State Consumer Disputes Redressal Commission
Gurpreet Singh S/O S. Sawarn Singh vs The Oriental Insurance Company Ltd., ... on 9 January, 2014
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1535 of 2012
Date of institution:16.11.2012
Date of Decision: 9.1.2014
1. Gurpreet Singh s/o S. Sawarn Singh and
2. Mannat Preet Kaur minor daughter through her natural guardian,
father S. Gurpreet Singh
Both r/o H. No. 66-D, SST Complex Bishan Nagar, Patiala.
.....Appellants/Complainants
Versus
1. The Oriental Insurance Company Ltd., Regd. & Head Officer A
25/27, Asaf Ali Road, New Delhi - 110002 through its Managing
Director/ General Manager.
2. Chief Regional Manager, The Oriental Insurance Company Ltd.,
Surindra Building, SCO No. 108-111, Sector 17-D, Chandigarh.
3. Divisional Manager, The Oriental Insurance Company Ltd.,
Patiala
4. Branch Manager, The Oriental Insurance Company Ltd., Sai
Market, Lower Mall, Patiala - 147 001.
.....Respondents/Opposite Parties.
Argued By:-
For the appellant : Sh. Kamal Grover, Advocate
For the respondents : Sh. D.P. Gupta, Advocate.
First Appeal against the order dated 1.10.2012
passed by the District Consumer Disputes
Redressal Forum, Patiala.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Vinod Kumar Gupta, Member
ORDER
Gurcharan Singh Saran, Presiding Judicial Member The appellants/complainants (hereinafter called "the complainants") have filed the present appeal against the order dated 1.10.2012 passed by the District Consumer Disputes Redressal Forum, Patiala(hereinafter called "the District Forum") in consumer complaint No. 735 dated 11.11.2011 vide which the complaint filed by the complainant was dismissed.
FIRST APPEAL NO. 1535 OF 2012 2
2. The complaint was filed by the complainants against the opposite parties on the allegations that he got Happy Family Floater Policy from OP on 8.12.2009 for a sum of Rs. 2 lacs, getting insurance for himself as well as his wife Harpinder Kaur and daughter Shagan Preet Kaur and Mannat Preet Kaur and was issued cover note No. 233500/48/2010/1695. However, his daughter Mannat Preet Kaur suffered ailment and was admitted in the PGI, Chandigarh on 25.7.2010 and its intimation was given to OP No. 3 on 26.8.2010 and 13.9.2010 regarding shifting from PGI, Chandigarh to CMC, Ludhiana w.e.f. 2.9.2010. The complainant filed his medi-claim fulfilling all the required formalities, the ailment of his daughter was Sacral Teratorma and for the treatment of his daughter he spent Rs. 1,40,903/-. However, the claim of the complainant was rejected by the Ops that the complainant suffered ailment by birth. The matter was even taken up with the Insurance Ombudsman, Chandigarh but his complaint was also dismissed by the Insurance Ombudsman vide memo dated 18.5.2011. The action on the part of the Ops was arbitrary, unjustified and tantamount to unfair trade practice, hence, the complaint with the direction to the Ops to pay amount of Rs. 1,40,903/- alongwith interest @ 18% p.a., pay compensation of Rs. 50,000/- and litigation expenses.
3. The complaint was contested by Ops No. 1 to 4, who filed their written statement taking preliminary objections that the complaint is not maintainable as the claim was repudiated on 8.2.2011 under the terms and conditions of the policy; complicated questions of law and facts are involved, therefore, the matter be FIRST APPEAL NO. 1535 OF 2012 3 relegated to the Civil Court; there is no negligence or deficiency on the part of the Ops. On merits, it has been denied that the complainants are 'consumer' under the definition of Consumer Protection Act. However, taking the policy with the cover of Rs. 2 lacs has been admitted. However, on 26.8.2010 intimation was received from brother of the complainant and all the record of the medical treatment, medical summary and discharge certificate issued by PGI, Chandigarh and DMC, Ludhiana were sent to M/s Vipul Med Corporation T.P.A. Pvt. Ltd., Gurgaon, who are Third Party Administrator under the policy issued and consists of highly qualified professional doctors and it was found that the patient is 1.5 year old is a K/C/O horse shoe kidney with duplicated IVC, sacral teratoma, which is congenital and as per Clause 4.3 for Congenital Internal Disorders, the claim is not payable. The claim was also not payable under Clause 4.8 where convalescence, general debility, run down, condition or rest cure, congenital external and internal diseases or defects of anomalies, sterility, any fertility, sub fertility, or assisted conception procedure, venereal diseases, intentional self-injury/ suicide, all psychiatrict and psychosomatic disorders and diseases/accident due to and/or use, misuse or abuse of drugs/alcohol or use of intoxicating substances or such abuse or addition etc. and that the complainant had purchased the policy without disclosing the correct facts of the pre-existing disease of Manant Preet Kaur, which amounts to violation of the terms and conditions of the policy. It was denied that a sum of Rs. 1,40,903/- was spent by the complainant on the treatment of her daughter FIRST APPEAL NO. 1535 OF 2012 4 Mannat Preet Kaur. The claim of the complainant was considered and was repudiated as it was not covered under the policy terms. The complaint filed by the complainant before the Insurance Ombudsman was also dismissed, ultimately, it was stated that there is no merit in the complaint and the same be dismissed.
4. The parties were allowed by the learned District Forum to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence his affidavit Ex. C-1, Health Insurance policy conditions Ex. C-2, CT Scan Report Ex. C-3, MRI Report Ex. C-4, postal receipts Ex. C-5 to 8, legal notice Ex. C-9, policy paper Ex. C- 10, proposal form Ex. C-11, letters Ex. C-12, 13, claim form Ex. C-14, repudiation letter Ex. C-15, letter to Ins. Ombudsman Ex. C-16, letter dt. 22.2.2011 Ex. C-17, letter dt. 14.6.11 of Insurance Ombudsman Ex. C-18, proformas P-II & III Ex. C-19, 20, Test receipts Ex. C-21 to 28, bills and invoice Ex. C-29 to 81, Discharge Summary of CMC Ludhiana Ex. C-82, Lama Summery Ex. C-83, repudiation letter Ex. C-84. On the other hand, the opposite party had tendered into evidence affidavit of I.K. Munjal, Sr. Divn. Manager Ex. R-1, affidavit of Dr. Balraj Ex. R-2, Repudiation letter of TPA Ex. R-3, letter dt. 18.5.2011 of Ops Ex. R-4, receipt Ex. R-5, proposal form Ex. R-6, self declaration form Ex. R-7, policy schedule Ex. R-8.
6. After going through the allegations in the complaint, written statement, evidence and documents brought on the record, the learned District Forum vide impugned order observed that the patient was suffering from congenital internal diseases and has not FIRST APPEAL NO. 1535 OF 2012 5 disclosed the pre-existing disease at the time of taking policy, which is an exception under Clause 4.3 & 4.8, therefore, the claim of the complainant was rightly repudiated by the Ops and the learned District Forum did not see any merit in the complaint and the same was dismissed.
7. Feeling aggrieved with the order passed by the learned District Forum, the appellants/complainants have filed the present appeal.
8. We have heard the learned counsel for the appellants Sh. Kamal Grover, Advocate and learned counsel for the respondents Sh. D.P. Gupta, Advocate.
9. In the grounds of appeal, it has been pleaded that the complainant was treated for diseases, namely, Sacral Teratoma, which was not detected before taking of the policy. In case the complainant was not aware of the disease then the claim of the complainant cannot be rejected on the ground that it was not intimated to the opposite parties at the time of taking the insurance policy, therefore, the order of the learned District Forum is liable to be set-aside.
10. Counsel for the respondents has contended that the disease of the child was pre-existing and the complainant was aware about this fact and as per Clause 4.3 of the Policy, the claim was rightly rejected and this fact was not disclosed at the time of taking the policy. On the same plea, plea of the complainant was rejected by the Insurance Ombudsman, Chandigarh whereas the appellants/complainants in his written arguments have stated that the FIRST APPEAL NO. 1535 OF 2012 6 exclusion clause will not apply to the case of the appellants/complainants as the complainant was not aware of the disease for which the treatment was taken and the treatment was taken after taking the policy and has relied upon the judgment "Life Insurance Corporation of India versus Baljit Kaur", 2013(1) CPJ 465 (NC) and "Life Insurance Corporation of India Vs. Ranjana Anil Rao Dhandole Ors.", 2013 (1) CPJ 20B (NC) (CN). In case we go through the terms and conditions of the policy, Condition No. 4.3 of the policy reads as under:-
"4.3 During the First year of the operation of insurance cover, the expenses on treatment of diseases such as cataract, benign prostatic hypertrophy, hysterectomy for menorrhagia or fibromyoma, hernia, hydrocele, congenital internal diseases, fistula in anus, piles, sinusitis and related disorders are not payable. If these diseases (other than congenital Internal disease) are pre-existing at the time of proposal they will not be covered even during subsequent period of renewal. If the Insured is aware of the existence of congenital internal disease before inception of policy, the same will be treated as pre-existing."
Whereas Condition No. 4.8 is as follows:-
"4.8 Convalescence, general debility, "run down" condition or test cure, congenital external disease or defects or anomalies, sterility, venereal disease, intentional self-injury and use of intoxicating drugs/alcohol."
11. The perusal of the Clause 4.3 will reveal that for the first year the diseases referred in it will not be covered.
12. The counsel for the respondents has referred to the Discharge Summary Ex. C-82 wherein the history has been given by the complainant at the time of taking the treatment in which the child was diagnosed case of sacrococcygeal teratoma type-IV underwent excision by posterior saggital approach on 20.8.2010 at PGI, Chandigarh. Post op child developed CSF leakage from wound site FIRST APPEAL NO. 1535 OF 2012 7 and the relatives brought the child to CMC & H Ludhiana. Past history of anoplasty for anal stenosis on 20.7.2009. The proposal form is silent, therefore, the record shows that the child of the complainant had taken the treatment before taking the policy but it was not disclosed in the proposal form Ex. R-6. In that context the judgment referred by the counsel for the appellants that they were not aware of any pre-existing disease are not applicable to the facts on the record because the discharge summary of the treatment taken by the Child reveals that in the history given by the complainant it has come that the child had taken the treatment before taking the policy. Accordingly, the case of the appellant is duly covered under Clause 4.3 of the Policy, therefore, we are of the opinion that the claim of the appellants/complainants was rightly rejected by the Insurance Company and accordingly, the findings so recorded by the learned District Forum are correct; the same are hereby affirmed.
13. In view of the above discussion, we do not find any merit in the appeal and the same is dismissed with no order as to costs.
14. The arguments in this appeal were heard on 6.1.2014 and the order was reserved. Now the order be communicated to the parties as per rules.
15. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
January 9, 2014. (Vinod Kumar Gupta)
as Member
FIRST APPEAL NO. 1535 OF 2012 8