IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20th DAY OF AUGUST 2019 BEFORE THE HON’BLE MR. JUSTICE ALOK ARADHE WRIT PETITION NO.52434 OF 2018 (GM-RES) BETWEEN:
MRS SHIVAPRABHA JAYAPRAKASH SHETTY W/O LATE JAYAPRAKASH SHETTY AGED ABOUT 53 YEARS, RESIDING AT 401C, MAHAVEER JONQUIL 3RD FLOOR, VIVEKANANDA COLONY JP NAGAR, 7TH PHASE, PUTTENAHALLI BANGALORE - 560 078.
(By SRI.SHIRISH KRISHNA, ADV.) AND:
1. UNION OF INDIA DEPARTMENT OF FINANCIAL SERVICES JEEVAN DEEP BUILDING, 3RD FLOOR SANSAD MARG NEW DELHI - 110 001 REPRESENTED BY ITS SECRETARY.
2. NATIONAL INSURANCE COMPANY LIMITED NO.3, MIDDLETON STREET, PRAFULLA CHANDRA SEN SARANI KOLKATA - 700 071 REPRESENTED BY ITS GENERAL MANAGER 3. VIPUL MED CORP TPA PVT LTD., #110, 4TH FLOOR, K.H.ROAD, SUDHAMA NAGAR BENGALURU - 560 027 REPERSENTED BY ITS DIRECTOR.
4. OFFICE OF THE INSURANCE OMBUDSMAN (KARNATAKA) … PETITIONER NO. 19/19, JEEVAN SOUDHA BUILDING, GROUND FLOOR, 24TH MAIN, J.P.NAGAR 1ST PHASE, BANGALORE - 560 078 REPRESENTED BY ITS SECRETARY.
(By SMT.M C NAGASHREE, CGC FOR R1, SRI. O MAHESH, ADV. FOR R2, R3 – SERVED, R4 – SERVED THROUGH HAND SUMMONS) … RESPONDENTS - - -
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE LETTER DTD: 20.12.2017 ISSUED BY R-2 TO THE PETITIONER VIDE ANNEX-A; AND ETC.
THIS WRIT PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER Mr.Shirish Krishna, learned counsel for the petitioner.
Smt.M.C.Nagashree, learned Central Government Counsel for the respondent No.1.
Mr.O.Mahesh, learned counsel for the respondent No.2.
2. The petition is admitted for hearing. With consent of the learned counsel for the parties, the same is heard finally.
3. In this petition under Article 226 of the Constitution of India, the petitioner inter alia seeks a writ of certiorari for quashment of order dated 20.12.2017 passed by the respondent No.2. The petitioner also seeks a writ of certiorari for quashment of the award dated 28.09.2018 passed by the respondent No.4 as well as a writ of mandamus directing the respondents to reimburse the petitioner a sum of `14,65,999/- along with interest at the rate of 12% p.a. from the date of claim till the date of realization.
4. Facts giving rise to the filing of the petition briefly stated are that the petitioner along with her husband and daughter had secured a policy from National Insurance Company for a period from 29.03.2013 to 28.03.2014 under which the petitioner’s family was insured with regard to hospitalization expenses for an amount of `2,00,000/- each. The petitioner’s husband thereafter got the family insured under National Mediclaim Policy under which the petitioner’s family was giving the health insurance for an amount of `2,00,000/- each for a period from 29.03.2014 till 28.03.2015. The petitioner’s husband was hospitalized for a period from 01.04.2014 to 02.04.2014 and thereafter from 09.04.2014 till 09.07.2014. The petitioner’s husband, during the subsequent hospitalization at Apollo Hospital, was diagnosed with cysticero meningitis with artheritis. Thereafter, the petitioner’s husband was hospitalized for a period from 24.07.2014 to 06.08.2014 for treatment of cysticero meningitis with artheritis and cardiorespitatory arrest. The National Mediclaim policy was renewed by the petitioner’s husband for the period from 29.03.2015 to 28.03.2016. Between the period from 2015-16, the husband of the petitioner was intermittently hospitalized. The petitioner’s husband sought to enhance the sum insured. Thereupon, the respondent No.2 who was well aware of the medical history of the petitioner’s husband, suggested a new policy namely National Parivar Mediclaim Plus under which mediclaim cover of `15,00,000/- was provided to the family for the period from 29.03.2016 to 28.03.2017. The aforesaid policy was renewed for a further period from 29.03.2017 to 28.03.2018. The petitioner’s husband was admitted at Apollo Hospital on 04.10.2017. The respondent No.3, in response to the request made by the petitioner for cashless facility connected on behalf of the respondent No.2 directly to the hospital in approval for an amount of `3,60,000/- awarded an authorization and guarantee payment made on 24.10.2017. Unfortunately, the husband of the petitioner expired on 30.10.2017. As per the death summary, the cause of death of the husband of the petitioner was sepsis, pancytopenia, left loculated pleural effusion.
5. The petitioner, on 02.11.2017, filed a claim of reimbursement of the expenses incurred on the hospitalization of her husband. The aforesaid claim was rejected on 20.12.2017 by respondent No.2 on the ground that the petitioner is not entitled to reimbursement beyond a sum of `2,00,000/-. The petitioner thereupon approached the respondent No.4 namely the ombudsman, who, by an award dated 28.09.2018, partly allowed the claim of the petitioner by awarding a sum of `3,60,000/- and held that the petitioner is not entitled to a sum of `14,65,999/- as claimed by the petitioner. In the aforesaid background, the petitioner has approached this Court.
6. Learned counsel for the petitioner submitted that the finding recorded by the respondent No.2 in the order dated 20.12.2017 that since the waiting period of 36 months has not been completed since the date of admission of the husband of the petitioner in the hospital i.e. 04.12.2017 and therefore, the petitioner is only entitled to `2,00,000/-, is perverse. It is further submitted that the husband of the petitioner has not died on account of pre-existing disease which is evident from the order dated 20.12.2017 which discloses the cause of death of the petitioner as sepsis, pancytopenia, left loculated pleural effusion. Therefore, clause 4.3 had no application to the obtaining factual matrix of the case and since the respondent No.2 was fully aware about the health condition of the husband of the petitioner and has renewed the National Parivar Mediclaim Plus Insurance policy for the period from 29.03.2016 till 28.03.2018, is liable to pay the expenses incurred to the petitioner towards the treatment of her husband i.e.
`14,65,999/-.
7. Learned counsel for the respondent No.2 has placed reliance on the order passed by the Insurance Company and submitted that in view of clause 4.3, since the waiting period was not over, therefore, the petitioner is not entitled to a sum beyond `2,00,000/-.
8. I have considered the submissions made by learned counsel on both the sides and have perused the record. Before proceeding further, the relevant extract of clause 4.3.iii of the policy may be reproduced as follows:
“4.3.iii. Four years waiting period.
Following diseases even if pre-existing shall be covered after four years of continuous cover from the inception of the Policy.
a. Treatment for joint replacement unless arising from accident b. Osteoarthritis and osteoporosis.”
9. The relevant extract of the impugned order dated 20.12.2017 reads as under:
“Hence, on the date of admission 04.10.2017 waiting period of 36 months has not been completed.
We reiterate that the enhanced sum insured is not payable as it falls under waiting period of 36 months. Hence the amount paid by TPA for Rs.2 Lacs in order and no further payment is admissible under the policy.”
10. Thus, from perusal of the relevant extract of the impugned order as well as clause 4.3.iii of the policy, it is evident that clause 4.3 has no application to the obtaining factual matrix of the case as the husband of the petitioner has not died of the pre-existing disease namely cysticero meningitis with arthritis. The husband of the petitioner, as per the finding recorded by the respondent No.2 in the order dated 20.12.2017, has died on account of sepsis, pancytopenia, left loculated pleural effusion. Therefore, the finding recorded by the respondent No.2 that the petitioner is not entitled a sum beyond `2,00,000/- as the waiting period of 36 months is not completed, cannot but be termed as perverse. The aforesaid finding suffers from the vice of non- application of mind and is arbitrary. Accordingly, the impugned order dated 20.12.2017 as well as the order dated 28.12.2018 passed by the respondent No.4 are hereby quashed and set aside. The respondent No.2 is directed to reimburse a sum of `14,65,999/- minus the amount which has already been reimbursed to the petitioner, with interest at the rate of 8% p.a. from the date of claim till the payment is made. The aforesaid payment shall be made to the petitioner within a period of four months from today.
Accordingly, the petition is disposed of.
Sd/- JUDGE RV