Haryana

Panchkula

CC/470/2019

SUDARSHAN KUMAR. - Complainant(s)

Versus

STAR HEALTH AND ALLIED INSURANCE CO.LTD. AND OTHERS. - Opp.Party(s)

SUDARSHAN KUMAR

07 Apr 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.

 

                                                       

Consumer Complaint No	:	470 of 2019
Date of Institution	:	16.08.2019
Date of Decision	:	07.04.2023

 

Sudarshan Kumar aged 41 years son of Sh. Jagdish Chand, House No.904, Sector-10, Panchkula.

    ..….Complainant

Versus                                                                  

1.     Star Health and Allied Insurance Co. Ltd. through its branch       Manager SCO No.130-131, 4^th Floor, Sector-34-A, Chandigarh.

2.     Star Health and Allied Insurance Co. Ltd. through its Principal     officer at No.15, Shri Bala Ji Complex, First Floor, whiteslane, Royeapettach, Cheenai, India-600014.

3.     Raffles Hospital through its Director/Principal Officer Sector-14, Panchkula, Haryana.

4.     Mrs. Sumita Batta w/o Sh. Ankush Batta Authorised representative of Star Health and Allied Insurance Co.Ltd. resident      of house No.231, Sector-10, Panchkula, Haryana.

                                                                       ……Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

 

Before:              Sh. Satpal, President.

                        Dr. Sushma Garg, Member.

                        Dr. Barhm Parkash Yadav, Member.

 

 

For the Parties:   Complainant in person.

                        Sh.Gaurav Bhardwaj, Advocates for Ops No.1,2 & 4.

                        Sh.Anirudh Kush, Advocate for OP No.3.

ORDER

(Satpal, President)

1.             Briefly stated, the facts as alleged in the present complaint, are that a family health optima insurance policy bearing no.P/21100/ 01/2019/001339 dated 25.08.2018 belonging to Ops No.1 & 2, valid from 25.08.2018 to midnight of 24.08.2019 for a period of one year, was purchased by the Complainant through agent namely Mrs. Sumita Batta Intermediary code BA00002611360, having coverage of Rs.5,00,000/- and recharge benefit of Rs.1,50,000/-. The Premium of policy was paid on 25.08.2018 with declaration that no member of the family except Mr.Sudarshan Kumar was having any pre-existing disease. It is stated that as per Clause no.1(F) and 1(G), pre-hospitalization-Medical Expenses incurred upto 60 days prior to hospitalization and Post-Hospitalization-Medical Expenses incurred upto 90 days  after discharge  from hospital are covered. It is stated that the complainant’s son, namely, Pranjay was not suffering from any kind of disease at the time of purchasing of the said health insurance policy and that after 7 months, on 27.03.2019, he fell down on the ground due to hitting by another bicycle near his residence. Due to severe pain felt by said insured Pranjay, the complainant consulted the doctor of Civil Hospital, Panchkula on 28.03.2019, who advised X-ray and bed rest. On 11.04.2019 at about 11:00 PM, Pranjay slipped in bathroom in his residence and due to severe pain in right hip, he was admitted in Raffles Hospital, Panchkula on 11.04.2019 and discharged on 13.04.2019. It is stated that the complainant approached the Ops for cashless facility but the Ops straight away rejected the cashless facility vide letter dated 11.04.2019 as per waiting period/exclusion no.3(ii)(d) of the policy. It is stated that the Complainant’ s son, namely, Pranjay was having no pre-existing disease prior to purchase of the said health insurance policy. It is stated that as per discharge summary issued by Raffels Hospital, Panchkula, the cause of surgery was fracture as mentioned in the discharge summary. It is stated that the complainant borrowed the money from his relatives/ friends for the surgery of his son and paid bills of hospital and that the complainant submitted all bills to agent i.e. OP No. 4 but the claim was rejected by the Ops No.1 & 2 vide letter dated 29.04.2019. On 04.05.2019, complainant sent an application to Branch Manager Star Health and Allied Insurance Co. Ltd. Chandigarh for review of the matter but no response from OPs was received. Due to the act and conduct of the OPs, the complainant has suffered a great mental agony, physical harassment and financial loss; hence, the present complaint.

2.             Upon notice, the OPs No.1, 2 & 4 appeared through their counsel and filed written statement, contesting the complaint, by raising preliminary objections that the complainant has not approached the commission with clean hands and that no cause of action has accrued in favour of the complainant to file the present complaint. It is submitted that the claim for reimbursement of expenses amounting to Rs.65000/- was lodged by the complainant but, on scrutiny of documents and as per discharge summary of Raffels Hospital dated 13.04.2019, the insured was found having a history of severe pain right side hip, unable to walk, swelling; complaints started 10 days back but now increasing day by day; so, he was brought for further treatment and management. The insured was diagnosed with the ailments of Slipped Capital Femoral Epiphysis Right side and the same was excluded as per the terms and conditions of the policy. The waiting period as contained in Clause No. 3(ii)(d) of the policy is as follows:- “A waiting period of 24 consecutive  months  of continuous coverage from the inception of this policy  will apply to the following specified ailments/illness/diseases:-All treatments (Conservative, Operative treatment) and all types of intervention for Diseases related to Tendon, Ligament, Fascia, Bones and Joint including Arthroscopy and Arthroplasty/Joint  Replacement (other than cause by accident)”. As per waiting period, the claim was repudiated and the same was informed to the insured vide letter dated 29.04.2019. It is submitted that the Complainant had availed Family Health Optima Insurance Plan Vide policy no.P/211100/01/2019/001339 for the period of one year w.e.f. 25.08.2018 to 24.08.2019, covering  Sudarshan Kumar, Nirmal-spouse, Puranjay and Nikhil-Dependant Children for the sum insured of Rs.5,00,000/-. It is submitted that the policy is contractual in nature and the claims arising therein, are subject to the terms and conditions forming part of the policy. The complainant has accepted the policy agreeing and being fully aware of such terms and conditions and executed the proposal Form. The terms and conditions of the policy were explained to the complainant at the time of purchasing the policy and the same ware served to the complainant along with the policy schedule. It is clearly stated in the policy schedule that “THE INSURANCE UNDER THIS POLICY IS SUBJECT TO CONDITIONS. CLAUSES, WARRANTIES, EXCLUSIONS ETC. It is submitted that the insured was admitted at Raffels Hospital Pvt. Ltd. GOLPURA(17) on 11.04.2019 for the treatment of Capital Slipped Femoral Epiphysis and submitted pre-authorization request for cashless authorization. On perusal of the documents, it was observed that the slipped Femoral Epiphysis had arisen during the waiting period and as per the waiting period provided in clause no.3(ii)(d) of the policy, the claim is not admissible for a period of first 2 years  from the date of inception  of the first policy. Hence, the cashless authorization was denied vide letter dated 11.04.2019 on the ground of 2 years waiting period. It is alleged that subsequently, the insured had submitted the claim documents for reimbursement of medical expenses for Rs.65,000/-. On scrutiny of the claim documents, it was observed that as per the discharge summary of Raffels Hospital dated 13.04.2019, the insured had a history of complaints of severe pain right side hip and unable to walk, swelling etc. He was diagnosed with the ailments of slipped Capital Femoral Epiphysis Right side. It is alleged that Slipped capital femoral epiphysis(SCFE) is a hip condition that occurs in teens and pre-teens, who are still growing. It is stated that the treatment for the ailment taken by the insured is excluded for first two years and the present claim has been reported in the 8^th month of the policy, so the claim was rightly repudiated by the OPs as per terms and conditions of the policy. On merits, pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OPs No.1,2 & 4 and as such, the complaint of the complainant is liable to be dismissed.

                Upon notice, the OP No.3 appeared through its counsel and filed written statement, contesting the complaint, by raising preliminary objections that the present complaint is not maintainable in its present form and the Complainant has no locus-standi; no cause of action has accrued in favour of the complainant against OP No.3.  

                On merits, it is submitted that the son of the complainant, namely, Pranjay Kaushik, was admitted in the hospital of OP No. 3, in Emergency, on 11.04.2019, with the history of fracture, having swelling and severe pain in right side hip and was unable to walk. It is submitted that Op No.3 after getting fresh X-ray found that it was a case of fracture which showed slipped Capital Femoral Epiphysis and was immediately operated for screw insertion plus reduction. It is stated that operation was found successful as per post X-ray films and that all medical treatment documents were handed over to the attendant of patient at the time of discharge on 13.04.2019. Rest of the averments made in the complaint are denied being incorrect and for want of knowledge and thus, prayer for dismissal of the complaint qua OP No.3 has been made.

 3.            To prove the case, the complainant has tendered affidavits as Annexure C-A & C-B along with document Annexure C-1 to C-8 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OPs No.1,2 & 4 has tendered affidavit Annexure R-A along with documents as Annexures R-1 to R-13 and closed the evidence. The learned counsel for the OP No.3 has tendered affidavit as Annexure R3/A along with documents as Annexure R3/1 & R3/2 and closed the evidence.

                During the course of arguments, the Complainant has submitted the summary of expenses amounting to Rs. 67,850/- incurred during the treatment of his son, namely, Pranjay. The summary of expenses is taken on record as ‘Mark A’ for the adjudication of the complaint in a proper and fair manner.

4.             We have heard the complainant and the learned counsel for the OP and gone through the entire record including the written arguments filed by the complainant as well as OPs No.1,2 & 4, minutely and carefully.

5.             The Ops No.1 & 2 have not disputed, the expenses incurred by the Complainant amounting to Rs. 67,850/- prior to, during and after hospitalization of his son, namely, Pranjay but the reimbursement of the claim has been denied by them on 29.04.2019 vide repudiation letter Annexure C-6/R-12 by invoking the waiting clause as contained in clause no. 3(ii)(d) of the insurance policy Annexure R-1, wherein the waiting period of 24 months has been provided qua the expenses incurred on certain ailments.

6.             The Complainant reiterating the averments as made in the complaint as also in his affidavit Annexure C-A and affidavit Annexure C-B of his wife has contended that waiting clause as invoked by the OPs vide repudiation letter Annexure C-6/R-12 is not applicable in the present case as insured Pranjay had sustained injuries in accident on 27.03.2019 and 10.04.2019 leading to fractures, which had necessitated his hospitalization. It is contended that repudiation of the genuine claim was neither fair nor justified and thus, prayer has been made for acceptance of the complaint by directing the OPs No. 1 and 2 to reimburse the claim to the tune of Rs. 67,850/- along with interest and other compensation.

7.             On the other hand, the Ld. Counsel appearing on behalf of the OPs No. 1, 2 and 4 while reiterating the averments as made in the written statement as also in the affidavit(Annexure R-A) has justified the repudiation of the claim vide Annexure C-6/R-12 contending that expenses incurred during the treatment, relating to ailments i.e. Tendon, Ligament, Fascia, Bones and Joint including Arthroscopy and Arthroplasty/Joint  Replacement, are not admissible within 24 months  as per waiting period provided in the policy. It is contended that the case of the insured Pranjay was not covered under exception i.e. injuries/ailments resulting from the accident as the treating doctor had mentioned the mode of injury and time of injury as nil vide discharge summary(Annexure C-4/R-4). It is further contended that the Complainant himself also did not mention that the ailment in question had occurred due to accident. Further it is contended that the treating doctor, while responding vide reply(Annexure R-5), did not mention that the surgical operation in question was necessitated on account of any accident. Concluding the arguments, the Ld. Counsel has contended that the insured as well as the insurer are strictly governed by the terms and conditions of the insurance policy. Reliance has been placed upon the following case laws:-

1. Deokar Exports Pvt. LTd. Vs. New India Assurance Company Ltd. (AIR 2009 SC 2026).
2. Manmohan Nanda Vs. United India Assurance Co. Ltd. and another (Civil Appeal No. 8386/2015) decided by the Hon’ble Apex Court on 06.12.2021.  8. The reimbursement of the claim has been denied by the OPs No. 1 and 2 vide repudiation letter Annexure C-6/R-12 by invoking the clause no. 3(ii)(d) of the insurance policy, wherein waiting period of 24 months has been prescribed in relation to certain ailments/diseases/ illness. The said waiting clause of the insurance policy also provides that the waiting period of 24 months is not applicable, in case, the ailments have resulted due to certain accident. The relevant waiting clause, for the sake of clarity and convenience, is reproduced as under:-

3.       Waiting Periods

          A waiting period of 24 consecutive months of continuous coverage from          the inception of this policy will apply to the following specified       ailments/illness/diseases:-

 

All treatments (Conservative, Operative treatment) and all types of   intervention for Diseases related to Tendon, Ligament, Fascia, Bones and Joint      including Arthroscopy and Arthroplasty/Joint  Replacement(other than caused by accident).

9.                From above, it is evident that the period of 24 months is not attracted in case of ailments/diseases/illness, which had resulted due to accident.

10.            Now, adverting to the discharge summary Annexure C-4/R-4, it is found that the word “Fractures” has specifically been mentioned on the top of it. Further, it is mentioned in the said discharge summary that the fracture was reduced using 2 LFPTCS and 2 washes. Furthermore, the OP No. 3 i.e. Raffels Hospital Panchkula in its reply has specifically averred that the insured Pranjay was found having fractures, which showed slipped Capital Femoral Epiphysis and he was immediately operated adopting the procedure of screw insertion plus reduction.  

 11.           Pertinently, two incidents of accident  having suffered by the complainant’s son, namely, Pranjay firstly on 27.03.2019 when he fell  down on the ground on account of hitting  by a bicyclist and secondly on 11.04.2019 when he slipped in his bathroom, have been alleged in the complaint. In the totality of the facts and circumstances of the present case, the version of the complainant qua suffering of two incidents of accident by his son, namely, Pranjay on 27.03.2019 and 11.04.2019 seems to be credible and trustworthy and thus, is liable to be relied upon. Therefore, the case of Pranjay’s treatment falls under the exception provided in the above mentioned clause no. 3(ii)(d) of the insurance policy. In view of the specific and unambiguous remarks made in the discharge summary qua fractures, the provision of waiting period of 24 months is not attracted. Hence, in our considered opinion, the repudiation of the reimbursement of the claim was not fair, valid and justified. As such, the OP No. 1 and 2 have been found deficient while rendering services to the Complainant. The complaint is dismissed qua the OPs No. 3 and 4.

 12.           Turning to the relief clause, it is found that a sum of Rs. 84,850/- was claimed by the Complainant in the complaint. However, during arguments, the Complainant vide summary of expenses(Mark A) has claimed the reimbursement of a sum of Rs. 67,850/-. As mentioned above, the OPs No.  1, 2 and 4 have not disputed the expenses incurred by the Complainant amounting to Rs. 67,850/-.

13.            As a sequel to above discussion, we partly allow the present complaint against the OPs No. 1 and 2 with the following directions:-

1. To reimburse the sum of Rs.67,850/- to the complainant along with  interest @9% p.a. S.I. from the date of filing of present complaint till its realization 
2. To pay a compensation of Rs.5,000/- to the complainant on account of mental agony and harassment.
3. To pay a compensation of Rs.5,500/- to the complainant on account of litigation charges.

 

 14.          The OPs No.1 & 2 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, 2019 against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on: 07.04.2023

 

 

 

     Dr.Barhm Parkash Yadav               Dr.Sushma Garg           Satpal

                Member                      Member                 President

 

Note: Each and every page of this order has been duly signed by me.

 

                                             Satpal

                                            President