Delhi

North East

CC/358/2013

Sh. Sunil Jindal - Complainant(s)

Versus

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

26 Mar 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 358/13

 

In the matter of:

 

	Sh. Sunil Jindal S/o Sh. Brij Bhushan R/o C-45, Gali No. 15, C- Block Nathu Colony (East), Delhi-110093.	Complainant
	Versus
	The Oriental Insurance Co. Ltd 9, Raj Block, (First Floor) Naveen Shahdara, Near Gaya Nand Cinema, Delhi-110032.	Opposite Party

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :

12.12.2013 23.03.2018 26.03.2018

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The case of the complainant is that he had taken Reliance Health-Wise policy schedule from Reliance General Insurance Company vide policy No. 282510355005 w.e.f. 29.10.2008 to 28.10.2009 which was renewed as policy No. 1309792825004249 w.e.f. 29.10.2009 to 28.10.2010. Thereafter the complainant had taken Happy Family Floater Policy from the OP vide policy No. 271702/48/2011/1531 w.e.f. from 29.10.2010 to midnight of 28.10.2011 for a sum assured of Rs. 2,00,000/- against payment of premium of Rs. 4,291/- and thereafter the said policy was renewed vide policy No. 271702/48/2012/1568 w.e.f. 29.10.2011 to 28.10.2012 against payment of premium of Rs. 4,076/-. The complainant has further submitted that he was admitted in Jeewan Mala Hospital Pvt. Ltd for treatment of disease Renal Calculus on 30.09.2012 and was discharged on 02.10.2012. The complainant had submitted all the relevant medical treatment & expenses documents in original of his Mediclaim with E-Meditek, TPA of OP on 5^th October 2012 alongwith bills to the tune of Rs. 48,000/- incurred on the treatment undergone by the complainant in the said period. However, the OP vide no claim letter dated 29.12.2012 to the complainant had marked the claim of the complainant as “no claim” in view of non submission of necessary documents / information called upon by the OP for further process of claim despite three query letter dated 17.10.2012, 02.11.2012 and 18.11.2012. The complainant vide reply dated 29.12.2012 had stated that he had already submitted the photocopies of above mentioned three years previous polices of Reliance General Insurance to the OP alongwith the claim form submitted by the complainant on 05.10.2012 itself. Thereafter the complainant, vide letters dated 08.02.2013 and 23.04.2013 to the OP expressed his grievance against harassment caused to him by the OP despite assurance given to him by OP for continuity / portability of his previous policy with RGI   to which the OP vide letter dated 21.02.2013 had informed the complainant of his matter being taken up by the concerned office to expedite the same from the policy issuing office. Lastly, however, the complainant stated that the OP vide letter dated 01.05.2013 repudiated the claim of the complainant on grounds that diagnosis right renal calculus with hydronephrosis requires waiting period of two years as per policy while insured had policy of 2009-10 with Reliance General Insurance Company so claim is being recommended for repudiation and claim is not payable as per Exclusion clause 4.3 of Terms and Condition of individual Mediclaim policy.  Section 4 of Exclusion stated that company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any Insured Person in connection with or in respect of (4.3) During the period of insurance cover, the expenses on treatment of following ailment / disease / surgeries for specified periods are not payable if contracted and / or manifested during the currency of the policy (xix) calculus diseases 2 years. Therefore, the complainant was constrained to file the present complaint due to such harsh repudiation by the OP alleging deficient service against the OP and prayed for directions to be issued by this Forum against the OP directing the OP to pay Rs. 48,000/- to the complainant towards expenses incurred on medical expenditure, Rs. 40,000/- towards compensation for mental pain, agony and financial stress and Rs. 10,000/- towards litigation charges.        
2. Notice was issued to the OP which entered appearance on 04.02.2014 and filed its written statement on 14.03.2014. The OP took the preliminary objection that the complainant was treated for Right Distal Ureteric Calculus Upstream hydronephrosis, Bilateral small Renal Calculus which is covered only after two years of continuous policy with the OP as per clause 4.3 of the terms and conditions of Individual Mediclaim policy. This illness is not covered during first 2 years of insurance as it takes long time to develop hence makes this disease as pre-existing. The complainant had first time taken policy from the OP on 29.10.2010 to 28.10.2011 and renewed the same in on 29.10.2011 to 28.10.2012 and was treated 30.09.2012 to 02.10.2012 which is “during the coverage of second policy”. Hence the complaint is liable to be dismissed. The OP further took the defence that for the purpose of portability of policy, the complainant / insured has to inform the subsequent insurance company / insurer / OP herein 45 days prior to taken the subsequent policy but the complainant never informed the OP that he required portability of policy from Reliance General Insurance prior to taking policy from the OP and as such was not entitled to get the benefit of coverage provided by the policy issued by Reliance. The OP urged that the complainant had taken the policy from the OP for the first time on 29.10.2010 to 28.10.2011 and renewed the same on 29.10.2011 to 28.10.2012 and was hospitalized / treated for the period 30.09.2012 to 02.10.2012 which illness since fell during the coverage of second policy, was not covered during first two years of insurance under the exclusion clause and therefore the claim was rightfully repudiated.
3. Rejoinder to the written statement was filed by the complainant disputing the defence taken by the OP and reiterating the contention raised by the complainant in his complaint.
4. Evidence by way of affidavit were filed by both the parties.  
5. Written arguments were filed by both the parties delineating and reiterating their respective claim and defence.

The complainant argued that at the time of taking policyNo. 271702/48/2011/1531 from the OP w.e.f. 29.10.2010 to 28.10.2011, the OP had entered hand written previous policy No. 1309792825004249 which the complainant had taken from Reliance General Insurance for the period 29.10.2009 to 28.10.2010 and against the same the OP had duly placed its stamps / seal at three places which was ample proof that portability was accepted by the OP and the same policy was carried forward with same coverage and therefore the repudiation was wrongful and illegal and was not under the exclusion clause as it was a continuous policy. The complainant further argued that the OP never provided the terms and conditions of the policy to the complainant and in fact did not file the same even before this Forum. The complainant further argued that the letter dated 26^th February 2013 alleged to have been sent by OP to the complainant as mentioned by the OP in their repudiation letter dated 01.05.2013 written to the complainant was in fact never received by the complainant which is deficiency of service and unfair trade practice on the part of OP and therefore prayed for relief as sought in the complaint.

The OP in its written arguments reemphasized on the defence of repudiation of claim on grounds of exclusion clause 4.3 under the Mediclaim policy as the illness of the complainant was not covered during first two years of insurance policy coverage. The OP further argued that the complainant never informed the OP about his requirement of portability of policy from Reliance General Insurance prior to taking of the policy of the OP and therefore the complainant was not entitled to get the benefit of coverage provided by the alleged policy issued to him by Reliance General Insurance Company. In this regard the OP filed circular of IRDA dated 10.02.2011 which mentions that the portability of insurance policy was introduced from 01.07.2011 vide circular dated 10.02.2011 and clause 3.2 of Health Insurance Portability lays down a forty five (45) days prior intimation to the insurer by the policy holder for consideration ofproposal for portability. The OP also filed a Performa of Happy Family Floater Policy with complete terms and condition to which the complainant objected on grounds that the same was not part & parcel of terms and conditions of the policy given by OP to the complainant but a mere Performa/ format and is an unsigned document.

6. Both the parties filed judgment in support of their case / defence. The complainant filed case law of New India Insurance Company Vs Jagtaar Singh passed by The Hon’ble NCDRC in Revision Petition No. 3619 of 2012 passed on 01.02.2013 and OIC Vs Manoj Jain passed by SCDRC Haryana in FA No. 584 of 2013 passed on 12.01.2015 in support of his claim and OP filed judgment of The Hon’ble NCDRC in LIC Vs Ramphal in Revision Petition No. 1479 of 2016 passed on 04.10.2016.      
7. We have the arguments forwarded by both the parties and their rival contentions. The Factum of policy taking by the complainant from the OP from 29.10.2010 to 28.10.2011 and renewed from 29.10.2011 to 28.10.2012 for sum assured of Rs. 2,00,000/- is not disputed.  The main contention is the issue of portability of policy with OP which is linked with continuation / non-continuation of previous policy bearing               No. 1309792825004249 taken by the complainant with Reliance General Insurance w.e.f. 29.10.2009 to 28.10.2010. On perusal of record and documentary evidence, it has been pointed out by the complainant and seen by us that on the cover note of Happy Family Floater Policy Schedule of OP taking by the complainant vide policy                                        No. 271702/48/2011/1531, the above mentioned Reliance General Insurance Policy number is hand written/ endorsed against previous policy number and duly stamped under seal “composite stamp duty charged” and that of OP Branch Office at Naveen Shahdara, Delhi-110032 at two places against the said endorsement which when pointed out to the OP, was defended by the OP as an act of mere stamping and not bearing any signature so therefore of not much significance.
8. We do not find force in such evasive denial of portability without any cogent or substantive explanation for OP to have carried forward old policy of the complainant with Reliance General Insurance with due affixation of its company seal thereby endorsing the same  merely on grounds that the same did not bear any signature against it because on subsequent policy schedule also there are mere seals of the OP which are in nature endorsement and do not bear signatures against them so therefore this defence of OP is devoid of merits and is decided against the OP and in favour of the complainant thereby ruling that the policy was made portable which automatically will decide the connecting issue whether the treatment undergone by the complainant for Renal Calculus with hydronephrosis which required a waiting period of two years from the taking of the policy was covered / payable by OP to the complainant or not under the Happy Family Floater Policy taken by the complainant with the OP from 2010 to 2011 and renewed from 2011 to 2012. Since the issue of portability has already being decided in favor of the complainant thereby governing that the coverage to the complainant was to be construed from the period 2009 to 2010 (as continued from policy with Reliance General Insurance under portability scheme) and the portability scheme coming into effect w.e.f. 1^st July 2011 as per IRDA guidelines filed by the OP itself, the repudiation of claim of the complainant vide repudiation letter dated 01.05.2013 is also wrongful and unjustified and does not fall under the exclusion clause 4.3 since as per portability, it was after more than two years of the policy that the complainant had undergone treatment for Renal Calculus and therefore the claim raised by the complainant for the sum of Rs. 48,000/- was wrongfully repudiated by the OP.

Further in light of the judgments filed by the complainant in which the terms and conditions of policy when not supplied by the insurer to the insured were held against fundamental principal of insurer law as laid down by the Hon’ble Supreme Court of India In M/s Modern Insulates Ltd Vs Oriental Insurance Company Ltd AIR 2000 SC 1014 and the Supreme Court held that the Insurance Company and its agent are duty bound to disclose all material facts in their knowledge. This issue is also decided in favour of the complainant as the OP could not never prove or establish during the course of pleadings/proceedings that it had supplied the terms and conditions of the policy to the complainant at the time of issuance and renewal of the policy. The judgment filed by the OP pertains to 24 hours hospitalization is therefore not relevant to the present dispute.

9. We therefore allow the present complaint of the complainant and decide the same in his favour on merits and award a sum of                            Rs. 48,000/- to the complainant payable by the OP towards the medical expenses incurred by the complainant for treatment of Renal Calculus at Jeevan Mala Hospital from 30.09.2012 to 02.10.2012 as per the claim filed by the complainant with the OP on 05.10.2012 and wrongful repudiated by the OP on 01.05.2013. We also award a sum of                     Rs. 15,000/- to the complainant payable by the OP towards mental pain and agony and financial suffering and a sum Rs. 7,000/- towards litigation expenses. Let the order be complied with by the OP within 30 days of receipt of this order.
10.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
11.   File be consigned to record room.
12.   Announced on  26.03.2018   

 

(N.K. Sharma)      President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member