Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that Sanjeev Kumar Sharma husband of complainant No.1 and son of complainant No.2 obtained a medi-claim insurance policy bearing No. 2010032816P106378564 valid for the period 25.08.2016 to 24.08.2017 against paid up premium of Rs.8888/-. Said Sanjeev Kumar Sharma had been obtaining the medi claim insurance policies continuously from Opposite Party for the last 20 years without any break. The complainants are the nominee of said insured Sanjeev Kumar Sharma and as such, the complainants are consumer under the Act. Sanjeev Kumar Sharma was hale and hearty much prior to the year 2012 and even the policy was issued after medical examination of Sanjeev Kumar Sharma in the year 2012 and the said Sanjeev Kumar Sharma never concealed any fact from the Opposite Party at the time of inception of the insurance policy. Said Sanjeev Kumar Sharma was also not addicted to alcohol or any other vices. Sanjeev Kumar Sharma was admitted in Local Hospital on 13.03.2017 on account of acute onset severe upper abdominal pain and then referred to Max Hospital, Dehradun where he was treated and remained admitted in the hospital for three days under the treatment of Max Hospital, Dehrudun where he died on 17.03.2017. After the death of Sanjeev Kumar Sharma, the complainants lodged the claim for the reimbursement of medical bills amounting to Rs.5 lakhs with the Opposite Party and completed all the formalities, but the Opposite Parties repudiated the claim of the complainants on false and frivolous grounds vide letter dated 03.07.2017 and as such, there is deficiency in service on the part of the Opposite Party. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Party may be directed to make the payment of medical expenses amounting to Rs.5 lakhs and also to pay of Rs.1,00,000 on account of compensation due to mental tension and harassment caused by the complainant as well as costs of litigation amounting to Rs.33,000/-.
3. Opposite Party appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is submitted that immediately on receipt of the claim, it was duly registered, entertained and processed. Sanjeev Kumar Sharma obtained a medi-claim insurance policy bearing No. 2010032816P106378564 valid for the period 25.08.2016 to 24.08.2017. The insurance policy is a contract it itself and the parties are bound by the terms and conditions of the policy. The complainants had loged a claim for reimbursement of medical expenses incurred on the treatment of Sanjeev Kumar Sharma from 13.03.2017 to 17.03.2017 at Max Super Speciality Hospital, Dehrudun and the claim file of the complainant was referred to M/s.Raksha health insurance TPA, Chandigarh who required some documents i.e. original discharge summary for hospitalization dated 13.03.2017 and original pre numbered, pre printed duly signed and stamp receipt against the final bill of the hospital (only bill given) for Rs.3,21,000/-. After the receipt of necessary documents from the complainant and after scrutinizing the documents placed in the claim file and after due investigation and application of mind by the doctors of Raksha TPA Private limited in terms of the policy recommended to the Opposite Party for repudiation of the claim being non tenable vide their letter dated 02.05.2017 fully mentioned in preliminary objections of the written reply. After the receipt of the letter from Raksha TPA, the claim file of the complainant was referred to Technical (Health) Department Ludhiana for their opinion and the claim Review Committee of Technical (Health) Department, had unanimously decided to repudiate the claim of the complainant vide letter dated 23.06.2017 as per exclusion clause 4.6 of the policy since at the time of going through the documents of medical treatment placed in the claim file, it is observed that the patient is diagnosed with Acute Pancreatitis with splanchnic Thrombosis with MODS with refractive shock with huypoxemia and as per patient history, it is cleared that the patient had alcohol consumption 2-3 hours before admission and there is also highly deranged LEFTs which suggest alcohol to be one of the cause. Treatment of any illness caused due to alcohol consumption falls outside the scope of the policy and hence, the claim of the complainant was rightly repudiated. On merits, the Opposite Parties took up the same and similar pleas as taken up by them in the preliminary objections. Hence, Opposite Party has rightly repudiated the claim of the complainant after application of mind and the complaint may be dismissed with costs.
4. In order to prove his case, the complainant has tendered into evidence his affidavit Ex.C-A alongwith copies of documents Ex.C1 to Ex.C27 and closed the evidence on behalf of the complainant.
5. On the other hand, to rebut the evidence of the complainant, Opposite Party also tendered into evidence the affidavits Ex.RA and Ex.RB alongwith copies of documents Ex.R1 to Ex.R19 and closed the evidence.
6. We have heard the ld.counsel for the parties, written submissions of the Opposite Parties and also gone through the documents placed on record.
7. Ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that first of all, at the time of issuance of the said policy to the complainant, no term and conditions were ever explained or supplied by Opposite Parties to the complainant. Further contended that Sanjeev Kumar Sharma husband of complainant No.1 and son of complainant No.2 obtained a medi-claim insurance policy bearing No. 2010032816P106378564 valid for the period 25.08.2016 to 24.08.2017 against paid up premium of Rs.8888/-. Said Sanjeev Kumar Sharma had been obtaining the medi claim insurance policies continuously from Opposite Party for the last 20 years without any break. The complainants are the nominee of said insured Sanjeev Kumar Sharma and as such, the complainants are consumer under the Act. Sanjeev Kumar Sharma was hale and hearty much prior to the year 2012 and even the policy was issued after medical examination of Sanjeev Kumar Sharma in the year 2012 and the said Sanjeev Kumar Sharma never concealed any fact from the Opposite Party at the time of inception of the insurance policy. Said Sanjeev Kumar Sharma was also not addicted to alcohol or any other vices. Sanjeev Kumar Sharma was admitted in Local Hospital on 13.03.2017 on account of acute onset severe upper abdominal pain and then referred to Max Hospital, Dehradun where he was treated and remained admitted in the hospital for three days under the treatment of Max Hospital, Dehrudun where he died on 17.03.2017. After the death of Sanjeev Kumar Sharma, the complainants lodged the claim for the reimbursement of medical bills amounting to Rs.5 lakhs with the Opposite Party and completed all the formalities, but the Opposite Parties repudiated the claim of the complainants on false and frivolous grounds vide letter dated 03.07.2017 and as such, there is deficiency in service on the part of the Opposite Party.
8. On the other hand, ld.counsel for the Opposite Party has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that it is submitted that immediately on receipt of the claim, it was duly registered, entertained and processed. Sanjeev Kumar Sharma obtained a medi-claim insurance policy bearing No. 2010032816P106378564 valid for the period 25.08.2016 to 24.08.2017. The insurance policy is a contract it itself and the parties are bound by the terms and conditions of the policy. The complainants had lodged a claim for reimbursement of medical expenses incurred on the treatment of Sanjeev Kumar Sharma from 13.03.2017 to 17.03.2017 at Max Super Speciality Hospital, Dehrudun and the claim file of the complainant was referred to M/s.Raksha health insurance TPA, Chandigarh who required some documents i.e. original discharge summary for hospitalization dated 13.03.2017 and original pre numbered, pre printed duly signed and stamp receipt against the final bill of the hospital (only bill given) for Rs.3,21,000/-. After the receipt of necessary documents from the complainant and after scrutinizing the documents placed in the claim file and after due investigation and application of mind by the doctors of Raksha TPA Private limited in terms of the policy recommended to the Opposite Party for repudiation of the claim being non tenable vide their letter dated 02.05.2017 fully mentioned in preliminary objections of the written reply. After the receipt of the letter from Raksha TPA, the claim file of the complainant was referred to Technical (Health) Department Ludhiana for their opinion and the claim Review Committee of Technical (Health) Department, had unanimously decided to repudiate the claim of the complainant vide letter dated 23.06.2017 as per exclusion clause 4.6 of the policy since at the time of going through the documents of medical treatment placed in the claim file, it is observed that the patient is diagnosed with Acute Pancreatitis with splanchnic Thrombosis with MODS with refractive shock with huypoxemia and as per patient history, it is cleared that the patient had alcohol consumption 2-3 hours before admission and there is also highly deranged LEFTs which suggest alcohol to be one of the cause. Treatment of any illness caused due to alcohol consumption falls outside the scope of the policy and hence, the claim of the complainant was rightly repudiated.
9. The main plea raised by 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.”
- 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 Opposite Party is that since the complainant has concealed the pre existing disease, so his claim has rightly been repudiated by the Opposite Parties as per the terms and conditions of the policy. On the other hand, ld.counsel for the complainant has repelled the aforesaid contention of the complainant on the ground Sanjeev Kumar Sharma was hale and hearty much prior to the year 2012 and even the policy was issued after medical examination of Sanjeev Kumar Sharma in the year 2012 and the said Sanjeev Kumar Sharma never concealed any fact from the Opposite Party at the time of inception of the insurance policy. On this point, evidence has to be referred to by us on the record with regard to pre existing disease upon Sanjeev Kumar Sharma insured The onus to establish this fact is upon the Opposite Parties in this case. We have perused the copies of documents of the hospital produced by the Opposite Party, but there is neither any affidavit nor complete particulars of the investigator recorded in them. Even the certificate has not been placed on the record. There is no affidavit of doctor of the treating hospital to establish this fact on the record regarding previous disease of insured. He is a private doctor and not posted in any recognized health institute or government hospital. We are unable to rely upon the above referred investigation report appended with the Photostat copy of medical record of complainant. In the absence of any affidavit of investigator and the affidavit of treating doctor of the hospital, we do not place any reliance upon these documents, as pressed into service by the Opposite Parties in this case. Consequently, we are of this view that Opposite Parties have failed to discharge the onus solemnly laid upon it to prove this fact that the complainant was suffering from above pre-existing disease before taking the policy and he deliberately and fraudulently concealed this material fact from Opposite Parties. We, thus, conclude that there is no substantive evidence on the record to prove this fact that the complainant was suffering from any disease before he took the insurance policy and he willfully suppressed this fact fraudulently from the Opposite Parties. Moreover, as contended by the complainant that before the issuance of the policy in question, the Opposite Party has also conducted the medical examination of the complainant and after finding everything Okay, the Opposite Party issued the aforesaid policy. Moreover, if the complainant was suffering from any diseases prior to issuance of the policy, in question, the same must not have escaped the notice of the empanelled doctors of the Insurance Company. However, no such investigation record has been produced by the opposite parties. In case Bajaj Allianz Life Insurance Co. Ltd. & Ors. Vs. Raj Kumar III (2014) CPJ 221 (NC), it was held by the Hon’ble National Commission that “usually, the authorized doctor of the Insurance Company examines the insured to assess the fitness and after complete satisfaction, the policy is issued. It was held that the Insurance Company wrongly repudiated the claim of the complainant.”
11. It also needs to be mentioned that Section 19 of the General Insurance Business (Nationalization) Act, 1972 states that it shall be the duty of every Insurance Company to carry on general insurance business so as to develop it to the best advantage of the community. The denial of medical expenses reimbursement is utterly arbitrary on the ground that disease in question was pre-existing disease. It is mere an excuse to escape liability and is not bona fide intention of the insurance company. Fairness and non-arbitrariness are considered as two immutable pillars supporting the equity principle, an unshakable threshold of State and public behavior. Any policy in the realm of insurance company should be informed, fair and non-arbitrary. When the insurance policy has exclusions/conditions to repudiate the claim or limit the liability, the same must be specifically brought to the notice of the insured and are required to be got signed to show that such exclusions and conditions have been brought to his/her notice. Recently, our own Hon’ble State Consumer Disputes Redressal Commission, Chandigarh in First Appeal No. 50 of 2019 titled as Bajaj Alliance General Vs. Arjan Singh decided on 04.03.2021 also held so.
12. The need for interpreting a contract always arises in two situations, (i) when a gap is needed to be filled in the contract and (ii) an ambiguity is needed to be resolved in the contract, then to find out correct intention of the contract, spirit behind it is required to be considered. Normally, the insurance policy is a contract of adhesion in which other party is left with hardly any bargaining power as compared to the insurer. Insurance contracts are standard form contracts and are drafted by the insurance company and as such, insurance company is at higher footing than the insured. The benefit of such clause, as exclusion clause, would go to the insured unless the same is explained in clear terms by the insurer. In such circumstances, the tribunal would be more oriented towards the interpretation which goes against the party who has inserted/drafted the disputed clause in the agreement/contract. The adjudicating authority is required to look into whether the intention of the party is to exclude or limit liability has been appropriately explained to the other party or not. This Commission while interpreting insurance agreement is to honour the intention of the parties, who have signed the agreement. Even if the agreement had general exclusion/condition for misrepresentation still fraudulent misrepresentation and non-disclosure may not be there. The innocent and negligent misrepresentations are to be ignored. On the other hand, the rulings (i) Satwant Kaur Sandhu Vs. New India Assurance Company Limited, (ii) Murti Devi Vs. Birla Sun Life Insurance and (iii) Mamohan nanda Vs. United India Insurance Company Limited, cited by the ld.counsel for the Opposite Parties are not applicable and relevant to the facts of the present case. The insurance companies are in haste to charge the premium, but when the time to pay the insurance claim comes, they generally take up one excuse or the other to avoid their liability. The reliance of counsel for the appellant on law laid down in “Life Insurance Corporation of India Vs. Priya Sharma & others” 2012(4)CPJ-646, “Life Insurance Corporation of India & others Vs. Harbans Kaur” 2009(3)CPC-677, and “Life Insurance Corporation of India & another Vs. Ashok Manocha” 2011(3)CPC-285, would have been applicable, had this fact been established that life assured suffered from pre-existing ailment of and he deliberately suppressed this fact fraudulently from the Opposite Parties, when he took the insurance policy. In view of our finding recorded above that Opposite Parties had failed to prove this fact that complainant was suffering from any pre-existing ailment and hence these authorities would not be attracted in this case. In this regard, on the same and similar facts and circumstances of the case, Hon’ble State Consumer Disputes Redressal Commission, in First Appeal No.62 of 2015 decided on 02.02.2017 in case India First Life Insurance Vs. Ms.Sudesh Rani also held so. On the other hand, the rulings cited by the ld.counsel for the Opposite Parties are not applicable to the facts of the present case and we distinguish the same.
13. In such a situation the repudiation made by Opposite Party -Insurance Company regarding 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. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
14. In view of the above discussion, we hold that the Opposite Party-Insurance Company have wrongly and illegally rejected the claim of the complainant.
15. To support their contention, the Opposite Party has cited the some rulings, but these rulings are not applicable to the facts of the present case and not supportive to the instant case and are distinguished.
16. The complainants in their complaint have claimed the reimbursement of medical bill upto the extent of Rs.5 lakhs, but perusal of the record (Inpatient Bill Summary Ex.C21) shows that the treating hospital Max Healthcare has charged the amount of Rs.3,90,633.55 paisa and this amount spent by the complainants on treatment has nowhere denied by the Opposite Party by filing any cogent and convincing evidence and hence, the claim of the complainants to that amount is genuine and we allow the claim of the complainant accordingly.
17. In view of the aforesaid facts and circumstances of the case, we allow the complaint of the Complainants partly and direct Opposite Party-Insurance Company to pay the amount of Rs.3,90,633/- (Rupees three lakh ninety thousands six hundred and thirty three only) within 45 days from the date of receipt of copy of this order, failing which the Opposite Party-Insurance Company shall be liable to pay the interest @ 8% per annum on the awarded amount from the date of filing the instant complaint i.e. 13.10.2017 till its actual realization. Opposite Party–Insurance Company is also directed to pay compensation to the complainant for causing mental tension and harassment to the tune of Rs.10,000/- (Ten thousands only). The compliance of this order be made by Opposite Party-Insurance Company within 45 days from the date of receipt of copy of this order, failing which the complainants shall be at liberty to get the order enforced in accordance with law. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
Announced in Open Commission at Camp Court, Ludhiana.
Dated:28.04.2022.
(Aparana Kundi) (Mohinder Singh Brar) (Amrinder Singh Sidhu)
Member Member President
