PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding deficiency in service on the part of Opposite Party as it repudiated the insurance claim of the Complainant on frivolous and invalid ground that only the pre-existing disease are covered under the policy and Complainant had not declared the pre-existing diseases etc.
2) The facts as stated by the Complainant are that the Opposite Party is engaged in the business of Mediclaim Insurance and settlement of Mediclaim. It is submitted by the Complainant that he has Mediclaim policies since 01/05/1999 to 28/02/2008 without any break (with Opposite Party from 01/03/07). There is no claim from any family member since the inception of the policy. Mr. Mukund Jadia (Insured), the father of the Complainant was insured under the policy and was admitted in Jaslok Hospital for D.J. Stenting removal. He was admitted on 27/10/07 and discharged on 08/11/07. The Opposite Party was informed on 05/11/07. Claim was submitted on 06/12/07 for Rs.2,35,254/-.
3) The Complainant has further stated that the claim was payable under the policy they held. The Complainant submitted the Mediclaim but the Opposite Party failed to make the payment of the said claim. The Complainant has therefore, filed this complaint and prayed for the relief that the amount of Rs.2,35,254/- be reimbursed to the Complainant alongwith interest and Rs.1,00,000/- towards the cost and time spent by the Complainant. Rs.2,00,000/- towards the cost & compensation for mental agony suffered by the Complainant etc.
4) The Complainant has attached the xerox copies of the following documents in support of his complaint –
a) Certificate of Protection for Health Hospitalization Mutual Scheme valid from 29/02/08 to 28/02/09, from 01/03/07 to
28/02/08.
b) Certificate of Insurance dtd.02/03/069 issued by National Insurance Company Ltd. Certificate No.06/D-0006..
c) Mediclaim Family Floater Policy issued by National Insurance Co. Ltd. valid from 01/03/05 to 28//02/06, 01/03/04 to
28/02/05, 01/03/03 to 28/02/04 with terms & conditions.
d) Letter dtd.05/11//07 from the Complainant to Opposite Party.
e) Letter dtd.11/03/08 from the Opposite Party to the Complainant.
f) Letter dtd.29/03/08 from the Complainant to the Opposite Party.
g) Letter dtd.23/04/08 from the Complainant to the Opposite Party.
h) Letter dtd.02/06/08 from Opposite Party to the Complainant.
i) Letter dtd.24/06/08 from the Complainant to the Opposite Party.
j) Receipt dtd.26/11/07 from the Opposite Party – Ketan Desai.
k) Receipt regarding medical expenses and medical papers of Jaslok Hospital.
5) The complaint was admitted and the Opposite Party was served with the notice. Opposite Party appeared before this Forum and submitted its written statement wherein it denied the claim of the Complainant and submitted that M/s. Rukmani Charitable Trust had entered into agreement with National Insurance Co. Ltd. in March, 2004. Annexure II to the agreement Plan A. Clause 5 mentions that “All the declared pre-existing diseases are covered subject to condition 5.1 and 5.2 as also exclusions mentioned above.
6) Opposite Party further stated that the original proposal and payments were received by the Rukmani Charitable Trust (RCT) and the business was transferred to Opposite Party, which is a mutual organization to suit the convenience to RCT. The Complainant did not object to conditions of transfer of cover to Opposite Party.
7) Opposite Party further stated that the Complainant has not joined the RTC and National Insurance Co. Ltd. as the parties to the complaint.
8) Opposite Party further averred that, the Complainant had proposed to insure the family consisting of himself, his wife, and his parents in the year 2006-2007 through RCT by a fresh proposal dtd.13/02/06 where pre-existing diseases were not declared. Based on this proposal, National Insurance Co. Ltd. issued certificate of Insurance. This policy was renewed without pre-existing diseases. All the policies before 2005-2006, were covering Mukundbhai and Jasumatiben Jadia only. In view of the fresh proposal, the policy was covering 4 persons. Insured cover was also raised from Rs.2 Lacs to 3 Lacs. The protection benefit cover issued by Opposite Party is only in 2nd year. The Opposite Party stated that the Complainant suppressed material fact of pre-existing disease in proposal form. Non disclosure of the fact, which is the basis of the contract of insurance, is tantamount to fraud.
9) The Opposite Party has further submitted that it is the “Mediclaim Family Floater Policy, meaning that the protection benefit shall be joint, thereby the protection amount declared in the schedule shall be for the whole family. In the event of any mishap or accident to any listed member of the family, he/she is entitled to receive benefit upto the maximum value for the beneficiary family. Therefore, the Complaint filed by Nitin Jadia for treatment taken by Mukund Jadia i.e. in Complaint No.146/08, should be dealt with jointly with Complaint No.147/08, being the case of identical nature. Complaint No.146/08 and 147/08 are included in the same Protection Benefit Note on Floater basis.
10) The Opposite Party has given the history of the insurance policies obtained by the family of the Complainant. The Opposite Party has stated that, “it appears that, for the year 2000-01, the sum insured was increased to Rs.1,25,000/-. For the year 2004-2005 the sum insured was again increased to Rs.2,00,000/-. This policy was obtained from New India Assurance Co. Ltd. In the year 2005-2006, the standard cover was obtained from National Insurance Co. Ltd.
11) It is also averred by the Opposite Party that the Complainant has not declared any pre-existing disease. The sum insured was 3 Lacs in 2006-07. The same policy was placed with the Opposite Party and protection benefit value was also 3 Lacs, covering the Complainant, his wife, mother and father. The said policy was renewed for the year 2007-08 with Opposite Party under Mutual Plan by Rukmani Charitable Trust.
12) It is the contention of the Opposite Party that Mr. Mukund Jadia and his wife Jasumati Jadia had taken the treatment and submitted the claims under the same Protection Benefit Note but they had filed two different complaints. Therefore, both the complaints should be considered jointly. Smt. Jasumati Jadia had lodged a claim of Rs.1,30,322/- and Mr. Mukund Jadia had lodged a claim of Rs.2,35,254/-.
13) It is also the contention of the Opposite Party that under terms and conditions agreed by the shareholders, who get benefits of this cover, they must complete minimum period of 3 years with continuous premium with the Opposite Party. In this case, the business of insurance was taken over by the Opposite Party from the year 2006-2007 only. Therefore, the Complainants are not entitled to get the benefits.
14) It is also asserted by the Opposite Party that the Complainant is not the consumer as the Opposite Party is the self help group. The members are contributing to the self help group scheme. It is not a consideration and as such, the Complainant is not a consumer and the Opposite Party is not providing a service to the Complainant. At the same time the Opposite Party stated to the extent that, the service is rendered free of charge and under a contract to shareholders who are the members only. Personal service is excluded from the ambit of the definition of a consumer.
15) Finally the Opposite Party has stated that the Complainant is not entitled for the reliefs prayed by him and hence, the complaint deserves to be dismissed.
16) The Opposite Party has filed the xerox copies of Mediclaim proposal form, memorandum of understanding between the National Insurance Co. Ltd. and Rukmini Charitable Trust, Plan A, Medical Group Insurance Policy Devdoot, Hospitalization Family Floater cover terms and conditions (Annexure I), Certificate of Insurance dtd.02/03/06 valid from 01/03/06 to 28/02/07, Chart submitted to the Opposite Party regarding members of Rukmani Charitable Trust and particulars of their policy, Memorandum and Articles of Association of the Opposite Party, Health Hospitalization Mutual Scheme Family Floater cover without maternity benefit & domiciliary Hospitalization (Issued by Opposite Party).
17) The Complainant has filed the written argument. The representative of the Complainant has prayed that the said written argument be treated as oral argument. The Opposite Party has not filed its written argument. We perused the complaint, written argument, and document attached to the complaint. We also perused the written statement of the Opposite Party and documents attached to it. Our findings are as follows –
18) The Complainant had taken Mediclaim policies since 1999. Initially Mediclaim policy was taken from New India Assurance Co. Ltd. and the insured persons, were Mr. Mukund Jadia and his wife Smt. Jasumati Jadia. In the year 2005-06 standard cover of insurance was obtained from National Insurance Company Ltd. This insurance business was taken over by the Opposite Party in the year 2006-07 on the same terms and conditions as those were between National Insurance Co. and Rukmani Charitable Trust.
19) Before going to the admissibility of this medical insurance claim, it should be clarified first that there is only one certificate of Protection for Health Hospitalization Mutual Scheme.Protection Note No.MH1M-436, Renewal Protection Note No.8500000520 Renewal No. of years - 6. This protection note covers 1) Mr. Nitin Mukund Jadia, 2) Saritaben N. Jadia, 3) Mukundbhai Jadia, 4) Jasumati M. Jadia. The protection value is Rs.3,00,000/- and validity is from 01/03/07 to 28/02/08.
During this validity of this Protection Note two family members i.e. Mukund Jadia & Jasumati Jadia were hospitalized and incurred medical expenses amounting to Rs.2,35,254/- and Rs.1,30,322/- respectively. The total expenses being Rs.3,65,576/-. This amount of Rs.3,65,576/- exceeds the protection value of Rs.3,00,000/-. As per the Protection Note, the Insured persons are collectively entitled to the maximum of sum of protection value i.e. Rs.3,00,000/- only. The Complainants in Compliant No.146/08 and 147/08 should have filed one compliant jointly. Since they have filed two separate cases and they incurred the medical expenses Rs.2,35,254/- and Rs.1,30,322/- respectively, these amounts can be reimbursed proportionately subject to maximum amount of Rs.3,00,000/- only.
20) During the validity of the above said Protection Note obtained from the Opposite Party the beneficiary under this protection note was hospitalized in Jaslok Hospital from 27/10/07 to 08/11//07 for cancer and filed the Mediclaim of Rs.2,35,254/- on 06/12/07 alongwith the required documents. However, the Opposite Party repudiated the claim of the Complainant vide its letter dtd.12/11/07 on the ground stating that, “as per condition of policy, the cancer is covered only after 3rd year in the above case due to change of contract the continuity is not granted, the policy is not covered for three years in view of above the claim is not payable.” Apart from the grammatical mistakes and use of English language used in the said letter we understood that the claim was rejected because the disease – cancer, is covered only after 3 years as per the condition of policy. It is on record that the insured has obtained the protection cover (note) from Opposite Party in the year 2006-07. Therefore, it is the contention of the Opposite Party that the policy was a new policy taken in the year 2006-07. Therefore, Complainant has not completed 3 consecutive years and hence, claim is not payable as per the Opposite Party. But the Opposite Party has wrongly interpreted the terms and conditions of the policy. The Opposite Party has forgotten the fact that the insured persons were obtaining the Mediclaim policy since 1999. The Opposite Party itself has written a letter dtd.16/10/06 addressed to the Rukmani Charitable Trust stating that “we are agreeable to insure all your existing and new members under our protection plan and grant them continuity benefit from their previous and existing insurance policies, treating as per our members, the number of years, policies they were holding. As per the clause of protection note they will be given credit of continuous renewal with us and will be entitled to claim benefits accordingly.” The Complainant is a member of Rukmani Charitable Trust. Rukmani Charitable Trust has been obtaining the policies for their members since 1999. The insurance business was taken over by the Opposite Party from National Insurance Company on the same conditions. Before that it has obtained insurance policies for their members including Mukundbhai Jadia, the father of the Complainant from New India Assurance Co. Still, the Opposite Party repudiates the claim on the ground that the disease is covered only after 3rd year. Thus, the repudiation of the Opposite Party on the above ground is not a valid ground.
21) It is also the contention of the Opposite Party that the Complainant suppressed material fact of pre-existing disease in proposal form. This is also a false averment made by the Opposite Party to mislead the Forum. We carefully scrutinized the papers but it is not seen that the Complainant had suppressed the fact of pre-existing disease. It is seen from the papers that the cancer was detected in the year 2007 only and the patient was operated in the same year. There is no question of suppression this disease in the proposal form.
22) It is the allegation of the Opposite Party as mentioned in para 9 of its written statement that the Complainant has not declared the pre-existing disease and as per terms of contract only declared pre-existing diseases were covered. This is really an absurd interpretation of the terms and conditions of the policy by the Opposite Party. In this respect we perused the terms and conditions of the policy document submitted by the Opposite Party i.e. – Annexure I – Mediclaim Group Insurance Policy wherein, it is stated that subject to the terms and conditions, exclusions and definitions contained herein or endorsed etc. the Company undertakes that if during the period stated in the schedule or during the continuance of this policy, by renewal any insured person shall contract any disease or suffer from any illness or sustain any injury through accident, and if such disease shall require any such insured person upon the advise of a duly qualified physician/medical practitioner, or duly qualified surgeon to incur medical/surgical expenses (i) at any nursing home, Hospital in India as herein defined as an impatient, the Company will pay to the insured person, the amount of such expenses as reasonably and necessarily incurred in respect thereof by or on behalf of such insured person by not exceeding in any one period of insurance the amount as stated in schedule. In view of the above provision, the Company is liable for any disease suffered by the insured.
23) In addition to the above, it is also provided in the condition that, the Company is also liable for pre-existing disease as per the agreement between the Rukmani Charitable Trust and the National Insurance Company. Clause A iii) states. “It would be permissible for existing Mediclaim Policy holders who become members/donors for TRCT to avail for pre-existing illness where for the purpose of deductible their previous Mediclaim history can be recognized. If such people have held claim free continuous health insurance and had existed, they may take advantage of cover for pre-existing illness on payment of additional premium at 10 % of premium otherwise payable by them.” This provision can not be construed as the diseases which are not pre-existing are not covered under the policy. On the contrary these conditions clearly state that it covered all the diseases which are not pre-existing and even pre-existing disease with additional payment of premium @ 10 %.Thus, the Opposite Party has misconstrued the provisions of agreement as well as the terms of their own policy for their selfish motive to reject the payable Mediclaim of the Complainant.
24) Therefore, we do not have any doubt to conclude that the Opposite Party has repudiated the legitimate Mediclaim of the complainant on a sheer invalid ground and there is deficiency in service on the part of the Opposite Party. Not only that the Opposite Party is liable for heavy compensation to be paid to the Complainant as they had to run from the pillars to post to get their legitimate dues and the mental agony and physical harassment faced by the old insured person. It will also be appropriate to award the cost of this complaint to the Complainant.
25) As discussed in para 19 earlier, proportionate reimbursement for expenses of Rs.2,35,254/- incurred by Shri. Mukundbhai Jadia are equal to Rs.1,93,055/-. This amounts to be reimbursed to the Complainant. Hence, we pass the order as follows -
O R D E R
i. Complaint No.146/2008 is partly allowed.
ii The Opposite Party is directed to pay Rs.1,93,055/- (Rs. One Lac Ninety Three Thousand Fifty Five Only) to the
Complainant with interest @ 10 % p.a. on this amount from 12/11/2007 till the payment of entire amount.
iii.Opposite Party is directed to pay to the Complainant, the compensation of Rs.25,000/- (Rs. Twenty Five
Thousand Only) for mental agony, physical harassment caused to the Complainant and his father, the Insured.
iv.Opposite Party is directed to pay Rs.5,000/-(Rs. Five Thousand Only) to the Complainant towards the cost of
this complaint.
v.Opposite Party is directed to comply with the above order within 30 days from the receipt of this order.
vi.Certified copies of this order be furnished to the parties.
