State Consumer Disputes Redressal Commission
The New India Assurance Company Ltd. vs Smt. Vibha Yadav And Another on 22 September, 2022
Appeal No. 96 of The New India Assurance Co. Ltd. 22.09.2022
2016 Vs.
Smt. Vibha Yadav
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND, DEHRADUN
Date of Institution: 18.05.2016
Date of Final Hearing: 29.08.2022
Date of Pronouncement: 22.09.2022
First Appeal No. 96 / 2016
The New India Assurance Company Ltd.
Divisional Office, 15-A, Rajpur Road
Opposite Gandhi Park, Dehradun
Through The New India Assurance Company Ltd.
Regional Office, 2nd Floor, 430, Niranjanpur
Saharanpur Road, Dehradun
(Through: Sh. R.K Garg, Advocate)
.....Appellant
VERSUS
1. Smt. Vibha Yadav W/o Sh. S.K. Yadav
R/o 819 Mohini Villa, Dayanand Nagri
Arya Nagar, Jwalapur, Haridwar
(Through: Sh. V.K. Srivastava, Advocate)
....Respondent No. 1
2. Life Insurance Corporation of India
Branch Office - I, Haridwar
Through its Branch Manager
(Through: Smt. Anjali Gusain, Advocate)
....Respondent No. 2
Coram:
Ms. Kumkum Rani, Judicial Member II
Mr. B.S. Manral, Member
ORDER
(Per: Ms. Kumkum Rani, Judicial Member II):
This appeal has been directed against the judgment and order dated 11.04.2016 passed by the District Consumer Disputes Redressal Forum, 1 Appeal No. 96 of The New India Assurance Co. Ltd. 22.09.2022 2016 Vs. Smt. Vibha Yadav Haridwar (hereinafter to be referred as the District Commission) in consumer complaint No. 90 of 2014 styled as Smt. Vibha Yadav vs. The New India Assurance Co. Ltd. and Anr., wherein and whereby the complaint was allowed against the appellant (opposite party No. 1 of the complaint) directing the appellant to pay the insured amount of Rs. 2 lacs to the complainant - respondent No. 1 within a period one month from the date of order alongwith simple interest @ 6% per annum, from the date of filing the consumer complaint till its actual realization.
2. The facts giving rise to the present appeal, in brief, are as such that the complainant has filed a claim case alleging that Smt. Vibha Yadav is an employee of Life Insurance Corporation of India. Her employer had taken a Group Mediclaim Insurance Policy from the opposite party No. 1 - The New India Assurance Co. Ltd. for its employees and their dependents. The complainant Smt. Vibhav Yadav, her husband Sh. Sudhir Kumar Yadav and her two sons: Master Abhinav Yadav and Master Abhishek Yadav were also covered under the policy. It is alleged in the complaint that during the validity of the mediclaim policy and as per the advice of the Dr. S.K. Wagnu, M.D. and Dr. Mohd. Aseem Siddiqui of Indraprastha Apollo Hospital, the check-up of her son was conducted and he was admitted in the hospital from 28.03.2013 to 29.03.2013; as per the advice of the doctors, the injections and medicine were given to her son to cure his disease, wherein the complainant had to incur Rs. 2,35,162/-, but the insurance cover under the said Mediclaim Policy was given for a sum of Rs. 2 lacs. The mediclaim policy was submitted before the appellant - insurance company for getting the insured amount, but her claim was repudiated by the appellant - insurance company, as 'no claim (case)'. On account of repudiation of the mediclaim, the complainant had to suffer mental, physical and economical agony, therefore, the complainant has filed a 2 Appeal No. 96 of The New India Assurance Co. Ltd. 22.09.2022 2016 Vs. Smt. Vibha Yadav complaint to get the insured amount to the tune of Rs. 2 lacs from the opposite parties.
3. The opposite party No. 1 - appellant has contested the consumer complaint and submitted its written statement alleging that the District Commission, Haridwar has no territorial jurisdiction in the matter; the complainant did not submit the required documents; all the correspondence has been made by the respondent No. 1 - complainant with the Divisional Office, Dehradun of the company; the claim of the complainant was repudiated by the Divisional Office, Dehradun of the company vide letter dated 03.07.2013 on the ground that the treatment given to the complainant's son was not covered under the policy and there was no deficiency in service on their part.
4. Opposite party No. 2 has averred in its written arguments that opposite party institution neither has committed any irresponsible act against the respondent No. 1 - complainant, which comes within the definition of deficiency in service; it was wrongly impleaded in the consumer complaint, hence, the consumer complaint is liable to be dismissed against the answering opposite party No. 2.
5. After hearing the arguments and perusing the evidence / material available on record, the District Commission has allowed the complaint vide impugned judgment and order dated 11.04.2016 directing the appellant - Insurance Company to pay Rs. 2 Lacs alongwith simple interest @ 6% from the date of filing the complaint case till its actual realization, within a period of one month from the date of judgment to the respondent No. 1 - complainant.
3
Appeal No. 96 of The New India Assurance Co. Ltd. 22.09.2022
2016 Vs.
Smt. Vibha Yadav
6. Having been aggrieved by the impugned judgment, the present appeal has been preferred by the opposite party No. 1 - appellant.
7. In the appeal, the complainant is respondent No. 1.
8. In the appeal, the appellant has averred that Commission below has no territorial jurisdiction in the matter. It is further contended that all the correspondence has been made by the respondent No. 1 - complainant with the Divisional Office, Dehradun of the Company; repudiation order was also passed by the Divisional Office, Dehradun of the company on dated 03.07.2013; the matter is not maintainable before the District Commission, Haridwar because no branch office of The New India Assurance Co. Ltd., Divisional office, Dehradun is situated within the territorial jurisdiction of District Commission, Haridwar. It is further argued that in the repudiation letter dated 03.07.2013 it was specifically mentioned that the patient was treated with Growth Hormone - Norditropin, but as per the terms and conditions of the policy, the treatment for growth hormone deficiency disease is not payable; the respondent No. 1 has got her son admitted in the hospital only to get mediclaim from the appellant, hence, learned District Commission has wrongly awarded the amount to the tune of Rs. 2 lacs alongwith interest without any evidence, hence, the learned District Commission has failed to exercise the jurisdiction vested in it by law and committed material irregularity and illegality while allowing the consumer complaint, hence the impugned judgment and order is liable to be set aside and the appeal deserves to be allowed.
9. We have heard learned counsel for the parties and perused the record available before us.
4
Appeal No. 96 of The New India Assurance Co. Ltd. 22.09.2022
2016 Vs.
Smt. Vibha Yadav
10. The main question of consideration before the Commission is whether the District Commission, Haridwar has territorial jurisdiction to hear the complaint case.
11. Learned counsel for the appellant has raised the plea that all the correspondence was made by the respondent No. 1 with the Divisional Office, Dehradun and the repudiation order was also passed by the Divisional Office, Dehradun vide letter dated 03.07.2013; there is no branch office of The New India Assurance Co. Ltd. at Haridwar, therefore, the learned District Commission has exceeded its jurisdiction to pass the impugned judgment without any territorial jurisdiction.
12. Learned counsel for respondent No. 1 - complainant has averred that the District Commission, Haridwar was fully empowered to hear the consumer complaint of the complainant.
13. We have perused the record. There is no such letter or such notification / order of the Head Office of The New India Assurance Co. Ltd., that there was no Divisional Office or the branch of The New India Assurance Co. Ltd. at Haridwar. Through net, we have availed some papers / documents bearing paper Nos. 89 to 91, which have revealed that there is Divisional Office at Haridwar of the appellant company, thereby the appellant has not come with clean hands; it has put incorrect version that there is no branch of the company at Haridwar. Moreover, when the mediclaim policy was issued by The New India Assurance Co. Ltd. at Haridwar, therefore, the District Commission, Haridwar has territorial jurisdiction to hear and entertain the consumer complaint of the complainant - respondent No. 1. For the sake of argument, if the correspondence was made by the respondent No. 1 with the Divisional Office, Dehradun, then such office should transfer the matter to the 5 Appeal No. 96 of The New India Assurance Co. Ltd. 22.09.2022 2016 Vs. Smt. Vibha Yadav Divisional Office, Haridwar of the company, so that the respondent No. 1 might get adequate relief as per law.
14. For the foregoing reasons, we are of the definite opinion that the District Commission, Haridwar is fully empowered to hear the complaint case of the respondent No. 1 - complainant.
15. The second question of consideration is before us whether there had been any violation / breach of any term and condition of the policy and the treatment of the complainant's son does not cover within the terms and conditions of the insurance policy.
16. The learned counsel for the appellant has contended that the learned Commission below has failed to consider that the injection, which was given to the son of respondent No. 1 - complainant was for the hormone growth and said treatment was not covered under the policy. Whereas the rival argument submitted by the respondent No. 1 - complainant is that the complainant's son was suffering from the disease, which does not come with the terms "Vaccination & Inoculation" of the policy.
17. We have perused the terms and conditions of the policy. These terms and conditions of the policy were neither submitted by the appellant company before the District Commission, nor such policy terms and conditions were supported and proved by the affidavit of the authorised officer of the company stating that these terms and conditions are still in existence in respect of the policy issued to the respondent No. 1 - complainant and these terms and conditions are presently applicable to the case of the respondent No. 1 - complainant. Nothing is available on record that the above mentioned policy terms and conditions regarding vaccination and inoculation were sent to the policy holder alongwith the policy. The 6 Appeal No. 96 of The New India Assurance Co. Ltd. 22.09.2022 2016 Vs. Smt. Vibha Yadav respondent No. 1 - complainant has submitted the terms and conditions obtained with the mediclaim policy in the year of 2006-07 and 2012-13 wherein the signature alongwith seal is available at the bottom and these terms and conditions are in sequence without any gap, whereas the terms and conditions filed by the Insurance Company (paper No. 53 to 66) do not contain any seal and signature of the authorised signatory of the Insurance Company; these terms and conditions are not in sequence. Such facts create a doubt whether these terms and conditions are, indeed in existence.
18. The respondent No. 1 - complainant has filed a photocopy of the judgment passed in First Appeal No. 22 of 2007, The New India Assurance Company Ltd. vs. Smt. Vibha Yadav, (i.e. between the present appellant and respondent No. 1 - complainant) passed on 28.11.2008 by the State Consumer Commission, Uttarakhand, Dehradun, wherein the appeal was dismissed against the present appellant. In the above cited case, the appellant company repudiated the mediclaim (regarding some pathological tests carried out and treatment prescribed) for Rs. 60,000/- on the ground that the patient was admitted in the Hospital only for investigation and no active treatment was given to him, which falls under the exclusion clause 4.10 of the policy, but in appeal this Commission held that "As such, the inference drawn by the insurer that the patient was admitted only for investigation and no active treatment was given to him, is not acceptable. The exclusion clause 4.10 of the policy does not apply in this case because the documents submitted by the complainant, very clearly indicate that the laboratory examination and diagnostic studies were in consistence with the treatment of the positive existence of the illness. Otherwise also, the patient is, as on date, an 11 years old child, who is suffering from growth hormone deficiency with poor effect on skeletal system. Thus, even on the ground of comparison, a generous 7 Appeal No. 96 of The New India Assurance Co. Ltd. 22.09.2022 2016 Vs. Smt. Vibha Yadav and positive attitude rather than a Pedantic approach is required in the settlement of such claim.
In this case, the respondent No. 1 - complainant's son was under the treatment of Dr. S.K. Wangnoo, a senior consultant Endocrinology of Indraprastha Apollo Hospital, New Delhi.
19. The learned counsel has not argued that the abovementioned cited judgment was set aside by the Hon'ble National Commission or by the Hon'ble Apex Court. Thus, it is proved that the judgment above has become final.
20. In this case, the same respondent No. 1 - complainant, as mentioned in the above cited case, has brought the complaint against the repudiation order of the insurance company whereby the claim of the insured (i.e. respondent No. 1 - complainant's son Master Abhinav Yadav) was rejected under the exclusion clause 9.3 (Vaccination and Inoculation) of the policy. In the case in hand, the insured (claimant's son) fell ill on the relevant dates, i.e. 28.03.2013 to 29.03.2013 and was taken to Hospital, where he was under the treatment of Dr. S.K. Wangnoo, a senior doctor / consultant of Indraprastha Apollo Hospital, New Delhi.
Dr. S.K. Wangnoo has issued a certificate regarding the disease of Master Abhinav Yadav (bearing paper No. 95), which is reproduced as below:-
"This is to certify that Mr. Abhinav Yadav was having growth hormone deficiency with poor effect on skeletal system & it was absolutely essential to give GH therapy for this disorder. Inj.
NORDITROPIN is not a vaccine or a booster dose of any vaccination. It is an essential medication which had been prescribed to the patient for Growth 8 Appeal No. 96 of The New India Assurance Co. Ltd. 22.09.2022 2016 Vs. Smt. Vibha Yadav hormone deficiency in order to maintain the survival and overall future well-being of the patient."
21. As per the above judgment dated 28.11.2008, the insured - complainant's son was suffering from Growth Hormone Deficiency disease. This fact was fully within the knowledge of the appellant company prior to the date of filing of complaint case No. 135 of 2006 and the Insurance company had earlier paid the mediclaim in relation to the same disease of Master Abhinav Yadav, (complainant's son). If for the sake of arguments the above disease of the respondent No. 1- complainant's son is not covered within the terms and conditions of the policy then why the appellant company had been continuously issuing Group Mediclaim Insurance Policy to the respondent No. 1- complainant including her son Master Abhinav Yadav and the company should reject the proposal form of the respondent No. 1- complainant's son Master Abhinav Yadav.
22. In such circumstances, we are of the view that the exclusion clause 9.3 shall not be applicable because the document filed by the respondent No. 1- complainant has clearly depicted that Master Abhinav Yadav was suffering from growth hormone deficiency disease and NORDITROPIN was prescribed for his medication for growth hormone deficiency in order to maintain the survival and overall future well-being of the patient. As per the above certificate of Dr. S.K. Wangnoo NORDITROPIN is not a vaccination or inoculation, because the doctor Dr. S.K. Wangnoo (who was giving treatment to Master Abhinav Yadav, respondent No. 1 - complainant's son since 2006) has clearly certified that NORDITROPIN is not a vaccine or a booster dose of any vaccination. Hence, the mediclaim of the complainant is not covered within the exclusion clause of the policy.
9
Appeal No. 96 of The New India Assurance Co. Ltd. 22.09.2022
2016 Vs.
Smt. Vibha Yadav
23. For the foregoing reasons, we find no force in this appeal. The learned District Commission has passed the impugned judgment as per the established principle of law, it is not perverse; the learned District Commission has passed the impugned judgment correctly and has not exceeded its jurisdiction vested in it and has not acted upon with irregularity and infirmity.
24. Appeal is dismissed. The impugned judgment and order dated 11.04.2016 is accordingly affirmed. No order as to costs.
25. A copy of this Order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 / 2019. The Order be uploaded forthwith on the website of the Commission for the perusal of the parties. The record of the District Commission be returned to the concerned District Commission alongwith copy of this judgment for record and necessary information.
26. File be consigned to record room along with a copy of this Order.
(Ms. Kumkum Rani) Judicial Member II (Mr. B.S. Manral) Member Pronounced on: 22.09.2022 10