Delhi

North

CC/80/2019

HEMANT BHANDARI - Complainant(s)

Versus

THE ORIENTAL INSURANCE COMPANY LTD. & ANR. - Opp.Party(s)

PRATEEK GANGWANI

31 Jan 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

Consumer Complaint No.:80/2019

 

In the matter of

 

Sh. Hemant Bhandari,

S/o Sh. R.L. Bhandari,

E-139, Ground floor,

Kamla Nagar,

Delhi-110007.                                                                  …..     Complainant

                                                          Vs

 

The Oriental Insurance Co. Ltd.

7678, Singh Sabha  Road,

Near Amba Cinema,

Delhi-110007.                                                             …..     Opposite Party No.1

 

M/s. E-Meditek TPA Services Ltd.

 518, 5^th floor,

Indra Prakash Building,

21, Barakhamba Road,

Delhi-110001.

Also at:-

Shop No.6, Plot in Khasra No.1273,

Pradhan Market, Old Delhi Gurgaon Road,

Kapashera, Delhi-110037                                             ….      Opposite Party No.2

 

ORDER

31/01/2024

 

Ashwani Kumar Mehta, Member:

 

(1)                The facts of the present complaint, filed under Section 12 of the Consumer Protection Act, 1986, are that the complainant was insured vide Policy No. 271500/48/2017/1127 valid from 21st June, 2016 to 20th June, 2017 (Filed with complaint as Annexure A). On 5th August, 2016 having severe pain, the complainant was admitted in Vinayak hospital for treatment and got discharged on 06th August, 2016. A copy of discharge summary and copy of medical records have been filed with complaint as Annexure B colly. Thereafter, the complainant submitted the claim for Rs. 23,504/- (Rupees Twenty Three Thousand Five Hundred  Four only) along with all the original documents to the Opposite Party on 12th August, 2016  (claim documents have been filed with complaint as Annexure C and  copy of the bills are also filed with complaint as Annexure D colly.). Thereafter,  the complainant received a letter dated 15.09.2016  (Filed with complaint as Annexure E) from Opposite Party no.2, which is TPA of the opposite party,  seeking some additional documents which were provided by the complainant. Thereafter, the complainant received another letter dated 23.11.2016 (Filed with complaint as Annexure F) from the Opposite Party no.2 in which they confirmed the receipt of the documents. The Opposite Party no.2 further sought documents/clarifications for the cause of the disease, a certificate from treating doctor for confirming that the disease was not related to alcohol intake (Filed with complaint as Annexure G) and few more documents. The complainant further provided all the documents sought by the Opposite Parties. Thereafter, the complainant received another letter dated 30.12.2016 (Filed with complaint as Annexure H) asking for the same documents which were already supplied to them by the complainant.

 

2.                Thereafter, on various occasions complainant enquired about his claim status telephonically but the Opposite Parties never replied properly nor settled the claim of the complainant. The complainant has alleged that the Opposite Parties are harassing the complainant as the complainant had already supplied all the documents and the Opposite Parties was just trying to evade their duty to pay the claim as per the insurance policy of the insured. After being tired and mentally tortured, the complainant visited the divisional office of the Opposite Party no.1 on 27th April, 2017 where he got to know that his claim has been repudiated on the ground of FRAUD/MISREPRESENTATION / CONCEALMENT of material facts in the proposal form. The  complainant asked for the copy of the repudiation letter and accordingly, the complainant received copy of letter dated 27-04-2017 from the said divisional branch which is annexed herewith (Filed with complaint as Annexure I) and thereafter, the complainant also received the repudiation letter dated 24.04.2017 (Filed with complaint as Annexure J).

 

3.                The complainant has further alleged that from the above facts, it has become crystal clear that the Opposite Parties have no intention to pay aforesaid claim of the Complainant, with malafide intention and ulterior motive.  The Opposite Parties have been indulged in Unfair Trade Practice by acting dishonestly to the disadvantage of the Complainant and have caused him harassment, mental tension and agony also. The Opposite Party No. 1 is responsible for negligent action of Opposite Party no.2 as it exercises supervision and control over the latter. The services provided by the Opposite Parties suffer from utter deficiency and  therefore, the instant complaint has been filed  praying to directions to the OPs to pay the amount of Rs.23,504/- (Rupees Twenty Three Thousand Five Hundred and Four Only) along with interest @ 18% p.a. and  Rs.20,000/- (Rupees Twenty Thousand Only) as compensation along with interest @ 18% p.a. for harassment caused to the complainant by the negligence, deficiency in service and Rs.20,000/- (Rupees Twenty Thousand Only) as Cost of litigation expenses to the complainant.

 

4.                 Accordingly, notices were issued to the OPs and in response, the OPs have filed their reply stating that there is no cause of action occurred to file the present case because as per the discharge summary of the patient dated 06-08-2016, the patient was known case of alcoholic person because in the discharge summary, it is categorically written "KCO Alcoholic". Therefore,  as per the term and condition no. 5.14 of policy (now known as 5.09), the claim is not payable as the insured has suppressed the material fact at the time of taking the policy as per proposal form/claim form that he is an alcoholic person, the contents of the conditions are as under:-

 XXXXXXXX

5.9 FRAUD/MISPREPRESENTATION/CONCEALMENT: The company shall not be liable to make any payment under this policy in respect of any claim if such claim be in any manner intentionally or recklessly or otherwise misrepresented or concealed or non-disclosure of material facts or making false statements or submitting falls bills whether by the insured person or institution/organization on his behalf, such action shall render this policy null and void and all claims hereunder shall be forfeited. Company may take suitable legal action against the insured person/institution/organization as per law.

 

5.                It has further been contended by the OPs that in the present case, as per the discharge summary, patient was alcoholic and no justification has been given regarding the same by the complainant during the processing of claim. Therefore, no expenses of hospitalization is admissible and the complainant is not entitled for anything in this case on account of hospitalization. Even the company has the right to take suitable action against the complainant for concealment of fact in the proposal form because if the patient was in habit of taking alcohol than it was the duty of the patient to disclosed the same.  This clearly proved that the complainant had not disclosed said fact with malafide intention and therefore, the complainant cannot take the advantage of its own wrong.

 

6.                 The OPs have further contended that even the veracity of the discharge summary is in doubt because there is no signature and stamp of the treating doctor on the discharge summary which creates doubt that the discharge summary is manipulated one.  The present compliant is time barred beyond period of limitation of 2 years as prescribed in Consumer protection Act because the said claim pertains to August, 2016 which was repudiated on concealment of facts which clearly suggests that present complaint is not maintainable and liable to be dismissed being time barred as per provision of law.

 

7.                 The OPs have also contended that the insurance policy is a contract between the parties and it governed with the terms and conditions of policy and in the present case, the complainant himself had admitted all the terms and conditions of the policy because the complainant himself had not pleaded anywhere that the complainant was not aware about the terms and conditions of policy.  Besides, no document or any opinion of doctor has  been produced by the complainant which may prove that the complainant was to be hospitalized in such disease which needed the hospitalization. Further, the complainant failed to inform the OP regarding his hospitalization in time and filed a direct claim which is not payable.

 

8.                 The OPs have further stated that the intention to issue the insurance policy is just to compensate the insured if the insured is hospitalized or any procedure of illness is done but if any patient concealed the material fact than the policy becomes void and the company is not liable to pay in such case on account of any claim. Therefore, in deciding the insurance claim, the clauses of the policy cannot be ignored and it was not the averment/pleading of the complainant that the policy schedule with terms and conditions were not provided to the complainant and exclusion clause cannot be enforced whereas the complainant themselves had filed the terms and conditions of policy with the complaint. The discharge summary and other medical treatment documents clearly shows that there is concealment of fact, the consumer commission cannot be carried away the one-sided story of the complainant and the genuine provisions of denial of unjust claim cannot be overlooked and even also repudiation of claim cannot be disbelieved as supported with the clause 5.14 clearly stipulated in insurance policy. The OP has also referred the judgment of  Hon'ble Supreme Court of India dated 10 July, 2009 in the matter of  Satwant Kaur Sandhu vs New India Assurance Company Ltd in  Civil Appeal No. 2776 OF 2002 wherein it had been held that "A mediclaim policy is a non-life insurance policy meant to assure the policy holder in respect of certain expenses pertaining to injury, accidents or hospitalizations. Nonetheless, it is a contract of insurance falling in the category of contract uberrimae fidei, meaning a contract of utmost good faith on the part of the assured. Thus, it needs little emphasis that when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. Therefore, there is no deficiency on the part of OPs as OPs had acted with all due diligence and relied upon correct clause of policy during repudiation of claim in question and the claim was rightly repudiated.

 

9.                while replying on merits on the contents of para 3 of the complaint, the OPs have replied that the complainant had not given the detail of the policy when first policy was taken and since when the policy is renewed,  therefore,  the complainant is put to the strict proof of the same. Further, on the contents of para 4 of the complaint, the OPs have replied that it need no reply insofar matter of record and the contents of para 5 of the complaint are denied for want of knowledge. As per the discharge summary,  the patient was admitted on 05-08-2016 at about 9.30 P.M. but on the date of discharge,  the time is not mentioned which suggests that the patient remained in the hospital below than 24 hours and therefore, the claim for hospitalization below 24 hours is not admissible. Therefore, on this ground also the claim is not payable.

 

10.               The OPs have replied the contents of para 8 of the complaint as misconceived and misleading. The OPs have also stated that the certificate issued by the doctor is manipulated one because if in the discharge summary, it is written that the patient is alcoholic, than how  such certificate can be issued by any doctor, therefore,  the said certificate is false and manipulated one which cannot be relied upon. It is further stated that the complainant failed to supply the entire documents to the OP and having no option, the OP processed the claim.

 

 11.              The Complainant has also filed rejoinder affirming the allegations levelled in the complaint and refuting the reply of the OPs stating that:-

 

a.       the contents of para no. 2 of the Preliminary Objections are wrong and denied. It has been denied that there is no cause of action occurred to file the present case.

b.       It has also been denied that the complainant was an alcoholic at the time of commencement of the said policy, i.e., 21-06-2006, thus, there was no FRAUD/MISREPRESENTATION/CONCEALMENT on the part of the complainant. At the time of admission, the complainant was not an alcoholic and there was no history of alcohol intake as per the certificate of the consultant Doctor i.e. Dr. Avinash Rai (Annexed with the complaint at page-58) which was issued for submitting clarification to the OPs  It is also denied that no justification for the same was given to the opposite party in this regard as the certificate of the concerned doctor stating that there was no history of alcohol intake was supplied to the opposite party after receiving the letter dated 23-11-2016.

c.       the OPs are taking the plea of non-disclosure in the proposal form whereas the copy of the said proposal form has not been filed along with the reply of the OPs.

d.       the contents of para no. 3 of the Preliminary Objections are wrong and denied. The OP has raised doubt over the veracity of the discharge summary because there is no signature and stamp of the treating doctor on the discharge summary and therefore, the discharge summary is manipulated one even then the discharge summary shows that the patient is alcoholic and therefore, the claim is not payable. It is also clarified that at the time of discharge, the treating doctor was not available so it was not possible to get the discharge summary signed and stamped by the treating doctor. However, the discharge summary clearly bears the signature and stamp of the concerned doctor on Duty- Dr. Himani Dhawan.

e.       the insurance company is trying to evade its liability by one way or the other as at one instance, the opposite parties are relying on the discharge summary by saying the patient is alcoholic, but on the other instance, it is considering the discharge summary as manipulated one.

f.       the contents of para no. 4 of the Preliminary Objections are wrong and denied. The present complaint is not time barred and within the period of limitation of 2 years as prescribed in Consumer Protection Act because the cause of action for filing the present complaint arose on 27th April, 2017 when the complainant got the information of the claim being repudiated and therefore, the same was filed within the period of limitation.

g.       the contents of para no. 6 of the Preliminary Objections are wrong and denied because no document or any opinion of doctor has not been produced by the OP to prove that the complainant was not required to be hospitalized in  disease for which the complainant was hospitalized.

h.       It is also denied that the complainant failed to inform the OP regarding his hospitalization in time and filed a direct claim which is not payable. It is clarified that after the complainant received a letter dated 15.09.2016 from Opposite Party no.2 which is TPA of the opposite party asking for further documents, the same were sent by the complainant.

i.       the contents of para no. 3 of the written statement are incorrect and hence denied that the complainant had not given the details of the policy when he has taken first policy and since when the policy is renewed, therefore, the complainant should put to the strict proof of the same. In this regard, the copy of policy issued by the Opposite Party is attached with the complaint at pages 10-12 and clearly shows that the policy was first taken on 21-06-2006, bearing policy no. 271501/48/2007/658 and is being regularly renewed since the said date.

j.       the contents of para no. 5 of the written statement are incorrect and hence, denied that the patient remained in the hospital for less than 24 hours. It is clear from the patient bill (summary) {enclosed with complaint at page 34-39} that the Date of Discharge and the Time of Discharge i.e. 06/08/2016 at 22:30,  which is more than 24 hours.

k.       the contents of para no. 9 of the written statement are incorrect and hence denied that the complainant had not complied with the directions of the previous letter, therefore, OP had sent the another letter. The complainant submitted the required documents after receiving the first letter but the OP failed to appreciate the same. The OP has accepted in para no.10 of reply on merit that OP received the documents.

 

12.               Both the parties have filed evidence and written arguments. The Complainant has also referred the  judgment passed by Hon’ble State Consumer Disputes Redressal Commission,  Punjab [Date of Decision: 02.11.2022] in the matter of Future Generali India Insurance Company Limited Versus Chander Bhatia S/o Vasudev Bhatia, in FA No.223/2022 which appears relevant in this case. In para 12 of this judgment, following observations have been made:-

 

“No date was mentioned in the Discharge Summary to show as to from which date/period the complainant consuming Alcohol. Even in the past history also the word "Not Significant" has been mentioned. The Discharge Summary is not sufficient to prove that the complainant was Alcoholic prior to the date of inception of first policy i.e. 2016. No other certified document has been produced by the appellant to prove that the complainant had taken any treatment for such ailment which had occurred due to consumption of Alcohol prior to the date of inception of the policy i.e. 05.07 2016 The Discharge Summary pertains to the year 2019, which was issued after a period of three years from the date of inception of the policy.”

 

13.     The judgment of Hon’ble Supreme Court in the matter of “P. Vankat Naidu Vs. Life Insurance Corporation of India & Anr." IV (2011) CPJ 6 (SC) has also been referred wherein it was observed in Paras No.6 and 7 as under:-

 

“6. We have heard learned counsel for the parties and carefully perused the record. In our view, the finding recorded by the District Forum and the State Commission that the respondents had failed to prove that the deceased has suppressed information relating to his illness was based on correct appreciation of the oral and documentary evidence produced by the parties and the National Commission committed serious illegality by upsetting the said findings on a wholly unfounded assumption that the deceased has suppressed information relating to hospitalization and treatment.

7. Since the respondents had come out with the case that the deceased did not disclose correct facts relating to his illness, it was for them to produce cogent evidence to prove the allegation. However, as found by the District Forum and the State Commission, the respondents did not produce any tangible evidence to prove that the deceased had withheld information about his hospitalization and treatment. Therefore, the National Commission was not justified in interfering with the concurrent finding recorded by the District Forum and the State Commission by making a wild guesswork that the deceased had suppressed the facts relating to his illness."

 

14.     Accordingly, the complaint has been examined in view of the facts of the case and averments/documents/Evidence put forth by the complainant & OPs and it has been observed that:-

I.        The present complaint has been filed within the period of limitation of 2 years because the cause of action for filing the present complaint arose on 27th April, 2017 when the complainant got the information of repudiation of the claim. The OPs have raised baseless objection without filing any evidence of service of the letter of repudiation upon complainant prior to it.

II.            The OPs have not filed copy of the proposal form and any record proving non-disclosure or misrepresentation or fraud on the part of the complainant.

III.           The Discharge Summary is not sufficient to prove that the complainant was Alcoholic at the time of filling proposal form and no other certified document has been produced by the OPs to prove that the complainant had taken any treatment for such ailment which had occurred due to consumption of Alcohol prior to the date of inception of the policy.

IV.          The complainant has filed copy of policy issued by the Opposite Party with the complaint which mentions that the policy was first taken on 21-06-2006, and is being regularly renewed. It is strange to note that the OPs are contending that the Complainant should file proof as to when the insurance policy was purchased first whereas the OPs have issued the policy and records must be available with it.

V.            The policy is continuing since 2006 whereas the Discharge Summary pertains to the year 2017.

VI.          The patient bill (summary) clearly mentions the Date of Discharge and the Time of Discharge i.e. 06/08/2016 at 22:30, which is more than 24 hours.

VII.         The OPs have also not clarified as to how the discharge summary is manipulated one? Mere non-availability of stamp at one place does not make the entire claim manipulated one. It has also been noticed that the discharge summary is duly signed by Dr. Himani Dhawan,DOD with proper stamp.

VIII.        The complainant has supplied all the documents, including clarification from consulting doctor - Dr. Avinash Rai { enclosed at page 58 of the complaint and also supported by affidavit dated 2-11-2019} but the OPs have stated that the complete documents were not supplied. The OPs have not stated as to which document was not supplied? 

IX.          The OPs have failed to produce any medical literature or opinion of doctor to prove that the complainant was not required to be hospitalized in disease for which the complainant was hospitalized.

X.            The judgments referred in para 12 and 13 above are also relevant in the instant complaint.

 

15.               In view of the above observations, it has been concluded that the OPs have not scrutinized the claim of the complainant diligently and have acted in the pre-determined manner with the intention to disallow the claim without any cogent reason. Therefore, we are of the considered view that the complainant has suffered directly due to deficient service of the OPs in terms of the deficiency defined in the Act which includes any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained in relation to any service and includes any act of negligence or omission or commission by such person which causes loss or injury to the consumer. Therefore, we feel appropriate to direct the OPs to pay the amount of Rs.23,504/- (Rupees Twenty Three Thousand Five Hundred and Four Only), jointly and severally, to the complainant within thirty (30) days from the date of receipt of this order, with interest at the rate of 9% p.a. from 27-04-2019 (date of repudiation of the claim) till the date of the payment. Besides, the OPs are also directed to pay Rs.20000/-(Rupees Twenty Thousand only) as compensation to the Complainant, for the mental pain, agony and harassment.

16.               It is clarified that if the abovesaid amount is not paid by the OPs to the Complainant within the period as directed above, the OP shall be liable to pay interest @12% per annum from the date of expiry of 30 days period.

17.               Order be given dasti to the parties in accordance with rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

 

 

ASHWANI KUMAR MEHTA                                          HARPREET KAUR CHARYA

                                                   Member                                                                                    Member                    

                                           DCDRC-1 (North)                                                                   DCDRC-1 (North)

         

                                                           

DIVYA JYOTI JAIPURIAR

                                               President

          DCDRC-1 (North)