State Consumer Disputes Redressal Commission
Sh. Kimat Lal Nagpal. vs Oriental Insurance Co. Ltd. on 23 May, 2015
H.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA.
First Appeal No.31/2015
Date of Presentation: 30.03.2015
Date of Decision: 23.05.2015
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Kimat Lal Nagpal, son of Shri Makhan Lal Nagpal,
Resident of Nagrota Bagwan,
Post Office & Tehsil Nagrota Bagwan,
District Kangra, H.P.
.......... Appellant
Versus
The Oriental Insurance Company Limited,
Branch Office, Deewan Complex,
Kotwali Bazar, Dharamshala,
Tehsil Dharamshala, District Shimla, H.P.
.......... Respondent
....................................................................................
Coram
Hon'ble Mr. Justice Surjit Singh, President.
Hon'ble Mrs. Prem Chauhan, Member.
Hon'ble Mr. Vijay Pal Khachi, Member.
Whether approved for reporting?1 Yes.
For the Appellant: Mr. Rohit Bharoll, Advocate vice
Mr. Ramesh Sharma, Advocate.
For the Respondent: Mr. Deepak Bhasin, Advocate.
..........................................................................................
O R D E R:
Justice Surjit Singh, President (Oral) Appellant has preferred this appeal against the order dated 9th March, 2015, of learned Consumer Disputes Redressal Forum, Kangra at Dharamshala, whereby his complaint, under Section 12 of the Consumer Protection Act, 1986, which he filed against 1 Whether Reporters of the local papers may be allowed to see the order? Kimat Lal Nagpal Versus Oriental Insurance Company Ltd.
(F.A. No.31/2015) _______________________________________________________________ the respondent, has been dismissed, with the finding that as per clause 4.1 of policy, Annexure R-1, attached with the medi-claim policy, for the period from 07.08.2012 to 06.08.2013, claim for pre-existing disease, for the first three years, from the date of inception of policy, is excluded.
2. Admitted facts are that appellant is holder of an Account with Punjab National Bank. Under some agreement/arrangement between the Punjab National Bank and the respondent, accountholders of the Punjab National Bank can insure themselves and their family members for re-imbursement of their medical expenses, by paying certain amount of money, as premium to the respondent. Appellant taking benefit of that arrangement got himself and his wife insured with the respondent, for the period from 07.08.2010 to 06.08.2011. Policy purchased by him was renewable, as per the aforesaid arrangement between the bank and the respondent, from year to year. Policy was renewed from 07.08.2011 to 06.08.2012 and then, from 07.08.2012 to 06.08.2013.
3. At the time of purchase of initial policy, proposal form was filled in by the appellant, in which Page 2 of 10 Kimat Lal Nagpal Versus Oriental Insurance Company Ltd.
(F.A. No.31/2015) _______________________________________________________________ it was specifically disclosed that wife of the appellant had been suffering from blood cancer, for which, she had been treated at PGI, Chandigarh, on 26th February, 2009. Despite this disclosure, appellant and his wife were insured for medi-claim. When, second time renewed insurance effective from 07.08.2012, was in force, ailment of blood cancer re-occurred. Wife of the appellant was treated at PGI, Chandigarh. A sum of `77,028/- was spent on her treatment. Claim was lodged with the respondent. All the vouchers, against which money was spent, were submitted with the claim form. Respondent repudiated the claim, through letter dated 01.10.2013, on the ground that exclusion clause 4.1 of the policy was attracted and, therefore, the appellant was not entitled to seek re- imbursement of expenditure incurred on the treatment of his wife.
4. Appellant filed a complaint, under Section 12 of the Consumer Protection Act, 1986, seeking a direction to the respondent to pay the claim and also to pay compensation and litigation expenses.
5. Complaint was contested by the respondent and the plea taken was that clause 4.1, Page 3 of 10 Kimat Lal Nagpal Versus Oriental Insurance Company Ltd.
(F.A. No.31/2015) _______________________________________________________________ under the heading "Exclusions", excludes the kind of claim, lodged by the appellant. Annexure R1, copy of terms and conditions, which formed part of the policy, for the period from 07.08.2012 to 06.08.2013, had been relied upon in support of the plea.
6. Learned District Forum has accepted respondent's plea and dismissed the complaint.
7. We have heard learned counsel for the parties and gone through the record.
8. As already stated while narrating the averments made in the complaint, appellant in the proposal form, Annexure C-3, very categorically disclosed that his wife was a patient of blood cancer and she had been treated on 26.02.2009 at PGI, Chandigarh. Policy was issued, which is Annexure C-2. In that policy, clause 4.1 of Exclusions, reads differently from clause 4.1 in Annexure R1. Clause 4.1 in initial policy reads as follows:-
4.1 During the period of insurance cover, the expenses on treatment of following ailment/disease/surgeries for specified periods are not payable if contracted and/or manifested during the currency of the policy. Page 4 of 10
Kimat Lal Nagpal Versus Oriental Insurance Company Ltd.
(F.A. No.31/2015) _______________________________________________________________ i Benign ENT disorders and surgeries i.e. 1 year Tonsillectomy, Adenoidectomy, Mastoidectomy, Tympanoplasty etc. ii Polycystic ovarian diseases. 1 year iii Surgery of hernia. 2 years iv Surgery of hydrocele. 2 years v Non infective Arthritis. 2 years vi Undescendent Testes. 2 years vii Cataract. 2 years viii Surgery of benign prostatic 2 years hypertrophy.
ix Hysterectomy for menorrhagia or 2 years
fibromyoma or myomectomy or
prolapse of uterus.
x Fissure/Fistula in anus. 2 years
xi Piles. 2 years
xii Sinusitis and related disorders. 2 years
xiii Surgery of gallbladder and bile duct 2 years excluding malignancy.
xiv Surgery of genito- urinary system 2 years excluding malignancy.
xv Pilonidal Sinus. 2 years
xvi Gout and Rheumatism. 2 years
xvii Hypertension. 2 years
xviii Diabetes. 2 years
xix Calculus diseases. 2 years
Page 5 of 10
Kimat Lal Nagpal Versus Oriental Insurance Company Ltd.
(F.A. No.31/2015) _______________________________________________________________ xx Surgery for prolapsed inter vertebral 2 years disk unless arising from accident.
xxi Surgery of varicose veins and varicose 2 years ulcers.
xxii Congenital internal diseases. 2 years xxiii Joint Replacement due to Degenerative 4 years condition.
xxiv Age related osteoarthritis and 4 years Osteoporosis.
9. A bare reading of this clause would show that respondent could not have lawfully denied the claim, by referring to this clause. Clause 4.1 was changed by the respondent when it issued policy for the period from 07.08.2012 to 06.08.2013 and this changed clause, which appears in Annexure R1, reads as follows:-
"4.1 Pre-existing health condition or disease or ailment/injuries: Any ailment/disease/injuries/ health condition which are pre-existing (treated/ untreated, declared/not declared in the proposal form), in case of any of the insured person of the family, when the cover incepts for the first time, are excluded for such insured person upto 3 years of this policy being in force continuously. Page 6 of 10
Kimat Lal Nagpal Versus Oriental Insurance Company Ltd.
(F.A. No.31/2015) _______________________________________________________________ For the purpose of applying this condition, the date of inception of the first indemnity based health policy taken shall be considered, provided the renewals have been continuous and without any break in period, subject to portability condition.
This exclusion will also apply to any complications arising from pre existing ailments/ diseases/injuries. Such complications shall be considered as a part of the pre existing health condition or disease."
10. Under the changed clause 4.1, respondent is not liable to reimburse the medical expenses, or to say pay the medi-claim. Now, question is whether the respondent can lawfully press this changed clause into service to deny the claim of an insured, who purchased initial policy, prior to the change in this clause and had been getting the policy renewed year after year. Changed clause 4.1, excludes the claim, in respect of an ailment, which had been pre-existing up to a period of three years, from the inception of insurance for the first time, or say, the date of commencement of initial policy. Changed clause Page 7 of 10 Kimat Lal Nagpal Versus Oriental Insurance Company Ltd.
(F.A. No.31/2015) _______________________________________________________________ seeks to deprive even those insured, who ask for re- imbursement of medical expenses, which they would have lawfully claimed, under the initial policy, or even a renewed policy, prior to the coming into force of this changed exclusion clause.
11. The question is, could the respondent have affected the insured persons, who had purchased the initial policy and had been getting that policy renewed prior to this change. We have given our anxious thought to this poser. Now, if the appellant's wife had fallen sick and taken treatment for the pre-existing ailment of cancer, when the initial policy was in force, or the first time renewed policy was in force, respondent would have been liable to indemnify the insured. Clause 4.1 of the exclusion clause, forming part of the terms and conditions of policy, attached with the original policy or the first time renewed policy, reads differently and does not exclude the claim for pre-existing disease, for the first three year's period from the inception of initial policy.
12. A valuable right accrued to the insured under the initial policy. This right entitled him to re-imbursement of medical expenses, even in respect Page 8 of 10 Kimat Lal Nagpal Versus Oriental Insurance Company Ltd.
(F.A. No.31/2015) _______________________________________________________________ of a pre-existing disease. Of course, the policy, i.e. the second time renewed policy, under which the claim is lodged, is a fresh policy, but the changed exclusion clause itself makes it an extension of the initial policy, when it says that for the first three years, from the inception of initial policy, claim for pre-existing ailment is excluded. Such a claim was not excluded when the initial policy was purchased nor was it excluded when the first time renewed policy was taken. Had the kind of changed exclusion clause been there in the initial policy or the first time renewed policy, may be that the appellant did not opt for the insurance cover. He paid a huge amount of `6,705/- for the first year, similar amount of money for the second year and a sum of `6830/- for the third year.
13. The changed exclusion clause 4.1, in our considered view, should be applicable only in respect of those policies, which incept for the first time after the change and not to the policies that incepted prior to the change. This is particularly so, when as per arrangement between the respondent and the bank, the appellant and other customers had the option to seek renewal of insurance policy, on year to year Page 9 of 10 Kimat Lal Nagpal Versus Oriental Insurance Company Ltd.
(F.A. No.31/2015) _______________________________________________________________ basis, which implied that terms and conditions of the initial policy were not to be changed to the disadvantage of the insured persons, if there was continuity in renewal without any break.
14. In view of the above stated position, we allow the appeal, set aside the impugned order and direct the respondent to pay an amount of `77,028/-, by way of medi-claim to the appellant, with interest at the rate of 9%, per annum, from the date of filing of complaint, i.e. 12.08.2014, to the date of payment of said amount of money and also to pay `10,000/-, as compensation and an equal amount of money on account of litigation expenses.
15. A copy of the order be sent to each of the parties, free of cost, as per Rules.
(Justice Surjit Singh) President (Prem Chauhan) Member (Vijay Pal Khachi) Member May 23, 2015.
*dinesh* Page 10 of 10