Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that she got herself medically ensured vide policy No.401311/48/15/8500000010 valid for the period from .02.04.2015 to 01.04.2016 and she has been paying the premium regularly since 2012. Further alleges, that before being insured under the medi claim policy, she was medically checked up by the office of Opposite Party No.1 through their medical officer and said policy was cashless policy. On 20.10.2015 the complainant suffered a pain in the left plank and as such, she was taken to R.G.Stone Clinic on 20.10.2015 where the complainant hospitalized and she was diagnosed Right Infected HDN with Staghorn Calculus for which Right PCN was done and Pus was drain. In this regard, the Opposite Parties were immediately informed, but the Opposite Parties refused to make the cashless benefit to the hospital. Said hospital charged Rs.1,54,750/- from the complainant for her treatment. Thereafter, the complainant lodged the claim with the Opposite Parties for the reimbursement of her claim and completed all the formalities, but the Opposite Parties repudiated the claim of the complainant on the false and frivolous grounds and as such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties may be directed to make the payment of medical expenses amounting to Rs.1,54,750/- alongwith interest @ 12% per annum and also to pay of Rs.2,00,000 on account of compensation due to mental tension and harassment caused by the complainant and also to pay any other relief to which this District Consumer Commission may deem fit.
3. Opposite Party No.1 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is submitted that the claim of the complainant was not covered under the policy and the competent doctors of Opposite Party No.2 minutely scrutinized the claim of the complainant and they recommended to treat the said claim as no claim vide recommendation dated 29.01.2016. Said policy was going in 4th year when the complainant suffered sickness and the complainant was having pre existing diseases and she concealed the facts regarding her earlier disease and obtained the policy in the year 2012 by concealment of her pre existing disease. On merits, the Opposite Party took up the same and similar pleas as taken up by them in the preliminary objections. Hence, Opposite Party has rightly repudiated the claim of the complainant after application of mind and the complaint may be dismissed with costs.
4. In order to prove her case, the complainant has tendered into evidence her affidavit Ex.C-A alongwith copies of documents Ex.C1 to Ex.C9 and closed the evidence on behalf of the complainant.
5. On the other hand, to rebut the evidence of the complainant, Opposite Party No.1 also tendered into evidence the affidavit of Sh.Pramod Jain Ex.RA, affidavit of Dr.Pardeep Kumar Ex.RB alongwith copies of documents Ex.R1 to Ex.R6 and closed the evidence.
6. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
7. Ld.counsel for the Complainant as well as ld.counsel for the Opposite Party No.1 have mainly reiterated the facts as narrated in the complaint as well as in their written statements respectively. We have perused the rival contention of the ld.counsel for the parties. The only contention of the ld.counsel for the complainant is that during the period of policy, the complainant suffered pain in the left plank and as such, she was taken to R.G.Stone Clinic on 20.10.2015 where the complainant hospitalized and she was diagnosed Right Infected HDN with Staghorn Calculus for which Right PCN was done and Pus was drain. In this regard, the Opposite Parties were immediately informed, but the Opposite Parties refused to make the cashless benefit to the hospital. Said hospital charged Rs.1,54,750/- from the complainant for her treatment. Thereafter, the complainant lodged the claim with the Opposite Parties for the reimbursement of her claim and completed all the formalities, but the Opposite Parties repudiated the claim of the complainant on the false and frivolous grounds. Further contended that before being insured under the medi claim policy, she was medically checked up by the office of Opposite Party No.1 through their medical officer and said policy was cashless policy. On the other hand, ld.counsel for the Opposite Party No.1 has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that the claim of the complainant was not covered under the policy and the competent doctors of Opposite Party No.2 minutely scrutinized the claim of the complainant and they recommended to treat the said claim as no claim vide recommendation dated 29.01.2016. Said policy was going in 4th year when the complainant suffered sickness and the complainant was having pre existing diseases and she concealed the facts regarding her earlier disease and obtained the policy in the year 2012 by concealment of her pre existing disease. On this point, evidence has to be referred to by us on the record with regard to pre existing disease upon complainant. The onus to establish this fact is upon the Opposite Parties in this case. We have perused the evidence produced by the Opposite Party, but there is neither any affidavit nor any particulars of the investigator recorded in them. Even the certificate has not been placed on the record. There is no affidavit of doctor of the treating hospital to establish this fact on the record regarding previous disease of insured. In the absence of any affidavit of investigator and the affidavit of treating doctor of the hospital, we do not place any reliance upon the averments of the Opposite Party, as pressed into service by the Opposite Parties in this case. Consequently, we are of this view that Opposite Party have failed to discharge the onus solemnly laid upon it to prove this fact that the complainant was suffering from above pre-existing disease before taking the policy and she deliberately and fraudulently concealed this material fact from Opposite Party. We, thus, conclude that there is no substantive evidence on the record to prove this fact that the complainant was suffering from any disease before she took the insurance policy and he willfully suppressed this fact fraudulently from the Opposite Party. Moreover, as contended by the complainant that before the issuance of the policy in question, the Opposite Party has also conducted the medical examination of the complainant and after finding everything Okay, the Opposite Party issued the aforesaid policy. Moreover, if the complainant was suffering from any diseases prior to issuance of the policy, in question, the same must not have escaped the notice of the empanelled doctors of the Insurance Company. However, no such investigation record has been produced by the opposite party. In case Bajaj Allianz Life Insurance Co. Ltd. & Ors. Vs. Raj Kumar III (2014) CPJ 221 (NC), it was held by the Hon’ble National Commission that “usually, the authorized doctor of the Insurance Company examines the insured to assess the fitness and after complete satisfaction, the policy is issued. It was held that the Insurance Company wrongly repudiated the claim of the complainant.”
8. Furthermore, we are not agreed with this plea of the opposite party as perusal of the document placed on record by the opposite party Ex.R4 shows that the opposite party only relied upon the opinion of TPA and till date has not made any effort to decide the claim. Moreover TPA has no authority to reject the claim as only the Insurance companies after making investigations can decide the claim. Reliance in this connection can be placed upon Sukhdev Singh Nagpal Vs. New Karian Pehalwal Cooperative Agriculture Service Society & others in First Appeal No. 1105 of 2014 decided on 25.4.2017 of our own Hon’ble State Consumer Disputes Redressal Commission, Chandigarh wherein it was held that
“The TPAs have no authority to reject the claim – Such power lies , exclusively with the Insurance Companies – The TPA can only process the claim and forward the same to the Insurance Company and the competent authority of the Insurance company is to decide about the same-The claim of the complainant was illegally and arbitrarily rejected by the TPA, against the instructions of the IRDA”.
9. It is the case of the complainant that before being insured under the medi claim policy, she was medically checked up by the office of Opposite Party No.1 through their medical officer and when at that time the opposite party issued the policy without confirming all the aspects and premium has been received after that the opposite party cannot absolve themselves from the liability of any occurrence . The opposite party also failed to prove on record that the complainant has taken any treatment for the said disease from any hospital. It has been held by the Hon'ble National Commission in case New India Assurance Co.Ltd&Anr Vs. Murari Lal Bhusri 2011(III) CPJ 198 (NC) that where the Insurance company failed to produce any evidence to show that respondent was aware of any pre-existing disease at the time when insurance policy was taken, opposite party was not justified in repudiating the claim of the complainant on the ground of pre-existing disease. Not only this, as per the policy document Ex.C2 dated 02.04.2015, at the time of obtaining the policy, the complainant was 51 years old (meaning thereby the complainant was more than 45 years old, so it was the bounden duty of the Opposite Parties-Insurance Company to get the complainant medically examined before issuing the policy in her name who was above 45 years of age. In support of his contention Ld.counsel for the complainant placed reliance upon I.R.D.A.I Rules and Instructions with regard to thorough medical examination if the insured is more than 45 years which is reproduced as under:-
“As per instructions issued by the Insurance Regulatory and Development Authority of India (IRDAI), it was bounded duty of the insurer to put insured to thorough medical examination in case Mediclaim insured was more than 45 years and if insurance company failed to do so then insurance company has no right to decline the insurance claim on account of non disclosure of the facts of pre existing disease when the policy was taken. The above observations is supported by law cited in SBI General Insurance Company Limited Vs. Balwinder Singh Jolly” 2016(4) CLT 372 of the Hon’ble State Commission, Chandigarh.”
So the abovesaid law squarely covers the case of the complainant that it was the duty of the insurer to get medically examined while issuing the policy and once the policy was issued the insurer cannot take the plea of pre-existing disease of the insured.
10. It also needs to be mentioned that Section 19 of the General Insurance Business (Nationalization) Act, 1972 states that it shall be the duty of every Insurance Company to carry on general insurance business so as to develop it to the best advantage of the community. The denial of medical expenses reimbursement is utterly arbitrary on the ground that disease in question was pre-existing disease. It is mere an excuse to escape liability and is not bona fide intention of the insurance company. Fairness and non-arbitrariness are considered as two immutable pillars supporting the equity principle, an unshakable threshold of State and public behavior. Any policy in the realm of insurance company should be informed, fair and non-arbitrary. When the insurance policy has exclusions/conditions to repudiate the claim or limit the liability, the same must be specifically brought to the notice of the insured and are required to be got signed to show that such exclusions and conditions have been brought to his/her notice. Recently, our own Hon’ble State Consumer Disputes Redressal Commission, Chandigarh in First Appeal No. 50 of 2019 titled as Bajaj Alliance General Vs. Arjan Singh decided on 04.03.2021 also held so.
11. The need for interpreting a contract always arises in two situations, (i) when a gap is needed to be filled in the contract and (ii) an ambiguity is needed to be resolved in the contract, then to find out correct intention of the contract, spirit behind it is required to be considered. Normally, the insurance policy is a contract of adhesion in which other party is left with hardly any bargaining power as compared to the insurer. Insurance contracts are standard form contracts and are drafted by the insurance company and as such, insurance company is at higher footing than the insured. The benefit of such clause, as exclusion clause, would go to the insured unless the same is explained in clear terms by the insurer. In such circumstances, the tribunal would be more oriented towards the interpretation which goes against the party who has inserted/drafted the disputed clause in the agreement/contract. The adjudicating authority is required to look into whether the intention of the party is to exclude or limit liability has been appropriately explained to the other party or not. This Commission while interpreting insurance agreement is to honour the intention of the parties, who have signed the agreement. Even if the agreement had general exclusion/condition for misrepresentation still fraudulent misrepresentation and non-disclosure may not be there. The innocent and negligent misrepresentations are to be ignored. On the other hand, the rulings (i) Satwant Kaur Sandhu Vs. New India Assurance Company Limited, (ii) Murti Devi Vs. Birla Sun Life Insurance and (iii) Mamohan nanda Vs. United India Insurance Company Limited, cited by the ld.counsel for the Opposite Parties are not applicable and relevant to the facts of the present case. The insurance companies are in haste to charge the premium, but when the time to pay the insurance claim comes, they generally take up one excuse or the other to avoid their liability. The reliance of counsel for the appellant on law laid down in “Life Insurance Corporation of India Vs. Priya Sharma & others” 2012(4)CPJ-646, “Life Insurance Corporation of India & others Vs. Harbans Kaur” 2009(3)CPC-677, and “Life Insurance Corporation of India & another Vs. Ashok Manocha” 2011(3)CPC-285, would have been applicable, had this fact been established that life assured suffered from pre-existing ailment of and he deliberately suppressed this fact fraudulently from the Opposite Parties, when he took the insurance policy. In view of our finding recorded above that Opposite Parties had failed to prove this fact that complainant was suffering from any pre-existing ailment and hence these authorities would not be attracted in this case. In this regard, on the same and similar facts and circumstances of the case, Hon’ble State Consumer Disputes Redressal Commission, in First Appeal No.62 of 2015 decided on 02.02.2017 in case India First Life Insurance Vs. Ms.Sudesh Rani also held so. On the other hand, the rulings cited by the ld.counsel for the Opposite Parties are not applicable to the facts of the present case and we distinguish the same.
12. The law on the question of applicability of exclusion clause, suppression of the relevant factually position regarding any pre-existing disease from which the insured was suffering and the treatment thereof, if any, received from any hospital etc., has been the subject matter of number of decisions by the Hon’ble National Commission as also by the Hon’ble Supreme Court of India. In nutshell, the settled position is that it is the duty of the insured to disclose the above mentioned information to the insurance company at the time of buying the insurance policy and, if the same was not disclosed by the insured, the insurance company was well within their rights to repudiate the claim. However, the insured was under no obligation whatsoever to foresee, assess and apprehend the probable and future complications, which might or could suddenly arise from the earlier disorder. In this regard, the Hon’ble Supreme Court in their latest judgment in case Civil Appeal No.8386 of 2015 titled as “Manmohan Nanda Vs. United India Assurance Co. Ltd. & Anr.” decided on 06.12.2021, has held the object of buying a Medi-claim Policy is to seek indemnification in respect of a sudden illness or sickness which is not expected or imminent and that may occur overseas, “If the insured suffers a sudden sickness or ailment, which is not expressly excluded under the Policy, a duty is cast upon the insurer to indemnify the appellant for the expenses incurred there under”. In this regard, recently Honble State Consumer Disputes Redressal Commission, Punjab at Chandigarh in First Appeal No.482 of 2019, decided on 10.01.2022 in case titled as Bajaj Allianz General India Insurance Company Versus Kewal Singh Kainth also held so.
13. In such a situation the repudiation made by Opposite Party-Insurance Company regarding genuine claim of the complainant have been made without application of mind. It is usual with the insurance company to show all types of green pasters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
14. Moreover, prior to issuance of the policy, it was required to check up life assured thoroughly. It was the bounden duty of the Opposite Party to make thorough investigation at the initial stage. It appears that the Opposite Party has different yard stick at the time of accepting the policy for procuring the business and different face at the time of discharge of its lawful liability. Not only this now-a-days it has become a business of almost all the Insurance Companies to deny the claim one or on another ground . Even otherwise in the fast growing business competition among the Insu. Companies unhealthy practice developed to get maximum benefits and profits. But in most of the cases he is left cheated when his claim is rejected with just a stroke of pen that his claim is against the terms and conditions of the policy or his claim has been deducted as per terms and conditions of the policy. The Insurance companies are required to explain all the details and conditions of the Insurance policy to the customers because a common man is not supposed to know all the technicalities of law. Once accepting the premium and everything entered into an agreement the Insurance company cannot wriggle out of the liability merely by saying that repudiation has been made as per terms and conditions of the policy .
15. In view of the above discussion, we hold that the Opposite Party-Insurance Company have wrongly and illegally rejected the claim of the complainant.
16. To support their contention, the Opposite Party has cited the rulings, but these rulings are not applicable to the facts of the present case and are not supportive to the instant case.
17. The complainant in her complaint has claimed the reimbursement of his medical bill upto the extent of Rs.1,54,750/- and this amount spent by the complainant on treatment has nowhere denied by the Opposite Party by filing any cogent and convincing evidence and hence, the claim of the complainant to that amount is genuine and we allow the claim of the complainant accordingly.
18. In view of the aforesaid facts and circumstances of the case, we allow the complaint of the Complainant and direct Opposite Party-Insurance Company to pay the amount of Rs.1,54,750/- (Rupees One lakh fifty four thousands seven hundred fifty only) to the complainant alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 17.10.2017 till its actual realization. The compliance of this order be made by Opposite Party-Insurance Company within 60 days from the date of receipt of copy of this order, failing which the complainant shall be at liberty to get the order enforced in accordance with law. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
19. Reason for delay in deciding the complaint.
This Consumer Complaint was originally filed at District Consumer Disputes Redressal Forum (Now Commission) at Ludhiana and it keep pending over there until Hon’ble State Consumer Disputes Redressal Commission, Punjab vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 has transferred the instant Consumer Complaint alongwith Other Complaints to District Consumer Commission, Moga with directions to work on this file onward from 14th March, 2022 and accordingly District Consumer Commission, Moga has decided the present complaint at Camp Court, Ludhiana, as early as possible as it could decide the same
Announced in Open Commission at Camp Court, Ludhiana.
