Haryana

Ambala

CC/326/2014

SAVITA AGGARWAL - Complainant(s)

Versus

ORIENTAL INSURANCE CO. - Opp.Party(s)

NARENDER SHARMA

13 Oct 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

Complaint Case No.      : 326 of 2014.

Date of Institution         : 21.11.2014.

Date of Decision            : 13.10.2017

 

1.Smt.Savita Aggarwal aged about 66 years wife of Shri Balwant Singh

2.Shri Balwant Singh Aggarwal aged about 77 years son of Shri Lashkari Mal residents of Bungalow No.43, Mall Road, Ambala Cantt.               

……Complainant.

Versus

 

1. The Oriental Insurance Company Limited having its Registered office Oriental House PB No.7037, A- 25/27, Asaf Ali Road, New Delhi-110002.
2. The Oriental Insurance Company Limited, Near York Hotel, G.T.Road, Karnal through its authorized signatory.
3. The Oriental Insurance Company Limited, Ambala Cantt. Branch through its Manager.

                                                                   ……Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act.

 

BEFORE:   SH. D.N. ARORA, PRESIDENT.

                   SH. PUSHPENDER KUMAR, MEMBER.

                   MS. ANAMIKA GUPTA, MEMBER.

                  

Present:       Sh. Narender Sharma, counsel for complainant.

                   Sh. Rajiv Sachdeva, counsel for OPs.  

 

ORDER

 

                   Brief facts of the present complaint are that the complainants have saving bank account No.01192010002750 with Oriental Bank of Commerce, Sadar Bazar, Ambala Cantt. The OPs had floated a scheme of Oriental Bank Medi-Claim Policy with Family Floater for the account holders of Oriental Bank of Commerce. The concerned bank approached the complainants for Medical Insurance, thereafter; the complainants completed the formalities thereof including the completion of proposal form.  The OP No.2 issued Oriental Bank Mediclaim Policy No.231301/48/2013/21 dated 09.04.2012 in the name of complainants for the period from 09.04.2012 to 08.04.2013 on paying of Rs.6830/- as premium. At the time of obtaining the Medi claim policy for Rs.5,00,000/- the Op No.2 was healthy and was not suffering from any disease. On 30.12.2012, 31.12.2012 and in the morning of 01.01.2013 the complainant No.2 felt pain in his stomach alongwith vomiting. The ECG was also done. Thereafter, the complainant No.2 was taken to Mohali for acute abdomen pain and pancreatic problem in an ambulance and was got admitted in Fortis Health Care which was on penal of hospitals of M/s Medi Assistant India Private Limited.  Since the complainants were not satisfied with the treatment at Fortis hospital which charges Rs.60983/- as treatment and medicines charges vide bill No.FHM/12-13/1/CS/11582, therefore, complainant No.2 was shifted to PGIMER, Chandigarh in the evening on 03.01.2013. The complainant No.2 was admitted in ICU (Gastroentitis Department) and was diagnosed with Acute-Pancreatitis and remained there upto 18.01.2013 and thereafter he was shifted to private room on 19.01.2013 and was discharged from PGI On 04.02.2013 after paying a sum of Rs.2,12,222/- on account of treatment, tests, medicines and room charges etc. from 03.01.2013 to 04.02.2013. The complainant No.2 was again admitted in PGIMER, Chandigarh on 11.02.2013 for acute nausea and fever where ultrasound procedure pigtail in stomach to remove unwanted fluid which accumulated in the right side abdomen was done.  The complainant remained admitted there and was put on liquid diet only   through N.J.Pipe and was discharged on 01.04.2013 after paying a sum of Rs.2,13,441/- for the period from 11.02.2013 to 01.04.2013. The policy in question was renewed on 09.04.2013 after paying a sum of Rs.6830/- through Oriental Bank of Commerce and the policy No.261301/48/2014/77 was issued having validity from 09.04.2013 to 08.04.2014. The complainant No.2 was again admitted in PGIMER, Chandigarh on 10.04.2013 for further treatment where surgical treatment for pancreatic and fistulae in intestines was done on 24.04.2013 and he was discharged on 05.06.2013 after paying a sum of Rs.2,15,419/- for the said treatment.  Thereafter, the complainant again felt pain in right side back and after checking from doctor he was shifted to Aggarwal Orthopedic Centre Jagadhri on 02.07.2013  where he remained under treatment and discharged on 24.07.2013 after paying a sum of Rs.47973/- besides spending a sum of Rs.13339/- & Rs.3772.50/- on account of medicines and blood test. In the meantime, the complainant was again taken to PGIMER, Chandigarh where ultrasonic procedure to remove the pus was done and he was also suffering from tuberculosis for which the treatment was started which continued upto 06.01.2014. The complainants lodged claim with Ops and requested for payment of claim amount besides writing a letter dated 12.07.2013 to Medi Assistance India TPA Pvt. Limited but vide letter dated 21.08.2013 the OP No.2 intimated the complainant No.1 about inability to pay the claim under Medi-Claim Policy. The complainant No.1 vide letter dated 22.09.2013 again requested the OP No.2 for reconsidering the claim but the Op No.2  again vide letter dated 23.01.2014 intimated that the claim falls under the clause 4.2 of the policy and also refused to admit the same.  The act and conduct of the Ops clearly amounts to deficiency in service on their part. In evidence, the complainant has tendered affidavits Annexure CX, Annexure CY and documents Annexure C1 to Annexure C85. During the course of arguments complainant also moved two applications for additional evidence which were allowed and they tendered the documents Annexure C86 to Annexure C90 and also produced the literature.

2.                Upon notice, OPs appeared through counsels and filed their joint reply wherein it has been submitted that the complainants had purchased Family Floater Medi-Claim Policy dated 09.04.2012 from Karnal Branch through Oriental Bank of Commerce and at the time of obtaining the policy all the terms and conditions were communicated to the complainants including the list of diseases. As per list some diseases fall under clause 4.3 and are coverable after 2 years. The treatment taken by complainant No.2 from Fortis Hospital and PGI for the disease was excluded from the scope of policy for 2 years. The complainants have never lodged any claim qua treatment of tuberculosis and if he is suffering from said diseases then it falls under 4.1 clause and as per said clause for pre-existing condition shall be applicable in such cases and the said disease was not coverable upto 3 years of the policy being inforce continuously. The diseases for which the claim was filed falls under exclusion clause 4.2 which states that The expenses on treatment of following ailment/disease/surgeries for the specified periods are not payable if contracted and/or manifested during the currency of the policy. If these diseases are pre-existing at the time of proposal the exclusion No.4.1 for pre-existing condition SHALL be applicable in such cases. XiX calculus diseases 2 years.  The terms and conditions were already communicated to the complainants and they were at liberty to use free look period at the inception of policy and to review the terms and conditions of the policy and to return the same if not acceptable. There is no deficiency in service on the part of Ops and after denying all other allegations prayer for dismissal of the complaint has been made. In evidence, the OPs have tendered affidavits Annexure RX and Annexure RY besides documents Annexure R1 to Annexure R4. Counsel for the Ops also moved an application for additional evidence which was allowed and tendered documents Annexure R5 and Annexure R6 and produced the literature.

3.                We have heard learned counsel for the parties and gone through the case file very carefully.

 4.               Learned counsel for the OPs has firstly taken the objection that this Forum has no territorial jurisdiction as the policy was issued at Karnal Branch through Oriental Bank of Commerce. In support of his contentions he placed reliance of case law titled as Sonic Surgical Vs. National Insurance Company Limited  2010 (1) CLT (SC).

5.                On the other hand learned counsel for the complainant has argued that the present complaint is maintainable before this Forum and there is no bar of territorial jurisdiction because the scheme floated by the OPs was for the account holders of Oriental Bank of Commerce and the policy was issued after accepting the proposal form which was accepted by the Oriental Bank of Commerce at Sadar Bazar, Ambala Cantt.

6.                Perusal of proposal Form Annexure C5 is enough to prove on the case file that the OPs are having bank account at Ambala Cantt. and the proposal form was duly countersigned by the officer of the bank in token of its receipt and thereafter the OPs have got issued policy from Karnal Branch, therefore, it cannot be said that this Forum has no jurisdiction to try and entertain the present complaint. The case law relied upon by learned counsel for the OPs is Sonic Surgical Vs. National Insurance Company Limited   (supra) is not applicable to the case in hand.

7.                 Now we are coming on the point whether the insurance company has wrongly repudiated the Medical claim of the complainants or not?

8.                Learned counsel for the complainants has argued as under:

                    As per the ultrasound report dated 01.01.2013 Annexure C3 there has been no stone in the CBD and is not dilated meaning thereby that no obstruction in the normal flow of Bile, however, stone was present in the gall balder and the pancreas was found bulky and heterogeneous pancreatic body with minimal peri pancreatic fluid and fat standing-suggestive of acute pancreatitis. He further argued that at the time of admission there was no CBD stone nor gall bladder was thicken/edematous. There was free flow of bile from bilery passage it means that the gall bladder was not inflamed at that time. According to Annexure C3 patient was suffering with acute pancreatic disease at the time of admission. Learned counsel for the complainants further argued that there can be other common cause of Pancreatitis like alcohol consumption other than the Gall Bladder stone and many other cause i.e. Abdominal Surgery, certain medications, cigarette smoking, cystic fibrosis, family history of pancreatitis and metabolic disorder. Counsel for the complainant further drew the attention of this Forum towards the opinion of Dr.Sanjay Gupta, MD/DM (Gastroenterology), Professor of Medicine Head of Gastroenterology SGRR Medical College and Hospital, Patel Nagar, Dehradun Annexure C4 which shows that There is no doubt that Mr.Balwant Singh Aggarwal had acute pancreatitis. The ultrasound findings of gall stone in the gall bladder may hit that the disease may be gall stone induced. However, the presence of stone in the gall bladder  only and not in the bile duct is at the most only circumstantial evidence  and can never be implicated as the cause of acute pancreatitis with certainty. As per PGI record Annexure C90 there is some evidence that patient might have suffered with Tubercular Pancreatitis and PGI has considered the case of the complainant anti-Tubercular treatment.  The complainant has been diagnosed from 01.01.2013 and remained under treatment in various hospitals upto 20.08.2013.

                              He also drawn our attention towards latest CT Scan report dated 28.05.2013 Annexure C87 issued by PGIMER, Chandigarh wherein  it is mentioned that gall bladder was distended and normal which shows that no surgical procedure for removing the stone from the gall bladder had taken place.  Learned counsel for the complainant has further argued that there was no concealment about the health status of the complainant at the time of inception of the policy and the OPs have failed to disclose on the case file as to which fact the complainant No.2 had concealed from the Ops, therefore, the exclusion clause does not applicable to the case in hand. In support of his contentions learned counsel for the complainant has placed reliance of case law titled as ICICI Prudential Life Insurance Company Limited & Anr. Vs. Preeti Prasad III (2015) CPJ 551 (NC), United India Insurance Company Limited Vs. Mili Dutta & Anr. II (2016) 244 (NC), Oriental Insurance Company Limited & Ors. Vs. Narinder Kumar Mittal & Ors. I (2016) CPJ 26 (Punj.)  and judgment titled as The Oriental Insurance Company Limited Vs. Permanent Lok Adalat.         

9.                          On the other hand counsel for the opposite parties has relied upon the report Fortis Hospital Annexure R5 wherein it has been mentioned that   the patient was diagnosed at the time of admission with severe Acute Pancreatitis? Gall Stone Induced.   He also relied upon Annexure R6 i.e. Discharge and Follow up card issued by PGIMER, Chandigarh where the patient remained under treatment from 11.02.2013 to 01.04.2013. In the brief summary of this document it has been mentioned that F/V/C severe Acute Pancreatitis (Gall Stone related).  From this document it is clear that the patient was having calculus (stone disease) in his body and in view of the terms and conditions of the policy if patient is suffered with calculus then as per clause 4.2 the insurance company is not liable to indemnify the medi-claim on this count if same occurs within 2 years from the inception of the policy. In support of his contentions he has placed reliance of case law titled as A Sanjeeva Narayan Vs. National Insurance Company  decided by Hon’ble National Commission in Revision Petition No.477 of 2012, Jyoti Gupta Vs. The Oriental Insurance Company Limited 2010 (2) CLT 221 (Punjab State Commission) and judgment dated 20.01.2014 passed by Hon’ble Delhi State Commission in FA No.474/06  titled as National Insurance Company Vs. Mrs. Saroj Kanta Bansal.  Counsel for the OPs also relied upon the literature titled as Pancreatitis caused by gallstones  and also specified that Gallstones are a common cause of pancreatitis. Gallstones, produced in the gallbladder, can block the bile duct, stopping pancreatic enzymes from travelling to the small intestine and forcing them back into pancreas. The enzymes then begin to irritate the cells of the pancreas, causing the inflammation associated with pancreatitis.

10.              After hearing arguments advanced by learned counsel for the parties and going through the material available on the case file it is clear that the complainant No.2 had remained under treatment in various hospitals. The first ultrasound report dated 01.01.2013 it is clear that the patient had gall bladder stone and no stone in CBD and even the CBD was not dilated.  The case of the complainant finds support from the latest CT Scan Report (Annexure 87). There is no stone in the gall bladder is GB is normal. As per PGI treatment/discharge report Annexure R6 the patient was suffering from acute Pancreatitis? Gall Stone induced but no definite opinion was given by the treating doctor of the PGI that patient suffered pancreatitis due to gall stone because as per the literature/opinion given by the doctor Sanjay Gupta who had given opinion/certificate (Annexure C4) had also deposed on oath by tendering his affidavit as Annexure CY. The specific point in this certificate is as follows:

“There is no doubt that Mr.Balwant Singh Aggarwal had acute pancreatitis. The ultrasound findings of gall stone in the gall bladder may hit that the disease may be gall stone induced. However, the presence of stone in the gall bladder  only and not in the bile duct is at the most only circumstantial evidence  and can never be implicated as the cause of acute pancreatitis with certainty”.

 

11.              We conclude that gall stone may not be only cause of acute pancreatitis and there are many other causes as per literature of pancreatitis like Abdominal Surgery, certain medications, cigarette smoking, cystic fibrosis, family history of pancreatitis and metabolic disorder and alcohol consumption other than gall bladder stone. There is neither any definite opinion of the hospital where the complainant had taken treatment nor there is any literature on the case file to show that patient suffered Acute Pancreatitis due to the gall stone, therefore, the reason for repudiating the claim by applying Clause 4.2 of the terms and conditions of the policy is not justified because medical reports of the complainant No.2 clearly show that he suffered with acute pancreatic, therefore, he was hospitalized and treated accordingly. The Hon’ble National Commission in the case of LIC Vs. Joginder Kaur & Others, 2005 (2) CLT 229 has clearly held that in the absence of any reasonable inquiry and in the absence of reasonable evidence the insurance company was not correct in repudiating the claim under the policy. More so, the ‘Exclusion Clause’ of the insurance policy nowhere discloses that the disease suffered by the complainant falls under this clause.

12.                        Now, we deal with the award of compensation. As per the policy issued by the OPs the sum insured was Rs.5 lacs for the period of 09.04.2012 to 08.04.2013 and the same was renewed from 09.04.2013 to 08.04.2014 as per Annexure C6 & Annexure C8.

13.                        The complainant No.2 has spent amount an amount of Rs.4,86,646/- (Rs.60,983/- + Rs.2,12,222/- + Rs.2,13,441/-) vide claim Nos.2910558, 2910567 and 2910545 as mentioned in Annexure C11 and further spent Rs.2,15,419/- vide claim No.2910574 as mentioned in Annexure C20. The complainant No.2 has also spent Rs.47,973/- (Annexure C52), Rs.13339/- (Annexure C29), Rs.3772/- (Annexure C32 to Annexure C51). In total the complainant No.2 has spent Rs. 486646 + 215419 + 47973 + 13339 + 3772 = Rs.767149/- during hospitalization period i.e. 01.01.2013 to 20.08.2013 for the treatment during the subsistence of the policy Annexure C6 & Annexure C8. The OPs have not disputed above said amount incurred by the complainant.

14.              The OP has taken the objection that the complainant can take benefit for one policy only but this plea is not tenable because it is established on the case file that the billed amount spent by the complainant No.2 on his treatment is not for one callender year. It is not disputed the sum assured was Rs.5 lac for one policy which was having validity from 09.04.2012 to 08.04.2013 and Rs.5 lac also sum assured in the policy which was renewed and having validity from 09.04.2013 to 08.04.2014.  In first policy the complainant had spent less than sum assured i.e. Rs.5 lac and even in renewed policy he had also spent less than the sum assured i.e. Rs.5 lac, therefore, as per policy terms and conditions he is entitled for total amount spent by him i.e. Rs. 767149/- during his treatment.

15.              Keeping in view the facts and circumstances mentioned above we are of the considered opinion that there is deficiency in service on the part of OPs. Hence, the complaint is allowed with costs which is assessed at Rs.10,000/- with a direction to the OPs to pay the amount of Rs.7,67,419 /-  being spent on treatment alongwith interest @ 9 % from the date of filing of compliant till realization of amount. Order be complied within 30 days of receipt of copy of order. Copy of this order be supplied to both the parties free of costs.  File be consigned after due compliance.

 

ANNOUNCED ON:      13.10.2017                          (D.N. ARORA)

                            PRESIDENT       

         

 

(PUSHPENDER KUMAR)

                                                                                      MEMBER

 

 

            (ANAMIKA GUPTA)

                                                                                      MEMBER