Date:06.07.2017

ORDER                                  

K.S. Mohi, President

1. Instant complaint has been filed by complainant on 20.12.2010 against the OP stating therein that he purchased health insurance policy bearing no. 040401/48/09/97/00000268 issued in his favour and got it renewed  in the year 2009.   The complainant developed medical problem at the end of year 2009 and, therefore, he was admitted in the NEW ROHINI hospital on 22/12/2009. The complainant was diagnosed with the problem of high fever and hyperpyrexia and from 22/12/2009 to 29/12/2009 he remained in the said hospital. The complainant informed the OP about his illness and he spent Rs 40000/- on the treatment and medicine. The complainant filed his claim with the OP for payment of Rs 40,000/- and submitted all the papers with OP but OP has repudiated the claim of the complainant informing  him that the concerned hospital being a small hospital it was not recognized by the OP. Complainant further stated that earlier OP had paid the amount of claim for the same hospital to the complainant. Complainant met with officers of the OP company and informed them that no such clause  has ever been informed to the complainant at the time of selling the insurance to him but of no avail.    Pleading deficiency in service on the part of OP complainant prayed  that OP be directed  to pay Rs 40,000/- with interest @ 18% p.a. from the date of filing the claim , Rs. 20,000/- for causing mental agony and physical torture and Rs. 10,000/- as litigation cost.
2. OP filed its written statement by taking preliminary objections inter-alia that the complaint was barred under clause 2 sub clause 2.1.1  of individual health insurance policy and hence the claim of complainant was rejected by OP that insurance company is neither a necessary party nor a proforma party in the matter and does not come  under the definition of Consumer, this forum has no jurisdiction as no cause of action arose against OP. OP, however , admitted that policy bearing no. 040401/48/09/97/00000268 was issued in favour of  complainant along with terms and conditions.
3.  The complainant filed replication whereby he denied the contents of the written statement and reaffirmed the contents of the complaint.

4. Complainant has filed his own affidavit affirming the facts alleged in the complaint. On the other hand,  Sh. Chandan Singh, Deputy Manager has filed affidavit in evidence on behalf of O.P. testifying all the facts as stated in the written statement. Parties have also filed their respective written submissions.
5. We have carefully gone through the record of the case as well as written submissions filed by both the parties and have also heard the submissions of Ld. Counsel for the parties.
6. The main controversy involved in the present case revolves around the issue as to whether the rejection of the claim of the complainant was justified or not? Needless to say that claim was repudiated by the OP by relying upon clause 2 sub clause 2.1.1 which is reproduced below:

     2.1.1 HOSPITAL / NURSING HOME  means any institution in India established for indoor care and treatment of sickness and injuries and which

Either

a) has been registered as a Hospital or Nursing Home with the local authorities and is under the

supervision of a registered and qualified Medical Practitioner.

Or

b)Should comply with minimum criteria as under:

i)It should have at least 15 inpatient beds.

ii)Fully equipped operation theatre of its own wherever surgical operations is carried out.

iii)Fully qualified Nursing Staff under its employment round the clock.

iv)Fully qualified Doctor (s) should be in-charge round the clock.

7.     It is pertinent to mention here that there is no denial on the part of the complainant about receipt of insurance policy along with terms and conditions. We have perused the policy placed on record by the OP which runs into 14 pages and has also incorporated the material terms and conditions to be followed by both the parties. Thus, it is not a case where terms and conditions are not supplied to the insured at the time of the inception of the policy but a case where the same were duly furnished to the insured. Therefore, now the insured cannot wriggle out of admission as the receipt of terms and conditions.
8. The complainant was given sufficient opportunities to show that the hospital wherein he received medical treatment was duly registered as a hospital or nursing home with the local authorities and was under the supervision of a registered and qualified medical practitioners or should comply with the criteria namely hospital should have at least 15 impatient beds , fully equipped operation theater of its own where surgical operations are carried , fully qualified nursing staff under its employment round the clock and fully certified doctors should be in-charge round the clock.  Complainant made an abortive attempt to satisfy the forum on this count by filing affidavit of the hospital having been sworn by Dr. S. Rajan of New Rohini Hospital who stated that admittedly the insured / complainant was admitted in the aforesaid hospital on 22.12.2009 and was discharged on 29.12.2010 and that during this period the aforesaid hospital was having 16 beds along with fully equipped operation theater. Unfortunately no cogent evidence such as certificate by the authority was filed in this regard ,therefore ,the question remained unanswered as to whether the concerned hospital was registered on the day of admission of insured as per the requirement of condition no. 2.1.1 of the policy.  Thereafter, the complainant sought ample time to prove the same but ultimately made a statement in the forum on 03.11.2016 by categorically admitting that Dr. S. Rajan, owner of New Rohini Hospital, was not in a position to locate the registration certificate of relevant year of the hospital.  Not only this the complainant was again granted time at the time of final disposal of this complaint to lay his hands on the requisite certificate, however, the complainant has miserably failed to place on record the required document which could satisfy the conditions of clause 2.1.1 of the insurance policy . It is well settled law that where parties have entered into a contract on the basis of terms and conditions, in such a situation it would be the terms and conditions which would prevail.  The Hon’ble Supreme Court in case titled Export Credit Guarntee Corpn. Of India Ltd.  Vs.  Garg Sons International 2013 STPL (Web) 36 SC, held as under:

“It is a settled legal proposition that while construing the terms of a contract of insurance, the words used therein must be given paramount importance and it is not open for the court to add, delete or substitute any word.  It is also well settled, that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the policy, its terms have to be strictly construed in order to determine the extent of the liability of the insurer.  Therefore, the endeavor of the court should always be to interpret the words used in the contract in the manner that will best express the intention of the parties. (Vide: M/s/ Suraj Mal Ram Niwas Oil Mills (P) Ltd. Vs. United India Insurance Co. Ltd., (2010)10 SCC 567).”

“Thus, it is not permissible for the court to substitute the terms of the contract itself, under the garb of construing terms incorporated in the agreement of insurance. No exception can be made on the ground of equity. The liberal attitude adopted by the court, by way of which it interferes in the terms of an insurance agreement, is not permitted. The same must certainly not be extended to the extent of substituting words that were never intended to form a part of the agreement.” 

9. Keeping in view of the observation of the Apex Court in the case stated above we are of the considered view that O.P cannot be held liable for any kind of deficiency in service as alleged by complainant.  Lastly counsel for complainant vehemently contended that OP has not paid cost imposed by this forum on 25.03.2015, upon which counsel for OPs stated that though the Honble State Commission has dismissed the first appeal against the order of imposition of cost, but OP has challenged the said order before Hon’ble National Commission. This forum has asked the OP to file an affidavit in this regard but OP did not bother to file the affidavit. Therefore, the Statement of counsel for OP about pendency of issue of the imposition of cost in the Hon’ble National Commission appears to be an oral claim which is not acceptable. Thus, we direct OP to pay a sum of Rs. 5,000/- towards payment of cost to the complainant.   Needless to say that the complaint stands dismissed. File be consigned to record room.

Copy of this order be sent to the parties as per rules.                       

              Announced this ___________day of __________2017.