State Consumer Disputes Redressal Commission
Kanwaljit Singh vs National Insurance Company Ltd. on 24 April, 2017
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.712 of 2016
Date of Institution: 16.09.2016
Date of Decision : 24.04.2017
Kanwaljit Singh son of Surinderjit Singh, resident of Plot No.79, Focal
Point, Opposite Bus Stand, Tarn Taran, Tehsil & District Tarn Taran.
......Complainant/Appellant
Versus
1. National Insurance Company Limited, Office at Fatehgarh
Churian Business Center First Floor, Canara Bank Building,
Ajnala Road, Fatehgarh Churian, District Gurdaspur, through its
Authorized Officer.
2. National Insurance Company Limited, office at Jandiala
Byepass Chowk, Jandiala Road, Tarn Taran through its
Authorized Officer.
3. National Insurance Company Limited, Head Office at 3,
Middleton Street, Post Box No.9229, Kolkata -700071 through
its Executive Head.
....Respondents/opposite parties
First Appeal against the order dated
28.07.2016 of the District Consumer
Disputes Redressal Forum, Tarn Taran.
Quorum:-
Hon'ble Mr. Justice Paramjeet Singh Dhaliwal, President
Mr. Harcharan Singh Guram, Member
Present:-
For the appellant : Sh.Bikramjit Aroura, Advocate For the respondents : Sh.J.P.Nahar, Advocate HARCHARAN SINGH GURAM, MEMBER The present appeal has been filed by the appellant (hereinafter referred as complainant) against the order dated 28.07.2016 passed by the District Consumer Disputes Rederessal Forum, Tarn Taran, First Appeal No.712 of 2016 2 Punjab (hereinafter referred as District Forum), vide which the complaint was partly allowed in favour of the complainant and against the opposite parties and the complainant was held entitled to recover `26,200/- more i.e. total `53,750/- including amount already received by him from the opposite parties under Medi Claim Policy. The complainant was also awarded to recover `5,000/- as compensation on account of harassment and mental agony and `2,000/- on account of litigation expenses. Opposite parties were directed to comply with the order within one month from the date of receipt of copy of the order failing which, the complainant shall be entitled to interest at the rate of 9% per annum on the due amount from the date of complaint till realization of the awarded amount.
2. Brief facts of the case are that the complainant Kanwaljit Singh S/o Surinderjit Singh alongwith his family members purchased a Mediclaim Policy through opposite parties i.e. National Insurance Company Ltd. The opposite parties issued a policy under "Misc.- Non Traditional Business (Hospitalization Benefit Policy)". This policy was issued vide policy No. 406009501310000021 and the said policy was effective from 07.02.2014 to 06.02.2015. The Cover Note No.401209454659 dated 06.02.2014 was issued on receipt of premium of `10,693/-. As per the details of the cover note for Floater Sum Insurance of `5,00,000/- was given covering the risk of insured persons including Kanwaljit Singh, self, Mrs.Ravinder Kaur, wife, Master Jasnoor Singh, son and Baby Amreen Kaur, daughter. He was given an assurance by the agent of the company that in case of hospitalization of any of the insured person during the term of the policy, the company would bear the expenses of the treatment upto First Appeal No.712 of 2016 3 the amount of `5,00,000/-. It was pleaded that complainant's minor son Jasnoor Singh obtained treatment from PGI, Chandigarh firstly from 24.05.2014 to 19.07.2014 and incurred a sum of `5,40,741/- towards medical treatment. His son was again admitted in PGI on 31.08.2014 to 17.10.2014 and at that time he incurred treatment cost of `3,14,485/-. The total expenses incurred on the treatment of his minor son in PGI came to `8,55,226/-. It was averred that the required information regarding the treatment of his son was provided to the Insurance Company and all the necessary documents and bills regarding the treatment were delivered to the officials of the company. The officials of the company lingered on the matter on one pretext or the other. No satisfactory reply was given to him for the payment of sum insured of `5,00,000/-. He made so many requests to the officials of the company and his claim was settled for a partial sum of `27,000/-. The said amount was deposited in his account in a very arbitrary manner and that amount was never accepted by him. On failure to get any relief from the opposite parties, he filed his consumer complaint in the District Forum and prayed that the directions be issued against the opposite parties to pay the total sum insured under policy i.e. the sum of `5,00,000/-; to pay `50,000/- on account of compensation for mental agony and physical harassment; and to pay `20,000/- by way of costs of litigation.
3. Upon notice, opposite parties filed their reply and took preliminary objections that the complaint filed by the complainant was not legally maintainable. It has been averred that the contract of insurance was entered between the insured and National Insurance Company, a corporate body but the present complaint was filed First Appeal No.712 of 2016 4 against individual authority of the National Insurance Company Ltd. and that was not legally maintainable. It was averred that the complainant was not covered under the definition of 'Consumer' because the claim in question pertains to Master Jasnoor Singh. It has been averred that the complaint should have been filed by the said Jasnoor Singh in his own name as he is major at present or through his natural guardian if he would be still minor. It was averred that Kanwaljit Singh by whom the complaint was filed was not a consumer, as such, the complaint filed by him in his own name is not maintainable. It was agitated that the claim preferred by the complainant was dealt with throughout by M/s Dedicated Healthcare Services India Pvt. Ltd., who is duly authorized to deal with the claim. However, the complainant has not impleaded the above named TPA as a party in the present complaint intentionally. It has been averred that as far as the policy referred in the complaint for the period 07.02.2014 to 06.02.2015 was concerned, the insurance was obtained for the first time as Mediclaim Floater Policy of `5,00,000/-. It was averred that the claim of Master Jasnoor Singh was received by TPA. As per discharge summary issued by the PGI, it was revealed that the patient Jasnoor Singh was suffering from symptomatic since May 2009 when he had suffered three sides focal seizures at increasing frequently of seizures occurring every 5 to 10 minutes. He was admitted in PGI from December, 2009 to April, 2010. Thereafter another treatment was obtained by Jasnoor Singh from 24.05.2014 to 19.07.2014 which pertains to same treatment which he had earlier taken from PGI in the year 2009. It was agitated that as per exclusion clause 4.1 of Floater Policy, it has been clearly First Appeal No.712 of 2016 5 mentioned that claim for any pre-existing disease is not payable unless the policy would run for 48 months and only thereafter any claim of the said pre-existing disease is payable, as such, the claim was not payable under the said policy as per exclusion clause 4.1. It was also admitted that earlier the complainant had been taking personal policy in his name as well as in the name of his family members with a restricted sum insured. As per the personal policy for the year 2009-10, the sum insured with respect to Master Jasnoor Singh was `50,000/- plus `5,000/- as cumulative bonus. Thus, the total sum insured comes to `55,000/-. This policy had run for more than 4 years, therefore, the TPA instead of rejecting the claim under the present policy which was taken for the first time, considered his claim as per the earlier personal policy and gave benefit of the sum- insured covered under the said policy for `55,000/-. After applying terms of the Personal Individual Policy the claim was settled at the rate of 50% of sum insured for `27,550/- sum insured for and the said payment was credited in the Bank Account of the complainant, particulars of which was provided by the TPA. The said payment was made in the month of August / September, 2014 and no objection was ever raised against the said payment by the complainant. This amount was accepted by the complainant without protest and as per the averment the figure of the claim amount was mentioned as `27,000/- instead of `27,550/-. It was averred that when the payment was payable under the relevant policy it has to run for more than four years, then the claim shall stand settled in full and final. Thus, the said amount was accepted by the complainant without any protest or without any coercion. It was averred that there was no deficiency or First Appeal No.712 of 2016 6 delay on their part. Hence, there was no question of any compensation to be paid to the complainant to the tune of `50,000/- and `20,000/- towards litigation expenses as well as any other relief so claimed as payable to the complainant. It was agitated that there was no provision under the Consumer Protection Act, to pay any such relief nor there was any agreed clause under the contract of insurance entered with National Insurance Company Ltd. It was averred that claim of `5,00,000/- as demanded by the complainant was not correct because the same was demanded under the policy which was issued in the year 2014-15 being the Floater Policy and that policy was obtained for the first time by the complainant. However, on account of pre-existing disease the said amount was not payable under the said policy as per exclusion clause 4.1 of the said policy. On merits, it is an admitted fact that the insurance policy was taken by the complainant and reiterated their objections on merits that no claim for pre-existing disease is payable unless the policy had run for 48 months and only thereafter the said pre-existing disease claim is payable. The claim was received by TPA and the discharge summary of PGI was scrutinized, from where it was revealed that Master Jasnoor Singh was earlier treated for the same disease in the year 2009 at PGI, Chandigarh. However, as far as present policy which was issued in 2014-15 is concerned, no claim was found payable. However, the TPA after considering the Private Policy with the Restricted Sum Insured for his family members in the year 2009- 10, settled the claim by taking the sum insured plus cumulative bonus in the name of Master Jasnoor Singh to the extent of `55,000/-. It was pleaded that when the account was settled in favour of the First Appeal No.712 of 2016 7 complainant by the TPA then no claim is left to be settled against them and then the complaint filed by the complainant is without any merit and prayed that the complaint filed by him be dismissed with costs.
4. The District Forum allowed the parties to lead their evidence in support of their averments. The District Forum heard the arguments of learned counsel for the complainant as well as of opposite parties and partly allowed the complaint vide aforesaid order.
5. Aggrieved with impugned order the appellant has filed the present appeal for enhancement of the compensation as well as for enhancement of the claim amount which was partly allowed by the District Forum.
6. We have heard the learned counsel for the appellant and perused the record of the District Forum which was called at the stage of admission.
7. Learned counsel for the complainant argued that the complainant had been taking Mediclaim Policy from the opposite parties from the year 2006 onwards, regularly without any break or gap. He argued that the complainant had been taking individual Mediclaim Policy for himself as well as for his family members Mrs.Ravinder Kaur, wife, Master Jasnoor Singh, son and Baby Amreen Kaur, daughter. On the assurances of the agent of the opposite parties he had taken PARIVAR Mediclaim Policy in the month of February, 2014 for himself and for his family members from the opposite parties - company for the period 07.09.2014 to 06.09.2015. He further argued that as per the earlier policy taken by him the said Floater Policy was a continuous policy First Appeal No.712 of 2016 8 and as per the terms and conditions of the said policy the treatment of complainant's son from 24.05.2014 to 19.07.2014 was covered and again on the hospitalization expenses incurred during the period of treatment of his son for 31.08.2014 to 17.10.2014 under the said policy, was also covered. The complainant was entitled for the two claims of his son's admission in the PGI though he had sent a joint claim amount to the insurance company. He argued that the opposite parties by relying upon the exclusion clause 4.1 repudiated his claim on the ground that pre-existing disease was not payable under the policy unless the policy had run for 48 months. He argued that the insurance policies were taken from the opposite parties in the year 2006 onwards. For the sake of arguments, even if the point of first medical treatment of the complainant's son which he had taken in December, 2009 even then, the exclusion clause 4.1 would not apply because the complainant had taken continuous policy and in February, 2014, the condition under the policy of 4 years would lapse when he had taken the Floater Policy. He argued that instead of sanctioning the amount of treatment at the time of admission in the PGI from 24.05.2014 to 09.07.2014 firstly and thereafter on his second admission from 31.08.2014 to 17.10.2014 was also referred to be settled separately under the same policy. But the District Forum had wrongly allowed the amount under Medical Treatment Policy as per opposite parties' reply filed wherein the amount of insurance was increased in the year 2011-2012 to the extent of `1,00,000/- in the name of his minor son. It was wrongly observed by the District Forum that as per the terms and conditions of the policy the complainant was not entitled the claim of treatment of a pre- First Appeal No.712 of 2016 9 existing disease unless the policy complete the period of 4 years, as such, the claim was rightly repudiated. He further argued that the District Forum did not look into the provisions of the insurance policy issued by the company and no direction was issued to the opposite parties to file the record of the insurance policy issued prior to the year 2014. He argued that it is an admitted fact that all the insurance policies which were taken by the complainant from the year 2006 onwards was with the same company and this fact was withheld by the insurance company from the District Forum wherein they had stated that earlier insurance policy was taken by the complainant from the year 2007 onwards. He argued that records as appended alongwith the present appeal to prove the factum that Insurance Company had tried to mislead the District Forum by their averments. He argued that the complaint filed by him in the District Forum be allowed in full and the order of the District Forum be modified.
8. On the other hand, counsel for the respondents argued that as per the terms and conditions, earlier policies were issued as Individual Mediclaim Policies and all the terms and conditions were duly supplied to him. The policy which was issued to him in the year 2014 was a Family Floater Policy for a sum of `5,00,000/-, which did not cover the pre-existing disease of the minor son of the complainant. He argued that full details of the policy under Medical Floater Policy was appended on the District Forum record and it was in continuation vide Ex.OP1-3/15. It would be evident from Ex.OP1- 3/15, that the terms and conditions do not cover the medical treatment of the complainant's son which was of pre-existing disease. First Appeal No.712 of 2016 10
9. During the course of arguments a query was raised to the counsel for the respondents whether the fits and seizures is a permanent disease and does it relate to a pre-existing disease or it relates to some bodily injury of a person or it amounts to clotting of blood at different intervals? For all these queries, no suitable reply was forthcoming from their end.
10. In order to decide the controversy in hand, we have minutely examined the records of the District Forum, contents of the complaint and written statements filed by the opposite parties, on record.
11. We are of the opinion that normally the disease as suffered by the complainant's son cannot be taken as pre-existing disease as some ailments can spend decades lurking in the body of an individual until they suddenly spring up in life. Many persons have diseases that one is having without his knowing. The diseases remain dormant in the body for years. Some illnesses have incubation period of anywhere from years to decades. Some diseases wait in body for decades before striking. As per certificate given by the doctor no date for his pre-existing disease suffered by the complainant's son was given. There is no mention that his son was suffering from pre- existing disease. As per the discharge summary there is only mention that Symptomic since May, 2009.
12. From the perusal of the record, we find that the complainant was taking Medical Insurance Policies for his whole family from National Insurance Co. Ltd. We have also perused the written reply filed by the respondents/opposite parties wherein it has been stated that Floater Insurance Policy was taken for the first time First Appeal No.712 of 2016 11 in the year 2014 only and no other policies were taken by the complainant or his family member earlier to this policy. However, from the perusal of the record, it is found that the insurance policies were duly taken by the complainant for his whole family including himself, his wife, his daughter and his son. As per Ex.OP1-3/14, it pertains to cover note of policy No.404400/48/09/8500001012, it relates to Misc.
-Non Traditional Business (Hospitalisation Benefit Policy). In the said policy number of previous year policy is mentioned as 404400/48/08/8500001098/2008. The sum insured in this policy pertaining to the complainant's son is shown as `1,00,000/- and the cumulative bonus on amount is shown as `7,500/-. However, this cover note consists of only one page and Mediclaim Insurance Policy (Individual) terms and conditions have shown as page 2 of the said Exhibit. However, we subsequently looked into that Mediclaim Insurance Policy (Individual) starts from page 1 which is written under the first page only. Thus, it is clear that these terms and conditions were not supplied to the complainant at the time of issuing the Medical Policy vide Policy No. 404400/48/09/8500001012. If we look into the Ex.OP1-3/15 it consists of two pages. On both the pages, the page number is mentioned as only 1. No other page is shown to be attached alongwith this Floater Insurance Policy for a Sum Insured of `5,00,000/-. From the perusal of this policy, date of birth of the minor son of the complainant is mentioned as 11.10.2000. Thus, it is amply clear that the minor child will not be in a position to detect any disease during his tendered age and the appended terms and conditions of PARIVAR Mediclaim for Family Policy which is appended in the record written in hand as at Page 2 with Ex.OP1-3 First Appeal No.712 of 2016 12 /15. This document was not provided to the complainant at the time of issuance of PARIVAR Mediclaim for Family Policy. From the perusal of this exhibit the page marking is a printed and on the first page of the document is printed as (1).
13. We are of the view that these terms and conditions were appended on the record of the District Forum for being a part of the insurance policy which was issued vide cover note No.401209454659 dated 06.02.2014. From the perusal of Ex.OP1-3/15 the cover note number and date is shown as 401209454659 dated 06.02.2014.
However, the proposal number and date is shown as 8800140207001076 DL dated 07.02.2014. From the perusal of the same it is observed that the proposal form was filled up subsequently from the date when the cover note No. 401209454659 dated 06.02.2014 was given to the complainant.
14. Thus, it is observed by us that first cover note is issued thereafter subsequent Proposal Form was taken from the complainant just to deprive him of his medical benefits from PARIVAR Mediclaim Policy for Family for a sum of `5,00,000/- issued vide Cover Note dated 06.02.2014.
15. Learned counsel for the complainant argued that as per this cover note no terms and conditions have been appended and nowhere is stated that the first claim under this policy will be honored after four years of issuance of this policy.
16. On the other hand, counsel for the respondents/opposite parties argued that as per the terms and conditions if any claim is to be paid it has to be restricted to 50% of the claim amount. First Appeal No.712 of 2016 13
17. In order to look into the averments as pleaded by the learned counsel for the complainant, we have minutely perused the policy schedule of PARIVAR Mediclaim Policy vide Policy No.406009501310000021 incorporated in cover note No.401209454659 dated 06.02.2014. From the perusal of this policy schedule / cover note, we do not find any exclusion clause to deprive of the complainant from his rights. Moreover, in the second page of this policy number, we find that Insured's request date has been shown as 11.02.2014 vide endorsement number 406009501382100006. Thus, it gives an impression from the perusal of this exhibit that cover note was issued on 06.02.2014. Proposal Form was taken on 07.02.2014 and Insured's request date for seeking the Family Floater Policy to be covered under total sum of `5,00,000/- was dated 11.02.2014. Moreover, there is contradictory information provided under Ex.OP1- 3/15.
18. Thus, we are of the view that when no terms and conditions were appended with Ex.OP1-3/15 pertaining to PARIVAR Mediclaim Cover for Family Policy, the same cannot be looked into as the complainant was not making any breach of these terms and conditions.
19. Sequel to the above discussion, we are of the view that the complainant was entitled to recover the Mediclaim Bills pertaining to the treatment undertaken by his son from PGI for the first time from 24.05.2014 to 19.07.2014 for `5,00,000/-. Thereafter, he was also entitled to claim the amount of hospitalization for his son's second admission from 31.08.2014 to 17.10.2014 under the same policy for a sum of `3,14,485/-.
First Appeal No.712 of 2016 14
20. In view of the above, the order passed by the District Forum needs modification.
21. However, in view of the above the appeal filed by the appellant/complainant is allowed and opposite parties are directed to pay a sum of `5,00,000/- minus the amount already paid by the opposite parties to the complainant. The opposite parties are further directed to pay an amount of `30,000/- as compensation for causing mental agony and harassment and also to pay `10,000/- as litigation costs.
22. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE PARAMJEET SINGH DHALIWAL) PRESIDENT (HARCHARAN SINGH GURAM) MEMBER April, 24, 2017 parmod