IN THE STATE COMMISSION : DELHI
(Constituted under Section 9 of the Consumer Protection Act, 1986)
Date of Decision : 17.09.2014
First Appeal No.FA 494/09
(Arising out of the order dt. 24.4.2009 passed in complainant case No. CC/338/08 by Distt. Consumer Disputes Redressal Forum (NEW DELHI) BARRACKS KASTURBA GANDHI MARG:NEW DELHI)
1. Oriental Insurance Company Ltd.,
Divisional Office-18
Shahpuri Teerath Singh Tower,
6th Floor, C-58, Community Centre
Janakpuri, New Delhi-110058 ...........APPELLANT
VERSUS
R.C Goel, (Deceased)
Through LR’s
1A. Ms. Rachna Aggarwal (Daughter)
A-193, New Friends Colony
New Delhi
1B. Ms. Archna Patriwal (Daughter)
23, Lircle Building
Gorakhpur (U.P)
1C. Ms. Meenu Jain (Daughter)
B-8/8, Vasant Vihar
New Delhi-110057
1D. Ms. Lata Jain (Daughter)
D-6, Kalindi Colony
New Delhi-110057
1E. Ms. Ritu Jain (Daughter)
14, Malka Ganj
Delhi-110007
1F. Ms. Nena Nevatia (Daughter)
Plot No. 33, Vithal Nagar Society
11th Road, Juhuvilley Parley
Mumbai-49
1G. Mrs. Manorma Goel
A-15/5, Vasant Vihar
New Delhi-110057
...RESPONDENTS
CORAM
S.A.Siddiqui, Member (Judicial)
S.C.Jain, Member
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
S.C.Jain, Member
Judgment
The present appeal has been filed by the appellant against the order dated 24.4.09 passed by District Consumer Disputes Redressal Forum, New Delhi in complaint case No. 338/08.
The brief facts of the case are that the Respondent/Complainant had been taking mediclaim policy for the last 10 years for self and his wife and had also been renewing the policy from the OP itself. The policy was taken in the year 1996 and for an amount of Rs. 1.00 lac which was later on enhanced to Rs. 5.00 lac in the year 2000. The respondent/complainant renewed the mediclaim policy in the year 2005 valid for the period 26.06.05 to 25.06.06 and premium of Rs. 19,940/= was paid to OP. The respondent/complainant was hospitalized in Max Devki Devi Heart & Vascular Institute Saket on 29.08.05 and intimation in this regard was given to the office of OP also on that very day. A number of tests were conducted in the hospital and it was advised by the doctors that surgery would be required and accordingly surgery for coronary angiography was performed and the complainant remained in the hospital till 01.09.05.
Respondent/Complainant incurred an expenditure of Rs. 5,95,958/- including medicines. Respondent/Complainant preferred the claim to the OP but OP on after great persuasion and follow up paid only a sum of Rs. 1.00 lac through cheque to the complainant/respondent where as the complainant/respondent had claimed an amount of Rs. 5.00 lac for which he was insured. Respondent/Complainant sent a letter dated 24.11.06 to the chairman of OP company for releasing the balance amount but OP turned down the request. Respondent/Complainant not getting the balance amount of Rs. 4.00 lac filed a complaint before the District Forum praying therein for ordering the OP/Appellant to pay the balance amount of Rs. 4.00 lac covered under the policy along with compensation on account of mental agony and harassment as well as towards litigation cost.
Notice was sent to the OP who appeared before the District Forum and contested their case.
Appellant/OP filed their written reply wherein they stated that the respondent/complainant had lodged the claim under the policy in the year 1996, 1997 and then again in 1998 for heart disease which were paid to the complainant/respondent as per terms and conditions of the policy. The respondent/complainant made a request in the year 2000 for enhancement of sum insured from Rs. 1.00 lac to Rs. 5.00 lac, which was accepted by the OP, but, subject to the condition that for pre-existing disease such as heart disease, the sum insured will remain at Rs. 1.00 lac. The appellant/OP further stated in its reply filed before the District Forum that the respondent/complainant filed another claim for the year 2001, which was again paid to him. Since the claim amount was less than Rs. 1.00 lac, nothing came on record as to the limit of the sum insured relating to heart disease. Respondent/Complainant preferred another claim on account of the heart disease for which he got admitted in Max Devki Devi Hart & Vascular Institute Saket, New Delhi on 29.08.05 and surgery for coronary angiography was performed and the respondent/complainant as per the policy terms on submission of the claim under the policy paid an amount of Rs. 1.00 lac to the respondent/complainant because only Rs. 1.00 lac was allowed as per the policy in respect of pre-existing disease.
District Forum after hearing both the parties reached to the conclusion that when the appellant/OP was aware that the complainant/respondent had requested for enhanced insurance amount. the appellant/OP could comfortably refuse to enhance the insurance amount from Rs. 1.00 lac to 5.00 lac and could refuse to pocket the premium of Rs. 5.00 lac. As the appellant/OP was well aware that the respondent/complainant is suffering from heart disease and has taken claim in the year 1996, 1997 and 1998 which was well on their record, then they could simply refuse to enhance the insurance amount in respect of heart disease but if at all they had enhanced the insurance amount then they should have specifically mentioned this fact to the respondent/complainant but they failed to do so and appellant/OP can simply be called an exploiter who taking advantage of the situation had put such unreasonable clause which by any stretch of imagination cannot be held binding on the respondent/complainant as the policy was issued by the appellant/OP with an open eye and the District Forum hold the appellant/OP guilty of providing deficient services and ordered the appellant/OP to pay Rs. 4.00 lac to the respondent/complainant towards the balance amount incurred on his treatment and further awarded a sum of Rs. 1.00 lac to the respondent/complainant on account of deficiency of service on the part of appellant/OP as well as for causing mental agony and harassment to the complainant/respondent. The OP/appellant was also directed to pay Rs. 10,000/- towards cost on litigation.
That is what brought the appellant in appeal before this commission.
Registered AD notice was sent to the respondent who appeared and contested their case.
The main ground taken by the appellant in appeal is that the District Forum had erred in passing the said order because District Forum did not considered that the terms and conditions of the policy which are binding on the appellant and the respondent and the District Forum has failed to consider the admitted position that the respondent was suffering from pre-existing decease of heart and for the same, the claim had been paid to the extent of Rs. 1.00 lac for which the respondents was insured.
The appellant further took the ground that the District Forum had not considered the policy schedule which clearly states that “Warranted that in case the person covered under the policy has lodged any claim under the previous policy and the sum insured is enhanced under the current policy, for a further claim for the same disease during the current policy, the earlier limit of some insured shall be applicable and not the enhanced sum insured”. The appellant further stated that the District Forum had also not considered that the claim is beyond the purview of insurance contract on account of exclusion clauses of the insurance pollicy and appellant mainly relied on clause 4.0 and 4.1 of the policy document which reads as follows:-
4.0 The Company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured Person in connection with or in respect of:
4.1 All diseases/injuries which are pre-existing when the cover incepts for the first time. For the purpose of applying this condition, the date of inception of the initial mediclaim policy taken from any of the Indian insurance companies shall be taken, provided the renewals have been continuous and without any break.
The respondent replied to the above grounds taken by the appellant in their appeal and stated that it is false that the terms and conditions between the parties were not considered by the District Forum and submitted that the heart surgery was conducted seven years before the subject hospitalization in 2005 for the heart surgery and that there was no condition in the contract that the enhanced sum shall not be applicable to the type of treatment already gone and there was no such condition in the contract or the policy document issued to him and document of terms and conditions of insurance policy was never signed by him. Respondent further submitted and denied that the disease in question was pre-existing disease on the basis of which his claim of have 5.00 lac was repudiated and pointed out that when after treatment, a person has been cured and had spent a healthy life for a reasonable period of 3-4 years, the old cured disease if re-occurs, cannot be called a pre-existing disease and after 1998 the respondent was admitted for the heart disease in 2005 therefore it is emphatically denied that in the present case the hospitalization of the respondent can be called hospitalization and then undergoing surgery was for a pre-existing disease.
We have heard the submissions made by the both the parties and had clearly gone through the records. We have observed that deceased respondent had renewed the policy in the year 2000 for sum insured of Rs. 5.00 lac and no such condition was imposed while renewing the policy that for heart disease for which the deceased had meanwhile undergone the amount payable under the policy shall be Rs. 1.00 lac. Only no other condition excluding any other pre-existing disease was put. When a claim occurred on 29.08.05, the insurance company refused to pay the entire claim amount of Rs. 5.00 lacs. It said that the cover for the heart disease is restricted only to 1.00 lac since when policy was enhanced from Rs. 1.00 lac to Rs. 5.00 lac in 2000, it was already a pre-existing disease. Insurance company further mentioned that they forgot to put the condition on the policy by mistake and filed a document in appeal before the commission which was relating to the policy renewed for the period 2006 to 2007 in which they have attached a paper along with individual medical claim policy which formed part of the policy mentioning therein “Warranted that in case the person covered under the policy has lodged any claim under the previous policy and the sum insured is enhanced under the current policy, for a further claim for the same disease during the current policy, the earlier limit of some insured shall be applicable and not the enhanced sum insured”. But appellant had failed to produce any such attachment which they had supplied with the policy which was issued for the period 26.6.05 to 25.6.06, therefore the view of the insurance company in considering the disease as pre-existing is illegal for two reasons:-
- No condition was put on the policy that the claim for heart problem shall be restricted only to Rs. 1.00 lac.
- In any event, the present claim had taken place more than 48 months after the previous heart related claim, and therefore it would no more be a pre-existing disease. The rules promulgated by IRDA in this regard are very clear, as IRDA handbook on Health Insurance under point 3 FAQ under the heading. ‘What is pre-existing condition in health insurance policy’. “It is a medical condition/disease that existed before you obtained health insurance policy, and it is significant, because the insurance companies do not cover such pre-existing conditions, within 48 months of prior to the 1st policy. It means, pre-existing conditions can be considered for payment after completion of 48 months of continuous insurance cover”.
This clearly shows that after 48 months the disease cannot be called a pre-existing disease. Therefore the stand taken by the insurance company is patently illegal. The decision of the learned District Forum is legally sustainable and is without any infirmity and illegality and needs no interference and is upheld. The appeal is dismissed. No order as to costs.
Copy of the order be made available to the parties free of cost as per law and thereafter case file be consigned to record room.
FDR if any deposited by the appellant be released as per rules.
(S.A. Siddiqui)
Member (Judicial)
(S.C. Jain)
Member
