PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        By this complaint the Complainant has prayed that the Opposite Party No.1 be held guilty of deficiency of service and unfair trade practice as per the provisions of the Consumer Protection Act, 1986 (hereinafter referred to as the Act).  It is prayed that the Opposite Parties be directed to pay Rs.41,701/- with interest @ 21% p.a. to the Complainant and compensation of Rs.30,000/- towards mental torture and harassment caused to the Complainant.  It is further prayed that to grant just amount towards this legal proceeding.

2)        According to the Complainant, he has purchased Individual Mediclaim Policy No.121500/48/10/996 from the Opposite Parties which covers his family including his son Mast. Neil Uday Parab.  The Opposite Party No.1 is Third Party Administrator.  The Opposite Party Nos. 2 & 3 issued the policy marked as Exh.‘A’ (copy) to the Complainant dtd.17/11/2009 and 26/02/2010.  It is submitted that the child of the Complainant was the beneficiary under the said policy. According to the Complainant, on or about 23/06/2010 the Complainant met Dr. Rajeev Redkar, Pediatric Surgeon for the treatment of his son Mast. Neil.  Thereafter, he was admitted in Lilavati Hospital.  On 30/06/2010 for the treatment of swelling in the inner aspect of buttock.  After the treatment he was discharged on 02/07/2010.  The total expenditure incurred for the treatment of Mast. Neil is shown of Rs.41,701/- in para 8 of the complaint.  The copies of vouchers issued by Lilavati Hospital are marked as Exh.‘B’ & ‘C’.  It is alleged that the Complainant submitted  the claim documents to the Opposite Parties and requested to release the claim amount of Rs.41,701/-.  The Opposite Party No.1 denied the claim for the expenses of the treatment of Complainant’s son vide letter dtd.07/09/2010.  The copy of the said letter is marked as Exh.‘D’. It is submitted that the Opposite Parties are bound to pay the charges for the treatment of Complainant’s son and by not releasing the said payment, the Opposite Parties have adopted unfair trade practice and are guilty of deficiency in service.  It is the case of the Complainant that the son of the Complainant at the time of surgery was suffering from Acute Perinal Abases.  The copy of the certificate issued by Dr. Rajeev Redkar of Lilavati Hospital is filed at Exh.‘E’.  It is submitted that the Opposite Parties never explained the Complainant that which diseases are covered under the said policy and which diseases are not covered.  The Complainant alleged that the Opposite Parties have no plausible explanation to refuse the legitimate claim of the Complainant.  It is submitted that as the Opposite Parties have taken the premium of mediclaim policy they are bound to reimburse the treatment charges of the Complainant.  According to the Complainant, as the Opposite Parties had adopted unfair trade practice and harassed the Complainant by not admitting his claim they are liable to pay compensation and other claim as mentioned in para 1 of this order.

3)        The Opposite Party No.1 though served remained absent. The complaint therefore, proceeded ex-parte against Opposite Party No.1.  The Opposite Party Nos.2 & 3 filed their written statement and contested the claim.  It is contended that the Opposite Party No.1 & 2 in this complaint is to be defended by Opposite Party No.3 as the Opposite Party No.1 & 2 is Agent and TPA of Opposite Party No.3 and Opposite Party No.2 is the Head Office of Opposite Party No.3 which is Administrative/Supervisory Authority and not a policy issuing authority. It is contended that all the defenses are taken by the Opposite Party No.3 in lieu of Opposite Party No.1 & 2.  It is denied that the Insurance Company had acted in a malafied or arbitrary manner.  The present complaint needs to be dealt with clause 4.3 of the policy.  It is contended that the claim was repudiated on plane and simple reading of clause 4.3 of the policy terms and condition.  The Opposite Party Nos. 2 & 3 have justified the action of Opposite Party No.1 and denied the parawise allegation made by the Complainant and prayed for dismissal of complaint.

4)        The Complainant has filed his affidavit of evidence.  The Opposite Party No.3 filed affidavit of Anurag Shrivastav, Manager of Opposite Party No.3. The Complainant has filed written argument.  The Opposite Party Nos.2 & 3 have not filed their written argument.  We heard Shri. Santosh Saroj, Advocate on behalf of Punit Shukla, Advocate for the Complainant and Smt. Sapna Bhuptany, Advocate for the Opposite Party Nos.2 & 3.  We have perused the documents filed in this complaint.

5)        While considering the claim made in the complaint it is necessary to be taken into consideration that the Complainant had obtained Individual Mediclaim Policy initially for himself, his wife and daughter Neha on 17/11/2009 and it was new policy.  The copies of premium receipts are filed at page 13 to 15 with complaint. The Complainant thereafter, purchased the policy for his son on 26/02/2010 as per the copies of documents at page 16 to 18 filed with the complaint. The son of the Complainant Neil was provided the treatment for Festula in Ano on 01/07/2010 at Lilavati Hospital.  At the relevant time his age was shown 1 year as per discharge card documents at page 19 filed with the complaint.   According to the certificate issued by Dr. Rajeev Redkar, at page 40 the son of the Complainant Neil (7 months) had an acute perianal abscess leading to festula- in-ano which was treated surgically by him at Lilavati Hospital. In view of these facts the repudiation letter issued by the Opposite Party No.1filed at page 39 is required to be considered.  In the said letter the Opposite Party No.1 has informed the Complainant that his claim is not tenable for the following reason –

           “We are in receipt of your claim documents.  As per available documents, patient was hospitalized with complaints related to fistula-in-ano Surgical treatment for the same.  As per available policy details endorsement of Mst. Neil Uday Parab w.e.f.26/02/2010, hence, this is the first year policy with the date of inception 26/02/2010.  As any expenses towards fistula-in-ano not payable for the first two year of the policy, hence, this claim stands non payable under exclusion clause 4.3.  As per clause 4.3.

            During the period of insurance cover the expenses of treatment of following ailment/diseases/surgeries for specified periods are not payable if contracted and/or manifested during the currency of the policy eg. Fisher/Festula-in-Anus, Hypertension, Diabetes, surgery of varicose venues and varicose ulcers and Cloinal internal diseases for two years and joint replacement due to Degenerative condition, age related Osteoarthritis and Osteoporosis for 4 years.  Fistula-in-ano.”   

6)        The Ld.Advocate for the Complainant while submitting his argument has mostly emphasized that the child who was operated was only of 7 months and as per the clause no.4.3 if these diseases are pre-existing at the time of proposal the clause no.4.1 pre-existing condition shall applicable in the cases and submitted that the repudiation made by the Opposite Party No.1 is totally improper and not as per the terms and conditions of the policy.  He also relied the case of Pravin Damani V/s. Oriental Insurance Co. Ltd. in Revision Petition No.1696 of 2005 decided by theHon’ble National Commission on 03/10/2006 and submitted that the clause in condition No.4.3 in view of the age of Mast. Neil is not at all applicable and the Opposite Parties are liable to pay the amount ofRs.41,701/- and the other claims made in the complaint. 

7)        Smt. Sapna Bhuptani, Ld.Advocate for the Opposite Party No. 2 & 3 relied the repudiation letter and condition No.3.4 of the policy and submitted that the Opposite Parties have rightly repudiated the claim.  She in support of her submission relied the observations in the case Mr. Mahendra Shah V/s. Branch Manager, National Insurance Co. Ltd., First Appeal No.A/10/1214 decided on 23/01/2014 and Pradip Damodar Sonawane V/s. The Manager, The Oriental Insurance Co. Ltd., First appeal No.A/11/1378 decided on 10/05/2013 by the Hon’ble State Commission Maharashtra and submitted that as the Complainant’s claim is not admissible within the terms and conditions of the policy, the claim made in the complaint is liable to be dismissed. 

8)        In view of the aforesaid facts and the ground on which the claim lodged by the Complainant has been rejected under exclusion clause 4.3 of the policy needs to be taken into consideration. The said clause is an under –

“The expenses on treatment of following ailment/diseases/ 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.”

            In the said exclusion clause as per chart given in that clause at Sr. No.X fissure/fistula in anus the period is provided for two years.  As noted above the Complainant had obtained new policy in the year 2009 for himself, his wife and daughter Neha and for his son Mast. Neil on 26/02/2010.  In our view thus, the Opposite Party No.1 has rightly repudiated the claim lodged by the Complainant as per exclusion no.4.3 of the policy terms and conditions. The submissions made by the advocate for the Complainant relying upon the case decided by the Hon’ble National Commission in Revision Petition No.1696 of 2005, decided on 03/10/2006 (Cited Supra) cannot be accepted.  The facts of the said case and the facts of this case are quite different.  The cases on the other hand relied by the advocate for the Opposite Party in First Appeal No.1214/10, decided on 23/01/2014 and 378/2011, decided on 10/05/2013 of the Hon’ble State Commission Maharashtra (Cited Supra) are applicable to the facts of this case. In Appeal No.378/2011, the Hon’ble State Commission has by pointing out specific condition in the concerned policy which was applicable in that case has held that –

                      “It is well settled principal that the Consumer Fora can not  re-write the insurance mediclaim policy contract or cannot substitute in it.”

            In the present case the disease for which Mast. Neil was operated occurred within the period of 5 months from the issuance of the policy by the Opposite Party No.3 and therefore, in our view the exclusion no.4.3, is squarely applicable and the claim lodged by the Complainant for reimbursement charges towards his treatment was/is not at all payable by the Opposite Parties. We therefore, hold that the Opposite Party No.1 has rightly intimated that the claim is not payable. As the Opposite Parties have rightly repudiated the claim in view of exclusion no.4.3 of the policy, it cannot be held that they have adopted any unfair trade practice or they are guilty of deficiency in service. In the result we hold that the complaint is liable to be dismissed.  We therefore, pass the following order –

O R D E R

i.     Complaint No.12/2011 is dismissed with no order as to cost.

            ii.     Certified copies of this order be furnished to the parties