Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.-406/09.11.2016
Rekha Paul, r/o P 4/A 6, Janta Flats
Dilshad Garden, Delhi …Complainant
Versus
OP1: Manager,
The Oriental Insurance Company Ltd. 88, Janpath,
Ground Floor, Connaught Place, New Delhi-110001
OP2: Manager, Medi Assist India TPA Pvt. Ltd.,
B-20, Sector-2, Near Sec-15 Metro Station,
Noida-201301(U.P.) ...Opposite Party
Date of filing: 09.11.2016
Date of Order: 18.11.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
ORDER
Inder Jeet Singh , President
1.1. (Introduction to case of parties) – The complainant has grievances of deficiency of services that medical insurance policy was taken from OP1 and at the time of taking policy it was assured that any medical emergency, condition or casualty or admission in the hospital, the OP1 will cover her family and pay the mediclaim amount but the complainant had episode on 17.05.2015, for which she was admitted in the Holy Family hospital on 18.05.2015 till 20.05.2015. There was total medical claim amount of Rs.83,361/- besides pre-hospitalization and post hospitalization medical expenses of Rs. 2786/- which OPs failed to reimburse. That is why the present complaint for reimbursement of amount of Rs. 86,147/- with interest, besides damages of Rs. 20,000/- in lieu of harassment.
1.2. The OP1 opposed the complaint by filing detailed reply but primarily the complainant had concealed the material fact of pre-existing disease, the exclusion clauses no. 4.1 and 4.2 of the policy terms and conditions do not entitle for the amount besides clause no. 5.9 in respect of fraud/misrepresentation/concealment. That is why claim was declined.
1.3. The OP2/TPA was also served with the notice on complaint and for want of its appearance, it was proceeded ex-parte on 11.12.2017.
2.1. (Case of complainant) –Complainant’s husband Sh. Sumit Paul took mediclaim policy (Family Floater Plan) for 1,00,000/- on 02.02.2015 and OP1 had issued mediclaim policy bond no. 272900/482015/20620 on 27.02.2015 in respect of four persons covered (namely Sumit Paul-self, complainant/Rekha Paul-spouse, their dependent children Sahil Paul and Noel Paul) against payment of premium. The policy was w.e.f. 27.02.2015 to 26.02.2016. The OP1 had assured that insurance claim of complainant and her family will be covered to meet all medical emergency, condition, admission, etc.
2.2. On 17.05.2015 there was sudden unbearable stomach pain, she was taken to Holy Family hospital for medical help, she was referred for emergency/casualty admission for “endometriotic cyst left overy surgery”. The complainant’s husband also informed OPs about her admission in the hospital. On 18.05.2015 the doctor performed “endometriotic cyst left overy surgery” and complainant was discharged on 20.05.2015.
2.3. On 23.05.2015 complainant applied for reimbursement of the claim amount of Rs. 83,361/- on her medical/surgery besides pre-hospitalization/treatment expenses. The complainant furnished all original medical documents, prescriptions, receipts, etc. of Rs. 83,361/-, which was for period 11.03.2015 to 20.05.2015 to OP2. Complainant also dispatched original payment receipts, medical documents vide speed post letter dated 09.07.2015, which was for period from 16.03.2015, 17.05.2015-20.05.2015 as there were post treatment expenses of Rs. 2,781/- (for 28.05.2015 to 27.06.2015). It was total claim of reimbursement of Rs. 86,147/-.
The complainant has been reminded the OPs for release of medical claim of Rs. 86,147/- however, the same has been ignored or denied by the OPs on the one pretext or the other. OPs were also sent reminder by email dated 23.06.2015, 04.07.2015 and finally speed post letter dated 09.07.2015 but no result, that is why the present complaint.
2.4 The complaint is accompanied with photocopy of cheque of premium paid amount, insurance policy schedule (in three pages issued to the complainant), photocopies of cash receipts of 17.05.2015, emergency card issued by holy family hospital, intimation to OPs of admission of the complainant in the hospital, filing of claim dated 23.05.2015, other receipts of March 2015 onwards, detail of final bill issued by Holy Family hospital, laboratory report, discharge summary, claim form clinical condition and notes and so on.
3.1 (Case of OP)- The complaint is opposed that there is no cause of action against OP1 and the facts involved are complicated questions of fact and law, which cannot be determined in the summary proceeding. The Insured complainant had concealed material facts, the complainant came to the Commission without clean hands. The claim of Rs. 86,147/- is not maintainable either for medical bills amount or of interest component or damages of Rs. 20,000/-, that too without paying the proper and correct court fees. Interest is not payable under insurance policy contract.
3.2. The complainant was diagnosed with “39 year female with P2L2 underwent laproscopic (L) salphigoophorectomy with (R) ovarian cystectomy with hysteroscopy with D&C under GA on 18.05.15” as per discharge summary. However, the OP2 found, in the processing of claim, that the patient had contacted the ailment, which falls within the scope of exclusion clauses of the policy, since the policy in question was in its first year of policy which comes under exclusion clause no. 4.1 & 4.2. Since the complainant and her husband/insured were guilty of suppression and concealment of material facts of existing disease, therefore, clause no. 5.9 is application. In addition the amount claimed is highly exorbitant, exaggerated, irrational and unjust, the same is not payable in terms of policy.
The policy issued is under name PNB Oriental Royal Mediclaim policy obtained by the complainant through his banker Punjab National Bank, which was effective from 15:40 hrs on 27.02.2015 to mid night of 26.02.2015. The complainant is trying to gain the sympathy of this Commission on false and flimsy ground; therefore, the claim is not tenable, since it is hit by terms and conditions of the policy aforementioned.
3.3. The reply is supplemented with true copy of PNB Oriental Royal Mediclaim Policy (with Family Floater Plan) for PNB account holders, letter dated 13.07.2015 while denying the claim by OP1.
4. (Replication of complainant) – The complainant filed rejoinder to the reply of OP1, by denying all allegations in the written statement, with documentary record to demonstrate that initially the OP was not filling the reply, however, pursuant to directions by the Consumer Forum, the OP1 has sent copy of application for adjournment along with other record inclusive of copy of the written statement and other documents, besides proposal form and a sheet of booklet, wherein the situation of emergency/hospitalization, etc. were clearly mentioned but without any exclusion clause as being claimed in the written statement. The insured was not provided any such terms and conditions being relied upon by OP1. The complaint is correct and reimbursement of claim is within the parameter of promise given at the time of policy as well as the booklet sheet provided.
5.1. (Evidence)- The complainant Ms. Rekha Paul filed her detailed affidavit of evidence, which is composite of the documents filed with the pleading and it is on the line of her pleadings.
5.2. The OP led its evidence by filing affidavit of Sh. Vikas Kulshrestha, Divisional Manager, the affidavit is replica of reply while relying upon terms and conditions of policy and repudiation letter dated 13.07.2015
6. (Final hearing)- The complainant and the OP filed their respective written arguments. The parties were also given opportunities for making oral submission, complainant’s husband Sh. Sumit Paul and OP1’s Counsel Sh. Bhupesh Chandna presented their submissions. [The OP1 has relied upon Rakesh Kumar Vs. Oriental Bank of Commerce and Anr. 2019 (1) CPR 83 = 2019 STPL 5842 NCDRC (dod 07.12.2018 in RP No. 3220/2018) that there were similar exclusion clauses 4.1. & 4.2 were considered].
7.1 (Findings)- The contentions of both the sides are considered keeping in view the material on record. At the outset, it is relevant to mentioned that complaint bears date 13.07.2015 and it was filed on 15.07.2015 (vide No.CC-456/2015). The repudiation letter bears date of 13.07.2015 to be in the office of OP, which means and shows the complaint was already prepared & filed since complainant’s request was not considered for settlement of claim. Later-on, this case was received by way of transfer to this Consumer Forum/Commission by the order of Hon'ble State Commission. The issuance of policy, sum insured and tenure of policy are not disputed.
There are disputes on legal objections and also on other facts and features of the case. All of them are being considered and contention of the parties will be dealt appropriately.
7.2. The OP1 has reservation that there are complicated question of facts and law involved which cannot be decided in summary procedure by the Consumer Fora, however, it was opposed by the complainant.
As per record as well as during the final hearing, the OP1 could not show as to which material are complicated in nature or mixed question of fact and law to be determined by the Civil Court. Therefore, this objection is decided against the OP1 that on the basis of material on record in respect of consumer dispute involved of reimbursement of medical claim, it can be determined by the present Consumer Commission. This contention is disposed off.
7.3. The other objection of OP1 is that the complainant has not paid proper and correct court-fees on the amount of medical claimed amount and compensation. However, this legal objection is not tenable, since the Court-fees Act 1870 does not apply to complaint under the Consumer Protection Act but the fees structure is given under rule no. 9A of the Consumer Protection Rules 1987. The OP1 could not establish that fee was not paid.
It will not be out of context to mention that these types of objection are just for the sake of objections to oppose the complaint, but there is no legal sanctity for such objections to stand for. The OP1 is expected not to raise this types of objection to consume the time and energy of Commission.
7.4.1 The another issue is in respect of concealment of the disease as well as exclusions governed by clauses 5.9, 4.1 & 4.2 of the terms and conditions of policy, which have been reproduced in the written statement. It has been opposed by the complainant that the same are not applicable to the situation in hand, since the Insured was provided insurance cover schedule, which is in three pages (Annexure-A) to the complaint and the at the stage of written statement the complainant was supplied copy of proposal form and a sheet of paper booklet, which does not mention about such terms and conditions vis-à-vis the insured was assured that all the medical emergency and admissions will be covered under the policy.
7.4.2 In order to determine this controversy, it requires to scrutinize the record inclusive of the proposal form, the terms and conditions of policy and the record of booklet provided to the complainant along with the written statement, apart from the legal position.
7.5. Therefore, by taking into account totality of circumstances the following conclusions are drawn.
(i) The proposal form filed by the OP1 is not disputed by the complainant, it bears photo-impression of complainant’s husband, who has authored the proposal form. There is table no. 3 (please answer the following in 'Yes or No') having query “Are all the person proposed for insurance in good health and free from physical and menial diseases or infirmity or major complaints”; which was responded by the proposer as ‘Yes’ for all the persons insured inclusive of complainant. There is no other specific column seeking information about any ailment or pre-existing disease to be answered by the complainant. It is a standard proposal form formulated by the OP1. When there is no questionnaire for particular or pre-existing ailment for reply from complainant, then the plea of OP1 of concealment of disease is not made out.
(ii) The repudiation letter mentions about exclusion clauses 4.1 & 4.2 of the terms and conditions of the insurance policy. The complainant has proved insurance policy cover under the title PNB Oriental Royal Mediclaim Policy schedule, which is in three pages and it is not appended with the terms and conditions of the policy but relied in the written statement by OP1. Simultaneously, the proposal form is filed along with a booklet, showing emergency/hospitalization but there is no such clause either like exclusion clauses 4.1 & 4.2 nor any such exclusion clauses under other nomenclature to construe that the Insured was made aware about the exclusion clauses at the time of accepting the proposal form with premium & issuing the policy.
(iii) Ld. Counsel for OP1 submits that has been mentioned specifically mentioned in policy schedule that terms and conditions of policy may be ascertained by visiting the website. However, it would not escape the OP1 from its obligation from disclosure, since contract is a specific between the insurer and the insured, the specific agreed terms and conditions are to be provided to the complainant to be complied by both the sides. Moreover, it is not always necessary that everyone has access to digital mode, since the policy form is in the general standard format and it cannot be expected that everyone will access the website. There is no legal exemption provided not to supply copy of material terms and conditions of the policy. When the parties are to comply the terms and conditions, the same shall be with them.
(iv) 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.
(v) Moreover, 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".
(vi) Since the insured and complainant were not provided terms and conditions of the policy being relied upon in support of written statement but simultaneously the insured/complainant was provided a sheet of paper booklet which mentions that there will be cover of emergency hospitalization & no exclusions, it proves that the insured had entered into insurance contract by virtue of the assurances mentioned in the proposed terms and conditions in the booklet, since it was a specially tailored made policy for Punjab National Bank account holders/employees.
(vii) It does not prove case of applicability of clause no. 4.1, 4.2 and 5.9 to the situation of this case as those terms and condition were not made available to the complainant nor the same were entered between the parties; the ratio of Rakesh Kumar case (supra.) is distinguishable from the facts and circumstances of present case.
(viii) The complainant has proved individual cash bills related to treatment as well as bills of during hospitalization. The total bills are of Rs. 83,361/-, however, by including the post hospitalization and pre hospitalization bill, the total amount comes to Rs. 86,147/- for which claim was lodged on 23.05.2015. As per detail given in claim dated 23.05.2015 an amount of Rs. 2,067/- is prior to 30 days prior to pre-hospitalization, which are to be excluded, therefore, complainant has established that an amount of Rs. 84,080/- was spent by her during her hospitalization, and post-hospitalization expenses besides pre-hospitalization expenses immediately 30 days before hospitalization.
7.6.1. The conclusions drawn in sub-paragraph 7.5 above establish case of complainant of valid claim of Rs.84.080/-.
7.6.2 Since the OP1 failed to reimburse the amount of Rs. 84,080/- and complainant had to spend the amount from her own pocket, therefore, it carries no substance in the submission of OP1 that interest component is not attracted. The interest may not have been mentioned in the insurance policy contract but had her claim been settled, the complainant would not have been deprived of amount of Rs. 84,080/-, it makes out complainant’s entitlement for interest on the amount spent by her. By awarding interest at the rate of 6% from the date of complaint till realization of the amount will meet both ends.
7.7. The complainant seeks compensation of Rs. 20,000/- in lieu of the inconvenience, harassment and agony suffered, although no methodology for quantum of damages is mentioned but it appears to be a rough estimate. It is but natural that the complainant was put to inconvenience as there was no cashless facility provided at the time of treatment and subsequently the claim was not reimbursed despite pursuing the same and complainant dated 13.7.2015 was filed, therefore, compensation of Rs. 10,000/- is ideal in this case and accordingly it is determined in favour of complainant and against the OP1.
7.8. In view of the above, the OP1 is directed to reimburse medical claim of Rs. 84,080/- along with interest at the rate of 6% pa from the date of complaint till realization of the amount to the complainant, apart from compensation of Rs. 10,000/-. This amount will be payable within 30 days from the date of receipt of this order, failing which the interest will be 8% pa on amount of Rs. 84,080/- ( in place of interest of 6% pa).
8: Announced on this 18th November 2023 [कार्तिक 27, साका 1945].
9. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances.
[Shahina] [Inder Jeet Singh]
Member (Female) President
