State Consumer Disputes Redressal Commission
Future Generali Insurance Co Ltd vs Miss Pushpa H Tandale on 8 October, 2018
A/16/589 1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Appeal No.A/16/589
(Arisen out of order dtd.15/03/2016 in Complaint No.189 of 2014 of Central
Mumbai District Consumer Disputes Redressal Forum)
Future General Insurance Co. Ltd.,
Through its Manager,
Office at - India Bulls Finance Centre,
Tower No.1, 12th & 15th Floor,
Senapati Bapat Marg, Elphinston Road (West), .... Appellant/
Mumbai - 400 013, Maharashtra State. (Original Opponent)
Versus
Miss. Pushpa H. Tandale,
R/at - 8C/602, Neelyog Tower,
Dhanjiwadi, Nr. W.E. Highway
Malad (East), Mumbai - 400 087, .... Respondent/
Maharashtra, Mumbai. (Original Complainant)
BEFORE: Mr.D.R. Shirasao, Judicial Presiding Member
Mr.A.K. Zade, Member
PRESENT: Advocate Shri. S.R.Singh for Appellant.
Advocate Smt.Swagate Singh for Respondent.
ORDER
Per Hon'ble Mr.A.K. Zade - Member:
1) This appeal is filed against the impugned order by which this Appellant- Original Opponent was directed to pay Rs.3,49,000/- to the Complainant with interest @ 9% p.a. from the date of filing complaint till realization and also to pay Rs.15,000/- towards compensation for mental agony and Rs.10,000/- towards cost of the complaint.
2) As per Complainant, facts of the case are as follows -
Complainant took medical insurance policy from Opponent for the period from 15/12/2009 to 14/12/2010 for the insured sum of Rs.3,00,000/-
A/16/589 2and the same was renewed in subsequent years. Prior to it, Complainant was insured with the other Insurance Company i.e. New India Assurance Co. Ltd. for 11 years and had regular check-ups for the said medical policy and the said policy was transferred to Opponent in the year 2009, as she was promised by the concerned agent that she will be given complete portability and her connectivity benefit will not be affected. As per Complainant, on 28/12/2011, she was diagnosed with Congenital Internal Heart Defect and was operated on 03/01/2012. After getting discharge from the hospital, she submitted her insurance claim to the Opponent. However, Opponent repudiated her insurance claim by letter dtd.31/01/2012 stating that her claim did not fall under the purview of the policy and was accordingly rejected. Complainant thereafter approached the Ombudsman who also rejected complaint of the Complainant. Thereafter, Complainant sent legal notice to Opponent which was replied by Opponent. However, as there was no positive response from Opponent, Complainant filed subject complaint before the Ld.District Forum.
3) Opponent contested complaint by submitting written statement. As per Opponent, Complainant was suffering from congenital defect of the Atrial Septal Defect (ASD) and the Complainant underwent corrective surgery known as "Transcatheter Closure" and was hospitalized from 02/01/2012 to 04/01/2012 for the same. Opponent submitted that Complainant was suffering from congenital disease which was excluded from scope of the policy cover as per exclusion clause of the policy and also it was prominently stated on the face of the policy that any claim arising or related to consequences of pre- existing diseases was excluded from the scope of policy cover and for those reasons Complainant could not ask for any relief on mistaken belief on her part. Opponent also denied that the alleged agent had stated that there would be complete portability of the risk, if she transfers policy to Opponent from New India Assurance Company. Opponent had offered to cover the risk under the relevant policy only subject to terms and conditions of the same which A/16/589 3 were more particularly described therein. After going through the pleadings, affidavits of evidence, written arguments and hearing arguments on behalf of the parties, the Ld.District forum passed the impugned order.
4) Appellant filed this appeal on the ground that there is error apparent in the impugned order as claim was allowed even though the Respondent was not covered in respect of Congenital (Heart) Disease within the meaning of insurance policy and/or such disease being expressly excluded thereunder. As per appellant, the Ld.District Forum should have appreciated that the Complainant was suffering from "Atrial Septal Defect" (ASD) which is a Congenital Heart Defect and she underwent corrective surgery called Transcatheter closure of ASD whereas clause 17 of the policy excludes expenses incurred in respect of claim related to "Congenital Internal and/or External Illness/Disease/Defect. Another ground of the appellant is that the Ld.District Forum should have appreciated that the policy was to be strictly construed as per its text and context and that knowledge or ignorance about symptoms of ASD was irrelevant, as what was intended to be covered was disease contracted during the period of insurance and not a disease which was there since birth (Congenital), the same being expressly excluded. As per appellant the Ld.District Forum erred in holding that as respondent was not aware of the disease and was diagnosed after two years of policy, she was entitled for the claim and thereby the Ld.District Forum had tried to rewrite the contract of insurance by adding the word "knowledge of disease" to the exclusion clause 17 and that the Ld.District Forum erred in relying upon the case-laws which were not relevant to the facts of the case. The Appellant therefore, prayed for setting aside/modifying the impugned order.
5) Perused record. Heard arguments on behalf of the parties.
6) The subject policy and the period of complainant's hospitalization and medical treatment are not disputed. It is an admitted fact that she had taken said insurance policy in the year 2009 from Opponent and renewed it year to A/16/589 4 year by paying premium, which was duly accepted by Opponent. It is also not in dispute that the Complainant was diagnosed for congenital internal heart defect and was operated on 03/01/2012 for the same. Hospital papers of Dr.Balabhai Nanavati Hospital dtd.03/01/2012, submitted by Complainant show the title as 'Transcatheter ASD Closure' mentioned under the head 'procedure and report' and the final impression mentioned therein reads as "Successful ASD Closure using 26 mms Amplatzer Device." Complainant also filed discharge summary report dtd.04/01/2012 of the said hospital which also shows the final diagnosis as Transcatheter ASD Closure done on 03/01/2012 and also mentions about the heart surgery including Cath Lab Procedure about successful ASD Closure.
7) We have gone through the said policy document. The said policy is named as Individual Health Suraksha Policy. We find that it is clearly mentioned in policy certificate of the said policy that "Any claim arising or relevant to consequences of the pre-existing disease is excluded from the scope of policy cover." We have also gone through the said clause 3.17 referred by the Opponent on the basis of which opponent had repudiated the Complainant's claim. We observe that 'Exclusions are mentioned in clause 3 of the terms and conditions of the said policy and clause 3.17 provided "Congenital Internal and/or external illness/disease/defect" as one of the exclusions. Thus, it is clear that congenital disease or defect is excluded from the policy coverage. We therefore are of the opinion that as Complainant was suffering from the congenital disease as contended by herself in complaint, the Insurance claim filed by her falls under the above-said exclusion clause 3.17. We also find that the same was excluded being the pre-existing diseaseas mentioned in 'Important provisions' under the head 'Additional conditions, warranties and clauses' in the policy certificate . Advocate for appellant argued that congenital disease is a disease from birth and is excluded from the policy coverage and that the Ld.District Forum cannot rewrite the terms of A/16/589 5 contract of insurance as argued on behalf of appellant. The Ld.District Forum had observed that as there was no knowledge to the Complainant in respect of the said disease, she was entitled for the said insurance claim. However, as per advocate for appellant, knowledge in respect of Congenital disease was not necessary and the very existence of congenital disease entitles the claim to fall under the above exclusion clause. It was also argued on behalf of the appellant that judgment on which the Ld.District Forum had relied was not related to the congenital disease. Advocate for Appellant cited judgment of this Commission in First Appeal No.1312 of 2010 between Branch Manager, Royal Sunderam Alliance Insurance Co. Ltd. & Anr. V/s. Anish Ahmed Kazi & Others decided on 16/09/2011. In the said judgment, it was held that since it is a case based upon Insurance Policy, its terms are to be construed strictly and on its own, the Consumer Fora cannot substitute anything as a part of insurance policy.We agree with the above submissions on behalf of the appellant.
8) Advocate for the respondent during arguments cited judgment of Hon'ble Delhi High Court dtd.26/02/2018 in RFA 610/2016 and CM Nos.45832/2017 and judgment of Hon'ble Madras High Court dtd.09/03/2018 in W.P. No.43202 of 2016 and W.M.P. Nos.37034 and 37035 of 2016. Advocate for respondent pointed out that in the above judgment of Hon'ble Delhi High Court, the Delhi High Court has observed that the exclusionary clause "Genetic Disorders" in the insurance policy is too broad, ambiguous and discriminatory - hence, violative of article 14 of the Constitution of India. The Hon'ble Delhi High Court, therefore, directed IRDA to re-look at the said exclusionary clauses in insurance contracts. In the above judgment of Hon'ble Madras High Court also the above judgment of the Hon'ble High Court was referred. We have gone through the said judgments. We, however, find that this Consumer Commission is empowered to pass orders within the ambit and scope of the Consumer Protection Act, 1986 and to see whether the complaint falls under it and whether the alleged deficiency in service is resulting from A/16/589 6 violation of the agreed terms of contract between the parties. In our opinion, unless the said terms are changed by IDRA in pursuance of the above said directions of the Hon'ble Delhi High Court and unless the same are applicable to the parties to the contract, the benefits of the said judgment cannot be given to parties to the contract of insurance in the instant case. We therefore, find that the insurance claim filed by the Complainant falls under the said exclusion clause 3.17 of the subject policy and we do not find any error in repudiation of the claim by Appellant/Opponent in the instant case. In view of the above discussion, we hold that the appeal is liable to be allowed and the complaint needs to be dismissed. We therefore pass the following order -
ORDER
(i) Appeal No.A/16/589 is allowed.
(ii) The order of Central Mumbai District Consumer Disputes Redressal
Forum, dtd.15/03/2016 in Consumer Case No.189 of 2014 is set aside.
(iii) No order as to cost of this appeal.
(iv) Copies of this order be furnished to the parties.
Pronounced on 08th October, 2018.
[D.R. Shirasao]
Judicial Presiding Member
[A.K.Zade]
Member
aj