Haryana

Ambala

CC/330/2022

SMT PARAMJIT KAUR. - Complainant(s)

Versus

STAR HEALTH & ALLIED INSURANCE COMPANY LTD. - Opp.Party(s)

JAGROOP SINGH

04 Dec 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	330 of 2022
Date of Institution	:	12.08.2022
Date of decision	:	04.12.2023

Smt.Paramjit Kaur, aged about 47 years, wife of Sh. Dilbag Singh Danipur, Resident of House No.738, Sector 9, Urban Estate, Ambala City, Haryana.

          ……. Complainant.

                                                Versus

1. Star Health And Allied Insurance Company Limited, 1st Floor, 5 Prem Nagar, Near Post Office Prem Nagar, Ambala City- 134003, HARYANA, through its Authorized Signatory.
2. Star Health And Allied Insurance Company Limited, Office of the Ombudsman, S.C.O. NO.101, 102 and 102, 2nd Floor Batra Building, Sector 17-D, Chandigarh-160 017, through its Authorized Signatory
3. Star Health And Allied Insurance Company Limited, through Mrs. Radha Vijayaraghavan, Grievance Redressal Officer, Corporate Grievance Department, 4th Floor, Balaji Complex, NO.15, Whites Lane, Whites Road, Royapettah, Chennai-600014.

                                                                                                    ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                     Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:      Complainant in person alongwith his counsel Shri D.S.Danipur, Advocate.

                     Shri Mohinder Bindal, Advocate, counsel for the OPs.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To pay an amount of Rs.4,50,000/-, spent for treatment, operation, physiotherapy etc., of the complainant.
2. To compensate the complainant by paying an amount of Rs.3 Lacs for harassment and financial loss.
3.  To pay Rs.55,000/- as litigation expenses.

OR

Grant any other relief which this Hon’ble Commission may deems fit.

 

2.             Brief facts of the case are that the complainant had taken a insurance policy of Family Heath Optima Insurance Plan vide Policy NO.P/211117/01/2016/ 000840 bearing Customer Code AA0003392194, Proposer Code 5149791 Valid from 25.3.2016 to 24.3.2017 for the sum assured of Rs.15 lacs for which she paid premium of Rs.15603/-. She again renewed for the subsequent period vide Policy NO. P/ 211117/ 01/ 2017/ 001923 for the period from 27.3.2017 to 26.3.2018 and paid total premium of Rs.22603/- for the sum assured of Rs.18,75,000/-. Thereafter, the complainant again renewed the policy vide Policy No. P/ 2111178/ 01/ 2018/ 003472 for the period from 30.3.2018 to 29.3.2019 and paid premium of Rs.26,986/- for the sum assured of Rs. 20,25,000/-. Complainant again renewed policy vide Policy No.P/211117/01/2022/005404 and paid premium of Rs.35,200/- for the sum assured of Rs.25,00,000/- period from 31.10.2021 to 30.10.2022. On 12.3.2022 suddenly the complainant fell on the floor in her above said house and received injuries including injuries on her right hip. She was taken first aid from Lakhanpal Clinic, Dr. Arun Sharma BAMS, MIMS, and Dr. Neha Sharma MMBSMS (Ent), at Ambala City where doctors gave her treatment but her health was not improved. Thereafter, various tests, including MRI was conducted from Rotary Ambala Cancer and General Hospital on payment basis. After receiving the reports of the above tests, the doctors suggested for operation of right hip of the complainant, as there was fracture in the right hip. Thereafter, the complainant approached the empanelled hospital of the OPs i.e. Guardian Hospital, Ambala Jagdhri Road, Near Rampur Turn, Ambala Cantt. On 24.4.2022 the complainant remained admitted in the above said hospital, where her X was also conducted and on 25.4.2022 operation of right hip. She spent more than Rs.4,00,000/- on her treatment and remained admitted in the above said hospital since 24.4.2022 to 16.5.2022. Thereafter, the complainant visited many times to the above Hospital for her check up and is continuously going to the Physiotherapy Clinic, Sector 9, Near Main Market, Ambala City and paying Rs.1000/- per day. She has also engaged an attendant on the monthly payment of Rs.15,000/-. Till now the complainant has spent more than Rs.4,50,000/- on her operation, medicine etc. During the period intervening, the complainant approached the OPs for cashless treatment under the said policy through Guardian Hospital, Ambala Jagadhri Road, Rampur Turn, Ambala Cantt., against which some documents were demanded, which were supplied to it.  However, on 19.4.2022, the claim of the complainant was rejected by the OPs on the ground that treatment of OA HIP has arisen within two years of waiting period from the date of commencement of first policy, which was not covered and the same was admissible.  The OPs have never informed regarding such terms and conditions of the policy and some signatures of the complainant were taken on the printed performa which was filled up by the agent. The Guardian Hospital issued reconsideration letter dated 23.4.2022 to the OPs in the matter but to no avail. The claim of the complainant was wrongly rejected on the ground of waiting period for the alleged fresh/first policy, whereas, the complainant had taken the insurance policy starting from 2016 and got the same renewed till 2022.  When the grievance of the complainant was not redressed, she served a legal notice dated 30.5.2022 to the OPs, whereupon she received a letter dated 10.6.2022 vide which the OPs demanded some documents, which were supplied to them but thereafter on 21.6.2022 again the complainant received letter from the OPs, whereby demanded more documents which were also supplied to them but to no avail. Hence, the present complaint.
3.           Upon notice, OPs appeared and filed written version and raised preliminary objection with regard to maintainability, not come with clean hands and suppressed the material facts and cause of action etc. On merits, it has been stated that the complainant has tried to manipulate the facts for imposing this false and frivolous case. A request for cashless treatment of the complainant from Guardian Hospital, Ambala Cantt was received on 24.04.2022 about her treatment of fracture neck of femur/OA Hip which was pursued by the expert medical team of the OPs. From the enclosed treatment papers including MRI, it was observed that it was a case of degenerative osteoarthritis with old healed partially displaced fracture. Since the hospitalization of the complainant was for treatment of OA hip which has arisen within two years of the inception of first insurance policy was not payable being excluded for initial claim request of the complaint was out of the purview of the Insurance policy. As such, the request for cashless treatment was denied as per the supplied documents. It is relevant to mention here that the complainant thereafter did not lodge her claim with the OPs and approached this Commission without following the legal procedure. The insurance policy is contractual in nature and the claims arising therein are subject to terms and conditions forming part of the policy. The complainant had accepted the policy and fully aware of such terms and conditions. The terms and conditions of the policy were explained to the complainant at the time of proposing policy and the same were served to the complainant alongwith policy schedule. Moreover, it is clearly stated in the policy schedule "THE INSURANCE UNDER THIS POLICY IS SUBJECT TO CONDITIONS, CLAUSES, WARRANTIES, EXCLUSIONS ETC ATTACHED. The complainant had accepted the policy after going through the same and never objected to any of the endorsement or terms of the policy thus he is supposed to abide and legally bound by the terms and conditions of the policy according to which no such claim was payable within first two years of the inception of the insurance policy due to waiting period clause. Relevant insurance policy no. P/211117/01/2022/005404 w.e.f 31.10.2021 to 30.10.2022 was a fresh insurance policy. The complainant has not followed the legal procedure to avail the compensation against her alleged treatment by submitting all the relevant papers and claim form etc. and instead approached this Commission. The request for cashless treatment of the complainant was denied by the OPs legally as per terms and conditions of the insurance policy without any discrimination. Rest of the averments of the complainants were denied by the OPs and prayed for dismissal of the present complaint with special costs.
4.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CA alongwith documents as Annexure C-1 to C-56 and closed the evidence on behalf of complainant. On the other hand, learned counsel for the OPs tendered affidavit of Sumit Kumar Sharma, aged about 47 years, Senior Manager, Star Health & Allied Insurance Company Limited, 2^nd Floor, Daily Tej Building, 8-B, Bhadur Shah Zafar Marg, New Delhi-110002 as Annexure OP-A alongwith documents Annexure OP-1 to OP-8 and closed evidence on behalf of the OPs.
5.           We have heard the complainant & learned counsel for parties and have also carefully gone through the case file.
6.           Learned counsel for the complainant submitted that since the complainant for the first time obtained the policy in the year 2016 and got the same renewed till 2022 as such, none of her treatment fell within the exclusion clause, yet, her genuine claim has not been considered by the OPs, which act amounts to deficiency in providing service, negligence and adoption of unfair trade practice on their part. In support of his contention, the learned counsel for the complainant has placed reliance on Manmohan Nanda vs United India Insurance Co. Ltd. (2021) Civil appeal No.8386/2015, decided by the Hon’ble Supreme Court of India, New Delhi and Pavan Sachdeva Vs Office Of The Insurance Ombudsman and Anr(2020) 07 DEL CK 0184 decided by the Hon’ble High Court of Delhi, New Delhi.
7.           On the contrary, learned counsel for the OPs submitted that the claim filed by the complainant for replacement of Hip/Neck Femer fell under the exclusion clause, as she had taken the said treatment within the waiting period of 2 years and as such, her claim was rightly rejected by OPs as per terms and conditions of the policy in question.
8.           Since, neither the issuance of the policy in question; nor the treatment taken by complainant i.e. hip replacement, referred to above; nor the amount spent by her in the said hospital for her hip replacement are in dispute, as such, the only moot question which falls for consideration is, as to whether, the cashless claim of the complainant was rightly not accepted by the OPs nor not.  It may be stated here that it is evident from the policy in question, Annexure OP-2 that the same had been proposed by the complainant for the first time on 31.10.2021 only and the cover period of this policy was from 31.10.2021 to 30.10.2022. Except this policy, there is nothing on record that before this policy the complainant had purchased any insurance policy and as such, except bald plea taken to the effect that she availed the policy starting from 2016 cannot be considered.  It is coming out from the medical record, that the complainant was diagnosed as fracture neck on femur/OA HIP and as such treatment of OA HIP was given to her by Guardian Hospital, Ambala, Haryana. It is also not in dispute that the OPs decline to pay the claim amount on the ground that the treatment of OA fell under exclusion clause 02 of the policy in question. We have also gone through the said clause 02 of the policy in question, relevant part of the which is reproduced below:-

“Expenses related to the treatment of the following listed Conditions, surgeries/treatments shall be excluded until the expiry of 24 months of continuous coverage after the date of inception of the first policy with us. This exclusion shall not be applicable for claims arising due to an accident

In case of enhancement of sum insured the exclusion shall apply afresh to the extent of sum insured increase

If any of the specified disease/procedure falls under the waiting period specified for pre-existing diseases, then the longer of the two waiting periods shall apply

The waiting period for listed conditions shall apply even if contracted after the policy or declared and accepted without a specific exclusion

If the Insured Person is continuously covered without any break as defined under the applicable norms on portability stipulated by IRDAI, then waiting period for the same would be reduced to the extent of prior coverage

 

List of specific diseases/procedures;

1. Treatment of Cataract and diseases of the anterior and posterior chamber of the Eye, Diseases of ENT, Diseases related to Thyroid, Benign diseases of the breast.

2 Subcutaneous Benign Lumps, Sebaceous cyst, Dermoid cyst, Mucous cyst lip/cheek, Carpal Tunnel Syndrome, Trigger Finger, Lipoma, Neurofibroma, N Fibroadenoma, Ganglion and similar pathology

3. 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].

4. All types of treatment for Degenerative disc and Vertebral diseases including Replacement of bones and joints and Degenerative diseases of the Musculo-skeletal system, Prolapse of Intervertebral Disc (other than caused by accident),

5. All treatments (conservative, interventional, laparoscopic and open) related to Hepato-pancreato-biliary diseases including Gall bladder and Pancreatic calculi. All types of management for Kidney calculi and Genitourinary tract calculi.

6. All types of Hernia……….”

 

9.           A bare perusal of clause 2 clearly says that treatment of joint replacement is not covered under the policy in question until the expiry of 24 months of continuous coverage after the date of inception of the first policy. Because in the present case, complainant took treatment of HIP i.e. joint replacement, which fact is not in dispute, as such, under these circumstances, in our considered opinion, the OPs have not committed any deficiency in providing service, by declining the cashless claim of the complainant, keeping in mind exclusion clause 2 aforesaid.  It is significant to mention here that the insurance policy between the insurer and the insured represents a contract between the parties and the insured cannot claim anything more than what is covered by the insurance policy. Our this view is supported by the ratio of law laid down by the Hon’ble Supreme Court of India in Oriental Insurance Co. Ltd Vs Sony Cherian (II 1999 CPJ 13 SC) wherein it was held that- ― “..The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein…”.
10.           No doubt, learned counsel for the complainant, in his favour, has placed reliance on judgments- Manmohan Nanda vs United India Insurance Co. Ltd. (Supra) and  Pavan Sachdeva Vs Office Of The Insurance Ombudsman and Anr (Supra)  , however, it is significant to mention here that we have very minutely gone through these judgments and found that nowhere, it has been ruled that the insured can wriggle out of the terms and conditions of the insurance policy.  In  Manmohan Nanda case (supra)  the issue was with regard to pre-existing disease and in Pavan Sachdeva case (supra) , it was observed by the Hon’ble High Court of Delhi that the Ombudsman had failed to apply the correct test to the dispute before it. The impugned order recorded that “the Discharge Summary dated 01.10.2017 confirmed that the insured patient had Sarcoidosis since 1982”. The Discharge Summary in fact, recorded “Past Medical History” as “Sarcoidosis 1982 took steroids for 3 months”. It was under those circumstances held that the said remark in the Discharge Summary cannot be read to mean that the petitioner continued to suffer from Sarcoidosis as has been interpreted by the Ombudsman. The impugned order has therefore, proceeded on an incorrect basis and cannot be sustained. As such, facts of these cases are totally different from the facts of the present case and therefore reliance placed by learned counsel for the complainant on Manmohan Nanda case (supra) and in Pavan Sachdeva case (supra) is misplaced.
11.           In view of peculiar facts and circumstances of this case, it is held that because the complainant has failed to prove her case, therefore, no relief can be given to her. Resultantly, this complaint stands dismissed with no order as to cost. Certified copies of the order be sent to the parties concerned as per rules.  File be annexed and consigned to the record room.

Announced:- 04.12.2023

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President