Sh.Amrinder Singh Sidhu, President

1.       The complainant has filed the instant complaint under  section 12 of the Consumer Protection Act, 1986 (as amended upto date) on the allegations that  he has been purchasing the Family Medicare Policy from the Opposite Parties from 29.05.2010, in which the complainant alongwith his spouse (wife) and daughter (s) were fully insured firstly for the sum insured of Rs.6 lacs and in the last policy i.e. policy period 30.05.2017 to 29.5.2018 the complainant alongwith his wife and daughter were individually insured upto the extent of Rs.5 lacs each. The detail of last four policies are given below:-

The   Complainant alleges that  the aforesaid detail of the policies shows that the complainant has been purchasing the aforesaid Family Medicare Policy from the last about 8 years i.e. from 29.05.2010, till date continuously against payment of  requisite premiums, as the Opposite Parties itself mentioned under the head ‘Inception Date’ on each policy that the complainant has been purchasing the policy in question from 29.5.2010 and hence, the complainant is consumer of the Opposite Parties as required under the Act. But alongwith these cover notes, the Opposite Parties never issued any terms and conditions of the policy documents to the complainant or to any other beneficiaries of the policy in question. The Complainant further alleges that unfortunately, during the  policy period  i.e. 30.5.2017 to 29.5.2018, the complainant suddenly fell ill and he became unconscious and due to emergency case, he brought to Dayanand Medical College & Hospital, Ludhiana, where he remained admitted in Dayanand Medical College & Hospital, Ludhiana for the period from 28.08.2017 to 02.09.2017 under the treatment of Dr.Anil Kumar Kashyap, where the treating doctor diagnosed the complainant with following clinical findings:-Pt. Presented-Cough gradual qurit contrinous, productive a/w chest pain left size. Alw fever-interimlient, 101 degree F a/w chills A/w medicotions, Blood in sputum….., the detail regarding the disease and treatment is fully mentioned in the discharge summary (s) of the complainant, the copies of which are Ex.C7 to Ex.C10 on the record. The treating hospital charged Rs.67, 560.59 paisa from the complainant on account of hospital charges and medicines. After discharge from the hospital, the complainant submitted the mediclaim bills with the Opposite Parties for the reimbursement of the same,  but initially, the Opposite Parties lingered on the matter on one pretext or the other and at last vide repudiation letter dated 28.2.2018 (Ex.C6) have repudiated the rightful and lawful claim of the complainant on the false and frivolous ground stating that “While going through the papers, it is observed that the patient is a known case of type 2 diabetes with hepatitis and admitted for ATT. ATT can be given on opd basis and falls under exclusion of the policy. Hence the claim is not admissible under clause 2.1 (b) of the policy.” But at the time of issuing the policy in question as mentioned above, alongwith this cover note, the Opposite Parties never issued any terms and conditions of the policy documents. As such, the alleged  terms and conditions, particularly the exclusion clause of the policy in question is not binding upon the insured.  It is further averred that the complainant has been regularly obtaining the health insurance cover w.e.f. 2010 till date, which is obvious for the complainant to claim for sum assured in case of reimbursement of medical expenses incurred by him because since 2010, a period  of 8 years  has already elapsed and the complainant was competent to claim the sum assured vide latest insurance policy for the year 2017-2018, wherein the insured sum was to the tune of Rs.5 lacs each to the policy holders. There is no dispute inter se parties regarding the expenses incurred by the complainant on the treatment for which the complainant has also produced on record, the requisite copies of the bill issued by  the treating  Hospital, which is a meager amount of Rs.67,560.59 paisa, whereas admittedly more than the claimed amount, the complainant has already paid to the Opposite Parties in the shape of premium. Furthermore as alleged by the Opposite Parties in its repudiation letter,  if, the treatment given to the complainant by the treating doctor of Dayanand Medical College & Hospital, Ludhiana, could be given on OPD basis, then what was the need for such a reputed hospital to keep the complainant as Indoor Patient, which was a emergency case as opined by the treating doctor of Dayanand Medical College & Hospital, Ludhiana in its medical record, and what was the fun for the treating doctor of Dayanand Medical College & Hospital, Ludhiana  to keep the complainant as ‘Indoor Patient’ for about 6 days, where the complainant spent more than Rs.70,000/- on his treatment and in view of this, there is deficiency in service on the part of the Opposite Parties and they have illegally repudiated the genuine and legal claim of the complainant taking the false and frivolous ground.   The Complainant further alleged that  the complainant approached the Opposite Parties time and again for the reimbursement of his  genuine medical claim, but  the Opposite Parties  flatly refused to reimburse the 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 relief.

a)       The Opposite Parties may be directed to reimburse the medical claim of the complainant amounting to Rs. 67,560.59 paisa as per final bill of Dayanand Medical College & Hospital, Ludhiana  alongwith future interest  @ 12 % per annum from the date of payment to the respective hospitals till its actual realization.

 b)     The amount of Rs.2,00,000/- 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.20,000/- 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.       

Hence, this complaint.

2.       Upon notice, opposite parties 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 estopped by his own act and conduct; that the Complainant has not complied with the terms and conditions of the insurance policy and that the Complainant has not come to this District Commission with clean hands. Further alleges that actually the Complainant has got  the individual health policy in question for the period 30.05.2017 to 29.05.2018 which covers the Complainant and Siya Jain for Rs.5 lakhs each and the terms and conditions of the policy were also supplied to the Complainant alongwith the policy and the Complainant allegedly fell ill and the medical report reveals that the patient is a known case of Type 2 diabetes and hepatitis and admitted for ATT, thus ATT can be given on OPD basis and falls under exclusion clause 2.1 (b) of the policy and hence the claim is not admissible under the clause 2.1 (b) of the policy. Hence, the Opposite Parties repudiated the claim of the Complainant after thorough investigation. On merits, the Opposite Parties almost taken up the same and similar pleas as taken in the preliminary objections.  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 has placed on record his affidavit Ex.C1 in support of the allegations made in the complaint and copies of documents Ex.C2 to Ex.C75.

4.       On the other hand alongwith written version, the Opposite Parties placed on record the affidavit of Sh.Raghu Bansal, Divisinal Manager as Ex.OP1 and  copies of documents Ex.OP2 to Ex.OP5.

5.       We have heard the ld.counsel for the parties and also perused the written arguments placed on record by the Opposite Parties and have carefully gone through the evidence on record.

6.        During the course of arguments, the ld.counsel for the complainant has mainly reiterated the facts as narrated in his complaint and contended that at the first instance 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. Ld.counsel for the Complainant further contended that   the Complainant  has been purchasing the Family Medicare Policy from the Opposite Parties from 29.05.2010, in which the complainant alongwith his spouse (wife) and daughter (s) were fully insured firstly for the sum insured of Rs.6 lacs and in the last policy i.e. policy period 30.05.2017 to 29.5.2018 the complainant alongwith his wife and daughter were individually insured upto the extent of Rs.5 lacs each. The detail of last four policies are given below:-

Ld.counsel for the Complainant further contended  that  the aforesaid detail of the policies shows that the complainant has been purchasing the aforesaid Family Medicare Policy from the last about 8 years i.e. from 29.05.2010, till date continuously against payment of  requisite premiums, as the Opposite Parties itself mentioned under the head ‘Inception Date’ on each policy that the complainant has been purchasing the policy in question from 29.5.2010 and hence, the complainant is consumer of the Opposite Parties as required under the Act. But alongwith these cover notes, the Opposite Parties never issued any terms and conditions of the policy documents to the complainant or to any other beneficiaries of the policy in question. Further contended that unfortunately, during the  policy period  i.e. 30.5.2017 to 29.5.2018, the complainant suddenly fell ill and he became unconscious and due to emergency case, he brought to Dayanand Medical College & Hospital, Ludhiana, where he remained admitted in Dayanand Medical College & Hospital, Ludhiana for the period from 28.08.2017 to 02.09.2017 under the treatment of Dr.Anil Kumar Kashyap, where the treating doctor diagnosed the complainant with following clinical findings:-Pt. Presented-Cough gradual qurit contrinous, productive a/w chest pain left size. Alw fever-interimlient, 101 degree F a/w chills A/w medicotions, Blood in sputum….., the detail regarding the disease and treatment is fully mentioned in the discharge summary (s) of the complainant, the copies of which are Ex.C7 to Ex.C10 on the record. The treating hospital charged Rs. 67,560.59 paisa from the complainant on account of hospital charges and medicines. After discharge from the hospital, the complainant submitted the mediclaim bills with the Opposite Parties for the reimbursement of the same,  but initially, the Opposite Parties lingered on the matter on one pretext or the other and at last vide repudiation letter dated 28.2.2018 (Ex.C6) have repudiated the rightful and lawful claim of the complainant on the false and frivolous ground stating that “While going through the papers, it is observed that the patient is a known case of type 2 diabetes with hepatitis and admitted for ATT. ATT can be given on opd basis and falls under exclusion of the policy. Hence the claim is not admissible under clause 2.1 (b) of the policy.” But at the time of issuing the policy in question as mentioned above, alongwith this cover note, the Opposite Parties never issued any terms and conditions of the policy documents. As such, the alleged  terms and conditions, particularly the exclusion clause of the policy in question is not binding upon the insured.  Further contended that the complainant has been regularly obtaining the health insurance cover w.e.f. 2010 till date, which is obvious for the complainant to claim for sum assured in case of reimbursement of medical expenses incurred by him because since 2010, a period  of 8 years  has already elapsed and the complainant was competent to claim the sum assured vide latest insurance policy for the year 2017-2018, wherein the insured sum was to the tune of Rs.5 lacs each to the policy holders. There is no dispute inter se parties regarding the expenses incurred by the complainant on the treatment for which the complainant has also produced on record, the requisite copies of the bill issued by  the treating  Hospital, which is a meager amount of Rs.67,560.59 paisa, whereas admittedly more than the claimed amount, the complainant has already paid to the Opposite Parties in the shape of premium. Furthermore as alleged by the Opposite Parties in its repudiation letter,  if, the treatment given to the complainant by the treating doctor of Dayanand Medical College & Hospital, Ludhiana, could be given on OPD basis, then what was the need for such a reputed hospital to keep the complainant as Indoor Patient, which was a emergency case as opined by the treating doctor of Dayanand Medical College & Hospital, Ludhiana in its medical record, and what was the fun for the treating doctor of Dayanand Medical College & Hospital, Ludhiana  to keep the complainant as ‘Indoor Patient’ for about 6 days, where the complainant spent more than Rs.70,000/- on his treatment and in view of this, there is deficiency in service on the part of the Opposite Parties and they have illegally repudiated the genuine and legal claim of the complainant taking the false and frivolous ground.   Ld.counsel for the Complainant further contended   that  the complainant approached the Opposite Parties time and again for the reimbursement of his  genuine medical claim, but  the Opposite Parties flatly refused to reimburse the claim of the complainant, as such, there is deficiency in service on the part of the Opposite Parties.

7.       On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid contention of the complainant on the ground that  the actually the Complainant has got  the individual health policy in question for the period 30.05.2017 to 29.05.2018 which covers the Complainant and Siya Jain for Rs.5 lakhs each and the terms and conditions of the policy were also supplied to the Complainant alongwith the policy and the Complainant allegedly fell ill and the medical report reveals that the patient is a known case of Type 2 diabetes and hepatitis and admitted for ATT, thus ATT can be given on OPD basis and falls under exclusion clause 2.1 (b) of the policy and hence the claim is not admissible under the clause 2.1 (b) of the policy and hence the Opposite Parties repudiated the claim of the Complainant after thorough investigation.

8.       There are only two points on which the Opposite Parties have repudiated the claim of the Complainant. First,  the Complainant has not complied with the terms and conditions of the policy which were supplied to him alongwith the policy and secondly, the patient is a known case of Type 2 diabetes and hepatitis and admitted for ATT, thus ATT can be given on OPD basis and falls under exclusion clause 2.1 (b) of the policy and hence the claim is not admissible under the clause 2.1 (b) of the policy.

9.       Whereas on the other hand, the Complainant has specifically pleaded that he never received any terms and conditions and moreover, unfortunately, during the  policy period  i.e. 30.5.2017 to 29.5.2018, the complainant suddenly fell ill and he became unconscious and due to emergency case, he brought to Dayanand Medical College & Hospital, Ludhiana, where he remained admitted in Dayanand Medical College & Hospital, Ludhiana for the period from 28.08.2017 to 02.09.2017 under the treatment of Dr.Anil Kumar Kashyap, where the treating doctor diagnosed the complainant with following clinical findings:-Pt. Presented-Cough gradual qurit contrinous, productive a/w chest pain left size. Alw fever-interimlient, 101 degree F a/w chills A/w medicotions, Blood in sputum….., the detail regarding the disease and treatment is fully mentioned in the discharge summary (s) of the complainant, the copies of which are Ex.C7 to Ex.C10 on the record and hence, it can not be treated  as OPD  being common case.

10.     However from the appreciation of the facts and circumstances of the case it becomes evident that  the complainant obtained insurance policy in dispute and is continous policy from the last 8 years for which the Complainant has already spent more than one lakhs on account of premium and till date, not even a single penny he has claimed till date. It is also not disputed that the complainant suddenly fell ill and he became unconscious and due to emergency case, he brought to Dayanand Medical College & Hospital, Ludhiana, where he remained admitted in Dayanand Medical College & Hospital, Ludhiana for the period from 28.08.2017 to 02.09.2017 under the treatment of Dr.Anil Kumar Kashyap, where the treating doctor diagnosed the complainant with following clinical findings:-Pt. Presented-Cough gradual qurit contrinous, productive a/w chest pain left size. Alw fever-interimlient, 101 degree F a/w chills A/w medicotions, Blood in sputum….., the detail regarding the disease and treatment is fully mentioned in the discharge summary (s) of the complainant. It is further in evidence that the complainant incurred  an expenses  of  Rs.67,560.59 paisa. It is also an admitted fact that the claim was repudiated vide letter Ex.OP4. The ground on which the claim of the complainant has been repudiated has been that the TPA of the Opposite Party  has process and repudiated the claim of the complainant on the basis of terms and conditions of the policy.  Perusal of the repudiation letter Ex.OP4 shows that it  is issued by  some Authorised Signatory of Raksha Helth Insurance TPA Private Limited and it means that on the report of the TPA, the Opposite Party  has repudiated the claim of the complainant.  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.  

11.     The second point raised by the Opposite Party  is 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.”

12.     Ld.counsel for the complainant has further contended 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. He has relied upon the 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, it was 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 recognised under law and ultimately, it was held that the plaint was not instituted by an authorised 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.”

Recently our own 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.

13.     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 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. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.

14.     In view of the above discussion, we are of the opinion that the Opposite Parties have wrongly and illegally repudiated the claim of the complainant. Consequently, we allow the complaint and the Opposite Parties are  directed to reimburse the medical bill amounting to Rs.67,560.59 paisa (Rupees sixty seven thousands five hundred sixty and paisa fifty nine only) within 45 days from the date of receipt of copy of this order, failing which the Opposite Party  shall be liable to pay interest @ 8% per annum on the awarded amount, from the date of filing the complaint till the payment is made to the complainant. Opposite Parties are also directed to pay the lump sum compensation to the complainant to the tune of Rs.10,000/- (ten thousands only) on account of harassment, mental tension  and litigation expenses.  Copies of the order be furnished to the parties free of cost. File be consigned to record room after compliance.

15.     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 Commission since 15.09.2018. Moreover, the President of this Commission is doing additional duties at District Consumer Commission, Bathinda as well as Faridkot. There is only one working day in a week when the quorum of this Commission remains complete.  

Announced in Open Commission.