BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR
Complaint No. 132 of 2015
Date of Institution :04.03.2015
Date of Decision : 15.6.2016
Mr. Rajeev Sharma S/o Sh. Ram Parkash
R/o 128, Guru Nanak Avenue, Majitha Road, Amritsar
..Complainant
Vs.
The New India Assurance Co.Ltd., Through its Chairman/Mnanaging Director/Principal Officer Service through its branch office at Court Road, Amritsar through its Branch Manager
….Opp.party
Complaint under section 12 & 13 of the Consumer Protection Act, 1986
Present: For the Complainant : Sh.Deepinder Singh,Advocate
For the Opposite Party : Sh. Vikas Mahajan,Advocate
Coram
Sh.S.S.Panesar, President
Ms.Kulwant Kaur Bajwa, Member
Sh.Anoop Sharma,Member
Order dictated by:
Sh.S.S. Panesar, President.
1. Rajeev Sharma , complainant has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that complainant is taking family floating mediclaim policy (hospitalization benefit policy) for himself and his wife Smt.Upasna Sharma and two children from he opposite party and he lastly took the policy covering risk period from 21.6.2014 to 20.6.2015 by paying the premium amount of Rs. 6776/- bearing policy No. 36050034142800000023, copy of the cover note and policy is annexed. The complainant is consumer as provided under the Act and he is competent to invoke the jurisdiction of this Forum . Wife of the complainant unfortunately fell ill having severe pain in the lower abdomen and was to be hospitalized for the period from 25.12.2014 to 27.12.2014 at Sukh Sagar Hospital, copy of the hospital card is annexed . The hospitalization amount raised by the said hospital was to the tune of Rs. 87362/- including medication. But the opposite party disallowed the complete genunine claim of the complainant on the frivolous grounds and only paid a sum of Rs.47911/- out of Rs. 87362/- which is short of Rs. 39451/-. Opposite party failed to go through the medical treatment obtained by the complainant and status of the insurance obtained by the complainant. The deductions made by the opposite party are totally uncalled for and the payments made for the medical treatment are genuine. It is pertinent to mention over here that the alleged policy conditions as enumerated by the opposite party in their voucher dated 21.2.2015 were never communicated to the complainant. The aforesaid act of the opposite party in not allowing the hospitalization expenses to the tune of Rs. 39,451/- arbitrarily is an act of deficiency in service ,mal practice and is un-sustainable in the eyes of law. Vide instant complaint, complainant has sought the following reliefs:-
- The opposite party be directed to pay the amount of Rs. 39451/- alongwith interest @ 12% p.a. from 21.2.2015 till realization.
- The opposite party be directed to pay the compensation of Rs. 25000/- to the complainant.
- The opposite party be directed to pay the adequate cost of litigation.
Hence, this complaint.
2. Upon notice, opposite party appeared and contested the complaint by filing written reply taking certain preliminary objections therein inter alia that complaint as framed is not legally maintainable as it is an abuse of the process of the court ; that the complainant has no locus standi to file the present complaint as the complainant does not fall within the definition of consumer as defined in the Consumer Protection Act ; that complainant is stopped by his own act and conduct from filing the present complaint ; that no cause of action has arisen in favour of the complainant to file the present complaint against the opposite party as there is no negligence or deficiency in service on the part of the opposite party. Opposite party has made deduction of Rs. 39,451/- as per policy terms and conditions. As per clause 2.1 room boarding and nursing expenses as provided by the hospital/nursing home are reimbursable not exceeding 1% of the sum assured. Accordingly, since the sum assured is Rs 2,00,000/-, therefore, he is entitled for 2000/- per day i.e. 1% of the sum assured and for 2 days stay, the insured is entitled for 2000X2 = 4000. Hence, the amount of Rs. 4000/- was paid and Rs. 1000/- was deducted being over and above entitlement. The amount payable under clause 2.3 and 2.4 shall be at the rate applicable to the entitled room category. In case insured opts for a room with rent higher than the entitled category as per under clause 2.1 , the charges payable under clause 2.3 and 2.4 shall be limited to the charges applicable to the entitled category. Thus, the deduction of Rs. 3000/- hospital services, Rs. 9000/- assistant doctor charges, Rs. 360/- doctor fee, Rs. 15000/- assistant surgical charges and Rs. 6000/- and Rs. 1900/- RMO/Nursing charges are non-payable as per entitled room rent category. Doctor fee of Rs. 200/- dated 6.1.2015 was non-payable as prescription is not attached. Thus, the deduction for Rs. 1000/- made in the surgery charges, Rs. 344/0 Lab charges are as per policy terms and conditions. In case of other deduction Rs. 1947/- consumables remain non payable under clause 4.4.21 and Rs. 300/- admission fee remains non payable under policy condition. On merits facts narrated in the complaint have been specifically denied. It is stated that the admissible amount of Rs. 47911/- has already been paid to the complainant while deduction of Rs. 39451/- has been made as per policy terms and conditions . Instant complaint is nothing but an abuse of the process of law and it is stated that complaint may be dismissed.
3. In his bid to prove the case complainant has tendered into evidence his affidavit Ex.C-1, copy of cover note Ex.C-2, copy of repudiation letter Ex.C-3 and closed his evidence.
4. To rebut the aforesaid evidence opposite party tendered into evidence affidavit of Sh.S.S. Gill, Divisional Manager Ex.OP1, copy of terms and conditions Ex.OP2, copy of policy Ex.OP3 and closed the evidence .
5. We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.
6. On the basis of the evidence on record, ld.counsel for the complainant has vehemently contended that the opposite party was deficient in service as a payment of Rs. 47,911/- has been made against mediclaim of Rs. 87,362/-. As a matter of fact the opposite party did not supply any terms and conditions to the complainant at the time of issuing the insurance policy in dispute and now it has relied upon the exclusion clauses for making wrong deduction out of the genuine claim of the complainant. It has further been contended that the opposite party was under legal obligation to supply the terms and conditions of the insurance policy in dispute within 30 days of the issue of the policy to the complainant. In this connection reference has been made to Gazette of India Extraordinary Insurance Regulatory and Development Authority Notification, New Delhi dated 25.4.2002, clause No. 4 whereof reads as under:-
(i) Except in case of a marine insurance cover, where current market practices do not insist on a written proposal form, in all cases, a proposal for grant of a cover, either for life business for general business, must be evidenced by a written document. It is the duty of an insurer to furnish to the insured free of charge, within 30 days of the acceptance of a proposal, a copy of the proposal form.
7. Since the policy terms and conditions were not supplied to the complainant , therefore, deduction on the basis of so called exclusion clauses is uncalled for . Moreover, even the exclusion clauses referred to in the written statement as well as in evidence do not conform to the exclusion clauses , if we go through the policy document Ex.OP2 on record. It appears that an excuse has been coined for repudiating the genuine claim of the complainant and it is contended that the complaint may be allowed and the opposite party may be directed to pay an amount of Rs. 39451/- deducted wrongly from the mediclaim of the complainant under Insurance policy, copy whereof is Ex.C-2 on record. The complainant has also prayed for grant of compensation of Rs. 25000/- besides adequate cost of litigation.
8. However , from the appreciation of the facts and circumstances of the case, it becomes evident that the complainant has failed to prove his case., The contention that no terms and conditions of the policy were supplied and only the cover note was supplied to the complainant, is not acceptable. When the complainant relies upon insurance policy in dispute for getting insurance mediclaim , he cannot be allowed to make a somersault that he relies upon the Insurance policy but denounces the terms and conditions thereof. Reliance in this connection can be placed upon General Assurance Society Ltd. Vs. Chandmull Jain and Anr., AIR 1966 Supreme Court 1644 wherein it has been laid down that it was argued that condition 10 would not come into operation at all, because the policy itself was cancelled before it was engrossed. In other words, the contention is that condition (10) could not operate between the parties till the policy was signed and delivered to the assured and as this never happened the cancellation was improper. This argument is scarcely open, because the assured is obviously basing his suit on the policy. In his plaint he invoked the policy. The assured cannot sustain the suit except by basing it upon the policy , because unless one reads the policy and the terms on which it was effective, mere reading of the proposal and the letters of acceptance would not give any terms. Further when a contract of insuring property is complete, it is immaterial whether the policy is delivered or not for the rights of the parties are regulated by the policy which ought to be delivered. In this way also the terms and conditions of the standard fire policy would apply even though the policy was not issued. Further reliance in this connection can be had on Tarun Bansal & Anr.
Appellants Vs. Reliance General Insurance Company Ltd & Ors-Respondents 2007(2) CPJ 295 of the Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh wherein it has been laid down that if exclusion clause , which is a part of the policy, was not conveyed, it would mean that even the policy was not conveyed. Then what was the basis for lodging the claim.. The complainant cannot blow hot and cold in the same breath. On one side he is saying that the claim should be entertained and made payable under the policy and yet says that exclusion clause of the same policy, would not be applicable as having not been conveyed. In the cover note, it is always mentioned that the terms and conditions of the policy would be as per the standard policy. Relying upon a five judge Bench of the Apex Court in General Assurance Society Ltd. Vs. Chandmull Jain and Anr.(Supra), it was held that in such circumstances all terms will be deemed to have been conveyed. Since in the present case, it was the first year of the insurance policy that the medical claim was undertaken, the exclusion clause would come into play and no claim would be payable.
9. Although opposite party has mentioned exclusion clause as 2.1, 2.3 and 2.4 to dislodge the claim of the complainant, yet, however the relevant exclusion clauses as per Insurance policy are 3.1(a), 3.1(b), 3.1(c) , 3.1(d) and 4.4.21 . Since the deductions have been made on the basis of the exclusion clauses of the Insurance policy and there being no deficiency in service, mal practice or unfair trade practice on the part of the opposite party , therefore, instant complaint being meritless is ordered to be dismissed. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
Dated : 15.6.2016
/R/ ( S.S.Panesar )
President
( Kulwant Kaur Bajwa) (Anoop Sharma)
Member Member
