National Consumer Disputes Redressal
Dr. Varsha Trivedi vs New India Assurance Co. Ltd. & Anr. on 24 May, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 237 OF 2017 (Against the Order dated 02/09/2016 in Appeal No. 1010/2014 of the State Commission Maharashtra) 1. DR. VARSHA TRIVEDI R/AT SHANTI HOUSE 27-B, SIRI ROAD, MALABAR HILL, MUMBAI-400006 MAHARASHTRA ...........Petitioner(s) Versus 1. NEW INDIA ASSURANCE CO. LTD. & ANR. 2ND FLOOR, MITTAL CHAMBERS NARIMAN POINT, MUMBAI-400020 MAHARAHSTRA 2. VIDAL HEALTH TPA, FORMERLY KNOWN AS T.T.K. HEALTH CARE TPA PVT. LTD. 413/422 B, WING CHINTAMANI PLAZA, MOHAN STUDIO COMPOUND ANDHERIKURLA ROAD, CHAKALA, ANDHERI (E) MUMBAI-400099 MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. DR. B.C. GUPTA,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER For the Petitioner : Mr. Shreeram Shirsat, Advocate For the Respondent : For the Respondent No.1 Mr. Asim Vidyarthi, For the Respondent No.2:Ex parte Dated : 24 May 2018 ORDER DR. S. M. KANTIKAR, MEMBER
1. The complainant/petitioner filed this revision petition under Section 21(b) of the Consumer Protection Act, 1986 against the order dated 02-09-2016 in Appeal No.A/14/1010 of the Maharashtra State Consumer Disputes Redressal Commission (for short "the State Commission") which allowed the appeal filed by OP-1 and dismissed the complaint.
2. The brief facts are that, from year 2001, complainant took a mediclaim policy for a sum assured of Rs.2,00,000/- from New India Assurance Company Ltd. (OP-1). The policy was renewed every year. In the year 2007, the complainant decided to upgrade her policy to the sum of Rs.5,00,000/-. Accordingly, the basic premium was raised from Rs.3,743/- to Rs.7,640/- and the policy was issued which was valid from 16-10-2007 to 15-10-2008. Thereafter, as the complainant was out of Mumbai, she could not renew the policy on time. So, a renewal premium of Rs.6,876/- was paid by her on 19-11-2008. The policy was renewed for the period of 19-11-2008 to 18-11-2009. In May, 2009, she had suffered abdominal pain and heavy bleeding. On 05-06-2009, she underwent a surgery for fibroids of tissues in the uterus at Breach Candy Hospital, Mumbai. She was discharged on 10-06-2009. The complainant incurred Rs.2,09,213.75/- towards hospitalisation expenses. Accordingly, she submitted her mediclaim for reimbursement with the OPs. OP-1 vide letter dated 12-04-2010 repudiated the claim on the ground that, her case falls under exclusion clause. Therefore, being aggrieved by the repudiation, the complainant filed a complaint before the South Mumbai District Consumer Disputes Redressal Forum (for short "the District Forum") claiming reimbursement of the amount and other reliefs.
3. OP-1 resisted the complaint and filed a written version before the District Forum. OP-2 did not file any written version. The OP-1 submitted that the policy was in force continuously since 2001; but in the year 2008-2009 the policy was renewed with the break of 33 days. Therefore, it was a fresh policy, which excludes the claim for the first two years. The operation of uterine fibroid is excluded for first two years from the scope of the policy. Therefore, the claim of the complainant was not payable as per the terms & conditions of the policy under clause 4.3. There was no deficiency in service on the part of the OP-1.
4. On the basis of evidence of both the parties, the District Forum partly allowed the complaint and directed the OPs to pay Rs.2,09,214/- to the complainant towards medical reimbursement with interest @ 6% p.a. from 12-04-2010 till realization along with compensation and cost of Rs.20,000/- and Rs.8,000/- respectively. Being aggrieved, OP-1 filed the first appeal before the State Commission, it was allowed and, consequently, the complaint was dismissed. Against the impugned order of the State Commission the complainant filed the instant revision petition.
5. We have heard the learned counsel for both the parties. The counsel for both parties made their submissions as stated in their evidence. We have given our thoughtful consideration. It is an admitted fact that the mediclaim policy was commenced from the year 2001 and it was renewed regularly. On 15-10-2007; the sum assured was upgraded to ₹ 5 lakh from ₹ 2 lakh and the policy No. 111400/48/06/200/70064 was issued for period of 16.10.2006 to 15.10.2007. It was renewed from 16-10-2007 to 15-10-2008. However, the said policy was not renewed on the date of next renewal i.e. 16-10-2008 but it was renewed on 19-11-2008 for the period from 19-11-2008 to 18-11-2009. Thus, there was a break of 33 days in renewing the policy.
6. Admittedly, the complainant's policy was in force from 16-10-2007 to 15-10-2008. The next policy was issued by OP was for the period of 19-11-2008 to 18-11-2009; there was a gap of 33 days (16-10-2008 to 18-11-2008). There was no continuity in the policy. The complainant relied upon the previous policy of 2008-2009. The counsel for the OP relied upon the judgment of this Commission in New India Assurance Co. Ltd. Vs. Nanak Singla & Ors., (1) (2005) CPJ 599 NC wherein it was held that if there is a gap in renewal of the policy, the next policy is considered to be a new policy. The counsel has drawn our attention to the terms & conditions i.e. clause no.4.3 about the continuous renewal of the policy without any break. He has also submitted that for the treatment of Fibromyoma, the claim can be made only after two years.
7. The learned counsel for the complainant submitted that the OP issued the new renewed policy bearing no.1114000/341/08/11/00015172 for the period from 19-11-2008 to 18-11-2009. On careful reading of the policy, it categorically mentioned that "Previous mediclaim policy number (Renewed) 11140048062070010064, therefore, the terms and conditions should be same as the previous policy, even though there was delay of 33 days. In our considered view, the exclusion clause in the instant case is not applicable. It is surprising that if the OP had issued the policy as new policy, then none has prevented the OP to mention it as "fresh new policy". It is an admitted fact that since 2001 the policy was in force and renewed regularly every year. In the year 2008, the complainant renewed the policy after a gap of 33 days and after due verification only OP had issued the policy mentioning it as renewed previous policy. Admittedly, the complainant underwent surgery for Fibroid in June, 2009 when the renewed policy was in force. Therefore, the repudiation was not justified. The counsel relied upon the decision of this Commission in the case Oriental Insurance Co. Ltd. Vs. Ram Kumar Garg decided on 05-07-2011, wherein it was held that, although there was a small gap between two policies, it was not in dispute that there was no change in respect of the persons and coverage of insured amount. This Commission further held that there was neither change in date nor any fresh medical examination and hence the policy was bound to be treated as a continuous policy. The repudiation of the claim of the complainant under clause 4.3 of the policy was unjustified. Considering the factual position and the decisions of this Commission, in our view, the medi-claim policy was commenced in 2001 and it was continuously in force.
8. We, further, would like to rely upon the decision of the Hon'ble Supreme Court in New India Assurance Co. Vs. Kiran Singh, 2004 ACJ SC 1176 whereby the Apex Court has held that insurance is covenant of good faith. The insurance company should bear in mind that they are the trustees of the public. Often even genuine claims are being hotly contested in a routine manner by dragging the parties to the court, wasting enormous time and money for the claimant to get their claim settled. In another case, Biman Krishna Bose Vs. United India Insurance Co., 2001 (6) SCC 477, the Hon'ble Supreme Court made observations on important aspects of renewal of mediclaim policy. It was held that renewal of an insurance policy means repetition of the original policy. When renewed, the policy is extended and the renewed policy in the identical terms from a different date of its expiration comes into force. In common parlance, by renewal, the old policy is revived and it is a sort of substitution of obligations under the old policy unless such policy provides otherwise.
9. In our view, the State Commission has failed to consider that, since there was no change in the terms of the policy, the renewed policy itself would fall under the ambit of continued policy and, therefore, the policy clause no.4.3 is inapplicable in the instant case. Since there was no fresh medical examination conducted by the insurer, such policy shall not be a fresh policy, but it should be treated as continued policy. Further, we cannot overlook the fact that the State Commission has decided the appeal ex-parte against the complainant.
10. In the light of the aforesaid discussion, the present revision petition is allowed, the impugned order of the State Commission is set aside and the order passed by the District Forum, allowing the consumer complaint is restored. Further, it has been stated in the memo of revision petition that a sum of Rs.2,97,226/- in terms of the order of the District Forum dated 17.09.2014 already stands paid to the complainant vide NEFT transaction dated 20.02.2015 by OP-2 i.e. Vidal Health TPA. However, as stated by the petitioner, the OP-1/Insurance Company did not disclose the factum of payment of the said amount while filing appeal before the State Commission. We, therefore, feel that the respondent/insurance company has caused undue harassment to the complainant, for which, a cost of ₹25,000/- is ordered to be imposed on the OP-1/Insurance Company, which shall be payable to the complainant, within four weeks from the date of receipt of a copy of this order.
...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER