CONSUMER DISPUTES REDRESSAL COMMISSION – X

GOVERNMENT OF N.C.T. OF DELHI

  UdyogSadan, C – 22 & 23, Institutional Area

            (Behind Qutub Hotel)

    New Delhi – 110016

     Case No.457/2013

MR. RITESH MOHAN

R/O A-338, GROUND FLOOR,

VIKASPURI, NEW DELHI 110018                   …..COMPLAINANT

Vs.

THE MANAGING DIRECTOR/CONCERNED OFFICER,

THE ORIENTAL INSURANCE COMPANY LTD.

MANJUSHA BUILDING, NEHRU PLACE,

NEW DELHI 110019                                           …..RESPONDENTS

             Date of Institution-05.09.2013

Date of Order-28.07.2023

                               O R D E R

RITU GARODIA-MEMBER

1. The complaint pertains to deficiency in service on the part of OP in rejecting the claim of the complainant.

2. Brief Facts as stated in complaint are that complainant had taken a medical insurance policy namely “Happy Family Floater Policy Schedule” bearing No. 272012/48/2013/45 valid from 06.04.2012 to 05.04.2013.

3. The wife of the complainant was admitted in Varanasi Hospital on 28.03.2013 for gall bladder surgery. The complainant tried to inform the OP on its toll free number: 18001801166/77, several times but there was no response. He also informed OP’s agent Mr. Tiwari (agent code- 19115). He was assured by the agent that intimation will be given to insurance company. The complainant was also given a mobile no. 9810299831 for intimation to OP by the same agent but no one responded on that number.

4. The complainant wife was discharged on 31.03.2013. The complainant alleges that an expense of Rs.25,000/- was incurred on the aforesaid treatment. A claim was lodged with OP on 10.04.2013. The said claim was repudiated vide letter dated 01.05.2013. The complainant contacted OP telephonically to settle the claim multiple times but to no avail. The complainant sent a legal notice dated 05.06.2013.

5. Complainant prays for the reimbursement of the claimed amount of Rs.25,000/- along with interest @18%p.a; Rs.1,00,000/- towards damages for time loss, mental and physical harassment; and Rs.25,000/- towards litigation expenses.

6. Notice was issued to OP but none appeared. OP was proceeded Ex-parte vide order dated 08.05.2014. The OP appeared for first time on 30.08.2017. Efforts were made to resolve the matter between the parties. However, the matter could not be settled.

7. Complainant has filed evidence by way of affidavit and has exhibited the following documents:-

1. Copy of the Policy is exhibited as Ex.CW1/A.
2. Letter dated 01.05.2013 is exhibited as Ex.CW1/B.
3. Legal Notice and postal receipt are exhibited as Ex.CW1/C and Ex.CW1/D respectively.
4. Affidavit is exhibited as Ex.CW1/E.

8. The complainant has also filed letter from Vipul MedCorp TPA Private Limited dated 13.04.2013, and an email dated 21.04.2013 He also filed a letter from the aforesaid TPA to OP dated 22.04.2013, discharge records dated 31.03.2013 of Varanasi Hospital, bills for medicine, investigation and the hospital receipts.

9. Complainant has filed written arguments in consonance with the averments made in the complaint.

10. We have considered the material placed on record and arguments submitted by the parties. The policy paper shows that the complainant’s family was covered under Happy Family Floater Policy Schedule from 06.04.2012 to 05.04.2013.

11. The discharge paper from the hospital shows that complaint’s wife was admitted on 28.03.2013 for “Cholelithiasis”. The treatment undertaken was Laproscopic Cholecystectomy. She was discharged on 31.03.2013.

12. The letter dated 30.04.2013 from Vipul MedCorp TPA Private Limited to the complainant is as follows:-

AS PER THE POLICY CONDITION THE HOSPITALISATION SHOULD BE INTMATED WITHIN 48 HOURS OF ADMISSION OR BEFORE DISCHARGE FROM THE HOSPITAL BUT NO SUCH INTIMATION HAS BEEN RECEIVED AT OUR END IN THE LIGHT OF THE SAID CONDITIONS. WE SEEK YOUR COMMENTS ON WHY YOUR CLAIM SHOULD BE ENTERTAINED. PLEASE PROVIDE COPY OF ID PROOF/ AGE PROOF OF THE INSURED. PLEASE PROVIDE COPY OF POLICY PAPERS PRIOR TO YEAR 2011 IF ANY.

13. The email dated 21.04.2013 from the complainant to OP shows that the complainant had called on OPs toll free no. 18001801166/77 many times but no one received the call. He called the agent Mr. Tiwari (Agent Code- 19115) informing him to give intimation to TPA about the hospitalisation. He called Mr. Tiwari again after 2-3 days. The said Mr. Tiwari gave him one mobile No. 9810299831 but there was no response given on this number. OP has neither replied to this email nor rebutted the contention in the complaint filed before this Commission.

14. Letter dated 22.04.2013 by Vipul MedCorp TPA Private Limited to OP is as follows:- PATIENT MRS. RENU MOHAN PAL WAS DIAGNOSED AS ACUTE CHOLEITHIASIS & UNDERWENT LAPROSCOPIC CHOLECYSTECTOMY AT VARANASI HOSPITAL ON 29/03/2013 AS THIS IS SECOND YEAR RUNNING POLICY COMMENCING FROM 06.04.2011 AND CALCULUS DISEASE IS AN EXCLUSION FOR FIRST TWO YEARS OF THE POLICY HENCE, IN OUR OPINION THE CLAIM MERITS REPUDIATION UNDER THE CLAUSE NO.4.3 PLEASE FIND COPY OF RELEVANT DOCUMENTS ENCLOSED HEREWITH FOR YOUR APPRORIATE ACTION.

15. OP in its letter dated 01.05.2013 to the complainant has repudiated the claim stating that “The claim is not payable as per the doctor’s opinion”.

16. It appears that three forms of repudiation has taken place that are as follows:

1. OP insurance company vide letter dated 01.05.2013 has repudiated the claim on the ground that claim is not payable as per the doctor’s opinion. OP has neither sent this doctor’s opinion along with the repudiation letter nor mentioned the name of the doctor and his report in the repudiation letter. OP has not even taken the effort to place doctor’s opinion on record before this Commission.
2. The TPA vide letter dated 13.04.2013 to the complainant states that hospitalization should have been intimated within 48 hours of admission or before discharge as per the policy condition. However, no clause of the policy condition has been mentioned. The complainant has already explained that he had repeatedly tried to contact OP but to no avail. Furthermore, it is the usual practice of the hospital to intimate TPA.

3. The TPA vide letter dated 22.04.2013 to OP insurance company has opined that the complainant was hospitalized for cholecystectomey and calculus disease is excluded under clause 4.3 of the policy. These policy terms and conditions were never placed on record even when OP appeared and participated in settlement process, no terms and conditions were filed. The burden to show that complainant was aware of terms and conditions of the policy or the same was duly dispatched and duly received by complainant was on OP which was not discharged.

17. Hon’ble State Commission Chandigarh in Religare Health Ins. C. Ltd. Vs Harwant Singh and another decided on 08.02.2021 has made the following observation:

Although, the Insurance Company has alleged that all the terms and conditions of the Insurance Policy was supplied to the insured, but no cogent and convincing evidence, such as dispatch number, postal receipts etc., has been produced on record to prove this fact. Hon'ble Supreme Court in case Modern Insulators Ltd. v. Oriental Insurance Co. Ltd. (2000) 2 SCC 734 reversed the order of the Hon'ble National, observing that it failed to consider the fact that the terms and conditions of the Insurance Company were not supplied to the insured and upheld the order of the State Commission, allowing the claim. Thus, when the insured was not aware about the terms and conditions of the Insurance Policy, then the question of concealment of material facts can also not be raised. It is the duty of the Insurance Company to bring all the terms and conditions of the Insurance Policy to the specific notice of the insured. In the absence of notice of the terms and conditions of the policy, the same cannot be enforced upon the insured.

18. Hon’ble Apex Court in Anju Kalsi Vs. HDFC Ergo General Insurance Limited and Another CA No. 1544-1545 of 2022 decided on 21.02.2022 has observed:

The evidence which was tendered by way of an affidavit on behalf of the insurer by its Manager (Legal), does not displace the burden which was cast on the bank, whose customer the deceased was, of establishing that the debit card usage guide containing the requisite terms and conditions had actually been furnished to the deceased account holder. The NCDRC upheld the decision of the SCDRC by holding that there was no specific averment in the complaint that the debit card usage guide was not enclosed to the forwarding letter. This finding proceeds on a misreading of the averments in the complaint. The NCDRC also held that the forwarding letter referred to the usage guide and if the guide had not been furnished, the deceased account holder would in the ordinary course of human conduct have written to the bank complaining that usage guide had not been made available

19. In the light of above discussion it is clear that there has been inconsistency and arbitrariness in decision making  in rejecting the claim on different grounds as can be seen from the correspondence between the insurance, TPA and the insured. It is also clear that insurance has wrongfully with held the claim.

20. The complainant has filed following receipts of Varanasi Hospital and medical research :-

21. The complainant has filed following medicine bills as following:

22. Thus, the complainant incurred a sum of Rs. 17,100 towards hospital expenses and Rs.1,830 towards medicines.

23. Hence, we find OP guilty of deficiency in service and direct it refund:

1. Rs.18,930/- (Rs.17,100/- + Rs.1,830/-) with 7% interest from date of complaint till realization.
2. Rs.10,000/- as compensation for mental harassment, physical inconveniences.
3. Rs.5,000/- towards litigation expenses.

24. This order be complied with within 90 days from the date of the order.  This entire amount is payable to the complainant within a period of 90 days from the date of order failing which the entire amount will further carry an interest @9% per annum till it is paid to the complainant.

25. File be consigned to record room.