Punjab

StateCommission

A/312/2018

Oriental Insurance Company Ltd. - Complainant(s)

Versus

Sucha Singh - Opp.Party(s)

B.S.taunque,retd

11 Oct 2018

ORDER

                                                               FIRST ADDITIONAL BENCH

 

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH

 

                   First Appeal No.312  of 2018

 

                                                          Date of Institution    : 22.05.2018          

                                                          Order Reserved on  : 08.10.2018

                                                          Date of Decision      : 11.10.2018  

 

1.       The Manager, The Oriental Insurance Company Limited Jalandhar Road, Mahavir Marg, Kapurthala through Manager (Legal), Regional Office SCO No. 109-111, Sector 17-D, Chandigarh.

 

2.       The Oriental Insurance Limited, Registered office Oriental House PB No. 7037, A 25/27, Asif Ali Road, New Delhi 110002, through its Manager (Legal), Regional Office SCO No. 109-111, Sector 17-D, Chandigarh.

 

       Appellants/Opposite parties 2 and 3

Versus

 

1.       Sucha Singh son of Sh. Balwant Singh, resident of House No. 308, Adarsh Colony, Saili Road, Pathankot, Tehsil and District Pathankot.

                                                          Respondent no.1/Complainant

 

2.       The Manager, Punjab National Bank, Mohan Market, Pathankot.

 

                                                Respondent no.2/Opposite party no.1

.

                                               

First Appeal against order dated 09.02.2018 passed by the District Consumer Disputes Redressal Forum,  Gurdaspur.

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member

            Smt. Kiran Sibal, Member.

Present:-

          For the appellant                        :  Sh.B.S Taunque, Advocate

          For the respondent no.1             :  Sh.Munish Puri, Advocate

          For the respondent no.2             :  Sh.Vishal Aggarwal, Advocate.

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

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

                    Challenge in this appeal by appellant is to order dated 09.02.2018 of District Consumer Disputes Redressal Forum Gurdaspur, accepting the complaint of respondent no.1 of this appeal by directing the appellant to pay the insurance claim pertaining to the policy with accrued benefits along with compensation of Rs.5000/- and cost of litigation of Rs.3000/-. Respondent no.1 of this appeal is complainant in the complaint before District Forum and respondent no.2 of the appeal is opposite party no.1 and appellants of this appeal are OPs no.2 and 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 OPs on the averments that he and his wife Mohinder Kaur obtained insurance policy from OPs no.2 and 3, vide policy no. 233106/48/2016 /397 launched by OP no.1 for insured amount of Rs.5 lac against premium of Rs.6930/-. The complainant suffered shoulder  pain  necessitating his hospitalization in  Amandeep Hospital  on 31.01.2016. He was treated by Dr. Suresh Kaul and Dr.Neelam Kaul and was discharged from the above hospital on 05.02.2016. He incurred expenses of Rs.1,80,150/-  from 31.01.2016 to 05.02.2016 in the above hospital at Pathankot on his above ailment. He approached OPs no.2 and 3 to reimburse the above said claim amount to him, as he was insured for assured amount of Rs. 5 lac. He submitted all the documents in original with OPs no. 2 and 3 for getting reimbursement of the amount of Rs.1,80,150/- . In case of medical claim policy, it is legal duty of the insurance company under insurance law to get the insured medico legally examined to ascertain the fact whether the insured has been suffering from any preexisting ailment prior to the policy. The complainant has, thus, prayed for direction to OPs to pay the amount of Rs.1,80,150/-  for the expenses incurred by him on treatment , besides compensation of Rs.50,000/- for harassment due to refusal of OPs to pay the claim.

3.                Upon notice, OP no.1 filed its separate written reply and contested the complaint of the complainant. Preliminary objections were raised by OP no.1 that complaint is not maintainable as per terms and conditions of the insurance policy. In case of repudiation of the insurance claim, insured person has to file appeal before the Grievance Redressal Cell of the insurance company concerned only. On merits, OP no.1 denied the averments of the complainant by asserting that it is for the complainant to strictly prove his ailment and treatment and expenses incurred thereupon. As per clause 4.2 of the insurance policy , the claim of the complainant does not fall within the purview of the policy terms and conditions and is not admissible thereunder.  OP no.1 prayed for dismissal of the complaint.

4.                OPs no.2 and 3 filed their separate written reply and contested the complaint of the complainant stoutly. Preliminary objections were raised by OPs no.2 and 3 that claim of the complainant was referred to M/s Medi Assist India Pvt. Ltd  for settling it as per terms and conditions of the policy, being its settling authority. On examination of all documents submitted by him including medical record, M/s Medi Assist India Pvt. Ltd  observed that case of Sucha Singh was the case of CAD, HTN, DM i.e. Hypothyroidism/HTN and Type 2 DM and he was treated accordingly. Claim is thus not admissible under clause 4.2 of the policy. When the above referred diseases manifested within two years from the commencement of the policy during the currency period of the policy, it is not admissible under the policy. OPs no.2 and 3 controverted the other averments of the complainant even on merits and they prayed for dismissal of the complaint.

5.                The complainant tendered in evidence his affidavit  Ex.C-1 along with copies of documents Ex.C-2 to Ex.C-13 and closed the evidence. As against it; OP no.1 tendered in evidence affidavit of RakeshNand Gupta Senior Manager of OP no.1 as Ex.OP-1/1 and closed the evidence. OPs no.2 and 3 tendered in evidence affidavit of Sh. Karam Singh D.M Oriental Insurance Company as Ex.OP-2,3/1 along with copies of documents Ex.OP-2,3/2 to Ex.OP-2,3/6 and closed the evidence. On conclusion of evidence and arguments, District Forum Gurdaspur accepted the complaint of the complainant by virtue of order dated 09.02.2018. Aggrieved by the order of District Forum Gurdaspur, OPs no.2 and 3 now appellants preferred this appeal against the same.

6.                We have heard learned counsel for the parties and have also examined the record of the case.

7.                The evidence on the record has been adverted to by us with the able assistance of counsel for the parties. This point is undisputed on record that complainant took the policy himself and for his wife from OPs no.2 and 3,  as introduced by OP no.1 for insured amount of Rs. 5 lac against the premium of Rs.6930/- vide policy no. 233106/48/2016/397. The complainant suffered from shoulder pain during the  currency of the policy and was hospitalized at Amandeep Hospital on 31.01.2016 , where he was treated by Dr. Suresh Kaul and Dr. Neelam Kaul . He was discharged from the  above hospital on 05.02.2016. He stated that he incurred the expenses of Rs.1,80,150/-  on his treatment thereat for the period 31.01.2016 to 05.02.2016. He further stated that it is obligation  of the insurance company to medico examine the proposal person before issuing the policy. He deposed that OPs have not honoured the claim and he served a legal notice dated 04.07.2016  on them in this regard. Medi claim policy schedule is on the record in the name of Mohinder Kaur for the period 11.08.2015 to 10.08.2016  for insured amount of Rs. 5 lac. Ex.C-2 is mediclaim policy schedule  sent to complainant Sucha Singh and spouse claim form submitted by complainant vide Ex.C-4.  Repudiation of claim by OPs is Ex.C-5 on 08.06.2016 on account of exclusion clause of the policy.  The discharge summary issued by Amandeep Hospital Pathankot to complainant is Ex.C-6 together with Ex.C-7 to Ex.C-13 on the record.

8.                To refute this evidence, OP no.1 relied upon affidavit of Rakesh Kumar Gupta Senior Manager PNB Pathankot as Ex.OP-1/1 and closed the evidence thereafter. OPs no.2 and 3 relied upon affidavit of Karam Singh Senior Divisional Manager Oriental Insurance Company as Ex.OP2,3/1 to the effect that complainant contracted disease of diabetic, hyper tension during the currency of the policy and claim is thus not payable till lapse of two years from the commencement of the policy under Clause 4.2 of the policy. He stated that the TPA M/s Medi Assist India  observed that case of the complainant Sucha Singh is case of CAD, HTN DM and Type 2 DM and he was treated therefor. The TPA is claim settling authority. Ex.OP-2,3/2 is policy document on the record by OPs. The terms and conditions thereof are Ex.OP-2,3/3 on the record. Clause 4.2 of the terms and conditions of the policy are reproduced as under :-

4.2 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 preexisting condition SHALL be applicable in such cases.

Hyper tension and diabetes have been mentioned under Clause 4.2 of the policy and claim is not payable for their expenses uptil lapse of two years from the commencement of the policy. There is no dispute of this fact between the parties with regard to the terms and conditions of the contract of insurance. The District Forum observed that OPs no.2 and 3 have not communicated the terms and conditions of the policy to complainant and hence complainant is not bound by the same. The complainant has not pleaded this fact specifically in the complaint that the terms and conditions of the policy were not conveyed to him by the insurance company at any time. The fact not pleaded in the pleadings cannot be allowed to be entertained. The Forum cannot travel beyond the pleadings of the parties and any amount of evidence in the absence of particular pleadings of the parties is not admissible at all. We find that the diseases of diabetes and hyper tension is not admissible for the period of two years during currency of the policy from the inception of the policy. The parties are strictly bound by the terms and conditions of the contract of insurance. Even Consumer Forum can neither add anything nor subtract anything from the contractual terms between the parties nor it can make out a new case beyond the terms and conditions between the parties.  

9.                The point in dispute in this case, is whether insurance company has proved this fact that Sucha Singh complainant suffered from diseases of Hyper tension and diabetes by contracting them during the currency of the policy. The record of Amandeep Hospital Pathankot is the material document on the record in this regard. Discharge summary Ex.C-6 has been perused by us. The diagnosis has been recorded in discharge summary :  Hyper tension, HTN, Type II DM (Recently detected), which was prepared on 05.02.2016. This discharge summary has been placed on record by complainant himself and it has proved that complainant has suffered from hyper tension and Type II diabetic. The policy commenced from 11.08.2015 uptil 10.08.2016, vide Ex.OP-2,3/2  in the name of Mohinder Kaur,  wherein complainant has  been mentioned as spouse employed. The discharge summary Ex.C-6 is dated 05.02.2016, meaning thereby that the period of two years had not expired from 11.08.2015  the date of commencement of the policy. The claim of the complainant is, thus, clearly not payable under Clause 4.2 of the policy uptil lapse of period of two years from inception of the policy. If the above referred diseases of hyper tension and diabetes mellitus have been contracted by the insured within two years period from inception of the  policy , then  they are not admissible for reimbursement of claim under the clause. The parties are strictly governed by the terms and conditions of the contract of insurance as embodied in the insurance policy. Even Consumer Forum has to strictly interpret the terms and conditions of the Contract of Insurance without adding or subtracting anything therefrom. Consequently, we have come to this conclusion that claim of the complainant is not admissible for diseases of hyper tension and diabetes uptil two years from the commencement of the policy. The complainant contracted the above-referred diseases during the currency of the policy and two years period have not yet elapsed from the inception of the policy. The District Forum failed to look into this material aspect of the case, which bears on the merits of the case. The order of District Forum is illegal because it has been passed on that basis, which has not been pleaded at all by the complainant in the complaint and deserves reversal in this appeal accordingly.

10.               As a result of our above discussion, we accept the appeal of the appellants and set aside the order of the District Forum Gurdaspur dated 09.02.2018, resulting into dismissal of the complaint of the complainant.

11.               The appellant has deposited an amount of Rs. 25,000/- in this Commission at the time of filing the appeal and further deposited Rs.1,18,984/- in compliance with the order of this Commission. Both these amounts with interest, if any, accrued thereon, be refunded by the registry to the appellant by way of crossed cheque/demand draft after 45 days from the date of receipt of copy of this order.

12.               Arguments in this appeal were heard on 08.10.2018 and the order was reserved. Certified 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

                    

 

                                                                   (KIRAN SIBAL)          

                                                                         MEMBER

October 11,  2018                                                          

(ravi)