BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

 Complaint No.262 of 2019

      Date of Instt. 12.07.2019

      Date of Decision: 10.01.2023

1.       Gautam Narang S/o Sh. Sudhir Narang R/o WM 157, Basti     Guzan, Jalandhar.

2.       Niti Narang W/o Gautam Narang R/o WM 157, Basti Guzan, Jalandhar.

..........Complainants

Versus

1.       The Oriental Insurance Company Ltd., Branch Office II, SCO 50,     Jeevan Raksha, PUDA Complex, Opposite Tehsil, Jalandhar        144001 (Punjab) Through its Branch Manager.

2.       Raksha Health Insurance TPA Pvt. Ltd., SCO 39, First Floor, Sector-26, Madhya Marg, above Barbeque, Chandigarh through          its authorized signatory.

….….. Opposite Parties

          Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)   

Present:       Smt. Harleen Kaur, Adv. Counsel for the Complainants.

Sh. A. K. Arora, Adv. Counsel for OP No.1.

OP No.2 exparte.

Order

Dr. Harveen Bhardwaj (President)

1.                This complaint has been filed by the complainants, wherein alleged that the Complainants are law abiding citizens, complainant No.1 is working as a Businessman and Complainant No.2 as Housewife having respect and roots in society, conscious to the need of health insurance allured by tempting benefits obtained PNB-Oriental Mediclaim insurance policy 2017 as per the particular as under:-

                   The Mediclaim Policy covered risk to Reimburse/indemnify expenses for any disease contracted or suffered from any illness/ailments/disease or injury sustained by the insured person. The first health insurance Policy inception date 13/10/2018 was taken from OP No.1 through its authorized agent for policy period starting as in the Policy Schedule i.e. valid upto 12/10/2019. The Mediclaim policy Schedule was issued in the name of Complainant No.1 insured. The total amount of gross renewal premium as consideration was paid to OP No.1 through its agent/representative, which was accepted after fully satisfying continued insurability and without questioning the credentials of the insured persons without any demur. Ex C-1 are the ID cards issued by the Insurance company mentioning the policy number (this is the only document relating to the policy available with the complainant as the original cover note was handed over to the opposite party at the time of making the claim as the cover note was the only document available with the complainant. The OP No. 1 issued/delivered to the Complainant No.1 only Policy Schedule from the inception of the risk coverage under Mediclaim Insurance Policy. The Policy document was not ever issued/delivered to the Complainants during the period of the Policy. It is pertinent to submit that it was mandatory and obligatory upon OP No.1 to have issued policy document which expresses the contract of insurance between the Insurer i.e. OP No.1 and the insured Complainants. There is/was no ground or reason or occasion for not issuing the policy bond. Normally Cover Note/policy Schedule is only interregnurn during which policy is prepared and issued. The terms and conditions including exclusion clauses were not ever communicated and explained nor made known to the Complainants and were not part of Medi claim insurance policy. The OP No. 1 has agreed and undertaken to indemnify for medical and surgical expenses or illness/sickness, accident and surgical operation etc. contracted within the period of Mediclaim insurance full extent without any limitation and deduction. Accordingly, complainant has got the right of indemnification/reimbursement for the whole amount of Mediclaim Insurance Policy expenses incurred or any loss or damage or peril covered during the tenure of Mediclaim insurance policy. The complainant No 2 wife of the Complainant No.1 co-insured complained of pain in abdomen and vomiting. Complainant no.2 had to be admitted at Daya Nand Medical College and Hospital and was attended upon by Dr. A. Sood. On clinical examination and tests, the complainant No 2 was diagnosed with chronic, calcific, pancreatitis was advised surgery. ERCP was done PD was stented stones were removed. The complainant No.2 was admitted on 07/03/2019 and discharged on 12/03/2019. After discharge from Hospital, Complainant No.1 lodged a claim for total amount in the sum of Rs.85,417/- charges for operation inclusive of medical expenses incurred for surgery and subsequent medicines. The said charges were paid to the hospital in cash by the complainant No.1 from his own pocket. And subsequently applied for reimbursement of the medical expenses incurred on surgery and subsequent medication including hospitalization, to the OP No.1 for quick medical settlement and payment of the said medical expenses to the complainant No.1. As per requirement duly completed prescribed Claim Form alongwith Discharge Summary Certificate. Investigation Flow Sheet, MRI Report and Receipts for Rs. 85,417/- paid to hospital by the Complainant No.1 alongwith all supportive documents completed in all respects were supplied to the OP No.1 and complainant complied with all formalities and requirements whichever were asked for quick settlement and reimbursement of Mediclaim for full amount of Rs. 85417/-. The Member ID of complainant no.2 is 055618966292 and policy Number is 233108/48/2018/2107. However to the utter surprise of the complainant No.1 the bonafide and genuine claim of the complainants was firstly rejected vide letter dated 11/03/2018 by OP No.2 stating that “this is not the denial of treatment but only the denial of credit facility, can send your claim for reimbursement for review”. Subsequent to this the complainant no.1 made a fresh representation to OP No.1 with respect to the payment/reimbursement of the bonafide medical claim. However, subsequently email corresponding dated 03/04/2019 the claim of the complainant was reputed on the pretext of exclusion clause 4.2. The refusal to pay/reimburse just and rightful, legitimate genuine and bonafide Mediclaim by opposite parties is arbitrary malafide, perverse and against law on a non-existing grounds without any valid justification, there is wholly misapplication of independent mind based on conjectures and surmises and the same is not sustainable in the eyes of law. The OPs have taken protection of purported Exclusion clause of two years as a waiting period for the covering of the medical condition as in the case of complainant No.2, the rejection of Mediclaim reimbursement is totally misconceived, misconstrued and misinterpreted. The said alleged Exclusion clause purporting to a waiting period of two years for the purpose of inclusion of this category of medical condition was at no point of time ever made known to the Complainants. Moreover, policy was taken on yearly basis then there is no logic or justification underlying such condition that said medical condition/surgery shall be covered only on completion of 2 years of mediclaim policy because the yearly policy itself will come to end on the expiry of policy period of one year then period of 2 years would never reach and this condition itself becomes infructuous and meaningless. The act and conduct, approach and behavior of OPs have been arbitrary, irrational and malevolent causing lot of mental tension and harassment to the complainants. The approach of OPs is inhuman indifferent, indolence and this sadly behavior is writ large on the part of OPs and is enough to saddle with charge of deficiency in rendering deficient and improper service as envisaged under the provisions of the Consumer Protection Act, 1986 as amended up to date (for brevity the Act) and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to reimburse/pay total amount of claim in the sum of Rs.85,417/- as stated supra alongwith interest @ 12% per annum from the date lodgment mediclaim till date of actual payment to the complainants. Further, OPs be directed to pay a compensation of Rs.50,000/- for causing mental tension and harassment to the complainant and Rs.11,000/- as litigation expenses.

2.                Notice of the complaint was given to the OPs, but despite service OP No.2 failed to appear and ultimately OP No.2 was proceeded against exparte, whereas OP No.1 appeared through its counsel and filed written reply and contested the complaint by taking preliminary objections that there is no deficiency of service or unfair trade practice on the part of answering opposite parties and that being so the present complaint is not maintainable. It is further averred that the complainant has purchased PNB Oriental Mediclaim Policy 2017, bearing no.233108/48/2019/1306 for the period 13.10.2018 to 12.10.2019 covering the risk of complainants no.1 & 2 and their children namely Palak Narang and Rohan Narang for a sum of Rs.1 Lac. The said policy of insurance was in continuation of earlier policy of insurance bearing no.233108/48/2018/2107 for the period 13.10.2017 to 12.10.2018. As per the discharge summary submitted by the complainant no.2 Smt. Niti Narang, the patient was admitted in DMC, Ludhiana as a case of Pain Abdomen and Vomiting. Patient is a known case of Chronic Pancreatitas with Dilated Main Pancreatitic Duct with intraductal Calculi. ERCP done. The treatment taken by Complainant no.2 falls under two year of exclusion and the policy in question is in second year of inception and as such the claim lodged by the complainant was not payable as per clause 4.2 of the policy of insurance. Since the claim of claimant did not fall within the preview of the policy terms, conditions and as such it was declined by M/s Raksha Health Insurance TPA Pvt. Ltd. i.e. the claim settling agency of OP No.1. Letter dated 31.05.2019 to this effect was written to complainant no.1. That being so, the present complaint is not maintainable. On merits, the factum with regard to taking of insurance policy by the complainant from OP No.1 is admitted and the fact regarding the lodging of the claim is also admitted and it is also admitted that the claim was returned by the OP, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement. 

4.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

5.                We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for both the parties, very minutely.

6.                It is admitted fact that the complainant got mediclaim policy covered risk to reimburse/indemnify expenses, which has been proved as Ex.OP1/1. The validity of the same is from 13.10.2018 to 12.10.2019. It is also proved that the complainant was also having previous policy, which was valid from 17.09.2017 to 16.09.2018 and the same has been proved as Ex.OP1/2. The complainant has proved that the wife of the complainant i.e. Complainant No.2 fell ill and she was admitted to DMC Ludhiana and was diagnosed with chronic, calcific, pancreatitis. Surgery was done upon her. She was admitted on 07.03.2019 and was discharged on 12.03.2019. The complainant has proved on record the investigation reports, MRI report alongwith discharge summary of the complainant No.2 as Ex.C-3. The payment receipts and final bill has been proved as Ex.C-4 to Ex.C-9. It has been proved and admitted that the complainant lodged a claim vide Ex.C-2 alongwith the discharge summary and other documents. It has also been admitted that the claim was returned with the remarks that this is not the denial of treatment, but only the denial of credit facility. The complainant was suggested to send his claim for reimbursement for review. This reply has been proved by the complainant as Ex.C-10 and Ex.C-11. The complainant again made fresh representation to OP No.1 with regard to reimbursement of the claim, but the same was repudiated on the pretext of exclusion clause of 4.2 of the policy conditions. The repudiation letter, vide email has been proved as Ex.C-12.

7.                The contention of the complainant is that the terms and conditions including exclusion clause were never communicated and supplied to the complainant nor the same were ever made known to the complainant, whereas the OP has denied this fact and has submitted that the terms and conditions alongwith policy were sent to the complainant and the complainant was well within the knowledge of exclusion clause of 4.2. He has relied upon the law ‘M/s Anjaneya Jewellery Vs. New India Assurance Co. Ltd.’ and submitted that in the present complaint, it has been specifically mentioned in the policy schedule that the insurance under this policy is subject to the conditions, clauses, warranties and endorsements. The complainant has never agitated that the policy clauses were not supplied to him nor the same were binding upon him, whereas the policy schedule alongwith its clauses is a contract of insurance, which is binding upon both the parties. But the law referred by the Ld. Counsel for the OP ‘M/s Anjaneya Jewellery Vs. New India Assurance Co. Ltd.’, is not applicable to the facts of the present case as the case was remanded back by the Hon’ble Supreme Court to the Hon'ble National Commission for fresh decision and on 21.09.2021 the same was decided by the Hon'ble National Commission in favour of the complainant, vide case no.CC/1094/2018. The complainant has relied upon the law, titled as “Manager, Shriram Transport Finance Co. Ltd. & Ors. Vs. M. A. Jose” in case no.2020 (1) CLT 281 (NC), wherein it is held that ‘It is a settled proposition of law that a positive fact needs to be proved first- The contention of the OPs that they had supplied copies to the complainant is a positive assertion. Therefore, the legal proposition of the law cast the duty upon the OPs to discharge that burden’. The counsel for the complainant has further relied upon the law, titled as “National Insurance Co. Ltd. & Ors. Vs. M/s Saraya Industries Ltd.” in case no.2020 (1) CLT 278 (NC), wherein it is held that ‘it is the duty of the insurance company to supply all the terms and conditions of an insurance policy to the policy holder. There cannot be any presumption under law on the terms and conditions’. She has relied upon the law, titled as “Bhanwar Lal Vishnoi Vs. Oriental Insurance Company Ltd”., in case no.2017 (1) CLT 401 (NC), wherein it is held that ‘the insurance company has to prove that the exclusion clause under which the claim is sought to be repudiated was communicated to the complainant and mentioned in policy cover’. And then relied upon a law, titled as “J. R. Banik Vs. National Insurance Co. Ltd., in a case no.2017 (2) CLT 376, wherein it is held that ‘it was duty of OPs that terms and conditions should be supplied by the insurance company. It has been further held that agents of insurance companies to achieve a target of number of insurance policies act in haste and collect premium and the consumers are supplied either cover note only or the insurance certificate without any policy clauses or terms and conditions’

8.                Ex.C-12 shows that the claim has been rejected/repudiated by the Raksha TPA, but as per the law laid down by Hon’ble Punjab State Commission, in F.A No.1105 of 2014, date of decision 25.04.2017, titled as ‘Sukhdev Singh Nagpal Vs. The New Karian Pehalwal Cooperative Agriculture Service Society’, ‘TPA has no authority to reject the claim-such power lies exclusively with the insurance company’ Thus, the OP has failed to prove that the complainant was well within the knowledge of the terms and conditions of the policy and the exclusion clause or the conditions of waiting period of 24 months. More so, perusal of the document shows that the policy was taken by the complainant on yearly basis and in such circumstances, the patient cannot wait for expiry of the period of two years to get the treatment, when it becomes urgent to get the treatment. Even otherwise once the policy is on the yearly basis, the policy will come to an end on the expiry of a year and the period of two years would never reach and the condition laid down of waiting period of 24 months becomes of no value and meaningless.

9.                It has been held by the Hon’ble State Commission, in case titled as “New India Assurance Co. Ltd and others Vs. Ravinder Pal Singh”, 2008 CTJ 769 (CP) (SCDRC) that ‘the exclusionary clause, where there is a condition of three years cannot be made basis for repudiating the claim since the policy run on yearly basis after being renewed by the holder, the condition of three years had no logic underlying it-clearly it was a continuous Good Health Mediclaim Policy.’ In view of the above referred law and considering the facts of the case, the repudiation letter is held illegal and the same is hereby set-aside.

10.              In view of the above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to reimburse the amount of Rs.85,417/- with interest @ 9% per annum from the date of lodging of mediclaim till its realization. Further, OPs are directed to pay Rs.10,000/- as compensation for causing mental tension and harassment to the complainant and Rs.5000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

11.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated          Jaswant Singh Dhillon    Jyotsna               Dr. Harveen Bhardwaj     

10.01.2023         Member                          Member           President