Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 119/18.06.2018
Smt. Sudesh Goel w/o Late Lajpat Goel
r/o 169A, Old Gupta Colony, Near Vijay Nagar,
Delhi-110009 …Complainant
Versus
OP. The Oriental Insurance Co. Ltd.
Bancassurance Divisional No. 29, 88,
Janpath Ground Floor, Connaught Place,
New Delhi-110001 ...Opposite Party
Date of filing: 18.06.2018
Coram: Date of Order: 04.11.2024
Shri Inder Jeet Singh, President
Ms Rashmi Bansal, Member -Female
FINAL ORDER
Inder Jeet Singh , President
It is scheduled today for order (item no.1)
1.1. (Introduction to case of parties) - The complainant/Insured filed the complaint against her Insurer/OP for allegations of deficiency of services and of unfair trade practice because of declining of reimbursement of hospitalization & other medical bills of treatment of her husband Shri Lajpat Goel [insured/beneficiary under the same policy], initially by withdrawing pre-auhorisation then declining reimbursement of the first bill & also second medical bills of Rs. 31,933/- and Rs.3,05,454/- respectively despite it were covered under the Oriental Medi-claim Policy no.272900/48/2017/24968 valid from 25.02.2017 to 24.02.2018 [hereinafter referred as ‘policy or insurance policy]. It was declined on the false pretext of pre-existing disease and break in continuity of policy. Whereas, the complainant protests and denies the plea of OP that her husband’s current ailment has nothing to do with previous sickness as well as there is continuity of insurance policy.
The complainant seeks reimbursement of medical bills of Rs.31,933/- and Rs.3,05,454/-along with interest of 18%pa from the date of claim form till the date of repayment, damages of Rs. 2,00,000/- of compensation in lieu of mental agony, costs of Rs. 11,000/- and other appropriate relief under the circumstances.
1.2. The OP opposed the complainant by denying allegations of deficiency of services or of unfair trade practice and OP also justifies repudiation of claims as the same were as per terms of policy, since the patient was k/c/o for CKD for last 3-4 years. Moreover, as per policy exclusion clause 4.1 of policy the claim is not made out. There was break of 141 days in the continuity of policy, which does not fall within three years of policy. It cannot be considered deficiency of services or unfair trade practice.
2.1. (Case of complainant)–On 05.10.2012 the complainant purchased medical insurance policy first time from the OP to cover the medical exigency for her and her family members and then insurance policy was renewed till the latest insurance policy effective from 25.02.2017 to 24.02.2018 for two persons ( the complainant and her husband Sh. Lajpat Goel), she deposited premium amount of Rs. 4,730/- against receipt dated 03.02.2017. Initially the policy was from 05.10.2012, it was renewed on 04.10.2013 but unfortunately the mediclaim policy due on 04.10.2014 could not be renewed because of circumstances beyond the control of complainant; however, thereafter complainant got the medi-claim policy from 25.02.2015 (which was after three months of expiry of previous policy) and since then it is being renewed regularly, punctually and without any break. The said break of three month during the policy of 2014-15 cannot be considered to be actually break for any purposes, the policy was continuing from 05.10.2012 onwards.
2.2 Complainant’s husband Sh. Lajpat Goel, who is also covered under the insurance policy, had fell sick due to renal problem on 23.03.2017, he was admitted in Max Healthcare Hospital, Shalimar Bagh, he was discharged on 25.03.2017, medical bill no. 103/16/1/Cs/0007657 dated 25.03.2017 for Rs. 31,933/- was paid by them. Then complainant lodged claim for reimbursement of such expenses by furnishing original bills, discharge summary and other documents, but the OP declined the claim after two months by letter dated 19.05.2017 on the pretext that patient is known-case of hypertension of CKD for 3-4 years, which is a pre-existing disease/ailment; the claim was repudiated under exclusion clause 4.1 of the policy. Whereas, the complainant’s husband took the treatment about 4-1/2 years back of the said medical policy, the allegation of pre-existing ailment since 3-4 of years is baseless, it was mala-fide intention to repudiate the genuine medi-claim of the complainant. Therefore, complainant served legal notice dated 06.06.2017, which was not complied by the OP.
2.3 Unfortunately, complainant’s husband again fell ill, he was hospitalized on 15.06.2017 at Max Healthcare Hospital, Shalimar Bagh, Delhi, where he was treated till 25.06.2017, the medical expenses were incurred for which claim no. 14880250 for Rs. 3,05,454/- was lodged with the OP by completing all the formalities. However, the OP by its communication dated 18.11.2017 repudiated the claim of complainant by relying upon same clause no. 4.1 of insurance policy that complainant’s husband-patient was having pre-existing health ailment.
2.4 The complainant has been requesting the OP for reimbursement of valid claim of treatment and hospitalization expenses of her husband but OP is not paying any heed, the acts of OP have caused immense harassment and shocked as initially there was pre-authorization/cashless sanction of Rs.1 lakh for medical treatment on 22.06.2017 but it was withdrawn without any just and sufficient reason but under mala-fide. That is why the complainant filed the complaint for reimbursement of medical bills of Rs. 31,933/- and further amount of Rs. 3,05,933/- spent on both the occasions, besides compensation, cost and other appropriate relief.
2.5 The complainant is accompanied with copies of – insurance policies, discharge summary dated 25.03.2017.claim form, denial letters dated 19.05.2017 and 18.11.2017, copies of medical records, bills, receipts, cashless claim, case of summary/DOA-15.06.2017, investigations reports, clearance, legal notice, reply.
3.1 (Case of OP)- The reply of OP is composite of some of the facts are not disputed but other are denied. There is no dispute in respect of issue of insurance policy by OP. However, the OP denies the allegations of the complaint. The complaint is opposed by the OP that there is no cause of action in favour of the complainant and against the OP. The complainant’s husband was already suffering from pre-existing ailments, therefore, exclusion clause 4.1 of the policy, besides another clause 5.9 of fraud/ misrepresentation/concealment, apply to the present situation and no claim is made out. The OP is not liable to make any payment (paragraph 8 of the reply reproduces exclusion clauses 4.1 and 5.9 stating to be terms and conditions of policy attached).
3.2. The complainant mentions claim under various heads for reimbursement of medical bills, compensation, interest and cost, however, it has not been properly affixed with the fee payable, the complaint is liable to be dismissed on this score. The complainant is guilty of forgery as false complaint has been filed.
The complainant took insurance policy from OP through her banker OBC, firstly effective from 05.10.2012 to 04.10.2013 and then from 05.10.2013 to 04.10.2013 and thereafter it is admitted case of complainant that policy was discontinued. The complainant again took medi-claim policy through her banker OBC, it was for one year from 25.02.2015 to 24.02.2016, after delay of more than 141 days ( and not about three months as asserted by the complainant). This last policy was renewed till the subject insurance policy w.e.f. 25.02.2017 to 24.02.2018.
3.3 The complainant’s husband/patient, 68 years of age, was hospitalized firstly w.e.f. 23.3.2017 to 25.03.2017, he was diagnosed “chronic kidney disease, hypertension and uremia, with the past medical history of K/C/O hypertension/chronic kidney disease” as per discharge summary issued by the Hospital. He was again hospitalized from 15.06.2017 to 25.06.2017. The TPA processed the claims and found that the patient had contacted the ailments, which falls in the exclusion clause 4.1 of the insurance policy. The subject insurance policy is the third year just after completion of two year, consequently exclusion clause 4.1 of policy terms and condition is applicable, which mandates that pre-existing health condition or disease are excluded for such insured person upto three years to be computed from incept of policy and subject to condition that the policy was continuing. The first policy is to be treated from 25.02.2015 to 24.02.2016 and consequently the claim is not tenable. Moreover, the clause no. 5.9 of policy is also applicable and OP is not liable to pay any amount. That is why repudiation letter dated 19.05.2017 in respect of first hospitalization and second letter dated 28.11.2017 in respect of second hospitalization were rightly issued, after receiving proper recommendation from the TPA. The complaint has been filed to gain the sympathy of the present Commission but it is false and flimsy complaint. The complaint is liable to be dismissed.
3.4 The reply is accompanied with copies of - latest insurance policy, terms and conditions of the policy to emphasis to exclusion clause no. 4.1 and also other clause 5.9.
4. (Replication of complainant) –The complainant in her replication reaffirms her case and she denies the allegation of written statement by emphasizing contents of complaint vis-à-vis the policy has been subscribing continuously from the year 2012 and a small break would not matter as the previous policy was renewed till the subject insurance policy. The complaint is re-affirmed correct.
5.1. (Evidence)- The complainant Smt Sudesh Goel led evidence by filing her detailed affidavit with the support of documentary record, which was appended with pleading.
5.2. The OP also led its evidence by filing detailed affidavit of Ms. Preeti Gupta, Manager-in-Charge, Divisional Office-29, Janpath, New Delhi, it is on the lines of written statement.
6. (Final hearing)- Both the parties have filed their written arguments followed by oral final submissions by Sh. Bhupender Kumar, Advocate for complainant and Sh. Bhupesh Chandna, Advocate for OP. Their rival contentions are not repeated here, since it will be considered and assessed while appreciating the same. The complainant has referred two case out of them, in one case it is clearly mentions that no observations on the point of law. The complainant also refers Manmohan Nanda Vs United India Insurance Co Ltd Civil Appeal no.8386/2015 dod 6.12.2021 that ratio laid down therein negates all defense of OP since neither the complainant has concealed any fact nor OP filed the proposal form to corroborates its plea nor there was pre-existing ailment as alleged by OP, the exclusion clause cannot be invoked to repudiate the claims.
7.1 (Findings)- The submissions of both the side are considered, analyzed and assessed including evidence of parties, the documentary record, the provisions of law and settled principles of law.
7.2. The OP took the objection that the complainant has been filed without affixing the proper fee payable, in terms of paragraph 20 of the complaint, which is opposed by the complainant.
On per perusal of the record (since this case filed was received by way of transfer from the other District), there is mentioning of numbers of IPOs on the margin of first proceedings by the then Registry that fee of Rs.400/- was filed. This complaint is under the provisions of the Consumer Protection Act, 2016. The Central Government had framed the Consumer Protection Rules, 1987 u/s 30 of the Consumer Protection Act, 1987. Rule 9A prescribes scale of fee and when the claim is above Rs.5 lakhs and upto Rs.10 lakhs, the proper fee is Rs.400/-. Since total claim amount is Rs.5,48,387/-, its corresponding proper fee is Rs.400/- and it has been filed by the complaint. Therefore, it is held that complaint was properly affixed with fee of Rs.400/-. This contention is disposed off.
7.3. It is manifest from plain reading of case of parties, that the relationship of the complainant and of the OP are of the Insured and insurer; the medi-claim policies were issued from time to time inclusive of latest policy by OP. The complainant’s husband is also covered under the policy issued. It is also not disputed that the complainant's husband was hospitalized twice and he was given medical treatment as indoor patient of Max Healthcare Hospital and the complainant had paid all medical bills from her own purse, since cashless facility sanctioned was withdrawn.
7.4. However, the basic issue involved is 'whether or not the complainant's husband had pre-existing ailment? Whether or not the complainant is entitled for reimbursement of medical bills claim under the insurance policy and other relief vis-à-vis the exclusion clause 4.1 would be applicable? The evidence of the parties is to be considered in summary way for adjudicating these issues.
7.5 Since there is an issue of pre-existing disease or its concealment or of exclusion clause 4.1, they are inter-related, thus they are taken together. There is no dispute of latest renewed insurance cover/medi-claim policy is w.e.f. 05.08.2016 to 06.08.2017. The OP has also filed terms & conditions policy to corroborate its stand. The policy holder is complainant and patient/insured is her husband, who is also covered under the policy.
There are two episodes of hospitalization of Sh. Lajpat Goel and on both occasions different amount of medical expenses were incurred and there are also different repudiation letters. It is appropriate to deal each episode and claims separately.
8.1 There is no dispute that the patient/insured was admitted in Max Hospital, Shalimar Bagh, he remains as indoor patient from 23.03.2017 to 25.03.2017, his discharge summary (at page no. 115) was issued, which consists detail of past history and final diagnosis. The OP had repudiated the claim by letter dated 19.05.2017 ( at page no. 21 of the paper book). While invoking exclusion clause 4.1 that the patient had known case of CKD for the last 3-4 years. The OP has also improved terms and conditions policy containing exclusion clause 4.1. The complainant had spent amount of Rs. 31,933/- on this first episode of hospitalization.
There are two parts of exclusion clause 4.1, one/former clause is of pre-existing of health condition that those health conditions are excluded for insured person upto 3 years of policy being in force continuously and second/later part is that certain specific ailments have been excluded from liability of insurer. Moreover, there is also condition that in case of continuity of renewal is not maintained then subsequent cover shall be treated as fresh policy. The present case is not covered under the second/later part of clause 4.1, however, it is admitted case of complainant that there was break of policy, which OP computes break of 141 days (and complainant mentions it 3 months) before the commencement of policy on 25.02.2015 to 24.02.2016, which is also prior to subject policy w.e.f. 25.02.2017 to 26.02.2018. The hospitalization was from 23.03.2017 to 25.03.2017, which is within the currency of this insurance policy. It is also admitted case of the complainant that her husband took medical treatment of CKD about four and half year back of the said medical policy, that is there was pre-existing ailment. By reading these two factors together of previous ailments as well as conditional exclusion clause 4.1, apart from the policy w.e.f. 25.02.2017 is not in continuation from initial policy issued on 05.10.2012 as there was break after 04.10.2014 that new policy was issued on 25.02.2015, which does not qualify the condition of three years. The policy issued w.e.f from 25.02.2015 is to be treated as fresh policy, the three years ends on 26.02.2018, but episode of first hospitalisation is prior to three years. Therefore, the complainant is not entitled for reimbursement of amount of Rs. 31,933/- regarding first episode of his hospitalization.
8.2 The OP has also invoked clause no. 5.9 of the insurance policy as if there was misrepresentation or fraud or concealment of fact, however, this objection does not sustain viz. (i) this plea was never taken in the repudiation letter, (ii) it is settled law that the OP cannot take the objection in the written statement beyond the repudiation letter and (iii) the insurance policy and its terms and conditions brought and proved by OP mentions clause no. 5.9 as "cancellation clause" of sending of the notice of cancellation of policy by Insurer to the insured under certain circumstances, it is entire different clause from clause no. 5.9 mentioned in the written statement and evidence of the OP.
9.1 So far the second episode is concerned of hospitalization of the indoor patient from 15.06.2017 to 25.06.2017 in the Max Hospital and by considering facts, features, evidence of parties along-with the settled law, the following conclusions are drawn:-
(i) The complainant has proved medical papers of the treatment rendered to patient/insured, reports, certificates by doctors, medical bills , which prove that the complainant's husband was admitted in Max Hospital from 15.06.2017 to 25.06.2017. The medical expenses of Rs. 3,05,454/- are pertaining to his hospitalization & treatment There is nothing in the evidence of OP to dispute bills or its amounts.
(ii) The patient insured was admitted in Max Healthcare Hospital and the complainant has proved, all the documents including case summary furnished with the OP. The complainant has also proved case summary of patient.
(iii) The insured patient was admitted in Max Hospital, for which case summary (at page no. 28) has been proved and the summary clearly explains that the patient was diagnosed of acute myopathy with respiratory failure on niv, sepsis, pneumonia (Llebsiella-esbl) besides other ailments. The ailment of myopathy is generally referred of disease that affects the muscles that control voluntary movement in the body, the patient experiences muscles weakness due to dysfunction of the muscle fiber. Moreover, the complainant has spent medical expenses of Rs. 3,05,454/-.
The OP has repudiated this claim by letter dated 18.11.2017, again invoking clause no. 4.1 that there is previous ailment of CKD for the last 3-4 years. However, the grounds of this repudiation letter is contrary the material on record viz. (a) it does not fall either under first part or in the second part of clause 4.1, (b) the complainant has proved certificate issued by the treating doctor that patient was treated for myopathy and myopathy is not the kidney disease; the said certificate also explains that the present ailment myopathy has no relation with the previous ailment of kidney disease and (c) the concept of pre-existing ailment mentioned in part one of exclusion clause 4.1 does not apply to this ailment of myopathy vis a vis it is not the case of OP that myopathy is pre-existing ailment. To say, the second episode of hospitalization from 15.06.2017 to 25.06.2017 pertaining to treatment of myopathy etc is covered within the tenor of policy w.e.f. 25.02.2017 to 26.02.2018 even by treating it to be either fresh policy or despite less than three years from the continuity of policy w.e.f. 25.02.2015 onwards.
(iv) Since, the circumstances are establishing case of medical treatment and expenses, which are covered within the medical policy as well as during the tenure of policy but OP failed to pay valid claim amount of Rs.3,05,454/-. It is deficiency of services, for want of reimbursed of valid insurance claim vis a vis exclusion clause 4.1 does not apply to the situation in hand.
(v) At the cost of repetition, the clause no. 5.9 as projected to be policy clause, does not apply in terms of conclusion already drawn in sub-paragraph 8.2 above.
(vi) The complainant made her all efforts for getting reimbursement of the claim of medical bills and expenses, firstly she could succeed in cashless facilities but it was withdrawn by OP and then her entire claim was declined. Consequently, she had faced trauma for un-successfully getting the claim reimbursed.
Therefore complainant is held entitled for reimbursement of medical claim bills of Rs.3,05,454/-of second episode of hospitaisation.
9.2 The complainant has claimed interest at the rate of 18% pa. Although, interest is not a component of the insurance policy contract, as pointed out on behalf of OP, however, the complainant has parted with the money, while paying the medical bills, therefore, had the medical bills were reimbursed the complainant would not have been deprived of her money. Therefore, by taking into account totality of circumstances, simple interest at the rate of 6%pa from the date of discharge on 25.06.2017 till the date of realization of amount is determined in favour of complainant and against the OP.
9.3 The complainant has also sought damages of Rs.2,00,000/- towards harassment, mental agony and litigation costs of Rs. 11,000/-, therefore, considering features of case of both sides especially conclusions in aforementioned paragraphs, compensation of Rs 25,000/- (being consonance to the situation) is allowed in favour of complainant and against OP. The cost of litigation is also determined as Rs.10,000/-in her favour and against the OP.
10. Accordingly, the complaint is allowed in favour of complainant and against the OP to pay/reimburse medical bills amount of Rs.3,05,454/- alongwith interest of 6%pa from the date of discharge on 25.06.2017 till realization of amount, besides to pay compensation of Rs.25,000/- & costs of Rs.10,000/- to complainant. The OP is also directed to pay the amount within 45 days from the date of this order. In case amount is not paid within 45 days from the date of order, then interest will be at the higher rate of 8% pa on amount of Rs.3,05,454/- (instead of 6%pa)
11. Announced on this 4th day of November, 2024 [कार्तिक 13, साका 1946].. Copy of ther Order be sent/provided forthwith to the parties free of cost as per rules and to upload it on the website of the Commission.
[Rashmi Bansal]
Member (Female)
[Inder Jeet Singh]
President
[ijs-135]
