State Consumer Disputes Redressal Commission
United India Insurance Company Limited vs Raj Kumar Bansal on 25 March, 2013
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1515 of 2009.
Date of Institution: 26.10.2009.
Date of Decision: 25.03.2013.
1. United India Insurance Company Limited, 24 Whites Road, Chennai.
2. United India Insurance Company Limited, Divisional Office, Dhuri
Road, Sangrur.
Both through Sh. Anil Kakkar, Deputy Manager, United India Insurance
Company Limited, Regional Office, SCO No.123-124, Sector 17-E,
Chandigarh.
.....Appellants.
Versus
Raj Kumar Bansal S/o Sh. Om Parkash Bansal, R/o Patiala Gate, Sangrur.
...Respondent.
First Appeal against the order dated
09.10.2009 of the District Consumer
Disputes Redressal Forum, Sangrur.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
...................................
Present:- Sh. D.C. Kumar, Advocate, for Sh. D.P. Gupta, Advocate, counsel for the appellants.
Sh. A.K. Batra, Advocate, counsel for the respondent.
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INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
The United India Insurance Company Limited and another, appellants/opposite parties (In short "the appellants") have filed this appeal against the order dated 09.10.2009 passed by the learned District Consumer Disputes Redressal Forum, Sangrur (in short "the District Forum").
2. Facts in brief are that Sh. Raj Kumar Bansal respondent/ complainant (hereinafter called as "the respondent") filed a complaint under First Appeal No.1515 of 2009 2 section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellants, pleading that the authorized agent Sh. Prem Bansal of the appellants approached him for getting health policy and on his persuasion, the respondent along with his wife Smt. Chanchal Bansal obtained the services of the appellants, by getting health policy (hereinafter called "mediclaim policy") on 07.03.2008 vide insurance policy no.111700/48/ 07/97/00001000, containing no terms and conditions in the policy. The said policy was effective from 07.03.2008 to 06.03.2009 and the sum insured was Rs.2.50 lacs each and a sum of Rs.11,605/- was paid as premium to the appellants.
3. Before issuance of the mediclaim policy to the respondent and his wife, a proposal form was duly signed by them and the appellants also got them medically checked from their doctor and after going through the proposal form and the medical report, the respondent and his wife were issued the mediclaim policy by the appellants. The respondent was not suffering from any disease, nor he took any treatment. He had no allergy or previous surgery, nor any urinary trouble.
4. The appellants told the respondent and his wife that the claim is not payable if any problem arises within two months of the insurance and the other condition was that the insured should not have any pre-existing disease.
5. On 16.09.2008, the respondent felt pain and while going to urinal, blood was seen and he consulted the doctor of Civil Hospital, Sangrur, who advised the respondent to consult kidney specialist. The respondent went to Silver Oaks Hospital, Mohali and after complete check-up by the doctors on 17.09.2008, the disease of Himaturia was detected. The condition of the respondent became serious and the operation of the kidney was conducted and stent was inserted in the kidney and the respondent remained admitted in Silver Oaks Hospital, Mohali from 09.10.2008 to 12.10.2008 and spent Rs.80,000/- on treatment. The respondent lodged the claim with the appellants regarding reimbursement of the bills and submitted the original First Appeal No.1515 of 2009 3 bills along with other documents, but the appellants repudiated the claim vide letter dated 19.05.2009 on flimsy grounds. The same amounts to deficiency in service.
6. It was prayed that the appellants may be directed to pay Rs.70,000/- along with interest @ 24% p.a. from 12.10.2008 and Rs.15,000/- as compensation and Rs.11,000/- as litigation expenses.
7. In the written version filed on behalf of the appellants, preliminary objections were raised that the respondent has not come to the Forum with clean hands and has concealed material facts. The complaint is false and is not legally maintainable. The claim was processed and repudiated by M/s Medsave Health Care Limited, Chandigarh, but the same has not been impleaded and the complaint is bad for non-joinder of necessary parties.
8. On merits, it was submitted that on the request of the respondent, appellant no.2 issued the insurance policy in his favour as well as in favour of his wife Smt. Chanchal Bansal w.e.f. 07.03.2008 to 06.03.2009, subject to terms and conditions of the policy. The sum insured was Rs.2.50 lacs each. Terms and conditions were part and parcel of the policy and the same were explained to the respondent before issuance of the policy. The policy was sent to the insured Raj Kumar Bansal through Dolphin Courier on 16.04.2008 vide courier receipt no.5221 and he received the same after taking the delivery. After receiving the claim, appellant no.2 sent the entire record to M/s Medsave Health Care Limited, Chandigarh i.e. Third Party Administrator (TPA), duly licensed by IRDA, for processing the claim, but the same was repudiated by the TPA on 14.05.2009 as the same was not payable under clause 4.3 of the policy. The respondent was admitted in the hospital with the case of Haematuria with Ureteric Calculus and the same was not payable in first two years of inception of the policy. The respondent was informed vide letter dated 14.05.2009. Later on, registered letter dated 19.05.2009 was also sent. In the present case, question of pre-existing First Appeal No.1515 of 2009 4 disease is not involved but for first two years, the claim for expenses incurred was not payable. The claim was rightly repudiated. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
9. Parties led evidence in support of their respective contentions by way of affidavits and documents.
10. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the case of the respondent is that he was never supplied the terms and conditions of the policy, whereas the case of the appellants is that the same were supplied through Dolphin Courier on 16.04.2008 under courier receipt no.5221 on which the respondent put his signatures in lieu of the receipt of delivery. The document Ex.R-3 is not signed by the respondent nor the delivery boy, who is stated to have delivered the terms and conditions to the respondent, came forward to file his affidavit in support of the same. The plea that the terms and conditions were supplied rather supports the version of the respondent that only cover note Ex.C-37 was supplied. The exclusion clause 4.3 was not brought to the notice of the respondent and now the same cannot be pressed. The agent of the appellants in his affidavit Ex.C-35 supports the version of the respondent that the respondent and his wife were told about only two conditions. Later on, in his affidavit Ex.R-13, he took U-turn to say that the affidavit dated 18.07.2009 was a result of fraud and mis-representation, but the same cannot be believed. The complaint was allowed that the appellants were directed to pay to the respondent a sum of Rs.65,493/- along with interest @ 9% p.a. from the date of repudiation i.e. 19.05.2009 till realization and Rs.5,000/- as litigation expenses.
11. Aggrieved by the impugned order dated 09.10.2009, the appellants have come up in appeal.
First Appeal No.1515 of 2009 5
12. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the parties.
13. Learned counsel for the appellants contended that the District Forum has ignored the document Ex.R-4 vide which the terms and conditions were supplied through Dolphin Courier to the respondent and he was aware of the exclusion clause no.4.3. Once the terms and conditions were supplied, the parties are bound by the same and the order passed by the District Forum is not sustainable and the appeal may be accepted and the impugned order under appeal may be set aside.
14. On the other hand, it was contended on behalf of the respondent that the terms and conditions were never supplied and the impugned order under appeal is legal and valid and the appeal may be dismissed.
15. We have considered the respective submissions advanced on behalf of the parties and minutely examined the entire record placed on the file.
16. The only document relied upon by the District Forum is Ex.R-3 which is the copy of despatch register and at serial no.163, name of respondent Raj Kumar Bansal is mentioned and thereafter, in remarks column, "5221" is mentioned and the said entry was not signed by the respondent. Moreover, Ex.R-3 is a despatch register which only show that against serial no.163, the entry was made in the name of the respondent and under the head 'Subject', policy number is mentioned and number "5221" is mentioned in the remarks column. Ex.R-4 is the delivery proof and courier no.5221 was delivered to the respondent on 16.04.2008 which was sent by the appellant insurance company. Ex.R-5 also mentions the name of the respondent. The District Forum has altogether ignored the document Ex.R-4 vide which the policy mentioned at serial no.163 against the name of the respondent under '5221' was delivered to the respondent. The policy was First Appeal No.1515 of 2009 6 delivered and the copy of the same has been placed on file as Ex.R-2, which is a duplicate policy brought on record by the appellants and the terms and conditions are clear, including the exclusion clauses. Clause 4.3 is reproduced as follows:-
"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 Osteoarthritis & Osteoporosis are not payable. If these diseases (other than congenital internal disease) are pre-existing at the time of proposal they will not be covered even during subsequent period of renewal. If the insured is aware of the existence of congenital internal disease before inception of policy, the same will be treated as pre-existing".
17. As per the report of the respondent Ex.C-4, no calculus or growth was seen. In another report Ex.C-5, no calculus/mass lesion is seen. The disease Haematuria which was diagnosed by Silver Oaks Hospital, as is clear from the documents Ex.C-1 to Ex.C-3, is not covered under the exclusion clause. As stated above, the calculus was not seen.
18. From the above discussion, it is clear that the policy along with terms and conditions was supplied to the respondent, but the case of the respondent is not covered under the exclusion clause 4.3, as detailed above. As such, no benefit of the same can be given to the appellants. Although, the District Forum has mentioned different reasons in allowing the complaint and failed to appreciate that the policy was supplied, but the disease suffered by the respondent was not covered under the exclusion clause and, as such, the First Appeal No.1515 of 2009 7 order passed by the District Forum, allowing the complaint, is not required to be interfered with.
19. In view of above discussion, the appeal filed by the appellants is dismissed and the impugned order under appeal dated 09.10.2009 passed by the District Forum is affirmed and upheld. No order as to costs.
20. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the respondent/ complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
21. Remaining amount as per the order of the District Forum shall be paid by the appellants to the respondent/complainant within 45 days of the receipt of copy of the order.
22. The arguments in this appeal were heard on 18.03.2013 and the order was reserved. Now the order be communicated to the parties.
23. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member March 25, 2013.
(Gurmeet S)