Punjab

StateCommission

A/1143/2015

Oriental Insurance Company Ltd. - Complainant(s)

Versus

Ranju Pasricha - Opp.Party(s)

Pradeep Kumar

13 Feb 2017

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.1143 of 2015

 

                                                          Date of Institution: 19.10.2015

                                                          Order Reserved on : 09.02.2017

                                                          Date of Decision:  13.02.2017

 

1.      The Oriental Insurance Company Limited, Oriental House, A- 25/27, Asaf Ali Road, New Delhi, through its Divisional          Incharge/Person Overall Incharge.

 

2.      The Oriental Insurance Company Limited, Divisional Office     no.1, Dwarkikadishji Complex, Queens Road, Amritsar,        through its Divisional Manager.

 

          Both the above, through its Regional Office at SCO No. 109-  110-111, Sector 17-D, Chandigarh 160017.

 

                                                 Appellants/Opposite parties no.1 and 2       

             Versus

 

1.      Ranju Pasricha wife of late Ashok Pasricha.

2.      Sahil Pasricha son of late Ashok Pasricha.

          Both residents of H.No. 1576, Gali No. 7, Street Thakurdwara,          Quila Bhangian, Amritsar

3.      Sakshi Arora daughter of late Ashok Pasricha, wife of Anurag,         resident of H.No. 941/1, Katra Bhaggain, Amritsar

 

                                                Respondents no.1 to 3/Complainants

 

4.      E-Meditek (TPA) Services Limited, SCO No. 56, First Floor,     Sector 30-C, Chandigarh , through its officer Incharge/Person    overall incharge.

 

                                                Respondent no.4/Opposite party no.3

 

 

First Appeal against order dated 03.09.2015 passed by the District Consumer Disputes Redressal Forum,  Amritsar.

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

            Shri.J.S Gill, Member

 

         

Present:-

          For appellants                       : Sh. Pardeep Kumar, Advocate

          For respondent no.1-3                   : Sh.Akhilesh Vyas, Advocate

          For respondents no.4           : Ex-parte

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

 

         J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellants directed this appeal against order dated 03.09.2015 of District Forum Amritsar, directing the appellants to pay the amount of Rs.2 lac to complainants, the respondents of this appeal being legal heirs of Ashok Pasricha insured, besides Rs.2,000/- as costs of litigation. The instant appeal has been preferred against the same order. Respondents no.1 to 3 of this appeal are complainants in the original complaint before District Forum and appellants of this appeal are OPs no.1 and 2 and respondent no.4 of this appeal is opposite party no.3 in the complaint

and they be referred as such hereinafter for the sake of convenience.

2.      The complainant has filed the complaint U/s 12 of The Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that Ashok Pasricha husband of the complainant no.1 and father of complainants no.2 and 3 purchased mediclaim insurance policies from OPs  and had been earning bonus on claim free insurance on the said policies. The said policies are in continuation without any claim, which are detailed as below :-

i)        Policy no. 233300/48/2009/1615 valid from 20.03.2009 to       19.03.2010.

ii)       Policy no. 233300/48/2010/2901 valid from 20.03.2010 to       19.03.2011.

iii)      Policy no. 233300/48/2011/3645 valid from 20.03.2011 to       19.03.2012.

The cards of above policies were issued to Ashok Pasricha by OPs. Ashok Pasricha insured expired on 29.08.2013 and complainants being legal heirs have stepped into his shoes and became the consumers of OPs. The OPs never supplied any terms and conditions of the policy other than cover note.  During the validity period of policy no. 233300/48/2010/2901 w.e.f. 20.03.2010 to 19.03.2011, Ashok Pasricha suddenly fell followed by Lt upper and lower lim weaken a/w  vertify and GCS was E2 V3 M6 which deteriorated to EI V2 M3 by the time. He was not suffering from any past disease. He suddenly suffered from said disease due to hypertension and was got admitted in an unconsciousness condition in EMC Hospital Amritsar on 14.02.2011. The total amount of expenses came to 5-6 lac on his treatment in the above hospital and he was discharged on 20.04.2011 and was recommended certain medicines. The claim was lodged with OPs for reimbursement of medical expenses with TPA i.e. third party administrator, OP no.3 and all the requisite documents and original medical bills etc were supplied to OP No.3, but instead of paying the genuine claim, OP no.3 treated the impugned claim on 03.10.2011 as "No claim" that no proper documents have been supplied. Ashok Pasricha filed complaint no. 311-12 on 08.05.2012, which was decided by Consumer Forum by giving directions to decide the claim within two months. Ashok Pasricha died on 29.08.2013 and complainants, thus, filed the complaint being his legal heirs. OPs repudiated the claim of Ashok Pasricha, vide letter dated 06.08.2013 during execution proceedings in an arbitrary manner. The complainants challenged the repudiation of the insurance claim of Ashok Pasricha with them. The complainants have, thus, filed complaint directing OPs to pay insured amount of Rs.2 lac with interest @ 12% per annum and Rs.50,000/- as compensation and litigation expenses as well.

3.      Upon notice, OPs no.1 and 2 filed written reply and contested the complaint of the complainant vehemently. Preliminary objections were taken that complaint is baseless, frivolous and filed with an ulterior motive. It was averred that complainants are estopped by their act and conduct from filing the complaint because they are not consumers. The complaint is alleged to be without cause of action and not maintainable. On merits, it  was not disputed that policies were issued to Ashok Pasricha by OPs as mentioned in the record. This fact was vehemently denied that only cover note or schedule of insurance was supplied to complainant without detailed terms and conditions of the policies thereof. No complaint was filed by the complainant prior to filing of the complaint in this regard. OPs denied the averments of the complainant that Ashok Pasricha DLA was not suffering from any past disease and he suddenly fell ill. The matter of treatment and matter of record of Ashok Pasricha from hospital is alleged to be matter of record only. Any deficiency in service was denied by OPs and it prayed for dismissal of the complaint.

4.      The complainant tendered in evidence copies of documents Ex.C-1 to Ex.C-19.  As against it; OPs tendered in evidence affidavit of Sandeep Thapa Senior Divisional Manager Oriental Insurance Company Ltd., DO-1, Queens Road Amritsar Ex.OP1-2/1 along with copies of documents Ex.OP1-2/2 to Ex.OP1-2/8. On conclusion of evidence and arguments, the District Forum Amritsar accepted the complaint of the complainant by virtue of order dated 03.09.2015. Dissatisfied with the order of the District Forum Amritsar dated 03.09.2015, opposite parties no.1 and 2 now appellants, carried this appeal against the same.

5.      We have heard learned counsel for parties at considerable length and have also examined the record of the case.

6.      Firstly, we examined this point, as to whether the terms and conditions of the policy are proved to have been supplied to the complainant by OPs or not? We have examined the pleadings of the parties and evidence on the record. It is clear that Ashok Pasricha has been taking the policy from OPs no.1 to 3 since 2009 onwards. The policies are in continuation. The complainant instituted the complaint on 05.05.2014 complaining that policy's terms and conditions were not supplied. Since the insured has been receiving the policies from 2009 onwards in continuation and hence it is not credible that policy terms and conditions were not supplied to him. Even otherwise order Ex.C-11 dated 09.04.2013 passed by District Forum Amritsar makes it clear that this plea was not specifically taken that policy terms and conditions were not supplied to the insured by the insurer. We are not in agreement with the findings of the District Forum to the contrary on the record on this point. Once insured has filled in the proposal form and taken the insurance policy and there is nothing on the record regarding lodging complaint for non-receipt of the policy on the side of insured, so we do not accept this contention of the complainant in this regard, as it appears to be an afterthought version only .

7.      The parties are strictly bound by the terms and conditions of the policy document. The complainant has been taking the policies from 2009 onwards, as pleaded in the complaint. Ashok Pasricha was affected by left upper and lower lim weaken a/w vertify, when he reached hospital. His GCS was E2 V3 M6, which deteriorated to EI V2 M3 by the time. As per checkup, he was found suddenly suffering from said disease due to hypertension. He was admitted in EMC Hospital Amritsar on 14.02.2011. The main emphasis of OPs now appellants is on exclusion clause 4.3 of the terms and conditions of the policy document in this regard that insured is not entitled to the claim, if the disorder of hypertension has manifested within two years from the currency of the policy document. The terms and conditions of the policy document are Ex.OP1-2/5 on the record. Clause 4.3 is reproduced as under :-

          4.3 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.

i	Benign ENT disorders and surgeries i.e. Tonsillectomy, Adenoldectomy, Mastoidectomy, Tympanosplasty etc.	1 year
ii	Polycystic ovarian diseases	1 year
iii	Surgery of hernia.	2 years
iv	Surgery of hydrocele	2 years
v	Non infective Arthritis	2 years
vi	Undecendent Tests	2 years
vii	Cataract	2 years
viii	Surgery of benign prostatic hypertrophy	2 years
ix	Hysterectomy for menorrhagia or fibromyoma or myomectomy or prolapsed of uterus.	2 years
x	Fissure/Fistula in anus.	2 years
xi	Piles	2 years
Xii	Sinusitis and related disorders	2 years
Xiii	Surgery of gallbladder and bile duct excluding malignancy	2 years
Xi	Surgery of genitor-urinary system excluding malignancy	2 years
Xv	Pilonidal Sinus	2 years
Xvi	Gout and Rheumatism	2 years
Xvi i	Hypertension	2 years
Xvi ii	Diabetes	2 years
Xix	Calculus diseases	2 years
Xx	Surgery for prolapsed inter vertebral disk unless arising from accident	2 years
Xxi	Surgery for varicose veins and varicose ulcers	2 years
Xxi i	Joint replacement due to Degenerative condition	4 years
Xxi ii	Age related osteoarthritis and Osteoporosis	4 years

 

It is evident from perusal of this clause that if it is not maintained, then subsequent cover shall be treated as fresh policy and clauses 4.1, 4.2, 4.3 shall apply unless agreed to by the company and suitable endorsement passed on the policy. The terms and conditions of the policy are Ex.OP1-2/5 on the record.

8.      The only point of controversy in this case raised before us is whether claim is admissible as per exclusion clause 4.3 of the policy terms and conditions or not? It is, thus, evident from perusal of pleadings, as well as, evidence on the record that first policy of the insured commenced on 20.03.2009 by counting period from 20.03.2009. We have to calculate whether the disorder of hypertension manifested after two years or within two years period from the inception of the first policy. The period of two years would come to an end on 19.03.2011 by tagging the first policy period taken from OPs by insured in this case. We have primarily to examine, whether insured was affected with hypertension within two years period or subsequent therefrom commencing from 20.03.2009. As per pleaded case of the complainant in para no.3 of the complaint that he fell ill on 14.02.2011 followed by Lt upper and lower lim weaken a/w vertify and when he reached hospital, his GCS was E2 V3 M6, which deteriorated to EI V2 M3 by the time. The said disease was due to hypertension as diagnosed by the doctors. During period of two years from the date of commencement, i.e. 20.03.2009 the insured was affected with disorder of hypertension. The terms and conditions of the policy excludes the disorder of hypertension, if manifested during two years from the date of commencement of the policy from payment clause for the claim. The expenses on treatment of the ailment, diseases, surgeries for specified period are not payable, if contracted or manifested during the currency of the policy as per clause 12.3 of Ex.OP1-2/5. The case in hand is squarely covered by exclusion clause 4.3 of the terms and conditions of the policy pertaining to general exclusions because the ailment of hypertension manifested within two years from the commencement of the policy. The OPs are, thus, justified in not honouring the insurance claim of the complainant. The District Forum erroneously held entitlement of the complainant to insurance claim being LRs of Ashok Pasricha to Rs.2 lac for insured amount. The law relied upon by District Forum in Oriental Insurance Company Limited Vs. Satpal Singh and others reported in 2014(2) CLT (NC) Page 305 would not entitled the complainant, because insured has been taking the policies since 20.03.2009 and never lodged any such complaint regarding non-receipt of the policy at any time with OPs. The complaint was filed in the year 2014 and this plea was taken all of a sudden to avoid the ground of availing free look period option clause of the policy. We, thus, hold that the claim of the complainant is not admissible under exclusion clause 4.3 of the terms and conditions of the policy. The order of District Forum to the contrary is not sustainable and is ordered to be reversed in this appeal resulting into dismissal of the complaint of the complainant.

9.      As a result of our above discussion, we accept the appeal of the appellant and by setting aside the order of District Forum Amritsar dated 03.09.2015, the complaint filed by the complainants now respondents in this appeal stands dismissed.

10.    The appellant no.2 had deposited an amount of Rs.25,000/- with this Commission at the time of filing the appeal and further deposited Rs.1,47,250/- in compliance of the order of this Commission, vide receipt dated 23.11.2015. Both these amounts  with interest, if any, accrued thereon, be refunded by the registry to appellant no.2 of this appeal by way of crossed cheque/demand draft after the expiry of 45 days.

11     Arguments in this appeal were heard on 09.02.2017 and the order was reserved. Copies of the order be communicated to the parties as per rules.

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

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                    

                                                                              (J.S GILL)

                                                                               MEMBER

 

                                                                                                         

February 13,  2017                                                             

(ravi)