Punjab

StateCommission

A/630/2015

Gurvinder Singh - Complainant(s)

Versus

Oriental Insurance Co. Ltd. - Opp.Party(s)

B.S.Tanque

09 Mar 2017

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.630 of 2015

 

                                                          Date of Institution: 22.06.2015

                                                          Order Reserved on : 08.03.2017

                                                          Date of Decision: 09.03.2017  

 

1.      The Oriental Insurance Co. Limited, Regd. & Head Office A-   25/27, Asaf Ali Road, New Delhi 110002, through its Deputy          Manager (Legal), Regional Office SCO No. 109-111, Sector    17-D, Chandigarh.

 

2.      The Oriental Insurance Co. Limited, Branch Office at Miller      Ganj, Ludhiana through its Branch Manager.

 

 

                                                                  Appellants/Opposite parties 

Versus

 

Gurvinder Singh, aged 62 years s/o Sh. Partap Singh, resident of House No. 1071, SCO 32-A, Tajpur Road, Sanjay Gandhi Colony, Ludhiana.

 

                                                                      Respondent/Complainant

 

First Appeal against order dated 16.04.2015 passed by the District Consumer Disputes Redressal Forum,  Ludhiana.

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

            Smt. Surinder Pal Kaur, Member

         

Present:-

          For appellants              : Sh. B.S Taunque, Advocate

          For respondent            : Sh.Ashish Gupta, Advocate

         

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

 J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellants have directed this appeal against order dated 16.04.2015 of District Forum Ludhiana, directing the appellants to settle and pay the claim of the respondent of this appeal, as per the terms and conditions of the policy, besides payment of Rs.5,000/- as compensation and costs of litigation payable to respondent of this appeal. The appellants of this appeal are opposite parties in the complaint before District Forum and respondent of this appeal is complainant therein and they be referred as such hereinafter for the sake of convenience.

2.      The complainant has filed the complaint U/s 12 of The Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that OP no.2 insured the complainant for his medi-claim risk at Ludhiana i.e. medi-claim policy namely PNB-ORIENTAL ROYAL MEDICLAIM POLICY SCHEDULE. The complainant took medi-claim policy for himself and for his wife Parminder Kaur from OPs, vide policy bearing no. 233902/48/2014/3287 valid from 16.12.2013 to 15.12.2014. The complainant paid gross premium of Rs.6830/-, vide cheque dated 16.12.2013. OP no.2 issued policy and identity cards and except these documents, no other document was supplied by insured. The wife of the complainant developed sudden pain at midnight on 24.05.2014 and was taken for treatment to Fortis Hospital road Ludhiana. She was admitted and treated thereat and due intimation was given to OPs about admission and treatment of Parminder Kaur, wife of the complainant. The OPs noted the report/intimation of the complainant, vide reference no. 10185844 dated 24.05.2014 regarding confirming the intimation of her hospitalization and she was discharged from the hospital on 29.05.2014. All relevant documents together with medi claim policy duly signed by the complainant and attested by the Fortis Hospital were sent to OPs on 10.06.2014. The complainant requested the OPs to release the amount of Rs.1,25,308/-, but to no effect. The insurance claim of the complainant was repudiated by the OPs, vide letter dated 04.07.2014 on the ground that expenses on treatment of ailment/disease/surgeries for HERNIA for specified periods of 2 years from commencement of policy are not payable, if contracted and/or manifested during the currency of the policy. Parminder Kaur also suffered from Hypertension & Diabetes for the past two years prior to inception of the policy and hence in view of Exclusion Clauses 4.1 and 4.2 of the policy, the OPs repudiated the contract of insurance wrongfully. The terms and conditions of the insurance policy were not supplied to the complainant by OPs, as insurer. The complainant has, thus, filed complaint against OPs praying that OPs be directed to pay medical treatment expenses incurred by him on the treatment of his wife to the extent of Rs.1,25,308/- with interest, besides  Rs.50,000/- as compensation for mental harassment and Rs.11,000/- as costs of litigation.

3.      Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant vehemently. It was averred in preliminary objections that complaint is barred under Section 26 of the CP Act and is not maintainable at all. PNB National Bank had obtained the medicalim policy for their account holders/employees of PNB and his/her spouse and two dependent children and policy called PNB Oriental Royal Mediclaim Policy was valid from 16.12.2013 to 15.12.2014. The case of the complainant falls under the Exclusion Clauses 4.1 and 4.2 of the terms and conditions of the policy, which is not admissible. The insured has not disclosed about above pre-existing ailments, when proposal form was filled and declaration was also signed by the insured in that regard. As per discharge summary issued by the hospital, Parminder Kaur was known k/c/o of diabetic mellitus and hypertension on regular treatment since two years, known case of erosive escophagitis, GERD on regular treatment and also had cholecystecomy in 1993 and hysterectomy in 2011 and was diagnosed with recurrent ventral hernia with intestinal obstruction, diabetic mellitus and hypertension. The TPA informed the OPs, after making an investigation to the matter, that claim was not admissible, as per terms and conditions of the policy. Parminder Kaur was treated for recurrent ventral hernia with intestinal obstruction, diabetics and hypertension and claim was, thus, not admissible for specified period of two years from inception of the policy. On receipt of letter dated 04.07.2014 from Medi Assist India TPA Pvt. Ltd, the OPs repudiated the contract of insurance and duly conveyed it to the complainant, vide letter dated 04.07.2014. The wife of the complainant Parminder Kaur was suffering from hypertension and diabetes for the past two years and claim was rightly inadmissible under Exclusion Clauses 4.1 and 4.2 of the insurance policy. The OPs admitted this fact on merits that policy was issued to insured on receipt of premium. This fact was denied by OPs that policy terms and conditions were not issued. The complainant and his wife are beneficiaries under medi claim insurance for their being account holder/ employees with their spouse and two children. The complainant intentionally withheld the production of the complete policy along with terms and conditions thereof, which were duly supplied to the complainant along with Annexure C-1. Parties are bound by the terms and conditions of the policy strictly. This fact was denied that complainant took his wife for treatment to Fortis Hospital Chandigarh Road Ludhiana. This fact was denied by OPs that on 27.05.2014, she was operated upon by the doctors of the above hospital. This fact was also denied that wife of the complainant was discharged from the hospital and thereby complainant incurred the expenses of Rs.1,25,308/- on her treatment. Parminder Kaur was admitted with the history of diabetes mellitus and hypertension on regular treatment since two years, being known case of erosive escophagitis, GERD on regular treatment and also had cholecystecomy in 1993 and hysterectomy in 2011 and was diagnosed with recurrent ventral hernia with intestinal obstruction, diabetes mellitus and hypertension. The claim of the complainant was rightly repudiated by OPs on account of violation of condition no.4.1 and 4.2 of the terms and conditions of the policy. Any deficiency in service was vehemently denied by OPs on their part and they prayed for dismissal of the complaint.

4.      The complainant tendered in evidence his affidavit Ex.CW-A  along with copies of documents Ex.C-1 to Ex.C-9.  As against it; OPs tendered in evidence affidavit of Naresh Singla Senior Branch Manager Oriental Insurance Company Ex.R-A along with copies of documents Ex.R-1 to Ex.R-14. On conclusion of evidence and arguments, the District Forum Ludhiana accepted the complaint of the complainant by virtue of order dated 16.04.2015. Dissatisfied with the order of the District Forum Ludhiana dated 16.04.2015, the OPs now appellants, carried this appeal against the same.

5.      We have heard learned counsel for parties at considerable length and have also examined the record of the case.

6.      The counsel for the appellants argued that clause 4.1 of the terms and conditions of the policy does not indemnity for any         pre-existing disease, if same is not disclosed in the proposal form by the insured. It was canvassed by the counsel that complainant has not disclosed that his wife Parminder Kaur was already suffering from hypertension or diabetes for the past two years prior to taking the policy. It was submitted by the counsel for OPs now appellants that the discharge summary prepared by the hospital has not been rebutted by the complainant, which clearly proved this fact that she was suffering from diabetes mellitus and hypertension for past two years before inception of policy. The complainant was duty bound to disclose pre-existing ailment of diabetes and hypertension in the proposal form of Parminder Kaur insured. The complainant withheld the material information from the insurer invalidating the contract of insurance. The contract of insurance is, thus, liable to be treated as null and void under Section 45 of the Insurance Act, 1938 for suppression of material facts.

7.      It was further submitted that there is also violation of clause 4.2 of the terms and conditions of the policy for treatment of Hernia does not cover for first two years from the date of commencement of the policy. The complainant purchased medi claim policy for himself and his wife for the first time for the period 16.12.2013 to 15.12.2014. Parminder Kaur, wife of the complainant took treatment from Fortis Hospital Chandigarh Road, Ludhiana and was discharged on 29.05.2014 during first year of inception of the policy. It was further maintained by counsel for the appellant that parties are strictly bound by the terms and conditions of the contract of insurance and they cannot get out of the same.

8.      On the other hand, counsel for complainant now respondent in this appeal submitted that the appellants tried to misinterpret the provisions of clauses 4.1 and 4.2 of the terms and conditions of the policy in this case. It was further contended that any pre-existing disease and deliberate withholding of material information on the part of the complainant remained totally unproved on the record in this case. The vehement submission of counsel for the complainant is that there is no violation of clauses 4.1 and 4.2 of the terms and conditions of the policy and hence the District Forum has rightly passed the order under challenge in this case. It was further submitted that once complainant paid the premium, hence, the complainant and his wife are beneficiaries under the policy and OPs cannot back out of the same on the frivolous grounds.

9.      The evidence on the record is required to be examined by us. The policy document is Ex.C-1 on the record in this case. Ex.C-2 is card of insurance issued by OPs to complainant and his wife Parminder Kaur, showing that it was valid till 16.12.2013. Ex.C-3 is discharge summary prepared by the Fortis Hospital Ludhiana. Parminder Kaur was admitted in the hospital on 24.05.2014 and discharged on 29.05.2014, as proved on record. She complained of pain in abdomen and also complained of vomiting 2-3 episodes, greenish in colour. She was diagnosed for recurrent ventral hernia with intestinal obstruction, diabetes mellitus and hypertension. Past history has been recorded as diabetes mellitus and hypertension on regular treatment since two years, as per the discharge summary. Patient had cholecystecomy in 1993 and patient had hysterectomy in 2011. Present illness was recorded as patient is erosive esophagitis, GERD on regular treatment. Now presented with c/o pain abdomen in paraumbilical region, moderate to severe in intensity, colicky, radiating to back. The patient also complained of vomiting 2-3 episodes, greenish in colour. No H/o blood in vomitus or black stools. Her condition at the time of discharge from the hospital was satisfactory and procedure was carried out by Dr. Pankaj Sihag. Ex.C-4 is medi claim policy - claim form submitted by the complainant for indemnification of the amount spent on treatment of Parminder Kaur as recorded in it.  Similarly, we have also examined other documents Ex.C-5 to Ex.C-7 on the record.

10.    To refute this evidence, affidavit of Naresh Gupta Senior Branch Manager OIC is Ex.R-A to the effect that due to pre-existing disease of hypertension and diabetic mellitus of Parminder Kaur, the insurance claim is not admissible. Affidavit of Abha Mathur Branch Manager of Medi Assist India TPA Pvt. Ltd Ex.R-B is on the record. Ex.R-1 is proposal form. Ex.R-2 is postal receipt. Ex.R-3 is repudiation letter sent to Parminder Kaur by OPs. Ex.R-4 is letter dated 08.08.2014 sent to OPs by the complainant. Ex.R-5 is certificate issued by Fortis Hospital Ludhiana. Ex.R-6 is repudiation letter dated 04.07.2014 sent by OPs to Parminder Kaur, wife of the complainant. Ex.R-8 is mediclaim policy form. Ex.R-9 is discharge summary by the Department of GI Surgery by the above hospital. The terms and conditions and other documents on the record have also been examined by us.

11.    The precise point for consideration before us in this appeal is, whether there is violation of Clauses 4.1 of the terms and conditions of the policy, which is reproduced as under :-

          4.1 Pre-existing health condition or disease or ailment       /injuries:- Any ailment/disease/injuries /health condition which      are pre existing (treated /untreated, declared/ not declared in      the proposal form), in case of any of the insured person of the    family, when the cover incepts for the first time, are excluded for such insured person up to three years of this policy being in       force continuously.

          For the purpose of applying this condition, the date of inception       of the first indemnity based health policy taken shall be           considered, provided the renewals have been continuous and without any break in period, subject to portability condition.

          This exclusion will also apply to any complications arising from        pre-existing ailments /diseases/injuries. Such complications      shall be considered as a part of the pre-existing health       condition or disease.

It lays down that the disease, which is pre-existing disease and not disclosed in the proposal form, in case of any insured person of the family, when the cover incepts for the first time, are excluded for such insured person up to 3 years of this policy being in force continuously. The date of inception of the first indemnity based health policy taken shall be considered, provided the renewals have been continuous and without any break in period, subject to portability condition.

Clause 4.2 of the terms and conditions of the policy is reproduced as under:-

4.2 The expenses on treatment of following       ailment/diseases/surgeries for the specified periods are         not    payable if contracted and /or manifested during the    currency of the policy. If these diseases are pre-existing at         the time of proposal the exclusion no. 4.1 for pre-existing condition SHALL be applicable in such cases.

i	Benign ENT disorders and surgeries i.e. Tonsillectomy, Adenoidactomy, Mastoidectomy, Tympanoplasty etc.	1 year
ii	Polycystic ovarian diseases	1 year
iii	Surgery of hernia	2 years
iv	Surgery of hydrocele	2 years
v	Non infective Arthritis	2 years
vi	Undescendent Testes	2 years
vii	Cataract	2 years
viii	Surgery of benign prostatic hypertrophy	2 years
ix	Hysterectomy for menorrhagia or fibromyoma or myomectomy or prolapsed of uterus.	2 years
x	Fissure/Fistula in anus	2 years
xi	Piles	2 years
xii	Sinusitis and related disorders	2 years
xiii	Surgery of gallabladder and bile duct excluding malignancy	2 years
xiv	Surgery of genito-urinary system excluding malignancy	2 years
xv	Pilonidal Sinus	2 years
xvi	Gout and Rheumatism	2 years
xvii	Hypertension	2 years
xviii	Diabetes	2 years
xix	Calculus diseases	2 years
xx	Surgery for prolapsed inter vertebral disk unless arising from accident.	2 years
xxi	Surgery of varicose veins and varicose ulcers.	2 years
xxii	Joint Replacement due to Degenerative condition	3 years
xxiii	Age related osteoarthritis and Osteoporosis	3 years

 

 If the continuity of the renewal is not maintained with the Company then subsequent cover SHALL be treated a fresh policy, clauses 4.1, 4.2, SHALL apply unless agreed by the Company and suitable endorsement passed of the policy. Similarly, if the sum insured is enhanced subsequent to the inception of the policy, the exclusions  4.1 and 4.2 will apply afresh for the enhanced portion of the sum insured for the purpose of this section.

It is, thus, evident from perusal of above clauses, that the expenses on treatment of above noted diseases ailment /diseases,/surgeries for the specified periods are not payable, if contracted and /or manifested during the currency of the policy. Surgery of Hernia has been excluded for a period of two years as per serial no.(iii) in the table. Hypertension has been excluded for a period of two years, as per serial no. (xvii) of the table and it has been excluded for a period of two years  being part of the clauses 4.1 and 4.2 of the policy. It lays down that if continuity of renewal is not maintained with the company, then subsequent cover shall be treated as fresh policy. Clauses 4.1 and 4.2 shall apply unless agreed to the contrary by the Company and suitable endorsement is passed of the policy. Similarly, if the sum insured is enhanced subsequent to the inception of the policy, the exclusions clauses 4.1 and 4.2 will apply afresh for the enhanced portion of the sum insured as well for the purpose of this section. The above clauses 4.1 and 4.2 of the policy lays down in clear terms that any disease, which was pre-existing disease in nature, is excluded for two years from the date of inception of the policy. The gist of clause 4.2 of the policy is that expenses incurred on the treatment of surgery for the specified period are not payable, if contracted and/or manifested during the currency of the policy. Surgery of Hernia is not admissible for two years from the date of inception of the policy. Similarly, diseases of hypertension and diabetes expenses are not admissible for a period of two years from the date of inception of the policy. The discharge summary on the record issued by Fortis Hospital Ludhiana has proved that Parminder Kaur was patient of diabetes mellitus and hypertension on regular treatment since two years prior to the date of her admission in the hospital. The Discharge Summary has, thus, proved it on the record that Parminder Kaur was a patient of Diabetes Mellitus and Hypertension on regular treatment since two years prior to her date of admission i.e. 24.05.2014.The symptom of surgery of Hernia also manifested within two years from the date of commencement of the policy in her. The Apex Court has held in Satwant Kaur Sandhu versus New India Assurance Company Ltd, reported in IV (2009) CPJ  8 (SC) that contract of insurance is UMBERRIMA FIDES. The insured is under obligation to make true and full disclosure of information, within his knowledge in the proposal form on the record. The complainant gave answers in positive regarding good health of the insured in the questionnaire in the proposal form. It is, thus, evident that material information has been withheld by the insured with regard to her state of health, when the proposal form was filled in. The National Commission has also held in United India Insurance Company Ltd versus Kanta Gupta, reported in II(2012) CPJ 191 (NC) that insured was patient of DM and CRF for last 15 years , as mentioned in discharge certificate of hospital. The Discharge Certificate issued by the hospital was duly relied upon by National Commission in the cited authority in proving that insured was a patient of above pre-existing diseases. Our own State Commission has also held in Sapna Arora versus Life Insurance Corporation of India and others, reported in I(2009) CPJ 588 that insured suffered from Diabetes Mellitus Type 2  prior to filling of the proposal form. This fact was not disclosed by the insured to the hospital. History given by insured himself, recorded in discharge certificate, can validly become basis of repudiation of the claim of insurance. The National Commission has also held in Komal Sharma and others versus Life Insurance Corporation of India and others, reported in I(2013) CPJ 606 (NC) that  assured is under solemn obligation to make true and full disclosure of information on subject, which is within his knowledge. The repudiation of the claim was, thus, justified. The discharge summary report issued by Fortis Hospital Ludhiana clearly proved this fact that Parminder Kaur was patient of Diabetes Mellitus and Hypertension for past two years. Meaning thereby, she was already patient of these health disorders prior to taking the policy in question. This is material fact, which has not been disclosed in the proposal form in this case by the insured. There is violation of Clauses 4.1 and 4.2 of the terms and conditions of the policy. It was PNB-ORIENTAL ROYAL MEDICLAIM POLICY SCHEDULE, which got insured its account holders and employees with their families. It is not credible to believe that documents were not supplied to the complainant in this case containing the terms and conditions of the policy. We find no substance on the record in this regard and reject the contention of the counsel for the complainant on this point of non-supply of terms and conditions of the policy.

12.    As a result of our above discussion, the claim is, thus, inadmissible due to contravention of Clauses 4.1 and 4.2 of the Contract of Insurance by the insured. The District Forum has not come to correct conclusion in recording the order and order of the District Forum is, thus, reversed in this appeal being illegal and unsustainable. The appeal of the appellant is accepted by setting aside the order of the District Forum Ludhiana dated 16.04.2015. The complaint filed by the complainant now respondent in this appeal is ordered to be dismissed.

13.    The appellant no.1 had deposited an amount of Rs.25,000/- with this Commission at the time of filing the appeal and further deposited Rs.54,225/- in compliance with the order of this Commission, vide receipt dated 24.07.2015. Both these amounts with interest, if any, accrued thereon, be remitted by the registry to appellant no.1 of this appeal by way of crossed cheque/demand draft after the expiry of 45 days.

14.    Arguments in this appeal were heard on 08.03.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.

15     The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                    

 

                                                               (SURINDER PAL KAUR)

                                                                               MEMBER

 

                                                                                                         

March 9,  2017                                                           

(ravi)