Order by:

Sh.Amrinder Singh Sidhu, President

1.       The  complainant  has filed the instant complaint under section 35 of Consumer Protection Act, 2019 on the allegations that he has been purchasing the Family Medicare Policy from the Opposite Parties from the year 2008, in which the complainant alongwith his spouse (wife) namely Smt.Shikha and two sons namely Manav and Divanshu (s) were fully insured firstly for the sum insured of Rs.2.50  lacs each  and thereafter, as per the advice of the officials of the Opposite Parties, the said policy for the period w.e.f. 05.08.2016 to 04.08.2017, 05.08.2017 to 04.08.2018, 05.08.2018 To 05.08.2019 and 05.08.2019 to 05.08.2020 have been converted  with Super Top Up Medicare Policy, and in this regard,  the complainant alongwith his wife and sons named above, were individually insured upto the extent of Rs.10 lacs each. The detail of last four policies is given below:-

Further alleges that the aforesaid detail of the policies shows that the complainant has been purchasing the aforesaid Family Medicare Policy from the last about 13 years i.e. from 2008, till date continuously against payment of  requisite premiums and not only this, earlier to 2016 the sum insured was Rs.2.50 lakhs but thereafter, as per the advice and insistence of the officials of the Opposite Parties, the Complainant converted the said policy  under Super top Up Medicare Policy with higher premiums and in this Super Top Up Medicare Policy, the Complainant and his family members i.e. his wife and two sons were insured upto the extent of Rs.10 lakhs each, as fully detailed in the policy cover note itself. This policy was cashless policy and in case of any medical treatment, the Complainant and his family members were fully insured for cashless payment. Further alleges that son of the Complainant namely minor Manav (insured) was about one year old when the Complainant started purchasing the said policy about 13 years ago.  At the first time of purchasing the policy, the Complainant and his family members were fully medically got checked up by the  Opposite Parties from their own doctors with their own expenses and after full satisfaction, the Opposite Parties issued the policy cover note i.e. family medical policy and thereafter without any break, the Complainant has been purchasing the policy in question continuously by making the hefty amount of premium  since 2008 till date, which is obvious for the complainant to claim for sum assured in case of reimbursement of medical expenses incurred by the complainant as and when required. During the policy period i.e. 05.08.2019 to 05.08.2020 (copy of policy is placed on record as Annex.C5), minor Manav (insured) son of the Complainant fell ill and he was diagnosed for Progressive Familial Intraheptic Cholestasis (PFIC) with Chronic Liver Disease and was suggested for Operation Living Related Lever Transplantation and hence, Manav (insured) was got admitted in Max Super Specialty, West Block Saket Hospital, New Delhi on 03.09.2019  and in this regard, the Opposite Parties were immediately informed and accordingly insured Manav was operated for Living Related Lever Transplantation on 06.09.2019 in that hospital and was discharged on 27.09.2019. Since the aforementioned policy was Cashless Policy, so at the time of discharge of insured minor Manav, the Complainant requested the Opposite Parties to make the medical bill of the treating hospital, but the officials of the Opposite Parties told the Complainant that after submitting the claim, the medical bill could be reimbursed and hence, the Complainant was compelled to make the payment of Rs.16 lakhs  to the treating hospital. Not only this, the Complainant also purchased the policy for further period i.e. for the period w.e.f. 26.05.2020 to 25.05.2021, but however, if there was any ill will and malafide  in the mind of the Complainant regarding any pre-existing disease, then why he purchases the said policy and hence, there is no concealment of the facts regarding the pre-existing disease of the insured. Copy of the said policy is placed on record Annex.  After    discharge from the hospital, the Complainant lodged the claim for the reimbursement of the medical bill with the Opposite Parties, but the Opposite Parties did not bother to the request of the Complainant and not only this, the Complainant also served legal notice upon the Opposite Parties through his advocate for the reimbursement of the medical bill. However  initially, the Opposite Parties lingered on the matter on one pretext or the other and at last vide repudiation letter dated 15.12.2020,  the Opposite Parties have repudiated the rightful and lawful claim of the complainant on the false and frivolous ground of Pre-existing condition/ disease.That it is pertinent to mention over here that since the first purchase of the policy i.e. from 2008 till date, the complainant spent hefty amount to the Opposite Parties on account of premium, and till date, not even a single penny, the Complainant has received from the Opposite Parties.  Since the complainant has been regularly obtaining the health insurance cover w.e.f. 2008 till date, which is obvious for the complainant to claim for sum assured in case of reimbursement of medical expenses incurred by the complainant because since 2008, a period  of more than 12 years  has already elapsed and the complainant was competent to claim the sum assured vide last insurance policy for the year 2019.2020, wherein the insured sum was to the tune of Rs.10 lacs  under he Super Top Up Medicare Policy. There is no dispute inter se parties regarding the expenses incurred by the complainant on the treatment and now the Complainant has come to know that the Opposite Parties have made the payment of Rs.1,40,000/- out of the total claim of Rs.16 lakhs directly in the account of the Complainant and withheld the remaining claim of the Complainant. The complainant approached the Opposite Parties time and again for the reimbursement of his  genuine remaining medical claim, but  the Opposite Parties  flatly refused to reimburse the total claim of the complainant, as such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.

a)       The Opposite Parties may be directed to reimburse the remaining medical claim of the complainant amounting to Rs. 8.60 lakhs (as per the sum insured)  as per final bill alongwith future interest  @ 12 % per annum from the date of payment to the respective hospitals till its actual realization.

 b)     The amount of Rs.7,00,000/- be allowed to be paid by the opposite parties on account of compensation due to mental tension and harassment caused by the complainant.

c)       The cost of complaint amounting to Rs.50,000/- may please be allowed.

d)      And any other relief to which this Hon’ble Consumer Commission, Moga may deem fit be granted in the interest of justice and equity.       

2.       Opposite Parties appeared through counsel and contested the complaint by filing  the written version taking preliminary objections therein inter alia that the complaint of the complainant is liable to be dismissed. It is submitted that the claim of the complainant is non payable under clause 4.1 of the insurance policy.  The claim of the  complainant has been rightly repudiated as ‘Non Claim’ vide letter dated 15.12.2020 on the ground that claim reported for progressive familial intrahepatic cholestasis (PFIC)  with chronic liver disease, liver transplantation procedure done. H/O disease since 1^st year age. Disease is pre- existing as this case falls under the pre existing and 4^th years running policy, hence the claim is not payable as per the clause 4.1 of the policy. Therefore, the claim was repudiated on the recommendation of Raksha TPA, letter dated 04.03.2020. On merits, the Opposite Parties took up almost the same and similar please as taken up by them in the preliminary objections. Hence, it is prayed that the   complaint may be dismissed with costs.    

3.       In order to  prove  his  case, the complainant has tendered into evidence his affidavit Ex.C1 alongwith copies of documents  Ex.C2 to Ex.C12 and  closed the evidence on behalf of the complainant.

4.       On the other hand,  to rebut the evidence of the complainant,  Opposite Parties also tendered into evidence the affidavit of Sh.R.N.Bansal, Sr.Divisional Manager Ex.OP1 alongwith copies of documents Ex.OPs 2 to Ex.OPs17 and closed the evidence.

5.       We have heard the ld.counsel for the parties and also  gone through the documents placed  on record.

6.       During the course of arguments, ld.counsel for the Complainant as well as ld.counsel for Opposite Parties   have mainly reiterated the facts as narrated in the complaint as well as in the written statements respectively. We have perused the rival contentions of  the parties and also gone through the record on file.

7.       The main contention of the complainant is that the written version  filed on behalf of the Opposite Party  has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. Perusal of the contention of the ld.counsel for the complainant   shows  that  the written version  filed on behalf of the Opposite Party  has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party  is limited Company and written version has been filed on the basis of special power of attorney given  to ld.counsel for the Opposite Party. In this regard,  Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment,  has held that

“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”

Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the

“bear authority is not recognized under law and ultimately, it was held that the plaint was not instituted by an authorized person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”

In this regard, Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by  an unauthorized person has no legal effect.

8.       For the sake of arguments, if the written reply filed by Opposite Party is presumed to be correct, the next  plea  raised by the Opposite Parties  is that  as per the terms and conditions of the policy, the  claim of the complainant is not  payable  under clause 4.1 of the insurance policy.  But the Opposite Parties No-Insurance Company 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.”

9.       We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. The main contention of the ld.counsel for the Opposite Parties is that immediately on receipt of the claim, it was duly registered and entertained and thereafter, as per the recommendation of Raksha TPA, letter dated 04.03.2020, the claim is not payable as per the clause 4.1 of the policy. 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 Cooperative 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.  

10.     Moreover, it is not the denial of the Opposite Parties that the  complainant  has been purchasing the Family Medicare Policy from the Opposite Parties from the year 2008, in which the complainant alongwith his spouse (wife) namely Smt.Shikha and two sons namely Manav and Divanshu (s) were fully insured firstly for the sum insured of Rs.2.50  lacs each  and thereafter, as per the advice of the officials of the Opposite Parties, the said policy for the period w.e.f. 05.08.2016 to 04.08.2017, 05.08.2017 to 04.08.2018, 05.08.2018 To 05.08.2019 and 05.08.2019 to 05.08.2020 have been converted  with Super Top Up Medicare Policy, and in this regard,  the complainant alongwith his wife and sons named above, were individually insured upto the extent of Rs.10 lacs each. The detail of last four policies is given below:-

The aforesaid detail of the policies shows that the complainant has been purchasing the aforesaid Family Medicare Policy from the last about 13 years i.e. from 2008, till date continuously against payment of  requisite premiums, but now the Opposite Parties has made a very petty amount of Rs.1,40,000/- out of the total claim of the  complainant directly in the account of the complainant through NEFT without explaining any reason for retaining the balance amount. However, the main grouse of the Opposite Parties for the repudiation of the claim of the Opposite Parties is that   claim reported for progressive familial intrahepatic cholestasis (PFIC)  with chronic liver disease, liver transplantation procedure done. H/O disease since 1^st year age. Disease is pre- existing as this case falls under the pre existing and 4^th years running policy, hence the claim is not payable as per the clause 4.1 of the policy. But as discussed above, the complainant has been purchasing the  regularly policies from the Opposite Parties since the year 2008 and not even a single penny has ever been got reimbursed against the payment of hefty amount paid by the complainant on account of premiums.

11.     In such a situation the repudiation made by the Opposite Party-Insurance Company regarding remaining genuine claim of the complainant have been made without application of mind. It is usual with the insurance company to show all types of green pasters 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 seams 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.

12.     In view of the above discussion, we hold that the Opposite Party-Insurance Company have  wrongly and illegally rejected the remaining claim of the complainant.

13.     Now come to the quantum of compensation. Due to deficiency in service on the part of the Opposite Parties, the complainant has prayed for an amount of Rs.7 lakh be allowed to be paid by the opposite parties on account of compensation due to mental tension and harassment caused by the complainant besides the costs of complaint amounting to Rs.50,000/-, but we are of the view that the claim for compensation to the tune of Rs.7 lakhs appears to be exorbitant and excessive. The rationale behind grant of compensation has been to compensate a party of the loss occasioned by it. It is none of the intention of the legislature while legislating the Consumer Protection Act to enrich a particular party at the cost of the other. The compensation has to be awarded in commensuration with the loss occasioned to the complainant. In our considered view, ends of justice would  be fully met if the complainant is awarded  the remaining insured amount alongwith interest.

14.     In view of the aforesaid facts and circumstances of the case,  we partly allow the complaint of the Complainant and direct Opposite Parties-Insurance Company to reimburse the remaining medical bills of the complainant  of Rs.8,60,000/- (Rupees eight lakh sixty thousands only) to the complainant alongwith interest @ 8% per annum from the date of filing of the present complaint i.e. 05.02.2021 till its actual  realization.    The compliance of this order be made by the Opposite Parties-Insurance Company   within 60 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 District Consumer Commission. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Commission.