State Consumer Disputes Redressal Commission
The Oriental Insurance Company Ltd. vs Ramesh Kumar on 8 May, 2018
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No. 230 of 2018
Date of Institution : 20.04.2018
Date of Reserve : 25.04.2018
Date of Decision : 08.05.2018
The Oriental Insurance Company Limited through its
Chairman/Managing Director/Principal Officer through its Branch
Office at Dwarka Deesh Complex, Queens Road, Amritsar through
its Branch Manager.
Now through Authorised Signatory Alka Bansal, Manager,
Regional Office SCO No. 109-110-111, Surendra Building, Sector
17-D, Chandigarh
....Appellant/Op
Versus
Mr. Ramesh Kumar S/o Sh. Lal Chand, R/o 3151/21, Gali No. 2,
Putlighar, Amritsar.
....Respondent
First Appeal against the order dated
19.01.2018 of the District Consumer
Disputes Redressal Forum, Amritsar.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Present:-
For the appellant : Sh. J.P. Nahar, Advocate
First Appeal No. 230 of 2018 2
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
The appellant/opposite party (hereinafter referred as Op) has filed the present appeal against the order dated 19.01.2018 passed in consumer complaint No. 97 dated 21.2.2017 by the District Consumer Disputes Redressal Forum, Amritsar (hereinafter referred as the District Forum) vide which the complaint filed by the complainant was allowed with a direction to the Op to pay sum assured of Rs. 5,00,000/-. It was further directed to pay cost of litigation as Rs. 2,000/- and order be complied with within a period of 30 days.
2. Complaint was filed by the complainant under Section 12 & 13 of the Consumer Protection Act, 1986 (in short 'the Act') against the Op before the District Forum on the averments that the complainant got mediclaim insurance policy for himself and his wife from the Op bearing policy No. 233300/48/2017/42 for the period 3.4.2016 to 2.4.2017. Unfortunately, wife of the complainant fell ill and he was hospitalized first at Ohri Hospital, Amritsar from 13.10.2016 till 16.10.2016 and then at Fortis Escort Hospital, Amritsar from 16.10.2016 to 29.10.2016 and he spent a sum of Rs. 7,70,645/- in the treatment of his wife. Op was immediately informed about the said hospitalization. Claim was filed with the Op to pay sum assured of Rs. 5 Lacs. Instead of making the payment, Op repudiated the claim of the complainant vide letter dated 15.12.2016 on the ground that the patient was having pre- existing disease, which was totally wrong and against the facts First Appeal No. 230 of 2018 3 because before taking the policy, the patient never took any treatment. Alleging deficiency in services on the part of Op, this complaint was filed by the complainant for seeking directions against the Op as under:-
i) The Opp. Party be directed to pay the amount of Rs. 5 Lakhs alongwith interest @ 12% from 15.12.16 till realization.
ii) The Opp. Party be directed to pay the compensation of Rs. 50000/- to the complainant.
iii) The Opp. Party be directed to pay the adequate cost of the litigation.
Any other consequential relief to which the complainant is entitled to under the law, equity, justice and fairplay be also awarded.
3. Upon notice, Op appeared and filed the written version stating that the liability under the policy is strictly according to the terms and conditions of the policy; the complainant has not approached the Forum with clean hands and concealed the material facts. On scrutiny of the claim document, it was found that as per discharge summary, the insured was admitted for treatment of Chronic Obstructive Pulmonary Disease - COPD, CO2 retention with bilateral pneumonia with a history of Obstructive Pulmonary Disease - COPD since 2 years, therefore, the diagnose ailment is a complication developed due to pre-existing disease, which was existing at the time of booking the policy, therefore, the claim is not payable. As per exclusion clause No. 4.1 First Appeal No. 230 of 2018 4 of the policy terms and conditions as the policy was running only in the 2nd year, therefore, the claim of the complainant was repudiated vide letter dated 9.3.2017 being not payable. No deficiency in services on the part of Op. Complaint is without merit, it be dismissed.
4. The parties before the District Forum were allowed to lead their respective evidence in support of their complaint. Complainant in their evidence has tendered affidavit of the complainant as Ex. C-1 and documents Ex. C-2 to C-6. On the other hand, Op have tendered affidavit of Ranjiv Kumar, Divisional Manager, Ex. Op1 and documents Exs. Op2 to Op4.
5. After going through the allegations in the complaint, written version filed by the Op, evidence and documents brought on the record, the learned District Forum vide impugned order allowed the complaint as referred above.
7. Aggrieved with the order passed by the learned District Forum, the appellant/Op has filed the present appeal.
8. We have heard the learned counsel for the parties and have carefully gone through the record of the case. Miscellaneous Application No. 1120 of 2018
9. There is delay of 48 days in filing the appeal and application in this regard has been filed to condone the delay of 48 days, which has occurred due to the reason that the counsel received the copy of the impugned order on 1.2.2018 and thereafter on 6.2.2018 sent the same with his opinion to file an appeal. The said opinion alongwith order was received at First Appeal No. 230 of 2018 5 Divisional Office, Amritsar on 6.2.2018, they recommended for filing the appeal and sent the same to Regional Office, Chandigarh on 8.2.2018, which was received their on 19.2.2018. On scrutiny, Regional Office found that documents/exhibits were not sent alongwith and in this regard, they had written an email dated 12.3.2018 to Divisional Office, Amritsar for sending the same, which was received on 27.3.2018. Thereafter, on 9.4.2018 Regional Office decided to file an appeal and then papers were sent to Advocate for drafting the appeal. On preparing the appeal, it was found by the counsel that Draft of Rs. 25,000/- required for filing the appeal is not attached with the documents, which on asking was supplied on 17.4.2018. Immediately appeal was drafted and the same was sent for vetting on 18.4.2018, which was received back and on 19.4.2018 after getting signatures on required documents. Therefore, it is prayed that the delay is neither intentional nor deliberate, rather happened due to procedural formalities.
10. Keeping in view the reasons as stated in the application, there is sufficient cause to condone the delay of 48 days as it is procedural one and that the delay is just 48 days, therefore, it is expedient that the appeal should be decided on merits, therefore, the delay of 48 days in filing the appeal is condoned.
MAIN APPEAL
11. It has been argued by the counsel for the appellant/Op that the claim has been allowed by the District Forum against the First Appeal No. 230 of 2018 6 terms and conditions of the policy. Clause No. 4.1 of the policy is relevant, which reads as under:-
"4.1 The Company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any Insured Person in connection with or in respect of Pre-existing health condition or disease or ailment / injuries. Any ailment / disease / Injuries/ Health condition which are pre-existing (treated / untreated, declared / not declared in the proposal form), in case of any of the Insured person of the family, when the cover incepts for the first time, the purpose of applying this condition, the date of inception of the first indemnity based health policy taken shall be considered, provided the renewals have been continuous and without any break in period, subject to portability condition. This exclusion will also apply to any complications arising from pre-existing ailments/ diseases / injuries. Such complications shall be considered as a part of the pre- existing health condition or disease."
12. He has further referred to discharge summary of Fortis Escort Hospital, Amritsar having the past history. It has been stated that the patient was known case of hyper tension, Type II DM and COPD for the last 2 years. With regard to hypertension and DM, no period has been given. With regard to COPD, counsel for the appellant/Op has not referred any document that before taking the policy, the complainant was having the knowledge of this disease and was taking the treatment. In case it is not so then First Appeal No. 230 of 2018 7 mere reference in the discharge summary is not sufficient and the Op was required to lead any independent evidence to prove this fact. 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 be brought on record that complainant was aware of pre- existing disease for which he had taken the treatment of disease." Counsel for the complainant has referred that in case the complainant was not aware of the disease even if there was some problem that cannot be categorized as pre-existing disease. In this regard, he has made a reference to III 2014 CPJ 340 (NC) "New India Assurance Company Limited through its duly Constituted Attorney, Manager versus Rakesh Kumar" that people can live months/years without knowing the disease and it is diagnosed accidentally after routine check up and on that ground repudiation is not justified. Further no Doctor of Fortis Escort Hospital, Amritsar has been examined on what basis he has written that complainant was suffering from COPD for the last 2 years. It has been observed by the Hon'ble National Commission in its judgment IV (2008) CPJ 89 (NC) "Life Insurance Corporation of India & Ors. Versus Kunari Devi" that history recorded in the hospital bed head ticket is not to be taken as evidence as Doctor recording history not examined and suppression of disease not proved. Therefore, we do not agree First Appeal No. 230 of 2018 8 with the plea raised by the counsel for the appellant/Op that the claim is not payable on the basis of pre-existing disease. We are of the opinion that the District Forum has rightly appreciated the evidence on the record and has rightly come to the conclusion that the claim was wrongly rejected.
13. Sequel to the above, counsel for the appellant was unable to make out any point for admission of the appeal, the same is hereby dismissed in limine.
14. The appellant had deposited an amount of Rs. 25,000/- with this Commission in the appeal. This amount along with interest accrued thereon, if any, shall be remitted by the registry to the concerned District Forum, after the expiry of 90 days, from the despatch of the certified copy of the order to the parties; subject to stay, if any, by the higher Fora/Court; for the release of the above amount and the District Forum may pass the appropriate order in this regard.
15. Order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER May 08, 2018.
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