State Consumer Disputes Redressal Commission
Unitech India Insu. Co. Ltd. vs Parmod Kr. Sharma on 10 May, 2022
FA/423/2011 United India Insurance Company Ltd. Vs Parmod Kumar Sharma D.O.D. 05.07.2022
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION
Date of Institution : 19.08.2011
Date of Reserving : 10.05.2022
the Order
Date of Decision : 05.07.2022
FIRST APPEAL NO - 423/2011
IN THE MATTER OF
United India Insurance Company Ltd.
55, Janpath, New Delhi-110001.
(Through: Mr Maibam N. Singh, Advocate)
...Appellant
VERSUS
Parmod Kumar Sharma
R/o A-224, Jhilmil Colony,
Shahdara,
Delhi-110032
...Respondent
(Proceeded ex-parte vide order dated 18.02.2013)
HON'BLE MS. PINKI, MEMBER(JUDICIAL)
HON'BLE MS. BIMLA KUMARI, MEMBER (FEMALE)
Present: Mr Maibam N. Singh advocate learned counsel for the appellant
None for the respondent, (proceeded ex-parte vide order dated
18.02.2013)
Allowed PAGE 1 OF 17
FA/423/2011 United India Insurance Company Ltd. Vs Parmod Kumar Sharma D.O.D. 05.07.2022
PINKI, MEMBER (JUDICIAL)
ORDER
1. The present appeal has been filed on 19.08.2011 impugning the order dated 13.06.2011 passed by District Consumer Disputes Redressal Forum (East).
2. The District Forum has directed the appellant/opposite party to pay Rs. 2,00,000/- as well as Rs. 50,000/- as the compensation for mental agony and suffering inclusive of the litigation charges to the complainant/respondent.
3. The submissions put forth by learned counsel for the appellant have been heard and considered. The record before us including that of the District Consumer Redressal Forum East as well as the written submissions filed on behalf of appellant have been carefully perused and considered.
4. The respondent/complainant was proceeded ex-parte vide order dated 18.02.2013.
Allowed PAGE 2 OF 17 FA/423/2011 United India Insurance Company Ltd. Vs Parmod Kumar Sharma D.O.D. 05.07.2022
5. Briefly stating the facts required for deciding this appeal are as under :
The complainant/respondent has purchased Health Shield Insurance Policy from 11.12.2009 to 10.12.2010 for a sum of Rs. 2,00,000/-
with Rs. 4,974/- as premium. In the month of February 2010 complainant's daughter had some problem and she was admitted in St. Stephen's Hospital on 28.02.2010. She was discharged on 14.04.2010. The complainant had to pay a sum of Rs. 2,08,709/- qua medical bills which were submitted to the appellant/opposite party, however, the opposite party had refused to pay the amount.
6. The case of appellant/opposite party before the District Forum in its written statement was that the insurance company is not liable to make any payment on this policy. It has been submitted that in view of Clause 4.3 during the first two years of the operation of the policy, the expenses on treatment of diseases such as Cataract, Benign Prostatic Hypertrophy, Hysterectomy for Menorrhagia or Fibromyoma, Hernia Hydrocele, Congenital Internal Disease, Fistula in Anus, Piles, Sinusitis and related disorders, Gall Bladder Stone Removal, Gout and Rheumatisim, Calculus diseases, Joint Replacement due to Degenerative Condition and age related Osteoarthritis and Osteoporosis are not payable. However, it is admitted that the complainant has claimed a policy.
Allowed PAGE 3 OF 17 FA/423/2011 United India Insurance Company Ltd. Vs Parmod Kumar Sharma D.O.D. 05.07.2022
7. In the appeal the appellant/opposite party has taken grounds inter alia that the impugned order dated 13.06.2011 is based on extraneous grounds, assumption and presumptions ; the District Forum over stretched its limits and entered into deliberations beyond its jurisdiction ; did not take into consideration the submissions and documents made/filed by the appellant/opposite party in the Forum ; it has been passed in total ignorance of well established principles of law and documents ; the District Forum overlooked the fact that the insurance is a contract between the two parties i.e. the insurer and the insured wherein one is making the offer and the other is giving his acceptance to the terms and conditions of the contract mentioned in the policy, which is legally binding on both the parties and nothing outside the purview of the terms and conditions of the policy of the insurance contract would neither be binding on the complainant nor on the opposite party, in other words contract of insurance is legally binding agreement between an insured and insurance company to indemnify the buyer of a contract under specified circumstances ; the insurance company before giving the insurance policy to any of their perspective customers makes them understand the terms and conditions of the policy and then with their free consent the customer sign the policy form after understanding thoroughly and agree to terms and conditions of the policy ; it cannot be legally sustained that the insurance company issued a single page computerized certificate of insurance which does not contain any terms and condition ; there arises no question of the Allowed PAGE 4 OF 17 FA/423/2011 United India Insurance Company Ltd. Vs Parmod Kumar Sharma D.O.D. 05.07.2022 policy holder signing and taking the policy offered by the appellant/insurance company without knowing the terms and conditions of the policy ; the respondent/complainant ought to know the law of the land and he would certainly be a man of ordinary prudence and no man of ordinary prudence would blindly sign and take any policy without knowing the terms and conditions of the policy ; the respondent/complainant has failed to establish by cogent evidence that appellant / opposite party / insurance company issued a computerized policy without giving the terms and conditions of the policy whereas, the insurance company has produced and annexed the complete consolidated set of documents as Family Medicare Policy handed over to the respondent/complainant at the time of taking policy ; the District Forum has ignored the vital fact that the diseases falling under the exclusion clause are clearly stated in the terms and conditions of any Mediclaim Insurance Policy ; the conditions in the policy are in the nature of contract, therefore, are binding between the parties ; the District Forum has failed to appreciate that there has been a clear breach of the terms of the policy especially clause 4.3 ; the respondent/complainant or any literate person before taking a Mediclaim or a Health Care Policy would certainly read and understand the inclusions and exclusions of the policy mentioned in the terms and conditions of the policy he intends to take ; the respondent/complainant is trying to say that he was not aware of the terms and conditions of the policy but knew that the policy has to be renewed in time ; the claim was rightly Allowed PAGE 5 OF 17 FA/423/2011 United India Insurance Company Ltd. Vs Parmod Kumar Sharma D.O.D. 05.07.2022 repudiated as it was hit by the exclusion clause 4.3 ; the liabilities of the insurance company ruled and governed by the terms and conditions of its policy and therefore, Insurance Company cannot be held liable for what is excluded from the terms of the policy ; the learned District Forum has failed to analyse the documentary evidence i.e. letter annexed with the complaint, written by the respondent/complainant to Mr. Ajay Aggrawal, wherein the respondent has written to IRDA on 08.08.2010 and on 03.09.2010, which clearly depicts that the respondent is literate, prudent and diligent enough to write to IRDA about non-settlement of his claim; respondent is vigilant over his right to approach the Regulatory Authority over the Insurance Company for his repudiated claim, it is not expected of the respondent with such high diligence could accept and sign a single page computerized Medicare Policy which does not contain the terms and conditions, as alleged by the respondent; the respondent voluntarily gave his acceptance to the Family Health Medicare Policy not only once for the first time when he took the policy from the Insurance Company in the year 2008 for the period from 11.12.2008 to 10.12.2009, but also got it renewed for the second time i.e the subsequent second year from 11.12.2009 to 10.12.2010, by signing the renewal form and paying the premium, which shows that the respondent was very well aware of all the terms and conditions of the policy and was very well satisfied with the services provided by the Insurance Company for the first year which made him accept the same insurance contract in the form of Family Medicare Policy for Allowed PAGE 6 OF 17 FA/423/2011 United India Insurance Company Ltd. Vs Parmod Kumar Sharma D.O.D. 05.07.2022 the second year also ; the respondent/complainant opted to take a Family Health Medicare Policy covering himself and his family having a thorough knowledge about all the terms and conditions of the policy, premium to be paid there upon, period of the policy, renewal of the policy etc.; respondent/complainant tried to play a trick by not annexing the complete consolidated policy cover rather has annexed only one page of the policy document to mislead the Forum ; the respondent has given his acceptance to all the inclusions and exclusions mentioned in the terms and conditions of the Family Health Medicare Policy by duly signing the Proposal Form with the complete and thorough knowledge about the terms and conditions of the policy.
8. It is also the case of appellant/opposite party that insurance is part of general law of contract. Policy of insurance is to be construed like any other contract. The rights and obligations are dependent on terms of contract of insurance. Insurance is a matter of contract between the Insurance Company and the Insured. The terms of contract depends upon the volition of the parties. Insurance Companies are entitled to provide by the contract that they will not take on liability for the terms contained in Exclusion Clause. The parties are bound by the terms and conditions mentioned in the policy and the respondent/complainant shall not be permitted to take the different view of the matter and read something and prefer the claim which falls purely under Allowed PAGE 7 OF 17 FA/423/2011 United India Insurance Company Ltd. Vs Parmod Kumar Sharma D.O.D. 05.07.2022 the Exclusion Clause. The contract must be interpreted as per the words employed in the terms as comprehended by the parties to the contract. The contractual terms mentioned in any document is binding on both the parties. The respondent/complainant has taken a false plea that the respondent was not explained the terms of the policy and further that the policy containing the terms was not conveyed to him, therefore, the respondent cannot rely on the terms of the policy.
9. It is further the case of appellant/opposite party that the District Forum overlooked the fact that the respondent cannot be indemnified for the claim preferred outside the contractual obligation of the Insurance Company. It is the condition of the policy that during the first two years of operation of the Family Medicare Policy, the expenses incurred on the treatment of Congenital Internal diseases is not payable.
10. The basic question to be decided is, whether the District Consumer Disputes Redressal Forum East has rightly directed the appellant/opposite party to pay Rs.2,00,000/- to the complainant and Rs.50,000/- as compensation for mental agony and suffering inclusive of litigation charges?
Allowed PAGE 8 OF 17 FA/423/2011 United India Insurance Company Ltd. Vs Parmod Kumar Sharma D.O.D. 05.07.2022
11. A perusal of record shows that Complaint No.24/2011 was filed on 10.01.2011 wherein it has been submitted by the respondent/complainant that he purchased a Health Shield Insurance Policy for self and his family. This insurance cover was from 11.12.2009 to 10.12.2010 for a sum of Rs.2,00,000/-each vide Policy No.040100/48/09/06/00003113 and paid the consideration amount of Rs.4,974/- to United India Insurance Company Ltd.
12. It is the case of respondent/complainant that only computerized policy was given and not the terms & conditions. It has also been submitted in the complaint that his daughter had some problem and was admitted in St. Stephen's Hospital on 28.02.2010 and she was discharged on 14.04.2010. The Insurance Company was intimated regarding hospitalization and admission of daughter of the respondent/complainant immediately and subsequently letters and e-mails dated 08.08.2010 and 03.09.2010 were also sent. The Insurance Company did not reply satisfactorily.
13. In reply to the allegations especially para 2 of the complaint, it has been submitted by the appellant/opposite party that the policy mentioned by the complainant is a computerized policy and the entire policy including the Schedule, Income Tax Exemption Certificate, Premium Certificate and terms & conditions, is one consolidated document comprising of ten pages, which has been issued to the insured/complainant. It appears that the complainant has Allowed PAGE 9 OF 17 FA/423/2011 United India Insurance Company Ltd. Vs Parmod Kumar Sharma D.O.D. 05.07.2022 annexed only one page of the policy document with a view to mislead the Forum on the ground that he was not aware of the Exclusion Clause i.e. Clause 4.3. It has also been submitted on behalf of the appellant/opposite party that complainant be directed to produce the original policy before the Forum.
14. Even in the preliminary objections the appellant/Insurance Company has in detail taken the stand that the claim of the complainant is not payable as the same is excluded under Exclusion Clause 4.3 of the terms and conditions of the Family Medicare Insurance Policy issued to the complainant. The claim has been duly repudiated by M/s Medsave Healthcare (TPS) Ltd., Delhi the Third Party Administrator (TPA) of the Insurance Company and the complainant has been duly informed about the same.
15. The case of the appellant/opposite party is that the policy was taken for the period from 11.12.2009 to 10.12.2010. For taking this, the complainant had filled in the Proposal Form and also agreed to the terms and conditions of the policy of insurance at the time of initially taking the policy on 11.12.2008. The receipt of information from the complainant about his daughter, Mahima Sharma's treatment, opposite party's TPA M/s Medsave Healthcare (TPA) Ltd. Delhi, processed the same. Even the copy of the processing sheet of M/s. Medi Assist TPA Pvt. Ltd. has been annexed by the appellant/opposite party as Annexure OP/1. The TPA vide its letter dated Allowed PAGE 10 OF 17 FA/423/2011 United India Insurance Company Ltd. Vs Parmod Kumar Sharma D.O.D. 05.07.2022 08.06.2010 communicated its inability to admit the liability, as it was noticed that the hospitalization was for the treatment of Congenital Left Diaphramatic Hernia (Bochdalek) with Volvuluv of Stomatch as per the Discharge Summary of St. Stephen's Hospital wherein she was treated. As Congenital Internal Diseases, Hernia were not payable in the first two years since policy inception, as per Clause 4.3 of the terms and conditions of the Family Medicare Insurance Policy bearing No.040100/48/09/06/00003113 valid for the period from 11.12.2009 to 10.12.2010 issued to the complainant. Therefore, the complainant was denied under Exclusion Clause 4.3 of the Insurance Policy. The copy of letter dated 08.06.2010 issued by the TPA of opposite party informing about the repudiation of the claim and the reasons therein has also been annexed as Annexure OP/2. The copy of Discharge Summary dated 14.04.2010 of St. Stephen's Hospital Delhi was also annexed as Annexure OP/3.
16. It has also been the case of appellant/opposite party before the Forum that Mediclaim Insurance Policy is a contract of insurance between the insured and insurer and Clause 4 is the Exclusion Clause wherein it has been stated that the Company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of Clause 4.3.
Allowed PAGE 11 OF 17 FA/423/2011 United India Insurance Company Ltd. Vs Parmod Kumar Sharma D.O.D. 05.07.2022
17. The Insurance Company has also informed that the complainant/respondent had opted for the Family Medicare Insurance Policy bearing No. 040100/48/08/06/00003364 valid for the period from 11.12.2008 to 10.12.2009. It was renewed vide Family Medicare Insurance Policy bearing No. 040100/48/09/06/00003113 valid for the period from 11.12.2009 to 10.12.2010. Both the policies are computerized policies and the entire policy, including the Schedule, Income Tax Exemption Certificate, Premium Certificate and terms and conditions, come out as one consolidated document, which is then issued to the insured. Copy of these terms and conditions have also been annexed as OP/4.
18. It is pertinent to mention that as per order dated 21.04.2011 passed by the learned Forum the written statement/reply was filed and copy was supplied. Matter was adjourned for rejoinder/evidence for 19.05.2011. On 19.05.2011 counsel for complainant/respondent preferred not to file rejoinder in the instant case for the reasons best known to him, despite the fact that appellant/opposite party has harped upon Exclusion Clause 4.3 whereby the claim of the respondent/claimant was repudiated.
19. Annexure OP/2 is at page 68 of the file. A perusal of this document which has also been filed as annexure A-6 with this appeal at page 62 shows that it is the communication from the Authorised Signatory of Allowed PAGE 12 OF 17 FA/423/2011 United India Insurance Company Ltd. Vs Parmod Kumar Sharma D.O.D. 05.07.2022 Medsave Healthcare (TPA) Ltd., Delhi addressed to the Manager, United India Insurance Company Ltd. with regard to File No.20100228B001R4C2381, Policy No. 040100/48/09/06/00003113 in respect of Ms Mahima Sharma. It has been informed that Ms. Mahima Sharma aged 13 years was hospitalized from 28.02.2010 to 14.04.2010 at St. Stephen's Hospital. This hospitalization was for the treatment of Congenital Left Diaphramatic Hernia (Bochdalek) with Volvolus of Stomach as per the discharge summary of the hospital. It has further been informed that as per the terms & conditions of the Mediclaim Policy under Clause 4.3 Congenital Internal Disease are not payable in first two years of policy inception. As per records available with Medsave Healthcare (TPA) Ltd. Insured had taken up policy for the first time on 11.12.2008 and her admission for Congenial Left Diaphragmatic Hernia was on 28.02.2010, which falls in the second year of policy inception. Therefore, they had repudiated the claim under Clause 4.3 of the Mediclaim Policy. The Clause 4.3 terms & conditions is at page 62 of the District Forum File.
20. As per Clause 4: "The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any Insured Person in connection with or in respect of:
4.1 Any pre-existing condition(s) as defined in the policy, until 48 months of continuous coverage of such insured person have elapsed, since inception of his/her first policy with the Company.
Allowed PAGE 13 OF 17 FA/423/2011 United India Insurance Company Ltd. Vs Parmod Kumar Sharma D.O.D. 05.07.2022 Pre-Existing Condition/Disease definition - Any condition, ailment or injury or related condition(s) for which insured person had signs or symptoms, an/or were diagnosed, and/or received medical advice/treatment, within 48 months prior to his/her first policy with the Company.
4.2 Any disease other than those stated in clause 4.3, contracted by the Insured person during the first 30 days from the commencement date of the policy. This condition 4.2 shall not, however, apply in case of the Insured person having been covered under any Health Insurance Policy or Group Insurance Scheme with the Company for a continuous period of preceding 12 months without any break.
4.3 During the first two years of the operation of the policy, the expenses on treatment of diseases such as Cataract, Benign Prostatic Hyperthrophy, Hysterectomy for Menorrhagia or Fibromyoma, Hernia, Hydrocele, Congenital Internal Disease, Fistula in anus, piles, Sinusitis and related disorders, Gall Bladder Stone removal, Gout & Rheumatism, Calculus Diseases, Joint Replacement due to Degenerative Condition and age related Osteoarthiritis & Osteoporosis are not payable."
21. Admittedly, for the first time the policy was taken on 11.12.2008 for the period from 11.12.2008 to 10.12.2009 vide policy No. 040100/48/08/06/00003364 thereafter it was renewed for further period of one year from 11.12.2009 to 10.12.2010 with policy No. 040100/48/09/06/00003113.
Allowed PAGE 14 OF 17 FA/423/2011 United India Insurance Company Ltd. Vs Parmod Kumar Sharma D.O.D. 05.07.2022
22. It is pertinent to mention that during the renewal period i.e. the second year of this policy the daughter of complainant/respondent had fallen sick. This is also the admitted case of parties that Ms. Mahima Sharma daughter of complainant was admitted in St. Stephen's Hospital on 28.02.2010 and was discharged on 14.04.2010 and the complaint and history in this Discharge Summary (Annexure OP/3 Page 65-67) shows that she had pain in abdomen for one week and when the intensity of the pain increased, it was associated with nausea and vomiting.
23. Admittedly the disease mentioned in the Discharge Summary i.e. Hernia which is covered under Clause 4.3 (Congenital internal disease). It is not clear how the learned Forum has arrived at the decision that the opposite party/appellant has not filed any document to show that Clause 4.3. was read out or explained to the complainant/respondent and whether the terms and conditions were signed by the complainant.
24. We are of the considered view that the Consumer Forum, Saini Enclave has erred to note that appellant/opposite party has not filed any documentary proof to show that Clause 4.3 was read out or explained to the complainant/respondent. It is pertinent to note that complainant/respondent was aware about renewal of the policy but was not aware about the terms and conditions. Even though in unequivocal manner in the written statement the Allowed PAGE 15 OF 17 FA/423/2011 United India Insurance Company Ltd. Vs Parmod Kumar Sharma D.O.D. 05.07.2022 Insurance Company has taken stand that these are ten pages of documents which are computerized and one consolidated document. Opposite party/appellant had also requested to the Forum seeking direction to the complainant/respondent to produce the original. Why the original has not been produced by the complainant/respondent, even though the serious objections have been raised by the Insurance Company. The complainant/respondent preferred not to file rejoinder despite opportunity and preferred to file evidence on 19.05.2011.
25. Admittedly the policy is contract and this policy is not disputed. The only dispute is that the claim of the complainant has been repudiated by the Insurance Company. The question is whether it has been rightly repudiated?
26. We are of the considered view that keeping in view the record especially the Discharge Summary as well as the terms and conditions especially Clause 4.3 of the terms & conditions, the claim has been rightly repudiated. Keeping in view the fact that Ms. Mahima Sharma daughter of the complainant suffered from Hernia which is covered under Clause 4.3 and admittedly the admission for disease was in the second year of policy inception, therefore, the insurance company is not liable to pay for this disease as per Clause 4.3 of the policy. The view taken by the Forum that documentary proof has not been filed, no document has been shown that this Clause has been read over or explain to the complainant is not tenable.
Allowed PAGE 16 OF 17 FA/423/2011 United India Insurance Company Ltd. Vs Parmod Kumar Sharma D.O.D. 05.07.2022
27. In these circumstances, we are of the considered view that the impugned order dated 13.06.2011 passed by the learned District Consumer Disputes Redressal Forum (East) is liable to be set aside, keeping in view the fact that the disease was in the second year of the policy inception and there is Exclusion Clause i.e. Clause 4.3 and daughter of the complainant was suffering from Congenital Diaphramatic Hernia with Volvulus of Stomach which is covered under Clause 4.3 of the terms & conditions of the Policy. Hence the impugned order dated 13.06.2011 is set aside. Appeal is allowed.
28. A copy of this judgement be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgement be uploaded forthwith on the website of the Commission for the perusal of the parties.
29. Copy of this order be also sent to the concerned District Consumer Disputes Redressal Forum, East for information.
30. Appeal file be consigned to Record Room alongwith a copy of this judgement.
(PINKI) Member (Judicial) (BIMLA KUMARI) Member (Female) PRONOUNCED ON:
05.07.2022 ad Allowed PAGE 17 OF 17