DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __139 _ OF ___2018
DATE OF FILING :_11.12.2014 DATE OF JUDGEMENT: 4.6.2019
Present : President : Ananta Kumar Kapri
Member(s) : Jhunu Prasad
COMPLAINANT : Abhijit Ray, 55, Sahid Biswanath Sarani, R.K Pally, Sonarpur, Kolkata-150.
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O.P/O.Ps : Star Health and Allied Insurance Company Ltd. 75C, Park Street, 6th floor, Kolkata-16.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
Refusal of the claim of the complainant for reimbursement of the expenses incurred by him in his operation of Gall Bladder Stone has galvanized the complainant to file the instant case under section 12, C.P Act, 1986, alleging deficiency in service against the O.P/Insurance Company.
Facts leading to the filing of the instant case by the complainant may be epitomized as follows.
The complainant took on-line health insurance policy of the O.P on 9.2.2017 and the policy covered the complainant and his wife for a sum of Rs.5 lac which was increased to Rs.6,25,000/- after renewal of the same. The policy was renewed by the complainant on 9.2.2018 and it was valid from 10.2.2018 to 9.2.2019 with a limit of Rs.6,25,000/-. However, the complainant fell ill seriously and it was detected that he was suffering from Gall Bladder Stone. He underwent surgical operation on 7.6.2018 and thereafter again on 13.7.2018. he had to incur a cost of about Rs.2 lac and thereafter he filed an online claim before the O.P demanding reimbursement of the said expenses. But the O.P rejected the claim on the ground that the case of the complainant is not covered by the policy. Therefore, the complainant has filed the instant case praying for reimbursement of Rs.2 lac and also for compensation etc. Hence this case.
The O.P has been contesting the case by filing written version of its statement, wherein it is mainly contended inter alia that Item no.3(II) (b) of the Insurance Policy makes it clear that an insured will have to wait for 24 months from the date of commencement of the policy for getting insurance coverage in case of some listed diseases including Gall Bladder Stone operation. In the case of the complainant, he underwent operation within a period of two years and , therefore, he is not entitled to get insurance coverage. Claim of the complainant was ,therefore, rightly rejected. The complaint is frivolous and vexatious and so, the complaint should be dismissed in limini.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Is there any deficiency in service on the part of the O.P/Insurance company for rejecting the claim of the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Petition of complaint is treated as evidence of the complainant. Similarly, written version filed by the O.P is also treated as evidence of the O.P vide its petition dated 3.4.2019. BNA filed by the O.P is kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
Already heard the submissions of Ld. Lawyer ,appearing for the O.P and the complainant himself. Perused the petition of complaint, written version and the documents filed on behalf of the parties.
It is undisputed fact that the complainant took an online health insurance policy of the O.P. Also undisputed is that fact that the said policy was renewed by the complainant and it was valid from 10.2.2018 to 9.2.2019.
According to the complainant, he was suffering from Gall Bladder Stone and ,therefore, he underwent surgical operation in “Sree Aurobindo Seva Kendra” twice i.e on 7.6.2018 and again on 13.7.2018, as the symptoms of gall bladder relapsed after first operation. Now , only dispute abegging an answer is whether the complainant is debarred by the exclusion clause as provided under Item no.3 of the insurance agreement from getting reimbursement as claimed. In this regard, it is contended by the complainant that the insurance policy was not provided to him by the O.P at any point of time and there was no scope open to him to know about the exclusion clause of the policy. It is further submitted by him that there are two exclusion clauses mentioned in the policy which was provided to him by the O.P company and those two exclusion clauses covered (i) treatment of disease related to cardio vascular system , hypertension and its complications in case of the insured bearing serial no.1 and (ii) treatment of disease related to cardio vascular system diabetes mellitus and its complications in case of the insured mentioned in Serial no.2. So, according to the complainant, it was within his knowledge that the insurance policy would not cover those two cases as mentioned above and it was not known to him that the insurance policy would not cover his case of gall bladder stone and other diseases. As the exclusion clause was not brought to his notice by the O.P as goes his contention, the O.P company will not get the benefit of such exclusion clause and, therefore, he is entitled to get compensation from the O.P in the manner as prayed for.
Ld. Advocate appearing for the O.P Insurance company has submitted that the policy schedule has been provided to the complainant and it is clearly mentioned towards the end of the policy schedule thus “ The insurance under this policy is subject to condition, clauses, warrantees, exclusions etc. attached”.
So, according to him, the terms and conditions of the policy have obviously been known to the complainant and the complainant cannot escape the rigours of exclusion clause by merely saying that the same was not brought to his notice.
The complainant has filed a copy of ‘policy schedule’ on record with the complaint and this policy schedule is marked as Annexure 1. It is true that there is clearly written in words, “ The insurance under this policy is subject to conditions, clauses, warrantees, exclusions, attached”.
A further perusal of this policy schedule also reveals that there is written in the column “ Details of insured person” that the treatment of diseases related to cardio vascular system, hypertension, diabetes mellitus and its complications are policy excluded diseases (PED). An ordinary person will form an impression having a look into the policy schedule that the aforesaid diseases are only not covered by the insurance policy and that all other diseases are covered by the policy. The complainant has stated categorically in his petition of complaint that no terms and conditions of the policy was supplied to him by the O.P Insurance Company and , therefore, it was not possible for him to know the terms and conditions of the policy except the diseases mentioned above.
The policy schedule mentions that the conditions, exclusions etc. are attached to the policy schedule. To the policy schedule is attached one paper which contains “sector classification” and “Nominee details” and except this document, nothing is seen attached with the policy schedule.
In the circumstances and in view of the facts as on record, we find nothing to disbelieve the version of the complainant and we do hold that the terms and conditions of the policy were not supplied to the complainant and that the policy schedule also creates a doubt in the mind of the policy holder in so far as the exclusion clause is concerned.
The policy schedule speaks of exclusion of disease such as , “Disease related to cardio vascular system, hypertension, diabetes mellitus and other complications”. But, now a copy of the terms and conditions of the policy has been placed on record by the O.P and it appears therefrom that there is a vast list of diseases which are covered by exclusion clause under item no.3(II) (b) of the policy. The question which arises for consideration now is which statement of the policy is correct and what will a common people understand, having gone through the policy schedule as well as the original policy , had it been available to him. If both the documents are taken into consideration , this gives rise to a doubtful condition in the mind of every insured; even a literate person will be misguided by such kinds of terms and conditions of the policy, let alone the ordinary illiterate persons of the country. Now in such a case, will the policy be construed to the benefit of the insured or the insurer? This question is no longer resintegra and it has been put at rest by the Hon’ble Apex Court in General Assurance Society Limited Vs. Chand Mall Jain , reported in [1966] 3 SCR 500, wherein it has been held thus,
“There is no difference between a contract of insurance and any other contract except that in a contract of insurance, there is requirement of Uberima fides i.e good faith on the part of the insured and the contract is likely to be construed contraproferentes i.e against the company in case of ambiguity or doubt”.
Coming to the facts of the instant case and in the face of the ambiguity as pointed out above, we are of the considered view that the benefit of ambiguity in the insurance policy must go to the side of the complainant and the insurance policy shall be construed against the O.P company. So, it is held that the complainant did not have the notice of the exclusion clause of insurance policy as the copy of insurance agreement was not supplied to him and further , the insurance policy will be construed against the O.P insurance company as the policy appears to be rift with ambiguity as pointed out above. The rejection of the claim of the complainant appears to be not proper and such rejection of the claim of the complainant is nothing but a glaring example of deficiency in service on the part of the O.P Insurance company.
The complainant has incurred an expense of Rs.2 lac about in treatment and hospitalization and this version of him is also supported by cash memos (Annexure –V) which go undisputed. In the circumstances, the claim of the complainant should be allowed and he is entitled to get the relief or reliefs which are provided as hereunder.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P Insurance company with a cost of Rs.10,000/-.
The O.P is directed to indemnify Rs.2 lac to the complainant and also to pay a sum of Rs.30,000/- as compensation for harassment and mental agony sustained by the complainant, within a month of this order, failing which, the amount of reimbursement , the compensation amount and the cost amount as referred to above will bear interest @10% p.a till full realization thereof.
Registrar-In-Charge of this Forum is directed to send a copy of the judgment free of cost at once to the parties concerned by speed post. President
I / We agree
Member
Dictated and corrected by me
President
