State Consumer Disputes Redressal Commission
Alka Nagar vs National Insurance Co. on 18 March, 2022
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
HARYANA, PANCHKULA
First Appeal No. 1150 of 2017
Date of Institution: 26.09.2017
Date of Decision: 21.03.2022
Smt. Alka Nagar wife of late Captain Bharat Bhushan Nagar, resident of
House No.99, Sector 19, Faridabad (Haryana).
Appellant-Complainant
Versus
1. M/s National Insurance Company Limited, C-4, II Floor (C Floor
Market), Paschim Marg, Vasant Vihar, New Delhi.
2. M/s National Insurance Company Limited, having its Divisional
Office at 5C ½ Neelam Chowk, Faridabad (Haryana).
3. M/s Park Mediclaim TPA Pvt. Ltd, 702, Vikrant Tower, Rajendra
Place, New Delhi-110 008.
4. Insurance Ombudsman Office, Universal Insurance Building,
9/2A, Asaf Ali Road, Delhi-110 002.
Respondents-Opposite Parties
CORAM: Hon‟ble Mr. Justice T.P.S. Mann, President.
Ms. Manjula, Member.
Present: Shri Nihul Partap Singh, counsel for the appellant.
Shri J.P. Nahar, counsel for the respondents.
ORDER
T.P.S. MANN, J.
Complaint preferred by Smt. Alka Nagar under Section 12 of the Consumer Protection Act, 1986 was allowed by the District Consumer Disputes Redressal Forum, Faridabad on 04.04.2016 and opposite parties No.1 to 3 directed to pay jointly and severally insured F.A. No.1150 of 2017 2 Smt. Alka Nagar Vs. National Insurance Co. Ltd & Ors. sum of Rs.5,00,000/- alongwith interest @ 9% per annum and Rs.10,000/- as compensation towards mental tension as well as harassment besides Rs.5,500/- as litigation expenses to the complainant. Opposite party No.4-Insurance Ombudsman was however absolved as it had no role in dealing with the claim case. The appeal preferred by opposite parties No.1 and 2 was dismissed by the State Commission on 28.11.2016. This was followed by opposite party- M/s National Insurance Company filing revision petition before the Hon‟ble National Consumer Disputes Redressal Commission, New Delhi, which was allowed on 09.05.2017 and the matter remanded to the District Consumer Forum. The consequent complaint was dismissed by the District Consumer Forum vide order dated 01.09.2017, which decision is now under challenge by the complainant by way of first appeal.
2. The brief facts of the complaint were that Captain Bharat Bhushan Nagar, husband of the complainant had obtained medical insurance policy bearing no. 8500000249 for the period 20.4.2009 to 19.4.2010 from Focus, K.G. Marg, New Delhi and on its expiry took Mediclaim Hospitalization Benefit policy bearing No. 354800/18/10/8500000053 under Parivar Benefit from opposite party No.1 for a sum of Rs.5,00,000/- valid from 20.4.2010 to 19.4.2011 covering himself, his wife i.e. the complainant and their son Jayant Nagar. At the time of taking policy in 2009 and on renewal of the policy the complainant‟s husband was not aware of any disease and he F.A. No.1150 of 2017 3 Smt. Alka Nagar Vs. National Insurance Co. Ltd & Ors. answered all the queries relating to his health in the application form for insurance. He was medically examined and all the formalities were observed by both the insurance companies as well as no objection was raised either at the time of taking policy or its renewal for the period 2010 to 2011. The policy was renewed purely on the basis of health fitness report of the complainant‟s husband given by their panelled doctors. In the morning of 7.11.2010 when husband of the complainant suddenly felt some problem, he had to be admitted in Sama Nursing Home, New Delhi and discharged on 9.11.2010. Thereafter he remained admitted in Mool Chand Hospital from 9.11.2010 to 10.11.2010 and was shifted to Apollo Hospital on the same day where he died on 18.11.2010. The complainant through her family members and the hospital authorities duly intimated said fact to opposite parties No.1 & 3 as well as completed all formalities as advised by said hospital. It was specifically brought to notice that said policy was cashless in nature and the complainant was not required to pay any amount but opposite parties nos. 1 to 3 kept on assuring verbally that the bills of hospitals would be reimbursed if the same were not paid during treatment. Due to non-payment of bills by opposite parties No.1 & 3 the complainant had no option except to clear the bills of complainant‟s husband. The complainant supplied original bills and copies to opposite parties No.3 and 1 respectively. The complainant supplied all other documents such as admission diagnosis of Sama Nursing Home, Mool Chand Hospital and death certificate to opposite F.A. No.1150 of 2017 4 Smt. Alka Nagar Vs. National Insurance Co. Ltd & Ors. parties nos.1 and 3 as and when demanded but opposite parties nos.1 & 3 kept on asking the same documents again and again on one pretext or the other. Despite receiving all the documents opposite parties No.1 & 3 failed to reimburse the medical expenses to the complainant till filing of the present complaint. The complainant had to take care of her minor son and also had to shift her residence from Delhi to Faridabad with her in-laws as there was no one to look after them. The complainant served legal notice dated 9.5.2011 but despite its service opposite parties did not take any action. The complainant had suffered great mental agony and harassment due to deficiency in service. The complainant prayed for directing opposite party No.1 to release the insured amount of Rs.5,00,000/- alongwith interest @ 18% p.a. and to pay Rs.1,00,000/- for causing mental tension as well as harassment besides Rs.22,000/- towards litigation expenses to the complainant.
3. Upon receipt of the complaint, notice was sent to the opposite parties. Opposite parties No.1 and 2 put in appearance through counsel and filed written statement wherein they refuted claim of the complainant by raising preliminary objections such as the complaint was not maintainable; the complainant was estopped by his acts, conduct, omission as well as commission from filing the present complaint as she had violated the terms and conditions of the insurance policy; the complainant had neither cause of action nor locus standi to file the complaint; the Forum had no jurisdiction to try the complaint as opposite party No.4 had already decided the matter in question in case F.A. No.1150 of 2017 5 Smt. Alka Nagar Vs. National Insurance Co. Ltd & Ors. no. G1/595/NIC/11 vide order dated 27.2.2013; and the complainant had suppressed true and material facts from the Forum. The deceased Bharat Bhushan Nagar was a known case of chronic liver disease (Ethanol related) as per death summary of Inderprastha Apollo Hospital and as per Exclusion Clause 4.8 of said policy the claim was not admissible as it did not cover expenses on treatment arising from the use of intoxicating drug/alcohol. The complainant submitted claim papers to opposite party No.3 vide letter 19.10.2011 but she did not submit death summary of Apollo Hospital knowingly and the same were received after sending various reminders to the complainant. Opposite party No.3 vide letter dated 20.2.2012 had opined that as per exclusion clause 4.8 the policy in question did not cover expenses on treatment arising from use of intoxicating drug/alcohol.
4. On merits, it was admitted that the complainant was having said mediclaim policy and both parties were bound by its terms and conditions. Opposite parties denied rest of the allegations levelled in the complaint and prayed for dismissal of the complaint with cost.
5. Upon notice, opposite parties No.3 and 4 did not put in appearance and as a period of one month had already passed but they had not put in appearance, they were proceeded against ex parte.
6. In support of her claim, the complainant placed on record her own affidavit wherein she repeated the same facts, which were mentioned in the complaint. She also placed on record documents Ex.C-1 to Ex.C-17 and bill of Rs.50,600/- of Mool Chand Hospital. F.A. No.1150 of 2017 6
Smt. Alka Nagar Vs. National Insurance Co. Ltd & Ors.
7. On the other hand, opposite parties No.1 and 2 placed on record affidavit Ex.R/A of Shri M.K. Dhariwal, National Insurance Company Limited, Faridabad and also relied upon the documents Ex.R-1 to Ex.R-8.
8. After hearing counsel for the complainant and counsel for opposite parties No.1 and 2, the District Consumer Forum came to the conclusion that the complaint was devoid of any merit and the same was, accordingly, dismissed.
9. As mentioned above, appeal filed by the opposite parties against the order of the District Consumer Forum was dismissed. Still not satisfied with the order of the State Commission, the opposite parties filed revision petition before the Hon‟ble National Consumer Disputes Redressal Commission, New Delhi, which was allowed vide order dated 09.05.2017 by passing the following order:-
"After some arguments, it has been agreed that the impugned order may be set aside and the matter may be remitted back to the District Forum to decide the complaint afresh after examining Dr. Sanjay Sikka, Sr. Consultant, Gastroenteritis, I.P. Apolo Hospital, Delhi who had prepared death summary dated 18.11.2010 in respect of late Captain Bharat Bhushan Nagar. The District Forum will summon him as a court witness and give opportunity to both the parties to cross-examine him with respect to the alleged Chronic Liver Disease (Ethanol related) as well as with respect to the documents on the basis of which the death summary was prepared by him. The District Forum shall also call for the relevant record on the basis of which the death summary was prepared. The parties shall appear F.A. No.1150 of 2017 7 Smt. Alka Nagar Vs. National Insurance Co. Ltd & Ors.
before the concerned District Forum on 31.05.2017. The District Forum shall decide the complaint afresh within three months of the parties appearing before it in terms of this order. Copy of this order be given „dasti‟."
10. Pursuant to the order of the Hon‟ble National Consumer Commission, counsel for the complainant cross-examined Dr. Sanjay Sikka, Sr. Consultant, Gastroenteritis, I.P. Apollo Hospital, Delhi, which was further followed by the counsel for the opposite parties cross- examining Dr. Sanjay Sikka, which reads as under:-
"xxxxxxx by Mrs. Ranjana Sharma, counsel for the complainant.
I have brought all the treatment record of patient Shri Bharat Bhushan Nagar which pertains to only our hospital (Apollo Hospital). The patient was admitted in our hospital on 10.11.2010. The record pertains from admission of the patient till his death which contain two files. When the patient brought from another hospital in the emergency of our hospital his condition was critical. He was disoriented, drowsy and was not in a position to tell his previous history regarding the illness. When the patient is admitted to the emergency, he is seen by CMO on duty and later on the concerned doctor is called. I don‟t have any paper on my file and I cannot tell who was the family member who brought the patient in our hospital, perhaps he was accompanied by his father and wife. Though, name of both are not written in any documents. The patient was set to have chronic liver disease (Ethanol related) as he had previous treatment given in another hospital is given for patient with chronic liver disease. Although, the hospital has no document but his family member gave history of EVL F.A. No.1150 of 2017 8 Smt. Alka Nagar Vs. National Insurance Co. Ltd & Ors.
(Endoscopic variceal ligation) which was done as per record on 08th November, 2010 in outside hospital. This procedure is done in patients who have chronic liver disease. Hospital have not recorded statement of wife and father of patient and there is no original document on my file. It is wrong to suggest that when any patient is admitted in the hospital his brief history is taken by the hospital on a separate sheet under the signature of his relative as well as the doctor attending him. It is true that the patient had chest complication of which was referred to the respiratory physician. It is correct that during his planned treatment the patient was given chest physiotherapy as per the advise of respiratory physician. The patient had chronic liver disease and liver is the part of abdomen. The patient had sepsis with multi organ failure in which the chest (respiratory) and kidney‟s were involved. The chronic liver disease can be without any history of alcohol.
Q. Is it correct that chronic liver disease can be within few days as per medical dictionary meaning.
Ans. As per medical history the disease is labeled as chronic if it is more than six month duration.
It is wrong to suggest that chronic liver disease can occur in two three months or within six months rather we called such disease sub-acute. I have brought the original death summary of the patient dated 18.11.2010. It is correct that death summary does not bear the date under my signature at the bottom and there are no signature of register/resident CMO whose designation is mentioned but there are no signature of him and there is no stamp of the hospital. It is correct that death summary was not prepared on 18.11.2010 but it was prepared on 01.12.2010 at 4:00 P.M. Volunteered. Upon the death of the patient of death F.A. No.1150 of 2017 9 Smt. Alka Nagar Vs. National Insurance Co. Ltd & Ors.
summary is handed over to the attendants on the same day and death summary is prepared later on. It is wrong to suggest that ethanol was written later on. I am working in Apollo Hospital since 1995. It is wrong to suggest that I have written liver chronic ethanol at the instance of insurance company. I have signed the Kotak insurance paper on 18.12.2010. It is wrong to suggest that I am deposing falsely.
xxxxxxxxxxby Shri Sanjeev Bansal, counsel for respondent It is correct that Ex.R3 (death summary) is prepared by me and the same is correct. In Ex.R3 at point A to A1 the history written by me is correct. At point B to B1 in Ex.R3 there is recital "Known case of chronic liver disease (ethanol related). The patient history which is told by the attendant is taken as a gospel truth because the further treatment is depend upon the given history by the patient or his attendant. Prior to our hospital patient was treated by Sama Nursing Home and subsequently, Mool Chand Hospital. The history told by the relative of the patient was that he was suffering from chronic liver disease and the attendants were counseled. It is correct that the patient was treated from chronic liver disease as per the history of old two hospitals. Death summary (Ex.R3) was prepared as per the history and treatment available in the hospital. Chronic liver disease can be intake of alcohol. Ethanol means alcohol. It is correct that myself and my hospital have not done any tampering in death summary (Ex.R3) later on."
11. After hearing counsel for the complainant and counsel for opposite parties No.1 and 2, the District Consumer Forum came to the conclusion that the complaint was devoid of any merit and the same was accordingly dismissed.
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Smt. Alka Nagar Vs. National Insurance Co. Ltd & Ors.
12. The State Commission has heard counsel for the appellant as well as counsel for the respondents and also examined the record, which stands duly requisitioned.
13. Dr. Sanjay Sikka, Sr. Consultant, Gastroenteritis, I.P. Apollo Hospital, Delhi admitted that the death summary Ex.R-3 was prepared by him. There was mention of known case of chronic liver disease (ethanol related) in the death summary and chronic liver disease could be due to intake of alcohol (ethanol). He explained that as per medical history, the disease was labeled as chronic, if it was more than six months duration. Thus, it was clear that the husband of the complainant was suffering from chronic liver disease.
14. The insurance policy placed on record is Ex.C-12. As per Exclusion Clause 4.1, the Insurance Company is absolved from making payment for all the diseases/injuries, which were pre-existing and as per clause 4.3 during first two years of operation of insurance policy, the expenses on the treatment of diseases such as cataract, benign prostatic hyperthropathy, devlated nasal septum and chronic disease were not payable. There was thus neither deficiency in service nor adoption of unfair trade practice on the part of the opposite parties.
15. In view of the above, the appeal is devoid of any merit and therefore dismissed.
Announced (Manjula) (T.P.S. Mann) 21.03.2022 Member President U.K.