State Consumer Disputes Redressal Commission
Royal Sundaram Alliance Insurance Co. ... vs K.S. Ramalingam,Sruithilaya,45, ... on 31 January, 2011
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Thiru.J.Jayaram, M.A., M.L., JUDICIAL MEMBERF.A.NO.64/2009
[Against order in C.C.No.136/2005 on the file of the DCDRF, Chennai (North)] DATED THIS THE 31st DAY OF JANUARY 2011 Royal Sundaram Alliance Insurance Co. Ltd., | Rep. by Executive-Claim S. Gurukumar, | Appellant / 3rd OP No.21, Patullous Road, Chennai 600 002. | Vs.
1. K.S. Ramalingam, | Respondent/ Complainant Sruithilaya, | 45, Rajaji Street, Senthil Nagar, HoH | Chennai 600 002. |
2. Apollo First Med Hospital, | Rep. by Hospital Administrator, | D. Kingsley, 154, P.H. Road, | Chennai 600 010. | |R2 & 3/1st & 2nd OPs
3. Medicare TPA Services (I) Pvt. Ltd., | Rep. by Manager Operations-Southern Region, | Mr. Rana Roy, | No.1, Circular Road, United India Colony, | Kodambakkam, | Chennai 600 024. | ,, The respondent as complainant filed a complaint before the District Forum against the opposite parties praying for the direction to the opposite parties to pay Rs.32,034/- with interest at 12% per annum from 15.09.2004 till the date of payment, to pay Rs.50,000/- towards deficiency in service, mental agony, tension, torture etc., and Rs.10,000/- towards cost. The District Forum dismissed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.07.07.2008 in C.C.136/2005.
This appeal coming before us for hearing finally on 14.01.2011, upon hearing the arguments of the either counsels and perused the documents, Written Submissions as well as the order of the District Forum, this commission made the following order:
Counsel for the Appellant /3rd OP.
: Mr.N.Vijayaraghavan, Advocate.
Counsel for the Respondent/Complainant : Mr.Balasubramanian, Advocate.
Counsel for the R2/1st OP. : Mr.T.M.Pappiah, Advocate.
Counsel for the R3/2nd OP : Mr.Elveera Ravindran, Advocate.
M. THANIKACHALAM J, PRESIDENT
1. The third opposite party in OP.136/2005, on the file of the District Consumer Disputes Redressal Forum, Chennai [North] is the appellant, since they have received an adverse order, as per the pronouncement dated 07.07.2008.
2. The complainant, who is a senior citizen, had taken a Medical Insurance Health Card bearing No.HE121069573B from the third opposite party/appellant for the period from 09.03.2004 to 08.03.2005, enabling him to take treatment in the Network of third opposite partys hospital and the first opposite party is one of the Hospital. The complainant had some problem in anus, due to some growth, for which, as advised by the family doctor, he had taken treatment in the first opposite partys hospital. On the basis of the Health Card, the first opposite party has not asked, to pay any amount and he was admitted in the hospital on 11.09.2004 where a surgery was performed on 13.09.2004, for which, they have charged a sum of Rs.32,034/-. The request of the complainant for reimbursement, based upon the policy called Cashless Policy ended in vain, resulting not only over stay in the hospital, but also, causing mental agony. By the negligent and deficiency acts committed by the opposite party, the complainant was put to mental agony, for which, he is entitled to a sum of Rs.50,000/-, in addition to the medical expenses, incurred along with cost. Thus, a consumer complaint was presented, before the District Forum.
3. The first opposite party admitting the treatment given to the complainant, based upon Health Card, without insisting the payment, opposed the complaint, inter alia, contending that when the second opposite party informed that they are unable to approve the cashless request of the complainant based upon the opinion of their doctors, they have compelled to collect the fees, which cannot be termed as deficiency in service, thereby prayed for the dismissal of the complaint.
4. The third opposite party admitting the complainant had availed the Heath Shield Gold Insurance Policy, as well the treatment taken by him in the first opposite partys hospital, resisted the claim on the grounds that the terms and conditions of the policies are binding upon the parties, that as per the General Exclusion-3, the disease for which the complainant had taken treatment is excluded, within the period of one year and in this view, the complainant had no case to canvass any deficiency, for not paying the amount since the repudiation was in order, as per the terms and conditions, which cannot be termed as negligent act also. Thus, they also prayed for the dismissal of the complaint.
5. The first opposite party namely, the second respondent in this appeal, is the hospital, where the complainant had taken treatment from 11.09.2004, for which, they have billed Rs.32,034/-. The second opposite party, who is the third respondent in this appeal, administered of the policy, given by the third opposite party/appellant, as per the Health Card system. Admittedly, for the treatment given by the first opposite party without any negligence, curing the problem, they have charged Rs.32,034/- under Ex.A4. When the first opposite party, has not committed any deficiency or negligent act, when the second and third opposite parties have not paid the amount, as per the Health Card for the service rendered by them, they have collected the above said amount, which cannot be termed, as deficiency in service since there was no privity of contract between the complainant and the first opposite party, though they are in the Network of the third opposite partys hospital, willing to accept the Card on cashless facility.
As pleaded, in the first opposite partys Written Version, as per the opinion of the Panel Doctor of the third opposite party, the third opposite party failed to pay the amount and therefore, the first opposite party claimed the amount. This being the admitted position, it is not known, under what capacity, claim was made against the first opposite party, and it is also not known from the reading of the order, how the first opposite party, was held responsible. In this view, though the second respondent/first opposite party remained absent, in this appeal, for the above said reasons, the order cannot be sustained and the order against the first opposite party is liable to be upset.
6. Ex.A2 is the Medical Insurance Gold Insurance Policy issued by the third opposite party to the complainant, on payment of premium. This Card as stated before us, enables the Holder to take treatment in the hospitals, which are coming within the Network of third opposite party and admittedly, the first opposite party is one of the hospital. Accordingly, without any payment, the complainant was admitted in the hospital, had taken treatment, including surgery, for which, they have billed as said above. When a claim was lodged based upon certain conditions of the policy, the third opposite party, as well as its agent namely the second opposite party failed to pay the amount, thereby compelling the complainant to discharge the bill. In this view, alleging negligent act as well as deficiency in service, a complaint came to be filed as said above.
7. As far as the facts, the complainant was a Health Card Holder, during the currency of the policy, he had taken treatment in the first opposite partys hospital, incurring expenses are all not in dispute and only Point that arise for consideration is, whether the third opposite party had committed any negligent act, amounting to deficiency in service, in not honouring the bill, on the basis of the policy, for which, the key is Ex.A2 or the access is the Health Card.
8. The learned counsel for the appellant, in order to justify the repudiation, invited our attention to the terms and conditions of the policy, as available in Ex.B1 in the Certified true copy of policy. In Ex.B1 from Page 3, the conditions are available and it must be the general conditions for all policies, under the Caption Heath Shield Gold Insurance Policy. Under the Caption, General Exclusion-3, it is said During the first year of the operation of the policy the expenses on treatment of diseases such as Cataract, Benign Prostatic Hypertrophy, Hysterectormy for Menorrhagia or Fibromyma, Hernia, Hydrocele, Congenital Internal Disease, Fistula in anus, Piles, Sinustis and related disorders are not payable. If these disease are pre-existing at the time of proposal they will not be covered even during subsequent period of renewal too.
Cataract in case of renewal policy with us is restricted to Rs.7,500/-. As ruled by the Apex Court, which are attached with the Written Submission of the appellant, the terms and conditions of the policies are binding upon the parties and the Court cannot substitute any other conditions or alter the conditions as the case may be as such. On this basis, if we read the above clause, it makes clear that the Company shall not be liable to make any payment under this Policy in respect of any expenses incurred by the insured person for Fistula in anus, piles.
9. As seen from the Discharge Summary of the complainant and the course in the hospital that is treatment taken, he was operated under General Anesthesia for EUA, excision of thrombosed piles and anal nodule + anoplasty. The operation notes also says he had anus problem, which is the case in the complaint also. Nowhere it is said that this problem was for long period for the complainant and in fact the history of the disease says, the complainant had the problem For past 2 months difficulty in passing stools due to obstruction at anus, thereby showing from the date of 11.09.2004, he had this problem prior to two months that is probably from the month of July 2004.
The policy was taken and Health Card was issued on 09.03.2004, thereby showing only during the currency of the policy, the complainant had this kind of problem, not prior to that. Having the above facts, if we read the General Exclusion-3, it is evident that he suffered this kind of operation as well as expenses during the first years of the operation of the policy thereby excluding this complainant from claiming any expenses for the treatment taken for fistula in anus and piles during the first year of the policy. In this view alone, as seen from Ex.B3, the third opposite partys doctor also certified that as per the insurance norms, there is one year waiting period for piles surgery, hence claim not admissible and not payable, which recommendation, was accepted by the third opposite party/appellant, repudiated, in we are unable to find any fault, as incorrectly concluded by the District Forum, in our view.
10. It is not the case of the learned counsel for the complainant that the complainant had this problem, even prior to one year or one year waiting period is not at all contemplated under the policy. Therefore, when the terms and conditions of the policies are binding, though it is adverse to the insured, being a party, he has to honour, if not, we have to honour, which the District Forum failed and we are inclined to honour.
11. The complainant has not produced either the policy or the conditions attached except the medical insurance health card bearing No.HE121069573. This card, as said above is the key or access to reach the policy, facilitate the holder to take treatment on the basis of insurance facilities that does not mean no conditions were imposed, as if, the third opposite party had agreed to reimburse all kind of disease or its expenses. In the absence of producing the policy by the complainant naturally we have to depend upon the policy produced by the third opposite party, who is marked as Ex.B1.
12. In Ex.B1, in the first page, the authorized signatory signed on 07.06.2005, as if, this policy was given on that date, which is neither the case of the complainant nor the case of the opposite parties. The policy was issued from 09.03.2004 admittedly. But the original policy is not available. In the Certified true copy, it seems, they have signed, as if, the certificate of insurance itself has been given on 7.6.2005, which must be prima facie mistake, since admittedly the complainant has not taken any policy on that date and the policy taken by him was only from 09.03.2004 ending with 08.03.2005. Taking advantage of the date 7.6.2005 in Ex.B1, we cannot ignore the terms and conditions, as if, there was no policy at all, since the claim itself is made on the basis of the policy. The learned counsel for the complainant, taking advantage of the mistake committed by the opposite party, in giving the date as 7.6.2005, as if, it was signed on that date, which cannot be, since the period has come to an end on 08.03.2005, advanced an argument, as if, the conditions are not binding. Even ignoring the first sheet, the conditions available to the policy of this nature namely Health Shield Gold Insurance Policy must be the one and the same. If any other policies have been produced, containing some other condition, we can ignore this policy, which the complainant failed. Therefore, taking into account, the admitted date of policy, we are constrained to take the conditions available in Health Shield Gold Insurance Policy, which are binding between the parties. No case has been even pleaded in the complaint, as if, there was no policy at all or no condition at all. For the above said reasons, we are unable to accept the argument advanced by the learned counsel for the complainant. In view of the conditions available in the policy as well as the Exclusion Clause, the disease for which the complainant had taken treatment, is not covered during the relevant period and therefore, applying the dictum of the Supreme Court in construing the terms and conditions of the policy, we should say that the complainant is not entitled to be reimbursed since the claim was inadmissible as per the terms and conditions of the policy, which was not properly considered by the District Forum. For the above said reasons, the appeal deserves to be accepted.
13. In the result, the appeal is allowed, the order of the District Forum in OP No.136/2005, dt. 07.07.2008 is set aside, and the complaint is dismissed. Considering the facts and circumstances of the case, there will be no order as to cost, throughout.
14. The Registry is directed to handover the Fixed Deposit Receipt, made towards the mandatory deposit, to the appellant/third opposite party duly discharged, since appellant succeeded, and there is no need to retain the FDR.
J. JAYARAM M.THANIKACHALAM JUDICIAL MEMBER PRESIDENT INDEX : YES / NO Ns/mtj/Bank