Chandigarh

StateCommission

A/299/2017

The Oriental Insurance Company Ltd. - Complainant(s)

Versus

Bal Krishan - Opp.Party(s)

J P Nahar, Adv.

27 Jul 2018

ORDER

   STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

Appeal No.	299 of 2017
Date of Institution	01.12.2017
Date of Decision	27.07.2018

 

1. The Oriental Insurance Company Limited, Quiet Office No.15, Sector 35-C, Chandigarh, through its Divisional Manager/Manager/Authorized Agent.
2. M/s Raksha TPA Pvt. Limited, SCO 359-360, 1^st Floor, Sector 44-D, Chandigarh, through its Director.

Now both through their authorized signatory, Alka Bansal, Manager, The Oriental Insurance Company Ltd., Regional Office, SCO No.109-111, Sector 17-D, Chandigarh.

                                                 …..Appellants/Opposite Parties

                                      Versus

Bal Krishan son of Sh. Siri Ram, resident of House No.3387, Sector 32-D, Chandigarh.

                                                .....Respondent/Complainant.

BEFORE:             JUSTICE JASBIR SINGH (RETD.), PRESIDENT

                             MRS. PADMA PANDEY, MEMBER

 

Argued by:

 

Sh. J.P.Nahar, Advocate for the appellants.

Sh. Vikram Tandon, Advocate for the respondent.

 

PER PADMA PANDEY, MEMBER

              This appeal is directed against the order dated 24.10.2017, rendered by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (in short ‘the Forum’ only), vide which, it partly allowed Consumer Complaint bearing No.1018 of 2016, with the following directions :-

“10.       In the light of above observations, the present complaint of the Complainant deserves to succeed against the Opposite Parties, and the same is partly allowed, qua them. The Opposite Parties are, jointly and severally, directed:- 

[a]  To pay Rs.3,48,231/- (i.e. Rs.3,64,815/- less amount of Rs.16,583/- spent on 30^th day of inception of the policy) to the Complainant;

[b]  To pay Rs.10,000/- as compensation for deficiency in service, for unfair trade practice and harassment suffered by the Complainant; 

[c]  To pay Rs.10,000/- as costs of litigation.

11.      The above said order shall be complied within 30 days of its receipt by the Opposite Parties; thereafter, they shall be liable for an interest @9% p.a. on the amounts mentioned in sub-paras [a] and [b] above from the date of institution of this complaint, till it is paid, apart from cost of litigation as in sub-para [c].”  

 2.                The facts, in brief, are that the complainant purchased a Health Insurance Policy namely Happy Family Floater-2015 Policy from Opposite Party No.1 vide policy No.231102/48/2016/860 valid from 06.02.2016 to 05.02.2017 for himself and his wife Anjali and two children, against all the diseases. Copy of the insurance policy is Annexure C-1. It was stated that for the first time, on 19.02.2016 wife of the complainant was detected with jaundice, as per medical reports (Annexure C-2) and, therefore, she took rest and precautions as were to be taken by a person suffering from Jaundice. Unfortunately, on 06.03.2016, when the complainant complained of fresh blood in her stool twice and due to this reason, she was admitted in the Max Super Specialty Hospital, Mohali, where she was diagnosed to be suffering from Acute Liver Failure, Urinary Tract Infection (UTI), Interno Externalo Haemorrhoids and Right Minimal Pleural Effusion. The wife of the complainant was treated in the Hospital from 06.03.2016 to 14.03.2016 and was discharged on 14.03.2016. During this period, the complainant spent an amount of Rs.1,49,402/- for the treatment of his wife. On 18.03.2016, the complainant filed medical claim form with Opposite Party No.2 and also submitted all the requisite information/documents. Copy of the claim form is Annexure C-5. Thereafter, on 25.03.2016, Opposite Party No.2 sent a letter for obtaining some more documents for the processing of the claim, which was sent to it on 08.04.2016. During this period on 19.04.2016, wife of the complainant again admitted in Max Healthcare Hospital for the same disease i.e. Acute Liver Failure and remained admitted upto 21.04.2016, on which date, the complainant got her wife transferred to PGIMER, Chandigarh, where she died on 22.04.2016. It was further stated that the complainant spent an amount of Rs.1,75,264/- on the hospitalization of his wife. Between the period of first discharge and second discharge from the Hospital, the complainant also spent an amount of Rs.42,024/- on medicines etc. It was further stated that after waiting for more than one month, when the complainant did not hear anything from the Opposite Party No.1, he sent a letter dated 25.05.2016 for the settlement of the first claim. Ultimately, on 01.06.2016, Opposite Party No.1 repudiated the first claim of the complainant on the ground that as per Clause 4.1 & 4.2 of the Policy, the claim falls under first 30 days clause as well as disease is pre-existing to policy inception (Annexure C-13). Thereafter, on 29.07.2016, the complainant again lodged claim for the second admission in the Hospital from 19.04.2016 to 21.04.2016 to Opposite Party No.2 along with bills and hospital documents but Opposite Party No.2 vide letter dated 10.10.2016 also repudiated the claim of the complainant on the same ground. Copy of letter of repudiation of second claim dated 10.10.2016 is Annexure C-14. It was further stated that wife of the complainant was detected with jaundice for the first time on 19.02.2016 and the policy was taken on 06.02.2016. It was further stated that wife of the complainant was not aware about the disease earlier to 19.02.2016 and no medication was ever taken by her and there is no history of the abovesaid disease, therefore, the said disease was not pre-existing one. It was further stated that the Opposite Parties were deficient, in rendering service, as also indulged into unfair trade practice.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), was filed.

3.                In their written statement, the Opposite Parties while admitting the factual matrix of the case stated that the commencement date of the Policy, in question, was 06.02.2016 and wife of the complainant was found to be suffering from the ailment from 19.02.2016. It was further stated that wife of the complainant was suffering from the Acute Liver Failure much earlier before taking the policy w.e.f. 06.02.2016 but concealed the entire medical condition. It was further stated that it is clearly mentioned in Exclusion No.4.1 of the Policy that the treatment for the pre-existing disease is not payable for four years and under Exclusion No.4.2 that the treatment for the diseases contracted during first 30 days from the inception of the policy was not payable. Therefore, the claim of the complainant was rightly repudiated. It was further stated that the Opposite Parties were neither deficient, in rendering service nor indulged into unfair trade practice.

4.                The complainant filed rejoinder to the written statement of the Opposite Parties, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties. 

5.                The parties led evidence, in support of their case.

6.                After hearing Counsel for the parties and, on going through the evidence, and record of the case, the Forum, partly allowed the complaint, as stated above. 

7.                Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.

8.                We have heard Counsel for the parties and have gone through the evidence and record of the case, carefully. 

9.                Counsel for the appellants/Opposite Parties  submitted that as per Exclusion Clause 4.2 of the policy, if any disease is contracted within 30 days of inception of the policy, no expenses for that disease are payable. He further submitted that the sum insured under the policy is Rs.3,00,000/- but the Forum awarded an amount of Rs.3,48,231/- which is more than the sum insured under the policy. He prayed for allowing the appeal and setting aside the impugned order.

10.               Counsel for the respondent/complainant submitted that the Forum has rightly passed the impugned order and prayed for dismissal of the appeal filed by the Opposite Parties.

11.               After going through the evidence and record of the case, we are of the considered opinion, that the appeal is liable to be partly allowed, for the reasons to be recorded, hereinafter.

12.               The only point for consideration before us is as to whether the Forum has rightly partly allowed the complaint. The answer, to this, question is in the affirmative. The main bone of contention of the appellant i.e. The Oriental Insurance Company Limited is that the respondent/complainant, who had taken a Family Floater Policy on 06.02.2016 was not eligible for insurance claim against the ailment of the spouse (since deceased), since the disease was contracted during the first 30 days of the tenure of the policy. The deceased spouse of the complainant was diagnosed for the first time on 19.02.2016 with mild jaundice, and on 06.03.2016 when she complained of fresh blood in her stool, she was got admitted in the Max Super Speciality Hospital, where she was diagnosed with Acute Liver Failure, Urinary Tract Infection (UTI), Interno Externalo Haemorrhoids and Right Minimal Pleural Effusion. On a bare perusal of the repudiation letters issued by the appellant dated 01.06.2016 & 15.04.2016 (Annexure C-13 & C-14), we observe the following :-

“This has reference to your abovesaid claim in respect of Ms.Anjali who was admitted into Max Super Speciality Hospital, Mohali with C/o Acute Liver Failure with UTI with Internoexternal Haemorrhoid with Jaundice since Feb 2016. As policy start date is 06/02/2016 and this is first year policy. Therefore claim falls under First 30 Days clause as well as Disease is pre existing to policy inception date as patient had progressive Jaundice since Feb 2016 and policy started on 06/02/2016.

Therefore, claim is not tenable as per Happy Family Floater clause 4.1 and 4.2 enumerated below :

I 4.1 All Pre-existing Disease (whether treated/untreated, declared or not declared in the proposal form), which are excluded upto 48 months of the Policy being in force, Pre-existing disease shall be covered only after the Policy has been continuously in force for 48 months. For the purpose of applying this condition, the date of inception of the first indemnity based health policy taken shall be considered, provided the renewals have been continuous and without any break in period, subject to portability condition.

This exclusion shall also apply to any complication(s) arising from pre existing diseases. Such complications will be considered as part of the Pre existing health condition or Disease (line is not legible).

II. 4.2 Any disease other than those stated in clause 4.3 contracted by the Insured Person during the first 30 days from the inception date of fresh Policy. This shall, however, not apply in case the Insured Person is Hospitalised for injuries suffered in an accident, which occurred after inception of the Policy.

Hence, your claim is not payable (copy of letter received from TPA in original is enclosed herewith.)”

Relevant portion of letter dated 15.04.2016 reads thus :-

“Observation and Opinion

1. Patient admitted with C/o Acute Liver Failure with UTI with Internoexternal Haemorrhoid with jaundice since Feb. 2016.
2. As Policy start date is from 06/02/2016 and this is first year policy.

Therefore claim falls under first 30 days clause. Hence claim non-payable as per Clause 4.2.

3. Moreover disease is pre-existing to policy inception date as patient had progressive jaundice since Feb. 2016 and policy started on 06/2/2016. Therefore claim non-payable as per Clause 4.1 (Pre-existing disease) acute liver failure with UTI with internoexternal haemorrhoid with jaundice since Feb. 2016.”

13.              On a perusal of the Family Floater Policy issued by the appellants/Opposite Parties to the respondent/ complainant, Clause 4 refers to the General Exclusion, which reads as under :-

4.1 All Pre-existing Disease (whether treated/untreated, declared or not declared in the proposal form), which are excluded upto 48 months of the Policy being in force. Pre-existing disease shall be covered only after the Policy has been continuously in force for 48 months.

For the purpose of applying this condition, the date of inception of the first indemnity based health policy taken shall be considered, provided the renewals have been continuous and without any break in period, subject to portability condition.

This exclusion shall also apply to any complication(s) arising from pre existing diseases. Such complications will be considered as part of the Pre existing health condition or Disease.

4.2 Any disease other than those stated in clause 4.3 contracted by the Insured Person during the first 30 days from the inception date of fresh Policy. This shall, however, not apply in case the Insured Person is Hospitalised for injuries suffered in an accident, which occurred after inception of the Policy.”

14.              The main grouse of the appellants/Opposite Parties is that the policy was taken on 06.02.2016 and the deceased spouse of the complainant, who was also a part of the family floater policy contracted disease of liver on 06.03.2016, whereby, it was interpreted by the appellant’s company that she had contracted the said disease within 30 days from the inception date of the policy, which made her ineligible for any insurance claim and accordingly, the insurance company took a view to repudiate the claim.

15.               After going through the records of the case, we find that the repudiation of the claim of the complainant is unjust, arbitrary and deficient for the reasons to be recorded below :-

i)                 The first point to make is that the patient was detected with jaundice initially on 19.02.2016 about which she was not aware of it earlier.

ii)                There was no proof of getting treatment for jaundice prior to this date furnished by the respondent/complainant.

iii)                The patient further developed some complication on 06.03.2016 and she was admitted to the Max Super Speciality Hospital and various investigations were done during the hospitalization of the patient. The patient was not aware of this ailment before taking the policy i.e. 06.02.2016. Therefore, we are of the opinion that the clause relating to pre-existing disease is not applicable in the said case. The complainant had spent Rs.1,49,402/- for the treatment of his wife. On 18.03.2016, the complainant filed claim with the appellants/Opposite Parties and submitted all the desired information documents on 08.04.2016. On 19.04.2016 the deceased wife of the respondent/complainant was again admitted in the Max Super Speciality Hospital and remained admitted upto 21.04.2016, where after she was transferred to PGIMER, Chandigarh and finally died on 22.04.2016. When the respondent/complainant lodged his claim with the Opposite Parties, the Opposite Parties vide its letter dated 01.06.2016 repudiated the claim of the complainant stating reference to Clause 4.1 and 4.2 of the policy, that the claim falls under first 30 days clause as well as that the disease was already a pre-existing one.  On a mere arithmetic counting of the days between 06.02.2016 and 06.03.2016 being a leap year, the exact number of days comes to 30 days and the plea taken by the appellants/Opposite Parties that the disease was a pre-existing one does not also have a solid ground on account of the reasons explained above. Reference is invited to Hon'ble National Consumer Disputes Redressal Commission, New Delhi judgment titled as “Oriental Insurance Co. Ltd. Vs. Ankit Bansal, 1(2010) CPJ 469 (NC), wherein, the Commission has relied upon the same terms and conditions of the family floater policy 4.1 and 4.2 pertaining to the appellant company and held that as under :-

“20.    After hearing the contentions of learned counsel for the petitioner and respondent in person and perusing the records, we are of the view that the disease of Uterus Fibroid was first detected only when the patient was hospitalized on 20.7.2005.  The petitioner has also not submitted any other proof like any other treatment by the patient before 20.7.2005. As various investigations were done during hospitalization of the patient from 20.7.2005 to 22.7.2005, we conclude that the patient was not aware of this ailment before 20.7.2005.  Hence, we are of the opinion that the Clause relating to pre-existing disease is not applicable in the present case.  So far as Exclusion Clause relating to expenses for treatment before 30 days from the commencement of the policy is concerned, we find that expenditure of Rs.14,748/- spent on the first hospitalization of the patient from 20.7.2005 to 22.7.2005 comes well within this Exclusion Clause and the petitioner is not liable to pay this amount.  However, the expenses of Rs.52,248/- incurred on operation and hospitalization of the patient from 5.8.2005 to 11.8.2005 are well beyond 30 days and the petitioner is liable to pay this amount to the respondent.”

16.              We are of the opinion that the order passed by the Forum, being based on the correct appreciation of evidence and law, on the point, does not suffer from any illegality or perversity. However, we are of the view that relief given in the Clause ‘a’ of the impugned order of the Forum be modified so as to grant relief of Rs.3,00,000/- instead of Rs.3,48,231/- since the sum insured under the said policy was only Rs.3,00,000/-, as per Annexure R-1.

17.               For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same stands partly allowed with modification, as mentioned in para No.16 supra, with no order as to costs.

18.               Certified Copies of this order be sent to the parties, free of charge.

16.               The file be consigned to Record Room, after completion.    

Pronounced.

July  27^th, 2018.                                                     Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

[PRESIDENT]

 

Sd/-

 (PADMA PANDEY)

        MEMBER

rb

 

                              

 

State Consumer Disputes Redressal Commission

U.T., Chandigarh.

MA/328/2018 in A/299/2017

 

Oriental Insurance Company Ltd.

Vs

Bal Krishan

 

 

BEFORE:

 

JUSTICE JASBIR SINGH [RETD.], PRESIDENT

PADMA PANDEY, MEMBER

PRESENT:

 

 

Sh. Vikram Tandon, Advocate for the applicant/respondent.

Sh. J.P.Nahar, Advocate for the non-applicants/appellants.

 

Dated:   27/07/2018

ORDER

 

                  

In view of order passed in A/299/2017, this application filed by the applicant/respondent stands infructuous.                 Let it be tagged with the main file.                 Certified copies of this order be sent to the parties, free of charge.

[JUSTICE JASBIR SINGH [RETD.]]

PRESIDENT

[ PADMA PANDEY]

MEMBER

Rb