Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No. 101/11.10.2021
Savitri Bareja wife of Shri C.L. Bareja
R/o 4/5, D.B. Gupta Road, Pahar Ganj,
New Delhi-110055 [through her Attorney-
Shri C.L. Bareja] …Complainant
Versus
OP1- Care Health Insurance Company Limited
(formerly known as Religare Health Insurance Co. Ltd.)
through its Chairman/Director 5th Floor, 19, Chawla House,
Nehru Place, New Delhi-110019
OP2- Ms. Disha Agent/AR Care Health Insurance Ltd.
(formerly known as Religare Health Insurance Co. Ltd.)
through its Chairman/Director 5th Floor, 19, Chawla House,
Nehru Place, New Delhi-110019 ...Opposite Party
Senior Citizen Case
Date of filing: 11.10.2021
Date of Order: 12.12.2023
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 against the OP for refusal of reimbursement of her medical valid bills of cataract surgery and treatment August/September 2020, [which was during the currency of insurance policy valid upto 26.11.2020 issued by OP, which was in continuation of insurance policies from the erstwhile insurer from December 2015]. Her medical expense bill was of Rs. 30,000/- were refused by the OP on the ground that period of 24 months will be treated commenced from the date of policy w.e.f. 27.11.2019 issued by OP1, instead of taking the period from the initial policy issued on 09.12.2015 by the previous Insurer. The complainant had taken the policy from OP1 in continuation of previous policy.
1.2. Whereas, the OP1 denied the allegation of deficiency of services that the parties are strictly bound by the terms and conditions of the policy, since the policy issued on 27.11.2019 is a fresh insurance policy and the complainant never declared portability of previous policy. Therefore, for want of period of 24 months from the date of policy of 27.11.2019, claim is not admissible as per exclusion clause. The complaint is without cause of action.
1.3 Initially, the complaint was filed against Religare Health Insurance Co. Ltd., however, the name was changed to Care Health Insurance Co. Ltd. on the eve of certificate of incorporation pursuant to change of name, accordingly, the OP1 had filed the written statement as well as the latest name of OP1 has been arrayed.
1.4. The OP2 being agent of OP1 was served with the notice of this complaint, however, for want of appearance, she was proceeded ex-parte on 15.07.2022.
2.1. (Case of complainant) –The complainant is a senior citizen and she took mediclaim policy no. P/161100/01/2018/017986 from Star Health and Allied Insurance Co. Ltd. (previous Insurer) since 2015 and the last policy was upto 13.12.2019. However, in the month of October/November 2019 the OP2 (Ms. Disha, Agent/AR of OP1) approached the complainant and allured the complainant to port her mediclaim policy with OP1, which will be in continuation since 2015 and in case of medical treatment, the complainant shall be reimbursed expenses by OP1 without deducting anything. Thus, the complainant on such allurement of rosy pictures shown by the OP2, she handed over all relevant record of previous policy etc. to OP2 for next insurance policy. The OP1 issued insurance policy no. 16302522 valid from 27.11.2019 to 26.11.2020 for sum insured of Rs. 5,00,000/- against premium of Rs. 28,850/-.
2.2. The complainant suffered cataract. She was treated in Goyal Eye Institute, East Patel Nagar, New Delhi in the month of August/September 2020 and she paid Rs. 30,000/- for that treatment. The complainant applied for mediclaim, however, it was refused by OP1 on 31.08.2020 by email on the pretext that it was a new policy and there is waiting period of two years for the treatment of cataract. It shocked and surprised the complainant because she opted to port her previous mediclaim policy with OP1; she never handed over documents for new medical policy to OPs.
2.3 The complainant through her husband sent several emails to OP1 to do needful in respect of her medical claim but there was no avail. She suffered mental agony, harassment, humiliation, inconvenience at the hands of OPs, for which she deserves damages of Rs. 50,000/-. The complainant was made false promises to port her policy from previous insurer to the OP1.
That is why the complaint for reimbursement of medical bills of Rs. 30,000/- along with interest at the rate of 24% pa besides compensation of Rs. 50,000/-, cost of litigation of Rs. 5,000/- & and other appropriate relief.
2.4. The complaint is accompanied with record of medical papers of Goyal Eye Institute, copy of policy certificate issued by OP, claim denial letter, medical bills, discharge summary, identity proof, proposal form, previous insurance policies from 09.12.2015 onwards till 13.12.2019 [which were got renewed from time to time for sum insured of Rs. 10,00,000/- against premium of more than Rs. 25,000/- each year], the email correspondence with the OPs about the claims and grievances for want of settlement of claim.
3.1 (Case of OP1)-The OP1 filed written statement under the signature of Ms. Shreya Chansoria, Manager-Legal, with the support of documents viz. copy of certificate of incorporation of changed name, policy certificate, terms and conditions of policy and cashless denial letter dated 31.08.2020.
3.2. The complaint is opposed that it is without cause of action as well as there is no deficiency of services, since the claim was rejected properly after scrutinizing the documents. The complainant was informed by rejection letter dated 31.08.2020 that as per policy condition, there is two year waiting period for treatment of cataract and it comes within the exclusions and waiting period commenced from 27.11.2019 and the treatment of cataract was in August 2020, which is just after 10 months of commencement of the policy. Moreover, it was a new/fresh policy issued to the complainant. The complainant had specifically responded “No” in proposal form in the detail of previous or existing health insurance. The insurance policy was accordingly issued. The parties are bound the terms and conditions of policy and exclusion clause will also be read part and parcel of the policy, the insured cannot make claim more than what is covered under the policy [reliance is placed on New India Assurance Company Ltd. Vs. Rekha Malhotra (2016(4) CPR 455 and Export Credit Guarantee Corp. of India Ltd. Vs. M/s Garg Sons International (Civil Appeal No. 1577 of 2004)].
3.3 The complainant has concealed the material information, the complainant never disclosed about the previous policy with M/s Star Health and Allied Insurance Co. Ltd. and the complainant is bound to prove if he had such policy. Otherwise, the OP1 never approached through OP2 to the complainant for insurance policy. The OP1 strictly complied with the terms and conditions of the policy. The complaint is not maintainable.
However, the OP1 does not dispute that OP2 was its agent.
4. (Replication of complainant) –The complainant filed detailed replication and she reaffirms the contents of complaint as correct with request to implead name of Care Health Insurance Ltd. [in place of erstwhile Religare Health Insurance Co. Ltd.]. The complainant reaffirms vehemently that OP2 had approached the complainant and the complainant had handed over relevant record for insurance policy since it was to be in continuation from year 2015 and accordingly insurance policy was issued by the OP1. The complainant never requested for new/fresh policy and it was OP1 who is stating so without disclosing terms and conditions of the policy or consent of the complainant for such new policy. The OP1 had issued the policy w.e.f. 27.11.2019 even during the currency of previous policy valid upto 13.12.2019, since the OP2 had approached and persuaded the complainant in October/November 2019 to take policy from OP1. The complaint is correct.
5.1. (Evidence)-In order to establish the complaint, the complainant led evidence through her attorney/husband Sh. C.L. Bareja, his affidavit is on the pattern of complaint coupled with documents filed with the complaint (para 16 of the affidavit of evidence enumerates such documents).
5.2. OP1 led its evidence by filing affidavit of Sh. Lakshay Juneja, Manager-Legal, with the narration that he is duly constituted attorney of OP1, the affidavit is on the lines of reply duly supplemented with the documentary record filed with the reply. [However, there is no power of attorney filed with the affidavit to show that he is a duly constituted attorney of OP1].
6.1 (Final hearing)- The complainant and the OP1 filed their written submissions, the same are on the pattern of their pleadings and evidence, the complainant has also raised an additional issue during the arguments.
6.2. The Shri for the complainant and Shri for the OP1 made oral submissions. Their submissions are not being reproduced here as the same will be discussed and appreciated appropriately.
7.1 (Findings) –The rival contentions are considered, keeping in view the material on record either in the form of pleadings, evidence and their respective submissions. Now, the disputed issues are taken one by one.
7.2 According to complainant the written statement is signed by Ms. Shreya Chansoria, Manager - Legal, however, the OP1 is a company, there ought to have been Board Resolution authorizing the Manager-Legal to sign the written statement on behalf of OP1; there is no such Resolution or authority in favour of Ms. Shreya Chansoria. The written statement cannot be read. Similarly, affidavit of evidence is by Sh. Lakshya Juneja, Manager-Legal, claiming to be constituted attorney of OP1 but no such power of attorney is filed to substantiate such plea. It is no evidence in the eyes of law. Whereas, according to OP1, the written statement as well as evidence is by duly authorized persons and written statement and affidavit also bear seal of the company, therefore, the pleading and evidence are proper filed.
7.2A. The aforementioned submissions of both sides are based on record, which are self-explanatory. There is no Board Resolution or other authority in favour of Ms. Shreya Chansoria, Manager - Legal, who authored the written statement nor in favour of Sh. Lakshya Juneja, Manager-Legal, author of the affidavit of evidence. Since OP1 is a company incorporated, there ought to be an authorization or resolution so that flow of authority & accountability is maintained, the Manager-Legal in itself does not derive authority to file the sign and verify pleadings and evidence on behalf of a company incorporated. Accordingly, this contention is disposed off.
7.3 Since, the case is at the final stage and this juncture has been reached after evidence by the parties. OP2 is agent/AR of OP1, which is not a disputed fact. The OP2 was proceeded ex-parte for want of her appearance. The insurance policy issued by OP1 is w.e.f. 27.11.2019 to 26.11.2020. The complainant has also proved his previous policies (namely senior citizen red carpet health policy, SI Rs.10 lakhs, taken from Star Health and Allied Insurance Co. Ltd.) w.e.f. 09.12.2015 till 13.12.2019, as the same were got renewed from time to time. Therefore, its stand established that prior to taking the subject policy from OP1 w.e.f. 27.11.2019, the complainant has been taking the insurance policy regularly from the earlier insurer for sum of Rs. 10 lakhs. Accordingly, this contention of the parties are also disposed off.
7.4 There are other rival plea in respect of proposal form and consequent issue of insurance policy by the OP1.
According to complainant, the OP1’s agent/OP2 was handed over material documents including previous policies and blank proposal form was got signed. The complainant was assured that the policy to be issued would be in continuation of previous policy from the year 2015 and on that assurances the insurance policy was taken from OP1 as many more benefits were also assured like expeditious settlement of claim, if any and that too with deductions. The complainant was never informed of terms and conditions of the policy to be issued.
On the other side, OP1 has complete reservations that the information furnished in the proposal form was considered for issuing insurance policy and both the parties are bound by the terms and conditions of the policy strictly, which is also a settled law and parties cannot go against such terms and conditions of policy. The complainant had not disclosed about the previous policy in the proposal form to be considered for portability of insurance policy.
7.4A. The answer of this dispute is to be traced in the record. Many times the contemporary events leave their impression in the record and those impressions reflects the situation happened. This is so in the present case.
The proposal form has been proved by the complainant herself through her husband and OP1's case is that the insurance policy was issued on the basis of proposal form. OP1 denies the case of complainant but OP1’s agent/AR/OP2 abstained from the proceedings of this case.
In the insurance policy certificate has been proved by OP1 (at page 12 of its paper book of OP) and same insurance policy certificate is also proved by the complainant (at page 26 of paper book of complainant). This insurance policy certificate shows that the complainant is 'diabetic', however, in the subject proposal form, there is no such declaration or information of 'diabetic'. Then how OP1 was knowing or able to mention so in the policy certificate? What was the material available with the OP1 to mention diabetic in the insurance policy certificate?. The OP1 has not proved such material or source of information.
But its answer is also in the record. The complainant has proved his previous policies from 09.12.2015 to 13.12.2019 (at pages 36 to 39 of the paper book) and in such four insurance policies, the complainant has been stated to be diabetic and hypertension being pre-existing diseases. The circumstances are manifesting that the OP1 had took this fact/information from the previous insurance policies and then mentioned it in the policy certificate w.e.f. 27.11.2019 to 26.11.2020. Further, the OP1 had record of such four insurance policies, since the complainant had handed over them to OP2/Agent/AR of OP1. These circumstances clearly establish the plea of complainant that he handed over the record to OP2 for insurance policy in October/November 2019 and that is why the OP1 was able to issue insurance policy on 27.11.2019, even at that time the previous policy was subsisting till 13.12.2019. Lastly, the complainant contends that proposal form was not filled in by her but by the agent/OP2 and there is no contrary evidence by OP1 to counter this fact vis-à-vis OP2 remain absent to rebut this stand of complainant. Accordingly, these contentions are also disposed off.
7.5. The next issue of portability of police to another insurer. The OP1 has also reservations that in the proposal form, the complainant herself has not disclosed about the previous insurance policy vis-à-vis the new policy as w.e.f. 27.11.2019 and its exclusion clause will be applicable and period of 24 month will be computed from 27.11.2019, being new policy.
But complainant opposed it that policy was taken from OP1 and it was in continuation of previous policy w.e.f. 09.12.2015, otherwise, the proposal form was not also filled in by the complainant but by OP2. The complainant had also written various emails after denial of claim, as well as to conduct appropriate inquiry or action for assurances by OP2, which were also repeated in all these emails, however, there was no heed by the OP1. The complainant cannot be blamed for it, since the complainant paid huge amount of premium for SI of Rs.5 lakhs.
7.5A.There is a circular dated 09.09.2011 issued by Insurance Regulatory and Development Authority on the point of portability. The clause 1.1 (portability) of circular dated 09.09.2011 is a very simple & clear clause and it makes option available to the policy holder to switch from one insurer to another insurer or from one plan to another plan of the same insurer, provided the previous policy has been maintained without any break. Its other clause no. 3 also provides that when a policy holder desirous of porting his policy to another insurance company, it shall apply to such insurance company at least before 45 days before premium renewal date of his/ her existing policy. Both the clauses are reproduced for ready reference.
"Clause 1.1 – Portability: Portability means the right accorded to an individual health insurance policyholder (including family cover) to transfer the credit gained by the insured for pre-existing conditions and time bound exclusions if the policyholder chooses to switch from one insurer to another insurer or from one plan to another plan of the same insurer, provided the previous policy has been maintained without any break”.
" Clause 3 – A policyholder desirous of porting his policy to another insurance company shall apply to such insurance company at least 45 days before the premium renewal date of his/ her existing policy”.
7.5B. The complainant had been regular policy holder of Star Health & Allied Insurance Company Limited, as per proved policies, which begins from 09.12.2015 to 08.12.2016, 09.12.2016 to 08.12.2017, 14.12.2017 to 13.12.2018, and 14.12.2018 to 13.12.2019. Then further insurance policy w.e.f. 27.11.2019 to 26.11.2020 was obtained by the complainant from OP1. which was being renewed from time to time. As per pleading and evidence of complainant, the OP2 (agent of OP1) started persuading the complainant from October/November 2019 to opt the policy from the OP1, when the complainant was already having policy up-to 13.12.2019 from the previous Insurer/Star Health & Allied Insurance Company Limited.
In view of portability clause in the circular, it is applicable to all insurance companies, thus the continuity of the policy shall be computed from 09.12.2015 or from 14.12.2017 and it continued upto 26.11.2020. The date of episode of medical cataract/treatment is of 09.09.2020 after initially examination on 14.08.020, which is within the subsistence of the policy issued by OP1 from the period 27.11.2019 to 26.11.2020. Accordingly, this issue of continuity of policy stands disposed off and continuity of policy will be computed from 09.12.2015 or 14.12.2017 and not from 27.11.2019 as contended by OP1.
As already proved that proposal form was not filled in by the complainant. The column in proposal form pertaining to previous policy was also filled in by OP2, however, the policy certificate incorporated the information of diabetes on the basis of previous record also stand proved. Thus, it would not constitute concealment of fact nor it would demerit the case of complainant, since OP1's agent /OP2 filled in the proposal form to suit her Principal/OP1, the circumstances so suggesting. Otherwise, in exclusion clause of policy in portability situation, it just prescribes computation of period of 24 months and when it will commence. There is nothing in the portability clause read with exclusion clause to compute the period from date of taking policy from new insurer but the previous period of policy will also be considered, which circular dated 09.09.2011 also elucidates. The policy taken from OP1 by the complainant is within the parameter of circular as well as policy issued . Thus, OP1 cannot exclude the claim by invoking exclusion clause. Since the continuity of policy is from 09.12.2015 or 14.12.2017, therefore, the episode of cataract examination and surgery [of August 2020 and 09.09.2020] is after two years period . It is covered under policy w.e.f. 27.11.2019 to 26.11.2020 obtained from OP1.
7.5C. 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". The Insurer is also bound to disclose all terms and conditions insurance to the insured as held in Bharat Watch Company (through its partners) vs National Insurance Co. Ltd., Civil Appeal no. 3912/2019 in SLP(C) no. 25468/2016, So, the complainant has established that she was not made aware by OP1 or its agent OP2 about the terms and condition of policy at any point of time either at the time of proposal form or at the inception of insurance policy cover or at any subsequent stage.
7.6D. The complainant has proved the medical bills cum receipt of Rs.30,000/-issued by Goyal Eye Institute in respect of treatment of cataract rendered in August and September 2020, the procedure was performed on 09.09.2020. Otherwise, the OP1 has not denied the documentary record of bill issued but eligibility or admissibility of the claim. Thus, denial of complainant's claim by invoking exclusion clause, which is not applicable, The claim was wrongly declined.
Now, a question emerges, should the matter be remanded to OP1 for reconsideration? The answer is in negative, since the complainant has proved her case against OP1, secondly by remanding matter back means to put the parties again to another round of litigation, thirdly it would put the parties to costs in the form of time, energy and expenses and lastly all the issues have been settled in this final order.
8.1. Therefore, it is held that complainant is entitled for reimbursement of valid medical claim amount of Rs.30,000/- in respect of hospitalization/medical expenses from OP1.
8.2. The complainant had paid the amount from her pocket, had it been reimbursed by cashless facility, she would not have been deprived of her money. She is entitled for interest on the amount spent, however, there is no concrete evidence of rate of interest of 24% pa as claimed by complainant but it would serve both ends if interest at the rate of 7 % pa is determined. Accordingly, interest at the rate of 7% pa from the date of complaint till realization of the amount is determined in favour of complainant and against the OP1.
8.3. The complainant also seek compensation of Rs.50,000/- on account of mental agony, harassment, inconvenience etc.. By taking into account all the circumstances, especially the relief of reimbursement of valid medical expenses is already allowed, the complainant is also held entitled for compensation, since she had to pursue a lot. Therefore, compensation of Rs. 20,000/- is allowed in her favour and against the OP1. Cost of Rs. 10,000/- are also allowed in her favour and against OP1.
9.1 Accordingly, the complaint is allowed in favour of complainant and against the OP1, while directing OP1 to pay bills amount of Rs. 30,000/- along-with interest @7% pa from the date of complaint till realisation of amount, compensation of Rs.20,000/- apart from costs of Rs. 10,000/-.
OP1 is also directed to pay the amount within 30 days from the date of receipt of this order. In case amount is not paid within 30 days from the date of receipt of order, the OP will be liable to pay interest at the rate of 9% per annum on bills amount of Rs. 30,000/- from the date of filing of complaint till its realization.
9.2. Since, the OP2 is agent of OP1, therefore, principal would be liable for acts of agent. Hence, complaint against OP2 stands dismissed.
10. Announced on this 12th day of December 2023 [अग्रहायण 21, साका 1945].
11. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.
[Inder Jeet Singh]
President
[Shahina]
Member (Female)
