DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.207/02.12.2008 Decided on : 28.05.2009 1.Sh. Sarad Kumar Singla S/o Sh.Roshan Lal, resident of Vaid Kapur Chand Street, Mansa. 2.Smt.Neena Singla W/o Sh.Sarad Kumar Singla S/o Sh.Roshan Lal, resident of Vaid Kapur Chand Street, Mansa. ..... Complainants. VERSUS 1.United India Insurance Company Limited, Branch office Gaushala Road, Mansa through its Branch Manager. 2.United India Insurance Company Limited, Regional office SCO No.177-178, Sector 8-C, Chandigarh through its Regional Manager. 3.Syndicate Bank, Near Old Bus Stand, Branch Bathinda through its Branch Manager 4.Med Save Health care Limited, SCO No.121-122-123, 2nd Floor, Sector 34-A, Chandigarh through its Regional Manager. ..... Opposite Parties. Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh.S.K.Mehta, Advocate counsel for the complainant. Sh.Naval Goyal,Advocate counsel for Opposite Party No.1&2. Opposite Party No. 3 & 4 exparte. Before: Sh.P.S. Dhanoa, President. Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER:- Sh.P.S.Dhanoa, President. Sh. Sarad Kumar Singla son of Sh.Roshan Lal and his wife : 2 : Smt.Neena Singla, residents of Mansa, have jointly filed the instant complaint against the opposite parties, under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act'), for giving them direction to pay the amount of claim in the sum of Rs.15,820/- and compensation in the sum of Rs.10,000/- and costs of filing of complaint and damages in the sum of Rs.35,000/- with interest at the rate of 18 percent per annum from the date of hospitalization of complainant Neena Singla till date of actual payment, on the averments, which may, briefly be described as under: 2. That Complainant No.1 secured mediclaim insurance policy known as Hospitalization and Domiciliary Hospitalization Benefit Policy with effect from 28.8.2004 to 27.8.2005 from New India Assurance Company Limited for himself and his wife. He renewed the said policy from 28.8.2005 to 27.8.2006, 28.8.2006 to 27.8.2007 and 28.8.2007 to 27.8.2008. On being prevailed upon by Ops No.1,2 and 3, the complainant surrendered the policy already in his possession issued by the New India Assurance Company Limited on the assurance that he will be given benefit of previous policies secured by him from other Insurance Companies. They also claimed that rate of last premium received by the OP Nos. 1 and 2, is less than the amount claimed by New India Assurance Company. The policy issued by OP No.1 & 2 was valid from 3.10.2007 to 2.10.2008 and they cancelled the policy secured from New India Assurance Company Limited on 27.9.2008. The complainants relying upon the said assurance, paid the requisite premium to OP No.1 & 2 through OP No.3, where he opened account at Bathinda as per conditions laid by the opposite parties, because no branch of said bank is in operation at Mansa. As such, policy issued by OP No.1&2 is continuous and complainants are consumers under the opposite parties. The Complainant No.2 was issued Card No.52011107191671C and was operated upon in Raj Nursing Home at Mansa for hysterectomy where she remained admitted for the Contd........3 : 3 : period 23.6.2008 to 30.6.2008. After her discharge from the said hospital, Complainant No.1 lodged claim and submitted bills for the reimbursement of Rs.15,820/- spent by them for treatment of Complainant No.2. They also sent requisite documents required by the OP No.1 & 2 to process their claim as per their demand, but they have repudiated the claim on flimsy ground on lame excuses, as such, there is deficiency in rendering service on the part of the opposite parties towards the complainant. Hence this complaint. 3. On being put to notice, the OP No.1 & 2 have filed written version, resisting the complaint, by taking preliminary objections; that complaint has been filed by the complainants to injure the reputation and goodwill of the answering opposite parties; that intricate questions of law and facts are involved which requires parties to lead voluminous evidence for determination of the controversy; as such it cannot be adjudicated in summary manner by this Forum, and proper remedy for the complainant is to file suit before the civil court; that complainant has concealed the material facts from the knowledge of this Forum, as such, they are rendered themselves disentitled from claiming any reliefs; that complaint is not maintainable because policy secured by them is not continuous one as it has been issued on 3.10.2007 by the answering opposite parties, whereas the complainant have cancelled other previous policies secured from New India Assurance Company on 27.9.2008; that claim has been correctly repudiated by the answering opposite parties as per exclusion clause No.4.1 and 4.3, as it did not cover the operation of hysterectomy for the purpose of reimbursement and complainant No.2 remained hospitalized in M/s Raj Nursing Home, Mansa from 23.6.2008 to 30.6.2008, before the date of issuance of the insurance policy, for treating of bulky uterus with fibroids, as such, inference is that she has been suffering from pre-existing disease at the time of taking policy from the answering opposite parties; that complainants have violated the terms and conditions of the policy, Contd........4 : 4 : because they failed to submit the claim within 30 days of the completion of the treatment, but they have submitted the claim on 12.8.2008; that complaint is not maintainable because Complainant No.2 has alone taken the treatment and complainants are not sole consumers of the answering opposite parties; that complainants have no locus standi and cause of action to file the complaint; that the complaint is bad for mis joinder and non joinder of necessary parties; that there is no deficiency in service on the part of the answering opposite parties and complaint being false and vexatious is liable to be dismissed, with compensatory costs in terms of provisions of Section 26 of the Act. On merits, it is denied for want of knowledge that complainants had secured insurance policies from the New India Assurance Company continuously from 28.8.2004 to 27.9.2008. It is also denied that any assurance was given by the answering opposite parties or that complainant has secured a policy from them on being prevailed upon by them to avail their services and cancelled the previous policy at their instance. It is asserted that complainants have secured the policy from the answering opposite parties with effect from 3.10.2008, whereas he cancelled his policy secured from New India Assurance Company as per his own version on 27.9.2008, as such, there seems gap between the two policies because of which the present policy cannot be called as a continuous one. It is reiterated that the averments made in the preliminary objections regarding repudiation of the claim on the ground stated therein have also been reasserted. It is denied that there is any deficiency in service or complainants are entitled to claim compensation and costs. Rest of the averments made in complaint have been denied and a prayer has been made for dismissal of the same with costs. 4. Notice of complaint was given to the Opposite Parties No. 3 & 4, but they were proceeded against exparte vide order dated 12.01.2009, 5. On being called upon by this Forum, to do so, the counsel for the complainant tendered in evidence affidavit of Complainant No.1, Ext. Contd........5 : 5 : C-1 and copy of documents Exhibit C-2 to C-14 and closed the evidence. On the other hand the learned counsel for the contesting opposite parties tendered in evidence affidavit of Sh.Balwinder Singh and photocopy of documents Ext.OP-1 to OP-3 and closed evidence. In additional evidence, copy of circular dated 31.1.2006 was tendered by the counsel for the opposite parties, but in rebuttal, no evidence has been led by the complainants. 6. We have heard the learned counsel for the parties and gone through the oral and documentary evidence, adduced on record, by them, carefully, with their kind assistance. 7. At the out set, Sh.S.K.Mehta, Advocate, learned counsel for the complainant, has submitted that insurance policy secured by the complainants from OPs No.1 & 2 was continuous policy to the earlier policies secured by them from New India Assurance Company and the same has been secured on being prevailed upon by them and OP No.3, with whom they opened the account, as such, repudiation of the claim by OP No.1 on the ground that Complainant No.2 was operated upon within a period of one year, is illegal. Learned counsel further submitted that circular tendered in evidence by the opposite parties containing exclusive clause cannot be read in evidence, because the same is not the part of insurance policy, in question and has tendered beyond the permission granted to them to lead additional evidence. Learned counsel further argued that the evidence, has been led by OP No.1 that, complainants were conversant with the terms and conditions of the insurance policy, but they have intentionally suppressed the factum of pre existing disease and admission of Complainant No.2 in hospital for operation. Learned counsel argued that even otherwise clause 4.3 of the circular tendered in evidence by the opposite parties is applicable to the insurance policy issued by all Public Sector Insurance Companies. Learned counsel further argued that in view of the continuity of the previous policies, OP No.1&2 were not Contd........6 : 6 : justified to repudiate the claim of the complainants on the ground that complainant No.2 had spent the amount for her operation of hysterectomy within first year of issuance of the policy or that complainants have failed to lodge the claim within the stipulated period or due to concealment of factum of pre-existing disease. Learned counsel urged that due to above said facts, the repudiation of the claim by the opposite parties in arbitrary manner is proved and they are liable to make payment of the amount spent by the complainants and for mental and physical harassment and costs of filing of the instant complaint and damages. 8. On the other hand, Sh.Naval Goel, Advocate, learned counsel for OPs No.1 & 2, has submitted that there is time gap between the surrender of the last policy secured by the complainants from the New India Assurance Company Limited and issuance of policy under reference issued by the OPs No.1 & 2, as such, the same cannot be said to be even continuous one, as projected by the complainants and their counsel. Learned counsel has further submitted that as per exclusion clause 4.1 of the circular dated 31.01.2006, OP No.1 & 2 are not liable to make payment of claim lodged under the insurance policy secured by the complainants in respect of expenses incurred by the insured in connection with or in respect of all diseases/injuries which are pre-existing in nature. Learned counsel has argued that when the insurance cover incepts for the first time and for the purpose of the said clause, date of inception of initial policy taken from any of the Insurance Companies, has to be taken, provided renewal, has been continuous and without any break. Learned counsel further argued, that as per Clause 4.3 of the said circular, if the insured, has spent expenses for his/her treatment of diseases mentioned therein including Hysterectomy during first year of the operation of the policy with any of the Public Sector Insurance Companies, then his claim is not payable, especially if, these are pre-existing at the time of proposal, Contd........7 : 7 : including subsequent period of renewal. Learned counsel further argued, that as per Clause 5.3, it is also incumbent upon the insured or the beneficiary of the policy, to send full particulars to the TPA/Company immediately and in case of emergency within 24 hours of hospitalization and as per Clause 5.4, he/she is required to submit the supporting documents to TPA/Company within a period of 7 days from the date of discharge from the hospital, but the complainants have failed to explain the delay in submission of their claim, as such, they are not entitled to payment of any amount on account of costs and for compensation or damages, as demanded in the complaint. 9. The complainants have tendered in evidence cover notes Ext.C-2 to C-5 issued by the New India Assurance Company Limited for different periods mentioned in the complaint. He has also tendered in evidence cover note Ext.C-6 issued by OP No.2 covering the risk for the period 3.10.2007 to 2.10.2008. As submitted in the complaint, previous policy secured by the complainants were surrendered on 27.9.2008 to the company concerned. As such, there is considerable time gap in surrender of previous policy and issuance of the present policy valid with effect from midnight of 3.10.2007 to 2.10.2008. The complainants have not produced any evidence except the affidavit of Complainant No.1 to establish that the policy in question was secured from OP No.1 on being prevailed upon by Ops No.1 to 3. In the absence of any corroborating evidence, much reliance cannot be placed on the affidavit of complainant no.1 alone, which is self serving document. The complainants have also not disclosed the name of the official, who prevailed upon them to surrender the previous policy and to secure another policy from them by paying low rate of premium. Therefore, we are of the considered opinion that policy issued by OP No.1 and 2 is not continuous one to earlier policies issued by the New India Assurance Company Limited in the name of the complainants. Contd........8 : 8 : 10. However, perusal of insurance policy Ext.OP-2 and circular Ext.OP-3 reveals that circular containing various instructions for payment of claims is not part thereof. The opposite parties have not led any evidence that complainants, at the time of issuance of the policy, were conversant with the terms and conditions thereof or that clauses were read over and explained to them, but they have intentionally and deliberately suppressed them before issuance of the policy. It may not be out of place to mention here that OP No.1 & 2 filed an application seeking permission to tender copy of agreement dated 31.01.2006, which was executed between the opposite parties, but they instead tendered the circular of even date. At that time of tendering of said document specific objection was taken by the complainant on the ground that tender of the document, is being made by the counsel for the Ops No. 1 & 2 beyond the scope of permission granted by the Forum to lead additional evidence. The said objection was kept open for decision at the time of disposal of the complaint. The circular Ext.OP-3 dated 31.1.2006 tendered in evidence by Ops No.1 & 2 by way of additional evidence, cannot be termed as 'agreement' between the opposite parties, from any stretch of imagination, because Ops No.2 and 4 are not party to that agreement. Therefore, exclusion clause containing therein and clauses providing time bound submission of the claim by the insured, do not advance their case to the disadvantage of the insured. Moreover, policy has been secured for a period of one year and if no claim is payable for one year then the purpose of securing insurance cover, is frustrated and was of no use for the beneficiary. However, reliance can be placed by the complainants on the said document, because it has come on record from the custody of the opposite parties. As per exclusion clause No.5.3 and 5.4, claim has to be preferred by the insured or beneficiary before the TPA or insurance company concerned., As such, relief to the complainants cannot be denied, even if, they have not submitted the claim regarding the amount spent by Contd........9 : 9 : them on operation of Complainant No.2 through the TPA. As per the affidavit of the Complainant No.1, the bills and requisite documents have already been attached with the claim and this fact has not been specifically denied by the opposite parties in the written version. As such the same is deemed to have been admitted by them. The Complainant No.2, has been treated upon during the pendency of the insurance policy secured by the complainants from OP No.1. This fact is also not disputed by the contesting opposite parties, but the remaining opposite parties have no concern with the complaint lodged by the complainant. Therefore, complaint is bound to fail against OPs No.3 & 4 and succeed against OPs No.1 & 2. Due to deficiency in service on the pat of Ops No.1& 2, the complainants have suffered mental and physical harassment, therefore, they deserve to be compensated in terms of costs. However, they have neither produced on record any remote damages suffered by them, nor this Forum can award the same. Since we are inclined to award interest to the complainants, from the date of repudiation of the claim by the Ops No.1 & 2, therefore, they cannot be awarded compensation simultaneously. 11. For the aforesaid reasons, we dismiss the complaint against Opposite Parties No.3 & 4 and accept against Opposite Parties No.1 & 2 with a direction to make payment of mediclaim in the sum of 15,820/- to Complainant No.2 with interest at the rate of 9 percent per annum from the date of repudiation of the claim i.e. 22.08.2008 till date of actual payment. In the peculiar facts and circumstances of the case, parties shall bear their own costs. The above amount be paid to the complainants within the period of two months from the date of receipt of the copy of this order. 12. The copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. File be indexed and consigned to record. Pronounced: 28.05.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
