltd., through O.P. No.2 i.e. Branch Manager, Bandhan Bank. The O.P. No.1 received the amount of Rs. 14,046/- as premium through O.P. No.2. After full satisfaction O.P. No.1 issued a group Health Insurance Certificate vide Policy No. 2811204153699900000 & G.Pn- 2999203669191400000. This policy period was from 20.05.2021 to 19.05.2022. The O.P. No.1 issued a policy of coverage for mediclaim of Rs. 5 Lakhs (Annexure-1). On 17.11.21 Complainant was admitted at Manipal Hospital with problem of blood stand sputum and the surgery was done on 18.11.21 and on 19.11.21 the Complainant was discharged from the said hospital with final diagnosis of “Bilateral maxillary sinusitis to R/O fungal pathology” (Annexure-2 being the copy of discharge). As per terms and conditions of health insurance policy the said hospital contacted with O.P. No.1 and accordingly the O.P. No.1 started claim being No. (CCN)- R.C.- HS21-12718099. But O.P. No.1 illegally rejected the cashless approval on 18.11.21 (Annexure-3 being the copy of letter dated 18.11.2019) Complainant submitted a claim of Rs.1,45,953.44/- (Annexure-2(1) and 2(2) are the total bill of the hospital). Complainant sent reimbursement claim to the O.P. No.1 with all original document and after acceptance of further claim. The O.P. No.1 further started claim No. RR-HS21-12783028. In this respect, O.P. No.1 demanded some documents vide letter dated 27.01.2022, 03.01.2022, 10.01.2022 and 06.02.2022. Thereafter, Complainant sent all original documents but still today O.Ps did not disburse the health insurance claim but still O.P. No.1 did not reject the claim (Annexure-4 being the copy of letter issued by O.P. No.1). The Complainant several times visited the Office of the O.P. No.2 and O.P. No.2 sent mail to O.P. No.1 but still today O.P. No.1 did not disburse the insurance claim. Lastly, on 28.11.2022 Complainant was bound to file written complaint before the District Consumer Affairs and Fair Business practices and accordingly, Assistant Director started complaint case being No. 1601/24/Cob/CICC/22-23 but after appearing O.P. No.2 did not settle the matter. Thus by such wilful act of omission and Commission in non-settling of the aforesaid claim amount of the Complainant, the O.Ps have caused a deficiency in service. Having found no other alternative, the Complainant filed this case before the Commission for having justice against the O.Ps. The cause of action of the present case arose on 20.05.21 when the insurance policy was effected and on 17.11.21 when the Complainant was admitted in Manipal Hospital and on 18.11.21 when O.P. No.1 illegally rejected the claim and still continuing. The Complainant prayed for a direction to the O.Ps to pay health insurance claim of Rs.1,45,953.44/- with update interest in favour of him and pay a sum of Rs.3 Lakhs for deficiency in service as well as mental pain and agony and Rs. 30,000/- for cost of proceeding in favour of him.
O.Ps contested the case by filing their written version and denied each and every allegation of the Complainant. The positive defence case of O.P. No.1 is that the Complainant has no cause of action. The further defence case in brief is that Mr. Phanindra Saha (Complainant) was admitted for undergoing treatment/ surgery for Bilateral Maxillary Sinusitis which falls under the category of specific waiting period of 2(two) years. According to the terms and conditions of the policy, the O.P. No.1 insurance company rejected the claim of the Complainant vide letter dated 18th November, 2021 on the basis of exclusion clause. Thereafter, the insured had applied for reimbursement of his claim expenses directly with the OP insurance company and upon receipt of intimation, OP sought for procurement of additional information and complete medical records vide query letters dated 3rd January, 2022, 2nd February, 2022 and 6th February, 2022 for processing the claim on merit and to rule out the possibility of any error made by the hospital authorities. After scrutiny it was noted that the instant case, the policy inception date was 20th May, 2021 and insured was hospitalised for treatment on 17th November, 2021 and applied for claim thereof. Any claim arising out of the aforesaid ailment is not covered by the terms and conditions of the policy before expiry of two years. So in this connection, this OP insurance company could not honour the claim of the Complainant. So there is no deficiency in service provided by the OP insurance company. The OP insurance company claimed that the case is liable to be dismissed with exemplary cost.
The further defence case of O.P. No.2 in brief is that the present complaint is not maintainable. The O.P. No.2 has further stated that Complainant is aggrieved with the repudiation of the medical insurance claim lodged by him with the O. P. No.1. The Complainant has added this O.P. No.2 in the instant case, but entire allegations relates to insurance claim by O.P. No.1 i.e. HDFC ERGO General Insurance Company Ltd. The Complainant only maintains his bank account with the O.P. No.2 and O.P. No.2 acts as a facilitator for the insured and has no privity of contract and to provide assistance in transaction with respect of collection and remitting of premium amount. Insurance is purely a contract between customer and the insurance company. O.P. No.2 has no relation whatsoever with any dispute pertaining to insurance claim and he is neither necessary nor proper party. Thus adding of same is a case of mis-joinder. There is no cause of action and banking company have no deficiency in service. The Complainant has failed to establish deficiency according to section- 2(g) of the Consumer Protection Act, 1986. So, the O.P. No.2 claimed that the case is liable to be dismissed with cost.
The different points of disputes involved in this case led the Commission to ascertain the following points for proper adjudication of the case.
Points for Determination
- Is the case maintainable in its present form and prayer?
- Whether the Complainant is entitled to get the relief against these O.Ps?
- To what other relief or relief(s) is prayed for?
Decision with reasons
Point No.1.
The pleading of the parties disclosed that the Complainant purchased mediclaim insurance from the O.P. No.1 through bank O.P. No.2.
Accordingly, the Complainant is a consumer under C.P. Act, 2019. Except some evasive denial there is no specific case of OP as to why the case is not maintainable. The O.P. No.2 stated in his written version that there is no deficiency as per under section-2(g) of the Consumer Protection Act, 1986.
After perusing the case record, it transpires that the present case is filed under section-35 of 2019. Accordingly, section- 2(g) of the Consumer Protection Act, 1986 has not been applicable here.
It is also important to consider that the OP never filed any petition for challenging the maintainability of the case. The OP has just evasively denial the case of the Complainant.
Thus having perused the pleadings and the evidence on record, this Commission is of the view that the case is maintainable in its present form and prayer.
Point No.1 is accordingly answered in favour of the Complainant.
Point Nos. 2 & 3.
Both the points are taken up together for brevity and convenience of discussion. It is admitted fact that the Complainant purchased mediclaim insurance under the O.P. No.1 insurance company through O.P. No.2 bank.
The O.Ps have not denied the said fact. It is the specific case of the Complainant that for his disease of Bilateral Maxillary Sinusitis to R/O Fungal Pathology, the Complainant was medically treated at Manipal Hospital, Delhi from 17.11.2021 to 19.11.2021 and on 22.11.2021. The Complainant proved the discharge certificate dated 17.11.21 of the abovesaid hospital, Delhi issued by Dr. Girish Rai and Dr. Neha Mishra. The corresponding letter of the OP dated 18.11.2021 is also proved. The Complainant categorically stated that he claimed medical insurance against his medical expenses. The reimbursement letter by complaint vide query letters dated 3rd January, 2022, 2nd February, 2022 and 6th February, 2022 by the OP stands proved that there is insurance claim against the O.P. No.1 and Complainant incurred expenses of his treatment at Manipal Hospital, New Delhi.
The O.P. No.1 Company responded to the said letter but did not give any relief. Instead they demanded more information. The policy is effective from 20.05.2021 to 19.05.2022 and claim is well within the validity of the mediclaim insurance.
The Complainant in order to substantiate the case adduced evidence by filing evidence on affidavit and also some documents in the form of Annexures.
After assessing the entire evidence on record it transpires that the Complainant has complied with the terms and conditions of the policy. Despite that the O.P. No.1 seems to have not provided the cashless facility. So, the Complainant as per terms of the agreement sent all the documents of reimbursement of the medical expenses incurred by him. So, there is no impediment to grant the relief of the Complainant.
The O.P. No.1 could not assign sufficient reason of repudiation of the claim of the Complainant.
Ld. Advocate on behalf of O.P. No.1 argued and took the defence plea that the claim raised by the Complainant before the expiry of two years should not be valid. Ld. Advocate on behalf of the Complainant took the defence plea and argued that the OP insurance company suppressed the said policy terms at the time of registration of the policy.
The O.P. No.1 could not prove the said policy terms to establish that it was read over and explained to him.
It is further appeared from the case record that the OP did not cross-examine the Complainant to prove the defence plea that the said terms and conditions were explained to the Complainant at the time of registering the said insurance policy.
The O.P. No.1 also challenged the claim as not maintainable on the ground that the Complainant did not raise any objection within the free look period and did not cancel the policy.
Ld. Advocate for the Complainant argued that the OP tried to mis-interpret the terms of the free look period.
The argument is reasonable and acceptable because the Complainant could have taken option took cancel the option of the policy Complainant could not forsee as to what kind of ailment could arise in future. So, the claim of the Complainant could not be repudiated on the ground that the Complainant allegedly did not cancel the policy during the free look period.
It appears that the OP has tried to take under advantage of the free look period by camouflaging the terms and conditions of the insurance policy.
The OP in written version did not take the defence plea that the claim is premature by stating that the particular disease namely “ Bilateral Maxillary Sinusitis to R/O Fungal Pathology” is outside the purview of the said policy as such the Complainant has been deprived from cross-examining the OP against the specific plea.
The O.P. No.2 claims that they adjust their financial authority and acts as a facilitator or intermediatory. But they cannot escape from the liability in as much as the liability is joint and several. So both the O.P. No.1 & 2 are jointly and/or severally liable of the claim raised by the Complainant.
As regard the defence plea of not informing the O.P. No.1 within 24 hours, the Complainant by evidence on affidavit stated that he informed the O.P. No.1 within statutory period but the O.P. No.1 could not discard the evidence by cross-examining him. The Complainant categorically stated in the evidence that he spent Rs.1,45,953.44/-.
Except some evasive denial of the claim the O.P. No.1 could not discard the evidence of the Complainant.
In the light of the above assessment of evidence, the case of the Complainant is considered to have been duly proved.
Point Nos. 2 & 3 are accordingly answered in positive.
In the result complaint case succeeds on contest with cost.
Hence, it is
Ordered
That the complaint case No. CC/1/2023 be and the same is allowed on contest with cost of Rs.10,000/-.
So, the O.P. No.1 & 2 are directed to pay the mediclaim amount of Rs.1,45,953.44/- to the Complainant jointly and/or severally. They are also directed to pay Rs.60,000/- for deficiency in service as well as mental pain and agony and Rs.10,000/- towards cost of proceeding to the Complainant jointly and/or severally within 30 days from the date of this order failing which the total sum of Rs.2,15,953.44/- (Rupees Two Lakhs Fifteen Thousand Nine Hundred Fifty Three, Forty Four paisa only) will carry an interest @ 6% per annum till its realization.
D.A. to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order is also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
