| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA C.C. No. 40 of 05-02-2018 Decided on : 27-08-2019 Jagdish Chander, aged about 62 years S/o Sh. Chunni Lal R/o H. No. 14821-A, Street No. 7, Adarsh Nagar, Goniana Road, Bathinda 151 001. …...Complainant Versus Bajaj Allianz General Insurance Company Limited, SCO 146-147, 6th Floor, Feroze Gandhi market, Ludhiana 141 001, through its Branch Manager .......Opposite party
Complaint under Section 12 of the Consumer Protection Act, 1986. Quorum : Sh. M.P.Singh Pahwa, President Smt. Manisha Member Present : For the complainant : Sh. Naresh Garg, Advocate. For the opposite party : Sh. Vinod Garg, Advocate. O R D E R M. P. Singh Pahwa, President Jagdish Chander, complainant (here-in-after referred to as 'complainant') has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against Bajaj Allianz General Insurance Co. Ltd., (here-in-after referred to as 'opposite party'). Briefly stated, the case of the complainant is that he purchased one Medi Claim Policy i.e. Health Guard Family Floater Option Policy from the opposite party. The opposite party issued only one Health & Wellness Card vide Customer ID 56390102 w.e.f. 26-03-2017 to 25-03-2018 in the name of complainant with cashless facility for the sum insured of Rs. 2,00,000/-. No policy or terms & conditions were ever supplied by the opposite party. The complainant has been purchasing the policy from the last four years i.e. 2014-15 onwards. The opposite party always issued only one card against the insurance policy. It is alleged that at the time of first insurance policy, the opposite party in the year 2014, duly got medical check-up of the insured complainant. The complainant also submitted proposal form with complete medical health details and duly disclosed his medical condition regarding diabetic. The opposite party issued policy after thorough check up by their empanelled doctor. The insurance is cashless. The opposite party assured the complainant that in case of any emergency, the claim can be lodged anywhere in India with the nearest office of the opposite party and complainant can be got admitted in any hospital in India. The opposite party also assured that this is cashless insurance and the opposite party will pay the entire claim upto the sum assured i.e. Rs.2,00,000/- directly to the hospital. As per complainant, on 31-07-2017, he was admitted with Adesh Institute of Medical Science & Research, Bathinda for the first time with chest pain and anxiety. He has no major problem of heart or any major disease. He never undergone any hospitalization in the past history for heart. He has only diabetes. It is not a major disease. The family of the complainant immediately lodged claim with opposite party. The opposite party did not pay any payment under cashless insurance scheme. Finally, the complainant spent Rs.1,20,020/- from his own pocket. Thereafter, complainant submitted all the necessary papers with photocopies of complete medical file and original medical bills with the opposite party. The complainant received letter dated 11-09-2017 vide which the opposite party closed his claim file on illegal and flimsy ground with exclusion C-l of pre-existing disease but no such exclusion clause was supplied to the complainant. It is alleged that No Claim Letter dated 11-9-2017 is illegal. Due to non payment of Rs. 1,20,020/-, the complainant is suffering mental agony and pain etc., For these sufferings, he has claimed compensation to the tune of Rs.50,000/-. He has also claimed amount of Rs. 1,20,020/- with interest @18% P.A. from the date of admission and Rs.25,000/- as cost of litigation. It is relevant to mention that in support of his contentions, complainant has quoted some case law, reference of which is not considered necessary at this stage for the sake of brevity. Upon notice, the opposite party appeared through counsel and contested the complaint by filing written reply. In written reply, the opposite party raised legal objections that intricate questions of law and facts are involved which require voluminous documents and evidence. It is not possible in summary procedure under the 'Act'. The appropriate remedy, if any, lies only in the civil court. That the complainant has concealed material facts and documents from this Forum as well as the opposite party. The verification of claim documents revealed that the complainant was hospitalized for the treatment of Diabetes Mellitus, Coronary Artery Disease- Acute Inferior Wall Myocardial Infarction. The complainant is known to be suffering from Diabetes Mellitus which is pre-existing to the policy. The policy does not extend coverage for any expenses incurred on the treatment of illness which is pre-existing to the policy as per condition mentioned in the policy schedule. The exclusion shall cease to apply from 5th year. The policy of the complainant was in 4th year and continuous period of 48 months have not expired. The disease suffered by complainant is a known complication of DM which is pre- existing to the policy.The further legal objections are that the complainant is not consumer of the opposite party. He has no locus standi or cause of action to file the complaint and lastly that the complaint is not maintainable in the present form. On merits, it is admitted that complainant purchased insurance policy, but it denied that only health and wellness card was supplied or that no policy or terms and conditions were supplied. It is asserted that policy with terms and conditions were duly supplied to the complainant. The insurance policy was strictly subject to terms and conditions mentioned in the policy. In further reply, the opposite party has reiterated its stand as taken in preliminary objections and detailed above. In the end, the opposite party prayed for dismissal of complaint. In support of his complaint, the complainant has tendered into evidence his affidavit dated 10-4-2018 (Ex. C-1), photocopy of health cards (Ex. C-2 to Ex. C-5), photocopy of report and medical record (Ex. C-6), photocopy of report and medical record (Ex. C-6), photocopy of payment receipts (Ex. C-7 to Ex. C-9), photocopy of repudiation letter (Ex. C-10) and closed evidence. In order to rebut this evidence, the opposite party has tendered into evidence affidavit dated 6-6-2018 of Navjeet Singh (Ex. OP-1/1), photocopy of discharge summary (Ex. OP-1/2), photocopy of repudiation letter (Ex. OP-1/3), photocopy of policy schedule (Ex. OP-1/4), photocopy of claim form (Ex. OP-1/5), affidavit dated 25-6-2018 of Dr. Rohan Ghansham Mahajan (Ex. OP-1/6), photocopy of tracking details (Ex. OP-1/7) and closed the evidence. Both the parties have also submitted written arguments. We have heard learned counsel for the parties and gone through the record. The learned counsel for the parties have reiterated their version as pleaded in their respective pleadings. The learned counsel for the complainant has also relied upon the following case law :- a) 2018 (2) CPJ 279 case titled New India Assurance Ltd., Vs. Surender Kumar Nanda b) First Appeal No. 1717/2003 decided on 27-5-2009 case titled Gurlal Singh Vs. Oriental Insurance Co. Ltd., c) First Appeal No. 1579/2004 decided on 5-3-2010 titled Oriental Insurance Company Ltd., Vs. Puneet Pasricha d) First Appeal No. 1090 of 2014 case titled Ramesh Kanodia Vs. Oriental Insurance Company Limited. e) 2010 (1) CPJ 189 case titled New India Assurance Co. Ltd., Vs. Arun Mangla f) 2005 (3) CPR 138 case titled Oriental Insurance Co. Ltd., Vs. Neeraj Rani g) 2008 (4) CPJ 89 (NC) titled LIC Vs. Kunari Devi h) 2007 (4) CPJ 319 case titled LIC Vs. Darshna Devi i) 2005 (4) CPJ 599 case titled LIC Vs. Kusum Lata j) 2008 (4) CPJ 19 (NC) case titled Santosh Kanwar Vs. LIC k) 2008 (2) CPJ 300 (NC) case titled LIC Vs. Chander Kanta l) 2008 (3) CPJ 120 case titled LIC Vs. Sarabjit Kaur m) FAO No. 566 of 2008 decided on 15-11-2012 case titled LIC Vs. Raj Rani n) 2008 (3) CPJ 279 case titled LIC Vs. Satinder Kaur o) 2008 (3) CPJ 296 case titled LIC Vs,. Santosh Devi p) 2009 (1) CPJ 424 case titled LIC Vs. Shakuntla Devi
q) 2009 (1) CPJ 402 case titled LIC Vs. Kastura Ram r) 2008 (3) CPJ 423 case titled Pradeep Kumar Vs. NIC s) 2007 (3) CPJ 336 case titled Aviva Life Insurance Co. Vs. T Umawathi t) 2005 (2) CPJ 78 (NC) case titled LIC Vs. Joginder Kaur u) 2005 (2) CPJ 32 (NC) case titled Surinder Kaur Vs. LIC of India v) 2004 (1) CPJ 91 (NC) case titled LIC Vs. Promila Malhotra w) 1997 (2) CPJ 1 (NC) case titled New India Assurance Co. Vs. PP Khanna x) 2005 (2) CPJ 662 case titled LIC Vs. Kala Venkat Rao y) 2005 (2) CPJ 449 case titled LIC Vs. Belmati Hira z) 2005 (2) CPJ 354 case titled LIC Vs. Harpreet Kaur aa) 2007 (2) CPJ 452 case titled LIC Vs. Sudha Jain
bb) RFA No. 610/2016 decided on 26-2-2018 case titled UIIC Vs. Jai Parkash Tayal cc) II (2019) CPJ 59 (Del.) case titled Virpal Nagar Vs. HDFC Standard Life Insurance Co. Ltd., The learned counsel for the opposite party has also cited :- (i) 2009 (4) CLT 313 case titled Vikram Greetch (I) Ltd., & Anr., Vs. New India Assurance Co. Ltd., (ii) 2009 (2) CLT 15 case titled Deokar Exports Pvt. Ltd., Vs. New India Assurance Company Ltd., (iii) 2016 (2) CPR 779 case titled Harjinder Kaur Dadiala Vs. National Insurance Co. Ltd., Ors. The admitted facts are that the complainant is availing insurance policy from the opposite party since 2014. It is also not disputed that complainant took treatment from Adesh Institute of Medical Science & Research, Bathinda w.e.f. from 31-7-2017 and spent Rs. 1,20,020/-. The opposite party has repudiated the claim vide letter dated 11-9-2017 (Ex. C-10). A perusal of this letter reveals that as per opposite party the complainant was hospitalised for Diabetes Mellitus Coronary Artery Disease – Acute Inferior Wall Myocardial Infarction. He is known to be suffering from Diabetes Mellitus which is pre-existing to the policy. The opposite party has treated the case of the complainant falling under 'exclusion clause'. Now it is to be seen whether the opposite party is justified to repudiate the claim on the ground mention in the repudiation letter. The complainant has placed on record Hospital Record (Ex. C-6). A perusal of Discharge Summary reveals that diagnosis was : Diabetes Mellitus CAD – Acute Inferior Wall MI CAG : TVD Procedure Performed Primary PTCA to RCA From this discharge summary, it is apparently clear that complainant was not treated for diabetes Mellitus. The procedure performed was PTCA to RCA. The opposite party has tried to justify the repudiation under Clause C-1. For the sake of convenience, this clause is reproduced as under :- “C – What we will not pay 1) Benefits will not be available for any Pre-existing condition, ailment or injury, until 48 months of continuous coverage have elapsed, after the date of inception of the first Health Guard policy with us. The above exclusion C1 shall cease to apply if you have maintained a Health Guard Policy with us for a continuous period of full 4 years without break from the date of your first Health Guard Policy with us. In case of enhancement of Sum Insured, this Exclusion shall apply afresh only to the extent of the amount by which the limit of indemnity has been increased (i.e. enhanced sum insured) if the policy is a renewal of Health Guard Policy without break in cover.” A perusal of above condition reveals that it is applicable only when the treatment is for any pre-existing condition, ailment or injury. At the cost of repetition, as per discharge summary the treatment was PTCA to RCA and not for diabetes mellitus. In the case of Virpal Nagar Vs. HDFC Standard life Insurance Co. Ltd., (supra), Hon'ble Delhi State Commission after noticing the observations of Hon'ble National Commission and Hon'ble Supreme Court in various judgements, concluded that :- “Unless and until a person is hospitalised or undergoes operation for a particular disease in near proximity of obtaining insurance policy or any disease for which he has never been hospitalised or undergone operation is not a pre-existing disease.” It was also observed :- “Malaise of hypertension, diabetes, occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in or out of the house and are controllable on day-to-day basis by standard medication and cannot be used as concealment of pre-existing disease for repudiation of the insurance claim unless an insured in the near proximity of taking of the policy is hospitalised or operated upon for treatment of these disease or any other disease.” In this case admittedly, the complainant is availing insurance policy from the year 2014. There is nothing on record to prove that in near proximity of obtaining insurance policy i.e. year 2014, complainant was hospitalised or took any treatment for diabetes mellitus. Therefore, keeping in view the above observation also, the conclusion is that the repudiation on the ground of pre-existing disease of diabetes mellitus, is not sustainable and it amounts to deficiency in service on the part of the opposite party. As such, the complainant is entitled to claim amount of Rs. 1,20,020/-. He is also entitled to interest on this amount as compensation for harassment and mental agony caused to him on account of non-payment of claim. In view of what has been discussed above, this complaint is partly accepted against opposite party with cost of Rs. 10,000/-. The opposite party is directed to pay to complainant claim amount of Rs. 1,20,020/- with interest @ 9% p.a. from 11-9-2017 (date of repudiation) till realization. The compliance of this order be made within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record. Announced : 27-08-2019 (M.P.Singh Pahwa ) President (Manisha ) Member
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