State Consumer Disputes Redressal Commission
Dr. Ramesh Chander Garg vs The National Insurance Company Ltd., on 22 January, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH
First Appeal No. 1299 of 2010
Date of institution : 28.7.2010
Date of Decision : 22.1.2013
Dr. Ramesh Chander Garg (R.C. Garg) S/o Amar Nath Garg, Fauji Road,
Kotkapura, Tehsil and District Faridkot.
....Appellant.
Versus
The National Insurance Company Ltd., through its Branch Manager, Kotkapura
Krishna Street No. 3, Kotkapura, District Faridkot.
...Respondent.
First Appeal against the order dated 1.6.2010 of
the District Consumer Disputes Redressal Forum,
Faridkot.
Before:-
Shri Piare Lal Garg, Presiding Member.
Shri Jasbir Singh Gill, Member.
Present:-
For the appellant : Sh. Deepak Gupta, Advocate
For the respondent : Sh. G.D. Gupta, Advocate
PIARE LAL GARG, PRESIDING MEMBER:
This is an appeal filed by the appellant/complainant-Dr. Ramesh Chander Garg(hereinafter called 'the appellant') against the order dated 1.6.2010 of the District Consumer Disputes Redressal Forum, Faridkot(hereinafter called the 'District Forum') vide which the complaint of the appellant was dismissed by the District Forum.
2. Brief facts of the complaint are that the appellant had insured himself for Rs. 2.5 lacs, his wife Asha Garg for Rs. 2.5 lacs and his son Madhav Garg for Rs. 1 lacs with the respondent for the period of 3.2.2007 to midnight 2.2.2008 and paid Rs. 13,645/- as premium to the respondent.
3. The appellant all of a sudden suffered from heart problem and he was got admitted in Emergency in Hero D.M.C. Heart Institute, First Appeal No. 1299 of 2010 2 Ludhiana on 8.9.2007 where he was operated for the same on 10.9.2007 and was discharged on 15.9.2007. He spent Rs. 1,67,023/- for the treatment as well as medicine.
4. The intimation regarding the ailment was given by the appellant to the respondent immediately on 20.9.2007 and claim was also lodged but the same was repudiated by the respondent illegally. The complaint was lodged by the appellant with the Ombudsman, Chandigarh, who granted Rs. 50,000/- vide its order dated 27.5.2008, which was paid by the respondent to the appellant but the appellant accepted the same under protest and a letter dated 22.9.2008 was lodged as protest with the respondent. The insurance Ombudsman wrongly assessed the claim to the tune of Rs. 50,000/- only. The appellant filed complaint that the respondent issued Parivar Mediclaim Policy wrongly and mediclaim insurance policy was not issued as per the proposal form. The complaint was filed on the ground that there was deficiency in service as well as unfair trade practice on part of the respondent for not paying the claim as per the policy. It was prayed that the respondent may be directed to pay Rs. 1,17,023/- i.e. the remaining amount with interest @ 18% per annum with Rs. 50,000/- as compensation.
5. Upon notice, the respondent appeared through counsel and filed reply by taking preliminary objections that the appellant had already availed the opportunity by filing a complaint before the Insurance Ombudsman at Chandigarh and his complaint had already been decided on merits, as such, the complaint was not maintainable as per the principle of res-judicata, as per the order of the Insurance Ombudsman amount of Rs. 50,000/- had already been paid by the respondent, which was accepted by the appellant and signed the discharge voucher. Respondent does not fall under the definition of consumer, lengthy evidence was First Appeal No. 1299 of 2010 3 required as such the complaint be relegated to Civil Court, order of the Ombudsman, Chandigarh was not challenged, as per the terms and conditions of the policy claim was not maintainable and there was no deficiency on the part of the respondent. On merits, it was admitted that Parivar Medical Claim Policy was purchased by the appellant for the period of 3.2.2007 to 2.2.2008. The proposal form submitted by the appellant was not filled completely. Intentionally all the queries in the proposal form were not replied/filled by the appellant and material facts were concealed by the appellant intentionally. The insured amount under the policy was not denied. The claim of the appellant was rightly repudiated as per Clause 4.1 of the Insurance Policy, Parivar Medical Claim Policy was rightly issued as intended by the appellant and the policy was sent to the appellant alongwith its terms and conditions. After receipt of the policy, the appellant never agitated that correct medical policy was not issued to him. It was prayed that the complaint of the appellant may be dismissed with costs.
6. Learned District Forum after hearing the learned counsel for the parties and going through the record, dismissed the complaint.
7. Hence, the appeal by the appellant/complainant.
8. The appeal is filed by the appellant on the grounds that the findings of the District Forum are not correct that the Parivar Mediclaim Policy conditions were applicable to the appellant, when the same was not purchased by the appellant, the order of the District Forum is not sustainable in the eyes of law, the order of the District Forum is based on conjectures and surmises and the same is liable to be set-aside.
9. There is no dispute between the parties that the appellant, his wife as well as his son were insured with the respondent for a period of 3.2.2007 to midnight 2.2.2008 and Parivar Mediclaim Policy was issued. But the version of the appellant that he filled the proposal form for the First Appeal No. 1299 of 2010 4 issuance of medical claim insurance policy but the respondent itself issued the Parivar Medical Policy.
10. We have perused the proposal form Ex. C-2 as well as copy of the same tendered into evidence by the respondent Ex. R-2 and in the headnote of the proposal form the name of the policy is mentioned as "Mediclaim Insurance Policy (Revised)".
11. We have also perused the copy of the policy Ex. C-3, which is "Parivar Mediclaim Policy". So the version of the appellant is correct from the proposal form that he had paid the premium and insured himself with his family under Medical Claim Insurance Policy and not under Parivar Mediclaim Policy.
12. We have also perused Ex. R-4 i.e. the terms and conditions of Parivar Mediclaim for Family and as per the same, the Parivar Mediclaim Policy was floater health insurance policy for the entire family against the single sum as premium. But the appellant had paid the premium differently for the insurance of himself as well as his wife and son. So the terms and conditions of the Parivar Mediclaim for Family were not applicable to the appellant.
13. It is proved by the appellant that the appellant was taking continuously health insurance policy since 1995 from the New India Insurance Co. and the present insurance policy was taken by the appellant firstly from the respondent and as such, his previous mediclaim policy was transferred from New India Ins. Co. Ltd. to the respondent company. The last mediclaim insurance policy issued by New India Ins. Co. Ltd. was in existence when the appellant purchased the policy from the respondent in continuation of his previous policy for the period of 3.2.2007 to midnight 2.2.2008.
First Appeal No. 1299 of 2010 5
14. We have also perused the circular Annexure A-3 at page No. 28 of the appeal, which relates to the changes/modifications in the revised mediclaim policy from 1.4.2007 and Clause 2 of the same relates to transfer of the policy from the other insurance company to the respondent company, which is reproduced:-
"2. CONTINUITY OF BENEFITS Policies held with other Insurers if transferred to NIC are treated as new/fresh insurance for application of Exclusions (4.1) Pre-existing Disease (4.2) Waiting period of 30 days (4.3) One/Two.Four year/s exclusion for named diseases. To make the policy competitive and acceptable, the waivers effected are as under:
(a) In case of a policy with 5% Cumulative Bonus on renewal is transferred with satisfactory proof and without break in insurance, 30 days waiting and one year exclusion may be waived.
(b) In case of a policy with 10% Cumulative Bonus on renewal is transferred with satisfactory proof and without break in insurance, 2 year waiting may be waived.
(c) In case of a policy with 20% Cumulative Bonus on renewal is transferred with satisfactory proof and without break in insurance 4 year waiting period may be waived.
(d) In case of a policy with no Cumulative Bonus on renewal is transferred and even without break in insurance, it shall be treated as a new policy."
15. So from the above Clause, if the earlier policy is transferred from the other insurer it will not be treated as new/fresh insurance policy of the insured. So the version of the respondent is not correct that the policy issued by the respondent to the appellant was fresh and not in continuation of the earlier policies.
16. The respondent had repudiated the claim of the appellant only on the ground that the appellant had not filled the columns, which relates to the reply of previous ailment intentionally. But no explanation was given by the respondent why the said proposal form, if the same was incomplete accepted by the respondent and on the basis of the same, the insurance policy was issued to the appellant.
First Appeal No. 1299 of 2010 6
17. We have also perused the proposal form and it is filled in column No. 10 of the same that the appellant was insured under Mediclaim Insurance Policy from 3.2.2006 to 2.2.2007 with new India Assurance Company and the copy of the same was attached with the proposal form but no inquiry was conducted by the respondent from New India Ins. Co. regarding any previous ailment of the appellant as well as of his family and payment of any claim. Even in the said proposal form, the Code of the Development Officer, Agent Code, Policy No. and Annual Premium are not filled but inspite of this the proposal form was accepted by the respondent, which shows that the insurance companies did not inquire any information from the insured at the time of issuance of the policy and when any claim is submitted by the insured then the same is repudiated on the frivolous grounds which were to be inquired by the insurer from the insured before the issuance of the policy.
18. The respondent had not disclosed the name and designation of the official, who accepted and issued the policy and what action taken against him. Counsel for the appellant cited the judgments of the superior courts i.e. Hon'ble Supreme Court "P.C. Chacko and another Vs. Chairman, Life Insurance Corporation of India and others", 2008(3) CPC 248, "Satwant Kaur Sandhu Vs. New India Assurance Company Ltd.", 2009(4) RCR (Civil) 692 and Hon'ble National Commission "United India Insurance Co. Ltd. & Anr. Vs. Subhash Chandra", 2010(3) CPC 23 but the facts of the same are not applicable to the present dispute as no question was put to the appellant by the respondent regarding his previous ailment and as such, no question arises regarding the wrong answers given/replied by the insured to the respondent insurance company.
19. The version of the respondent is that as per the order of the Ombudsman, an amount of Rs. 50,000/- was paid to the appellant, which First Appeal No. 1299 of 2010 7 was accepted by him, as such, the complaint was not maintainable. But on the other hand, the version of the appellant is that the same was accepted by him under protest and letter to this effect was written on 22.2.2008 which was mentioned in para No. 6 of the complaint but the respondent had not specifically denied the receipt of said letter. The respondent had also not produced the discharge voucher to prove that the appellant had received/accepted an amount of Rs. 50,000/- without any protest. The order of the Ombudsman regarding the direction for the payment of Rs. 50,000/- by the respondent was accepted by the respondent and paid the same to the appellant shows that the respondent had admitted the responsibility for the payment of treatment expenses without any hesitation, as such, the respondent cannot run from his responsibility for the payment of remaining amount of the treatment as the respondent had not rebutted or produced any evidence that the appellant had not spent Rs. 1,67,023/-, as such, the respondent is liable to pay Rs. 1,17,023/- (167023 - 50000) to the appellant with interest @ 9% per annum.
20. Accordingly, the appeal of the appellant is accepted with costs of Rs. 5,000/- and the order under appeal is set-aside. Consequently, the complaint filed by the complainant is allowed.
21. The respondent is directed to pay Rs. 1,17,023/- to the appellant with interest @ 9% per annum after three months from the submission of the claim by the appellant with the respondent till its realization within one month from the receipt of copy of the order.
22. The arguments in this appeal were heard on 9.1.2013 and the order was reserved. Now the order be communicated to the parties. First Appeal No. 1299 of 2010 8
23. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Piare Lal Garg)
Presiding Member
January 22, 2013. (Jasbir Singh Gill)
as Member