State Consumer Disputes Redressal Commission
Oriental Insurance Co. Ltd. vs Sukhdev Singh on 17 April, 2015
2nd Additional Bench
PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 831 of 2014
Date of institution: 27.06.2014
Date of decision : 17.4.2015
The Oriental Insurance Company Ltd., D.O. 4501, Bank Bazar, Bathinda
through Manager, OIC Ltd., Surendra Building, SCO 109-111, Sector 17-D,
Chandigarh-110017
.....Appellant/OP No. 1
Versus
Sukhdev Singh, S/o Jetha Singh, R/o village Karian Pehlwan, Tehsil and
District Ferozepur
.....Respondent/complainant
First Appeal against the order dated 06.05.2014
passed by the District Consumer Disputes
Redressal Forum, Ferozepur.
Before:-
Sh. Gurcharan Singh Saran, Presiding Judicial Member
Mrs. Surinder Pal Kaur, Member Present:-
For the appellant : Mrs. Swatantar Kapoor, Advocate For the respondent : Sh. Sukhdev Singh, in person GURCHARAN SINGH SARAN (PRESIDING JUDICIAL MEMBER) This appeal has been preferred by appellant/OP No. 1 (hereinafter referred as 'OP') under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act') against the order dated 06.05.2014 in C.C. No. 486 of 11.10.2013 passed by the learned District Consumer Disputes Redressal Forum, Ferozepur (in short the 'District Forum') vide which the complaint filed by the respondent/complainant (hereinafter referred as 'complainant') was allowed with the directions to OPs No. 1 to 4 to pay a sum of Rs. 1,99,954/- alongwith interest @ 9% per annum from the date of filing the complaint i.e. 11.10.2013 till realization First Appeal No.831of 2014 2 and also pay compensation of Rs. 5000/- and Rs. 2000/- as litigation expenses.
2. The consumer complaint was filed by the complaint against the OP on the allegations that he had taken the health/Medical claim policy from OP No. 1 for Hospitalization and Domiciliary Hospitalization (Cashless Policy) on 22.05.2012 and its expiry date was 21.05.2013 bearing No. 233200/48/2013/644 and sum assured was Rs. 3 lac on payment of premium of Rs. 4620/- through bank draft from his account for the continuity of the earlier policy and the payment was received by the insurance company on 27.06.2013 but the policy was issued after the gap of one month on 26.07.2013 valid upto 25.07.2014 bearing No. 233200/48/2014/1099. After some days, he had some health problem. Then he alongwith his son Gagandeep Nagpal had gone to Fortis Hospital, Mohali and met to Dr. Deepak Puri, Director of Cardiologist. After taking the test of ECG and ECO, doctor admitted him for angiography test which was conducted by Dr. T.S. Mahant and Dr. K.S. Aggarwal. After that doctor advised him to go for immediate heart surgery which was conducted on 02.08.2013 and he remained admitted upto 09.08.2013 and total bill ofRs. 1,96,634/- for the heart surgery, angiography, medicine charges, meal, bed charges was deposited by him in the hospital. He also purchased medicines worth Rs. 1154/-, Rs. 753/- Rs. 631/- on 09.08.2013 and Rs. 800/- as consultation fee and diesel charges Rs. 7000/- On 18.09.2013, he again visited Fortis Hospital, Mohali for check up, and deposited Rs. 390/- and Rs. 750/- for tests and purchased medicines worth Rs. 1345/- on 19.09.2013 and Rs. 477/- on 01.09.2013. He again met the doctor who advised him to take the medicine regularly for a period of six months for which he spent Rs. 6000/-. Therefore, he spent a sum of Rs. 2,16,050/- which included doctor fees and First Appeal No.831of 2014 3 other charges. A request was made to the OP to pay the expenses but without any result. Then he sent a registered notice to the OP and requested to pay the medical expenses and other charges, but no reply was received, which amounts to deficiency in services on the part of the OP. It was further mentioned that his claim falls within the terms and conditions of the policy issued by OP and is not violative of any of the terms and conditions, therefore, OP are legally bound to pay this amount. Since no amount was paid, hence the complaint with the directions to the OP to pay the claim of Rs. 2,16,050/- as hospital charges, to pay Rs. 22,000/- as counsel fee, Rs. 5000/- as litigation expenses and Rs. 25,000/- for mental tension, pain and financial loss.
3. The complaint was contested by OP No. 1 whereas OPs No. 2 to 5 were proceeded ex-parte. OP No. 1 had taken the preliminary objections in its written reply that the complaint was not maintainable in the present form and liable to be dismissed. There was neither any deficiency in service nor any unfair trade practice on the part of the OP, the complainant had not come to the Forum with clean hands and had concealed the material and relevant facts from the Forum. No doubt that the complainant had purchased the Medical claim Policy for the period from 22.05.2012 to 21.05.2013 but he failed to remit within permissible time and obtained the same after a gap of two months for the period from 26.07.2013 to 25.07.2014 and that the expenses incurred by the complainant fall within the exclusion clause 4.2. On perusal of the claim documents, it was found that the complainant was admitted at Fortis Hospital for the treatment of CAD, TVD with Hypertension and charges for the treatment were not payable for two years. It is a known medical fact that hypertension is a leading cause of heart ailment, therefore, the claim was rightly repudiated by the OP. As per the First Appeal No.831of 2014 4 terms and conditions of the policy, all the claims were to be settled by TPA, Medi Assist India Pvt. Ltd. and that the TPA had repudiated the claim on the basis of exclusion clause 4.1 and 4.2. On merits, the plea taken in the preliminary objections were reiterated. It was further denied for want of knowledge that the complainant was President of District Bar Association, Ferozepur. It was denied that he spent Rs. 1,96,634/- for the heart surgery which included angiography, medical charges, bed charges etc and at the end the claim was submitted by him. It was submitted that the complaint is without merit and the same be dismissed.
4. Parties adduced evidence in support of their contentions. Complainant tendered into evidence his affidavit Ex. C-1, Ex. C-2 copy of claim application, Ex. C-3 original notice, Ex. C-4 copies of postal receipts, Ex. C- 5 copy of insurance policy, Ex. C-6 copy of discharge summary, Ex. C-7 copy of Fortis Hospital Bill, Ex. C-8 to Ex. C-10 copies of medicine bills, Ex. C-11 copy of diesel bill, Ex. C-12 copy of insurance policy, Ex. C-13 copy of CT scan, Ex. C-14 to Ex. C-19 copy of test reports, Ex. C-20 copy of medical history record of DMC (10 leaves) Ex. C-21 copy of medicine bill, Ex. C-22 copy of cardiac chambers test report and closed the evidence.
5. On the other hand, the OP No. 1 tendered into evidence affidavit of Sh. S.K. Sharma, Divisional Manager, Ex. OP1/1, Ex. OP-1/2 and Ex. OP- 1/3 copies of letter, Ex. OP-1/4 copy of terms and conditions (page 1 to 5) and closed the evidence.
6. After going through the allegations as alleged in the complaint, written reply filed by OP No. 1, evidence and documents on the record, the learned District Forum accepted the complaint in terms as stated above.
7. The present appeal has been filed by OP No. 1.
First Appeal No.831of 2014 5
8. We have heard the arguments of the learned counsel for the OP and complainant in person and have perused the record and written arguments filed by the complainant.
9. It was contended by the counsel for the OP that the impugned order passed by the District Forum is beyond the pleadings. It was never pleaded by the complainant that the exclusions clause and other conditions are bad in law or that he was not aware of the terms and conditions of the policy. It was wrongly observed by the learned District Forum that the terms and conditions of the policy were intended to restrict and extinguish the right of the complainant, therefore, liable to be quashed. Learned District Forum while interpreting the exclusion clause has relied upon the provisions of Section 28 (b) of the Contract Act and has referred the judgment passed by the Hon'ble Supreme Court of India reported as "A.V.M. Sales Corporation Versus M/s Anuradha Chemicals Private Limited" 2012 (1) Civil Court Cases 643 (S.C). We have gone through the judgment referred above which was passed by the Hon'ble Supreme Court while interpreting Sections 23 and 28 of the Contract Act, on the point whether the contract between the parties is against the statute. The Hon'ble High Court and Hon'ble Supreme Court are vested with inherent powers to check the validity of the contract. Here while dealing with the consumer complaints under the CP Act, it is to be seen whether there was any deficiency in service on the part of the OP or they had indulged in any unfair trade practice. We are not vested the powers to examine the validity of the contract rather parties here are governed by the terms and conditions of the contract between the parties. Therefore, the learned District Forum was not correct to say that clause No. 4.2 of the policy in question is against the statute and cannot be attracted in the present case. It has been observed by Hon'ble National Commission in the First Appeal No.831of 2014 6 judgment reported as "National Insurance Co. Ltd. Vs. Arun Kumar Goyal" [1(2011) CPJ 266, wherein it was held that the parties to the contract of insurance are bound by the terms and conditions of the policy and in case, the claim filed by the complainant fell within the exclusion clause, the insurance company was not liable to make the payment and that the Foras below erred in taking a view to the contrary.
10. To see whether the case of the OP falls within exclusion clasue, these are reproduced as under:-
4. EXCLUSIONS:
The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any Insured Person in connection with or in respect of: 4.1 Pre-existing health condition or disease or ailment/injuries: Any ailment/disease/injuries/health condition which are pre-existing (treated/untreated, declared/not declared in the proposal form) when the cover incepts for the first time are excluded upto 4 years of this policy being in force continuously.
For the purpose of applying this condition, the date of inception of this Mediclaim policy taken from Oriental Insurance Company shall be considered, provided the renewals have been continuous and without any break in period.
This exclusion will also apply to any complications arising from pre existing ailments/disease/injuries. Such complications will be considered as a part of the pre existing health condition or disease. To illustrate if a person is suffering from hypertension or diabetes or both hypertension and diabetes at the time of taking the policy, then policy shall be subject to following exclusions First Appeal No.831of 2014 7 Diabetes Hypertension Diabetes & Hypertension Diabetic Retinopathy Cerebro Vascular accident Diabetic Retinopathy Diabetic Nephropaty Hypertensive Nephropathy Diabetic Nephropathy Diabetic Foot wound Internal Bleed/Haemorrhages Diabetic foot Diabetic Angiography Coronary Artery Disease Diabetic Angiography Diabetic Neuropathy Diabetic Neuropathy Hyper/Hypoglycaemic Hyper/Hypoglycaemic shocks shocks Coronary Artery Disease Cerebro Vascular accident Hypertension Nephropathy Internal Bleeds/Haemorrhages 4.2 Any disease other than those stated in clause 4.3, contracted by the insured person during the first 30 days from the commencement date of the policy except treatment for accidental external injuries. 4.3 During the period of insurance cover, the expenses on treatment of following ailment/diseases/surgeries for specified periods are not payable if contracted and/or manifested during the currency on the policy.
i Benign ENT disorders and surgeries i.e. Tonsillectomy
Adeniodectomy, Mastoidectomy, Tympanoplasty etc 1 year
ii Polycystic ovarian disease 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
First Appeal No.831of 2014 8
viii Surgery of benign prostatic hypertrophy 2 years
ix Hysterectomy for menorrhagia or fibromyoma or 2 years
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 malignancy 2 years
xiv Surgery of genito urinary system excluding malignancy 2 years
xv Pilonidal Sinus 2 years
xvi Gout and Rheumatism 2 years
xvii Hypertension 2 years
xviii Diabetes 2 years
xix Calculus disease 2 years
xx Surgery for prolapsed inter vertebral disk unless 2 years
arising from accident
xxi Surgery of varicose veins and varicose ulcers 2 years
xxii Congenital internal diseases 2 years
xxiii Joint Replacement due to Degenerative condition 4 years
xxiv Age related osteoarthritis and Osteoporosis 4 years
If the continuity of the renewal is not maintained with Oriental Insurance Company then subsequent cover will be treated as fresh policy and clauses 4.1, 4.2, 4.3 will apply unless agreed by the Company and suitable endorsement passed on the policy.
11. However, a plea has been taken by the respondent/complainant that the terms and conditions of the policy were never communicated to him. In the written arguments, he has referred the judgment reported as "Oriental Insurance Vs. Vivek Rekhan" 2014 (3) CLT page 202 that unless the terms First Appeal No.831of 2014 9 and conditions have not been supplied to the complainant before taking the policy, the same cannot be enforced. However, in case, we go through the complaint, it has been alleged that his claim falls within the terms and conditions of the policy issued by Oriental Insurance Company and is not violative any conditions of the policy which shows that the complainant had received the terms and conditions of the policy and had gone through it that is why he has made a reference in the complaint that his claim is not violative of the terms and conditions of the policy. Therefore, in case, the complainant was aware of the terms and conditions of the policy, then now in the appeal no such plea can be taken by the complainant that the terms and conditions of the policy were not supplied to him.
12. It has been contended by the counsel for the appellant that the complainant was known case of hypertension, therefore, his claim is hit by exclusion clause 4.2 referred above. The repudiation letter issued by the insurance company is OP-1/3 issued by Medi Assist wherein it has been observed as under:-
"On perusal of claim documents it is found that claimant covered under the above mentioned policy was admitted at Fortis Hospital for the treatment of CAD, TVD with Hypertension on 01.08.2013 & Discharged on 09.08.2013. As per the policy Terms & Conditions, during the period of insurance cover, the expenses on treatment of ailment/diseases/surgeries for Hypertension disease for specified periods of 2 years are not payable if contracted and/or manifested during the currency of the policy. It is known Medical fact that Hypertension is a leading cause of Heart Ailments. Hence, we regret our inability to admit this liability First Appeal No.831of 2014 10 under present policy conditions and the claim is being repudiated under Exclusion 4.2 of above mentioned policy."
13. The plea of the complainant is that he was not having any disease of hypertension. However, counsel for the appellant has placed on record the copy of the order passed by the District Forum, Ferozepur in C.C. No. 467 of 30.09.2013 decided on 06.05.2014 against National Insurance Company. It was also a medical claim policy for the period from 11.05.2012 to 10.05.2013 for hospitalization and domiciliary hospitalization (cashless policy). It was alleged in the said complaint that after tests and reports of ECG, ECO and TMT, he was admitted in Sebia Medical Hospital, Ludhiana on 23.05.2012 for whole day for treatment and he spent Rs. 3750/- as hospital charges, test charges, doctor fees, then the complainant remained under treatment of doctor for the period from 23.05.2012 to 09.05.2013 and spent Rs. 2 lac on his treatment including doctor fee and laboratory tests which was not paid by the OPs upon which the consumer complaint was filed, which was allowed by the District Forum to the extent of Rs. 43,680/-. Then there is a test report of DMC hospital, Ludhiana and after the test the impression was taken that it was having Celiac disease. No report is there showing the disease of hypertension to this complainant, whereas in the present case, the complainant had taken the treatment for Coronary Artery Bypass Graft x 3, RSVG-LAD, RSVG-PDA, RSVG-OM1. It has been mentioned that the patient was known case of hypertension and that in case of hypertension, the charges are not admissible for 2 years as per clause 4.2 of the policy. The claim has been repudiated by the OP that the complainant was known case of hypertension but primarily the complainant has not taken the treatment for the hypertension for which there is a cap of two years. In fact he has taken the treatment for the heart disease for which there is no First Appeal No.831of 2014 11 cap. Hypertension may be one of the reasons but there are several other factors which cause the heart disease. No positive evidence has been brought on record by the OP that hypertension was the only reason for the heart disease. Therefore, strictly exclusion clause 4.2 is not applicable, therefore, the claim was wrongly repudiated by the ops and the complaint was rightly allowed by the District Forum.
14. In view of the above discussion, we are of the view that there is no merit in the appeal and the same is hereby dismissed. The order of the District Forum is affirmed and upheld. No order as to costs.
15. The appellant had deposited amounts of Rs. 25,000/- and Rs. 75,000/- with this Commission. Both these amounts with interest accrued thereon, if any, be remitted by the registry to respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court.
16. Remaining amount shall be paid by the appellant to respondent within 30 days from the receipt of the copy of the order.
17. The arguments in this appeal were heard on 10.04.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
18. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (MRS. SURINDER PAL KAUR) MEMBER April 17 , 2015.
Rupinder First Appeal No.831of 2014 12