Punjab

StateCommission

A/11/1460

Birla Sun Life Insurance Company Ltd. - Complainant(s)

Versus

Rajinder Kaur - Opp.Party(s)

S.C.Thatai

20 Apr 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,   PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                             First Appeal No.1460 of 2011

 

                                                          Date of Institution: 27.09.2011  

                                                          Date of Decision : 20.04.2015

 

 

Birla Sun Life Insurance Company Ltd., SCO No.73, Phase 9, SAS Nagar Mohali

 

                                                          …..Appellants/Opposite Party

         

                                      Versus

 

Rajinder Kaur wife of Sh. Jeet Singh, resident of 1045, Phase 10, Mohali (SAS Nagar), Punjab

 

                                                          ….Respondent/Complainant

         

First Appeal against order dated 25.08.2011 passed by the District Consumer Disputes Redressal Forum, Mohali

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member.  

          Shri Harcharan Singh Guram, Member

 

Present:-

 

          For the appellant              :         Sh.Nitin Thatai, Advocate

          For the respondent :         Sh.Balwinder Singh, Advocate

 

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

                            

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                  

           The appellant (OP in the complaint) has directed this appeal against the respondent of this appeal (complainant in the complaint), challenging  order dated 25.08.2011 of District Consumer Disputes Redressal Forum Mohali, accepting the complaint of the complainant by directing the OP to pay the compensation amount of Rs.70,858/- to the complainant, besides other compensation, as recorded therein. The instant appeal has been carried against the same by the OP now appellant.

2.      The complainant has filed this complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OP on the averments that she was insured with OP under the Health Insurance Policy by paying the premium of Rs.9000/-. The complainant was declared fit for the policy and hence, she was insured by the OP for medi-claim. Unfortunately, complainant suffered severe pain on 24.09.2010 and visited P.N Urology and Surgical Hospital. She was admitted in the said hospital and was diagnosed as a case of Acute  Pancreatitis. She was admitted in the hospital for four days and discharged on 01.10.2010. She made payment of Rs.37,961/- inclusive room rent, doctor fee, medicines, MRI etc. She went for routine follow-up and it was discovered  in clinical investigation that she has stone in her gallbladder technically called Cholecystitis. She was admitted in the hospital on 13.10.2010 and was operated on the same day. She paid Rs.32,897/- towards room rent, doctor fee, surgery, medicines, MRI etc. She approached the OP for the reimbursement of this amount. The OP repudiated the insurance claim of the complainant, vide letter dated 18.01.2011 on the ground that Laparoscopic Chlecystectomy is not payable for first three years of the policy. The OP is liable to pay a sum of Rs.70,858/- towards the expenses incurred by the complainant for hospitalization, medicines etc. Rs.50,000/- for compensation for mental harassment along with cost of litigation of Rs.15,000/-. Accordingly, the complainant prayed for the above-referred amounts as compensation from OP.

3.      Upon notice, OP appeared and filed written reply raising preliminary objections that complaint is not maintainable and is without any cause of action and, thus, merits dismissal. The complainant is not a Consumer under the Consumer Protection Act. The treatment taken for surgery by the complainant is not covered under hospital admission for medical management nor covered under hospital surgery. The complaint is bad for non-joinder of TTK Healthcare TPA Private Ltd being third party administrator. It was admitted that complainant was insured, vide policy no. 418207848 dated 24.06.09 with the OP against premium of Rs.8425/-. It was further averred in the written reply on merits that the above-referred surgery of the complainant is not covered under the insurance terms and conditions of the policy. The OP denied this fact that complainant incurred any expenses for above surgery and OP prayed for dismissal of the complaint.

4.      The complainant tendered in evidence  the affidavit  of complainant Ex.CW-1/1, copy of medical examiner report  Ex.C-1, premium receipt dated 28.7.09 Ex.C-2, policy dated 28.07.09 Ex.C-3, receipt of premium dated 23.07.2010 Ex.C-4, detailed bills and bill cum receipts Ex.C-5/1 to Ex.C-5/15, discharge summary Ex.C-5/A, detailed bill Ex.C-6, discharge summary Ex.C-6/A and repudiation letter dated 18.01.2011 Ex.C-7. As against it, OP tendered affidavit of Sh. Lalit Vermani, Authorized Officer of OP Ex.RW-1/1, copy of general power of attorney dated 29.04.2011 Ex.R-1 and list of covered and uncovered surgeries under the policy terms and conditions Ex.R-2. On conclusion of evidence and arguments, the District Forum, Mohali accepted the complaint of the complainant and directed the OP to pay the amount of Rs.70,858/- to the complainant, besides compensation of Rs.10,000/- for mental harassment and Rs.5000/- for costs of litigation.  Dissatisfied with the order dated 25.08.2011 District Forum, Mohali, the instant appeal has been preferred against the same by the OP now appellant.

5.      We have heard learned counsel for the parties and have also examined the record of the case. The counsel for OP now appellant strenuously contended during the arguments that the gallbladder surgery of the complainant is not covered under the insurance policy and hence District Forum has committed any illegality in accepting the complaint of the complainant. It was further submitted that as per the policy, the complainant was entitled for hospital admission for medical management and other surgeries. It was submitted by counsel for the appellant that they do not dispute this fact that complainant was admitted on 13.10.2010 and was operated for the above surgery and she paid Rs.32897/- towards room rent, doctor fee, surgery, MRI etc. It was contended by counsel for the appellant that District Forum has overlooked this point that the case of the complainant is not covered under the insurance policy at all. It was contended that the District Forum travelled down the terms and conditions of the insurance policy and accepted the complaint of the complainant  illegally. The counsel for the complainant now respondent in this appeal supported the order of the District Forum in this case.

6.      We have examined the evidence on the record and heard the respective submissions of counsel for the parties in this case. The relevant evidence is required to be adverted to by us on the record to settle this controversy between the parties. Undisputedly, the complainant was insured with the OP against payment of premium for medical examination of the complainant, vide Ex.C-1, Ex.C-2 is first premium receipt dated 28.7.09, Ex.C-3 installment of premium, Ex.C-4 is of the terms and conditions of the insurance policy document, Ex.C-5/1 to Ex.C-5/13 are different receipts of the amount paid by the complainant towards her treatment for her surgery. The OPs tendered in evidence affidavit of Lalit Vermani  Authorized Officer, Birla Sun Life Insurance Ex.RW-1/1, copy of general power of attorney  is Ex.R-1, Ex.R-2 is list of covered surgeries under the Contract of Insurance. Ex.R-2 is important piece of evidence on the record.  From perusal of Grade 4 covered surgery of the list covered surgery contained in Ex.R-2, it is recorded at serial no.58 thereof that Cholecystectomy with or without chole billary duct (CBD) exploration (open/lap) within definition of the covered surgery. Similarly, in the document of the insurance Ex.C-3 as placed by the complainant on the record at serial no.58 in Grade 4 has covered surgery and the instant surgery is duly covered thereunder. We find no substance in the contention of counsel for OP now appellant that it is not covered under the terms and conditions of the Contract of Insurance. The District Forum found the stand of the OP contradictory on this point. The counsel for OP now appellant referred to law laid down in Reliance Life Insurance Company Ltd & others Vs.  Madhavacharya reported in Revision Petition No.211 of 2009 decided on 02.02.2010 by Hon'ble National Commission, but we find that this authority would not help the OP in any way. Similarly, reliance was made to law laid down by Apex Court in General Assurance Society Ltd.. Vs. Chandumall Jain and another reported in 1966 AIR (SC) 1644, which is entirely on different pedestal. This authority has arisen from different facts and would not be applicable in this case. Similarly, reference was made to law laid down in M/s Suraj Mal Ram Niwas Oil Mills (P) Ltd… Vs. United India Insurance Company Limited and another reported in AIR 2011 Page 903,  but this authority is not applicable in this case. There is no breach of terms and conditions of the Contract of Insurance in this case. We find that the Cholecystectomy Surgery is duly covered under the Grade 4 Category under Contract of Insurance as discussed above.  No substance is found in the submission of OP now appellant that it is excluded therefrom by the Contract of Insurance.

7.      In view of the our above discussion, we find that the order of the District Forum under challenge in this case is unassailable and same is affirmed in this appeal. Resultantly, there is no merit in the appeal and same is hereby dismissed.

8.      The appellant had deposited an amount of Rs.25,000/-, vide receipt dated 29.09.2011 and Rs.15429/-, vide receipt dated 03.11.2011 in this commission at the time of filing the appeal.  Both these amounts with interest, if any, accrued thereon, be refunded by the registry to the complainant by way of crossed cheque/demand draft after 45 days from receipt of copy of this order. Remaining amount shall be paid by the appellant to the complainant within 45 days as per order of the District Forum.

9.       Arguments in this appeal were heard on 16.04.2015 and the order was reserved. Now the order be communicated to the parties.

10.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                                (VINOD KUMAR GUPTA)

                                                                          MEMBER

 

 

                                                            (HARCHARAN SINGH GURAM)

                                                                             MEMBER

 

April, 20  2015.                                                              

(ravi)