BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.

Consumer Complaint No. 616 of 2015

Date of Institution: 8.10.2015

Date of Decision: 30.06.2016  

Jagdish Kumar Mehra S/o Sh. Ram Parkash Mehra, aged about 78 years, r/o House No. 88, Anand Avenue, Amritsar

Complainant

Versus

1. The oriental Insurance Company Limited, Regd.Office, Oriental House, P.B.No. 7037,A-25/27, Asaf Ali Road, New Delhi 110002 through its Chief Manager/Authorized Representative
2. The Oriental Insurance Company Limited, Divisional Office I, Dwarakadeeshji  Complex, Queens Road, Amritsar
3. Sukh Sagar Hospital (A multispeciality Personal Care Hospital)  located at 5-Maqbool Road (Near Anand Avenue),Amritsar through its Incharge/Principal Officer/Prop./Director/Authorized Representative

Opposite Parties

Complaint under section 11 & 12 of the Consumer Protection Act, 1986 as amended upto date.

Present: For the Complainant               : Sh.Amandeep Saini, Advocate

              For Opposite Parties No.1 and 2: Sh.Sandeep Khanna, Advocate.

             For Opposite Party No.3         : Ms.Payal Mehta,Advocate         

Coram

Sh.S.S.Panesar, President

Ms.Kulwant Kaur Bajwa, Member

Mr.Anoop Sharma, Member  

Order dictated by:

Sh.S.S. Panesar, President.

1.       Jagdish Kumar Mehra has brought the instant complaint under section 11 &12  of the Consumer Protection Act, 1986 on the allegations that  complainant was insured with opposite party No.2 under PNB Oriental Royal Mediclaim Policy bearing No.233300/48/2015/14 which is valid w.e.f. 22.4.2014 to 21.4.2015 of Rs. 6079/-. As such, complainant being the consumer of opposite party No.2, falls within the meaning and definition of “Consumer”  as defined in section 2(1)(d)(ii) of the  Consumer Protection Act,1986 and is competent to invoke the jurisdiction of this Forum . Oriental Insurance Company Limited is having its registered office at Asaf Ali Road, New Delhi and as such, the registered office  of the Oriental Insurance Company Ltd. is being arrayed as opposite party No.1 in the instant complaint being necessary party. The complainant remained admitted in opposite party No.3 hospital w.e.f. 19.12.2014 and he was operated upon in the said hospital as indoor patient on 20.12.2014 for Proximal Tibia (knee) locking Plate and was later on discharged  from opposite party No.3 hospital on 22.12.2014 and as such the said hospital has been arrayed as opposite party No.3 in the instant complaint being a necessary party. The complainant was brought to opposite party No.3 hospital on 13.12.2014 with H/O Fall (Fracture Left Latual Condyle Tibia (knee) for checking purposes and thereafter  complainant was admitted in the said hospital on 19.12.2014 with fracture left Latual Condyle Tibia and thereafter complainant was operated  upon  on 20.12.2014 with Proximal Tibia Locking Plate and a certificate to that effect was given by opposite party No.3 on 10.2.2015. The complainant remained admitted in the opposite party No.3 hospital w.e.f 19.12.2014 till 22.12.2014 when he was discharged from the said hospital. During this period the complainant spent huge amount towards medicines, tests, x-ray etc which was conducted by Nagpal Ultrasound Centre  located inside opposite party No.3 hospital. An Echocardiography report was given by said Nagpal Ultrasound Centre  in which the name of the complainant has been rightly mentioned as Jagdish Mehra. But on the investigations report dated 19.12.2014, the name of the patient has been wrongly mentioned as Sanjeev Mehra instead of Jagdish Mehra. This mistake is on the part of the Laboratory Technician of opposite party No.3  but later on the name of  Sanjeev Mehra has been deleted with black pen and  the name of the complainant Jagdish Mehra has been written/rectified by hand and a certificate to that effect was issued by opposite party No.3 hospital on 10.2.2015. It has been clearly mentioned in the said certificate (photocopy enclosed) that on account of the fault of Laboratory Technician patient Mr.Jagdish Mehra’s son’s (Mr.Sanjeev Mehra) name was put on the Laboratory test results. But opposite party No.2 has repudiated the claim of the complainant under policy exclusion clause 5.8 of the policy without going through the relevant documents supplied   to opposite party No.2. On coming to know about the repudiation of his claim, complainant wrote a letter to opposite party No.2 on 2.4.2015 in response to letter of opposite party No.2 dated 13.2.2015 by enclosing a certificate dated 10.2.2015 issued by opposite party No.3 hospital . But opposite party No.2 neither considered the claim of the complainant nor as a courtesy sake replied the same. All the relevant documents mentioned above viz medicine bills, investigation report, echocardiography report, x-ray report etc have been produced on record. The complainant has spent a sum of Rs. 67,594/- towards medicines, laboratory tests, x-ray and for his operation of the left knee and as such he is entitled to receive the aforesaid amount alongwith interest @ 24% p.a. from the date of admission in opposite party No.3 hospital till realization of the same. The complainant has prayed for following reliefs vide instant complaint :-

(i)      Opposite parties No.1 & 2 may be directed to pay the claim amount of Rs. 67,594/-  alongwith interest @ 24% p.a. from date of admission till realization of the said amount ;

(ii)     Opposite parties No.1 & 2 may also be directed to pay compensation of Rs. 1 lac as well as litigation expenses may also be awarded to the complainant.

Hence, this complaint.

2.       Upon notice opposite parties No.1 & 2 appeared and filed joint written version taking certain preliminary objections therein inter alia that in the light of the terms and conditions of the mediclaim policy, it was found that the claim is not payable as per exclusion /denial clause 5.8 which reads as under :-

“Disclosure to information norm the policy shall be void and all premium paid hereon shall be forfeited to the company, in the event of misrepresentation , mis-description or non-disclosure of any material fact.”

Accordingly, the claim was considered as inadmissible by competent authority of opposite parties No.1 & 2 and was repudiated vide letter dated 13.2.2015 in which it has been clearly mentioned that “on perusal of claim documents, it is noted that patient had H/o fall on ground on 13.12.2014 and as per  doctor prescription dated 13.12.2014 of Dr.Rohit Sharma, after x0ray left leg-No Bony Injury was seen, swelling and tenderness in middle 3^rd of leg were present. But later patient was admitted on 19.12.2014 as a case of Fracture Lateral Condyle Left Tibia. Misrepresentation regarding injury is noted. Also all the reports attached are of Sanjeev Mehra which has been manipulated in the name of Jagdish Mehra. Hence, present claim is falling under exclusion 5.8 and is being denied ; that  the complainant had failed to intimate the opposite party regarding hospitalization of the insured within the stipulated period, as such the complainant is not entitled to the relief claimed for ; that complainant has not approached this Forum with clean hands and has concealed the material facts ; that the parties to the complaint are strictly governed by the terms and conditions of the policy in question and it was held by the Hon’ble Supreme Court in various judgements that the contract of insurance is based on utmost faith  and in this regard , it is submitted that by concealing material facts, it is apparent that the complainant has used fraudulent means for getting wrong claim. Hence, as per general conditions of the contract of  insurance as well as terms and conditions of mediclaim policy, it has been clearly held that the insurance company will not be liable to pay any claim if the claim is found to be in any respect fraudulent or any one act is done on his behalf  to take benefit under the policy, all the benefits under the said policy shall be forfeited ; that complainant has no locus standi to file the present complaint ; that the complainant is estopped by his own act and conduct from filing the present complaint ; that as the claim already stands repudiated, therefore, no consumer dispute survives. Hence, the complainant has no right to file the present complaint . On merits, facts narrated in the complaint have been specifically denied and a prayer for dismissal of the complaint with cost was made.

3.       In its written version opposite party No.3 took certain preliminary objections that the instant complaint is not maintainable in the eyes of law ; that the hospital authorities had properly corrected the report of the complainant and this fact is totally concealed in the present complaint. The hospital authorities had never given any negligent or deficient service on their part rather it is admitted that complainant got medical treatment from opposite party No.3 and he also got  operated on 20.12.2014. On merits , facts narrated in the complaint have been denied and a prayer for dismissal of the complaint qua opposite party No.3 has been made.

4.       In his bid to prove the case, Sh.Amandeep Saini,Adv.counsel for the complainant tendered affidavit of the complainant Ex.CW1/A alongwith documents Ex.C-1 to Ex.C-21.

5.       To rebut the aforesaid evidence Sh.Sandeep Khanna,Adv.,counsel for opposite parties No.1 & 2 tendered affidavit of Sh.Gurdeep Singh,Divisional Manager Ex.OP1,2/1, copy of repudiation letter dated 13.2.2015 Ex.OP1,2/2, copy of policy schedule Ex.Op1,2/3, copy of letter of TPA Ex.Op1,2/4, copy of terms and conditions Ex.Op1,2/5 and closed the evidence on behalf of opposite parties No.1 & 2.

6.       However, Ms.Payal Mehta,Adv.counsel for opposite party No.3 made a statement  on 23.5.2016 that she does not want to lead any evidence.

7.       We have heard the ld.counsel for the parties and have carefully gone through the record on the file.

8.       On the basis of the evidence on record, ld.counsel for opposite parties No.1 & 2 has vehemently contended that  claim of the complainant has rightly been repudiated on the basis of exclusion clause 5.8 of the Insurance cover, copy whereof is Ex.OP1,2/2 on record. As a matter of fact the complainant is suffered an injury on left leg and he visited hospital of opposite party No.3 at the first instance on 13.12.2014. In the hospital, x-ray examination of the left leg of the complainant was undertaken and no bony injury was seen, swelling and tenderness in middle 3^rd of leg were present. But later on  that on 19.12.2014 Fracture Lateral Condyle Left Tibia was found on the left leg of the complainant and he was operated upon on 20.12.2014 with Proximal Tibia (knee) Locking Plate  and a certificate to that effect was given by opposite party No.3 on 10.2.2015, copy whereof is Ex.C-20 and C-21. The complainant has not approached this Forum with clean hands. Medical record produced on record pertains to Mr. Sanjeev Mehra on the Lab. Tests results. It appears that some hanky panky has been made just to get undue advantage under the Insurance policy in dispute, on the part of the complainant. The complaint is without force and it is requested that  complaint may be dismissed with cost.

9.       However, from the appreciation of the facts and circumstances of the case, it becomes evident that the complainant was insured under the Health Insurance policy, copy whereof is Ex.C-8 & Ex.C-9 w.e.f. 22.4.2014 to 21.4.2015 on payment of premium of Rs. 6079/-. As such complainant is a consumer of the opposite parties. It is  in evidence that complainant  remained admitted in opposite party No.3 hospital  on 19.12.2014 and was operated upon in the said hospital as indoor patient on 20.12.2014 with Proximal Tibia (knee) Locking Plate  and thereafter discharged from opposite party No.3 hospital on 22.12.2014. Copy of the discharge report is Ex.C-19. The complainant has incurred an expenditure of Rs. 67,594/- towards medicines, laboratory tests, x-ray , operation etc. Relevant bills account for Ex.C-3 to Ex.C-7. If we peruse the repudiation letter dated 13.2.2015 Ex.OP1,2/2, it reveals that the complainant had H/o fall on  ground on 13.12.2014 and as per doctor prescription dated 13.12.2014 of Dr.Rohit Sharma, after x-ray left leg –No Bony injury was seen swelling and tenderness in middle 3^rd of leg were present. But later on the patient was admitted on 19.12.2014 as a case of Fracture Lateral Condyle Left Tibia.  If opposite party No.3 could not detect the fracture on 13.12.2014  and the same was able to detect the same on 19.12.2014, no fault can be attributed  to the complainant. The other plea of opposite party has been that there was misrepresentation regarding  injury and some manipulation has been made regarding the name of Jagdish Mehra.  Both the medical reports Ex.C-14 & Ex.C-15 produced on record pertain to Sanjeev Mehra. Sanjeev Mehra is none else, but son of the complainant, who accompanied the complainant for his admission in the hospital on both the occasions. It has also been stated in the complaint that inadvertently name of Sanjeev Mehra was mentioned in some of the medical reports, but those were corrected by the hospital authorities when the mistake was detected. Even opposite party No.3 in their written statement have admitted the said fact. From the evidence on record it cannot be held that there was any manipulation, particularly when the entire remaining medical record Ex.C-11, Ex.C-12, Ex.C-13, Ex.C-16 to Ex.C-21 were in the name of Jagdish Kumar Mehra. . Even alleged mis-representation regarding the nature of injury has also no legs to stand on. The medical record placed by the complainant in support of his case clearly shows that bony injury was  there on the left leg of the complainant and for that purpose he was operated upon in the hospital. The complainant has placed on record the medical bills as well as other  expenditure incurred by him on his treatment  which comes to Rs.67,594/- in all. Clause 5.8 has been wrongly attracted by opposite parties No.1 & 2 to dislodge the claim of the complainant,whereas there has been no manipulation or mis-representation on the part of the complainant. As such, complainant is entitled to the medical claim  to the tune of Rs. 67,594/- and the complaint succeeds qua opposite parties No.1 & 2  jointly and severally. The claim shall further carry interest @ 9% p.a. from the date of passing of the order until full and final recovery  . No case is made out against opposite party No.3, as such, complaint against opposite party No.3 fails and the same is ordered to be dismissed. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum

Dated :30.6.2016