Delhi

East Delhi

CC/908/2011

KHAZAN SINGH - Complainant(s)

Versus

NEW INDIA ASS. CO. - Opp.Party(s)

13 Feb 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110092

 

C.C. NO. 908/2011

 

1.	Sh. Khazan Singh R/o 4, Delhi Road, Hapur, 2451010, U.P	….Complainant
Versus
1.       2.         3.	M/s New India Assurance Co. Ltd. Regional Office II, Scope Complex, 10th Floor, Laxmi Nagar, New Delhi-110092   The New India Assurance Company Ltd. Timber Nagar Branch, Hapur-245101, U.P.   M/s Genis India Ltd. Third Party Administrator, Corporate Office, 41, Arun Vihar, Sector 37, Noida-201303(India)	…OP1                                                …OP2                                                                                                                                                          …OP3

 

 

      Date of Institution : 01.11.2011

        Order Reserved on : 10.02.2023

        Order Passed on : 13.02.2023

               

QUORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Ms.Rashmi Bansal (Member)

 

 

Order by : Ms.Rashmi Bansal (Member)

 

JUDGMENT

 

        The present complaint has been filed by the complainant against repudiation of his Mediclaim by OP1 and OP2 and praying for release of the claim amount along with compensation for mental agony and harassment and litigation cost.

1. The facts of the case necessary for the adjudication of the present complaint are that the complainant has purchased a Mediclaim policy bearing policy number 321104/48/04/75017 valid from 13.03.2005 to 02.03.2006for himself, his wife and his three sons from OPs. From 1994, the complainant was having policy from Oriental Insurance Company till 1997. During the period 10.02.1994 to 09.02.1995, the complainant was operated at AIIMS New Delhi for heart bypass surgery and the claim of Rs. 44,000/- was paid by Oriental Insurance Company. From 1997 to 2006, the complainant had Mediclaim policy from OPs, valid from 05.03.02 to 04.03.03, the OPs have reimbursed the health checkup expenses incurred at Escorts Heart Institute and Research Centre and after verification even returned the originals to the complainant. It is submitted that during the period 13.03.03 to 12.03.04, the cumulative bonus was added to the sum insured Rs.52,500/- each for self and his wife and Rs.30,000/- for each of the three sons, however, OPs wiped out the bonus, claiming that there was eight days break in the renewal, whereas in the period 08.02.1989 to 07.02.1990, accumulated bonus had continued with increase, even though there was a break period of 9 days. During 05.03.1998 to 04.03.1999, even after 23 days break, the cumulative bonus continued. The complainant further submits that he has not concealed the fact of bypass surgery at AIIMS and the same has been disclosed by the complainant before taking policies from OPs and thereafter OPs have issued the policies. The complainant was admitted to Max Hospital, New Delhi on 25.02.05 (by mistake written as 25.02.05, the actual date is 25.05.05) Upon admission the TPA was denied by MED Save healthcare Limited to be the TPA of OPs and the complainant has to suffer because of negligence and deficiency in service on the part of OPs and had to pay to hospital in cash. Complainant further submits that on 08.06.2005, he was again admitted for angiography, and again the TPA turned down the request on the ground that it is a pre-existing disease. A sum of Rs.13,000/- was paid by him. The reimbursement form for the amount spent and original bills were submitted to the TPA. Again on 19.07.2005 the complainant was admitted The request to the TPA was turned down on the ground of pre-existing disease. A total sum of Rs.3,51,483/- was paid by complainant on 26.07.2005, upon discharge. The representation dated 16.09.2005 was sent to the OPs stating that total expenses incurred is of Rs.3,74,480/-. The OPs refused to reimburse the claim. The complainant submits that the refusal on the part of the OPs to reimburse the claim is a deficiency in service. His efforts for the redressal of his grievances from Deputy Secretary to the Government of India, Ministry of Finance were failed and thereafter he has filed a consumer complaint bearing number 908/07 before Consumer Court at Delhi at Saini Enclave, which was subsequently withdrawn on 07.09.07 and filed before MRTP Commission which was decided as non-maintainable. Thereafter, the complainant has filed again before District Consumer Commission at Saini Enclave praying for the reimbursement of the amount of Rs.3,74,480/- along with 24% interest, a compensation of Rs.50,000/- on account of mental agony, pain and harassment. The said complaint was dismissed vide order dated 15.10.2013 holding that the complaint is highly barred by limitation. On appeal, State Commission vide its order dated 31.01.2022 has set aside the order dated 15.10.2013 by restoring the complaint to its original complaint number 908/2011 with the direction to hear the case afresh on merits and to adjudicate the same, preferably within three months from the date of receipt of this judgment by holding that the entire period spent before MRTP Commission (around four years from 2007– 12.07.2011) should have been excluded while computing the period of limitation of the subsequent complaint filed before the District Forum and the facts reflect that the complaint case of the appellant falls within the limitation period of two years as provided under CPA 1986.
2. In the light of above-mentioned background of the case, this commission proceeded with the complaint confining itself only on merit. The file received by this commission on 29.11.2022 and the notice was issued to OPs on 01.12.2022, which stands duly served. The matter was put up for final arguments on 02.01.2023 since it is to be heard afresh and then on 03.02.2023 and thereafter on 10.02.2023 and finally reserved for orders on 13.02.2023, and on none of the occasions the OPs or their representative appeared.
3. Court file reveals that earlier all the pleadings and the evidence were concluded. The OP has filed its written statement. The complainant has filed his rejoinder controverting the case set up by OP in WS, reaffirming its own case and evidence by way of affidavit. There is no evidence filed by OP.
4. OPs state that the complaint deserves to be dismissed, being infructuous, devoid of merits, based on concealment of material, filed with the mala-fide intention to cause financial losses and to extort money from OP and has denied all contents, allegations stated in the complaint. The insurance cover is admitted stating that it was issued for the first time to the complainant in the year 30.01.1987, which continued till 09.02.1994 and a claim filed by the complainant with respect to his wife was duly paid. On 10.02.1994, the complainant shifted to Oriental Insurance Company, and during this period has received treatment for by-pass surgery at AIIMS. On 10.02.1997, switched back to the OPs and a fresh policy with fresh proposal form, fresh amount and no accumulated bonus was issued to the complainant. The policy issued in 1997 has nothing to do with the policy issued in 1987 as the same was the fresh policy.
5. OPs further admitted the issuance of the insurance cover to the complainant from on 13.03.2003 with fresh proposal form, new amount and no cumulating bonus as the complainant had failed to renew his earlier policy due for renewal on 04.03.2003. The complainant has accepted the same without any objection and the proposal form was duly handed over to the complainant. OP submits that as a fresh policy was issued to the complainant and admittedly the complainant had undergone bypass surgery in 1994–1995, when he was insured with the Oriental Insurance Company which was prior to the issuance of fresh policy commencing from 13.03.2003 to 12.03.2004, the question regarding coverage of the pre-existing disease does not arise as the same are completely excluded as per the exclusion clause 4.0 and 4.1 of the terms and conditions of its policy issued and duly handed over to the complainant. OPs have also submitted that information regarding change in the TPA was supplied to the complainant and hence there is no negligence on the part of OPs.
6. Despite giving opportunities by this commission, OPs did not appear nor has filed its evidence.
7. In support of its claim, complainant has filed medical records; copy of the details of the Mediclaim policies taken by him; copy of hospitalization domiciliary hospitalization policy benefit no. 321104/48/04/75017; copies of the bills and the claim presented to OP.
8. This Commission is vigilant to the fact that OPs have filed its written statement only and not filed its evidence. The parties to the dispute are required to give evidence in support of their respective claims. It is a settled principle that pleadings are not evidence and that to prove its case, the OP has not taken any steps as averred in the written statement. Mere pleadings are not evidence. The OPs ought to have led evidence to prove their case. Pleadings make out a case for adjudication, but it is the evidence that sustain or defeats it upon final hearing. Mere pleadings without evidence cannot be considered as pleadings are not evidence. In the present case, after filing the written statement OPs did not appear despite notice, therefore, the evidence stage of the OPs was closed. Also, OPs did not file written argument or advanced oral submissions.
9. The commission has perused the documents available on record and heard the Ld. Counsel for the complainant. Document on records establish that policy no. 321104/48/04/75017 valid from 13.03.2005 to 02.03.2006 is issued to complainant in the name of self, his wife and three children, for sum assured of Rs. 1,50,000/ bonus amount of Rs. 15,000 /-  for each.
10. Documents on records also show that insurance cover was for the first time issued to the complainant in the year 30.01.1987by OP which continued till 09.02.1994, and thereafter complainant switched to Oriental Insurance Company from 1994- 1997, during which period he had undergone by-pass surgery and the claim for the same was paid by the Oriental Insurance Company. Thereafter complainant has taken policy from OPs from 1997 till 2006 renewed on each occasion and has not claimed any claim during this period from OPs. Complainant has been admitted in the hospital on 26.05.2005, then on 08.06.2005 and 19.07.2005 and each time claim through his TPA was turned down by the OPs and he has paid the bills out of his own pocket. The total expenses incurred by the complainant in the hospital on the above noted admissions are of Rs.3,74,480/-, which was refused by the OPs on the ground of pre-existing disease that he has under gone in 1994. Since the disease was disclosed by the complainant and also considering the fact that before issuing any insurance cover, as per standard procedure of the insurance company, it is mandatory to undergo medical checkup and on the basis of the same any pre-existing disease which is detected it is excluded from the coverage by the insurance company. The documents on record reveals that during the period from 05.03.2002–04.03.2003, the OPs had reimbursed the health checkup expenses incurred at Escorts heart Institute and research Centre, New Delhi after verifying the checkup papers at the hospital.  Therefore, this cannot be said that the OPs were not aware about the pre-existing disease of the complainant.
11. Moreover, there is nothing on record to show that the bypass surgery in the year 1994-95 is an extension of heart disease in the year 2005 and existed for a period of a period of 10 years. It is not possible to say that such disease after surgical procedure continues or exists for such a long time. There is also no expert evidence to prove the same. The complainant has affirmed in his affidavit that he has undergone bypass surgery in the year 1994–1995 (no specific date was given) and almost after 3 years, in 1997, he took the insurance policy from OP and continued till 2006. He was advised angiography and further treatment in 2005, almost eight years after taking the insurance policy in the year 1997. Medical examination has been conducted by OP. If the OP knew that heart disease continues over a time, then it ought to have excluded the same from the policy. The policy schedule shows that the exclusion clause is subject to ‘None’. It is also observed that the short note given below explains the term ‘None’ as- “this insurance shall not extend to pay any expenses incurred relating to the disease(s)/sickness/injury mentioned in this column, and for consequences attributable there to or accelerated thereby or arising there from”.  Since it is mentioned as ‘None’, therefore, it is clear that the policy contains no exclusion clause. Therefore, the repudiation of the claim of the complainant on the ground of pre-existing disease to be fallen under the exclusion clause is wrong and unjustified and non-payment of the claim amounts to deficiency in service on the part of OPs.
12. This Commission has considered the above facts and circumstances of the case and the documents on record. Although the complainant has claimed an amount of Rs. 3,74,480/-from the OP, but the total sum insured by the complainant is Rs. 1,50,000/- and if the bonus of Rs. 15,000/- is added, then the sum insured is only 1,65,000/-. The complainant further would not be entitled to more than the sum insured. This commission is of the view that complainant is entitled for the reimbursement of the amount of 1,65,000/- as the total sum insured against self, from the date of filing the complaint 01.11.2011 with interest @ 6% p.a. till its actual realization. An amount of Rs. 30,000/- is also awarded towards mental sufferings, agony, and harassment including the litigation cost. The above said amount be paid to the complainant within one months from the date of receiving of the order, failing which the entire amount shall carry an interest at the rate of 9% p.a. till its actual realization by the complainant.
13. The file be consigned to record room after providing the copy of the order to all the parties as per rules of CPA, 1986 and the order be uploaded on website.
14. The order contains 13 pages, each bears our signatures.
15. Announced on 13.02.2023.