State Consumer Disputes Redressal Commission
Oriental Insurance Company Ltd. vs Kewal Krishan Ahuja on 14 September, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
First Appeal No. 146 of 2017
Date of Institution : 01.03.2017
Date of Reserve : 05.09.2017
Date of Decision : 14.09.2017
The Oriental Insurance Company Limited, Branch Office, Opposite
P.N.B. Main Branch, Circular Road, Abohar, Tehsil Abohar, District
Fazilka through Manager (Legal), Regional Office SCO No. 109-
111, Sector 17-D, Chandigarh
....Appellant/Op No.1
Versus
1. Kewal Krishan Ahuja aged about 58 years son of Sh.
Kashmiri Lal, resident of House No. D-2419, Street No. 5, Adarsh
Nagar, Fazilka, Tehsil and District Fazilka (Mobile No. 94175-
17521).
...Respondent No.1/Complainant
2. Medi Assist India TPA Pvt. Ltd., No. 4/1 IBC Knowledge
Park, Tower "D" 4th Floor, Bannerghatta Road, Bangalore-560029
through its M.D.
3. Punjab National Bank, Cycle Bazaar, Fazilka, Tehsil and
District Fazilka through its Senior Manager
....Respondents No.2&3/Op Nos. 2 & 3
First Appeal against the order dated
16.12.2016 of the District Consumer
Disputes Redressal Forum, Ferozepur.
First Appeal No. 146 of 2017 2
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Present:-
For the appellant : Sh. B.S. Tanque, Advocate
For respondent No.1 : Sh. Vivek Bhagla, Advocate
For respondent Nos.2&3: Ex.-parte.
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
The appellant/Opposite party No.1 (hereinafter referred as Op No.1) has filed the present appeal against the order dated 16.12.2016 passed in consumer complaint No. 309 dated 21.06.2016 by the District Consumer Disputes Redressal Forum, Ferozepur (hereinafter referred as the District Forum) vide which the complaint filed by the complainant was allowed with the direction to Op No. 1 to pay a sum of Rs. 1,61,860/- to the complainant alongwith interest @ 9% p.a. from the date of filing the complaint i.e. 21.6.2016 till realization. It was further directed to comply with the order within a period of 30 days from the date of receipt of the copy of the order.
2. Complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') against the opposite parties on the averments that he had a saving bank account No. 3451000102126409 with Op No. 3. It was further stated that he purchased mediclaim policy with sum assured of Rs. First Appeal No. 146 of 2017 3 3,00,000/- from Op No. 1 on payment of premium of Rs. 4,688/- i.e. PNB Oriental Royal Mediclaim Policy bearing No. 233203/48/2016/603 for the period 31.10.2015 to 30.10.2016. Op No. 2 is TPA. On 18.12.2015, suddenly complainant felt pain in the chest. He promptly approached Dr. Vijay Sachdeva, Sachdeva Hospital, Fazilka and he remained admitted there from 18.12.2015 to 19.12.2015. On 19.12.2015, Dr. Vijay Sachdeva discharged him with the direction to approach D.M.C. Ludhiana for further treatment. On 19.12.2015 at 9.00 p.m., the complainant was admitted in DMC, Ludhiana and a stent was inserted there. He remained admitted there from 19.12.2015 to 22.12.2015. The mail was sent to the office of Op No. 2 for getting cashless treatment but they did not provide the cashless treatment. He was admitted in the DMC on 29.12.2015 and on 30.12.2015, he was operated and on 2.1.2016, he was discharged from the hospital. He paid the bill of hospital of Rs. 1,61,860/-. On 9.1.2016, he submitted all the original bills to Op No. 2 with copies to Op Nos. 1 & 3. On 18.12.2015, 3.2.2016, 10.3.2016, 17.3.2016, 7.4.2016, 21.4.2016 and 22.4.2016, complainant sent mail to Op No. 2 relating to the abovesaid matter. He also wrote letter dated 17.3.2016 to Mr. Hanney Walia at Fazilka. The complainant had also received letter dated 19.4.2016 from Op No. 2 upon which Op No. 2 was properly informed. Despite receiving all the documents, Ops did not give the claim, which amounted to deficiency in service on the part of Ops. Alleging deficiency in service on the part of Ops, complaint was filed by the complainant against the Ops before the District First Appeal No. 146 of 2017 4 Forum seeking directions against the Ops to pay a sum of Rs. 1,61,860/- alongwith interest @ 18% p.a., compensation of Rs. 1,00,000/- and Rs. 16,500/- as litigation expenses.
3. Op Nos. 1 & 3 contested the complaint before the District Forum whereas Op No. 2 was ex-parte. Op No. 1 in its written statement took preliminary objections that complaint is not maintainable because as per the exclusion clause 4.1 and 4.2, the claim is not covered; the complainant had not approached the Forum with clean hands and concealed the true facts; the prospectus as well as the policy terms and conditions were duly conveyed to the complainant at the time of purchasing the policy and Op No. 2 has already repudiated the claim vide their letter dated 30.12.2015 as complainant was suffering from Diabetic Mellitus/HTN and waiting period of 2 years is there from the inception of the policy, which was not complete. Therefore, Op was justified to decline the claim. On merits, issuance of the policy is admitted. It was also admitted that documents with regard to the treatment at Fazilka and DMC, Ludhiana received but it has been stated that the claim is not covered under Clause 4.1 and 4.2 of the policy terms and conditions. The claim was not payable, therefore, it was rightly repudiated by the Op. Complaint is without merit, it be dismissed.
4. Op No. 3 in its written statement took preliminary objections that complaint is not maintainable in the present form as the complainant had no cause of action to file the complaint against it nor there is any deficiency in service on its part; the First Appeal No. 146 of 2017 5 complaint was filed on false, frivolous, baseless, vague, malicious and unmeritorious allegations. On merits, it was admitted that they paid Rs. 4688/- to Op No. 1 on behalf of the complainant. It was denied that the complainant sent copies of the medical treatment to it. With regard to payment, this Op had no role, therefore, there was no deficiency in service or unfair trade practice on its part, therefore, the complaint against this Op is liable to be dismissed with special costs.
5. Before the District Forum, the parties were allowed to lead their respective evidence.
6. In support of his allegations, the complainant had tendered into evidence documents Exs. C-1 to C-47. On the other hand, Op No. 1 had tendered into evidence documents Exs. Op- 1/1 to Op-1/3. Op No. 3 had tendered in evidence document Ex. Op-3/1.
7. After going through the allegations in the complaint, written versions filed by Ops, evidence and documents brought on the record, the complaint filed by the complainant was allowed as referred above.
8. Aggrieved with the order passed by the learned District Forum, the appellant/Op No.1 has filed the present appeal.
9. We have heard the learned counsel for the parties and have gone through the written arguments submitted by the counsel for the appellant/Op.
Miscellaneous Application No. 480 of 2017 First Appeal No. 146 of 2017 6
10. Counsel for the appellant has moved an application to place on the record Annexure A-2 to A-16. Annexure A-2 is the copy of the proposal form and Annexure A-16 is the email vide which PNB confirmed it that proposal form has duly filled in by the complainant. The application was contested by the counsel for the respondent/complainant stating that this document was very well within the knowledge of the Op and in case it was in their knowledge and not tendered then at appellate stage, it could not be allowed. Counsel for the appellant/applicant has referred to the AIR 2008 (SC) 2139 North Eastern Railway Administration, Gorakhpur b. Bhagwan Das (D) by L.Rs." wherein it was held that in case of additional evidence, does not work injustice to the other party and necessary for determination of question in controversy, it can be allowed. The complainant in his complaint has not taken any plea that terms and conditions were not brought to his knowledge and in case the District Forum has given the findings that the terms and conditions of the policy were not supplied to the complainant are beyond the pleadings, those will be dealt at an appropriate stage. Therefore, in case such a plea does not exist then in rebuttal production of proposal form, OP will entirely be irrelevant, therefore, we do not see any merit in the application and the same is dismissed.
MAIN APPEAL
11. It was argued by the counsel for the appellant/Op No. 1 that in para No. 8 of the impugned order, it was observed by the District Forum that counsel for the complainant vehemently argued First Appeal No. 146 of 2017 7 that terms and conditions were not supplied and that there is no evidence on the file that terms and conditions were ever supplied or brought to the knowledge of the complainant. The counsel for the appellant/Op No. 1 further stated that in case we go through the complaint, no such allegations were averred in the complaint that terms and conditions were not brought to his knowledge, therefore, there is no chance for the Ops to rebut and produce it on the record the relevant documents that terms and conditions were supplied or brought to the notice of the complainant/insured. It is basic principle of law that in case there is no pleading then no such plea can be raised in the arguments. The arguments without any plea and pleadings cannot be entertained, therefore, the District Forum was not justified to return the findings in favour of the complainant that terms and conditions were not supplied or brought to his notice, therefore, terms and conditions will not be applicable in the case of the complainant.
12. It was further argued that the counsel for the appellant/Ops that the claim filed by the complainant falls under Clause 4.1 and 4.2 of the policy document. The policy document has been placed on the record as Ex. Op-1/3 and Clause 4.1 and 4.2 reads as under:-
"4.1 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), when the cover incepts for the first time are excluded up to three (Completed) years of First Appeal No. 146 of 2017 8 this policy being in force continuously. For the purpose of applying this condition, the date of inception of this Mediclaim Policy taken from The Oriental Insurance Company shall be considered, provided the renewals have been continuous and without any break in period. 4.2 The expenses on treatment of following ailment / diseases/ surgeries for the specified period are not payable if contracted and / or manifested during the currency of the policy If these diseases are pre-existing at the time of proposal the exclusion no. 4.1 for pre-existing condition SHALL be applicable in such cases.
i Benign ENT disorders and surgeries i.e. 1 year
Tonsillectomy, Adenoidectomy, Mastoidectomy,
Tympanoplasty etc.
ii Polycystic ovarian diseases 1 year
iii Surgery of hernia 2 years
iv Surgery of hydrocele 2 years
v Non infective Arthritis 2 years
vi Undescendent Testes 2 years
vii Cataract 2 years
viii Surgery of benign prostatic hypertrophy 2 years
ix Hysterectomy for menorrhagia or fibromyoma or 2 years
myomectomy or prolapsed of uterus
x Fissure / Fistula in anus 2 years
xi Piles 2 years
xii Sinusitis and related disorders 2 years
First Appeal No. 146 of 2017 9
xiii Surgery of gallbladder and bile duct excluding 2 years
malignancy
xiv Surgery of genitor-urinary system excluding 2 years
malignancy
xv Pilonidal Sinus 2 years
xvi Gout and Rheumatism 2 years
xvii Hypertension 2 years
xviii Diabetes 2 years
xix Calculus diseases 2 years
xx Surgery for prolapsed inter vertebral disk unless 2 years
arising from accident.
xxi Surgery of varicose veins and varicose ulcers 2 years
xxii Joint Replacement due to Degenerative condition. 3 years
xxiii Age related osteoarthritis and Osteoporosis 3 years
As per the averments in the complaint, the policy was taken for the period 31.10.2015 to 30.10.2016. He felt the problem in his chest on 18.12.2015. He was referred to DMC and he remained admitted in DMC from 19.12.2015 to 22.12.2015, stent was inserted. He was again admitted on 29.12.2015 and on 30.12.2015, he was operated and was discharged on 2.1.2016. Therefore, the treatment was taken within the first year of the policy. Clause No. 4.1 deals with the pre-existing disease. Discharge card is Ex. C-6. Another discharge card is Ex. C-10 in which date of admission has been referred as 19.12.2015 and date of discharge 22.12.2015 in which diagnose was as under:-
"Type 2 Diabetes Mellitus (Recently detected) CAD-Acute Inferior Wall MI First Appeal No. 146 of 2017 10 (Late Presentation)"
This diagnosis report that the insured was suffering from Diabetes Mellitus. He has referred to the judgment of the Hon'ble Supreme Court in 2015(4) CLT 225 "M/s BHS Industries Versus Export Credit Guarantee Corp. & Anr." wherein it was observed that terms and conditions are to be strictly construed and in case there is some ambiguity, then these are to be interpreted in favour of complainant/insured. He has further referred to the judgment III (2014) CPJ 182 (NC) "V.K. Kariyana Store versus Oriental Insurance Co. Ltd. & Anr." wherein it was again affirmed by the Hon'ble National Commission that parties are bound by the terms and conditions of the insurance policy. He has further referred to judgment II (2012) CPJ 191 (NC) "United India Insurance Co. Ltd. Versus Kanta Gupta" wherein it was observed that person cannot suddenly develop diabetes mellitus (DM) within a short period of time. The complainant got the policy in the month of October and within two months, he got the treatment. But in case we go through the discharge report Ex. C-10, it has been specifically mentioned Diabetes Mellitus recently detected, therefore, it cannot be said that it was an old one. No doubt that the insured may be having some problem with regard to diabetics but till it was not in his knowledge or it was not detected and no such document has been placed on the record by the Ops that he had ever taken any treatment prior to the policy then it cannot be categorized as a pre-existing disease. Hon'ble National Commission in the judgment III (2014) CPJ 340 (NC) "New India First Appeal No. 146 of 2017 11 Assurance Company Ltd. Versus Rakesh Kumar" in Revision Petition No. 2157 of 2014 decided on 1-7-2014 has observed that people can live for months, even years together without knowing the disease. Sometimes it is discovered accidentally after routine check up and on that ground repudiation is not justified. Further in 2016(1) CPR 566 (NC) "LIC of India & Anr. Versus Kolla Santhi & Anr." held that Blood Pressure and Diabetes are such diseases that are not sometimes known to patient, as they do not manifest any serious symptoms in patient. Actual cause of death has been cardio respiratory arrest which can also not be said to be pre- existing disease and can occur suddenly. I (2016) CPJ 613 (NC) "Satish Chander Madan versus Bajaj Allianz General Insurance Co. Ltd." wherein it was held that hypertension is a common ailment and it can be controlled by medication and it is not necessary that person suffering from a heart attack. Treatment for heart problem cannot be termed as claim in respect of pre- existing disease. Repudiation of the claim was not justified. Therefore, in the absence of any specific evidence on the record, the disease of Diabetic Mellitus as referred in the discharge card Ex. C-10 cannot be termed as pre-existing disease defined under Clause 4.1 of the policy document.
13. With regard to Clause 4.2 under which hyper tension and diabetes were not covered for the period of 2 years. However, it is pertinent to mention here that the insured had not taken the treatment of diabetes. In case he was suffering from respiratory problem and stent and operation was conducted to remove the First Appeal No. 146 of 2017 12 respiratory problem, without any specific evidence of the Doctor that respiratory problem was due to some old diabetic mellitus problem whereas in the discharge card, it was referred recently detected, therefore, it cannot be said that diabetes mellitus was for respiratory problem. There are various chances under which respiratory problem arises. A reference can also be made to the judgment "Satish Chander Madan versus Bajaj Allianz General Insurance Co. Ltd." (supra) wherein it was observed that Cardio Respiratory Arrest cannot be said to be pre-existing disease and can occur suddenly. Counsel for the Op has not been able to co- relate that it happened only due to Diabetic Mellitus. Therefore, we are of the opinion that claim of the complainant/insured is not covered under Clause 4.2 of the terms and conditions of the policy. The claim was rightly allowed by the District Forum. We do not see any illegality in it and affirm the findings so recorded by the District Forum.
14. Sequel to the above, we do not see any merit in the appeal and the same is dismissed with no order as to costs.
15. The appellant/Op No. 1 had deposited an amount of Rs. 25,000/- and Rs. 75,000/- 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. First Appeal No. 146 of 2017 13
16. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
17. Order be communicated to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER September 14, 2017.
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