At, Delhi State Consumer Disputes Redressal Commission New Delhi
By, THE HONOURABLE MR. O.P. GUPTA
By, MEMBER (JUDICIAL)
For the Appearing Parties: ----------
1. The complainant has come in the present appeal against order dated 13.11.19 passed by District Forum dismissing complaint no.286/17. The appeal is still at the stage of admission.
2. The impugned order recites that from 2007 the complainant is insured with OP-2 for Rs.3 lakhs for mediclaim. On 15.02.17 he had problem of brain haemorrhage and was admitted in the Holly Family Hospital. On his request he was discharged from the hospital on 17.02.17 with advice to keep in touch with the hospital in any inclination of discomfort. He submitted bill to OP-1 on 27.02.17 for Rs.29,750/- which was paid. He was again admitted to hospital on 11.04.17 due to drowsiness/ sleepy and urology problem and was discharged on 12.04.17. On the advice of doctor he purchased CPAC machine and started using the same so that oxygen reaches the brain to overcome present ailment. He submitted bill of Rs.84,487/- to OP-1 for reimbursement. OP-1 raised query for years of medical coverage with OP-2 and authorization letter for inspection of the hospital records. He furnished the same to OP-1. He was informed that claim had been sent to OP-2 for consideration. OP-1 intimated about rejection of the claim to OP-2 vide letter dated 17.10.17 by stating that the same came under exclusion clause 4.13 of the policy.
3. OP-2 acted against government policy for public service. Complainant sent notice dated 04.11.17. Hence he filed complaint for directing OP to pay Rs.84,487/- with interest @18% p.a. w.e.f. 01.05.17 till payment, Rs.25,000/- on account of mental harassment alongwith cost of legal expenses.
4. OP-2 filed a WS stating that complainant was outside purview of the contract. As per clause 4.13 of ‘Parivar Mediclaim Policy’ expenses incurred for diagnosis and laboratory examination are excluded. Expenses incurred for treatment of the complainant came under the exclusion clause. Project of CPAP machine was not payable as per exclusion clause. OP-2 also stated that it sent reply to notice dated 04.11.17 which has not been deliberately filed by the complainant.
5. After going through the material on record the District Forum held that complainant was admitted in hospital in 11.04.17 for sleep study test and discharge. On 12.04.17 he was diagnosed mild obstructive sleep and noctual CPAP of 9 cm to 20 was recommended. Clause 4.24 provide that the OP is not liable to make any payment in respect of any expenses incurred in connection with or in respect of external/ durable medical/ non medical equipments/ instruments of any kind used for diagnosis/ treatment including CPAP, CAPD, infusion pump, ambulatory devices like walker, crutches, belts, collars, caps, splints, slings, braces, stockings, diabetic foot wear, glucometer, thermometer, similar related items (as listed in Appendix II) and any medical equipment which could be used at home subsequently. The claim of the complainant is covered by exclusion 2.24. Hence the complaint was dismissed.
6. In appeal the complainant has stated that he filed additional bill of Rs.10,319/-. The grievance of the appellant is that District Forum erred in not appreciating the fact that policy was wrongly issued to him. He filed correct policy applicable to him. Hence the policy condition of the policy filed by the OP were not applicable as per decision of Hon’ble Supreme Court in Modern Insulators Ltd vs. OIC.
7. The appellant has also contended that OP did not file any documents alongwith WS. Documents filed with the evidence had no legal sanctity. The OP relied upon exclusion clause no.4.13 but District Forum dismissed the complaint on the basis of exclusion clause no.4.22 (sic it should have been 4.24).
8. I have gone through the material on record and heard the arguments. The appellant nowhere pleaded in the complaint that a wrong policy was issued to him. Thus he cannot set up a new case for the first time in appeal.
9. Copy of the policy is annexure-C/1 at pages 4 to 18 of the appeal filed. Clause 4.24 specifically exclude CPAP for which complainant filed the case.
10. I do not find any merit in the plea of the appellant that document filed with the evidence has no sanctity or that the District Forum cannot apply the proper exclusion clause merely because the party has referred to a wrong clause. Once the document is
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before the court, it has to apply the correct clause irrespective of the fact that party has referred to a wrong clause. Court cannot shut his eyes and confine to the clause referred to by the party. 11. There is no merit in the appeal. The appeal is dismissed in limine. 12. Copy of the order be sent to both the parties free of cost. 13. One copy of the order be sent to District Forum for information. 14. File be consigned to record room.