National Consumer Disputes Redressal
New India Assurance Co. Ltd. & Anr. vs Rajendra Kapoor on 12 May, 2016
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1631 OF 2012 (Against the Order dated 29/02/2012 in Appeal No. 636/2006 of the State Commission Orissa) 1. NEW INDIA ASSURANCE CO. LTD. & ANR. Through its Branch Manager Branch Office Cuttack Orissa 2. New India Assurence Co Ltd., Through its Senior Divisional Manager,Cuttack Divisional Office No-II, Cantonment Road Cuttack - 753001 Orissa 3. New India Assurence Co Ltd., Through its Senior Divisional Manager,Cuttack Divisional Office No-II, Cantonment Road Cuttack - 753001 Orissa ...........Petitioner(s) Versus 1. RAJENDRA KAPOOR S/o Late K.L Kapoor R/o "Kapoor House" Teacher Compound, Tulsipur Cuttcuk - 753008 Orissa ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA, MEMBER For the Petitioner : Mr. Mohan Babu Aggarwal, Advocate For the Respondent : Mr. Ashish Verma, Advocate Dated : 12 May 2016 ORDER Petitioners/Opposite Parties--New India Assurance Company Limited have filed the present (Revision Petition No.1631 of 2012 against the Respondent/Complainant--Rajindra Kapoor for setting aside the impugned order dated 29.2.2012 passed by the State Consumer Disputes Redressal Commission, Orissa, Cuttack (for short, 'State Commission') whereas, Complainant/Respondent--Rajindra Kapoor has filed (Revision Petition No.59 of 2013) against the New India Assurance Company Ltd. with the prayers that interest @ 18% p.a. may be given to the petitioner on the awarded amount of Rs.1,26,500/- and damages to the tune of Rs.50,000/-.
2. Since, both these petitions are arising out the same order, we propose to give a common order.
3. The facts have been taken from (Revision Petition No.1631 of 2012). Facts of the case as per Respondent/ Complainant are that, the complainant, his wife and son were having the Medi-claim Insurance Policy, taken from the Petitioners/Opposite Parties for the last twelve years. In the year 2002, he had also covered himself, his wife and son under the said Medi-Claim Policy No. 550401/48/02/00081 valid for the period from 24.05.2002 to 23.05.2003 after paying requisite premium of Rs.13,716/-. The said policy covered hospitalization and domiciliary hospitalization benefits for Rs.3,00,000/- for each of the insured persons.
4. Further, during the validity period of the policy, the respondent suffered severe cervical spondylitisis and he was first examined by Dr. D. K. Moda and thereafter by an ENT specialist Dr. G.Behera, who diagnosed the complainant/respondent to be suffering from Hypoxic state( Loss of concentration of Blood O2 resulting postural vertigo. The respondent was advised to undergo thorough investigation for "Sleep Apnea" at Safdurjung Hospital, New Delhi. The respondent on 17.12.2002 underwent required Polysomnography test in the Safdarjung Hospital and was discharged on 18.12.2002. He was also diagnosed to be suffering from "Severe obstructive Sleep Apnea Syndrome" and was advised to take Nasal Bilevel pressure every night-(IPAP-16cm-H2o) during sleep. The respondent purchased the above system for about Rs.1,26,500/- from R.K Morgan (India) Pvt. Ltd., New Delhi on 24.12.2002 and also purchased some other related items for his treatment and returned to Cuttack. Thereafter, respondent submitted his claim form on 27.1.2003 with the petitioner no.1's office and claimed the total amount of Rs.1,42,207.93P towards expenses incurred by him for the treatment. After elapse of two months, petitioner no.1 intimated the respondent vide its letter dated 31.3.2003 that his claim was not admissible under the above policy due to the following reasons;
"(i) That you have intimated to us on 18.11.2002 even though you have been treated for cervical spondylitisis from 04.11.2002 which is beyond seven days limit for intimation and violates condition no.5.3 of the policy.
(ii) You have not been hospitalized for a minimum 24 hours in any Hospital as an inpatient.
(iii) You have been treated in Safdarjung Hospital, New Delhi an outpatient under OPD ticket for "Polysomnography" test only."
5. Hence, due to the above deficiency in service and undue harassment committed by the respondents, the respondent had undergone severe mental agony for which seeing no other alternative the respondent filed a complaint before the "Insurance Ombudsman" constituted by the Department of Economic Affairs(Insurance Division) of the Ministry of Finance, Government of India under the Redressal of public grievances Rule, 1988, who after perusal of all available documents on record held that the repudiation of the claim by the petitioner/insurance company was justified and correct and the respondent was not entitled to any benefit under the policy. Therefore, the respondent has every reason to feel that the petitioners have illegally and arbitrarily repudiated his medi-claim insurance claim on flimsy and technical grounds without proper application of mind though the respondent was legally entitled for the same. Hence a consumer complaint was filed by the respondents before the District Forum with the following prayers;
"(1) To direct the opposite parties to pay Rs.1,42,208/- to the complainant towards his Medi-Claim insurance claim.
(2) To direct the opposite parties to pay interest @ 18% per annum on the above mentioned claim amount calculating from the date on which the Complainant lodged his Insurance Claim i.e. from 27.1.2003 till the date of its actual payment.
(3) To direct the opposite parties to pay Rs.50,000/- as compensation towards his mental agony and harassment suffered by him due to deficiency in service committed by the opposite parties.
(4) The complainant petition may kindly be allowed with cost. (5) Any other relief/reliefs as deemed fit and proper may kindly be allowed in favour of the complainant in the interest of justice."
6. In their written statement before the District Forum, Petitioners/Opposite Parties while denying all the allegations made by the respondent had stated that the respondent, before approaching the Forum, filed a complaint No. 1.00/BBSR/11-432 against the petitioners before the Insurance Ombudsman at Bhubaneswar and the said complaint was admitted on 26.08.2003 under Rule 12(1) (b) of the Redressal of the Public Grievance Rules, 1998. Therefore, the present petition filed under the Consumer Protection Act was not maintainable in law and liable to be dismissed. The petitioners further stated in their written statement that, as per mediclaim policy the Terms and Conditions No. 2: 3 read as under;
"Expenses on hospitalization for minimum period of 24 hours are admissible. However, this limit is not applied to the specific treatment i.e. Dialysis, Chemotherapy, Radiology, Eye Surgery, Dental Surgery, Lithotrapsy (Kidney Stone Removal), tonsillectomy, D & C taken in Hospital Nursing Home and the insured is discharged on the same day. The treatment will be considered to be taken under Hospitalization benefit. It is submitted that considering the above terms and conditions after due application of mind the opposite parties repudiated the claim of the complainant and intimated the complainant that the claim of the complainant was not admissible."
7. District Consumer Disputes Redressal Forum, Cuttack(for short, 'District Forum') vide their order dated 14.12.2005 while dismissing the complaint observed;
" The claim of the complainant was disallowed by the Insurance Ombudsman, Orissa, Bhubaneswar in complaint no. BBSR/11-432 as per his verdict passed on 23.1.2004. This forum is neither the appellate authority of the Insurance Ombudsman nor has his decision binding effect on it. His view can be given respect to. The ruling cited by the complainant in case no.2133/2000 of the Member, Consumer Disputes Redressal Forum, New Delhi cannot be of any guideline for this Forum to act upon. Conjectures or surmise in absence of definite and specific terms inserted in medi-claim insurance policy conditions cannot be taken recourse to or taken aid for deciding a case of this nature.
In view of all that have been discussed above, we came to clear finding that the complaint is benefit of any merit which fails and is accordingly dismissed.
7. Aggrieved by the order of the District Forum, respondent filed an appeal before the State Commission. The State Commission vide their order dated 29.02.2012 while allowing the appeal observed as under;
" On through perusal of the policy conditions, clause 2.3 shows that exemption from minimum period is allowed for specific treatment i.e., Dialysis, Chemotherapy, Radiology, etc...... The question is whether specific treatment is only in relation to listed items in the clause or the list is on only illustrative and it is not a final list as the word 'and' is not used to the finality to the list of items for which specific treatment was aimed at. Moreover, the very use of terms "specific treatment", unlocks the intention of the policy framers. Had the policy framers limited the benefit in regard to only Dialysis, Chemotherapy, Radiology, Eye Surgery, Dental Surgery, Lithotripsy(Kidney stone removal) D&C, Tonsillectomy, they would have straightway given this list without using the words "specific treatment". Otherwise also, it is also not possible to forsee all the medical situation where hospitalization be required for lesser period and that is why terms "specific treatment" is used.
It is now well settled that the list of specific treatment mentioned in the clause is illustrative. In the present case appellant was hospitalized on 17.12.2002 and was discharged on 18.12.2002. He was diagnosed to be suffering from 'Severe obstructive Sleep Apnea Syndrome" and advised to take Nasal Bilevel-(IPAP-16 Cm-32 & EPAP-12 cm H2) pressure every night during sleep. The complaint purchased the above system from P.K. Morgan(India) Pvt. Ltd, New Delhi on 24.12.2002 along with some other items for his treatment. So, he was kept in the hospital for a specific treatment which did not require a minimum period of 24 hours hospitalization and his hospitalization for lesser period will be considered to be treatment under Hospitalization Benefit clause. So, we hold that the respondent repudiated the claim fo the appellant without application of mind.
In view of the above facts and circumstances of the case, we are of the opinion that respondent are deficient in rendering service as they repudiated the genuine claim of the complainant without proper application of mind and against the norms and conditions of the policy. We, therefore, direct the respondents to pay the appellant a sum of Rs. 1,26,500/ - being the amount spent on Nasal Bilevel system."
9. Hence, present revision petitions.
10. We have heard learned counsel for the parties. Learned counsel for petitioners has contended that it is an admitted fact that the complainant suffered "Sleep Apnea" and inspite of getting himself treated with different doctors at Cuttack when he was not cured he came to Safdurjung Hospital, New Delhi on 17.12.2002 and after investigation as per the advice of the doctor he had purchased medicine and Nasal machine for Rs.1,42,207.93P. It is also admitted case of the respondent that he was treated as an indoor patient for 7 hours only. Further, the claim of the respondent was rightly repudiated on the ground as there was delay of 7 days in giving intimation and the hospitalization period was less than 24 hours. The respondent was treated as an outpatient Safdurjung Hospital where only Polisonography test was done. It is also contended by the learned counsel for the petitioners that the impugned order of the State Commission is incorrect as the State Commission has misread the policy condition and on the basis of presumption had given a finding to the effect that for all the cases, 24 hours hospitalization is not necessary, and hospitalization for lesser period will be considered to be treatment under hospital benefit Clause and further without considering the violation of the Clause-5-3 of the Policy condition the State Commission set aside the well-reasoned order of Forum below. Further, the respondent was admitted at Safdurjung Hospital, New Delhi for Polysomnography Test only (as thorough investigation was required) with regard to "Sleep Apnea" at about 9.00 am on 17.12.2002 and he was discharged at about 06.00 a.m. in the morning of 18.12.2002. Polysomnography is the technical term for an overnight sleep study that involves recording brain waves and other sleep related activity. Polysomnography involves many measurements and is typically performed at a sleep center. Further, the Condition No. 2.3 of the Mediclaim policy states that "Expenses on Hospitalization for minimum period of 24 hours are admissible. However, this time limit will not apply to specific treatment i.e. Dialysis, Chemotherapy, Radiology, Eye Surgery, Dental Surgery, Lithotripsy (Kidney stone removal), D & C taken in Hospital/Nursing Home and the insured is discharged on the same day, the treatment will be considered to be taken under Hospitalization Benefit. The State Commission has wrongly interpreted the line 'specific treatment' i.e. Dialysis, Radiology etc. stating that the insured could have straightway mentioned the above procedure instead of mentioned the word 'Specific Treatment'.
11. Learned counsel for the respondent has argued in favour of the impugned order and his only contention is that since he had got the relief after much delay, he is entitled to interest @ 18% p.a. on the award amount for Rs.12,6,500/- and damages to the tune of Rs.50,000/-.
12. We have carefully gone through the record.
13. To begin, we have carefully perused the insurance policy placed on record. Admittedly, the medi-claim insurance policy is to cover, "Hospitalization expenses for medicals/surgical treatment at any Nursing Home/Hospital in India as herein defined (hereinafter called HOSPITAL) as an inpatient OR (b) on domiciliary treatment in India under Domiciliary Hospitalization Benefits as hereinafter defined."
14. Expenses as per Condition No.1 of the Medi-claim Insurance Policy would be admissible of those shall be incurred on the following;
"A) Room, Boarding Expenses as provided by the hospital/nursing home.
B) Nursing expenses. C) Surgeon, Anesthetist, Medical practioner, Consultants, Specialists Fees. D) Anesthesia, Blood, Oxygen, Operation Theatre Charges, Surgical Appliances, Medicines & Drugs, Diagnostic Material and X-Ray, Dialysis, Chemotherapy, Radiotherapy, Cost of Pacemaker, Artificial Limbs & Cost of Organs and similar expenses." 15. Further, Condition No. 2.3 of the Mediclaim Insurance Policy read as under ;
" 2.3 Expenses on Hospitalization for minimum period of 24 hours are admissible. However, this time will not apply to specific treatments i.e. Dialysis, Chemotherapy, Radiology, Eye Surgery, Dental Surgery, Lithotripsy (Kidney stone removal), Tonsillectomy, D & C taken in Hospital/Nursing Home and the insured is discharged on the same day, the treatment will be considered to be taken under Hospitalization Benefit."
16. We are of the view that the claim of the complainant would be considered under the Clause No. 2.3 as he preferred his claim for hospitalization in Safdurjung Hospital. As per the averments of the respondent in the complaint, which read as under;
" He was advised to undergo thorough investigation for "Sleep Apnea" at Safdurjung Hospital, New Delhi. Accordingly, the complainant proceeded to New Delhi and on 17.12.2002 he underwent the required Polysomnography test in the above mentioned Hospital and discharged on 18.12.2002. He was diagnosed to be suffering from 'Severe obstructive Sleep Apnea Syndrome" and was advised to take Nasal Bilevel (IPAP-16cm-H2o and EPAP-12 cm H2o) pressure every night during sleep. The respondent purchased the above system for around Rs.1,26,500/- from R.K Morgan (India) Pvt. Ltd., New Delhi on 24.12.2002 and he also purchased some other related items for his treatment and returned to Cuttack."
17. As per further details given in the written statement filed by the Petitioners/Opposite Parties before the District Forum, respondent had gone to Safdurjung Hospital for test/investigation of "Sleep Apnea" which read as under;
"The entire test was conducted for seven hours 46 minutes i.e. from 17.12.2002 at 22.15 to 18.12.2002 at 06. 01. This fact has been certified by the Doctor J.C. Suri. After carrying out the said test, the insured purchased Bilevel Therapy system with accessory for Rs.1,26,500/- from P.K. Morgan(India Pvt. Ltd.) vide said bill No.640 dated 24.12.2002 and one U.P.S. Microtek make for Rs.3,500/- from instant computer services on dated 27.12.2002 with O.P.D. Ticket but not admitted in the hospital. The complainant submitted the complete claim form, bill report etc. on dated 29.1.2003 with a claim amount to Rs.1,42,407/- and stated in the claim form as the date of admission is dated 17.12.2002 and date of discharge is dated 27.12.2002."
18. From the above, two facts are evident that (1) respondent was not admitted in the hospital for 24 hours and secondly he was admitted in the hospital only for tests and investigations and not for treatment. From the record on the file, it is clear that the claim of Rs.1,42,407/-, preferred by the Complainant/ Respondent to the Petitioners was not for any treatment of "Sleep Apnea" but only for the purchase of 'Bilevel Therapy System' with accessory for Rs.1,26,500/- from P.K. Morgan (India Pvt. Ltd.) vide said bill No.640 dated 24.12.2002 and one Mickrotek UPS for Rs.3,500/-.
19. We do not agree with the observations made by the State Commission that list of specific treatment in clause 2.3. is illustrative. Condition No. 2.3 mentions specific treatments to which the time limit would not be applicable. Further, the claim preferred by the respondent is not as per the provisions of Condition No.1 of the Mediclaim Insurance Policy and the respondent has not been charged or incurred the amount on any of the admissible items with regard to the hospitalization expenses.
20. We have also gone through the order of the Insurance Ombudsman placed on record. After hearing the parties and going through the record, the Insurance Ombudsman has held as under;
"On perusal of all available documents on record (including the papers submitted by the Insured-Complainant with his P-Form) and the submission by the Insurer, I am of the opinion that the repudiation of the claim was justified and correct under the circumstances of the claim. It is an admitted fact that the Insured-Complainant was in the hospital for a little more than 7 hours. In Item No.2 of the Policy various definitions have been laid down and as per Item No.2.3 "all expenses on hospitalization for minimum period of 24 hours are admissible. However, this time limit is not applied to specified treatment i.e. Dialysis, Chemotherapy, Radiology, Eye Surgery, Dental Surgery, Lithotrapsy (Kidney stone removal), tonsillectomy, D & C taken in Hospital/ Nursing Home and the insured is discharged on the same day, the treatment will be considered to be taken under Hospitalization benefit." A mere reading of the definition will justify the action of the Insurer. Neither the Insured-Complainant stayed for more than 24 hours nor his treatment was of a specific nature, as laid down in the above definition. Since he was not hospitalized for the required duration he was not entitled to any benefit under the Policy.
In view of the foregoing discussions, I am inclined to agree with the Insurer and therefore, the complaint stands disposed of without recommending any relief to the Insured-Complainant."
21. Given the facts above, we are of the view that the State Commission has erred in giving its own interpretation to the terms and conditions of the mediclaim insurance policy, which cannot be upheld. The Petitioners were justified in repudiating the claim of the respondent. We set aside the impugned order of the State Commission Therefore, (Revision Petition No.1631 of 2012) filed by the Petitioners/New India Assurance Company Ltd. and is hereby allowed. As far as (Revision Petition No.59 of 2013) filed by Complainant-Rajendra Kapoor is concerned, we do not find any merit in this petition and the same is hereby dismissed. Consequently, we uphold the order of the District Forum and complaint filed by the Complainant-Rajendra Kapoor before the District Forum stand dismissed.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... REKHA GUPTA MEMBER