State Consumer Disputes Redressal Commission
Niac vs Om Prakash Singla on 6 February, 2014
2nd Addl. Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH
First Appeal No.968 of 2011
Date of institution : 22.06.2011
Date of Decision : 06.02.2014
New India Assurance Company Ltd. SCO No.36-37, Sector 17,
Chandigarh through its Officers.
...Appellant/OP
Versus
Om Prakash Singla s/o Sh. Mahavir Parshad, R/o Singla Traders, 100 Ft.
Road, Bathinda.
...Respondent/complainant
First Appeal against the order
dated 21.04.2011 of the District
Consumer Disputes Redressal
Forum, Bathinda.
Before:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Vinod Kumar Gupta, Member
Shri H.S.Guram, Advocate
Argued by:-
For the appellant : Sh. Vinod Gupta, Advocate
For respondent : Sh. Hitesh Pandit, Advocate
ORDER
VINOD KUMAR GUPTA, MEMBER:
This appeal has been filed by the appellant/ Opposite party (hereinafter referred as 'OP') under Section 15 of the Consumer Protection Act, 1986 (herein after referred to as 'Act') against the order dated 21.04.2011 in consumer complaint no.547 of 2010 passed by the Learned District Consumer Disputes Redressal Forum, Bathinda (hereinafter called as 'District Forum') vide which the complaint of the complainant/respondent (hereinafter referred to as 'complainant') was accepted.First Appeal No. 968 of 2011 2
2. Brief facts of the case are that the complainant filed the complaint under the Act against the OPs on the averments that he had obtained medi-claim insurance policy (hospitalization benefit policy) from the OP no.1/NIAC, Bathinda bearing policy No.360601/34/08/11/00000119 which was valid from 15.10.2008 to 14.10.2009 for himself and his wife Swaran Singla for sum assured of Rs.2 lacs after paying the premium of Rs.11018/- to OP no.1 and covered all medical expenses and hospitalization etc., if any, during this period of the insurance policy. It was pleaded that on 11.02.2009, he suffered from fever and Urine problem and consulted with local Doctor who recommend him some tests which were done from Religare SVL- Diagnostic Center, Gurgoan through Bathinda, patient service center and report of the same has been received on 14.02.2009 on 16.2.2009, the complainant consulted Doctor Anshuman V.Kapoor of Kapoor's Kidney & Uro Stone Centre Pvt. Ltd, Chandigarh with regard to the above said problem. Doctor A.V.Kapoor had thoroughly checked the complainant and conducted some pathology tests (laboratory tests) from outside as well as his hospital. After going through the said test the Doctor detected the exact problem of Stricture Urethra and advised the complainant for admission of laser operation. It was pleaded that on 17.2.2009 he admitted in the hospital of Doctor A.V.Kapoor who conducted the operation of the complainant and discharged on 18.2.2009 and advised for routine checking on 23.2.2009 and on other various dates. The complainant had spent Rs.50,000/- approximately on his treatment and the complainant intimated the OP no.1 and submitted his all original medical reports, medical bills and completed other formalities which were required for processing the claim of the complainant. It was further pleaded that the complainant approached the OP no.1 for releasing the claim amount of his medi-claim and the OP no.1 told the complainant that his claim has been settled by their counter part M/s Alankit Healthcare Ltd. i.e. OP no.3 and First Appeal No. 968 of 2011 3 they will release the claim amount. The complainant was very much surprised with the said version of the OP no.1 because the complainant had obtained the insurance policy from the OP no.1 and paid premium to him but they sent the matter to another department i.e. OP no.3/M/s Alankit Healthcare Ltd. for harassing the complainant. It was alleged that till date the OPs neither settled nor repudiated the claim of the complainant. The complainant filed the complaint seeking directions to the OPs to release Rs.50,000/- towards the medi-claim of the complainant alongwith interest @18% p.a. from 11.02.2009 to till realization to pay Rs.40,000/- on account of mental agony, physical harassment and Rs.10,000/- as litigation expenses.
3. Upon notice the OPs no.1&2 have filed their joint written reply by taking preliminary objections that complicated questions of law and facts are involved in the present case which required voluminous documents and evidence for decision which was not possible in the summary procedure under Act, therefore, the appropriate remedy, if any, lies only in the Civil Court; that the complainant has concealed the material facts and documents from this Hon'ble Forum; complainant has no locus standi or cause of action to file the present complaint. Complainant is not a consumer of the OPs and that the complaint is not maintainable. On merits it was pleaded that the policy was in its first year i.e. the same was not renewed from any earlier policy. In the said policy, the OP no.3 was TPA i.e. third party administrator to decide the claim as per the terms and conditions of the policy. It was denied that all medical expenses and hospitalization etc. were covered under the said policy. It was admitted that the complainant was suffering from Stricture Urethra which was not covered from the first two years of the policy and is covered in exclusion clause of 4.3 of the policy. It was further pleaded that the claim was rightly repudiated by the OP no.3 vide letter dated 17.6.2009. Letter dated First Appeal No. 968 of 2011 4 18.2.2010 was also sent by the OP no.1 intimating the complainant about the rejection of the claim. It was denied that the complainant had spent Rs.50,000/- approximately on his treatment rather he himself had submitted the claim amount to the tune of Rs.40,436/-. It was in the knowledge of the complainant that the claim was to be discharged by the TPA since the name of the TPA was mentioned in the policy itself. It was further pleaded that the claim of the complainant has already been repudiated by the OP no.3 vide letter dated 17.6.2009 for the reason stated therein. It was prayed for dismissal of the complaint.
4. Upon notice OP no.3 failed to appear before the Forum and was proceeded against ex-parte vide order dated 19.01.2011.
5. Parties were allowed by the District Forum to lead their evidence.
6. In support of his allegations complainant filed his affidavit Ex.C-1, and documents insurance policy as Ex.C-2, discharge slip Ex.C-3, cash receipt Ex.C-4, test report Ex.C-5 to Ex.C-7, Cash receipts Ex.C-8 to Ex.C-12, invoice cum receipt Ex.C-13, cash memo Ex.C-14 & Ex.C-15, letter Ex.C-16, Medical details as Ex.C-17 & Ex.C-18, Affidavit of Om Prakash Ex.C-19, letter Ex.C-20, Final reminder Ex.C-21, Ex.C-22 to Ex.C- 24 are the letters, Ex.C-25 certificate, Ex.C-26 letter, Ex.C-27 proposal form, Ex.C-28 insurance policy, Ex.C-29 receipt, Ex.C-30 to Ex.C-32 are the letters, Ex.C-33 claim form, Ex.C-34 details of test bills, Ex.C-35 & Ex.C-36 are the receipts, Ex.C-37 invoice cum receipt, Ex.C-38 & Ex.C-39 retail invoice, Ex.C-40 receipt, Ex.C-41 details of medical bills, Ex.C-42 receipt, Ex.C-43 letter. On the other hand, OP filed affidavit of Sh.P.K.Jain, SDM, Ex.R-2 copy of policy, Ex.R-3 terms and conditions of policy.
7. After hearing the learned counsel for the parties and have perused the record, the learned District Forum accepted the complaint vide impugned order dated 21.04.2011 and directed the OP no.1 to pay First Appeal No. 968 of 2011 5 Rs.40,436/- alongwith interest @9% p.a. from the date of filing of the complaint till realization and to pay Rs.5,000/- litigation expenses. The amount and cost will be paid by the OPs jointly or severally.
8. Aggrieved by the impugned order, the appellant has come up in the appeal only on the grounds that Scripture Urethra has been specifically mentioned in the clause as referred by the insurance policy and insurance company cannot infer the clause in their favour only. The District Forum has failed to appreciate the evidence on record and the Clause of the insurance policy to the effect that the insured was taken first time and as per the Clause 4.3 the disease Stricture Urethra was not covered under the policy during the first two years rather it comes under the exclusion clause of the policy. The views taken by the District Forum is not maintainable in the eyes of law. It was prayed that the appeal may kindly be accepted and order passed by the District Forum may be set-aside.
9. We have gone through the pleadings of the parties and perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the parties.
10. It is admitted fact that the complainant obtained medi-claim Insurance policy (hospitalization benefit policy) from the OP no.1/NIAC, Bathinda bearing policy No.360601/34/08/11/00000119 which was valid from 15.10.2008 to 14.10.2009 for himself and his wife Swaran Singla for sum assured of Rs.2 lacs after paying the premium of Rs.11018/- to OP no.1 Ex.C-2 which is also admitted fact that the complainant was admitted in Kapoor Kidney & Uro Stone Centre Pvt. Ltd. on 17.02.2009 and discharged on 18.02.2009 who diagnosed the complainant suffering from Scriptura Urethra Ex.C-3. We have perused the certificate Ex.C-25 which is reproduced as under:-
"Mr. Om Prakash Singla presented to us on 16.02.2009 in OPD with LUTS. His uroflow showed obstructive pattern. He was diagnosed as suffering from Stricture Urethra. He underwent VIU on 17.02.2009. He has no history of chronic UTI, HIV or nephrolithiasis as per out records."First Appeal No. 968 of 2011 6
11. The complainant has placed on record the proposal form Ex.C-27. The complainant submitted the claim form dated 16.03.2009 Ex.C-33, detail of the tests Ex.C-34 and detail of the medical bill Ex.C-41. The complainant has placed on record receipts/retail of invoice Ex.C-4, Ex.C-8 to Ex.C-15, Ex.C-35, Ex.C-40 and Ex.C-42. The claim of the complainant was repudiated by OP no.3 vide letter dated 17.06.2009 Ex.C-
43. The relevant portion is reproduced as under:-
st "Observation : Policy under 1 year w.e.f. 15.10.08 whereas expenses incurred during hospitalization for the disease "Stricture Urethral" are excluded during the first two years of the policy under exclusion clause 4.3 as per the policy conditions."
12. The insurance company sent a letter to the complainant that the claim of complaint comes under exclusion clause 4.3 of the policy Ex.C-20. We have perused the terms and conditions of the policy Ex.R-3.
The relevant Clause 4.3 is reproduced as under:-
"During the first year of the operation of insurance cover, the expenses on treatment of diseases such as Cataract, Benign, Prostatic Hypertrophy, Hysterectomyfor Menomhagia or Fibromyoma, Hernia, Hydrocele, Congenital, Internal disease, Fistula in arms, Piles, Sinusitis and telated disorders are not payable. If these diseases are pre existing at the time of proposal they will not be covered even during subsequent period of renewal too."
13. The OP has rejected the claim only on the basis of the exclusion clause where no words like "Stricture Urethral" are written. Moreover, the plea of the OP is that disease of the complainant is not covered from the first two years of policy is not maintainable as the policy is for one year only. The plea of the OP is wrong and not correct so the claim was wrongly repudiated by the OPs. In case "LIC Vs. Hira Lal", IV (2011) CPJ 4 (SC), it was held that when two interpretation are possible while examine a case of the present nature, one benefit to the complainant has to be valid and in "United India Insurance Company Ltd. Vs. M/s Prshpalaya Printers, 2004 (1) SC 23, wherein it has been held that:-
"Interpretation: Two interpretations possible one beneficial to insured should be accepted: Words of documents if ambiguous, shall be constructed against party who prepared it."First Appeal No. 968 of 2011 7
14. Sequel from the above discussions, we are of the opinion that the District Forum rightly come to the conclusion and the order passed by the District Forum is affirmed and upheld and no need to interference with the same. The appeal filed by the appellant is without any merit and the same is accordingly, dismissed with no order as to costs.
15. The arguments in this appeal were heard on 30.01.2014 and the order was reserved. Now the order be communicated to the parties.
16. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
17. The appellant/OP has deposited an amount of Rs.25,000/- with this Commission at the time of filing the appeal. This amount of Rs.25,000/- with interest accrued thereon, if any, be remitted by the registry to the complainant/respondent by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum.
(Gurcharan Singh Saran) Presiding Judicial Member (Vinod Kumar Gupta) Member (H.S.Guram) Member February 06, 2014 Rs