State Consumer Disputes Redressal Commission
Sukhjiv Singh vs The Oriental Insurance Co. Ltd. on 9 April, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No. 200 of 2015
Date of institution : 16.02.2015
Date of decision : 09.04.2015
Sukhjiv Singh s/o Shri H.S.Sethi, Gillard Electronics Pvt. Ltd., C-132,
Phase-VIII, Industrial Area, SAS Nagar (Mohali).
.......Appellant/Complainant
Versus
1. The Oriental Insurance Company Ltd., SCO No.20, 2nd Floor,
Sector 55, Near Post Office, Phase-1, Mohali, SAS Nagar,
Mohali-160 055 through its Branch Manager.
2. Vipul MedCorp TPA Private Ltd.,S.C.F. No.98, Ist Floor,
Industrial Area, Phase-2, Chandigarh.
........Respondents/Opposite Parties
First Appeal against the order dated
18.12.2014 of the District Consumer
Disputes Redressal Forum, SAS Nagar
(Mohali).
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Shri Baldev Singh Sekhon, Member
Mrs. Surinder Pal Kaur, Member Present:-
For the appellant : Ms. Hem Lata Thakur, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
This appeal has been preferred by the appellant/complainant against the order dated 18.12.2014 passed by District Consumer Disputes Redressal Forum, SAS Nagar, Mohali (in short, "District Forum"), vide which the complaint filed by him under Section 12 of the Consumer Protection Act, 1986, was dismissed. First Appeal No.200 of 2015. 2
2. Briefly stated the facts are that the complainant obtained medi- claim policy from respondent No.1/opposite party No.1 on 15.1.2013. During the continuance of that Policy he was admitted in Sri Guru Harkrishan Sahib Eye Institute & Super Specialty Hospital, Sector 77, Mohali, on 4.3.2013 where he was operated for his left eye and the treatment was completed on 5.3.2013. He had to bear medical expenses to the tune of Rs.1,00,000/-. On 11.3.2013 he was again admitted in that Hospital for the treatment of his right eye and that treatment was completed on 12.3.2013. On that occasion he bore medical expenses to the tune of Rs.1,01,542/-. He submitted the claims to the opposite parties and he was allowed only Rs.17,000/- and Rs.17,742/-, respectively, against those two claims. Not feeling satisfied, he filed the complaint alleging therein that he was entitled to the reimbursement of the total amount of Rs.2,01,542/- and the opposite parties were under legal obligation to reimburse the same. They were not justified in settling the claim only at Rs.34,742/-. That act on their part amounted to deficiency in service. He prayed for the issuance of following directions to the opposite parties:
i) to pay Rs.2,01,542/-, along with interest at the rate of 18% with effect from 4.3.2013;
ii) to pay Rs.50,000/-, as compensation for the unnecessary harassment, mental tension, agony and other sufferings; and
iii) to pay Rs.10,000/-, as litigation expenses. First Appeal No.200 of 2015. 3
3. The complaint was contested by opposite party No.1 by filing detailed written reply before the District Forum. In the written reply it did not dispute that the medi-claim policy, as mentioned in the complaint, was so obtained by the complainant and that after the treatment of his eyes he applied for reimbursement of the medical expenses incurred by him. While denying the other allegations made in the complaint, it pleaded that the complainant is seeking reimbursement in the light of the insurance policy for cataract surgery, which squarely falls within the exclusion clause of the Policy. As per Clause 4.6, surgery for the correction of the eye sight, cost of spectacles, contact lenses etc. is not included within the ambit of reimbursement of the amount. The cataract surgery essentially included removal of the clouding or film of the natural lens for correction of eye sight. The terms, as contained in the Policy, are to be construed strictly, which completely excludes the cataract surgery. Even if it is accepted that the cataract surgery is included in the terms of the Policy, even then, the complainant was not entitled to the reimbursement of the amount incurred by him on the lenses, which were got implanted by him during that surgery and the amount of which comes to Rs.76,000/-. The implanting of artificial lens for correction of eye sight is not covered under the Policy and the same falls under the above said clause. Whatever amount was permissible, as per the Policy, was reimbursed to the complainant. The complainant had undertaken cashless access services, for which he was required to make a request to the TPA, who was to settle the pre-agreed charges and bills with the network hospital First Appeal No.200 of 2015. 4 where the complainant was treated. As per clause 5.5 of the Policy, the claim documents were required to be sent to the TPA within 7 days of the discharge from the Hospital. That mandatory requirement was not fulfilled, as the documents were submitted to the TPA after the lapse of 53 days. Various letters were written by the TPA/opposite party No.2 to the complainant seeking the reasons and for affording an opportunity for submitting the documents late but no reply was given by him. On that account his file was closed as "No Claim". No cause of action survives to the complainant and the complaint filed by him is not maintainable. The Policy includes the arbitration clause and the dispute raised by the complainant is liable to be referred to the Arbitrator. It prayed for the dismissal of the complaint.
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf dismissed the complaint, vide aforesaid order.
5. We have heard learned counsel for the appellant and have carefully gone through the records of the District Forum, which were called at the stage of admission of the appeal.
6. The only argument raised at the time of preliminary hearing by the counsel for the appellant/complainant is that the opposite parties were not justified in invoking clause 4.6 of the Policy, as the terms and conditions, containing that clause, were never furnished to him nor those were ever read over and explained by the opposite parties nor his attention was specifically drawn to the exclusion clause. At First Appeal No.200 of 2015. 5 the time the medi-claim policy was applied for only the Policy Schedule, Ex.C-1, was given to the complainant and no such terms and conditions, proved on the record by the opposite parties as Ex.OP-1, were made part of that Policy. That itself is a ground for admitting this appeal to be heard on merits.
7. A perusal of the Policy Schedule Ex.C-1 itself shows that it was "Happy Family Floater Policy" and it was mentioned therein that the same was subject to the conditions, clauses, warranties, endorsements as per the Form attached. That Form was not produced along with the Policy. In fact, Ex.OP-1 proved by the opposite parties is that Form. In view of the observations made by the 5 Judges Bench of the Hon'ble Supreme Court in AIR 1966 Supreme Court 1644 (General Assurance Society Ltd. v. Chandmull Jain and another) it cannot be said that there is any merit in the argument, so advanced, by the learned counsel for the complainant. The relevant portion of that judgment is reproduced below:-
"11. A contract of insurance is a species of commercial transactions and there is a well- established commercial practice to send cover notes even prior to the completion of a proper proposal or while the proposal is being considered or a policy is in preparation for delivery. A cover note is a temporary and limited agreement. It may be self-contained or it may incorporate by reference the terms and First Appeal No.200 of 2015. 6 conditions of the future policy. When the cover note incorporates the policy in this manner, it does not have to recite the terms and conditions, but merely to refer to a particular standard policy. If the proposal is for a standard policy and the cover note refers to it, the assured is taken to have accepted the terms of that policy. The reference to the policy and its terms and conditions may be expressed in the proposal for the cover note or even in the letter of acceptance including the cover note. The incorporation of the terms and conditions of the policy may also arise from a combination of references in two or more documents passing between the parties. Documents like the proposal, cover note and the policy are commercial documents and to interpret them commercial habits and practice cannot altogether be ignored. During the time the cover note operates, the relations of the parties are governed by its terms and conditions, if any, but more usually by the terms and conditions of the policy bargained for and to be issued. When this happens the terms of the policy are incipient but after the period of temporary cover, the relations are governed First Appeal No.200 of 2015. 7 only by the terms and conditions of the policy unless insurance is declined in the meantime. Delay in issuing the policy makes no difference. The relations even then are governed by the future policy if the cover notes give sufficient indication that it would be so. In other respects there is no difference between a contract of insurance and any other contract except that in a contract of insurance there is a requirement of uberrima fides, i.e., good faith on the part of the assured and the contract is likely to be construed contra proferentem that is against the company in case of ambiguity or doubt. A contract is formed when there is an unqualified acceptance of the proposal. Acceptance may be expressed in writing or it may even be implied if the insurer accepts the premium and retains it. In the case of the assured, a positive act on his part by which he recognizes or seeks to enforce the policy amounts to an affirmation of it. This position was clearly recognized by the assured himself, because he wrote, close upon the expiry of the time of the cover notes, that either a policy should be issued to him before that period had expired or the cover note extended in time. In interpreting documents First Appeal No.200 of 2015. 8 relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves. Looking at the proposal, the letter of acceptance and the cover notes, it is clear that a contract of insurance under the standard policy for fire and extended to cover flood, cyclone etc. had come into being."
8. In view of the ratio of this judgment, it is to be held that after the Policy Ex.C-1 was accepted by the complainant in which it was mentioned that the conditions, clauses, warranties and endorsements are in the attached form and he well knew that it was "Happy Family Floater Policy". He was bound by the terms and conditions proved on the record as Ex.OP-1. The opposite parties were justified in invoking exclusion clause 4.6 of those terms and conditions for repudiating his claim.
9. We do not find any ground to admit this appeal to be heard on merits and the same is hereby dismissed in limine.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (SURINDER PAL KAUR) April 09, 2015 MEMBER Bansal First Appeal No.200 of 2015. 9