D.R. TAMTA, MEMBER
The complainants have filed the present complaint against the O.P u/sec. 12 of Consumer Protection Act, 1986. The facts as alleged in the complaint are that the complainant had purchased a Mediclaim policy from the OP against premium since 2002 onwards and lastly complainant renewed his medical policy through agent of the OP having policy No.360102/48/10/8500001629 for himself and his family members against premium of Rs.22,481/- valid for the period from 06.09.2011 to 05.09.2012. It is alleged that on 25.01.2012 the complainant’s wife was got admitted in Asian Surgicentre Pvt. Ltd. At Ahmadabad, Gujrat with sever leg pain, breathlessness, chest pain and after conducting all the tests, doctors opined the complainant for conducting surgery for Mini Lap Sleeve Gastrectomy for saving his life, then having no other option, the complainant consented for the same and his operation was done and he remained admitted there from 25.01.2012 to 27.01.2012. It is alleged that the complainant incurred a sum of Rs.3,50,000/- on the treatment of his son towards medicine, Tests, Surgery fees and all other hospital charges etc. It is alleged that the complainant informed the OP at its Gujrat Branch telephonically regarding hospitalization of his wife. It is alleged that after discharge from the Hospital, the complainant submitted his claim with OP and as per the specific directions, submitted all the treatment documents and bills. It is alleged that thereafter, the complainant contacted the OP and requested for reimbursement of the expenses incurred by the complainant on the treatment of his wife but no response was received from the OP. It is alleged that as per directions of OP, the complainant again supplied copies of all required documents to the OP on 12.06.2012. It is alleged that complainant came to know about the repudiation of complainant on the pretext that “claim for obesity and its complication is a permanent exclusion under clause 4.4.6.” It is alleged that after receiving the information, complainant gone through the contents of terms and conditions of the policy and was shocked to point out that there is no terms and condition numbering as 4.4.6. It is alleged that at the time of repudiating the claim, OP did not consider that the policy is not only continuous since 2002 onwards but also same is claim fee, hence, the act of the OP of repudiation of the claim is illegal, arbitrary and unwarranted amount to unfair trade practice. It is alleged that as per requirement of the OP, the complainant submitted all necessary and requisite document with OP but till date the OP has not reimbursed the expenses incurred by the complainant. It is alleged that when all efforts of the complainant for getting his claim resolved turned futile, then having no option, the complainant issued a legal notice on 1.4.2013 but despite service of legal notice, the OP neither replied the said not nor complied with it. It is alleged that OP has acted in contravention of terms and conditions of the policy and till date have not reimbursed the expenses incurred by the complainant despite repeated request and visits which amounts to deficiency in service. It is alleged that due to the acts of the OP, not only the complainant but also his family members have suffered a lot as they could not receive the claim amount at the relevant time when the same is required. It is alleged that complainant has to suffer financially as well as mentally because even after paying huge amount towards premium that too without any delay or default, the complainant could not get the insurance amount for which he legally entitled and the OP withhold the insured sum illegally for which the OP is liable to pay interest on the insured sum. On these facts complainants prays that O.P be directed to pay a sum of Rs.2,00,000/- with interest @ 24% p.a. apart from cost and compensation as claimed.
2. O.P appeared and filed the written statement. It has not been disputed that complainant had purchased a Mediclaim policy from the OP against premium since 2002 onwards and lastly complainant renewed his medical policy through agent of the OP having policy No.360102/48/10/8500000891 for himself and his family members against premium of Rs.19,257/- valid for the period from 30.08.2010 to 29.08.2010. It is alleged that the claim has been bonafide repudiated on the grounds of exclusion clause 4.19 of the policy. It is also alleged that as per the clause “treatment for obesity or condition arising there from (including morbid obesity) and any other weight control program/ services/ supplies and as per the exclusion clause 4.4.6 the claim for obesity and it is permanent exclusion. It is further alleged that as the complainant has undergone cosmetic surgery which is specifically as such is included in the exclusion clause of the policy. Therefore the repudiation of the claim on valid ground is no deficiency in service. It is alleged that the complainant did not inform the third party administrator within 24 hours of admission in the hospital and as such as breached the condition of the policy, therefore, the repudiation was justified. Dismissal of the complaint has been prayed for.
3. Complainant has filed his affidavit in evidence testifying all the facts as alleged in the complaint. On the other hand, Ms. Rashmi Bajra, Asst. Manager has filed her affidavit on behalf of O.P reiterating all the facts as mentioned in the written statement. Parties have also filed their respective written submissions.
4. We have carefully gone through the record of the case and have heard submission of Ld. Counsel for the complainant.
5. It is not disputed that the complainant had purchased the mediclaim policy from the OP. The OP has repudiated the claim of the complainant on the basis of terms and conditions of exclusion clause 4.19 policy which clearly states as “Treatment for Obesity or condition arising there from (including morbid obesity) and any other weight control program/services/supplies and as per the exclusion clause 4.4.6 the claim for obesity and it is permanent exclusion”. The issue which arises before this Forum is that as to what is the status of terms and conditions contained in the contract/agreement which have been accepted by a consumer? Whether consumer forum, which has been constituted under Consumer Protection Act, is empowered to decide the validity of terms and conditions contained in the agreement?
6. In Homoeopathic Medical College and Hospital, Chandigarh Vs. Miss Gunita Virk I (1996) CPJ 37 (NC) which decision has been given by a five member bench consisting of Hon’ble President and four Hon’ble Members of the Hon’ble National Commission, in this decision the complainant had taken admission in the Medical College which had made a provision in the prospectus making the fee non-refundable. Question arose whether consumer fora, under the Consumer Protection Act, have jurisdiction to check validity of such clause in the prospectus? The answer was given in the negative by five member bench of Hon’ble National Commission. It was held that “fora constituted under the Consumer Protection Act have no jurisdiction to declare any rule in the prospectus of any Institution as unconscionable or illegal. It is for the Civil Court to determine this point”.
7. In view of the reasons given above, this Forum can only enforce the terms and conditions in the agreement between the parties. We are of the considered opinion that complainant is not entitled for any relief. Complaint is, therefore, dismissed.
Copy of this order be sent to the parties by Registered post and thereafter the file be consigned to record room.
Announced this 26th day of February, 2015.
(BABU LAL) (D.R. TAMTA) (SHAHINA)
President Member Member
