Order by:
Sh.Amrinder Singh Sidhu, President
1. The complainant has brought the instant complaint under section 12 of the Consumer Protection Act, 1986 on the allegations that the complainant had purchased an insurance policy bearing no.233904/48/2015/1141 under scheme of "PNB Oriental Royal Mediclaim Policy Schedule" from the agent of opposite parties at Moga. At the time of selling the said policy to complainant the agent of opposite parties assured the complainant that in case during the policy period any member of the family of complainant is admitted in hospital due to health problems then the entire treatment charges will be borne by the opposite parties. The said policy was valid for the period of one year. Before the expiry of said policy the complainant got renewed the said policy from the office of opposite parties vide policy no.233902/48/2016/5024 under same scheme from the opposite parties, the said policy was valid for the period of 27.01.2016 to 26.01.2017. During the policy period of second policy the wife of complainant namely Shelly Singla suddenly fell ill, due to which she was remained admitted in Sham Nursing Home and Heart Centre, Moga from 07.05.2016 to 08.05.2016 due to Diarrhea and vomiting and on the treatment of the complainant an amount of Rs.10,680/- was spent by the complainant from his own pocket. Again on 02.06.2016 the wife of the complainant again suffered from health problem and she again remained admitted in Sham Nursing Home and Heart Centre from 02.06.2017 to 03.06.2017 and surgery of Cholelithiasis was conducted and complainant again spent Rs.33,400/- on her treatment. Again on 23.06.2016 the wife of the complainant was suffered from health problem due to which she remained admitted in S.P.S Hospital, Ludhiana from 23.06.2016 to 24.06.2016 due to problem of Gastro Entritis and complainant spent an amount of Rs.11,662/- on her treatment. After completion of treatment the complainant the office of the opposite party no.2 and also submitted all the requisite documents and original bills with the opposite party on 30.06.2016 and same have been received by the officer of opposite party no.2. After that the complainant visited the office of opposite party no.2 many a times and opposite parties used to linger on the matter by making false excuses. But now the opposite parties had flatly refused to release the amount of claim of the complainant. As per terms and conditions of the policy the wife of the complainant namely Shelly Singla and children namely Preksha and Aarsh Singla were covered under the policy. Due to the abovesaid negligent act of the opposite parties the complainant has suffered mental and physical harassment and economic loss. Due to the aforesaid acts and conduct and deficiency in service on the part of the Opposite Parties, the Complainant has suffered mental tension, harassment as well as financial loss. Vide instant complaint, the complainant has sought the following reliefs.
- To direct the Opposite Party to release the amount of claim i.e. Rs.55,742/- to complainant.
- Further to pay Rs.1 lakh as compensation on account of mental and physical harassment and Rs.50,000/- as litigation expenses to the complainant.
2. Upon notice, opposite party no.1 & 2 appeared through counsel and contested the complaint by filing written reply taking certain preliminary objections therein inter alia that the complaint is not maintainable; that the complainant is bad for non-joinder and mis-joinder of necessary parties; that there is no deficiency in service on the part of answering opposite parties. The complainant was insured under the PNB-Oriental Insurance Policy for the period 27.01.2016 to 26.01.2017. The policy was purchased by the complainant for the first time on 27.01.2015; that the complainant has not come to the court with clean hands and has concealed and suppressed the material facts from this Forum. The complainant had lodged three claim forms dated 29.06.2016 and 30.06.2016. The claim no.12946322 dated 29.06.2016 for the period of hospitalization 02.06.2016 to 03.06.2016 in Sham Nursing Home and Heart Centre was repudiated by the answering opposite parties vide letter dated 29.09.2017. Ms. Shelly Singla wife of complainant was diagnosed with Cholelithiasis and surgical management was required. The complainant is covered under PNB-Oriental Insurance policy since 27.01.2015, therefore the claim is still under the waiting period of 2 years. The treatment is not admissible under the policy. The claim sands repudiated under the clause 4.2 (xiii) of the policy. The claim no.12946418 dated 29.06.2016 for the period of hospitalization 23.06.2016 to 24.06.2016 in SPS Hospital, was repudiated by the answering opposite parties vide letter dated 22.12.2016. As per the discharge summary, the wife of the complainant is admitted for the treatment of gastroenteritis with Hypothyroidism. On verification of the papers it is noted that Hospitalization is less than 24 hours (admitted from 23.06.2016 5.25 pm to 24.06.2016 2.46pm). Hence the claim stands repudiated under the clause 3.5 of the policy. For the claim no.12946345 dated 30.06.2016, for the hospitalization for period 07.05.2016 to 08.05.2016 in Sham Nursing Home and Heart Hospital, it is submitted that the claim was wrongly repudiated. On perusal of claim documents, the wife of complainant was treated for Git on 07.05.2016 at 3 am and discharged on 08.05.2016 at 7 pm. On verification of the documents, it is noted that Hospitalization is more than 24 hours. Therefore, instructions have been issued by the Competent Authority to TPA for reconsideration of the admissibility of the claim and to pay the amount as per terms and conditions of the policy. On merits, all other allegations made in the complaint have been denied and a prayer for dismissal of the complaint with special costs has been made.
3. In order to prove his case, the complainant tendered into evidence his duly sworn affidavit Ex.C1 in support of the allegations made in the complaint and also produced copy of documents Ex.C2 to Ex.C29 and closed the evidence.
4. On the other hand, to rebut the evidence of the complainant, the Opposite Party tendered into evidence the affidavit of Sh.Jasvinder Singh, Senior Divisional Manager, Oriental Insurance Co. Ex.OPs-1,2/1 and copies of documents Ex.OPs-1,2/2 to Ex.OPs-1,2/9 and closed the evidence.
5. We have heard the ld. counsel for the parties and have gone through the evidence on record.
6. During the course of arguments, ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that the complainant had purchased an insurance policy bearing no.233904/48/2015/1141 under scheme of "PNB Oriental Royal Mediclaim Policy Schedule" from the Opposite Parties initially for one year. In the said policy, the Complainant and his wife and children were insured. However, before the expiry of said policy the complainant got renewed the said policy from the office of opposite parties vide policy no.233902/48/2016/5024 under same scheme from the opposite parties, the said policy was valid for the period of 27.01.2016 to 26.01.2017. During the policy period of second policy, the wife of complainant namely Shelly Singla suddenly fell ill, due to which she remained admitted in Sham Nursing Home and Heart Centre, Moga from 07.05.2016 to 08.05.2016 due to Diarrhea and vomiting and on the treatment of the complainant an amount of Rs.10,680/- was spent by the complainant from his own pocket. Again on 02.06.2016 the wife of the complainant suffered from health problem and she again remained admitted in Sham Nursing Home and Heart Centre from 02.06.2017 to 03.06.2017 and surgery of Cholelithiasis was conducted and complainant again spent Rs.33,400/- on her treatment. Again on 23.06.2016 the wife of the complainant suffered from health problem due to which she remained admitted in S.P.S Hospital, Ludhiana from 23.06.2016 to 24.06.2016 due to problem of Gastro Entritis and complainant spent an amount of Rs.11,662/- on her treatment. After completion of treatment the complainant visited the office of opposite party no.2 and also submitted all the requisite documents and original bills with them on 30.06.2016. After that the complainant visited the office of opposite party no.2 many a times, but all the times, the opposite parties used to linger on the matter by making false excuses. But now the opposite parties had flatly refused to release the amount of claim of the complainant. As per the policy the wife of the complainant namely Shelly Singla and children namely Preksha and Aarsh Singla were covered under the policy. It is further contended by ld.counsel for the Complainant that no such terms and conditions on the basis of which the Opposite Parties are denying to make the genuine claim of the Complainant, are never supplied or conveyed to the Complainant and in the absence of such instructions, the claim of the Complainant can not be rejected. If such terms and conditions were ever conveyed to the Complainant, then it was upon the Complainant to purchase such type of the policy or not. Due to the abovesaid negligent act of the opposite parties the complainant has suffered mental and physical harassment and economic loss. Due to the aforesaid acts and conduct and deficiency in service on the part of the Opposite Parties, the Complainant has suffered mental tension, harassment as well as financial loss.
7. On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid contentions of ld.counsel for the Complainant on the ground that
the complainant was insured under the PNB-Oriental Insurance Policy for the period 27.01.2016 to 26.01.2017 and the complainant had lodged three claim forms dated 29.06.2016 and 30.06.2016. The claim no.12946322 dated 29.06.2016 for the period of hospitalization 02.06.2016 to 03.06.2016 in Sham Nursing Home and Heart Centre was repudiated by the answering opposite parties vide letter dated 29.09.2017. Ms. Shelly Singla wife of complainant was diagnosed with Cholelithiasis and surgical management was required. The complainant is covered under PNB-Oriental Insurance policy since 27.01.2015, therefore the claim is still under the waiting period of 2 years. The treatment is not admissible under the policy. The claim sands repudiated under the clause 4.2 (xiii) of the policy. The claim no.12946418 dated 29.06.2016 for the period of hospitalization 23.06.2016 to 24.06.2016 in SPS Hospital, was repudiated by the answering opposite parties vide letter dated 22.12.2016. As per the discharge summary, the wife of the complainant is admitted for the treatment of gastroenteritis with Hypothyroidism. On verification of the papers it is noted that Hospitalization is less than 24 hours (admitted from 23.06.2016 5.25 pm to 24.06.2016 2.46pm). Hence the claim stands repudiated under the clause 3.5 of the policy. For the claim no.12946345 dated 30.06.2016, for the hospitalization for period 07.05.2016 to 08.05.2016 in Sham Nursing Home and Heart Hospital, it is submitted that the claim was wrongly repudiated. On perusal of claim documents, the wife of complainant was treated for Git on 07.05.2016 at 3 am and discharged on 08.05.2016 at 7 pm. On verification of the documents, it is noted that Hospitalization is more than 24 hours. Therefore, instructions have been issued by the Competent Authority to TPA for reconsideration of the admissibility of the claim and to pay the amount as per terms and conditions of the policy.
8. The only ground for the repudiation of first two claims of the Complainant is that the The Medi Assist Insurance TPA Pvt.Ltd. has repudiated the claim under the policy as per copy of letter Ex.OPs1,2/2 and Ex.OP1,2/4 placed on record by the Opposite Parties itself. However, regarding third claim, the Opposite Parties has stated that the competent authority to TPA issued the instructions for reconsideration of the admissibility of the claim and to pay the amount as per the terms and conditions of the policy. It means to say that all the three claims of the Complainant have been repudiated as per the instructions of the TPA i.e. The Medi Assistant Insruance TPA Private Limited, with which the Complainant has no concern at all. But recently, our own Hon’ble State Commission, Punjab, Chandigarh in First Appeal No.1105 of 2014 decided on 25-04-2017 in case titled as Sukhdev Singh Nagpal Vs. New Karian Pehalwal Cooperataive Agriculture service Society & Others has held that TPAs have no authority to reject the claim- such power lies, exclusively with the Insurance Companies (Para No.25 to 27). The TPA can only process the claim and forward the same to the Insurance Company and the competent authority of the Insurance Company is to decide about the same. The claim of the complainant was illegally and arbitrarily rejected by the TPA, against the instructions of the IRDA. In view of this, the repudiation merely on the basis of report of the TPA is not legal.
9. The second point raised by the Opposite Parties are that the complainant has violated the terms and conditions of the policy in question and as per the terms and conditions of the policy, the complainant is not entitled to the claim as claimed. But the Opposite Party could not produce any evidence to prove that terms and conditions of the policy were ever supplied to the complainant insured, when and through which mode? It has been held by Hon’ble National Commission, New Delhi in case titled as The Oriental Insurance Company Limited Vs. Satpal Singh & Others 2014(2) CLT page 305 that the insured is not bound by the terms and conditions of the insurance policy unless it is proved that policy was supplied to the insured by the insurance company. Onus to prove that terms and conditions of the policy were supplied to the insured lies upon the insurance company. From the perusal of the entire evidence produced on record by the Opposite Party, it is clear that Opposite Party has failed to prove on record that they did supply the terms and conditions of the policy to the complainant insured. As such, these terms and conditions, particularly the exclusion clause of the policy is not binding upon the insured. Reliance in this connection can be had on Modern Insulators Ltd.Vs. Oriental Insurance Company Limited (2000) 2 SCC 734, wherein it is held that “In view of the above settled position of law, we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent can not claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.” Our own Hon’ble State Commission, Punjab, Chandigarh in First Appeal No.871 of 2014 decided on 03.02.2017 in case titled as Veena Mahajan (Widow) and others Vs. Aegon Religare Life Insurance Company Limited in para No.5 has held that
“Counsel for the appellant argued that copy of insurance policy was not supplied to the appellant and hence, the exclusion clause in the contract of the insurance policy is not binding upon him. He further argued that no proof of sending of insurance policy was ever produced by the respondent despite specific contention raised by the complainant that the insurance policy was never received by him. He argued that though there is an averment of the OP that the policy in question was delivered through Blue Dart Courier to the complainant. In order to prove their contention, no affidavit of any employee of Blue Dart was produced who would have made a statement to have the effect that the policy was delivered to the complainant nor any acknowledgement slip for having received the article by the complainant through courier company was produced by the insurance company. He argued that since no policy document was received by the insured and argued that the terms and conditions as alleged to be part of the insurance policy were not binding upon the insured. He argued that policy was issued in the name of deceased Sh.Vijinder Pal Mahajan with his wife Mrs.Veena Mahajan as beneficiary and the same was never refused by the OP and the proper premium for insurance was paid by late complainant. He argued that as per the specific allegations made in the complaint in para No.4, no rebuttal to that contention was specifically there in their written reply in para No.2 and para No.4 in the reply filed by OP in the District Forum. He argued that Hon'ble National Consumer Disputes Redressal Commission, New Delhi in case of "Ashok Sharma Vs. National Insurance Co. Limited", in Revision Petition No. 2708 of 2013 held in para No.8 to the point of non-delivery of terms and conditions of the policy. He also cited Hon'ble Supreme Court's decision given in the matter of "United India Insurance Co. Limited Vs. M.K.J.Corporation" in Appeal (civil) 6075-6076 of 1995 (1996) 6 SCC 428 wherein the Apex court held that a fundamental principle of Insurance Law makes it that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. Just as the insured has a duty to disclose, "similarly, it is the duty of the insurers and their agents to disclose all material facts within their knowledge, since obligation of good faith applies to them equally with the assured and further argued that since the terms and conditions were not supplied even on repeated requests the same cannot be relied upon by the opposite party in order to report to repudiate the genuine claim of the wife of the deceased policy holder.”
- Recently, Hon’ble Supreme Court of India, in case Bharat Watch Company through its partner Vs. National Insurance Company Limited through its Regional Manager, 2019 Lawherald.Org.915 (Civil Appeal No.3912 of 2019) decided on 12.04.2019 has held that when insurance company failed to furnish the terms and conditions of the exclusion and special conditions of the policy holder, then the same were not binding on the policy holder.
- In such a situation, the repudiation made by Opposite Party regarding genuine claim of the complainant appears to have been made without application of mind. It is usual with the insurance company to show all types of green pesters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
12. In view of the aforesaid facts and circumstances of the case, the instant complaint is allowed and the Opposite Parties are, jointly and severally, directed to pay the claim amount of Rs.55,742/- (Rupees fifty five thousands seven hundred and forty two only) to the complainant against his claim alongwith interest @ 9% per annum from the date of filing the complaint i.e. 27.09.2017 till its actual realization. The Opposite Parties are also directed to pay lump sum amount of Rs.10,000/- (Rupees Ten thousands only) for his harassment and litigation expenses. The compliance of this order be made by the Opposite Parties within 45 days from the date of receipt of copy of this order, failing which the Complainant shall be at liberty to get the order enforced through the indulgence of this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
13. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the government has not appointed any of the two Whole Time Members in this Forum since 15.09.2018. Moreover, the President of this Forum is doing additional duty at District Consumer Forum, Fatehgarh Sahib and Administration Duty at District Consumer Forum, Sangrur. There are only two working days in a week when the quorum of this Forum remains complete.
Announced in Open Forum
Dated: 13.06.2019
(Parampal Kaur) (Amrinder Singh Sidhu)
Member President
