Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.97/05.04.2017
Manoj Khattar s/o Sh. Sunder Lal
R/o RZ-112-113, T Ext., Uttam Nagar,
New Delhi-110059 …Complainant
Versus
OP1-M/s National Insurance Co. Limited,
1204, Bahadurgarh Road, Sadar Bazar,
Delhi-110006
OP2- M/s Park Mediclaim TPA Pvt. Ltd.
(through its Manager Director)
Office at - 72, Vikrant Tower, Rajindra Place,
New Delhi-110008 ...Opposite Parties
Date of filing 05.04.2017
Date of Order: 13.09.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
ORDER
Inder Jeet Singh , President
1.1. (Introduction to dispute of parties) – The complainant has grievances of deficiency of service against the OPs as out of total medical claim of Rs. 2,46,721/-, duly covered under the medi-claim policy obtained, there was reimbursement of part claim of Rs. 1,10,615/- and this amount was declined without any valid reasons. That is why the complaint for reimbursement of balance amount of Rs. 1,36,096/- along with interest at the rate of 24%, interest due over the amount Rs. 1,10,625/-; compensation of Rs. 1,00,000/- for suffering harassment- mentally, physically & financially, and costs of Rs. 25,000/- is also claimed.
1.2. The OP1/insurer opposed the claim that there is no deficiency of services, since admissible claim of Rs. 1,10,625/- was allowed by considering terms and condition of policy besides exclusion clause 4.3 (iii) of insurance policy as well as the initial sum insured considered was Rs. 1,50,000/-+ Rs. 71,250/- towards CB (in place of renewed sum assured of Rs. 2,50,000/-+ Rs. 86,250/- towards CB). OP2 is TPA of OP1.
2.1. (Case of complainant) –The complainant has been taking medi-claim insurance policy from OP1 since 2002 and getting it renewed regularly till 2015. In the year 2015 the complainant was issued insurance policy no. 360202/48/15/8500001990 for the period 18.11.2015 to 17.11.2016, in which OP2 has been appointed as TPA by OP1. In the said policy, five family members have been covered, complainant’s mother Smt. Raj Rani is one of them, who is insured for sum assured of Rs. 2,50,000/-+ Rs. 86,250/- towards CB .
2.2. On 05.09.2016, the doctors of Sports Injury Centre, Safadarjung Hospital, New Delhi advised Smt. Raj Rani for replacement of her both knees. She was given date of second week of October 2016 for surgery of both knees, it was informed well in advance to OP2/TPA by email. Smt. Raj Rani was admitted in Sport Injury Centre, New Delhi in second week of October 2016, it was also informed to OP2. It was 10.10.2016 when Smt. Raj Rani was operated and replaced her both knees, it was also informed to OP2. On 08.10.2016, the complainant received email from OP2 asking deposit of requisite documents to process the claim, accordingly on 30.10.2016 the complainant furnished claim form along with documents for claim of Rs. 2,26,141/-. On 19.11.2016 OP2 further asked more documents and on 07.12.2016 the complainant also furnished another claim of Rs. 20,580/- along with bills and necessary documents of post hospitalization and pharmacy. It became total claim of Rs. 2,46,721/-.
2.3. On 16.12.2016, complainant had received two letters from OP2, in the first letter claim of Rs. 1,68,125/- was approved, which was shown approved against bills of Rs. 2,29,116/- instead of total claim of Rs. 2,46,721/-. The complainant wrote letter dated 23.12.2016 to register his protest and also sent an email to relook into the matter, however, the OP2 by another letter of 16.12.2016 reduced the claim amount to Rs. 1,10,625/- from previously mentioned amount of Rs.1,68,125/-.
On 27.12.2016 the OP2 sent another email to clarify to complainant for reducing the amount to Rs. 1,10,625/- from amount of Rs. 1,68,125/-, however, there was also no clarification, even for considering the claimed amount of Rs. 2,29,116/- instead of total claim of Rs. 2,46,721/-. OP2 was again requested on 15.03.2017, but OPs by letter dated 17.03.2017 rejected the claim of complainant under the excuse that the treatment for joint replacement and age related osteoarthritis and osteoporosis has a waiting period of 4 years but without considering that the complainant was operated in a Government Hospital, where their own procedure is followed and date of surgery was also given after huge waiting of other patients.
The complainant was requesting the OPs to consider the medi-claim but OPs in their email dated 17.03.2017 uttered that 50% of limit has already been exhausted. The complainant has been harassed. He is victim of OPs and that is why complaint has been filed for reliefs against deficiency of services and harassments.
3.1 (Case of OP1)- The complaint was opposed by the OP1 by filing compact reply point-wise - firstly, there is no deficiency of services; secondly, complainant’s claim was settled for admissible amount of Rs. 1,10,625/-. Thirdly, the parties are bound by the terms and conditions of policy, the parameter of policies were followed for appropriate expenses like Head-A, Head-B and Head-C respectively for 1% to 2% of sum insured with rider of 25% as per coverage clause 2.1 of policy, Head-B prescribes 25% maximum limits as per clause 2.2 of the policy and under Head-C the maximum limit is 50% of sum insured as per clause 2.3 of the policy. Moreover, because of exclusion clause 4.3 (iii) of the National Medi-claim policy, the sum insured of Rs. 1,50,000/-+ Rs. 71,250/- towards CB was considered in place of current sum insured of Rs. 2,50,000/-+Rs. 86,250/- towards CB because of waiting period of four years. The maximum limit of 50% of sum insured was Rs. 1,10,625/-, which exhausted under Head-A+ Head-B, even the available limit of Rs. 1,10,625/- under Head-C was not settled.
3.2. The complaint also suffers from non-joinder of Smt. Raj Rani. This case involves detailed examination and cross-examination of witness, which could be done in the Civil Court. Therefore, the complaint is without merit. It is liable to be dismissed on all counts.
3.3. (Case of OP2)- OP2/TPA failed to appear and file any reply to the complaint.
4. (Replication of complainant) – The complainant filed compact replication, while opposing the allegations of the written statement of OP1 that complainant does not suffer from non-joinder of necessary party nor it needs any detailed examination & cross examination before civil court, issues can be determined in summary procedure. Moreover, the complainant filed his genuine claim and allegations of OP1 are without merits.
5.1. (Evidence)- The complainant led his evidence by detailed affidavit, while fortifying support from the documents filed with the complaint. The documents proved are insurance policy w.e.f. 18.11.2015 to 17.11.2016, claim form, correspondence with OP2/TPA, identity proof, letters dated 19.11.2016, 14.12.2016, 16.12.2016, second letter of 16.12.2016, email exchange and emergency card.
5.2. OP1 led its evidence by filing detail affidavit of Sh. Raghunath Pawar, A.O. (Legal), affidavit is replica of the compact written statement coupled with specimen of terms and conditions of insurance.
6. (Final hearing)- Both the sides have filed their written arguments, which are reiteration of pleadings and evidence. The complainant himself made the oral submission (despite he was given the option that he may have counsel of his choice or he may avail the services from Legal Aid Counsel but he opted to make submissions of his own). During the course of oral submissions, the complainant highlighted that he was supplied with insurance cover of one page, filed on record, without any terms and conditions ever since provided. Sh. Shaumik Mazumdar, Advocate for OP1 made oral submission that parties are bound by terms and conditions of policy, the claim was also considered by OPs accordingly and those terms and conditions were also provided to complainant.
7.1 (Findings)- The contentions of both the sides are considered keeping in view the material on record. The issues raised are being taken one by one.
7.2.1. The OP1 had reservations that complaint is bad for non-joinder of Smt. Raj Rani, which is opposed by the complainant.
The answer of this objection is in the insurance policy cover notice, (which is one page) proved by the complainant that name of policy holder/ complainant is mentioned as well as the name of insured persons, which include the name of Smt. Raj Rani. It appears OP1 has taken this objection just for the sake of objections, since the complainant is not a stranger to the policy nor to other family members, which includes Smt. Raj Rani. The complaint is valid/competent filed by the complainant Manoj Kumar and it is not bad for want of joining Smt. Raj Rani as a party to complaint.
7.2.2. The other issue is regarding the competency and jurisdiction of the Consumer Fora. There is nothing on the record which may suggest complicated question of facts and/or of law to be determined by the Civil Court. There is enough material in the form of narration and other circumstances to determine the issues in a summary way. Therefore, this issue is also decided against the OP1.
7.3. By taking into account the stock of all the circumstances and material on record, it is held that complainant has succeeded in establishing deficiency of services for the for want of settlement of valid claim for the following reasons:-
(i) There is rival plea as on the one side OP1 contends non-compliance of terms and conditions of the policy but on the other side complainant has reservation that one sheet insurance policy cover was issued, the terms and conditions of policy were never explained nor supplied to the complainant as mentioned in the reply.
The record is apparent that complainant has filed and proved insurance policy, it is in one page policy cover, without further documents of terms or conditions. On the other side OP1 has not filed and proved insurance policy but specimen of terms and conditions has been filed. The OP1 could not proved that the complainant was provided with such terms and conditions of policy such as specimen filed.
(ii) With regard to compliance of insurance policy contract, there are regulations as well as precedent. In Manmohan Nanda Vs United- India Assurance Co. [Civil Appeal no. 8386/2013) decided on 6.12.2021 by Hon'ble Supreme Court of India has also dealt the regulations 'the IRDA (Protection of Policyholder' Interests) Regulations 2002' and it was held (in paragraph 34 thereof) "that just as insured has a duty to disclose all material facts, the insurer must also inform the insured about the terms and conditions of policy that is going to be issued to him and must strictly confirm to the statement in the proposal form or prospectus or those made through its agents. Thus, principle of utmost good faith imposes meaningful reciprocal duties owned by the insured to the insurer and vice-versa".
(iii) The terms and conditions of the policy can be complied when the same are explained and provided to the insured. In case the insured is not provided with such terms and conditions how it could be complied with for want of knowledge? Reliance is placed on:-
(a) In Bharat Watch Company (through its partners) vs National Insurance Co. Ltd., Civil Appeal no. 3912/2019 in SLP(C) no. 25468/2016, it was held that in the absence of appellant being made aware of terms of exclusions, it is not open to the insurer to rely upon exclusionary clauses.
(b) National Insurance Co. Ltd Vs Radhey Shyam Balwada & anr [(II) 2014 CPJ 201 NC] - held that insurer has also duty to act in good faith, which obliges him to enter into contract without concealing material fact like exclusion clauses. Further, an insured is not bound by the exclusion clauses of policy, if the same is not explained to him.
(iv) The OP1 put reliance upon exclusion clause 4.3 (iii) of insurance policy along with other clauses by making reference of Head-A, Head-B and Head-C, however, the same cannot be invoked against complainant for the reason of sub-clause (iii) above.
(v) The complainant had proved the claim forms and the amount claimed was not disputed by the OP1, in fact the total amount claimed was considered but claim was reimbursed of 50% of Rs. 2,29,116/-.
Thus, the complainant is also entitled for the unpaid medi-claim amount of Rs. 1,36,096/-, which OPs had declined because of exhaust of the amount by maximum 50% limit under Head-A + Head-B but it could not have been proved by the OP1 nor such clauses can be read against complainant.
(vi) The complainant had requested the OPs to explain as to why two set of letters were issued on 16.12.2016 for approval of different amount and in the email dated 27.12.2016 it was explained by OPs that it happened due to inadvertence.
7.4. The complainant has proved that his valid part claim of Rs.1,36,096/- was declined by OPs despite the medical expenses were covered under the policy. It amounts to deficiency of services.
7.5. The facts and circumstances proves case of complainant that he lodged valid medical claim of amount of Rs. 2,46,721/- but he was reimbursed and released part claim of Rs. 1,10,625/-. Thus, complainant is held entitled for reimbursement of balance claim of Rs.1,36,096/ from insurer/OP1-. Since OP2 is TPA of OP1, TPA is facilitator in settlement of claim, it not insurer to cover risks and indemnify against the risks. Thus no order against OP2/TPA.
7.6. The complainant has also sought damages of Rs.1,00,000/- towards harassment, mental tension and agony and also costs of Rs.25,000/-. By considering totality of circumstances of case of both sides, damages are quantified as Rs 20,000/- apart from cost of litigation of Rs.10,000/-in favour of complainant and against the OP1.
7.7. The complainant has sought interest at the rate of 24% pa and other appropriate relief. Since complainant had paid medical bills from his own pocket, despite insurance cover was taken to meet sudden needs, therefore, he had parted with to use his money because of payment of bills. It entitles the complainant for interest on claim amount. Therefore, interest at the rate of 7% pa is allowed in his favour and against OP1, it would be justified for both ends, interest will be computed from the date of complaint till realization of amount against the OP1.
7.8. Accordingly, the complaint is allowed in favour of complainant and against the OP1 to pay/reimburse balance medical bills claim amount of Rs.1,36,096/- along-with simple interest @ 7%pa from the date of complaint till realization of amount; besides to pay damages of Rs.20,000/- & costs of Rs.10,000/- to complainant.
OP1 are also directed to pay the amount within 30 days from the date of receipt of this order. In case amount is not paid within 30 days from the date of receipt of order, the interest will be 9% per annum on amount of Rs.1,36,096/-.
8. The complaint against OP2/TPA is dismissed.
9. Announced on this 13th September 2023 [भाद्र 22, साका 1945].
10. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances.
[Vyas Muni Rai] [Shahina] [Inder Jeet Singh]
Member Member (Female) President
