State Consumer Disputes Redressal Commission
1. The Oriental Insurance Company ... vs 1. Vishal Jain on 3 April, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 63 of 2013 Date of Institution : 18.02.2013 Date of Decision : 03.04.2013 1. The Oriental Insurance Company Limited, SCO No.72- 73-A, 2nd Floor, Grain Market, Sector-26, Chandigarh, through its Branch Manager. 2. Regional Manager, The Oriental Insurance Company Limited, SCO No.109-110-111, Sector 17-D, Chandigarh. (Both through its authorized signatory, Regional Manager, The Oriental Insurance Company Limited, SCO No.109-110-111, Sector 17-D, Chandigarh). Appellants/Opposite Parties No.1 and 2 V e r s u s 1. Vishal Jain R/o H.No.1407, Sec.15, Panchkula (Haryana) ....Respondent No.1/complainant 2. Vipul Med Corp. TPA Pvt. Limited, 515, Udyog Vihar, Phase-V, Gurgaon (Haryana) (service dispensed with vide order dated 21.03.2013). ....Respondent No.2/Opposite Party No.3 Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
Argued by:
Sh. Aftab Singh Khara, Advocate proxy for Sh. Ashwani Talwar, Advocate for the appellants.
Sh. Sandeep Jain, Advocate for respondent. No.1/complainant.
Service of respondent no.2, dispensed with vide order dated 21.03.2013 PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 15.01.2013, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent no.1) and directed the Opposite Parties jointly and severally (now appellants no.1 and 2 and respondent no.2), as under:-
In view of the foregoing discussion, we allow this complaint and direct the Opposite Parties, jointly and severally, as under:-
[a] to make payment against the amount claimed as per the terms and conditions of the policy;
[b] to pay a sum of Rs.5,000/- as costs of litigation.
This order be complied with by the Opposite Parties within 45 days from the date of receipt of its certified copy, failing which, Opposite Parties shall be liable to pay the claimed amount to the complainant, besides Rs.5,000/- as costs of litigation.
2. The facts, in brief, are that the complainant took a medi-claim Policy bearing No. 231300/48/2011/1815 (Happy Family Floater Policy) from Opposite Party No.1, valid for the period from 20.10.2010 (12.30) to midnight of 19.10.2011, covering him and his family members, on payment of premium, in the sum of Rs.14,549/-. It was stated that according to the terms and conditions of the said Policy, Opposite Parties No.1 and 2, were to pay for hospitalization expenses, for medical/surgical treatment, at any Nursing Home/Hospital in India, as an in-patient, defined in the same (Policy).
3. It was further stated that, Smt. Renu Jain, wife of the complainant, suffered from the disease Accessory Navicular Syndrome, for which she was operated upon, in Medanta (The Medicity), Hospital, Sector 38, Gurgaon, Haryana. The complainant spent a sum of Rs.91,565/-, for hospitalization and surgery of his wife. Thereafter, the complainant, submitted the medical bills, of his wife, for cashless facility, through Global Heath Private Limited, Sector 38, Gurgaon. Opposite Party No.3, agent of Opposite Parties No.1 and 2, vide letter dated 08.07.2011, informed the complainant, that it was unable to issue any authorization for cashless treatment, for the said aliment, on the ground, that the same fell within the definition of congenital disease and, as such, was excluded under Clause 4.8 of the Insurance Policy. It was further stated that the opinion of Dr. Balvinder Rana, regarding authorization for cashless treatment of the wife of the complainant was obtained, and submitted to the Insurance Company. It was further stated that Dr. Balvinder Rana, in clear-cut terms, opined that the disease with which the wife of the complainant was suffering and for which she was operated was not congenital disease, but a developmental defect which seldom required surgery. It was further stated that the repudiation of claim by the Opposite Parties was illegal and arbitrary. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to pay Rs.91,565/-, i.e. the amount spent by him, on account of the treatment aforesaid, of his wife, alongwith interest @18% P.A., till realization; compensation, in the sum of Rs.20,000/-, for mental agony, physical harassment and deficiency, in rendering service; and cost of litigation, to the tune of Rs.11,000/-
4. Opposite Parties No.1 and 2, in their joint version, admitted that the complainant took a medi-claim Policy bearing No. 231300/48/2011/1815 (Happy Family Floater Policy) from Opposite Party No.1, valid from 20.10.2010 (12.30) to midnight of 19.10.2011, covering him and his family members, on payment of premium, in the sum of Rs.14,549/-. It was, however, stated that the disease, with which the wife of the complainant was suffering, was pre-existing, before the inception of the Insurance Policy. It was further stated that the said disease constituted congenital external disorder and was excluded, as per the exclusion Clause 4.8 of the Insurance Policy, in question. It was admitted that, after the surgery of the wife of the complainant, the claim was filed by him, which was rejected, in accordance with the terms and conditions of the Insurance Policy. It was further stated that the repudiation of claim, submitted by the complainant, towards the treatment of his wife, was neither illegal nor arbitrary. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 and 2, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. Despite service, no authorized representative, put in appearance, on behalf of Opposite Party No.3, as a result whereof, it was proceeded against exparte, by the District Forum, on 14.09.2012.
6. The complainant and Opposite Parties No.1 and 2, led evidence, in support of their case.
7. After hearing the Counsel for the complainant, Opposite Parties No.1 and 2, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
8. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties No.1 and 2.
9. Respondent no.2, which was Opposite Party No.3, in the complaint, was exparte, in the District Forum. Accordingly, its service was dispensed with, vide order dated 21.03.2013, by this Commission.
10. We have heard the Counsel for the appellants, respondent no.1, and, have gone through the evidence, and record of the case, carefully.
11. The Counsel for the appellants, submitted that, no doubt, the Insurance Policy, in question, was purchased by respondent no.1/complainant, for himself, and his family members, for the period, in question, on payment of premium. He further submitted that the wife of the complainant was suffering from Accessory Navicular Syndrome, which constituted a Congenital external disorder, and, as such, the amount spent by him (complainant), for hospitalization and surgery of his wife, for the disease aforesaid, was not payable, as per the exclusion Clause 4.8 of the Insurance Policy. He further submitted that the certificate given by Dr. Balvinder Rana, being contradictory, could not be taken into consideration. He further submitted that the District Forum was wrong, in allowing the complaint. He further submitted the order of the District Forum, being illegal, is liable to be set aside.
12. On the other hand, the Counsel for the complainant/respondent no.1, submitted that the certificate issued by Dr. Balvinder Rana, is not contradictory. He further submitted that Dr. Balvinder Rana, in his certificate Annexure C-2, in clear-cut terms, stated that the disease with which, the wife of the complainant, was suffering, was not a congenital condition, but a developmental defect, which seldom required surgery. He further submitted that no medical opinion, contrary to the opinion of Dr. Balvinder Rana, was submitted by the appellants/Opposite Parties, and, as such, the repudiation of claim of the complainant was illegal and arbitrary. He further submitted that the order of the District Forum, in accepting the complaint, being legal and valid, is liable to be upheld.
13. Admittedly, a medi-claim Policy bearing No. 231300/48/2011/1815 (Happy Family Floater Policy)-Annexure C-1, was obtained by the complainant, from Opposite Party No.1, valid from 20.10.2010 (12.30) to the midnight of 19.10.2011, on payment of premium, in the sum of Rs.14,549/-, covering him and his family members i.e. Renu Jain, his wife, Manisha Jain, his daughter, and Samyak Jain his son. There is also, no dispute, about the factum, that the wife of the complainant, underwent surgery in Medanta (The Medicity), Hospital, Sector 38, Gurgaon, Haryana, for the disease Accessory Navicular Syndrome. There is hardly, any dispute, with regard to the factum, that the complainant spent a sum of Rs.91,565/-, for the hospitalization and surgery/operation of his wife. The question, that arises for consideration, is, as to whether, the disease Accessory Navicular Syndrome, with which, the wife of the complainant was suffering and for which she underwent surgery, fell within the definition of congenital external disease or not? Dr. Balvinder Rana, MS (Orthopedic), Consultant-Orthopedic Trauma Unit, Foot and Ankle Unit, Medanta Bone and Joint Institute, Gurgaon, who treated the wife of the complainant, gave the certificate, copy whereof is Annexure C-2, the operative part, whereof, reads as under:-
Please note that the condition of Accessory Navicular Syndrome was diagnosed only about 6 months back. Though the extra bone was present earlier, the patient was not aware of the condition till she developed pain 6 months back. Furthermore she got one surgery done for this at her own cost in March 11. Please note that this is not a congenital condition but a developmental defect which seldom requires surgery.
14.
From the afore-extracted operative part of the certificate Annexure C-2 of Dr. Balvinder Rana, who treated the wife of the complainant, in the hospital, aforesaid, in which she was admitted and underwent surgery, it is revealed that the disease, with which she was suffering, was not a congenital condition, but a developmental defect, which seldom required surgery. No medical opinion, contrary to the Opinion of Dr. Balvinder Rana, was submitted by the Opposite Parties. Annexure C-3, is the repudiation letter, which was sent by Opposite Party No.3, to the complainant, the operative part of which reads as under:-
THE PATIENT HAS ACCESSORY NAVICULAR SYNDROME, WHICH IS A CONGENITAL DISORDER WHICH IS NOT PAYABLE AS PER THE POLICY CLAUSE 4.8. HENCE THE CLAIM IS NOT PAYABLE WHICH PLEASE NOTE.
15.
From the afore-extracted operative part of Annexure C-3, it is not evident, as to whether, such an opinion was given by a medical expert or not? It is also not known, as to wherefrom, Opposite Party No.3 (TPA), got this opinion. The afore-extracted part of Annexure C-3, being not based on the opinion of a medical expert, could not be given precedence over the opinion of Dr. Balvinder Rana, contained in Annexure C-2. The District Forum was right, in holding that the wife of the complainant did not suffer from congenital external disorder. The findings of the District Forum, in this regard, being correct are affirmed.
16. The terms and conditions of the Insurance Policy were not placed, on the record, before the District Forum, by any of the Parties. However, the terms and conditions of the Insurance Policy were produced by the Counsel for the appellants, during the pendency of appeal. This Commission came to the conclusion, that the same were very essential, for the just decision of appeal, and, thus, the same were admitted into evidence, as Annexure AX. The claim of the complainant was repudiated by the Opposite Parties, on the basis of the exclusion Clause 4.8 of the Insurance Policy, which reads as under:-
Convalescence, general debility, run down condition or rest cure, congenital external diseases or defects or anomalies, sterility, and fertility, sub-fertility or assisted conception procedure, venereal diseases, intentional self-injury/suicide, all psychiatric and psychosomatic disorders an diseases/accident due to and or use, misuse or abuse of drugs/alcohol or use of intoxicating substances or such abuse or addiction etc.
17. Since, it has been held above, that the disease Accessory Navicular Syndrome, with which the wife of the complainant was suffering and for which she underwent surgery, did not constitute congenital external disease, it was not covered under the exclusion Clause 4.8 of the Insurance Policy. Under these circumstances, the Opposite Parties were completely wrong, in repudiating the genuine claim of the complainant. By repudiating the genuine claim, aforesaid, arbitrarily and illegally, the Opposite Parties, were clearly deficient, in rendering service.
18. It may be stated here, that while granting the relief, the District Forum did not specify the exact amount, to which the complainant was entitled. In our considered opinion, the order of the District Forum, thus, requires clarification/modification, in this regard.
19. No other point, was urged, by the Counsel for the appellants and respondent no.1.
20. For the reasons recorded above, the appeal is dismissed, with no order as to costs, with the clarification/modification, indicated hereunder:-
i. The appellants/Opposite Parties No.1 and 2 are jointly and severally, directed to pay an amount of Rs.91,565/-, to the complainant/respondent no.1, spent by him, on the hospitalization and surgery of his wife.
ii. The other reliefs granted and directions given by the District Forum, shall remain intact.
21. Certified copies of this order, be sent to the parties, free of charge.
22. The file be consigned to Record Room, after completion Pronounced.
April 3, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg