State Consumer Disputes Redressal Commission
Orietnal Insurance Company Ltd. vs Gautam Narang And Others on 24 October, 2024
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No. 227 of 2023
Date of institution : 28.03.2023
Reserved on : 25.09.2024
Date of Decision : 24.10.2024
The Oriental Insurance Company Ltd., Branch Office II, SCO 50,
Jeevan Raksha, Puda Complex, Opposite Tehsil, Jalandhar 144 001
(Punjab) through its Branch Manager
Now through Regional Manager, Oriental Insurance Company Ltd.,
Regional Office, Surendra Building, SCO No. 109-111, Sector 17-D,
Chandigarh.
....Appellant/Opposite Party No.1
Versus
1. Gautam Narang S/o Sh. Sudhir Narang R/o WM 157, Basti
Gazan, Jalandhar.
2. Niti Narang W/o Gautam Narang R/o WM 157, Basti Guzan,
Jalandhar
....Respondents No.1&2/Complainants
3. Raksha Health Insurance TPA Pvt. Ltd., SCO 39, First Floor,
Sector-26, Madhya Marg, above Barbeque, Chandigarh through its
Authorized Signatory.
...Respondent No.3/Opposite Party No.2
First Appeal under Section 41 of the
Consumer Protection Act, 2019 against the
order dated 10.01.2023 passed by the District
Consumer Disputes Redressal Commission,
Jalandhar.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
Mr. Vishav Kant Garg, Member First Appeal No. 227 of 2023 2
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Present:-
For the appellant : Sh. Ram Avtar, Advocate
For respondents No.1&2 : Sh. Shubham Mehta, Advocate
For respondent No.3 : None
VISHAV KANT GARG, MEMBER :
Appellant/Opposite Party i.e. The Oriental Insurance Co. Ltd., has filed the present Appeal through its Regional Manager to challenge the impugned order dated 10.01.2023 passed by the District Consumer Disputes Redressal Commission, Jalandhar (in short, "the District Commission"), whereby the Complaint filed by the Respondents/Complainants-Gautam Narang and Anr. has been partly allowed.
2. It would be apposite to mention here that hereinafter the parties will be referred, as were arrayed before the District Commission.
3. Briefly, the facts of the case as made out by the Respondents No.1&2/Complainants in the Complaint filed before the District Commission are that the Complainant No.1 had insured his family by purchasing the PNB-Oriental Mediclaim Policy since the year 2017. The Complainants had renewed the said policy for the year 2018-19. Under the said policy, basic sum insured of each person was Rs.1,00,000/-. Only the cover note of the policy along with ID-cards was issued but the complete copy of the policy along with its terms and conditions was not provided. Complainant No.2 i.e. Niti Narang-insured felt pain in her abdomen and vomiting were there, therefore, she was admitted in Daya Nand Medical First Appeal No. 227 of 2023 3 College and Hospital on 07.03.2019. After her clinical examination, Dr. A.K. Sood had diagnosed her as chronic calcific pancreatitis and advised her surgery. Her ERCP was done, PD was stented and stones were removed. After improvement in her condition, she was discharged from the Hospital on 12.03.2019. On treatment, an amount of Rs.85,417/- was spent and the Complainant No.1 had lodged the claim with the OP No.1 for reimbursement of the same. All the relevant documents along with bills were submitted with OP No.1. OP No.1 vide their letter dated 11.03.2018 stating that "this is not the denial of treatment but only the denial of credit facility, can send your claim for reimbursement for review". On receiving the said information, the Complainant submitted another representation with the OP No.1 requesting to reimburse the medical treatment charges. In response to said request, OP No.1 vide email dated 03.04.2019 had informed that the claim of the Complainant was repudiated as the same was falling under the Exclusion Clause No.4.2 of the Insurance Policy. The medi-claim policy was obtained by the person to save himself from unexpected medical expenses arisen instantly. The problem of the insured had arisen uncertainly and at no point of time, the Complainants ever suffered from the same. As neither the Complainants had received the terms and conditions of the Insurance Policy nor aware about the said problem of Complainant No.2, therefore, Clause No. 4.2 regarding waiting period of two years from the inception of the policy was not applicable in the said case. The Insurance Policies were framed to save the interest of the policy holders and not for the purpose of harassing the insured and collecting the premium.
4. Stating the act of the opposite party No.1 to be a case of deficiency in service and unfair trade practice, it was prayed in the Complaint that OP No.1 be directed to reimburse the claim amount of First Appeal No. 227 of 2023 4 Rs.85,417/- along with interest @ 12% p.a. from the date of lodging the medi-claim till payment and Rs.50,000/- be awarded as compensation on account of suffering from mental harassment and agony. OP No.1 be also burdened with litigation costs of Rs.11,000/-.
5. Upon issuance of notice in the Complaint, the Appellant/ Opposite Party No.1 appeared and filed the written statement by raising the preliminary objection regarding the maintainability of the complaint. It was pleaded that on receiving the claim, it was processed by M/s Raksha Health Insurance TPA Pvt. Ltd. and found from the medical documents that the ailment of the insured was falling under Exclusion Clause No.4.2 of the Insurance Policy. Said Clause reflects that the expenses incurred on the treatment of ailments/diseases/surgeries, if contracted and/or manifested after inception of the first policy (subject to continuity being maintained), are/were not payable during the waiting period of two years. As the treatment of the insured was falling under 2nd year waiting period clause, therefore, on the recommendation of the above said TPA, the claim was considered and found not payable. The Complainants were informed about the repudiation of the claim vide letter dated 31.05.2019. There was no deficiency in service or unfair trade practice as adopted by OP No.1 at the time of rejecting the claim of the Complainants, rather, the same was considered as per terms and conditions of the policy and found not payable, therefore, it was prayed that the Complaint being without any merit be dismissed, being meritless.
6. After considering the contents of the Complaint and the reply thereof filed by the Opposite Party No.1 as well as on hearing the oral arguments raised on behalf of both the sides, the Complaint filed by the Complainant was partly allowed by the District Commission vide order First Appeal No. 227 of 2023 5 dated 10.01.2023. The relevant portion of said order as mentioned in Para- 10 is reproduced as under:
"10. In view of the above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to reimburse the amount of Rs.85,417/- with interest @ 9% per annum from the date of lodging of mediclaim till its realization. Further, OPs are directed to pay Rs.10,000/- as compensation for causing mental tension and harassment to the complainant and Rs.5000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order..."
7. The aforesaid order dated 10.01.2023 passed by the District Commission has been challenged by the Appellant/Opposite Party No.1 by way of filing the present Appeal by raising a number of arguments.
8. Mr. Ram Avtar, Advocate, learned Counsel for the Appellant has submitted that the patient was admitted in DMC Hospital, Ludhiana with the problem of pain in her abdomen and vomiting. After examining the patient, the Doctor found a case of Chronic Pancreatitis with Dilated Main Pancreatitic Duct with Intraductal Calculif, which disease as per Insurance Policy Condition No. 4.2 covered under 2 years waiting period in the exclusion clause. On submitting the claim by the Complainants, the same had been examined by Raksha Health TPA and found that the said claim falls under Exclusion Clause 4.2 of the Insurance Policy. On the recommendations of the said TPA, the claim had been repudiated and letter dated 31.05.2019 had been sent to the Complainant- Gautam Narang, intimating about the repudiation of the claim. Whereas the District Commission has mis-appropriated the facts and documents on record and wrongly come to the conclusion that as the policy had been purchased on yearly basis, therefore, the patient cannot wait for two years to get the treatment and the said condition was baseless and meaningless. First Appeal No. 227 of 2023 6 Both the parties are bound by the terms and conditions of the Insurance Policy, therefore, the claim of the Complainant after considering on merits, had been rightly repudiated. It was prayed that the Appeal be allowed and the order of the District Commission be set-aside.
9. On the other hand, Mr. Shubham Mehta, Advocate, learned Counsel for the Respondent has submitted that the Appellant-OP No.1 had only supplied him the 'Cover Note and Policy Schedule' but the most important document i.e. terms and conditions had never been provided with the Policy Document. By supplying the cover note, only the basic details of the policy in question had been provided and in the same, detailed exclusion of the ailments had not been mentioned. Inspite of specific contention of the Complainants regarding non-providing of the terms and conditions of the policy, the Appellant-OP No.1 had failed to place on record any evidence to show that the terms and conditions of the policy had been supplied. General Terms and Conditions cannot be applicable in all the policies because every policy had been prepared with its different benefits and pros and cons. District Commission in its order had rightly observed on the basis of settled law that when the Appellant- OP No.1 had replied that they had provided to the Complainant the terms and conditions with the Insurance Policy, then duty was cast upon them to produce the material evidence regarding supplying of the same. Rejection of the claim and recommendation given regarding the same by the TPA was unjustified and against the guidelines issued by the IRDA. The District Commission had rightly observed that condition imposed of waiting period of 24 months in a yearly policy was unjustified and unsustainable. The order passed by the District Commission is based on actual facts and there is no merit in the Appeal of the Appellant, therefore, the Appeal be dismissed with costs.
First Appeal No. 227 of 2023 7
10. We have heard the arguments of learned Counsel for the parties and have also carefully perused the impugned order passed by the District Commission, written arguments submitted by the parties and all relevant documents available on the file. We have also gone through the judgments cited by both the parties.
11. Undisputedly the Complainants were insured under PNB- Oriental Medi-claim policy since the year 2017 for a sum of Rs.1,00,000/-. Said policy was in its 2nd year term i.e. for the period 2018-19. During the existence of the said policy, insured/Complainant No.2 suffered with the problem of pain in her abdomen and was vomiting and then approached DMC & Hospital, Ludhiana on 07.03.2019. Said Hospital had admitted the Complainant No. 2, where Doctor had diagnosed her with the problem of Chronic Calcific Pancreatitis. Thereafter, the Doctor advised her to go for surgery. Her ERCP was done. PD was stented and stones were removed. Thereafter, on 12.03.2019 she was discharged from the said Hospital. The Complainants had lodged the claim of Rs.85,417/- with the OP No.1, which they had repudiated the same on the ground that the claim was falling under the Exclusion Clause No. 4.2 of the Insurance Policy i.e. waiting period of two years regarding surgery from the inception of the policy.
12. Now the issue for consideration is as to whether the Clause No.4.2 of the policy is applicable or not when the specific stand of the Complainants is that 'they had only received the cover note of the policy along with ID-Cards'.
13. The Complainants had specifically mentioned that they had only received the cover note of the policy wherein only the basic details of the policy were provided. It was also stated that the General Terms and Conditions were not be applicable in every policy because each policy is First Appeal No. 227 of 2023 8 drafted on different perspectives, including/excluding different objects in the same. To the specific objection of the Complainants that OP No.1 has failed to lead any evidence to prove that the policy's terms and conditions had been supplied to the Complainants vide which mode. OP No.1 being the Government Insurance Company was/is bound to work as per the instructions by following proper procedure. For supplying the policy along with terms and conditions, some dispatch entry should have been made in the relevant Register by the OP No.1 but no such evidence had been produced. Therefore, non-leading of any evidence regarding supplying of the terms and conditions of the insurance policy is a case of deficiency in service on the part of OP No.1. The District Commission had thoroughly discussed this issue along with the settled law on the subject, therefore, we are of the opinion that the OP No. 1 had failed to prove that they had supplied the terms and conditions of the policy to the Complainants.
14. Next issue for consideration is as to whether Condition No. 4.2 of the policy is applicable, when the Complainants had not gone through the same.
15. As the problem of Complainant No. 2 was found as Chronic Calcific Pancreatitis, therefore, firstly we have examined what is the problem of Chronic Calcific Pancreatitis and its impact with the help of google search engine:-
"Chronic Calcific Pancreatitis Chronic calcific pancreatitis is a complex and often debilitating condition that can significantly impact a person's quality of life. For those affected, understanding its causes, symptoms, and treatments is crucial for effective management and to mitigate its long-term effects.
Chronic calcific pancreatitis is characterized by long-term inflammation of the pancreas, which ultimately leads to the First Appeal No. 227 of 2023 9 formation of calcium deposits, or pancreatic stones, within the pancreatic tissue. These calcifications can obstruct the pancreatic ducts, causing severe abdominal pain and significant digestive issues. The condition progresses over time, leading to the deterioration of pancreatic function, which is essential for producing digestive enzymes and hormones. Understanding the nature of this disease is the first step in managing its symptoms and preventing further complications.
The pancreas plays a critical role in digestion and glucose regulation. When chronic calcific pancreatitis occurs, it can severely disrupt these functions, leading to malnutrition and metabolic imbalances. Beyond the physical impact, the condition can also take an emotional toll, affecting mental health and overall well- being. Early diagnosis and intervention are key to managing the condition and preserving pancreatic function for as long as possible."
From the above medical literature, it is clear that the pancreas plays a critical role in digestion system and glucose regulation and such type of problem causes severe abdominal pain and significant digestive issues. It is the Doctor, who is to decide as to which treatment can be beneficial to the patient at what time. As such, it is clear that the problem of the insured required immediate treatment, which in the present case was given to Complainant No.2. Also sometimes people do not know such type of silent ailments in routine and the same come to their knowledge first time during the health check-up or at the time of admission in any emergent situation. It has been held by the Hon'ble National Commission in III 2014 CPJ 340 (NC) "New India Assurance Company Limited through its duly Constituted Attorney, Manager versus Rakesh Kumar" that people can live months/years without knowing the disease and it is diagnosed accidentally after routine check-up and on that ground repudiation is not justified. People are purchasing the insurance policies to bear the financial burden/huge medical expenses occurred due to First Appeal No. 227 of 2023 10 unforeseen circumstances and not to earn any enrichment from the same. No person can put himself/herself into medical risks to get the claim. Hon'ble Delhi State Consumer Disputes Redressal Commission, New Delhi in case "M.M. Knitwears Pvt. Ltd. versus Bajaj Allianz General Insurance Company Ltd. & Anr.", II (2014) CPJ 24A (CN) held that availing of insurance services is for indemnification of future loss whenever it is caused and insurance policy is not taken for making profit.
16. Also the Hon'ble Punjab & Haryana High Court in case "Iffco Tokio General Insurance Company Ltd. versus Permanent Lok Adalat (Public Utility Services), Gurgaon and others", 2012 (1) RCR (Civil) 901 observed as under:-
"Sole submission before this Court is that claim has been declined in terms of the conditions of the policy and such a claim would not be admissible. This defence to me would sound highly unfair. Why would one take a policy of medi-claim if he is not to get his claim for genuine treatment taken? It is for the Insurance Company to see and not to issue a policy where they find that such person is not entitled to claim on account of treatment of the existing disease....... One would not take medi-claim policy just for the purpose of paying premium. The ground advanced by the petitioner to deny this claim is unfair and unreasonable. Respondent No. 2 had a valid policy from the petitioner and they must now honour the same. I do not find any justification to interfere in the order passed by the Lok Adalat."
17. As discussed above, as it is proved that the terms and conditions of the insurance policy were not provided to the Complainants, therefore, the same are not applicable in the present case. To this point we are taken the support from the law laid down by the Hon'ble Supreme Court in "M/s Texco Marketing Pvt. Ltd. versus TATA AIG General Insurance Company Ltd. & Ors." 2022 LiveLaw (SC) 937 wherein it was held that it is the duty of the insurer to disclose exclusion clause. When an exclusion clause is introduced making the contract unenforceable on the First Appeal No. 227 of 2023 11 date on which it is executed, much to the knowledge of the insurer, non- disclosure and a failure to furnish a copy of the said contract by following the procedure required by statute, would make the said clause redundant and non-existent.
18. Otherwise also it is clear that the ailment of the insured required immediate treatment, therefore, under these circumstances, by taking the shelter of Condition No. 4.2 of the Insurance Policy, is not relevant in the present case because the mediclaim policies are purchased to bear the huge unexpected medical expenses. In the present case, it is clear that the Appellant/OP No.1 was feeling shy from its liability by taking the shelter of Condition No. 4.2 of the policy but in our opinion, the Appellant was not justified in repudiating the genuine claim of the insured/Complainant No.2 as per Judgments cited by the learned Counsel for the Appellant, the same will not be applicable to the facts and circumstances of the case as the same are on some different footings.
19. The District Commission has passed the detailed order, dealing with every objection of the OP No.1/Appellant by giving reasoning and citing the law on the subject. Accordingly, the order passed by the learned District Commission appears to be correct and we do not find any infirmity in the said order. Therefore, the impugned order is affirmed.
20. In view of the above discussion, we do not find any merit in the Appeal and the same is dismissed with no order as to costs.
21. Since the main case has been disposed off, so all the pending Miscellaneous Applications, if any, are accordingly disposed off.
22. The Appellant had deposited a sum of Rs.25,000/- at the time of filing of the Appeal and Rs.41,005/- in compliance with the order dated 03.04.2023. Said amounts, along with interest which has accrued thereon, First Appeal No. 227 of 2023 12 if any, shall be remitted by the Registry to the District Commission forthwith. The Respondents No.1&2/Complainants may approach the District Commission for the release of the same and the District Commission may pass appropriate order in this regard in accordance with law.
23. The Appeal could not be decided within the statutory period due to heavy pendency of Court Cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER (VISHAV KANT GARG) MEMBER October 24, 2024.
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