Punjab

StateCommission

FA/786/2013

National Insurance Co. Ltd. - Complainant(s)

Versus

Gursharan Dass Aggarwal - Opp.Party(s)

R.C. Gupta

06 Jan 2015

ORDER

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

 

First Appeal No.786 of 2013                                                          

                                                                                                                    Date of Institution  : 22.07.2013

                                                                                                                     Date of decision :    06.01.2015

 

1.      National Insurance Company Ltd., Divisional Office No.3,        Kochhar           Market, Model Gram, Ludhiana, through its SDM.

2.      National Insurance Company Ltd., Regd. Office-3, Middleton Street, Kolkata, through its Chairman/Managing Director,

          now both through authorized signatory of its Chandigarh         Regional           Office-I, SCO No.332-334, Sector 34-A,         Chandigarh.

                                                ...Appellants/Opposite Parties

 

Versus

 

 

1.      Gursharan Dass Aggarwal S/o Amir Chand r/o H.No. 3123,     Gurdev Nagar, Near Old Malhar Theater, Ludhiana.

 

2.      Kanta Aggarwal w/o Gursharan Dass Aggarwal r/o H.No. 3123,       Gurdev Nagar, Near Old Malhar Theatre, Ludhiana.

 

….…Respondents/Complainants

 

       First Appeal against the order dated 30.05.2013 passed by District   Consumer          Disputes Redressal        Forum,      Ludhiana.

Quorum:-

 

                   Hon’ble Mr. Justice Gurdev Singh, President

                                    Shri Vinod Kumar Gupta, Member     

                             Mrs. Surinder Pal Kaur, Member

Present:-

 

          For the appellants       :         Sh. R.C.Gupta, Advocate

          For the respondents    :         None

 

VINOD KUMAR GUPTA, MEMBER:-

 

                    This appeal has been preferred by the appellants/opposite parties against the order dated 30.05.2013 passed by District Consumer Disputes Redressal Forum, Ludhiana (in short “District Forum”), vide which the complaint filed by the respondents/complainants was allowed and the OPs were directed to settle and pay the claim, as per the policy terms and conditions, alongwith Rs. 8,000/-, as compensation and Rs.2,000/-, as litigation expenses, within 30 days of the receipt of the copy of the order.

2.                Brief facts of the case are that the respondents/complainants filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short "the Act") against the Opposite Parties (in short "OPs") on the averment that Sh.Gursharan Dass Aggarwal, Complainant No.1, obtained ‘Hospitalization Benefit Policy’ for himself, his wife, Kanta Aggarwal, complainant No.2, and his son, Ishant Aggarwal, vide policy no.404005/48/07/8500000639 for the period 28.03.2008 to 27.03.2009 after paying the premium amount of Rs.20,509/-. The same was regularly renewed up to 27.03.2013. The details of the policies are given as under:-

Sr. No.	Policy no. & period of policy	Name of the person in whose favour policy was purchased	Amount of Premium paid by complainant.
1.	404005/48/07/8500000639 28.03.2008 to 27.3.2009	Gursharan Aggarwal, Kanta Aggarwal, and Ishant Aggarwal	Rs.20,509/-
2.	404005/48/08/8500000807 28.03.2009 to 27.3.2010	Gursharan Aggarwal Kanta Aggarwal and Ishant Aggarwal	Rs.21,341/-
3.	404005/48/09/8500000966 28.03.2010 to 27.3.2011	Gursharan Aggarwal Kanta Aggarwal and Ishant Aggarwal	Rs.24,116/-
4.	404005/48/10/8500001073 28.03.2011 to 27.3.2012	Gursharan Aggarwal and  Kanta Aggarwal	Rs.21,536/-
5.	404005/48/11/8500002173 28.03.2012 to 27.3.2013	Gursharan Aggarwal and  Kanta Aggarwal	Rs.27,575/-

 

It was pleaded that in the month of April, 2012 Smt. Kanta Aggarwal, complainant No.2 had some knee problem. She got herself admitted in Hunjan Bone and Joint Hospital, 56-South Model Gram, Ludhiana and was advised replacement of knees. The first operation was performed on 24.04.2012 and the second operation was performed on 28.04.2012 and both her knees were replaced. The complainants spent Rs.4 lacs for aforesaid treatment. They  submitted the claim with the OPs, vide claim No. 404000/48/12/85/90000073. However, vide letter No. 404000/AKR/MEDICLAIM/12/1481 dated 31.08.2012, the OPs informed the complainants that the claim was treated as ‘no claim’ as it was found that GR-IV Osteo-artheritis was detected during the currency of fourth year of policy and informed that their file was closed, on the ground that the claim was not covered under the terms and conditions of Mediclaim Insurance Policy. Vide another letter No. 1543 dated 7.9.2012, the complainants were again intimated that their claim is not covered under the terms of policy. It was pleaded that as per the terms and conditions of the policy, even if there was pre-existing ailment at the time of proposal, the same was to be covered  after four continuous claim free policy years. In their case the first four policies were claim free and the claim was made during the currency of fifth policy. This action of OPs in rejecting the claim is arbitrary and unfair; which amounts to deficiency in service on their part. They prayed for the issuance of the following directions to OPs:-

          (i) to pay claim amount of Rs.4 lacs;

          (ii) Rs.50,000/-, as compensation;

          (iii) Rs.15,000/-, as counsel fee; and

          (iv) Rs.3,000/-, as misc.expenses.

3.                The complaint was contested by the OPs by filing the written reply before the District Forum. Preliminary objections were taken that the complaint was barred under Section 26 of the Act; the District Forum had no jurisdiction to try and decide the complaint; the complaint was not  maintainable; the complainants were estopped by their act and conduct from filing the complaint; the complainants had not come to the Forum with clean hands; and had concealed the material facts. On merits, OPs admitted that complainant No.1 obtained the Medical hospitalization benefit policy, after paying the premium. It was pleaded that after the receipt of the claim documents in respect of the medical treatment of Mrs. Kanta Aggarwal, complainant No. 2, the same was referred to Dr. B.C.Singla for investigation and professional opinion. After going through the documents placed in the claim file and after making investigation, Dr.B.C.Singla had given his professional opinion dated 14.7.2012. It was opined that since the patient came to know her disease in February, 2012, after being examined by Dr. Mahajan and was diagnosed having been suffering from grade-IV  Osteo Arthritis and was advised for operation, therefore, the claim falls under exclusion clause 4.3 of the policy. Vide his prescription slip dated 27.2.2012, Dr. Sanjeev Mahajan, Joint Replacement and Arthroscopic Surgeon, Associate Professor, Department of Orthopedics, Dayanand Medical College & Hospital, Ludhiana advised complainant No. 2 to get herself admitted on 9.3.2012 for operation of knee replacement, but she had fourth year policy running. However, Complainant No.2 waited for obtaining the policy in the 5th year and thereafter got herself operated for knee replacement on 23.4.2012. It was further pleaded that Dr. B.C.Singla further opined that as the patient had lingered the time to complete the 4th year policy, so the claim was not payable. It was pleaded that it was a pre-existing disease and not payable under the policy terms and conditions. The claim was rightly repudiated by the OPs. Other allegations were denied and dismissal of the complaint was prayed for.

4.                The parties produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, allowed the complaint, vide aforesaid order.

5.                Feeling aggrieved by the same, the OPs preferred the appeal on the grounds that the learned District Forum gravely erred in not appreciating the fact that as per the opinion of the expert doctor,  complainant No.2 knew her disease in February, 2012 when examined by Dr. Mahajan, who diagnosed her having suffered from grade IV Osteoarthritis and advised operation. Vide prescription slip dated 27.2.2012, Dr. Sanjeev Mahajan had advised complainant No.2 to get herself admitted on 9.3.2012 for knee replacement operation. Learned District Forum did not appreciate the fact that complainant No.2 deliberately ignored the advice of the doctor since the policy of the insurance was running in its fourth year and maliciously waited for the renewal of the policy for 5th year and then preferred to get herself operated for knee replacement on 23.4.2012. The opinion of Dr. B.C.Singla clearly depicted that the patient deliberately lingered on the time to gain benefit of the insurance in its fifth year and the District Forum further erred in not appreciating the fact that the complainants did not maintain good faith as was required under the spirit of the contract of insurance and rather acted in a manner amounting to bad intentions to grab money through undue means. The District Forum further erred in ignoring the fact that as per the material placed on record, knee replacement was not caused due to sudden defect but certainly occurred only on account of  long standing problem relating to age etc.; which amounts to pre existing disease. Once it was established on record that the pre existing disease was detected before the completion of four continuous policies, the respondents/complainants were, in fact, not entitled to any benefit of that clause. It was prayed that the appeal may be accepted and the order of the District Forum be set aside.

6.                We have heard the learned counsel for the appellants and have carefully gone through the records of the case.

7.                Perusal of the record shows that complainant No.1 was regularly obtaining ‘Hospitalization Benefit Policy’ from the OPs, since the year 2008, which was continuously renewed upto 2013. Complainant No.2 was duly insured, under the policy, since its beginning in the year 2008 and covered under the policies, Ex.C1 to Ex.C5, for the period 28.03.08 to 27.03.13 after paying the premiums. As per prescription slip of Dr. Sanjeev Mahajan dated 27.2.2012, Ex.R-14, he examined Mrs. Kanta Aggarwal and advised X-ray and to get herself admitted in the hospital on 9.3.2012. The report of Dr. Jhaver's X-Ray Clinic dated 27.2.2012 is Ex.R-13. The discharge card Ex.C-9 shows that two operations were duly performed at Hunjan Bone and Joint Hospital on 24.4.2012 and 28.4.2012, respectively and the knees of complainant No.2 were replaced. The complainants lodged the claim with the OPs for the reimbursement of the expenses incurred for the treatment of complainant No.2 (Mrs. Kanta Aggarwal). The claim was repudiated by the OPs, vide letter dated 31.8.2012 (Ex.C-7) as "no claim" on the ground that during investigation, it revealed that complainant No.2 was diagnosed for GR-IV Osteo-artheritis during the currency of fourth year of policy and it was a pre existing disease and expenses for the treatment were not payable under the terms and conditions of the policy as per the professional opinion of Dr. Singla dated 17.7.2012. The claim falls in exclusion clause 4.3 of the policy and OPs informed the complainant, vide letter dated 7.9.2012 Ex.C-8. The relevant portion of the same is reproduced as under :

          "We are closing your claim file, on account of the following      reason :

          Cover caused due to Policy terms and conditions."

8.                We have perused the prospectus of the policy Ex.C-6. Relevant clause 4.3 reads as under :-

"4.3 During the first one year of the operation of the policy the expenses  on treatment of benign ENT disorders & Surgeries like Tonsilectomy/Adenoidectomy/Mastoidectomy/Typanoplast.

      Treatment of diseases such as cataract, benign prostatic hyperthropathy, hysterectomy, hernia, hydrocele, congenital, internal diseases, fissures/fistula in anus, piles, sinusitis and related disorders, polycystic ovarian diseases, non-infective arthritis, Undiscended testis, surgery of gall bladder & bills duct excluding malignancy, surgery of genitor-urinary system excluding malignancy, pilonidal sinus, gout and rheumatism, hypertension, diabetes, calculus diseases, surgery for prolapsed intervertebral disc unless arising from accident, surgery of varicose veins are not payable for first two years of operation of the policy.

      Treatment for joint replacement due to degenerative conditions, age related osteoarthritis and osteoporosis are not payable for first four years of operation of the policy.

      If these diseases are pre-existing at the time of proposal, will be covered only after four continuous claim free policy years." 

9.                The OPs failed to prove on record that the ailment for which complainant No.2 underwent treatment was previously existing at the time of taking the insurance policy for the first time i.e. in the year 2008. From  the medical record of complainant No.2, it is clearly proved that the problem was diagnosed only in the 4th year of the policy and was not pre existing disease at the time of taking the policy for the first time in the year 2008. It is well proved on record that complainant No.2 underwent surgery for GR-IV Osteo-artheritis only during the currency of the 5th year of policy i.e. for the period 28.3.2012 to 27.3.2013. Complainant No.2 was 56 years of age when the first policy for the year 28.3.2008 to 27.3.2009 was issued in her favour by the OPs and again the OPs failed to prove on record that they ever got the medical Check-up of the proposer done before issuing the policy, which was mandatory as per clause 7 of the policy terms and conditions. The relevant portion reads as under :-

      “PREACCEPTANCE MEDICAL CHECK UP:-

      No Medical Check up is required below 50 years of       age. For persons in the age of 50 years and above Pre acceptance Medical Check Up is mandatory. However, if the insured was covered under any Health Insurance        Policy of National Insurance Company uninterruptedly      for preceding three years no Pre-acceptance Medical     Check up is required. Other persons have to undergo Pre acceptance medical check up at their own cost for Blood/Urine Sugar, Blood Pressure, Echo-cardiography and eye check up including retinoscopy.         Pre acceptance Medical Check Up can be done only in     Network Diagnostic Centres of the Company."

10.              The ground for repudiation taken by the OPs is that the insured was diagnosed of the disease on 27.2.2012 during the pendency of the 4th year policy. OPs renewed the 4th year policy by issuing the 5th year cover note from 28.3.2012 to 27.3.2013 without obtaining any proposal form from the complainants. The OPs simply renewed insurance policy on the basis of the continuous previous insurance policy. Under these circumstances, when proposal form was not got filled from the insured, then how the insurance company can refuse the payment of the claim lodged by the claimant during the 5th insurance policy cover? As per exclusion clause 4.3, no claim can be paid when any treatment was taken before the expiry of the 4th year policy. In the subsequent year even pre-existing disease is also covered. The claim was lodged by the insured in the 5th year of policy. As such the exclusion clause is not applicable. The OPs have rejected the claim on the opinion of Dr. B.C.Singla. It is not the case of interpretation of any medical term for which expert opinion is required. It is the interpretation of the policy clauses. As referred above, this claim is maintainable in the 5th policy year. It is payable. The opinion of Dr. B.C.Singla is of no consequence.  

11.              From the above facts, it is clear that the claim of the complainants was genuine and the claim repudiated by the OPs is not justified.

12.              In view of the above discussions, we find that there is no merit in the appeal and the same is accordingly dismissed. The impugned order passed by the learned District Forum is just and proper and does not call for any interference. Order of the learned District Forum is upheld.

13.              The appellants have deposited Rs.25,000/- at the time of filing the appeal before this Commission.  This amount alongwith interest accrued thereon, if any, be remitted to the respondents/complainants  by way of crossed cheque/bank draft  after the expiry of 45 days.

14.              The arguments in this appeal were heard on 19.12.2014 and the order was reserved. Now the order be communicated to the parties. No order as to costs.

 

15.              The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.

                                                                               

(JUSTICE GURDEV SINGH)

PRESIDENT

 

 

(VINOD KUMAR GUPTA)

MEMBER

 

 

(SURINDER PAL KAUR)

MEMBER

January  06, 2015

RK 2