DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA.

                                        Complaint No. CC/14/289 of  16.10.2014.

                                        Decided on: 23.02.2015.

Shanti Kumar Jain (Senior Citizen) aged 78 years S/o. Late Sh. Udhy Chand Jain, r/o. H. No.101, Street No.2, Partap Colony, Samana.

                                                                                      ….….Complainant.

                                                Versus

1. The Oriental Insurance Co. Ltd., Divisional Office Sai Market, Lower Mall, Patiala.
2. Oriental Bank of Commerce, Regional Office, Chhoti Baradari, Patiala.

….…Opposite parties.

Complaint under Section 12 of the Consumer Protection Act.

                                      QUORUM

                                      Sh. D.R. Arora, President.

                                      Smt. Neelam Gutpa, Member.

                                      Smt. Sonia Bansal, Member.

Present:                          Sh. Dheeraj Puri counsel for complainant.

Sh. B.L. Bhardwaj counsel for opposite party no.1.

ORDER

D.R. ARORA:

1.       It is the case of the complainant that he had purchased a mediclaim policy for himself and his wife Smt. Swaran Kanta Jain from Oriental Bank of Commerce i.e. O.P no.2 bearing no.233500/48/2013/1782 valid for the period 08.01.2013 to the midnight of 07.01.2014 having made the payment of premium of Rs.6,830/- for the sum assured of Rs.5 Lacs. Under the policy, the insurer was liable to pay hospitalization expenses for medical/surgical treatment in any nursing home/hospital in India.

2.       Smt. Swaran Kanta Jain, wife of the complainant had fallen ill accidently on 19.11.2013. She consulted Dr. P.C. Gupta, M.S. (Ortho), a specialist in bone and joint in Prem Hospital on 22.11.2013, who advised traction for one month. She again visited Prem Hospital on 12.01.2014 and Dr. P.C. Gupta advised same prescription. She then visited Prem Hospital on 07.02.2014 and told the doctor regarding the pain in her knees, on account of which she was unable to walk. The doctor repeated the medicines. Again Smt. Swaran Kanta visited the doctor on 10.03.2014 for consultation, who advised the knee replacement.

3.       It is further the case of the complainant that the wife of the complainant was taken to MAX Super Speciality Hospital, Mohali where Dr.  Manuj Wadhwa, M.S. (Ortho) diagnosed, “Patient H/O fall six months back at home sustaining injuries on b/l knees and pelvis. It is associated with stiffness. It was aggravated by standing for longer duration, rests. Patient complaint of difficulty in walking and was bed ridden since six months.”  Said doctor suggested immediate replacement of knee. It is alleged that the complainant paid a total amount of Rs.3,97,316/- for the surgery of B/L TKR on 20.05.2014, when the patient was discharged in stable condition.

4.       It is further the case of the complainant that he lodged the claim with the O.Ps along with complete set of the documents of treatment in the hospital as also  the bills for total claim of Rs.3,97,316/- on 30.05.2014 by hand as also through mail on 26.05.2014. O.P no.1 repudiated the genuine claim of the complainant on the ground that the claim for Rs.54,316/- was not tenable under the terms and conditions of the policy, on 05.06.2014. The complainant immediately approached O.P no.1, a broker, who wrote letter dated 01.07.2014 and requested to look into the matter and to settle the claim at the earliest.

5.       It is also the case of the complainant that the claim of the complainant was repudiated under the exclusion clause 4.2 of the policy on the ground that the expenses for the treatment of the ailment/diseases/surgeries for joint replacement for a specific period of 3 years is not payable in case the ailment is contracted and/or manifested during the currency of the policy.  The said clause is not applicable in the case of the complainant. The same does not exclude the replacement of the joints due to an accident and therefore, the repudiation of the claim of the complainant by the O.P vide letter dated 29.08.2014 is said to be a deficiency in service as also an unfair trade practice, which resulted into mental agony experienced by the complainant. Accordingly, the complainant brought this complaint against the O.Ps under Section 12 of the Consumer Protection Act, 1986 (for short the Act) for a direction to the O.Ps to pay him Rs.3,97,316/- with interest; to pay him Rs.5 Lacs by way of compensation on account of harassment and mental agony experienced by him as also the deficiency in service and further to award him Rs.22,000/- towards cost of litigation.

6.       Here it may be noted that cognizance of the complaint was taken against O.P no.1 only, who on appearance filed the written version. The O.P has admitted the issuance of mediclaim policy schedule vide policy no.233500/48/2013/1782 for the period 08.01.2013 to 07.01.2014 and then insurance policy no.233500/48/2013/1754 for the period 07.01.2014 to 06.01.2015 but it is denied that the complainant had been getting the insurance policy from the O.Ps for the last 15 years. The policy, as per the admission made by the complainant, was issued for the period 03.01.2012 to 02.01.2013 and no particulars of the insurance prior thereto have been furnished by the complainant nor any insurance policy of the period prior to 03.01.2012 has been placed on file.

7.       It is further averred by the O.P that the claim of the complainant was repudiated by the O.P vide letter dated 29.08.2014 on the ground, “On perusal of claim documents it is found that claimant covered under the above mentioned policy was admitted at MAX HOSPITAL for the treatment of  ADVANCED OSTEOARTHRITIS B/L KNEE WITH VARUS DEFORMITY on 19-05-2014 & discharged on 26-05-2014. As per the Policy Terms and Conditions, during the period of insurance cover, the expenses on treatment of ailment/diseases/surgeries for Joint Replacement for specified periods of 3 yrs are not payable if contracted and/or manifested during the currency of the policy. Hence, we regret our inability to admit this liability under present policy conditions and the claim is being repudiated under Exclusion 4.2 of above mentioned policy. We also reserve the right to repudiate the claim under any other ground/s available to us subsequently.” The claim of the complainant was not covered/payable as per the terms and conditions of the insurance policy and therefore, the same has been repudiated by the O.P and there is no illegality in the same. The complainant is not entitled to any compensation. After denouncing the other averments of the complaint, going against the O.P, it was prayed to dismiss the complaint.

8.       In support of his claim, the complainant produced in evidence Ex. CA, his sworn affidavit along with documents Ex. C1 to Ex. C30 and his counsel closed evidence. On the other hand, on behalf of the O.P, it’s counsel tendered in evidence Ex. OPA, the sworn affidavit of Sh. A.S. Dhingra, Senior Divisional Manager of the O.P along with documents Ex. C1 to Ex. C7 and closed its evidence.

9.       The O.P. filed the written arguments. We have examined the same, heard the learned counsel for the parties and gone through the evidence on record.

10.     Ex. C8 is the letter dated 05.06.2014 written by the authorized signatory of O.P no.1 to Ms. Swarn Kanta Jain C/o. Mr. Shanti Kumar Jain in respect of the  policy claim no.10058272 regarding policy no.233500/48/2014/1754 valid for the period 03.01.2014 to 02.01.2015 on the subject  Denial of claim 10058272 under 233500/48/2014/1754  having informed her that the claim is not tenable in view of the following: “On perusal of claim documents it is found that claimant covered under the above mentioned policy was admitted at MAX HOSPITAL for the treatment of  ADVANCED OSTEOARTHRITIS B/L KNEE WITH VARUS DEFORMITY on 19-05-2014 & discharged on 26-05-2014. As per the Policy Terms and Conditions, during the period of insurance cover, the expenses on treatment of ailment/diseases/surgeries for Joint Replacement for specified periods of 3 yrs are not payable if contracted and/or manifested during the currency of the policy. Hence, we regret our inability to admit this liability under present policy conditions and the claim is being repudiated under Exclusion 4.2 of above mentioned policy. We also reserve the right to repudiate the claim under any other ground/s available to us subsequently.”

11.     Ex. C9 is the prospectus in respect of Oriental Bank Mediclaim (with family floater) for the account holders/employees of the Oriental Bank of Commerce and under the heading exclusions it is provided: “The Company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured Person in connection with or in respect of:

4.1.    Pre-existing health condition or disease or ailment/injuries: Any ailment/disease/injuries/health condition which are pre-existing (treated/untreated, declared/not declared in the proposal form), when the cover incepts for the first time are excluded up to three Completed) years of this policy being in force continuously. For the purpose of applying this condition, the date of inception of this Mediclaim Policy taken from The Oriental Insurance Company shall be considered, provided the renewals have been continuous and without any break in period.

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 pre-existing condition SHALL be applicable in such cases.

If the continuity of the renewal is not maintained with the Company then subsequent cover SHALL be treated as fresh policy and clauses 4.1, 4.2 SHALL apply unless agreed by the Company and suitable endorsement passed on the policy. Similarly if the sum insured is enhanced subsequent to the inception of the policy, the exclusions 4.1 and 4.2 will apply afresh for the enhanced portion of the sum insured for the purpose of this section.”

12.     Ex. C3 is the OPD slip no.1644 dated 22.11.2013 of the patient Smt. Swaran Kanta Jain issued by Prem Hospital, Prem Nagar, Patiala when she was diagnosed to be a case with history of fall on the floor and some object having fallen on her back. She had visited again Prem Hospital on 12.01.2014, 17.02.2014 and 10.03.2014 when she was advised both TKR. Ex. C4 is the medical record of MAX Super Speciality Hospital, Mohali dated 20.05.2014 in respect of patient Smt. Swaran Jain and when she was diagnosed, “ADVANCED OSTEOARTHIRITIS B/L KNEES WITH VARUS DEFORMITY POST CABG. B/L TKR WITH PATELLA (CR150 DEPUY J&J) ON 20/5/14.” Under brief history/HOPI, it is recorded, “Patient H/O fall 6 months back at home sustaining on b/l knees and pelvis. Since then she is complaining of bilateral knee pain. It is chronic in onset and progressive in nature. Pain is diffused, aching in nature and present throughout. It is associated with stiffness. It is aggravated by standing for longer duration, exertion and relieved by Medicines, reset. Patient complains of difficulty in walking and was bedridden since 6 months.”

13.     It was submitted by Sh. B.L. Bhardwaj, the learned counsel for the O.P that the ailment was contracted by the patient Smt. Swaran Kanta during the continuation of policy no.233500/48/2013/1782 valid for the period 08.01.2013 to 07.01.2014 Ex. C1, in which the previous policy number has been mentioned as 233500/48/2012/1827, copy of same being Ex. C11 valid for the period 03.01.2012 to 02.01.2013. Here it may be noted that the complainant has placed on file Ex. C13 showing the correction of the validity period of the policy Ex. C1 as 03.01.2013 to 02.01.2014. Even if the complainant is taken to have obtained the policy no.233500/48/2012/1827 from the O.P for the period 03.01.2012 to 02.01.2013, a period of 3 years had not completed during the continuance of policy no.233500/48/2013/1782 Ex. C1 valid for the period 08.01.2013 to 07.01.2014 to be read with Ex. C13 to read the corrected period from 03.01.2013 to 02.01.2014 and therefore, the claim of the complainant was rightly repudiated by the O.P under exclusion clause 4.2 as noted above.

14.     On the other hand, it was submitted by Sh. Dheeraj Puri, the learned counsel for the complainant that it is very much alleged by the complainant that he had been purchasing the policy continuously for the last 15 years and that the complainant has also produced   in evidence the policies Ex. C17 to Ex. C24 taken from National Insurance Company Ltd. for the period 16.02.2012 to 15.02.2013, 16.02.2011 to 15.02.2012, 16.02.2010 to 15.02.2011, 16.02.2009 to 15.02.2010, 16.02.2008 to 15.02.2009, 16.02.2007 to 15.02.2008, 16.02.2006 to 15.02.2007 and 16.02.2005 to 15.02.2006 for himself and his wife Smt. Swaran Kanta Jain, the said policies being mediclaim one and therefore, the exclusion clause 4.2 of the policy will not apply to the claim of the complainant as the complainant had been taking the mediclaim policies continuously since 16.02.2005.

15.     In this regard, it was also submitted by Sh. Puri that the Insurance Regulatory and Development Authority  issued the guidelines in respect of all health insurance policies issued by the life and general insurers in the country in the shape of Annexures-I to IX and in Annexure-I under instructions 43 which pertains to Portability, it is provided, “Portability means the right accorded to an individual health insurance policy holder (including family cover) to transfer the credit gained by the insured for pre-existing conditions and time bound exclusions if the policyholder chooses to switch from one insurer to another insurer or from one plan to another plan of the same insurer, provided the previous policy has been maintained without any break.” In the light of the aforesaid guidelines issued by Insurance Regulatory and Development Authority on portability, it was submitted by Sh. Puri that the complainant is entitled to earn the credit gained by the complainant on time bound exclusion by way of treating the continuation of his earlier policies Ex. C17 to Ex. C24 and collaborating the same with the policies obtained by the complainant from the Oriental Insurance Co. Ltd. vide policy Ex. C1 for the period 08.01.2013 to 07.01.2014 (correction period 03.01.2013 to 02.01.2014) and Ex. C11 for the period 03.01.2012 to 02.01.2013.

16.     On the other hand, in this regard, it was submitted by Sh. B.L. Bhardwaj, the learned counsel for the O.P that nowhere in the policy no.233500/48/2012/1827 issued by the O.P for the period 03.01.2012 to 02.01.2013, any reference of any previous policy is given. Moreover under exclusion clause 4.2 it is provided, “If the continuity of the renewal is not maintained with the Company then subsequent cover SHALL be treated as fresh policy and clauses 4.1, 4.2 SHALL apply unless agreed by the Company and suitable endorsement passed on the policy. Similarly if the sum insured is enhanced subsequent to the inception of the policy, the exclusions 4.1 and 4.2 will apply afresh for the enhanced portion of the sum insured for the purpose of this section.”

17.     It was further submitted by Sh. Bhardwaj that even under IRDA instruction no.43 pertaining to portability, the right in this regard has to be chosen by the insured while switching from one insurer to another insurer and it is nowhere the case of the complainant that he had chosen the right of the portability so as to avail the credit gained by him on the previous policies held by him with National Insurance Co. Ltd.

18.     We have considered the submissions and are of the considered view that the complainant has not claimed the continuity of the mediclaim insurance policies purchased by him from National Insurance Co. Ltd. while switching over to the Oriental Insurance Co. Ltd. i.e. the O.P, a fact which was never disclosed by the complainant to the O.P and therefore, now the complainant cannot gain any advantage on the basis of the policies Ex. C17 to Ex. C24 held by him in continuity for the period 16.02.2005 to 15.02.2013 purchased from National Insurance Company, particularly when under exclusion clause 4.2 it is specifically provided that if the continuity of the renewal is not maintained with the Company then subsequent cover shall be treated as fresh policy and clauses 4.1 and 4.2 shall apply unless agreed by the Company and  suitable endorsement passed on the policy. The complainant failed to get any endorsement on his policy Ex.C1 regarding the previous policies Ex. C17 to Ex. C24 purchased by him from National Insurance Company. At the most we can treat the complainant to be holder of the first policy no.233500/48/12/1827 Ex. C11 for the period 03.01.2012 to 02.01.2013 purchased from the O.P and therefore, the patient had not completed a period of 3 years for the treatment of ortho bilateral TKR got by her from MAX Super Speciality Hospital, Mohali vide Ex. C4 and therefore, the O.P was justified in having repudiated the claim of the complainant vide letter Ex. C8 under exclusion clause 4.2 of the prospectus Ex. C9.

19.     We do not find any substance in the submissions made by the learned counsel for the complainant that the exclusion clauses were not made known to the complainant because of the complainant himself having produced the prospectus Ex. C9 containing the salient features of the policy also including the exclusion clauses 4.1 and 4.2 and for that reason the citation The Oriental Insurance Company Limited Vs Vivek Rekhan 2014(3)CLT 202 of the Hon’ble Haryana State Consumer Disputes Redressal Commission, Panchkula and The National Insurance Co. Ltd. & others Vs Jammaluddin Mondal 2014(3)CLT 619 of the Hon’ble Chandigarh State Consumer Disputes Redressal Commission, U.T., Chandigarh cannot be applied to the facts of the case.

20.     As an upshot of our aforesaid discussion, we do not find any merit in the case of the complainant and same is hereby dismissed.

Pronounced.

Dated: 23.02.2015.

Sonia Bansal        Neelam Gupta                D.R. Arora

          Member                Member                President