Sri Utpal Kumar Bhattacharya, Member
Instant Appeal u/s 15 of the C.P. Act, 1986 has been filed by the Appellants/Ops challenging the judgment and order dated 26.09.2016 passed by the Ld. District Forum, Kolkata Unit—II (North) in Complaint Case No.CC/14/489 allowing the complaint on contest ex-parte against the Appellants/OPs.
The Appellant/OPs were jointly and/or severally directed to pay to the Respondent/Complainant the claimed amount of Rs.3,53,540/-. The Appellants/OPs were further directed to pay to the Respondent/Complainant the compensation and litigation cost to the tunes of Rs.30,000/- and Rs.5,000/- respectively within 30 days from the date of the impugned judgment and order, failing which, as ordered, interest @ 10% p.a. should accrue to the entire sum due to the credit of the Respondent/Complainant till full realization.
The facts of the case, in a nut-shell, were that the Respondent/Complainant obtained a policy from the OP Insurance Company on 09.05.2012 for a period of three years. The term of the policy, therefore, was valid till 09.05.2015 as the policy premiums for a sum of Rs.18,987/- were duly paid successfully for the years 2012 to 2015. The Respondent/Complainant, within the period of validity of the policy, had the chest pain and visited the CMC Vellore. He had himself treated there and came back after being discharged. There being reoccurrence of the same chest pain, the Respondent/Complainant had himself admitted to the BM Birla Heart Research Institute on 17.05.2014 and discharged on the same day undergoing some medical test. He was diagnosed there of single vessel Cad normal LV function and TMT negative.
The Complainant, since was denied of cashless facility under letter dated 23.05.2018 under exclusion Clause 8 of the policy, the Respondent/Complainant approached, the B. M. Birla Heart Research Institute and obtained an estimate dated 24.05.2018 of Rs.3,28,500/- as treatment which included the price of (i) Drug eluting Stent and allied cost including the cost of investigation. He, after undertaking treatment, had to be discharged from the hospital paying a sum of Rs.3,21,975/- out of the cost estimate of Rs.3,28,000/- to the hospital authority. He subsequently filed a scheme for reimbursement of the entire cost paid to the Appellant/OP.
Repeated persuasion including the issuance of legal notice for reimbursement of the entire cost paid being gone in vain, the aggrieved Respondent/Complainant filed the Complaint Case. The impugned judgment and order which is under challenge in the instant Appeal originated from the said Complaint Case.
Heard Ld. Advocates appearing on behalf of both sides.
The Ld. Advocate appearing on behalf of the Appellant/OP submitted that the impugned judgment and order was delivered by the Ld. District Forum ex-parte against the Appellant/OP who, therefore, did not get any scope to defend the allegation brought against him in the complaint. As he argued, the Clause 8 of the policy guidelines reads as follows:-
“The Company shall be liable to make payment for the following illnesses only from the first Renewal Date or date of Revival, whichever is later, provided these illnesses are diagnosed or Hospitalization or Medical Expenses incurred after the first Renewal Date or date of Revival, whichever is later:
Any heart related disease, Tympanoplasty, Valve Replacement, Valvotomy, Cerebral Haemorrhage; Angiographies, Angioplasty (with or without stent), Coronary Artery Bypass Graft unless post Accident.
The first Renewal will be due after three years from the policy Commencement Date.”
The Ld. Advocate also drew the notice of the Bench at Clause No. 6(b) of the policy guidelines which reads as:-
“The Company shall not be liable to make any payment if Hospitalization or Medical Expenses or claims are attributable to, or based on, or arise out of, or are directly or indirectly connected to any of the following:
Hospitalization and/or treatment within the Waiting Period and Hospitalization and/or treatment
following the diagnosis within the Waiting Period;”
The Ld. Advocate submitted that the provisions envisaged in both the above clauses in the policy guidelines led the Appellant/OP to rightly repudiate the claim as the treatment was undertaken within the exclusion period for the disease which came under exclusion in terms of Clause 8 of the policy.
Referring to the letter dated 23rd May, 2014 as the letter of repudiation in his BNA, the Ld. Advocate continued that the said repudiation letter was never assailed before the Ld. District Forum at the time of ex-parte hearing.
With the submission as above, the Ld. Advocate prayed for the Appeal to be allowed setting aside the impugned judgment and order.
The Ld. Advocate appearing on behalf of the Respondent/OP, per contra, submitted that the running page 27 which was being referred to as the repudiation letter was not, in fact, the repudiation in respect of the claim, rather the same was related to repudiation towards prior approval for cashless treatment.
As contended, the Ld. District Forum, due to continuous avoidance of hearing of the case through absence on successive dates of hearing by the Appellants/OPs, had to take the decision of ex-parte hearing.
Referring to the recording under Head ‘history’ by the CMC Vellore, running page 22, the Ld. Advocate submitted that there was no significant point mentioned which might lead one to conclude that the deceased was suffering from the disease that came under purview of the exclusion clause.
With the above submission, the Ld. Advocate prayed for the Appeal to be dismissed affirming the impugned judgment and order.
We have gone through the papers available with the records and considered submissions of the Ld. Advocates appearing on behalf of both sides. The Ld. Advocate appearing on behalf of the Appellants/OPs hinted at his client’s deprivation of taking defence before the Ld. District Forum as the hearing before the Ld. District Forum held ex-parte. It never refuted the observation of the Ld. District Forum that the said clients absented themselves from hearing in spite of hearing notices being duly served upon them. The ex-parte hearing due to willful negligence of the parties being ordered against, cannot be blamed to be illegal or irregular.
Further running page No. 27 which the Ld. Advocate for the Appellants/OPs referred to as repudiation against the claim was, in fact, not a repudiation against the claim, rather it was only a repudiation against the cashless treatment. It appeared that the letter at running page No. 27 was issued on 23.05.2014, the date on which the estimate for treatment was obtained. Therefore, the running page 27 cannot be any repudiation against claim, rather the language of the letter was indicative about the negation was directed against prayer for claim of the cashless treatment.
We did not find any policy guidelines furnished by the Appellants/OPs in the case record. We, were guided by the Clauses 8 and 6(b) recorded, not in the policy guidelines but in the BNA and other communications made from time to time by the Appellants/OPs where those clauses were quoted.
Prima facie, on perusal of the record, running page 26 and 28, it revealed that the patient had undergone Angioplasty with stent at the B. M. Birla Heart Research Institute and the said treatment was found to be figuring in the exclusion list within the period of three years from the date of initiation of the policy as per Clause 8 of the policy guidelines.
Since the parties are tied down by the terms of the policy, the policy terms and conditions were binding upon both the parties and accordingly, the claim, on the instant occasion, does not stand.
Still, since the case was not heard on merit and this Bench is not aware of the details of the relevant clauses of the policy guidelines in absence of the same, we considered it to be a fit case to be remanded to Ld. District Forum, particularly keeping in view the fact that the claim has not been repudiated as yet by the Appellants/OPs.
Hence,
Ordered
that the Appeal be and the same is allowed in part. The case be remanded to the Ld. District Forum to hear the case on merit afresh and to pass a reasoned order for its disposal.
The parties are directed to report to the Ld. District Forum on 15.11.2018.
