BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA. Complaint No:67 of 2008 Date of Institution:09.06.2008 Date of Service:14.08.2008 Date of Decision:23.10.2008 Manish Kumar Kapoor (aged 35 years) son of Sh.Raj Kumar Kapoor, resident of Near SSP Office, Kapoor Building, Tehsil Road, Jagraon, Distt.Ludhiana. Complainant. Versus 1. The New India Assurance Company Limited through its Divisional Manager, Gulabi Bagh, G.T.Road, Moga, Distt.Moga. 2. Alankit Health Care Ltd. Alankit House, 23 E/21, Jhandewala, New Delhi through its Director. Opposite Parties. Complaint Under Section 12 of the Consumer Protection Act, 1986. Quorum: Sh.J.S.Chawla,President. Sh.Jit Singh Mallah, Member. Present: Sh.Sanjeev Sharma, Adv.counsel for the complainant. Sh.Jaswinder Singh, Adv.counsel for the OPs. (J.S.Chawla, President) Sh.Manish Kumar Kapoor complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 (herein-after referred to as Act) against the New India Assurance Company Ltd. through its Divisional Manager and another- opposite parties (herein-after referred to as Insurance Company) directing them to pay Rs.90723/- on account of medical expenditure including mental tension, harassment and litigation expenses. 2. Briefly stated, the complainant purchased medical policy under Hospitalization & Domiciliary Hospitalization Benefit Policy of Rs.1 lac for himself, in the name of his wife Alka Kapoor and his son Master Tosshar each. That the OPs-Insurance Company issued policy no.361100/34/ 07/20/00000051 for the period w.e.f. 12.06.2007 to 11.06.2008. That earlier also, the complainant purchased the said policy from the OPs-Insurance Company on 12.6.2006. That in the month of January 2008, his wife Smt.Alka Kapoor got herself admitted in DMC & Hospital, Ludhiana due to abdominal pain where she had to undergo an operation of Laparoscopy with Hysteroscopy with Chromopertupation with Endometrial Biopsy with Drainage of Ovarian Cyst with Removal of Umbilical under GA. That during the admission period w.e.f. 31.01.2008 to 04.02.2008 she incurred expenses of Rs.60723/- on her treatment. Thereafter, as per the terms of the policy, the complainant submitted the claim before the OPs-Insurance Company and completed all the formalities, but vide letter dated 18.04.2008 they repudiated his claim on the flimsy ground. Hence the present complaint. 3. Notice of the complaint was given to the OPs-Insurance Company who appeared through Sh.Jaswinder Singh Advocate and filed their written reply. They took up preliminary objections that the complaint is not maintainable; that the dispute in question involves complicated question of law which can not be adjudicated by this Forum; that the complainant has not come to this Forum with clean hands. In fact, at the time of purchase of policy in question, Smt.Alka Kapoor wife of the complainant had pre-existing disease as she was taking treatment for infertility and had a history of pus discharge from navel since two years which fact she did not disclose. Moreover, the said disease was not covered under the policy purchased by the complainant. So the claim of the complainant was rightly repudiated under clause 4.1 and 4.8 of the terms and conditions of the insurance policy vide letter dated 28.4.2008. Moreover, the complainant has deliberately not submitted the entire medical record pertaining to disease suffered by his wife Smt. Alka Kapoor before the inception of the policy in question. That while submitting the proposal form for the purchase of the policy in question, the insured had suppressed material facts regarding pre-existing disease suffered by Smt.Alka Kapoor and hence, it amounts to breach of terms & conditions of the policy. That OP-2 Alankrit Health Care Ltd, New Delhi is a third party administrator which gave its independent finding vide letter dated 28.4.2008 in the instant medi-claim case. That, after due application of mind, the OPs-Insurance Company has decided the claim of the complainant being not maintainable under the terms and conditions of the policy. On merits, the OPs-Insurance Company took up the same and similar pleas as taken up by them in preliminary objections. All other allegations made in the complaint were specifically denied being incorrect. Hence, it was prayed that the complaint filed by the complainant is false and frivolous and the same be dismissed with costs. 4. In order to prove his case, the complainant tendered in evidence affidavit Ex.A1, copy of polcy Ex.A2, copy of letter Ex.A3, copy of card issued by Alankit Ex.A4, copy of claim form Ex.A5, copy of discharge slip Ex.A6, copy of medical bill Ex.A7, copies of receipt of DMC Ex.A8 to Ex.A10, copies of bills Ex.A11 to Ex.A23, copies of letters Ex.A24 and Ex.A25, copy of application Ex.A26, copy of medical certificate Ex.A27 and closed his evidence. 5. To rebut the evidence of the complainant the OPs-Insurance Company tendered affidavit Sh.Jaswant Rai Ex.R1, copy of policy schedule Ex.R2, copy of terms and conditions Ex.R3, copy of proposal form Ex.R4, copy of letters Ex.R5 and Ex.R6, copy of case summary and discharge Ex.R7 and closed their evidence. 6. We have heard the arguments of Sh.Sanjeev Sharma ld. counsel for the complainant and Sh.Jaswinder Singh ld. counsel for the OPs-Insurance Company and have very carefully perused the evidence on the file. 7. Sh.Sanjeev Sharma ld.counsel for the complainant has mainly argued that the OPs-Insurance Company has wrongly and illegally repudiated the claim of the complainant under clause 4.1 and 4.8 of the terms and conditions of the insurance policy, alleging that the complainants wife did not disclose about her pre-existing disease at the time of purchase of the policy. This contention of the ld.counsel for the complainant has full force. It is the admitted case of the parties that Manish Kumar Kapoor complainant had purchased medi claim policy under Hospitalization & Domiciliary Hospitalization Benefit Policy of Rs.1 lac each for himself, in the name of his wife Alka Kapoor and his son Master Tosshar and the OPs-Insurance Company issued a policy no.361100/34/ 07/20/00000051 for the period w.e.f. 12.06.2007 to 11.06.2008. Earlier, he had purchased the similar policy w.e.f. 12.06.2006 and therefore, it was the continuous policy. According to the complainants allegation, his wife Alka Kapoor remained admitted in DMC & Hospital, Ludhiana where she was operated upon for Laparoscopy with Hysteroscopy with Chromopertupation with Endometrial Biopsy with Drainage of Ovarian Cyst with Removal of Umbilical under GA. She remained admitted in the hospital for the period w.e.f. 31.01.2008 to 04.02.2008 and incurred expenses of Rs.60723/- on her treatment and medicines. The OPs-Insurance Company had repudiated the claim of the complainant on the ground that the case of the complainants wife was covered under the exclusion clause of 4.1 and 4.8 of the terms and conditions of the insurance policy and they rightly repudiated his claim . 8. Now the question for determination is whether the OPs-Insurance Company can repudiate the claim of the complainant on the ground that Smt.Alka Kapoor was suffering from pre-existing disease as alleged at the time of purchasing the policy. The answer to this question is in negative. Firstly, it is the case of the complainant that it was their continuous policy. Secondly, the evidence on the file shows that Alka Kapoor was not suffering from any pre existing disease as mentioned in clause 4.1 and 4.8 of the terms and conditions of the policy. She was having history of pus discharge from naval since 2 years, but the same is not sufficient to repudiate the claim of the complainant on the ground that she was having some pre existing disease. Case summary & Discharge slip Ex.R7 of DMC & Hospital, Ludhiana relied upon by the OPs-Insurance Company does not show that Alka Kapoor was having some disease which falls under the category of exclusion clause 4.1 and 4.8 of the terms of the insurance policy, but she was having only the history of pus discharge from naval since 2 years. It is not the case of the OPs-Insurance Company that the said discharge of pus from her naval for the last 2 years was the main cause for her operation of Laparotomy with Hysteroscopy with Chromopertupation with Endometrial Biopsy with Drainage of ovarian Cyst with Removal of Umbilical under GA. The doctor of the DMC & Hospital, Ludhiana diagnosed her case of aforesaid disease. It was not covered under the exclusion clause 4.1 and 4.8 of the terms and conditions of the policy. Therefore, it can not be said that the complainant or his wife Alka Kappor have suppressed any material fact at the time of purchase of the policy in question, rather it was the continuous policy and the aforesaid disease has no relavancy to discard the genuine claim of the complainant. 9. The OPs-Insurance Company had acted upon the advice Ex.A6 of Alankit Health Care Limited, New Delhi who is their third party agent while repudiating the claim of the complainant. The advice of aforesaid third party agent was not binding on the genuine claim of the complainant. Thus the OPs-Insurance Company has failed to prove that the complainant has violated the clause 4.1 and 4.8 of the terms and conditions of the policy. On this point, ld.counsel for the complainant has cited ruling of Honble Punjab State Consumer Commission, Chandigarh titled as LIC of India Vs. Smt.Bimla Devi in 1999(2) CLT which is quite applicable to the facts of the present case. 10. The complainant has submitted the certificate of DMC & Hospital, Ludhiana Ex.A8 showing that they have charged Rs.47334/- from Alka Kapoor wife of the complainant on account of treatment and medical expenses. Beside this, the bills Ex.A9 to Ex.A23 shows that the complainant has spent Rs.13010/- for the purchase of medicine etc. Thus, the complainant has spent Rs.47334/- + Rs.13010/- total amounting to Rs.60344/- and he is entitled to recover the same from the OPs-Insurance Company. 14. To prove his case, the complainant has produced his affidavit Ex.A1, copy of policy Ex.A2, copy of letter Ex.A3, copy of card issued by Alankit Ex.A4, copy of claim form Ex.A5, copy of discharge slip Ex.A6, copy of medical bill Ex.A7, copies of receipt of DMC Ex.A8 to Ex.A10, copies of bills Ex.A11 to Ex.A23, copies of letters Ex.A24 and Ex.A25, copy of application Ex.A26, copy of medical certificate Ex.A27. On the other hand, no reliance could be placed on the affidavit of Sh.Jaswant Rai Ex.R1 and other documents Ex.R2 to Ex.R7 and we discard the same. 15. The ld. counsel for the parties did not urge or argue any other point before us. 16. In view of the aforesaid facts and circumstances, the complaint filed by the complainant has merit and the same is accepted. The OPs-Insurance Company is directed to pay Rs.60344/-alongwith interest @ 9% per annum from the date of repudiation of the claim i.e. 28.04.2008 till its realization. The OPs-Insurance Company shall also pay Rs.5000/- as compensation to the complainant for mental tension, harassment and litigation expenses within one month from the date of receipt of copy of this order. Copies of the order be sent to the parties free of cost and thereafter the file be consigned to the record room. (Jit Singh Mallah) (J.S.Chawla) Member President Announced in Open Forum. Dated:23.10.2008. hrg*
