Delhi District Court
Eshu Bhardwaj vs National Insurance Company Pvt Ltd on 28 June, 2014
IN THE COURT OF MS. POOJA TALWAR: ACJ/CCJ/ARC(SE),
SAKET COURTS, NEW DELHI
CS No. 88/2013
Unique case ID No. 02406C0086052013
Eshu Bhardwaj
W/o Sh. Vijay Bharti
R/o House No. 188B,
Hari Nagar Ashram,
New Delhi. ......... Plaintiff
Versus
1. National Insurance Company Pvt Ltd
12, Community Centre, 1st & 2nd Floor,
East of Kailash, New Delhi.
2. The East West Assist Pvt Ltd (TPA),
97, Manishaw Road,
Near Anupam Garden,
Sainik Farm, New Delhi. ......... Defendants
Case filed on : 03.04.2013
Arguments heard on : 04.06.2014
Judgment pronounced on : 28.06.2014
JUDGMENT
1. This is a suit instituted by the plaintiff against the defendants for CS No.88/2013 Eshu Bhardwaj Vs. National Insurance Company & Anr. Page 1 of 9 recovery of Rs. 1,14,298/ along with pendente lite and future interest at the rate of 12 % per annum along with cost of the suit from the defendant.
2. Facts as stated by the plaintiff are that the plaintiff was insured with the defendant company vide policy no. 351700/48/09/8500000367 and Card No. NICIHI 060210 244923 which was duly issued by the defendant no. 1. The plaintiff was admitted in Batra Hospital on 07.05.2010 with a history of acute abdominal pain, vomiting and was unable to pass stool for last two days, as a case of intestinal obstruction. Upon medical examination in the Batra Hospital, doctor diagnosed the plaintiff with intestinal obstruction, as the plaintiff was not passing stool for last 34 days and was having an acute abdominal pain. Hence, doctors kept irreducible ventral hernia as another diagnostic option. Besides multiple adhesions ventral hernia was also found as one of the cause of obstruction and not the sole cause of obstruction. The plaintiff was taken up for a diagnostic laparoscopy in order to assess the cause of obstruction and not for hernia repair. As a result of which, ventral hernia was diagnosed and confirmed on laparoscopy and subsequently hernia repair was also done, so hernia repair was a secondary procedure decided after diagnostic laparoscopy and it was not primary procedure under taken by the doctors.
For the above treatment, the plaintiff paid a sum of Rs. 1,14,298/ CS No.88/2013 Eshu Bhardwaj Vs. National Insurance Company & Anr. Page 2 of 9 vide bill no. 255929 dated 10.05.2010 to Batra Hospital, New Delhi Since the plaintiff was insured with the defendant company under the policy, accordingly the plaintiff filed her claim before the defendant company which was declined by the defendant company through his agent East West Assist TPA i.e defendant no. 2 vide its letter dated 12.07.2010. Since the defendant rejected the claim of the plaintiff, the plaintiff sent a legal notice dated 18.04.2011 to the defendant through her advocate and called upon the defendant to reimburse the said amount of treatment i.e Rs. 1,14,298/ with interest @ 24% per annum within 15 days from the receipt of notice. The defendant despite the receipt of notice failed to comply with the notice. Hence, the present suit.
3. The defendant no. 1 brought forth his claim by filing written statement. It is stated that all the policies whether Medi claim or any other policy has to be launched for general public with prior approval of IRDA (Insurance Regulatory & Development Authority) regulatory and the answering respondent has no authority or power to change the terms and conditions or the exclusion clause mentioned in the policy of his own without the permission of the IRDA regulatory. This fact was very well informed to the plaintiff also prior to the issuance of the policy and as such the plaint needs dismissal. It is further stated that the plaint is solely barred under Exclusion clause 4.1 and 4.3 of Parivar Mediclaim CS No.88/2013 Eshu Bhardwaj Vs. National Insurance Company & Anr. Page 3 of 9 Policy since 2009 and disease first time diagnosed on 07.05.2010 as mentioned in claim form. Patient did not have or disclosed any past policy. The claim merits repudiation as per Exclusion clause 4.1 and 4.3 of the Hospitalization and Domiciliary Hospitalization Benefit Policy under Parivaar Mediclaim Policy. Therefore, the respondent was eminently justified in repudiating the claim of the plaintiff. The plaintiff has no locusstandi to file the present plaint. The plaintiff has not complied with the terms and conditions of the contract of insurance and as such the plaint needs dismissal.
4. Plaintiff filed her replication wherein she reiterated the contents of her plaint and denied the claim of the defendant as stated in the written statement.
5. Defendant no. 2 was served on 16.05.2013. Despite service, defendant no. 2 neither appeared nor filed its written statement. Defendant no. 2 was accordingly proceeded exparte vide order dated 25.11.2013.
6. On the pleadings of both the parties, the following issues were framed:
(i) Whether the plaintiff is entitled to a decree for recovery of Rs. 1,14,298/ against the defendant? OPP
(ii) Whether the plaintiff is entitled to interest, if so at what rate and for what period? OPP CS No.88/2013 Eshu Bhardwaj Vs. National Insurance Company & Anr. Page 4 of 9
(iii) Whether the suit is without cause of action?OPD
(iv) Whether the plaintiff does not have locus standie to file the present case? OPD
(v) Relief.
7. Evidence was led by both the parties by entering into the witness box and also examining other witnesses on their behalf.
8. I have heard the arguments advanced by both the counsels as well as gone through the record of the case.
9. Issue wise findings are as follows:
Issue No. 1, 2 and 3: The onus to prove issue no. 1 and 2 was on the plaintiff and onus to prove issue no. 3 was on the defendant. The plaintiff in order to prove issue no. 1 and 2 examined herself, one Dr. Jitender Singh Duggal and Sh. Madan Lal as plaintiff's witnesses. In order to prove her claim, the plaintiff had filed documents Ex.PW1/1 to Ex.PW1/6. She has filed her discharge summary and other medical documents to prove that she was duly ensured with the defendant no. 1 and she was treated at Batra Hospital for her disease and had incurred an expenses of Rs. 1,14,298/ in her treatment. The claim of the plaintiff was declined by defendant no. 2 by the agent of defendant no. 1 on the basis of exclusion clause 4.1 & 4.3 in the insurance policy.
AS per the plaintiff, 'hernia' was not the only cause of admission in hospital as well as for the treatment. But no evidence has been lead to CS No.88/2013 Eshu Bhardwaj Vs. National Insurance Company & Anr. Page 5 of 9 define as to what amount was spent on other treatment besides the treatment of 'hernia'. Now as per the exclusion clause, the disease of 'hernia' was not covered under the insurance policy and the plaintiff could have raised her claim only after the expiry of two years and accordingly defendant no. 2 declined her aforesaid claim. The stand of the defendant no. 2 was reiterated and reaffirmed by defendant no. 1.
The exclusion clause is reproduced herein:
4.1 All disease/injuries which are pre existing when the cover incepts for the first time. However, those diseases will be covered after four continuous claim free policy years. For the purpose of applying this condition, the period of cover under Mediclaim policy taken from National Insurance Company only will be considered.
4.3 During the first two years of the operation of insurance cover, the expenses on the treatment of disease such as Cataract, Benign Prostatic Hypertrophy Hyserectomy for memorhagia, fibromyoma, hernia, Hydrocole, Internal Congenital Defects/Diseases or Anomalies, Fistula in Anus, Piles, Chronic Fissure in Anus, Pilonidal congenital Defects/Diseases or Anomalies. Fistula in Anus, Piles, Chronic, Fissure in Anus, Pilonidal Sinus, Sinusitis, Stone disease of any size, Benign Lumps/growths in any part of the body, CSOM (Chronic Suppurative Otitis Media) Joint replacement of any kind unless arising ut of accident, Surgical treatment of Tonsils & Adenoids, Deviated Nasal Septum and Chronic Diseases are not payable, if these diseases are preexisting at at the time of proposal, they will not be covered even during subsequent period of renewal too.
That the said disease of 'hernia' specifically excluded under the cover. It is pertinent to mention here that it is not the stand of the CS No.88/2013 Eshu Bhardwaj Vs. National Insurance Company & Anr. Page 6 of 9 plaintiff that while entering into the contract with the defendant no. 1, the exclusion clause was not brought to her knowledge or her husband or that cover note was not signed either by her or her husband in whose name the insurance policy was taken. Once it was well within the knowledge of the plaintiff that her disease is specifically excluded from the insurance policy, therefore, now she cannot raise her claim.
As far as the point of pre existence of the disease is concerned, it would be of no relevance in terms of clause 4.3 which specifically states "that during first two years of the operation of the insurance cover, the expenses on the treatment of the disease such as __ __ __ __ __ hernia, Hydrocole, Internal Congenital Defects/Diseases or Anomalies, __ __ __ __ _ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ _ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ ____ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __Deviated Nasal Spectum and Chronic disease are not payable. The inference which is drawn from this clause is that these diseases are not payable during the first two years at all.
Further, in case, these diseases are pre existing at the time of proposal, they will not be covered even during subsequent period of renewal too. That means in case the disease was pre existing at the time entering into a contract then the same is not covered at all. In the present case of the plaintiff, the claim is declined for the reason that the same is CS No.88/2013 Eshu Bhardwaj Vs. National Insurance Company & Anr. Page 7 of 9 not payable for the first 24 months and admittedly the policy was taken for less than a year. The question of pre existence of the disease is irrelevant.
Once the disease is specifically excluded then the defendant was well within its power to have declined the claim of the plaintiff. The only benefit which the plaintiff could have gathered was that in case of non awareness of the terms of the policy, but the same has not been pleaded by the plaintiff. However, it has been put to the defendant's witness during his cross examination that the terms and conditions were not shown to the plaintiff. This plea has not been taken at the appropriate time. Hence, cannot be accepted, Therefore, on the basis of evidence led and documents produced, the plaintiff has failed to prove her entitlement to the claim. Thus the issue no. 1, 2 and 3 are decided against the plaintiff and in favour of the defendant. Issue no. 4: The onus to prove this issue was on the defendant. The defendant has failed to prove that the plaintiff was not beneficiary of the insurance policy. It is irrelevant that in whose name, the policy has been taken. Even if the policy was taken in the name of the husband of the plaintiff, even then she was a beneficiary and entitled to raise the claim. Hence, this issue is decided in favour of the plaintiff and against the defendant.
Relief: On the basis of aforesaid findings, the present suit of the CS No.88/2013 Eshu Bhardwaj Vs. National Insurance Company & Anr. Page 8 of 9 plaintiff is dismissed. Parties to bear their own costs. Decree sheet be prepared accordingly, File be consigned to Record Room.
Announced in the open Court (Pooja Talwar)
Today on June 28th, 2014 ACJ/CCJ/ARC(SE)
Saket Court, New Delhi.
CS No.88/2013 Eshu Bhardwaj Vs. National Insurance Company & Anr. Page 9 of 9