State Consumer Disputes Redressal Commission
M/S Icici Prudental Lic vs Kanchan Singla on 17 September, 2015
2nd Additional Bench
PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 02 of 2015
Date of institution: 02.01.2015
Date of decision : 17.09.2015
1. M/s ICICI Prudential Life Insurance Company Ltd., the Mall,
Opp. Dr. Mohan Lal, Bathinda, through its Branch/Divisional
Manager.
2. M/s ICICI Prudential Life Insurance Company Ltd., SCO No.
70, Ist and 2nd Floor, Phase-9, Mohali, through its Branch
Manager.
.....Appellants/opposite parties
Versus
Kanchan Singla W/o Sh. Jawahar Lal Singla, resident of House No.
877-A, Shakti Nagar, Bathinda (Punjab).
.....Respondent/complainant
First Appeal against the order dated
16.09.2014 passed by the District
Consumer Disputes Redressal Forum,
Bathinda.
Before:-
Sh. Gurcharan Singh Saran, Presiding Judicial Member
Sh. Jasbir Singh Gill, Member Mrs. Surinder Pal Kaur, Member Present:-
For the appellant : Sh. K.S. Cheema, Advocate For the respondent : Sh. Pankaj Katia, Advocate GURCHARAN SINGH SARAN (PRESIDING JUDICIAL MEMBER) Order This appeal has been preferred by appellants/OPs (hereinafter referred as 'OPs') under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act') against the order dated 16.09.2014 in C.C. No. 226 of 04.04.2014 passed by the learned District Consumer Disputes Redressal Forum, Bathinda (in First Appeal No. 02 of 2015 2 short the 'District Forum') vide which the complaint filed by the complainant/respondent (hereinafter referred as 'complainant') was allowed with the directions to OPs to pay to the complainant a claim of Rs. 1,59,734/-, also to pay Rs. 15,000/- as compensation and cost. The amount to be paid within 45 days from the date of receipt of copy of the order failing which it will accrued interest @ 9% per annum till realization.
2. A consumer complaint was filed by complainant against OPs on the averments that the husband of the complainant and complainant had purchased one insurance policy No. 11168101 from OPs on 19.02.2009 having coverage of Rs. 3 lac after paying annual premium of Rs. 7265/-. The policy cover was 10 year and date of cessation was 19.02.2019. However, in the year 2014, OPs approached the complainant with new insurance policy product i.e. ICICI PRU HEALTH SAVER UIN 105L087V01 and told that the previous policy was just for 10 years and new policy cover was up to the age of 75 years of the age i.e. up to next 22 years and that it was continuous policy of previous policy. On assurance of OPs, the complainant discontinued the previous policy and purchased the said new policy No 17505601 w.e.f 20.03.2013 on paying premium of Rs. 22000/- for sum assured of Rs. 3 lac. In the month of November 2013, the complainant had suffered pain in the left knee and she immediately approached Max Hospital, Bathinda where the doctor suggested that there was Osteoarthritis in the left knee and same was required to be replaced. She was admitted in the said hospital on 13.12.2013 for transplantation and in the history it was mentioned First Appeal No. 02 of 2015 3 that the patient was having pain in both the knees for the last 4-5 years. There was no previous history or admission in any hospital for the treatment of knees. After treatment she was discharged from the hospital on 10.12.2013. The claim was lodged with OPs on 17.12.2013 alongwith complete medical record for a sum of Rs. 1,59,733.56 ps. However, to the utter surprise of the complainant, OPs vide their letter dated 25.01.2014 rejected the lawful claim of the complainant with the remarks that the claim was not payable which amounted to deficiency in services on the part of OPs. Hence, the complaint with the directions to OPs to pay the claim of Rs. 1,59,733.56 ps alongwith interest @ 18% p.a. and pay damages to the extent of Rs. 1 lac and litigation expenses of Rs. 50,000/-.
3. The complaint was contested by OPs who filed written reply taking preliminary objections that the complainant had no locus standi to file this complaint. The complainant under the policy is only the life assured and not the owner and prosper under the policy, therefore, she was not eligible for the claim under the Act. The prosper was her husband Mr. Jawahar Lal Singla. No claim was admissible to the complainant as after evaluation of the claim by OPs, it was found that his claim was not payable under the clause 8.5 and 8.8.19 of the terms and conditions of the policy as the treatment was taken in the first two years of the inspection of the policy and that she was having knee problem for the last 5-6 years. The complainant had suppressed the material facts with regard to her disease at the time of taking the policy. There was no deficiency in services on the part of OPs and that the complaint was filed with First Appeal No. 02 of 2015 4 malafide intention and that it was false, frivolous and vexatious to the knowledge of the complainant, therefore, liable to be dismissed under section 26 of the Act. On merits, it was submitted that on receipt of the proposal form from the complainant's husband and prosper, policy No. 17505601 was issued under which life assured was Kanchan Singla and prosper was Sh. Jawahar Lal Singla and sum assured was Rs. 3 lac. The risk commencement date was 20.03.2015. The premium amount was Rs. 22,000/- annual and policy was dispatched on 29.03.2013 through Blue Dart, Airway Bill No. 43516787775 and it was received by Sh. Jawahar Lal Singla on 01.04.2013. The declaration was signed by husband of the complainant who was the sourcing agent under the policy. The policy was not got cancelled within free look period as per the IRDA instructions. On receipt of the claim from the complainant, it was processed and it was found that it fell under exclusion clause 8.5 and 8.8.19. Other averments as stated in the complaint were denied. It was submitted that there was no merit in the appeal and it be dismissed.
4. Parties adduced evidence in support of their contentions. Complainant tendered into evidence her affidavit Ex.C-1, Ex. C-2 photocopy of policy certificate containing page 1 to 2, Ex. C-3 photocopy of policy detail containing pages 1 to 9, Ex. C-4 to Ex. C-6 photocopy of letters and closed the evidence. On the other hand, OPs tendered into evidence Ex. OP-1/1 affidavit of Gurjeet Singh dated 21.07.2014, Ex. OP-1/2 photocopy of application form, Ex. OP-1/3 photocopy of Generate LA. Output, Ex. OP-1/4 photocopy of First Appeal No. 02 of 2015 5 Claimant Statement Form, Ex. OP-1/5 photocopy of policy document, Ex. OP-1/6 photocopy of discharge summary, Ex. OP-1/7 & Ex. OP-1/8 photocopy of letter and closed the evidence.
5. 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 has allowed the complaint in terms stated above.
6. Aggrieved with the order, OPs/appellants has filed this appeal.
7. We have heard the learned counsel for the parties and have perused the record
8. In the appeal, it has been argued by the counsel for the appellant that the District Forum has not properly appreciated the pleadings, evidence and terms and conditions of the policy and has allowed the claim merely on the basis of surmises and conjectures. As per the facts of the case, the complainant had taken the insurance policy No. 11168101 from OPs on 19.02.2009 and had paid premium upto Rs. 19.02.2013 and its coverage was Rs. 3 lac and annual premium of Rs. 7265/-. It was CRISIS COVER policy. Later on the complainant opted for other policy Plan i.e. ICICI PRU HEALTH SAVER UIN 105L087V01. On the basis of the proposal form filled in by the complainant/prosper, the policy number 17505601 was issued on the basis of application No. HS 45467199 and its sourcing agent was husband of the complainant. The sum assured was Rs. 3 lac and risk commencement date was 20.03.2013. The annual premium was Rs. 22,000/- which was dispatched on 29.03.2013 through Blue Dart, Airway Bill No. First Appeal No. 02 of 2015 6 43516787775 and it was received by Sh. Jawahar Lal Singla, the husband of the complainant/prosper on 01.04.2013. Being sourcing agent, the complainant/her husband very well knew the nature of the policy. As per IRDA regulations 2002, the complainant had 15 days time to check whether they are satisfied with the terms and conditions of the policy and in case, it was not so, they could get it cancelled within free look period i.e. 15 days from the date of receiving the policy but no such option was exercised by the husband/prosper or insured, therefore, parties were bound to the terms and conditions of the policy.
9. However, the contention of the counsel for the respondent/complainant is that it was assured to the complainant by the officials of OPs that it is in continuation of the earlier policy which fact has been denied by OPs. The pleadings of the complainant revealed that it was a new policy and previous policy was discontinued. In Para No. 4 of the complaint, it has been stated that on the assurance of OPs, the complainant discontinued the previous policy and purchased the new policy No. 17505601 w.e.f. 20.03.2013 on payment of premium of Rs. 22,000/-, therefore, this paragraph itself shows that it was new policy and previous policy was discontinued. The proposal form in the said policy is Ex. OP1/2 duly signed by the complainant and Jawahar Lal Singla on 18.02.2013, In the proposal form, there was no reference that it is in continuation of the earlier policy No. 11168101. The policy certificate is Ex. C-3. The nature of the plan is ICICI PRU HEALTH SAVER UIN 105L087V01 whereas the previous policy was CRISIS First Appeal No. 02 of 2015 7 COVER policy. The date of commencement and cessation of both the policies is different. There is no reference in the policy certificate Ex. C-3 that it is in the continuation of previous policy. In case, it would have been a continuation/renewal policy, then the nature of the policy would have been the same. The new policy is under the new plan, therefore, in no circumstances, it can be said that it was in continuation/renewal policy of the earlier policy CRISES COVER. Counsel for the appellant/complainant was unable to connect any document on the basis of which he can say that it was a continuous/renewal policy. Once the documents are in writing then oral assurance will not be accepted. Whereas, the learned District Forum in its order has observed that previous policy was upto 19.02.2013 and the fresh policy was taken on 18.02.2013, therefore, it might have been conveyed to the complainant that it was a continuous policy and accordingly, the District Forum treated it as continuous policy. These observations are based upon the surmises and conjectures and not on the documentary evidence as previous policy had lapsed. Its cessation date was 19.02.2013 and after taking new policy plan, the premium was not paid and policy had lapsed. Therefore, we do not agree with the findings so recorded by the District Forum that new policy was in continuation of the previous policy. It is held that it was a new policy and that the parties will be governed according to the terms and conditions of the new policy.
10. As per the case of the complainant, she was admitted in Max Hospital, Bathinda on 03.12.2013 for knee replacement and was discharged on 10.12.2013. She submitted the bill of Rs. 1,69,733.56 First Appeal No. 02 of 2015 8 which was submitted to OPs and OPs vide their letter dated 25.01.2014 Ex. C-5 rejected the same on the ground that the claim is not payable and falls under exclusion clause 8.5 and 8.8.19. These clauses are reproduced as under:-
8. Clause Exclusions for Hospitalization Insurance Benefit:
The complainant shall not be liable to make any payments under this policy in respect of any expenses whatsoever incurred by any Insured Person (s) in connection with or in respect of any of the following:
5. Pre-existing condition unless stated in the proposal form and specifically accepted by the company and endorsed thereon. "Pre- existing condition" means a condition for which prior to the policy commencement date of policy revival date, the Insured Person (s) had signs or symptoms of an disease of Injury which would have cause any ordinarily prudent person to seek treatment, diagnosis or care, or medical advice, or treatment was recommended by or received from a Medical Practitioner or the insured person (s) has undergone medical tests or investigations. Any investigation or treatment for any disease, disorder, complication or ailment arising our of or connected with the pre-Existing Disease shall be considered part of the Pre-existing condition.First Appeal No. 02 of 2015 9
8. Any expenses incurred during the first 2 years from policy commencement Date of revival date is after 60 days from the date first unpaid premium shall not be payable for the following diseases or surgeries and any complications arising out of them.
19. Osteoarthrosis leading to Total Knee Replacement of Total Hip Replacement (claim for up to one knee or one hip treatment will be covered in a policy year.)
11. Clause No. 8.5 deals with pre-existing disease. Certainly in the proposal form, the life assured had not given any detail about the pre-existing disease. However, when the treatment was taken by the complainant, discharge summary given by the hospital Ex. OP-
1/6 referred as under:-
Diagnosis OSTEOARTHRITIS LEFT KNEE Brief History/ HOP C/O PAIN BOTH KNEES DIFFICULTY IN WALKING HISTORY DATES BACK TO 5-6 YEARS BACK WHEN PT STARTED HAVING PAIN IN BOTH KNEES INSIDIOUS IN ONSET MORE ON LEFT SIDE PROGESSIVELY INCREASED A/W DIFFICULTY IN WALKING INCREASED ON WALKING DECREASED ON REST AND TAKING PAIN KILLERS NO H/O TRAUMA NOW FROM LAST 6 MONTHS PT HAG MARKED DIFFICULTY IN DOING ACTIVITIES OF DAILY LIVING NOW PT HAS COME TO MAX HOSPITAL FOR FURTHER MANAGEMENT ON EXAMINATION First Appeal No. 02 of 2015 10 LEFT LOWR LIMB NO EXTERNAL WOULD PRESENT FFD OF 5 DEGREES VARUS DEFORMITY OF 5 DEGREES ROM AT KNEES -5-90 DEGREES PATELLOFEMORAL CREPITUS PRESENT DP/PT PALPABLE NNO NEUROLOGICAL DEFICIT X-RAY-GRADE IV ADVANCED OSTEOARTHRITIS BOTH KNEES. Therefore, it is clear from this discharge summary that she was having this problem for the last 5-6 years. However, counsel for the respondent/complainant has stated that she was not having any such problem and as per this discharge summary she started pain for the last about six months, and she was admitted in the hospital after the expiry of more than eight months from taking the policy. Therefore, in case, at that time she was feeling any problem, she would have taken any treatment from the hospital, but OPs have not been able to place on record any document that she had taken any treatment from any hospital before taking this policy and no claim was lodged with OPs under the previous policy with OPs. Therefore, in view of this evidence on the record, the claim of the complainant cannot be rejected under clause 8.5
12. Now come to clause 8.8.19. According to this clause, any expenses incurred during the first two years from the policy commencement date is not payable and clause 19 includes osteoarthrosis total knee or total hip replacement. Therefore, it is clear from this clause that the treatment is covered but expenses for total replacement of knee for the first two years is not payable. In patient bill summary placed on record reveals that charges for total First Appeal No. 02 of 2015 11 knee replacement is Rs. 1,53,000/- and other blood bank charges, consultation and medical consumption etc relating to the knee, therefore, the complainant had not taken the treatment but had gone for total knee replacement which was not covered under this policy for the first two years of the policy. Counsel for the respondent/complainant was unable to controvert this clause of the policy. It is settled law that the Forum cannot go beyond the terms and conditions of the policy and parties are to be governed under the terms and conditions of the contract/policy. Therefore, claim was rightly repudiated by OPs but it was wrongly allowed by the District Forum on the plea that it was continuous policy of the previous policy taken by the complainant in the year 2009. In view of our above findings, it is new policy and not a continuous policy, then under the terms and conditions referred above, the claim is not payable. The findings so record by the District Forum are not correct findings and are liable to be set-aside.
13. In view of the above discussion, we accept the appeal and the impugned order is set-aside. Consequently, the complaint filed by the complainant is dismissed.
14. The appellant had deposited amounts of Rs. 25,000/- and Rs.
1,30,000/- with this Commission. These amounts alongwith interest accrued thereon, if any, be remitted by the registry to appellant No.2/OP No. 2 by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court. First Appeal No. 02 of 2015 12
15. The arguments in this appeal were heard on 10.09.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
16. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (JASBIR SINGH GILL) MEMBER (MRS. SURINDER PAL KAUR) MEMBER September 17, 2015.
Rupinder