Punjab

Ludhiana

CC/15/625

Harcharan Kanwal Singh - Complainant(s)

Versus

M/s Medi Assist India TPA Pvt.Ltd. - Opp.Party(s)

H.P.Sharma Adv.

24 Oct 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. : 625 of 16.10.2015

Date of Decision       :   24.10.2019 

 

Harcharan Kanwal Singh Toor son of Sh.Ranjodh Singh, Toor Niwas, Johal Market, G.T.B.Nagar, Mandi Mullanpur, District Ludhiana.

….. Complainant

Versus

1.M/s Medi Assist India TPA Pvt. Ltd, Regd. Office: Shri Krishna Arcade, #47.1, 9^th Cross, 1^st Main Road, Sarakki Industrial Layout, 3^rd Phase, J.P.Nagar, Bangalore-560078.

2.The Oriental Insurance Company Limited, A-25/27, Asaf Ali Road, Delhi-110002, through its General Manager.

3.The Oriental Insurance Company Limited, 233902, CBO IV, Ludhiana, Vishwakarma Chowk, G.T.Road, Miller Ganj, Ludhiana, through its Manager.

4.Oriental Bank of Commerce, Mandi Mullanpur, District Ludhiana, through its Branch Manager.

…Opposite parties

 

          (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MS.JYOTSNA THATAI, MEMBER

COUNSEL FOR THE PARTIES:

For complainant              :         Sh.S.P.Sharma, Advocate

For OP1                         :         Ex-parte

For OP2 and OP3           :         Sh.Rajeev Abhi, Advocate

For OP4                         :         Sh.R.K.Chauhan, Advocate

 

PER G.K DHIR, PRESIDENT 

1.                          Complainant along with his wife Smt.Amritpal Kaur Toor holds two joint accounts No.01892010020220 and 01892010022970 with Op4 for the last many years. During one visit to Op4 bank, complainant got knowledge that account holders of the bank are entitled for medi-claim policies from  OP1 to     OP3 at a concessional rate. Believing those representations as true, complainant along with his wife obtained policy No.233902/48/2014/430 for a sum of Rs.3 lac by paying the premium of Rs.4620/-, which was deducted from the bank account of complainant on 3.5.2013. Policy was issued in the joint name of complainant and his wife by OP2. Intimation for the renewal of the policy sent by Ops was received by the complainant on 5.5.2014 and thereafter, complainant immediately approached OP4 and renewed the policy by paying Rs.4620/- from his account. This policy is under dispute because the same alleged to have commenced from 9.5.2014, despite the fact that payment was made to Op4, the agent of insurer on 5.5.2014. It is claimed that there is no break in the policy. 03.05.2014 was Saturday, due to which, there was half day of the bank, but 04.05.2014 was Sunday, due to which, OP4 bank was closed on that date. Even offices of OP2 and OP3 were also closed on 3^rd and 4^thMay, 2014. Refusal letter of Ops for cashless claim was issued on ground that policy was the first policy. It is claimed that Ops did not bother to check their previous records and without any cogent reason or legal right, they declined the cashless treatment request. On 13.01.2015, the complainant suffered hypertension attack and blood pressure was detected in the range of 125 to 195 mnhg for the first time in his life. Complainant visited Deol Hospital, Mandi Mullanpur, where he was treated. There was problem in the right arm of complainant due to mild paralytic stroke  on 13.01.2015 and as such, complainant consulted Dr.Gagandeep Singh, Professor and Head of Neurology Department, D.M.C.Hospital, Ludhiana on 15.01.2015 in his private clinic. Complainant went to ACE Diagnostics Centre, Ferozepur Road, Ludhiana on 15.01.2015, where MRI, ECG and Carotid and Vertebral Arteries Doppler tests were done, in which, blockage of 74.5% on the left side of the neck and 50% on the right side of the neck was found. Dr.Gagandeep Singh on 17.01.2015 further advised for CT Angiography from the hospital and thereafter, complainant consulted Dr.Sudhir Saxena of Max Super Speciality Hospital, Mohali on 24.01.2015. There the complainant was advised for 2D color and Doppler echocardiography and TMT test on 24.01.2015. After TM and Echo tests, no problem was found. Complainant was given treatment for controlling the diabetes and hypertension and ultimately on 9.3.2015, he was admitted in Max Hospital, Mohali, where the claim for cashless request was lodged. On 9.3.2015, Carotid Angiography was done and the left Carotid Artery was found to have approximately 80% calcified Lesion. On 10.3.2015, stent to left ICA was done in the hospital and complainant was discharged on 11.03.2015. Complainant still getting follow up treatment and copies of prescription slips dated 14.03.2015, 14.04.2015, 14.05.2015 and 10.06.2015 are produced with the complaint. Complainant spent following pre-treatment expenses:-

i)Rs.5200/- for Ace Diagnostics on 15.01.2015

ii) Rs.1617/- in Max Hospital on 24.01.2015

iii) Rs.450/- in Max Hospital on 29.01.2015

iv) Rs.450/- in Max Hospital on 17.02.2015.

So, total Rs.7717/- were spent for pre-treatment. A sum of Rs.16,000/- was deposited with the hospital on 9.3.2015, but Rs.1,50,000/- was deposited on 10.03.2015. Total expenses incurred during period from 9.3.2015 to 11.03.2015    in the hospital were of amount of Rs.1,51,449.45P. Despite service of legal notice on OPs for calling upon them to reimburse the medical expenses of hospitalization, the claim has been repudiated on flimsy ground that policy is effective w.e.f. 09.05.2014 and his treatment being got in the first year of the policy not permissible in view of clause 4.2 (xvii) and (xviii). Complainant got treatment for coronary angiography from Max Super Speciality Hospital, Mohali and following amounts were spent:-

i)Carotid Angiography                                           Rs.16,000/-

ii)Carotid Angio-plasty                                           Rs.70,000/-

iii)Laboratory Services                                           Rs.800/-

iv)Medical consumables                                         Rs.63,186.45P

v)Other charges                                                     Rs.1150/-

vi)Radiology Services                                            Rs.313/-

vii) Room Rent                                                      Rs.00

                                                                   _______________

                                      Grand Total           Rs.1,51,449.45P

viii) Pre-Hospitalization expenses                  Rs.7717/-

ix)Post hospitalization expenses                    Rs.1980/-

                                                          ____________________

                             Total                               Rs.1,61,146.45P

Treatment got from Max Super Speciality Hospital, Mohali does not pertain to the treatment of diabetic mellitus or hypertension and as such, repudiation of claim is against the terms and conditions of the policy. Complainant claims that he is entitled for refund of above said amount of Rs.7717/- and Rs.1,51,449.45P along with compensation for mental agony and harassment of Rs.5 lac, but litigation expenses of Rs.50,000/-.

2.                OP1 is ex-parte in this case.

3.                In joint written reply filed by OP2 and OP3, it is pleaded interalia as if complaint is barred in view of Section 26 of the Consumer Protection Act and repudiation of claim as well as cashless request was done as per terms and conditions of the policy, due to which, there is no deficiency in service or negligence on the part of Ops. Besides, it is claimed that in view of involvement of intricate question of law and facts, elaborate evidence required and as such matter can be got decided from Civil Court of competent jurisdiction only. Further, it is claimed that complainant estopped by his act and conduct from filing the complaint because he has not approached this Forum with clean hands because of suppression of material facts. First insurance policy purchased by the complainant was having the validity for period from 3.5.2013 to 2.5.2014 and fresh policy was obtained after six days of its lapse with validity for period from 9.5.2014 to 8.5.2015 and as such in view of exclusionary clause 4.2 of the policy, complainant not entitled to reimbursement. It is claimed that after lodging of claim by complainant, same was duly registered, entertained and processed. Op4 obtained mediclaim insurance policy from Oriental Insurance Company because the said policy available to any account holder of Oriental Bank of Commerce. Insurance policy is a contract in itself and parties are bound by the terms and conditions of the policy. Expenses for treatment of ailments of diabetes and hypertension for the specified period of two years are not reimbursable in view of pre-existing ailment condition as stipulated by clauses 4.2 (xvii) and 4.2(xviii) of terms and conditions of the policy. If the continuity of renewal is not maintained with the insurer, then subsequent cover will be treated as fresh policy and clauses 4.1 and 4.3 will apply unless agreed by the insurer and suitable endorsement is made on the policy. If the sum insured is enhanced subsequent to the inception of the policy, then the exclusion clauses 4.1 and 4.2 will apply afresh for the enhanced portion of the sum insured for the purpose of this Section. Clause 5.1 of the terms and conditions of the policy provides that policy schedule, proposal form, prospectus and declaration given by the insured will constitute the complete contract of insurance. Any alteration that may be made by the insurer shall only be evidenced by a duly signed and sealed endorsement on the policy. Complainant being the account holder of OP4 became the member/beneficiary under the Oriental Bank mediclaim policy bearing No.233902/148/2014/430 having validity for period from 3.5.2013 to 2.5.2014 for insured sum of Rs.3 lac along with his wife namely Mrs.Amritpal Kaur on the basis of submitted proposal form dated 30.4.2013. Aforesaid policy expired on 2.5.2014. Complainant did not get the policy renewed from the date of expiry. Rather, complainant after gap of six days again obtained Oriental Bank Mediclaim policy bearing No.233902/48/2015/518 having validity for period from 9.5.2014 to 8.5.2015 along with his wife for insured sum of Rs.3 lac. Said policy was issued on the basis of fresh proposal form submitted by the complainant on 5.5.2014. So, this purchased policy is not renewal of previous policy which expired on 2.5.2014. As the later mentioned policy considered as first year policy after gap and as such lodged claim regarding the treatment in Max Super Speciality Hospital, Mohali for the period from 9.3.2015 to 11.3.2015 was rightly declined. That treatment was got on diagnosis of left ICA stenosis (Haemodynamically significant), s/p, PTCA with stent left ICA (10.03.2015), HCV Reactive on screening, Diabetes mellitus Type 2 (recently diagnosed), hypertension. Though Max Super Speciality Hospital, Mohali sent cashless request to OP1 on 10.03.2015, but the same was declined vide email dated 10.03.2015 sent to Max Super Speciality Hospital, Mohali. As the policy was under first year running with date of issue as 9.5.2014 and case of complainant was a known case of hypertension and diabetes  and as such, claim rightly repudiated by               invoking clause 4.2. After denial of cashless request, complainant submitted claim for reimbursement of incurred medical expenses, but the same again repudiated after scrutinizing the claim documents, report of TPA and hospital record by finding that inception of the policy is from 9.5.2014 because of break in continuity of policy. Even the discharge summary clearly indicates that patient is recently diagnosed with case of hypertension and diabetes since from one month. As the current ailment (CAD) is related to diabetes and hypertension, which holds a waiting period of two years and that is why due to applicability of clause 4.2 of policy, the claim of complainant was rightly repudiated vide letter dated 26.8.2015 sent by Op1 to insured and on the basis of same, after application of mind, the claim of complainant was repudiated as ‘No Claim’ vide letter dated 31.8.2015 on the above referred ground. Other averments of the complaint denied for want of knowledge or otherwise one by one each.

4.                In written statement filed by Op4, it is claimed that complaint against Op4 is not maintainable because there is no deficiency in service on its part; complaint being misconceived and groundless is filed by concealing the material facts and this Forum has no jurisdiction to entertain and try the complaint. Admittedly, complainant and his wife holds account jointly with answering OP and premium of Rs.4620/- was deducted by OP bank from the account of complainant on 3.5.2013. That premium was paid by the complainant through cheque No.941233 of Rs.4620/-. Said cheque was cleared on 7.5.2013. Op4 was not under obligation to intimate the complainant for renewal of policy and as such no intimation was given by the answering OP to complainant. Complainant approached OP bank on 5.5.2014 with request to issue demand draft of Rs.4620/- in favour of Oriental Insurance Company for payment of premium. Demand draft of Rs.4620/- was submitted with Oriental Insurance Company on the same day. All other averments of complaint denied by claiming that complainant is not entitled to receive any amount from OP4. Contract of insurance was between the complainant and Op2 and OP3 and as such complaint against Op4 is not maintainable.

5.       Complainant to prove his case tendered in evidence his affidavit Ex.CA along with affidavit Ex.CA/2 of Sh.Sudhir Saxena, Director and Head of Department of Cardiology, Max Super Speciality Hospital, Mohali and documents Ex.A1 to Ex.A33including Ex.4A, Ex.12A, Ex.26A to Ex.C26D and Ex.28A and thereafter,counsel for complainant closed the evidence.

6.                On the other hand, Counsel for Op2 and OP3 tendered in evidence affidavits Ex.RA of Sh.A.P.Singh, Divisional Manager of Oriental Insurance Company Limited and Ex.RB of Dr.Jeetender Aggarwal of M/s Medi Assist India TPA Pvt Ltd along with documents Ex.R1 toEx.23 and then closed the evidence.

7.                Counsel for OP4 tendered in evidence affidavit Ex.RA4 of Sh.Ram Lal, Branch Manager of OP4 bank along with documents Ex.R1/4 to Ex.R3/4 and thereafter, closed the evidence.

8.                          Written arguments not submitted by any of the parties. Oral arguments alone addressed by counsel for complainant, counsel for OP1 and Op2 as well as counsel for OP4 and those were heard and records gone through minutely. 

9.                From the pleadings of the parties and copies of passbook Ex.A2, Ex.A3 or Ex.R1/4, it is made out that complainant along with his wife holds account with Op4 bank. Oriental Bank mediclaim policy for period from 3.5.2013 to 2.5.2014 was purchased by the complainant through Op4 branch as revealed by copy of cover note Ex.A4. Ex.A4/A is cover note of next policy showing as if same    has validity for period from 9.5.2014 to 8.5.2015. Ex.R19 is the same thing as is Ex.A4.

10.               Bone of contention in this case is as to whether policy schedule Ex.A4/A is the first policy, because of non-renewal of earlier policy purchased through policy schedule Ex.A4. There is no dispute regarding the fact that earlier policy purchased by the complainant for self and for his wife was having the validity for period w.e.f. 3.5.2013 to midnight of 2.5.2014 and after expiry of that policy, renewal notice Ex.A5 was sent by Oriental Insurance Company to complainant for calling upon him to get the previous policy renewed on or before 2.5.2014, but despite that same has not been got renewed until 9.5.2014 as disclosed by contents of Ex.A4/A and as such it is vehemently contended by Sh.Rajeev Abhi, Advocate representing Op2 and Op3 that this policy to be taken as new policy and not in continuity of old one. However, it is the case of complainant that he got this renewal intimation Ex.A5 on 5.5.2014, but no document produced to show the receipt of this notice Ex.A5 by the complainant on 5.5.2014. Rather, letter Ex.A5 is dated 25.3.2014 and it bears stamp of mail business unit of 19.4.2014. Exact date of delivery of notice Ex.A5 not disclosed by anyone and    nor any material in that respect produced on record. If date of dispatch of Ex.A5 is 19.4.2014 and date of its issue is 25.3.2014, then certainly it is made out that this notice Ex.A5 was not despatched at once on 25.3.2014 or near about date at all. So, claim of complainant cannot be disbelieved that this notice may have been received by complainant on 5.5.2014 as mentioned in para no.4 of complainant and supporting affidavit. However, date of receipt of Ex.A5 is not much material.

11.               Perusal of clause 5.1 at page No.10 of Ex.R22 reveals that the policy, schedule, proposal form, prospectus and declaration given by the insured shall constitute the complete contract of insurance and only insurer may alter the terms and conditions of the policy/contract. It is the alternation made by the insurer which will be evidenced by a duly signed and sealed endorsement on the policy. In view of this clause 5.1 of Ex.R22 and in view of endorsement on policy schedule Ex.A4/A, it has to be held that as per terms and conditions of the policy, date of commencement of policy is 9.5.2014. However, the earlier policy lapsed on 2.5.2014 and as such certainly there was gap of six days in getting the policy renewed and that is why policy Ex.A4/A taken as first policy by the insurer by not mentioning the date of previous policy number on this schedule.

12.               It is also the case of complainant that as 3.5.2014 and 4.5.2014 were holidays and that is why, he contacted Op4 branch for paying the premium of Rs.4620/- through demand draft which was prepared by Op4. If these assertions on its face value taken into consideration, then this means that complainant himself did not bother to get the policy renewed before its lapse on 2.5.2014. As the purchased policy lapsed by midnight of the last mentioned date and as such this policy virtually lapsed on midnight of 2.5.2014. So, in view of contact by the complainant to Ops on 5.5.2014 as per his own case, there is no escape from conclusion that complainant remained at fault by not getting the policy renewed, despite the fact that as per clause 7 of Ex.R22 at page no.15, it is not the responsibility of insurer to issue notice for calling upon insured to get the policy renewed.

13.               Clause 7 at page no.15 of Ex.R22 read as under:-

RENEWAL OF POLICY:-

a)The company shall not be responsible or liable for non-renewal of policy due to non-receipt or delayed receipt (i.e. after the due date) of the proposal form or of the medical practitioners report wherever required or due to any other reason whatsoever.

b)Notwithstanding this, however, the decision to accept or reject for coverage any person upon renewal of this insurance shall reset solely with the company. The company may at its discretion revise the premium rates and /or the terms and condition of the policy every year upon renewal thereof. Renewal of this policy is not automatic; premium due must be paid by the proposer to the company before the due date.

c)The company normally sends renewal notice but not sending it will not tantamount to deficiency in service.

14.               By having look on above clause 7 of Ex.R22, it is made out that insurer  not liable or responsible for renewal of policy due to non-receipt or delayed receipt of proposal form etc., and moreover, if insurer does not send notice for renewal, then the same will not be a deficiency in service on its part. However, in this case, notice Ex.A5 has been sent by the insurer to the complainant and as such insurer remained vigilant in informing the complainant about lapse of policy on 2.5.2014. As per clause 7(b) of Ex.R22, the decision to accept or reject for coverage any person upon renewal of insurance rest on the insurer and renewal of policy is not automatic and as such it was essential for complainant to pay the premium in time. However, demand draft for payment of premium got prepared by the complainant on 5.5.2014 and even he submitted the proposal form Ex.R20 under his signatures on 5.5.2014 and as such, it is obvious that premium not paid in time i.e. before lapse of policy on 2.5.2014. That remains the fault on the part of complainant. The earlier proposal form Ex.R18 was submitted by the complainant on 30.04.2013, despite the fact that the earlier policy commenced w.e.f.3.5.2013 as disclosed by policy schedule Ex.A4. After  receiving the policy schedule Ex.A4,       complainant was bound to know that just on filling of proposal form alone or of issue of cheque alone, insurer not bound to issue the policy. As policy schedule is a part of contract along with proposal form and as such from the above referred documents, it is obvious that virtually the policy having the validity for period from 9.5.2014 to 8.5.2015 commenced w.e.f.9.5.2014 i.e. after lapse of six days of earlier policy.

15.               It is vehemently contended by counsel for the complainant that grace period of 15 days has to be provided by the insurer for getting the policy renewed as per circular issued by the Chairman of Insurance Regulatory and Development Authority on 31.03.2009 bearing No.52/15/IRDA/Health/SN/08-09 and as such, even if there may have been lapse of six days in renewal of policy, despite that on payment of premium in May 2014, the policy got in May 2014 to be treated as continuity of the first policy. So, it is claimed that the policy purchased through policy schedule Ex.A4/A to be taken as a continuous policy on renewal of earlier one. Even if para no.4 of this letter dated 31.3.2009 provides that all health insurance policies shall contain a clause that provides for a mechanism to condone delays in renewal for upto 15 days from the renewal due date, despite that in case such clause is not incorporated in the insurance policy schedule or in anyother document, then the same will not be enough to give benefit to the insured because it is well settled that terms and conditions of the contract are binding on the parties and nothing can be added or subtracted thereto by assigning different meaning than the one contemplated by the terms and condition of insurance. In holding this   view, we are fortified by law laid down in cases titled as IndSwift Limited vs. New India Assurance Co.Ltd. and others-IV(2012)CPJ-148(N.C.); Usha Sharma vs. New India Assurance Co.Ltd.-I(2012)CPJ-448(N.C.); United India Insurance Co.Ltd. vs. Harchand Rai Chandan Lal-IV(2004)CPJ-15(S.C.); Deokar Exports Pvt. Ltd. vs. New India Assurance Co.Ltd.-I(2009)CPJ-6(S.C.) and New India Assurance Co.Ltd vs. Panchsheel Jewellers-I(2013)CPJ-38(N.C.). So, it is not executive instructions of IRDA which are to prevail.             Rather the terms and conditions of insurance contract to prevail and as such, in view of above quoted clauses of Ex.R22, there is no escape from the conclusion that contents of policy schedule Ex.A4/A to govern the case in a matter of finding as to on which date purchased policy in May 2014 to start or to commence. Even as     per law laid down in case titled as Prakash Kulkarni vs. Bajaj Allianz Life Insurance Company Limited and others-II(2012)CPJ-98(Karnataka State Consumer Disputes Redressal Commission, Bangalore), it was held that if renewal of policy takes place within the grace period of 15 days, then renewal means automatic termination of policy at the expiry date. Further as per ratio of this case, insurance company not bound to give notice to the policy holder that policy is due for renewal. In this case also stress laid on proposition that parties are bound by the terms and conditions of the policy and as such it is obvious that insurer not bound to issue notice to the insured for renewal of policy and that policy to terminate on date of expiry mentioned in the policy schedule itself. Besides, as per ratio of case titled as Oriental Insurance Company Limited vs. K.Anandam-III(2007)CPJ-450(N.C.), if earlier policy lapsed due to   dishonouring of cheque issued by insured, then renewal after gap of 19 days will be considered as issue of fresh policy on deposit of cheque amount. The issued policy will be considered as fresh policy not issued in continuity of existing policy. Ratio of this case also fully applicable to the facts of the present case and as such in view of terms and conditions of the policy contained in Ex.R22 referred above, renewal of policy after gap of six days will not amount to automatic renewal of policy. Same is the proposition of law laid down in case titled as P.D.Mungee vs. New India Assurance Company Limited and others-III(2000)CPJ-45(Madhya Pradesh State Consumer Disputes Redressal Commission, Bhopal).

16.               Perusal of policy schedule Ex.R21 also shows that cheque was collected by the insurance company on 9.5.2014 and if that be the position, then in view of submission of proposal form Ex.R20 dated 5.5.2014 and payment of premium amount  on 9.5.2014, it is obvious that policy through schedule    Ex.A4/A freshly purchased by 9.5.2014, so same cannot be treated as continuity    of old policy due to gap of six days, more so when the decision of insurer to start policy Ex.A4/A w.e.f.9.5.2014 is binding in view of clause 7 of Ex.R22 read with clause 5.1 contained therein as referred above.

17.               OP4 bank got authorization from complainant through authorization voucher Ex.R2/4 for deducting premium amount from his account on 5.5.2014 and as such, it is obvious that complainant himself gave authorization to OP bank to deduct the premium amount from his account on 5.5.2014 and not before that. In view of written authorization given by the complainant through Ex.R2/4 on 5.5.2014, now complainant is estopped by his act and conduct from claiming that it was the duty of Op4 to remit the premium amount at its own, more so when Op4 is not the agent of insurer. In fact, OP4 is not the agent of insurer because the premium amount not to be deducted from the saving account of complainant by OP4 at its own or without consent and permission of complainant. That permission for deduction of premium amount given by the complainant through authorization voucher Ex.R2/4 under his signatures on 5.5.2014 and as such, OP4 bank could have collected the premium amount only on 5.5.2014 and not before that. So, fault lay with the complainant and not with Op4. As it is the case of complainant himself that he got prepared demand draft of Rs.4620/- from OP4 on 5.5.2014 and as such, complainant cannot take benefit of his own wrong in not getting the policy renewed prior to 2.5.2014 or on 2.5.2014 itself. If third and fourth were holidays due to Saturday and Sunday, then Complainant being an Advocate was bound to know about the same in advance and as such lapse on the part of complainant in not getting the policy renewed on or before 2.5.2014 is fault on the part of complainant and not of OP4. Certainly submission of counsel for OP4 has force that there is no deficiency in service on the part of OP4 and complaint against Op4 merits dismissal. Moreover, OP1 is the TPA, who too processed the insurance claim lodged with the insurer and as such, in view of the fact that payment to be made by the insurer, complaint against Op1 even is not maintainable. Role of OP1 came to an end on submission of recommendation Ex.R2=Ex.A28 by it to insurer. After submission of Ex.R2=Ex.A28, it was for the insurer either to accept that recommendation of Op1 or to not act upon that. However, insurer i.e. Op2 and OP3 on the recommendation Ex.R2=A28 repudiated the insurance claim through letter Ex.R1=A28/A and as such, recommendation of OP1 approved/accepted by the insurer. Role of OP1 was just to make recommendation and as such no deficiency in service on the part of OP1 is there.

18.               Even if the policy in question Ex.A4/A to be treated as first policy, despite that repudiation of claim by invoking clause 4.2(xvii) and 4.2(xviii) of terms and conditions is quite violative of the terms and conditions of the    insurance policy and as such repudiation of claim is unjustified. After going through Ex.A28/A=Ex.R1=Ex.R3/4 as well as Ex.R2=Ex.A28, it is made out that repudiation of claim regarding treatment in question ordered because there was break in policy and discharge summary indicate as if the current ailment (CAD) is related to diabetes and hypertension on account of which, waiting period of two years was required as per terms and conditions contained in 4.2(xvii) and 4.2(xviii) of Ex.R22 and as such in view of this claim is repudiated. So, repudiation of    claim virtually ordered on ground as if the treatment was relating to diabetes and hypertension, but that fact is not the position as disclosed by record of treatment produced by both the parties. Perusal of Ex.A6 reveals as if complainant on 15.01.2015 approached Dr.Gagandeep Singh of DMC & Hospital, Ludhiana for diagnosis. In Ex.A6, it is mentioned as if complainant suffering from hypertension and there was restriction in movement of right upper arm etc. Later on MRI of brain on 15.1.2015 was got conducted from Ace Diagnostics and opinion was received as if there was a mild cerebral atrophy. Besides, as per this opinion contained in Ex.A7, it was diagnosed to be a case of multiple foci of acute infarcts in the left MCA and left PCA territories likely embolic phenomenon. The Ace Diagnostics even conducted Carotid and Vertebral Arteries Doppler tests of complainant on 15.01.2015 and submitted report Ex.A8 for disclosing the following impressions:-

*Bilateral athermanous disease affecting the carotid system with extensive fibrous and calcified plaques in the CCA and ICA.

*Less than 50% stenosis in right ICA with a Haemodynamically significant stenosis of 50-70% in left ICA.

Biochemistry examination report Ex.A9 dated 16.1.2015 obtained from Apex Clinical Laboratory shows higher blood sugar (fasting) as well as PP/Random and in view of that report, Dr.Sudheer Saxena through prescription slip Ex.A10 found as if complainant is a case of recent detection of diabetes. Ex.A11 is a          Carotid Angiography report which shows as if after performance of operation /procedure, left carotid artery and right carotid artery as well as right vertebral artery and left vertebral artery were manifesting normality. Ex.A12 is carotid angioplasty report of Dr.Sudheer Saxena along with other doctor, who found through this report under the head final impression as if successful (L)ICA stenting was done. Even in report of 2D Color & Doppler Echocardiography Ex.A12/A, it was found as if grade 1 LV diastolic dysfunction is there along with LVEF in percentage of 62%, but LV systolic function is normal. Borderline mild concentric LVH even was found. Ex.A16, the prescription slip dated 14.3.2015 shows as if complainant underwent for follow up treatment and was prescribed medicines and same thing is mentioned in Ex.A18, the prescription slip dated 14.5.2015 issued by Dr.Sudheer Saxena.

19.               Copy of discharge summary of treatment of complainant got from Max Super Speciality Hospital, Mohali produced on record as Ex.R6 by Op2 and OP3, but Ex.A15 by complainant, perusal of which reveals as if case of complainant was diagnosed as under:-

“Left ICA stenosis (Haemodynamically significant) S/p PTCA with stent left ICA (10.03.2015). HCV reactive on screening. Diabetes mellitus Type 2 (recently diagnosed). Hypertension.”

However, in the past history, it is mentioned as if sufferance of complainant from hypertension is for the last one month, but from diabetes mellitus type-2 is also for one month. This discharge summary also shows as if complainant was attended by Dr.Sudheer Saxena during treatment by way of admission on 9.3.2015. So, this Ex.R6=Ex.A15 reflects as if problem of hypertension or of diabetes mellitus type-2 suffered by the complainant just one month prior to 9.3.2015 and if that date taken as 15.1.2015 or 13.1.2015 by keeping in view the record of prescription slips Ex.R7=A6 or Ex.R12 and Ex.R9, then this means that complainant got knowledge regarding his sufferance from hypertension and diabetes mellitus type-2 just from 13.1.2015 onwards. Ex.R7 is the same thing as is Ex.A6, whereas, Ex.R9 is the same thing as is Ex.A9, but Ex.R10 is the same thing as is Ex.A7, Ex.R11              is the same thing as is Ex.A8. Ex.R12 dated 24.01.2015 shows as if detection of diabetes was recent as per diagnose by Dr.Sudheer Saxena of Max Super    Speciality Hospital, Mohali. Virtually Ex.A10 and Ex.R12 is one and the same thing. Ex.A12/A is the same thing as is Ex.R13. In Ex.R14, it was found as if TMT is negative for inducible ischemia. Ex.R15 is the same thing as is Ex.A11, whereas Ex.R16 is the same thing as is Ex.A12. So, from all this medical record produced on record by the parties, it is made out that case of complainant is not a case of known diabetes mellitus type-2 or of hypertension. Rather, complainant got knowledge of sufferance from hypertension and diabetes mellitus type-2 w.e.f.15.1.2015 and not before that. So, it cannot be held that treatment was got by the complainant for sufferance from pre-existing ailments of hypertension and diabetes mellitus type-2. Rather, this treatment was got by the complainant for removal of blockage by application of procedure of carotid angiography and carotid angioplasty as submitted by treating Dr.Sudheer Saxena through affidavit Ex.CA/2 and as borne from the above referred record. Therefore, repudiation of claim on ground that treatment got for hypertension or for diabetes mellitus type-2 is wholly improper and illegal, because as discussed above, this treatment was not for hypertension or for sufferance from diabetes mellitus type-2.

20.               As per search on Google Internet, carotid angioplasty and stenting are procedures meant for open clogged arteries for restoration of blood flow to the brain. This treatment provided for treating or preventing the stroke as per this search from Google internet. Further, as per this search, the carotid arteries are located on each side of the neck. These are the main arteries supplying blood to the brain and they can be clogged with fatty deposits (plaque) that slow or block blood flow to the brain-a condition known as carotid artery disease- which can lead to a stroke. So, in view of this internet search on Google by this Forum, which is made a part of this file, it is obvious that complainant got treatment by way of carotid angiography and carotid angioplasty for opening the clogged or blocked arteries located on  each side of the neck. That clogging removed by carotid stenting as discussed above and as revealed from medical record discussed in detail above and as such, it is obvious that treatment in question by no stretch of imagination can be held to be treatment

got by complainant for hypertension or diabetes mellitus type-2. Further search of internet shows that carotid stenting done by the treating doctor by making a puncture in an artery, usually the femoral artery in the groin area. The following descriptions of angioplasty and stenting are done:-

* A small tube (sheath) is placed into the artery. A catheter with a balloon tip is then threaded through the tube to the narrowing in the carotid artery under x-ray guidance. Patient won’t feel the catheter passing through the arteries because the insides of arteries don’t have nerve endings.

* Contrast material is injected into the carotid artery through the catheter. The contrast material may cause a temporary warm feeling on one side of patient face. Contrast material provides a detailed view of the narrowed artery and blood flow to the brain.

* A filter is placed in the artery. The filter, called an embolic protection device, is inserted beyond the narrowing to catch any debris that may break off from the narrowed area of artery during the procedure.

* The balloon tip is threaded into the narrowed area and inflated to push the plaque to the side and widen the vessel.

* A small metal mesh tube (stent) may be placed in the newly opened vessel. The expanded stent provides support that helps prevent the artery from narrowing again.

* The filter, sheath, catheter and balloon are removed. Pressure is applied to the small catheter insertion site to prevent bleeding. When the procedure is done, patient is made of lie in one position while pressure is applied to the site to stop bleeding. Patient generally won’t have stitches, but a dressing is applied to cover the small incision site. Patient will then be taken to the recovery area.

21.               So, from this internet search on Google, it is obvious that carotid angioplasty procedure was adopted by treating Dr.Sudheer Saxena for removing the   clog or blockage in arteries, so as to restore the blood flow of brain. As the disease, for which, treatment got by the complainant regarding blockage of artery came to the knowledge of complainant only after getting the Doppler and other tests conducted on January 2015 and complainant was not suffering from any disease of hypertension or diabetes mellitus type-2 prior to 15.1.2015, but proposal form Ex.R18 was submitted on 30.04.2013 for purchase of policy for the first time in 2013, whereas, Ex.R20 submitted for purchase of subsequent policy on 5.5.2014 as disclosed by Ex.R20 and as such, there is no escape from the conclusion that complainant in fact was not knowing himself to be suffering from diseases, for which he got treatment, at the time of submission of proposal form. If that be the position, then there is no concealment of material facts at all and nor the treatment was got for pre-existing ailment conditions of hypertension or of diabetes mellitus type-2, but despite that same reflected in Ex.A28-A=Ex.R1=Ex.R3/4 for repudiating the claim.

22.               After going through clauses 4.2(xvii) and 4.2(xviii) of Ex.R22, it is made out that the expenses on treatment for hypertension and diabetes not payable if these diseases were pre-existing at the time of submission of proposal form or manifested during the currency of the policy. Diseases of hypertension and diabetes mellitus type 2 were not known to the complainant at the time of submission of proposal form as discussed above. However, treatment not got for sufferance from hypertension and diabetes mellitus, but the same got for removal of blockage as discussed above and as such  clauses 4.1 and clause 4.2 of          terms and condition Ex.R22 not applicable to the facts of the present case. Being so, repudiation of claim is absolutely unjustified by invoking these clauses.

23.               Counsel for complainant by placing reliance on ratio of case titled as National Insurance Company Limited vs. Sandeep and others-2017(1)RCR(Civil)-621(Punjab and Haryana High Court) vehemently argues that insurer of the present case has repudiated the genuine claim of complainant on technical and flimsy grounds and as such virtually complainant has been dragged in unnecessary litigation. By keeping in view the observations recorded in the above cited case and in view of the fact that repudiation of claim is improper, certainly complainant is entitled to compensation for mental agony and harassment and also to litigation expenses. Even as per ratio of case titled as Satya Parkash Sood vs. National Insurance Company Limited and another-1997(2)CPJ-534(Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla), it is for the insurer to prove that proposer/insured at the time of submission of proposal form or declaration form was knowing from his sufferance from heart ailment and only then inference of suppression of material facts can be drawn. In this case,  no record produced by the insurer to prove the            sufferance of complainant from pre-existing ailment from hypertension and diabetes mellitus as discussed in detail above and as such by applying the ratio of this case, it has to be held that insurer failed to establish that complainant was suffering from pre-existing ailment.

24.               Benefit from ratio of cases titled as Tarun Bansal and another vs. Reliance General Insurance Company Limited and others-II(2007)CPJ-295(Punjab State Consumer Disputes Redressal Commission, Chandigarh) and New India Assurance Company Limited vs. Dr.(Mrs.)Renu Chugh-III(1998)CPJ-126(Haryana State Consumer Disputes Redressal Commission, Chandigarh) cannot be availed by counsel for Ops, because repudiation of claim in those cases was for diseases not covered by the terms and conditions of the policy, but the same is not the position in the case before us as discussed in detail above. Benefit from ratio of cases titled as LIC of India and others vs. Smt. Shashi Bala-IV(2003)CPJ-91(N.C.); Sapna Arora vs. Life Insurance Corporation of India and others-I(2009)CPJ-588(Punjab State Consumer Disputes Redressal Commission, Chandigarh); Jagdeep Arora vs. Life Insurance Corporation of India and others-III(2015)CPJ-341(N.C.); M.Obaidur Rahman vs. National Insurance Company Limited-III(2015)CPJ-474(N.C.); Ram Swaroop Agrawal and another vs. New India Assurance Company Limited-I(2014)CPJ-615(N.C.); Reena Kansal vs. United India Insurance Company and another-I(2015)CPJ-523(N.C.); R.Venkata Krishna vs. United India Insurance Company Limited and others-III(2016)CPJ-480(N.C.) and Kailash Chand Jain vs. National Insurance Company Limited and others-III(2016)CPJ-57(Rajasthan State Consumer Disputes Redressal Commission, Jaipur) cannot be availed by counsel for Ops because in all these cases, the insured/proposer found to have suppressed the material facts regarding sufferance from pre-existing ailment intentionally/malafide or/knowingfully, but the same is not the position in the case before us as discussed in detail above. Likewise, benefit from ratio of case titled as Life Insurance Corporation of India vs. Anil avtram Katariya-II(2014)CPJ-186(Maharashtra State Consumer Disputes Redressal Commission, Mumbai) cannot be gained by counsel for Ops because in the reported case, treatment was got for ailment for which provisions were not made in the insurance policy for reimbursement of expenses, but the same is not the position in the case before us as discussed in detail above. No other worth-mentioning point argued.

25.     As repudiation of claim is highly improper and not in consonance with   terms and condition of the insurance policy and as such, complaint deserves to be allowed.

26.               Therefore, as a sequel of the above discussion,complaint against Op1 and OP4 dismissed, but the same allowed against Op2 and Op3 by directing them to pay so much of amount of treatment in question to the complainant as is payable by ignoring the repudiation letters under challenge. After assessing the due amount, payment be made to the complainant within 60 days from the date of receipt of copy of order, failing which, complainant will be entitled to interest on the adjudged due payable amount by the insurer @8% per annum from the date of complaint namely 16.10.2015 till payment. Compensation for mental agony and harassment of Rs.30,000/-(Rupees Thirty thousand only) and litigation expenses of Rs.10,000/-(Rupees Ten Thousand only) more allowed in favour of complainant and against OP2 and OP3 only, whose liability to pay the above said amount held as joint and several. Payment of compensation amount and litigation costs be made by OP2 and OP3 to the complainant within 30 days from the date of receipt of copy of order. Copies of order be supplied to parties free of costs as per rules.

27.                        File be indexed and consigned to record room.

 

 

 (Jyotsna Thatai)                                      (G.K.Dhir)

 Member                                                  President

Announced in Open Forum

Dated:24.10.2019

Gurpreet Sharma.