State Consumer Disputes Redressal Commission
The Oriental Insurance Co.Ltd. vs Dr. Deepak Raje on 10 October, 2011
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR (C.G.)
(A/11/2399)
Appeal No.118/2011
Instituted on : 26.02.2011
The Oriental Insurance Company Limited,
Through - Sr. Divisional Manager,
Divisional Office No.2, Sai Nagar,
Devendra Nagar Road,
Raipur (C.G.) ... Appellant
Vs.
Dr. Deepak Raje,
S/o Late Shri M.K. Raje,
R/o : C/o - Dr. Anil Verma,
Verma Nursing Home, Shanti Nagar,
Raipur (C.G.) ... Respondent.
PRESENT: -
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SMT. VEENA MISRA, MEMBER
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES:-
Shri Shishir Bhandarkar, for appellant.
Ku. Priyanka Dongre, for respondent.
ORDER (ORAL)
Dated : 10/10/2011 PER: - HON'BLE JUSTICE SHRI S. C. VYAS, PRESIDENT This appeal is directed against the order dated 27.01.2011 of District Consumer Disputes Redressal Forum, Raipur (C.G.) (hereinafter called "District Forum" for short) in Complaint Case No.265/2008, whereby the appellant/Insurance Company, has been directed to pay Rs.3,00,000/- to the respondent/complainant along // 2 // with interest @ 6% p.a. w.e.f. 06.10.2008 till date of payment and also to pay Rs.5,000/- as compensation for mental agony and Rs.1,000/- as cost of litigation on account of deficiency in service committed by the Insurance Company in not paying the claim amount of Mediclaim Policy, in respect of Angioplasty and Heart Surgery of the insured / complainant.
2. Briefly stated, facts of the case are that respondent/complainant, Dr. Deepak Raje was insured with the appellant/Insurance Company under a Mediclaim Policy for last 10 years continuously. In the year 2007-08, on his request, the sum insured under the Mediclaim Policy was increased to Rs.3,00,000/- and premium of Rs.9,664/- was accepted by the Insurance Company. In that year, the insured was required to undergo Angioplasty in respect of his cardiac ailment in the hospital situated at New Delhi and he was required to spend about Rs.5,00,000/- in the procedure of Angioplasty, admission and treatment in Max Heart & Vascular Hospital, New Delhi. He preferred a claim before the Insurance Company for payment of the amount spent by him for taking treatment in Max Heart & Vascular Hospital, New Delhi, but the Insurance Company had not accepted his claim and proposed to pay Rs.1,00,000/- only under the Mediclaim Policy. Alleging it as deficiency in service on the part of the Insurance Company, he filed consumer complaint before // 3 // the District Forum. Before the District Forum, the defence of the Insurance Company was that at the time of getting insurance cover under the Mediclaim Policy, the complainant was aware of the fact that he was a heart patient. The proposal for increasing sum insured under the Mediclaim Policy was accepted by the Head Office of the Insurance Company and it was informed that the increase would be applicable only in respect of new diseases and not in respect of the diseases, which were already existed. Thus, the complainant was not entitled of getting more amount than Rs.1,00,000/-, for which he was initially insured.
3. Learned District Forum, after having considered the material placed before it by both parties disagreed with the defence taken by the Insurance Company and allowed the complaint by the impugned order.
4. We have heard arguments advanced by counsel for the appellant in detail and perused the record of the District Forum.
5. Counsel for the appellant/Insurance Company has placed very heavy reliance upon some documents, which were filed by the Insurance Company before the District Forum. Document Annexure OP-4, is a Circular dated 08.09.2000, which is available in the record of the District Forum at Page No.74. By this Circular, the Head Office of // 4 // the appellant/Insurance Company has communicated to all ROs /CMD SECTT /MSD /VIGILANCE /REINSURANCE /RID /R&D /IAD/OSTC FARIDABAD /ACCOUNTS regarding Amendment in Mediclaim Policy (Individual and Group) - Clarification on Increase in Sum Insured. It has been stated in this Circular that "To ensure that the policyholders do not face any inconvenience the Companies may advise their operating offices as follows :-
i) The sum insured may also be increased under an existing Mediclaim Policy, upto Rs.5 lacs, at the discretion of the operating office by charging pro-rata additional premium for the balance period.
ii) In case the existing policy excludes any pre-existing disease the same will also apply to the increased sum insured.
iii) It is of course understood that if the request for increase in the sum insured under an existing policy is received after the Insured has became aware of the development of a medical condition in this policy period which may result in a claim, in which event the increase granted in the sum insured will not be available for this particular medical condition".
6. On the basis of aforesaid Circular, counsel for the appellant/Insurance Company submitted that as per instructions received by G.I.C. policy decision was taken by The Oriental Insurance Company Limited for not paying the increased sum insured in case of pre-existing diseases and therefore, in the facts of the present // 5 // case also, only original sum insured was payable to the respondent/complainant and not the increased sum insured.
7. We have very anxiously gone through this Circular and all other documents filed by the appellant/O.P./Insurance Company before the District Forum including policy document and affidavit of Shri Ajay Chakrawarti, Sr. Divisional Manager of the Insurance Company. We find that though this Circular was issued in the year 2000, but no term in this regard was included in the policy document (Annexure O.P.2), which was issued on 20.03.2007. This document simply says that the sum insured for Mr. Deepak Raje was Rs.3,00,000/-. The terms and conditions which were attached along with policy schedule nowhere says that this sum insured will not be available regarding the disease which developed after taking first Mediclaim cover by the complainant and regarding which claim was paid by the Insurance Company or which can be termed as pre- existing disease at the time of taking this cover. The Exclusion Clause 4.1 of the policy simply says that "All diseases/injuries which are pre- existing when the cover incepts for the first time. For the purpose of applying this condition, the date of inception of the initial Mediclaim policy taken from any of the Indian insurance companies shall be taken, provided the renewals have been continuous and without any break".
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8. Thus, from this Exclusion Clause, it is clear that only those diseases were excluded, which were pre-existing at the time of taking first Mediclaim cover from any of the Indian insurance companies. In the facts of the present case, the respondent/complainant was taking insurance cover from the appellant/Insurance Company under Mediclaim policy for last 10 years and when first Mediclaim cover was provided by the appellant/Insurance Company to the complainant, at that time the diseases regarding heart were not pre-existing. It is nobody‟s case that such diseases were pre-existing and therefore, under Exclusion Clause 4.1, which has been printed in the terms and conditions of the policy, claim in respect of heart ailments cannot be said as one which can be excluded under this condition or for which the Insurance Company can deny its liability.
9. The contract of insurance is a contract like any other contract and the terms and conditions of the insurance policy are binding upon both parties. Nobody can add or subtract any condition in the policy document after finalization of the contract of insurance, unless there is binding effect of any law or unless both parties give consent regarding exclusion or inclusion of any condition or at least when a policy decision has been taken by the appellant/Insurance Company, then due information is given to the insured so that he can decide whether // 7 // he/she wants to continue the insurance policy or not, or for which amount for which proposal was made or not.
10. In the facts of the present case, neither any condition has been included in the policy document nor any written communication was made by the appellant/Insurance Company with the insured to tell him that if any particular medical condition has been developed in this policy period, which may result in claim, then in the event of increase granted in the sum insured, will not be available for that particular medical condition. Even this was not orally informed to the insured by anyone of the Insurance Company. Affidavit of Shri Ajay Chakrawarti, Sr. Divisional Manager, has been filed by the Insurance Company before the District Forum. In paragraph No.3 of his affidavit, he simply referred document Annexure O.P.-4, but in the whole of the affidavit, it has not been stated by him that Circular dated 08.09.2000 was brought to the knowledge of the complainant/insured either by him or by any of his companions. In paragraph No.4 of his affidavit, it has been stated that in the present case complainant was aware of existence of CAD at the time of every renewal of policies as he was suffering from the said disease from 1998-99 and the complainant was therefore not entitled for any amount more than Rs.1,00,000/-, the original sum insured. The whole affidavit of Shri Ajay Chakrawarti shows that the appellant/Insurance Company has never bothered to // 8 // inform the complainant orally or by writing or by anyone regarding any condition in the policy document to exclude the existing medical condition from the increased sum insured and therefore, it is not possible for us to agree with the arguments advanced by the counsel for the appellant/Insurance Company that in the facts of the present case, Circular dated 08.09.2000 issued by the Head Office of The Oriental Insurance Company Limited to the Branch Offices, will be having a binding force upon the complainant also, who is not a party in it, to whom anything regarding this Circular was never informed.
11. Counsel for the appellant/Insurance Company has shown us new proforma of " Happy Family Floater Policy" adopted by same Insurance Company, in respect of providing cover for medical reimbursement. In this proforma, now Exclusion Clause 4.3 is there, wherein it has been stated that "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."
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12. The aforesaid Exclusion clause 4.3 is now available in the new policy namely "Happy Family Floater Policy" adopted by the Insurance Company, but such clause was not available in the policy document issued by the Insurance Company to the complainant/respondent and therefore, no benefit of this Clause can be given to the Insurance Company, which has been added in the new proforma of Happy Family Floater Policy.
13. Counsel for the appellant/Insurance Company also placed reliance upon a decided case of Hon‟ble National Commission Unit Trust of India & Anr. Vs. Swarn Latha Jain, reported as IV (2010) CPJ 172 (NC), but in that case, the Senior Citizens Unit Plan (hereinafter called as "SCUP" for short) Scheme was notified by Gazette of India dated 28.8.1993 and then it is clearly stated in Clause 5 that the amount of medical cover under this scheme shall be limited to a maximum of Rs.1,50,000/- per illness. Form „A‟ which was UTIs SCUP Membership certificate and part of the Gazette Notification also specifically stated that there will be a maximum limit of Rs.1,50,000/- per illness per spouse and in view of this it was found that the insured was fully aware that maximum cover of Rs.1,50,000/- per spouse per illness is available under the Scheme as well as Gazette Notification as well as Form „A‟. Thus, the cited matter is distinguishable on facts.
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14. In view of aforesaid discussion, we do not find any substance in this appeal, the same is hereby dismissed. No order as to the cost of this appeal.
(Justice S.C. Vyas) (Smt. Veena Misra) (V.K. Patil)
President Member Member
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