BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FEROZEPUR.
C.C. No.286 of 2014 Date of Institution: 7.8.2014
Date of Decision: 18.12.2014
Sushil Kumar Malhotra, Son of Lajpat Rai Malhotra, resident of Dhashmesh Nagri, Near Water Works No.4, Jalalabad (W), District Fazilka.
....... Complainant
Versus
1. National Insurance Compnay Limited, Branch Office Malwal Road, Ferozepur, through its authorized signatory.
2. Vipul Medcorp TPA Private Limited, SCI No.98, First Floor, Industrial Area, Phase-2, Chandigarh, through itsAuthorized Signatory.
....... Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
* * * * *
PRESENT :
For the complainant : Sh. Rajesh Kumar Dua, Advocate
For the opposite parties : Sh. B.R. Arora, Advocate
QUORUM
S. Gurpartap Singh Brar, President
S. Gyan Singh, Member
ORDER
GURPARTAP SINGH BRAR, PRESIDENT:-
Brief facts of the complaint are that the complainant purchased a Hospitalization Benefit Medi-claim policy from opposite party No.1 for
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himself and his wife and the complainant has been paying the premium amount to opposite party No.1 regularly for the last about 20 years and the policy of complainant and his family members was being renewed by opposite party No.1 every year. Opposite party No.1 issued the policy to the complainant every year and the latest policy bearing No.8800140531000137 dated 31.5.2014 for the period from 1.6.2014 to 31.5.2015 and the complainant paid the premium amount of Rs.17,598/- to opposite party No.1. Opposite party No.2 is TPA appointed by opposite party No.1 for settling the claim filed by the insured persons, who are insured with opposite party No.1. Further it has been pleaded that during the insured period, as and when the complainant fell ill and submit the claim, the opposite parties settled the claim of the complainant time to time. Prior to the present policy, a policy bearing No.401701/48/12/85/00000120 for the period from 1.6.2012 to 31.5.2013 and the complainant paid the premium of Rs.11,992/- to opposite party No.1. During the said period, the complainant fell ill and firstly he was admitted at Chugh Hospital, Jalalabad(W) for the period from 17.11.2012 to 25.11.2012 and from there he was referred to Anil Baghi Hospital, Ferozepur, where he remained admitted for the period from 30.11.2012 due to breathing problem in the chest and the complainant spent an amount of Rs.66,709/- i.e. Rs. 17,611/- at Chugh Hospital and Rs.49,098/- at Anil
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Baghi Hospital, on his treatment. The complainant informed the opposite parties regarding his admission in the hospital within time as per the conditions of the opposite parties. Thereafter, the complainant submitted his claim with opposite party No.1 and the employees of opposite party No.1 told the complainant that his claim will be forwarded to opposite party No.2 and the complainant will contact directly to opposite party No.2 for the speedy settlement of claim as per the advice of opposite party No.1. The complainant approached and requested opposite party No.2 to settle his claim by moving written applications and opposite party No.2 ultimately rejected the claim of complainant on the ground that as per medical certificate given by treating doctor, presenting ailment is a complication of chronic smoking and as per the terms and condition of the policy, ailments/diseases due to intentional self injury and misuse or abuse of drug or use of intoxicating substances are not payable under Clause 4.8/medical policy. The opposite parties have wrongly repudiated the claim of the complainant. Pleading deficiency in service and unfair trade practice on the part of the opposite parties, the complainant has prayed that the opposite parties be directed to settle the claim of Rs.66,709/- alongwith interest @ 24% per annum from the date of filing of claim till realization. Further a sum of Rs.25,000/- has been claimed as compensation and Rs.5500/- as litigation expenses.
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2. Upon notice, opposite party Nos.1 and 2 appeared and filed there written reply to the complaint, wherein it has been pleaded that as per exclusion clause 4 along with clause 4.1 of the terms and conditions of the policy, pre-existing diseases are covered only if the previous continuous four years of insurance of the complainant from National Insurance Company are claim free and no claim has been taken by the complainant in these four years of insurance. If during the last four years of the insurance of the complainant from National Insurance Company, the complainant has taken any claim from National Insurance Company, then pre-existing diseases are not covered. As per medical record and medical certificate of treating doctors produced by the complainant, he has been Chronic Smoker With COPD with IHD HTN T/C Seizure Cause CVA B/L Cerebellar Infarct with Cerebral Atrophy and main cause of this decease of the complainant is due to the long term exposure to the cigarette smoke. From the discharge vouchers and claim forms as well as his own admission of the complainant in Para No.3 of the complaint, it is clear that the last four years of insurance of the complainant were not claim free and he has already taken claims in the past four years. Since the complainant has already taken claim in the past four years from National Insurance Company, no claim in respect of pre-existing diseases according to clause 4.8 of the Medi-claim policy is payable. Therefore, the claim of the complainant has been rightly
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repudiated by the opposite parties. Other allegations of the complaint have been denied and dismissal of the complaint has been prayed for.
3. Learned counsel for complainant tendered into evidence Ex. C-1 to Ex.C-66 and closed evidence on behalf of the complainant. On the other hand, learned counsel for the opposite party Nos.1 & 2 tendered into evidence Ex. OP-1 & 2/1 to Ex. OP-1 & 2/14 and closed evidence on behalf of opposite party Nos.1 and 2.
4. We have heard the learned counsel for the parties and have also gone through the file.
5. Purchase of Medi-claim policy Ex.C-65 by the complainant for himself and his wife Santosh Malhotra for the period from 1.6.2014 to 31.5.2015 and treatment of the complainant during subsistence of this policy have been admitted. However, the insurance claim of the complainant on account of his treatment has been repudiated by the opposite parties vide letter dated 24.1.2013 Ex.C-21 relying upon Clause 4.8 of the Terms and Conditions of Medi-claim policy, on the ground that as per medical certificate given by the treating doctors, presenting ailment was a complication of chronic smoking and as per terms and conditions of the policy, ailment/diseases due to intentional self injury and misuse of abuse of drug or use of intoxicating substances are not payable under Clause 4.8 of the Mediclaim Policy. In their written reply, the opposite
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parties have also made reference of exclusion Clause 4.1 of the terms and conditions of the policy, copy of which has been placed on file by the opposite parties as Ex.OP-1 & 2/5. A perusal of Clause 4.1 of the terms and conditions of Mediclaim policy reveals that all diseases/injuries, which are pre-existing when the cover incepts for the first time. However, those diseases will be covered after four continues claim free policy years and for the purpose of applying this condition, the period of cover under Mediclaim policy taken from National Insurance Company will be considered. The complainant has specifically pleaded in Para No.2 of the complaint that he has been regularly paying the premium for the Hospitalization Benefit Mediclaim policy to opposite party No.2 for the last about 20 years and the policy of the complainant and his family members were being renewed by the opposite parties every year till date. This fact has not been denied by opposite parties, which even otherwise is apparent of copy of Mediclaim policy placed on file by the complainant as Ex.C-54 to Ex.C-65. Therefore, the complainant and his family members were not insured for the first time with the opposite parties, rather, they have been purchasing the Mediclaim policies from the opposite parties for the last so many years. In repudiation letter dated 24.1.2013 Ex.C-21, it has been opined that as per medical certificate given by treating doctor, presenting ailment is a complication of chronic smoking, but no duration of
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the alleged chronic smoking has been disclosed in this letter. Moreover, as per Clause (b) of Section 28 of the Contract Act, 1872, which for facility of reference is extracted below, every agreement, which restricts or limits the time within which he may thus enforce his rights is bad :-
“28. Agreements in restraint of legal proceedings, void -
(a) - - - - - - - - -
(b) Every agreement, which extinguishes the rights of any party thereto, or discharges any party thereto from any liability, under or in respect of any contract on the expiry of a
specified period so as to restrict any party from enforcing his rights, is void to that extent.”
In the present case also the complainant has purchased the Mediclaim policy Ex.C-65 for himself and his wife, but his insurance claim on account of his treatment has been repudiated by the opposite parties taking the shelter of clause 4.1 and 4.8 of the policy in question. Therefore, the complainant has been restricted from enforcing his right, which is against the provisions of Section 28 (b) of the Contract Act, 1872. Moreover, the Hon’ble Supreme Court of India has also laid down a law in “A.V.M. Sales Corporation Versus M/s Anuradha Chemicals Private Limited”, 2012 (1) Civil Court Cases 643 (S.C.) that what Section 28 read with Section 23 does, is to make it very clear that if any mutual agreement is
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intended to restrict or extinguish the right of a party from enforcing his/her right under or in respect of a contract, by the usual legal proceedings in the ordinary Tribunals, such an agreement would to that extent be void and the parties cannot contract against a statute. Therefore, in view of the law laid down by the Hon’ble Supreme Court of India, in the above referred authority, Clause 4.1 and 4.8 of the Terms and Conditions of the Mediclaim policy in question cannot be attracted in the present case and the opposite parties were not justified in repudiating the claim of the complainant on this ground. The complainant is held entitled to insurance claim under Mediclaim policy in question on account of his treatment. The opposite parties are guilty of rendering deficient service to the complainant. The complainant has claimde a sum of Rs.66,709/- i.e. Rs.17,611/- spent at Chugh Hospital and Rs.56,089/- at Anil Baghi Hospital. The amount claimed by the complainant on account of his treatment has not been disputed by the opposite parties. Therefore, the complainant is entitled to a sum of Rs.66,709/- on account of his treatment.
6. In view of what has been discussed above, this complaint is accepted and the opposite parties are directed to pay a sum of Rs.66,709/- as insurance claim on account of treatment of the complainant along with interest @ 9% per annum from the date of filing the present complaint i.e. 7.8.2014 till realization. Further the opposite parties are directed to pay a
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sum of Rs.2000/- as litigation expenses to the complainant. This order is directed to be complied with within a period of thirty days from the date of receipt of a copy of this order. File be consigned to the record room.
Announced 18.12.2014
(Gurpartap Singh Brar)
President
(Gyan Singh )
Member
