State Consumer Disputes Redressal Commission
National Insurance Company Ltd., vs Manoj Kumar Barmecha on 21 August, 2013
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1336 of 2009
Date of institution: 18.9.2009
Date of Decision : 21.8.2013
National Insurance Company Ltd., Regional Office SCO Nos. 332-334,
Sector 34-A, Chandigarh through its duly constituted Attorney.
.....Appellant/Opposite Party No. 1
Versus
1. Manoj Kumar Barmecha son of Shri Jeth Mal, East India Transport
Agency, NN 2, Patel Chowk, Jalandhar City (Punjab).
.....Respondent No.1/Complainant
2. M/s Family Health Plan Ltd., SCO No. 58-59, Ist Floor, Sector 34-A,
Chandigarh and 34, Sai Enclave, Ist Avenue, Road No. 12, Banjara
Hilla, Hyderabad.
...Respondent No. 2/O.P. No. 2
First Appeal against the order dated 23.7.2009
passed by the District Consumer Disputes
Redressal Forum, Jalandhar.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Piare Lal Garg, Member Shri Jasbir Singh Gill, Member Argued By:-
For the appellant : Sh. Munish Goel, Advocate
For respondent No.1 : Ex.-parte.
For respondent No.2 : Ex.-parte.
Gurcharan Singh Saran, Presiding Judicial Member The appellant/opposite party No. 1 has filed the present appeal against the order dated 23.7.2009 passed by the District Consumer Disputes Redressal Forum, Jalandhar(hereinafter called "the District Forum") in consumer complaint No. 97 of 2008.
2. The complainant/respondent No.1-Manoj Kumar Barmecha has filed the complaint under Section 12 of the Consumer First Appeal No. 1336 of 2009 2 Protection Act, 1986 (in short 'the C.P. Act') on the allegations that the complainant alongwith his wife Kusum Devi has taken the joint Individual Mediclaim (Hospitalization and Domicilary Hospitalization Benefit) Policy from opposite party No. 1 for the period 28.1.2005 to 27.1.2006 for a sum of Rs. 50,000/- of each insured and the premium of Rs. 1460/- was paid to O.P. No. 1 through its agent. At the time of renewal of the policy, he was not suffering from any disease. Earlier also he has taken the policy in the year 2004-2005 and subsequent year 2006-2007 he again take the medi-claim policy. The opposite party did not deliver the policy document to the complainant during the whole period of policy nor ever attached the policy schedule. Opposite Party No. 1 had given only the cover note that the terms and conditions including the exclusion clause were not communicated and were not the part of the insurance. The complainant suffered of piles pain and get admitted in Saroj Hospital and Heart Institute on 2.11.2005. After detailed examination and tests, the complainant was taken inpatient surgical treatment for Lords dilatation & hemarrhodeectomy was done and was discharged on 4.11.2005 and then he referred a claim for reimbursement of expenses of Rs. 19,000/- and submitted its original bills and receipts of payment. However, to the utter astonishment of the complainant, the medi- claim of insurance was rejected by the opposite party vide its letter dated 18.2.2005 on the reason that the first year exclusion clause of the medi-claim policy due to which the claim is repudiated due to 16 days gap. The complainant was also not aware that he was suffering from disease/problem at the time of renewal of the medi-claim policy First Appeal No. 1336 of 2009 3 and he was leading normal life and his health profile was good. The opposite party are guilty of rendering deficiency in service, negligent and adopted unfair trade practice and unilateral arbitrary and malafide repudiation of the mediclaim policy. Hence, the complaint for claim for claim of Rs. 19,000/- + Rs. 10,000/- as damages and litigation costs of Rs. 5500/-.
3. The complaint was contested by the opposite party and filed written reply by taking preliminary objections that there is no deficiency in service or unfair trade practice; the claim has been rightly repudiated by the opposite party as it falls within Exclusion Clause 4.3 of Standard Mediclaim Policy; the policy for the period 28.1.2005 to 27.1.2006 was issued and there was a gap of 16 days in the previous policy as the first policy of insurance issued by the opposite party had expired on 12.1.2005; as per the discharge summary, the patient Manoj Kumar admitted to Saroj Hospital and Heart Institute, Delhi with complaints of pain in defection, bleeding P/R since 6 to 8 months and is a known case of fissuls in anus. As per exclusion clause of standard mediclaim policy, there is a first year of the operation of insurance cover, the expenses on treatment of diseases Menorrhegia or Fibromioma, Hernia, Hydrocele, Congenital Internal diseases, Fistula in Anus Piles, Sinnusitis and related disorders are not payable if this is pre-existing at the time of proposal. On merits, it has been stated that when the complainant was insured, the policy alongwith terms and conditions were supplied to the complainant and it has been further stated that the claim of the First Appeal No. 1336 of 2009 4 complainant falls under the exclusion clause 4.3 of the policy, therefore, there is no merit in the complaint filed by the complainant.
4. Both the parties were allowed by the District Forum to lead their evidence.
5. In support of his allegations, the complainant had tendered into evidence Ex. C-1 affidavit of the complainant, Ex. C-2 additional affidavit of the complainant, Ex. C-3 repudiation letter dated 18.2.2006 and Ex. C-4 copy of cover note receipt. On the other hand, the opposite party had tendered into evidence Ex. R-1 affidavit of Sushil Gupta, Br. Manager, N.I.C. Ltd., Ex. R-2 photocopies of cover note receipts, Ex. R-3 terms and conditions of the insurance policy, Ex. R-4 claim form, Ex. R-5 details of amount spent by the complainant on his treatment and Ex. R-6 discharge summary of Saroj Hospital & Heart Institute.
6. After going through the allegations in the complaint and evidence and documents on the record, the learned District Forum in its order observed that there is no dispute that the complainant spent a sum of Rs. 19,000/- for piles operation. In normal circumstances, he would have been entitled to reimbursement of this amount but the insurance company has taken that this claim falls under the exclusion clause 4.3 but it has been observed by the learned District Forum that the policy Ex. R-2 clearly established that the insurance company had given family discount to treat the insurance policy as continuous and not on fresh one despite the gap of about 15 days between the earlier policy and the present policy; so the present case cannot be said under Clause 4.3 and after placing reliance upon "Oriental First Appeal No. 1336 of 2009 5 Insurance Company versus Parkash Devi", 2008(2) CPC page 318. In this case it was held by the Hon'ble National Commission that the insurer had duly acknowledged the renewal of policy and had condoned the delay. It was further observed that where conditions of policy are not clear or capable of more than one interpretation, the interpretation which is in the interest of the consumer should be adopted, therefore, the opposite party has committed deficiency in insurance services by unauthorisedly repudiating the genuine medi- claim of the insured. The insurance company was directed to pay Rs. 19,000/- alongwith interest @ 9% per annum from January, 2006 till actual realization against opposite party no. 1 and costs of litigation as Rs. 3,000/-.
7. Aggrieved with the order passed by the learned District Forum, the appellant/opposite party No. 1 has filed the present appeal.
8. In the grounds of appeal, it has been contended by the appellant that the policy was valid from 28.1.2005 to 27.1.2006 and respondent No. 1 suffered from piles and got admitted in Saroj Hospital and Heart Institute on 2.11.2005 and therefore, the claim of Rs. 19,000/- had fallen under the exclusion clause 4.3 as there was a gap of 16 days between the expiry of the earlier policy and the inception of the policy in question and the learned District Forum has seriously erred in holding that the present case could not be said to be covered under Clause 4.3 of the Policy. Now the disease of respondent No. 1 was said to be pre-existing and wrongly relied upon First Appeal No. 1336 of 2009 6 judgment of "Oriental Insurance Company versus Parkash Devi", 2008(2) CPC 318.
9. We have heard Mr. Munish Goel, Advocate, learned counsel for the appellant and none is present for the respondent.
10. The terms and conditions of the policy had been placed on record by the appellant as Ex. R-3. The clause 4.3 of the policy reads as under:-
"4.3 During the first year of the operation of insurance cover, the expenses on treatment of diseases such as Cataract, Benign Prostatic Hypertrophy, Hysterectomy for Menorrhegia or Fibromiom, Hernia, Hydrocele, Congenital Internal diseases, Fistula in Anus, Piles, Sinusitis and related disorders are not payable if these diseases are pre-existing at the time of proposal, they will not be covered even during subsequent period of renewal too.
11. The interpretation of this clause will reveal that during the Ist year of the operation, insurance cover was not available and it was not payable if this diseases are pre-existing at the time of proposal, there subsequent period of renewal too. The opposite party has also relied upon another document Ex. R-6. In discharge summary complaint of pain in defeacatoon bleeding P/R for last 6 to 8 months. No other document with regard to knowledge of pre-existing disease has been placed on record by the opposite party. There is a judgment of the Hon'ble National Commission in Revision Petition No. 200 of 2007 "Mr. Satinder Singh versus National Insurance Co. Ltd." decided on 24.1.2011 wherein it has been observed that recording of history of patient in the above stated manner does not become a substantiate piece of evidence and convincing evidence brought on record that complainant was aware of pre-existing disease for which First Appeal No. 1336 of 2009 7 he had taken the treatment of disease. Except the discharge summary, no other evidence has been brought on the record that the complainant was suffering from pre-existing disease of piles. It has been contended by the learned counsel for the appellant that for the Ist year the charges born out of the operation are not admissible to the insured as per exclusion clause 4.3. Learned District Forum in the impugned order has observed that there was a gap of 15 days because the first policy had expired on 12.1.2005 but when its renewal has been accepted it will be treated as a renewal of policy from back date and had condoned the delay. This view is support from judgment of the Hon'ble National Commission titled as "Oriental Insurance Company versus Parkash Devi"(supra), where there was a gap of 55 days. In that case it was contended that insurer was not liable to pay the claim as per terms of exclusion clause but this contention was not accepted and when the insurer had duly acknowledge renewal of the policy. No contrary judgment has been referred by the learned counsel for the appellant in case renewal has been accepted then it will be from the date when the first policy have come to an end. Even otherwise according to Clause 5.9 of the policy, the policy was renewed with mutual consent. The Company shall give notice that it is due for renewal and the Company had at any time cancel this policy by sending the insured 30 days notice by registered letter at the insured's address. No such notice was sent as policy was renewed within a period of 30 days.
First Appeal No. 1336 of 2009 8
12. In that way, the case of the appellant did not fall in the Ist and exclusion clause 4.3 did not apply to the case of the appellant. Therefore, the observation so made by the learned District Forum seems to be correct and we do not find any infirmity in the findings so recorded by the learned District Forum.
13. In view of the above discussion, we do not find any merit in the appeal and the same is dismissed with no order as to costs. The impugned order of the District Forum is affirmed and upheld.
14. The arguments in this appeal were heard on 8.8.2013 and the order was reserved. Now the order be communicated to the parties as per rules.
15. The appellant had deposited an amount of Rs. 13,850/- with this Commission at the time of filing the appeal. This amount of Rs. 13,850/- with interest accrued thereon, if any, be remitted by the registry to respondent No. 1 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.
16. Remaining amount shall be paid by the appellant to respondent No. 1 within 30 days from the receipt of the copy of the order.
17. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran) Presiding Judicial Member (Piare Lal Garg) Member August 21, 2013. (Jasbir Singh Gill) as Member First Appeal No. 1336 of 2009 9