BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 485 of 2015
Date of Institution: 10.8.2015
Date of Decision: 21.06.2016
Aman Kapoor S/o Sh. Madan Mohan Kapoor aged 35 years R/o 23, Shakti Nagar, Amritsar
Complainant
Versus
- National Insurance Company Limited through its Chairman Cum Managing Director, having its Registered office at 3, Middleton Street Post Box No. 9229, Kolkata 700071
- National Insurance Company Limited through its Branch Manager, having its branch office at The Mall, Opposite SSP residence, Above Allahabad Bank, Amritsar
- Park Mediclaim TPA Pvt.Ltd., 702, Vikrant Tower, Rajendra Place, New Delhi through its Manager
Opposite Parties
Complaint under section 12 & 14 of the Consumer Protection Act, 1986 as amended upto date.
Present: For the Complainant : Sh.Viney Khera, Advocate
For Opposite Parties No.1 and 2: Sh.Subodh Salwan, Advocate
For Opposite Party No.3 : Ex-parte
Coram
Sh.S.S.Panesar, President
Ms.Kulwant Kaur Bajwa, Member
Mr.Anoop Sharma, Member
Order dictated by:
Sh.S.S. Panesar, President.
1. Aman Kapoor has brought the instant complaint under section 12 & 14 of the Consumer Protection Act, 1986 on the allegations that complainant has filed the present complaint on account of deficiency of service on the part of opposite parties No1.1 & 3. The complainant is a consumer as per section 2(i)(d) of the Consumer Protection Act. The complainant purchased medical insurance policy with floater sum insured
Rs.5,00,000/- from opposite parties No.1 & 2 bearing policy NO. 401208/48/14/8500000210 under the Bank of India National Swasthya Bima Policy for the period from 13.6.2014 to 12.6.2015 after paying the premium.
The complainant has been renewing his policy since 2007. Copies of the same are placed on record. The complainant was blessed with another son namely Parth, who was duly endorsed in the previous medical policy on 20.2.2014 having policy No. 401208/48/13/8500000325 and valid uptil 12.6.2014 without any additional charge. Copy of the insurance policy is on record. That medical policy was furt6her renewed upto 12.6.2015 with floater sum insured of Rs. 5,00,000/-. It is pertinent to mention over here that in floater sum insured any or all of the entire family can avail of the sum insured opted as stated by the opposite parties in their prospectus obtained from internet , copy of the same is on record. In the month of September 2014, minor son namely Parth, who was insured under the said policy, was hospitalized in Narayana Institute of Cardiac Sciences, Bangalore for the treatment of his heart Ventricular Septal defect and since minor child of the complainant fell ill during the validity period of the said insurance policy and for that complainant and his family was medically insured with opposite parties No.1 & 2, as such complainant submitted the medical claim of his son with the opposite parties alongwith all the requisite documents. The total expenses which were incurred by the complainant on the treatment of his son were to the tune of Rs. 1,81,160/-.The medical bills are attached. The medical bills alongwith requisite documents were filed by the complainant with the opposite parties which were duly received by them. Copies of letter as well as claim and documents have been adduced on record. Later on opposite parties in a wrong and illegal manner repudiated the claim of the complainant vide repudiation letter by wrongly applying the exclusion clause 4.3 of the terms and conditions of the insurance policy. It is pertinent to mention over here that till date the insurance policy has never been supplied the terms and conditions of the policy nor there are any signatures of the complainant on any terms and conditions of the policy. The complainant has specifically taken a plea in that respect in his complaint and it was for the insurance company to prove that the terms and conditions of the insurance policy were duly communicated and explained to the complainant. Mere presumption that since complainant is regularly paying premium of the insurance policy does not oust the duty/liability on the part of the insurance company to prove that the terms and conditions of the insurance policy were duly communicated and explained to the complainant. The complainant has sought the following reliefs vide instant complaint :-
- Opposite parties be directed to pay the medical claim of Rs.1,81,16alongwith interest to the complainant.
- Compensation of Rs. 50000/- be also awarded to the complainant.
- Opposite parties be also directed to pay litigation expenses to the tune of Rs. 15000/- to the complainant.
Hence, this complaint.
2. Upon notice, opposite parties No.1 & 2 filed joint written statement contesting the claim of the complainant taking certain preliminary objections therein inter alia that complainant has filed a baseless, frivolous and an imaginary claim with an ulterior motive. The same is bad in law and cannot be entertained. The complainant has fabricated a false story with ulterior objectives to extract unlawful gains to which he is otherwise not entitled; that the complainant is estopped by his own act and conduct to file the present complaint and the present complaint is not maintainable under law, hence liable to be dismissed ; that the complainant does not fall within the ambit of consumer under section 2 of the Consumer Protection Act ; that no cause of action has been arisen to the complainant to file the present complaint as the averments of the present complaint does not depict any consumer dispute between the parties and the present complaint is premature ; that complainant has not approached this Forum with clean hands and is guilty of suppression of material facts from this Forum. On merits, it is admitted that complainant has lodged his claim with the replying opposite parties and the medical record of the son of the complainant was duly scrutinized and processed by opposite party No.3 and thereafter the claim of the complainant was repudiated as per terms and conditions contained in the policy especially condition No. 4.3, the said clause of the insurance policy is reproduced hereunder for ready reference:-
“ During the period of Twelve Months from the date of inception of policy, the expenses on the treatment of diseases such as cataract, Benign Prostatic Hypertrophy and Hysterectomy for Hemorrhagic, or Fibromyoma, Hernia, Hydrocele, Cogenital internal disease, Fistula in anus, piles, sinusitis and related orders are not payable.These diseases, if pre-existing, will be covered only as per provisions of 4.1 above.”
Keeping in view of the aforesaid terms and conditions of the policy, meaning thereby clause 4.3 of the terms and conditions of the policy is fully applicable to the facts of the present case as the son of the complainant was hospitalized from 4.9.2014 to 13.9.2014 with diagnosis LEVOCARDIA, DORV (TGA PHYSICOLOGY) VENTRICULAR SEPTA DEFECT WITH SEVERE PULMONARY STENOSIS WITH GOOD BIVENTRICULAR FUNCTION. He underwent left with Subclavian Artery TC LPA, Left modified BLALOCK TANSSING’S WITH SHUNT USING 5MM GORETEX GRAFRT ON 5.9.2014). The aforesaid disease is termed as congenital, internal disease which is not covered for the first 12 months of inception of cover as per clause 4.3 as mentioned in the preceding para of the written version. It is pertinent to mention over here that insurance is subject to terms and conditions of the policy and the same are having legally binding force between the parties to the contract of insurance. The complaint is false and frivolous and a prayer for dismissal of the complaint with cost was made.
3. Opposite party No.3 was duly served but none put in appearance and as such opposite party No.3 was ordered to be proceeded against ex-parte .
4. In his bid to prove the case Sh.Vinay Khera,Adv.counsel for the complainant tendered into evidence affidavit of the complainant Ex.C-1 alongwith documents Ex.C-2 to Ex.C-24 and closed the evidence on behalf of the complainant.
5. To rebut the aforesaid evidence, Sh.Subodh Salwan ,Adv.counsel for opposite parties No.1 & 2 tendered into evidence affidavit of Sh.Vinod Kumar Mahajan,Divisional Manager Ex.OP1,2/1, copy of repudiation letter Ex.OP1,2/2, copies of insurance policies Ex.OP1,2/3 to Ex.OP1,2/11, affidavit of Dr.A.K. Batra Ex.OP1,2/12, copies of operational notes Ex.OP1,2/13, copies containing definition of disease Ex.OP1,2/14, copy of medical terminology of disease in question Ex.OP1,2/15, copy of terms and conditions of the policy Ex.OP1,2./16 and closed the evidence on behalf of opposite parties No.1 & 2.
6. We have heard the ld.counsel for the parties and have carefully gone through the record on the file.
7. On the basis of the evidence on record ld.counsel for opposite parties No.1 & 2 has vehemently contended that the claim of the complainant has been repudiated keeping in view the terms and conditions of the policy especially exclusion clause 4.3 of the policy in which it is clearly mentioned that it does not cover the expenses incurred congenital internal disease for first 12 months of the inception of the cover. For reaching on a conclusion, it is necessary to understand the meaning of internal congenital Anomaly/defect/disease which is clearly specified in Ex.2/14 and Ex.2/2015 on record and the same are reproduced as under:-
“Definition of internal congenital anomaly/defect/disease means congenital anomaly which is not visible and accessible parts of the patient and in the present case the patient was hospitalized with diagnosis,
‘Lavocardia Dorv (TGA Physiology, Venticullar Septa defect with severe pulmnonary, Stenosis with good biventuallar function’
These congenital anomalies of hear vessels were surgically operated upon. Copy of detailed operated notes is Ex.2/13
Levocardia is a medical condition where the heart is on the correct left side the body (the left side), but the related structure on the wrong side, either due to correct transposition of the great vessels or to inversus.
8. The aforesaid defect/disease/anomaly clearly falls within the ambit of internal congenital Anomaly/defect/disease which is not covered within 12 months of inception of policy cover. The documentary evidence on record clearly shows that the complainant’s son namely Parth had taken the medical treatment after seven months from the endorsement with respect to his name was made in the policy. Since the endorsement was made on 20.2.2014, while the treatment was taken from 4.9.2014 to 13.9.2014, therefore, the expenses on the medical treatment are not payable to the complainant keeping in view of the terms and conditions of the policy . As such the claim of the complainant has rightly been repudiated . Even the documents produced on record by the complainant fortified the stand taken by the Insurance company. As the law on the subject is concerned, the Hon’ble Apex Court in Suraj Mal Ram Niwas Oil Mills (P) Ltd –Appellant Vs. United India Insurance Company & Anr.2010 (IV) CPJ page 38 has held that in interpreting documents relating to contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract. The terms of the policy have to be construed as it is and we cannot add or subtract something. Howsoever liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended. In an another case reported in Bawa Singh- Appellant Vs. MD India Health Care Services & Others- Respondents 2015(2) CLT page 418 the Hon’ble Punjab State Commission has held that terms and conditions of the policy- in case the complainant is basing his claim on the basis of policy taken by him, there is presumption that he must have gone through the terms and conditions of the policy.
9. Ld.counsel for the opposite parties No.1 & 2 has further contended that the present complaint has been filed against opposite partyNo.1 i.e. Chairman-cum-Managing Director of National Insurance Co.Ltd having its registered office at Kolkata (Calcutta). It is worth while to mention over here that the Divisional Manager of local divisional office is duly authorized to conduct the proceedings on behalf of insurance company in this Forum. Moreover, the policy in question was issued by the local branch office having its branch office at The Mall,Amritsar and therefore, the Chairman-cum Managing Director of National Insurance Co.Ltd has unnecessarily been impleaded as opposite party No.1 in the present complaint . In this regard the replying opposite parties have already moved an application for deletion of name of opposite party No.1 from the array of the parties. But it was ordered by the Forum that matter shall be taken into consideration at the time of final arguments and it is contended that name of opposite party No.1 may be deleted from the array of the opposite parties as the local divisional manager of Divisional Office is well conversant with the facts of the present complaint. In view of the aforesaid contentions, ld.counsel for the opposite parties have vehemently contended that claim of the complainant has rightly been repudiated by the opposite parties vide repudiation letter dated 27.11.2014. The complaint has no force and therefore, the same may be dismissed accordingly with cost.
10. However, from the appreciation of the facts and circumstances of the case, it becomes evident that the claim of the complainant has wrongly been repudiated by the opposite parties No.1 & 2. The defect from which the son of the complainant was suffering from was Levocardia, DORV, Ventricular Septal defect, Severe Pulmonary Stenosis. The medical literature for all these terms is already on record which is Ex.C-26, wherein, their nomenclature is explained as under:-
Levocardia :It is a medical condition in which heart is on the correct i.e. left side of the body.
DORV :Double Outlet Right Ventricle is a rare congenital heart
defect involving great arteries.
Ventricular :It is also a Congenital Heart Defect
Septal defect
Severe
Pulmonary
Stenosis : Pulmonary valve stenosis is a condition in which a deformity on or near your pulmonary value, the valve that influences the blood flow from your heart to your lungs, slows the blood flow. Adults occasionally have the condition as a complication of another illness, but mostly, pulmonary valve stenosis develops before birth as a congenital heart defect.
All these conditions refer to congenital heart defect whereas a per exclusion clause 4.3 (vide which the claim of the complainant has been wrongly repudiated) only excludes Congenital Heart Disease and not defect. This fact has already appreciated by the Hon’ble State Commission against the opposite parties in National Insurance Co. Ltd. Versus Mukesh Kumar Arora 2005(2) CPJ 723.
Para 9 and para 10 the Hon’ble State Commission has completely discussed that in case of congenital heart defect exclusion clause 4.3 cannot be applied as exclusion clause No. 4.3 is only applicable in case of Congenital Internal diseases and not in case of Congenital Heart defects.
11. It is further held that the disease and defect cannot be referred to as one and the same thing. This aspect has also been appreciated in citation as stated above that it is the only internal disease which has been excluded and not internal defects in exclusion clause 4.3. Moreover the exclusion clause 4.3 use the words “During the period of 12 months from the date of inception of the policy the expenses on the treatment of disease….. Congenital Internal Disease…..are not payable”. It is pertinent to mention over here that age of the child when he was hospitalized for treatment was only 10 months. No any allegation on the part of the complainant can be imputed that he willfully did not disclose the defect of his son while taking the policy as at that time, age of his son Parth was only 3 months. So there cannot be any suppression of facts on the part of the complainant nor that complainant was aware of the defect and has willfully suppressed the material fact from the Insurer. Moreso, no evidence was adduced on record by the opposite party that complainant was aware of the defect or he was guilty of suppression of material facts . In this connection reliance can be placed upon the Hon’ble National Commission judgements as reported in Harjeet Kaur-Petitioner Vs. National Insurance Co.Ltd. & Ors.-Respondents 2009(3) CPJ (NC) 196 .In the present complaint there are no allegations on the part of the complainant regarding the breach of condition of insurance contract. So the citation Suraj Mal Ram Niwas Oil Mills (P) Ltd –Appellant Vs. United India Insurance Company & Anr. (Supra) as relied upon by the opposite party is not applicable to the facts of the present case.
12. So far as the deletion of opposite party No.1 from the array of the opposite parties is concerned, the contention of the opposite party does not appears to be tenable . Opposite party No.1 is a necessary party for the complete adjudication of the case because it is the registered office of the National Insurance Co., whereas opposite party No.2 is just a branch office of opposite party No.1 . Arraying of the registered office in the present complaint as party is necessary for complete adjudication of the case. Therefore, request of the opposite party for deletion of opposite party No.1 from the array of the parties, is not tenable and the same stands declined.
13. From the appreciation of the facts and circumstances of the case, it becomes evident that the complainant has made out a case for insurance claim. Medical bills copies whereof are Ex.C-16 to Ex.C-23 & the amount incurred therein when calculated comes to Rs. 1,81,160/-, to which the complainant is entitled to recover from opposite parties under Insurance policy in dispute. Since opposite parties have repudiated the genuine claim of the complainant, as such, they are held deficient in service.
14. Consequently the claim of the complainant succeeds and opposite parties are directed to reimburse the mediclaim to the tune of Rs.1,81,160/- in favour of the complainant alongwith interest @ 9% p.a. from the date of filing of the claim until full and final recovery. Cost of litigation is assessed at Rs. 2000/-. Compliance of this order be made within 30 days of the receipt of copy of the order . 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 : 21.6.2016
