State Consumer Disputes Redressal Commission
United India Ins. Co. Ltd vs Nitin Choksi on 18 May, 2023
Details DD MM YY
Date of disposal 18 05 2023
Date of filing 09 05 2022
Duration 09 - 01
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE AHMEDABAD.
COURT NO: 04
FIRST APPEAL NO.319 OF 2022
1. United India Insurance Co. Ltd.
Kirti Tower, Tilak Road,
Behind Alkapuri Club, Alkapuri,
Vadodara
Through Authorized Represensative
United India Insurance Co. Ltd.
Regional Ofice,
5th Floor, Suraj Plaza - II,
Sayajigunj, Vadodara - 390020 ....Appellant/Original Opponent
Vs.
Nitin Choksi
9/A, Jayanand Society,
Behind Alkapuri Club, Alkapuri,
Vadodara .... Respondent/ Original Complainant
BEFORE: Dr. J. G. Mecwan, Presiding Member.
APPERANCE: Appellant - Ld. Adv. Mr. V.P. Nanavati
Respondent - Self
ORDER BY DR. J. G. MECWAN, PRESIDING MEMBER
JUDGMENT
1. Being aggrieved by and dissatisfied with the judgment and order rendered by the learned District Consumer Disputes Redressal Commission, Vadodara (Addl) in Complaint No. 914 of 2016 the Original Opponent has filed present Appeal before this commission. For the sake of the convenience, parties are hereinafter referred to by their original nomenclature.
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2. Brief facts of the case:
It is the case of the complainant that complainant has obtained health policy from the opponent insurance company since year 2000 and that policy was renewed from time to time. The last policy period was 21.08.2020 to 20.08.2021 and sum insured amount was Rs.5,00,000/-.
It is the case of complainant that for the cataract surgery he was admitted on 22.02.2020 in M.M. Chokshi Medical centre and Rs. 1,13,500/- expenses incurred for the said surgery but opponent insurance Company has deducted Rs. 73,500/- on the ground of aliment capping stated in the guiding terms and conditions.
3. Being dissatisfied with the deficiency in service of the opponent insurance company, complainant has filed Consumer Complaint before the ld. District Commission Vadodara (Addl) for getting the remaining policy amount of Rs. 73,500/- with 12% interest from the date of filing the Complaint along with Rs. 10,000/- towards mental agony and Rs. 5,000/- for the cost of the Complaint.
4. After hearing learned advocate for both the parties and after considering the documents and evidences, the Learned District Commission has allowed the complaint.
5. Being aggrieved by the impugned order of the learned District Commission, Vadodara the opponent insurance company has filed the present Appeal against the original complainant before this Commission on the ground stated in the appeal memo.
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6. Heard Ld. Adv. Mr. Darshil Parikh for the appellant insurance company Respondent/ Original complainant has submitted written arguments which is on record. Perused the order of Ld. District Commission and record of this matter.
7. Arguments of the Appellant:
Ld. Adv. Mr. Darshil Parikh for the appellant argued out that as per the insurance policy issued to the Complainant, the Appellant's liability for the Cataract surgery was restricted to "Actual expenses incurred or 25% of the sum insured whichever is less, subject to a maximum of Rs. 40,000/- per eye." and therefore the Appellant could not have been made liable to pay any additional amount over and above Rs. 40,000/- for the Cataract Surgery.
7.1 Ld. Adv. Mr. Darshil Parikh for the appellant further argued out that the complainant had lodged a request for the authorization of cashless claim for the cataract surgery to be performed at the M. M. Choksi Medical Centre for expenses of Rs. 40,000/- only and considering the policy condition approved the cashless claim settlement request of the complainant and had authorized an amount of Rs. 40,000/-. 7.2 Ld. Adv. Mr. Darshil Parikh for the appellant further submitted that the Ld. District Commission materially error is not considering the fact that after the request for cashless claim settlement was approved by the Appellant, the complainant had never approached the Appellant for reimbursement of any additional amount.
RUTVIK FA-319-22 Page 3 of 12 7.3 Ld. Adv. Mr. Darshil Parikh for the appellant further argued out that there was no evidence on record to substantiate that the terms and conditions of the policy were not provided to the complainant. It is pertinent to note that the complainant himself had produced on record a copy of the policy alongwith the complaint from which it was evident that the complainant had received the entire policy with terms and conditions as the said copy reflected the number of pages on the top right corner which proved that the complainant was provided with the entire booklet which contained the terms and conditions of the policy. 7.4 Ld. Adv. Mr. Darshil Parikh for the appellant further stated that the complainant could have invoked its right to raise dispute in the free-look period as per the Regulation 14 of the Insurance Regulatory and Development Authority of India (Health Insurance) Regulations, 2016, if the terms and conditions of the policy were not acceptable to the complainant.
7.5 Ld. Adv. Mr. Darshil Parikh for the appellant further stated that the Ld. District Commission erred in observing that the TPA was not authorized in processing the claim. It is respectfully submitted that the learned Commission failed to consider the Insurance Regulatory and Development Authority of India (Health Insurance) Regulations, 2016 as well as Insurance Regulatory and Development Authority of India (Third Party Administrators - Health Services) Regulations, 2016 which RUTVIK FA-319-22 Page 4 of 12 authorizes the TPA for the servicing of the claims under an agreement with the insurer.
7.6 Ld. Adv. Mr. Darshil Parikh for the appellant concluded that the order of the Ld. District Commission is not just and proper and therefore it should be set aside by allowing this appeal
8. Arguments of the Complainant:
Original complainant/ respondent of this appeal has submitted written argument wherein it has been stated that he has obtained insurance policy from the Opponent Insurance Co. The first policy was taken in year 2000 and thereafter it was renewed time to time and during the last insurance policy coverage I.e. from 21.08.2019 to 20.08.2020 he underwent cataract surgery for which Rs. 1,13,500/- expenses incurred but opponent insurance company has deducted Rs. 73,500/- and allowed only Rs. 40,000/- on the ground that as per policy terms and conditions Rs. 40,000/- is admissible for cataract surgery.
8.1 Original complainant Mr. Chokshi further submitted in written argument that opponent insurance company has not provided terms and conditions and provided only policy schedule. The exclusion clause on which opponent Insurance Company relied upon is not provided to him and also not explained to him In the written argument original complainant has cited following judgments
1. Hon'ble Supreme Court III 2001 CPJ Biman Krishna Bose Vs. United India Insurance Co. Ltd.
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2. Hon'ble Supreme Court 1996 (6) SCC United India Insurance Co. Ltd. Vs. M.K.J. Corporation.
3. Hon'ble Supreme Court Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd.
4. CDRC Gujrat Appeal No. 872 of 2015 New India Assurance Co. Ltd. Vs. Rita Shailesh Dani
9. Merit of the Case In this appeal the appellant insurance company has filed appeal against the order of the Ld. District Commission and submitted that as per terms and conditions of the policy complainant is only entitle to get the actual expenses of cataract surgery or 25% of sum insured amount whichever is less subject to a maximum of Rs. 40,000/- per eye. and therefore in this case as per above terms and conditions, opponent insurance company has allowed Rs. 40,000/- amount as cashless basis for cataract surgery of the complainant and hence there is no any deficiency in service on the part of the opponent insurance company.
9.1 On perusal of the record of this complaint it is an admitted fact that the complainant underwent for cataract surgery and Rs. 1,13,500/- expenses incurred but opponent insurance company has sanctioned only Rs. 40,000/- on cashless basis against Rs.1,13,500/- so complainant has filed this complaint before Ld. District Commission Vadodara to get remaining amount of Rs. 73,500/-
9.2 In the written argument submitted by the complainant it has been stated that the insurance company has informed that as per terms and conditions of the policy only Rs. 40,000/- can be paid for cataract surgery but opponent insurance co. has not provided this terms and RUTVIK FA-319-22 Page 6 of 12 condition with policy schedule and further not explained terms and condition to him. It is further stated by complainant that the policy initially taken in year 2000 and this conditions were not incorporated in the original policy but later on insurance company has added this terms and condition.
9.3 On the other hand it has been stated by opponent insurance company that terms and conditions of the policy has already been provided to the complainant with policy schedule. Ld. Adv. Mr. Parikh has drawn attention of this commission to the copy of policy and stated that the copy of policy produced by complainant has 36 pages in total as on the policy 1 of 36 reflected on the top right corner which means that the complainant was provided total 36 pages booklet which contained the terms and conditions of policy. Further Ld. Adv. Mr. Parikh has drawn the attention of this commission to the judgment of this state commission in appeal no. 1087 of 2013 wherein this state commission held that on the page of policy on the bottom side of page 2 of 22 is shown which clearly establish that the said page is page no.2 of 22 pages and they are terms and conditions of the policy.
I have gone through the copy of policy produced by complainant but it is of year 2020-21 on which page 1 of 36 is written while in this matter complainant underwent cataract surgery during policy period of 2019-20 and opponent insurance company has not submitted any evidence to RUTVIK FA-319-22 Page 7 of 12 prove that terms and Conditions of policy 2019-20 was supplied to the complainant.
9.4 On examination of the policy it transpires that first policy issued date is 28.08.2000 which establish that complainant has been taking the policy since year 2000 and it was renewed time to time.
Hon'ble Supreme Court in III 2001 CPJ Biman Krishna Bose Vs. United India Insurance Co. Ltd. held as under:
"A renewal of the insurance policy means repetition of the original policy. When renewed the policy is extended and the renewed policy in the identical terms from a different date of its expiration comes into force. In common parlance by renewal, the old policy is revised and it is sort of a substitution of obligations under the old policy unless such policy provides otherwise. It may be that on renewal, a new contract comes into being, but the said contract is on the same terms and conditions as that of the original policy."
Thus according to the above observation of the Hon'ble Supreme Court when this policy has been issued by the Insurance Company since 2000 and renewed many times and therefore this policy can be called a repetition of the original policy and terms and condition of the original policy shall apply to the present policy.
9.5 In this case the insurance company has not produced the terms and conditions of insurance policy of year 2000 and therefore this commission is of the view that the Insurance Company cannot prove that the under mentioned condition of cataract was in the original policy of year 2000:
"Actual Expenses incurred at 25% of the sum insured whichever is less subject to a maximum of Rs. 40,000 per eye".
Thus, when the insurance company cannot prove that the above mentioned terms of cataract surgery were in the terms and conditions of RUTVIK FA-319-22 Page 8 of 12 the policy of year 2000, then those terms and conditions are not applicable to the complainant, for the policy of year 2019-20. 9.6 Further it is submitted by the insurance company that this condition has been added latter on but in the opinion of this commission when any condition is added later on in the policy then insured should be informed about the additional terms and condition/exclusion clause. Hon'ble National Commission 2019(6)SCC 212 Bharat Watch Company thro its partner Vs. National Insurance Company Ltd. supra covers the case, wherein following has been laid down in para 7 & 10:
7 "The basic issue which has been canvassed on behalf of the appellant before this Court is that the conditions of exclusion under the policy document were not handed over to the appellant by the insurer and in the absence of the appellant being made aware of the terms of the exclusion, it is not open to the insurer to rely upon the exclusionary clauses. Hence, it was urged that the decision in Harchand Rai will have no application since there was no dispute in that case that the policy document was issued to the insured.
10 "Having held this, SCDRC also came to the conclusion that the exclusion would in any event not be attracted. The finding of SCDRC in regard to the interpretation of such an exclusionary clause is evidently contrary to the law laid down by this Court in Harchand Rai. However, the relevance of that interpretation would have arisen provided the conditions of exclusion were provided to the insured. NCDRC missed the concurrent findings of both the District Forum and SCDRC that the terms of exclusion were not made known to the insured. If those conditions were not made known to the insured, as is the concurrent finding, there was no occasion for NCDRC to render a decision on the effect of such an exclusion." In view of the above we are of the opinion that no other issue needs to be considered. The appeal of the appellant is liable to be dismissed on the above ground."
Looking to the above observation of Hon'ble Appex Court, in the instant case since the insurance company has not informed the insured about new condition added in insurance policy and therefore in the opinion of this commission these conditions are not applicable to the insured. RUTVIK FA-319-22 Page 9 of 12 9.7 Ld. District Commission in its judgment held that the TPA has decided the insurance claim of the complainant which is not appropriate and noted that TPA is not empower to reject the claim of the complainant directly and hence in this matter decision of the TPA to reject the partly claim of complainant is unjust act.
9.8 In this matter opponent insurance company has submitted IRDA regulations 2016 wherein section 21(3) is for cashless facility wherein following are guideline for TPA:
TPA may admit claims, authorize cashless facility and recommend to the insurer for the payment of the claim which shall be in line with the detailed claims guidelines issued to TPA by the insurers for the particular product:
Thus looking to the above guideline it is the duty of TPA to authorize cashless facility and to recommend the insurance company for the payment of claim amount as per guideline. While in this case on hand TPA has authorized cashless facility but instead of recommending claim to the insurance company deducted Rs.73,500/- and stated that the complainant is entitled to get only 40,000/- claim amount. The Ld. District Commission in its judgment has invalidated the decision of the TPA and in the opinion of this commission findings of the Ld. District Commission is just and proper.
9.9 It is an averment of the opponent insurance company that complainant has filled up proposal form on 21.08.2019 and therefore it is the new contract and as new contract is made new terms and condition shall apply.
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Copy of the policy for year 2019-2020 and 2020-21 are produced in this matter. It is an averment of Ld. Advocate Mr. Parikh that proposal form was filled up on 21.08.2019 due to enhancement of insured amount but opponent insurance company has not submitted copy of proposal form in support of argument. I have gone through the policy of year 2019-20 and 2020-21. In both the policies date of filing the proposal form are written but on examination of both policies it is found that in the policy of 2019- 20 date of filing proposal form and policy start date is same i.e. 21.08.2019. Further in policy of 2020-21 date of filing of proposal form and policy start date is same i.e. 21.08.2020. Thus it is crystal clear that in both policies by default policy start date has been written as proposal filled up date irrespective of the fact that proposal form was filled up or not. Further opponent insurance company has not submitted copy of proposal form in support of argument that new proposal form was filled up.
Hence in the opinion of this commission an averment of opponent insurance company is not acceptable that new proposal form was filled up and as new contract is made new terms and conditions shall apply.
10. In view of the above conspectus and material on record in the opinion of this commission as opponent Insurance Company has not informed to the complainant about the new terms and conditions and also not explained it and hence that terms and condition is not applicable to insured for the policy of 2019-2020.
RUTVIK FA-319-22 Page 11 of 12 The Ld. District Commission has discussed all this points in detail. In the opinion of this commission, the order of Ld. District Commission is just and proper and therefore it does not requires interference of this commission and hence the following final order is passed.
ORDER
1. The present Appeal no. 319 of 2022 is dismissed.
2. The judgment and order passed in C.C. No. 914 of 2016 dated 02.02.2022 by the learned District Commission, Vadodara (Addl) is hereby confirmed.
3. Appellant insurance Co. is ordered to pay Rs. 10,000/- (Rs. Ten Thousands Only) to the original complainant/respondent as cost of appeal & bear its own cost if any
4. Appellant Insurance Company shall comply with this order within 60 days from the date of this order.
5. Office is directed to verify the amount deposited by the Applicant in Appeal No. 319/2022. If found deposited, refund the same with interest, if any, accrued on the deposit to the appellant through RTGS after following due procedure and verification. For this purpose the appellant has to apply PDF Copy to the Account branch accordingly.
6. Registry is hereby instructed to send a copy of this order in PDF format by E-Mail to Learned District Commission Vadodara (Addl) for necessary action.
7. Office is directed to forward a free of cost certified copy of this judgment and order to the respective parties.
Pronounced in the open Court today on 18th May 2023.
[Dr. J.G. Mecwan] Presiding Member.
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