Punjab

StateCommission

A/855/2016

Krishan Lal Sethi - Complainant(s)

Versus

HDFC Ergo General Insurance Company Ltd. - Opp.Party(s)

Vipul Aggarwal

08 May 2017

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

                   First Appeal No.855 of 2016

 

                                                          Date of Institution: 15.11.2016

                                                          Order Reserved on : 05.05.2017

                                                          Date of Decision   : 08.05.2017

 

Krishan Lal Sethi  s/o  Late Sh. Dwarka Dass Sethi, r/o H.No. 894, Kucha Pehalwana, Gali Devi Wali, Joura Pipal, Amritsar 143001

 

 

                                                                          Appellant/Complainant

                   Versus

 

 

HDFC Egro General Insurance Company Limited, Registered & Corporate Office, Ist Floor, 165-166, Backbay Reclamation, H.T Parekh Marg, Churchgate Mumbai- 400020

 

                                                              Respondent/Opposite party

 

 

First Appeal against order dated 03.10.2016 passed by the District Consumer Disputes Redressal Forum,  Amritsar.

 

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

            Smt.Surinder Pal Kaur, Member

 

Present:-

          For appellant                : Sh.Vipul Aggarwal, Advocate

          For respondent            : Sh.Sandeep Suri, Advocate

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant has directed this appeal against order dated 03.10.2016 of District Consumer Forum Amritsar, dismissing the complaint of the appellant. The appellant of this appeal is the complainant in the original complaint before District Forum, Amritsar dated 03.10.2016 and respondent of this appeal is the opposite party therein and they be referred as such, hereinafter for the sake of convenience.

2.      The complainant has filed the complaint U/s 12 of The Consumer Protection Act, 1986 (in short, "the Act") against the OP on the averments that he got himself insured for Rs.2 lac in the year 2010 (07.04.2010) on the telephonic request of the OP/Company. The insured amount was enhanced to Rs.5 lac in the year 07.04.2014. Subsequent to final approval and acceptance of insurance proposal in the year 2014 for enhanced sum of Rs. 5 lac, OP vide their letter of acceptance, issued policy no. 50202622. The complainant has to undergo bye-pass surgery (CABG) following a major arterial block at local Fortis Hospital in the month of December 2014. Cashless claim was settled at Fortis Hospital for Rs.62,396/- and Rs.3,61,822/- and post hospitalization claim of Rs.53,887/- was also released. After recovery from the cardiac problem, insured went to kidney transplant (Right) in the month of November 2015, his wife was donor and due to emergent situation kidney transplant was demanded at Kidney Hospital & Lifeline Medical Institutions Jalandhar. The cashless claim of Rs.1,39,234/- was settled. The complainant/insured submitted a claim of Rs.2,82,488/-  (CCN RC- HSI5-10323950-1), which was duly supported by all documents, bills and vouchers of the hospital. The OP/Insurance Company settled the claim for Rs.48,243/- in an arbitrary manner. The complainant requested the management of OP to reconsider his medical insurance reimbursement claim for Rs.2,82,488/-, which was reduced to Rs.48,243/- by it. The amount of Rs.2,34,245/- was deducted by OP, which caused loss to the complainant. The OP is alleged to be deficient in service. The complainant has, thus, filed complaint directing OP to pay the balance amount of Rs.2,34,245/-, which has been arbitrarily deducted from his admissible claim. The complainant also prayed for compensation of Rs.10 lac for mental harassment.

3.      Upon notice, OP appeared and filed written reply by raising preliminary objections that the alleged loss of the complainant is not  covered under the insurance policies and as such complaint is not maintainable. The complainant purchased earlier policies for Rs.2 lac for the year 2010-2011, 2011-12, 2012-13, 2013-14 and 2014-15. The total sum insured was enhanced by complainant for the period 07.04.2015 to 06.04.2016 from 2 lac to 5 lac. After endorsement/enhancement, the claim was lodged seeking benefits of enhanced sum insured. 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. The complainant's claim has been accepted to the extent of Rs. 2 lac being existing sum insured under previous policy. The amount beyond that range has been declined. Due to calculation mistake, a higher amount has been paid; whereas the restriction was only upto Rs.2 lac. The complainant concealed the material facts and is estopped by his act and conduct from filing the complaint. The complaint is filed without any cause of action and locus standi by the complainant. On merits, OP pleaded that complainant was earlier insured for Rs. 2 lac and then he got insured enhanced sum insured up to Rs. 5 lac for the period of 07.04.2015 to 06.04.2016. This fact was denied by OP that call was made by OP in the year 2014 to complainant. In view of the terms and conditions of the policy, the payment of previous claim of the complainant, as per sum insured has already been made. As per terms and conditions of the policy, the amount of Rs.48,243/- was paid to the complainant for sum insured, which was more than his entitlement. The total sum amount paid under the policy was more than the original sum insured of Rs.2 lac by OP. The complainant is not entitled to get the claim of Rs.2,82,488/- in view of the enhanced sum insured due to exclusion waiting period of the policy as per its terms and conditions. The amount of Rs.48,243/- has already been released by OP to complainant for sum insured under the policy; but complainant is not entitled to get the amount of Rs.2,82,488/- in view of enhanced sum insured due to clause of waiting period as per terms and conditions of the policy. OP prayed for dismissal of the complaint.

4.      The complainant tendered in evidence his affidavit Ex.CW1-A along with copies of documents Ex.C-1 to Ex.C-7. As against it; OP tendered in evidence affidavit of Pankaj Kumar Manager Legal Claims HDFC General Insurance Company Ex.OP-1 along with copies of documents Ex.OP-2 to Ex.OP-5. On conclusion of evidence and arguments, the District Forum Amritsar dismissed the complaint of the complainant by virtue of order dated 03.10.2016. Dissatisfied with the order of the District Forum Amritsar dated 03.10.2016, the complainant now appellant, carried this appeal against the same.

5.      We have heard learned counsel for parties at considerable length and have also examined the record of the case.

6.      The complainant tendered his affidavit Ex.CW-1/A, wherein he reiterated the averments of the complaint on oath. Ex.C-1 is letter addressed to the complainant by OP with regard to policy no. 50202622 of Rs.5 lac against premium of Rs.15119/-. Ex.C-2 is letter addressed to Kidney Hospital & Lifeline Medical Institutions Jalandhar with regard to settlement details of claim under policy            no. 50202622 of Krishal Lal Sethi complainant. Ex.C-3 is letter addressed to complainant by OP to the effect that amount of Rs.48243/- has been payable under the insurance claim. Ex.C-4 is request of the complainant for reconsideration of reimbursement claim for CCN No. HS-15-10323950-1. Ex.C-5 is inpatient bill of the complainant dated 05.01.2015, vide bill no. IPCR 59731. The net bill amount is Rs.361,822/-. Ex.C-6 is account statement of the complainant, vide account no. 01151050015085. Ex.C-7 is document pertaining to policy no. 2952200717091200000/1 for sum insured Rs.5 lac and second policy no. 2952200717091200000/2 for sum insured Rs.10 lac. This evidence is relied upon by the complainant to prove this fact that OP wrongly has not granted the admissible claim to the complainant for kidney transplant.

7.      To refute this evidence, OP relied upon affidavit of Pankaj Kumar Manager Legal Claim HDFC Ex.OP-1. He stated in his statement that previously complainant purchased policies for Rs. 2 lac for the year 2010-11, 2011-12, 2012-13, 2013-14 and 2014-15. The total sum insured was enhanced by complainant for the period 07.04.2015 to 06.04.2016 from Rs. 2 lac to 5 lac. After the endorsement / enhancement, the claim was lodged seeking benefits of enhanced sum insured. Waiting period for pre-existing ailments prescribed under the policy is applicable for the enhanced sum insured amount under the policy terms and immediate benefit thereof cannot be taken. The claim of the insured has been accepted to the extent of Rs. 2 lac under the previous policy and it has been rejected beyond that range. He further stated that as per terms and conditions of the policy the amount of Rs.48,243/- has been paid to the complainant for the insured amount, which is more than his entitlement of Rs. 2 lac. The claim of the complainant has been rightly rejected for amount of Rs. 2,82,488/- being beyond the terms and conditions of the policy. Ex.OP-2 is letter addressed to the complainant, in which it has specifically stated that in case of increase in sum insured for renewal of policy, waiting period will apply afresh in relation to the amount for sum insured has been enhanced. OP sent this letter on 12.07.2016 to complainant. Policy terms and conditions are Ex.OP-3 and OP-4. The enhanced policy has been made applicable from 07.04.2014 to 06.04.2015 enhanced insured amount of Rs.5 lac. It is specifically recorded in Ex.OP-3 that in case of increase in the sum insured on renewal of policy, waiting period would apply afresh in relation to the amount by which the sum insured has been enhanced. Ex.OP-4 are terms and conditions of the policy. Our attention has been drawn to Section 9 of the policy dealing with exclusion clause, which is reproduced as under :-

 

          "Section 9 Exclusions"

          A. 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.

          a) Illness : 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.

          b) Treatments : adenoidectomy, mastoidectomy, tonsillectomy        and tympanoplasty, dilatation and curettage (D&C) joint         replacement, myomectomy for fibroids, surgery of genitor    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 various 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.

Section 9 of the Exclusion Clause of the policy provides waiting period of two and four years respectively for the diseases detailed therein. The complainant submitted claim of Rs. 2,82,488/- with OP and OP settled the claim for Rs.48,243/- under the previous policy. As per Ex.OP-3 in case of increase in the sum insured on renewal of the policy, waiting period will apply afresh in relation to the amount by which the sum insured has been enhanced.  As per exclusion clause 9 of the policy document; the claim beyond the contractual term is not admissible. The waiting period has not expired for enhanced amount of insurance in this case and as such OP has rightly declined the claim of the complainant to the extent of Rs.2,82,488/-. OP rightly reduced the claim, as per clause 9 of the terms and conditions of the policy. The District Forum correctly observed that terms and conditions of the insurance policy cannot be interpreted in the manner either to subtract or add anything therefrom. In M/s Suraj Mal Ram Niwas Oil Mills (P) Ltd versus United India Insurance Co. Ltd and another reported in 2010(4) RCR (Civil) (SC) it has been held that contract of insurance, rights and obligations are strictly governed by the terms of the policy and no exception or relaxation can be given on the ground of equity. It has further been held in this authority 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. The Apex Court  further held 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. It has also been held by National Commission in M/s V.K. Karyana Store Vs. Oriental Insurance Company Ltd 2014(3) CLT Page 47 that parties are bound by the terms and conditions of the insurance policy and none of the parties can seek any relief beyond those terms and conditions.

8.      As a result of our above discussion, we find no illegality or material irregularity in the order of the District Forum in this appeal and same is affirmed. Consequently, appeal is without any merit and same is hereby dismissed.

9.      Arguments in this appeal were heard on 05.05.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.

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

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                    

                                                               (SURINDER PAL KAUR)

                                                                               MEMBER

May 8, 2017                                                                

(ravi)