BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.78 of 2017

Date of Instt. 24.03.2017

Date of Decision: 22.04.2019

Vishwa Mitar Kohli aged 71 years son of Late Dr. Dharam Pal Kohli, resident of 47-First Floor, Saraswati Vihar, Kapurthala Road, Jalandhar.

..........Complainant

Versus

1 The Oriental Insurance Company Ltd., Divisional Office, 32, G.T. Road, Jalandhar through its Senior Divisional Manager, Jalandhar.

2. E-Meditek (TPA), Services Ltd. Carpet Office, Plot No.577, Udyog Vihar, Phase V, Gorgon (Haryana)-1220016.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Jyotsna (Member)

Present: Sh. K. C. Malhotra, Adv Counsel for the Complainant.

Sh. A. K. Arora, Adv Counsel for the OP No.1.

OP No.2 exparte.

Order

Karnail Singh (President)

1. This complaint has been filed by the complainant, wherein alleged that the complainant obtained mediclaim insurance policy (individuals) to cover the risk of any disease or suffered from any illness/ailments or injuries sustained by the insured person. The policy was taken from OP No.1 through its authorized agent for the period stated in the policy schedule by renewal effective from 06.01.2016 to 05.01.2017 and allotted policy No.233100/48/2016/1248 as to policy schedule dated 07.12.2016. The complainant has been continuously and uninterruptedly insured himself for mediclaim insurance policy since year 2009, without any gap and strings by the OP No.1. The policy schedule of mediclaim insurance policy was issued in the name of the complainant. The total amount of renewal premium of Rs.18,261/- was paid to OP No.1 through its agent/representative. The OP No.1 delivered to the complainant policy schedule and cover note No.CHD-C 45889 only from the inception of the risk coverage under mediclaim insurance policy and on its renewal. The policy document was not ever issued/delivered to the complainant by OP No.1, during the whole period of the policy. It is pertinent to submit that it was mandatory and obligatory upon OP No.1 to have issue policy document which expresses the contract of insurance between the insurer i.e. OP No.1 and the insured complainant. There is/was no ground or reason or occasion for not issuing the policy bond. Normally cover note/policy schedule is only interregnum during which policy is prepared and issued. The terms and conditions including exclusion clauses were not ever communicated and explained nor made known to the complainant and were not part of insurance.

2. That the OPs have agreed and undertaken to indemnify for medical and surgical expenses or illness/sickness, accident and surgical operation etc. contracted within the period of insurance to the full extent without any limitation and deduction. Accordingly, the complainant has got the right of indemnification/reimbursement for the whole amount of mediclaim insurance policy expenses incurred or any loss or damage or peril covered during the terms or mediclaim insurance policy. The complainant insured with OP No.1, had some problem of urination frequency of Micturation H/o Poor Flow in Day 5-8 times in night 2-3 times Onusg BPH II Admitted for TURP NO C/O FEVER, CAUGH DYSPNOEA P/H O HTN ON PROPER TREATMENT ON AMLIP 5 ONCE ON ADMISSION B.P=110/70, AFEBRILE and was admitted in Kidney Hospital and Life Line Medical Institute, Jalandhar on 30.11.2016 and discharged on 03.12.2016 and TURP done under S. A. on 30.11.2016 by Dr. R. S. Chahal, M. S. M. ch.

3. That after discharge from the hospital, the complainant lodged a claim in the sum of Rs.42,382/- for medical treatment and clinical and laboratory test expenses incurred for reimbursement of authorization to OPs. Duly completed prescribed claim form, bills, receipts discharge certificate along with clinical test was submitted to OPs. All the formalities were completed and complied with for settlement and reimbursement of mediclaim for full amount of Rs.42,382/-. To utter surprise and dismay of the complainant, the OP No.2 unilaterally and arbitrarily on whim and fancy drastically reduced mediclaim reimbursement from Rs.42,383/- amount claimed, vide letter dated 06.01.2017 that Rs.31,387/- amount payable and Rs.10,995/- non payable. Accordingly, an amount of Rs.31,387/- was sent to Baroda Bank Account, Mahavir Marg to the complainant through NEFT without stating specific terms and conditions of mediclaim insurance. The OP No.2 has wrongly and illegally reduced the mediclaim by getting a support of Exclusion Clause which was never issued or delivered to the complainant during the subsistence of mediclaim insurance policy. The OPs have wrongly and illegally retained legitimate rightful and genuine claim of the complainant to the extent of Rs.10,995/- due and payable to the complainant and therefore, the act and conduct of the OP is tantamount to deficiency in service and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to reimburse the remaining amount of Rs.10,995/- along with interest @ 12% p. a. from the date of lodgment till date of actually payment to the complainant and further OPs be directed to pay compensation to the complainant for causing mental tension and agony as well as harassment, to the tune of Rs.10,000/- and litigation expenses of Rs.5500/-.

4. Notice of the complaint was given to the OPs, but despite service OP No.2 did not come present and ultimately, OP No.2 was proceeded against exparte.

5. OP No.1 appeared through its counsel and filed written reply, whereby contested the complaint by taking preliminary objections that there is no deficiency of service or unfair trade practice on the part of the answering OP and that being so the present complaint not maintainable. It is further submitted that the amount due under the policy of insurance issued to the complainant has already been paid to the complainant. It is not out of place to mention here that the complainant has lodged claim for a sum of Rs.42,382.00 with the OP No.2 i.e. the claim settling agency of the OP No.1 for hospitalization of the complainant from 30.11.2016 to 03.12.2016 in Kidney Hospital and Lifeline Medical Institution. The claim of the complainant was registered, vide claim no.103121600011 and accordingly, a sum of Rs.31,387.00 was paid to the complainant as per the terms and conditions of the policy of insurance. The split up of the deducted amount was also supplied to the complainant in claim settlement letter dated 06.01.2017. As per mediclaim insurance policy under which the complainant is covered states as per clause 1.2 coverage A-

“Number of days of stay under 'a' and 'b' above should not exceed total number of days of admission in the hospital. Admissibility of all related expenses (c & d) except for medicine/pharmacy bill and body in plants shall also be as per the entitled category vis-a-vis room rent.”

On merits, it is admitted that the complainant obtained a policy and also submitted a claim and as per terms and conditions, the insurance claim amount has been already paid to the complainant and nothing is remained due and the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

6. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA and supplementary affidavit of the complainant Ex.CB along with some documents Ex.C-1 & Ex.C-2 Policy Schedule, Ex.C-3 & Ex.C-4 Final Claim Settlement, Ex.C-5 Settlement of Claim and Ex.C-6 Discharge Summary of Kidney Hospital, Jalandhar and closed the evidence.

7. Similarly, counsel for the OP No.1 tendered into evidence affidavit of Sh. Sandeep Thapa as Ex.OA alongwith some documents Ex.O-1 Policy Schedule, Ex.O-2 Policy Clauses, Ex.O-3 Final Bill and Ex.O-4 Bill of Prima Medicos and closed the evidence.

8. We have heard the argument from learned counsel for the respective parties and also gone through the case file very minutely.

9. There is no dispute between the parties that the complainant obtained mediclaim insurance policy to cover the risk of illness, ailments, diseases or injuries sustained to the insured person. The complainant also admittedly paid the premium of Rs.18,261/- and the complainant is taking the said insurance policy uninterruptedly from OP since 2009 and its renewal is also never delayed and further the complainant admittedly remained admitted in the hospital, where-from he got treatment of some urination problem and then submitted the claim amount of Rs.42,382/- for medical treatment, but out of that amount, the OP has paid only Rs.31,387/- after deducting an amount of Rs.10,995/- and now, the said deduction has been challenged by the complainant through this complaint by stating that the said deduction has been made illegally and arbitrarily by the OP.

10. On the other hand, the OP took a plea as per terms and conditions of the policy i.e. Clause 1.2 Coverage 'a' & 'b', the said deduction has been made according to the said Clause 1.2 of the terms and conditions and further submitted that the terms and conditions has been supplied to the complainant along with the insurance policy, for that purpose, the counsel for the OP referred the copy of insurance policy Ex.O-1 on its second page, it is categorically mentioned that the insurance under this policy is subject to conditions, clauses, warranties, endorsements as per forms attached and whereby gave much stress upon these wordings that the complainant was made known regarding terms and conditions, which are separately issued to the complainant and further alleged that the claim of the complainant in regard to remaining amount is arbitrary and illegal.

11. We have considered the rival contention of both the parties and find that the part payment of the insurance claim has been admittedly paid by the OP to the complainant simply on the ground that there is an Exclusion Clause 1.2, for that purpose, the OP has also also brought on the file copy of the terms and conditions Ex.O-1 and further referred page 2 of the insurance policy Ex.O-1, wherein categorically mentioned that this policy is subject to terms and conditions.

12. First of all, the complainant has placed on the file only covering note of the insurance policy Ex.C-1 having one page, but the said covering note is produced on the file by the OP Ex.O-1 having two pages. If the signature upon these documents i.e. covering note is on the last page, then we can assess that the complainant has intentionally concealed the second page, when each page is signed by the insurance authority, then we can consider that the each page is a complete document. So, it shows that the second page was never supplied to the complainant by the OP. Further, the OP has brought on the file copy of the terms and conditions Ex.O-2, but again these terms and conditions were never supplied or delivered even explained to the complainant, if so, then it is the duty of the OP to explain in the written reply that in what manner, the said term and condition as well as second page of the covering note was supplied to the complainant, whether it was handed over in person, if so, then the signature of the complainant must be obtained or if the same has been sent to the complainant through registered post, then its postal receipt must be placed on the file, but no such type of document has been brought on the file by the OP which itself established that the terms and conditions were never explained or supplied to the complainant, if so, then the said terms and conditions are not binding upon the right of the complainant to get full insurance mediclaim and in support of these observation, we like to made reliance upon a judgment of our Hon'ble High Court, cited in 2017 LawHerald.Org 1999, decided in CWP No.2603 of 2017, decided on 13.02.2017, titled as “New India Assurance Co. Ltd. Vs. Presiding Officer & Anr.”, wherein his Lordship held as under:-

“Insurance Act, 1938, Medi-Claim Policy-Deductions toward room rent- claimants was admitted in hospital and availed private room- Provisions of policy towards private room rent were not supplied nor disclosed to him at the time of issuance of policy-Reductions of taking shelter of clauses in policy cannot be said to be correct-Claim upheld.”

Further, we like to refer an other pronouncement of our Hon'ble State Commission, cited in First Appeal No.503 of 2018, decided on 30.11.2018, titled as “Life Insurance Corporation of India and Others Vs. Vishal Thatai and Others”, a further reference has been given in the aforesaid judgment of the judgment of Hon'ble Supreme Court, cited in (2000) 2 SCC (734), titled as“Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd., wherein it has been specifically held that Exclusion Clauses, which are not explained to the insured, are not binding to the insured and are required to be ignored.

13. In view of the above detailed discussion, we came to conclusion that the part claim of the complainant has been wrongly denied by the OP by invoking Exclusion Clause 1.2 of the terms and conditions, so accordingly we hold that the complainant is entitled for the relief as claimed.

14. In the light of above detailed discussion, the complaint of the complainant is partly accepted and OP No.1 is directed to pay the remaining mediclaim insurance amount of Rs.10,995/- along with interest @ 12% per annum from the date of filing complaint i.e. 24.03.2017, till realization and further OP No.1 is directed to pay compensation to the complainant, to the tune of Rs.7000/- and litigation expenses of Rs.3000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

15. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Jyotsna Karnail Singh

22.04.2019 Member President