BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM.
KAMRUP
C.C.No.7/2017
Present:
I) Shri A.F.A.Bora,M.Sc.,L.L.B.,A.J.S -President
II) Smti Archana Deka Lahkar,B.Sc.,L.L.B. -Member
III) Sri Jamatul Islam,B.Sc,Former Dy
Director, FCS & CA - Member
Sri Uday Kr.Das - Complainant
S/0 Late Ram Sajibon Das
H.No.67, Madgharia,Pathar Kuwari
District: Kamrup,(Metro) Assam
-vs-
I) The Oriental Insurance Company Ltd. -Opposite party
City Division Office No.II,Chandmari,
Guwahati-21, Represented by its
Divisional Manager
II) The Raksha TPA Pvt.Ltd,
Prag Plaza, 2nd Floor, Near Hub,
Super Market , Bhangagorh,G.S.Rd.
Guwahati-5, Represented by its Manager
Appearance
Sri Uday Kr.Das himself appears for the complainant .
Learned advocate Ms Piyali Mitra for the opposite parties.
Date of argument:- 25.02.2020
Date of judgment: - 09.06.2020
JUDGMENT
1) This is a case u/s 12/13 of the Consumer Protection Act,1986 filed by one Sri Uday Kumar Das claiming medical charges amounting to Rs.33,736/- which is covered under the Medical claim health Insurance Policy issued to the complainant by the opp.party. The claim petition is filed claiming the amount of medical expenditure along with compensation from the opp.party Oriental Insurance Company Ltd. City Division Office No.II,Chandmari, Guwahati and The Raksha TPA Pvt. Ltd. Guwahati represented by its manager
2) The fact of the case briefly narrating is that the opp.party No.1 being insurance company duly incorporated under the Companies Act,1956 is carrying business of Insurance through its various divisional and branch office located at Chandmari, Guwahati-781021 Kamrup Metro, Assam. The opp.party No.2 is a private company having its head office at 15/5, Mathura Road, Faridabad, Haryana-121003 carrying on the business of Insurance through its various branch particularly its branch office at Bhangagorh, G.S.Road, Guwahati-5.
3) The complainant made a proposal for (Happy Family Floater Policy) Medical claim health Policy in his own name for Rs.4,00,000/- on 30.7.2015. The opp.party no. 1 issued cover note bearing No. 321300/48/2016/1110 for a period from 30.7.2015 to 29.7.2016. After completion of one year the complainant again made a renewal of the aforesaid policy in his own name for the said sum of Rs.4,00,000/-(Rupees four lakhs)only on 21.7.2016 and accordingly a cover note was issued to him for a period from 30.7.2016 to 29.7.2017
4) The complainant states that during the renewal period the daughter of the complainant namely Neha Das aged about 16 years was admitted w.e.f. 23.8.16 to 25.8.16 at Pratiksha Hospital, Borbari, Guwahati, Assam for her ailment for hypertension as diagnosed by the doctors for which he had to pay Rs.21,982/- to the hospital. According to the complainant intimation was given to the opposite party no. 1 & 2 about the hospitalization of the daughter of the complainant on 23.8.16. The complainant submitted all the treatment related records and bills for payment of insurance policy claim to the opp.party No. 2 on 31.8.16. Later on again the daughter of the complainant Neha Das was admitted on 8.9.16 to 9.9.16 at Pratiksha Hospital for same disease for which he had to pay Rs.11,654/- to the hospital and intimation was also given to the opp.party No. 1 & 2 about hospitalization of the daughter on 8.9.16 and subsequently treatment record and bills were submitted for insurance claim under the insurance policy on 14.9.16
5) The case of the complainant is that opp.party no. 2 vide a letter dtd.28.10.16 rejected the claim of the complainant because his medical claim Health Insurance Policy on account of treatment of his daughter informing that “ the patient a 16 years old girl was admitted with hypertension (under evaluation ) treated conservatively & discharged with the follow up advice. After scrutiny it is observed that the patient’s ailment is excluded for a period of 2 years under the policy, but , the policy is only a 2nd year one. Hence, the claim stands non payable as per standard policy clause no. 4.3 (xvii) hypertension (under evaluation)”.
6) The complainant alleges that he did not have any knowledge about the terms and conditions of the standard policy, wherein the exclusion clause was included, both before and after purchase of the concerned policy as those were neither supplied to the complainant nor annexed with the policy cover note.
7) It is submitted by the claimant that opposite party ought to have communicate to the hidden terms and condition of the policy to the complainant so that complainant could know about the said policy before purchasing the same.
8) It is again submitted in the claim petition that opp.party want to repudiate the claim lodged by the complainant on some untenable grounds. It is again submitted in the complaint petition that it is a case of deficiency in service as well as unfair trade practices, and opp.parties are liable for deficiency of service.
9) Under the above circumstances the claimant submits his claim petition for a claim of Rs.33,736/- the expenditure of the treatment and Rs.25,000/- for physical pain, Rs.15,000/- for mental agony and Rs.20,000/- for compensation and Rs.10,000/- for cost of the proceeding etc. totaling Rs.1,03,700.36 along with interest @ 18% till the date of actual payment.
10) The opp.party No.1 contested the proceeding by filing written statement whereas the opp.party no. 2 have not appeared and the claim is proceeded exparte against him. Opp.party No.1 states that complaint is baseless, misconceived , unsustainable and is liable to be dismissed. It is specifically mentioned in their written statement that in Happy Family Floater Policy Schedule is common for all the customers and it is issued to the customer along with the policy receipt by applying seal of the company, but no acknowledgement is taken from customers in this regard as the contract is based on good faith. In policy bond clause No. 5.1 of the policy it is clearly mentioned that proposal form, prospectus and declaration given by the insured shall constitute the complete contract of the insurance
11) In the present case opp.party No. 1 submits that opp.party No.2 accepted the mediclaim policy of the policy holders, processed and reimbursed the same on behalf of the opp.party No.1 and vide letter dtd.15.9.2016 opp.party No.2 has informed opp.party No.1 about their observation and opinion which is annexed with the written statement . The opp.party no.1 states in their written statement that they have informed the opp.party No.2 vide letter dtd. 24.10.16 that claim of the complainant is repudiated and complainant was informed about the ground of repudiation vide letter dtd. 28.10.2016
12) It is further stated by the opposite party in their written statement that as per documents it was a second year running policy and there is a waiting period of 2 years. This condition is not honoured in this case and the complainant lodged the claim before the expiry of 2 years which is barred under the provisions laid down in clause 4.3 of the policy prospectus. To arrive at a decision it will be convenient to determine the dispute on following issues
i) Whether the claim is made before the prescribed limit as enumerated at 4.3.of the policy?
ii) Whether terms and conditions are duly communicated to the complainant at the time of contracting the policy (policy bond)?
iii) Whether the complainant is entitled for his claim and conpensation and if so to what extent ?
Findings Issue No. I
13) So far the issue no.1 is concerned , we have found from the documents available on the record that the claim petition was registered from 30.7.2015 to 29.7.2016 by the complainant and was further renewed on 21.7.16 vide policy No. 321300/48/2016/1110 for an another period from 30.7.2015 to 29.7.2016. If we calculate the aforesaid period of the policy it appears that during the first renewal period that is within 2 years of the policy a claim was made on 8.9.16 i.e. before expiry of 2 years of the policy. It is undisputed that as per 4.3 policy clause the ailment i.e. hypertension is excluded for a period of 2 years under the policy as the policy of the claimant is running for the second year only. The standard policy clause No. 4.3 is not disputed by the claimant, but further the claimant have categorically made a statement in the evidence that the opp.party have not supplied the terms and condition of the policy to the complainant nor annexed any document with the policy cover note to him for which he had no knowledge about the terms and condition of the concerned Insurance Policy, where the Exclusion Clause was included. During cross examination opp.party suggested that policy bond was given to the complainant along with the policy which was denied by the complainant . The opp.party have suggested that it was the complainant himself who is negligent in pursuing his policy and have not enquired about the terms and condition of the policy
14) We have gone through the testimony of O.P.W. 1 filed by one Madhuchanda Dhar , Chief Regional Manager, G.S.Road, Guwahati. According to her the copy of the policy bond is always attached with the policy schedule and the guidelines of Happy Family Floater Policy Schedule is a part of the policy and it is a common for all the customers and is based on good faith. She had referred clause 5.1 of the policy which included proposal from prospectus and declaration given by the insured. O.P.W.1 testified Ex.A , Ex.B and Ex.C. Ex.A & Ex.B are policy Schedule and Ex.C is the policy bond which is testified as Ex.3 and our relevant question is relating to Clause 4.3 of the aforesaid bond which expressly mentioned as below:
“The expenses on treatment of following ailments/ diseases/ surgeries, if contracted and /or manifested after inception of first Policy (Subject to continuity being maintained), are not payable during the waiting period specified below Xvii Hypertension 2 year.
15) It is categorically mentioned by opp.party No.1 that everything is clearly mentioned in the policy schedule and policy condition and there is no question of the hidden terms and accordingly the opposite party claimed that they have acted as per terms and conditions of the policy. The claim of the petitioner in the instant case have violated the terms and condition of the policy contract since the complainant have made the claim before expiry of 2 years or within the waiting period which barred under 4.3 of the policy prospectus. After going through the documents available on record we are of the opinion that issue No. 1 is determined in favour of the opposite party and against the complainant on the basis of the documents testified by the parties in evidence.
Issue No. II
16) So far the Issue No. II is concerned it is stated by the claimant in his affidavit that terms and condition are not communicated to him at the time of contacting the policy. The oral evidence of the claimant and evidence in affidavit is not supported by any other evidence to corroborate the same. On the other hand the opp.party have clearly mentioned that the terms and condition of the policy are supplied to the complainant which are annexed with the policy bond and if complainant was not understanding the terms and condition of the policy he could have made a quarry for that even in the second year of the renewal. This part of the evidence and argument of the opp.party is found having some merit on it as very apparently a policy is not supposed to be executed by any consumer without having the terms and condition of the policy . The argument put forwarded by the complainant is that he was unaware regarding exclusion clause and terms and condition of the policy, complainant referred as many as 5 reported cases which are enlisted herein below:-
i) The New India Assurance Company….vs. Rakesh Kumar, Judgment dated 27.3.2014 passed in First Appeal No. 96/2014 by the Hon’ble State Consumer Disputes Redressal Commission, U.T. Chandigarh…. Paras - 11 and 12.
II) Oriental Insurance Company Ltd. –vs- Karam Singh, Judgment dated 24.4.2018 passed in First Appeal No. 854/2017 2012 by the Hon’ble State Consumer Disputes Redressal Commission, Punjab para -
iii) Oriental Insurance Company Ltd. –vs- Brahmdeo Panjiyara, Judgment dated 14.3.2012 passed by Hon’ble National Commission.
iv) 2015 (1) CLT 591 titled as Star Health and Allied Vs. Asha & Others, whereby it is held that: Insurance policy -Exclusion clause-Not explained to insured when cover note was issued- Insurance company cannot derive any benefit from exclusion clause
V) 2013(1) CLT 589 titled as New India Assurance Co.Ltd. Vs.Pabbati Sridevi & Others Honble National Commission has held that : Terms and conditions therein, not communicated to the insured –whether can be used by Insurance Company-No-Held that the terms and conditions were never issued to the insured–policy is in the nature of standard, printed documents. There is nothing to show that its contents were part of the policy document issued to the insured-Terms and conditions in Insurance policy cannot be rely upon by insurance company. In view of the aforesaid law which are fully applicable on the facts and circumstances of the case, it is observed that the repudiation of claim by the op.party no. 1 is illegal and unjustified and the complainant is entitled for the claim amount as per policy.
17) From the discussion so far made, it appears to us that complainant ought have gathered the information about the terms and conditions of the policy which he had not done . In our discussion made in issue No. 1 , it is very clear that within two years of the policy term, no person is eligible for medical expenses as per standard policy clause No. 4.3 (xvii) of the policy for disease hypertension.
18) In our present case the treatment was for hypertension and the issue no. 1 was decided in affirmative and in favour of the opp.party. Therefore, complainant is not entitled for the amount claimed by him within the period of two years of the policy term and as such no award is guaranteed under the said terms to the complainant.
19) But so far the negligency is concerned we have gone through some of the reported case law-
i) Supreme Court of India- M/S Modern Insulators Ltd.-vs- The Oriental Insurance Co.Ltd. on 22 February, 2000
ii) State Consumer Dispute Redressal Commission- Oriental Insurance Company -vs-Karam Singh
20) We have considered the proposition of law established in the above mentioned case laws and have considered the established principles of law, through the facts are little different from the present case.
21) In our present case in hand there is no evidence from the opp.party to substantiate the fact that they have supplied the schedule of the said policy to the complainant at the time of opening of Happy Family Floater Policy, if policy bond is there it ought to be specific and clear enough so that a common/layman can understand the various clause of the policy bond at the time of executing the policy bond. Accotdingly issue no.II goes in favour of the complainant.
Issue No.III
22) We have gone through the policy bond which is testified by the op.party containing as many as 18 clauses with 116 Appendix which is not easy to understand for a common/layman . If we come to clause 4.3 (xvii) it is found that it is a list containing as many as 24 nos. of diseases where the waiting period is 1 year to 4 years and a common/layman will not be able to derive the exact waiting period and nature of disease etc. for which the opp.party must have made some attempt to explain the consumer about the terms and conditions of the policy bond which has not been done in the present case.
23) The technical term used in the policy bond again is a rider to the policy and there is no evidence to show that such a policy bond was handed over to the complainant about the fact that a waiting period in respect of disease in question is 2 years as such the negligence on the part of the opposite party company is found a little higher than the complainant for not acquainted himself about the terms and conditions of the policy. As such the complainant is entitled not for the medical expenditure of the disease, but entitle for causing harassment and mental agony by the opposite party for their negligence and the complainant is awarded a compensation for reason of negligence on the part of the opposite party.
24) In result, after due discussion of the matter we are of the opinion that there is a negligence on the part of the opp.party while dealing with the consumer in respect of concerned policy which contains many clauses in the policy bond as already discussed. The reason of not explaining the terms and conditions of the policy to the consumer there appears some part of negligence on the part of the opposite party. As such issue no. III is also decided in favour of the complainant.
25) Accordingly Rs.20,000/- (Rupees Rupees twenty thousand)only is awarded to the complainant as compensation as well as another amount of Rs.5,000/- (Rupees five thousand)only for the cost of the proceeding. The opp.parties will have to pay the aforesaid amount within 45 days from the date of receipt of the copy of the judgement, failing which, the opp.party have to pay an interest @9% per annum from the date of judgement till realization.
Given under our hand and seal of the District Forum, Kamrup, this the 9th day of June, 2020.
Member Member President
