| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BATHINDA C.C. No. 172 of 09-07-2019 Decided on : 25-01-2023 Mohinder Singla aged about 60 years W/o Vijay Kumar S/o Bhagwan Dass. Vijay Kumar aged about 64 years S/o Bhagwan Dass.
- Both residents of H. No.119, Near Geeta Bhawan, Saddar Bazar, Factory Road, Rampura Phul, Tehsil Phul Distt. Bathinda. ........Complainants Versus Oriental Insurance Company Limited, Registered & Head office A 25/27, Asaf Ali Road, New Delhi through its Regional Manager. Oriental Insurance Co. Ltd., 4501, Bank Street, Bathinda, through its Senior Divisional Manager M/s Raksha Health Insurance Pvt. Limited, 15/5, Mathura Road, Faridabad 121003 through its MD/ Chairman/ Director.
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986 QUORUM Sh. Kanwar Sandeep Singh, President Sh. Shivdev Singh, Member. Present For the complainants : Sh. Vikas Singla, Advocate For opposite parties : Sh. Vinod Garg, Advocate for OP Nos. 1 &2. Opposite party No.3 ex-parte. ORDER Kanwar Sandeep Singh, President The complainants Mohinder Singla and Vijay Kumar (here-in-after referred to as complainants) has filed this complaint U/s 12 of Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (Now Commission) against Oriental Insurance Company Limited and others (here-in-after referred to as opposite parties). Briefly stated, the case of the complainant is that the complainant No.1 purchased Oriental Bank Mediclaim Policy Schedule No. 233200/48/2016/3365 from 28.01.2016 and then policy No. 233200/48/2017/4080 for the period 06.03.2017 to 05.03.2018 which was further got renewed vide policy No.233200/48/2018/4137 for the period 06.03.2018 to 05.03.2019. The opposite parties assured that the insurance policy covers all type of medical expenses on the treatment in case of any disease or accident. The opposite parties No.1 and 2 did not issue any terms and conditions of the policy. The opposite parties at the time of issuing the first policy for the period starting from 28.01.2016 got the proposal form signed from the complainants and the complainants disclosed actual position of their health. The opposite parties also got the complainants medically examined and had satisfied themselves about the health of the complainants and only then issued the insurance cover. It is alleged that complainant No. 2 suddenly suffered from breathlessness and cough on 25.10.18 etc. He was admitted in Fortis Hospital, Mohali on 26.10.2018 and remained admitted there upto 29.10.18 where he was undergone various tests and got treatment. The family members of the complainant submitted the insurance policy in said hospital for cashless facility but no cashless authorization was given by them. The complainant No.2 was discharged after treatment on 29.10.2018 and the said hospital charged Rs.63,529/- from the complainants. Besides that the complainants also spent another sum of Rs.6240/- on medicines etc., and also submitted all original bills and records and claim No.55651819379873 was registered by the opposite parties It is alleged that opposite parties wrongly denied the claim vide letter dated 15.02.2019 on the basis of some letter from TPA i.e. opposite party No.3 on the basis of exclusion clauses No.4.10 and 4.16 although no exclusion clause was supplied to the complainant at the time of insurance or thereafter till date. The said repudiation letter dated 15.02.2019 is totally illegal, null and void and is not binding on the rights of the complainants as the same has been issued with a predetermined mind on the basis of letter from opposite party No.3 (TPA). The opposite parties had satisfied themselves about health of complainant No.2 at the time of issuing the policy and even they noticed that complainant No.2 has obesity even at the time of taking first insurance. The treatment was not taken for obesity or for any weight control program etc. Rather the treatment taken was for breathlessness and cough etc. It is pleaded that it is the settled law that in case the terms and conditions of insurance policy are not supplied, the opposite parties cannot take the benefit of exclusion clause. Even otherwise in the alternative, the exclusion clause is not applicable as the complainant never suffered from any such problem of cough and breathlessness earlier at the time of inception of the policy. It is alleged that due to non-payment of the claim amount, the complainants are suffering heavy damages on account of interest loss as well as they are suffering mental agony and pains for which they claimed compensation to the tune of Rs.50,000/-. On this backdrop of facts, the complainants have prayed for directions to the opposite parties to pay an amount of Rs. 69,769/- on account of reimbursement of medical expenses as per claim lodged, with interest @ 18% p.a. and also to pay compensation of Rs. 50,000/- besides litigation expenses to the tune of Rs. 10,000/-. Upon notice, the opposite parties No.1 & 2 put an appearance through counsel and contested the complaint by filing written reply raising legal objections that the intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under the ' 'Act' and appropriate remedy, if any, lies only in the Civil Court. The complainants have concealed material facts and documents from this Commission as well as the opposite parties. It has been pleaded that the complainants have concealed the fact that the claim in question was not payable as the complainant No.2 was admitted in Fortis Hospital, Mohali on 25.10.2018 to 29.10.2018 for the treatment of obesity which is clear from the documents submitted by the complainants and said obesity treatment is not covered under exclusion clause 4.16 and the claim is also not payable under clause 4.10 of the policy being for evaluation/diagnostic purposes, which reads as under:
4.16: Treatment of obesity or condition arising there from (including morbid obesity) and any other weight control programme, services or supplies etc. 4.10: Expenses incurred at Hospital or Nursing Home primarily for evaluation/diagnosis purpose which is not followed by active treatment for the ailment during the hospitalized period OR expenses incurred for investigation or treatment irrelevant to the disease daignosed during hospitalization or primary for admission, referral fee to family doctors,out station consultants, Surgeons fees, Doctor's Home visit charges/Attendant/ Nursing Charges during pre and post hospitalization period etc. As such the claim of the climants was repudiated vide letter dated 15.2.2019. The insurance policy is always subject to its terms and conditions. Further legal objections are that complainants are not consumers and they have no locus standi or cause of action to file the present complaint. The complaint is not maintainable. That the complaint is bad for non-joinder of necessary parties as the complainants have impleaded Oriental Bank of Commerce and Fortis Hospital Mohali as parties who are otherwise necessary parties to present complaint. On merits, the opposite parties No.1 & 2 reiterated their version as pleaded in legal objection detailed above. After controverting all other averments of the complainants, opposite parties No.1 & 2 prayed for dismissal of complaint. The opposite party No.3 in its separate written statement has pleaded that complainants have filed the complaint against opposite parties No.1 to 3 whereas mediclaim policy under which the complainants have filed claim, was issued by Oriental Insurnace Co. Ltd., the insurance contract between the insured and the insurer i.e. opposite parties No. 1 & 2. Opposite party No.3 is nominated as the Third Party Administrator for arranging to process the claims of the insurance company as per the terms and conditions. It has been pleaded that complainant was covered under mediclaim policy No.233200/48/2018/4137 period of 6.3.2018 to 5.3.2019 issued by Oriental Insurance Company Limited i.e. opposite party No. 1 &2. Claim in respect of Mr. Vijay Kumar hospitalization in Fortis Hospital during 25.10.2018 was diagnosed with known case of HYPOVENTILATION SYNDROME WITH MORBID OBESITY WITH HYPERTENSION WITH T2 DM INSIGNIFICANT CAD. As treatment of Morbid Obesity and its complications are excluded from the scope of policy, and non-payable. As such claim was recommended for repudiation. All other averments have been denied. At the initial stage/proceedings, Sh. Sagar Kumar A.R appeared before this Commission on behalf of opposite party No.3. Thereafter, none appeared on behalf of opposite party No.3, as such ex-parte proceedings were taken against it. In support of their complaint, the complainant has tendered into evidence two affidavits, one of Sh. Mohinder Singla of dated 4.7.2019 (Ex. C-17) and other of Sh. Vijay Kumar dated 4.7.2019 (Ex. C-18) and the documents (Ex.C-1 to Ex.C-16). In order to rebut the evidence of complainants, opposite parties No.1 & 2 tendered into evidence affidavit of Sh. Ashwani Kumar dated 12.8.2019 (Ex. OP-1/4) and the documents (Ex. OP-1/1 to Ex. OP-1/3 & 1/5) Learned counsel for the parties reiterated their stand as taken in their respective pleadings. We have heard learned counsel for the parties and gone through the record. In the case in hand, there is no dispute regarding insurance and claim filed by complainant. The controversy is that claim filed by complainants for the treatment taken from Fortis Hospital, Mohali, for the period from 25-10-2018 to 29-102018 was rejected by the opposite parties vide letter dated 15-2-2019 (Ex. C-15). A perusal of aforesaid repudiation letter reveals that opposite parties No. 1 & 2 have repudiated the claim of the complainants on the basis of letter issued by opposite party No. 3. The opposite parties have repudiated the claim of the complainants under Clause 4.16 and 4.10 of the policy, according to which , as detailed above (para No. 9), there is exclusion on account of treatment of obesidy or conditions arising there from and any other weight control program and that expenses incurred for evaluation'diagnostic purposes which is not followed by active treatment for the ailment during the hospitalised period or expenses incurred for investigation or reatment irrelevant to the disease diagnosed during hospitalisation. Ex. C-4 is the Discharge Summary issued by Fortis Hospital, Mohali. It has been mentioned Present Complaints : “The patient was admitted with complaints of breathlessness. NYHA II-III, cough with expectoration since last 7-10 days H/o nocturnal cough+ “ Course in Hospital Patient admitted with above mentioned complaint and investigated thoroughly. He underwent CAG on 27-10-2018 revealed Insignificant CAD. There were no post procedure complications. He was kept in negative balance. In view of breathlessness ? OSA pulmonology consult was sought under Dr. V K Maini and treatment was optimized. Patient's subsequent stay in the hospital was uneventful. Now being discharge on optimum medical management with advice to follow up in OPD.” Therefore, aforesaid treatment reveals that patient was having history of nocturnal cough and during admission in the hospital on 27-10-2018, he underwent CAG i.e. Coronary Artery Angiography. There is nothing mentioned in the treatment chart/discharge summary that problem/disease i.e. nocturnal cough for which patient/complainant No. 2 visited/admitted in the hosptial was complication of obesity or he got any treatment for obesity rather complainant No. 2 was undergone Coronary Artery Angiography. There is also nothing mentioned in the treatment chart that complainant incurred expenses for evaluation/diagnostic purposes only. No doubt it is mentioned in Discharge Diagnosis that : “Hypoventilation Syndrome Morbid Obesity; Atrial Fibriliation – NSR; CAG (27-10-2018), Insignificant CAD, Hypertension; Diabetes Mellitus Type-2, but that does not prove that disease for which treatment taken by the complainant No. 2 was due to obesity. Perusal of file reveals that complainant incurred Rs.63,529/- on treatment vide Bill Ex.C-6 & Ex. C-7 and receipts Ex. C-8 & Ex. C-9 and Rs.6240/- on medicine vide Bill Ex. C-11 & Ex. C-12. Moreover, at the time of effecting insurance, complainants were medcally examined and this fact was not specifically denied by the opposite parties. During the continuation of insurance policy, if insured suffers from any problem/disease, the opposite parties are not justified to deny genuine insurance claim on flimsly grounds. Further more, as per Ex. C-2 & Ex. C-3, opposite parties have not provided policy terms and conditions to the insured rather it has been mentioned that for policy details, insured can visit website. That proved that no terms and conditions were supplied to the insured alongwith policy. Hon'ble State Commission, Haryana, in the case titled Star Health and Alied Insurance Co. Ltd., Vs. Asha and others 2015 (1) CLT 590 has held that : “It is well settled that the company, who is taking specific plea about repudiation of any claim, has to prove that the exclusion clause was explained to the consumer – Once the insurer failed to prove this fact, it cannot take any benefit from such an exclusion clause.” Hon'ble National Commission in the case titled National Insurance Co. Ltd., Vs. Radhey Shyam Balwada and another 2014(2) CPJ 201 held : “Insurer is under obligation to act in good faith, which obliges him to enter into contract without concealing material fact like exclusion clause.” Hon'ble National Commission in Revision Petition No. 2939 of 2011 decided on 15-11-2017 case titled Vipin Grover & anothers Vs. New India Assurance Co. observed :- “If Insurance companies co-relate each and every disease with pre-existing condition, under such circumstances, insured i.e. helpless consumers will never succeed to get his genuine claim from Insurance Company.” Therefore, there is deficiency in service on the part of the opposite parties in repudiating the genuine claim of the complainant on flimsly grounds. Hence, the complainants are entitled to the medical expenses incurred on the treatment of complainant No. 2 with interest from the date of admission in the hospital till payment. In view of what has been discussed above, this complaint is partly allowed with Rs.10,000/- as cost and compensation. The opposite parties are directed to pay Rs. 63,529/- (expenses incurred in Fortis Hospital, Mohali) to complainants with interest @ 6% p.a. w.e.f 15/2/2019 (date of Rejection of Claim) till realization. The compliance of this order be made by the opposite parties jointly and severally within 45 days from the date of receipt of copy of this order. The complaint could not be decided within the statutory period due to heavy pendency of cases. Copy of order be sent to the parties concerned free of cost and file be consigned to the record room. Announced : 25-01-2023 (Kanwar Sandeep Singh) President (Shivdev Singh) Member
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