State Consumer Disputes Redressal Commission
National Insurance Company. Ltd. vs Ved Prakash Bansal on 16 May, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 37 / 2008
National Insurance Co. Ltd.
Branch Office, Station Road
Kashipur, Udham Singh Nagar
Through Manager
Regional Office, National Insurance Co. Ltd.
56, Rajpur Road, Dehradun
......Appellant/ Opposite Party
Versus
Sh. Ved Prakash Bansal
S/o Sh. Jagat Prakash
R/o Paith Parao, LIC Road, Ramnagar, Nainital
......Respondent/ Complainant
Sh. Rajeev Kakkar, Learned Counsel for the Appellant
Sh. V.K. Vashisth, Learned Counsel for the Respondent
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. C.C. Pant, Member
Mrs. Kusumlata Sharma, Member
Dated: 16/05/2013
ORDER
(Per: Mr. C.C. Pant, Member):
This appeal, under Section 15 of the Consumer Protection Act, 1986, is directed against the judgment and order dated 10.01.2008 passed by the District Forum, Nainital, partly allowing the consumer complaint No. 143 of 2006 and directing the opposite party to pay to the complainant a sum of Rs. 50,000/- against the medical expenses incurred by him on his son's treatment, Rs. 10,000/- for mental agony & financial loss and Rs. 2,000/- towards litigation expenses within a month from the date of the order, failing which the opposite party has also been held liable to pay to the complainant an interest @ 9% per annum on Rs. 50,000/- from the date of filing the consumer complaint till the date of actual payment.2
2. The facts of the case in brief, as stated by the complainant-Sh. Ved Prakash Bansal in his consumer complaint, are that he had purchased a Mediclaim Policy for himself and his family from National Insurance Co. Ltd.-opposite party for the period from 04.06.2005 to 03.06.2006. The said Mediclaim Policy covered the health hazards of the complainant, his wife Smt. Sushila Rani Bansal, his two sons Sh. Shashank Bansal & Sh. Vishwas Bansal and his daughter Km. Swati Bansal. As stated by the complainant, his son Sh. Shashank Bansal had gone to Delhi on 10.11.2005, where his condition got deteriorated all of a sudden. He was taken to Indraprastha Apollo Hospital, New Delhi and was examined by the doctors and treatment was prescribed, but his condition did not improve. On the advice of the doctors, complainant's son was admitted in Indraprastha Apollo Hospital, New Delhi on 08.02.2006 for the surgery of the disease related with Varicocele Urology. The complainant submitted all the bills pertaining to his son's treatment for reimbursement to the opposite party, but the opposite party repudiated his claim on the ground that Varicocele is the known cause of infertility for which the claim is not admissible under the said mediclaim policy. This led the complainant to file a consumer complaint before the District Forum, Nainital on 28.11.2006 alleging deficiency in service on the part of the opposite party. The District Forum, after an appraisal of evidences, partly allowed the consumer complaint vide its judgment and order dated 10.01.2008 and directed the opposite party to pay medical expenses, compensation for mental agony, financial loss, litigation expenses etc. to the complainant as stated above. Aggrieved by the order, the opposite party has filed this appeal.
3. We have heard the learned counsel for the parties and perused the material placed on record.
4. The learned counsel for the appellant argued that the appellant- insurance company has not made any deficiency in service by repudiating the medical claim submitted by the complainant-respondent and invited our 3 attention to Exclusion Clause Nos. 4.1 and 4.8 of the mediclaim policy in this regard. The learned counsel submitted that Sh. Shashank Bansal, complainant's son, was treated for the disease Varicocele with infertility, which is a medical condition of malfunction of a body part due to an inherent defect apparently pre-existing. Thus, the learned counsel pleaded that the insurance claim of the respondent was not admissible as per the Exclusion Clause No. 4.1 of the said policy. The learned counsel also pleaded that the treatment pertained to infertility which also falls under the Exclusion Clause No. 4.8 of the said policy. Thus, the appellant had repudiated the respondent's claim as per the terms and conditions of the policy and had not made any deficiency in service, but the District Forum failed to consider this legal aspect of the case. In support of his arguments, the learned counsel for the appellant pressed into service a judgment of Hon'ble National Commission, New Delhi, in the case of Oriental Insurance Company Ltd. vs. Sh. Rajiv Bhadani, 2010 NCJ 796 (NC); wherein the Hon'ble National Commission has held that no insurance claim can be granted against the terms of the existing policy. The learned counsel also submitted that the respondent has not clarified in his consumer complaint as to what disease Sh. Shashank Bansal was suffering from when he was examined by the doctors of Indraprastha Apollo Hospital, New Delhi on 10.11.2005 for the first time. The respondent has also not produced any prescription or document to substantiate the alleged illness from 10.11.2005 to 08.02.2006. The learned counsel further argued that the respondent has no locus standi to present the consumer complaint, as the insured Sh. Shashank Bansal was a major at the time of the alleged sickness and, therefore, the respondent personally had no cause of action against the appellant. In the last, the learned counsel for the appellant invited our attention to the bills / cash memos submitted by the respondent in support of his claim and submitted that the respondent's claim is based on manipulated cash memos of medicines and conveyance. The medicines mentioned in the cash memos do not match with what the doctors of Indraprastha Apollo Hospital, New Delhi had prescribed and some of the 4 cash memos are beyond the insurance period. The District Forum has failed to appreciate these facts of the case and, therefore, the impugned order suffers from legal as well as factual infirmity and is liable to be set aside.
5. The learned counsel for the respondent reiterated the facts of the case and argued in support of the impugned order.
6. We considered the submissions raised by the learned counsel for the parties. The contention of the appellant that the respondent-complainant had no cause of action for filing the consumer complaint against the appellant-opposite party is not tenable because it was the respondent- complainant who had purchased the said mediclaim policy from the opposite party-appellant for himself and his family members. Therefore, the relationship of consumer and service provider was between the respondent and appellant-insurance company and the respondent had a right to file a consumer complaint against the appellant for the alleged deficiency in service on appellant's part. The next issue involved in this case is whether the repudiation of respondent's claim by the appellant on the ground that the claim falls under Exclusion Clause Nos. 4.1 and 4.8 is just or not. Exclusion Clause No. 4.1 is in respect of pre-existing disease, i.e. if a disease, which was in the knowledge of the insured, existed at the time of taking the policy, but the insured had concealed this material fact while giving details of his/her health. In support of his argument, the learned counsel for the appellant submitted that the insured was already under treatment in Indraprastha Apollo Hospital, New Delhi and the respondent has himself admitted that his son was examined on 10.11.2005 by the doctors of the said hospital. In order to hide the truth, the respondent did not submit the treatment documents. We do not find force in this argument because the said policy was taken on 04.06.2005 and that time the insured was not married. We fail to understand as to how an unmarried person can know that he is sterile. We can understand the reason for not submitting the treatment documents by the respondent, because the 5 insured was not hospitalized for a minimum period of 24 hours, as required under the policy's terms and conditions for making a claim. If the claim was not to be submitted then there was no need to produce the treatment papers. But the bill / cash memo dated 10.11.2005 issued by Indraprastha Apollo Hospital, New Delhi (Paper No. 61) indicates that semen analysis of the insured was done on this date and some treatment was given. On the basis of this, it can not be inferred that the insured was diagnosed a case of Varicocele and infertility and this disease / medical condition was pre- existing at the time of taking the mediclaim policy and the respondent had concealed this fact. We find genuineness in the averments made by the respondent because the procedure of semen analysis was repeated as is evident from the bill / cash memo dated 21.01.2006 issued by the Indraprastha Apollo Hospital, New Delhi. This shows that the doctors had performed preliminary tests before they could reach a definite finding with regard to insured's physical problem and ultimately the doctors advised him to admit in the hospital on 08.02.2006. On this date, he was diagnosed a case of varicocele, infertility and oligoasthenospermia and was admitted in the hospital for varicocelectomy operation and was discharged on 09.02.2006. The mediclaim pertains to this treatment and operation. So, the insured could know for the first time, on the basis of the diagnosis made by the doctors, that he, apart from other disease, is also a case of infertility. Therefore, the appellant-insurance company has wrongly presumed that even on 10.11.2005 the insured was treated for infertility and this physical disorder existed even at the time of taking the mediclaim policy. Thus, we are of the well considered view that the respondent's claim does not fall under the Exclusion Clause No. 4.1 of the mediclaim policy and the repudiation of the claim on this ground is neither just nor proper. The second ground for repudiation of the respondent's claim is that the insured was operated on 08.02.2006 for sterility and sterility falls under Exclusion Clause No. 4.8 of the mediclaim policy. In support of this contention, the learned counsel for the appellant has produced a copy of the letter dated 14.08.2006 (Paper No. 52) addressed to the respondent, by 6 Paramount Health Services Pvt. Ltd., TPA (Third Party Administrative) of the insurance company, wherein it is stated that:-
"On scrutiny of documents it is observed that patient Shashank Bansal was admitted in I.P Apollo Hospital as a case of varicocele and infertility from 8.2.06 to 9.2.06. Varicocele is a known cause of infertility. As per policy terms and conditions expenses on treatment of infertility are not payable. Hence this claim stands repudiated under clause 4.8."
7. We doubt the authenticity of the above mentioned observation made by TPA of the insurance company because-
(i) No medical literature has been referred to in support of the observation made by the TPA in respect of the disease "Varicocele".
(ii) The letter is not signed by any doctor / authority. At the bottom of the letter, the space for signature and name of the doctor is blank.
(iii) The observation made in respect of "Varicocele" is very vague because it has not been said that "Varicocele" and "Infertility" are one and the same disorders. Instead, it has been said that "Varicocele" is the main cause of infertility. This means, "Varicocele" is a different disease / disorder from "Infertility" and it may cause "infertility". Under Exclusion Clause No. 4.8, the disorder "sterility" in exclusive terms is mentioned.
(iv) The above observation made by the TPA appears to be erroneous and misleading because in "Oxford & IBH New Medical Dictionary", the disease "Varicocele" or (Varicocoele) has been described as follows:-
"Varicocoele: Varicose condition of the veins of the spermatic cord surrounding a testicle in the scrotum giving a sensation like a bag of worms".
8. Thus, we fail to understand as to how the TPA observed that "Varicocele" is the main cause of infertility. Further, the insured was 7 diagnosed on 08.02.2006 a case of Varicocele, Infertility and Oligoasthenospermia. If "Varicocele" and "Infertility" were one and the same disorders then there was no need to mention infertility separately. We also referred to the said medical dictionary in respect of "oligoasthenospermia". Not exactly "oligoasthenospermia", but a similar disease "Oligospermia" has been described in the medical dictionary as -
"Oligospermia: decrease in the number of spermatozoa in the semen. It forms a major cause of sterility."
9. This shows that "oligoasthenospermia" may be a main / major cause of infertility but "Varicocele", from its description as given in the medical dictionary, appears to be a painful disease and this also proves the genuineness of the complainant's version that the condition of his son got deteriorates on 10.11.2005, when he was in Delhi. Ultimately, after a series of analysis and tests, the doctors found it a case of "Varicocele" and the insured was admitted in Indraprastha Apollo Hospital, New Delhi on 08.02.2006 for varicocelectomy. This discussion makes it clear that the insured was not treated for sterility. In absence of any conclusive evidence, we cannot accept the observation made by TPA of the insurance company that varicocele is the main cause of infertility. The insured was also diagnosed a case of "oligoasthenospermia", which has been described in the medical dictionary as a major cause of sterility, but the insured was not treated for "oligoasthenospermia" on 08.02.2006. The insured was treated for varicocele and for this treatment, he is entitled to get the reimbursement of the expenses incurred by him or his father-complainant. The case law cited by the learned counsel for the appellant cannot be applied to the instant case, because the facts of the cases are different. However, we agree with the learned counsel for the appellant that the respondent's claim is exaggerated. The respondent has also claimed the expenses incurred by him in the journey from Ramnagar to Delhi and return, but the learned counsel for the respondent could not show us as to how these expenses are covered under the mediclaim policy. The expenses which are admissible have been indicated in Clause No. 1 of the mediclaim policy, but the 8 journey expenses are not covered in it. Similarly, purchase bills / cash memos of some of the medicines do not match with the medicines prescribed by the treating doctor of Indraprastha Apollo Hospital, New Delhi and some of the bills / cash memos are beyond the insurance period. Thus, after a careful scrutiny of the documents, we find that only an amount of Rs. 22,605.19 of the bill No. ICS2005084088 dated 09.02.2006 issued by Indraprastha Apollo Hospital, New Delhi (Paper Nos. 55 to 58) is admissible to the respondent-complainant. The rate of interest of 9% per annum, as awarded by the District Forum, is on a higher side. The reasonable rate of interest should be 7% per annum. Once the interest has been awarded, the respondent cannot be awarded compensation for mental agony and financial loss and, therefore, the part of the judgment and order in respect of awarding Rs. 10,000/- for mental agony and financial loss is liable to be set aside. However, the cost of litigation of Rs. 2,000/- is just and proper. Thus, this appeal deserves to be partly allowed and the impugned judgment and order dated 10.01.2008 is modifiable accordingly.
10. The appeal is partly allowed. The impugned order dated 10.01.2008 passed by the District Forum, Nainital is modified by reducing the awarded amount of Rs. 50,000/- to Rs. 22,605/- and the rate of interest is reduced to 7% per annum. The order in respect of an award of Rs. 10,000/- for mental agony and financial loss is hereby set aside. The order in respect of the cost of litigation of Rs. 2,000/-, is confirmed. Appeal's cost made easy.
(C.C. PANT) (JUSTICE B.C. KANDPAL)