BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.259 of 2020
Date of Instt. 02.09.2020
Date of Decision: 25.08.2022
1. Tagore Hospital & Heart Care Centre Pvt. Ltd., Banda Bahadur Nagar, Mahavir Marg, Jalandhar. Through its Chairman cum Managing Director
2. Dr. Ravi Seth, M. S. General & Laparoscopic Surgeon, Tagore Hospital & Heart Care Centre Pvt. Ltd., Banda Bahadur Nagar, Mahavir Marg, Jalandhar.
3. Dr. Vijay Mahajan, M. D. Chairman cum Managing Director, Tagore Hospital & Heart Care Centre Pvt. Ltd., Banda Bahadur Nagar, Mahavir Marg, Jalandhar
..........Complainants
Versus
1. The Oriental Insurance Co. Ltd. Divisional Office, 32, G. T. Road, Jalandhar Through its Senior Divisional Manager.
2. Ramesh Kumar S/o Sh. Lal Chand, 77/1, Green Model Town, Jalandhar.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. R. S. Arora, Adv. Counsel for the Complainant.
Sh. A. K. Arora, Adv. Counsel for OP No.1.
OP No.2 exparte.
Order
Dr. HarveenBhardwaj (President)
1. The instant complaint has been filed by the complainants, wherein it is alleged that the complainants are comprehensively insured at all material times with the OP No.1 under Professional Indemnity Policy for Doctors and Medical Practitioners of The Oriental Insurance Company Limited, who have been denied reimbursement by the OP No.1 after the complainants having discharged their legal liability towards the opposite party no.2 in the year 2017. The OP No.2 Ramesh Kumar had filed a consumer complaint on 01.12.2015 (No.507 of 2015) against the complainants, the OP No.1 Oriental Insurance Company Ltd and Others. The complaint was decided on 21.06.2017 by the Hon’ble Forum. In the order the complainants were directed to pay a compensation of Rs.10,00,000/- to the complainant within a period of 30 days from the receipt of the copy of order failing which, the said amount to be paid with interest @ 9% per annum from the date of filing of the complaint. The complainants were directed to pay, and the OP No.1 insurance company was fixed no liability with the observations that in the complaint of Ramesh Kumar the insured cannot be indemnified because there was no privity of contract between Ramesh Kumar complainant and the insurance company, so accordingly, the insured may directly claim the insurance amount from the insurance company by filing a separate complaint. Pursuant to the above Order allowing the complainants to file separate complaint, the complainants on 18.09.2017 filed complaint CC No. 342 of 2017 for seeking reimbursement from OP No.1 in the background that the complainants had discharged their legal liability, deposited Rs.10 Lakh in the Forum on 28.07.2017 by arranging funds between the hospital and Dr. Ravi Seth each Rs.5 Lakh by their cheques hence they be reimbursed. Before depositing the total sum of Rs.Ten Lakh in the Forum, the complainants had written the OP No.1 on 01.07.2017 that they were comprehensively insured, therefore this amount be deposited by the company. Hearing no response from the company, and when the last date of deposit was approaching close, the complainants once again wrote the OP No.1 on 25.07.2017 to deposit the said amount by 28.07.2017 and also notified that if they did not come forward to deposit, the complainants would deposit the amount and seek reimbursement from the company with costs and interest @ 9% per annum from 28.07.2017. The OP No.1 did not reply even the last letter of 25.07.2017 and the complainants deposited the said amount in Forum. After this, the complainants issued Legal Notice to the OP No.1 on 22.08.2017 alongwith the proofs of the amount having been deposited and withdrawn by Ramesh Kumar and cancelled cheques respecting KYC for transferring the monies direct to their accounts but the OP No.1 made no reply. When the OP No.1 had not replied nor recompensed the complainants, the complainants filed the consumer complaint alongwith the insurance terms and conditions of the OP No.1. On 19.02.2020 the complaint of the complainants supra was dismissed as being premature by the judgment. This order of the Commission was founded on the grounds taken by the OP No.1 in Para No.4 of the preliminary objections of its written reply supported by affidavit dated 06.11.2017 and pressed in oral and written arguments that Till date no written claim for compensation/reimbursement has been raised with claimable cause with the OP No.1 and no formal legal claim was filed with the OP No.1 and that the complaint has been straightway filed as prematurely by the complainants. Believing the affidavit in evidence of Sandeep Thapa, Sr. Divisional Manager on behalf of the OP No.1 that mandatory formalities were not fulfilled and also written claim on formal claim form was not filed and required to be filed in all kind of insurance therefore observed in its order as follows:-
“..admittedly, the instant complaint has been filed by the complainant directly without submitting any insurance claim with the insurance company and thus we are fully agreed with the OP No.1 that the instant claim is premature, therefore, the same is dismissed.”
While dismissing the complaint as premature, the Commission also observed:-
“..It is mandate for every party to follow the procedure accordingly, the complainant has to file the insurance claim alongwith required documents and also to fulfill the formalities whatsoever desired by the insurance company within 30 days from the date of receipt of the copy of the order and the said claim will be settled by the OP No.1 Oriental Insurance Company on either side and thereupon if the complainants will not be satisfied with that settlement, they have again liberty to file fresh complaint.”
To meet the requirements, the following letter was written immediately to the OP No.1 on 28.02.2020 on receipt of the judgment itself on 28.02.2020 i.e. without loss of a single day out of 30 days allowed to the complainant. In writing immediately, the complainants had in fact strived to know from the insurance company as to what were those extraordinary formalities to be completed, the procedure to be followed to file insurance claim as per the formal legal form of the company and not followed by the complainants:-
“We don't have your Form and not aware of the manner and means, the formalities and the company's procedure to be followed for filing the insurance claim; the procedure and the requirements to be completed are known and available you to apprise and furnish us the same i.e. , send the Form , and tell us the steps to be taken by us in submitting the Professional Mediclaim; the Order of the Court fixed the period. Our request is simple and can be met on the receipt of it, therefore, may kindly be met by the return of post. Later, may please send your Development Officer to help us in properly filling the technical columns, for which we shall remain grateful to you. Thanking you'.
It is submitted that if there were any pending requirements, the first thing the opposite party no.1 could do was that the opposite party no.1 ought to have written back in reply to the complainants that such and such are the requirements to be completed and such documents required to be furnished and the Claim to be submitted on such and such Claim Form of the company to make the claim in the formal legal form, - but the letter was not replied at all. It is alleged that when the complainants were acting under the Order dated 19.02.2020 of the Hon'ble Forum, the opposite party no.1 was under a duty to have informed in reply the complainants about the requirements to be completed, documents to be furnished and the formalities to be carried out. It is alleged that when there was no reply, no demand of any document or fulfillment of any formality or completion of any formal form, accordingly the formalities were known to the party as already fulfilled, all documents furnished and the claim on the OP No.1 in complete order. It is alleged that since no different formalities and requirements sought to be completed by the OP No.1, the statement in the written reply supported by affidavit dated 06.11.2017 on behalf of the OP No.1 that “Till date no written claim for compensation/reimbursement has been raised with claimable cause with the OP No.1 and no formal legal claim was filed was untrue and misleading. At the time of pleading and making the above statement on oath, the OP No.1 intended and well knew or ought to have known that the Forum would rely thereon and would be induced thereby to pass the order in its favour. The OP No.1 succeeded on basis of its misstatement as is clear from the Court saying “we are fully agreed with the OP No.1”. The OP committed fraud on court. The claim of the complainants for reimbursement has been repudiated by the OP No.1 by the letter dated 26.06.2020, which reads as under:-
“After scrutinized the file and legal opinion of advocate we observed that the claim falls under the clause which is as under:
Clause No.7 (2) (ii) and 7 (2) (x). In the above ground the competent authority has repudiated the claim.”
The claim of the complainant is repudiated arbitrarily on flimsy, incomprehensible grounds and is made in total defiance of logic and sense and as such, the present complaint filed with the prayer that the complaint of the complainant may kindly be accepted and OP No.1 be directed to pay Rs.5,00,000/- each with interest @ 9% per annum from 28.07.2017 till final realization or in the alternative Rs.10,00,000/- with the same interest to either of the complainants No.1 & 2. Further, OPs be directed to pay Rs.50,000/- as compensation for causing mental tension and harassment to the complainant.
2. Notice of the complaint was given to the OPs, but despite service OP No.2 failed to appear and ultimately OP No.2 was proceeded against exparte, whereas OP No.1 appeared through its counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the present complaint filed by the complainants is on the basis of earlier complaint titled as Ramesh Kumar V/s Tagore Hospital & Heart Care Centre Pvt. Ltd. & Others. The complaint titled as Ramesh Kumar Vs. Tagore Hospital & Heart Care Centre Pvt. Ltd. & Others, complaint no.507 of 2015 decided by District Consumer Disputes Redressal Forum. Jalandhar vide Order dated 21.06.2017 against the complainants/opposite parties, directing them to make payment of Rs.10 Lac to the complainant Ramesh Kumar qua the gross negligence of the complainants/opposite parties in their profession before conducting the operation as well as after conducting the operation of wife of the complainant. As per facts detailed in the complaint titled as Ramesh Kumar Versus Tagore Hospital & Heart Care Centre & Others, that unfortunately in the month of March 2014, the wife of the complainant suffered with severe abdominal pain and since she was already under treatment of Cardiac Problem with the opposite parties hence the complainant approached the opposite parties for her checkup. Due to pain in abdomen, the complainant's wife was admitted in Tagore hospital from 23.03.2014 to 25.03.2014 and on the advice of Dr. Ravi Seth of Tagore Hospital & Heart Care Centre Pvt. Ltd., she underwent for an ultrasound on 24.03.2014 and it was reported that she had problem of CHOLECYSTITIS with CHOLELITHIASIS with SLUDGE and Fatty changes of Liver and abdominal LYMPHADENOPATHY and after seeing the ultrasound report, said Dr. Ravi Seth told the complainant that his wife was suffering from stones and infection in the gallbladder generally known as CHOLECYSTITIS with CHOLELITHIASIS with SLUDGE and that she would require surgery for the same. Whereas the factum of presence of LYMPHADENOPATHY in the report dated 24.03.2014 of radiologist was kept concealed from the complainant and his wife though it was specifically mentioned in the said report that the radiologist has seen presence of LYMPHADENOPATHY in her ultrasound. As per medical terms the word LYMPHADENOPATHY reference to enlargement of lymph nodes (Glands) in a body of patient. Normally in the body of patient, these glands function to limit the spread of any infection of tumors from the area affected by it to the whole body of the patient. In a way, these lymph nodes act like protective barriers in the human body and the enlargement of these lymph nodes in the body of the patient signifies that the patient is having some major infection of tumor in the affected area , thus as per report of ultrasound dated 24.03.2014 it was specifically reported that the wife of the complainant was suffering from LYMPHADENOPATHY, which clearly means that the wife of the complainant could either have major infection or could have tumor in the gallbladder as she already had infection of the gallbladder but the presence of tumor (Cancer) of gallbladder has been completely ignored by the doctor i.e. Dr. Ravi Seth. It has been further alleged that as per medical guidelines that maximum area of Northern India especially Punjab has the second Highest incidence of Cancer of Gallbladder in the whole world and as such any patient presenting with LYMPHADENOPATHY of the upper abdomen along with gallbladder stones needs to be evaluated with tests like FNAC in which some tissue is taken from the Lymphnodes then seen under microscope to detect any tumor. This evaluation becomes all the more important in Punjab in view of high incidence of cancer of gallbladder in our state. It has been further alleged in the complaint that as per advice of Dr. Ravi Seth, the complainant and his wife agreed for operation of gallbladder, since they were laymen and have no knowledge of the medical terms mentioned in the report dated 24.03.2014. During the waiting period of surgery the complainant continued her follow up with Dr. Ravi Seth and fully complied with his advice. During 23.03.2014 till her surgery on 27.05.2014. The wife of the complainant underwent three ultrasounds at different diagnostic centre at Jalandhar and as per their report the wife of the complainant was suffering from CHOLECYSTITIS with CHOLELITHIASIS and LYMPHADENOPATHY. The complainant discussed these reports and his suspicion with Dr. Ravi Seth, but he only assured that they should not worry about the same and further told that usually the Scan Center make the patients afraid with suspicion, since they are not so qualified and experts to their opinion. Dr. Ravi Seth suggested that the complainant should not give much importance to them. Taking the advice of Dr. Ravi Seth, the wife of complainant underwent surgery on 27.05.2014. It has been further alleged that even after the surgery, the pain of the wife of complainant continued but the opposite party has been giving her pain killers and there were no improvement in the condition of the wife of the complainant. It has been alleged that Dr. Ravi Seth of Tagore Hospital & Heart Care Centre Pvt. Ltd. in spite of having knowledge has operated the wife of the complainant without any adequate investigation to rule out the possibility of cancer in Gall bladder. Further another negligence committed by OPs was that the complainant was not handed over with any tissue (gallbladder) or lymph nodes of the patient which were removed by the OPS during her surgery and has been destroyed without conducting any test on it. It has been alleged that the wife of complainant has been taken the treatment from the said hospital and he has got conducted CT Scan, PET Scan and was diagnosed with gallbladder Cancer and with all her suffering and throughout pains at the hands of Dr. Ravi Seth of Tagore Hospital & Heart Care Centre Pvt. Ltd. It has been further alleged in the said complaint, that the 1st Ultrasound Scan was conducted on 24.03.2014, which was not correctly disclosed by Dr. Ravi Seth to the complainant and the complainant was not handed over with any tissue (gallbladder) or lymph nodes of the patient which were removed by the OPs during her surgery and has been destroyed without conducting any test on it and which has been alleged to the deficiency in service on the part of Dr. Ravi Seth for which Tagore Hospital & Heart Care Centre Pvt. Ltd. and Dr. Vijay Mahajan being in-charge and responsible persons for all acts & conducts of the hospital and its employees have been held to be responsible along with Dr. Ravi Seth. Ultrasound Scan was conducted on 24.03.2014, which was not correctly disclosed by Dr. Ravi Seth. As per clause no.2 of PROFEESIONAL INDEMINITY POLICY FOR DOCTORS AND MEDICAL PRACTIONERS the cover of insurance has been given to the hospital and the doctors for the Errors, Omissions or Negligence in professional service rendered. It has been specifically mentioned in the Policy Schedule that the Insurance under the policy is subject to warranties & clauses. Thus the Policy schedule & warranties & clauses is a complete binding contract between the complainants and the answering opposite party. As per exclusion clause no.7 (2) (ii) of PROFEESIONAL INDEMINITY POLICY FOR DOCTORS AND MEDICAL PRACTIONERS, this policy does not cover liability arising out of deliberate, willful or intentional non-compliance of any statutory provision. As per clause no.7 (2) (x) of PROFEESIONAL INDEMINITY POLICY FOR DOCTORS AND MEDICAL PRACTIONERS, the said policy does not cover liability qua the deliberate conscious or intentional disregard of the insured's technical or administrative management of the need to take all reasonable steps to prevent claims. In the present case Dr. Ravi Seth deliberately ignored the ultrasound reports and has not taken reasonable steps to prevent the claim and has intentionally and consciously disregarded the ultrasound report of the wife of the complainant which clearly diagnose her a case of LYMPHADENOPATHY and has not given the extracted part of the gallbladder to the complainant for biopsy and has been destroyed, which is mandatory to be got tested from pathologist. Thus the case of the complainants fall under exclusion clauses 7 (2) (ii) and 7 (2) (x) of the policy of insurance and as such has been rightly repudiated. On merits, the factum with regard to insured the complainants by the OP No.1 under Professional Indemnity Policy for Doctors & Medical Practitioners 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.
3. 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.
4. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
5. 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 counsel for complainant and counsel for the OP No.1 very minutely.
6. The present complaint has been filed by the complainant, challenging the repudiation of the claim by the OPs, the same being wrong and illegal. The Ld. Counsel for the complainant has submitted that earlier in a complaint filed by Ramesh Kumar, the complainants were ordered to pay compensation of Rs.10,00,000/- within a period of 30 days, failing which the said amount was to be paid with interst @ 9% per annum. The complainants paid the entire amount to Ramesh Kumar in compliance with the order of the Ld. District Commission. The insurance company was to be made a party to indemnify the insured i.e. the complainants, but the Ld. Commission held that there is no liability of the insurance company to indemnify the complainant in that case as there is no privity of contract between the complainant Ramesh Kumar and insurance company. The complainants were allowed to claim the insurance amount from the insurance company by filing a separate complaint. He has submitted that since the complainants were insured with the OPs and as per the observations of the Commission, the claim was submitted before the OPs, but the OPs have wrongly repudiated the claim on the ground that ‘as per the legal opinion of Advocate, we observed that the claim falls under the clause which is as under: Clause No.7 (2) (ii) and 7 (2) (x)’. On this ground, the claim of the complainant was repudiated. He has referred the repudiation of the claim letter Ex.C-10. He has submitted that there are no Clauses 7 (2) (ii) and 7 (2) (x) in the Ex.C-6. Therefore the repudiating the claim on the basis of these clauses is wrong on the face of it. He has further stated that the detailed grounds of repudiation have not been mentioned by the OPs. The OPs have simply denied the averments made by the complainant in his complaint in Para No.15. The OPs have intentionally ignored the letter Ex.C-3 for making payment on behalf of the insured complainants. He has further submitted that insurance policy certificate of insurance has been proved by the complainant and the complainant No.1 and complainant No.2 are entitled to Rs.5,00,000/- each alongwith interest. He has further sought the compensation for the harassment. Request has been made to allow the complaint.
7. On the other hand, the Ld. Counsel for the OPs have argued that the present complaint has been filed by the complainant on the basis of earlier complaint, titled “Ramesh Kumar Vs. Tagore Hospital & Health Care Centre Pvt. Ltd. & Ors.”, which was allowed and the complainants were directed to make the payment of Rs.10,00,000/- to the complainant/Ramesh Kumar qua the gross negligence of the present complainants in their profession before conducting the operation as well as after conducting the operation of wife of the complainant. He has further submitted that the claim of the complainant has rightly been repudiated as per the exclusions clauses i.e. Clause 7 (2) (ii) and 7 (2) (x) of standard policy clauses Ex.OP1/1. He has admitted the issuance of policy of insurance Ex.OP1/2 to the complainant No.1 Ex.OP1/3 to Dr. Ravi Seth and Ex.OP1/4 to Dr. Vijay Mahajan. He has referred the standard policy clauses for profession indemnity policy for doctors and medical practitioner Ex.OP1/1. He has further submitted that after receiving the claim of the complainant Ex.OP1/5, the legal opinion was sought, which is ExOP1/6 and as per the legal opinion applying the exclusion clauses, the claim of the complainant was repudiated by the OP No.3. He has further submitted that as per clause-2 of personal indemnity policy, the policy schedule, terms and conditions and warranties and clauses is a binding contract between the complainant and the OPs. As per this clause, which is exclusion clause, the policy does not cover liability arising out of deliberate willful or intentional, non compliance of any statutory provision nor does it cover the deliberate conscious or intentional disregard of the insured’s technical or administrative management of the need to take all reasonable steps to prevent claims. He has further submitted that in the present case, Dr. Ravi Seth deliberately ignored the Ultra Sounds report and has not taken the steps to prevent the claim and has intentionally disregarded the ultra sound report of the wife of the complainant. Therefore, he is very much covered under the exclusions clauses i.e. Clause 7 (2) (ii) and 7 (2) (x). He has referred the clause-9 (1) in Ex.C-6 and submitted that the exclusion clauses referred in Ex.C-17 in the previous complaint are the same which have been in Ex.C-6. He has further referred the Clauses 9 (c) and (o) in Ex.C-6 and submitted that these are same clauses as clauses 7 (2) (x) of Ex.OP-1. He has further submitted that the claim of the complainant has rightly been repudiated by the OP No.1 as the same is not payable as per the terms and conditions of the policies of insurance. Therefore the complainant has no locus-standi and any case to file the present complaint, therefore the complaint be dismissed.
8. It is not disputed that the complainants were insured with the OP. Ex.OP-1/2 , Ex.OP-1/3 and Ex.OP1/4 are the insurance policies of Tagore Hospital and Heart Care Center, Dr. Ravi Seth and Dr. Vijay Mahajan, respectively. These insurance policies were valid from 2014 to 2015. Ex.OP-1/2 was issued on 28.03.2014. Ex.OP1/3 was from 01.02.2014 and Ex.OP-1/4 was 01.10.2013. As per the order and facts of the earlier case titled Ramesh Kumar Vs. Tagore Hospital and Heart Care Centre, the incident was of March, 2014, when the wife of Ramesh Kumar was admitted in the hospital and she remained there from 23.03.2014 to 25.03.2014. Meaning thereby that during that period, the insurance policy of the complainants were existing. As per the order passed by the Ld. District Consumer Disputes Redressal Commission, the Hon’ble Commission has observed that the OPs No.1 to 3 i.e. the present complainants No.1 to 3 have committed a gross negligence in their profession before conducting operation as well as after conducting the operation and as such, they were held liable to indemnify the complainant i.e. Ramesh Kumar. The present complainants were directed to pay compensation of Rs.10,00,000/-, which were paid by the doctors i.e. the complainants. OP No.5, the insurance company was made party but the Commission has observed that OP No.5 i.e. Oriental Insurance Company cannot be compelled to pay any amount on behalf of OPs No.1 to 3 i.e. the present complainants because OP No.5 has its independent rights to contest his case, if any direct relief is claimed from him and there is no privity of contract between complainant Ramesh Kumar and insurance company. With these observations, the Commission had granted the permission to the present complainants to claim directly the amount from OP No.5 i.e. the present OPs by filing a separate complaint. This order was pronounced on 21.06.2017. Thereafter, the present complainant filed a complaint without submitting the claim to the OPs and that complaint was dismissed being a pre-mature. These are admitted facts and this was dismissed on 19.02.2020. Thereafter, the letter was written to the OPs, which was considered as a claim and the claim of the complainant was repudiated. The correspondence was there between the complainants and the OPs. The contention of the complainant is that there is no such clause in Ex.C-6 on the basis of which the OPs have repudiated their claim, whereas the OPs have relied upon Ex.OP-1/1 and submitted that these are standard policy clauses and is applicable to the complainants. Clause 7 (2) (ii) and 7 (2) (x) are the same as clause-9 in Ex.C-6. All other facts have been admitted, notice issued to the OPs has also been admitted. Ex.C-6, which is indemnity policy identity for doctors and medical practitioner shows that clause-1 of this policy, which was supplied to the complainant and relied upon by the complainant, shows that ‘subject to the terms, exceptions and conditions contained therein or endorsed here on, the company will indemnify the insured against their legal liability to pay compensation including defence, costs, fees and expenses anywhere in India in accordance with Indian Law’. As per Ex.C-10, the claim of the complainant has been repudiated under Clause 7 (2) (ii) and 7 (2) (x). Perusal of Ex.C-6 shows that there is no exclusion clause as Clause 7 (2) (ii) and 7 (2) (x) as alleged by the complainant and as mentioned in Ex.C-10. However, the OPs have referred that the exclusion clause mentioned in Clause-9 (c) (o) are the same as the Clause 7 (2) (ii) and 7 (2) (x). This repudiation was made on the basis of the legal opinion of the advocate. Perusal of the legal opinion of the advocate Ex.OP-1/6 shows that the advocate opined, while repudiating the claim under Clause 7 (2) (ii) and 7 (2) (x) of the policy, it has not been mentioned anywhere that the repudiation has been made under clause-7 of the standard policy clause rather it has been mentioned that as per Clause-2 of the policy of insurance, the cover of insurance has been given to the hospitals and the doctors for the errors, omissions or negligence in professional service rendered. It has further been opined that as per exclusion clause, Clause-7 (2) (ii), this policy does not cover the liability. This shows that there is special reference of the exclusion clause No.7 of the policy of insurance and there is no reference of any fact that the clauses are as per standard policy. Even in Ex.C-10 there is no reference of the fact that the clause No.7 is of the standard policy and not the policy cover issued to the complainant. As per the policy covered issued to the complainant Ex.C-6, there is no exclusion clause as Clause-7. It has been held by the Hon’ble Supreme Court in Appeal No.2059 of 2015, titled as “Saurashtra Chemicals Ltd. Vs. National Insurance Co. Ltd.”, that it is settled position that an insurance company cannot travel beyond the grounds mentioned in the letter of repudiation. If the insurer has not taken ‘delay in intimation’ as a specific ground in letter of repudiation, they cannot do so at the stage of hearing of the consumer complaint. In the present case also the ground taken by the OPs for repudiation of the claim is that the case of the complainant is not covered under Clause 7 (2) (ii) and 7 (2) (x) and there is no reference of the fact that they are relying upon the standard policy clauses, which was never supplied to the complainant. The OP has not proved that this exclusion clauses mentioned in the standard policy was ever supplied to the complainant and the contention of the OP that Clause-9 (c) (o) of the policy cover in Ex.C-6 is the same as the clause -7 of standard policy. As per the law laid down by the Hon’ble Supreme Court, the insurance company cannot travel beyond the grounds taken by them, therefore they cannot say at this stage that the exclusion clause-9 of the policy cover issued to the complainant and the clause-7 of the standard policy are the same. No documentary evidence has been led by the OPs to prove that the provisions of exclusion clause-7 of standard policy were ever supplied to the complainant or the same were in the knowledge of the complainant. Had the claim been repudiated under Clause-9 of the policy issued to the complainant, the matter would have been different, but as per the law laid down by the Hon’ble Supreme Court, they cannot go beyond the ground taken by the insurance company. It has been held by the Hon’ble Punjab & Haryana High Court, in Civil Revision No.2318 of 2008, decided on 22.04.2008, titled as “New India Assurance Company Limited Vs. Smt. Usha Yadav & Others”, 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’. So, the present complaint has been filed as per the observations made by the Hon’ble Consumer Commission vide order dated 19.02.2020.
9. In view of our above discussion, it is held that the repudiation of the claim is wrong and illegal and the same is ordered to be set-aside. As per Ex.C-4, two cheques were given by the OPs of Rs.5,00,000/- each, one by Tagore Hospital and one cheque was by Ravi Seth, who are the complainant No.1 and complainant No.2 in the present complaint. Both the complainants are insured with the OP No.1, vide Ex.OP1/2 and Ex.OP/3. Therefore, they are entitled to the relief of Rs.5,00,000/- each with interest @ 6% per anumm from 28.07.2017 till realization. Further, OPs are directed to pay a compensation of Rs.15,000/- to the complainant for causing mental tension and harassment to the complainant and Rs.5000/- as litigation expenses. The entire compliance of the order be made within 45 days from receipt of copy of this order. This complaint could not be decided within stipulated time frame due to rush of work.
10. 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
25.08.2022 Member Member President
