State Consumer Disputes Redressal Commission
Darshan Singh Reehal vs Cholamandlam Ms General Insurance ... on 4 September, 2017
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
First Appeal No.150 of 2017
Date of Institution: 02.03.2017
Date of Reserve : 17.08.2017
Date of Decision : 04.09.2017
Darshan Singh Reehal aged 70 years son of Late S. Harbans Singh,
resident of 811, Phase II, Urban Estate, Focal Point, Ludhiana.
.....Appellant/Complainant
Versus
1. Cholamandlam MS General Insurance Company Limited,
Registered Office : Dare House, 2nd Floor, N.S.C. Bose Road,
Chennai-600001.
2. Cholamandlam MS General Insurance Company Limited,
Branch Office : 132/3, 2nd Floor, K.L.Plaza, Opp. DIG
Residence, Rani Jhansi Road, Civil Lines, Ludhiana.
......Respondent/opposite parties
First Appeal against the order dated
09.01.2017 of the District Consumer
Disputes Redressal Forum, Ludhiana.
Quorum:-
Mr. Gurcharan Singh Saran, Presiding Judicial Member
Mr. Rajinder Kumar Goyal, Member
Present:-
For the appellant : Sh.D.S.Reehal, in person
For the respondents : Sh.Punit Jain, Advocate
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
The appellant/complainant (hereinafter referred to as 'complainant') has filed the present appeal against the order dated 09.01.2017 passed by the District Consumer Disputes Redressal Forum, Ludhiana (hereinafter referred to as 'District Forum') in Consumer Complaint No.211, dated 16.03.2016, vide which the complaint filed by the complainant was partly allowed with a direction to the opposite parties to pay a sum of Rs.85,000/- to the complainant First Appeal No.150 of 2017 2 in terms of the policy. He is also entitled to the amount of Rs.33,520/- It was ordered to comply with the order within 30 days.
2. Complaint was filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') on the averments that he purchased a Chola Swasth Parivar - Pearl Policy from the opposite parties distributed by Central Bank of India as Corporate Agent of the Company meant for ex-employees of the Bank on 14.08.2015, renewed on 14.08.2013, 14.08.2014 and 14.08.2015. Smt. Harpal Kaur Reehal wife of the complainant is also co-assured in the said policy. She was admitted in Fortis Hospital, Ludhiana on 19.10.2014. After pre-authorization clearance for cashless facility she was operated upon for total knee replacement on 20.10.2014. When she was convalescencing well in the Ward, she suffered from breathlessness and ECG changes, therefore, she had to be re-shifted to ICU for the treatment. She was discharged from the hospital on 28.10.2014 and a bill of Rs.3,62,458/- was paid which included treatment of breathlessness of Rs.33,520/-. However, the Insurance Company cleared Rs.1,00,000/- with stipulation of 15% as co-payment and rest of the amount was not paid to him. The sum insured was Rs.5,00,000/-. They have covered it under term surgery for which a maximum of Rs.1,00,000/- is admissible but total knee replacement is not covered in the surgery which comes under the purview of implant. The claim was repudiated vide letter No.A737349B dated 22.01.2015 followed by their detailed letter dated 24.02.2015. A complaint was filed before the Ombudsman and after hearing the Ombudsman passed an award of Rs.33,520/-. Alleging deficiency in service, complaint was filed before the District Forum First Appeal No.150 of 2017 3 seeking direction against the opposite parties to pay claim of full amount of total knee replacement as cost of implant.
3. Complaint was contested by the opposite parties by filing their written reply stating therein that wife of the complainant was insured with Chola Swastik Parivar for health cover of a maximum of Rs.5,00,000/- vide policy No.2855/00100274/000/02 for the period of 14.08.2014 to 13.08.2015 alongwith the terms and conditions. The claim was received from the complainant which was duly registered vide Claim No.2855000779. Smt. Harpal Kaur Reehal was admitted in Fortis Hospital, Ludhiana on 19.10.2014 for total knee replacement and opposite parties had approved cashless for hospitalization and settled with Rs.85,000/- to the hospital. The final bill was of Rs.3,62,458/-. The opposite parties again reviewed the claim and vide letter dated 24.02.2015 it was communicated that as per the terms and conditions of the policy the claim has been settled. Thereafter, complainant approached the office of Insurance Ombudsman who allowed the payment of Rs.33,520/- towards ICU charges. As per the terms and conditions of the policy, treatment of fracture / dislocation / knee surgery the maximum limit is Rs.1,00,000/- with a deduction of 15% as co-payment. Accordingly, a sum of Rs.85,000/- was cleared. Preliminary objections were taken before the District Forum that the present complaint is not maintainable being false and frivolous and that it was filed after the expiry of limitation period of two years. Complicated questions of law and facts are involved in this complaint which can be adjudicated in the summary proceedings, therefore, the matter is required to be relegated to the Civil Court. It was submitted that there is no First Appeal No.150 of 2017 4 deficiency in service on the part of the opposite parties. Complaint is without any merit and it be dismissed.
4. Complainant tendered the ex-parte evidence before the District Forum.
5. In support of his allegations, the complainant had tendered into evidence the affidavit as Ex.C-A and documents as Ex.C-1 to Ex.C-13. On the other hand, opposite parties tender the affidavit of Ashutosh Kumar, Assistant Manager as Ex.RA and the documents Ex.R-1 to Ex.R-4.
6. After going through the allegations as alleged in the complaint, evidences and documents tendered into evidence by the complainant, the complaint filed by the complainant was partly allowed as referred above.
7. Aggrieved with the order passed by the learned District Forum, the appellant/complainant has filed the present appeal.
8. It was argued by the appellant / complainant who appeared in person that the opposite parties have considered the case of the complainant under the Clause 3.1.4(16) as defined in Ex.C-5 & Ex.C-6 and Clause No.16, is referred as under:-
"16. Treatment of fracture/ dislocation/knee surgery Rs.1,00,000/-"
However, the complainant has referred to the exclusion Clause No.2, which reads as under:-
"Following diseases are excluded during the first two years of inception of policy with us and is applicable only for Plan-Pearl:
Cataract, Benign Prostratic Hypertrophy, Hysterectomy for Menorrhagia or Fibromyoma, Hernia, Hydrocele, Fistula in First Appeal No.150 of 2017 5 anus, Piles, internal congenital disease, Sinusitis & related disorders, Gall Stones, Spondilitis, Spondilosis, Knee/Hip joint replacement, Internal Congenital diseases, Osteoarthritis of any joint, Calculus diseases of Gall Bladder and Urogenital, Gastric and Duodenal ulcers, internal Tumours, Cysts, nodules, polyps including breast lumps (each of any kind unless malignant), Gout & Rheumatism, ENT disorders & Surgery, Surgery of genitor urinary system, Surgery for prolapsed inter vertebral disk, Surgery of varicose vens & varicose ulcers, Surgery on tonsils.
If these diseases are pre-existing at the time of proposal, the same will be considered under the policy as per general exclusion number 1 above."
9. It includes Knee/Hip joint replacement. In case the total knee replacement is covered under the term Clause 3.1.4 then there was no requirement to cover it in the exclusion clauses. In his letter, Ex.C-2, the complainant has referred the definition of surgery and implant, which is referred as under:-
"XX XX XX XX Surgery - It is a treatment of disease, injury and deformity by manual or operative methods.
IMPLANT - An implant is an object or material inserted or grafted into the body for diagnostic purpose."
10. Hence, the treatment under total knee replacement falls under the purview of Implant as it is not an accident, injury, fracture and dislocation. Similar definition has been referred as Ex.C-7; Medical Dictionary quoted in the order of the District Forum.
11. Counsel for the opposite parties was unable to convince us how the total knee replacement is covered under the treatment surgery when specific provision has been made how and when total First Appeal No.150 of 2017 6 knee replacement is to be covered. However, this fact has not been appreciated by the District Forum and covered it under term 'surgery' and allowed the complaint vide which Rs.85,000/- after deducting a sum of Rs.15,000/-, was awarded. A sum of Rs.1,00,000/- and Rs.33,520/- on account of ICU charges has been wrongly covered under 3.1.4 (16).
12. We are of the opinion that there is no limit for total knee replacement. However, it will be subject to other terms and conditions of the policy i.e. condition of 15% of co-payment. Out of the sum of Rs.3,62,458/-, 15% will come to Rs.54,368/-. The balance amount comes to Rs.3,08,090/- out of which a sum of Rs.1,18,520/- (Rs.85,000/- + Rs.33,520/-) has already been paid. Therefore, the complainant will be entitled to the remaining amount of Rs.1,89,570/-.
13. Sequel to the above, we accept the appeal and order is modified. It is held that the complainant will be entitled to Rs.1,89,570/- over and above the amount already paid to the complainant alongwith interest at the rate of 9% per annum from the date of filing of the complaint till repayment.
14. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER September 04 , 2017 parmod