..…Complainant
Versus
- National Insurance Company Ltd., having its registered office at 3, Middleton Street, Kolkata:700071 through its MD/Director/Chairman/Authorized representative etc.
- National Insurance Company Ltd. having its branch office at Division IV, Kesar Ganj, Ludhiana:141001 through its branch manager/authorized representative etc. …..Opposite parties
Complaint Under Section 35 of the Consumer Protection Act, 2019 (as amended up to date).
QUORUM:
SH. SANJEEV BATRA, PRESIDENT
MS. MONIKA BHAGAT, MEMBER
COUNSEL FOR THE PARTIES:
For complainant : Sh. Ajay Chawla, Advocate.
For OPs : Sh. M.S. Jassal, Advocate.
ORDER
PER SANJEEV BATRA, PRESIDENT
1. Shorn of unnecessary details, the facts of the case are that the complainant is a 79 years old Cancer patient. He obtained Mediclaim Policy from the OPs for the last 20/25 years on regularly basis every year by paying regular premium to the OPs. The complainant, on 28.01.2021, obtained a policy No.404500502010001238 w.e.f. 29.01.2021 to 28.01.2022 under “National Senior Citizen Mediclaim Policy” plan. At that time, the complainant was healthy and cancer disease free. The complainant stated that on 27.12.2021, he visited multispecialty hospital under the supervision of Dr. N.K. Garg due to problem with his lymphnodes for which the doctor advised whole abdomen ultrasound. The complainant got his ultrasound of whole abdomen from Deepak Hospital, Ludhiana. The complainant was suffering from the disease of swollen lymphnodes (later confirmed disease of Cancer) thus he visited specialized doctor of gastroenterology Dr. Varun Mehta MD/DM (Gastroenterology) Professor Department of Gastroenterology, Dayanand Medical College and Hospital on 30.12.2021 who further advised him for chest X-ray and ultrasound upper abdomen and pelvis from DMC&H Ludhiana to confirm the disease of cancer. The complainant done his rechecking vide reports on 31.12.2021 which were same as per previous reports.
The complainant further stated that he has a serious disease of multiple enlarged necrotic abdominal lymphnodes and as such, as per advise of doctor, he got himself admitted at DMC&H Ludhiana under admission No.2022-001254 and MRD No.1068981 on 07.01.2022 till 12.01.2022. The complainant incurred Rs.96,495.92 at said hospital besides other expenses incurred prior to 07.01.2022 and after discharge on 12.01.2022. At the time of his admission in the hospital on 07.01.2022, the complainant applied for cashless claim with the OPs by submitting all the documents including reports etc. but the OPs denied his cashless claim on arbitral and flimsy grounds. Thereafter, the complainant submitted his claim for reimbursement with the OPs but the OPs further failed to pay the claim amount to the complainant. According to the complainant, even the insurance agent also contested his case before the OPs but to no effect. The complainant further stated that before his discharge from the hospital on 12.01.2022, his biopsy was done on 10.01.2022 and the report was received on 24.01.2022 in which the complainant was finally confirmed as Disease of Cancer which was to be treated by Oncologist. This report was also sent to the OPs but the OPs ignored the same to avoid its liability to pay for hospitalization and for 60 days thereafter. After getting the report on 24.01.2022, the complainant consulted three doctors and he got treatment from Deep Hospital, Model Town, Ludhiana on 01.02.2022 with advise of 6 cycles of Chemotherapy treatment with intervals of 3 weeks each which was followed by the complainant. First chemo was done on 04/05.02.2022 and second on 25/26.02.2002 and third on 16.03.2022. The complainant further stated that as per clause 1.2.2 & 1.2.3 the OPs shall reimburse the medical expenses incurred 30 days immediately before the complainant was hospitalized and 60 days immediately after he was discharged from the hospital. The OPs assured the complainant to pay the claim on the pretext to get himself reinsured from them from 29.01.2022 to 28.01.2023. As such, the complainant got insurance policy No.404500502110001538 w.e.f. 29.01.2022 to 28.01.2023 by paying premium of Rs.38,378/- to the OPs. He suffered illness during the period of policy No.404500502010001238 having validity till 28.01.2022, so he is entitled to get benefits of treatment from 30 days before hospitalization up to 60 days after discharge from the hospital. He is entitled to get medical expenses incurred between 07.12.2021 (30 days before hospitalization 07.01.2022) and up to 2.03.2022 (up to 60 days after discharge). The complainant submitted his claim for medical expenses incurred within the policy period 29.01.2021 till 29.01.2022. The OPs have cleverly denied its liability under policyNo.404500502010001238 valid till 28.01.2022 and cleverly consuming the sum insured of next year policy of period 2022-23 for part payment of claim actually related to previous policy and paid Rs.66,676/- as a self-made up claim which was not submitted by the complainant.
The complainant further stated that the OPs are liable to pay the claim of Rs.1,13,175/-, Rs.27,440/-, Rs.75,898/- and Rs.76,637/- totaling Rs.2,93,150/- but the OPs have repudiated his claim illegally and arbitrarily on flimsy grounds which has caused mental agony and harassment to him for which he is entitled to claim for damages. Further the complainant was insured for an amount of Rs.4,00,000/- with a cumulative bonus of Rs.97,500/- but the Ops by referring to the clause in insurance policy had illegally denied his claim of Rs.67,339/- for third dose of chemo done on 16/17.03.2022. The said expenses are covered for reimbursement by the OPs on the basis of subsequent insurance policy No.404500502110001538 for the next year period from 29.01.2022 to 28.01.2023. The said clause claimed to have ultra virus and against the principle of equity and justice. As per the heading “Coverage” in the policy, the coverage clause does not have any limitation to cover one illness only and claim for one illness cannot be restricted to any sub limit written in a deceptive manner. The complainant had been paying premium from 20/25 years to the OPs under the impression that he is insured for the said sum insured amount without any limitation for any one or more illness (es). The act and conduct of the OPs amounts to deficiency in service and unfair trade practice due to which the complainant has suffered mental pain, agony and harassment as well as he has to face miseries for which the OPs are liable to pay compensation. In the end, the complainant has prayed for issuing directions to the OPs to pay a total sum of Rs.3,55,739/- i.e. Rs.1,13,175/-, Rs.27,440/-, Rs.75,898/-, Rs.76,637/- & Rs.62,589/- along with interest as well as to pay compensation of Rs.5,00,000/-.
2. Upon notice, the OPs appeared and filed written statement assailed by complaint by taking preliminary objections on the grounds of maintainability; the complaint is barred under Section 26 of the Consumer Protection Act; the complainant being estopped by his own act and conduct; concealment of material facts; the complainant has not come with clean hands etc. The OPs stated that the complainant had taken the medi claim policy bearing No. 404500502010001238 for the period from 29.01.2021 to 28.01.2022 from OP2 and Safeway Insurance TPA Pvt. Ltd was as TPA in the policy. As per record, patient Sh.Ramesh Kumar complainant was admitted in Dayanand Medical College and Hospital, Ludhiana on 07.01.2022 vide admn No.2022001254 dated 07.01.2022 with the chief complaint of loss of weight 6 months loss of appetite since 6 months and feeling of incomplete stool evacuation since 6 months. Ultrasound done outside (Deepak Hospital) was suggestive of abdominal lymphadenopathy. Report ultrasound was also done in Dayanand Medical College and Hospital, Ludhiana 08.01.2022 which also suggested similar findings of abdominal lymphadenopathy and according the patient was advised CT Abdomen, which was done on 10.01.2022 CT scan suggested Thoraco-Abdominal lymphadenopathy S/O lymphoproliferative Discover and accordingly USC guided FNAC and biopsy were planned, which were done on the same day i.e. 10.01.2022. FNAC report suggested Reactive Hyperplasia. The patient was advised to collect the biopsy report and to follow up after 7 days in Oncology OPD as well as Gastro OPD. With this advice he was discharged on 12.01.2022. The diagnosis of the patient is clearly mentioned in the discharge card as Diabetes Mellitus Type II (Type II DM), Hypertension(HTN), Coronary Artery Disease (CAD),old cerebro Vascular Accident (CVA),constipation Fice(feeling incomplete stool evacuation) and Thoracoabodominal Lap (Lymphadenopasthy)? Lymphoma?Reactive. The term Lap, as mentioned on the discharge card is the abbrevliated form of "Lymphadenopathy. "It is therefore respectfully submitted that the complete diagnosis of patient including LAP (Lymphadenopathy) is already mentioned in the discharge summary. The TPA while going through the whole record of patient i.e. of Dayanand Medical College and hospital, Ludhiana, reports of Deepak Hospital, Ludhiana, the claim of the patient has been repudiated by the TPA Safeway TPA under exclusion clause 4.4 and (Exct 04a) of the insurance policy. So the claim of the complainant is not admissible as per exclusion clause 4.4 and (Exct 04a) of the policy and the claim of the complainant has been repudiated by the OPs. So the claim of the complainant is not payable under the exclusion clause 4.4 and (Exct 04a )of the Insurance Policy. The exclusion clause 04a is reproduced as under :-
“5.1 Investigation & Evaluation (Exct 04a)
Expenses related to any admission primarily for diagnostics and evaluation purposes only are excluded.”
The OPs further stated that as insurance policy is a contract between the insurance company and the insured person and each other are bound by the terms and conditions of the insurance policy. The claim of the complainant has been repudiated as per terms and conditions of the policy.
On merits, the OPs reiterated the crux of averments made in the preliminary objections and factual submission of the case. The OPs have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.
3. In evidence, the complainant tendered his affidavit as Ex. CA and reiterated the averments of the complaint. The complainant also placed on record documents Ex. C1 and Ex. C18 is the copy of insurance policy w.e.f. 29.01.2021 to 28.01.2022, Ex. C2 is the copy of prescription slip dated 27.12.2012, Ex. C3 is the copy of ultrasound report dated 28.12.2021, Ex. C4 is the copy of consultation slip, Ex. C5 and Ex. C6 is the copy of ultrasound report dated 31.12.2021, Ex. C7 is the copy of revised discharge summary, Ex. C8 is the copy of In-Patient Final Bill dated 13.01.2022, Ex. C9 is the copy of Claim Denial letter, Ex. C10 is the copy of Claim Form, Ex. C11 is the copy of insurance policy w.e.f. 29.01.2022 to 28.01.2023, Ex. C12 is the copy of discharge summary, Ex. C13 is the copy of Cashless Authorization Letter dated 17.03.2022, Ex. C14 is the copy of Cashless Authorization Letter dated 26.02.2022, Ex. C15 is the copy of Cashless Authorization letter dated 05.02.2022, Ex. C16 is the copy of consultation slip of Deep Hospital, Ex. C17 is the copy of prospectus of insurance policy and closed the evidence.
The complainant filed an application for leading additional evidence, which was allowed vide order dated 21.09.2023 subject to payment of costs of Rs.500/-.
Thereafter, the complainant closed additional evidence after tendering document Ex. C19 is the copy of prospectus of insurance policy.
4. On the other hand, the counsel for the OPs tendered affidavit Ex. RA of Ms. Rachna Puri, Divisional Manager of OP2 along with documents Ex. R1 is the copy of insurance policy w.e.f. 29.01.2021 to 28.01.2022, Ex. R2 is the copy of terms and conditions of the policy, Ex. R3 is the copy of Claim Form, Ex. R4 is the copy of Claim Denial Letter, Ex. R5 is the copy of prescription slip dated 27.12.2012, Ex. R6 is the copy of ultrasound report dated 28.12.2021, Ex. R7 is the copy of consultation slip of Deep Hospital, Ex. R8 and Ex. R9 is the copy of ultrasound report dated 31.12.2021, Ex. R10 is the copy of final bill dated 07.02.2022 of Deep Nursing Home & Children Hospital, Ex. R11 is the copy of discharge summary dated 04.02.2022 of Deep Hospital, Ex. R12 is the copy of ECG report dated 04.02.2022, Ex. R13 is the copy of test report dated 05.02.2022, Ex. R14 is the copy of test report dated 05.02.2022, Ex. R15 is the copy of revised discharge summary of DMC Hospital, Ex. R15/1, Ex. R16 is the copy of discharge summary of DMC dated 12.01.2022, Ex. R17 is the copy of claim details in paper book format, Ex. R18 to Ex. R23 are the copies of hospital bills and closed the evidence.
5. We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written statement along with affidavits and documents produced on record by both the parties.
6. The complainant, a senior citizen was a holder of health insurance policy which expired on 28.01.2021 (hereinafter called as Previous Policy). On the same day, the complainant submitted a fresh proposal for renewal of the same and the complainant availed National Citizen Mediclaim Policy effective from 29.01.2021 to midnight of 28.02.2022 (hereinafter called as First Poicy) by paying premium of Rs.38,380/- and sum assured was Rs.4,00,000/- having a cumulative bonus of Rs.97,500/-. The policy cover is Ex. C1 = Ex. R1 and the policy schedule is Ex. R2. The following clauses of the First Policy are reproduced as under which are relevant for the adjudication of the matter in controversy:-
“2.1.2. Pre-Hospitalization
The Company shall reimburse the Insured in respect of the Medical Expenses incurred 30 (thirty) days immediately before the Insured Person is hospitalized, provided that:
- such Medical Expenses are incurred for the same condition for which the Insured Person’s Hospitalization was required, and
- the In-patient Hospitalization claim for such Hospitalization is admissible by the company.
Pre-Hospitalization shall be considered as part of Hospitalization claim.
2.1.3 Post-Hospitalization
The Company shall reimburse the Insured in respect of the Medical Expenses incurred 60 (sixty) days immediately before the Insured Person is discharged from the Hospital, provided that:
- such Medical Expenses are incurred for the same condition for which the Insured Person’s Hospitalization was required, and
- the In-patient Hospitalization claim for such Hospitalization is admissible by the company.
Post-Hospitalization shall be considered as part of Hospitalization claim.
5. Permanent Exclusions
The Company shall not be liable to make any payment under the Policy, in respect of any expenses incurred in connection with or in respect of:
5.1 Investigation & Evaluation (Excl 04)
- Expenses related to any admission primarily for diagnosis and evaluation purposes only are excluded.
- Any diagnostic expenses which are not related or not incidental to the current Diagnosis and treatment are excluded.”
7. At the expiry of the period of the coverage of the First Policy, the complainant got renewal of the same and obtained the policy for the next year having its No. ending with 1538 for a period commencing from 29.01.2022 to 28.01.2023 for a sum assured of Rs.4,00,000/- having a cumulative bonus of Rs.97,500/- (hereinafter called as Subsequent Policy).
8. On 27.12.2021, the complainant visited multispecialty hospital of Dr. N.K. Garg with complaint of lymphnodes and on the advice of doctor Ex. C2, the complainant underwent through ultrasound scan from Deepak Hospital, Ludhiana vide report Ex.C3 wherein he was advised for further evaluation.
On 30.12.2021, the complainant consulted Dr. Varun Mehta, MD/DM Gastroenterology at Dayanand Medical College and Hospital, Ludhiana and underwent certain tests and was diagnosed of enlarged necrotic abdominal lymphnodes.
On 07.01.2022 till 12.01.2022, the complainant remained admitted in DMC Hospital for final diagnosis of disease and incurred an expenses of Rs.96,495.92 (Ex. C8) During the course of hospitalization on 10.01.2022, a biopsy was done whose report was received after discharge from the hospital on 13.01.2022 which confirms the disease of cancer. However, the cashless claim as well as claim for reimbursement was denied by the OPs vide claim denial letter Ex. C9 by invoking cause 4.4 and Excl. 04a of the policy whereby the expenses related to any admission primarily for diagnosis and evaluation purposes has been excluded.
9. The complainant finally opted for treatment at Deep Hospital, Model Town, Ludhiana where on 01.02.22 he was advised to undergo 6 cycles of chemotherapy treatment with intervals of 3 weeks each. The first chemotherapy was done on 04/05.02.2022, second was done on 25/26.02.2022 and third was done on 16.03.2022. The complainant incurred the expenses on his treatment at Deep Hospital and filed the present complaint whereby sought directions for payment of Rs.1,13,175, Rs.27,440/-, Rs.75,898/-, Rs.76,637/- and Rs.62,589/- totaling Rs.3,55,739/- along with compensation and costs.
10. During the course of proceedings and arguments, the complainant admitted the payments of Rs.66,676/- out of Rs.1,13,173/-, Rs.75,808/- out of Rs.75,898/-, full payment of Rs.6126/-, full Rs.76,637/- and full payment of Rs.1250/- totaling Rs.2,26,497/-. However, payment of these claims for the aforesaid amount was considered under the Subsequent Policy having coverage from 29.01.2022 to 28.01.2023.
11. Now the complainant has raised a grievance that the part of the paid amount was required to be considered under the First Policy as it pertained to pre and post hospitalization of the First Policy. By treating the same for the Subsequent Policy, the OPs have reduced the extent of coverage of the Subsequent Policy and it amounts to adoption of unfair trade practice.
12. Now the issue for consideration arises that what is the effective date and period for computation of 30 days and 60 days respectively pre and post hospitalization in a particular insurance policy.
13. It is settled law that the terms of insurance policy have to be strictly construed as per the terms and conditions of the policy document which is a binding contract between the parties and nothing can be added or subtracted by giving a different meaning to the words mentioned therein. In this regard, reference can be made to 2023 LiveLaw (SC) 90 in National Insurance Company Ltd. Vs The Chief Electoral Officer and others whereby the Hon’ble supreme Court of India has made the following observations:-
“26. We would first like to elucidate the principles on which a claim under any insurance policy is examined. It is trite to say that the terms of the insurance policy are to be strictly construed.
27. The insurance contracts are in the nature of special class of contracts having distinctive features such as utmost good faith, insurable interest, indemnity subrogation, contribution and proximate cause which are common to all types of insurances. Each class of insurance also has individual features of its own. The law governing insurance contracts is thus to be studied in three parts, namely, (1) general characteristics of insurance contracts, as contracts; (2) special characteristics of insurance contracts, as contracts of insurance, and (3) individual characteristics of each class of insurance.
28. Now turning to some of the judicial pronouncements, wherein it has been opined that the words used in a contract of insurance must be given paramount importance and it is not open for the Court to add, delete or substitute any words (Suraj Mal Ram Niwas Oil Mills (P) Ltd. vs. United India Insurance Co. Ltd.) 2010 SCC Online SC 1148. Insurance contracts are in the nature where exceptions cannot be made on ground of equity and the Courts ought not to interfere with the terms of an insurance agreement (Export Credit Guarantee Corporation of India Limited vs. Garg Sons International) 2014(1) SCC 686.
29. This Court in Vikram Greentech India Ltd. v. New India Assurance Co. Ltd.2002(5) SCC 599 reiterated that the insured cannot claim anything more than what is covered by the insurance policy. The terms of the contract have to be construed strictly, without altering the nature of the contract as the same may affect the interests of the parties adversely. The clauses of an insurance policy have to be read as they are. Consequently, the terms 8 Justice K Kannan, Principles of Insurance Law Chapter 3 (Volume 1, 10th ed. 2017, pg. 31) 9 2010 SCC OnLine SC 1148 10 2014 1 SCC 686 11 (2009) 5 SCC 599 6 of the insurance policy, that fix the responsibility of the insurance company must also be read strictly.
30. In several other judgments, this court has held that the insurance contract must be read as a whole and every attempt should be made to harmonise the terms thereof, keeping in mind that the rule of contra proferentem does not apply in case of commercial contract, for the reason that a clause in a commercial contract is bilateral and has mutually been agreed upon.”
14. In the present case, the First Policy is effective from 29.01.2021 till midnight of 28.02.2022 and a premium of Rs.38,380/- was paid for getting an insurance cover of Rs.4,00,000/-. The extension of cover was for a period of one year as described hereinbefore. So the period of 30 days for pre-hospitalization and 60 days for post-hospitalization are to be counted within the subsistence of validity period of the insurance policy. If the aforesaid period of 30 and 60 days is stretched beyond the aforesaid period, it will amount to altering the agreed terms and conditions of the policy. Applying ratio of above said citations, the period of 60 days cannot be counted beyond 28.01.2022 and therefore, the OPs have rightly settled the claims in the Subsequent Policy period. Therefore, there is no deficiency in service nor adoption of unfair trade practice on behalf of the OPs. As such, the complaint of the complainant deserves dismissal and the same is hereby dismissed.
15. As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.
16. Due to huge pendency of cases, the complaint could not be decided within statutory period.
(Monika Bhagat) (Sanjeev Batra) Member President
Announced in Open Commission.
Dated:27.08.2024.
Gobind Ram.
