Punjab

Amritsar

CC/16/165

Krishan Lal Sethi - Complainant(s)

Versus

H.D.F.C Ergo Gen. Ins. Co. - Opp.Party(s)

03 Oct 2016

ORDER

Order dictated by:

Sh.S.S.Panesar,President.

1. Sh. Krishan Lal Sethi complainant has filed the present complaint under section 12 & 13 of the Consumer Protection Act on the allegations that  on the telephonic request of the company , the complainant got insured first for Rs. 2 lacs in the year 2010 (7.4.2010) and then  again on receiving  another  call from the company he got enhanced this sum assured to Rs. 5 lacs in the year 2014 ( 7.4.2014). On the final approval and acceptance of his insurance proposal in the year 2014 for enhanced sum of Rs. 5 lacs, policy bearing No. 50202622 was awarded to the complainant.  The complainant had to undergo bypass surgery (CABG) following a major arterial block  at Fortis Hospital in the month December 2014. The claim for cashless  to the tune of Rs. 62,396/- & Rs. 3,61,822/- and post hospitalization claim of Rs. 53,887/- was reimbursed to the complainant. In the month of November 2015 after being recovered from Cardiac problem,  the complainant had to go for Kidney Transplant at Kidney Hospital & Lifeline Medical Institutions, Jalandhar,  for which treatment, the claim of Rs. 1,39,234/- was settled. Subsequently complainant submitted claim of Rs. 2,82,488/- which was fully supported by all relevant bills & vouchers. But the opposite party has settled  the claim only  to the extent of Rs. 48,243/- and the remaining amount to the tune of Rs. 2,34,245/- has been wrongly deducted by the opposite party without any valid reason. The complainant has sought  for following reliefs vide instant complaint :-

1.  Opposite party be directed to pay the balance amount of Rs. 2,34,245/- which has been wrongly deducted.
2. Compensation to the tune of Rs. 10 lacs may also be awarded to the complainant alongwith adequate litigation expenses.

Hence, this complaint.

2.       Upon notice, opposite party appeared and contested the complaint by filing written statement taking certain preliminary objections therein inter alia that  the alleged loss do not cover under the policy, therefore, the present complaint is not maintainable.  In this case, earlier the complainant had purchased the policy for Rs. 2 lacs for the year 2010-11, 2011-12, 2012-134  and 2014-15. However , the sum insured was enhanced  for the period from 7.4.2015 to 6.4.2016 from Rs. 2 lacs to Rs. 5 lacs. After enhancement , the claim was lodged  seeking benefits of enhanced sum insured. However, the waiting period  for pre-existing ailments prescribed under the policy is applicable for the enhanced sum insured amount and thus immediate benefit cannot be taken of the same. However, due to calculation mistake a higher amount has been paid, whereas the restriction was for only Rs. 2,00,000/-. Therefore, the opposite party is not liable to pay the amount claimed in the present complaint and the same is liable to be dismissed on this short ground ; that complainant  is estopped by his own act and conduct from filing the present complaint ; that complainant has filed the present complaint without any cause of action against the opposite party, therefore , the same is liable to be dismissed ; that complainant has no locus standi to file the present complaint . On merits it is submitted that the complainant insured earlier for Rs. 2 lacs and then enhanced the sum insured to Rs. 5 lacs for the period from 7.4.2015 to 6.4.2016. It was submitted that as per terms and conditions of the policy amount of Rs. 48,243/- was paid to the complainant  for the sum insured  which is more than the entitlement as the total amount paid under the policy in question was more than the original sum insured i.e. Rs. 2 lacs. Remaining claim is not payable as there is a waiting period for the enhanced sum insured as per terms and conditions of the policy. Remaining facts mentioned in the complaint have specifically been denied and a prayer for dismissal of complaint was prayed.

3.       In his bid to prove the case complainant tendered into evidence his duly sworn affidavit Ex.CW1/A alongwith documents Ex.C-1 to Ex.C-7 and closed his evidence .

4.       To rebut the aforesaid evidence Sh.R.P.Singh,Adv.counsel for the opposite party tendered into evidence affidavit of Sh.Pankaj Kumar, Manager (Legal) Ex.OP1, copy of policy period Ex.OP2, copy of policy Ex.OP3, copy of terms and conditions  Ex.OP4, acknowledgement policy receiving g Ex.OP5 and closed the evidence on behalf of the opposite party.

5.       We have heard the ld.counsel for the parties and have carefully gone through the record on the file.

6.       On the basis of the evidence, complainant in person has vehemently contended that he got himself insured for Rs. 2 lacs in the year 2010 (7.4.2010) on the telephonic request from the company and then enhanced the sum insured to Rs. 5 lacs after he got another call from the  Insurance company in the year 2014. Copy of the Insurance policy accounts for  Ex.C-1. Subsequent to the final approval and acceptance of the insurance proposal in the year 2014 for enhanced sum of Rs. 5 lacs,  the company accepted  the offer and policy was awarded to the complainant bearing No. 50202622. The complainant had to undergo bypass surgery following a major arterial block at the local Fortis Hospital in the same period in the month December 2014. The claim for which  as cashless was settled at Fortis Hospital to the tune of Rs. 62,396/- and Rs. 3,61,822/-  while post hospitalization claim of Rs. 53,887/- was also reimbursed  which was actually processed. In the month of November 2015, after being recovered from the Cardiac problem, the complainant had to undergo  for Kidney transplant at Kidney Hospital & Lifeline Medical Institutions Jalandhar , where the claim of Rs. 1,39,234/- cashless was settled. Subsequently the complainant submitted a claim of Rs. 2,82,488/- which was fully supported by all relevant bills and vouchers of the hospital. But due to the utter dismay and agony the insurer HDFC Ergo General Insurance Company Limited settled the claim of Rs. 48,243/-  for no absolute valid reason. As a result thereof complainant had to suffer heavily both mentally and financially. Claim of the complainant has been sliced  from Rs. 2,82,488/- to Rs. 48,243/- and an amount of Rs. 2,34,245/-  was deducted without any reasonable cause and it is contended that opposite party may be directed to pay a sum of Rs. 2,34,245/- which has been wrongly deducted as medical claim to the illness suffered by the complainant. The complainant is also entitled to compensation on account of mental pain, agony besides litigation expenses is to be assessed by this Forum.

7.       But, however, from the appreciation of the facts and circumstances of the case, it becomes evident that earlier the complainant was insured for an amount of Rs. 2 lacs as Health Suraksha Policy in the year 2010. However, in the year 2014, the insured amount was enhanced to Rs. 5 lacs. Copy of the Insurance policy accounts for Ex.OP3. The complainant was treated for Kidney  Transplant at Kidney Hospital & Lifeline Medical Institutions, Jalandhar where he incurred an expenditure of Rs. 2,82,488/- on his treatment and submitted requisite bills and other documents for reimbursement of the medical expenses against the insurance amount. The opposite party allowed a sum of Rs. 48,243/- only while an amount of Rs. 2,34,245/- was deducted. But, however, in our opinion deduction has rightly been made by the opposite party as per section 9 of the terms and conditions of the Insurance policy. Relevant section 9 Exclusions of the terms and conditions is reproduced hereinbelow:-

“SECTION 9 EXCLUSIONS

1. Waiting Periods

All claims payable will be subject to the waiting periods specified below:-

1. General waiting period of 30 days for all claims payable under the policy except claims arising due to an Accident.
2. A waiting period of 24 months shall apply to the treatment, whether medical or surgical of the disease/conditions mentioned below. Additionally the said 24 months waiting period shall be applicable to all surgical procedures mentioned under surgeries in the following table, irrespective of the disease/condition for which the surgery is done, except claims payable due to the occurrence of cancer.

1. Illnesses : Internal Congenital diseases, non infective arthritis, calculus diseases of gall bladder including cholecystitis and urogenital system e.g. kidney stone, Urinary bladder stone, Pancreatitis, Ulcer and erosion of stomach and duodenum, Gastro Esophageal Reflux Disorder (GERD), all forms of Cirrhosis ( Pls. note : all forms of cirrhosis due to alcohol will be  excluded), Perineal Abscesses, Perianal Abscesses, cataract , fissure/fistula in anus, hemorrhoids, pilonidal sinus, gout and rheumatism, internal tumors, cysts, nodules, polyps including breast lumps (each of any kind unless malignant); osteoarthritis and osteoporosis, polycystic ovarian diseases, Fibroids (fibromyoma) sinusitis, Rhinitis, Tonsillitis and skin tumorsunless malignant. Benign Hyperplasia of Prostate.
2. Treatments : adenoidectomy, mastoidectomy, tonsillectomy and tympanoplasty, dilatation and curettage (D&C) joint replacement, myomectomy for fibroids, surgery of genito urinary system unless necessitated by malignancy, surgery on prostate, cholecystectomy, surgery of hernia, surgery of hydrocele/Rectocele, surgery for prolapsed inter vertebral disk, joint replacement surgeries , surgery of varicose veins and varicose ulcers, surgery for Nasal Septum deviation, nasal concha resection.

(iii) 48 months waiting period for all pre-existing conditions declared and/or accepted at the time of application.

8.       From the perusal of the abovesaid condition, it becomes evident that two years waiting period was to expire in Nov. 2017, whereas under the previous insurance cover, the complainant was entitled to reimbursement to the tune  of Rs. 2 lacs only. However, it is the admitted fact that  the complainant has availed medical reimbursement to the tune of Rs. 2,44,225/- in the year 2016 which has been availed by the complainant due to  some clerical error on the part  of the opposite party. The complainant is bound by the terms and conditions of the Insurance policy in dispute and the terms and conditions of the Insurance policy cannot be interpreted in the manner either to subtract or add anything therefrom . Reliance in this connection can be had in M/s. Suraj Mal Ram Niwas Oil Mills (P) Ltd-Appellant Vs. United India Insurance Co.Ltd. & another –Respondents  2010(4) RCR (Civil), wherein it has been laid down that in a contract of insurance , rights and obligations are strictly governed by the terms of the policy and no exception of relaxation can be given on the ground of equity. It has further been held in this judgement that  in construing the terms of a contract of insurance, the words used therein must be given paramount importance, and it is not open for the court to add,delete or substitute any words. In this judgement it has been further held  by the Hon’ble Supreme Court that where there is  breach of conditions of the insurance contract by the insured, the insurance company is not liable to pay compensation in case of loss. This position of law has been further fortified in the latest judgement of Hon’ble National  Commission titled as M/s. V.K. Karyana Store Vs. Oriental Insurance Co. Ltd. 2014(3) CLT page 47 wherein it has been held that it is well settled principle of law that parties are bound by terms and conditions of the insurance policy and none of the parties can seek any  relief beyond those terms and conditions.

9.       From the aforesaid discussion, it transpires that claim of  the complainant has rightly been sliced and no wrong  has been committed by the opposite party in deducting the amount of Rs. 2,34,245/- out of the medical claim of Rs. 2,82,488/- under the Insurance policy in dispute. As such instant complaint fails and the same is ordered to be dismissed accordingly. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced in Open Forum

Dated :3.10.2016

/R/