State Consumer Disputes Redressal Commission
United India Insurance Co. Ltd. vs Sangeeta Mahindru on 8 May, 2017
Daily Order FIRST ADDITIONAL BENCH STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH. First Appeal No.241 of 2016 Date of Institution: 28.03.2016 Order Reserved on : 05.05.2017 Date of Decision : 08.05.2017 ` United India Insurance Company Limited, 19, G.T Road, Jalandhar through its Branch Head Now represented through duly authorized signatory of Regional office at 136, Feroze Gandhi Market, Ludhiana. Appellant/Opposite party Versus Sangeeta Mahindru w/o Late Sh. Manish Mahindru, r/o 164, Greater Kailash, Maqsudan, Jalandhar. Respondent/Complainant First Appeal against order dated 22.01.2016 passed by the District Consumer Disputes Redressal Forum, Jalandhar. Quorum:- Shri J. S. Klar, Presiding Judicial Member.
Smt.Surinder Pal Kaur, Member Present:-
For appellant : Sh.Nitin Gupta, Advocate For respondent : Sh. Rahul Rampal, Advocate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . J.S KLAR, PRESIDING JUDICIAL MEMBER :-
The appellant has directed this appeal against order dated 22.01.2016 of District Consumer Forum Jalandhar, directing the appellant to pay the claim amount of Rs.1,51,682/- along with interest @ 6% per annum from the date of filing the claim till final recovery, besides payment of Rs. 2000/- as costs of litigation. The appellant of this appeal is opposite party in the original complaint before District Forum, Jalandhar and respondent of this appeal is the complainant therein and they be referred as such, hereinafter for the sake of convenience.
2. The complainant has filed the complaint U/s 12 of The Consumer Protection Act, 1986 (in short, "the Act") against the OP on the averments that she obtained family medi-care policy covering risk for reimbursement/indemnification of the expenses incurred by the complainant on the treatment and it was operative from 07.10.2014 to 06.10.2015, vide policy no. 2005002814P105121480. The insured person covered by policy for medical benefits are as under:-
Name Relationship Sex Age Manish Mahindru Spouse M 43 Mrs.Sangeeta Mahindru Spouse F 43 Nindya Mahindru Daughter F 20 Shivam Mahindru Son M 18 The assured amount was Rs.5 lac. The OP issued only cover note to the complainant. The policy documents containing terms and conditions including exclusion clauses were not communicated to the complainant by OP, despite their mandatory duty to do it. Manish Mahindru spouse of the complainant was in normal and good health when the policy was taken. Manish Mahindru co-insured husband of the complainant was admitted in hospital on 11.11.2014 with complaint of watery loose stools and thereafter he was referred to DMC Hospital Ludhiana on 12.11.2014 for treatment, where he remained admitted till 16.11.2014 and he died on 16.11.2014 as natural death. After discharge from the hospital, the complainant lodged claim for Rs.1,51,682/- expenses incurred; for reimbursement of hospitalization and other expenses. Due formalities were completed by the complainant, while submitting the above claim to OP. The OP unilaterally and arbitrarily repudiated the insurance claim of the complainant, vide letter dated 13.04.2015 regarding reimbursement of amount of Rs.1,51,682/- on the ground that claim was not payable as per exclusion clause 4.8 of the insurance policy, as the disease was caused by misuse/abuse of alcohol. Exclusion clause 4.8 of the policy was never communicated to the complainant by OP. The repudiation of the insurance claim by OP is, thus, erroneous. The complainant has, thus, filed complaint against OP praying that OP be directed to pay claim of Rs.1,51,682/- for expenses incurred on the treatment of co-insured Manish Mahindru. The complainant also prayed for interest @ 12% p.a. on the claim amount of Rs.1,51,682/- from the date of lodging the claim till date of payment. The complainant also prayed for compensation of Rs.50,000/- as punitive damages and Rs.20,000/- as costs of litigation.
3. Upon notice, OP appeared and filed written reply by raising preliminary objections that complaint is not maintainable against OP. Any deficiency in service or unfair trade practice on the part of OP was vehemently denied in the written reply. It was further averred that complainant has not come to the forum with clean hands and also concealed the material facts. The repudiation of the insurance claim of the complainant on 13.04.2015 was averred to be correct, as per exclusion clause 4.8 of the policy. The complaint has been filed on wrong and incorrect facts by the complainant. The Consumer Forum has no jurisdiction to try the complaint. On merits, there is no specific denial by OP regarding obtaining medi-care policy by the complainant. OP averred that the plea of the complainant is that policy terms and conditions were not issued is totally wrong. The OP rightly repudiated the claim of the complainant under exclusion clause 4.8 of the terms and conditions of the policy. OP prayed for dismissal of the complaint.
4. The complainant tendered in evidence her affidavit Ex.C-A, additional affidavit Ex.C-B along with copies of documents Ex.C-1 to Ex.C-3. As against it; OP tendered in evidence affidavit of Gurmeet Singh Manager United India Insurance Company Ltd Ex.R-1 along with copies of documents Ex.R-2 to Ex.R-5. On conclusion of evidence and arguments, the District Forum Jalandhar accepted the complaint of the complainant by virtue of order dated 22.01.2016. Dissatisfied with the order of the District Forum Jalandhar dated 22.01.2016, the opposite party now appellant, carried this appeal against the same.
5. We have heard learned counsel for parties at considerable length and have also examined the record of the case.
6. Affidavit of Sangeeta Mahindru is Ex.C-A on the record reiterating her averments on oath, as pleaded in the complaint. Her additional affidavit is Ex.C-B on the record stating that complainant is the beneficiary in this case and has right to get the claim amount. The OP has repudiated her claim erroneously. Ex.C-1 is the document addressed to Raksha TPA Pvt. Ltd showing the expenses incurred by the complainant on the treatment of deceased. It is recorded in it that patient was admitted to Sacred Heart Hospital on 11.11.2014 due to watery loose stools and referred to DMC Hospital Ludhiana on 12.11.2014, where he expired on 16.11.2014. This letter was sent by the complainant to Raksha TPA Pvt. Ltd of OP. Ex.C-2 is letter sent to Manish Mahindru by OP to the effect that claim is not payable, as per exclusion clause 4.8 of the policy to the effect that alcohol use and self- intentional injury by poisoning are not admissible. Ex.C-3 is statement of account of Manish Mahindru.
7. To counter this evidence of complainant, OP tendered in evidence affidavit of Gurmeet Singh Manager United India Insurance Co. Ltd Divisional Office-II Jalandhar Ex.R-1. He admitted the fact of obtaining medi-care insurance policy no. 2005002814P105121480 by the complainant, which was operative from 07.10.2014 to 06.10.2015 and copy of the same is Ex.R-2. This witness has testified that the insurance policy with terms and conditions was issued to the complainant. This witness has deposed that the insurance claim of the complainant was repudiated under exclusion clause 4.8 of the policy. Self-intentional injury and use of intoxicants alcohol of the insurance policy is not payable. Letter of repudiation is Ex.R-3. We have examined the policy document Ex.R-2 on the record. Manish Mahindru deceased was also insured in this case. Even otherwise, complainant being his widow is beneficiary of the policy as his legal representative and as such, complaint by her is competent. Clause 4.8 of the terms and conditions of Ex.R-2 is reproduced as under :-
"Convalescence, general debility: run-down condition or rest cure, obesity treatment, congenital external disease or defects or anomalies, Sterility, Venereal disease, intentional self-injury and use of intoxication drugs/alcohol."
The repudiation letter is Ex.C-3. Gurmeet Singh Manager United India Insurance Co. Ltd tendered his supplementary affidavit Ex.R-4 that TPA Pvt. Ltd is claim-settling agency for mediclaims. The letter in this regard is Ex.R-5, which was issued by Raksha TPA Pvt. Ltd to OP for inadmissibility of the claim. The complainant tendered in additional evidence report of chemical examiner Ex.R-1/1. OP now appellant tendered in rebuttal evidence to additional evidence in the appeal, copy of death summary Ex.A-X of DMC Ludhiana dated 16.11.2014 and closed the evidence. We are concerned with this fact in this case, as to whether the claim of Manish Mahindru is admissible or not under exclusion clause 4.8 of the policy. The complainant stated that the terms and conditions of the policy were not supplied to her and this fact has been discounted by OP on the record. Generally, such pleas are taken by the people despite receipt of policy. There is no substance on the record to the effect that policy's terms and conditions were not supplied; as OP has stated to the contrary. Now, we touch this point, as to whether Manish Mahindru died due to use of intoxicants drugs/alcohol. Reliance of the OP is on the death summary issued by DMC Hospital Ludhiana vide Ex.A-X. We have perused document Ex.A-X, the death summary issued by DMC College & Hospital dated 16.11.2014. The diagnosis is chronic alcoholic, fatty liver, ascitis, OPC (Organophosphorus chemical) poisoning, Ards shock, respiratory failure. As per death summary, patient is chronic alcoholic and is case of OPC Poisoning. The illness/disease which subsequently caused death of the patient by AC GE, Shock and Cardiac Arrest is due to Alcohol consumption and due to poisoning with Organophosphorus chemical. The argument of OP now appellant is that as per Clause 4.8 of the policy, alcoholic use and self intentional injury by poisoning, chronic alcoholic, fatty liver, ascitis, OPC (Organophosphorus chemical) poisoning ARDS and respiratory failure were discovered in the deceased, which are inadmissible under exclusion clause of the policy. The complainant now respondent in this appeal tendered additional evidence in appeal. Chemical examiner report Ex.R-1/1 on the record to the effect that no poison was detected in the viscera of Manish Mahindru by Assistant Chemical Examiner to Government of Punjab. The report of Chemical Examiner Ex.R-1/1 is under Section 174 Cr.P.C in DDR No. 5 dated 17.11.2014 of police station Division no.4, Jalandhar. Vide PMR/TLC/31/14/CHJ/2257, it has proved that no poison was detected in the contents of viscera. The reliance of OP now appellant is on the death summary report of DMC Hospital Ludhiana to the effect that patient was suffering from chronic alcoholic, fatty liver, ascitis, OPC (Organophosphorus chemical) poisoning, Ards shock and respiratory failure. As per death summary, patient was chronic alcoholic and was case of OPC Poisoning. The illness/disease which subsequently caused death of the patient by AC GE, Shock and Cardiac Arrest is due to Alcohol consumption and due to poisoning with Organophosphorus chemical. The illness/ disease which subsequently caused death of the patient by AC GE, shock and cardiac arrest is due to alcohol consumption and duet to poisoning with organophosphorus chemical. DMC Ludhiana is the primary medical institute and there is no question of preparing false report by it. Sometime the fact, as to whether person was alcoholic or not cannot be confirmed even in the viscera contents by chemical examiner due to slow use of alcohol. DMC Ludhiana treated the patient, where he remained admitted from 12.11.2014 to 16.11.2014 and found patient to be a chronic alcoholic with fatty liver, ascitis, OPC (Organophosphorus chemical) poisoning, Ards shock and respiratory failure. The death summary report of DMC cannot be given a complete go-by by us. We have to accept this report, which carries weightage. This report has proved that the patient was a chronic alcoholic and fatty liver was indicative of chronic alcoholism in the patient. As per clause 4.8 of the exclusion clause of the policy Ex.R-2; the claim regarding use of intoxicants drugs/alcoholic is not admissible. By relying upon the death summary report of DMC Ludhiana, where patient remained admitted for some days, we hold that it is proved fact on the record that the deceased was alcoholic. The claim is, thus, inadmissible in exclusion clause 4.8 of the policy Ex.R-2. The mere submission of the respondent of this appeal is that deceased should have been properly examined by the OP before issuing the policy carries no weightage. Fatty liver could not develop overnight, it develops over a period of time.
8. In view of our discussion, as recorded above, we hold that the claim is inadmissible under exclusion clause 4.8 of the insurance policy. The order passed by District Forum Ludhiana to the contrary is not sustainable. As per settled law, the terms and conditions of the insurance contract are strictly binding on the parties. They cannot back out of the same. Judgment relied upon by District Forum in New India Assurance Company Limited versus Smt. Usha Yadav & others, reported in 2008(3) RCR (Civil) Page 111 would not be applicable in this case. This case is based on the contractual terms between the parties and use of alcohol makes it inadmissible in exclusion clause 4.8 of the terms and conditions of the policy. Consequently, we are strictly bound by the terms and conditions of the contract of insurance by the parties and they have to be strictly interpreted by us.
9. As a result of our above discussion, we accept the appeal of the appellant and set aside the order of the District Forum Jalandhar dated 22.01.2016 and resultantly dismiss the complaint of the complainant by accepting this appeal.
10. The appellant no.1 had deposited an amount of Rs.25,000/- in this Commission at the time of filing the appeal and further deposited an amount of Rs.1,02,596/- in compliance with order of this Commission. Both these amounts with interest, if any, accrued thereon, be refunded by the registry to the appellant no.1 by way of crossed cheque/demand draft after 45 days from receipt of copy of this order.
11. Arguments in this appeal were heard on 05.05.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
12. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER May 8, 2017 (ravi)