State Consumer Disputes Redressal Commission
National Insurance Company Ltd. vs Ravinder Singh on 3 March, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No. 1878 of 2010
Date of institution : 27.10.2010
Date of decision : 03.03.2014
1. National Insurance Company Limited, Regional Office, SCO
Nos.332-334, Sector 34-A, Chandigarh through its duly
constituted attorney.
2. Med Save Healthcare (TPA) Ltd., SCO No.121-122-123,
Second Floor, Sector 34-A, Chandigarh through its Regional
Head.
.......Appellants- Opposite Parties 2 & 1
Versus
1. Ravinder Singh minor son of Jagjit Singh son of Ishar Singh,
resident of Village Dhumni Wala, Tehsil and District Ferozepur,
being minor, through his father, next friend and natural
guardian namely Jagjit Singh son of Ishar Singh, resident of
Village Dumni Wala, Tehsil and District Ferozepur.
..........Respondent/Complainant
2. The Shahdin Wala Cooperative Agricultural Service Society,
Shahdin Wala, Tehsil and District Ferozepur, through its
President.
3. The Deputy Registrar, Co-operative Societies, Mall Road,
Ferozepur City.
4. Amandeep Hospital, G.T. Road, Model Town, Amritsar through
its authorized person.
......Respondent- Opposite Party No.3 to 5
First Appeal No.1878 of 2010. 2
First Appeal against the order dated
4.2.2010 of the District Consumer
Disputes Redressal Forum, Ferozepur.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President.
Mrs. Surinder Pal Kaur, Member.
Present:-
For the appellants : Shri R.C. Gupta, Advocate.
For respondent No.1 : Shri Sandeep Chopra, Advocate. For respondent No.2&3: None.
For respondent No.4 : None.
JUSTICE GURDEV SINGH, PRESIDENT :
Ravinder Singh, respondent No.1/complainant, was minor and was being looked after by his father Jagjit Singh, who was Member of the Cooperative Society of his village and, as such, the Members of his family were covered under the Bhai Ghanhya Sehat Sewa Scheme (in short, "the Scheme") for medical treatment. That Scheme had been adopted and implemented by appellant No.1/opposite party No.2-Insurance Company. Jagjit Singh was holder of a card and the insurance policy which was valid from 1.10.2008 to 30.9.2009, by virtue of which and the Scheme, he and his family members were entitled to cashless treatment from the empanelled hospitals. On 3.7.2009 the complainant along with one Gurwinder Singh was coming to the village on a motorcycle which met with an accident, in which he sustained the multiple injuries. He was brought to Amar Hospital, Ferozepur Cantt and after the first aid was given he was got admitted in Amandeep Hospital, Amritsar. His father informed the hospital that he was having cashless policy for the medical treatment of his son and the doctor told him that he would send the information to the concerned official/authorities and that he was required to deposit the necessary expenses. First Appeal No.1878 of 2010. 3
Accordingly he deposited Rs.10,000/- towards the hospital charges and also incurred the expenses for medicines separately. The case of the complainant was sent by the hospital authorities to MedSave Healthcare (TPA)-opposite party No.1 but the same was repudiated on the ground that the cashless facility for treatment was not available as the fracture of Mandible and Maxilla was not covered under the insurance policy. The complainant, through his father, filed complaint before the District Consumer Disputes Redressal Forum, Ferozepur (in short, "District Forum") under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") in which he alleged that the injury/fracture was suffered by him due to road accident and was not a disease and the injury/fracture suffered by him was covered under the policy. Therefore, under the Scheme he was entitled to cashless facility. The claim was repudiated by opposite parties No.1 and 2 in a hot and hasty manner without considering those facts. His father spent Rs.58,350/- towards hospital charges and Rs.13,742/- towards medicines and he remained admitted in the hospital from 3.7.2009 to 10.7.2009 during which he was operated for the above said fracture. Thereafter he was an outdoor patient of that hospital and is likely to spent Rs.50,000/- more for his treatment. He prayed for the issuance of following directions to the opposite parties:-
i) to sanction the genuine claim of Rs.72,092/- and to pay interest on that amount at the rate of 18% per annum from the date the said amount became due till the realization thereof;First Appeal No.1878 of 2010. 4
ii) to pay Rs.50,000/- as compensation on account of mental harassment, pain, agony; and
iii) to pay Rs.5,000/- towards litigation expenses.
2. Opposite parties No.1 and 2 filed a joint written reply in which they pleaded that as per the terms and conditions of the policy, the accidental coverage was not permissible and it was on that ground that the claim of the complainant was repudiated and the cashless treatment was refused to him. He should have approached MACT for compensation which was the proper Forum to claim compensation for roadside accident. The said terms and conditions were duly supplied to all the policy holders and the complainant is bound by the same. The complaint is not maintainable as there was no deficiency in service on their part and the provisions of the Act are not attracted. They also pleaded that complicated questions of law and facts are involved and lengthy procedure of law of evidence is required to be adopted for deciding those questions and, as such, the matter be relegated to the Civil Court. The complainant has not come to the District Forum with clean hands and has concealed and suppressed the material facts. They prayed for the dismissal of the complaint with special costs; being false, frivolous and vexatious.
3. Opposite parties No.3 and 4 filed a joint written reply in which they admitted that the insurance policy had been obtained for Jagjit Singh from the Insurance Company as Member of the Cooperative Society and that the complainant is his son and that under that policy, Jagjit Singh was insured for medical treatment for one year. They pleaded that only the premium was paid by them towards the First Appeal No.1878 of 2010. 5 insurance policy and, as such, they are not necessary parties. The complainant never approached them and the necessary information was to be given only to the Insurance Company. The age of the complainant was given as 14 years and, as such, he was required to have a driving licence for driving the vehicle; which he was not having and, as such, was not competent to drive the motorcycle. The remedy of the complainant is only under the Motor Vehicles Act, 1988. They are not liable to pay any such amount as claimed in the complaint and the same is not maintainable against them. They prayed for the dismissal thereof.
4. Opposite party No.5 also filed the written reply in which it gave reply only to those facts, which relate to it. It pleaded that the complainant came to the hospital with bleeding from mouth and swelling on the face and injury to the right hand, on 4.7.2009. He was checked by the Plastic Surgeon and was diagnosed as fracture of Mandible, multiple CLW over face, partial amputation (RI) MM with injury FDP2 nerve. He was kept in the ICU and the next day his attendants' had shown the Scheme card to avail the cashless facility upon which pre-authorization letter and the relevant documents were sent to opposite party No.1, who sent the rejection letter dated 6.7.2009. There was no fault on its part and there was no deficiency in service or unfair trade practice on its part. The bills issued by it run into Rs.72,092/-/-. The complainant has no cause of action against it and cannot maintain this complaint against it.
5. The parties produced evidence in support of their respective averments before the District Forum, which after going through the First Appeal No.1878 of 2010. 6 same and hearing learned counsel on their behalf, allowed the complaint, vide majority order dated 4.2.2010 and directed opposite parties No.1 and 2 to reimburse the complainant the admissible expenses incurred by him on his treatment and to pay Rs.5,000/- as compensation on account of mental agony, pain and harassment suffered by him. Direction was also issued to comply with that direction within a period of 30 days from the date of receipt of a copy of the order and failing that these opposite parties were directed to pay interest at the rate of 8% per annum from the date of the complaint till the realization thereof. The minority view was recorded by one of the Member, who dismissed the complaint.
6. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
7. It was submitted by the learned counsel for opposite parties No.1 and 2 that the medical treatment for the injuries received in the accident, which resulted in the fracture of Mandible and Maxilla, was not covered under the insurance policy and, as such, the claim of the complainant was validly repudiated. The President and one Member of the District Forum failed to appreciate the terms and conditions of the insurance policy, which were duly appreciated by the other Member, who recorded dissenting judgment. The order of the District Forum recorded against the terms and conditions of the insurance policy is liable to be set aside.
8. On the other hand, it was submitted by the learned counsel for the complainant that no such terms and conditions were furnished to Jagjit Singh, who was the Member of the Cooperative Society and in First Appeal No.1878 of 2010. 7 whose name the insurance policy was issued for his benefit and the benefit of his family members. Even those terms and conditions were not proved before the District Forum by opposite parties No.1 and 2. One of the Members on his own, without any evidence on the record, referred to the guide book in his order and by wrongly interpreting one of the clause of that guide book recorded the finding against the complainant. On the other hand, the majority opinion was recorded on the basis of the evidence produced on the record and there is no ground for setting aside that finding.
9. It was specifically pleaded by the complainant in his complaint that the terms and conditions of the insurance policy were never furnished at the time of the issuance of the policy and the insurance card. No doubt, that plea was duly denied by the opposite parties but they failed to prove on record those terms and conditions. Had any such terms and conditions been furnished to the insurer, they must have proved the same on the record. The complainant proved on record the pre-authorization letter, which was written by the Hospital to opposite party No.1, Ex.C-5. Opposite party No.1 replied that letter and that reply was proved on the record as Ex.C-6. No doubt, it was mentioned in that letter that the fracture of the Mandible and Maxilla was not covered under the policy but the cashless treatment was not refused merely on that ground and it was mentioned therein that the liability of the Insurance Company under the policy was not determinable at that time from the details so provided regarding the history of the insurance and disease. First Appeal No.1878 of 2010. 8
10. The question to be determined is, whether the treatment of the injury suffered in the accident was excluded as per the terms and conditions of the insurance policy? In the absence of those terms and conditions, it is not possible for us to record a finding against the complainant. Shri Tarlok Singh, Member of the District Forum, who recorded the dissenting view referred to the guide book, which according to him was available in the other cases. He placed reliance on one of the clause contained in that guide book, which provided that no insurance amount shall be payable for the dental treatment or any operation connected therewith. It was wrongly recorded by that Member that the dental treatment of any kind, including operation, either for a fracture due to accidental injury or due to any other cause was not available to a member of the Scheme. This is absolutely wrong interpretation of the said clause. Had there been any such clause providing that the insurance claim shall not be admissible for the treatment of the injuries received in the accident, the Member must have referred to the same. That itself shows that there was no such clause. The opposite parties have miserably failed to prove that there was any such term or condition in the insurance policy, according to which, the claim was not admissible in respect of the injuries received during the accident. In these circumstances the majority opinion recorded by the District Forum is to be upheld. There is no merit in this appeal and the same is hereby dismissed.
11. The arguments in this case were heard on 17.2.2014 and the order was reserved. Now, the order be communicated to the parties. First Appeal No.1878 of 2010. 9
12. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH)
PRESIDENT
(MRS. SURINDER PAL KAUR)
March 03, 2014 MEMBER
Bansal