Haryana

StateCommission

A/1240/2018

ORIENTAL INSURANCE COMPANY LTD. - Complainant(s)

Versus

OMBIR SINGH AND OTHERS - Opp.Party(s)

SWATANTAR KAPOOR

17 Dec 2019

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

 

First Appeal No.1240 of 2018

Date of Institution:06.11.2018

Date of Decision:17.12.2019

 

 

1.      Oriental Insurance Co Ltd. Court Road, Payal Cinema,
Sector 14,Gurgaon.

 

2.      E-Meditek Company, The Corporate Office, Plot No.577, Udyog Vihar, Phase 5, Gurgaon-122016.

 

…Appellants

Versus

 

Ombir Singh, Resident of B-70, Surya Vihar, Near Sector-4, Gurgaon-12200.

 

…Respondent

 

CORAM:   Mr.Harnam Singh Thakur, Judicial Member.
                   Mrs. Manjula, Member.

 

Present:-    Ms.Swatantar Kapoor, Advocate for the appellants.

                   Mr.Chand Ram Olla, Advocate for the respondent.

                  

                                      O R D E R

 

HARNAM SINGH THAKUR, JUDICIAL MEMBER:

 

 

There is a delay of 16 days in filing the appeal, on the grounds mentioned in the application for condonation of delay and in the interest of justice, delay of 16 days is allowed.

2.      The present appeal has been preferred against the order dated 16.08.2018 passed by the District Consumer Disputes Redressal Forum, Gurgaon (in short ‘District Forum’) vide which the complaint was allowed and directed the opposite parties to pay the amount of Rs.4,00,000/- to the complainant and O.Ps. were further directed to pay Rs.5000/- as compensation for mental agony, harassment as well as litigation expenses.

3.      The brief facts giving rise to the complaint are that he purchased Happy Family Floater Policy Silver Plan from opposite party No.2. The Opposite party No.1 was TPA of O.P.No.2. Due to heart problem, he admitted in Fortis Hospital on 05.04.2016 and was discharged on 07.04.2016.  He spent Rs.2,45,648/- on his treatment.  Claim filed with the O.Ps., but,  the O.Ps. paid only a sum of Rs.1,80,000/-.  He requested the O.Ps. to pay the balance amount of Rs.41084/-, but, all in vain.  He was again admitted in the hospital and spent Rs.25,000/- on his treatment.  This amount was also not paid by the O.Ps. There was deficiency in service on the part of the O.Ps.

4.      Upon notice,  O.P. No.1 failed to appear despite service, he was proceeded ex parte vide order dated 17.10.2017.  Opposite party No.2 contested the complaint and alleged that after investigation of the claim, it was revealed that complainant underwent coronary angiography for which he spent Rs.2,45,648/- and claim was restricted to Rs.2,00,000/-, which was paid. The claim of the complainant has been decided after deducting 10% of the claim amount as per co-pay clause. There was no deficiency in service on the part of the O.P. No.2.

5.      After hearing both the parties, District Consumer Disputes Redressal Forum, Gurgaon (In short “District Forum”) allowed the complaint vide impugned order dated 16.08.2018 and granted relief is mentioned in para No.2 of the order.

6.      Feeling aggrieved therefrom, O.Ps. have preferred this appeal.

7.      The argument have been advanced by Ms.Swatantar Kapoor, the learned counsel for the appellants as well as Sh.Chand Ram Olla, the learned counsel for the respondent. With their kind assistance the entire record of the learned District Forum as well as appellate file had also been properly perused and examined.

8.      Learned counsel for the appellants contended that as per clause 4.23 compulsory co-payment  of 10%, the complainant was entitled for Rs.1,80,000/-, which was paid by the O.Ps. through NEFT on June 22,2016.  Learned counsel for the appellants further contended that he got the policy in the year 2013 and  in the year 2014, the sum insured was Rs.3,00,000/- and the above said policy was also renewed by him in the year 2015, the sum insured was increased to Rs.4,00,000/- only on 18.01.2016 just a few months before taking treatment for CAD with inferior wall MI and PTCA surgery.  It was specifically mentioned in the terms of the policy that for the increase in sum insured, the waiting period as in 4.1/4.2/4.3 shall apply to the enhanced insured as if it is a new policy.  Learned counsel for the appellants further contended that  discharge summary of Fortis Hospital dated 07.04.2016 reveals that he was suffering from hypertension  for the last three years and consequently the claim was processed under clause 4.1 pre-existing health condition or disease or ailment/injuries, 7.0 Renewal of Policy and 4.23 Compulsory Co-payment of 10%.  In support of his arguments, learned counsel for the appellants have placed reliance upon opinion of Hon’ble Supreme Court titled as M/s Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance Co. Ltd. And Anr. AIR 2010 SC (Supp) 23 (2), order of Hon’ble National Commission in Sonu Vs. Birla Sun Life Insurance Company 2017 (3) CLT 271 and in Revision Petition No. 2498 of 2016 titled as Apollo Munich Health Insurance Vs. Shashi Khanna decided on  16.12.2016. It is also argued by learned counsel for the appellants that this Commission held in appeal No.1095 of 2017 titled Prem Parkash Vs. Raliance General insurance Co. Ltd. that there is a close nexus between Hypertension and CAD.  Similarly Hon’ble National Commission in  RP No.533 of 2017 titled as Suresh Kumar Vs. Birla Sun Life has held that hypertension like diabetes has direct nexus with heart problem .  More so,  Learned District Forum has  failed to appreciate the law/facts on the subject as the binding nature of terms and conditions of the policy has been upheld by the Constitutional Bench of the Supreme Court in Chand Mull Jain wherein Para 11 the Supreme Court held that 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 courts to make a new contract and the same principle is reiterated in Suraj Mal (supra).  Thus, appellants are not liable to pay balance amount. Learned counsel for the appellants further prayed that impugned order passed by the learned District Forum be set aside, while accepting the appeal.

9.      On the contrary, it is contended by learned counsel for the respondent-complainant that there is no illegality in the impugned order passed by learned District Forum.  The compensation granted by learned District Forum is covered under the terms and conditions  of the insurance policy. There was no suppression of any material facts by the respondent while taking the insurance policy and respondent-complainant has not violated any terms and conditions of the insurance policy in question.   The appellants are liable to pay the full amount as awarded by the learned District Forum. Hence, it is submitted by learned counsel for the respondent-complainant that appeal is liable to be dismissed.

10.     Arguments of both the parties have been heard and careful perusal of the evidence available on the record of the District Forum and above cited judgements before us by learned counsel for the appellants, we are of the considered view that there is no illegality or infirmity in the impugned order passed by the learned District Forum.  Perusal of the impugned order reveals that learned District Forum has given detailed reasons for considering the claim amount of Rs.4,00,000/-. Thus, learned District Forum has rightly allowed the claim of the complainant.    It is pertinent to note that for a claim of Rs.2,45,647/-, a sum of Rs.2,00,000/- has been granted by the appellant-insurance company as per clause 4.23 Compulsory Co-payment.  If at all he was suffering from hyper tension for the last 3 years, it cannot be treated as coronary ailment.   No doubt there can be close nexus between hypertension and diabetes vis-a-vis CAD.  It is observed by the Hon’ble National Commission in Sonu Vs. Birla Sun Life Insurance Company (supra) that diabetes, if not properly controlled and cured can result in hypertension as also lead to heart problem or failure of other organs. 

However, in the case in hand there is no evidence that respondent-complainant was suffering from diabetes or hypertension which was not properly controlled and cured.  Mere hypertension for 3 years cannot be taken as coronary disease or cause for it. Thus, the authorities  (supra) M/s Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance Co. Ltd. And Anr., Sonu Vs. Birla Sun Life Insurance Company  and Apollo Munich Health Insurance Vs. Shashi Khanna relied upon by learned counsel for the appellants are not applicable in the facts and circumstances of the case in hand  and thus distinguishable as there is no violation of any terms and conditions of the insurance policy.    Although learned counsel for appellants has referred to guidelines contained in the circular issued by IRDA: IRDA/HLT/REG/CIR/177/09/2019 dated 27^th September, 2019 titled Guidelines on Standardization of Exclusions in Health Insurance Contracts, yet these guidelines cannot be implemented to the case in hand retrospectively.

11.    The claim has been rightly allowed in favour of the complainant as per the terms of policy.  Since the insurance company has already granted Rs.2,00,000/-, which is on lower side. There is deficiency in service on the part of the opposite parties-appellants to pay balance amount to the complainant. 

12.    In view of the above, there is no illegality or perversity in the impugned order passed by the learned District forum.  Hence, the present appeal is dismissed.

13.    Statutory amount of Rs.25,000/- deposited by the opposite party while filing the appeal shall be disbursed in favour of the complainant-Ombir Singh against proper receipt and identification subject to decision of the appeal/revision, if any.

 

 

17th  December, 2019       Manjula                                 Harnam Singh Thakur                                                      Member                                 Judicial Member                            

 

S.K

(Pvt. Secy.)