Complaint No: 325 of 2019.
Date of Institution: 01.11.2019.
Date of order: 05.12.2023.
Sh. Mangal Singh Son of Sh. Chanan Singh resident of Guru Nanak Nagar Batala District Gurdaspur.
….........Complainant.
VERSUS
United India Insurance Company Ltd., through its Branch Manager Jalandhar Road Batala.
….Opposite party.
Complaint under the Consumer Protection Act.
Present: For the complainant: Sh.Pushkar Nanda, Advocate.
For the opposite party: Sh.Pranav Sharma, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Mangal Singh, Complainant (here-in-after referred to as complainant) has filed this complaint under the Consumer Protection Act (here-in-after referred to as 'Act') against United India Insurance Co. Ltd. Etc. (here-in-after referred to as 'opposite party).
2. Briefly stated, the case of the complainant is that the complainant hired the services of the opposite party by getting a medical policy vide which he got himself and his wife Nirmaljit Kaur insured from the opposite party company for medical treatment if any vide policy No. 2002022818P102956231 for the period from 01.06.2018 to 31.05.2019. It is pleaded that the complainant and his wife has also got previous policy bearing its No. 2002022817P103493810 also from the company for the period from 01.06.2017 to 31.05.2018. It is pleaded that thus the complainant is regular policy holder of the opposite party. It is further pleaded that unfortunately wife of the complainant Smt. Nirmaljit Kaur had to go for treatment of her stone problem from Sarvoydya Hospital Jalandhar having been admitted on 17.09.2018 and discharged on 21.09.2018 and the complainant had spent an amount of Rs.60,210/- with the said hospital as operation charges Rs.41,100/- and Rs.19,110/- for medicines. It is further pleaded that as per policy the complainant and his wife are entitled to reimbursement of the medical expenses borne on the treatment of his wife Nirmaljit Kaur who is also covered under the said policy and the complainant has submitted the claim with the opposite party's office on 14.12.2018 with the request to pay him the amount spent on the treatment of his wife being beneficiary of the policy and submitted all the required documents in support of the claim. It is pleaded that thereafter some queries were put by the opposite party office which was also complied with and till date no response of any sort for releasing the legal payment of the complainant has been received from the opposite party. It is pleaded that as the complainant has not been paid his legal amount which has been illegally withheld by the opposite party which amounts to breach of terms and conditions of the policy thereby compelling the complainant to proceed against the opposite party under civil and as well as criminal law of land as withholding of legal payment by the opposite party amounts to breach of trust also. It is further pleaded that the above said act of withholding legal payment of complainant by the opposite party is wrong, illegal, against the principles of natural justice and due to wrong and illegal act of withholding of legal payment, the opposite party is liable to pay double of the due amount together with interest. It is pleaded that due to this illegal act and conduct of the opposite party the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is pleaded that there is a clear cut deficiency in service on the part of the opposite party.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite party and prayed that necessary directions may kindly be issued to the opposite party to make the payment of Rs.60,210/- together with interest @ 12% P.A. from the date of claim made till its realization alongwith damages of Rs.50,000/- and litigation expenses of Rs.10,000/- be passed in favour of the complainant and against the opposite party by allowing the complaint with costs, in the interest of justice.
3. Upon notice, the opposite party appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complaint is not maintainable in the present form. It is pleaded that insurance company /opposite party acts on Principle of Utmost Good Faith and expects that the customer / consumer also reciprocate in the similar manner, however in this case the complainant made violation and breach of this Principle. It is pleaded that the insurance companies in case of Medical Health Policies if any claim is lodged to the opposite party, they submit the entire claim file to the (TPA), since the opposite party / respt. as per the Agreement with TPA the claims are monitored administered & decided by the (TPA) medical Advisor for the Medi claim health policies and as per the (TPA) i.e. Vipul Medicorp Insurance TPA Pvt. Ltd. Co. & what so ever claim are advised to the Resp. / opposite party, acting on their advice they act upon & the claim under the policy referred to them after TPA expert opinion and the claim was found not payable in view of the terms & conditions of the insurance policy in question thus the claim had been rightly and validly repudiated by the opposite party on (TPA) advice who finalize and decide all such claims. It is pleaded that the complaint is not maintainable & there is no deficiency in service being rendered by the opposite party. It is further pleaded that the complainant under the individual Health Policy 01.06.2018 to 31.05.2019 vide Policy No. 2002022818P102956231 had lodged his claim for reimbursement of Medical Treatment Bill for hospitalization in Sarvodya Hospital, Jalandhar, the opposite party / Insurer submitted the entire claim record with policy & documents & record of Sarvodya Hospital, forwarded same to TPA Vipul Medicorp Insurance TPA Pvt. Ltd. for consideration & to advise them. It is further pleaded that accordingly, the TPA after considering the Hospital treatment record & as per the discharge summary of Patient, Opined "as Diagnosed case of Right Staghorn calculus with diabetes (7-8 Yrs.). It is further pleaded that policy is in second year as per policy Terms & Condition & pre-Existing conditions as defined in the policy until 48 months of continuous coverage of such Insured person have elapsed since inception of His / Her first policy as mentioned in the schedule attached to the policy hence, claim is recommended to be non-payable as per clause 4.1 and 4.3 unless the Insured has 24 month of continuous coverage the expenses on treatment of diseases such as cataract benign prostatic Hypertrophy, Hysterectomy for Menorrhagia or Fibromyoma, Hernia, Hydrocele, Congenital internal Disease, fistula in anus piles, sinusitis and related disorders, Gall bladder stone removal, Gout & Rheumatism, calculus diseases are not payable". It is pleaded that on TPA advice claim was repudiated. It is further pleaded that as per the opinion / advise of Vipul Medicorp Insurance TPA Pvt. Ltd. vide letter dated 11.02.2019 found the claim not payable as per Terms & Conditions of the policy & accordingly as advised the Respt had Repudiated the claim under the Policy and as such the compliant is not maintainable.
On merits, the opposite party have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Learned counsel for the complainant has filed an affidavit of Mangal Singh, (Complainant) alongwith other documents as Ex.C-1 to Ex.C-30.
5. Learned counsel for the opposite party has tendered into evidence affidavit of Sh. Dilbag Singh, (Senior Manager, United India Ins. Co. Ltd, Batala) as Ex.OP-1 alongwith other documents as Ex.OP-2 to Ex.OP-11.
6. Rejoinder not filed by the complainant.
7. Written arguments not filed by both the parties.
8. Counsel for the complainant has argued that complainant had purchased health policy from opposite party. Complainant and his wife namely Smt.Nirmaljit Kaur were insured under the said policy. It is further argued that during the continuation of policy wife of the complainant took treatment regarding stone from Sarvoydya Hospital Jalandhar and had spent Rs.60,210/- on treatment. However, on claim having been lodged the opposite party has repudiated the claim of the complainant on false and flimsy grounds.
9. On the other hand counsel for the opposite party has vehemently argued that after considering the hospital record and discharge summary the TPA i.e. Vipul Medicorp Insurance TPA Pvt. Ltd. gave opinion as "as Diagnosed case of Right Staghorn calculus with diabetes (7-8 Yrs.). The policy is in second year and as per the terms and conditions such disease i.e. gall bladder stone removal was not payable within 24 months and as such claim was rightly repudiated.
10. We have heard the Ld. counsels for the parties and gone through the record.
11. It is admitted fact that complainant Mangal Singh had purchased health policy from the opposite party valid from 01.06.2017 to 31.05.2018 and wife of the complainant was also insured as per the policy and during the continuation of policy of insurance wife of the complainant took treatment regarding stone from Sarvoydya Hospital Jalandhar and had spent Rs.60,210/-. It is further admitted fact that claim for reimbursement was repudiated by the opposite party on the ground of pre-existing disease and clause Nos. 4.1 and 4.3. The issue for adjudication before this Commission is whether the repudiation of the claim by the opposite party is justified or not.
12. Perusal or record shows that the nature of treatment obtained by the complainant from Sarvoydya Hospital Jalandhar is in respect of stone and the disease which being alleged to have been concealed is diabetes since 7-8 years. We are of the view that the stone problem in respect of which complainant under took treatment has not concern with diabetes and as such repudiation of the claim on this ground is totally unjustified.
13. We have relied upon judgment of Hon'ble Supreme Court of India in Civil Appeal No.5322 of 2007 D/d. 20.11.2007 in case titled as P.C.Chacko & Anr. Vs. Chairman, Life Insurance Corporation of India & Ors. wherein it is held as under:-
11. Section 45 of the Insurance Act reads as under:-
"45.-Policy not to be called in question on ground of mis-statement after two years.-
No policy of life insurance effected before the commencement of this Act shall after the expiry of two years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act shall after the expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that a statement made in the proposal for insurance or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy-holder and that the policy-holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose:
Provided that nothing in this section shall present the insurer from calling for proof of age at any time if he is entitled to do so, and no policy shall be deemed to be called in question merely because the terms of the policy are adjusted on subsequent proof that the age of the life insured was incorrectly stated in the proposal".
12. "Section 45 postulates repudiation of such policy within a period of two years. By reason of the aforementioned provision, a period of limitation of two years had, thus, been specified and on he expiry thereof the policy was not capable of being called in question, inter alia on the ground that certain facts have been suppressed which were material to disclose or that it was fraudulently been made by the policy holder or that the policy holder knew at the time of making it that the statement was false. Statute, therefore, itself provides for the limitation for valid repudiation of an insurance policy. It takes into account the social security aspect of the matter".
As such the repudiation of the claim by the opposite party is totally unjustified. As far as the second ground regarding repudiation of claim i.e. clauses 4.1 and 4.3 is concern. We are of the view that it has been held in number of cases by the Hon'ble Supreme Court of India that mis-statement is not material for repudiation of the policy unless the same is material in nature. We are of the view that the complainant had purchased the health policy of insurance from the opposite party. However, opposite party having not been able to prove that the terms and conditions referred were also supplied and explained to the complainant. Moreover, we are of the view that the health policy was purchased for medical emergency and exclusion of number of ailments as mentioned in para No.4 of preliminary objections itself amounts to business malpractice. Section 45 of the Insurance Act is as under:-
13. There are three conditions for application of second part of Section 45 of the Insurance Act which are:-
"(a) the statement must be on a material matter or must suppress facts which it was material to disclose;
(b) the suppression must be fraudulently made by the policy-holder; and
(c) the policy-holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose".
(See Mithoolal Nayak (supra)
In the present case the health policy of insurance has been purchased by the complainant for medical emergency for himself and his wife and having been covered under the policy had applied for reimbursement of the claim which was repudiated by the opposite party on false and frivolous grounds. As such we are of the view that repudiation of the claim by the opposite party amounts to deficiency in service.
14. Accordingly, present complaint is partly allowed and opposite party is directed to pay Rs.51,000/- as per original bill Ex.OP-9 to the complainant alongwith interest @ 9% P.A. from the date of filing of the complaint till realization. Opposite party is further directed to pay Rs.5,000/- as compensation on account of mental tension and harassment and Rs.3,000/- as cost of litigation expenses. Entire exercise shall be completed within 30 days from the date of receipt of copy of this order.
15. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
16. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Dec. 05, 2023 Member.
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