Haryana

Karnal

CC/446/2019

Dharamvir - Complainant(s)

Versus

The Oriental Insurance Company Limited - Opp.Party(s)

Balvinder Singh

25 Jan 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

Complaint No.446 of 2019

Date of instt. 17.07.2019

Date of decision 25.01.2022

 

1. Dharamvir Lather son of Shri Arjun Singh.

2. Jarnallo wife of Shri Dharamvir Lather, both residents of village Phoosgarh, Tehsil and District Karnal.

 

      …….Complainants

                                        Versus

 

1.     The Oriental Insurance Company Limited, Meera Ghati Chowk, Karnal through its Manager/Authorized Officer.

2.     M/s Raksha Health Insurance TPA Pvt. Ltd. SCO no.359-360, 1^st floor, Sector-44-D, Chandigarh through its Branch Manager.

 

    …..Opposite Parties.

 

Complaint Under section 12 of the Consumer Protection Act, 1986 as amended Under Section 35 of Consumer Protection Act, 2019.

               

Before   Sh. Jaswant Singh……President.       

      Sh.Vineet Kaushik ………..Member

              Dr. Rekha Chaudhary…..Member

 

 Present: Shri Balvinder Singh, counsel for complainant.

                Ms. Saroj Bala, counsel for opposite parties.

 

                (Jaswant Singh President)

ORDER:  

                 

                 The complainants have filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant no.1 having his bank account in the Oriental Bank of Commerce, G.T. Road, Karnal had obtained the cashless policy under the name and style “Oriental Bank Medi-claim Policy with Family Floater” bearing no.261301/48/2017/2654 from 21.11.2016 to 20.11.2017 by paying the premium of Rs.6990/-debited from the account of complainant no.1. The complainant no.2 being spouse of complainant was fully insured/covered under the abovesaid policy. OPs after the receipt of the premium, had issued MA-ID no.5022350647 to the complainant no.2.

2.             It is further averred that complainant no.2 was hale and hearty in all respects. All of sudden in the month of July, 2017 complainant no.2 felt some swelling in her neck and had taken treatment from the doctor at Karnal. Thereafter, the complainants for further treatment approached Fortis Hospital at Mohali on 29.07.2017 where on the advice of the doctors certain laboratory tests and CT scan were conducted and it was reported from the test and CT scan that one Homogenously lymiph node on the left side of the neck is causing compression over internal jugular vein and due to that impact, there is some swelling on that part of the body which causing obstruction in proper breathing to the complainant no.2. As per the laboratory test and advice of the doctor and investigations thereon, the nodes which was causing obstruction in breathing and swelling was removed. The complainant no.2 was admitted in the hospital and regarding her admission and ongoing treatment, the intimation was given to OPs by the attending doctors and the complainants to the OPs by providing all the relevant details for extending cashless facilities as per the terms and conditions of the policy. The complainant spent huge amount in lakhs of rupees on the treatment. Since, the OPs were responsible to pay the amount to the extent of Rs.5 lakhs. The OPs sent the intimation to the attending doctors denying the payment on the vague and frivolous grounds and thus the complainant were constrained to file the complainant bearing no.329 of 2017 before this Commission on 06.10.2017 which was decided by this Commission, vide order dated 04.12.2018.

3.             It is further averred that the claim of the complainant was repudiated by the OPs on the ground that the disease from which the complainant was suffering was a pre-existing disease and as such, the OPs are not legally bound to pay the claim amount to the complainants. The complaint of the complainants was hotly contested by the OPs. This Commission has rejected the plea taken by the OPs regarding the pre-existing disease of the complainant no.2 holding therein that the OPs failed to produce any opinion of the doctor or any treatment regarding the disease taken by the complainant no.2 previously, prior to the inception of the policy and it was held that the plea of the OPs is untenable. After the decision of the abovesaid complaint, in favour of the complainants, the OPs paid the claim amount of Rs.five lakhs on 08.05.2019 to the complainants without any interest.

4.             It is further averred that complainant no.2 is still under the treatment. The policy referred above is continuing. The complainants got renewed the abovesaid policy from time to time by paying the requisite premium to the OPs. The said policy was renewed from 21.11.2017 to 20.11.2018, vide policy no.261301/48/2018/2588 and thereafter from 21.11.2018 to 20.11.2019, vide policy no.261301/48/2019/1882. Complainant no.2 is continuously under the treatment as an indoor patient as well as outdoor patient and spending the huge amount over the treatment and intimation regarding treatment and expenditure thereof are submitted to the OPs for payment of the same as per terms and conditions of the policy. The complainants made the representation to the OPs alongwith relevant record of treatment and expenditure thereof, but OPs repudiated the claim of the complainant, vide letter dated 28.02.2019 on the ground that complainant no.2 is suffering from pre-existing disease and as such the OPs are not liable to pay any amount to the complainant.  The repudiation of the claim of the complainant totally unjustified as the complainant no.2 is not suffering from any pre-existing disease. It is further averred that OPs previous paid the amount on 08.05.2019 withholding the same from July, 2017 to May, 2019 i.e. for about two years. Since the OPs withheld the amount of Rs.5,00,000/- for two years illegally, so they are liable to pay interest @ 18% per annum from July, 2017 to May, 2019. It is further averred that complainants have spent more than Rs.50,00,000/- till today on the treatment of the complainant no.2 and treatment is still going on. In this way there was deficiency in service and unfair trade practice on the part of the OPs by withholding the claim amount previously and now again denying the same on the same grounds. Hence this complaint.

5.             On notice, OPs appeared and filed their written version raising preliminary objections with regard to maintainability; locus standi cause of action estoppel and concealment of true and material facts. On merits, it is pleaded that complainant no.2 was admitted in Fortis Hospital, Mohali as case of “Carotid Body Tumour, RTsyvain Haematoma”. She had history of same disease since March, 2012. Policy is in the 3^rd year of inception, as such, the disease is pre-existing. As per terms and conditions of the policy the complainant no.2 is entitled for the claim after three years as per exclusion clause 4.1. So the complainants are not entitled to get any relief from this Commission. It is further pleaded that complainants had submitted claim of the treatment of the complainant no.2 for Rs.240061/-to OP no.2 through claim form duly filled by the insured. It is further pleaded that the previous decision of this Commission would not affect the present complaint, because the cause of action to the present complainants by a different insurance policy. It is admitted fact that the claim of the complainants was rejected vide letter dated 28.02.2019 by the OPs as per term and condition of the insurance policy. The complainants are not entitled for any interest as demanded in this complaint because the payment was made as per order dated 04.12.2018. It is further pleaded that the complainants had submitted the claim to the OPs of Rs.240061/-. Though the complainants are not entitled for the same as mentioned above, only amount of Rs.2,09,281/- is to be paid after deductions, as per terms of the policy, after three years of the policy. However, the amount of Rs.2,09,281/- is not payable due to the pre-existing disease. There is no deficiency in service on the part of the OPs while repudiating the claim of the complainant. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

6.             Parties then led their respective evidence.

7.             Complainants tendered into evidence affidavit of complainant no.1 Ex.CW1/A,  receipt dated 30.05.2019 Ex.C2, letter dated 28.02.2019 Ex.C3, policy dated 21.11.2018 to 20.11.2019 Ex.C4, card Ex.C5, Fortis Certificate dated 03.08.2017 Ex.C6, certificate dated 28.07.2017 Ex.C7, credit denial Ex.C8, bank pass book Ex.C9, letter written by complainant no.1 to OP Ex.C10,  expenditure bill and receipts Ex.C11 to Ex.C41, medicines bill dated 07.11.2019 Ex.C42, receipts of bill Fortis Hospital Ex.C43 to C47, insurance policy revival dated 21.11.2019 Ex.C48 and Ex.C49, policy schedule Ex.C50, receipt Ex.C51 and closed the evidence on 05.02.2020 by suffering separate statement.

8.             On the other hand, OPs tendered into evidence affidavit of Anil Relhan, Deputy Manager Ex.OPW1/A, affidavit of Dr. Rakesh Kalra, Branch Manager Ex.OPW2/A, claim form Ex.OP1, repudiation letter dated 28.02.20219 Ex.OP2, billed amount Ex.OP3, letter dated 30.01.2018 Ex.OP4, claim detail Ex.OP5 and closed the evidence on 16.11.2021 by suffering separate statement.

9.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

10.           Learned counsel for complainant while reiterating the contents of complaint, has vehemently argued that complainants have obtained mediclaim policy from OPs. In the month of July, 2017 complainant no.2 felt some swelling in her neck and had taken treatment from a hospital, Karnal. Thereafter, complainant no.2 approached Fortis Hospital, Mohali on 29.07.2017 for further treatment where the certain laboratory tests and CT scan was conducted. As per the advice of the Doctors and investigations, the nodes which were causing obstruction in breathing and causing swelling was removed.  The OPs sent the intimation to the attending doctors denying the payment on the vague and frivolous grounds and thus the complainant were constrained to file the complainant bearing no.329 of 2017 before this Commission on 06.10.2017 which was decided by this Commission, vide order dated 04.12.2018. In compliance of the order passed by this Commission, OPs paid the claim amount of Rs.five lakhs on 08.05.2019 to the complainants without any interest. He further argued that complainants got renewed the abovesaid policy from time to time by paying the requisite premium to the OPs. He further argued that complainant no.2 is continuously under the treatment as an indoor patient as well as outdoor patient and spending the huge amount over the treatment and intimation regarding treatment and expenditure thereof are submitted to the OPs for payment of the same as per terms and conditions of the policy. The complainants made the representation to the OPs alongwith relevant record of treatment and expenditure thereof, but OPs repudiated the claim of the complainant, vide letter dated 28.02.2019 on the ground that complainant no.2 is suffering from pre-existing disease. The repudiation of the claim of the complainant totally unjustified as the complainant no.2 is not suffering any pre-existing disease. Hence prayed for allowing the complaint.

11.           Per contra, learned counsel for OPs while reiterating the contents of written version, has vehemently argued that complainant no.2 was admitted in Fortis Hospital, Mohali as case of “Carotid Body Tumour, RTsyvain Haematoma”. She had history of same disease since March, 2012. Policy is in the 3^rd year of inception, as such, the disease is pre-existing. As per terms and conditions of the policy the complainant no.2 is entitled for the claim after three years as per exclusion clause 4.1. He further argued that complainants had submitted claim of the treatment of the complainant no.2 for Rs.240061/-to OP no.2 through claim form duly filled by the insured.  He further argued that the claim of the complainants was rejected vide letter dated 28.02.2019 by the OPs as per term and condition of the insurance policy. The amount of Rs.2,09,281/- was/is not payable due to the pre-existing disease. There is no deficiency in service on the part of the OPs. Hence, prayed for dismissal of the complaint.

12.           Admittedly, the complainants have purchased the Mediclaim policy from OPs. It is also admitted that complainant no.2 had taken treatment from Fortis Hospital Mohali.  It is also admitted that the sum insured of the policy in question of Rs.five lakhs only.

13.           The claim of the complainant has been repudiated by the OPs, vide letter Ex.OP2/Ex.C3 dated 28.02.2019 on the following ground:-

“the patient is a case of HTN, MCA Infarct Cranioplasty Done. Patient is old case of (stroke) and HTN-Coiling Done 5 years back. The history of brain stroke is pre existing to the policy inception and also HTN diagnosed before policy inception. Therefore, expenses related to stroke are not payable in this policy. Policy is in 3^rd year of inspection. Pre-existing disease are payable after 3 years. So the claim is recommended for repudiation as per clause 4.1.

 

As per description of clause 4.1, the company is not liable to make any payment in respect of expenses for treatment of the pre-existing health condition or disease or ailment/injuries: Any ailment/disease/injuries/health condition which are pre-existing (treated/untreated, declared/nor 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, since 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/disease/injuries. Such complications shall be considered as a part of the pre-existing health condition or disease”.

14.           Though, the OPs have repudiated the claim of complainants only on the ground of pre existing disease but OPs have not placed on file any document/ medical record of the complainant no.2 to show that complainant no.2 was suffering from any pre-existing disease. The onus to prove its version lies upon the OPs but OPs have failed to prove its version by leading cogent and convincing evidence. Rather, complainants have placed on file certificate issued by Doctor Anish K.Gupta Ex.C6 of Fortis Hospital, Mohali, wherein concerned doctor has specifically mentioned that the Patient’s current disease absolutely has no relation to the past treatment. Moreover, the plea taken by the OPs with regard to pre-existing disease has already decided by this Commission in complaint no.329 of 2017 decided on 04.12.2018. It is also admitted facts that in compliance of that order OPs have already paid Rs.5,00,000/- to the complainants, without challenging the order dated 04.12.2018 passed by this Commission. With regard to pre-existing disease, we are also fortified with the observations of Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh in case titled as Aditya Birla Health Insurance Co. Ltd. & anr. Versus Deepinder Singh & anr. I 2021 CPJ 156 (Punjab) in which it has been held as under:-

                “Consumer Protection Act, 1986- Sections 2(1)(g), 14(1)(d), 15- Insurance Regulatory and Development Authority (Protection of Policy holders’s interest) Regulations, 2017- Regulation 10- Insurance (Mediclaim)- Surgery of shoulder- Alleged non-disclosure of pre-existing disease- Repudiation of claim- Deficiency in service- District Forum allowed complaint- Hence appeal- Respondent/ complainant was admitted to hospital on 10.10.2018 with problem of right shoulder pain and after surgery was discharged on 21.10.2018 in satisfactory condition- Expenditure of Rs.81,595/- was incurred on said treatment- Complainant lodged reimbursement claim for Rs.82,981/- and same was repudiated- Except medical record of ailment, OPs have not placed on record any independent evidence that insured had knowledge or that he had been taking treatment of disease, before purchasing this policy-In absence of any specific evidence on record how disease, if any, to which insured does not have knowledge can be termed as pre-existing disease- Repudiation not justified- Complaint was rightly allowed.

15.  

                It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy.

16.           The above said authorities are also fully applicable in the present complaint. In the present complaint also, the OPs have not placed on record any treatment record of complainant no.2 regarding receiving treatment of any disease prior to taking of policy in question. Rather it is proved on record that complainant no.2 was not having any past history of above said disease. So, the OPs have wrongly, illegally and arbitrarily repudiated the claim of the complainant.      

17.           The complainants have also claimed the interest for the period of July, 2017 to July, 2019 of the amount of Rs.5,00,000/- paid in earlier claim but complainants failed to prove its version by leading any cogent and convincing evidence. Moreover, there was no order of interest in the decision of previous complaint.        

18.           As per the version of the complainants, till today, they have spent more than Rs.50,00,000/- on the treatment of complainant no.2 and they have submitted all the medical bills to the OPs but as per the version of the OPs, complainant had submitted medical claim bills of Rs.2,40,061/- only and OPs have assessed Rs.2,09,281/- after deduction as per the terms and conditions of the policy. Complainants have failed to place on file the bills more than Rs.2,40,061/-.  Hence, the complainants are entitled for the amount of Rs.2,09,281/-only as assessed by the OPs alongwith compensation for harassment and litigation expenses.

19.  

Announced

Dated: 25.01.2022

                                                                  President,

                                                       District Consumer Disputes

                                                       Redressal Commission, Karnal.

 

                  (Vineet Kaushik)      (Dr. Rekha Chaudhary) 

                      Member                       Member