IN THE CONSUMER DISPUTES REDRESSAL COMMISSION,
ALAPPUZHA
Thursday the 23rd day of December, 2021
Filed on 11.12.2019
Present
1. Sri.S.Santhosh Kumar, Bsc.LLB(President)
2. Smt. Sholy.P.R .BA, LLB(Member)
In
CC/No.328/2019
Between
Complainant:- Opposite parties:-
Sri.Varghese John 1. The National Insurance Co. Ltd
Thanuvelil House Rep.by the Chief Regional Manager
Pallarimangalam.P.O Regional Office, Omana Building
Mavelikkara, Alappuzha Jew Street, Padma Junction
(Adv. Sachin.V.John) Ernakulam-682035
2. Health Insurance TPA of India Ltd
Rep. By Asst. Manager
Relationship Management, 1St Floor
Rukiya Bagh, M.G.Road, Ravipuram
Kochi-682016
3. Oriental Insurance Co.ltd
Rep. by Chief Regional Manager
Metro Palace, Xavier Arakkal Road
Town Railway Station,
Ernakulam North-6820218
(Adv. T.S.Suresh for all Ops)
O R D E R
SRI. S. SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
1. Material averments briefly stated are as follows:-
Complainant is an employee of 3rd opposite party M/s Oriental insurance company Ltd., Kayamkulam branch. His son Cyriac John was admitted at Pushpagiri medical college due to complaints of pain and difficulty in opening the mouth. Before that he was taken to M/s Zion Eraviperoor and diagnosed by Sri.Saji Cherian and he found that the impacted tooth with pericoronal infection and space infection which can lead to airway obstruction which is life threatening. An immediate surgery was advised and so he was admitted at Pushpagiri hospital and surgery was done. Complainant had lodged a medicalim for his son in April 2018. Whenever complainant contacted 3rd opposite party they tried to lag the matter by stating lame excuses. The premium was deducted on regular basis from the complainant’s salary by the 3rd opposite party.
2. Complainant lodged a complaint before the insurance ombudsman, Kochi. However the complaint was dismissed by finding that the dental treatments except those arising out of injury are not covered in the policy.
3. There was serious deficiency of service by disallowing the complainant’s mediclaim policy. Complainant as a consumer is entitled to the benefit of insurance claim. Opposite parties are liable to pay Rs.60,000/- being the medical bills. Complainant is also seeking an amount of Rs.60,000/- as compensation.
4. Opposite parties 1 to 3 filed version mainly contenting as follows:-
The complainant has approached this Commission with utmost unclean hands by suppressing material facts. There is no deficiency of service as alleged by the complainant. At the time of issuance of the policy 3rd opposite party had served the policy conditions to the insured.
5. 1st opposite party admits insurance policy with respect to the staff and family members of 3rd opposite party w.e.f 1-4-18 to 31-3-19. The policy covers hospitalization expenses incurred in India as an impatient subject to the definitions, conditions and exclusions therein. In the present case the policy issued by the 1st opposite party will not cover the hospitalization expenses as per exclusion clause 4 (7) which reads as follows:- any dental treatment or surgery unless arising from injury and which requires hospitalization, which is corrective, cosmetic or of aesthetic in nature, filling of cavity, root canal treatment including treatment for wear and tear etc. In the present case admittedly as per para 3 of the complaint the surgery was done to the impacted molars for difficulty in opening the mouth. The son of the complainant was admitted on 30-4-18 with complaint of pain and difficulty in opening the mouth diagnosed as impacted 18,28,38,48 and underwent surgical removal of 18,28,38,48 and extraction of 14 and 15 and he was discharged on 3.5.18. Since dental treatment is admissible only for hospitalization arising from injury the claim was repudiated and it was intimated by letter dated 1.1.19.
6. The policy being a group medical policy issued by the 1st opposite party for the employees of 3rd opposite party the terms and conditions have been served to the 3rd opposite party at the time of renewal of the policy. The terms and conditions of the policy had been intimated to the employees of the 3rd opposite party by internal circulars periodically. The complaint filed before insurance ombudsman was dismissed after finding that the contention of 1st opposite party as true. Insurance is a contract and the policy conditions and exclusions clause forms the part of the policy and the insurer and the insured can never deviate from the policy conditions. Hence the complaint may be dismissed with cost and compensatory cost.
7. On the above pleadings following points were raised for consideration:-
- Whether there was any deficiency of service on the part of opposite parties as alleged?
- Whether the complainant is entitled to realize an amount of Rs.60,000/- being the amount of treatment bills of his son Ciriac John as prayed for?
- Whether the complainant is entitled to realize an amount of Rs.60,000/- as compensation as alleged ?
- Reliefs and cost?
8. Evidence in this case consists of the oral evidence of PW1 & PW2 and Exts.A1 to A6 from the side of the complainant and the oral evidence of RW1 and Ext.B1 to B3 from the side of opposite parties.
9. Point No.1 to 3:-
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A6.
10. PW2 is conducting a dental clinic for the last 24 years at Iraviperoor. There is no inpatient treatment at the clinic. On 20-4-18 he had treated one Cyriac John. The patient had space infection in connection with last teeth. He was having difficulty to open mouth. After preliminary treatment he was sent to Pushpagiri hospital for expert management. Exxt.A6 was issued by him.
11. RW1 is the divisional manager of 1st opposite party. He filed an affidavit in tune with the version and marked Ext.B1 to B3.
12. Pw1, complainant who is an employee of 3rd opposite party M/s Oriental Insurance Company Ltd along with other staff were insured with the 1st opposite party M/s National Insurance Company Ltd. as per Ext.B1 medical insurance policy (Group). The policy was covering PW1 and his family. While so Cyriac John who is the son of PW1 was admitted at Pusphagiri Medical College Hospital on 30/4/2018 due to complaints of pain and difficulty in opening the mouth. On examination it was found that there were multiple impacted teeth present in upper and lower jaw. So they had done surgical removal under general anesthesia and he was discharged on 3/5/2018. A claim form was submitted before the 1st opposite party claiming an amount of Rs. 55,967.62/- as per Ext.A2 bill. However as per Ext.B2 repudiation letter dtd. 1/1/2019 the claim was repudiated. Though PW1 approached Insurance Ombudsman as per Ext.A5 order dtd. 31/10/2019 the complaint was dismissed with a finding that as per policy exclusion clause.4.7 “ Any dental treatment or surgery, unless arising from injury and which requires hospitalization, which is corrective, cosmetic or of aesthetic in nature, filling of cavity, root canal treatment including treatment for wear and tear etc.” are excluded. Since treatment was not due to any injury the complaint was dismissed. Aggrieved by the same this complaint is filed claiming an amount of Rs.1,20,000/- Complainant got examined as PW1 and Ext.A1 to A6 were marked. The Dental Surgeon who examined Cyriac John initially ie, on 20/4/2018 was examined as PW2. The Divisional Manager of the 1st opposite party was examined as RW1 and Ext.B1 to B3 were marked. The learned counsel appearing for the complainant relying upon the oral evidence of PW1 and 2 coupled with Ext.A1 to A6 documents pointed out that the complaint is proved as per law and so complainant is entitled to get a favourable order. Per contra the learned counsel appearing for the opposite party pointed out that the treatment was not on account of any injury and so PW1 is not entitled for claim as per exclusion clause 4.7. So the only question to be looked into is whether the claim can be repudiated as per exclusion clause 4.7. Ext.B1 is the policy which is valid from 1/4/2018 to 31/3/2019. 4.7 of exclusion clause reads as follows:- “Any dental treatment or surgery, unless arising from injury and which requires hospitalization, which is corrective, cosmetic or of aesthetic in nature, filling of cavity, root canal treatment including treatment for wear and tear etc.” are excluded.
13. PW2 is the dental surgen who treated Cyriac John initially. According to PW2 on 20/4/2018 he had treated Cyriac John and the patient had space infection related to the last molar teeth. After giving first aid he was sent to Pushpagiri hospital for expert management. In cross examination PW2 admitted that the illness occurred due to infection and he ruled out any injury.
14. Ext.A3 is the treatment certificate which shows that the patient approached Pushpagiri Hospital on 30/4/2018 with complaint of pain relation to Lower right back tooth region and also difficulty in opening mouth. Clinical examination and investigations revealed impacted upper and lower third molars (18,28,38,48,14,35) which was removed surgically under general anesthesia. So from the oral evidence of PW2 coupled with Ext.A3 it is crystal clear that the ailment was due to infection and not due to any injury. As stated earlier as per 4.7 of the exclusion clause, the dental treatment is excluded unless arising from injury. The learned counsel appearing for the complainant relied upon a ruling of the State Consumer Dispute Redressal Commission Haryana in Ramesh Chhabra Vs. Vipul Med Corp Insurance dtd. 7/1/2020 in First Appeal No. 623 of 2018 and pointed out that reimbursement was allowed by the said order by the State Commission. But on a perusal of the ruling it is seen that the question decided by the Hon’ble Haryana State Commission was whether reimbursement can be allowed for outpatient treatment. Here the question is entirely different and the claim was repudiated on the basis of Condition no.4.7. The question looked into this case is whether the ailment occurred due to injury or not. As stated earlier the oral evidence of PW2 coupled with Ext.A6 prescription issued by him along with Ext.A3 and A4 certificates issued from Pushpagiri Medical College Hospital it can be seen that it is only an infection and it was not a result of any injury. It was held by the Hon’ble High Court in National Insurance Company Ltd. Vs. Sudhakaran and Others.(2018 (5) KHC 661)
“ Insurance Law – Contract of Insurance – Interpretation of –Held, normal rule is that the conditions specified in a policy, which is contract of Insurance statutory in nature, has to be strictly construed.”
15. It was held by the Hon’ble Supreme Court in Export Credit Guarantee Corpn. of India Ltd. Vs. M/s Garg Sons International (2013 KHC 4040)
“ Consumer Protection Act, 1986 – S.2, S.14, S.19 – Insurance claims – Rule of strict interpretation – Held, terms of insurance policy have to be strictly construed in order to determine the extent of the liability of the insurer – It is not permissible for the Court to substitute terms of the contract itself, under the garb of construing terms incorporated in the agreement of insurance – Insurance Law”
16. Here in this case the claim was repudiated on the basis of exclusion clause 4.7 in Ext.B1 policy. Admittedly PW1 is an employee of 3rd opposite party Oriental Insurance Company Ltd. During cross examination PW1 admitted that he is able to understand the policy conditions. Though he contended that he has not received repudiation letter from 3rd opposite party, from Ext.B2 dtd. 1/1/2019 it can be seen that repudiation letter was sent to 3rd opposite party on 1/1/2019. In cross examination PW1 admitted that the treatment was not resulted on account of any injury and it was impact of molar. So from the evidence on record it is pellucid that the claim was repudiated on the basis of condition No. 4.7 in Ext.B1. As per Ext.A5 dtd. 31/10/2019 the Insurance Ombudsman also rightly dismissed the complaint. In said circumstance in the light of the above discussion and applying the decisions cited above, it is crystal clear that complainant is not entitled to any claim amount from the 1st opposite party and so these points are found against him.
17. Point No.4.:-
In the result, complaint is dismissed. Parties are directed to bear their respective cost.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 23rd day of December, 2021.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/- Smt. Sholy.P.R (Member)
Appendix:-Evidence of the complainant:-
PW1 - Varghese John(Complainant)
PW2 - Dr.Saji.N.Cheriyan(Witness)
Ext.A1 - Copy of Gmail
Ext.A2 - Inpatient Invoice Summary
Ext.A3 - Certificate Issued from Pushpagiri hospital
Ext.A4 - Discharge Summary Dtd. 3/5/2018
Ext.A5 - Order dtd.31/10/2019
Ext.A6 - Prescription
Evidence of the opposite parties:-
RW1 - Abhilash .S(Witness)
Ext.B1 - Policy
Ext.B2 - Repudiation Letter dtd 01/01/2019
Ext.B3 - Copy of Medical Certificate.
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Typed by:- Br/- Assistant Registrar
Compared by:-
