Versus
- HDFC ERGO General Insurance Company through its Branch Manager/Authorized Signatory, 5th Floor, Surya Towers, 5th Floor, 88, The Mall Rd. Koh-E-Fiza, Ludhiana, Punjab-141001.
- HDFC ERGO General Insurance Company through its Managing Director/Director/Authorized Signatory, 1st floor, HDFC House, 165-166 Backbay Reclamation, H.T. Parekh Marg, Churchgate, Mumbai-400020. …..Opposite parties
Complaint Under Section 35 of the Consumer Protection Act.
QUORUM:
SH. SANJEEV BATRA, PRESIDENT
MS. MONIKA BHAGAT, MEMBER
COUNSEL FOR THE PARTIES:
For complainant : Sh. Gaurav Saggi, Advocate.
For OPs : Sh. Vyom Bansal, Advocate.
ORDER
PER SANJEEV BATRA, PRESIDENT
1. Briefly stated, the case of the complainant is that he purchased HDFC ERGO Optima Restore Policy from the OPs vide policyNo.2805203877317501 having validity till 25.09.2022 with coverage of whole family of the complainant.
The complainant stated that his son Shivaay Gaur was diagnosed with complication of undescended testicle for which he was operated on 05.10.2021 at Max Super Specialty Hospital, Mohali and the complainant incurred a sum of Rs.1,44,007/-. Thereafter, the complainant filed a claim for reimbursement with the OPs but the OPs rejected the claim vide repudiation letter dated 09.03.2022 on the ground that the undescended testicle condition is congenital external disease/anomaly. The complainant further stated that as per certificate of treating doctor Dr. Rashmi Pandove, the undescended testicle ailment is internal in nature and needs to be operated upon. Further as per definition No.5 of the policy, the Congenital Anomaly, undescended testicle is neither visible nor an accessible part of body and as such, the same is internal in nature. Even in the exclusion clause only External Congenital anomaly is included and internal congenital anomaly has not been included. According to the complainant, repudiation of the claim amounts to deficiency in service on the part of the OPs due to which he suffered mental trauma etc. for which he is entitled for compensation. In the end, the complainant has prayed for issuing direction to the OPs to reimburse the claim of Rs.1,44,007/- along with compensation etc.
2. Upon notice, the OPs appeared and filed joint written statement by taking preliminary objections that the complaint is not maintainable; the complainant has not come with clean hands; lack of cause of action etc. The OPs stated that the complainant approached them for availing an insurance policy and submitted a proposal form for issuance of an insurance policy for himself and his family. Believing the declaration, information and details regarding medical history submitted in proposal form to be true, the OPs issued a policy to the complainant and supplied the policy kit containing all relevant documents. The complainant did not raise any objection within the free look in period of 15 days. The OPs further averred that on 20.10.2021, reimbursement claim was received from the complainant who got admitted at Max Super Speciality Hospital, Mohali for treatment Undescended testicle with date of admission 04.10.2021 and date of discharge 06.10.2021. As per submitted documents, it was noted that the insured was treated for Undescended testicle which is an external congenital condition as per definition as testis is not present in the correct position and in abdominal cavity but palpable. As such, it falls under external congenital disease and as per policy terms and conditions such ailment is beyond the scope of coverage of the policy for which the company is not liable to make the payment in respect of expenses incurred by the insured person. The OPs further stated that the repudiation of the claim is justified. As per the insurance policy, the claim paid by any Insurance company is out of the common pool of funds belonging to all policy holders of the company and the insurance company has to check the genuineness of a claim before honoring it and as such, the claim of the complainant was rightly repudiated.
On merits, the OPs reiterated the crux of averments made in the preliminary objections and have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.
3. In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of policy renewal letter, Ex. C2 is the copy of policy schedule, Ex. C3 is the copy of Inpatient bill (summary) dated 06.10.2021, Ex. C4 is the copy of Inpatient bill (Detailed) dated 06.10.2021, Ex. C5 is the copy of settlement receipt, Ex. C6 is the copy of repudiation letter dated 09.03.2022, Ex. C7 is the copy of certificate of Dr. Rashmi Pandove, Ex. C8 is the copy of certificate of Dr. Rashmi Pandove, Ex. C9 is the copy of discharge summary dated 06.10.2021, Ex. C10 is the copy of definitions of the policy and closed the evidence.
4. On the other hand, counsel for the OPs tendered affidavit Ex. RA of Sh. Manoj Kumar Prajapati, Manager-Corporate Legal of the OPs along with documents Ex. R1 is the copy of policy documents, Ex. R2 is the discharge summary along with other medical records etc. and closed the evidence.
5. We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties.
6. The complainant is a holder of HDFC ERGO Optima Restore Floater policy Ex. C1 = Ex. R12 w.e.f. 26.09.2021 to 25.09.2022 covering the complainant Porush Gaur, his wife Smr. Shailja, daughter Baby Smayra, Baby Aradhya Gaur and son Master Shivaay Gaur having total sum insured of Rs.2,00,000/-. The minor son of the complainant namely Shivvay Gaur, one of the insured person was diagnosed of ‘Left undescended testis’. He was admitted in Max Super Speciality Hospital, Mohali on 04.10.2021 and underwent surgical procedure. He was discharged on 06.10.2021. A sum of Rs.1,44,007/- were incurred by the complainant on the treatment of his son. On 20.10.2021 reimbursement claims as lodged with the OPs. The officials of the OPs scrutinized the documents and vide letter Ex. C6 = Ex. R2 (last page) dated 09.03.2022 repudiated the claim of the complainant. operative part of Ex. C6 = Ex. R2 (last page) is reproduced as under:-
“We have received your request for reimbursement of claim for the above mentioned hospitalization. we have verified that same with respect to the coverage terms and conditions under the insurance policy plan. And on primary scrutiny of the submitted documents, we regret to inform that your claim is not payable under to following reasons:-
- As per the submitted documents, patient was admitted on 4/10/21 with the diagnosis of undescended testicle, which is an external congenital disease/defect/anomaly/genetic disorder. Policy clause 9 c vii states that ‘congenital external disease/defect/anomaly or any genetic disorder’ is a part of general exclusions and thus the ailment is beyond the scope of coverage of the policy. hence this claim is being repudiated under the above mentioned clause of the policy terms and conditions.”
7. Now the point of consideration arises whether the OPs were justified in repudiating the claim of the complainant?
8. The counsel for the complainant has referred to the medical certificate Ex. C7 issued by the treating doctor Dr. Rashmi Pandove, Senior Consultant Pediatrician, Max Super Speciality Hospital, Mohali wherein she has specifically opined that the disease was internal in nature. Operative part of Ex. C7 is reproduced as under:-
“This is to state that Shivaay Gaur, 2 year, 2 months male child is having the problem of undescended testis-is an ailment which is internal in nature and needs to be operated upon.”
Further perusal of discharge summary Ex. C9 also confirms the same and the findings of the ultrasound report have also been included in the discharge summary wherein it is mentioned that the child was admitted with undescended testis left side and which was not visualized. As per discharge summary, there was no past medical history of the child. Moreover, no medical expert of twas examined nor any affidavit of any medical expert was tendered by the OPs to rebut the opinion of the treating doctor. It appears that the opinion of the OPs is based upon conjectures and surmises. In the written statement a lame excuse has been coined by the OPs that the certificate of Dr. Rashmi pandove has not been supported with an affidavit. The OPs have invoked the exclusion clause and the onus always lies upon the OPs to show that it is the case which falls within the four corners of the exclusion clause.
In this regard, reference can be placed on 2022 LiveLaw (SC) 937 in M/s. Texco Marketing Pvt. Ltd. Vs TATA AIG GIC Ltd. and others whereby the Hon’ble Supreme Court of India has made the following observations:-
“Insurance Act, 1938 – An exclusion clause in a contract of insurance has to be interpreted differently. Not only the onus but also the burden lies with the insurer when reliance is made on such a clause. This is for the reason that insurance contracts are special contracts premised on the notion of good faith.
The burden of proving the applicability of an exclusionary clause lies on the insurer. At the same time, it was stated that such a clause cannot be interpreted so that it conflicts with the main intention of the insurance. It is, therefore, the duty of the insurer to plead and lead cogent evidence to establish the application of such a clause. [National Insurance Company Ltd. v. Vedic Resorts and Hotels Pvt. Ltd., V (2023) SLT 14=2023 SCC OnLine SC 648]. The evidence must unequivocally establish that the event sought to be excluded is specifically covered by the exclusionary clause.”
Thus, the OPs were not justified in repudiating the claim of the complainant. In the given set of facts and circumstances, it would be just and appropriate if the OPs are directed to settle the amount and reimburse medical expenses out of Rs.1,44,007/- incurred by the complainant on hospitalization of insured Shivaay Gaur at Max Super Speciality Hospital, Mohali from 04.10.2021 to 06.10.2021 in terms of policy terms and conditions along with interest @8% per annum on the settled amount from the date of filing of complaint till its actual payment. The opposite parties are also burdened with composite costs of Rs.10,000/-.
9. As a result of above discussion, the complaint is partly allowed with direction to the OPs to directed to settle the amount and reimburse medical expenses out of Rs.1,44,007/- incurred by the complainant on hospitalization of insured Shivaay Gaur at Max Super Speciality Hospital, Mohali from 04.10.2021 to 06.10.2021 in terms of policy terms and conditions along with interest @8% per annum on the settled amount from the date of filing of complaint till its actual payment. The OPs shall also pay a composite costs of Rs.20,000/- (Rupees Twenty Thousand only) to the complainants within 30 days from the date of receipt of copy of order. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.
10. Due to huge pendency of cases, the complaint could not be decided within statutory period.
(Monika Bhagat) (Sanjeev Batra)
Member President
Announced in Open Commission.
Dated:08.08.2024.
Gobind Ram.
