State Consumer Disputes Redressal Commission
Hdfc Ergo General Insurance Company ... vs Manjit Singh on 7 December, 2020
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.389 of 2019
Date of Institution: 01.07.2019
Order reserved on: 10.11.2020
Date of Decision : 07.12.2020
HDFC Ergo General Insurance Company Limited, 1st Floor, H.D.F.C.
House 165/166, Bakbay Reclamation H.T. Prek Marg, Church Gate,
Mumbai 400020, through its M.D. 5th Floor, Tower-1, Stellar IT Park,
C-25, Sector 62, Noida-201301, through Shweta Pokhriyal Manager-
Legal. Email:[email protected]
.....Appellant/Opposite Party
Versus
Manjit Singh son of Gurnam Singh, resident of Village Jawanda
Kalan, Tehsil and District Tarn Taran.
.....Respondent/Complainant
First Appeal against order dated
09.05.2019 passed by District Forum
(now District Commission), Tarn Taran.
Quorum:-
Mr. Rajinder Kumar Goyal, Presiding Member.
Ms. Kiran Sibal, Member.
Present:-
For the appellant : Sh. Vishal Aggarwal, Advocate For the respondent : Sh. Bikramjit Aroura, Advocate .................................................................................. First Appeal No.389 of 2019 2 KIRAN SIBAL, MEMBER:-
This appeal has been preferred by the appellants against order dated 09.05.2019 passed by District Consumer Disputes Redressal Forum, Tarn Taran (in short now, "the District Commission"), whereby the complaint filed by respondent/complainant was allowed by directing the appellant/opposite party (in short the "OPs") to pay the amount of Rs.1,80,000/- i.e. amount of treatment to the complainant and further to pay Rs.7500/- as compensation for harassment and Rs.5000/- as litigation expenses. It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Commission.
Facts of the Complaint
2. Brief facts, as averred in the complaint, are that complainant purchased medical insurance policy no.2952200842639601 valid from 13.09.2016 to 12.09.2018 from OP. The complainant, his wife and his son namely, Amansher Pal Singh were the policy holders, as per terms and conditions of the policy and he paid Rs.24,099/- as premium to the OP. Amansher Pal Singh, son of the complainant was diagnosed with a disease called 'Keratoconus' in both the eyes and as per the policy, which was covered for treatment, the complainant got his son admitted at Thind Eye hospital on 08.10.2016. He was discharged from the First Appeal No.389 of 2019 3 hospital on the same day, after taking the treatment. He informed the OP for approval of the treatment and it gave approval for the same and promised to reimburse all the expenses incurred on the treatment. The complainant spent an amount of Rs.1,80,000/-, vide two receipts having receipt No. JAL/16-17/72 dated 08.10.2016 and receipt No.Jal 16-17/73 of Rs.75,000/- each alongwith the bills of Rs.30,000/- from his own pocket. Thereafter, he lodged a claim on the same day with the OP for the reimbursement of this amount. But despite obtaining the necessary documents from the complainant, the OP had not reimbursed the amount of Rs.1,80,000/- and had been delaying the same on one pretext or the other. Even OP did not send or respond to any correspondence regarding the status of his claim/reimbursement case till 27.03.2017. The cause of action of the present complaint occurred after a fortnight from 27.03.2017, when the complainant through his counsel sent a legal notice dated 27.03.2017 to the OP in this regard, but to no effect. He alleged deficiency in service and unfair trade practice on the part of OP and prayed that OP be directed to reimburse the insurance claim of Rs.1,80,000/-; to pay Rs.10,000/- as compensation; and to pay Rs.5000/- as litigation expenses.
Defence of the Opposite Party
3. Upon notice, OPs appeared and filed their written reply and contested the complaint of the complainant by raising preliminary objections that the complaint was not maintainable First Appeal No.389 of 2019 4 against the OP/HDFC ERGO Gen insurance Co. Ltd. and as such, the same is liable to be dismissed. The complaint pertains to hospitalization claim of Amansherpal Singh, who is the son of the complainant and was insured under Health Suraksha Policy having Policy No.2952200842639601002, for the period from 13.09.2016 to 12.09.2018, subject to policy terms and conditions, which was never disputed by the complainant. The claim was lodged for hospitalization expenses for TICL, which was done for the better quality of vision. After the claim intimation, the OP proceeded with the claim and documents were sought from the complainant. After the perusal of documents, filed by the complainant, it was found that as per the contents of discharge summary dated 15.10.2016, the patient was admitted on 08.10.2016. After the examination, it was found that the patient was suffering from "Keratoconus with post C3R in both the eyes" and was advised for Toric ICL treatment. Further on 08.10.2016 he was operated upon both eyes for Toric ICL. The discharge summary clearly states that the patient had complaints of diminution of vision in both eyes, and was diagnosed with "Keratoconus". Keratoconus is a progressive eye disease causing distorted vision. The treatment mentioned in the discharge summary was stated that the Toric ICL treatment is for better quality vision. Therefore, from both the documents submitted by the complainant, it was established that the treatment underwent by the patent was for the correction of vision which comes under the First Appeal No.389 of 2019 5 category of refractive error and the same is excluded as per the policy terms and conditions. Thereafter the claim of the complainant was repudiated as per the policy terms and conditions, and as per the preview of section 9 (C) (x) of policy terms and conditions which states that :-
"General Exclusions"
We will not make any payment for any claim in respect of any Insured Person Directly or Indirectly for, caused by arising from or in any way attributable to any of the following unless expressly stated to the contrary in this policy. ............treatment for correction of eye due to refractive error". The complainant was informed about the repudiation of the claim, specifically stating therein the sanction under which the claim of the insured was repudiated. The OP denied any deficiency in service, negligence or any unfair trade practice on its part. On merits, the OP contested the complaint of the complainant on the above referred grounds. The OP controverted the other averments of the complainant and also denied any deficiency in service on their part. The OPs prayed for dismissal of the complaint.
Evidence of the parties and finding of the District Forum
4. In support of his case, the complainant tendered in evidence his affidavit Ex.C1 alongwith documents Ex.C2 to Ex.C19.
First Appeal No.389 of 2019 6
5. To rebut the aforesaid evidence, OPs tendered in evidence affidavits of Pankaj Kumar Ex.OP/1, Ex.OP/2 alongwith documents Ex.OP/3 to Ex.OP/13
6. The District Commission, after going through the record and hearing learned counsel on their behalf, allowed the complaint of the complainant, vide impugned order. Hence, this appeal. Contentions of the Parties
7. We have heard learned counsel for the parties and have also gone through the record of the case.
8. Learned counsel for the appellant vehemently contended that Amansher Pal Singh, insured, son of complainant was diagnosed with disease called "Keratoconous" in both the eyes. On 08.10.2016, the complainant got admitted his son at Thind Eye Hospital and discharged from the hospital on the same day after obtaining the treatment. He lodged the claim with OP along with documents. As per the policy, the insured or his family members are not entitled to any benefit in case of any other diseases other than those mentioned under the policy itself and apart from that there are specific exclusions as well which are also duly mentioned in the policy schedule. From the perusal of medical report and discharge summary, Ex.OP-11, it was found that son of the complainant had undergone refractive eye surgery for better vision, which is in fact not covered under the policy. It was also evident that son of the complainant was suffering from the said disease since 2014 i.e. prior First Appeal No.389 of 2019 7 to the inception of the policy, which is a clear concealment and misstatement of fact only for the purpose of taking claim. The District Commission has ignored these important aspects while deciding the case in favour of the complainant. Learned counsel for the appellant/OP prayed for setting aside the order of the District Commission and acceptance of the appeal.
9. Learned counsel for respondent strongly contended that the District Commission has rightly allowed the claim of the complainant on merits. The respondent/complainant purchased the said policy from OP, which was valid for the period from 13.09.2016 to 12.09.2018. Amansher Pal Singh son of complainant had taken treatment from Thind Eye Hospital for the disease of Keratoconous and the same is covered under the policy. The complainant also informed OP for approval of the treatment, vide Ex.C-5 and C-7 and OP gave approval for the same and promised to reimburse all the expenses borne by the complainant for the treatment of his son. He spent an amount of Rs.1,80,000/-, vide two receipts having receipt No.JAL/16-17/72 dated 08.10.2016, Ex.C-6, and receipt No.JAL/16- 1773 of Rs.75,000/- Ex.C-8 along with the bills of Rs.30,000/- spent on the treatment of his son. The complainant lodged the claim with OPs, but they failed to settle the claim of the complainant. Alleging deficiency in service on the part of appellant/OP, learned counsel for respondent prayed for dismissal of the appeal. First Appeal No.389 of 2019 8 Consideration of Contentions
10. We have given our thoughtful consideration to the contentions raised by the learned counsel for the parties and have also gone through the record of the case.
11. Admittedly the complainant purchased the said policy from OP. The OP has not disputed the payment made by the complainant to the Thind Eye Hospital for the treatment of his son. The appellant is aggrieved by the order of the District Forum wherein the District Forum allowed the complaint while holding that the said surgery is not a cosmetic surgery and directed the OP to pay the claim. As per the appellant, the claim was lodged for expenses towards refractive eye surgery which is not covered under the policy. The OP relied upon Section 9(c)(xiv) of the terms and conditions of the policy, which is reproduced as under:-
"Section 9 (c) General Exclusions:- We will not make any payment for any claim in respect of any insured person directly or indirectly for caused by, arising from or in any way attributable to any of the following unless expressly stated to contrary in this policy:-
i)to xiii) not relevant
xiv) Circumcisions (unless necessitated by illness or injury and forming part of treatment); treatment for correction of eye due to refractive error, aesthetic or change of life treatment of any description such as sex transformation operations." First Appeal No.389 of 2019 9
The appellant strongly contended refractive error is not covered under the policy, whereas the respondent/complainant pleaded that Keratoconus disease comes under the policy. The only point for adjudication before us is whether Keratoconus is refractive error or not? The vital document, in the present case, is the discharge summary, Ex.OP/11, of Amansherpal Singh on the record, issued by Thind Eye Hospital Ltd., Jalandhar. As per this discharge summary, Amansherpal Singh complained of diminution of vision in his both eyes which means low vision. The correction of vision is not covered under the policy in question. The relevant Section 9 (c)(xiv) General Exclusions of the policy is reproduced as under:-
"xiv) Circumcisions (unless necessitated by illness or injury and forming part of treatment); treatment for correction of eye due to refractive error, aesthetic or change of life treatment of any description such as sex transformation operations.
As per above general exclusion, the treatment taken by Amansherpal Singh for the correction of his vision due to refractive error is not covered under the said exclusion clause of the policy and the District Commission while passing the order has ignored this important aspect of the matter.
12. The next contention of learned counsel for the appellant is that son of the complainant was suffering from the said disease since 2014 i.e. prior to inception of the policy and the complainant had taken the policy by concealment and misstatement of fact only for the purpose of taking claim. We have perused the medical report First Appeal No.389 of 2019 10 dated 10.12.2016, Ex.C-4, and the relevant part is reproduced as under:-
"Mr. Amansherpal Singh, 21 year old male, reg no.473917, presented to our hospital on 16-December-2015. Past history of diagnosed to have Keratoeonus in both eye, which was detected during routine eye examination on 27.06.2014 at another hospital."
In view of the above, we are of the opinion that Amansher Pal Singh had past history of Keratoeonus since 2014 in both eyes. The complainant had taken the policy in question on 13.09.2016, but he had not disclosed about the above disease of his son in the proposal form while taking the policy. The policy is in a form of contract and based on principal of utmost faith. It is a settled law that the complainant was bound to disclose everything to the insurer, which was necessary for taking the decision whether to issue an insurance policy or not. Had the said disease been disclosed by the complainant, the appellant might not have issued the policy at all or was at liberty to impose certain conditions/restrictions, an opportunity, which has not been given to the appellant. The District Commission has failed to appreciate the same and wrongly allowed the complaint.
13. Sequel to our above discussion, we allow the appeal of the appellant and set aside the order of the District Commission. Accordingly, the complaint is dismissed.
First Appeal No.389 of 2019 11
14. The appellants had deposited a sum of Rs.25,000/- at the time of filing of the appeal and further deposited an amount of Rs.1,55,000/- in compliance with order of this Commission. These amounts alongwith interest, which has accrued thereon, if any, shall be remitted by the registry to the appellant after the expiry of limitation period in accordance with law.
15. The appeal could not be decided within the statutory period due to heavy pendency of work and less staff.
(RAJINDER KUMAR GOYAL) PRESIDING MEMBER (KIRAN SIBAL) MEMBER December 07, 2020.
(MM)