Haryana

Karnal

CC/65/2020

Surinder Kumar Verma - Complainant(s)

Versus

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

Amrit Bissyer

06 Jul 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 65 of 2020

                                                        Date of instt.29.01.2020

                                                        Date of Decision:06.07.2023

 

Surinder Kumar Verma, age 47 years son of Shri Ram Sarup, resident of house no.2743 P Block F, Ansal Shushant city, Panipat.

 

                                               …….Complainant.

                                              Versus

 

The Oriental Insurance Company Ltd. through its Divisional Manager, Divisional Office above OBC bank Meera Ghati Chowk, Karnal.

 

                                                                      …..Opposite Party.

 

Complaint Under Section 12 of the Consumer Protection Act, 1986 and after amendment Under Section 35 of Consumer Protection Act, 2019.

 

 

Before   Sh. Jaswant Singh……President.

              Sh. Vineet Kaushik……Member 

      Dr. Rekha Chaudhary……Member

          

 Argued by: Shri Amit Bissyer, counsel for the complainant.

                    Shri Naveen Khetarpal, counsel for the OP.

 

                    (Jaswant Singh President)

ORDER:   

          

                 The complainant has 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 party (hereinafter referred to as ‘OP’) on the averments that Mrs. Neeelam Kumari wife of the complainant was serving in Dyal Singh Public School Panipat and she was getting her salary from her bank account with Punjab National Bank and as such the wife of the complainant as well as the complainant used to visit in the PNB premises regarding money transaction. The Manager of the PNB Bank asked the complainant and his wife regarding the PNB-Oriental Mediclaim Policy 2014 Group Health Insurance Policy. The complainant and his wife keeping in view the health and wealth of his whole family and on the asking and believing upon the Branch Manager agreed to obtain the Group Health Insurance Policy and had taken Insurance Policy no.261301/48/2015/1557 on 11.09.2014 and paid the premium amount of Rs.6830/- and the said policy is valid from 11.09.2014 to 10.09.2015. The complainant is paying the premium regularly without break and now the number of latest policy is 261301/48/2020/1303, valid from 11.09.2019 to 10.09.2020. Hence the life of the complainant and his family member is fully insured with the Insurance Company. In the month of August, 2015, the wife of complainant suffered from Hydrocephalus disease. Complainant gave information to the OP well within time. The complainant got admitted his wife in NASA Hospital, Jallandhar in the month of September, 2015 where the doctors got her treated and operated and the wife of complainant was discharge from the hospital on 25.09.2015 and the complainant has spent a sum of Rs.1,02,977/- on the treatment, tests and operation. After discharge from the hospital the complainant submitted all relevant papers including medical bills, in the office of the OP. Subsequently, owing to further complications the wife of the complainant was again admitted to NASA Jallandhar in the month of December, 2015. It is further averred that for the first time the wife of the complainant was reported to be suffering from “Pilocytic  Astrocytoma” and was advised fro Gamma knife surgery, although NASA never treated/diagnosed or conducted any tests for her brain tumer.

2.             It is further averred that in the month of February, 2016, the wife of complainant got admitted to VIMHANS, Lajpat Nagar, New Delhi where her MRI was conducted and she was diagnosed and treated for “Crainopharyngioma”. The complainant has spent a sum of Rs.2,33,746/-. In the month of June, 2016, the wife of complainant was again operated at Park Hospital, Panipat for VP Shunt Obstruction and the complainant has spent a sum of Rs.93,185/-. The wife of complainant again operated at Paras Hospital, Gurgaon in July, 2016, where the complainant also spent a sum of Rs.2,52,104/-. Thus, in this way the complainant has spent a sum of Rs.7,52,339/- for the treatment of his wife from 11.09.2015 to 10.09.2016. At the time of lodging the claim, the complainant has submitted all the relevant original documents in the office of OP and all the relevant original documents are in the possession of the OP. The complainant submitted the claim no.12505517 in the office of OP for the medical claim. The OP has repudiated the claim of the complainant, vide letter dated 13.06.2016 holding that “since the claim does not fall within the purview of the policy terms and conditions, we regret out inability to admit the claim. As per terms and conditions of the insurance policy, it comes under exclusion of clause 4.1. Hence the claim is being denied and the same is not payable”.

3.             It is further averred that the complainant had taken the insurance policy in the year 2014 and at that time the authorized representative of the OP got the complainant and his wife examined medically from the authorized doctor of the OP. If at that time there was any previous disease either to the complainant or his wife then the same would have been clearly mentioned in the form, but at that time there was no pre disease to the wife of the complainant, and as such the OP has repudiated the claim of the complainant in routine way, whereas it is duty and responsibility of the OP to make the payment of the amount so claimed by the complainant. After the repudiation of the claim, the complainant filed a complaint before the office of the Insurance Ombudsman, Chandigarh, but Shri D.K. Verma, Insurance Ombudsman without going through the actual facts of the case, and without applying its judicial mind has dismissed the claim vide order dated 27.07.2019 holding that as such disease was pre-existing prior to inception of the policy, hence the decision of the Insurance Company is in order. Keeping in view the above facts, the said complaint is hereby dismissed and no relief is granted. The observation of the office of Insurance Ombudsman, Chandigarh dated 27.07.2019 is totally illegal and against the provisions of law. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

4.             On notice, OP appeared and filed its written version, raising preliminary objections with regard to maintainability; jurisdiction; cause of action; concealment of true and material facts and complaint is bad for mis-joinder and non-joinder of necessary parties. The Medi Assist TPA is necessary party. As per policy condition the matter was taken up by Medi Assist TPA who is an independent body for the purpose of processing and settlement of claim. The OP has no interference in the working of the Medi Assist TPA, the claim of complainant was processed by Medi Assist TPA as per law and policy condition as applicable in the present case and as per the Medi Assist TPA, the claim is not payable.  On merits, it is pleaded that the sum insured of the policy in question is Rs.5,00,000/-. But the complainant is not entitled for any compensation as alleged in the complaint. The complainant lodged three claims amounting to Rs.100636/- for the period of 21.09.2015 to 25.09.2015, Rs.72668/- for the period of 28.12.2015  to 02.01.2016 and Rs.2,33,746/- for the period of 08.02.2016 to 10.02.2016 (total of Rs.407050/-). It is further averred that the case of complainant falls under the exclusion clause 4.1 and condition no.5.8 of the policy. The claim of complainant under policy number 261301/48/2016/1681 w.e.f.11.09.2015 to 10.09.2016 has been rightly repudiated. On scrutiny of documents, it is found that the patient was admitted in hospital as case of Hypothalamic Sol Pilocytic Astrocytoma 2006. Policy inception date is 11.09.2014. This is the second year of mediclaim coverage policy and disease is present prior to the inception of the policy i.e. pre-existing. As per the policy terms and condition it comes under exclusion of clause 4.1. Hence claim is denied and same is not payable.

Clause 4.1 is under:-

“The 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 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 persons up to three 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 complication arising from pre-existing ailment/disease/injuries. Such complications shall be considered as a part of pre-existing heath condition or disease.”

Clause 5.8 is 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 mis-representation, mis-description of any material fact.

 

It is further pleaded that it is wrong and denied that the Insurance Ombudsman without going through the actual facts of the case, and without applying judicial mind has dismissed the claim, vide order dated 27.07.2019 holding that as such disease was pre-existing prior to inception of the policy. It is also denied that at the time of taking the policy the wife of complainant was in a good health. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

5.             Parties then led their respective evidence.

6.             Complainant has tendered into evidence his affidavit  Ex.CW1/A, copy of proceedings before Insurance Ombudsman Ex.C2, copy of hearing on 11.06.2019 Ex.C3, copy of mail of Bima Lokpal, Chandigarh Ex.C4, copy of insurance policy Ex.C5, copy of policy schedule Ex.C6, copy of appointment letter of Neelam Ex.C7, copy of letter regarding extension of service tenure Ex.C8, copies of medical record of Aman hospital Ex.C9 and Ex.C10, copy of email from NASA Jallandhar Ex.C11, copy of report of CT scan dated 31.12.2015 and 27.12.2015 Ex.C12 and Ex.C13, copies of report of Path Labs dated 31.08.2015 and 19.12.2015 Ex.C14 and Ex.C15, copy of surgery consent letter dated 28.12.2015 Ex.C16, copy of Alfa Lab report Ex.C17, copy of MRI report dated 21.09.2015 Ex.C18, copy of discharge summary dated 21 to 25.09.2015 Ex.C19, copy of expenditure bills of NASA Jallandhar Ex.C20, copy of expenditure bills from October to December, 2015 Ex.C21, copies of bills December-January, 2014-2015 Ex.C22, copy of Park and Pars Hospital bills Ex.C23, copy of CT scan report of Park Hospital, Panipat dated 24.06.2016 Ex.C24, copy of MRI report dated 07.07.2016 Ex.C25, copy of Gamma Knife Surgery bill dated 10.02.2016 Ex.C26, copy of discharge summary 08 to 10^th February, 2016 Ex.C27, copy of bills of Paras Hospital Ex.C28, copy of OPD card dated 06.07.2016 Ex.C29, copy of letter to OP dated 18.07.2016 Ex.C30, copy of letter to Medi Assist Noida dated 11.09.2016 Ex.C31, copy of Vigilance letter dated 26.12.2016 Ex.C32, copy of reminder to Vigilance office dated 29.05.2017 Ex.C33, copy of letter and reminders to Ombudsman dated 10.10.2017, 10.10.2018 and 21.01.2019 Ex.C34 to Ex.C36, copy of written complaint reply dated 11.06.2019 Ex.C37, copy of letter in the matter of complaint dated 24.06.2019 Ex.C38, copy of repudiation letter dated 13.06.2016 Ex.C39, copies of medicines bills, MRIs, CTR scan etc. Ex.C40 and closed the evidence on 17.02.2022 by suffering separate statement.

7.             On the other hand, learned counsel for the OP has tendered into evidence affidavit of Ramesh Kumar, Manager Ex.RW1/A, copy of repudiation letters Ex.R1 and Ex.R2, copy of insurance policy Ex.R3, copy of terms and conditions of insurance policy Ex.R4, copy of discharge summary Ex.R5 and Ex.R6, copy of Insurance Ombudsman dated 10.02.2016 Ex.R7 and closed the evidence on 14.10.2022 by suffering separate statement.

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

9.             Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant and his wife purchased a Group Health Insurance Policy in the year 2014.  The complainant is paying the premium regularly upto the year 2020. In the month of August, 2015, the wife of complainant suffered from Hydrocephalus disease. The complainant got admitted his wife in NASA Hospital, Jallandhar in the month of September, 2015 and has spent a sum of Rs.1,02,977/- on the treatment. After discharge from the hospital the complainant submitted all relevant papers including medical bills, in the office of the OP.  In the month of December, 2015, the wife of the complainant was again admitted to NASA Jallandhar. In the month of February, 2016, the wife of complainant got admitted to VIMHANS, Lajpat Nagar, New Delhi and has spent a sum of Rs.2,33,746/-. In the month of June, 2016, the wife of complainant was again operated at Park Hospital, Panipat for VP Shunt Obstruction has spent a sum of Rs.93,185/-. The wife of complainant again operated at Paras Hospital, Gurgaon in July, 2016, where the complainant also spent a sum of Rs.2,52,104/-. Thus, in this way the complainant has spent a sum of Rs.7,52,339/- for the treatment of his wife from 11.09.2015 to 10.09.2016. At the time of lodging the claim, the complainant has submitted all the relevant original documents in the office of OP. OP repudiated the claim of the complainant and after the repudiation of the claim, the complainant filed a complaint before the office of the Insurance Ombudsman, Chandigarh and same has also been dismissed, vide order dated 27.07.2019 holding that as such disease was pre-existing prior to inception of the policy. He further argued that at the time of purchasing the policy, the authorized representative of the OP got examined the complainant and his wife from the authorized doctor of the OP and at that time there was no pre disease to the wife of the complainant, and as such the OP has repudiated the claim on the false and frivolous grounds and prayed for allowing the complaint.

10.           Per contra, learned counsel for the OP, while reiterating the contents of written version, has vehemently argued the complainant lodged three claims amounting to Rs.100636/- for the period of 21.09.2015 to 25.09.2015, Rs.72668/- for the period of 28.12.2015  to 02.01.2016 and Rs.2,33,746/- for the period of 08.02.2016 to 10.02.2016 (total of Rs.407050/-). He further argued that the case of complainant falls under the exclusion clause 4.1 and condition no.5.8 of the policy and the claim of complainant has been rightly repudiated. The patient was admitted in hospital as case of Hypothalamic Sol Pilocytic Astrocytoma 2006. Policy inception date is 11.09.2014. This is the second year of mediclaim coverage policy and disease is present prior to the inception of the policy i.e. pre-existing. The Insurance Ombudsman also dismissed the claim of complainant, vide order dated 27.07.2019 on the ground of pre-existing disease prior to inception of the policy and lastly prayed for dismissal of the complaint.

11.           We have duly considered the rival contentions of the parties.

12.           Admittedly, complainant and his wife have availed the health insurance policy from the OP. It is also admitted that during the subsistence of the insurance policy complainant’s wife was hospitalized in NASA Hospital, Jallandhar, in VIMHANS Hospital, Lajpat Nagar, New Delhi, Park Hospital, Panipat and Paras Hospital, Gurgaon

13.           The claim of the complainant has been repudiated by the OP, vide repudiation letter Ex.C39/R1 dated 13.06.2016 on the ground, which is reproduced as under:-

“We refer to your claim submitted for Reimbursement of Hospitalization expenses to Medi Assist India TPA Pvt. Ltd. On scrutiny of the claim documents, we observed that the claim is not admissible in view of the following:

Policy: PNB Oriental Royal Mediclaim Insurance Policy DOA-08.02.2016; DOD10.02.2016; Diagnosis-Hypothalamic Sol Pilocytic Astrocytoma. As patient is K/C-operated case of Hypothalamic Sol Pilocytic Astrocytoma 2006. Policy inception date is 11.09.2014. This is second year of health coverage policy and the disease is present prior to inception of the policy. As per the policy terms and conditions it comes under exclusion of clause 4.1. Hence the claim is being denied and same is not payable. We also reserve the right to repudiate the claim under any other grounds available to us subsequently”.

14.           The onus to prove its case lies upon the OP, but OP has miserably failed to prove the same by leading any cogent and convincing evidence. The case of the OP is based upon the discharge summary Ex.R6 where in column of past history it is mentioned that right temporal craniotomy for head injury more than 10 years back. She underwent revision of VP shunt on 31.12.2015 for blocked abdominal end of VP shunt. The said discharge summary Ex.R6 placed on record by the OP is a photocopy. Except that document there is no other opinion/documents on the file to ascertain that the insured was having any pre-existing disease. The repudiation of claim of complainant is only on the basis of presumption and assumption and furthermore OP neither examined the said doctor nor tendered his affidavit in its evidence. Thus, the said document has no weightage in the eyes of law. In this regard, we are fortified with the observation of Hon’ble National Commission in case titled as  SBI Life Insurance Co. Ltd. Versus Lakshmiben Naginbhai Chauhan and others 2020 CJ 110 (NC) wherein it is held that repudiation of death claim on ground of concealment of pre-existing disease-complaint allowed by For a below-Both District Forum and State Commission had reached  to the conclusion after going through all documents that medical papers have not been properly proved since neither doctor has been duly examined nor his affidavit has been furnished-National Commission is not expected and required to re-appreciate and re-assess evidences-where on the basis of evidences Fora Below have reached to a conclusion which is a possible conclusion, then such conclusion need not be disturbed in Revision Petition-Revision Petition dismissed.

16.           Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

“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”.

 17.          Keeping in view, the ratio of the law laid down in aforesaid judgment, facts and circumstances of the present complaint, we are of the considered view that act of the OP while repudiating the claim of the complainant amounts to deficiency and unfair trade practice.

18.           The sum insured in the policy in question is Rs.5 lakhs. Complainant has alleged that he has spent Rs.7,52,339/- on the treatment of his wife, but he has submitted the claim form before the OP amounting to Rs.4,07,500/-. Hence, the complainant is entitled for the said amount alongwith interest, compensation for mental harassment and litigation expenses etc.

19.           Thus, as a sequel to abovesaid discussion, we partly allow the present complaint and direct the OP to pay Rs.4,07,500/- (Rs. four lakhs, seven thousand five hundred only) to the complainant alongwith interest @ 9% per annum from the date of repudiation of the claim till its realization. We further direct the OP to pay Rs.20,000/- to the complainant on account of mental agony and harassment and Rs.5500/- towards the litigation expenses.  This order shall be complied with within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:06.07.2023

                                                                President,

                                                   District Consumer Disputes

                                                   Redressal Commission, Karnal.

 

(Vineet Kaushik)        (Dr. Rekha Chaudhary)

       Member                         Member