Punjab

StateCommission

FA/261/2014

National Insurance Co. Ltd. - Complainant(s)

Versus

Ashok Jain - Opp.Party(s)

S.S. Sidhu

25 Mar 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

 

  First Appeal No. 261 of 2014                                                   

                                  Date of institution  :   18.03.2014     

                       Date of decision     :    25.03.2015

 

1. National Insurance Co. Ltd. Regional Office SCO 332-334 Sector 34-A Chandigarh.
2. National Insurance Co. Ltd. Branch Office GT Road Sirhind District Fategarh Sahib.

Both through duly constituted attorney of the company, at Regional Office-1, S.C.O. 332-334, Sector 34 A, Chandigarh

…….Appellants/Opposite party No. 1 and 2

 

Versus

Ashok Jain son of Mittarsian Jain resident of House No. 166 Sector 5, Shashrti Nagar, Mandi Gobindgarh, District Fategarh Sahib.

                                                             ..……Respondent/complainant 

First Appeal against the order dated 31.01.2014 of the District Consumer Disputes Redressal Forum, Fategarh Sahib.

Quorum:- 

 

          Hon’ble Mr. Justice Gurdev Singh, President

                        Mr. Baldev Singh Sekhon, Member

                        Mrs. Surinder Pal Kaur, Member

 

Present:-

 

          For the appellants    : Sh. S.S. Sidhu, Advocate

          For the respondent  : Sh. J.P.S. Batra, Advocate

 

 

MR. BALDEV SINGH SEKHON, MEMBER :-

 

                    This appeal has been preferred by the appellants/opposite party No. 1 & 2 against the order dated 31.01.2014 passed by District Consumer Disputes Redressal Forum, Fategarh Sahib (in short, “District Forum”), vide which the complaint filed by the respondent/complainant, under Section 12 of the Consumer Protection Act, 1986, was allowed and appellants/opposite parties No. 1 & 2 (in short 'OPs'), were directed to reimburse the medical expenses amounting to Rs. 1 Lac, to the complainant along with interest @ 9% from the date of repudiation of the claim. They were further directed to pay to the complainant Rs. 15,000/- as compensation on account of mental and physical harassment besides payment of Rs.5,000/- as litigation cost. 

2. Brief facts, as stated in the complaint, are that in February 2010, OP No.3 i.e. Narinder Kumar, executive/agent of OP No. 1 & 2, approached the complainant and advised him to get himself and his family members insured with the OPs by taking medical Insurance Policy called 'Parivar Mediclaim'. He was assured that said policy covers all risks and in case of any claim same would  be cleared forthwith. Accordingly the complainant obtained the said medical Insurance Policy from OPs for all of his family members i.e. Sh. Ashok Jain, the complainant, his wife Smt. Renu Jain, his son Sumit Jain, and his daughter Sheenam Jain, by paying Rs.15,010/- as premium on 09.09.2010 for one year. Accordingly, OPs issued Policy No. 850000096, along with four different identity cards for each family member. After one year complainant again paid Rs. 14,397/- as premium for renewing the said policy for the period of 09.09.2011 to 08.02.2012. In the first week of September 2011, Smt. Renu Jain suffered from Uterus problem and got herself checked in 'Parbatpuri Charitable Hospital, Gobindgarh where doctor advised her for different medical tests and treatment. She was admitted in DMC, Hospital, Ludhiana on 05.09.2011, which was on the Panel of the OP No. 1 & 2 for getting cashless treatment. But the employees of the DMC hospital did not entertain her case for cashless treatment. Complainant immediately contact OP No.3 on his Mobile No. 9417043667 and told him about the situation, whereupon OP No.3 assured him that in accordance with the terms and conditions of the policy, cashless treatment is to be allowed and further told that in case of any problem for availing cashless treatment, he should get the treatment on payment and the claim would be reimbursed.    Smt. Renu Jain remained admitted in the said hospital upto 08.09.2011 for her treatment and incurred Rs.1 Lac on medical tests, treatment, medicines and on transportation. After her discharge from the hospital, the complainant submitted claim to OPs for the reimbursement of the said amount. OPs demanded other medical record of the patient on 19.09.2011 and 9.12.2011, which was also submitted by the complainant.  But the OPs failed to reimburse the claimed amount. On 09.02.2012, OP No.3 again approached the complainant and asked him to pay the premium for the next year as well, but, complainant declined to pay the same. OP No.3 assured the complainant that reimbursement of pending claim would be made within few weeks. The complainant, therefore, paid another premium of Rs.14,397/- for the policy period 09.02.2012 to 08.02.2013. But, even thereafter the claim was not paid by OPs. It was pleaded that, the OPs harassed the complainant physically as well as mentally by adopting unfair trade practice. In complaint filed before the District Forum, complainant sought directions to the OPs to reimburse the medical expenses of Rs. 1 Lac along with interest. The compensation of Rs.50,000/- for mental agony and unnecessary harassment, along with Rs. 50,000/- as damages/compensation for unnecessary litigation, was also prayed.
3. Upon notice OP No. 1 & 2 contested the complaint and filed joint written reply denying the allegation of deficiency in service and unfair trade practice. It was admitted that the mediclaim policy, covering hospitalization benefits in favour of Sh. Ashok Kumar Jain, his wife Smt. Renu Jain, his son Sumit Jain and daughter  Ms. Sheenam Jain to the extent of Rs. 4 Lac each for the period of 09.02.2011 to 8.02.2012, was obtained by complainant by paying renewal premium of the policy. It was denied that Smt. Renu Jain was admitted in DMC, Hospital, Ludhiana on 05.09.2012 and that the employees of DMC did not entertain the patient for cashless treatment. It was, however, admitted that complainant submitted claim for the reimbursement of medical expenses of Rs.1,00,000/-, reportedly spent on treatment of Smt. Renu Jain for the period 05.09.2011 to 08.09.2011, for the treatment of Prolapse Uterus C CSRHI cal Dysphasia. The claim was forwarded to M/S. Vipul Med. Corp. TPA Pvt. Ltd. Chandigarh, who was the Third Party Administrator   (in short 'TPA') under the policy, for its opinion. It was found by TPA that the claim was not payable under Clause 4.3 of the policy issued to the complainant as Hysterectomy was not covered during first two years of the operation of the policy. The complainant was accordingly informed, vide letter dated 24.09.2012. Denying any deficiency in service on their part, dismissal of complaint was prayed.

4.      Parties led their evidence by way of affidavits before the District Forum which after going through the same allowed the complaint in the aforesaid terms.

5.      Aggrieved by this order OPs have come up in appeal on the ground that learned District Forum has wrongly interpreted the repudiation letter. It has based its finding on the pre-sumptuary notion that the OPs repudiated the claim on the ground of 'pre-existing disease'. In fact the claim of the complainant's wife fell within the exclusion of 'named medical conditions'; being not covered for first two years from date when the first mediclaim policy was obtained. Complainant himself admitted that he had taken the Mediclaim Policy  for the first time on 09.02.2010. The claim for Uterus prolapsed/Hysterectomy was lodged for the hospitalization from 05.09.2011 to 08.09.2011 i.e. when the policy was running into second year. The case laws quoted by the District Forum are not relevant and are distinguishable because these authorities pertain to repudiation done on account of 'pre-existing diseases'. Acceptance of the appeal and setting aside of the impugned order was prayed.

6.      Learned counsel for the complainant submitted that the District Forum has reached the correct conclusion on the basis of the evidence proved on record and prayed that the appeal, being devoid of any merit, be dismissed.

7.      We have thoroughly gone through the pleadings of the parties and carefully perused the evidence on record and heard the learned counsel for the parties on their behalf.

8.      Admittedly the complainant obtained "Parivar Mediclaim Policy" from OPs for the first time for the period 09.02.2010 to 08.02.2011, which was subsequently renewed for the period of 09.02.2011 to 08.02.2012 and that during the subsistence of the second policy year, the wife of the complainant remained admitted in the DMC, Hospital, Ludhiana, where she obtained treatment for Prolapsed Uterus. The claim filed by the complainant for the reimbursement of the medical expenses to the tune of Rs.1 Lac was lodged with the OPs which was repudiated by them, vide letter dated 13.06.2012 (Ex.OP-3) on the ground that disease 'Vaginal Prolapsed/Hysterectomy' is an exclusion for first two years of the policy as per condition no. 4.3. It is the specific case of the complainant that Smt. Renu Jain was admitted in the DMC, Hospital, Ludhiana with the complaint of Vaginal Prolapsed Uterus C Dysphasia. The OPs have produced before this Commission the discharge summary of DMC, Hospital, Ludhiana, for the period 05.09.2011 to 08.09.2011, perusal by which, shows that the patient Smt. Renu Jain was diagnosed as under:-

"PROLAPSED UTERUS C  CERVICAL DYSPLASIA"

            Further against the column 'treatment advised', it is mentioned as under:-

"LAVH C BSO  GA on 06.09.2011."

 

Similarly, under the heading 'Hospital Course', it is further mentioned "LAVH  C BSO was done on 06.09.2011 I SA by Dr. Harish Matta."

9.      The medical literature confirms that 'LAVH' in context of Prolapsed Uterus, stands for 'Laparoscopically Assisted Vaginal Hysterectomy' and same is further explained as under:-

    "It is a surgical procedure using a laparosocpe to guide the removal of Uterus and/or  Fallopian tubes and ovaries through the Vagina. During LAVH Uterus is detached from the ligaments that attaches it to other structures within the abdomen and Pelvis. Laparoscopic devois the organs and the tissues are removed through incision made in the vagina."

10.    It is thus abundantly clear from the discharge summary, obtained from the hospital, where the patient obtained medical treatment, that the claim filed by the complainant was for the procedure LAVH also called "Hysterectomy."

12.    The terms and conditions of 'PARIVAR-Mediclaim family policy' have been proved on record by the OPs and its exclusion Clause 4.3 provides as under:-

"4.3 During the first two years of the operation of insurance cover, the expenses on the treatment of diseases such as Cataract, Benign Prostatic Hypertrophy, Hysterectomy, Hernia, Hysrocoele, Interal congenital Defects/Diseases or Anomalies, fistula in Anus, Piles, Chronic Fissure in Anus, Pilonidal congenital Defects/diseases or Anomalies, Fistula in Anus, Piles, Chronic Fissure in Anus, Pilonidal Sinus, Sinusitis, Stone disease of any size, Benign Lumps/growths in any part of the body, CSOM ( Chronic Suppurative Otitis Media) Joint replacement of any kind unless arising out of accident, Surgical treatment of Tonsils & Adenoids, Deviated Nasal Septum and Chronic Diseases are 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."

Plain reading of this exclusion clause shows that the expenses incurred for "Hysterectomy", is not payable for the first two years. It is not disputed that the policy in question was running into second year since its inception for the first time and the waiting period of two years was not yet over. Thus, the OPs rightly repudiated the claim of the complainant by involving exclusion Clause 4.3.

13.    Learned District Forum has grossly erred in interpreting this exclusion clause by holding that 'clause 4.3 is attracted in case of 'pre-existing disease'only and that OPs have failed to prove that the disease was pre-existing at the time of proposal. This exclusion clearly stipulates that the listed diseases were not covered for the first two years. It is further stated that if these diseases are pre-existing at the time of proposal, they will not be covered even during subsequent period of renewal too.' It does not mean that if the listed diseases are not pre-existing, those would be covered. In fact, it conveys that waiting period for such diseases is two years and in case these are pre-existing, these would not be covered even after two years.                                                              

14.    In view of the above discussion the appeal filed by OPs is allowed and the impugned order of the District Forum is set aside. Consequently the complaint filed for the complainant is dismissed. No order as to costs.

15.       The appellants/opposite parties No. 1 & 2 deposited Rs. 25,000/-, with this Commission at the time of filing of appeal. Another amount of Rs. 43,250/- was deposited by them vide receipt No. 137723 dated 18.07.2014 as per direction of this Commission.Both these amounts alongwith interest  which has accrued thereon, if any be remitted by the Registry to appellants/opposite parties by way of cross cheque/demand draft after the expiry of 45 days from the date of despatch of the certified copy of the order to the parties.

16.    The arguments in this case were heard on 12.03.2015 and the order was reserved.  Now, the order be communicated to the parties.

17.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                               (JUSTICE GURDEV SINGH)

                                                                           PRESIDENT       

 

 

                                                                  (BALDEV SINGH SEKHON)                                     

                                                                         MEMBER

                                                         

                                                                         

 

                                                                 (SURINDER PAL KAUR)

March    25, 2015                                               MEMBER

RK2