Jammu and Kashmir

Jammu

CC/263/2017

ROMESH CHANDER - Complainant(s)

Versus

United India Insurance - Opp.Party(s)

RK TALWAR

21 Nov 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

(Constituted under J&K Consumer Protection Act,1987)

                                                          .

 Case File No.             :   245/DFJ                

 Date of  Institution   : 28-10-2014                   

 Date of Decision       :  15-11-2018

 

Romesh Chander Mansotra,

S/O Sh.M.R.Mansotra,

R/O H.No.77,Sector 5,

Trikuta Nagar,Jammu.

                                                                                                                                                                -Complainant

                     V/S

1.United India Insurance Co.

 Hall No.202-203,North Block,

Bahu Plaza,Jammu through its

Branch Manager.

2.MEDISAVE HEALTH CARE(TPA)Ltd.

  SCO-121-122-123,Second Floor,

Sector-34/A,Chandigarh.

                                                                                                                                                Opposite parties

     CORAM:-

                  Khalil Choudhary -             (Distt.& Sessions Judge) -  President

                  Ms.Vijay Angral                                                             -  Member

                  Mr.Ghulam Sarwar Chauhan                                     -   Member

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

 

Mr.R.K.Talwar,Advocate for complainant, present.

Mr. Naresh Kumar,Advocate for OP1,present.

          Nemo for OP2.

             

                                                 ORDER.

 

                Complainant approached this Forum on account of deficiency in service on the part of Ops,in not reimbursing the entire sum incurred on the treatment of  complainant. Relevant facts as are dicernible from the complaint are that; assured by the Ops of an effective Medical Insurance Cover to consumers, like the complainant,OP1 issued Family Medicare Policy bearing No. 110603/48/13/06/00000454 w.e.f.16-03-2014 to 15-03-2015 (Copy of Insurance Policy is annexed as Annexure-A) That during the currency of policy in July,2014 complainant felt restless, sleepless and as a result consulted Dr.Rahul Gupta HOD Pulmonary Medicine Govt.Chest Disease Hospital Jammu and after examination, complainant was admitted in the C.D.Hospital Jammu on,22-07-2014 for undergoing the treatment and the sleep test was also conducted. Complainant further submits that he was discharged from the hospital on,23-07-2014 with the advise to have Continuous Positive Airway Pressure(CPAP) for avoiding serious complications and saving of his life and therefore, complainant ws diagnosed as severe obstructive apnea syndrome and  the doctor has also remommended CPAP being very necessary for hislfie(Annexure-B)That complainant also consulted Dr.Rajesh Kumar HOD ENT Deptt.of Acharya Shri Chander Colege of Medical Sciences and Hospital with the C.D.Hospital repot and Dr.Rajesh Kumar also recommended CPAP for effective management(Annexure-C)and as per advice of doctors, complainant purchased CPAP on,05-08-2014 from M/S Hans Raj &Sons Agencies Shalamar Road, Jammu for Rs.54,600/(Annexure-D)Allegation of complainant is that he submitted his claim alongwith requisite documents for the reimbursement of claim put forth by him before the OPs,but till date OP1 has failed to do the needful for the reasons best known to them. Complainant further submitted that OP1 on,16-10-2014 under reference No.478/16/X has been rejected without any ground(Annexure-E)and this act of Ops constitutes deficiency in service and un fair trade practice. Hence the present complaint. In the final analysis, complainant prays for reimbursement of expenses of Rs.54,600/- and also prays for compensation of Rs.75,000/-including litigation expenses.

                On the other hand,OP1 filed written version and resisted the complaint on the ground that after receiving intimation of the claim of complainant by OP1,it forwarded the same to OP2 i.e.TPA for processing the claim which was very much within the knowledge of complainant as per the correspondence of him to the OP.It is submitted that the complaint of the complainant is not admissible under the terms and conditions of his Medi-Claim Policy No. 110603/48/13/06/00000454 w.e.f.16-03-2014 to 15-03-2015 as per its exclusion clause 4.15 and accordingly his claim has been repudiated by OP2 and the same has been intimated to complainant by answering OP as per its letter dated 16-10-2014.Rest of the contents of complaint are denied by OP1.

                                Notice alongwith copy of complaint was sent to OP2 through registered cover but despite lapse of statutory period, OP 2 has not taken any action to represent the case in this Forum, either to admit the claim of complainant or to deny the same within stipulated period, provided under the Act. Thereafter the right of OP 2 to file reply was closed vide order dated,29-04-2015 and complainant was directed to adduce evidence by way of affidavits in support of his case.

                  Complainant adduced evidence by way of duly sworn his own affidavit. Complainant has placed on record, copy of Family Medicare Policy, copy of discharge & follow-up card, copy of Sleep Report, copy of letter issued by complainant to OP1,copy of retail invoice for an amount of Rs.54,600/-copy of health card and copies of communications exchanged between the parties.

           On the other hand,OP1 filed evidence affidavit of Rachhpal Singh Branch Manager.

                                We have perused case file and heard L/C appearing for the parties at length.

                         After hearing L/Cs for parties at length and perusing the case file, in our opinion, point for consideration is, as to whether or not Ops are justified in declining benefit of reimbursement of expenses incurred on the treatment of complainant.

                       In order to prove his contention, complainant adduced evidence in the shape of his own duly sworn affidavit and the deposition of complainant is verbatim reproduction of averments of complainant,therefore,need not to be reiterated again.OP1 have also lead evidence in the shape of affidavit of Rachhpal Singh Branch Manager and the deposition of witness of OP1 is also verbatim reproduction of defence raised by the OP1 in its written version,therefore,same need no repetition.

                         According to complainant at the time of taking of Health Insurance Policy, he was made to believe that in the event of medical treatment, during currency of Insurance Policy, he would be fully reimbursed. We have no doubt in our mind that complainant has been induced to enter into a contract by the reason of suppression of material fact,otherwise,complainant might have not entered into contract if correct facts being made known to him. It is settled preposition of law that no one will be allowed to take advantage of his own wrong, especially while entering into a contract of insurance, which is of utmost good faith. Since the complainant has proved to the satisfaction of Forum that before entering into contract of insurance, he was made to believe that entire sum incurred on the treatment would be reimbursed,therefore,complainant entered into contract of insurance on the promise that entire sum shall be reimbursed, as such, at this stage insurer cannot taken refuge under the terms and conditions of policy, which were not  made known to complainant at the time of entering into the contract of insurance.

                      It is universal rule of interpretation that the contract or the statue should be read as a whole and not in isolation and every clause of the contract and every section of the statute should be provided meaning which should be in consonance with the aim and object of the contract and the statute. It should serve its purpose and promote its object. Applying this rule we do not find any escape from the conclusion that the CPAP system prescribed by the doctor was such instrument which was essential for if not curing the disease as some disease are not curable but controlling it to such an extent that without which the life of the insured is always at risk. The disease in question is such a disease, which kills a person in sleep and if CPAP system is not considered as an essential part of the treatment of the disease then we do not know what else shall be considered.

          Hon’ble State Consumer Commission, New Delhi in a case The New India Assurance Co.Ltd.Vs.Sh.Shiv Kumar Rupramka Appeal No.700/2002 decided on,22-03-2007 had an occasion to conclude whether expenses incurred upon machine known as CPAP are reimbursable or not? The Hon’ble Delhi Commission held that CPAP is a life saving machine to control the disease and cost of the same is reimbursable. Because use of such a machine was found essential in treatment of the disease.Hon’ble Commission also found that CPAP system is an equipment like pace maker or any other such equipment without which there is no cure or any relief from the disease that respondent was suffering from.

             In the instant case also use of CPAP machine for proper healthy life of the complainant was necessary, without use of such machine his condition and ailment would have worsened.Therefore,conclusion of OP  that use of the machine was for diagnosis or other test was not justified. The case of the complainant is not at all covered under condition of clause 4.10 of the policy Ex.R1.Because he is not proved to have incurred charges for treatment of machine primarily for diagnosis or examination purpose. Rather the machine was purchased to save his own life as recommended by doctor. Hence repudiation of the claim by OP is not at all justified.

            

                       Ops are undoubtly performing their statutory duty in carrying out the business of insurance,therefore,is not expected to interpret the contractual clause to the prejudice of insured with a view to get benefit from the premium received for a particular period.

                 The complainant in his affidavit has supported the averments of the complaint. There is no evidence on record produced by OP2 to rebut the case of complainant. So from perusal of complaint, documentary and other evidence produced by the complainant, it appears that the complainant has succeeded in proving his case as narrated by him in the complaint. The complaint is fully supported by the affidavit of complainant, so, in the given circumstances of the case, and in view of the evidence on record, there is no reason to disbelieve the averments contained in complaint. This is a case of deficiency in service. The OP2 despite service of notice, sent by the Forum through registered cover has not taken any action to represent the case before this Forum, either to admit the claim of complainant, or to deny it, so there is no reply filed by the OP2  in this complaint and there is also no evidence in rebuttal. The present case of the complainant is covered by Section 11 2(b) (ii) of the Consumer Protection Act, 1987, which provides that in a case, where the OP2 omits or fails to take any action to represent the case within the time given by Forum, in that situation, the Forum shall settle the consumer dispute on the basis of evidence brought to its notice by the complainant. Sub-clause (ii) of the Section 11, clearly provides that even where the OP2 omits or fails to taken any action to represent their case before the Forum, the dispute has still to be decided on the basis of evidence brought to its notice by the complainant

               After going through the whole case with the evidence on record what reveals here is the case of complainant is genuinely filed with speaking reasons and merit as being consumer as per the purport of section 2(d) of Consumer Protection Act and Ops are the service providers having failed in their statutory duty to provide adequate and effective services. The purport of legislation is well defined and statutorily takes care of consumer rights and cannot legally afford to a situation like the one confronted herewith in a manner where they are deprived of their rights as of consumer. The consumers have to come forth and seek for redressal of his grievance. The case of the complainant is also genuinely filed for seeking determination of his right by this Forum.

                   Therefore, in view of the foregoing reasons the complaint filed by the complainant for redressal of his grievance is allowed and OP2 is directed to pay to the complainant an amount of Rs.54,600/- alongwith interest @ 6% per annum w.e.f. 28-10-2014 (i.e. from the date of filing of this complaint)till its payment. The complainant is entitled to compensation of Rs.10000/-for causing mental agony and harassment. The complainant is also entitled to litigation charges of Rs.10,000/-.The OP2 shall comply the order within one month from the date of receipt of this order. Copy of this order be provided to both the parties as per requirement of the Act. On deposit of the amount in this Forum, the same shall be paid to the complainant through payees account cheque.The complaint is accordingly disposed of and file be consigned to records after its due compilation.

Order per President                                   Khalil Choudhary

                                                                (Distt.& Sessions Judge)

Announced                                                   President

15 -11-2018                                        District Consumer Forum

Agreed by                                                     Jammu.                                                                                                                                  

                                                                      

Ms.Vijay Angral          

Member                                                                                                                                 

 

Mr.Ghulam Sarwar Chauhan

Member