DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JALANDHAR

Consumer Complaint No.407 of 01.10.2018

Date of Decision : 23.02.2021

1. Mrs. Pooja Chopra aged 59 years w/o Bikramjit Chopra, s/o Late Sh.Girdhari Lal, r/o 603, Rishi Nagar, Jalandhar.

2. Bikramjt Chopra, s/o Late Sh. Girdhari Lal, r/o 603, Rishi Nagar, Jalandhar 144003.

….. Complainants

Versus

1. The Oriental Insurance Co. Ltd., CB02-SCO -50, Puda Complex, Ladowali Road, Jalandhar 144001 through its Branch Manager.

2. Medi Assist India TPA Pvt. Ltd., 49, Shilpa Vidya Buildings, First Floor, Shakti Industrial Layout, 3^rd Phase, J.P Nagar, Banglore -560078 through its Director/Authorized Officer.

3. Punjab National Bank, Urban Estate, Phase II, Jalandhar 144022, through its Branch Manager.

…Opposite parties

Complaint under the Provisions of Consumer Protection Act

QUORUM:

SH.KULJIT SINGH, PRESIDENT

SMT.JYOTSNA, MEMBER

ARGUED BY:

For complainant : Sh.Amit Sharma, Advocate

For OP no.1 : Sh.A.K.Arora & Sh.Nitish Arora, Advocates

For OP no.3 : Sh.Sandeep Kalia, Advocate

For OP No. 2 Exparte

ORDER:-

KULJIT SINGH, PRESIDENT

1. The present complaint has been filed by complainant under Section 12 of the Consumer Protection Act, 1986 against the OPs on the averments that they obtained Mediclaim PNB –Oriental Royal Mediclaim Policy for employees of PNB covering the risk to reimburse/indemnify expenses to the insured persons incurred for hospitalization and for medical/surgical treatment at any hospital/nursing home and or domiciliary hospitalization from OPs. The policy period up to the limit of the sum insured from OP no.1 through its authorized agent OP no.3 for the period stated in the policy schedule no.119425 dated 15.04.2015 by renewal effective from 05.05.2015 to 04.05.2016. The policy number 233108/48/2016/164 was allotted The insured persons covered by policy for medical benefit under mediclaim insurance policy as under :-

The cover note and policy schedule was issued in the name of complainant no.2. The premium of Rs.6830/- as consideration was deducted from saving bank account of complainant no.2 with OP no.3 for remittance to OP no.1 by renewal and accepted after satisfying the continued insurability and without questioning the credentials of the insured persons without any demur and strings. The policy document was not issued/delivered to the complainants by OP no.1 during whole of the period of the policy. It was mandatory and obligatory upon OP no.1 to have issued policy document which expresses the contract between insurer i.e. OP and insured complainants. The terms and conditions including exclusion clauses were not ever communicated and explained nor made known to the insured complainants. The OPs have agreed and undertaken to reimburse /indemnify for medical and surgical expenses for illness/sickness, accident and surgical operation etc. The complainants have got right of indemnification/reimbursement for whole amount of medical and surgical expenses incurred. The complainant no.1 wife of complainant no.2 co-insured with OPs consulted Dr. G.S Jammu Hospital Kapurthala Road Jalandhar with complaint of Morbid Obesity, Breathlessness, Knee pain, early onset of Type II Diabetes and on examination was diagnosed after clinical tests was advised Gastric Bypass Surgery for these diseases. Complainant no.1 was admitted in the Jammu Hospital Jalandhar on 02.07.2015 Dr. G.S Jammu surgeon performed Mini Gastric Bypass Surgery on 02.07.2015. Complainant no.1 remained admitted from 02.07.2015 and discharged on 04.07.2015. The complainant was charged Rs.2,64,294/- for this surgery and complainant no.2 paid the same to hospital. After discharge from the Hospital, complainant no.2 preferred claim for the said surgery for Rs.2,64,294/- for medical and surgical expenses incurred for reimbursement for hospitalization and on account of medicine and surgical operation for reimbursement and treatment expenses to OP no.1 to settle the claim. All the formalities and requirements which ever asked for, were completed and complied with for settlement and reimbursement of medical claim. To utter surprise and dismay of the complainants when OP no.2 vide letter dated 24.09.2015 arbitrarily repudiated mediclaim reimbursement for Rs. 2,64,294/-. OP no.2 has wrongly repudiated the genuine and legitimate claim in oppressive manner. The complainant no.1 has undergone BARIATRIC SURGERY UNDER THE RUBRIC IF SURGICAL GASTRENTROINROLOGY, a life saving surgery and NOT PLASTIC/COSMETIC SURGERY, Cosmetic Surgery is different from obesity surgery. As such, all the treatments taken by complainant no.1 does not fall under Exclusion Clause No. 4.16 of the policy as misconceived by OP no.2. As such, the above clause would not binding on the insured as per IRDA 2002 as amended by Regulations 2017. These regulations are framed by IRDAI to protect the interest of the policy holders and required to be followed by insurance companies. The OPs are guilty of rendering deficient service, negligent, arbitrary and malafide, rejection of claim amount for Rs. 2,64,294/-. Therefore, the complainants have filed the present complaint and prayed that OPs be directed to reimburse the mediclaim amount of Rs.2,64,294/- along with interest @ 12% per annum from the date of lodging the claim up to the date of actual payment besides Rs.50,000/- as compensation for mental harassment and Rs.10,000/- as costs of litigation.

2. Upon notice, OP no.1 appeared and filed separate written reply and contested the complaint of the complainant by raising preliminary objections that the there is no deficiency in service on the part of OP no.1. The claim of the complainant was not payable and was rightly repudiated as per Exclusion Clause 4.16 of the policy. The complaint is wrong and denied. The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by the insured person in connection with or in respect of any treatment of obesity or condition arising therefrom. The OP no.1 denied all the averments contained in the complaint even on merits and it prayed for dismissal of the complaint.

3. Notice sent to OP no.2 on 18.12.2018 by registered post. Thirty days have elapsed. Register cover has not been received back. So presumption of valid service arises, but none has appeared on behalf of OP no.2 in spite of service. As such, OP no.2 is proceeded against exparte vide order dated 23.01.2019 passed by this Commission.

4. OP no.3 appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that complaint is not maintainable. The complaint is ex-facie, misconceived, vexatious and devoid of any merit. The complaint is baseless and is flagrant abuse of process of law. The OP no.3 denied all the averments contained in the complaint even on merits and it prayed for dismissal of the complaint.

5. The complainant has tendered in evidence copies of documents Ex.C-1 to Ex.C-18. On the other hand, OP no.1 tendered in evidence copies of documents Ex.OP-1/1 to Ex.OP-1/6.

6. We have heard learned counsel for the parties and have gone through the record very carefully as well as written arguments filed by the complainant on the record.

7. The complainant has tendered in evidence Ex.C-1 is copy of mediclaim policy schedule issued in the name of Bikramjit Chopra in which period of insurance mentioned as 05.05.2015 to 04.05.2016. Ex.C-2 is copy of policy schedule in which period of insurance as mentioned as 05.05.2014 to 04.05.2015. Ex.C-3 is copy of policy schedule, in which period of insurance is mentioned as 05.05.2013 to 04.05.2014. Ex.C-4 is copy of endorsement schedule in which endorsement effective from 04.07.2013 to 04.05.2014. Ex.C-5 is copy of prescription slip. Ex.C-6 is copy of medical certificate of Pooja Chopra. Ex.C-6 is copy of surgical note. Ex.C-7 is discharge summary of Pooja Chopra in which date of admission is mentioned as 02.07.2015 and discharged on 04.07.2015. Ex.C-8 to Ex.C-13 are prescription slips. Ex.C-14 is copy of claim form. We have also examined other documents Ex.C-15 to Ex.C-18 on the record.

8. On the other hand, OP no.1 tendered in evidence copy of policy schedule Ex.OP-1/1. Copy of prospectus as Ex.OP-1/2. Ex.OP-1/3 is copy of claim form. Ex.OP-1/4 is copy of medical certificate. Ex.OP-1/5 is copy of surgical note. Ex.OP-1/6 is copy of letter dated 24.09.2015.

9. It is an established fact that the complainant obtained Mediclaim PNB –Oriental Royal Mediclaim Policy covering risk to reimburse/indemnify expenses to the insured persons incurred for hospitalization and for medical/surgical treatment at any hospital. The complainant no.1/Pooja Chopra admitted in the hospital on 02.07.2015 and discharged on 04.07.2015 during currency period of the policy, this fact is proved from copy of discharge summary Ex.C-7 on the record. The complainant get treatment from OPs during currency period of the policy, this fact is proved from policy document Ex.C-1 on the record. The disease mentioned in claim form Ex.C-14 on the record. The column Ailment/Disease/Injury-Contracted/Sustained-Morbid Obesity. OPs rejected the claim of the complainant vide repudiation letter dated 24.09.2015 on the record. The ground in this letter mentioned as :- under exclusion clause 4.16 treatment of obesity or condition arising there from and any other weight control programme, services or supplies etc are not payable hence claim. But it is duty of the insurance company/OPs to prove that these terms and conditions were explained to the insured when cover note was issued. The insurance company/OPs has to prove that exclusion clause under which the claim is sought to be repudiated was communicated to the complainant. Only the cover note alongwith schedule of policy was supplied to the complainant. The detailed terms and conditions were not supplied to the complainant. It is the duty of the insurance companies to supply the terms and conditions of the policy. From perusal of the entire record, we find that nowhere mentioned therein that the complainants were explained about the exclusion clause on the basis of which, OPs repudiated the claim of the complainants.

10. The main controversy involved in this case OPs repudiated the claim of the complainant on the basis of exclusion clause 4.16 and OPs also pleaded that the complainant obtained surgery from Jammu Hospital Jalandhar for treatment of obesity which is not covered under the policy. But it is duty of the OPs that has to prove that exclusion clause under which the claim is sought to be repudiated was communicated to the insured. This fact is clear from judgment of Hon’ble State Commission, Panchkula in case titled as Star Health and Allied Insurance Co. Ltd Vs. Asha & others, reported in 2015(1) CLT 590 wherein it has been held that “Insurance policy , terms and conditions, exclusion clause held, it is the duty of the insurance company to prove that these terms and conditions were explained to the insured when cover note was issued.”

11. The learned counsel for the complainants produced judgments in support of their case, firstly the case law titled as J.R Banik versus National Insurance Company Ltd reported in 2017(2) of Hon’ble National Commission New Delhi wherein it has been held that “it was the duty of OP that terms and conditions should be supplied by the insurance company. Non-production of terms and conditions to be the insured amounts to deficiency in service and the repudiation of the claim is unjust and arbitrary. Further held- it appears that the agents of insurance companies to achieve a target of number of insurance policies, act in haste and collect premiums. The consumers are supplied either cover note only or the insurance certificate without any policy clauses or terms and conditions. If the insurance companies take a little pain to provide terms and conditions along with policy certificate, then there will be limited scope of litigation.” Further the case law titled as Bhanwarlal Vishnoi versus Oriental Insurance Company Limited reported in 2017(1) CLT 401 of Rajasthan State Consumer Disputes Redressal Commmission Circuit Bench, Udaipur, wherein it has been held that “the Insurance company has to prove that exclusion clause under which the claim is sought to be repudiated was communicated to the complainant and mentioned in the policy cover.”

12. Keeping in view the totality of the facts and circumstances of the case, it is well settled that the insurance companies who is taking specific plea about repudiation of any claim is to prove that the exclusion clause was explained the consumers. When OPs failed to prove this fact they cannot derive any benefit from this exclusion clause. As such, the OPs wrongly repudiated the claim of the complainants. Therefore, we allowed the complaint of the complainants and OPs no.1 and 2 are directed to reimburse the mediclaim amount of Rs.2,64,294/- to the complainants along with interest @ 5% from the date of lodging the claim till its realization jointly and severally. The complainants are entitled Rs.20,000/- as compensation and litigation expenses. The opposite parties No. 1 and 2 are also directed to deposit Rs.5000/- as costs in the Consumer Legal Aid Account maintained by this Commission. Both the opposite parties No. 1 and 2 jointly and severally liable to comply with the above mentioned order.

13. The compliance of the order be made within 45 days from receipt of copy of this order.

14. Let copies of the order be sent to the parties, as permissible, under the rules.

15. File be indexed and consigned to the record room after its due compliance.

ANNOUNCED IN THE OPEN COMMISSION:

23^rd Day of February 2021

(Kuljit Singh)

President

(Jyotsna)

Member