J. Bag, ld. Member, J.
The present appeal is directed against the Order dated 08. 02. 2013 of the Ld. District Consumer Disputes Redressal Forum, Unit-I , Kolkata, in CDF/Unit-I / Case No.427/10, whereby, the complaint was allowed on contest with cost against OP No.1 and ex parte without cost against OP No.2 .
The complaint case, in brief, was as follows:
The Complainants father (natural guardian of the minor, namely, Master Aditya Poddar) had taken a Hospitalization Benefit Policy (2007) from the New India Assurance Company Ltd. for self and members of his family including minor sons on payment of premium of Rs.3,509/- only. The policy was renewed from time to time till 01.05.2011. In May, 2010, the Complainants son, ( Master Aditya Poddar) had some pain in groin area . The consulting Doctor diagnosed the ailment to be a case of Inguinal Hernia and advised for surgery. The Complainant in terms of the policy filed a Mediclaim Form issued by OP No.1 for the period of treatment and all the treatment papers including bills, discharge summary and other medical reports were submitted along with a claim form on 09.06.2010 with a claim of Rs.21,740/- (Rupees twenty one thousand seven hundred and forty) only . The Insurance Company repudiated the claim citing Clause 4.1 of the policy terms according to which for no pre-existing ailment policy benefits would be available within the first four years of the insurance. The Complainant sent a legal notice dated 13.07.2010. No response being received, a complaint was filed before the Ld. Forum below.
OP No. 1 had entered their appearance by filing W.V. whereby all material allegations were denied and dismissal of the case was prayedfor. OP No. 2 did not contest the case and the matter was heard exparte against OP No. 2 .
Ld. Forum below having considered the pleadings of the parties, evidence and documents in particular, observed that the Complainants father took Hospitalization Benefit Policy in 2007 and the policy was renewed from time to time on payment of due premiums. Ld. Forum below relied upon the decision of the Honble Supreme Court as reported in CTJ, May, 2010 Vol-8 No. 5. Page 66 wherein Honble Supreme Court held that for mere breach of policy condition Insurance Company can not deprive the claim of the Complainant. It was concluded that the OPs had sufficient deficiency in service on their part and accordingly the complaint was allowed on contest with cost against OP No. 1 and ex parte without cost against OP No. 2. OP No. 1 was directed to pay (a) a sum of Rs. 21,740/- only to the Complainant for the treatment ; (b) compensation of Rs. 25,000/- for harassment and mental agony, and (c) Rs. 7,000/- as litigation cost within 45 days from the date of communication of the order , in default whereof an interest @ 9% shall accrue over the entire sum due to the credit of the Complainant till full realization.
Being aggrieved by and dissatisfied with the order of the Ld. Forum below, the Appellant/Insurance Company has come up before this Commission with the prayer for direction to set aside the impugned order on certain grounds.
We have gone through the Memorandum of appeal together with the impugned order, petition of complaint and other documents including the W.V. filed by the OP before the Ld. Forum below, the policy document, request(format) for cashless payment to provider Hospitals and some other documents.
Brief notes of argument have been filed on behalf of both parties.
Ld. Advocate appearing for the Appellant submitted that as per policy condition the decease for which the insured appears to have been hospitalized and undergone a surgery was pre-existing one . The fact being detected by the TPA Services Pvt. Ltd, being OP-2 in the complaint case, the claim was not entertained on the ground that the ailment which was found to be congenital and pre-existing, would not be entertained as the policy duration was less than 48 months /4 years from the date of first purchase of the policy. In the present case the policy was taken in May, 2007, but the hospitalization and surgery for which claim has been raised took place in May, 2010. There being a clear violation of the policy terms, the Insurance Company had no other option than to repudiate the claim.
In support of their argument, the Appellant furnished two cases decided by Honble National Consumer Disputes Redressal Commission: (1) 2012 (@) CPR 250 (NC) and (2) 2012 CPR 214 (NC). In both the cases, it was emphasized, Honble National Commission held that an insurance being the contract between two parties is to be interpreted and settled strictly as per the agreed terms and conditions stated in the insurance proposal form/ insurance policy document. An Insurance Policy between the two parties is based on the principle of utmost good faith and breach of the same would justify repudiation of the insurance claim.
Ld. Advocate appearing for the Respondent submitted that the repudiation of the insurance claim by the Insurance Company was wholly illegal and there has been no violation of the terms and conditions of the policy in question. The ailment for which the insured was hospitalized for surgery during 4th-5thJune, 2010 was a case of hernia as detected for the first time in May, 2010 by the attending physician. There was no prior knowledge of the Complainant / Respondent about the ailment. Under Policy terms vide Paragraph 4.3 surgery of Hernia of all types is barred for a duration of two years only as mentioned at Sl. No.9 of the list of Disease/ Ailment / Surgery not covered. The present case of surgery took place after 2nd renewal of the policy i.e., after three years from the date of purchase of the policy and as such it is nothing but an unfair trade practice on the part of the Insurance Company to repudiate the claim of the Respondent/ Complainant. The order passed by the Ld. Forum below is just and reasonable. There is no question of setting aside the impugned order.
Decisions with Reasons:
There is no dispute about the fact that the Complainant/Respondent took a Hospitalization Benefit Policy from the OP/ Appellant in the year 2007. There is also no dispute that the insured, being the son of the Complainant, was hospitalized for surgical operation of hernia. The sum of Rs.21,740/- (Twenty one thousand seven hundred and forty) only as said to have been spent towards hospital expenses has also not been disputed by the OP/ Appellant. The dispute raised by the OP in the complaint case as well as in the Appeal relates to the alleged violation of the terms and conditions of the Policy .
The fact goes that the ailment was detected to be a case of congenital left inguinal hernia diagnosed by Dr. N.R. Chakraborty during first medical check up and the opinion of the said Doctor is said to be crucial and vital (Paragraph 12 of Evidence on Affidavit filed by the OP, concluding part). There is no proof / evidence adduced by the OP/ Appellant that prior to May, 2010, the congenital hernia of the insured was detected by any physician and the same was within the knowledge of the insured minor or his father . Clause No. 4.3 of the Mediclaim Policy (2007) as issued by the Insurance Company lays down as follows:
Waiting period for specified diseases /ailment/conditions :
From the time of inception of the cover , the policy will not cover the following diseases /ailments /conditions for the duration shown below . These exclusions will be deleted after the duration shown , provided the policy has been continuously renewed with our Company without any break.
Sl. No. Name of Disease /Ailment/Surgery not covered for Duration
¦9. Harnia of all types Two years
Hernia of all types being restricted for duration of two years waiting period only as provided under Clause 4.3 of the said Policy , the Respondent /Complainants claim for reimbursement of medical expenses can not be withheld or rejected as the surgery was undergone after the said two years bar. Further, though as per clause 4.6 of the policy any medical expenses incurred for or arising out of .. congenital external disease/ defects or anomalies .. are to be excluded from the policy coverage , there is no averment of the OP/Appellant that the said inguinal hernia was an external disease or defect or anomaly . The Complainants claim for reimbursement of medical expenses for surgery of the hernia does not appear to be barred by any provision of the policy in question . In our considered view the payment of Rs. 21.740/- towards medical expenses attracts no irregularity or illegality .
We, however , find no reason to allow payment of compensation of Rs. 25,000/-or payment of litigation cost of Rs. 7000/-. Instead, in our view, payment of Rs.3000/- as litigation cost would be reasonable. Accordingly, the impugned order needs to be modified and hence.
that the appeal be allowed in part on contest and the impugned order is modified to the effect that the Appellant shall reimburse the medical expenses incurred by the Complainant / Respondent to the tune of Rs. 21,740/- with interest @8% pa from the date of filing the claim form and shall pay a sum of Rs. 3000/- as litigation cost within a period of 45 days in default whereof, the entire amount shall carry interest @ 9% p.a. till the date of full realization .
There shall be no order as to costs.