State Consumer Disputes Redressal Commission
Oriental Insurance Company Limited vs Parmod Kumar on 4 June, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.868 of 2012
Date of institution : 27.06.2012
Date of decision : 04.06.2014
1. Oriental Insurance Company Limited, New Delhi-110 002.
2. Oriental Insurance Company Limited through its Divisional
Manager, Divisional Office, The Mall, Ferozepur City.
Both represented through Sh. Ram Avtar, Deputy Manager of
The Oriental Insurance Company Limited, Regional Office,
S.C.O. No.109-110-111, Sector 17-D, Chandigarh duly
constituted attorney.
.......Appellants- Opposite Parties
Versus
Parmod Kumar Kapoor, aged 60 years, son of Ram Lal Kapoor,
resident of 15, Preet Nagar, Ferozepur City.
......Respondent-Complainant
First Appeal against the order dated
7.5.2012 of the District Consumer
Disputes Redressal Forum, Ferozepur.
Quorum :-
Hon'ble Mr. Justice Gurdev Singh, President.
Mr. Vinod Kumar Gupta, Member
Mrs. Surinder Pal Kaur, Member.
Present:-
For the appellants : Shri R.K. Bashamboo, Advocate. For the respondent: Shri Nitin Narula, Advocate. JUSTICE GURDEV SINGH, PRESIDENT :
Parmod Kumar Kapoor, complainant, had been regularly purchasing medi-claim insurance policies from the opposite parties- Insurance Company from the last many years after paying the insurance premium. One such policy was obtained by him for First Appeal No.868 of 2012. 2 himself and for his wife for the period 1.10.2011 to 30.9.2012 and the sum assured was Rs.4,00,000/-, for which he paid Rs.5,674/-, as premium. During the said period, he suffered from the medical problem for which he got treatment from Fortis Hospital, Mohali, from 21.11.2011 to 25.11.2011. For that treatment he had incurred total expenses of Rs.5,71,629/-. He submitted the claim form along with the medical bills to Medi Assist TPA Pvt. Limited, Mohali, as per the directions of the Insurance Company. On 6.1.2012 he received a cheque of Rs.1,50,000/-, along with the letter in which it was mentioned that the said amount was the full and final settlement of the claim. Not satisfied with that settlement, he preferred complaint under Section 12 of the Consumer Protection Act, 1986, before the District Consumer Disputes Redressal Forum, Ferozepur (in short, "District Forum") alleging therein that he never accepted that amount in full and final settlement and is entitled to the balance amount of Rs.2,50,000/-; as he was entitled to Rs.4,00,000/- under the Policy.
The non-allowing of the claim of Rs.4,00,000/- by the Insurance Company amounts to deficiency in service, as a result of which he suffered harassment, inconvenience, frustration and mental agony and for the same he is entitled to a sum of Rs.2,00,000/-, as compensation and Rs.10,000/- as counsel fee. He prayed for the issuance of the directions accordingly to the Insurance Company, besides the direction to direct them to pay the balance amount of Rs.2,50,000/-, along with interest at the rate of 18% per annum from the date of submitting of the claim till the payment of that amount. First Appeal No.868 of 2012. 3
2. The opposite parties-Insurance Company in their written reply pleaded that the complainant had been obtaining the medi-claim policies for Rs.1,50,000/- and it was in the year 2007-2008 that he obtained the policy for Rs.2,50,000/- and it was for the first time that in the year 2011-2012 he purchased that policy for Rs.4,00,000/-. Under the insurance law, the benefit of enhanced amount was available only qua other diseases, which were not existing before taking that policy. It was in view of that insurance law that his claim was allowed to the extent of Rs.1,50,000/- and no such consent was required for settling his claim to that extent. He was a known case of essential hypertension and Umbilical Hernia. The hypertension cannot develop all of a sudden and he was fully aware that he was a patient of hypertension and with mala fide and fraudulent intention he got the enhanced policy from Rs.1,50,000/- to Rs.4,00,000/-. Even as per the terms and conditions of the policy, the sum insured was permissible only qua the diseases, which were not existing before taking the policy and in case of the treatment of the diseases, which were in existence prior to the policy, the previous sum insured under the previous policy was to be paid. In these circumstances, there was no question of any harassment, mental agony or frustration to the complainant by allowing of the claim to the extent of Rs.1,50,000/- as per those terms and conditions. The complainant suppressed the true and material facts, which disentitles him to any such claim made in the complaint. Complicated questions of facts and law are involved which require lengthy procedure of law of evidence by way of examination-in-chief and cross examination and, First Appeal No.868 of 2012. 4 as such, the matter is required to be relegated to the Civil Court. They prayed for the dismissal of the complaint with costs; being false, frivolous and vexatious to the knowledge of the complainant.
3. 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 allowed the complaint and directed the opposite parties to pay the remaining amount of Rs.2,50,000/- to the complainant within a period of thirty days from the date of receipt of a copy of the order failing which the opposite parties were directed to pay interest at the rate of 7% per annum on the said amount from the date of order till the actual payment thereof. Feeling aggrieved by the order the opposite parties have preferred the present appeal.
4. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
5. It was submitted by the learned counsel for the opposite parties that the District Forum committed an illegality by not appreciating the evidence produced on the record and the terms and conditions of the insurance policy, while recording a finding in favour of the complainant. The insurance policy so obtained by the complainant contained exclusion clause 4.3 and for the treatment of the ailments, for which he made the claim, the claim was not payable for the first two years of the policy. It was in view of the previous medi-claim policies obtained by the complainant that the claim was allowed to the extent of Rs.1,50,000/- and there was no question of allowing the claim to the extent of Rs.4,00,000/-. The previous First Appeal No.868 of 2012. 5 policies had been obtained by him for insurance cover of Rs.1,50,000/- and insurance cover of Rs.4,00,000/- was obtained by him only under the last policy. The District Forum committed an illegality by not properly interpreting the terms and conditions. Therefore, the findings recorded by it are liable to be set aside.
6. On the other hand, it was submitted by the learned counsel for the complainant that the complainant had been obtaining the medi- claim policies without any break since the year 2007 and as per the terms and conditions, the exclusion clause stand excluded after the expiry of the period of four years, as has been mentioned in clause 4.1. Therefore, the opposite parties could not have taken up the plea that the claim for the treatment of the diseases mentioned in the medical evidence was not payable for the first two years. No such illegality or irregularity was committed by the District Forum while recording findings in favour of the complainant and those are to be upheld.
7. The first medi-claim policy obtained by the complainant for himself and his wife was proved on the record as Ex.C-2. This policy was for the period 1.10.2007 to 30.9.2008 and the sum insured was Rs.2,50,000/-. The second policy Ex.C-3 was obtained from 1.10.2008 to 30.9.2009 and the sum assured in respect of the complainant was Rs.1,50,000/-. The next policy Ex.C-5 for the period 1.10.2009 to 30.9.2010 was also for the same amount. It was for the first time that the policy in question, Ex.C-7, for the period 1.10.2010 to 30.9.2011 was obtained for the sum of Rs.4,00,000/-. The exclusion clause of the policy was proved on the record as First Appeal No.868 of 2012. 6 Ex.R-3. As per that exclusion clause, the Insurance Company was not liable to make any payment under the policy in respect of any expenses incurred by the insured in connection with the or in respect of the pre-existing disease or ailment. However, that part of the clause was to stand omitted after four years in case the policy remained in force continuously. The following note in that exclusion is very important for deciding the controversy:-
"If the continuity of the renewal is not maintained with the Company then subsequent cover shall be treated as fresh policy and clauses 4.1, 4.2, 4.3 shall apply unless agreed by the Company and suitable endorsement passed on the policy. Similarly if the sum insured is enhanced subsequent to the inception of the policy, the exclusions 4.1, 4.2 and 4.3 will apply afresh for the enhanced portion of the sum insured for the purpose of this section." (emphasis supplied).
8. No doubt, the complainant had been obtaining the medi-claim policies without any break since the year 2007 but the previous insurance amount of Rs.1,50,000/-, which was mentioned in the last two policies, was increased to Rs.4,00,000/- in the policy in question. Therefore, exclusion clause 4.1, 4.2 and 4.3 will apply afresh for the enhanced portion, though exclusion clause regarding the enhanced portion was not deemed to have been omitted.
9. Clause 4.3 is reproduced below:-
"4.3 The expenses on treatment of following ailment/diseases/surgeries for the specified periods are not First Appeal No.868 of 2012. 7 payable if contracted and/or manifested during the currency of the policy.
If these diseases are pre-existing at the time of proposal the exclusion no.4.1 for pre-existing condition shall be applicable in such cases.
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 hypertrophy 2 years ix. Hysterectomy for meonrrhagia or fibromyoma 2 years or myomectomy or prolapsed 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 excluding 2 years
malignancy.
xiv. Surgery of genitor-urinary system excluding 2 years
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
xx. Surgery for prolapsed inter vertebral disk 2 years
unless arising from accident.
xxi. Surgery of varicose veins and varicose ulcers. 2 years
xxii. Joint Replacement due to Degenerative 4 years
condition.
xxiii. Age related osteoarthritis and Osteoporosis. 4 Years
Thus, expenses for the treatment of hypertension were not payable for the first two years of the date of the last policy in respect of the enhanced portion.
10. Faced with that situation, it was contended by the learned counsel for the complainant that the treatment was obtained by the First Appeal No.868 of 2012. 8 complainant not for hypertension but for C.A.G., angioplasty, CPTCA and stenting to CAD and in support thereof he referred to the Medical Certificate of the Fortis Hospital, Ex.C-14. He himself proved on the record the Discharge Summary Ex.C-17, in which 'Resume of History' is also mentioned and as per that History, he was a case of 'Essential Hypertension & umbilical Hernia. As per the policy document of the Policy in dispute, the exclusion will also to apply to any complications arising from any pre-existing ailment/disease and those complications were to be considered first part of the pre-existing health condition or disease. As per the illustration given therein, a person suffering from hypertension the exclusion was to apply to artery disease also.
11. From above discussion, it is very much clear that the ailment for which the complainant obtained the treatment was pre-existing on the date he obtained the policy in question and, as such, the claim stand excluded regarding the enhanced portion. As the previous two policies had been obtained for Rs.1,50,000/-, so the opposite parties were justified in settling his claim to that extent. The District Forum, while recording the findings to the contrary, totally ignored the well established law that the terms and conditions of the insurance policy, which amounts to contract between the parties, are to be construed strictly and the same cannot be diverted from. Once it is proved that the claim was correctly settled by the opposite parties at Rs.1,50,000/-, which was duly paid to the complainant, it cannot be said that there was any deficiency in service or unfair trade practice on their part. Therefore, there was no question of allowing any First Appeal No.868 of 2012. 9 compensation to the complainant for the alleged harassment etc. suffered by him.
12. In the result, this appeal is allowed, the order passed by the District Forum is set aside and the complaint filed by the complainant is dismissed.
13. The sum of Rs.25,000/- deposited at the time of filing of the appeal along with interest which has accrued thereon, if any, shall be remitted by the registry to the appellants/opposite parties by way of a crossed cheque/demand draft after the expiry of 45 days.
14. The arguments in this case were heard on 22.5.2014 and the order was reserved. Now, the order be communicated to the parties.
15. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (VINOD KUMAR GUPTA) MEMBER (MRS. SURINDER PAL KAUR) MEMBER June 04, 2014.
Bansal