BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 31^st DAY OF OCTOBER 2022

ORDER

SRI.H.JANARDHAN, MEMBER

1. This complaint has been filed under section 35 of C.P.Act, 2019 seeking relief against the OP

1. To pay sum of Rs.1,22,000/- along with interest at the rate of 24% p.a. towards cost of surgery
2. To pay compensation of Rs.1,00,000/- for mental agony, suffering, trauma and stress undergone.
3. To pay compensation of Rs.1,00,000/- for deficiency of service and
4.  To pay Rs.50,000/- towards cost of litigation  and such other reliefs. 

2.  The facts of the complaint in brief are as follows:-

The complainant had purchased health insuranceby name Oriental InsuranceBank Saathi Policy-Group Policy schedule bearing no.421900/48/2022/1682 valid from 09.11.2021 upto 08.11.2022 issued by the OP-1 and sold to the complainant by OP-3. The said insurance policy had covered sum insurance upto Rs.5,00,000/-. The complainant was regularly paying premium for the said policy forthe last 20 years. The complainant in the month of November 2021 was diagnosed withAcute Calculous Chlesystitis and undergone Laparoscopic Cholecysterctomy under general Anesthesiaon 26.11.2021 at Manipal Hospital, Yeshvanthpur, Bengaluru. After the said treatment the complainant had incurred an expenses to the tune of Rs.1,52,000/- as per the bill generated by the hospital. The complainant sought for reimbursementof the bill amount towards said surgery of Rs.1,52,000/-. The said claim was processed by the 2^nd OP on behalf of the OP-1. After the said process an amount of Rs.30,000/- was disbursed to the complainant. At the time of disbursement, the complainant was informed that for the treatment of Laparoscopic Cholecysterctomywas capped with Rs.30,000/- by the OP-2 acting on behalf of the OP-1. But, according to the contentions of the complainant the said capping was never brought to the attention of the complainant at the time of purchasing of the health insurance policy. Hence, capping of the claim of OP-1 amounts to unfair trade practice. Further more the complainant also states that OP-1 who has provided policy documents indicating the capping of the claim amount was not givenin the insurance policy documents issued to the complainant. The policy documents which has been issued by the OP-1 does not have their seal and signature of the OP as well as signature of the complainant. As such the complainantis not bound by the capping schedule of the OP-1. Despite the complainant having insurance policy of Rs.5,00,000/-, the complainant was burdened by paying amount of Rs.1,22,000/- from his own pocket towards expenses incurred for the said surgery. The complainant also visited the office of the OP-2 and was not given satisfactory response and being dissatisfied about the explanation given by the OP-2, the complainant finally got issued legal notice to the OP through their counsel on 19.01.2022. The said notice was duly served to OP-3 and inturn OP-3 has given untenable response to the said notice. Other OPs have not even bothered to respond to the complainant’s legal notice. Being aggrieved by the said act of the OPs, the complainant has filed this complaint.

3. The notice was issued to  OP-1 & 2 only and  as there as there was no privity of contract between the complainant and OP-3 and hence complaint against OP-3 was not admitted. Hence, notice issued to OP-1 & 2 duly served,  OP-1 represented by their counsel and OP-2 represented by authorized person and have filed their respective version.

4.  In the version of OP-1, OP-1 has contended that complaint is not maintainable either in law or on facts and above complaint is filed with malafide intention  for causing unlawful cause to the OP-1 and making unlawful gain. Further OP-1 contended that OP-1 is a public sector undertaking wholly owned by Government of India engaged in the business of non-life insurance only. Under arrangement between the OP-1 & OP-3 to provide group policy to the account holders of OP-3 bank, the complainant obtained Oriental Insurance Bank Saathi Policy-Group policy bearing no.421900/48/2022/1682  for a period from 09.11.2021 to 08.11.2022 for a sum of Rs.5,00,000/- for 04 persons including the complainant in (plan Type-A) and the said insurance policy is subject to the terms and conditions  and applicable laws. The complainant was hospitalized at Manipal Hospital, Yeshwanthpur, Bengaluru  from 25.11.2021 to 27.11.2021 with the diagnosis of “Calculus of Gall bladder with Acute Cholecystitis” (Gall Bladder stones) and underwent “Laparoscopic Cholecystectomy” (Gallbladder Stone Removal  by minimal  invasive surgery) under general anaesthesia on 26.11.2021. On receipt of the complainant’s claim OP-2 i.e. Raksha TPA has settled the claim in accordance with terms and conditions of the insurance policy as detailed in cashless claim authorization letter dt.16.12.2021 issued to Manipal Hospital and claim settlement voucher dt.16.12.2021 both for sum of Rs.30,000/- and payment for same has been made and informed to the complainant.  As per clause-2.17 of the terms and conditions of the policy documents which  provides disease/procedure  wise capping of the amount payable under such policy, wherein under serial no.6 inter-alia, for Gall bladder stones, the amount payable has been capped at Rs.30,000/- for plan type-A applicable to the complainant. As per said specification the OP have settled the claim to the extent  permissible to the complainant.  OP-2 is TPA, who processed the claim on behalf of OP-1 have settled the claim to the complainant as per the terms and conditions of the policy and alleges that there is no deficiency of service on the part of the OP and denied all other allegations made in the complaint  and prays for dismissal of the complaint with exemplary costs.

5. In the version filed by the OP-2 have contended that OP-2 being registered under companies Act 1956, is licensed TPA under IRDA Act, 2021 to act as a facilitator for the processing of the claim. Further, OP-2 contends the insurance contract is between the insured and the insurer i.e.OP-1. As per privity of the contract, OP-2 is obliged to process the claim as per terms and conditions of the policy. By virtue of MOU signed with OP-1, OP-2 is nominated as TPA for arrangement of process of the insurance company as per the terms and conditions laid down by the OP-1. OP-2 contends that the complainant was covered under medi claim policy bearing No.421900/48/2022/1682 for a period from 09.11.2021 to 08.11.2022 issued by OP-1. The claim in respect of the complainant who was hospitalized  in Manipal Hospital, Yeshwanthpur, Bengaluru for “Calculus of Gall bladder with Acute Cholecystitis”  from 25.11.2021 to 27.11.2021 and said claim was processed and paid the said claim amount of Rs.30,000/- under clause-2.17 of the policy terms and conditions laid down by the OP-1. OP-2 also contends that complainant entered into the contract with OP-1. The insurance contract is between the insurance OP-1 and OP-2  TPA,  who act on the basis of policy entered into between the complainant and OP-1. As per the said terms and conditions of the policy the OP-1 & 2 have settled the claim of the complainant and as such there is no deficiency on the part of the OP-2 and prays for dismissal of the complaint.

6. The complainant has filed affidavit evidence and got marked Exhibits P1 to P6 and closed his side. OP-1 has filed affidavit evidence of Deputy Manager, who was examined as RW1. Representative of OP-2, Dr.Ashwini filed  affidavit evidence  and  examined as RW2 and have got marked exhibits R1 to R5 respectively.

7.  Both the complainant and OPs have filed written arguments and heard  arguments. Perused the records.

8.  The points that would arise for our consideration are as under:-

1. Whether there is deficiency in service on the part of the OPs?
2. Whether the complainant is entitled for the reliefs as sought for?
3. What order?

9. Our answer to the above points are as under:

       Point No.1:- Negative.

      Point No.2:- Negative.

      Point No.3:-As per the final order.

REASONS

10.  Point No.1 & 2:. On perusal of the pleading of the complainant and version of OP-1 & 2, it is admitted that the complainant was holding the health insurance by name Oriental Insurance Bank Saathi Policy-Group policy bearing no.421900/48/2022/1682  from 2007 and which was issued by OP-1 and was sold by OP-3. The sum insured in the said policy was Rs.5,00,000/-. The complainant was frequently renewing the health insurance policy which is marked as Ex.P1 till 08.11.2022 under policy no. 421900/48/2022/1682 and OP-2 TPA who processed the claim on behalf of OP-1. Further during the course of admission, complaint against OP-3 was not admitted on the ground that there is no privity of contract between the complainant and the OP-3 as per order dt.19.04.2022 of this commission and the complaint against OP-1 & 2 was admitted. The complainant after obtaining the policy was diagnosed with  Acute  Cholecystitis” (Gall Bladder stones) and underwent “Laparoscopic Cholecystectomy” (Gallbladder Stone Removal  by minimal  invasive surgery) under general anaesthesia on 26.11.2021 at Manipal Hospital, Yeshwanthpur, Bengaluru, complainant underwent surgery on 27.11.2022 and was discharged along with  summary  medical bills which is marked as Ex.P2 and the complainant submitted the  Claim of Rs.1,52,000/- and the said claim was processed by OP-2 on behalf of OP-1 and after processing the said claim to the OP-1, OP-1 has processed it to the OP-2 and after following the terms and conditions of the policy. OP-2 have disbursed the amount of Rs.30,000/- by cashless authorization letter Ex.P3. As there was a capping to the said insurance policy and diseased procedure wise cap Ex.P4 disclosing that the complainant who underwent Acute  Cholecystitis” (Gall Bladder stones) and underwent “Laparoscopic Cholecystectomy”  and which was disclosed that there was a capping to the Acute  Cholecystitis  Gall Bladder stones limited to Rs.30,000/-. As such OP-2 have processed the claim of the complainant and informed the complainant about reimbursement towards Gall bladder stones Laparoscopic Cholecystectomy which was capped at Rs.30,000/- has been processed to the complainant. Further, the complainant  has alleged that the complainant was not aware of the said capping schedule in the complainant’s policy at any point of time.  However, the complainant himself has stated that the complainant was holding the said policy from 2007 and from 2007 till today have renewed the said policy and now  the complainant has taken the said contention that he was not aware of the said capping schedule and same has not been intimated by the OP-1 &2 holds no water. Further more both the complainant and OPs have produced citations. The complainant has produced judgments rendered in Anju Kalsi V/s HDFC ERGO General Insurance co. Ltd. & another, which has produced by the complainant  and the said judgment  is not binding to the facts and circumstances of the case in hand and OP-1 has produced the judgments of 2013 SCC online NCDRC 289:(2013)NCDRC 291: (2013) 2 CPR192(NC) The decision of NCDRC in which it has been held that the terms of the contract have to be construed strictly  without altering the nature of the contract as it may affect the interest of parties adversely.  Also in the case of Suraj Mal Ram Niwas Oil Mills Pvt. Ltd. V/s United India Insurance Co. Ltd. (2010) 10 SCC 567, in the Apex court has held that before embarking on an examination of the correctness of the grounds of repudiation of the policy, it would be apposite to examine the nature of a contract of insurance.  It is trite that in a contract of insurance, the rights and obligations are governed by the terms of the said  contract of insurance  have to be strictly construed and no exception can be made on the ground of equity.

11. In the General Assurance Society Ltd., a constitutional bench of the court had observed that  in (AIR P.1649, PARA-11) which reiterates  that in interpreting documents relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for  the court to make a new contract, however, reasonable, if the parties  have not been made it themselves. In Harichand Raj Chandan Lal  case, (SCC P647, Para-6) reiterates terms of the policy have to be  construed as it is and we cannot add or subtract something. However, liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended. 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, in terms have to be strictly construed to determine the extent of liability of the insurer.  Therefore, the endeavour of the court should always be to interpret the words in which the contract is expressed by the parties.

12. As per the above decisions it can be construed that the terms of the contract have to be strictly  construed without altering the nature of the contract as it may effect the interest of the parties adversely. When there is a capping in the insurance policy, the parties to the contract have strictly adhere to the terms and parties to the contract cannot alter or add something to the contract.  As such the OP-2 has rightly settled the claim of the complainant to the tune of Rs.30,000/-. The complainant after making benefit out the policy cannot revert back stating that he was not having the knowledge of the capping when the parties to the contract are bound by the contract as per the terms and conditions of the said contract. As such there is no deficiency of service on the part of OP-1 & 2. As OP-1 has processed the claim of the OP-2 and OP-2 without any delay have processed the said claim and as there was a capping claim have been restricted  to Rs.30,000/- and said claim has been disbursed to the complainant  without any delay. As such the complainant cannot  attribute deficiency of service on the part OP-1 & 2. Hence, we answer point No.1 & 2 in the negative.

13.  Point no.3:- For the fore going reasons,  Accordingly, we proceed to pass the following 

O R D E R

1. The complaint is dismissed without cost.
2.  Furnish the copy of this order to both the parties, and return the spare pleadings and documents to the parties. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 31^st  day of October, 2022)

Documents produced by the Complainant-PW.1 are as follows:

Documents produced by the representative of opposite party – RW-1  & RW-2: