BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No. 12 of 2014

Date of Instt. 16.01.2014

Date of Decision :14.11.2014

Ashok Kumar Verma, aged about 55 years R/o 41-42, Shankar Garden, Near Model Town, Jalandhar.

..........Complainant

Versus

1. United India Insurance Company Limited, S-9, Industrial Area, Jalandhar.

2. Raksha TPA, Pvt, Ltd, SCO 181, 2nd Floor, Sector 7-C, Chandigarh.

.........Opposite parties

Complaint under section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Present: Sh.Kanwar Sood Adv., counsel for complainant.

Sh.Brijesh Bakshi Adv., counsel for OP No.1.

Opposite party No.2 exparte.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 against the opposite parties on the averments that complainant is filing the present complaint being aggrieved by the compliance of the order dated 15.11.2011 made by the opposite parties, the insurance claims have been repudiated. Further the complainant is aggrieved that inspite of the specific directions to settle the claim within a period of two months from 13.9.2012 the order remained non complied till 11.10.2013 i.e for a period of more than one year. The complainant took medical policy from the opposite party No.1 in the name of the family members including the wife of the complainant namely Sunita Verma(since deceased) alongwith himself and insurance was to commence from 11.11.2009 to 10.11.2010, which was bearing No.201302/48/09/06/00000371 and subsequently another policy was taken for the period from 11.11.2010 to 10.11.2011 which was bearing No.201302/48/10/06/00000343. The polices were issued by the opposite parties after being fully satisfied regarding all the pre-requisite for issuance of any policy. Initially wife of the complainant namely Sunita Verma fell ill during the subsistence of the first policy bearing No.201302/48/09/06/00000371 and was subsequently hospitalized and accordingly had to incur expenses which were covered under the umbrella of the policy and the claim was for an amount of Rs.78,548/- and the insured amount was Rs.1,50,000/-. The opposite party No.2, who is agent of opposite party No.1 had acted on its behalf and had failed to settle the claim of the complainant and finding no other option the complainant had to serve a legal notice dated 14.10.2010 to the opposite party No.2, copy of which was sent to the opposite party No.1, calling upon for settlement of the claim. In the meantime, the opposite party No.1 had already insured the complainant for the subsequent years from 11.11.2010 to 10.11.2011 vide policy bearing No.201302/48/10/06/00 000343. Thereafter on 10.11.2010, the complainant received a letter from the opposite parties that the claim has been repudiated as per clause 5.3 and 5.4 of the policy. It is pertinent to mention here that the complainant has never received any copy of terms and conditions, which is being relied upon by the opposite parties. Earlier the claim was repudiated as per clause 5.3 and 5.4 and now the claim has been repudiated under clause 4.1, which is totally arbitrary and against established norms. The complainant thereafter, on 7.12.2010 requested for reopening of the claim, which was subsequently reopened. The form was duly sent by the complainant on 8.12.2010. The said claim has now been repudiated by opposite parties once again without any reason, as such, this itself makes the opposite parties guilty for deficiency in service and also for practicing unfair trade practice. Thus, by reopening the claim of the complainant, the opposite parties admitted their negligence and error in repudiating the claim vide letter dated 10.11.2010. As stated above, the complainant has availed the policy subsequently for the year 11.11.2010 to 10.11.2011 which was bearing No.201302/48/10/06/00000343. The complainant during the subsistence of above said policy had to lodge three claims with the opposite parties for amount of Rs.36,305, Rs.35,397/- and Rs.76,132/- respectively, which have not been settled by the opposite parties till date. Most importantly all these policies were cashless policies and it was incumbent upon the opposite parties to pay the medicines bill at the onset when the wife of the complainant was admitted, failure to do so, in itself constitutes deficiency in services on part of opposite parties. Since the claim has been lodged, the opposite parties have time and again asked the complainant for producing documents, which have been duly supplied by the complainant from time to time. Initially, the documents were supplied alongwith the claim and again the complainant had received a letter dated 27.5.2011 for supply of certain documents. The complainant had already supplied documents number of times, which was duly acknowledged by the opposite parties Initially on 18.1.2011, thereafter on 22.2.2011 and thereafter again on 20.6.2011, the complainant supplied the required documents to the opposite party No.2 which were duly acknowledged by them. Even opposite party No.1 addressed a letter dated 27.6.2011 to the opposite party No.2, its agent calling upon for settlement of the claim at the earliest and acknowledging the hardships, which were being suffered by the complainant, thereby acknowledging and admitting the claim of the complainant also the negligence and undue delay on the part of the opposite parties. Aggrieved complainant lodged complaint No.476 of 2011 before this forum, which was allowed giving directions to the opposite parties to settle the claim. On 19.10.2012, the complainant served notice to the opposite parties on compliance of the order, but the opposite parties failed to comply the same and after expiry of more than one year the claim has now been wrongly repudiated. As per clause 4.1 of the policy the claim has been repudiated on the ground of pre-existing ailment, which is a figment of imagination on the part of opposite parties and the opposite party insured the deceased after repudiating the first claim, which itself raise an estoppel against the opposite parties. On such like averments, the complainant has prayed for directing the opposite parties to pay all four claims of the complainant amounting to Rs.78,548 for the policy year 2009-2010, Rs.36,305, Rs.76,132 and Rs.35,597 for the policy year 2010-2011. He has also claimed damages and litigation expenses.

2. Upon notice, the opposite party No.1 appeared and filed a written reply pleading that complainant is guilty of concealment of material facts and has not approached this forum with clean hands and as such is not entitled to any relief from the forum. The claims filed by the complainant have been duly considered and repudiated and the repudiation letter under reference No.SB:2013/2357 dated 11.10.2013 has already been issued to the complainant before the filing of the instant proceedings. The complainant has got no cause of action to file the present complaint against the answering opposite party. There was no default or undue delay, on the part of the answering opposite party in processing the claims of the complainant and after due application of mind the claims have been rightly repudiated. The fact of the matter is that previously the complainant had filed total 4 claims with the opposite parties and one claim was repudiated whereas the other three claims were closed on account of non providing of the necessary details and compliance of statutory requirements. The complainant had then filed a consumer complaint No.476 of 2011 against the opposite parties and therein it had been pleaded by the company that the first claim had been rejected and that despite repeated requests and reminders the complainant failed to prove the requisite details and documents for the processing of the above three claims and as such the file of these three claims had to be closed. However, if the complainant supplies the requisite details/documents sought from him in the said three claims then the opposite parties shall consider his claims on merits provided it is found that the same are not for any pre-existing disease/ailment and subject to the compliance of the policy terms and conditions. The complaint was decided by the forum and it was ordered that "the complaint is accepted and opposite parties are directed to decide all the four claims of the complainant within two months from the date of receiving further documents and information from the complainant. The complainant is directed to submit the information and further documents which he may desire to opposite party No.2 under intimation to opposite party No.1 within one month from the date of receipt of copy of this order and thereafter, the opposite parties shall settle the claims of the complainant within two months positively". Thereafter as per order of the forum all the four claims were reopened and reconsidered but the same were repudiated on account of pre-existing disease condition. While processing the aforesaid claims as per the directions of the forum it transpired that the patient was admitted with C/o Myelodysplastice Syndrome RCMD progressed to AML Superior Sagittal Sinus Thrombosis, Maesentric Veirn Thrombosis, Hypothyroidism, Autoimmune Haemoclytic Anemia. The illness is of Chronic Nature. Furthermore from the discharge summary final diagnosis of the patient Sunita Verma it was found that the patient was suffering from Myelodysplastice Syndrome RCMD progressed to AML Superior Sagittal Sinus Thrombosis, Maesentric Veirn Thrombosis, Hypothyroidism, Autoimmune Haemoclytic Anemia. She had the history of hypothyroidism from 4 years and was on medication for that with a diagnosed case of MDS,MVS,SSST and on medication for that too. The first policy was taken by the complainant from 11.11.2009 to 10.11.2010 vide policy No.201302/48/09/06/00000371 and then the complainant took the policy from 11.11.2010 to 10.11.2011 vide policy No.201302/48/10/ 06/00000343. The complainant while taking the policy had not disclosed the pre-existing ailments as above and the treatment thereof being taken. As the policy was in its second year of inception and the claims were made in the first and second year thus the claims fell out of the scope of policy and non payable as per clause 4.1(pre-existing disease). Myelodysplastice Syndrome (MDS) known as preleukemia are a diverse collection of hematological (blood related) medical conditions that involve ineffective productive(or dysplasis) of the myeloid class of blood cell. Patient with MDS can develop severe anemia and require blood transfusions. In some cases the disease worsens and the patient develops cytopenis(low blood counts) caused by progressive bone marrow failure. Thus the disease is of chronic nature and the above noted claims were thus rightly repudiated as per clause 4.1 of the policy. Especially as the insured had not disclosed the previous medical history of Hypothyroidism and MDS, MVN, SSST and medication thereof. In fact the medical reimbursement sought in all the four cases is of the diagnosis and treatment of the pre-existing illness which was not disclosed to the opposite parties. It denied other material averments of the complaint.

3. Upon notice, opposite party No.2 did not appear inspite of notice and as such it was proceeded against exparte.

4. In support of his complaint, complainant has tendered in to evidence affidavit Ex.CW1/A along with copies of documents Ex. C1 to C25 and closed evidence.

5. On the other hand, learned counsel for opposite party No.1 has tendered affidavit Ex.OPA alongwith copies of documents Ex.O1 and evidence of the opposite party No.1 closed by order.

6. We have carefully gone through the record and also heard the learned counsel for complainant and learned counsel for the opposite party No.1.

7. The complainant earlier filed a complaint No.476 of 2011 which was decided on 13.9.2012 and following order was passed in that complaint " Consequently, the complaint is accepted and opposite parties are directed to decide all the four claims of the complainant within two months from the date of receiving further documents and information from the complainant. The complainant is directed to submit the information and further documents which he may desire to opposite party No.2 under intimation to opposite party No.1 within one month from the date of receipt of copy of this order and thereafter, the opposite parties shall settle the claims of the complainant within two months positively".

8. Counsel for opposite party insurance company contended that the opposite party insurance company had repudiated all claims of the complainant before filing of the present complaint but in the complaint, the complainant is alleging for deciding the claim by the insurance company. He contended that as such the present complaint is not maintainable. The complaint is to be read as a whole, in para 17 of the complaint, the complainant has prayed that repudiation may be declared as null and void and opposite party be directed to pay all claims to him. Admittedly the opposite parties have repudiated all claims of the complainant vide letter dated 11.10.2013 Ex.O1. It is in the affidavit Ex.CW1/A of the complainant that no repudiation letter has ever been communicated to him. The complainant can not be made to file fresh complaint again. We are to see if the repudiation of the claims of the complainant is justified or not. The opposite party insurance company had repudiated the claims of the complainant as per clause 4.1 on the ground of pre-existing disease. The onus was on the opposite party to prove that the insured was suffering from pre-existing disease. From the side of the opposite party No.1 insurance company only affidavit of Sh.Subash Sachar, Senior Divisional Manager has been tendered and repudiation letter dated 11.10.2013 Ex.O1 has been produced. It has not lead any medical evidence to prove that Sunita Verma insured was suffering from any alleged pre-existing disease. So opposite parties have failed to prove that Sunita Verma since deceased was suffering from any pre-existing disease. Consequently the present complaint is accepted and opposite party insurance company is directed to pay all the four claims i.e Rs.78,548/-, Rs.36,305/-, Rs.76,132/- and Rs.35,597/- to the complainant alongwith 9 % interest from the date of filing of the complaint till payment. In the circumstances of the case, complainant is also awarded Rs.20,000/- in lump sum on account of compensation and litigation expenses. Copies of the order be sent to the parties free of costs under the rules. File be consigned to the record room.

Dated Jyotsna Thatai Jaspal Singh Bhatia

14.11.2014 Member President