State Consumer Disputes Redressal Commission
The New India Ass Co Ltd vs Nileshbhai Manilal Patel on 31 July, 2023
Details DD MM YY
Date of Judgment 31 07 2023
Date of filing 15 05 2015
Duration 16 02 08
IN THE CONSUMER DISPUTES REDRESSAL
COMMISSION
GUJARAT STATE, AHMEDABAD.
Court No. 2
A/839/2015
1. The New India Assurance Co. Ltd.
1st Floor, Modi Tower, Limda Chawlk, Bardoli,
Surat.
2. Health India TPA Services Pvt. Ltd.
4th Floor, Saumit House,
Opp. Center Point, Behind Nirmal Hospital,
Ring Road, Surat. ... Appellants
Vs.
Nileshbhai Manilal Patel,
Post Singod, Ta. Bardoli,
Dist. Surat. ...Respondent
CORAM: Hon'ble Mr. M. J. Mehta, President (Acting)
Hon'ble Dr. J. G. Mecwan, Member
APPEARANCE: Appellant: Ld. Adv. Mr. Haresh Parmar Respondent: Ld. Adv. Mr. M. K. Dudhiya Order by Hon'ble Dr. J. G. Mecwan, Member
1. That the present appeal is filed by the appellant being aggrieved and dissatisfied with the order dated 15.04.2015 passed by the Ld. DCDRC, Surat (Addl.) in CC No. 778 of 2013 wherein, Ld. DCDRC has awarded Rs. 2,40,000/- with 9% interest from the date of filing of the complaint along with M. B. Desai A/839/2015 Page 1 of 6 Rs. 2,000/- towards mental harassment and Rs. 1,000/- towards the cost of the complaint.
2. Heard ld. Advocate Mr. Haresh Parmar for the appellant and ld. Advocate Mr. M. K. Dudhiya for the respondent.
3. Brief facts of the complaint is as under: That complainant is having policy for the period between 5.5.2012 to 4.5.2013 for Rs. 4,00,000/- and complainant's wife is treated for the period between 24.4.2013 to 27.4.2013 and incurred the expenses for Rs. 2,40,000/- and for which the claim was lodged with the appellant which was repudiated by letter dated 21.6.2013 assigning the reasons that the treatment was not covered under the policy as per clause 4.4.6 of the terms and conditions of the policy and hence, the complaint was filed.
4. Ld. Advocate Mr. Haresh Parmar for the appellant has submitted that as per the clause 4.4.6 of the terms and conditions of the policy the claim was rightly rejected by the appellant. It is further submitted that it is established from the record of the case that complainant is treated for morbid obesity which was not considered by the Ld. District Commission and passed an order against the appellant. It is further submitted that Ld. District Commission has not considered that Morbid Obesity is not covered under the M. B. Desai A/839/2015 Page 2 of 6 policy but it is considered by the Ld. District Commission that it is a life saving treatment. It is further submitted that complainant has never demanded for policy terms and conditions.
5. Ld. Advocate Mr. M. K. Dudhiya for the respondent has submitted that complainant has obtained the policy in the year 2000-2001 and therefore, the exclusion clause assign in the repudiation letter is not binding to the complainant as the same is introduced with the policy of 2007. Merits of the case:
6. In this matter the repudiation letter is produced wherein, the reason for repudiation is stated as under:
"Clause 4.4.6 : Any medical expenses incurred for or arising out of 4.4.6 convalescence general debility, „Run-down‟ condition or rest cure, obesity treatment and its complications, congenital external disease/defects or anomalies. Treatment relating to all psychiatric and psychosomatic disorders, infertility, sterility, use of intoxicating drugs/alcohol, use of tobacco leading to cancer."
7. As per record of the case, the complainant has obtained policy in the year 2000-2001 and the exclusion clause 4.4.6 was introduced in the policy year of 2007 therefore, appellant is failed to prove that the said exclusion clause was a part of policy year 2000-2001. Further in the opinion of this Commission whenever the insurance company wants to amend or add new terms and conditions, it is obligatory on the part of insurance companies to inform their consumers. M. B. Desai A/839/2015 Page 3 of 6
8. Hon'ble Supreme Court has held in case of New India Assurance Co. Ltd. vs. Paresh Mohanlal Parmar as under:
"The judgment of this Court relied by counsel for the respondent in 2019(6)SCC 212 (Bharat Watch Company thro its partner Vs. National Insurance Company Ltd.) supra covers the case, wherein following has been laid down in para 7 & 10: "7 : "The basic issue which has been canvassed on behalf of the appellant before this Court is that the conditions of exclusion under the policy document were not handed over to the appellant by the insurer and in the absence of the appellant being made aware of the terms of the exclusion, it is not open to the insurer to rely upon the exclusionary clauses. Hence, it was urged that the decision in Harchand Rai will have no application since there was no dispute in that case that the policy document was issued to the insured.
"10 : Having held this, SCDRC also came to the conclusion that the exclusion would in any event not be attracted. The finding of SCDRC in regard to the interpretation of such an exclusionary clause is evidently contrary to the law laid down by this Court in Harchand Rai. However, the relevance of that interpretation would have arisen provided the conditions of exclusion were provided to the insured. NCDRC missed the concurrent findings of both the District Forum and SCDRC that the terms of exclusion were not made known to the insured. If those conditions were not made known to the insured, as is the concurrent finding, there was no occasion for NCDRC to render a decision on the effect of such an exclusion." In view of the above we are of the opinion that no other issue needs to be considered. The appeal of the appellant is liable to be dismissed on the above ground."
Considering the above stated judgment the clause no. 4.4.6 of the policy terms and condition year-2007 is not binding to the complainant as the same were never informed to the complainant.
9. In view of the above discussion act of the opponent to repudiate the claim of complainant is not just and proper and it is a deficiency of service on the part of opponent however, it is an averment of ld. Advocate for the appellant that complainant has enhanced the insured amount from Rs. M. B. Desai A/839/2015 Page 4 of 6 1,50,000/- to Rs. 4,00,000/- and therefore, if the claim is allowed then complainant is entitled to get only Rs. 1,50,000/-.
10. On the other hand it is an averment of ld. Advocate for the respondent that complainant has not filled any proposal form for enhancement of insured amount.
11. In view of the above discussion and looking to the above facts when it is an admitted fact that insured amount Rs. 1,50,000/- was enhanced but on the other side opponent insurance company has not submitted copy of proposal form then in the opinion of this Commission appeal is required to be partly allowed and if Rs. 2,00,000/- instead of Rs. 2,40,000/- along with interest at the rate 7% is awarded to the complainant then it would meet with the end of justice in this matter and therefore, we are inclined to pass following order.
ORDER
1. The present appeal No. 839/2015 is hereby partly allowed.
2. The order dated 15.04.2015 passed by the Ld. DCDRC, Surat (Addl.) in CC No. 778 of 2013 at sr. No. 2 is hereby modified as under:
"Appellant-Original Opponents are ordered to pay Rs.
2,00,000/- with 7% interest from the date of filing of the M. B. Desai A/839/2015 Page 5 of 6 complaint to the complainant within 60 days from the date of this order.
3. The rest of the order passed by the Ld. Trial Court is hereby confirmed.
4. No order as to costs.
5. Registry directed to verify the amount deposited by the applicant in Appeal no.839/2015 and if found deposited, refund the same with interest, if any, accrued on the deposit to the appellant by RTGS after following the due procedure and verification. For the purpose the appellant has to file an application with details to the account branch of this commission.
6. Registry is directed to send certified copy of this judgment to the parties free of cost.
7. Registry is further directed to send copy of this judgment to the District Commission Surat (Addl.) through E-mail in PDF format for taking necessary action.
Pronounced in open court today on 31/07/2023.
[Dr. J. G. Mecwan] [M. J. Mehta]
Member President (Acting)
M. B. Desai A/839/2015 Page 6 of 6