STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 27.02.2018
Date of final hearing: 17.05.2023
Date of pronouncement: 26.07.2023
First Appeal No.250 of 2018
In the matter of :-
The Oriental Insurance Company Ltd., 4 B.P. Neelam chowk, NIT, Faridabad through its Divisional Manager/Principal Officer. Now through its authorized signatory Alka Bansal, Manager, Regional Office, SCO No. 109-111, Sector-17D, Chandigarh.
…..Appellant
Versus
- Sukhbir Singh Dagar S/o Chhatarpal Singh Dagar resident of Village Gaunchhi, Tehsil Ballabgarh, District Faridabad.
- M/s Apollo Indraprastha Hospital, Sarita Vihar, Delhi-Mathura Road, New Delhi-76, through its authorized representative.
-
CORAM: Naresh Katyal, Judicial Member
Argued by:- Sh. J.P. Nahar, counsel for appellant.
Sh. Sanjay Verma, counsel for respondent No.1.
None for respondent No.2.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Delay of 136 days in filing the present appeal stand condoned for the reasons stated in the application for condonation of delay.
2. Challenge in this appeal No.250 of 2018 by insurance company is to the legality of order dated 13.09.2017 passed by District Consumer Disputes Redressal Forum-Faridabad (In short “District Commission”) in complaint case No.74 of 2015.
3. Factual matrix is that: complainant held Happy Family Floater Policy No. 272400/48/2014/9230 valid from 16.12.2013 to 15.12.2014 issued by appellant/OP No.1. Sum assured under this policy was Rs.6,00,000/-. On 19.02.2014, complainant felt sickness, cough and had vomited blood. He was hospitalized in M/s Apollo Indraprastha Hospital-Delhi/OP No.2 from 19.02.2014 to 24.02.2014 and incurred expenses amounting to Rs.1,04,171/- on his treatment. Thereafter, claim was lodged with appellant/OP No.1, but as per plea, OP No.1/appellant did not release claim amount. Thereafter, complainant connected officials of appellant/OP No. 1 and requested several times telephonically, and also personally visited, but there was no satisfactory response. As per plea, aforesaid act and conduct of OP No. 1/appellant constituted deficiency in its services towards him and intentional unfair trade practice on its part. Complainant has pleaded that: he suffered huge financial and mental loss, agony and required to be compensated. On these pleas, complaint was filed for issuing direction to OPs to pay Rs.1,04,171/- spent by him on his treatment with interest @18% p.a.; Rs.50,000/- as compensation for causing him mental tension, agony and harassment and Rs.11,000/- as legal charges.
4. OPs raised contest. In defence so entered by Insurance company/OP No.1/appellant; it is pleaded that complaint is not maintainable; complainant has no locus standi and cause of action and complaint is time barred. It is pleaded that complainant’s claim has already been repudiated under Clause 4.8 (complication of Alcohol) of Medi-claim Insurance Policy. It is pleaded that complainant remained hospitalized from 19.02.2014 to 24.02.2014 with complaint of cough for three days. It was followed by Haemoptysis after two days. He was diagnosed as suffering from Chronic Liver Disease with Portal Hypertension and Fundal Verices on evaluation and investigation. Information is available from prescription of consultant with Dr. Narinder Mohan Tickoo dated 04.02.2013 that Chronic Liver Disease is Ethanol related in this case. Happy Family Floater Policy does not cover expenses incurred on treatment of diseases due to use or abuse of alcohol vide exclusion clause 4.8. Basically on these pleas and by denying other averments of complaint; dismissal of complaint has been prayed for.
5. M/s Apollo Indraprastha Hospital, Delhi/OP No.2, in its separate reply has pleaded that Forum does not have jurisdiction to entertain of compliant against it, as no part of cause of action has arisen against it, within jurisdiction of forum. There was no negligence in service provided to complainant. Complainant has no cause of action. It has no role to play in repudiation of complainant’s claim. OP No. 2 is Multispecialty Hospital providing diagnostic curative and surgical care in various disciplines. It is equipped with state of art technology and facilities. Doctors are qualified in their respective medical fields and they had rendered their best medical treatment to complainant with due care and caution in existing condition of complainant. He was attended by consultant doctors, nurses and staff of OP No. 2. There are no allegations with respect to any deficiency or unfair trade practice against OP No.2. Eventually, OP No. 2 was proceeded against ex-parte.
6. Parties (Complainant and OP No.1/appellant) led their respective evidence; oral as well documentary.
7. On critically analyzing the same, learned District Consumer Commission-Faridabad vide order dated 13.09.2017 has allowed complaint and directed OP No.1 to pay Rs.1,04,171/- with interest @9% p.a. from date of filing of complaint till realization. Complainant was also awarded Rs.5,000/- for mental tension and harassment and Rs.2100/- as litigation expenses.
8. Feeling aggrieved; insurer has filed this appeal
9. I have heard learned counsel appearing for parties.
10. Learned counsel for the appellant/insurer has urged that impugned order dated 13.09.2017 is wrong, illegal and against the actual facts and evidence of the case. It is contrary to settled legal principles. Learned District Consumer Commission has ignored the fact that Dr. Narinder Mohan Tickoo has mentioned in the prescription of consultation that Chronic Liver Disease of complainant is Ethanol related. It is urged that with quality opinion of doctor; the claim of complainant was rightly repudiated.
11. Per Contra, learned counsel for the complainant has supported the impugned order dated 13.09.2017 on the ground that it is outcome of proper appreciation of facts and evidence brought on record and same warrants no interference. It is urged that complainant is entitled to refund of Rs.1,04,171/- with interest and he has been rightly awarded this amount.
12. Admittedly, complainant held Happy Family Floater Policy issued by appellant. It had currency period from 16.12.2013 to 15.12.2014. During currency of this policy; complainant suffered medical problem and was landed in Apollo Indraprastha Hospital on 19.02.2014. He was discharged on 24.02.2014. Discharge summary of the hospital is appended with this appeal as Annexure A-3. Under head: Chief complaints: it is mentioned that complainant had complained of cough for three days and blood in vomiting since one day. History of illness reflect that: complainant was relatively right two days back when he had complaint of cough which was followed by Haemoptysis after two days. There was history of passing of dark colour stool. Discharge summary reflects that: Dr. Narinder Mohan Tickoo of Gastroteroenlerology was primary consultant. Course of treatment recites that: complainant was managed conservatively. He was discharged in stable condition. Just because, prescription slip Annexure A-4 (appended with appeal) recites word: CLD (Chronic Liver Disease) (Ethanol related) will not ipso-facto imply at legal pedestal that complainant’s disease was stimulated by alcohol as alleged by OP/appellant in its written version. Discharge summary Annexure A-3 does not recite a word in this regard. More so, there is no affidavit of Dr. Narinder Mohan Tikoo placed on record, in evidence, by OP No. 1/appellant, thereby fortifying and stimulating its (insurer’s) case that repudiation of complainant’s claim is accentuated by invoking clause 4.8 of insurance policy i.e. complication of alcohol.
13. It is trite to say that wherever such an exclusionary clause is contained in a policy, it would be for the insurer to show that the case falls within the purview of such clause. In case of ambiguity, the contract of insurance has to be construed in favour of insured. Reliance in this regard can be placed on recent judgment of Hon’ble Supreme Court in case titled as “National Insurance Co. Ltd. Vs. Vedic Resorts and Hotels Pvt. Ltd.” (Civil Appeal No.4979 of 2019) decided on 17.05.2023, and also on decision of Hon’ble Apex Court in case titled as “National Insurance Company Limited vs. Ishar Das Madan Lal” (2007) 4SCC 105.
14. While applying the legal dictum of afore cited judgments to the facts of this appeal, “it is held that insurer (The Oriental Insurance Company Ltd.) has miserably failed to bring on record any tangible evidence, to prove its pleaded fact that disease suffered by complainant was the result of complications eventually arising due to alcohol consumption. Repudiation of claim by appellant/The Oriental Insurance Company Ltd. by invoking clause 4.8 of policy was erroneous and unjustified. There is no denying fact from appellant/insurer that discharge summary Annexure A-3 expressly recites that complainant was managed conservatively under care of Dr. Narinder Mohan Tikoo during his hospitalization and was discharged in stable condition on 24.02.2014. Once, complainant was medically treated and discharged in stable condition, then he is entitled to claim expenses incurred by him on his treatment, under cover of his insurance policy. Consequently, insurer/appellant has not legs to stand and has been rightly fastened with liability to pay Rs.1,04,171/- plus Rs.5500/- as compensation for mental tension plus Rs.2100 as litigation expenses. There is no illegality, infirmity or manifest error in impugned order dated 13.09.2017 passed by Learned District Consumer Forum-Faridabad. As a sequel thereto; order dated 13.09.2017 is maintained and affirmed, being outcome of proper appreciation of facts and evidence brought on record. This appeal being devoid of merits is hereby dismissed.
15. Statutory amount of Rs.25,000/- deposited by appellant at the time of filing of this appeal be refunded to it, after due identification and verification as per rules and on expiry of period meant for further appeal /revision, if any.
16. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
17. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
18. File be consigned to record room.
Date of pronouncement: 26th July, 2023
Naresh Katyal
Judicial Member
Addl. Bench-II
