O R D E R

Sri. P. Satheesh Chandran Nair (President):

                   The complainants filed this complaint against the opposite parties for getting a relief u/s.12 of the C.P. Act 1986.

                   2. The case of the complainant is stated as follows:  The complainant availed an insurance policy of opposite party 1 (LIC) by paying an amount of Rs.6,936/- as its annual premium at the Pathanamthitta Branch Office of opposite party 1.  The name and style of the said policy is ‘Jeevan Arogya’ bearing Policy No.3957311433.  According to the complainant, she availed the said policy for the reimbursement of medical expenses incurred for family members.  It is contended that on 19.11.2012 onwards she had remitted the premium without any default and subsequently a default for the premium payment happened so that on 26.02.2015 the complainant remitted the premium dues along with a fine of Rs.164.70 to opposite party 1.  It is further contended that on 07.09.2015 due to the disease of Multiple Fibroid Uterus she had been admitted at Believers Church Medical College Hospital, Kuttappuzha at Thiruvalla and a surgery was conducted on her.  An amount of Rs.82,497/- was paid by the complainant to the said hospital as treatment expenses.  Though the complainant claimed a reimbursement of that amount from opposite party 1 on 02.10.2015, on 11.01.2016 the claim was repudiated by opposite party 1 stating the reason, “The specific waiting period in respect of treatment specified in the test in applicable (item No.IV) under specific waiting period”.  Aggrieved by the above said letter the complainant issued a lawyers notice on 19.08.2016 against the opposite parties for the reimbursement of the medical expenses.  According to the complainant, the acts of the opposite parties are clear deficiency in service and all the opposite parties are liable to the complainant.  Hence, the complaint for the realization of the treatment expenses Rs.82,497/-compensation, cost etc. etc.

                   3. This Forum entertained the complaint and issued notice to opposite parties for their appearance.  All the opposite parties are entered appearance and filed their version as follows:  According to the opposite parties, this complaint is not maintainable either in law or on facts.  It is contended that the case of the complainant is false, frivolous and vexatious.  It is also contended that there is no deficiency in service or unfair trade practice from the opposite parties as alleged and there is no cause of action against this opposite parties.  It is also contended that the complainant’s case is a non-performance of a contradictual condition, which is to be adjudicated only through a Civil Court hence this Forum has no jurisdiction to entertain this case.  It is admitted that opposite party 2 issued a ‘Jeevan Arogya Plan’ bearing Policy No.395741443 in favour of the complainant and the said policy was commenced on 19.11.2012.  At the time of availing the policy, the opposite parties are usually sending the terms and condition and exclusion of the said policy.  The terms and condition is as follows:

1. Hospital Cash Benefit (HCB) opted by the principal insured and is payable for the number of days of hospitalisation excluding first 24 hours “HCB” increases arithmetically @ 5% every year after completion of one year.

2. Major Surgical Benefit (MSB) payable only for 140 major surgeries lised under major surgical Benefit Annexure of LIC’s Jeevan Arogya conditions and Privileges at different percentages as mentioned against each item.

3. Day Care Procedure Benefit (DCPB) payable for the 140 procedures listed under Day Care Procedure Benefit Annexure of LIC’s Jeevan Arogya Conditions and Privileges.  DCPB is 5 times of Hospital Cash Benefit (HCB) No hospital cash benefit will be payable with Day Care Procedure Benefit.

4. Other Surgical Benefit (OSB) payable for those procedures which do not come under Major Surgical Benefit and Day Care Procedure Benefit.  Payable amount will be twice Admittable Daily Benefit (ADB) for admissible number of days of hospitalization.  No other benefit is payable.

             4. According to the opposite parties, the complainant is only eligible for a hospital cash benefit of Rs.2,000/- and a Major Surgery Benefit is of Rs. 2 lakhs as per the policy conditions.  It is further contended that the complainant remitted premiums due on 19.11.2012, 19.11.2013 within the grace period allowed as per Clause II of LIC’s ‘Jeevan Arogya’ Conditions and privileges.  It is also contended that the policy holder have an option to revive the policy at any time within a period of 2 years from the due date of first unpaid premium subject to conditions in Clause 13.  The condition of the revival will be subject to the payment of outstanding premium with interest.  Opposite parties further contended that as per Clause 6 of terms and conditions no benefits for any claim under the policy on account of hospitalisation or surgery directly or indirectly caused during the specific waiting period.  According to this opposite parties, the bill amount of Rs.77,330/- and the benefit payable under the policy is not related to the amount of bill but based on the declared benefit since the policy is not a medical claim policy.  It is contended that the date of the revival of the said policy is on 26.02.2015 and the treatment of the complainant happened within 2 years of the specific waiting period.  It is admitted that the LIC has forwarded the claim papers to Third Party Administrator and the said Administrator also found that the complainant’s are not eligible for any benefit as stated above.  According to this opposite parties the repudiation of the claim of the complainant is comes under the purview of the terms and conditions of the said policy and there is no deficiency in service on the part of this opposite parties.  Therefore, this opposite parties prayed to dismiss the complaint with costs.

          5. On the basis of the complaint, versions and records before us we framed the following issues:

1. Whether the complaint is maintainable before the Forum?
2.  Whether the opposite parties are committed any deficiency in service as alleged by the complainant?
3.  Regarding relief and costs?

         6. In order to prove the case of the complainant, the complainant she who filed a proof affidavit in lieu of her chief examination and she is examined as PW1.  Through PW1 Ext.A1 to A5 were marked.  Ext.A1 is the LIC Jeevan Arogya Policy.  Ext.A2 series are the renewal premium receipts (3 Nos.)  Ext.A3 is the LIC Jeevan Arogya leaflet.  Ext.A4 series (9 Nos.) are the medical bills.  Ext.A5 is the claim rejection letter dated 11.01.2016. On the other side, DW1 filed a proof affidavit in lieu of her chief examination and marked Exts.B1 to B9 on their side.  Ext.B1 is the Power of Delegation produced by LIC of India.  Ext.B2 is the proposal form for Health Insurance Policy.  Ext.B2(a) is the LIC ‘Jeevan Arogya’ Conditions and Privileges. Ext.B3 is the Health Insurance Policy details.  Ext.B4 is the premium history of policy and status report.  Ext.B5 is the Discharge Summary.  Ext.B6 is the Biopsy Report.  Ext.B7 is the claim rejection letter dated 11.01.2016.  Ext.B8 is the advocate notice dated 19.08.2016.  Ext.B9 is the reply notice dated 27.08.2016. After the closure of evidence, we heard both sides.

          7. Point No.1:- Opposite parties 1 to 3 in this case seriously contended that the case is not maintainable either in law or on facts.  It is contended that there is no consumer disputes existing between the complainant and opposite parties and moreover the complainant is approached this Forum by violating the terms and conditions of the said policy.  When we look into the evidence before us, it can be inferred that the complainant in this case she who availed a life insurance policy for medical reimbursement.  The opposite parties are also admitted the existence of the insurance policy of the complainant.  The main disputes between the complainant and opposite parties are only with regard to the terms and conditions of the said policy.  Therefore, prima facie we can see that the complainant who availed a medical reimbursement policy from the opposite parties and it also revealed that at the time of claiming the medical reimbursement the policy was inforce.  Therefore, without any further discussion we can safely come to a conclusion to the effect that the complainant herein is a consumer and the opposite parties herein are service providers of the complainant.  Hence Point No.1 found in favour of the complainant.

          8. Point Nos.2 & 3:- For the sake of convenience, we would like to consider Point No.2 and 3 together.  In order to establish the contention of the complainant, the complainant is examined as PW1 and through him, Ext.A1 to A5 are marked.  Ext.A1 and A2 series in No.3 shows that the complainant PW1 availed a policy No.395741433 on 19.11.2012.  Ext.A2 series in No.3 are policy receipts issued by opposite party 1 in favour of the complainant.  As per this Ext.A2 series, it is revealed that the complainant paid a premium amount of Rs.6,936/- on 14.11.2013, an amount of Rs.7,101 on 26.02.2015 and an amount of Rs.6,936/- on 26.11.2015.  Ext.A3 is a printout of the ‘Jeevan Arogya’ Insurance Scheme.  When we peruse Ext.A3, it can be seen that the opposite parties are giving a full assurance to their customers for the reimbursement of treatment expenses.  In Ext.A3 the Hospital Cash Benefit Scheme and it details are explained.  Ext.A4 series is a bill issued from Believers Church Medical College Hospital, Thiruvalla in favour of the complainant.  As per this Ext.A4 series we can see the details of the treatment conducted at the said hospital and also seen that an amount of Rs.82,497/- was insured for the medical treatment of the complainant.  As per Ext.A5 we can see that the LIC repudiated the claim of the complainant on the ground that, ‘the specific waiting period in respect of the treatment specified in the list is applicable’.  In view of Ext.A5, it can be inferred that the complainant’s treatment was taken place within the specific waiting period and that is why opposite parties repudiated the claim of the complainant.

          9. In order to substantiate the case of the opposite parties as discussed earlier, opposite parties examined their Divisional Manager as DW1.  She deposed that the medical treatment of the complainant happened on 07.09.2015 and she was an inpatient at Believers Church Medical College Hospital, Thiruvalla due to the disease of Multiple Fibroid.  She also deposed that the complainant’s policy was on 26.02.2015 and the above said treatment had taken place within the specific waiting period claimed by the opposite parties.  In order to substantiate the case of the opposite parties, the learned counsel appearing for the opposite parties cited a decision reported in CWP No.7230/10 of Punjab & Haryana High Court the dictum is, “In a contract of insurance, the rights and obligations are governed by the terms of the said contract.  The parties are governed by the terms of a contract of insurance which have to be strictly construed and no exception can be made on the ground of equity.  Any amount beyond the sum assured for which insurance policy is undertaken; no legitimate claim can be laid by the insured”.  Another decision reported by our Hon’ble NCDRC between LIC of India and Madan Gopal it held, “As far as consumer Forum is concerned, it cannot go behind the terms of the contract of insurance between the parties and therefore, despite the fact that angioplasty and thrombolysis by coronary arteries catheterization is a less invasive and a less risky procedure as compared to open heart bye-pass surgery, no compensation to the petitioner/complainant can be awarded.  The impugned orders are, therefore, set aside and the complaint is consequently dismissed with no order as to costs”.  When we rely these two decisions it is to be understood that in a contract of insurance the right and obligation are governed by the terms of the said contract.  When we examine the 2^nd decision cited by the opposite parties, it also emphasizing the dominations of the terms of the contract of insurance between the parties.  In this decision the Hon’ble National Forum discussing open heart bypass surgery with angioplasty and thrombolysis by coronary arteries catheterization etc.  It is discussed that angioplasty is comparatively less risky.  We do admit that when deciding the merit of the claim of an insurer the terms and conditions between the parties are so important and binding to parties.  It is true that Ext.B2 is the proposal form and Ext.B2(a) is the terms and conditions of the ‘Jeevan Arogya’ LIC Policy.  According to PW1, at the time of availing Ext.A1 policy she has got only Ext.A1 policy document and she has no idea with regard to Ext.B2(a) terms and condition.  When we examine Ext.B2(a) we cannot see any signature of the complainant in this document.  When we appreciate the evidence adduced by the opposite parties in this case, it can be seen that the opposite parties failed to adduce any positive evidence to show that the terms and conditions of the said policy was attached with Ext.A1.  As per the principles of contract act a proposal has to be accepted by the other side.  It is true that Ext.B2 is a proposal form which was accepted by the opposite parties.  At the same time, there is no evidence to so that the terms and conditions of the policies are aware to the complainant at the time of taking the said policy.  It is also noted that as per Ext.B2(a) Clause 6 the general waiting period and specific waiting period are clearly explained.  According to the learned counsel for the opposite parties, as per Clause 6 the complainant has no right to get any benefit from the opposite parties.  We are also agreeing with the learned counsel’s submission with regard to this aspect.  When the instant case is concerned it is to see that the policy was lapsed as a reason for non-payment of premium and subsequently it is renewed by the opposite parties and received the premium arrears along with a fine from the complainant.  At this juncture, normally we can see that the policy is effective and the insured is at every right to get all kinds of benefit accrued from the said policy.  As per Ext.B2, II (a) If the request for revival is received by the corporation within 90 days from the due date of the first unpaid premium, then there shall be a specific waiting period of 2 years from the date of revival in respect of each insured. We do admit that as per the evidence of this case the policy is renewed after the grace period of 90 days.  If the opposite parties renewed the insurance policy after receiving the fine from the insured the insured has got privilege to enjoy all the benefit of the policy we also think that the opposite party 1 has not enjoying any right to impose a ‘waiting period’ after a renewal.  Even if a condition of ‘waiting period’ is imposed again that is not at all justifiable on the part of opposite parties.  As stated earlier, we already find that when we evaluate this case the terms and conditions of Ext.B2(a) cannot be connected to this complainant or otherwise no evidence to show that this Ext.B2 is binding to the complainant PW1. 

            10.  In order to counter the argument put forward by the opposite parties, the learned counsel appearing for the complainant cited a decision reported in AIR 1962 Page 814 in Mithoolal Nayak Vs. LIC of India and another, our Hon’ble Supreme Court held, “Sec.45 Insurance Act applied to the case as two years had lapsed since the policy was effected; in view of the language of S.45 the two years could not be counted from the date of the revival of the policy.  The second part of S.45 entitled the company to repudiate the contract even after the expiry”.  When we look into this decision it is a double edged decision.  But this decision is an answer to the question – whether the waiting period can be counted from the date of inception or from the date of revival?  According to the view of the Division Bench of our Hon’ble Supreme Court, the language of Sec.45 of the insurance act, the ‘waiting period’ of 2 years could not be counted from the date of the revival of the policy.  When we rely this decision and the reliability of Ext.B2(a) which was discussed earlier we can come to a conclusion that the waiting period shall be counted from the date of inception of the policy.  When we peruse Ext.B3, we can see that the complainant renewed the policy on 26.02.2015 and discontinued the health cover on 20.12.2014 and 20.12.2016.  Though the opposite parties relied Ext.B3 with regard to the discontinuance of the policy as per Ext.A2 series bill it is proved that the policy is renewed by the opposite parties and the policy was effective at the time of the admission of the complainant in the hospital for treatment.  The opposite parties relied Ext.B3 to show that the payment of the premium and the default of the remittance of the premium etc.  Ext.B5 and B6 are the details of the treatment results of the complainant at Believers Church Medical College Hospital, Thiruvalla.  We do admit that as per Ext.B2(a) terms and conditions these diseases are exempted from medical reimbursement of the scheme.  This position has to be answered only on the merit of Ext.B2(a) terms and conditions.  Ext.B7 to B9 are the correspondence between the complainant and opposite parties through their counsel with the insurance claim and the reasons for its repudiation.  In the light of the above finding, it is clear that the complainant is eligible to get medical reimbursement of Rs.82,497/- as per Ext.A4 series dated 16.09.2015.  When we appreciate the evidence of this case, it can be found that opposite party 1 is the LIC of India and opposite party 2 and 3 are its subordinate officers.  Therefore, we find that opposite party 1 to 3 are jointly and severally liable to the complainant.  Hence, Point No.2 and 3 are also found in favour of the complainant.

          11. In the result, we pass the following orders:

1. The opposite parties are hereby directed to reimburse an amount of Rs.82,497/- (Rupees Eighty Two Thousand four hundred and ninety seven only) to the complainant with 10% interest from the date of order onwards.

2. The opposite parties are also directed to pay a compensation of Rs.10,000/- (Rupees Ten Thousand only) and a cost of Rs.3,000/- (Rupees Three Thousand only) to the complainant with 10% interest from the date of order onwards.

            Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 30^th day of May, 2017.

                                                                                   (Sd/-)

                                                                           P. Satheesh Chandran Nair,                                                                                                                                                                                                                                              

                                                                                          (President)

Smt. Sheela Jacob (Member)               :    (Sd/-)

Appendix

Witness examined on the side of the complainant:

PW1  :  Omana Varghese

Exhibits marked on the side of the complainant:

A1 : LIC Jeevan Arogya Policy. 

A2 series :  Renewal premium receipts (3 Nos.) 

A3 : LIC Jeevan Arogya leaflet. 

A4 series (9 in Nos.) :  Medical bills. 

A5 :  Claim rejection letter dated 11.01.2016.

Witness examined on the side of the complainant:

DW1  :  Sreedevi S. Nair

Exhibits marked on the side of the complainant:

B1 :  Power of Delegation produced by LIC of India. 

B2 :  Proposal form for Health Insurance Policy. 

B2(a) : LIC ‘Jeevan Arogya’ Conditions and Privileges.

B3 : Health Insurance Policy details. 

B4 :  Premium history of policy and status report.

B5 : Discharge Summary. 

B6 : Biopsy Report. 

B7 :  Claim rejection letter dated 11.01.2016. 

B8 : Advocate notice dated 19.08.2016. 

B9 :  Reply notice dated 27.08.2016.

                                                                                       (By Order)

Copy to:-  (1) Omana Varghese, Mukkoottil Veedu, Kuzhikkala P.O.,

                     Kozhencherry, Pathanamthitta.

      (2)  The Divisional Manager, LIC of India,

            Divisional Office, Kottayam.

                (3) The Branch Manager, LIC of India, Pathanamthitta.

              (4) The Stock File.