Punjab

Ludhiana

CC/15/542

Shweta Aggarwal - Complainant(s)

Versus

United India Ins.Co.Ltd - Opp.Party(s)

Vikas Gupta Adv.

20 Feb 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 542 of 15.09.2015

Date of Decision            :   20.02.2017 

 

Shweta Aggarwal aged 34 years wife of Shri Pawan Kumar Aggarwal, resident of Kothi No.2720, Sunder Nagar, Ludhiana.

….. Complainant

                                                            Versus

 

1.United India Insurance Company Limited, S.C.O.101-103, Batra Building, 2^nd Floor, Sector 17-D, Chandigarh, through its General Manager.

2.United India Insurance Company Limited, Savitri-I, First Floor, G.T.Road, Ludhiana, through its Branch Manager.

 

…Opposite parties

             (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

 

SH.G.K.DHIR, PRESIDENT                                        

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

 

For complainant               :          Sh.Vikas Gupta, Advocate

For OPs                           :          Sh.Rajeev Abhi, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.                 Complainant purchased individual health insurance policy No.201000/48/13/97/00002442 on 21.2.2014 by paying the premium of Rs.17,299/-. Said policy was having the validity for the period from 21.2.2014 to 20.2.2015. Complainant has been availing the insurance policies regularly ever since from 21.2.1999 without any default by paying the premiums. All of a sudden, complainant suffered from big right ovarian cyst and she was got admitted in Satguru Partap Singh Apollo Hospital, Ludhiana. There the doctor advised her for operation/surgery. Complainant was operated on 10.6.2014 and she was discharged from the hospital on 13.6.2014. Above said disease of the complainant is fully covered by the terms and conditions of the insurance policy, due to which, complainant lodged reimbursement claim qua expenses of Rs.73,336/- incurred on this treatment. Ops did not consider the claim of the complainant and even did not make the payment. That action of Ops in repudiating the claim alleged to be illegal and arbitrary. That repudiation took place on the ground that treatment about secondary infertility is excluded from the scope of the policy. That disease has been mentioned by the attending doctor inadvertently in the discharge summary, despite the fact that the complainant actually  suffered       from “right ovarian cyst” problem only. Dr.Zeenia Sarda Girn, attending doctor issued certificate dated 20.8.2014 for clearly mentioning the true facts about the disease of the complainant. Complainant approached the Insurance Ombudsman for considering her claim, but thereto the complaint was dismissed allegedly in illegal manner. By pleading deficiency in service on the part of Ops and by claiming that the complainant suffered from mental pain, agony and harassment, directions sought to Ops to make the payment of claim amount of Rs.73,336/- plus Rs.1 lac on account of mental and physical and financial loss. Litigation expenses of Rs.22,000/- more claimed.

2.                 In joint written statement filed by OPs, it is pleaded interalia as if complaint is barred in view of Section 26 of the Consumer Protection Act, 1986(hereinafter in short referred to as ‘Act’); this complaint is not maintainable after dismissal of complaint by the Insurance Ombudsman through order dated 11.6.2015; complainant is estopped by her act and conduct from filing this complaint, particularly when she has suppressed the material facts from this Forum. Even it is claimed that in view of complicated question of law and facts involved in the case requiring elaborate evidence,  matter liable to be decided by civil court of competent                jurisdiction. Admittedly, the individual health insurance policy was purchased by the complainant with validity period from 21.2.2014 to 20.2.2015. However, claim of the complainant alleged to be rightly repudiated by keeping in view the exclusionary clause 4.6 of the terms and conditions of the policy. That clause provides that expenses, whatsoever, incurred by any person in connection with or in respect of convalescence, general debility; run-down condition or rest cure, obesity treatment and its complication including morbid obesity, congenital external disease or defects or anomalies, treatment relating to all psychiatric and psychosomatic disorders, not covered under the policy, infertility, sterility, venereal disease, intentional self injury and use of intoxication drugs/alcohol also not covered by the terms and conditions of the policy. On lodging of claim by the complainant qua her treatment during period from 10.6.2014 to 13.6.2014, the same was duly registered, entertained and processed and thereafter, after obtaining opinion from M/s Raksha TPA Pvt. Ltd, the claim was repudiated. The said Raksha TPA after scrutinizing the claim file and submitted documents, recommended for non-payment of the claim vide their letter dated 10.7.2014 by finding that complainant was admitted as a case of secondary infertility, managed surgically, due to which, claim not payable as per clause 4.6 of the terms and conditions of the policy. OP2 rightly repudiated the claim vide letter dated 10.9.2014. Aggrieved by the order of repudiation of claim, complainant approached the Insurance Ombudsman at Chandigarh, where too the complaint was dismissed vide order dated 11.6.2015. Insurance Ombudsman concurred with the decision of repudiation of claim. It is claimed that Consumer Forum cannot sit in appeal to examine the proprietary of the order of Ombudsman. Each and every other averment of the complaint denied by claiming that the complainant is not a consumer within the meaning of the Act.

3.                 Complainant to prove her case tendered in evidence affidavit Ex.CA along with documents Ex.C1 to Ex.C7 and thereafter, her counsel closed the evidence.

4.                 On the other hand, counsel for OPs tendered in evidence affidavits Ex.RA and Ex.RB of Sh. Sudesh Sharma, Senior Divisional Manager of Ops and of Sh.Dinesh Kumar of M/s Raksha TPA Pvt. Ltd along with documents Ex.R1 to Ex.R15 and then closed the evidence.

5.                 Written arguments submitted by Ops alone and not by the complainant. Oral arguments of counsel for parties heard. Records gone through carefully.

6.                 Repudiation of the claim order passed by the insurance company was challenged before the Insurance Ombudsman and the said complaint/appeal was dismissed by the Learned Insurance Ombudsman by holding that confirmation certificate of the hospital dated 20.8.2014 is an afterthought. Copy of order of dismissal of complaint passed by Learned Insurance Ombudsman of Insurance Company produced on record as Ex.C2=Ex.R13 along with covering letter Ex.C1=Ex.R12. Merely because the Ombudsman has dismissed the complaint/appeal of the complaint, due to that alone, it cannot be held that this Forum has no jurisdiction or the complainant estopped by her act and conduct from filing this complaint. In holding this view, we are fortified by law laid down in case titled as Cholamandalam M/s General Insurance Company Limited vs. Sandeep Joshi-2015(4)CLT-108(N.C.). Ratio of this case lays that Ombudsman award is not a bar for     the Consumer Fora to adjudicate the matter.

7.                 Lodging of claim and repudiation of the same are admitted facts. Record of treatment of complainant produced as Ex.C6 and Ex.C7 or Ex.R7 to Ex.R11.  Perusal of Ex.C6=Ex.R7, the discharge summary reveals that complainant remained admitted in Satguru Partap Singh Apollo Hospital, Ludhiana for period from 10.6.2014 to 13.6.2014 and surgery was performed on her on 10.6.2014. Dr.Zeenie Sarda Girn as consultant mentioned in Ex.C6=Ex.R7. Diagnosis mentioned in this discharge summary is in terms “32 years old P2+O with secondary infertility and right ovarian cyst”. Chief complaint mentioned as “C/o wants to conceive, oligomenorrhoea”. In operative findings, it is mentioned that cyst is freely mobile and there is free spillage of dye from both tubes on dye test. Right ovarian simple cyst of size 6 x 5 cm was found. From this record, it is made out that after diagnosis of secondary infertility and right ovarian cyst, the operation was performed, due to       fact that the complainant is not conceiving. Mention of this                             secondary infertility in diagnosis column itself reflects that operation was performed for curing secondary infertility and right ovarian cyst. This record submitted by the complainant while lodging the claim Ex.R6 on 16.6.2014. However, certificate Ex.C7 is of date 20.8.2014, in which, mention made that operation performed on the complainant on 10.6.2014 was for big right ovarian cyst. In Ex.C7 itself, it is mentioned that complainant had no complaint of secondary infertility and she does not want pregnancy further. Contents of certificate Ex.C7 goes contrary to the recital contained in Ex.R7=Ex.C6 that complainant wants to conceive qua which the complaint was made. So, content of Ex.C7 goes to the contrary of the records of discharge summary Ex.C6=Ex.R7. As initially the complainant complained of once to conceive and as such, subsequent certificate Ex.C7 disclosing  that the        complainant does not want pregnancy further is just an afterthought. Ombudsman has rightly held so in its order, particularly when the letter Ex.R2 recommended for repudiation of claim in view of clause 4.6 of the policy. This letter Ex.R2 is of date 19.8.2014, whereas the recommendation of Raksha TPA for repudiation of claim is of date 10.7.2014 as disclosed by contents of Ex.R4. So, this means that certificate Ex.C7 was obtained by the complainant after knowing-fully well that Raksha TPA has recommended for repudiation of claim and that letter Ex.R2 for such repudiation prepared one day prior to the preparation of certificate Ex.C7. In view of this afterthought story created, it was essential for complainant to examine the doctor namely Dr.Zeenie Sarda Girn, who allegedly issued the certificate Ex.C7 or tender his/her affidavit in evidence for proving the authenticity of certificate Ex.C7. Original of Ex.C7 even has not been produced and as such, complainant has withheld the best available evidence in proof of correctness of Ex.C7 virtually. Only that party will suppress such like material evidence, who is to concoct the story. So, order of terming the certificate Ex.C7 as an afterthought by the Ombudsman is appropriate.

8.                 Copy of terms and conditions of insurance policy produced on record as Ex.R14 by Ops. Perusal of exclusionary clause 4.6 of the terms and conditions of the policy available at page no.9 and 10 shows that the insurer not liable for making payment of the expenses incurred by a person in connection with or in respect of convalescence, general debility; run-down condition or rest cure, obesity treatment and its complication including morbid obesity, congenital external disease or defects or anomalies, treatment relating to all psychiatric and psychosomatic disorders, infertility, sterility, venereal disease etc. So, it is obvious that expenses in respect of treatment for infertility not reimbursable by the insurance company as per exclusionary clause 4.6 available at page no.10 of Ex.R14. Treatment in question even got by the complainant for secondary infertility is a fact borne from the discharge summary record referred above and as such, certainly repudiation of claim is as per exclusionary clause 4.6 of the insurance policy.

9.                 As per law laid down in case of Kulwant Singh vs. United India Insurance Company Limited and another-IV(2008)CPJ-196(N.C.), if history in discharge summary not proved to be recorded wrongly, then reliance on said discharge summary liable to be placed. Same is the position in the case before us because it       is not shown that diagnosis of secondary infertility recorded in Ex.C6=Ex.R7(discharge summary) is wrong.

10.               Terms and conditions of the policy to be strictly construed and nothing can be added or subtracted thereto by assigning the different meaning to the words mentioned therein is the well settled proposition of law laid down in cases of Ind Swift Limited vs. New India Assurance Co.ltd and others-IV(2012)CPJ-148(N.C.); Usha Sharma and others vs. New India Assurance Co.Ltd and others-I(2012)CPJ-488(N.C.); United India Insurance co.Ltd. vs. Harchand Rai Chandan Lal-IV(2004)CPJ-15(S.C.) and Deokar Exports Private Limited vs. New India Assurance co.Ltd-I(2009)CPJ-6(S.C.). So, different meaning to the terms and conditions mentioned in exclusionary clause 4.6 referred above, cannot be assigned. As the treatment for infertility has specifically been excluded and as such, repudiation of claim is justified.

11.               As a sequel of the above discussion, complaint dismissed without any order as to costs. Copies of order be supplied to parties free of costs as per rules.

12.                         File be indexed and consigned to record room.

         

                    (Param Jit Singh Bewli)                                 (G.K. Dhir)

                                                  Member                                                     President

Announced in Open Forum                                                                  Dated:20.02.2017

Gurpreet Sharma.