BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.86 of 2019

      Date of Instt. 19.03.2019

      Date of Decision: 04.08.2022

1.       Ajay Kumar Sharma (A. K. Sharma) Aged 73 years Senior      Citizen S/o Late Shri Amir Chand.

2.       Smt. P. P. Sharma, aged 72 years Senior Citizen W/o Shri Ajay         Kumar Sharma (A. K. Sharma).

          Both R/o 41, Windsor Park, Gulab Devi Road, Jalandhar-144008.

..........Complainants

Versus

1.       The Oriental Insurance Company Ltd. Branch Office II, SCO 50,      Jeevan Raksha, PUDA Complex, Opposite Tehsil, Jalandhar        144001 (Punjab) Through its Branch Manager.

2.       Raksha Health Insurance TPA Pvt. Ltd, SCO 39, First Floor,   Sector-26, Madhya Marg, above Barbeque, Chandigarh through          its authorized signatory.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)                                

Present:       Smt. Harleen Kaur, Adv. Counsel for the Complainants.

                   Sh. Brijesh Bakshi, Adv. Cousnel for OPs No.1 and 2.

Order

Dr. HarveenBhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainants having respect and roots in society conscious to the need of health insurance allured by tempting benefits obtained PNB-Oriental Royal Mediclaim insurance policy as per the particular as under:-

                   The mediclaim policy covered risk to reimburse/indemnify expenses for any disease contracted or suffered from any illness/ailments/disease or injury sustained by the insured person. The first health insurance policy inception date 09.03.2017 was taken from OP No.1 through its authorized agent for policy period stated in the policy schedule. The mediclaim insurance policy was subsequently granted renewal continuously and uninterruptedly for all insured on wards without any gap/break and strings by OP No.1 lastly for policy period 09.03.2018 to 08.03.2019. The mediclaim policy schedule was issued in the name of complainant No.1 insured. The total amount of gross renewal premium as consideration was paid to OP No.1 through its agent/representative, which was accepted after fully satisfying continued insurability and without questioning the credentials of the insured persons without any demur. The OP No.1 issued to the complainant No.1 only policy schedule from the inception of the risk coverage under mediclaim insurance policy and on its renewal. The policy document was not ever issued to the complainants during the whole period of the policy. It was mandatory and obligatory upon the OP No.1 to have issued policy document which expresses the contract of insurance between the insurer i.e. OP No.1 and the insured complainants. There is 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 complainants and were not part of mediclaim insurance policy. The OP No.1 has agreed and undertaken to indemnify for medical and surgical expenses or illness/sickness, accident and surgical operation etc. contracted within the period of mediclaim insurance full extent without any limitation and deduction. Accordingly, 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 tenure of mediclaim insurance policy. The complainant No.2 wife of the complainant No.1 co-insured complained of diminuation of vision in her right eye consulted Dr. V. K. Mahajan, M. B. B. S M. D. on clinical examination, the complainant No.2 was diagnosed cataract in her right eye and was advised cataract surgery for right eye urgently to maintain normal visual acuity of the patient otherwise awaiting for expiry of two years shall be harmful and detrimental to eye vision. Acting upon the medical advice, the complainant No.2 was operated for Cataract Right Eye Surgery Phaco With Pciol Alicon Panoptix Eye Ocular Implantation was done on 01.09.2018 in Mahajan Eye Hospital, Jalandhar. Dr. V. K. Mahajan is surgeon who performed eye cataract surgery. The complainant No.2 was admitted on 01.09.2018and discharged on 01.09.2018. After discharge from hospital, complainant No.1 lodged a claim for total amount in the sum of Rs.75,000/- charges for cataract inclusive for medicine incurred for surgical operation charges and expenses for medicines to hospital in cash by the complainant No.1 from his own pocket for reimbursement for medical and surgical and medicines expenses incurred for reimbursement of hospitalization and treatment to OPs for quick medical settlement and payment to the complainant No.1. Duly completed prescribed claim form, discharge summary certificate, bill cum receipt and receipt for Rs.75,000/- paid to hospital by the complainant No.1 with all supportive documents completed with all respects and complied with all formalities and requirements whichever were asked for quick settlement and reimbursement of mediclaim for full amount of Rs.75,000/- since cashless facility was declined and intimated to treating hospital by OP No.2.

2.                To utter surprise and dismay, OP No.1 on the advice of OP No.2 slapped on the complainant No.1 with routine and mechanical rejection letter dated 22.01.2019 that on the scrutiny of documents and as advised by Raksha TPA, which reads thus, we express our inability to admit the claim under the policy and the same is being denied on account of the following:-

                   “Case of cataract right eye: Pacho +iol done expenses related to cataract are payable after two years policy terms, policy is 2^nd year of inception, so the claim is repudiated as per     clause 4.2”.

                   Refusal to pay just rightful, legitimate genuine and bonafide mediclaim reimbursement by OPs is arbitrary malafide, perverse capricious, unilateral, oppressive, unfounded and on non existing reasons without any valid justification otherwise than good faith on wholly misapplication of independent mind on surmises and conjectures is not sustainable in law. The act and conduct of the OPs have been arbitrary, irrational, illogical fanciful and whimsical frivolous and malevolently by spreading canard and harass the complainant 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/pay total amount of claim in the sum of Rs.75,000/- with interest @ 12 per annum from the date of lodgment mediclaim till date of actual payment to the complainants. Further, OPs be directed to pay Rs.50,000/- as compensation for causing mental tension and harassment to the complainant and Rs.10,000/- as litigation expenses.

3.                Notice of the complaint was given to the OPs, who filed reply and contested the complaint by taking preliminary objections that the above noted complaint is not maintainable under the law against the OP. the complainant has got no cause of action  to file the present complaint against the OP. The claim is not maintainable and the same is not payable as per the policy terms and conditions. The complainant is guilty of concealment of material facts and has not approached the Commission with clean hands and as such is not entitled to any relief from this Commission. On merits, the factum with regard to taking mediclaim policy by the complainant is admitted, but 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.

4.                Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement. 

5.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

6.                We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by the counsel for the complainant very minutely.

7.                The complainant purchased mediclaim policy with the inception date 09.03.2017 and the same was renewed without any gap for the policy period 09.03.2018 to 08.03.2019. The premium was paid. The complainant has proved Ex.C-1, the policy cover note number CHDC186649 dated 08.03.2017. Ex.C-2 has been proved as Corporate Identity Number and Ex.C-3 is the policy renewal notice dated 23.01.2018 and Ex.C-4 has been proved as renewal premium paid through bank for 2018-19. The wife of the complainant was operated for cataract right eye surgery on 01.09.2018 in Mahajan Eye Hospital Jalandhar. The complainants opted for cashless credit facility, but vide Ex.C-11 the OP denied the cashless credit facility and asked the complainant to send the claim for reimbursement for review. The complainant, vide Ex.C-5 furnished the claim alongwith the original documents i.e. bill, payment receipt, treatment papers and discharge summary, which have been proved on record by the complainant from Ex.C-6 to Ex.C-10. Ex.C-12 and Ex.C-13 are the emails sent by the complainant to the OP and vide Ex.C-14, the claim of the complainant was rejected on the ground that expenses claimed are related to cataract are payable after two years as per policy terms. The policy is in 2^nd year of inception. So, as per clause 4.2, the claim has been repudiated. The contention of the complainant is that the terms and conditions with the exclusion clause were never brought to the notice of the complainant nor the terms and conditions were ever delivered to the complainant during the whole period of the policy. As per law, it is mandatory and obligatory upon the OP to issue the policy documents which express the contract of insurance between the insurer and the insured i.e. the complainant. For this, she has relied upon judgment titled as Bajaj Allianz General Insurance Co. Ltd. Vs. Rajwant Kaur Thind 2021 (3) CLT 540 (CHD). She has also relied upon a judgment, titled as J R Banik Vs. National Insurance Co. Ltd. 2017(2) CLT 376 and submitted that the OP was to prove the terms and conditions have been supplied by the OP to the complainant, but the OP has failed to prove this fact, therefore without bringing the factum of exclusion clause to the notice of the complainant, the claim cannot be repudiated.

8.                The contention of the Ld.Counsel for the OPs is that the cover note was issued to the complainant on account of the acceptance by the complainant and the details have been clearly mentioned on the cover note. The terms and conditions of the policy with exclusion clause were sent to the complainant. The terms and conditions were also communicated to the complainant. He has further submitted that the claim of the complainant has rightly been repudiated as per condition of clause 4.2, the claim was not maintainable as per the clause the expenses on cataract have a waiting period of two years and the second year of the policy was going on, therefore the claim was not maintainable and the same has rightly been repudiated.

9.                The submission of the OP is that everything is mentioned on the cover note is not tenable. As per the cover note Ex.OP1/Ex.C1, no terms and conditions have been mentioned on it, nor any clause 4.1 or 4.2 is there on the insurance cover note Ex.C-1/Ex.OP-1. It has been held by the Hon’ble Rajasthan State Commission, in First Appeal No.167 of 2014, decided on 16.12.2016, case titled as “Bhanwarlal Vishnoi Vs. Oriental Insurance Company Limited”, 2017 (1) CLT 401 that the insurance company has to prove that the exclusion clause under which the claim is sought to be repudiated was communicated to the complainant. It has been held by the Hon'ble National Commission, in 2017 (2) CLT 376, case titled as “J. R. Banik Vs. National Insurance Co. Ltd.” that it is the duty of the OP that the terms and conditions should be supplied by the insurance company. It has further been held that the agents of insurance companies to achieve a target of number of insurance policies act in haste and collect premium and the consumers are supplied either cover note only or the insurance certificate without any policy clauses or terms and conditions. It has been held by the Hon'ble National Commission in a case titled as “National Insurance Co. Ltd. Vs. M/s Saraya Industries Ltd.” 2020(1) CLT 278 (NC) that it is the duty of the insurance company to supply all the terms and conditions of an insurance policy to the policy holder, there cannot be any presumption under law on terms and conditions.

10.              In the present case also the OP has not produced on record any evidence to show that the terms and conditions were ever supplied to the complainant nor any document has been proved on record to show that the complainant has received the terms and conditions and the complainant was aware of the same. It has been held by the Hon’ble Supreme Court in a case titled as “Bharat Watch Co. Ltd. through its Partner Vs. National Insurance Co. Ltd.” 2019 (6) SCC 212 that the conditions of exclusions under the policy document were not handed over to the appellant by the insurer and in the absence of the appellant being made aware of the terms of the exclusion, it is not opened to the insurer to rely upon the exclusionary clause. Thus, the OP has failed to prove that the complainant was well within the knowledge of the terms and conditions of the policy and the exclusion clause or the conditions of waiting period of 24 months. More so, perusal of the cover note Ex.C-1 shows that the policy was taken by the complainant on yearly basis and in such circumstances, the patient cannot wait for expiry of the period of two years to get the treatment, when it becomes urgent to get the treatment. Even otherwise once the policy is on the yearly basis, the policy will come to an end on the expiry of a year and the period of two years would never reach and the condition laid down of waiting period of 24 months becomes of no value and meaningless.

11.              It has been held by the Hon’ble State Commission, in case titled as “New India Assurance Co. Ltd and others Vs. Ravinder Pal Singh”, 2008 CTJ 769 (CP) (SCDRC) that ‘the exclusionary clause, where there is a condition of three years cannot be made basis for repudiating the claim since the policy run on yearly basis after being renewed by the holder, the condition of three years had no logic underlying it-clearly it was a continuous Good Health Mediclaim Policy.’ In view of the above referred law and considering the facts of the case, the repudiation letter is held illegal and the same is hereby set-aside.

12.              In view of the above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to reimburse the amount of Rs.75,000/- with interest @ 9% per annum from the date of lodging of mediclaim till its realization. Further, OPs are directed to pay Rs.10,000/- as compensation for causing mental tension and harassment to the complainant and Rs.5000/- as litigation expenses. The entire compliance be made within 45 days 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.

13.              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          Jaswant Singh Dhillon    Jyotsna               Dr. Harveen Bhardwaj     

04.08.2022         Member                          Member           President