DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BARNALA, PUNJAB.
Complaint Case No: CC/151/2022
Date of Institution: 23.05.2022
Date of Decision: 05.08.2024
Shiv Kumar, aged about 44 years, son of Bhagwan Chand resident of # B-XI/617, Street No. 7, K.C. Road, Barnala, Tehsil and District Barnala, Punjab.
…Complainant
Versus
1. The Oriental Insurance Company Limited, Branch K.C. Road, Barnala, through Branch Manager.
2. The Oriental Insurance Company Limited, Registered and Head Office: A-25/27, Asaf Ali Road, New Delhi-110002 through its Branch Manager.
3. Punjab National Bank, Main Branch, Barnala, through its Branch Manager.
4. Medi Assist Insurance TPA Pvt. Ltd., Cashless Processing Centre No. 252/2, Kodichikkanahalli Main Road, Opposite Kailash Building, Bommanahalli, Bangalore-560068 through its Managing Director/Authorized Representative.
…Opposite Parties
Complaint Under Section 35 of the Consumer Protection Act, 2019.
Present: Sh. Dhiraj Kumar Adv counsel for complainant.
Sh. N.K. Garg Adv counsel for opposite party No. 1 & 2.
Sh. A.K. Jindal Adv counsel for opposite party No. 3.
Opposite party No. 4 exparte.
Quorum.-
1. Sh. Ashish Kumar Grover: President
2. Smt. Urmila Kumari: Member
3. Sh. Navdeep Kumar Garg: Member
(ORDER BY ASHISH KUMAR GROVER PRESIDENT):
The complainant has filed the present complaint under Section 35 of the Consumer Protection Act 2019 against Oriental Insurance Company Limited, Branch Barnala, at K.C. Road, Barnala, through its Branch Manager & others (in short the opposite parties).
2. The facts leading to the present complaint are that the complainant obtained Oriental Insurance Bank Saathi Policy for the year 2021-2022 valid from 3.12.2021 to 2.12.2022 of opposite party No. 1 & 2 through opposite party No. 3 being account holder of opposite party No. 3 for Rs. 10,00,000/- and in this regard the opposite party No. 2 issued policy No. 233599/48/2022/431. It is alleged that the complainant got insured himself and his wife namely Yasmeen and his son namely Bhunesh Bansal through above said policy. It is further alleged that previously the complainant had obtained the above said policies for the year 2014-15, 2015-16, 2016-17, 2017-18, 2018-19, 2019-20 and 2020-21 valid from 3.12.2014 to 2.12.2021 from the opposite parties. It is further alleged that son of the complainant was admitted in Fortis Escorts Heart Institute and Research Center Limited, Okhla Road, New Delhi due to congenital heart disease on 09-03-2022 and discharged from there on 19-03-2022 after his treatment and in this regard for cashless preauthorization for treatment was applied by the hospital on 1.3.2022 with the estimate costs of Rs. 3,77,000/- and cumulative authorization of Rs. 2,42,250/- was given by opposite party No. 4 after deduction of Rs. 1,34,750/-. Thereafter, on 18.3.2022 another enhancement of preauthorization was applied by the said hospital for Rs. 3,79,015/- and cumulative authorization of Rs. 3,09,015/- was given by the opposite party No. 4 on 18.3.2022 after deduction of Rs. 70,000/-. Thereafter, on 19.3.2022 another enhancement of preauthorization was applied by the said hospital for Rs. 3,94,246/- and cumulative authorization of Rs. 3,44,083/- was given by the opposite party No. 4 on 19.3.2022 after deduction of Rs. 50,163/-. It is further alleged that after treatment the opposite parties declined to payment of approved amount without any reason with malafide intention and several requests were made by the complainant to the opposite parties for payment but they declined for payment of treatment. Finally, Rs. 4,72,660/- was deposited by the complainant before the hospital for treatment of his son. The complainant has issued a notice dated 11.4.2022 through counsel to the opposite parties but they have not bothered to reply the same. Therefore, the said act and conduct of opposite parties clearly amounts to deficiency in services and negligence on the part of the opposite parties. Hence, the present complaint is filed for seeking the following reliefs.-
- The opposite parties may be directed to make the payment of Rs. 4,72,660/- alongwith interest.
- To pay Rs. 15,000/- towards mental tension and harassment.
- Further, to pay Rs. 10,000/- as litigation expenses.
3. Upon notice of this complaint, the opposite party No. 1 & 2 appeared and filed written version by taking preliminary legal objections interalia on the grounds that during the policy period opposite parties have received cashless claim request (Estimate) for a sum of Rs. 3,77,000/- and the same was processed vide Pre-Authorization claim No. 27637268, incurred on treatment of Beneficiary, Mr. Bhunesh Bansal Patient and Mr. Bhunesh Bansal (Beneficiary) was admitted at Escorts Heart Institute And Research Centre (GIPSA), New Delhi from 09.03.2022 for Nonrheumatic aortic valve disorder, unspecified and discharged on 19.03.2022. It is submitted that after scrutinizing the cashless claim documents by opposite parties team of panel doctors had raised an internal query vide letter dated 01.03.2022 asking the insured to submit follow documents:-
(i) Kindly provide the duration of the ailment along with first consultation papers or admission advise note-Provide duration of current ailment certify by treating doctor, also provide previous heart related treatment doctor.
(ii) Kindly provide supportive investigation reports and medical records in support to diagnosis Provide confirmatory investigation report in support of diagnosis.
It is further alleged that after the process of claim, opposite parties had taken medical opinion from their senior doctors wherein it was found that policy of the said Insured/claimant, Mr. Shiv Kumar since 03.12.2014 and Patient, Mr. Bhunesh Bansal, 19 year Male, with congenital heart disease admitted due to aortic valve replacement, the member was detected to have congenital heart, disease for which he underwent Balloon Aortic Valvotomy in 2007, presented with DOE. As per policy Clause 4.2 if the proposer is suffering or has suffered from any of the following diseases at the time of taking the policy, whether declared or not declared, they will be permanently excluded from the policy Coverage. Congenital Aortic valve disease is included in the list provided. So, in the above view, the said cashless Pre-Authorization was denied as per policy terms and conditions. The complainant has no locus-standi or cause of action to file the present complaint at this stage and is pre mature one ,if the complainant submitted the reply of queries then the opposite parties are ready to consider the claim.
4. On merits, it is admitted that the complainant obtained Oriental Insurance Bank Saathi Policy for the year 2021-2022. It is denied that policy was valid from 3.12.2021 to 2.12.2022 of opposite party No. 1 & 2 through opposite party No. 3 being account holder of opposite party No. 3 for Rs. 10,00,000/-. It is also denied that in this regard the opposite party No. 2 issued policy No. 233599/48/2022/431. It is further denied that the complainant got insured himself and his wife namely Yasmeen and his son namely Bhunesh Bansal through above said policy. It is further denied that previously the complainant had obtained the above said policies for the year 2014-15, 2018-19, 2019-20 and 2020-21 valid from 3.12.2014 to 2.12.2021 from the opposite parties. Further, the opposite parties No. 1 & 2 reiterated the averments as mentioned in the preliminary objections and finally prayed for the dismissal of complaint.
5. The opposite party No. 3 filed written version by taking legal objections on the grounds that complainant has got no locus-standi or cause of action to file the present complaint against the opposite parties. The complainant paid alleged amounts to Oriental Insurance Company Limited. It is further alleged that the answering OP No. 3 is not in the business of insurance nor under law can it carry on the business of insurance. It is further alleged that the role of the opposite party No.3 was only of a facilitator/corporate agent merely introducing the parties. The present complaint is wholly misconceived, groundless and unsustainable in law etc.
6. On merits, it is submitted that the complainant himself purchased the alleged insurance policy from the opposite party No. 1 & 2. It is further submitted that when the complainant never purchased any alleged policy from the answering opposite party then the question of submitting any claim form or other documents or declined of his claim by the answering opposite party does not arise at all. All other allegations of the complaint are denied and prayed for the dismissal of complaint.
7. The opposite party No. 4 was proceeded against exparte vide order dated 15.7.2022 due to non appearance.
8. The complainant filed rejoinder to the written version of opposite party No. 1 & 2 and Ld. Counsel for complainant on 1.12.2022 has suffered the statement that I do not want to file rejoinder to the version of opposite party No. 3.
9. To prove the case the complainant tendered into evidence affidavit of complainant Ex.C-1, copy of policy as Ex.C-2 (containing 4 pages), copy of bill dated 19.3.2022 Ex.C-3, copy of bills Ex.C-4 (containing 12 pages), copies of authorization letters Ex.C-5 to Ex.C-9, copy of discharge summary Ex.C-10, legal notice Ex.C-11, postal receipts Ex.C-12 to Ex.C-15 and closed the evidence.
10. The opposite party No. 1 & 2 tendered into evidence copy of policy Ex.O.P1.2/1, copy of discharge summary Ex.O.P1.2/2 (containing 10 pages), copy of Email Ex.O.P1.2/3, copy of reply of legal notice Ex.O.P1.2/4 (containing 4 pages), copy of terms and conditions Ex.O.P1.2/5 (containing 5 pages) and closed the evidence.
11. The opposite party No. 3 tendered into evidence affidavit of Arjun Vinayak as Ex.OP3/1 and closed the evidence.
12. We have heard the learned counsel for the parties and have gone through the record on the file. Written arguments filed by complainant and opposite party No. 3.
13. It is not disputed between the parties that the complainant obtained Oriental Insurance Bank Saathi Policy for the year 2021-2022 valid from 3.12.2021 to 2.12.2022 of opposite party No. 1 & 2 through opposite party No. 3 being account holder of opposite party No. 3 for Rs. 10,00,000/- and in this regard the opposite party No. 2 issued policy No. 233599/48/2022/431 (as per Ex.C-2 & Ex.O.P1.2/1). It is also not disputed between the parties that the complainant got insured himself and his wife namely Yasmeen and his son namely Bhunesh Bansal through above said policy. It is further not disputed that the son of the complainant was admitted in Fortis Escorts Heart Institute and Research Center Limited, Okhla Road, New Delhi due to congenital heart disease on 09-03-2022 and discharged from there on 19-03-2022 after his treatment (as per Ex.C-10 & Ex.O.P1.2/2).
14. Ld. Counsel for the complainant argued that previously the complainant had obtained the above said policies for the year 2014-15, 2015-16, 2016-17, 2017-18, 2018-19, 2019-20 and 2020-21 valid from 3.12.2014 to 2.12.2021 from the opposite parties. It is further argued that son of the complainant was admitted in Fortis Escorts Heart Institute and Research Center Limited, Okhla Road, New Delhi due to congenital heart disease on 09-03-2022 and discharged from there on 19-03-2022 after his treatment and in this regard for cashless preauthorization for treatment was applied by the hospital on 1.3.2022 with the estimate costs of Rs. 3,77,000/- and cumulative authorization of Rs. 2,42,250/- was given by opposite party No. 4 after deduction of Rs. 1,34,750/-( as per Ex.C-5). Thereafter, on 18.3.2022 another enhancement of preauthorization was applied by the said hospital for Rs. 3,79,015/- and cumulative authorization of Rs. 3,09,015/- was given by the opposite party No. 4 on 18.3.2022 after deduction of Rs. 70,000/- (as per Ex.C-6). Thereafter, on 19.3.2022 another enhancement of preauthorization was applied by the said hospital for Rs. 3,94,246/- and cumulative authorization of Rs. 3,44,083/- was given by the opposite party No. 4 on 19.3.2022 after deduction of Rs. 50,163/-(as per Ex.C-9). It is further argued that after treatment the opposite parties declined to payment of approved amount without any reason with malafide intention and several requests were made by the complainant to the opposite parties for payment but they declined for payment of treatment. It is further argued that Rs. 4,72,660/- was deposited by the complainant before the hospital for the treatment of his son (as per Ex.C-3 & Ex.C-4) and the complainant has issued a notice dated 11.4.2022 (Ex.C-11) through counsel to the opposite parties but they have not bothered to reply the same. Ld. Counsel for the complainant argued that the complainant has only received the policy Ex.C-2 which is containing 4 pages.
15. On the other hand, Ld. Counsel for the opposite parties No. 1 & 2 argued that the opposite parties have received cashless claim request (Estimate) for a sum of Rs. 3,77,000/- and the same was processed vide Pre-Authorization claim No. 27637268, incurred on treatment of Beneficiary, Mr. Bhunesh Bansal Patient and Mr. Bhunesh Bansal (Beneficiary) was admitted at Escorts Heart Institute And Research Centre (GIPSA), New Delhi from 09.03.2022 for Nonrheumatic aortic valve disorder, unspecified and discharged on 19.03.2022. It is further argued that after scrutinizing the cashless claim documents by opposite parties team of panel doctors had raised an internal query vide letter dated 01.03.2022 asking the insured to submit required documents as mentioned in the reply. It is further argued that after the process of claim opposite parties had taken medical opinion from their senior doctors wherein it was found that policy of the said Insured/claimant, Mr. Shiv Kumar since 03.12.2014 and Patient, Mr. Bhunesh Bansal, 19 year Male, with congenital heart disease admitted due to aortic valve replacement, the member was detected to have congenital heart disease for which he underwent Balloon Aortic Valvotomy in 2007, presented with DOE and as per policy Clause 4.2 if the proposer is suffering or has suffered from any of the following diseases at the time of taking the policy, whether declared or not declared, they will be permanently excluded from the policy Coverage and Congenital Aortic valve disease is included in the list provided, so the said cashless Pre-Authorization was denied as per policy terms and conditions. It is further argued that the complainant has no locus-standi or cause of action to file the present complaint at this stage and is pre mature one, if the complainant submitted the reply of queries, then the opposite parties are ready to consider the claim.
16. Ld. Counsel for opposite party No. 3 argued that the opposite party No. 3 is not in the business of insurance nor under law can it carry on the business of insurance. It is further argued that the role of the opposite party No.3 was only of a facilitator/corporate agent merely introducing the parties. It is also argued that complainant has got no locus-standi or cause of action to file the present complaint against the opposite party No.3.
17. Ld. Counsel for the opposite parties No. 1 & 2 specifically argued that the son of the complainant has pre-existing disease and this fact has not been disclosed by the complainant at the time of filing the proposal form or at the time of purchasing the policy and after the process of claim opposite parties had taken medical opinion from their senior doctors wherein it was found that policy of the said Insured/claimant Mr. Shiv Kumar since 03.12.2014 and Patient Mr. Bhunesh Bansal 19 year Male with congenital heart disease admitted due to aortic valve replacement the member was detected to have congenital heart disease for which he underwent Balloon Aortic Valvotomy in 2007, presented with DOE and as per policy Clause 4.2 if the proposer is suffering or has suffered from any of the following diseases at the time of taking the policy, whether declared or not declared, they will be permanently excluded from the policy Coverage. On the other hand, Ld. Counsel for the complainant further argued that the terms and conditions were not supplied to the complainant alongwith policy, therefore the same are not part of contract.
18. Moreover, we have carefully gone through the facts and evidence produced by both the parties and are of the view that the complainant has purchased the above said policy in year 2014 and since then the complainant continuously renewed the above said policy and paid the premium regularly and this fact is also proved from previous policies Ex.C-2 (containing 4 pages), but the opposite parties have failed to produce any cogent evidence on record to prove that they have medically examined the insured at the time of filling the proposal form or at the time of issuing the policy. The opposite parties No. 1 & 2 are also failed to place on record any cogent evidence to prove that they have supplied the terms and conditions to the complainant alongwith policy. Moreover, the opposite parties have failed to place on record the proposal form. So, we are of the view that the above said plea of the opposite parties is not tenable. Further, from the file it shows that the complainant has purchased the above said policy in the year 2014 (as mentioned at Page Numbers 2 & 3 of policy Ex.C-2) and after that the said policy was renewed regularly, so at this stage how the opposite parties could have raised the objection that the insured has pre-existing disease prior to the policy inception date. We are of the view that it was in the hands of insurance company to see and not to issue or renew the policy where person is not entitled to claim on account of treatment of Pre-existing disease. So, we are of the view that at this stage the opposite parties cannot be escaped from their liabilities by raising these types of unreasonable and unjustified grounds. The learned counsel for the complainant also relied upon the judgment of the Hon'ble Punjab and Haryana High Court (DB) 2012 (1) RCR (Civil)-901 in which the Hon'ble High Court held that “Claim of the petitioner denied on the ground that he was suffering from the disease prior to taking of the policy and was therefore covered under the exclusion clause of the policy. Single judge allowed the claim on the ground that it was for Insurance Company to see and not to issue policy where person is not entitled to claim on account of treatment of existing disease. No interference called for in the order of Single Judge. Held the pre-existing condition existed in the year 2002 which was five years prior to acquiring Insurance Policy. Claim cannot be denied. The opposite parties specifically relied upon the proposal but despite ample opportunities of evidence the opposite parties failed to produce the proposal form to support their version.
19. We have carefully gone through the insurance policy Ex.C-2 from which it established that the policy sent by the opposite parties No. 1 & 2 are containing 4 pages and the terms and conditions of the policy are not the part of the said insurance policy. Moreover, the opposite parties No. 1 & 2 have placed on record the copy of insurance policy Ex.O.P1.2/1 are also containing 4 pages and the terms and conditions of the policy are not the part of the said insurance policy. Therefore, the terms and conditions on which the opposite parties relied upon are not part of the contract. The Hon'ble Supreme Court of India titled Modern Insulators Limited Versus Oriental Insurance Company Limited reported in 2000(1) CPC-596 in which Hon'ble Supreme Court held that “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 disclose to the appellant, respondent cannot claim the benefit of the said exclusion clause.” The Hon’ble Supreme Court of India (2019) 6 SCC 212 in case titled Bharat Watch Company Through its Partner Vs National Insurance Company Limited held that “Conditions of exclusion under policy document not handed over to insured by insurer and in absence of insured being made aware of terms of exclusion, held, it is not open to insurer to rely upon exclusionary clauses”.
20. From the above discussion, it is proved that the claim of the complainant/insured was declined by the opposite parties No. 1 & 2 on unreasonable and unjustified grounds and there is clear cut deficiency in service and unfair trade practice on the part of opposite parties No. 1 & 2.
21. The complainant to prove his claim has placed on record Inpatient Summary Bill and Inpatient Detail Bill (Ex.C-3 & Ex.C-4) which shows that Rs. 4,72,660/- has been spent on the treatment of his son in the above said hospital.
22. In view of the above discussion, the present complaint is partly allowed against the opposite parties No. 1 & 2 and the opposite parties No. 1 & 2 are directed to pay an amount of Rs. 4,72,660/- alongwith interest @ 7% per annum from the date of filing the present complaint till its actual realization to the complainant. The opposite parties No. 1 & 2 are further directed to pay Rs. 5,000/- on account of compensation for causing mental torture, agony and harassment suffered by the complainant and Rs. 5,000/- as litigation expenses to the complainant. Compliance of this order be made within the period of 45 days from the date of the receipt of the copy of this order. Copy of the order be supplied to the parties free of costs. File be consigned to the records after its due compliance.
ANNOUNCED IN THE OPEN COMMISSION:
5th Day of August, 2024
(Ashish Kumar Grover)
President
(Urmila Kumari)
Member
(Navdeep Kumar Garg)
Member
