State Consumer Disputes Redressal Commission
Bhupesh Gupta vs Oic Ltd. on 8 June, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 215 of 2012
Date of institution: 22.2.2012
Date of Decision: 8.6.2015
Bhupesh Gupta s/o R.L. Gupta, r/o 137-F, Rishi Nagar, Op. Aaykar
Bhawan, Ludhiana.
Appellant/Complainant
Versus
The Oriental Insurance Company Limited, CBO-2, Ludhiana, Near Clock
Tower, G.T. Road, Ludhiana through Sr. Branch Manager.
Respondent/OP
First Appeal against the order dated 4.11.2011
passed by the District Consumer Disputes
Redressal Forum, Ludhiana.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Mrs. Surinder Pal Kaur, Member
Present:-
For the appellant : Sh. Ravi Inder Singh, Advocate
For the respondent : Sh. Davinder Kumar, Advocate for
Sh. Rajesh Verma, Advocate
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/complainant (hereinafter referred as "the complainant") has filed the present appeal against the order dated 4.11.2011 passed by the District Consumer Disputes Redressal Forum, Ludhiana(hereinafter referred as the District Forum) in consumer complaint No.186 dated 11.3.2011 vide which the complaint filed by the complainant was dismissed.
2. A consumer complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') against the 2 FIRST APPEAL NO. 215 OF 2012 respondent/OP(hereinafter referred as 'OP') by alleging that he availed the services of the OP by getting Happy Family Floater Policy for the period 28.2.2010 to 26.2.2011 after paying a premium of Rs. 5502/- covering himself as well as other family Members consisting his wife, minor son and minor daughter. Accordingly, the cover note No. CHD-C537008 dated 26.2.2010 and thereafter, Policy No. 234001/48/2010/2675 was issued. During the policy tenure, his minor son Shubham Gupta was treated for "Dacron Patch Closure of Ventricular Septal defect + infundibular resection" on 15.4.2010 and remained admitted in Escorts Heart Institute & Research Centre Ltd. New Delhi for the period 12.4.2010 to 22.4.2010 and he spent a sum of Rs. 1,65,000/- on his treatment. Claim was lodged with the OP, however, vide letter dated 6.8.2010, the OP rejected the claim that his son Shubham Gupta was diagnosed as congenital heart disease, which is excluded under the terms and conditions of the policy. It was alleged that the claim was wrongly rejected by the Op. In fact no terms and conditions of the policy were supplied to him. Only a policy consisting of two pages was given to him. The insurance cover for the period 26.2.2010 to 25.2.2011 was in the 3rd year period in continuity and no claim for the same treatment was lodged earlier and the Op even issued the policy for the 4th year i.e. 26.2.2011 to 25.2.2011. Accordingly, it was alleged that the Ops were deficient in their services. Hence, the complaint with a direction to the Ops to pay a claim of Rs. 1,65,000/- alongwith interest @ 12% p.a. alongwith litigation expenses of Rs. 5500/-.
3FIRST APPEAL NO. 215 OF 2012
3. The complaint was contested by the Op, who filed written reply taking preliminary objections that the complaint was barred under Section 26 of the Act; there was no deficiency in services on the part of the Op, therefore, the complaint was not maintainable; after the receipt of report of Dr. Tarsem Lal Gupta and after scrutinizing the documents placed on the claim file, the claim of the complainant was repudiated on the ground that the patient was diagnosed as congenital heart disease in neonatal period, which was excluded under the policy terms and conditions; the complainant was stopped by his own act and conduct to file this complaint and that the complaint was not maintainable as complicated questions of law and facts were involved, which required elaborate evidence cannot be decided in summary procedure under the Act and the matter was required to be referred to the Civil Court. On merits, the preliminary objections taken above were reiterated. It was again submitted that the claim of the complainant was not maintainable, falling under the exclusion clauses of the terms and conditions. Accordingly, it was repudiated on the basis of advice of the Doctor and the documents submitted by the complainant himself. It was denied that terms and conditions of the policy were not supplied to the complainant. He was getting a policy for the last 3 years and at no point of time, he submitted that policy terms and conditions were not supplied to him.
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 affidavit of Bhupesh Gupta Ex. C1-A, policy 4 FIRST APPEAL NO. 215 OF 2012 schedule Exs. C-1 to C-4, repudiation letter Ex. C-5, discharge summary Ex. C-6, Bill/receipt Exs. C-7 to C-10, certificate Ex. C-11. On the other hand, the Op had tendered into evidence affidavit of R.K. Dhupper, Sr. Div. Manager Ex. RW-1/A, affidavit of Dr. Tarsem Lal Gupta, Ex. RW-2/A, affidavit of Parveen Gupta, Dev. Officer Ex. RW-3/A, letter dt. 6.8.2010 Ex. R-1, Gupta Clinic report Ex. R-2, claim form Ex. R-3, discharge summary Ex. R-4, medical reports Exs. R-5 & 6, policy cover Ex. R-7, policy terms and conditions Ex. R-8, policy schedule Ex. R-9, policy details Exs. R-10 to 12, affidavit of Parveen Gupta Ex. R-13.
6. After going through the allegations in the complaint, written reply filed by the OP, evidence and documents brought on the record, the complaint was dismissed.
7. Aggrieved with the order passed by the learned District Forum, the appellant/complainant has filed the present appeal.
8. We have heard the learned counsel for the parties.
9. It has been contended that the order will be wrongly passed by the OP as well as by the District Forum relying upon the terms and conditions of the policy as those terms and conditions were never supplied to the complainant.
10. The standard terms and conditions of the Happy Family Floater Policy has been placed on the record as Ex. R-8. No doubt that when the policy Ex. C-1 was given to the complainant, those terms and conditions were not attached with it. But merely because of the fact that terms and conditions of the policy were not attached alongwith the policy, it cannot be said that the complainant was not 5 FIRST APPEAL NO. 215 OF 2012 aware of that or that terms and conditions were not be applicable simply because of the reason that in case any person takes any policy, he understands the policy terms and conditions and that he was raising his claim upon that policy. A reference can be made to the judgment given by Constitutional Bench of our Hon'ble Apex Court reported in 1966 (7) CPSC 44 "General Assurance Society Limited versus Chandmull Jain" wherein it was observed in para No. 11(relevant extract) as under:-
".....The policy not only defines the risk and its duration but also lays down the special terms and conditions under which the policy may be enforced on either side. Even if the letter of acceptance went beyond the cover notes in the matter of duration, the terms and conditions of the proposed policy would govern the case because when a contract of insuring property is complete, it is immaterial whether the policy is actually delivered after the loss and for the same reason the rights of the parties are governed by the policy to be, between acceptance and delivery of the policy. Even if no terms are specified the terms contained in a policy customarily issued in such cases, would apply."
Therefore, only on that ground it cannot be said that the complainant will not be covered under the standard terms and conditions of the policy.
11. In case there are standard terms and conditions of the policy, now we have to see it whether the claim of the complainant is covered under the policy or fall under any excluding clause. The exclusion clauses are mentioned in Chapter 4 and Clause 4.8 is the relevant clause, which reads as under:-
"4.8 Convalescence, general debility, "run down" condition or rest cure, congenital external and internal diseases or defects 6 FIRST APPEAL NO. 215 OF 2012 or anomalies, sterility, any fertility, sub-fertility or assisted conception procedure, venereal diseases, intentional self- injury/suicide, all psychiatric and psychosomatic disorders and diseases / accident due to an / or use, misuse or abuse of drugs / alcohol or use of intoxicating substances or such abuse or addiction etc."
12. According to the aforesaid Clause, congenital external and internal diseases fall under the exclusion clause. The heart disease of the son of the complainant, who had taken the treatment was congenital disease is corroborated from the discharge summary of Fortis Escorts Hospital. Resume of the history is relevant, which reads as under:-
"Shubham Gupta 11 year old male child (date of birth 04/11/1998) who is a case of acyanotic congenital heart disease. He is 1st in birth order and is a product of full term normal vaginal delivery. His birth weight was 2 kg. He was diagnosed to have congenital heart disease in neonatal period during routine evaluation. He was asymptomatic and was on regular follow up. Subsequently he was brought to EHIRC, New Delhi for further evaluation and management. Echo done here on 12/03/2010 revealed outlet muscular ventricular septal defect left to right shunt, restricted by right coronary cusp prolapsed."
13. Further the case was also referred by the Ops to Dr. Tarsem Lal Gupta of Gupta Clinic of Ludhiana, who vide his letter submitted that he was diagnosed as congenital heart disease in 7 FIRST APPEAL NO. 215 OF 2012 neonatal period, therefore, on the basis of record produced by the complainant as well as relied upon by the Ops on the record that Mr. Shubham Gupta was a case of 'Acynotic congenital Heart disease'. It is immaterial whether the policy of the complainant was in the 3rd year or 4th year because this disease was totally excluded and no time cap was fixed for, therefore, only in the absence of the terms and conditions of the policy, claim was not permissible. It was rightly repudiated by the Op and correctly declined by the District Forum. The findings so recorded by the District Forum are correct. We affirm the same.
14. 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.
15. The arguments in this appeal were heard on 1.6.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
16. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Jasbir Singh Gill) Member June 8, 2015. (Surinder Pal Kaur) as Member