State Consumer Disputes Redressal Commission
The New India Assurance Co. Ltd. vs S.K Talwar on 23 February, 2021
IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL COMMISSION
RESERVED ON: 13.01.2021
PRONOUNCED ON: 23.02.2021
FIRST APPEAL NO. 592/2016
IN THE MATTER OF
NEW INDIA ASSURANCE CO. LTD. ....APPELLANT
VERSUS
DR. S.K. TALWAR
THROUGH LR MS. HELEN TALWAR ....RESPONDENT
CORAM:
HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE SH. ANIL SRIVASTAVA, (MEMBER)
Present: MR. SANJAY RAWAT, Counsel for APPELLANT.
MR. NIKHIL MUDIYA, Counsel for RESPONDENT.
PER: HON'BLE DR. JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
[Via Video Conferencing]
1.The appellant/insurance company has preferred the present appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 19.09.2016, passed by the District Consumer Disputes Redressal Forum-VII, Sheikh Sarai, New Delhi in complaint No. DF/VII/383/12/1050-1053, titled as 'Dr. S.K. Talwar v/s The New India Assurance Co. Ltd. And Ors.' By this appeal, the FA 592/2016 Page 1 of 10 appellant/insurance company has prayed for setting aside the order dated 19.09.2016 passed by the District Forum.
2. Brief facts necessary for adjudication of this appeal are that the respondent/insured had purchased a Medi Claim Policy bearing no. 312500/34/09/11/00001120 from the appellant/insurance company which was valid for the period 29.10.2009 to 28.10.2010. In September, 2010 the respondent/insured was diagnosed with "Dengue Fever" and got admitted to Talwar Medical Centre/Hospital on 12.09.2010. The respondent/insured was getting treatment from his son, Dr. Vipin Talwar at the aforesaid Medical Centre which was owned by the respondent/insured himself. Thereafter, the respondent/insured was discharged from the hospital on 17.09.2010 and the hospital raised a bill of Rs. 75,410/- which included the treatment, consultation and hospitalization expenses.
3. The respondent/insured lodged a claim with the appellant/insurance company through Raksha TPA Pvt. Ltd vide claim No. 90221011124199 dated 30.09.2010, however, the claim was repudiated by the appellant/insurance company by placing reliance on the condition No. 3.6 of the Insurance Policy. Thereafter, the respondent/insured approached the Insurance Regulatory and Development Authority (IRDA), however, vide letter dated 30.07.2012, the complaint of the respondent/insured was dismissed on the ground of limitation.
4. It was only after the respondent/insured was not able to get relief from the IRDA, the respondent/insured approached the Consumer Dispute Redressal Forum-VII, Sheikh Sarai, New Delhi wherein the district forum vide its order dated 19.09.2016, directed the FA 592/2016 Page 2 of 10 appellant/insurance company to honour the claim and also awarded compensation in favour of the respondent/insured.
5. Aggrieved by the order of the District Forum, the appellant/insurance company filed the present appeal along with an application for condonation of delay.
6. In its appeal before this commission, the appellant/insurance company has contended that impugned order suffers from infirmity as the same has been passed without due regard to the evidence produced; that the conjunct reading of clause 3.2 and 3.6 of the Insurance Policy reflects that the Medical Practitioner who is a family member of the insured, running a hospital where the insured gets treatment, will also be excluded from the coverage of the policy, hence, the repudiation of claim was on valid grounds; that there were various panel hospitals near the residence of the complainant where the insured/complainant could have got cashless treatment, however, despite the said fact, the respondent/insured opted for the hospital owned by his son and that the District Forum has arbitrarily allowed an interest @ 15% p.a. without sufficient reasons. Relying on the aforesaid grounds, appellant/insurance company has prayed that the appeal should be allowed and the impugned order should be set aside.
7. Vide order dated 24.01.2017, notice was issued to the respondent/insured and the counsel for respondent/insured appeared on the next date of hearing i.e. 10.07.2017. The application for condonation of delay was allowed vide order dated 05.12.2017 and the delay of 42 days in filing the present appeal was condoned and vide the same order, the respondent/insured was directed to file reply to appeal.
FA 592/2016 Page 3 of 108. In furtherance of the aforesaid order, the respondent/insured filed his reply to the appeal. In his reply to the appeal, the respondent/insured has reiterated the findings of the District Commission.
9. We have perused the material available on record as well as the impugned judgment.
10. The District Forum, in its order dated 19.09.2016 has observed as under:
"The complaint has made claim of Rs. 75,410/- which includes the cost of consultant visits amounting of Rs. 8,250/-. the terms of the policy is very clear. Clause 2.0 illustrate the expenses which are reimbursable under the policy. In such list of reimbursable, the fee of medical practitioner is listed in of clause 2.3. Thereafter clause 3.0 defines various terms used in the policy conditions which includes those terms which are in clause 2.0. Clause 3.6 only defines terms of medical practitioner which is covered under clause 2.3. In no stretch of interpretation, clause 3.6 gives the OP's any right to repudiate entire claim of the complainant which is admissible under clause 2.0 as the definition clause only defines particular clause and does not frustrate the entire claim which are reimbursable under clause 2.0. Hence we hold that repudiation of the claim by the OP- I, OP-II and OP-III solely on the clause 3.6 is incorrect and is liable to be set aside. Clause 3.6 only excludes the payment made to the doctor who is the family member, which in his case is Rs. 8,250/-. The OP is liable to deduct only that amount from the entire claim of the complainant under clause 3.6."
11. The moot ground of the present appeal is that the District Forum failed to rely on the specific clause 3.2 and 3.6 of the insurance policy, on the basis of which the claim of the respondent/insured was initially repudiated. In order to finally adjudicate the case, we deem it FA 592/2016 Page 4 of 10 appropriate to reproduce the said two clauses. Clause 3.2 and 3.6 reads as follows:
"3.2. Housing/Nursing Home:- means any institution in India established for indoor care and treatment of sickness and injuries and which has been registered either as a hospital or nursing home with the local authorities and is under the supervision of a registered and qualified medical practitioner. 3.6. Medical Practitioner :- means a person who holds a degree/diploma of a recognized institution and is registered by Medical Council of respective State of India. The term Medical Practitioner would include physician, Specialist and Surgeon and shall not include insured person and members of his family covered under this Insurance."
12. The appellant/insurance company has argued that the conjunct reading of clause 3.2 and 3.6 of the Insurance Policy reflects that the Medical Practitioner who is a family member of the insured, running a hospital where the insured gets treatment, will also be excluded from the coverage of the policy, hence, the repudiation of claim was on valid grounds. Per contra, the respondent/insured has argued that clause 3.6 only applies to the claim of reimbursement of the fees of the medical practitioner which is reimbursable under clause 2.3 of the policy condition and clause 3.6 does not apply to the claim of the other expenses which is covered under clauses 2.1, 2.2, 2.4 & 2.9 of the policy conditions. In order to clarify the situation we deem it appropriate to reproduce clause 2:
"2.0. Following reasonable customary and necessary expenses are reimbursable under the policy:
2.1 Room , boarding and nursing expenses as provided by the Hospital/Nursing Home not exceeding 1.0% of the sum insured (excluding Cumulative Bonus ) per day or actual amount , whichever is less.FA 592/2016 Page 5 of 10
2.2 Intensive Care Unit (ICU) / Intensive Cardiac Care Unit (ICCU) expenses not exceeding 2.0% of the sum insured (excluding Cumulative Bonus) per day or actual amount , whichever is less. 2.3 Surgeon, Anesthetist, Medical Practitioner, Consultants' Specialist fees.
2.4 Anesthesia, Blood, Oxygen, Operation Theatre Charges , Surgical Appliances , Medicines & Drugs , Dialysis , chemotherapy , Radiotherapy , Artificial Limbs , Cost of Prosthetic devices implanted during surgical procedure like Pacemaker , Relevant Laboratory/Diagnostic test ,X-Ray and other medical expenses related to the treatment .
2.5. Pre-hospitalization medical charges up to 30 days period immediately before the insured's admission to hospital for that illness or injury. 2.6. Post hospitalization medical charges up to 60 days period immediately after the insured's discharge from the hospital for that illness or injury . Note :
1. The amount payable under 2.3 and 2.4 shall be at the rate applicable to the entitled room category.
Incase insured opts for a room with rent higher than the entitled category as under 2.1 , the charges payable under 2.3 and 2.4 shall be limited to the charges applicable to the entitled category.
2. No payment shall be made under 2.3 other than part of the hospitalization bill .
2.7. Expenses incurred for Ayurvedic/Homeopathic/Unani Treatment are admissible up to 25% of the sum insured provided the treatment is taken in a Government hospital . 2.8. Ambulance services - 1.0% of the sum insured or actuals , whichever is less , subject to maximum of Rs. 2500/- in case the patient has to be shifted FA 592/2016 Page 6 of 10 from residence to hospital for admission in Emergency Ward or ICU or from one hospital/Nursing Home to another Hospital/Nursing Home by fully equipped ambulance for better medical facilities .
2.9. Hospitalization expenses (excluding cost of organ ) incurred on the donor during the course of organ transplant to the insured person. The company's liability towards expenses incurred on the donor and the insured recipient shall not exceed the sum insured set for the insured person , receiving the organ .
2.10
(a) Person paying Zone l premium can avail treatment in any Zone. The maximum liability will be 100% of the Sum insured.
(b) Person paying Zone ll premium i. Availing treatment in Zone ll and Zone lll, the company's liability will be 100% of the sum insured.
ii. Availing treatment in Zone l will have to bear 10% of each claim. The maximum liability of the Company will not exceed 90% of the sum insured.
(c) Person paying Zone lll premium i. Availing treatment in Zone lll, the maximum liability of the company will be 100% of the sum insured.
ii. Availing treatment in Zone ll will have to bear 10% of each claim. The maximum liability of the company will not exceed 90% of the sum insured. iii. Availing treatment in Zone l will have bear 20% of each claim. The maximum liability of company will not exceed 80% of the sum insured."
FA 592/2016 Page 7 of 1013. The law with regard to the interpretation and construction of the terms of the insurance policy have been discussed by the Hon'ble Apex Court in Sushilaben Indravadan Gandhi and Another V/s New India Assurance Company Limited and Others reported at 2020 SCC OnLine SC 367, wherein the Hon'ble Apex Court has held that:-
"31. Likewise, in Export Credit Guarantee Corpn. of India Ltd. v. Garg Sons International, (2014) 1 SCC 686, this Court held:
"11. The insured cannot claim anything more than what is covered by the insurance policy. "The terms of the contract have to be construed strictly, without altering the nature of the contract as the same may affect the interests of the parties adversely." The clauses of an insurance policy have to be read as they are. Consequently, the terms of the insurance policy, that fix the responsibility of the insurance company must also be read strictly. The contract must be read as a whole and every attempt should be made to harmonise the terms thereof, keeping in mind that the rule of contra proferentem does not apply in case of commercial contract, for the reason that a clause in a commercial contract is bilateral and has mutually been agreed upon. (Vide Oriental Insurance Co. Ltd. v. Sony Cheriyan [(1999) 6 SCC 451] , Polymat India (P) Ltd. v. National Insurance Co. Ltd. [(2005) 9 SCC 174 : AIR 2005 SC 286] , Sumitomo Heavy Industries Ltd. v. ONGC Ltd. [(2010) 11 SCC 296 : (2010) 4 SCC (Civ) 459 : AIR 2010 SC 3400] and Rashtriya Ispat Nigam Ltd. v. Dewan Chand Ram Saran [(2012) 5 SCC 306 : AIR 2012 SC 2829].)"
Likewise, in BHS Industries v. Export Credit Guarantee Corpn. Ltd., (2015) 9 SCC 414, this Court held:
"31. As has been held in Chandumull Jain [AIR 1966 SC 1644 : (1966) 3 SCR 500] by the Constitution Bench that in a contract of insurance, there is a requirement of good faith on the part of the insured and in case of ambiguity, it has to be construed against the company. As per other authorities, the insurance policy has to be strictly construed and it has to be read as a whole and nothing should be added or subtracted.FA 592/2016 Page 8 of 10
That apart, as has been held in Polymat India (P) Ltd. [(2005) 9 SCC 174] , it is the duty of the Court to interpret the document as is understood between the parties and regard being had to the reference to the stipulations contained in it.
35. The terms of the policy are to be strictly construed. There can be no cavil about the proposition of law that in case of ambiguity, the construction has to be made in favour of the insured."
14. Returning to the facts of the present case, a bill dated 17.09.2010 amounting to Rs. 75,410/- has been drawn by the Talwar Medical Centre upon the respondent/insured, which includes room charges, laboratory charges, injection charges, medicines, consultant's charges, etc. and also of consultant visits amounting to Rs. 8250/-.
15. Applying the aforesaid dicta of the Apex Court, the strict and actual interpretation of clause 3.6 and clause 2 reflects that the Insurance Company is allowed to make the deduction of the medical practitioner's fees only, from the Insurance claim and it cannot deny the remaining amount claimed by the respondent/insured. The interpretation given in the claim repudiation letter does not stands in consonance with the judicial pronouncement of the Hon'ble Apex Court, thus is not at all acceptable. In terms of the aforesaid discussion, we hold that the insurance company was not justified in repudiating the claim of the respondent/insured and the findings of the District Forum are well reasoned, based on proper appreciation of facts and law.
16. The second contention of the appellant/insurance company is that there were various panel hospitals near the residence of the complainant where the respondent/insured could have got cashless treatment, however, despite the said fact, the insured/ complainant FA 592/2016 Page 9 of 10 opted for the hospital owned by his son. We are unable to agree with this contention of the appellant/insurance company. The appellant/insurance company cannot direct the respondent/insured to get treatment from any specific hospital only, given that the hospital from where the insured is getting the treatment is a hospital on the panel of the insurance company. Hence, the contention of the appellant/insurance company does not sustain and is answered in the negative.
17. In terms of the aforesaid discussion, we uphold the order passed by the District Consumer Dispute Redressal Forum-VII, Sheikh Sarai, New Delhi.
18. No order as to costs.
19. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
20. File be consigned to record room along with a copy of this judgment.
(DR. JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (ANIL SRIVASTAVA) MEMBER Pronounced On:
25.02.2021 FA 592/2016 Page 10 of 10