State Consumer Disputes Redressal Commission
The National Insurance Company Ltd vs Mangat Ram Chawla Son Of Shri Roshan Lal ... on 21 October, 2010
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
S.C.O. NO. 3009-10, SECTOR 22-D, CHANDIGARH.
First Appeal No.565 of 2005
Date of institution : 19.4.2005
Date of decision : 21.10.2010
The National Insurance Company Ltd. through Shri R.K. Chawla, Assistant
Manager, Regional Office, Punjab Region, SCO No.332-334, Sector 34,
Chandigarh.
.......Appellants
Versus
Mangat Ram Chawla son of Shri Roshan Lal Chawla, resident of House No.883,
St. No.1, Dashmesh Nagar, Muktsar.
......Respondent
First Appeal against the order dated 10.3.2005 of
the District Consumer Disputes Redressal Forum,
Muktsar.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mrs. Amarpreet Sharma, Member.
Mr. B.S. Sekhon, Member.
Present :-
For the appellants : Shri V. Ram Swaroop, Advocate. For the respondents : Shri Randeep Singh Virk, Advocate for Shri R.K. Girdhar, Advocate.
JUSTICE S.N. AGGARWAL, PRESIDENT:
The respondent had taken the medi-claim policy from the appellants for an amount of Rs.1,00,000/- on 26.2.2002.
2. It was further pleaded that the respondent fell ill on 21.3.2002 as he had pain in the chest. He consulted Dr. Madan Mohan Bansal in Sri Guru Nanak Hospital, Muktsar. The respondent was referred to Indraprashta Apollo Hospital, New Delhi (in short "Apollo Hospital") for complete evaluation and First Appeal No.565 of 2005. 2 treatment. The respondent was admitted in Apollo Hospital on 25.3.2002. He was operated for open heart surgery and for replacement of the Aortic Valve (AVR). It was conducted by Dr. B.N. Dass on 27.3.2002. The respondent was discharged on 3.4.2002. He had spent an amount of Rs.1,94,691/-.
3. It was further pleaded that the insurance claim was lodged with the appellants. It was repudiated. Hence the complaint for insurance claim. Compensation, interest and costs were also prayed.
4. The appellants filed the written reply. It was admitted that the respondent had taken the medi-claim policy for Rs.1,00,000/- from the appellants for the period from 28.2.2002 to 27.2.2003. However one of the terms and conditions of the medi-claim policy was that any expenses on hospitalization/domiciliary hospitalization incurred during the first thirty days from the commencement of the medi-claim policy was not payable except in the case of injury arising out of accident.
5. It was also admitted that the insurance claim was lodged with the appellants. It was repudiated under the terms and conditions of the medi-claim policy vide letter dated 24.2.2003. It was denied if there was any deficiency in service on the part of the appellants. Dismissal of the complaint was prayed.
6. The respondent filed his affidavit Ex.C-1. He also proved documents Ex.C-2 to Ex.C-17.
7. On the other hand, the appellants filed the affidavit of Manmohan Singh Kalsi, Divisional Manager as Ex.R-1. The appellants also proved documents Ex.R-2 to Ex.R-3 and Ex.RX.
8. Learned District Forum accepted the complaint vide impugned order dated 10.3.2005 with compensation amount of Rs.5,000/-. The appellants were directed to make the payment of Rs.1,00,000/- with interest at the rate of 9% per annum with effect from 1.5.2002.
9. Hence the appeal.
First Appeal No.565 of 2005. 3
10. The submission of the learned counsel for the appellants was that the appeal be accepted and the impugned judgment dated 10.3.2005 be set aside.
11. On the other hand, the submission of the learned counsel for the respondent was that there was no merit in the present appeal and the same be dismissed.
12. Record has been perused. Submissions have been considered.
13. Admittedly the respondent had taken the medi-claim policy (Ex.C-15) from the appellants for an amount of Rs.1,00,000/- for the period from 28.2.2002 to 27.2.2003. The insurance policy has also been proved as Ex.R-2.
14. The bills have been proved from Ex.C-4 to Ex.C-14. These documents reveal that the respondent was admitted in Apollo Hospital on 25.3.2002 and he was discharged on 3.4.2002. It also proved that the respondent had incurred an expenditure to the tune of Rs.1,94,691/-.
15. So far as the terms and conditions of the insurance policy are concerned the appellants have not led any evidence to prove if these terms and conditions were communicated to the respondent nor these terms and conditions bear the signatures of the respondent.
16. The law has been settled by the Hon'ble Supreme Court in a number of judgments that when the Insurance Companies want to apply the Exclusion Clause to deny the insurance claim, they have to prove that the Exclusionary Clause was duly communicated to the insured and it was duly signed by him. Reference can be made to the judgement of Hon'ble Supreme Court reported as "M/s Modern Insulators Ltd. v. Oriental Insurance Co. Ltd". I(2000) CPJ 1(SC) in which it was held as under:-
9. In view of the above settled position of law we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of standard policy wherein the First Appeal No.565 of 2005. 4 exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, respondent cannot claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law."
17. Similar point had come up for consideration before this Commission in the judgment dated 28.4.2010 passed in First Appeal No.450 of 2004 "New India Assurance Company Ltd. v. Bahadur Singh" in which it was held by this Commission as under:-
"29. Moreover, the appellants have not proved if the terms and conditions including Clause 4 and 4.2 were a part of the insurance policy which was given by the appellants to the respondent nor it has been proved if this condition was duly signed by the respondent or if it was read over and explained to the respondent. Therefore, the appellants have no right to repudiate the insurance claim. Therefore, the respondent is entitled to the mediclaim benefits admissible under the policy.
18. Since there is no evidence if clauses 4.0, 4.1, 4.2 and 4.3 of the insurance policy on which reliance is placed by the learned counsel for the appellants were communicated to the respondent, therefore these clauses would not be binding upon the respondent.
19. The submission of the learned counsel for the appellants was that the insured is not entitled to medi-claim insurance benefit if he takes medical treatment within 30 days from taking the insurance policy.
20. Similar contention was considered by this Commission in Bahadur Singh's case (supra) and it was held as under:-
First Appeal No.565 of 2005. 5
"27. The terms and conditions were formulated by the appellants themselves unilaterally. It appears highly deplorable if the insurance company repudiated the insurance claim on the plea that the disease had visited the insured within 30 days of taking of the insurance policy. The disease is not in the hands of the insured nor the insured had any control over the disease which visited him. At the most, the insured can take the medical treatment for the disease which has come to him but the insured cannot be asked to explain as to why the disease had come to him within 30 days nor he can be denied the benefit of the mediclaim policy only on the ground that the disease had come to him within 30 days of taking of the mediclaim policy.
28. Since the respondent has paid the premium for the mediclaim policy taken by him for the period from 29.3.1995 to 28.3.1996, he is entitled to the medical reimbursement for the treatment he has taken during the entire period, to which, the mediclaim policy pertained. The appellants had taken the premium even for the first 30 days of the insurance policy i.e. from 29.3.1995 till 29.4.1995. Therefore, they cannot deny the benefits of the mediclaim policy which flow to the insured from it."
21. Since the disease is not in the hands of the insured, therefore, the plea that the medi-claim cannot be taken or the medical expenditure cannot be reimbursed First Appeal No.565 of 2005. 6 if the medical treatment is taken within 30 days from the date of medi-claim policy cannot be accepted.
22. The next submission of the learned counsel for the appellants was that the learned District Forum has awarded interest at the rate of 9% per annum which was highly excessive. Reliance was placed on the judgment of Hon'ble Supreme Court reported as "Dharampal & others v. U.P. State Road Transport Corporation" AIR 2008 S.C. 2312 in which it was held that the prevailing Bank rate of interest was 7.5% and the rate of interest should be awarded only at that rate. Hence it was submitted that the rate of interest be reduced from 9% per annum to 7.5% per annum.
23. On the other hand, the submission of the learned counsel for the respondents was that the rate of interest awarded by the learned District Forum is quite legal and valid.
24. Submissions have been considered.
25. We find merit in the submission made by the learned counsel for the appellants. The rate of interest is reduced from 9% per annum to 7.5% per annum.
26. The appeal is accordingly partly accepted inasmuch as the rate of interest has been reduced from 9% per annum to 7.5% per annum. Rest of the impugned order dated 10.3.2005 passed by the learned District Forum is upheld.
27. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 19.4.2005. This amount of Rs.25,000/- with interest accrued thereon, if any, be remitted by the registry to the respondent by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
28. The respondent would not be entitled to interest on the amount of Rs.25,000/- at the awarded rate with effect from the date the appellants had deposited the same in this Commission. Interest on this amount of Rs.25,000/- First Appeal No.565 of 2005. 7 shall be what has accrued on this amount when it remained deposited by this Commission in the Bank.
29. Remaining amount shall be paid by the appellants to the respondent.
30. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
(MRS. AMARPREET SHARMA)
MEMBER
October 21, 2010 (BALDEV SINGH SEKHON)
Bansal MEMBER