IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/25/2017.
Date of Filing: Date of Admission: Date of Disposal:
06.03.17 17.04.17 28.02.19
Complainant: Ramen Roy
S/O- Late Lalu Roy,
55/5, Churamani Chowdhury Lane,
PO & PS- Berhampore,
Pin- 742101
-Vs-
Opposite Party: 1.Branch Manager,
New India Insurance Co. Ltd.
Banipur, Ghorshala,
Umarpur,
PO & PS- Raghunathganj,
Pin- 742225
2.Manager,
Heritage Health T.P.A. Pvt. Ltd.
Nicco House, 5th Floor,
2 No Hare Street,
Kolkata- 700001
Agent/Advocate for the Complainant : Sri. Joydeep Misra
Agent/Advocate for the Opposite Party No.1 : Sri. Ajay Kumar Bhattacharyya.
Present: Sri Asish Kumar Senapati………………….......President.
Smt. Aloka Bandyopadhyay……………………..Member.
FINAL ORDER
Smt. Aloka Bandyopadhyay, Member.
This is a complaint under section 12 of the CP Act, 1986.
One Romen Roy (here in after referred to as the Complainant) filed the case against Branch Manager, New India Insurance Company Limited (here in after referred to as the OPs) praying for compensation alleging deficiency in service.
The sum and substance of the complaint case is as follows:-
On 06.05.11 a mediclaim policy was obtained by the Complainant for himself and his family members on yearly renewal basis till 15.05.17 through the corporate agent of OP No.1. On 10.03.16, the Complainant was admitted in Fotis Hospital at Kolkata for decompensate liver disease and was discharged on 16.03.16. The Complainant submitted the claim seeking reimbursement of the amount. But the OP has not settled the claim. Again the Complainant became ill and admitted himself in Apollo Hospital for his liver disease on 21.05.16 and was released on 28.05.16. The Complainant again went to submit the claim but the OP No.1 refused to take the same. Finding no other alternative the Complainant filed the instant case for appropriate relief.
The OP No.1 filed W/V contending inter alia, that the case is not maintainable as the clause 4 of the terms and condition of the policy clearly excludes any insurance claim arising out of or in respect of use of alcohol and as such the case is liable to be dismissed.
The OP No.2 did not appear after due service of notice so the case preceded ex-parte against OP No.2.
Now the question arises whether the complaint case is maintainable or not and the complainant is entitled to get relief as prayed for?
Decision with reason
Admittedly, the Complainant is a policy holder and at the time of his admission at the Fortis Hospital and the Apollo Hospital, his insurance policy was in existence
Ld. Advocate for the Complainant stated that the OP had paid Rs.99,067/- to the Complainant for his treatment at Fortis Hospital from 12.01.16 to 15.01.16. But the OP had not paid the treatment cost of Rs.1,991626/- when he was admitted again on Fortis Hospital at Kolkata from 10.03.16 to 16.03.16 and the OPs was also not ready to pay the treatment cost of Rs.2,20,908/- which the Complainant has spent for his treatment at Apollo Hospital, Kolkata from 21.05.16 to 28.05.16.
Ld. Counsel for the OP stated that the clause 4.8 of the terms and conditions of the policy clearly excludes any insurance claim arising out of or in respect of use of alcohol. It is clear from the discharge summary of the Hospitals where the insured was treated . According to the discharge summary the insured became ill due to Decompensate Liver Disease with portal hypertension with alcohol withdrawal. The Ld. Counsel argued that there is a clear positive co-relation between the diagnosis and the regular alcohol consumption. Hence, as per clause 4.8 of the terms and conditions of the policy the claim of the Complainant is totally excluded from the preview of the policy.
Condition Nos. 4.0 and 4.8 of the Policy are reproduced below:
‘’4.0. The Company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any Insured Person in connection with or in respect of.
4.8. Convalescence general debility, ‘’Run-down’’ condition or rest cure, congenital external disease or defects or anomalies, sterility, venereal disease, intentional self-injury and use of intoxicating drugs/alcohol.’’
A simple reading of Condition 4.0 and 4.8 reveals that any expenditure in connection with or in respect of use of alcohol shall not be admissible under the policy. The terms of the policy are to be constructed in the manner in which they are written. It is important to note the following judgments in this regard:
In General Assurance Society Ltd. Vs. Chandmull Jain, 1966 (SLT Soft) 184=1966 3 SCR, It was held as under.
……….In interpreting documents relating to a contract of insurance, the duty of the Court is to interpret the words in which the contract is expressed by the parties, because it is not for the Court to make a new contract, however reasonable, if the parties have not made it themselves.
In Oriental Insurance Company Ltd. Vs. Sony Cherian, II 1999 CPJ,13 (SC)=VI (1999) SLT 565=II (1999) ACC 196 SC, it has been observed as follows:
The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly constructed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein.
United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal, V (2004) SLT 876=IV (2004) CPJ 15 (SC) = (2004) 8 SCC 644, the Hon’ble Apex Court held as follows:
……….The terms of the policy have to be constructed as it is and we cannot add or subtract something. Howsoever liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended.
It is settled law that terms of the policy shall govern the contract between the parties, they have to abide by the definition given therein and all those expressions appearing in the policy should be interpreted with reference to the terms of policy and not with reference to the definition given on other laws. It is a matter of contract and in terms of the contract the relation of the parties shall abide and it is presumed that when the parties have entered into a contract of insurance with their eyes wide open, they cannot rely on definition given in other enactment.
Therefore, it is settled law that the terms of the contract has to be strictly read and natural meaning be given to it. No outside aid should be sought unless the meaning is ambiguous.
Clearly, nothing is mentioned in Clause 4 relating to exclusion that treatment expenditure of any disease caused by use of alcohol or arising out of the use of alcohol shall not be admissible. Common interpretation could only mean that any expenditure in respect of or in connection with use of alcohol shall not be admissible. The expenditure in respect of or in connection of use alcohol in normal parlance would mean the expenses incurred on actual use of alcohol or in treatment on drug addiction in respect of alcohol. It is not possible to extend the meaning of this clause to cover all cases of diseases, which may have something to do with the use of alcohol, particularly if that disease can be caused due to many other reasons including use of alcohol.
The Hon’ble National Consumer Disputes Redressal Commission held in New India Assurance Company Ltd. Vs. Surender Kr. Nanda, II(2018) CPJ 279 (NC) that nothing is mention in clause 4 relating to exclusion that treatment expenditure of any disease caused by use of alcohol or arising out of use of alcohol shall not be admissible.
We have given a thoughtful consideration to the arguments advanced by both the Counsel for the parties and have examined the materials on record and considering the judgement passed by the Higher Forum we are of the opinion that there is deficiency of services on the part of the O.P-1by not providing the expenditure of treatment of the complainant in different hospitals at kolkatta from10/03 2016to16/03/2016 and and 21/05 /2016 to 28/05/2016.
Based on the above discussion, we find that the Complainant as a consumer is entitled for relief for his claim from the OP No.1. No relief has been claimed against the O.P2 and we also do not find any deficiency on the part of OP2. Thus both the points are disposed off.
Reasons for delay
The Case was filed on 06.03.17 and admitted on 17.04.17 . This Forum tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act,1986. Delay in disposal of the case has also been explained in the day to day orders..
In the result, the Consumer case succeeds.
Fees paid are correct. Hence, it is
ORDERED
that the complaint case No. CC/25/2017 be and the same is hereby allowed on contest against O.P1with cost and dismissed against O.P2 without cost.
The OP No.1 is directed to pay the charges of the Hospital and treatment cost as per the rules for the period 10.03.16 to 16.03.16 when the Complainant was admitted at the Fortis Hospital and from 21.05.16 to 28.05.16 when he treated at the Apollo Hospital,kolkata. O.P1 is further directed to pay a compensation of Rs10,000/-for mental pain and agony and Rs2000/-for litigation cost.
All such order must be complied within two months from the date of this order.
Let plain copy of this order be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand /by post under proper acknowledgment as per rules, for information and necessary action.
The Final Order will also be available in the following Website:
confonet.nic.in
Dictated & corrected by me.
Member.
Member President.
