State Consumer Disputes Redressal Commission
National Insurance Co. Ltd. vs Smt. Renu Singh on 29 April, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/354/2013 (Arisen out of Order Dated 14/02/2013 in Case No. Complaint Case No. CC/104/2011 of District Kolkata-I) 1. National Insurance Co. Ltd. 3, Middleton Street, P.O. -9229, P.S.- Park Street, Kolkata - 71. ...........Appellant(s) Versus 1. Smt. Renu Singh 49/5, H/140, Karimarx Sarani, Kolkata - 23. 2. M/S Heritage Health TPA Pvt. Ltd. Nicco House, 5th Floor, 2, Hare Street, P.S. - Hare Street, Kolkata - 1. ...........Respondent(s) BEFORE: HON'BLE MR. DEBASIS BHATTACHARYA PRESIDING MEMBER HON'BLE MR. JAGANNATH BAG MEMBER For the Appellant: Mr. S. N. Ganguly, Advocate For the Respondent: Mr. Dinesh Chandra Singh., Advocate ORDER 29.04.2015 JAGANNATH BAG, MEMBER
The present appeal is directed against the Order dated 14.02.2013 passed by the Ld. District Consumer Disputes Redressal Forum, Unit I, Kolkata , in CDF/Unit-1/Case No. 104/2011 , whereby the complaint has been allowed on contest against OP No.1 with cost and exparte against OP No. 2 without costs.
The complaint case, in brief , was as follows:
The Complainant had obtained a Mediclaim Policy for all family members from the OP i.e,. National Insurance Company Ltd. covering a sum assured of Rs. 1,00,000/- . The policy was valid from 12.03.2009 to 11.05.2010 and then renewed mutatis mutandis for the period from 12.03.2010 to 11.03.2011. On 30.12.2010, the Complainant had excessive bleeding and pain in the lower abdomen. She visited Dr. Tirtha Mukherjee who advised for urgent admission for further investigation. The Complainant was admitted in Arogya Maternity and Nursing Home on 31.12.2010 . After several tests , the nursing home diagnosed bulky uterus and bulky ovaries with small cysts and appendicitis. Dr. Debcharan Ghosh and Dr. Tirtha Mukherjee conducted laparoscopic operation on 03.01.2011 for removal of the cyst and operation of appendicitis. She was discharged on 06.01.2011. A claim form was submitted on 17.01.2011 for a total sum of Rs. 42,340/- under the Hospitalization Benefit Policy. The Heritage Health TPA Pvt Ltd. repudiated the claim saying that the said disease is excluded in the first two years of the Insurance Policy as per Clause 4.3. of the Mediclaim Policy. A legal notice was served upon the OPs, but to no effect. Hence, the complaint was filed before the Ld. Forum below.
OP No.1 contested the complaint by filing W.V. and denying all material allegations . It has been contended inter alia that the diseases and ailments for which the claim has been submitted are not admissible for reimbursement as per policy terms. The claim was repudiated accordingly. OP No.2 did not contest the case .
Ld. Forum below after having gone through the pleadings of the parties, evidence and documents in particular observed that the Complainant's Mediclaim Policy was valid on the date of hospitalization and further observed that mere breach of policy condition can not be a ground of repudiation of any bonafide claim of a claimant Complainant as held by the Hon'ble Supreme Court as reported in CTJ May 2010 Volume 5 Page 66. Ld. Forum below having perused the entire material on record took the view that the OP had deficiency in service and the Complainant was entitled to the relief . The complaint case was allowed with cost of Rs. 10,000/- against OP No.1 and ex parte without cost against OP No.2. OP No.1 was directed to pay a sum of Rs. 42,340/- with interest @ 18% p.a. from the date of repudiation of the claim till the liquidation of the same. A litigation cost of Rs. 5,000/- was also awarded and ordered to be paid within 45 days from the date of communication of the order , in default whereof , an interest @ 10 % shall accrue over the entire sum due to the credit of the Complainant till full realization.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below , the Appellant has come up before this Commission with a prayer for setting aside the impugned order.
Ld. Advocate appearing for the Appellant submitted that every insurance policy is guided by specific terms and conditions which are binding upon parties to the insurance contract. In the present case , there is a specific Exclusion Clause i.e., No. 4.3 which categorically states, inter alia, that polycystic ovarian diseases are not covered for the first two years of inception of the policy. The Ld. Forum below ignored the said Exclusion Clause 4.3 and has virtually rewritten, rescheduled and deprecated the terms , conditions etc. of the subject policy. The policy commenced on and from 12.03.2009 and the cause of action of the claim arose on 31.12.2010 when the insured was admitted for treatment in as much as for operation which is within the period of two years' waiting period. As such, the claim did not qualify for payment . The purport and scope of judgment as reported in CTJ May 2010 Volume 18 , page 66 has to be differentiated and distinguished from the factual aspects and legal issues as contained in the instant case and as such, has no binding effect on the present case. The impugned order is bad on facts and law and therefore deserves to be and should be set aside.
Ld. Advocate for the Respondent No.1 remained absent on the date of hearing and none was present on behalf of the said Respondent .
The point for consideration before us is whether the impugned order requires any interference for legal infirmity or material irregularity or jurisdictional error.
Decision with Reasons We have gone through the memorandum of appeal together with copies of the impugned order, the petition of complaint , the W.V. submitted by the OP Insurance Company before the Ld. Forum below , the affidavit-in-chief filed by the OP Insurance Company, the policy papers containing the Exclusion Clauses and the medical prescriptions and discharge summary by the nursing home and the letter of repudiation dated 31.01.2011 issued by the Heritage Health TPA Pvt.Ltd.
There is no dispute that the Complainant had obtained a Mediclaim Insurance Policy ( Hospitalization Benefit) which was valid from 12.03.2009 to 11.05.2010 and thereafter the policy was renewed for the period 12.03.2010 to 11.03.2011.
As per policy condition 4.3 , the claim of the Complainant has been repudiated . As provided under the said policy condition. polycystic ovarian diseases are not to be entertained against the policy for first two years of operation of the policy. It is another aspect, as stated in paragraph 9 of the complaint petition, that the said policy is on the verge of its completion of two years. Though, the Complainant tried to convince that in case of the disease for which she underwent operation, the locking period is of one year only instead of two years and she completed the said locking period of one year in and around 12.03.2010 , such averment has not been given any consideration by the Ld. Forum below for obvious reason that the locking period in respect of the disease in question is actually for two years from the inception of the policy.
The OP No.1 in their W.V. pointed out that the alleged treatment of the Complainant was done during the second year of the policy of insurance. There is no denying the fact that the treatment of the Complainant of her polycystic ovarian disease took place before completion of the excluded period of two years. In the said situation , the Insurance Company , as bound by terms and conditions of the policy, can not allow the insurance claim. Ld. Forum below appears to have awarded the relief beyond the policy terms and conditions. In referring to the order of the Hon'ble National Consumer Disputes Redressal Commission as reported in 2013 (I) CPR 378 (NC) , Ld. Advocate appearing for the Appellant emphasized that terms and conditions of Insurance Policy have to be construed strictly and if there is any violation of it, party can not claim any relief. Further, the judgment of the Hon'ble Supreme Court as reported in 2013 (2) CPR 315 (SC) as also cited shows that the insured can not claim anything more than what is covered by the insurance policy. In the present case , it is found that as per policy condition , the operation of polycystic ovarian disease has been excluded for two years from the inception of the policy in unambiguous terms. The terms and conditions not being fulfilled by the insured , the question of breach of terms as pointed out by the Ld. Forum below in their impugned order in reference to the judgment of the Hon'ble Supreme Court does not appear to be applicable. We are of the considered view that the appeal has sufficient merit to be reckoned . The appeal succeeds, as the impugned order suffers from material irregularity and jurisdictional error. Hence, Ordered that the appeal be and the same is allowed exparte as the Respondent preferred to stay away from contest. The impugned order is set aside. As a result, the complaint stands dismissed. There shall be no order as to costs. [HON'BLE MR. DEBASIS BHATTACHARYA] PRESIDING MEMBER [HON'BLE MR. JAGANNATH BAG] MEMBER