State Consumer Disputes Redressal Commission
R S Taneja vs Niacl on 10 June, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 134 of 2013 Date of Institution : 28.03.2013 Date of Decision : 10.6.2013 R.S. Taneja s/o Late Sh. N.R. Taneja, R/o H.No. 3309, Sector 15/D, Chandigarh 160015. Appellant/Complainant. Versus 1. New India Assurance Co. Limited (through Divisional Manager), SCO No. 36-37, Sector 17-A, Chandigarh 160017. 2. Life Insurance Corporation of India, Divisional Office (through Manager, O/S Department), Jeevan Prakaash Building, Sector 17, Chandigarh. .Respondents/Opposite Parties. Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
Argued by: Sh. Devinder Kumar, Advocate alongwith Sh.R. S. Taneja, appellant in person.
Sh. Parvinder Singh Bedi, Advocate for respondent No.1.
Sh. Pawan Kumar Longia, Advocate for respondent No.2.
PER DEV RAJ, MEMBER.
This appeal is directed against the order dated 28.02.2013 of the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), passed in Consumer Complaint No.239 of 2012 vide which, it dismissed the complaint of the complainant with no order as to costs.
2. Briefly stated, the facts are that the complainant being a retired employee of Opposite Party No.2 was a beneficiary of Group Medi-claim Insurance Policy for the period from 1.4.2010 to 31.3.2011 issued by Opposite Party No.1,. It was stated that the complainant took treatment from Grewal Eye Institute, for his eyes for INTRA RETINAL EDOMA (LE) & NOT ARMD. Three Avastin Injections after a gap of one month each, were given to the complainant on 12.4.2010, 11.5.2010 and 9.6.2010, to remove the blood stain inside the retina after proper admission in the hospital. Three medi-claim bills for Rs.20,630/-, Rs.13,265/- and Rs.17,287/-, totaling to Rs.51,182/- were submitted on 21.04.2010, 17.05.2010 and 12.07.2010 respectively to Opposite Party No.1. In the first instance, the first two bills were passed and the complainant was paid Rs.33,895/- but the third bill was withheld. Subsequently, Opposite Party No.1, reopened the earlier two bills also and in response to a recovery notice for Rs.22,713/-, the complainant refunded this amount on 28.10.2011 under protest. It was further stated that the complainant preferred an appeal against this uncalled for decision to the Chief Regional Manager of Opposite Party No.1 but he received a final rejection letter dated 13.12.2011. It was further stated that Opposite Party No.1 did not accept the plea of the complainant for settlement of his claim that the Policy for the year 2010-2011 was a renewed medi-claim policy on continuous basis, and the existing benefits under the same were to continue. It was further stated that earlier, there was no exclusion clause for this disease in the Policy conditions for the year 2009-2010, which was subsequently, introduced by the Company after signing MOU/Contract with LIC of India on 9.9.2010, where-after the changed Policy conditions were issued on 1.4.2011. It was further stated that the operations were performed on 12.4.2010, 11.5.2010 and 09.6.2010. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, and indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), for directing the Opposite Parties to pay Rs.40,000/- for injection Avastin being the unpaid mediclaim bills alongwith interest @12% per annum, Rs.40,000/- as compensation for harassment and mental agony, and Rs.10,000/- as cost of litigation, was filed.
3. Opposite Party No.1, in its written version, took up some preliminary objections that the complaint was false, frivolous and that the complainant was not a consumer qua it, as the Group Medi-claim Insurance Policy had been issued to Opposite Party No.2. It was stated that since the injection Avastin was not payable, as per exclusion clause 4.13 of the terms and conditions of the Policy, the claim was rightly rejected. It was admitted that the complainant was covered under the Group Medi-claim Insurance Policy valid from 01.04.2009 onwards. It was further stated that the policy was renewed on 1.4.2010 and was valid up-to 31.03.2011. It was further stated that the claim filed by the complainant was repudiated on 24.8.2010 in view of exclusion Clause 4.13 of the terms and conditions of the Insurance Policy, which was duly informed to Opposite Party No.2. It was further stated that the three claims preferred by the complainant in which he had claimed Rs.16,000/- + Rs.12,000/- + Rs.12,000/- respectively for Injection Avastin were not payable as per the terms & conditions of the policy. It was further stated that there was neither any deficiency, in rendering service, on the part of the Opposite Party No.1, nor did it indulge into unfair trade practice.
4. Opposite Party No.2, in its written version, also took up some preliminary objections that the complainant was not a consumer qua it. It was stated that the terms and conditions of Group Medi-claim Scheme for LIC employees (in-service and retired) were in the knowledge of all the employees and the same were duly supplied by Opposite Party No.1. It was further stated that the two bills submitted by the complainant for the treatment taken on 12.04.2010 and 11.05.2010 were settled on 07.07.2010 by Opposite Party No.1. It was further stated that the total claimed amount was Rs.51,182/- against which payable amount payable was Rs.11,182/-. It was further stated that in the first instance, the complainant was paid Rs.33,395/- by Opposite Party No.1 but subsequently, recovery of Rs.22,713/- was made from him. It was further stated that Opposite Party No.1, rejected the bills, in part, on the ground that injection Avastin was not payable under exclusion Clause 4.13 of the terms and conditions of the policy. It was further stated that Opposite Party No.2, performed its duty and forwarded all the records of the complainant to Opposite Party No.1. It was further stated that there was neither any deficiency, in rendering service, on the part of the Opposite Party No.2, nor did it indulge into unfair trade practice.
5. The complainant filed rejoinders by way of affidavit to the written statements, filed by Opposite Parties No.1 and 2, wherein he reiterated the averments, made in the complaint, and repudiated those made in the written statements by the Opposite Parties.
6. The parties led evidence, in support of their case.
7. After hearing the complainant, in person, Counsel for the Opposite Parties, and, on going through the evidence, and record, the District Forum, dismissed the complaint, with no order as to costs.
8. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.
9. We have heard the Counsel for the parties, and, have carefully perused the record of District Forum as also the written submissions of the appellant.
10. The Counsel for the appellant submitted that the MOU was signed on 09.09.2010 and contents of Para No.2 clearly stated that the insurer has agreed to renew the Group Mediclaim Policy for the year 2010-2011 on a continuous basis. He further submitted that at Page No.31 Clause (d), it was mentioned that all pre-existing diseases were covered under the policy for all the insured persons. It was further submitted that the policy conditions relied upon by the respondents as well as the District Forum, were signed on 01.04.2011 i.e. after the expiry of the validity period of the policy from 01.04.2010 to 31.03.2011, to which Opposite Party No.1 could not give retrospective effect by any stretch of imagination. It was further submitted that the respondents asked the appellant to refund the amount of Rs.22,713/-. It was further submitted that the rest of the charges like O.T. charges, anesthetic care, nursing assistance and room rent were payable as per Clause 1.0 even in the new policy. The Counsel for the appellant further submitted that the contention of the respondents that they settled the claim except the amount of Avastin injection was totally wrong. It was further submitted that the Doctor had clearly stated that Mr. R. S. Taneja had Eye Surgery (LE) for Intra retinal edema and not ARMD on 12.4.2010 and the intravitral Avastin Injection was given in the Retina (LE) in the operation theatre under Anesthesia. It was further submitted that the appellant had visited the Doctor on 26.03.2010 i.e. during the currency of the previous policy and the treatment was in continuation of the same. It was further submitted that the respondents have filed wrong affidavits in support of their contention. It was further submitted Clause 4.13 was required to be brought to the notice of the employees, before the inception of the policy. It was further submitted that the respondents did not produce any document or postal proof of having sent the repudiation letter dated 24.08.2010. It was further submitted that Clause of 24 hour stay was not applicable in case of eye surgery. The Counsel for the appellant also placed reliance on the judgment of Honble Andhra Pradesh High Court in Dr. T. Suresh Vs. Oriental Insurance Co. Ltd. and others, 2010 AIR (A.P.) 86. It was further submitted that the respondents indulged in grave unfair trade practices and they should be heavily penalized for providing deficient service to the appellant, due to which he suffered deep mental agony and harassment and he needed to be compensated for the same. It was further submitted that the impugned order, passed by the District Forum, being unsustainable, in the eye of law, be set aside and he relief claimed by the appellant in his complaint be allowed.
11. During the course of arguments, the main contention of Counsel for respondent No.1 was that since the policy for the year 2010-2011 though issued on 1.4.2011 included exclusion clause 4.13, they had rightly denied reimbursement of mediclaim to the appellant/ complainant.
12. The Counsel for respondent No.2 was in agreement with the position that the policy having been issued on 1.4.2011, the exclusion clause introduced, could not be made applicable to the treatment undertaken by the appellant/complainant in April-June, 2010 during the currency of the policy from 1.4.2010 to 31.3.2011.
13. The appellant/complainant is a retired employee of Opposite Party No.2. He was a beneficiary of Group Mediclaim Insurance Policy issued by Opposite Party No.1 to Opposite Party No.2. These facts are not in dispute.
14. The main question, which falls for consideration is as to whether, on the basis of the exclusion clause 4.13 introduced in the Group Mediclaim Policy for the period from 1.4.2010 to 31.3.2011, on 1.4.2011, denial of medical claim of the complainant to the extent of Rs.40,000/-, was in order or not? The details of treatment, undertaken by the appellant, amount of bills (Annexures A-8 to A-10) and payment received by him are tabulated hereunder:-
Period of treatment Amount of Bill.
Amount paid initially Amount recovered subsequently 12.04.2010 Rs.20,630/-
Rs.20,630/-
Rs.22,713/-
11.05.2010 Rs.13,265/-
Rs.13,265/-
09.06.2010 Rs.17,287/-
Not Paid
-
Total:
Rs.51,182/-
Rs.33,895/-
Rs.22,713/-
15. The appellant/complainant was not paid any amount against the third bill which was for Rs.17,287/-. In all, the appellant/complainant received only Rs.11,182/- against his claim of Rs.51,182/-. Group Mediclaim Insurance Policy No.121400/34/09/12/00000329 for the period 01.04.2009 to 31.03.2010 (Annexure A-4) did not include any exclusion clause. Subsequently issued Policy No.121400/34/10/00000378 covering the period from 01.04.2010 to 31.03.2011 (Annexure A-5) was signed on 01.04.2011 and the same included exclusion Clause 4.13, which reads as under: -
4.13 Lasik Laser treatment performed to get rid of spectacles and/or contract lenses unless the treatment is for keratotomy of Insured having more than (-7) refractive error, if the refractive error develops after the date of coverage, therapeutic reasons like recurrent corneal erosions, nebular opacities and non healing ulcers.
Treatment for Age Related Macula Degeneration (ARMD) and drugs like Avastin, Lucentis, Macugen or other related drugs are not payable.
16. Till issuance of the Policy No.121400/34/10/ 00000378 on 01.04.2011, this exclusion clause was certainly not in the knowledge of the appellant/complainant and Opposite Party No.2 viz. Life Insurance Corporation of India. The appellant/complainant underwent treatment on 12.04.2010, 11.05.2010 and 09.06.2010, whereas the exclusion clause on the basis of which charges of Avastin were denied, came to be known to the appellant and even the Opposite Party No.2, for the first time on or after 01.04.2011. As the issuance of policy on 01.04.2011 did not entitle the respondent/Opposite Party No.1, to enforce the exclusion clause, from retrospective effect, it had remained silent on this aspect. Therefore, denial of claims amounted to giving effect to the exclusion clause retrospectively, which was against the principles of natural justice. Obviously, Opposite Party No.1, acted in an illegal and arbitrary manner, which was highly detrimental to the cause of the appellant/complainant. The appellant/complainant adduced evidence that he was regularly paying the premium. As is evident from the contents of the Insurance Policy, the total premium received by the respondent/Opposite Party No.1 was over 102 Crores. Prima facie, there was utter failure on the part of Opposite Party No.1, in rendering service to the complainant, which not only deprived him of the admissible benefits but also caused mental agony and harassment.
17. During the course of arguments, the Counsel for the respondent/Opposite Party No.2 also agreed that exclusion clause could not be made operative retrospectively when the policy was issued on 01.04.2011. As the claim of the appellant/complainant pertained to his treatment during April-June 2010, the same was required to be governed by the terms and conditions of the existing policy for the relevant period. The Counsel for the appellant placed reliance upon the judgment of Honble Andhra Pradesh High Court in Dr. T. Suresh Vs. Oriental Insurance Co. Ltd. and others, 2010 AIR (A.P.) 86, wherein the Honble High Court, in Para No.8, held as under:
-
8It is not alleged that the petitioner delayed the payment of premium at any point of time. Once the policy was taken and it is being renewed from time to time, it virtually becomes a continuous phenomenon, and any change as to the coverage that takes place in between, would not apply to the policyholder. The change, as regards coverage, may apply to those persons who take out a policy for the first time or where, their existing policy is elapsed and a necessity has arisen to take out a fresh policy after it.
18. Undoubtedly, the mediclaim of the appellant/complainant was denied wrongly, which constituted deficiency, in rendering service, by Opposite Party No.1, besides causing a lot of mental agony and physical harassment to the complainant.
19. No other point, was urged, by the parties.
20. In view of the above discussion, we are of the considered view that the District Forum erred in appreciating the evidence, in its proper perspective, and law on the point. Thus, it fell into a grave error in dismissing the complaint.
21. For the reasons recorded above, the appeal is accepted with costs. The impugned order, rendered by the District Forum, is set aside. However the complaint, is partly allowed qua Opposite Party No.1 only. The respondent/Opposite Party No.1, is directed as under: -
(i) to pay Rs.40,000/- to the complainant, being the balance amount of mediclaim bills;
(ii) to pay Rs.20,000/- as compensation, for deficiency, in rendering service, mental agony and physical harassment;
(iii) to pay Rs.10,000/- to the complainant, as costs of litigation.
22. This order shall be complied with, by the respondent/Opposite Party No.1, within a period of 45 days, from the date of receipt of its certified copy, failing which, it shall be liable to pay the amounts mentioned in Clauses (i) and (ii) alongwith interest @9% p.a. from the date of filing the complaint till the date of actual payment to the appellant/complainant, besides paying the litigation costs as aforesaid.
23. However, the appeal against respondent/Opposite Party No.2, stands dismissed, with no order as to costs.
24. Certified Copies of this order be sent to the parties, free of charge.
25. The file be consigned to Record Room, after completion.
Pronounced.
10th June, 2013.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Ad STATE COMMISSION (First Appeal No.134 of 2013) Argued by: Sh. Devinder Kumar, Advocate alongwith Sh.R. S. Taneja, appellant in person.
Sh. Parvinder Singh Bedi, Advocate for respondent No.1.
Sh. Pawan Kumar Longia, Advocate for respondent No.2.
Dated the 10th day of June, 2013.
ORDER Vide our detailed order of the even date, recorded separately, appeal is accepted qua respondent/Opposite Party No.1 only, with costs, as per the directions. The order of the District Forum is set aside and the complaint is partly allowed.
(DEV RAJ) MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Ad