BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FEROZEPUR

                                                          C.C. No.228 of 2014                                                                        Date of Institution: 3.6.2014           

                                                          Date of Decision:  18.2.2015

Raj Rani, aged 52 years, wife of Chiman Lal, resident of Village Noorpur, Tehsil and District Ferozepur. 

....... Complainant

Versus       

1.   The Oriental Insurance Company Limited, Registered and Head Office A-25/27, Asaf Ali Road, New Delhi-110002, through its Authorized Signatory.

2.   The oriental Insurance Company Limited, Branch at B-1-90, Opposite Central Jail, The Mall, Ferozepur City, through its Branch Manager.

3.   Park Medical TPA Private Limited, 702, Vikrant Tower, Rajendra Place, New Delhi-110008, through its Authorized Signatory.

                                                                             ........ Opposite parties

                                                Complaint   under Section  12 of                                   the Consumer Protection Act, 1986.

                                                          *        *        *        *        *

PRESENT :

For the complainant                :         Sh. Nitish Duggal, Advocate

For the opposite parties           :         Sh.  Ashwani Sharma, Advocate

QUORUM

S. Gurpartap Singh Brar, President

S. Gyan Singh, Member 

                             ORDER

GURPARTAP SINGH BRAR, PRESIDENT:-

                   Brief facts of the complaint are that since 2010, Chiman Lal, husband of the complainant had been continuously purchasing the

C.C. No.228 of 2014               \\2//

Insurance Policies under “Happy Family Floater Policy Schedule”, worth Rs.2,00,000/-, by paying requisite premiums thereof from the opposite parties, covering the risk of Chiman Lal and his wife Raj Rani i.e. the present complainant for a period of one year, for getting treatment of any kind from their network hospitals i.e. TPA M/S Park Mediclaim  TPA Private Limited, opposite party No.3. Further it has been pleaded that prior to getting subscribed the above said policies, all the time, the complainant and her husband Chiman Lal were got medically examined by the officials of opposite party No.2 stating it to be a mandatory requirement of the company and all the times, the complainant and her husband were found fit to be insured under the above said policies and only thereafter, the premium of the above said polices was accepted by opposite parties and the insurance policy was issued in due course. The complainant purchased the following insurance policies from time to time:-

C.C. No.228 of 2014               \\3//

Further it has been pleaded that since 2010 upto year 2013, Chiman Lal, husband of complainant continuously purchased same very Insurance Policy under “Happy Family Floater Policy Schedule” worth Rs.2,00,000/- from the opposite parties. Policy No. 233704/48/2014/210 was issued to him by the opposite parties in due course by getting premium of Rs.5320/-, which was valid w.e.f. 29.4.2013 to 28.4.2014, again covering the risk of Chiman Lal as well as his wife Raj Rani. At the time of subscribing of above said policy, complainant and her husband Chiman Lal were got medically examined by officials of opposite party No.2 through their medical team and after that the complainant and her husband being covered under aforesaid policy and after their complete satisfaction in this regard, complainant and her husband were found fit to be insured under above said policy. Further it has been pleaded that unfortunately, in the year 2012, complainant felt unconsciousness and was taken to Arora Neuro Centre, Ludhiana, where she got treatment of hypertension with effect from 10.9.2012 to 21.9.2012 and spent sufficient amount worth Rs.2,50,000/- on the same. The above said fact was immediately brought to the notice of TPA M/S Park Mediclaim TPA Private Limited as well as the opposite parties. Medical claim in respect of the above said insurance policy was lodged by complainant with the opposite parties, but the opposite parties were putting off the complainant on one pretext or the other  and ultimately

C.C. No.228 of 2014               \\4//

the opposite parties vide memo dated 24.4.2013 sought reply/clarification to their wrong observations that as per the discharge summary, the patient was a known case of hypertension (Sub Arachnoid Haemorrhage) for 6 years, but the patient was covered under Happy Family Floater Policy since 29.4.2010 only and as such the said claim was not tenable, as it falls under Exclusion Clause 4.1 of the policy, whereas, neither the above said disease of the complainant is a pre-existing disease nor even there is any kind of previous history of any medical treatment ever obtained by the complainant from anywhere. Husband of the complainant specifically replied that neither Raj Rani was under the influence of hypertension nor there was any record of hypertension. Further it has been pleaded that the complainant suffered from hypertension on 10.9.2012 i.e. during the inception of her insurance policy No.233704/48/2013/159, valid w.e.f. 29.4.2012 to 28.4.2013 and in case, there would have any pre-existing disease or any previous history of the complainant as alleged, the opposite parties would not have further insured the complainant with same very policy known as “Happy Family Floater Policy” vide policy No.233704/2014/210, valid for consecutive period w.e.f 29.4.2013 to 28.4.2014, that too, getting medical check up of complainant from their medical expert and this fact alone itself goes to prove that the complainant was not suffering from any pre-existing disease, nor there was any kind of history of her pre-existing disease. The

C.C. No.228 of 2014               \\5//

complainant and her husband many a times personally approached opposite party No.2 and also contacted opposite party No.3, but they have been making false excuses on one pretext or the other. 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 pay Rs.2,50,000/- as insurance claim qua aforesaid insurance polices No.233704/48/2013/159 valid w.e.f. 29.4.2012 to 28.4.2013 and policy No.233704/2014/210, valid w.e.f. 29.4.2013 to 28.4.2014 along with interest at the rate of 18 % per annum. Further a sum of Rs.50,000/- has been claimed as compensation for harassment and Rs.5500/- as litigation expenses.

2.                Upon notice, the opposite parties appeared and filed their joint written reply to the complaint, wherein it has been pleaded that as per the discharge summary of the patient, it was a known case of a hypertension for 6 years and the patient was covered under Happy Family Floater Policy since 29.4.2010 and as such the claim is not tenable being fallen under Clause 4.1 of the policy. This was conveyed to Chaman Lal vide letter dated 24.4.2013 and he was given 7 days time to substantiate his claim on the above ground of non-admissibility, but he failed to respond and even the earlier letters dated 6.12.2012, 21.12.2012 and 11.1.2013, whereby he was asked to submit the required documents. As such, the claim of

C.C. No.228 of 2014               \\6//

complainant has been repudiated as per Rules and instructions of the company. Mrs. Raj Rani was a known hypertensive for 6 years and was admitted from 10.9.2012 to 21.9.2012 with diagnosis of Sub Arachnoied Haemorrhage and the Happy Floater Policy does not cover the expenses incurred on treatment of any disease which was pre-existing. Other allegations of the complaint have been denied and dismissal of the complaint has been prayed for.

3.                Learned counsel for the complainant tendered into evidence Ex.C-1 to Ex.C-53 and closed evidence on behalf of the complainant. On the other hand, learned counsel for opposite party Nos.1 to 3 tendered into evidence Ex. OP-1 to 3/1 to Ex.OP-1 to 3/10 and closed evidence on behalf of opposite party Nos.1 to 3.

4.                We have heard the learned counsel for parties and have also gone through the file.

5.                Purchase of Happy Family Floater Policy Schedule bearing Policy No.233704/48/2013/159 Ex.C-3 for the period from 29.4.2012 to 28.4.2013 and Policy No.233704/48/2014/210 Ex.C-2 for the period from 29.4.2013 to 28.4.2014 for sum assured of Rs.2,00,000/- for each policy by Chiman Lal, husband of the complainant and complainant Raj Rani and treatment of complainant Raj Rani during the subsistence policy

C.C. No.228 of 2014               \\7//

No.233704/48/2013/159 Ex.C-3 for the period from 29.4.2012 to 28.4.2013 has been admitted. However, the insurance claim of the complainant on account of her treatment has been repudiated by the opposite parties vide letter dated 19.9.2013 Ex.OP-1 to 3/1 on the ground that as per the discharge summary, the patient was a known case of Hypertension for 6 years, but the patient is covered under Happy Family Floater Policy since 29.4.2010 only and as such the claim falls under Exclusion Clause 4.1 of the policy. But there is nothing on the record that these terms and conditions were ever supplied to the complainant by the opposite parties. However, the opposite parties have reproduced Exclusion Clause 4.1 of the policy in para No.3 of preliminary objections of their written reply, which says that any ailment/disease/injuries/health condition, which are pre-existing (treated/untreated, declared/not declared in the proposal form), in case of any of the insured person of the family, when the cover incepts for the first time, are excluded for such insured person upto 4 years of this policy being in force continuously. This exclusion will also apply to any complication arising from pre-existing ailment/disease/injuries, such complications shall be considered as a part of the pre-existing health condition or disease. The opposite parties have repudiated the claim of the complainant relying upon the Discharge Summary of the complainant issued by Arora Neuro Centre, Ludhiana, copy of which has been placed on

C.C. No.228 of 2014               \\8//

the file by the opposite parties as Ex.OP-1 to 3/9, but it is not on the record that who narrated the history of the complainant to the consultant doctor. Moreover, this document remained unproved as this has not been proved by the author of the document and there is no affidavit in support of this document. In “Life Insurance Corporation of India Limited and Others Versus A.K. Kalra, Appeal No.A-818 of 2002, decided on 16.8.2004, the claim of the respondent was repudiated on the ground that the respondent has suppressed or concealed the pre-existing disease that he was suffering from diabetes for the last 10 years and hypertension for the last 4-5 years as disclosed by him in the medical history of the Apollo Hospital, where he was admitted for by-pass surgery and the Hon’ble State Commission, New Delhi has held that  no party can be allowed to take undue advantage of its own acts of omission and commission; it was the bounden duty of the appellant-company to get the person medically examined before insuring him. The Hon’ble State Commission, New Delhi has further held that in modern times almost every one is prone to high tension life and, therefore, hypertension and diabetes are not such disease for which a person gets a set treatment to keep them under control that concealment of which may render the contract null and void; these are normal diseases and a person is insured for life or medical treatment when his general condition of health is normal and satisfactory. In the present case also, though the opposite

C.C. No.228 of 2014               \\9//

parties have denied that complainant Raj Rani was ever medically examined to ensure about pre-existing ailment, as alleged by the complainant, but even then the opposite parties cannot take undue advantage of their own admitted act of omission in view of the precedent laid down by the Hon’ble State Commission, New Delhi in “Life Insurance Corporation of India Limited and Others Versus A.K. Kalra (supra). The complainant has specifically pleaded in para No.1 of the complaint that her husband Chiman Lal had been continuously purchasing the insurance policies under Happy Family Floater Policy Schedule from the opposite parties covering the risk of the complainant and her husband Chiman Lal since 2010. This fact has not been denied by the opposite parties. Therefore, the complainant and her husband were not insured for the first time with the opposite parties, rather, they had been purchasing the insurance policies under Happy Family Floater Policy Schedule from opposite party No.1 and 2 since 2010. 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)     -        -        -        -        -        -        -        -        -

C.C. No.228 of 2014               \\10//

                   (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 husband of the complainant had purchased Happy Family Floater Policy Schedule bearing Policy No.233704/48/2013/159 Ex.C-3 for himself and his wife complainant Rajni Bala, but insurance claim on account of treatment of complainant Rajni Bala has been repudiated by the opposite parties taking the shelter of the above referred to Clause 4.1 of the Insurance Policy in question that any ailment/disease/injuries/health condition, which are pre-existing (treated/untreated, declared/not declared in the proposal form), in case of any of the insured person of the family, when the cover incepts for the first time, are excluded for such insured person upto 4 years of this policy being in force continuously. Therefore, the complainant has been restricted from enforcing her 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 intended to restrict or extinguish the

C.C. No.228 of 2014               \\11//

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 to authority, Clause 4.1 of the terms and conditions of the insurance 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. Though the complainant has pleaded that she had spent an amount of Rs.2,50,000/- on her treatment during her admission in Arora Neuro Centre, Ludhiana and has also placed on record photo copy of bills/receipts as Ex.C-11 to Ex.C-52 and she has also claimed a sum of Rs.2,50,000/- on account of her treatment under Policy No.233704/48/2013/159 Ex.C-3 and Policy No.233704/48/2014/210 Ex.C-2, but she is entitled to the maximum sum assured of Rs.2,00,000/- under Policy No.233704/48/2013/159 Ex.C-3 only, as the complainant had got her treatment from Arora Neuro Centre, Ludhiana during the subsistence of this policy and policy bearing No.233704/48/2014/210 Ex.C-2 was issued by the opposite parties for the period from 29.4.2013 to 28.4.2014 i.e. subsequent to the treatment of the complainant. Therefore, the complainant is held entitled to the insurance claim of Rs.2,00,000/- under the insurance policy No.233704/48/2013/159 Ex.C-3. The opposite

C.C. No.228 of 2014               \\12//

parties are guilty of rendering deficient services to the complainant.

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.2,00,000/- as insurance claim on account of her treatment along with interest at the rate of 9% per annum from the date of repudiation of claim i.e. 19.9.2013  till realization. Further the opposite parties are directed to pay a sum of Rs.5000/- compensation for harassment and Rs.3000/- as litigation expenses to the complainant. This order is directed to be complied with jointly and severally by opposite party Nos.1, 2 and 3 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                                                                   

 18.2.2015                                                  (Gurpartap Singh Brar)                                                                      President

                                                                             (Gyan Singh)                                                                  Member