State Consumer Disputes Redressal Commission
Dr. B.K. Goyal & Another vs United India Insurance Co. Ltd. on 4 March, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
1. First Appeal No.880 of 2011
Date of institution : 06.06.2011
Date of decision : 04.03.2014
1. Dr. B.K. Goyal,
2. Smt. Anita Goyal wife of Dr. B.K. Goyal, residents of Gill Road,
Moga.
....Appellants
Versus
1. United India Insurance Company Limited through its Managing
Director, H.O. 24, Whites Road, Chennai-600 014.
2. The Divisional Manager, United India Insurance Company
Limited, Divisional Office, 6-7, Shaheed Bhagat Singh Market,
G.T. Road, Moga.
......Respondents
2. First Appeal No.989 of 2011
Date of institution : 28.06.2011
Date of decision : 04.03.2014
1. United India Insurance Company Limited through its Managing
Director, H.O. 24, Whites Road, Chennai-600 014.
2. The Divisional Manager, United India Insurance Company
Limited, Divisional Office, 6-7, Shaheed Bhagat Singh Market,
G.T. Road, Moga, Punjab.
....Appellants
Versus
1. Dr. B.K. Goyal,
2. Smt. Anita Goyal wife of Dr. B.K. Goyal, residents of Gill Road,
Moga.
......Respondents
First Appeal No.880 of 2011. 2
First Appeals against the order dated
3.5.2011 of the District Consumer Disputes
Redressal Forum, Moga.
Before :-
Hon'ble Mr. Justice Gurdev Singh, President.
Mr. B.S. Sekhon, Member.
Mr. Surinder Pal Kaur, Member.
Present :-
For the appellants : Shri B.S. Bhalla, Advocate. For the respondents : Ms. Jaimini Tiwari, Advocate. JUSTICE GURDEV SINGH, PRESIDENT:
The above noted appeals have been preferred against the order dated 3.5.2011 passed by District Consumer Disputes Redressal Forum, Moga (in short, "District Forum"), vide which the complaint filed by Dr. B.K. Goyal and Smt. Anita Goyal, complainants, under Section 12 of the Consumer Protection Act, 1986, was allowed and the opposite parties-Insurance Company was directed to pay Rs.70,000/-, along with interest at the rate 9% per annum from the date of repudiation of the claim i.e. 13.10.2010 till the realization of that amount and Rs.5,000/- as litigation expenses. The first appeal (FA No.880 of 2011) has been filed by the complainants for modification of that order so as to award the compensation as claimed in the complaint. The second appeal (FA No.989 of 2011) has been filed by the opposite parties for setting aside the order.
2. As per the allegations, made in the complaint, Smt. Anita Goyal, complainant No.2, is the wife of Dr. B.K. Goyal, complainant No.1. Both of them had obtained insurance cover dated 30.10.2009 for the period 1.1.2010 to 31.12.2010 from the opposite parties- Insurance Company after the payment of Rs.5,374/- as premium. First Appeal No.880 of 2011. 3 The insurance policy was duly issued in their favour and such like insurance policy was being obtained by them regularly from the last many years. On 20.2.2010 complainant No.1 consulted Dr. S.P.S. Grewal of Grewal Eye Institute, Chandigarh, for strain on her eyes and head-ache, who advised Phako surgery for both eyes. Her right eye was operated on 29.3.2010 and was told by the doctor that the left eye would be operated after two weeks. Information to that effect was given to her, vide writing dated 1.4.2012. She got her left eye operated on 14.4.2010 and remained hospitalized on 29.4.2010 and 14.4.2010. Post hospitalization treatment continued and the said doctor recommended treatment for two weeks i.e. upto 26.5.2010 and also advised the glasses. She submitted her medi-claim of Rs.1,29,600/-, vide writing dated 21.5.2010, which was received by opposite party No.2 on 24.5.2010 and was repudiated, vide letter dated 13.10.2010, on frivolous ground that there was delay in submission of the claim. She made a written request dated 9.11.2010 about her treatment upto 12.5.2010 and that the claim was submitted by her in time, but no action was taken by the Insurance Company. The repudiation of a genuine claim is illegal, null and void and against the principles of natural justice. Before repudiation of the claim, no opportunity of personal hearing was ever given to her. This act of the Insurance Company amounts to deficiency in service and it is bound to release the amount of the claim. The complainants claimed damages to the tune of Rs.50,000/- and prayed for the issuance of directions accordingly to the Insurance Company.
3. The complaint was contested by the Insurance Company and detailed written reply was filed. It admitted that the complainants had First Appeal No.880 of 2011. 4 obtained the medical insurance policy for the period mentioned in the complaint and that complainant No.2 got her right eye operated on 30.3.2010 and left eye on 14.4.2010 and that the claim was submitted by her under the insurance policy, which was repudiated on the ground mentioned in the letter of repudiation. While denying the other allegations made in the complaint, it was pleaded that as per condition No.5.4 of the insurance policy all the supporting documents relating to the claim were to be filed with TPA within 7 days from the date of discharge from the hospital and in case of hospitalization after the completion of the treatment. The complainants violated that condition by not submitting the claim and the supporting documents within 7 days. Therefore, the claim was validly repudiated on that ground. As per the terms and conditions of the insurance policy in respect of cataract, the complainants were entitled to only 10% of the S.I. subject to a maximum of Rs.25,000/-. In this case the insurance cover was for Rs.1,00,000/- and, as such, complainant No.2 was entitled to only Rs.10,000/-. It also pleaded that the complaint is not maintainable and the complainants are estopped by their act and conduct from filing the same.
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing leaned counsel on their behalf allowed the complaint, vide aforesaid order.
5. We have heard learned counsel for both the sides and have carefully gone through the records of the case.
6. It was submitted by the learned counsel for the Insurance Company that the complaint was wrongly allowed by the District First Appeal No.880 of 2011. 5 Forum by ignoring the evidence produced by the Insurance Company for proving that the claim and the supporting documents were not submitted by the complainants within 7 days from the date of discharge from the hospital. It is the case of the complainants themselves that complainant No.2 was operated for the right eye on 29.3.2010 and for the left eye on 14.4.2010 and still the claim was submitted only on 21.5.2010 i.e. after the expiry of the prescribed period of 7 days. Even if it was to be concluded that the claim was submitted in time, complainant No.2 was not entitled to Rs.70,000/- as has been held by the District Forum. As per the terms and conditions of the insurance policy for the hospitalization of cataract, she was entitled to 10% of the S.I. subject to the maximum of Rs.25,000/-. The insurance cover was obtained for Rs.1,00,000/- and, as such, only Rs.10,000/- was payable under the policy. She was not entitled to any such amount for pre and post hospitalization as the same was not for more than 24 hours, as required by condition No.2.3 of the policy.
7. On the other hand, it was submitted by the learned counsel for the complainants that after taking into consideration the evidence produced by the parties correct finding was recorded by the District Forum that the complainants were entitled to Rs.70,000/- for the medi-claim. However, it committed an illegality while awarding only Rs.5,000/- as litigation expenses, whereas the complainants made a claim of Rs.50,000/- as damages, in their complaint. The non- payment of the insurance claim amounted to deficiency in service on the part of the Insurance Company, which caused grave mental agony and harassment to the complainants and, as such, they were First Appeal No.880 of 2011. 6 entitled to Rs.50,000/- as claimed in the complaint, as compensation. Therefore, the order of the District Forum is liable to be modified to that extent.
8. The relations between the parties are governed by the terms and conditions of the insurance policy so far as the present complaint is concerned. It is now well settled that the terms and conditions of the insurance policy are liable to be construed strictly. Those terms and conditions constitute a contract between the parties and the parties to the contract are bound by the same. Condition No.5.4 deals with the time within which the claim was to be filed by complainant No.2. The same is reproduced below:-
"5.4 All supporting documents relating to the claim must be filed with TPA within 7 days from the date of discharge from the hospital. In case of post-hospitalization, treatment (limited to 60 days), all claim documents should be submitted within 7 days after completion of such treatment."
9. According to the complainants themselves, complainant No.2 was operated for second eye (left eye) on 14.4.2010. Admittedly the claim was submitted on 21.5.2010 and was received by the Insurance Company on 24.5.2010. In order to make out a case that the claim was submitted within 7 days, the complainants alleged in the complaint that the doctor recommended the treatment of complainant for two weeks from the date of the second operation and that was the post hospitalization treatment. That fact has been supported by complainant no.2 by means of her affidavit Ex.CW-1. However, no First Appeal No.880 of 2011. 7 such document has been proved on the record for proving that the doctor had recommended such post-hospitalization treatment or that she had actually obtained this post-hospitalization treatment. Even if it is so, it cannot be said that the above said condition No.5.4 was a fundamental condition of the insurance policy, in view of the following note; which is given at the bottom of that condition:-
"Note: Waiver of this condition may be considered in extreme cases of hardship where it is proved to the satisfaction of the Company that under the circumstances in which the insured was placed it was not possible for him or any other person to give such notice or file claim within the prescribed time-limit."
10. When the Insurance Company was given the power to waive that condition, it was required to incorporate in the letter of repudiation itself that it had not found any ground for waiving that condition. The complainants proved on the record the letter dated 1.4.2010 Ex.C-2, which was written by complainant No.2 to the Insurance Company and she had mentioned in the last para thereof that as per the advice of the doctor, she was to undergo for left eye operation after two weeks and had requested the Insurance Company to register her claim. Thus, the Insurance Company was well aware of the fact that complainant No.2 intended to make the claim and in all fairness, it should have waived that condition even if there was some delay in submitting the claim. The Insurance Company was not justified in repudiating the claim on the ground of that delay.
First Appeal No.880 of 2011. 8
11. The next question to be determined is, as to how much amount complainant No.2 is entitled to under the insurance policy for the cataract of both her eyes? As per the terms and conditions of the insurance policy, the expenses were restricted in specified illnesses and that part of the policy is reproduced below:-
"Expenses in respect of the following specified illnesses will be restricted as detailed below:
Hospitalization Benefits LIMITS RERSTRICTED TO a. Cataract a. 10% of the SI subject to a Maximum of Rs.25,000/-
b. Hernia b. 15% of the SI subject to a
Maximum of Rs.30,000/-
c. Hysterectomy c. 20% of the SI subject to a
Maximum of Rs.50,000/-
d. Major surgeries* d. 70% of the SI subject to a
Maximum of Rs.2 lacs
e. Pre & Post Hospitalization e. Actual Expenses subject to a Maximum 10% of the sum insured.
* Major surgeries include cardiac surgeries, brain tumor surgeries, pace maker implantation for sick sinus syndrome, cancer surgeries, hip, knee, joint replacement surgery. (N.B. Company's Liability in respect of all claims admitted during the period of insurance shall not exceed the Sum Insured per person as mentioned in the schedule)."
It is to be noted that the operation of cataract was done at two different times, first for the right eye and then for the left eye. Therefore, complainant No.2 was entitled to 10% of the S.I. subject to maximum of Rs.25,000/- in respect of each cataract. Thus, she was entitled to Rs.20,000/- in respect of two cataracts. First Appeal No.880 of 2011. 9
12. The District Forum also allowed the expenses under the head "Pre & Post Hospitalization" to the tune of Rs.20,000/-. If the other terms and conditions of the policy are taken into consideration, complainant No.2 was not entitled to the reimbursement of those expenses. As per definition 2.3 contained in the policy, the treatment will be considered to be taken under hospitalization benefit only when the stay in the hospital was more than 24 hours. Neither it is the contention of the complainants nor any evidence was produced by them for proving that the treatment of complainant No.2 was more than 24 hours. Thus, it cannot be said that there was any hospitalization and, as such, there was no question of reimbursement of the expenses under the Head "Pre & Post Hospitalization". The amount of Rs.20,000/- under the said head could not have been allowed by the District Forum.
13. We find ourselves unable to agree with the submission made by the learned counsel for the complainants that they were entitled to the compensation of Rs.50,000/- on account of the wrong repudiation of the claim made by complainant No.2. While awarding the sum of Rs.70,000/-, the District Forum also allowed interest on that amount at the rate of 9% from the date of repudiation of the claim itself. That interest itself was the compensation for the deficiency in service, if any, on the part of the Insurance Company. We do not find any ground to allow the compensation over and above that interest.
14. In view of the above discussion, the appeal (FA No.880 of 2011) filed by the complainants is dismissed and the appeal (FA No.989 of 2011) filed by the Insurance Company is partly allowed and the order of the District Forum is modified to the effect that instead of First Appeal No.880 of 2011. 10 Rs.70,000/- the Insurance Company is directed to pay Rs.20,000/-, along with interest at the rate awarded by the District Forum and for the period mentioned in that order.
15. The Insurance Company had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal (FA No.989 of 2011). The registry shall calculate the interest on the amount of Rs.20,000/- at the rate of 9% per annum from 13.10.2010 till today and remit the amount of Rs.20,000/- plus the interest (out of the amount of Rs.25,000/- plus the amount of interest accrued thereon, if any) to the respondents/complainants by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the Insurance Company and if some amount is left the same be remitted to the Insurance Company.
16. The arguments in these cases were heard on 26.2.2014 and the orders were reserved. Now, the order be communicated to the parties.
17. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER (MRS. SURINDER PAL KAUR) March 04, 2014 MEMBER Bansal First Appeal No.880 of 2011. 11