BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 641 of 2015
Date of Institution:26.10.2015
Date of Decision: 22.7.2016
Mr. Nipun Kathuria S/o Mr. Kapil Kathuria R/o 44-A, Krishna Square I, Batala Road, Amritsar aged 35 years
Complainant
Versus
National Insurance Company Ltd. Through its Chairman/Managing Director/Principal Officer service through its branch office at Batala Road, Near Gagan Cinema, Amritsar through its branch manager
Opposite Party
Complaint under section 12 & 13 of the Consumer Protection Act, 1986 as amended upto date.
Present: For the Complainant : Sh.Deepinder Singh, Advocate.
For the Opposite Party : Sh.S.K.Davessar,Advocate
Coram:
Sh.S.S.Panessar President
Ms.Kulwant Kaur Bajwa, Member
Mr.Anoop Sharma, Member
Order dictated by:
Sh.S.S.Panessar,President.
- Nipun Kathuria complainant has filed the present complaint under section 12 & 13 of the Consumer Protection Act on the allegations that complainant has taken health insurance policy for himself, his wife and two children from the opposite party vide policy note No. 404402/48/13/8500001033 covering risk period from 14.8.2013 to 13.8.2014. Copy of the policy note is annexed. The complainant is a consumer as provided under the Act and is competent to invoke the jurisdiction of this Forum. The son of the complainant namely Devasaya Kathuria unfortunately fell ill and was to be hospitalized at Miglani Child Surgery Centre, Amritsar for the treatment of Torsion ( R ) Testis and to underwent surgical procedure from 29.11.2013 till 1.12.2013. Hospitalization and treatment cost came to Rs. 35044/-. Claim bills were filed with the opposite party, but the opposite party vide its letter dated 1.4.2015 repudiated the claim on the ground that the claim was not payable as the Genito Uro Surgeries are not covered under the said policy for first two years. Opposite party without ascertaining the correct facts that the said surgery was not for genetic defect and was only an emergency measure and had repudiated the genuine claim of the complainant on flimsy ground. It is pertinent to mention over here that no policy terms and conditions were ever conveyed to the complainant by the opposite party. The aforesaid act of the opposite party in not settling the genuine claim of the complainant is an act of deficiency in service, unfair trade practice and is not sustainable in the eyes of law which has caused lot of mental tension, agony and harassment to the complainant . The complainant has sought for following reliefs vide instant complaint :-
- Opposite party be directed to pay the claim of Rs. 35044/- alongwith interest @ 12% p.a. ;
- Compensation to the tune of Rs. 50000/- may also be awarded to the complainant.
- Litigation expenses be also directed to be paid to the complainant.
Hence, this complaint.
2. Upon notice, opposite party appeared and contested the complaint by filing written reply taking certain preliminary objections therein inter alia that complainant has not come to this Forum with clean hands much less the relief sought is available to the complainant as envisaged under the law and as such the present complaint merits dismissal on this simple score alone It is pertinent to mention that Master Devasaya Kathuria was admitted at Miglani Hospital for the torsion rights tests on 29.11.2013 and was discharged on 1.12.2013. The date of policy inception was 14.8.2013. As per policy terms and conditions Genito Uro Surgeries are not covered in first two years of the policy. It is pertinent to mention that after considering the facts and circumstances of the case, dedicated health care services TPA (India) Pvt.Ltd i.e third party Administrator opined that the claim is inadmissible under clause 4.3 of the terms and conditions of the Insurance policy. Even keeping in view the terms and conditions of the Insurance coverage, opposite party has also arrived at the conclusion that the claim is inadmissible on account of the reasons as stated above. As such the impugned claim was rightly repudiated and the present complaint merits dismissal on this simple score only ; that there is neither any deficiency in service nor any unfair trade practice on the part of the replying opposite party especially keeping in view the treatment obtained by Master Divasaya Kathria, the impugned claim is not at all payable ; that present complaint is vague, ambiguous, without any basis and the complainant has miserably failed to furnish requisite particulars in order to substantiate the pleas as alleged in the complaint and as such the relief sought is not available to the complainant. On merits facts narrated in the complaint have been specifically denied on the lines as taken in the preliminary objections of the written statement and a prayer for dismissal of the complaint with cost was made.
3. In his bid to prove the case Sh.Deepinder Singh,Adv.counsel for the complainant tendered into evidence affidavit of the complainant Ex.C-1, copy of Insurance cover note Ex.C-2, copy of repudiation letter Ex.C-3, copy of discharge card Ex.C-4, copy of certificate dated 10.4.2015 Ex.C-5 and closed the evidence on behalf of the complainant.
4. To rebut the aforesaid evidence Sh.S.K.Davessar,Adv.counsel for the opposite party tendered into evidence affidavit of Sh.Parveen Mehra, Deputy Manager Ex.OP1, copy of discharge summary Ex.OP2, copy of Insurance policy documents alongwith terms and conditions Ex.OP3, copy of process sheet Ex.OP4, copy of USG Scrotum Ex.OP5, copy of general OPD Ex.OP6 and closed the evidence on behalf of the opposite party.
5. We have heard the ld. Counsel for the parties and have carefully gone through the record on the file.
6. Ld.counsel for the opposite party Sh.S.K.Davessar has vehemently contended that son of the complainant namely Devasaya Kathuria was admitted at Miglani Hospital for the torsion rights testis on 29.11.2013 and was discharged on 1.12.2013. Copy of the discharge summary is Ex.OP2. From the perusal of the document, it becomes quite evident that as per diagnosis it revealed that it is a case of torsion ( R ) Testis and in respect thereof the operation was performed which is quite evident from the perusal of the discharge card itself. It is further pertinent to note that it is a case of Genito Uro Surgeries and is not covered within the purview of insurance policy coverage in the first two years of the policy. In order to appreciate the fact whether the treatment relates to Genito Uro Surgeries the perusal of the Oxford Medical Dictionary is quite evident keeping in view the meanings of vital terms of medical terminology which reads as under :-
The meaning of word Torsion: the act of twisting dystonia a disorder of basal ganglia exhibiting a prolonged muscular contraction and the part of the body thrown into spasm of testicle twisting of the cord that is attached to a testicle. It interrupts its blood supply and may destroy it.
The meaning of word Testis: The male gonad situated on either side in the scrotum, produces sperms and testosterone. Each testis contains hundreds of compartments containing tiny tubes called somniferous tubules in which sperms are produced. Sperms mature in the epididymis at the back of the testis before passing into the vas deferens determining factor a protein encoded by a gene on the short arm of Y chromosome which is responsible for development of primary male organs.
The meaning of word Genitouurinary:- Pertaining to the genitals and the urinary organs (kidneys, ureters, urinary and urethra).
Relevant copies of dictionary meaning are enclosed and from the perusal of the same as stated above, it becomes quite evident that the treatment obtained relates to Genito Uro Surgery and as such the opposite party rightly arrived at the conclusion that the claim is not payable. In the present case the insurance policy is having date of inception as 14.8.2013 and as per the policy terms and conditions Genito Uro Surgeries are not covered in first two years of the policy and as such the claim is not admissible under clause 4.3 of the terms and conditions of the insurance policy, copy whereof is Ex. C-2 on record. Opposite party has placed reliance upon 2010(3) Apex Court Judgements 714 (SC) wherein it has been held that when there is a breach of terms of the policy, insurance company is justified in repudiating the claim. Repudiation letter Ex.C-3 dated 1.4.2015 is on record.
7. In view of the aforesaid facts and circumstances of the case, ld.counsel for the opposite party has vehemently contended that it becomes quite evident that impugned claim is not admissible as per terms and conditions of the insurance coverage and in respect thereof it was rightly repudiated and the complainant was duly conveyed in respect thereof and as such there is neither any deficiency in service nor any unfair trade practice on the part of the opposite party and the present complaint is liable to be dismissed.
8. But, however, from the appreciation of the evidence on record, it becomes evident that complainant had obtained family health policy from the opposite party for himself, his wife and two children. Unfortunately son of the complainant namely Devasaya Kathuria during the period of insurance fell ill and was to be hospitalized to undergo surgical procedure and had to remain in the hospital w.e.f. 29.11.2013 to 1.12.2013. The treatment cost came to Rs. 35,044/- which was paid by the complainant as the complainant and his family was insured for an amount of Rs. 1 lac. Opposite party, however, repudiated the genuine claim of the complainant vide its letter dated 1.4.2015 on the ground that Genito Uro Surgeries are not covered under the policy. The point involved in the present complaint is that whether the repudiation done by the opposite party was valid or not ? The further point for decision before this Forum has been conduct of the opposite party . The opposite party has repudiated the claim of the complainant after more than one year and three months of the filing of the claim while the claim was filed on 1.12.2013, the repudiation was made on 1.4.2015 , which itself is deficiency in service.
9. The legal point whether the said surgery conducted on the son of the complainant was for the removal of genetic defect or not ? It is quite pertinent to mention over here that the complainant has placed on record certificate of treating surgeon Ex.C-5 which cleary states that the said surgery was not for any genetic defect removal. On the other hand the opposite party has failed to prove any other cogent or medical evidence to prove that the said surgery was for removal of genetic defect. No medical specialist or medical text was placed on record to rebut the medical evidence adduced by the complainant. It is settled principle of law that in case of dispute, opinion of the treating doctor is to prevail over the other evidence.
10. From the aforesaid discussion, it transpires that the genuine claim of the complainant has been repudiated by the opposite party without any reasonable excuse. It is usual with the insurance companies to show green pastures to the consumers when they are to sell their policies. But however when it comes to the payment for claim, they invent all sort of excuses to deny the claim. Reliance in this connection can be had on the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy.
The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
The complainant has proved on record that the complainant had incurred a sum of Rs. 35,044/- on the treatment of his son. It has not been denied by the opposite party that the complainant has incurred a sum of Rs. 35,044/- on the surgery of his son. The Insurance policy in dispute was in vogue during the period of medical treatment of the son of the complainant. As such it becomes quite evident that the complainant is entitled for the payment of Rs. 35,044/- as refund of the medical expenses incurred by the complainant on the treatment of his son Devasaya Kathuria. The amount is ordered to be paid with interest @ 9% p.a. from the date of order until full and final recovery. Cost of litigation are assessed at Rs. 2000/-. Compliance of this order be made within a period of 30 days from the date of receipt of copy of order ; failing which, complainant shall be at liberty to get the order executed through the indulgence of this Forum. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Forum
Dated: 22.7.2016.
/R/
