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National Insurance Co. Ltd. v/s Rameshwar Lal & Another


Company & Directors' Information:- NATIONAL INSURANCE COMPANY LIMITED [Active] CIN = U10200WB1906GOI001713

Company & Directors' Information:- C. LAL LIMITED [Active] CIN = U51909HR2012PLC046499

    Revision Petition No. 1751 of 2017

    Decided On, 18 September 2019

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. PREM NARAIN
    By, PRESIDING MEMBER

    For the Petitioner: Atishay K Prasad, Proxy Counsel for Dr. Sushil Kumar Gupta, Advocate. For the Respondents: R1, R K Jain, Rameshwar, Advocates.



Judgment Text

The present revision petition has been filed against the judgment dated 27.03.2017 of the Delhi State Consumer Disputes Redressal Commission, Delhi (‘the State Commission’) in First Appeal no. 67 of 2013.

2. The brief facts of the case are that the complainant/ respondent was the holder of medi-claim policy (policy no. 360303/ 48/ 9/ 8500000020) which was obtained from the petitioner/ opposite party/ insurance company. The respondent was undergoing treatment at the All India Institute of Medical Sciences (AIIMS), where the respondent was advised the use of CPAP (auto adjustment type with all standard accessories). It was alleged that the respondent wrote a letter to the insurance company to provide him the CPAP machine or pay him Rs.80,000/- to 90,000/- towards the cost of the machine. As the respondent was having restless night sleep which was causing irritation, memory lapse and loud snoring, a request was made by the complainant to the insurance company vide letter dated 29.07.2009 that he may be allowed to purchase the CPAP machine or he may be paid the cost of the machine. He further sent a reminder on 20.08.2009, however, no response was received from the insurance company hence, he served a legal notice on 11.09.2009 to the insurance company. Even then no reply was received from the insurance company and ultimately the machine was purchased by the complainant on 25.09.2009 for a sum of Rs.74,880/. As there was no response, the respondent filed a consumer complaint before the District Consumer Disputes Redressal Forum, District Forum III, Janakpuri, New Delhi (‘the District Forum’).

3. The insurance company contested the claim of the respondent on the ground that no formal claim has been lodged with the insurance company. However, the District Forum directed the complainant to lodge a formal claim with the insurance company and it shall be considered on merits within 30 days. The District Forum has observed as under:

“On the basis of this notice only he applied to the respondent for payment of the cost of the machine, the claim along with the original documents and cash memos along with a certificate in original from the doctor was never lodged by him. Hence, to that extent, respondent’s defence was genuine that the complaint was filed without any cause of action there being no formal claim lodged with the respondent. As already three years have passed since the filing of this complaint, we hereby order that complainant shall lodge the formal claim with respondent no.1 within 30 days from the receipt of the copy of this order and the claim shall be considered on merits by the insurance company within next 30 days. With these observations complaint stands disposed off with no order as to compensation or cost”.

4. Aggrieved by the order of the District Forum, the complainant preferred an appeal before the State Commission being FA no.67 of 2013. The State Commission allowed the appeal and ordered as under:

“In view of the aforesaid discussion, we allow the appeal and set aside the impugned order and direct the respondent/ OP to pay Rs.74,880/- towards cost of the CPAP machine along with 6% per annum interest from the date of purchasing of CPAP machine. The payment shall be made within one month from the date of receipt of this order”.

5. Hence, the present revision petition.

6. I have heard the learned counsel for the parties and perused the material on record. Learned counsel for the petitioner has stated that hospital expenses are admissible when the insured is hospitalised for a minimum period of 24 hours except in special cases like Dialysis etc. In the present case, the respondent/ complainant remained in the hospital only for nine hours and therefore, this condition of the policy has not been met and, accordingly, the claim is not payable. It was further argued by the learned counsel for the petitioner that this equipment particularly is not included in the equipments or services mentioned in clause 1 of the policy. Moreover under Exclusion Clause 4.16, CPAP is specifically not permissible. The State Commission has not considered this clause. Clearly, because of these two clauses, the claim of the complainant is not payable.

7. On the other hand, the learned counsel for the respondent/ complainant has stated that CPAP is a life-saving device and if it is not used by the patient, he may die. Learned counsel has also stated that as per clause 1 of the policy, other similar equipment’s like pacemaker etc., are admissible under the policy and on similar lines, CPAP should also be permitted. In support of his arguments, the learned counsel has referred to the judgment of this Commission in the case of ‘New India Assurance Co. Ltd., vs Ganashyamadas A Thakur, RP No. 2242 of 2010 decided on 07.02.2014, wherein this Commission has allowed the claim of the complainant in respect of CPAP. The learned counsel for the respondent further pointed out that in the case of New India Assurance Co. Ltd., vs Shri Shiv Kumar Rupramka in RP No. 2409 of 2007 decided on 30.07.2007 this Commission has taken a similar view that has been taken by the State Commission. In the present case, CPAP is a part of the treatment and therefore, permissible like a pacemaker.

8. Learned counsel for the respondent/ complainant has further stated that the complainant was admitted in the AIIMS and the admission in the AIIMS was for minimum one day, though the patient remained in the hospital only for nine hours. Therefore, it cannot be said that the patient was not hospitalised for 24 hours. Hence, the condition of Clause 2.6 is fully satisfied.

9. I have carefully considered the arguments advanced by the learned counsel for the parties and examined the record. It is seen that the State Commission has allowed the complaint on the basis of clause no. 1 and treating CPAP as something equivalent to pacemaker. In the present policy clause no. 4.16 reads as under:

4. Exclusions:

The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any person in connection with or in respect of :

“External/ durable medical/ non-medical equipment’s of any kind used for diagnosis/ treatment including CPAP, CAPD, infusion pump etc., ambulatory devices like walker/ crutches/ belts/ collars/ caps/ splints/ slings/ braces/ stockings/ diabetic foot wear/ glucometer/ thermometer and similar related items and any medical equipment which could be used at home subsequently”.

10. Learned counsel for the complainant has placed reliance on the judgment of this Commission in New India Assurance Co. Ltd., vs Ganashyamadas A Thakur (supra). In the referred case, firstly, the insured was insured by a different insurance company and secondly the clauses might be different. There is no mention in the judgment of this Commission that there was any clause similar to 4.16 of the present policy where CPAP is specifically not permissible. Similarly, in the case of New India Assurance Co. Ltd., vs Shri Shiv Kumar Rupramka (Supra) the actual machine was ‘BIPAP’ and not CPAP. In this case also there seems to be no specific exclusion for the machine as in the present case.

11. It is an established principle of law that the terms of the policy are binding on the parties and they are to be construed as they are. The Hon’ble Supreme Court in the case of General Assurance Society Ltd. Vs.Chandmull Jain, [1966] 3 SCR 500, has held that:-

17.” …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 made it themselves.”

12. In Oriental Insurance Co. Ltd. Vs. Sony Cherian II (1999) CPJ 13 (SC ), it has been observed as follows:-

“16. The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein.”

13. In United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal, (2004) 8 SCC 644, the Hon’ble Apex Court has held as follows:-

“6. ….The terms of the policy have to be construed as it is and we cannot add or subtract something: Howsoever liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended.

9. …It is settled law that terms of the policy shall govern the contract between the parties, they have to abide by the definition given therein and all those expressions appearing in the policy should be interpreted with reference to the terms of policy and not with reference to the definition given in other laws. It is a matter of contract and in terms of the contract the relation of the parties shall abide and it is presumed that when the parties have entered into a contract of insurance with their eyes wide open, they cannot rely on definition given in oth

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er enactment. 14. Therefore, it is settled law that the terms of the contract has to be strictly read and natural meaning be given to it. No outside aid should be sought unless the meaning is ambiguous.” 14. From the above authoritative judgments, it is clear that the contract of insurance is to be construed as it is written in the policy document. Clearly as per clause 4.16, CPAP machine is excluded from reimbursement under the policy. Once there is a specific exclusion of the policy, the same cannot be permitted under any circumstances. The analogy of this machine with the pacemaker given by the State Commission is uncalled for and cannot be accepted. Based on the exclusion, the claim of the respondent/ complainant is not permissible under the policy. 15. Based on the above discussion, the revision petition no.1751 of 2017 is accepted and the order of the State Commission dated 27.03.2017 is set aside. The claim of the respondent/ complainant is not payable under the policy and the complaint is accordingly dismissed.
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