State Consumer Disputes Redressal Commission
Oriental Insurance Co. Ltd. vs Narinder on 1 December, 2015
2nd Additional Bench
PUNJAB STATE CONSUMER DISPUTES REDRESSAL
COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 567 of 2014
Date of institution: 19.05.2014
Date of decision : 01.12.2015
1. The Oriental Insurance Company Limited, Registered and Head
Office at A-25/27, Asaf Ali Road, New Delhi.
2. The Oriental Insurance Company Limited, Amolak Bhawan,
G.T. Road, Moga.
3. Oriental Insurance Company Ltd, SCO No. 109-110-111,
Sector 17-D, Chandigarh all through authorized signatory of
Regional Office, Chandigarh.
.....Appellants/OPs No. 2 to 4
Versus
1. Narinder Kumar Mittal (aged about 62 years) S/o Sh. Rattan
Chand Mittal, R/o Shop No. 692, Old Grain Market, Moga.
......Respondent No. 1/complainant
2. Punjab National Bank, Partap Road, Moga, through its Branch
Manager.
.......Respondent No. 2/OP No. 1
3. M/s Medi Assist, TPA, Shilpa Vidya, 3rd Floor, 49, 1st Main
Road, Sarakki Industrial layout, III Stage, J.P. Nagar, Banglore.
..Respondent No. 3/OP No. 5
First Appeal against the order dated
02.04.2014 passed by the District
Consumer Disputes Redressal Forum,
Moga.
Before:-
Sh. Gurcharan Singh Saran, Presiding Judicial Member
Sh. Jasbir Singh Gill, Member Mrs. Surinder Pal Kaur, Member Present:-
For the appellant : Sh. R.C. Gupta, Advocate
For respondent No. 1 : Sh. Saurabh Sharma, Advocate
For respondent No. 2 : Sh. M.K. Sharma, Advocate
For respondent No. 3 : Ex-parte
First Appeal No. 567 of 2014 2
GURCHARAN SINGH SARAN (PRESIDING JUDICIAL MEMBER) This appeal has been preferred by appellant/OPs No. 2 to 4 (hereinafter referred as 'OPs No. 2 to 4') under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act') against the order dated 02.04.2014 in C.C. No. 117 of 02.04.2014 passed by the learned District Consumer Disputes Redressal Forum, Moga (in short the 'District Forum') vide which the complaint filed by the complainant was allowed with directions to OPs No. 2 to 4 to pay to the complainant a sum of Rs. 5 lac within a period of 30 days from the date of receipt of copy of the order failing which they will be liable to pay the awarded amount alongwith interest @ 6% per annum from the date of filing the complaint till realisation. They were further directed to pay Rs.5,000/- on account of litigation expenses.
2. Complaint was filed by the respondent No. 1/complainant (hereinafter referred as 'complainant') on the averments that he was the holder of policy bearing No. 233904/48/2013/388 valid for the period from 30.08.2012 to 29.08.2013 issued by OPs No. 2 & 3 through OP No. 4, whereas OP No. 5 was the TPA. It was further averred that he was continuous policy holder of these OPs since 2012. It was family package policy which included his wife with cover upto Rs. 5 lac. Complainant was account holder of OP No. 1 bearing No. 0324000106179900 and OP No. 1 further apprised the complainant that this policy was for account holder and employees and on their assurance, this policy was taken. In the month of June, 2013, the complainant got a pain in his chest and he consulted the doctor of Kaura Hospital and Multi Speciality Hospital, Moga on First Appeal No. 567 of 2014 3 24.06.2013. After conducting ECG, he referred the complainant to Global Heart & Super Speciality Hospital, Ludhiana on the same day with remarks that he has blockage in the artery and on the same day he was got admitted in the Global Heart & Super Speciality Hospital against OPD case No. 1828 and Coronary Angiography was done and he was diagnosed for TVD, AWMI and CHV for the same and he was discharged on 27.06.2013 with directions to follow up the medicines for five days and advised for PPI. He paid the charges as Rs. 36000/-. On the same date i.e. 27.06.2013, the complainant was got admitted in Fortis Hospital with IPID No. IP00162396 at about 8.45 P.M. on 27.06.2013 and on seeing his critical condition, doctor advised him for CABG and it was done and on 02.07.2013 PPI (Biotronik) was done. Hospital had charged a sum of Rs. 5,95,000/- and he was discharged in a stable condition on 08.07.2013. On 19.07.2013, he filled up his claim form and submitted to OP No. 2 alongwith details of treatment and original hospital bills, medicines bills etc. OP No. 4 assured the complainant that his claim will be processed at the earliest. However, on 25.11.2013 the complainant received a repudiation letter from the office of OP No. 4 that as per exclusion clause 4.2 the complainant had violated the terms and conditions and the expenses on the treatment of his ailment/disease was not covered. He again requested for settlement of his claim but with no results. The claim was repudiated without any reason which amounted to deficiency in service. Hence the complaint with directions to OPs to pay a sum of Rs. 5 lac expenses incurred by him on his treatment and to pay Rs. 2 lac as compensation and Rs. 15,000/- as cost of litigation.
First Appeal No. 567 of 2014 4
3. The complaint was contested by OPs No. 1 to 4 whereas OP No. 5 was ex-parte before the District Forum. OP No. 1 in its written version took the preliminary objections that the complaint was not maintainable as the complainant was not covered under the definition of 'consumer' under the Act. The complaint was not maintainable against OP No. 1 as this OP had no concern with the insurance policy. Only the amount of premium was paid through account of the complainant with OP No. 1. There was no relationship of consumer and service provider between the complainant and OP No. 1. On merits, same averments were reiterated. It was denied that this OP had no tie up with OP No. 2 to 5. The policy was taken independently by the complainant from OP No. 2 to 5. Only premium was paid through the account of the complainant with OP No. 1. There was no deficiency in service on the part of this OP. It was submitted that the complaint was without merit and it be dismissed.
4. OPs No. 2 to 4 in their written version took the preliminary objections that the complaint was not maintainable; complainant had no locus standi to file this complaint. There was no deficiency in service on the part of these OPs. The complaint was false and frivolous and complicated questions of law and facts were involved which needed voluminous evidence, examination and cross examination of the witnesses, therefore, the matter be relegated to Civil Court. The complainant had not approached the Forum with clean hands and had suppressed the material facts. The claim of the complainant was processed by OP No. 5 and as per the term of the policy, the expenses on treatment of ailment/disease/surgery for hypertension and diabetes for a specific period of two years was not First Appeal No. 567 of 2014 5 payable if contracted and/or manifested during the currency of the policy. The complainant was suffering from hypertension for the last 15 years and diabetes for the last one year. Therefore, the claim was rightly repudiated under exclusion clause 4.2 and that the complaint was false, frivolous and malicious, therefore, it was required to be dismissed with special costs. On merits, taking of policy was admitted as a matter of record. The terms and conditions were duly attached alongwith policy. In case the complainant had not received the terms and conditions alongwith insurance policy, then the complainant should have raised the objection at the time of receipt of the insurance policy. Otherwise averments in the preliminary objections were reiterated and it was submitted that the claim of the complainant was rightly repudiated according to the exclusion clause 4.1 and 4.2 of the policy. It was submitted that the complaint was without merit and it be dismissed.
5. Before the District Forum, parties adduced evidence in support of their contentions. Complainant tendered into evidence his affidavit Ex. C-1, copy of policy with terms and conditions alongwith policy schedule Ex. C-2 to Ex. C-5, prescription slip of Kaura Hospital Ex. C- 6, ECG reports Ex. C-7 and Ex. C-8, copy of discharge summary Ex. C-9, copy of Coronary Angiography Report Ex. C-10, copy of laboratory report Ex. C-11, copy of report of Coronary Angiogram Ex. C-12, , copy of Echocardiography Report Ex. C-13, report of medical test Ex. C-14 to Ex. 16, receipts/bills Ex C-17 to Ex. C-31, copy of discharge summary Ex. C-32, reports of medical tests Ex. C-33 to Ex C-34, copy of expenses on treatement dated 14.07.2013 Ex. 35, package wise service report Ex. C-36, copy of OP Pharmacy Ex. C- First Appeal No. 567 of 2014 6 37, copy of receipts/bills Ex. C-38 & Ex C-39, certificate of Dr. T.S. Mahant, Ex. C-40, application for claim Ex. C-41, letter dated 21.11.2013 Ex. C-42, affidavit of the complainant Ex. C-43 and closed the evidence. On the other hand OPs tendered into evidence affidavit of K.K. Grover, Ex. OP1/1, claim form Ex. OP-2-4/4, copy of insurance policy alongwith terms and conditions Ex. OP2-4/5, affidavit of Ashwani Kumar Wadhwa, Divisional Manager, Ex. OP2- 4/1, letter dated 11.12.2013 Ex. OP 2 to 4/2, repudiation letter Ex. OP-2 to 4/3, Claim Form Ex. OP 2-4/4, policy schedule Ex. OP 2-4/5 and closed the evidence.
6. After going through the allegations as alleged in the complaint, written reply filed by OPs, evidence and documents on the record, the learned District Forum allowed the complaint on the plea that hypertension and diabetes are not fatal diseases. It was further observed that the terms and conditions were not supplied to the complainant. The claim was payable and accordingly it was allowed.
7. Aggrieved with the order, the appellants/OPs No. 2 to 4 have filed this appeal.
8. We have heard the learned counsel for the parties and have carefully gone through the record of the District Forum.
9. In the grounds of appeal, it has been contended by the counsel for the appellant/OPs No. 2 to 4 that findings of the District Forum that the terms and conditions of the policy were not supplied to the complainant is against the evidence on the record. The complainant has placed on the record his own affidavit Ex. C-1, policy documents Ex. C-2 and there is note that insurance under the policy is subject to conditions, clauses, warranties endorsements. First Appeal No. 567 of 2014 7 Therefore, in case, the terms and conditions were not part of the policy, then the complainant should have raised this question with OPs, but no such letter was written before taking the treatment that he was not aware of the policy terms and conditions. Otherwise policy terms and conditions have been placed on the record by OP as Ex. OP 2-4/4 which includes basic features of the policy. Normally if any person takes the policy, he is supposed to know the terms and conditions of the policy, so that, lateron he cannot take the plea that he was not aware about the terms and conditions of the policy. In case he is basing his claim on the basis of same policy and he would referred in the policy document that it will be covered by the terms and conditions of the policy, then, now the complainant cannot take the plea that he was not aware of the terms and conditions of the policy. A reference has been made to the judgment passed by the Constitutional Bench of the Supreme Court in (General Assurance Society Ltd. Vs. Chandumull Jain and another), AIR 1966 SC 1644). Therefore, the District Forum was not correct in giving the findings that the terms and conditions of the policy were not supplied to the complainant. Therefore, same cannot be made applicable to the complainant.
10. District Forum has ignored the fact that respondent No. 1/complainant was suffering from ailment like hypertension for the last 15 years and diabetes for one year, therefore, the claim falls under 4.1 and 4.2 of the policy. It was not payable in the first two years from the inception of the policy whereas the claim in question was in the first year of the policy. Whereas District Forum had First Appeal No. 567 of 2014 8 wrongly interpreted the terms and conditions of the policy. It is pertinent to mention here clause 4.1 and 4.2 which read as under:-
4.1 - During the period of insurance cover, the expenses on treatment of following aliment/diseases/surgeries for specialized periods are not payable if contracted and / or manifested during the currency of the policy I Benign ENT disorders and surgeries i.e. Tonsillectomy, 1 year 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 hypertrophy 2 years IX Hysterectomy for menorrhagia or fibromyoma or 2 years myomectomy or prolapsed or uterus X Fissure/Fistula in anus 2 years XI Piles 2 years XII Sinusitis and related disorders 2 years XIII Surgery or gallbladder and bile duct excluding malignancy. 2 years XIV Surgery of genitor-urinary system excluding malignancy. 2 years XV Pilonidal Sinus 2 years XVI Gout and Rheumatism 2 years XVII Hypertension 2 years XVIII Diabetes. 2 years XIX Calculus diseases 2 years XX Surgery for prolapsed inter vertebral disk unless arising from 2 years accident.
XXI Surgery of varicose veins and varicose ulcers. 2 years First Appeal No. 567 of 2014 9 XXII Congenital Internal diseases 2 years XXII Joint Replacement due to Degenerative condition 4 years XXIII Age related osteoarthritis and Osteoporosis 4 years.
4.2 Injury or disease directly or indirectly caused by or arising from or attributable to War, Invasion, Act of Foreign enemy, War like operations (whether War be declared or not) or by nuclear weapons/materials.
From clause 4.1, it is clear that at Sr. Xvii and xviii there is hypertension and diabetes in which a cap is of two years. According to clause No. 4.2 in which disease directly or indirectly or caused by or arising from or attributable to War, Invasion, Act of Foreign Enemy, War like operations (whether war be declared or not) or by nuclear weapons/materials. However, ailment of the complainant which is related to heart had not occurred due to act referred above, therefore, clause 4.2 is not applicable. As per repudiation letter dated 21.04.2013 (Ex. C-42) it is repudiated as per exclusion clause No. 4.2 as there is a gap cap of two years. 4.2 is not covered, at the most it can be taken under clause 4.1. According to which there is a cap for taking the treatment for hypertension and diabetes. Now what is the nature of the treatment taken by the complainant during the policy period. He was admitted in Kaura Hospital & Multi Speciality Centre on 24.06.2013 (Ex. C-6) from where he was referred to Cardiology, department and he was admitted in Global Heart and Super Speciality Hospital under Dr. Brajesh Kumar Badhan on 24.06.2013 (Ex. C-9) and was discharged on 27.06.2013 for the complaint of pain in left side of chest. He was admitted in the hospital for CAD and he First Appeal No. 567 of 2014 10 was advised PPI, but patient got in the coronary angiography in higher centre. It was recommended revascularization, whereas in the discharge summary of the Fortis Hospital from which the treatment was taken Ex. C-32, he was diagnosed Coronary Artery Disease, Tripple Vessel Disease, Hypertension and Diabetes mellitus. He was operated for coronary artery bypass graft x 2 on 28.06.2013. On 02.07.2013, PPI (Biotronic) was done under Dr. Arun Kocchar and ultimately he was discharged on 08.07.2013. A certificate was issued by Fortis Hospital on 15.07.2013 (Ex. C-40) that Mr. Narinder Mittal (UHID/IPD-419400/162396) aged 62 years underwent CABG (Coronary Artery Bypass Grafting) on 28.06.2013 and PPI on 02.07.2013 at Fortis, Hospital, Moali, Punjab. He was admitted on 27.06.2013 and discharged on 08.07.2013 in stable condition. In the grounds of appeal, it has been referred that he was suffering from hypertension for the last 15 years and diabetes for one year. During the course of arguments, counsel for the appellant was unable to refer any document where it has been referred that the complainant was suffering from hypertension for the last 15 years and diabetes for last one year. We have gone through table given under clause 4.2 in which there is a cap for heart surgery. Therefore, the claim of the complainant be repudiated either as per 4.1 or 4.2 referred above. There is judgment 2001 (1) CLT 162 titled as "Life Insurance Corp of India and others Vs. Asha Goel and another", the Hon'ble Supreme Court laid down three conditions for applicability to repudiate the claim on the ground of suppression of material facts as under:-
First Appeal No. 567 of 2014 11
(a) the treatment must be on a material matter or must suppress facts which it was material to disclose;
(b) the suppression must be fraudulently made by the policy holder;
and
(c) the policy holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose."
Counsel for the OP has not been able to make out on the record what material fact was withheld by the complainant at the time of taking the policy, otherwise the complainant was more than 64 years. He alongwith his wife might have gone through the medical tests from panel doctor of OPs before issuing the policy. The claim was payable under the policy. It was wrongly repudiated by OPs under clause 4.2. We are of the opinion that the District Forum has properly appreciated the exclusion clause and we have also discussed above that exclusion clause No. 4.2 is applicable. We are of the opinion that the claim is payable, therefore, it was rightly allowed by the District Forum. We hereby affirm the findings of the District Forum allowing the claim of the complainant.
11. In view of the above discussion, we do not see any merit in the appeal, and the same is hereby dismissed.
12. The appellant had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. The amount of Rs. 25,000/- along with interest accrued thereon, if any, be remitted by the registry to respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days, from the date of First Appeal No. 567 of 2014 12 sending the certified copies of the order to the parties subject to stay, if any, by the higher Fora/Court.
13. Remaining amount shall be paid by the appellants to respondent within 30 days from the receipt of the copy of the order.
14. The arguments in this appeal were heard on 17.11.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (JASBIR SINGH GILL) MEMBER (SURINDER PAL KAUR) MEMBER December 01, 2015.
Rupinder