State Consumer Disputes Redressal Commission
Shanti Kumar Jain vs Oriental Insurance Company Ltd. on 24 November, 2015
2nd Additional Bench
PUNJAB STATE CONSUMER DISPUTES REDRESSAL
COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 377 of 2015
Date of institution: 09.04.2015
Date of decision : 24.11.2015
Shanti Kumar Jain aged 79 years S/o Late Sh. Udhay Chand Jain,
R/o H.No. 101, Street No. 2, Partap Colony, Samana, District Patiala
.
.....Appellant/complainant
Versus
The Oriental Insurance Company Limited, Divisional Office, Sai
Market, Lower Mall, Patiala
..Respondent/OP
First Appeal against the order dated
23.02.2015 passed by the District
Consumer Disputes Redressal Forum,
Patiala.
Before:-
Sh. Gurcharan Singh Saran, Presiding Judicial Member
Sh. Jasbir Singh Gill, Member Present:-
For the appellant : Sh. S.K. Jain, Advocate
For the respondent : Sh. J.P. Nahar, Advocate
GURCHARAN SINGH SARAN (PRESIDING JUDICIAL MEMBER) This appeal has been preferred by appellant/complainant (hereinafter referred as 'complainant') under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the 'Act') against the order dated 23.02.2015 in C.C. No. 289 of 16.10.2014 passed by the learned District Consumer Disputes Redressal Forum, Patiala (in short the 'District Forum') vide which the complaint filed by the complainant was dismissed.
First Appeal No. 377 of 2015 2
2. Complaint was filed by the complainant against respondent/opposite party (hereinafter referred as 'OP') on the averments that OP floated the insurance plan i.e. oriental bank mediclaim for the account holders/employees of Oriental bank of commerce. Accordingly, complainant alongwith his wife purchased mediclaim policy from OP No. 2 on payment of premium of Rs. 6830/- and policy No. 233500/48/2013/1782 was issued by OP for the period from 08.01.2013 to 07.01.2014 for sum assured of Rs. 5 lac. Unfortunately Smt. Swaran Kanta Jain, wife of the complainant, fell down accidently on 19.11.2013 at her residential house. She consulted Dr. P.C. Gupta MS (Orthopaedic) Ex. CMO, Prem Hospital, Patiala on 22.11.2013 who advised traction for one month. She again visited on 12.01.2014 and she was advised some prescription. She again visited on 07.02.2014 regarding pain in knees due to which she was unable to walk. She was taken to Max Super Specialty Hospital, Mohali, where Dr. Manuj Wadhwa MS (Ortho), specialist of bone and joint had diagnosed that "patient H/O fall six months back at home sustaining injuries on B/1 knees and pelvis. It was associated with stiffness. It was aggravated by standing for longer duration, exertion and relived by medicines, rest. Patient complained of difficulty in walking and was bed ridden for the last six months. Doctor suggested for knee replacement and total expenditure of Rs. 3,97,316/- was paid. The complainant lodged the claim with OP alongwith all the relevant documents. However, OP repudiated the claim of the complainant on flimsy ground that it is not payable according to the terms and condition of the policy. The complainant then immediately approached OP No. 1 and wrote a letter dated First Appeal No. 377 of 2015 3 01.07.2014 to look into the matter to settle the claim. OP No. 1 had repudiated the claim under clause 4.2 which was not applicable as it did not exclude the replacement of knee joints due to accident. Repudiation of genuine claim of the complainant by OP No. 1 amounted to deficiency in service on their part. Hence the complaint was filed with directions to OPs to pay the claim of Rs. 3,97,316/- to the complainant, Rs. 5,00,000/- as compensation for causing mental agony and harassment and Rs. 22,000/- as litigation expenses.
3. The complaint was contested by OP No. 1 only as notice was issued to OP No. 1 only, who filed their written version taking the preliminary objections that the complaint was not maintainable and that the complainant had no cause of action to file the complaint. On merits, issuance of the policy No. 233500/48/2013/1782 in favour of the complainant including his wife for the period from 08.01.2013 to 07.01.2014 and insurance policy No. 233500/48/2013/1754 for the period from 07.01.2014 to 06.01.2015 was admitted. It was denied that the complainant had been taking the policies for the last 15 years. First policy was issued for the period from 03.01.2012 to 02.01.2013 and before that no policy was issued in favour of the complainant. Policy was subject to terms and conditions. The claim of the complainant was repudiated vide letter dated 29.08.2014 on the ground that treatment of advance osteoarthritis B/L knee with varus deformity was not covered according to clause No. 4.2 of the terms and conditions of the policy for a specified period of 3 years, whereas policy was in the 2nd year, therefore, the claim was not payable. It was correctly repudiated by this OP, therefore, there was First Appeal No. 377 of 2015 4 no deficiency in service on the part of this OP. It was submitted that the complaint was without merit and it be dismissed.
4. Before the District Forum, parties adduced evidence in support of their contentions. Complainant tendered into evidence policy schedule Ex. C-1, endorsement Ex. C-2, Prescription slip Ex. C-3. Diagnosis Ex. C-5, claim form Ex. C-5, Ex. C-6 settlement letter dated 30.05.2014, Ex. C-7 letter dated 01.07.2014, Ex. C-8 letter dated 05.06.2014, Ex. C-9 prospectus, Ex. C-10 policy, affidavit of the complainant Ex. C-11 to Ex. C-24 various policies, Ex. C-25 to Ex. C- 28 copies of emails Ex. C-29 and Ex. C-30 letter dated 05.06.2014 and closed the evidence. On the other hand OP tendered into evidence Ex. OPA affidavit of Sh. A.S. Dhingra, Dr. Division Manager, policy cover note Ex. OP-1, policy from 03.01.2012 to 02.01.2013 Ex. OP-2, Mediclaim policy from 08.01.2013 to 07.01.2014 Ex. OP-3, policy from 08.01.2013 to 07.01.2014 Ex. OP-4, policy from 08.01.2014 to 07.01.2015 Ex. OP-5, endorsement schedule Ex. OP- 6, prospectus Ex. OP-7 and closed the evidence.
5. After going through the allegations as alleged in the complaint, written reply filed by OPs, evidence and documents on the record, the learned District Forum dismissed the complaint.
6. Aggrieved with the order, the appellant/complainant has filed this appeal.
7. We have heard the learned counsel for the parties and have carefully gone through the record of the District Forum.
8. In the grounds of appeal, it has been contended by the counsel for the appellant/complainant that exclusion clause 4.1 and 4.2 are not applicable to the facts and circumstances of the claim of the First Appeal No. 377 of 2015 5 complainant. The policy taken by the complainant from National Insurance Company was not appreciated, therefore, it was wrongly held by the District Forum that period of three year was not completed. Even otherwise, exclusion clause 4.2 was not applicable because the knee replacement was due to fall which was not excluded under clause 4.2 of the policy. Whereas counsel for the respondent/OP has argued that only the policy of this insurance company is to be taken into consideration and complainant had taken policy from this OP for the first time in the year 2012 valid for the period from 03.1.2012 to 02.01.2013, then 2013-14 and after that 2014-2015 and in case that date is taken, the treatment taken by the wife of the complainant on 20.05.2014 which does not complete three years. Clause 4.2 specify the period after which specific treatment was to be covered. The claim of the complainant was examined according to these terms and conditions. Since policy had not covered three years period, therefore, the claim was rightly repudiated by this OP.
9. We have considered the contentions as raised by counsel for the parties. Ex. C-9 is the prospectus of policy and salient features of the policy revealed that group mediclaim policy will be available to an account holder/employee of Oriental Bank of Commerce. Therefore, in case, before taking the policy from OP, the complainant had taken another policy from National Insurance Company that will not extend the period. Otherwise, the documents submitted by the complainant on the record are Ex. C-1 present policy, Ex. C-2 is the endorsement of rules, Ex. C-3 is the prescription given by Prem Hospital, Ex. C-4 is the summary of treatment taken in Max Hospital, Ex. C-5 claim form, First Appeal No. 377 of 2015 6 Ex. C-6 is another letter vide which claim form and other documents were sent to OPs. Ex. C-7 letter from OP No. 2 in which it has been mentioned that claim of Rs. 53,316/- and not Rs. 94,316/-, Ex. C-8 repudiation letter, Ex. C-9 prospectus of the policy, Ex. C-10 is the policy schedule issued by OPs for the period from 8.1.2014 to 07.01.2015, Ex. C-11 is the mediclaim schedule of the policy for the period from 03.01.2012 to 02.01.2013, Ex. C-12 policy schedule for the period from 08.01.2013 to 07.01.2014, Ex. C-13 is the endorsement of the policy for the period from 03.01.2013 to 02.01.2014, Ex. C-14 is the policy schedule for the period from 08.01.2014 to 07.01.2015, Ex. C-15 is the endorsement of the said policy, Ex. C-16 is the policy schedule from 08.01.2015 to 07.01.2016, Ex. C-17 is the policy issued by National Insurance Company for the period from 16.02.2012 to 15.02.2013, Ex. C-18 is the policy issued by National Insurance Company for the period from 16.02.2011 to 15.02.2012, Ex. C-19 is the policy issued by National Insurance Company for the period from 16.02.2010 to 15.02.2011, Ex. C-20 is the policy issued by National Insurance Company for the period from 16.02.2009 to 15.02.2010, Ex. C-21 is the policy issued by National Insurance Company for the period from 16.02.2008 to 15.02.2009, Ex. C-22 is the policy issued by National Insurance Company for the period from 16.02.2007 to 15.02.2008, Ex. C-23 is the policy issued by National Insurance Company for the period from 16.02.2006 to 15.02.2007,Ex. C-24 is the policy issued by National Insurance Company for the period from 16.02.2005 to 15.02.2006. Polices from National Insurance Company proved that the complainant was having mediclaim policies from National Insurance First Appeal No. 377 of 2015 7 Company since 2005 to 2012 but keeping in view of features of the policy issued by OP that it was only for the account holders Oriental Bank of Commerce, whereas the policy issued by National Insurance Company was not specifically to the account holders of Oriental Bank of Commerce. Therefore, in case, the policy issued by OP was a different policy, then the policy taken by the complainant prior to getting the policy from OP cannot be considered in continuation to the policy taken from OP. It is now a well settled law that Consumer Foras are to interpret the policy according to the terms and conditions of the policy and they cannot travel beyond the terms and condition of the policy. The claim of the complainant was repudiated under clause 4.1 & 4.2 of the policy which reads as under:-
4.1 - Pre-existing health condition or disease or ailment/injuries: Any ailment/disease/injuries/health condition which are pre-existing (treated/untreated, Declared/not declared in the proposal form) when the cover incepts for the first time are excluded up to three completed) years of this policy being in force continuously. For the purpose of applying this condition, the date of inception of this Mediclaim Policy taken from The Oriental Insurance Company shall be considered, provided the renewals have been continuous and without any break in period.
4.2 - The expenses on treatment of following ailment/diseases/surgeries for the specified periods are not payable if contracted and/or manifested during the currency of the policy. If these diseases are pre-existing at the time of the First Appeal No. 377 of 2015 8 proposal the exclusion no 4.1 pre-existing condition SHALL be applicable in such cases.
I Benign ENT disorders and surgeries i.e. Tonsillectomy, 1 year Adenoidectomy, Mastoidectomy, Tympanoplasty etc. II Polycystic ovarian diseases 1 year III Surgery of hernia 2 years IV Surgery of hydrocele 2 years V Non infective Arthritis 2 years VI Undescendent Testes 2 years VII Cataract 2 years VIII Surgery of benign prostatic hypertrophy 2 years IX Hysterectomy for menorrhagia or fibromyoma or 2 years myomectomy or prolapsed or uterus X Fissure/Fistula in anus 2 years XI Piles 2 years XII Sinusitis and related disorders 2 years XIII Surgery or gallbladder and bile duct excluding malignancy. 2 years XIV Surgery of genitor-urinary system excluding malignancy. 2 years XV Pilonidal Sinus 2 years XVI Gout and Rheumatism 2 years XVII Hypertension 2 years XVIII Diabetes. 2 years XIX Calculus diseases 2 years XX Surgery for prolapsed inter vertebral disk unless arising from 2 years accident.
XXI Surgery of varicose veins and varicose ulcers. 2 years XXII Joint Replacement due to Degenerative condition 3 years XXIII Age related osteoarthritis and Osteoporosis 3 years. First Appeal No. 377 of 2015 9
If the continuity of the renewal is not maintained with the Company then subsequent cover SHALL be treated as fresh policy and Clauses 4.1, 4.2 SHALL apply unless agreed by the Company and suitable endorsement passed on the policy. Similarly, if the sum insured is enhanced subsequent to the inception of the policy, the exclusions 4.1 and 4.2 will apply fresh for the enhanced portion of the sum insured for the purpose of this section."
10. In case we go through this clause, it speaks that for specific disease/ailment, there is a cap of period after which claim will be payable if contracted and/or manifested during the currency of the policy and for joint replacement due to degenerative condition, the cap is three years. Whereas counsel for the complainant has argued that joint replacement to the wife of the complainant was not due to degenerative condition but due to accident. Now it is to be checked what is the evidence of the complainant on the basis of which he alleges that joint replacement of his wife was due to accident and not due to degenerative condition. It is pertinent to mention here that age of wife of the complainant at the time taking the policy was 77 years. It has also been referred in the prescription slip of Prem Hospital (Ex. C-3), It is this hospital which was contacted by wife of the complainant after she fell down accidently and some prescriptions/medicines were given to wife of the complainant. There is no X-ray, C.T. Scan or MRI placed on the record showing any type of fracture in the knee of the wife of the complainant. The complainant has mainly relied upon the history given by MAX hospital in their discharge report Ex C-4 which reads as under:- First Appeal No. 377 of 2015 10
Brief History/HOPI Patient H/O fall 6 months back at home sustaining injury on b/1 knees and pelvis. Since then she is complaining of bilateral knee pain. It is chronic in onset and progressive in nature. Pain is diffused, aching in nature and present throughout. It is associated with stiffness. It is aggravated by standing for longer duration, exertion and relieved by medicine, rest. Patient complains of difficulty in walking and was bedridden since 6 months.
11. This history has referred the problem which the complainant had complained due to fall about six months back but it is not the cause for joint replacement. In the diagnosis, it has been referred as under:-
Diagnosis ADVANCED OSTEOARTHIRITIS B/L KNEES VARUS DEFORMITY POST CABG B/L TKR WITH PATELLA (CR150 DEPUY J&J) ON 20/5/14 It makes clear that it was due to deformity post CABG.
12. Therefore, there is nothing on the record to say that knee replacement was required due to minor accident in which the wife of the complainant had fallen down. As per the observation made by Max Hospital, it was due to deformity and his claim is duly covered under clause 4.2 where the cap is for three years. Therefore, counsel for the complainant has not been able to prove on record that joint First Appeal No. 377 of 2015 11 replacement was due to some minor accident and not due to degenerative condition.
13. First policy was from 03.01.2012 to 02.01.2013 whereas second policy was from 08.01.2013 to 07.01.2014, therefore, continuation is not there. However, continuation of the policy is necessary, otherwise, it will be treated as a fresh policy. There was no request from the complainant to review the policy w.e.f. 03.01.2013, in case, there is a gap, then this policy will be considered as a fresh policy. Even otherwise it does not complete 3 years as per clause 4.2 of policy terms and conditions.
14. These facts were properly appreciated by the District Forum. The claim of the wife of the complainant was not payable for three years from the date of inception of the policy and when wife of the complainant took the treatment, the period of three years was not completed. Therefore, the claim was rightly repudiated by OP No. 1. The findings so recorded by the District Forum are correct which do not call for any interference and the same are hereby affirmed.
15. In view of the above discussion, we do not see any merit in the appeal, and the same is hereby dismissed.
16. The arguments in this appeal were heard on 10.11.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (JASBIR SINGH GILL) MEMBER November 24, 2015.
Rupinder First Appeal No. 377 of 2015 12