State Consumer Disputes Redressal Commission
National Insurance Co. Ltd. vs Bhisham Chopra on 20 April, 2012
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH
First Appeal No. 1030 of 2007
Date of institution : 26.7.2007
Date of Decision : 20.4.2012
1. National Insurance Co. Ltd., Regional Office SCO No. 332-334, Sector
34-A, Chandigarh.
2. National Insurance Co. Ltd., 3, Middleton Street, Post Box No. 9292,
Kolkatta.
3. National Insurance Co. Ltd., DO-1, Near Reddison Hotel, G.T. Road,
Jalandhar City.
(All 1 to 3 through its Chief Regional Manager, National Insurance Co.
Ltd., SCO No. 332-334, Sector 34-A, Chandigarh)
....Appellants.
Versus
Bhisham Chopra r/o EJ-103, Kot Pakshian, Jalandhar City.
...Respondent.
First Appeal against the order dated 14.6.2007 of
the District Consumer Disputes Redressal Forum,
Kapurthala.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
Present:-
For the appellants : Sh. Rahul Sharma, Advocate for Sh. Ashwani Talwar, Advocate For the respondent : Sh. B.D. Sharma, Advocate PIARE LAL GARG, MEMBER:
This is an appeal filed by the appellants-National Ins. Co. Ltd. (hereinafter called 'the appellants') against the order dated 14.6.2007 of the District Consumer Disputes Redressal Forum, Kapurthala(hereinafter called the 'District Forum') by which the complaint of the respondent/complainant (hereinafter called 'the respondent') was allowed by the District Forum.First Appeal No. 1030 of 2007 2
2. Brief facts of the case are that the respondent had purchased mediclaim policy No. 401100/48/038500425 from appellant No. 3 from 10.3.2004 to 9.3.2005 for an amount of Rs. 50,000/-. He was previously also covered under the mediclaim insurance policies. After sometime the respondent was hospitalized in Tagore Hospital, Bhagwan Mahavir Marg, Jalandhar due to physical ailment of Hernia on 26.10.2004 and surgery was performed for treating him. Family Health Plan Ltd. vide his letter dated 29.7.2005 intimated the respondent regarding repudiation of his claim due to "1st year exclusion clause of the given mediclaim policy". Respondent approached appellant No. 3, who told that as there was a three days break in the renewal of the policy, as such, the present policy was treated as new policy and treatment of Hernia was not covered in the first year of mediclaim policy. The respondent pleaded that as per Condition No. 7.1 and 8, break in period upto 7 days can be condoned for renewal of the mediclaim policy. Complaint was filed on the ground that the appellants were negligent in repudiating his genuine claim and deficient in service and prayed that the appellants may be directed to pay the claimed amount i.e. Rs. 18,000/- with interest @ 9% p.a. w.e.f. 26.10.2004 till payment and demanded compensation of Rs. 5,500/- on account of harassment as well as Rs. 5,500/- as litigation expenses.
3. Upon notice, the appellants replied by taking preliminary objections that the complaint was filed on false and frivolous grounds and with bad intention to extort the money, complaint was bad for mis-joinder of necessary party due to non-impleading of Family Health Plan Ltd.. On merits, issuance of insurance policy and submission of the claim were admitted by the appellants. The policy for the year 2003-04 expired on 7.3.2004 and the same was renewed on 10.3.2004, which proves that there was break in renewal of the policy. The disease Harnia was not First Appeal No. 1030 of 2007 3 covered under the exclusion clause No. 4.2 and 4.3 of the policy. It was denied that Condition No. 7.1 & 8 helps the case of the respondent as the same deals with cumulative bonus and not with the mediclaim. The claim of the respondent was repudiated as per clause 4.3 of the policy condition and after considering the claim with due application of mind and perusal of the medical record. The appellants were not liable to pay the amount incurred on treatment of Cataracts, Hernia and other diseases for the first year if the disease was pre-existing. All other allegations were denied and dismissal of the complaint was prayed.
4. Learned District Forum after hearing the learned counsel for the parties and going through the record, allowed the complaint and the appellants were directed to pay the claim amount of Rs. 18,000/- with interest @ 12% p.a. from the date of repudiation of the claim till realization and awarded Rs. 5,000/- as compensation for mental tension and physical harassment as well as Rs. 1,000/- as litigation expenses.
5. Hence, the appeal.
6. We have gone through the pleadings of the parties, perused the record of the learned District Forum and heard the arguments of the learned counsel for the parties.
7. The present appeal is filed by the appellants on the grounds that the respondent was not entitled for any claim as per Condition No. 4.3 of the Insurance Policy, the District Forum failed to appreciate the fact that as there was break in the continuity of the policy, therefore, the present policy will be taken as a fresh policy and as per condition No. 4.3 of the Insurance Policy, the respondent was not entitled for any claim as the respondent was operated within first year after taking the policy, which falls under exclusion clause. The claim of the respondent was rightly repudiated First Appeal No. 1030 of 2007 4 and the order of the District Forum is against the terms and conditions of the policy and the same is liable to be set-aside.
8. There is no dispute between the parties that the respondent had purchased mediclaim policy Ex. C-1 for the period of 10.3.2004 to 9.5.2005 against the payment of Rs. 2090/-. It is also admitted case of both the parties that the insured was admitted in Tagore Hospital Pvt. Ltd., Jallandhar for the left inguinal hernia on 26.10.2004 and was discharged on 29.10.2004 after the operation of the same as per letter Ex. OP-3 dated 29.7.2005 vide which the claim of the respondent was repudiated on the reason:-
"As per the submitted documents, the claim falls under the 1st year exclusion clause of the given mediclaim policy. Due to which your claim is repudiated".
9. We have gone through the condition No. 4.3 of the Medical Insurance Policy (Revised) which is part of Ex. OP-2 tendered into evidence by the appellants, which is reproduced:-
"During the first year of the operation of insurance cover, the expenses on treatment of diseases such as Cataract, Benign, Prostatic Hypertrophy, Hysterecotomy 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 renwal too."
Thus, the claim is 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.
10. We have perused the reply, affidavit of Sh. A.R. Kamal, Deputy Manager, National Ins. Co. and repudiation letter dated 29.7.2005 but nowhere in these three documents, it was pleaded by the appellants First Appeal No. 1030 of 2007 5 that the disease(Hernia) was in-existence at the time of taking the policy/filling the proposal form. No record of any hospital also produced by the appellants to prove that the respondent had taken any treatment for the disease of Hernia.
11. No copy of the proposal form was also produced by the appellants to prove that the respondent had concealed this fact at the time of taking of the policy or filling of the proposal form. It was also not disclosed by the appellants whether any proposal form was filled at the time of issuance of the policy or not and whether any question was put to the insured regarding the existence of Hernia and he had replied in negative.
12. As per Condition No. 4.3 of the policy, the insured was not entitled for the claim of disease of Hernia if the same is pre-existing in the body of the insured only. As such, this version of the appellants is not correct that the insured was operated within one year from the purchase of the policy if it is not proved that the said disease was pre-existing at the time of issuance of the policy.
13. We have also perused the word "important" mentioned at the end of terms and conditions of the policy, which is as under:-
"As per the above condition, the break in period for a maximum of seven days is approved as a special case subject to medical examination and exclusion of disease during the break period."
14. But it is admitted case of the appellants that break was only three days between the previous and the policy in dispute. But nowhere it is mentioned whether the break of three days for the renewal of the old policy was approved by the competent authority of the appellants or not and what decision regarding the break period of three days was taken. It is also not disclosed by the appellants to the respondent that his policy is not First Appeal No. 1030 of 2007 6 renewed from the date of expiry of the first policy and break of three days was not approved by the competent authority of the appellants. The appellants only disclosed this fact at the time of repudiation of the policy which is 'unfair trade practice' on the part of the appellants.
15. The order passed by the learned District Forum is legal and valid and there is no ground to interfere with the same. The appeal being without any merit is dismissed with costs of Rs. 3,000/- awarded as litigation expenses and the impugned order of the District Forum is affirmed and upheld.
16. The amount of Rs. 5,000/- as compensation, Rs. 1,000/- awarded as litigation expenses plus amount of interest awarded by the District Forum and the amount of Rs. 3,000/- awarded as litigation expenses by the Commission may be recovered from the official who was at fault after holding an fact finding enquiry. Copy of the same be sent to the Regional Manager, Chandigarh Regional Office-1, SCO 332-334, Sector 34-A, Chandigarh.
17. The copy of the action taken by the appellants against the delinquent official be sent to this Commission within three months from the receipt of the copy of the order.
18. The arguments in this appeal were heard on 16.4.2012 and the order was reserved. Now the order be communicated to the parties.
15. The appellants had deposited an amount of Rs. 14,880/- with this Commission at the time of filing the appeal. This amount of Rs. 14,880/- with interest accrued thereon, if any, be remitted by the registry to the respondent 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.
First Appeal No. 1030 of 2007 7
16. Remaining amount shall be paid by the appellants to the respondent 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.
(Inderjit Kaushik)
Presiding Member
April 20, 2012. (Piare Lal Garg)
as Member