Punjab

StateCommission

FA/1062/2013

The Oriental Insurance Company Ltd. - Complainant(s)

Versus

Dev Raj Handa - Opp.Party(s)

Swatantar Kapoor

27 Jan 2015

ORDER

2^nd Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

First Appeal No. 1062 of 2013

                                                           

                                    Date of institution: 7.10.2013    

                             Date of Decision:  27.1.2015

 

The Oriental Insurance Company Ltd. through its D.M., Divisional Office, The Mall, Ferozepur City.

…..Appellant/OP Nos. 1 & 2

                                      Versus

Dev Raj Handa, aged 75 years, s/o Parma Nand Handa, R/o 78-D, Bhagat Singh Colony, Ferozepur City.

…..Respondent/Complainant

 

First Appeal against the order dated 19.7.2013 passed by the District Consumer Disputes Redressal Forum, Ferozepur.

 

Quorum:-

 

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

 

Present:-

 

          For the appellant             :         Ms. Swatantar Kapoor, Advocate

          For the respondent :         Sh. Sukhbir Singh, Advocate

 

 

Gurcharan Singh Saran, Presiding Judicial Member

ORDER

The appellant/OP Nos. 1 & 2(hereinafter referred as “OP”) has filed the present appeal against the order dated 19.7.2013 passed by the District Consumer Disputes Redressal Forum, Ferozepur (hereinafter referred as “the District Forum”) in consumer complaint No.36 dated 22.1.2013 vide which the complaint filed by the respondent/complainant(hereinafter referred as ‘the complainant’) was allowed with a direction to pay a sum of Rs. 66,552/- alongwith interest @ 9% p.a. from the date of repudiation till realization and also pay Rs. 5,000/- as compensation and Rs. 2,000/- as litigation expenses.

2.                The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short ‘the Act’) against the OP on the allegations that the complainant purchased the mediclaim policy known as “PNB-Oriental Royal Mediclaim Policy” for himself and for his wife for the period 6.8.2010 to 5.8.2011 for a sum of Rs. 2 lacs after paying a premium of Rs. 3259/- and policy No. 233700/48/2011/420 was issued. The policy was renewed for subsequent period 10.8.2011 to 9.8.2012 and policy No. 233200/48/2012/1515 was issued. Before that the complainant had been availing the mediclaim policy from Oriental Ins. Co. regularly for about 14 years upto 2009 and subsequently in August, 2010, he opted this policy. In the month of March, 2012 the wife of the complainant had UTI problem with bed sores and after providing preliminary treatment at home, she was admitted in Anil Baghi Memorial Hospital, Ferozepur on 16.4.2012 and was discharged on 7.5.2012. The total expenses for the medicines were Rs. 66,552/- and claim was submitted with the OP and Op No. 3 had written a letter dated 7.7.2012 to provide the following documents:-

i)        letter from treating doctor stating the duration of ailment CVA and the reason for CVA,

ii)       to provide the previous treatment details of ailment CVA when first treated or hospitalized for (consultation paper, discharge summary, investigation reports),

iii)      to provide the reason for delay in submission of claim documents,

(iv)    to provide the indoor case papers for the period of hospitalization, admission notes, daily progress notes, vital charting, treatment chart.”

3.                It was also mentioned that in the year 2000, wife of the complainant had suffered a mild paralytic attack on her right side. Claim was submitted to the Op and it was paid. The CVA ailment had no concern with the present ailment of bed sores. Therefore, the claim of the complainant has been wrongly repudiated by the Ops, which amounts to the Ops as under:-

i)        to pay Rs. 66,552/- alongwith interest @ 18% per annum from the date of submitting the bills till its payment;

ii)       Rs. 1,00,000/- as compensation for harassment, inconvenience, frustration and mental agony and Rs. 10,000/- as litigation expenses. 

4.                The complaint was contested by the party, who filed written reply taking preliminary objections that the complaint was false, frivolous and vexatious to the knowledge of the complainant, therefore, it be dismissed; the complainant had not come to the Forum with clean hands; complicated questions of law and facts were involved, which cannot be adjudicated in the summary proceedings, therefore, the matter be referred to the Civil Court. The claim of the complainant was fully processed as per the terms and conditions of the insurance policy viz-a-viz exclusion clause 4.2 as the complainant submitted the claim during the first year policy period and in view of the pre-existing ailment of hyper tension and CVA, which the patient had prior to the inception of the policy, which falls within the scope of pre-existing disease. The patient was under treatment for CVA and complication of Paralysis of the extremities and bed sores are common, therefore, the claim was rightly repudiated vide letter dated 8.12.2012. Same pleas were taken on merits. It was submitted that the claim is without merit and it be dismissed.

5.                The parties were allowed by the learned District Forum to lead their evidence.

6.                In support of his allegations, the complainant had tendered into evidence his affidavit Ex. C-1, policy schedule Exs. C-2 to C-5, salient features of Policy Ex. C-6, notice from Ops Ex. C-7, postal receipts Ex. C-8, claimant details Ex. C-9, letter dt. 11.6.12 Ex. C-10, discharge card Ex. C-11, letter dt. 19.4.12 Ex. C-12, medi assist letters Exs. C-13 & 14, 16, letter dt. 29.8.12 Ex. C-15, customer services department Ex. C-17, postal receipts Exs. C-18 to 20, letters Exs. C-21 & 22. On the other hand, the opposite party had tendered into evidence affidavit of S.K. Sharma Ex. R-1, exclusion clauses Ex. R-2, discharge card Ex. R-3.

7.                After going through the allegations in the complaint, written reply filed by the OP, evidence and documents brought on the record, the learned District Forum allowed the complaint after observing that there is nothing on the record that terms and conditions of the policy were supplied to the complainant. Moreover, they had been taking the mediclaim policy of the Ops 14 years prior to 2009 and then August, 2010 onwards, therefore, it was not the first policy. Provision of Section 28(b) of the Contract Act, 1872 were referred that there cannot be any clause in the policy to restrain from enforcing the right and after relying upon the judgment of the Hon’ble Supreme Court in “A.V.M. Sales Corporation Versus M/s Anuradha Chemicals Private Limited”, 2012 (1) Civil Court Cases 643 (S.C.), it was observed that the clause 4.2 of the terms and conditions cannot be attracted in the present case.

8.                In the grounds of appeal, it was submitted that the order so passed by the learned District Forum is beyond the pleadings because it was never claimed by the complainant that exclusion clause or other conditions are bad in law whereas the policy clearly states that the insurance under this policy is subject to conditions, clauses, warranties, endorsements etc. in the proposal form. In the column pre-existing ailments, it was referred Nil whereas in para No. 6 of the complaint, he himself has stated that he had mild paralytic stroke in the year 2000 submitted the claim, which was allowed by the Ops, therefore, while taking this policy in the proposal form he had not referred to that disease, therefore, he had concealed the material fact of pre-existing disease otherwise her record shows that she was a chronic case of HTN with CAD CVA RT UTI and his claim falls within the exclusion clause 4.2. The learned District Forum did not appreciate the documents Exs. R-1 to R-3 and wrongly interpreted it as a continuous policy because the policy under which the claim has been referred is a distinct policy and is not a continued policy. Accordingly, it was prayed to set-aside the impugned order. We have also gone through the written arguments submitted by the counsel for the parties.

9.                We does not find force with regard to the observations made by the learned District Forum that exclusion clause 4.2 in the terms and conditions of the policy is against Section 28(b) of the Contract Act, 1872 in which the complainant has been restrained to execute his right against the Op on the ground that here as a Consumer Fora, we are to interpret the contract between the parties and its violation. We are not vested with the powers to interpret whether any clause incorporated the terms of the contract are against the provisions of any Act.

10.              The grouse of the OP is that when the complainant took the policy in the month of August, 2010, he was suffering from pre-existing disease, which she did not disclose at the time of taking this policy. He has referred to the policy Ex. C-3 and about the pre-existing disease, it has been referred as Nil. As per the salient features of the policy Ex. C-6, ‘no medical examination was required for entry at any stage upto 80 years therefore, the complainant was not subject to any medical examination. Ex. R-2 is the relevant clauses of the policy. In the written statement a reference has been given to the Clause 4.2, which reads as under:-

“4.2   Any disease other than those stated in clause 4.3, contracted by the Insured person during the first 30 days from the commencement date of the policy except treatment for accidental external injuries.”

11.              In view of the provision under Clause 4.2, here Clause 4.3 will also be relevant, which reads as under:-

“4.3   During the period of insurance cover, the expenses on treatment of following ailment/ diseases/ surgeries periods are not payable if contracted and/or manifested during the currency of the policy.

i	Benign ENT disorders and surgeries i.e. Tonsillectomy, Adenoidectomy, Mastoidectomy, Tympanoplasty etc.	1 year
ii	Polycystic ovarian diseases	1 year
iii	Surgery of hernia	2 years
iv	Surgery of hydrocele	2 years
v	Non infective Arthritis	2 years
vi	Undescendent Testes	2 years
vii	Cataract	2 years
viii	Surgery of benign prostatic hypertrophy	2 years
ix	Hysterectomy for menorrhagia or fibromyoma or myomectomy or prolapsed of uterus	2 years
X	Fissure /Fistula in anus	2 years
xi	Piles	2 years
xii	Sinusitis and related disorders	2 years
xiii	Surgery of gallbladder and bile duct excluding malignancy	2 years
xiv	Surgery of genitor urinary system excluding malignancy	2 years
xv	Pilonidal Sinus	2 years
xvi	Gout and Rheumatism	2 years
xvii	Hypertension	2 years
xviii	Diabetes	2 years
xix	Calculus diseases	2 years
xx	Surgery for prolapsed inter vertebral disk unless arising from accident	2 years
xxi	Surgery for varicost veins and varicose ulcers	2 years
xxii	Congenital internal diseases	2 years
xxiii	Joint Replacement due to Degenerative condition	4 years
xxiv	Age related osteoarthritis and Osteoporosis	4 years
	If the continuity of the renewal is not maintained with Oriental Insurance Company then subsequent cover will be treated as fresh policy and clauses 4.1, 4.2, 4.3 will apply unless agreed by the Company and suitable endorsement passed on the policy.

 

12.              Now we have to see what treatment was taken by the complainant and of what disease, she was suffering. The complainant had submitted the documents with the OP and discharge card has been placed on the record as Ex. R-3 which shows date of admission 16.4.2012 and date if discharge 7.5.2012 under the columns diagnosis, it has been mentioned as Ex. R-3 and operative procedure was as under:-

“Debridement of wound done under L/A”

13.              Basically the operation was for ‘debridement of wound to cure the bed sores’. Whether the treatment of bed sores is barred under Clause 4.3.? We have not been able to see that disease covered under 4.3, therefore, the counsel for the Op has not been able to convince before us how the clause 4.2 and 4.3 of the policy Ex. R-2 will be applicable in the case of the complainant.

14.              The counsel for the OP has also contended that the complainant has mis-stated the facts at the time of taking the policy because he did not disclose the treatment taken by LA in the year 2000 and in the column of pre-existing disease, it was referred as Nil. Firstly that treatment was taken about 12 years back from the date of this treatment. The complainant has referred that LA had mild paralytic attack. He had submitted the bill and it was cleared by the OP in the year 2000. What was the paralytic attack that medical record has not been placed on the record. The complainant in his complaint has stated that CVA ailment of the LA had no concern with the present ailment of bed sores. The counsel for the Op has referred to the letter dated 25.8.2012 written by Medi Assist (Ex. C-14) vide which the previous treatment record details were called for from the complainant. As is clear from para No. 6 of the complaint that in case he had taken the treatment then he had submitted all the documents with the Op, therefore, in case all the documents were in the record of the Op then they should have collected the documents from their office and there is no purpose to call for the documents from the complainant and it was replied by the complainant vide letter dated 29.8.2012 (Ex. C-15), therefore, the OP has not been able to establish the nexus between the present treatment taken by the complainant and with the previous treatment taken by the LA. The counsel for the OP has referred to the judgment 2009(9) JT 82 “Satwant Kaur Sandhu versus New India Assurance Company Ltd.” in which the claim of the complainant was repudiated on the ground of suppression of material fact and the LA had died after 7 months. It was held by the Hon’ble Apex Court that repudiation was justified. It was so followed by the Hon’ble National Commission in the revision petition No. 4822 of 2012 “Life Insurance Corporation of India Versus Archna Dayanand Vakade”, decided on 7.2.2014 and Revision Petition No. 4240 of 2011 “Life Insurance Corporation of India versus Help Line Grahak Mandal”, decided on 11.3.2014. In that case, the LA had died after 13 day. However, the facts of the present case are quite different. In this case, the first treatment was taken in the year 2000 and the second treatment was taken in the year 2012. The first treatment was taken for mild paralytic attack whereas the second treatment was for chronic bed sores, therefore, with the gap of 12 years this case is quite distinguishable from the judgments referred by the counsel for the Ops. There is judgment of the Hon’ble Maharashtra State Consumer Disputes Redressal Commission, Mumbai I (2011) CPJ 298 “Life Insurance Corporation of India Vs. Pushpa Bai Devidas Bansode & Ors.” In that case the claim was repudiated on the ground that suppression of material facts. Forum allowed the claim. In the appeal, a plea was raised that disease did not disclose the paralytic attack. It was held that no evidence was adduced to show that the deceased was suffering from paralysis and appellant also failed to prove that deceased was benefited from non-disclosure of earlier policies. There was no nexus between cause of death and alleged the suppression of material fact and accordingly, the order of the Forum was upheld.

15.              Here also the claim of the appellant that the LA did not disclose about the previous disease for which he has taken the treatment in the year 2000. However, the OP have failed to establish the nexus between the treatment taken in the year 2012 for bed sores and the treatment taken in the year 2000 for paralytic attack, therefore, there is no evidence that the complainant was benefitted in any manner for non-disclosure of this fact. Therefore, we are of the opinion that the order so passed by the learned District Forum is justified and we affirm the same.

16.              In view of the above discussion, we do not find any merit in the appeal and the same is dismissed with no order as to costs.

17.              The appellant had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal and Rs. 15,000/- in compliance with the order dated 21.10.2013. These amounts with interest accrued thereon, if any, be remitted by the registry to the respondent by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court.

18.              Remaining amount shall be paid by the appellant to the respondent within 30 days from the receipt of the copy of the order.

19.              The arguments in this appeal were heard on 21.1.2015 and the order was reserved. Now the order be communicated to the parties as per rules.

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

 

                                                                                    (Gurcharan Singh Saran)

                                                                                  Presiding Judicial Member

 

January 27, 2015.                                                                                                                                                   (Jasbir Singh Gill)

as                                                                                                                                                                                       Member