State Consumer Disputes Redressal Commission
National Insu. Co. Ltd. vs Akash Gupta & Anr. on 16 December, 2015
Daily Order IN THE STATE COMMISSION: DELHI (Constituted under section 9 of the Consumer Protection Act, 1986) Date of Decision: 26.02.2016 First Appeal-327/2014 National Insurance Co. Ltd., Regional Office 2E/9, Jhandewalan, Delhi-110092. ......Appellant Versus 1.
Akash Gupta (Minor), Through His Father, Mr. Satish Kumar Gupta, R/o C-20, Krishna Bhawan, Sector-52, Noida, Gautam Budh Nagar (U.P.).
2. Vipul Medcorp TPA Pvt. Ltd., Through Its Manager, 515, Udyog Vihar, Phase-5, Gurgaon, Haryana.
.......Respondents CORAM Justice Veena Birbal, President OP Gupta, Member(Judicial)
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
Justice Veena Birbal, President
1. This is an appeal u/s 15 of the Consumer Protection Act, 1986 (in short, 'the Act') wherein challenge is made to order dated 06.08.2013 passed by the Consumer Disputes Redressal Forum, Kashmere Gate, Delhi (in short, 'the District Forum') in complaint case No. 135/2009 whereby the aforesaid complaint has been allowed and appellant/OP has been directed to pay to the respondent/complainant through his father the claimed amount of Rs. 1,40,000/-, Rs. 25,000/- for causing mental agony and harassment, Rs. 5000/- towards litigation expenses.
2. Along with the appeal, there is an application for condonation of delay in filing the appeal. The period of delay has been left blank in the application.
3. It is alleged in the application that the impugned order dated 06.08.2013 was not received by the appellant through post. The appellant came to know about the impugned order only when the notice of execution petition was served upon it. After receiving the same, the appellant/OP applied for the certified copy of the impugned order which was delivered only on 14.03.2014 and immediately thereafter the present appeal was prepared and filed on 29.03.2014. It is alleged that if period of limitation is counted from 14.03.2014, then there is no delay in filing the appeal. However, if the same is counted from the date of impugned order, in that event there is delay. However, appellant/OP has not stated the number of days delay in filing the appeal.
4. The application is strongly opposed by respondent on the ground that nothing has been explained to justify the inordinate delay in filing the appeal. It is stated that appellant has concealed the date as to when the notice of execution petition was served upon it. Nothing has been stated as to when certified copy of impugned order was applied by the appellant/OP. It is further stated that there is a delay of more than 6 months in filing the appeal and appellant has not given any sufficient cause in explaining the delay. It is further stated that application for condonation of delay has been drafted in a casual manner without any regard and respect that any grievances under the Act has to be dealt with summarily. It is submitted that appellant/OP has wrongly stated that it had came to know about the impugned order on receipt of execution notice. It is submitted that application for condonation of delay is liable to be rejected.
5. We have considered the submissions made by the counsel for the parties and perused the material on record.
6. It may be mentioned that in the application for condonation of delay, there are blanks in various paragraphs as regards period of delay in filing the appeal. Even in prayer clause, number of days delay has been left blank. The impugned order is dated 06.08.2013. It is not stated in the application as to when the appellant had received the notice of execution petition. It is also not stated by the appellant as to when the certified copy of the impugned order was applied, as is alleged. The appellant/OP has stated that the certified copy of impugned order was received by it on 14.03.2014. To show its bonafide, appellant ought to have stated in the application as to when the notice of execution petition was received and as to when it had applied for certified copy of the impugned order. Further, it is also not mentioned in the application as to what steps were taken by the appellant/OP to enquire from the District Forum about the disposal of complaint case specifically when much time had elapsed and the appellant/OP did not get the copy of the impugned order. There is no averments made in the application that appellant/OP had taken all possible steps within its power and control and had approached the Commission without any delay. No proper explanation is furnished by appellant/OP in explaining the delay. Keeping in mind the objective of the Act and also considering that the insurance claim pertains to medical expenses of a child, appellant/OP ought to have shown its bonafide in approaching the Commission.
7. In view of the above discussion, we find no ground to condone the delay.
8. In any event, we have also considered the merits of appeal. Perusal of record shows that the father of the respondent/complainant had taken a Mediclaim Insurance Policy from appellant/OP for a total sum of Rs.4,00,000/- for the period from 9.03.2008 to 8.3.2009 for himself and his family members including his minor son i.e. complainant, aged about 12 years. The complainant i.e. minor son of policy holder had developed a condition/disease called Coxa Vari with Gem Varis and was admitted in Max Hospital, Noida on 18.06.2008. The respondent/complainant requested the TPA of OP-1 to issue authorization for cashless facility. It was declined on the ground that pre-existing disease of respondent/complainant could not be ruled out and the case needed detailed evaluation. The respondent/complainant was asked to present the case as reimbursement claim which would be processed subject to terms and conditions of policy. After getting the treatment, the patient was discharged on 21.6.08. Thereupon the hospital bills of Rs.1,46,890/- were submitted with the appellant/OP. However, the claim was repudiated on the ground that it was pertaining to a pre-existing disease and the appellant/OP was not liable to pay under Exclusion Clause 4.1 of the policy.
9. No material was placed on record by the appellant/OP before the Ld. District Forum to show that the minor son of policy holder was having a pre-existing disease. It has not been shown that at the time of taking policy, father of the complainant was aware that the child was suffering from Coxa Vari with Gem Varis. The appellant/OP has relied upon the opinion of its panel of doctors that it was a developmental disorder which presents during early childhood and continues as the child develops. The appellant/OP also relied upon articles on Voxa from internet. On the other hand, father of respondent/complainant had placed on record before the Ld. District Forum, a certificate issued by the doctor of the Max Hospital dated 18.06.2008 to the effect that the disease was in development condition which is seen in older children. It was further certified that the disease was not seen at birth. Even in the discharge summary dated 21.6.08 of patient wherein past history was recorded, nothing significant was observed in this regard. It may also be mentioned that before repudiation, the appellant/OP had also sent a letter dated 21.01.2009 seeking information from the father of the complainant as to whether any hospitalization or surgery of the patient had occurred before he was admitted in the hospital or the patient had ever taken any treatment. In response to the said letter, the father of the respondent/complainant informed the appellant/OP that his son was never hospitalized or had undergone any surgery nor any treatment was taken prior to the treatment in respect of which bills were submitted. He had also stated that the problem was observed for 2-3 months before the surgery. The burden was upon appellant/OP to show that child was suffering from pre-existing disease at the time of taking the policy.
10. It has also come on record that the age of respondent/complainant was 12 years at the time of surgery.
11. After considering the aforesaid material, the Ld. District Forum has observed that patient was not suffering from the disease since birth. The ailment was observed prior to 2-3 months of admission in Max Hospital.
12. The findings given by District Forum are based on material on record. No material was placed on record by appellant/OP to substantiate its stand that the child was suffering from congenital disease or that his father was aware of the same, as was alleged.
13. In view of above discussion, no infirmity is there in the impugned order.
14. Accordingly, the appeal stands dismissed on the point of limitation as well as on merits.
15. A copy of this order as per the statutory requirement be forwarded to the parties free of charge and also to the concerned District Forum. Thereafter the file be consigned to Record Room.
(Justice Veena Birbal) President (OP Gupta) Member(Judicial)