State Consumer Disputes Redressal Commission
1. National Insurance Company Limited vs Sh. Randhir Singh Korey on 3 February, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDGIARH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UNION TERRITORY, CHANDGIARH Appeal No.573 of 2009 1. National Insurance Company Limited, Divisional office No.1, Link Road, Near Alam Park. Ludhiana 141003. 2. National Insurance Company Limited, SCO No.337-340, Sector 35-B, Chandigarh. Both 1 and 2 through authrised signatory, Chief Regional Manager, Regional Office-1, SCO No.337-340, Sector 35-B, Chandigarh. ..Appellants. V E R S U S Sh. Randhir Singh Korey son of Sh. H. S. Korey, Aged about 59 years resident of H.No.3246, The Custom and Central Excise Officers Coop. H/B Society Ltd., Sector 49 D, Chandigarh. ..Respondents. BEFORE: HONBLE MR. JUSTICE PRITAM PAL, PRESIDENT. HONBLE MAJ. GEN. S. P. KAPOOR (RETD.), MEMBER.
HONBLE MRS. NEENA SANDHU, MEMBER.
PRESENT: Sh. Aftab Singh, Advocate, proxy for Sh.
Ashwani Talwar, Advocate for the appellants.
Sh.
P. K. Kukreja Advocate for the respondent.
MAJ. GEN. S. P. KAPOOR (RETD.), MEMBER.
1. This is an appeal against order of District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (for short hereinafter to be referred as District Forum) dated 25.8.2009 passed in complaint case No.369 of 2009 : Sh. Randhir Singh Korey Vs. National Insurance Company Limited and another.
2. Briefly stated the case of the complainant is that he took Hospitalization and Domiciliary Hospital Benefit Policy under Parivar Mediclaim from the OPs on payment of consideration amount for the period 2.8.2007 to 1.8.2008. It was averred that on 20.5.2008, the Complainant felt breathlessness and he was rushed to Fortis Hospital, Mohali in view of the fact the OPs had assured to provide Hospitalization & Domiciliary Hospital Benefits in Private Hospitals. The complainant was diagnosed as the case of Triple Vessel Disease and he was advised Coronary Artery Bypass Surgery, which was carried out on 22.5.2008 and the Complainant was discharged from the hospital on 30.5.2008. It was the case of the complainant that for availing the cashless benefit, information of the said operation was given to OPs but the benefit under the said scheme was not extended to him and he paid only an amount of Rs.2,22,951/-. The complainant, it was alleged, lodged claim with the OPs but the same was repudiated vide letter dated 28.11.2008 on the ground that he was having history of Coronary Artery Disease for which he had been taking regular treatment earlier also. Alleging the above repudiation of claim by the OPs as deficiency in service as well as unfair trade practice on their part, the complainant had filed the present complaint.
3. The version of OPs is that they were to indemnify for the medical expenses which were covered within the terms and conditions of policy duly supplied to the Complainant at the time of taking of policy, who after going through the policy and after understanding the terms and conditions availed the Parivar Mediclaim Insurance Policy. OPs pleaded that the Complainant did not inform in advance to the TPA i.e. Park Mediclaim or the OP, therefore, the cashless benefit was not extended to the Complainant in accordance with the terms & conditions of Policy. As per OPs, the claim of the Complainant was rightly repudiated after scrutinizing the medical record by the medical experts, whoc came to the conclusion that it was an old case of Coronary Artery Disease and further the complainant was a known case of Diabetic Mellitus Type-2 and Hypertension and had been taking regular treatment. Pleading no deficiency in service on their part, OPs prayed for dismissal of the complaint.
4. The learned District Forum, in its analysis of the complaint recorded that the OPs had not placed on file any document to suggest if Annexure OP-1, the policy in question, was ever made available to the complainant. It further recorded that admittedly, the policy does not form part of Annexure C-1, which was issued to the complainant and which was not even signed by the complainant nor was there any writing from him to abide by any such general terms and conditions. As per the learned District Forum, even in Annexure C-1, there was no mention, if there were any other terms and conditions, which would govern Annexure C-1. thus, in view of the learned District forum, the terms and conditions as contained in Annexure OP-1 were not biding on the complainant. The learned District Forum next observed that OPs had also not produced on record the proposal form, which might had been got filled up from the complainant. It further recorded that the absence of the proposal form would mean that the terms and conditions of the policy were not conveyed to the complainant and he never concealed any fact from the OPs. As regards the pre-existing disease, the learned District Forum recorded that Annexure C-2 was issued by Department of Cardiovascular and Thoracic Surgery of Fortis Hospital and it was not the case of OPs that the CAD and regular treatment was being taken by the complainant from their hospital. As per the learned District Forum, the documentary evidence with respect to the CAD and regular treatment from the hospital concerned had not been produced and further it was also not clear, as to at whose instance, this fact was mentioned by the doctor in Annexure C-2. Even, the affidavit of the doctor to whom this fact was told and who prepared Annexure C-2 had not been produced on record. In the view of the learned District Forum, there was no evidence on record to conclude that the complainant was an old case of CAD or that he was taking regular treatment from any hospital for the disease for which he was treated in the hospital. In view of its above discussion, the learned District forum allowed the complaint and riected the OPs to pay to the complainant a sum of Rs.2 Lac along with Rs.2,000/- as costs of litigation within thirty days from the date of receipt of copy of this order failing which the OPs were held liable to pay the above amount along with penal interest @12% per annum from the filing of the present complaint i.e.19.3.2009 till the date of actual payment.
5. Aggrieved by the said order of learned District Forum, OPs have filed the present appeal. The appeal having been taken on board, notice was sent to the respondent and record of complaint case was summoned from the District Forum concerned. Sh. Aftab Singh, Advocate appeared as proxy for Sh. Ashwani Talwar, Advocate for the appellant whereas Sh. P. K. Kukreja, Advocate represented the respondent.
6. Sh.
Aftab Singh, Advocate learned counsel for the appellants submitted that the complainant was suffering from the a preexisting disease and hence, as per terms and conditions of the policy, no claim was payable. He further submitted that the complainant had not anywhere pleaded in the complaint that the terms and conditions governing the policy had not been provided to him. He further submitted that it was a Parivar Medical Policy and under Clause No.1 of the policy, the complainant cannot be given more than 50% of the expenses whereas vide the impugned order, the learned District Forum had directed the company to pay the full claim of the complainant amounting to Rs.2 Lacs. He, therefore, emphatically submitted that the impugned order is not legally sustainable and prayed that it be set aside.
7. In response, Sh. P. K. Kukreja, Advocate learned counsel for the respondent submitted that in Para No.3 of the complaint, the complainant had categorically submitted that no terms and conditions of the policy had been supplied to him. He further submitted that no proposal application is on file and he emphatically submitted that the complainant had not concealed anything about his medical condition from the OPs. He reiterated the version of the complainant that terms and conditions governing the policy had not been supplied to him and emphatically submitted that these could not be binding on the complainant as per the settled law on this issue. As regards the grant of Rs.2 Lacs vide the impugned order, the learned counsel submitted that this amount did not cover the full amount of the medical expenses as the complainant had paid a total sum of Rs.2,22,951/-. He also clarified to the Bench that the amount of Rs.2 Lacs awarded by the learned District Forum included the compensation component also and therefore, there was no illegality in the order.
8. We have gone through the record on file as well as the impugned order and have heard the learned counsel for the parties.
9. It is seen from the record that the complainant has in his complaint duly mentioned the fact of non supply of terms and conditions to him. There is nothing on record to prove the contention of OPs that the terms and conditions governing the policy were duly supplied to the complainant and he had agreed to the same.
10. From a perusal of Annexure C-5, it becomes clear that the claim of the complainant had been repudiated on the ground that he had an old history of CAD for which he had been taking regular treatment earlier. However, OPs have placed no evidence on record to prove that the complainant was suffering from CAD earlier and he had been taking treatment for the same. OPs have also not placed on file any evidence to prove that the complainant was ever aware of the fact that he had been suffering from CAD. The settled law on the subject is that not only onus to prove the preexisting disease lies on the insurer, the insurer is also in addition required to prove by cogent evidence that the insured was aware of the preexisting disease and had been taking medication/treatment for the same. Apparently, in this case, no such evidence is on record. Hence, the claim of the complainant could not have been repudiated on the ground of preexisting disease in the absence of relevant evidence.
11. In view of the fact that the OPs have failed to prove the factum of having provided terms and conditions of the policy to the complainant and also in view of the fact that they have also not been able to establish that the complainant was suffering from a preexisting disease of which he was aware and had been taking treatment for the same, we are in total consonance with the view held by the learned District Forum that the repudiation of the mediclaim of the complainant amounts to deficiency in service.
12. Since, the terms and conditions of the policy now supplied by OPs cannot be made applicable to the complaint case in view of the earlier discussion, we find no merit in the argument of learned counsel for the appellants that only 50% of the claimed amount is payable to the complainant as per Clause No.1 of the terms and conditions of the policy. Thus, in view of the given facts and circumstances of this case, we find no legal infirmity in the directions of learned District Forum to the OPs to pay the complainant a sum of Rs.2 Lacs along with Rs.2,000/- as costs of litigation because admittedly, the complainant had paid a sum of Rs.22,951/- towards his medical expenses.
In view of the foregoing discussion, we find no merit in the appeal and the same is dismissed and the impugned order is upheld being just, fair and legal.
Copies of this order be sent to the parties free of charge.
Pronounced.
3rd February 2010.
Sd/-
[JUSTICE PRITAM PAL] PRESIDENT Sd/-
[MAJ.
GEN. S. P. KAPOOR(RETD.)] MEMBER Sd/-
[MRS.
NEENA SANDHU] MEMBER Ad/-
STATE COMMISSION Appeal No.573 of 2009 PRESENT: Sh. Aftab Singh, Advocate, proxy for Sh. Ashwani Talwar, Advocate for the appellants.
Sh. P. K. Kukreja Advocate for the respondent.
Dated the 3rd day of February, 2010.
ORDER Vide our detailed order of even date recorded separately; this appeal filed by the OPs has been dismissed.
(MAJ GEN S. P. KAPOOR (RETD.)) MEMBER [JUSTICE PRITAM PAL] PRESIDENT (NEENA SANDHU) MEMBER Ad/-