BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.388 of 2019
Date of Instt. 05.09.2019
Date of Decision: 31.05.2023
Bharat Bhushan (since deceased) s/o Late Samar Singh through His Legal Representatives:-
a) Kusam wd/o Late Sh. Bharat Bhushan (Wife/widow)
b) Akash s/o Late Sh. Bharat Bhushan (Son)
c) Chandi Bhagat s/o Late Sh. Bharat Bhushan (Daughter)
All r/o W.Q.167, Mohalla Talian, Basti Sheikh, Jalandhar.
..........Complainant
Versus
1. The Oriental Insurance Co. Ltd. Registered Head office, A-25/27, Asif Ali Road New Delhi-110002. Through It's Manager.
2. The Oriental Insurance Co. Ltd, Branch office II, SCO 50, Jeevan Raksha, P.U.D.A, Complex, Opposite Tehsil Complex, Jalandhar. Through It's Branch Manager.
3. The Oriental Insurance Co. Ltd, Regional office, SCO 359-360, 1st Floor, Sector 44-D, Chandigarh-160047, Through It's Northern Regional Manager.
4. The Oriental Insurance Co. Ltd, Regional office SCO 122, 5th Floor, Feroze Gandhi Market, Ludhiana Through It's Northern Regional Manager.
5. Raksha TPA Pvt. Ltd. 15/5, Mathura Road, Faridabad, Through its Managing Director/General Manager. (TPA I.D No. YA0000000338).
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Sanjiv Bansal, Adv. Counsel for the Complainant.
Sh. Brijesh Bakshi, Adv. Counsel for OPs No.1 to 4.
None for OP No.5
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that complainant had taken a Health/Mediclaim insurance policy bearing no.233108/48/2018/3289 having member I.D no.055619523522, having insured code no.84665986 issued by your office i.e. OP No.2. The said policy was issued on 03-09-2016 for the period from 19-02-2018 to 18-02-2019. At the time of taking policy, Complainant had made premium of Rs.7250/- to OPs. At the time of issuance of policy, the representative of OP assured the complainant that company will indemnify the Complainant if he himself, his daughter and his wife would suffer any medical expenses during period of policy. Complainant purchased the policy, on believing the representation made by the agent of opposite parties. The persons insured under the said policy were complainant himself along with his wife namely Kusam and his daughter Chandani Bhagat. The policy was duly issued by OPs to complainant. As per the policy, OPs were duty bound to indemnify the health risk of complainant, his wife and his daughter. On 03-11-2018 at about 06 P.M i.e. within the policy period, complainant was coming to his house on his bye cycle and when complainant reached near the petrol pump situated 120 feet Road Basti Sheikh, Near Arya School, then the driver of Car bearing no.PB08-BQ-9222 took turn in very rash and negligent manner and struck with the bye cycle of the complainant. Due to the strong hit of car with the bye cycle of complainant, complainant fell down and received multiple injuries. Thereafter complainant was taken to civil hospital then complainant was taken to NHS hospital Kapurthala Road Jalandhar. Thereafter, the family members came to the Hospital. Due to this accident Complainant suffered multiple injuries on his body and Complainant also received fracture on his Head i.e. Right Temporal Bone. Initially on 03-11-2018 complainant was admitted in NHS Hospital Kapurthala Road Jalandhar. Complainant was remained admit in NHS Hospital Kapurthala Road Jalandhar till 15-11- 2018. Since complainant was suffering with his head pain and blood was oozing from his Right Ear repeatedly, as such on 15- 11-2018 complainant was got admitted in Dayanand Hospital Ludhiana. Complainant was discharged from D.M.C Hospital on 22-11-2018. Due to the said accident complainant lost the ability to hear properly from his Right Ear. The complainant was admitted on 03-11-2018 in NHS Hospital Kapurthala Road Jalandhar and he was discharged on 15-11-2018. Complainant had incurred the expenditure of Rs.1,50,000/- approximately, in NHS Hospital Kapurthala Road Jalandhar. Thereafter complainant was admitted in Dayanand Medical Collage (DMC) Ludhiana on 15-11-2018 and discharged from this hospital on 22-11-2018. Since the day of accident, the total expenditure incurred on the medical treatment of complainant was about Rs.2,00,000/-. His client had timely informed the OP No.5 and raised the claim for the expenses incurred on his medical treatment and all the necessary documents have already been supplied to noticees as per their demand. Accordingly, two letters dated 17-11-2018 and dated 20-11-2018 were also issued to the concerned Hospital by OP No.5. Thereafter, complainant had approached OP No.2 many a times for getting his claim, but OP No.2 always avoided complainant on one pretext or the other. Moreover, wherever any document in furtherance of the medical claim of complainant was demanded by the respondents including Raksha TPA, the same was very much provided by complainant to them. Complainant had requested a number of times to respondents for his claim, but they never gave any satisfactory reply of the same. Complainant is running pillar to post for getting claim for the last 6 months but OP No.2 is harassing and humiliating complainant on one pretext or the other. The complainant had got served legal notice to OPs on 05-08-2019 through his counsel. After receiving legal notice OP had repudiated the claim of complainant vide letter dated 27-08-2019 on basis of illegal, false and frivolous ground 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 make the payment of Rs.2,00,000/- along with interest @ 18% per annum on delayed payment alongwith compensation to the tune of Rs.50,000/- as mental harassment & agony suffered in the interest of justice, equity and fair play.
2. Notice of the complaint was given to the OPs and accordingly, OPs No.1 to 4 appeared through its counsel and filed joint written reply and contested the complaint by taking preliminary objections that the above noted complaint is not maintainable under the law against the respondents. It is further averred that there is complicated question of law and facts involved in the matter and the same cannot be adjudicated in summary proceedings, therefore this Forum has got no jurisdiction to entertain, try and decide the present complaint. It is further averred that the complainant is barred by his own act, conduct, laches and negligence from filing the present complaint and claiming the relief as prayed in the present complaint. It is further averred that the complainant is guilty of concealment of material facts and has not approached the Forum with clean hands and as such is not entitled to any relief from this Forum. It is further averred that the complainant has got no cause of action to file the present complaint against the answering respondents. There has been no default or undue delay, on the part of the answering respondents in processing the claim of the complainant and even otherwise, the claim has been repudiated as per the policy terms and conditions. The fact of the matter is that the complainant is Bank Account Holder of Oriental Bank of Commerce and with his own free will after reading and understanding the policy terms and conditions he joined the OBC- Oriental Mediclaim Policy which is subject to terms and conditions thereof. At the time of joining the policy he made a false and wrong declaration and intentionally concealed the facts and did not disclose the preexisting ailment or disease and treatment at the time of submitting the proposal form. Thereafter the Policy No.233108/48/2018/3289 for the period 19.02.2018 to 18.02.2019 was issued. As per the policy terms and conditions clause 5.6 written notice must be given to company/TPA within 48 hours of admission or discharge from Hospital etc whichever is earlier unless waived in writing and as per clause 5.8 all claim documents must be submitted within 15 days if discharge from the Hospital. But the complainant failed to comply with the above conditions and belatedly raised a claim and submitted claim form with forwarding letter for delay condonation on dated 24.01.2019 and raised a claim of Rs.43,135/- for reimbursement of Medical Expenses incurred at DMC Hospital Ludhiana for the treatment period 15.11.2018 to 22.11.2018. As per the Discharge Summary submitted by the complainant of the DMC Hospital the patient was admitted with shortage of breath for 4-5 days and irrelevant talk 15 days and was having Past History of TYPE 2 DM for 22 years, Aspergillosis for 18 Years, Old Treated Pulmonary Koch 20 Years Ago. The patient had been diagnosed as case of RSA WITH FRACTURE RIGHT PARIETO-TEMPORAL BONE WITH CSF OTORRHEA WITH RIGHT CSOM, TYPE 2 DIABETES MALLETUS, DCMP WITH EF - 20%, OLD TREATED PULMONARY KOCH, OLD TREATED ASPERGILLOSIS. The patient had been treated for the preexisting diseases and complications thereof. Despite delay and lack of opportunity of investigation given to the opposite parties, the claim of the complainant was considered as goodwill gesture by condoning the delay in submission of the claim form and the case was sent to the TPA Raksha for further processing after the receipt of Claim Form on 24.01.2019 from the complainant. The documents submitted by the complainant were duly considered and it was found from perusal of discharge summary, treating doctor's report and treatment records that the complainant suffered from the ailments and complication thereof the preexisting disease/ ailment and that despite having been treated for the same and continually suffering from the same he had concealed the relevant facts and took policy from the company. Now, on raising the present claim the above point was observed and it is pertinent to note that as per the policy terms and conditions clause 4.1 the claim evidently and conclusively was liable to be rejected and was not maintainable. The complainant had entered the mediclaim policy with preexisting disease meaning thereby that the claim pertaining to the present ailment could not be raised especially in the first year of policy and that too over and above the concealment thereof by him. In view of the above the answering respondent was constrained to repudiate the claim of the complainant and repudiation letter dated 27.08.2019 was duly sent to the complainant. No intimation, claim or any record/ document was ever submitted to the OPs regarding any alleged treatment or expenditure at NHS Hospital Kapurthala Road Jalandhar. The alleged claim for Rs.1,50,000/- at NHS Hospital Kapurthala Road Jalandhar is not at all maintainable as the same was never intimated or disclosed to the opposite parties and seems a false, forged and fabricated claim wrongly raised as an afterthought because the said treatment/expenses were not even referred in the claim form submitted on 24.01.2019. All the more so even if the same was actually incurred the same is not payable at this stage as (i) the same was neither intimated nor raised within time prescribed in policy terms and conditions and its delay does not deserve to be condoned as the company loses the valuable rights under the policy contract (ii) the said claim was left out by the complainant for reimbursement in his full knowledge and the same stood foregone and foreclosed when the complainant did not raise the same while submitting the claim for reimbursement of medical expenses at DMC Hospital Ludhiana. (iii) Even otherwise the other claim is prima facie again hit by the concealment of material facts at the time of taking policy. However the full further details of the said claim of NHS Hospital expenses cannot be further commented upon as the same were never reported for consideration. The complainant has filed the instant complaint by concealment of material facts and purposeful misstatement and thus the same is not maintainable and liable to be dismissed. On merits, the factum with regard to issuance of medi-claim policy to the complainant by the OP is admitted, 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. OP No.5 filed its separate written reply and contested the complaint by stating that the OP No. 5 registered under the Companies Act 1956 is licensed TPA under IRDA Act 2001 to act as a facilitator for the processing of the claim. The insurance contract is between the insured and the insurer i.e. The Oriental Insurance Co. Ltd. (Respondent No.1 to 4). As per the privity of the contract, the insurance company by itself or its TPA (Respondent No.5) is obliged to process the claim as per the terms and conditions of the policy. It is further averred that by the virtue of the Memorandum of the Understanding, signed with the Oriental Insurance company Ltd. (Respondent No.1 to 4), Respondent No.5 is nominated as the Third Party Administrator for arranging to process the claims of the Insurance Company as per the terms and conditions laid down by Respondent No.1 to 4. The complainant has entered into the contract with Respondent No.1 to 4. The insurance contract is between the insured and the insurer i.e. The Oriental Insurance Co. Ltd. as Respondent lo. 5 is just a third party administrator who acts on the basis of policy entered between the Complainant and the Respondent No.1 to 4 and lastly submitted that the name of the OP No.5 should be deleted from the array of the parties.
4. Rejoinder not filed by the complainant.
5. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
6. 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 the complainant very minutely.
7. It is proved by the complainant that he purchased mediclaim policy from the OP No.2 on 03.02.2016, which was effective from 19.02.2018 to 18.02.2019. The complainant has alleged that on 03.11.2018, the complainant was coming to his house on his bicycle and when he reached near the petrol pump situated at 120 feet Road, Basti Sheikh, the driver of Car bearing no.PB08-BQ-9222 took turn in rash and negligent manner and struck with the bicycle, with the result the complainant fell down and received multiple injuries. He was taken to Civil Hospital and then he was taken to NHS Hospital Kapurthala Road Jalandhar. DDR to this effect was also registered. He has proved the DDR Ex.C-4. He remained admitted in NHS Hospital from 03.11.2018 till 15.11.2018. Thereafter, he was got admitted in DMC on 15.11.2018 as the complainant was having head pain and the blood was oozing from his right ear. He was discharged from DMC Hospital on 22.11.20218. The complainant has alleged that the OPs were duly informed about the accident. He raised a claim, but the same was repudiated, despite he provided all the required documents.
8. The OPs have admitted that the complainant was issued the mediclaim policy, but it has been alleged that the complainant had joined the OBC Oriental Mediclaim Policy as he was the bank account holder. He, read over all the terms and conditions of the policy. It has further been alleged that at the time of joining of the policy, he made false and wrong declaration about his pre-existing ailment and the treatment. He has referred the clause 5.6 and 5.8 of the terms and conditions of the policy. The complainant has concealed the Past History of TYPE 2 DM for 22 years, Aspergillosis for 18 Years, Old Treated Pulmonary Koch 20 Years Ago. The patient had been diagnosed as case of RSA WITH FRACTURE RIGHT PARIETO-TEMPORAL BONE WITH CSF OTORRHEA WITH RIGHT CSOM, TYPE 2 DIABETES MALLETUS, DCMP WITH EF - 20%, OLD TREATED PULMONARY KOCH, OLD TREATED ASPERGILLOSIS. The claim has allegedly rightly been repudiated.
9. The complainant has proved on record the medical record of the hospital and investigation reports from Ex.C-6 to Ex.C-11. Perusal of Ex.C-5 shows that on receiving the information, DDR was registered and the statement of the complainant could not be recorded as he was declared unfit by the hospital authorities for the statement. The discharge summary of the complainant from NHS Hospital shows that he was admitted on 03.11.2018 and was discharged on 15.11.2018. He was diagnosed with head injury, csf otorrhoea, Hyponatremia, sepsis, recurrent LVF ef 25%, IHD and COPD. Perusal of Ex.C-10 shows that the complainant was admitted in DMC Hospital on 15.11.2018 and was discharged on 22.11.2018. He was diagnosed with RSA WITH FRACTURE RIGHT PARIETO-TEMPORAL BONE WITH CSF OTORRHEA WITH RIGHT CSOM, TYPE 2 DIABETES MALLETUS, DCMP WITH EF-20%, OLD TREATED PULMONARY KOCH, OLD TREATED ASPERGILLOSIS. In past history, it has been mentioned that he was suffering from TYPE 2 DM for 22 years, Aspergillosis for 18 Years, Old Treated Pulmonary Koch 20 Years Ago. Perusal of these diseases allegedly mentioned in Ex.C-10. TYPE 2 DM for 22 years means Diabetes, Aspergillosis for 18 Years means infection-fungal disease and Old Treated Pulmonary Koch 20 Years Ago means tuberculosis lungs. Ex.C-12 and Ex.C-13 are the letters by Raksha, wherein the cashless facility was denied to the complainant and the complainant due to old case OPFDM and first year policy. Vide Ex.OP-7/C-20, the claim of the complainant was repudiated on the ground of clause 4.1 pre-existing disease health condition, which reads as under:-
‘Pre-existing health condition or disease or ailment/injuries: Any ailment/disease/injuries/health condition which are pre-existing (treated/untreated, declared/not declared in the proposal form), in case of any of the insured person of the family, when the cover incepts for the first time, are excluded for such insured person upto 3 years of this policy being in force continuously. For the purpose of applying this condition, the date of inception of the first indemnity based health policy taken shall be considered, provided the renewals have been continuous and without any break in period, subject to portability condition. This exclusion will also apply to any complications arising from pre existing ailments/diseases/injuries. Such complications shall be considered as a part of the pre existing health condition or disease.’
So, from this document, it is proved that the claim was denied on the ground of pre-existing disease and the policy in first year and in such circumstances, the patient cannot wait for expiry of the period of three 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 three years would never reach and the condition laid down of waiting period of three years becomes of no value and meaningless. 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.’
10. So far as the reason for non-disclosure of pre-existing disease is concerned. We are supported by the law laid down by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in III (2021) CPJ 66 (NC), case titled as ‘PNB Metlife India Insurance Company Ltd. Vs. Godavariben Kalubhai Vaghela’ that ‘Insured had suffered a heart attack and he died - Complainant being nominee, claimed amount under the policy, which was denied by the petitioner on ground that insured had concealed material fact at the time of buying policy- Insured was not suffering from any heart ailment when he filled up proposal form- only defence taken is that insured had underwent treatment for T. B. and this fact was concealed – insured had died after about six months of buying the policy – Concealment of fact regarding treatment of T. B., if any, cannot be termed as concealment of material fact – There is no nexus between concealment of alleged fact and cause of death.’ It has been held by the Hon’ble Delhi State Commission Disputes Redressal Commission, New Delhi, in I (2022) CPJ 112 (Del.), case titled as ‘Gurpreet Kaur Vs. Bajaj Allianz Life Insurance Co. Ltd. & Ors., that ‘Death of life assured occurred due to heart attach/cardiac arrest, which is not connected with pre-existing disease and nor there is any evidence to show that death was on account of pre-existing disease of life insured- Repudiation of claim is not justified.’ It has been held by the Union Territory Consumer Disputes Redressal Commission, Chandigarh, in (2006) CPJ 270, case titled as ‘Life Insurance Corporation of India & Ors. Vs. Shiv Singh’ that ‘insured got examined from insurance doctor, found healthy – Deceased allegedly suffered from chronic obstructive pulmonary disease and chronic asthma – No nexus between cause of death and alleged ailment of deceased – Fraudulent suppression of material facts not proved- insurer liable.’
Record shows that there is no connection of the pre-existing disease with the problem/disease suffered by the complainant for which the claim has been filed. As per record of DMC and NHS, the complainant was having head pain and the blood was oozing from his right ear due to fall, whereas the past history is of diabetes, infection of lungs, TB. There is no connection of the head injury with the pre-existing diseases of diabetes, infection of lungs and T. B. The OPs themselves have condoned the delay in submitting the claim as admitted by them in the written statement. So, 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.
11. In view of the above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to pay Rs.2,00,000 to the complainant alongwith interest @ 6% per annum from the date of lodging the claim till its realization. Further, OPs are directed to pay a compensation including litigation expenses of Rs.20,000/- for causing mental tension and harassment to the complainant. 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.
12. 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
31.05.2023 Member Member President
