DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
PATIALA.
Consumer Complaint No. 174 of 15.5.2017
Decided on: 28.9.2018
Mr.Pawan Kumar son of Sh.Ruldu Ram, resident of 70-B, Pandav Street No.3, Partap Nagar, Tehsil and District Patiala.
…………...Complainant
Versus
1. The Oriental Insurance Company Limitted, A-25/27, Asaf Ali Road, New Delhi-110002, through its Authorized signatory.
2. The Oriental Insurance Company Limited, Branch Office at Sai Market, Lower Mall, Patiala through its Branch Manager/ Authorized Signatory.
…………Opposite Parties
Complaint under Section 12 of the
Consumer Protection Act, 1986.
QUORUM
Sh. M.P.Singh Pahwa, President
Smt. Neelam Gupta, Member
Sh.Kanwaljeet Singh, Member
ARGUED BY
Sh.L.S.Sandhu,Adv. counsel for the complainant.
Sh.D.P.S.Anand,Adv. counsel for Opposite Parties.
ORDER
SH. M.P.SINGH PAHWA,PRESIDENT
- This is the complaint filed by Sh.Pawan Kumar (hereinafter referred to as the complainant) against The Oriental Insurance Company Limited (hereinafter referred to as the OPs) under Section 12 of the Consumer Protection Act(for short the Act),1986.
2. Briefly, the case of the complainant is that he has obtained policy bearing No.233500/48/2017/1481 from OPs No.1&2. He had paid premium of Rs.4730/- and sum assured under the policy is upto to Rs.3lacs. The policy is applicable from 20.7.2016 to 19.7.2017 midnight and covered four persons namely Pawan Kumar, his wife Rekha Rani and children Priyanka Bansal and Karan Bansal. It is pleaded that his wife got diagnosis of Rt renal correction with LT lower uteteric stone 7.6x6.9mm with HNU Grade 1. She got operation of ureteroscopic laser lithotripsy stone LT ureter with DJ stenting.
Thereafter the complainant applied to the OPs through Raksha TPA Limited but the OPs refused to pay any amount and have repudiated the claim. It is alleged that the OPs have rejected the genuine claim on the false and flimsy grounds. The complainant was forced and under compelled circumstances, he paid Rs.39545/- for treatment of his wife to Nitin Hospital, Patiala and Fortis Hospital as OPs have denied cashless facility to the complainant.
It is also alleged that the complainant suffered from mental pain and agony etc. when he came to know that the claim has been refused and for these sufferings the complainant has claimed compensation to the tune of Rs.50,000/-.
The complainant also got issued legal notice to the OPs but to no response. Hence this complaint with the prayer for direction to the OPs to pay Rs.39845/- with interest @14% per annum, Rs.7500/-as counsel fee with litigation expenses of Rs.5000/- and Rs.50,000/- as compensation..
3. Upon notice, OPs appeared through counsel and contested the complaint by filing joint written reply. In reply, the OPs raised preliminary objections that the complaint is not maintainable as the claim has been repudiated on the ground that the disease Left Lower Renal Calculi falls under two year exclusion, which is not covered under the policy. The claim has been rightly repudiated under the terms and conditions of the policy. The insurance is a contract of indemnity. It has to be viewed as a normal contract as per the Indian Contract Act. Any violation of the insurance contract makes contract void and the insurance company would not be able to answer the claim. That the complaint is not maintainable as the complainant does not fall under the definition of ‘consumer’; complicated question of law and facts are also involved, only civil court is competent to try the dispute; that the complaint is bad for non joinder of necessary parties as Raksha T.P.A. Pvt. Ltd. Chandigarh is not impleaded as party.
4. On merits, it is revealed that OP No.2 had issued PNB Oriental Royal Mediclaim Policy, in favour of the complainant for the period from 20.7.2016 to 19.7.2017, covering the risk of medical and hospitalization of complainant, his wife Rekha Rani and Children Priyanka Bansal & Karan Bansal, for a sum of Rs.1lac each. It is denied that wife of the complainant was diagnosed as a case of left renal correction with Lt lower uteteric stone.7/6 x 6/9mm with HNU Grade-1 and she got operated of ureteroscopic laser lithotripsy stone Lt with DJ stenting. . It is denied that the complainant applied for cashless service and the same has been refused. It is further mentioned that Raksha TPA Pvt. Ltd. is the 3rd party administrator of the policy. They have disallowed the request vide letter dated 25.11.2016 on the ground that the disease left lower renal calculi (as the disease falls under two years exclusion) and cashless facility cannot be provided to Fortis Hospital, Mohali, where Smt.Rekha Rani was getting treatment. All the other averments of the complainant are denied. In the end, the OPs prayed for the dismissal of the complaint.
5. Parties were afforded opportunity to produce their evidence.
6. Complainant tendered into evidence his affidavit, Ex.CA, copy of policy, Ex.C1, copies of medical reports, Exs.C2 to C6, copy of repudiation letter, Ex.C7, copies of medical bills,Exs.C8 to C18, copies of representations, Exs.C19 to C21 , postal receipts, Exs.C22 to C24.
7. OPs tendered into evidence affidavit of Mukesh Malhotra, Ex.OPA, affidavit of Dr.Sham Gupta, Ex.OPB, repudiation letter, Ex.OP1, policy with conditions, Ex.OP2, discharge summary Ex.OP3, discharge summary, Ex.OP4, prescription of Fortis Hospital Ex.OP5 and closed the evidence.
8. We have heard the ld. counsel for the parties and have also gone through the record of the case, carefully.
9. The ld. counsel for the complainant has reiterated his stand as taken in the complaint. It is also submitted by the ld. counsel for the complainant that the OPs have firstly denied cashless treatment and then have also not reimbursed the claim. OPs have rather pleaded that the claim has been repudiated under Exclusion Clause 4.2.
In rejoinder, the complainant has also categorically stated that the OPs have not provided terms and conditions. Therefore, the exclusion clause mentioned in the written letter is not binding to the complainant. As such, the repudiation of the claim amounts to deficiency in service.
It is also submitted by the ld. counsel for the complainant that the OPs have also not explained the exclusion clause to the complainant. For this reason also the exclusion clause cannot be used against the complainant.
To support these submissions, the ld. counsel for the complainant has relied upon the citations 2007(3) C.P.J.34 National Insurance Co. Ltd. V.D.P.Jain (NCDRC New Delhi, 2009(1)C.P.R. 239 ICICI Lombard General Insurance Co. Ltd. V.Gurmeet (P.S.C.D.R.C.) (Chandigarh).
10. On the other hand, the ld. counsel for the OPs has submitted that the matter is to be decided as per the pleadings of the parties. The rejoinder filed with written arguments cannot be treated as part of the pleadings. Any plea taken in the written joinder cannot be looked into. In the complaint, the complainant has no where alleged that he has not received the terms and conditions. Therefore, it is to be accepted that terms and conditions were supplied to the complainant.
OPs have also produced copy of the prospectus. Clause 4.2, details the treatment which are excluded for the period mentioned against these entries. The entry No.XIX relates to Calculus diseases and for which reimbursement is excluded for two years. The discharge summary relied upon by the complainant proves that his wife took treatment for uteteric calculus. Therefore, the OPs are justified to repudiate this claim.
It is also submitted by the ld. counsel for the OPs that it was duty of the complainant to be informed about the terms and conditions of the policy. Ignorance of the terms and conditions cannot be taken as an excuse.
To support this submissions, the ld. counsel for the OPs has cited 2017(2)CLT 372 Aman Kapoor Versus National Insurance Co. Ltd. & Others, II(2012)CPJ 50(NC) National Insurance Co. Ltd. Versus Soma Devi & Ors., 2015(1)CLT182 Ram Bhagat Chokhani Versus Oriental Insurance Co. Ltd., 2015(1)CLT 185 The Branch Manager, New India Assurance Company Limited Versus Debendra Kumar Lokchandani, 2009(1)CPC 374 Deokar Exports Pvt. Ltd. Versus New India Assurance Co. Ltd.-
11. We have given careful consideration to these submission and gone through the citations referred to by the ld.counsel for the parties.
12. The admitted facts are that the complainant obtained the policy of the OPs. Wife of the complainant Smt. Rekha Rani was covered under the policy. She took treatment from Fortis Hospital , Mohali and from Nitin Hospital,Patiala. The claim submitted by the complainant has been repudiated. Although no letter repudiating the claim is brought on record but the claim file proves that TPA has recommended repudiation vide letter Ex.OP1. The OPs have also taken the affirmative stand that the claim has been repudiated under clause 4.2.
13. Now it has to be seen whether the repudiation is justified.
14. Discharge summary relied upon by the complainant from Nitin Hospital, proves that the patient has taken treatment for utetric stone. The policy was purchased for the first time from 20.7.2016 to 19.7.2017. The treatment was taken from 29.11.2016 onwards. OPs have also brought on record the terms and conditions of the policy in question. Clause 4.2 relates to diseases for which the expenses are not payable for a particular period. As per this clause, the expenses for calculus diseases are not payable for first two years. Therefore, this exclusion clause is applicable in the case of Rekha Rani.
15. The ld. counsel for the complainant has tried to project that the complainant was not supplied with terms and conditions of the policy. But this fact is not mentioned in the complaint. Of course in rejoinder it is alleged, but rejoinder is not part of the pleadings. It is filed only alongwith the written arguments and without any permission of the Forum or without orders of the Forum. Therefore, the plea taken in the rejoinder which is not part of the pleadings is not to be looked into. It is well settled that the plea beyond pleadings and taken at the time of arguments is not having any evidentiary value.
For the reasons recorded above, the complaint being without merits is dismissed accordingly. Certified copies of this order be sent to the parties free of cost under the Rules. Thereafter, file be indexed and consigned to the Record Room.
ANNOUNCED
DATED:28.9.2018
Kanwaljeet Singh Neelam Gupta M. P. Singh Pahwa
Member Member President
