Complaint No: 191 of 2009

Date of Institution: 11.09.2009

Date of Service: 30.09.2009

Date of Decision:23.12.2009
Kuldeep Kaur (aged 54 years) wife of Jagdish Singh, resident of village: Nathuwala, Tehsil: Bagha Purana, Distt.Moga.

Complainant
Versus

1. Med Save Healrth Care TPA Ltd. SCO 121-122-123, Second Floor, Sector 34-A, Chandigarh.

2. National Insurance Company Ltd. through its Branch Manager, G.T.Road, Moga.

3. Co-operative Service Society, Nathuwala, Distt.Moga.

Opposite Parties
Complaint Under Section 12 of the

Consumer Protection Act, 1986.

Quorum: Sh.J.S.Chawla,President.

Sh.J.S.Mallah, Member.

Present: Sh.Sukhdev Singh Adv.counsel for the complainant.

Sh.Vaneet Mittal Adv.counsel for OPs 1 and 2

Sh.Gurtej Singh Secretary for OP-3.

(J.S.Chawla, President)

Smt.Kuldeep Kaur complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 (herein-after referred to as ‘Act’) against Med Save Health Care TPA Ltd. SCO 121-122-123, Second Floor, Sector 34-A, Chandigarh (hereinafter referred to as ‘Medsave’)-OP1, National Insurance Company Ltd. through its Branch Manager Moga (herein after referred to as ‘Insurance Company’)-OP2 and Co-operative Service Society, Nathuwala, Distt.Moga (hereinafter referred to as ‘Society’)-OP3 directing them to make the payment of Rs.34043/- on account of her medical treatment and also to pay compensation of Rs.20000/- on account of mental tension and harassment or any other relief to which this Forum may deem fit be granted.

2. Briefly stated, OP1-Medsave got the group insurance of the complainant alongwith her son Yadwinder Singh from OP2-Insurance Company under ‘Bhai Ghaniya Sehat Sewa Scheme’ vide policy no. 400104/46/08/85/00000096, card no. 90104383100010G valid w.e.f. 01.10.2008 to 30.09.2009. That the complainant had ‘brain tumor’ and on the advice of OP1-Medsave, she was admitted in Arora Neuro Centre Private Limited, Ludhiana on 08.08.2009 and remained there upto 12.08.2009 and spent Rs.35043/- on her treatment. That the complainant gave the information to the OPs regarding her admission in Arora Neuro Centre Private Limited, Ludhiana. That both under law and equity, the complainant is entitled to recover Rs.35043/- i.e. the amount spent on her treatment. That the complainant made so many requests to the OPs to make the payment of her claim, but to no effect. That the aforesaid act and conduct of the OPs has caused great mental tension and harassment to her. Hence, the present complaint.

3. Notice of the complaint was given to the OPs. OPs 1 to 2 appeared through Sh.Vaneet Mittal, Advocate and filed the written reply taking the preliminary objections that the complainant has purchased the policy in question from the OPs by stating wrong age; that at the time of enrolment, she falsely mentioned her age as 54 years while her age 56 years has been shown in the election voter card. As there was difference in premium slab for purchase of the policy, the complainant falls in second slab while she had paid the premium according to first slab which was much less than the second slab. So after the verification, beneficiary card of the complainant was ‘blocked’ and necessary information regarding the blockage of the cards of the BGSSS beneficiaries including the complainant was give vide letter dated 14th May 2009. That this fact was well within the knowledge of the complainant that her card has been blocked due to the aforesaid reasons. So as per the terms and conditions of the policy, the complainant is not entitled to any relief. Moreover, out of the hospitals which were earlier mentioned for giving benefit to the policy holders, some hospitals were depaneled due to irregularities committed by them and in this regard, notice was given to the general public. That notice regarding de-panelment of the said hospital has also been given to the said hospital not to entertain any patient under the said scheme and that no imbursement shall be made to them. In case, any policy holder went to that hospital for getting treatment for that insurance company shall not be liable to pay the expenses for the treatment and that Arora Neuro Centre Private Limited, Ludhiana was the necessary party. On merits, the OPs 1 and 2 took up the same and similar pleas as taken up by them in the preliminary objections.

4. Sh.Gurtej Singh Secretary has appeared on behalf of OP3-Society and filed the written reply taking the preliminary objections that the present complaint is not maintainable against the answering OP and that the complainant has no locus standie to file the present complaint against the answering OP. On merits, the OP3-Society denied all the averments made in the complaint. Hence, it was prayed that the complaint filed by the complainant was false and frivolous and it deserves dismissal.

5. In order to prove her case, the complainant tendered in evidence her affidavit Ex.A1, copy of card Ex.A2, copy of passbook Ex.A3, copies of receipts Ex.A4 to Ex.A7, copies of medical bills Ex.A8 to Ex.A18, copy of matriculation certificate Ex.A19, copy of birth certificate Ex.A20 and closed her evidence.

6. To rebut the evidence of the complainant, the OPs tendered affidavit Ex.R1 of Sh.Roli Aggarwal, copies of letters Ex.R2 and Ex.R3, copy of card Ex.R4, copy of voter list Ex.R5, and affidavit of Gurtej Singh Secretary Ex.R6 and closed their evidence.

7. We have heard the arguments of Sh. Sukhdev Singh ld.counsel for the complainant, Sh.Vaneet Mittal ld.counsel for OPs 1 and 2, Sh.Gurtej Singh Secretary for OP3 and have very carefully perused the evidence on the file.

8. Sh.Sukhdev Singh ld.counsel for the complainant has mainly argued that the OPs has not paid Rs.35043/- i.e. the expenses incurred on the treatment of Kuldeep Kaur complainant and thereby committed ‘deficiency in service’. On the other hand, Sh.Vaneet Mittal ld.counsel for OPs 1 and 2 has mainly argued that Smt.Kuldeep Kaur complainant had given the wrong age at the time of getting herself insured. She mentioned her age as 54 years at the time of insurance and 56 years at the time of preparation of voter card. So her claim was rejected for deliberately supplying wrong information with regard to her age. This contention of the ld.counsel for the OPs 1 and 2 has no merit. Admittedly, Smt.Kuldeep Kaur complainant gave her age as 54 years at the time she got herself insured with the OPs and same is mentioned in the card Ex.A2 issued by ‘Bhai Ghanhya Trust’ under the National Insurance Company Limited. However, in the voter list Ex.R5, her age was mentioned as 56 years. So the mentioning of age as 54 years at the time of getting insurance policy was not material concealment, but is minor discrepancy. Admittedly, Smt.Kuldeep Kaur complainant is rustic and illiterate lady and she had mentioned her age at the time of getting the insurance by approximation and had not given her exact ‘date of birth’. So the rejection of her claim on this sole ground by the OPs can not sustain. Moreover, it is the case of the OPs that they have blocked her ID card vide letters Ex.R2 and Ex.R3 and had conveyed the same to her. This plea has not been substantiated on the file. In letters Ex.R2 and Ex.R3 the name of the complainant or her ID having been blocked has not been mentioned. No evidence has been produced to prove if this fact was intimated to her by the OPs or not. The contention of the ld.counsel for the OPs that blocking of her card has been published in some newspaper has also not been substantiated on the file. Neither any pleading to this effect had been taken nor any copy of the newspaper showing the blocking of her card has been produced. Hence, in the absence of the aforesaid evidence, it can not be held that the OPs had blocked the ID card of the complainant to her knowledge. In view of the aforesaid facts and circumstances, we therefore hold that the complainant has been able to prove that the OP2-Insurance Company has committed deficiency in service by not making the payment of her genuine and lawful claim.

9. The complainant alleges that she has spent Rs.35043/- on her treatment, but as per the terms and conditions of the policy and negotiated package rate of BGSSS, the OPs are liable to pay Rs.35000/- only in case of brain tumor. Therefore, the maximum amount to be paid was Rs.35000/- and not Rs.35043/- as alleged. We, therefore, hold that the complainant is entitled to recover Rs.35000/- from the OPs on account of her treatment of ‘brain tumor’.

10. However, no relief could be granted against OP1-Medsave which is 3rd party (TPA) and against OP3-Co-operative Society because OP2-Insurance Company is third party agent while OP3 is society under which she sought membership. Hence, entire responsibility to pay Rs.35000/- shall be of OP2-Insurance Company.

11. To substantiate the aforesaid contention, the complainant has produced her affidavit Ex.A1, copy of card Ex.A2, copy of passbook Ex.A3, copies of receipts Ex.A4 to Ex.A7, copies of medical bills Ex.A8 to Ex.A18, copy of matriculation certificate Ex.A19, copy of birth certificate Ex.A20 and we belief and rely upon the same. On the other hand, no reliance could be placed on the affidavit Ex.R1 of Sh.Roli Aggarwal and other documents Ex.R2 to Ex.R2 to Ex.R5 and we discard the same.

12. The ld.counsel for the parties did not argue and urge any other point before us.

13. In view of the aforesaid facts and circumstances, the complaint filed by the complainant has merit and the same is accepted. OP2-Insurance Company is directed to pay Rs.35000/- to the complainant within one month from the date of receipt of copy of this order They are also directed to pay Rs.5000/- as compensation for causing mental tension, harassment and agony to the complainant. However, the complaint against OP1-Medsave and OP3-Co-operative Society stands dismissed. Copies of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Complaint No: 199 of 2009

Date of Institution: 01.10.2009

Date of Service: 26.10.2009

Date of Decision:11.12.2009


Tejbant Singh (aged 37 years) son of Sh.Rattan Singh, resident of Patti Sandhuan, Near Sarwan Di Hatti, Village: Ajitwal, Tehsil & Distt.Moga.

Complainant
Versus

1. Med Save Healrth Care TPA Ltd. SCO 121-122-123, Second Floor, Sector 34-A, Chandigarh.

2. National Insurance Company Ltd. through its D.M. Moga.

3. The Agriculture Co-operative Society Ltd. Ajitwal Distt.Moga.

Opposite Parties
Complaint Under Section 12 of the

Consumer Protection Act, 1986.

Quorum: Sh.J.S.Chawla,President.

Smt.Bhupinder Kaur, Member.

Sh.J.S.Mallah, Member.


Present: Sh.Tejbant Singh complainant in person.

Sh.Vaneet Mittal, Adv.counsel for OPs 1 and 2

Sh.Ranjit Singh Secretary, for OP3.


(J.S.Chawla, President)

Sh.Tejbant Singh complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 (herein-after referred to as ‘Act’) against Med Save Healrth Care TPA Ltd. SCO 121-122-123, Second Floor, Sector 34-A, Chandigarh (hereinafter referred to as ‘Medsave’)-OP1, National Insurance Company Ltd. through its D.M. Moga (herein after referred to as ‘Insurance Company’)-OP2 and The Agriculture Co-operative Society Ltd. Ajitwal (hereinafter referred to as ‘Society’)-OP3, directing them to make the payment of Rs.25907/- on account of medical expenses and also to pay compensation of Rs.100000/- on account of mental tension and harassment or any other relief to which this Forum may deem fit be granted.

2. Briefly stated, OP1-Medsave got the complainant as well as his family members insured with OP2-Insurance Company under ‘Bhai Ghaniya Sehat Sewa Scheme’ vide policy no. 400104/46/08/85/000000096, card no. 901 0415 82 00002A valid w.e.f. 01.10.2008 to 30.09.2009. That on 01.08.2009 when the complainant was coming from his village Ajitwal to Moga, his motor cycle slipped and he received injury on his left leg. That some inhabitants of his village took him to Rajeev Hospital where he was got admitted on the same day i.e. 01.08.2009 and he remained in the hospital and was discharged on 08.08.2009. That the complainant got conducted his MRI and took medicines and spent Rs.25907/- on his treatment. That the complainant gave the information to the OPs about the accident and requested to pay the medical expenses either to him or to the treating hospital, but they did not bother. That due to the said accident, he becomes disabled and unable to move freely and suffered great loss in his cultivation and other routine work. That the complainant made so many requests to the OPs to make the payment of the medical bill, but to no effect. That the aforesaid act and conduct of the OPs has caused great mental tension and harassment to him. Hence, the present complaint.

3. Notice of the complaint was given to the OPs. OPs 1 to 2 appeared through Sh.Vaneet Mittal, Advocate and filed the written reply taking the preliminary objections that the complaint in the present form is not maintainable being non-joinder of necessary parties as the complainant has not impleaded Rajeev Hospital, Moga as a party from where he took treatment. On merits, it was averred that no such accident had ever occurred nor the complainant has received any injury on any part of his body or left leg nor he was ever admitted in Rajeev Hospital, Moga. Moreover, Rajeev Hospital Moga is not in the list of ‘Network Paneled Hospitals’ from where a person, who had taken services of the OPs, could get himself treated, so the complainant is not entitled to any relief. That the cashless treatment can only be permissible to a person/ patient who got treatment from the ‘Network Paneled Hospitals’ and the reimbursement is allowed if the patient get treatment from any government hospital of Punjab and Chandigarh. So the complainant has not followed the proper procedure of the policy.

4. Sh.Ranjit Singh, Secretary appeared on behalf of OP3-Society and filed the written reply taking the preliminary objections that the present complaint is not maintainable against the answering OP because there was no liability to pay any insurance amount as alleged by the complainant; that the complainant has no locus standie to file the present complaint against the answering OP as per the insurance scheme; that the OPs 1 and 2 are liable to pay the insurance amount to the complainant; that the present complaint is bad for mis-joinder of necessary party. OP3-Socieity has been impleaded unnecessarily without any reasonable cause and liability. On merits, the OP3-Society took up the same and similar plea as taken up by them in the preliminary objections. All other allegations contained in the complaint were specifically denied being wrong and incorrect. Hence, it was prayed that the complaint filed by the complainant was false and frivolous and it deserves dismissal.

5. In order to prove his case, the complainant tendered in evidence his affidavit Ex.A1, copy of identity card Ex.A2, copies of bills/ receipts Ex.A3 to Ex.A34 and closed his evidence.

6. To rebut the evidence of the complainant, the OPs tendered affidavit Ex.R1 of Sh.Roli Aggarwal, copy of membership card Ex.R2, affidavit of Ranjit Singh Ex.R3, copy of terms and conditions Ex.R4 and closed their evidence.

7. We have heard the arguments of Sh.Tejbant Singh complainant, Sh.Vaneet Mittal ld.counsel for OPs 1 and 2, Sh.Ranjit Singh Secretary for OP3 and have very carefully perused the evidence on the file.

8. Sh.Tejbant Singh complainant has mainly argued that the OPs have failed to reimburse his medical bills amounting to Rs.25907/- spent by him on his treatment and thereby committed deficiency in service. This contention of the complainant has no merit because the complainant got himself treated from Rajeev Hospital, Moga which is not in the list of ‘Network Paneled Hospitals’. As per the terms and conditions of the insurance agreement the complainant was required to get treatment from ‘Network Paneled Hospitals’ and not from any other hospital. If the complainant had taken the treatment from any of the ‘Network Paneled Hospitals’, only then he can enforce the liability against the OPs. In the instant case, the complainant on his own had got to choose to get him treated from Rajeev Hospital, Moga which was not in the list of ‘Network Paneled Hospitals’ as prescribed by the OPs. Hence, the OPs have rightly rejected the claim of the complainant having not got the treatment from any ‘Network Paneled Hospitals’ and thus there is no deficiency in service on the part of the OPs.

9. To substantiate the aforesaid contention, the OPs has produced affidavit Ex.R1 of Sh.Roli Aggarwal, copy of membership card Ex.R2, affidavit of Ranjit Singh Ex.R3, copy of terms and conditions Ex.R4 and we believe and rely upon the same. On the other hand, no reliance could be placed on the affidavit Ex.A1 of the complainant and documents Ex.A2 to A34 and we discard the same.

10. The complainant and ld.counsel for the OPs did not argue and urge any other point before us.

11. In view of the aforesaid facts and circumstances, the complaint filed by the complainant has no merit and the same is dismissed. In view of the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Complaint No: 173 of 2009

Date of Institution: 25.08.2009

Date of Service: 05.10.2009

Date of Decision:10.12.2009

1. Gurmel Kaur wife of late Gurmeet Singh Salesman, The Daroli Bhai CASS Ltd. Daroli Bhai, Distt.Moga.

2. Surinder Singh

3. Parminder Singh

minor sons of Gurmee Singh minors through their mother complainant no.1 Gurmel Kaur being natural guardia and next friend of minors.


Versus

1. Med Save Healrth Care TPA Ltd. SCO 121-122-123, Second Floor, Sector 34-A, Chandigarh.

2. National Insurance Company Ltd. through its Branch Manager, G.T.Road, Moga.

3. The Daroli Bhai C.A.S.S.Ltd. Daroli Bhai, Distt.Moga through its President/ Secretary.

Opposite Parties

Complaint Under Section 12 of the

Consumer Protection Act, 1986.

Quorum: Sh.J.S.Chawla,President.

Smt.Bhupinder Kaur, Member.

Sh.J.S.Mallah, Member.

Present: Sh.D.S.Gill, Adv.counsel for the complainants.

Sh.Vaneet Mittal, Adv.counsel for OPs 1 and 2

Sh.KPS Gill, Adv.counsel for the OP3.

(J.S.Chawla, President)

Smt.Gurmel Kaur and others complainants have filed the present complaint under section 12 of the Consumer Protection Act, 1986 (herein-after referred to as ‘Act’) against Med Save Healrth Care TPA Ltd. SCO 121-122-123, Second Floor, Sector 34-A, Chandigarh (hereinafter referred to as ‘Medsave’)-OP1, National Insurance Company Ltd. through its Branch Manager Moga (herein after referred to as ‘Insurance Company’)-OP2 and The Daroli Bhai C.A.S.S.Ltd. Daroli Bhai, Distt.Moga through its President/ Secretary (hereinafter referred to as ‘Society’)-OP3, directing them to make the payment of Rs.165000/- i.e. the balance amount of insurance, Rs.20000/- as funeral charges and also to pay compensation of Rs.20000/- on account of mental tension and harassment or any other relief to which this Forum may deem fit be granted.

2. Briefly stated, OP1-Medsave got the group insurance of deceased Gurmeet Singh and his family members from OP2-Insurance Company under ‘Bhai Ghaniya Sehat Sewa Scheme’ vide policy no. 400104/46/08/85/00000096, card no. 901 0419 87 00005Z valid w.e.f. 01.10.2008 to 30.09.2009. That Gurmeet Singh (now deceased) husband of the complainant no.1 was member and salesman of OP3-Society and he suffered from brain hemorrhage during his service and got admitted in Mediciti, Ferozepur Road, Ludhiana where he died on 21.5.2009. That the complainants spent more than Rs.3 lacs on his treatment. That the complainants gave the information to the OPs, but they approved only Rs.35000/- under the policy. That both in law and equity the complainants are entitled to get Rs.165000/- the balance amount of insurance being his legal representatives. That the complainants made so many requests to the OPs to make the payment of the balance amount of insurance, but to no effect. That the aforesaid act and conduct of the OPs has caused great mental tension and harassment to him. Hence, the present complaint.

3. Notice of the complaint was given to the OPs. OPs 1 to 2 appeared through Sh.Vaneet Mittal, Advocate and filed the written reply taking the preliminary objections that the answering OPs received the cashless bill of late Gurmeet Singh from Ludhiana Mediciti with the date of admission as 5th of May 2009 to 6th of May 2009 for treatment of excavation of cranial hemorrhage and in response to that, an amount of Rs.35000/- was approved by the answering OPs as per the negotiation package rate of BGSSS. So the present complaint is not maintainable and is liable to be dismissed on this score only. On merits, it was averred that the answering OPs have approved Rs.35000/- as per the terms and conditions of the policy and negotiated package rate of BGSSS. So there is no deficiency in service on the part of the answering OPs.

4. Sh.KPS Gill Advocate has appeared on behalf of OP3-Society and filed the written reply taking the preliminary objections that the present complaint is not maintainable against the answering OP because the complainants have no locus standie to file the present complaint against the answering OP. On merits, the OP3-Society denied all the averments made in the complaint. Hence, it was prayed that the complaint filed by the complainant was false and frivolous and it deserves dismissal.

5. In order to prove their case, the complainant tendered in evidence affidavit Ex.A1 of complainant no.1, copies of identify card Ex.A2 and Ex.A3, copy of membership form Ex.A4, copy of policy Ex.A5, copy of bill Ex.A6, copy of claim status form Ex.A7, copy of death certificate Ex.A8, copies of medical receipts Ex.A9 to Ex.A83 and closed their evidence.

6. To rebut the evidence of the complainant, the OPs tendered affidavit Ex.R1 of Sh.Roli Aggarwal, copy of annexure Ex.R2, copy of schedule Ex.R3, copy of policy Ex.R4, copy of scheme Ex.R5, copy of feature of scheme Ex.R6 and closed their evidence.

7. We have heard the arguments of Sh. D.S.Gill ld.counsel for the complainant, Sh.Vaneet Mittal ld.counsel for OPs 1 and 2, Sh.KPS Gill ld.counsel for OP3 and have very carefully perused the evidence on the file.

8. Sh.D.S.Gill ld.counsel for the complainants has mainly argued that the OPs has not paid the balance amount of Rs.165000/- regarding the treatment of Gurmeet Singh out of the insurance amount to the complainant and thereby committed deficiency in service. This contention of the ld.counsel for the complainants has no merit. Admittedly, Gurmeet Singh deceased was husband of complainant no.1 and father of complainants no.2 and 3 and was issued group insurance by OP1-Medsave from OP2-Insurance Company under ‘Bhai Ghaniya Sehat Sewa Scheme’ vide policy Ex.R2 which was valid w.e.f. 01.10.2008 to 30.09.2009. Said Gurmeet Singh suffered brain hemorrhage and was admitted in Mediciti, Ferozepur Road, Ludhiana where he died on 21.5.2009. The complainants allege that they have spent Rs.3 lacs on his treatment and as per the terms and conditions, the deceased was insured upto the extent of Rs.2 lacs with the OPs and therefore, they were liable to pay the said amount as compensation. As per the terms and conditions of the policy Ex.R2 and negotiated package rate of BGSSS, the OPs were required to pay Rs.35000/- only to them in case of brain hemorrhage. Therefore, the maximum amount to be paid by the OPs was Rs.35000/- and not Rs.2 lacs or Rs.3 lacs as alleged. The complainants have failed to produce any evidence to prove that the OPs were liable to pay the balance amount of Rs.165000/- as alleged. When the contract of insurance provides that the OPs are liable to pay Rs.35000/- only in case of brain hemorrhage, they can not be compelled to pay the balance amount, if any. The OPs are ready to pay the aforesaid amount to Mediciti, Ferozepur Road, Ludhiana and thereafter, they are absolved from their liability. Hence, the complainants have failed to prove any deficiency in service on the part of the OPs by not paying any amount more than Rs.35000/- as alleged.

9. To substantiate the aforesaid contention, the OPs has produced affidavit Ex.R1 of Sh.Roli Aggarwal, copy of annexure Ex.R2, copy of schedule Ex.R3, copy of policy Ex.R4, copy of scheme Ex.R5, copy of feature of scheme Ex.R6 and we believe and rely upon the same. On the other hand, no reliance could be placed on the affidavit Ex.A1 of the complainant and documents Ex.A2 to A83 and we discard the same.

10. The ld.counsel for the parties did not argue and urge any other point before us.

11. In view of the aforesaid facts and circumstances, the complaint filed by the complainant has no merit and the same is dismissed. In view of the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.

Consumer Complaint No: 233/2008

Between:

Sri Prasadu Satyanarayana, S/o, late Appanna, Hindu, aged 40 years, residing at Kothapeta Veedhi, Thummapala, Visakhapatnam District.

… Complainant

A n d :

M/s. The National Insurance Co. Ltd., rep., by its Divisional Manaer, D.No.47-13-1, Dwarakanagar, Visakhapatnam.

… Opposite Parties



This case is coming on for final hearing on 10-12-2009 in the presence of Smt.P.Leelavathi, Advocate for the complainant and of Sri.A.Venugopala Rao, Advocate for the opposite party and having stood over till this date, the Forum delivered the following

: O R D E R :

(As per the Honourable Lady Member on behalf of the Bench)



1. Complaint filed U/s 12 of the Consumer Protection Act alleging negligence against the General Insurance Company, for not settling the Janatha Personal Accident policy. The brief facts of the complainant is that the complainant’s father, late Prasad Appanna, S/o Prasad Satyannarayana obtained the policy No.550600/47/02/9601199 for the assured sum of Rs.1,00,000/- which is valid from 26-11-2002 to 25-11-2003, from the opposite party and nominated the complainant. The complainant further averred that the complainant’s father slipped and fell on the stone at Vaddadi on 28-09-2003 and received injuries and died on 30-09-2003. The complainant further averred that the opposite party sent the claim form on 29-06-2004 and the complainant submitted the necessary documents like FIR, PM Report, Death Certificate, final Report, Inquest and legal heir certificate to the opposite party, but the opposite party did not respond and as such the complainant sent remainder, but the opposite party failed to settle the claim. The complainant then approached personally and when the opposite party failed to settle the claim, the complainant got issued legal notice on 27-09-2007 demanding settlement of the claim, to which the opposite party sent reply on 12-10-2007 and stated that the opposite party admitted the issuance of policy and the information as to the death of the insured, but denied the submission of the claim form and the documents. The complainant averred that the opposite party though received those documents long ago took such plea only with a view to avoid the claim amount and as the complainant’s father died during the validity of the policy, the complainant is entitled to the policy amount and alleged that the complainant suffered mental agony due to the non-settlement of the insurance claim and thus claimed a sum of Rs.1,00,000/- from 29-6-2004 along with interest at 24% p.a from 29-06-2004. To pay for compensation at Rs.50,000/- and to pay damages at Rs.50,000/- for breach of agreement, besides costs.

2. The opposite party filed the counter admitting the issuance of the Janatha Personal Accident policy to the complainant’s father, but stoutly denied the averments of the complainant with respect to sending of documents like FIR, PM report, Death Certificate, Final Report, Inquest and Legal heir certificate to the opposite party. The opposite party further submitted that after registering the claim sought the above documents vide letter dated 28-07-2004, but the complainant did not respond and as such sent reminders on 29-09-2004 and 9-11-2004. The opposite party stated that the death intimation was received through an advocate D.Srinivas Rao at a belated stage on 20-6-2004 about the incident and the opposite party sought the necessary documents from the complainant, but there was no reply from the complainant. A notice was sent by the complainant through an advocate on 16-52006, to which a reply notice was sent giving reasons for closure of the claim. The complainant against sent another notice on 27-09-2007 and the opposite party averred that the complainant is in the habit of sending notice through different advocates without any interest to submit the required documents, which are essential to process the claim and as the complainant failed to submit the documents, the opposite party cannot process the claim and as such the claim was closed and that there is absolutely no liability to pay the claim amount, since the complainant failed to substantiate the claim. The opposite party further contested that it is not liable to pay the policy amount along with interest there on as the complainant failed to submit the relevant documents and so also the amounts claimed towards compensation and damages and prayed for dismissal of the complaint.

3. Both parties filed the proof affidavits. Ex.A1 to Ex.A7 were marked for the complainant. Ex.B1 to Ex.B4 were marked for the opposite party. They have reiterated the versions made in the complaint and the counter respectively. Heard the arguments on both sides. Perused the entire records.

4. There is absolutely no dispute with respect to the issuance of accidental policy and as to the intimation of the death of the insured.

5. The point for consideration is:

Whether the complainant is entitled to the claim amount under the Janatha Personal Accident policy?

6. There is no dispute about the identity of the insured and the cause of death. The police also gave certificate by stating that there is no foul play in the death. Admittedly by going through the documents filed by the complainant, we can come to the conclusion that the cause of accident is due to the accident only and there is nothing contra proved by the opposite party.

7. There is absolutely no material placed by the opposite party in order to enable us to consider the version of the opposite party and except the copies of the letters alleged to have been sent to the complainant, no proof whatsoever is filed by the opposite party demanding the complainant to submit the documents sought there in. The burden is heavily on the insurance company to disprove the version of the complainant and in its absence we do not hesitate in allowing the complaint.

8. During the course of arguments the counsel for opposite party brought to our notice that the complainant, on the basis of another similar insurance policy from the Bazaj Allianz company, for the same accident and death of his father, realized the death benefits from that company by filing a separate complaint. This assertion of the counsel could not be seriously challenged by the complainant. So the fact remains that the deceased obtained two

accident insurance policies, one from National Insurance Company i.e opposite party and another from Bazaz Allianz insurance company, almost covering the same period and he put forward a claim with the later insurance company for the death of his father. But in the absence of any material placed by insurance company, on which burden heavily lies upon it to prove suppression of material facts, it cannot be concluded that the deceased suppressed the fact of obtaining another policy from Bazaz Allianz. As a matter of fact, there is no evidence before us to verify as in between the two policies which is the earlier one. Hence in our view the plea of suppression of material facts, raised for the first time at the time of arguments, without placing any evidence of relevant material, the opposite party cannot permitted to repudiate the policy on that ground.

9. Regarding the compensation claimed on the ground of deficiency in service, the evidence placed before us would show that the opposite party has been demanding the complainant to furnish the relevant documents to process the claim and inspite of even reminders, the complainant failed to furnish the same. For the first time, the relevant documents namely, FIR Copy, Postmortem certificate and inquest report were filed, at the time of enquiry, only in this complaint. So naturally in the absence of required material, the opposite party cannot be found fault and its failure to settle the claim cannot be termed as deficiency in service as such and on that ground the complainant is not entitled for any compensation. However, it would be just and proper that the complainant be awarded interest on the policy amount from the date of this order till payment at 9% p.a.

10. In the result, the complaint is allowed by directing the opposite party to pay a sum of Rs.1,00,000/- (Rupees one lakh only) along with interest there on at 9% p.a from the date of this order till the date of payment. Advocate fee is fixed at Rs.2,500/- (Rupees two thousand and five hundred only).

Consumer Complaint No: 31/2008

Between:

Sri A.V.S. Raju S/o A.V.S.Appala Raju, Hindu, aged 49 years, resident of 55-8-33/9, K.R.M.Colony, Visakhapatnam.

… Complainant
And:

The Divisional Manager, National Insurance Co. Ltd., D.O-II, Seethammapeta Road, Dwarakanagar, Visakhapatnam-16.

… Opposite Parties


This case is coming on for final hearing on 8-12-2009 in the presence of Sri V. Saravanna Advocate for the complainant and of Sri A.Venugopala Rao Advocate for the opposite parties and having stood over till this date, the Forum delivered the following.


: O R D E R :

(As per the Honourable Member on behalf of the Bench)



1. The case of the complainant is that the opposite party disallowed the claim in the context of his late father’s ailment during the policy period 2004-05. As such he filed the complaint with the Forum to direct the opposite party to settle the claim amount of Rs.2,20,612.92p (Rupees two lakhs twenty thousand six hundred and twelve and ninety two piase only) along with interest of 24% from the date of complaint till realization besides claim for Rs.20,000/- (rupees twenty thousand only) towards suffering on wrongful repudiation of claim and costs and other reliefs as decided by the Forum.

2. The contents of the complaint are that the complainant is the subscriber of mediclaim insurance policy since 1996 uninterruptedly covering his family members including his father up to 2006 and the insurance authorities are settling the claims in respect of the ailments of his father from time to time and the present complaint is related for the period covering from 2004-05, as his father has undergone treatment during the above operative period of the policies for the ailment of Hypertension resection aneurysm of abdominal aorta, chronic renal failure and end stage renal disease, chronic obstructive airway disease. He was admitted on five different occasions in Simhadri Hospital during the period from 29-09-2004 to 12-10-2005 and different diagnosis namely, Hypertension, CRF, ESRD, COPD and submitted claim for a total sum of Rs.2,20,612.92p (Rupees Two lakhs twenty thousand six hundred and twelve and ninety two piase only ) under the heads of Pharmacy bills, lab charges and other charges including for conducting dialysis and on the opposite parties denial to pass the claim mainly on the ground of pre-existing disease namely, diabetes, the complainant sought to dispel the misconceptions stating that the claim for the treatment undergone is no way connected to the diabetes even if it was said to be pre-existing. As to the issue of pre-existing disease attributed to the father of the complainant, the complainant sought to clarify that while taking the policy at the first instance during 1996-97 under No.8500273 covering period from 22-11-96 to 21-11-97, the father of the complainant was not diabetic and to substantiate his reasoning sought to state that during the course of earlier treatment the Appolo Hospitals in their medical records dated 23-6-1998 mentioned that the patient was suffering from diabetic for seven years which substantiates his assertions as at the time of commencement his policy during 22-11-1996, the patient was not suffering with diabetes which was confirmed by Simhadri Hospital letter dated 27-09-2004, where the father of the complainant undergone treatment in regard to the claim under dispute and the complainant asserted that his father is not suffering from diabetic at the time of taking first policy. He further sought to clarify in terms of clarification letter issued by Simhadri Hospital dated 27-09-2004 that the insurer has reckoned seven years from 1998 instead of 27-09-2004 and contended that he addressed a letter to the insured clarifying the above point at that time. He also sought to dispel the misgiving that similar case was numbered in Forum-II as CD No.59/2005 which was dismissed by the said Forum, which covered the period from 20-11-2002 to 21-11-2003 which does not cover present claim period. In nutshell the complainant sought to rely on his above said version by virtue of affidavit filed by him covering the above aspects duly supported by documents filed vide Ex.A1 to Ex.A31 covering cash receipts diagnostic reports and other correspondence etc. During the course of presentation of arguments, the counsel of opposite party, tried to establish that there is discrepancy in the name of party concerned which was carried out as A.V.Satyanarayana Raju instead of A.V.Suruyanarayana Raju which occurred due to computer mistake and conveyed to the opposite party vide intimation dated 11-4-2006 vide Ex.A22. On the whole basing on the affidavit and documents produced the complainant sought to establish his case on the grounds specified above .

3. The opposite parties sought to deny the claim by virtue of counter and evidence affidavit duly supported by the document under Ex.B1. The opposite party sought to establish his stand that the complainant’s father was having preexisting disease i.e diabetes and the complainant never brought this aspect to their notice in the proposed form filed by him at the commencement of first policy in the year 1996 and suppressed the fact, though the father of the complainant was suffering from the diabetes for the past 15 to 20 years. While explaining their stand, the opposite parties sought to elaborate the meaning of pre-existing disease by saying “pre-existing conditions means any injury which existed prior to the effective date of this insurance. Pre-existence condition also means any sickness or its symptoms which existed prior to the effective date of this insurance whether or not. The insured person had knowledge with symptom was relating to the sickness complications arising from pre-existing disease will be considered part of that pre-existing condition.” As such the complainant’s claim was repudiated, by the opposite party on the grounds elaborated by them though their affidavit.

4. Now the points of issue is:

Whether the complainant’s claim to reimburse the bill amount of Rs.2,20,612.92p (Rupees two lakhs twenty thousand six hundred and twelve and ninety two paisa only) is justified, if so, his assertion that his father was not diabetic at the time of taking first policy from the opposite party during 1996 and the opposite parties denial of the claim on the ground of pre-existing disease is justified as also whether the same issue which dealt with in Forum-II filed by the same complainant is having any relevance to the present case.

5. The Forum after examination of the affidavits, evidence affidavits of both the complainant and opposite party, and duly supported by the documents submitted by both the parties, is of the view that the reasoning given by the complainant stating that the ailments for which treatment was given and claim made there on, for the expenditure incurred, stating that the said ailment has no connectivity to the pre-existing disease of diabetic is found to be sound and reliable as no claim was made in relation to diabetic ailment . Further the Forum is convinced that the reasoning of the complainant at the time of obtaining first policy from the opposite party, the father of the complainant is not affected with diabetic in terms of Applo Hospitals discharge certificate during 2004 which was quoted by Simhadri Hospital and the period of seven years to be reckoned from 27-09-2004. Even if it is so, in terms of the Apex Courts rulings in established cases that the diabetes is a general prevalence among the majority of the individuals in the country and it is of physio biological fluctuations and cannot be considered as disease. As such the contention of the opposite party for denial of the claim on the ground of pre-eisting disease of diabetic cannot be given in strength. Further the issues highlighted by opposite party that the complaint filed with Forum-II said to be on the same issue is not found credence as the claim there in was only for Rs.9,206/- (Rupees nine thousand two hundred and six only) in different context and the treatment then was for covering period from 20-11-2002 to 19-11-2003 whereas the present claim covering the policy period of 2004 and 2005 and as such, has no relevance and bearing in the present case in clear terms. On the whole, after examining respective claim and counter the Forum is of the view that the complainant is justified in making the claim for the expenditure incurred on various heads in connection with his father’s ailment who is covered under the policy held by complainant. The Forum further observed on verification of the records under different exhibits by both the parties, feels that the complainant put to stress in justifying the claim as the opposite party appears to have tried to seek denial under different covers namely (a) pre-existing disease (b) trying to take shelter under the complaint filed in Forum-II. (c) Trying to attribute its own volition regarding the discrepancy of the name of the complainant’s father which sufficiently addressed by the complainant, the Forum felt, in the process of the denial of claim by the opposite party and the corresponding strain and stress undergone it is justified that a reasonable compensation of Rs.15,000/- (Rupees fifteen thousand only) towards mental agony and besides reasonable costs of Rs.5,000/- (Rupees five thousand only) to be awarded to the complainant.

6. In the result, the complaint is allowed directing the opposite party to settle the claim amount of Rs.2,20,612.92p (Rupees two lakhs twenty thousand six hundred and twelve and ninety two paisa only) with 9% interest from the date of complaint i.e from July 2007 within three months from the date of this order, failure of which 15% interest shall be paid till the date of clearance of the claim besides compensation of Rs.15,000/- (Rupees fifteen thousand only) with Rs.5,000/- (Rupees five thousand only) as costs. Advocate fee is fixed at Rs.3,000/- (Rupees three thousand only).

Dictated to the Shorthand Writer, transcribed by him, corrected and pronounced by us in the open Forum on this the 15th Day of December, 2009.

Consumer Complaint No: 504/2007

Between:

Smt. K.Madulatha, W/o Dr.K.V.Nageswara Rao, Hindu, aged 44 years, C/o Kotagiri Nursing Home, NH-5, Kancharapalem, Visakhapatnam. … Complainant

A n d :

1. M/s National Insurance Company Ltd., Divisional Office, 47-13-1 Srinivasa Bhavan, Opp. Indian Oil Corporation, Seethampet Road, Dwarakanagar, Visakhapatnam.

2. M/s Family Health Plant Ltd., Aditya JR Towers, # 02-120/86/9/A&B, 3rd & 4th Floor, Road No.2, Banjara Hills, Hyderabad – 34.

… Opposite Parties

This case is coming on for final hearing on 10-11-2009 in the presence of Sri M/s.Badrinath for the complainant and Sri.A.Venugopala Rao is the 1st opposite party and 2nd opposite party is exparte and having stood over till this date, the Forum delivered the following.

: O R D E R :

(As per the Honourable President on behalf of the Bench)

1. The factual matrix of the dispute between mediclaim policy holder and insurance company is that the complainant had mediclaim policy with the opposite party covering the period from 21-4-2005 to 20-4-2006. While the policy is in subsistence, the complainant suffered Bilateral Trigeminal and Glossopharyngeal Neuralgia on left side and was treated in Malar Hospital, Chennai from 8-07-2005 and got operated on 12-07-2005. She claims to have incurred about Rs.55,000/- (Rupees fifty five thousand only) towards medical treatment, including hospital charges. When she put forward a claim, with the first opposite party insurance company, the second opposite party, an agent of first opposite party to process the mediclaims, repudiated the same on the ground that the ailment is a pre existing disease as per conditions clause No.4.1 of the policy, by sending Ex.A4 letter dated 8-11-205. Undisputedly, the complainant underwent a surgery for Bilateral Trigeminal and Glosspharyngeal Neuralgia on right side on 14-09-2004. She again underwent treatment for that old ailment, on 21-3-2005. However, it is asserted by the complainant that the surgery she underwent on 12-7-2005 for Bilateral Trigeminal and Glosspharyngeal Neuralgia on left side which is a new one and symptoms manifested only prior to the surgery and hence it cannot be treated as a pre-existing disease. She complained that the denial of reimbursement of medical expenses caused mental agony and hardship to her and this denial is nothing but deficiency in service. On this ground, the complainant pleaded for direction to the opposite parties to pay Rs.55,000/- (Rupees fifty thousand only) towards medical expenditure and also another Rs.55,000/- (Rupees fifty five thousand only) as compensation. The opposite parties naturally reiterated their contentions by justifying repudiation on the ground that the ailment is a pre-existing one, which was not disclosed.

2. The complainant in order to substantiate her contention, apart from filing the mediclaim policy and repudiation letter, also filed Discharge Summary, prescriptions and lab reports of Malar Hospital and so also the final bill and they are marked as Ex.A1 to Ex.A20. The opposite party filed the Discharge Summary of earlier surgery and so also the proforma of mediclaim insurance policy and marked as ExB1 to Ex.B4. Both the counsels were heard who reiterated the respective contentions.

3. In view of the contentions put forward by either side, the point that would arise for determination is:

Whether the repudiation of the claim under mediclaim policy by the opposite party amounts to deficiency in service and the complainant is entitled for the reliefs asked for.

4. There is not much dispute that the complainant underwent surgery of Bilateral Trigeminal and Glosspharyngeal on the right side earlier on 14-09-2004 and she even took further treatment for the same ailment on 21-3-2005 . Similarly she underwent surgery on 12-07-2005 in Malar Hospital Chennai for Bilateral Trigeminal and Glosspharyngeal on the left side could not be disputed. The claim relates to the reimbursement of expenditure incurred for the second surgery on 12-7-2005. The condition No.4.1 relating to exclusions would show that the diseased/injuries, which are preexisting when the cover incepts for the first time is excluded. It is the assertion of the complainant that the surgery underwent for the ailment on left side, was a new one and symptoms manifested only in the month of June 2005. Ex.A6 Discharge Summary of Malar Hospital show that the complainant had similar pain on the left side for the last 20 days and as per it she was admitted in the hospital only on 11-7-2005, which would naturally imply that this manifestation of the symptoms was only during the last week of June 2005. So, as rightly contended by the counsel for the complainant. This ailment on the left side was noticed for the first time only in the month of June 2005. Against this evidence, the insurance company could not place any material to prove that this ailment was there even prior to it.

5. Ex.A5 is the letter of the complainant’s husband to the 2nd opposite party bringing these facts of ailment on the right side earlier and the ailment on the left side for the first time in the month of June 2005. He also enclosed a letter dated 4-2-2006 by a neuro surgeon, Sri Satya Vara Prasad of K.G.H, Visakhapatnam, who opined regarding the ailment of the complainant on the left side, that “ Nobody can predict that other side will also get the similar disease. No text book mentioned this type of problem.” This letter of the Neuro Physician was sent to them is not disputed by the opposite parties. Against this evidence of complainant, the opposite party could not place evidence of any other Neuro Physician or quote from any other Medical text that when this ailment of Bilateral Trigeminal and Glosspharyngeal on right side can affect the left side also. Thus, evidently simply because a person was having this neuralgia on the right side, it is not necessary that he should get that ailment on the left side of the body also. Such being the case, the complainant being affected with Bilateral Trigeminal and Glosspharyngeal on the right side, for the first time only in June 2005 and underwent surgery in July 2005 and in such circumstances it cannot be treated as a preexisting disease. As a matter of fact, there is absolutely no material on record to show that the complainant, who took the policy in the month of April 2005, have any knowledge of remote possibility of her getting similar ailment on the left side also, in future, much less in the month of June 2005 itself.

6. Apart from this failure of the opposite party to show that it is a preexisting disease, there is absolutely no material could be placed by the opposite parties to show that the complainant has got knowledge of this disease and wantonly suppressed this fact at the time of taking policy, as the proposal form furnished by the complainant, at the time of taking policy, was not even filed by the opposite party No.1, which alone could have that document. Thus, in our view, the opposite parties failed to establish that the ailment suffered by the complainant, for which he underwent a surgery in July 2005, was a preexisting one and suppressed by her at the time of taking mediclaim policy. Such being the case, the repudiation of the claim is unwarranted and it amounts to deficiency in service on the part of the opposite parties No.1 and 2.

7. Under the policy, the opposite party No.1 is bound to reimburse the complainant Rs.55,000/- (Rupees fifty five thousand only) towards medical expenses for the surgery underwent by her at Channai, under the mediclaim policy.

8. With regard to compensation for mental agony, there cannot be any doubt that in spite of having mediclaim policy, the complainant was denied the benefits of that policy, without justification, would cause any amount of hardship and mental agony to the complainant. In the circumstances of the case, in our view, directing the opposite party to pay Rs.20,000/- (Rupees twenty thousand only) as compensation to be just and proper. Since separate compensation is being awarded for the deprival of the benefits under the policy, the complainant is not entitled for interest on the amount awarded, provided the payment was made within 30 days from today. Any failure on the part of opposite party No.1 to make the payment, it would be liable to pay the amount with interest at 9% from the date of this order to the date of payment on Rs.55,000/- (Rupees fifty five thousand only).

9. Since opposite party No.2 is only an agent of opposite party No.1 appointed for processing insurance claims, the liability will be that of opposite party No.1 only and more over, there is no privity of contract between the complainant and opposite party No.2. Hence the complaint against opposite party No.2 is liable to be dismissed.

10. Accordingly this point is answered.

11. In the result, the complaint is allowed directing the opposite party No.1 to pay Rs.55,000/- (Rupees fifty five thousand only) towards reimbursement of medical expenses to the complainant within 30 days, failing which, it would be liable to pay the same with 9% interest from the date of this order to the date of payment and further directing the opposite party No.1 to pay Rs.20,000/- (Rupees twenty thousand only) towards compensation to the complainant and also costs of Rs.3,000/- (Rupees three thousand only). The complainant against opposite party No.2 is dismissed. Advocate fee is Rs.1,500/- (Rupees one thousand and five hundred only).

Dictated to the Shorthand writer, transcribed by him, corrected and pronounced by us in the open Forum on this the 9th Day of December, 2009.

Consumer Complaint No: 613/2008

Between:

Dantulul Satyanarayanamma W/o Kishnam Raju, Hindu, aged 40 years, residing at MVP colony, Visakhapatnam, Visakhapatnam Dist (AP)-17

… Complainant

A n d :

The Divisional Manager, National Insurance Company Ltd., Rao & Sons Complex, Besides ICICI Bank, Dwaraka Nagar, Visakhapatnam-16.

… Opposite Parties

This case is coming on for final hearing on 10-11-2009 in the presence of Sri G.Parvateeswara Rao for the complainant and of Sri.B.S.S.N.Raju opposite party and having stood over till this date, the Forum delivered the following.

: O R D E R :

(As per the Honourable President on behalf of the Bench)

1. The factual matrix of the dispute between insured and Insurance company as to the settlement of claim is the complainant undisputedly insured 50 sheep for a total sum of Rs.75,000/- (Rupees seventy five thousand only ) at the rate of Rs.1,500/- (Rupees one thousand and five hundred only), each sheep for a period of one year from 4-10-2005 to 3-10-2006 and obtained sheep and got insurance policy bearing No.550700/47/05/9400000064. Unfortunately out of 50 sheep so insured, 19 sheep died, the fact of which has been admittedly informed to the insurance company and requested for settlement of claim. Ex.A1 is the receipt for payment of premium on policy. On such intimation, the insurance company sent Ex.A2 Vouchers to be signed by the complainant insured in full and final settlement of the claim of the 19 sheep. However, the complainant did not agree for valuation of the sheep differently at the rate of Rs.700/- (Rupees seven hundred only) Rs.800/- (Rupees eight hundred only) and Rs.900/- (Rupees nine hundred only) As can be seen from the Ex.A2 loss vouchers, the opposite party asserts that it is the market value of the sheep which is liable to be paid as per the terms and conditions of the policy, but not the entire insured amount. Having not been satisfied with this response, though the claim has not been repudiated, the complainant approached this Forum seeking payment of full policy amount namely Rs.1,500/- (Rupees one thousand and five hundred only) per sheep totaling Rs.28,500/- (Rupees twenty eight thousand and five hundred only) with interest at 24% and also termed it as deficiency in service sought for compensation of 20,000/- (Rupees twenty thousand only).

2. The opposite party Insurance Company justified it valuations and asserted that it need not pay the total value in which each sheep was insured, and asserted that the valuation was made as per norms fixed under the scheme as per terms and conditions of the policy. It also took objection that there is no repudiation at all on its part and hence it cannot be termed it as deficiency in service and naturally opposing the complainant.

3. At the time of enquiry, the complainant, apart from filing her affidavit, marked Ex.A1 to Ex.A5, where as the opposite party filed affidavits of its officials and marked the proforma of the policy as Ex.B1. Both the counsels reiterated their respective contentions.

4. In view of the respective contentions, the point that would arise for determination is :

Whether there is any deficiency in service on the part of the opposite party and the complainant is entitled for the relief asked for.

5. The fact that the sheep died of Acute Tympanites disease and Postmortem was also conducted by the Veterinary Assistant Surgeon is not much in dispute. Ex.A3 evidently relating to claim form of one sheep would show the valuation of the sheep at Rs.1,600/-(Rupees one thousand and six hundred only) which has certified by the Veterinary Assistant Surgeon. In fact the liability to pay the insurance amount by the company is not disputed. The dispute is with regard to the quantum of amount payable by the Insurance company.

6. No doubt, Ex.B1 proforma of the sheep and goat insurance policy would show that “company will pay or make good to the insured after receipt proof of death satisfactory to the company, the loss which the insured shall suffer to death of such animal not exceeding the sum insured in respect thereof as stated in the schedule hereto or its market value at the time of loss whichever is less” (emphasis supplied by us). Evidently the Insurance company proposed to settle the claim on the alleged market value of the sheep on its date of death. Except taking a plea that it is followed the norms in fixing the market value of the insured animal on the date of its death, the opposite party did not explain the basis for its valuation of the animals at the rate varying Rs.700 (Rupees seven hundred only) to Rs.900/- (Rupees nine hundred only). On the other hand, the valuation furnished by the complainant in the claim form at Rs.1,600/- (Rupees one thousand and six hundred only) per sheep, was certified by the Veterinary Assistant Surgeon. The opposite party could not come up with any material to contradict the value, as certified by the Veterinary Assistant Surgeon. Thus there is no justification for the opposite party to offer to pay lesser amount under the guise of its market value than insured value of the sheep. Though there is no repudiation of claim as such, as vehemently urged by the counsel for the complainant, in our view fixing the market value arbitrarily, ignoring the value certified by the Veterinary Assistant Surgeon and offering to pay the same by furnishing vouchers to a lesser amount itself amounted to deficiency in service. Hence, in our view, the opposite party is liable to pay the value of each sheep was at Rs.1,500/- (Rupees one thousand and five hundred only) insured, as it is a case of a death totalling Rs.28,500/- (Rupees twenty eight thousand and five hundred only). Since it is shown to be unjustified denial to pay the policy amount, the complainant is entitled for interest at 9% on the above said amount from 15-5-2006 the date of legal notice to the date of payment. Considering the circumstances of the case, in our view, directing the payment of Rs.2,500/- (Rupees two thousand and five hundred only) as compensation would be just and proper.

7. In the result, the complaint is allowed directing the opposite party to pay an amount of Rs.28,500/- (Rupees twenty eight thousand and five hundred only) with interest at 9% from 15-5-2006 to the date of payment and also pay a compensation of Rs.2,500/- (Rupees two thousand and five hundred only) besides payment of costs of Rs.1,500/- (Rupees one thousand and five hundred only) to the complainant. Advocate fee is Rs.1,000/- (Rupees one thousand only).

Dictated to the Shorthand writer, transcribed by him, corrected and pronounced by us in the open Forum on this the 7th Day of December, 2009.

consumer case(CC) No. CC/144/2007

Prameela,W/O.Sureshan,Teacher
...........Appellant(s)

Vs.

National Insurance Company Ltd,P.B.No.40
...........Respondent(s)


BEFORE:
1. GOPALAN.K
2. JESSY.M.D
3. PREETHAKUMARI.K.P


Complainant(s)/Appellant(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):

ORDER

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan: President

Smt.K.P.Preethakumari: Member

Smt.M.D.Jessy : Member



Dated this, the 23rd day of December 2009



CC/144/2007

Prameela, Teacher,

Athira,Kadamboor,

P.O.Edakkad.

(Rep. by Adv.N.Gangadharan) : Complainant

National Insurance company Ltd.,

P.B.No.40,

Opp.Saphire Tourist Home,

Bank Road, Kannur.

(Rep. by Adv.V.K.Rajeev) : Opposite party



O R D E R

Sri.K.Gopalan, President



This is a complaint filed under section12 of consumer protection Act for an order directing the opposite party to pay a total sum of Rs.95, 000/- as compensation and cost.

The brief facts of the case of the complainant are as follows: the vehicle of the complainant KL.13 M 9046 Honda Activa insured with opposite party. Complainant has also taken coverage for the personal damages for owner-cum-driver. The vehicle was met with an accident on 19.4.07 by which complainant sustained injuries. She was then admitted to Thalasery Mission Hospital and treated there till 21.4.07. The complainant remained in P.O.P. caste for 42 days. Due to injuries complainant underwent great pain and sufferings and also met expenses. After discharge complainant was under bed rest for another 2 months by which she also lost her salary. Opposite party denied the compensation despite repeated demands and finally sent lawyer notice on23.5.07. Even after the notice opposite party did not pay any compensation. This is deficiency in service on the part of opposite party. Due to the accident she has got permanent disability to the particular limb. Since opposite party’s attitude is arrogant she has no other way except approaching the Forum. Hence this complaint.

Pursuant to the notice opposite party entered appearance and filed version contending as follows: Opposite party admits the insurance of the two wheeler package policy to the complainant but deny, the liability to pay the compensation since the complainant had not intimated opposite party regarding the accident and had not submitted the claim form along with the documents relating to the accident including the police records which will show that the complainant herself was the owner-driver of the insured vehicle at the time of the alleged accident. As per the policy condition No.1 the complainant is bound to give in writing to the company upon the occurrence of any accident and she shall give all the information and assistance to the insurer. Since she has committed failure to comply this mandatory policy condition she is not entitled to claim for compensation as per policy.

On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite party?

2. Whether the complainant is entitled for the remedy as prayed in the complaint?

3. Relief and cost.

The evidence consists of the oral testimony of PW1, PW2, DW1, Ext.A1 to A15, Ext.B1 & B2.

Issues 1 to 3

Admittedly the complainant is the insured with the opposite party, who had issued an insurance policy covering the risk of the personal accident to the owner driver to a limit of Rs.1,50,000/-. The first point to be considered is whether the complainant had sustained any injury in the alleged accident, while she was driving the above said vehicle. The case of the complainant is that she had sustained injuries in an accident on 19.4.07 and admitted to Thalasery Mission Hospital. Ext.A1 certificate of registration and Ext.A2 Insurance certificate proves that complainant Mrs.Premeela is the registered owner of the insured vehicle. Ex.tA3 true copy of the driving licence compared and verified with the original records that she is having valid driving licence during the period of alleged accident. Ext.A4 accident register-cum-wound certificate reveals that she was admitted in the Thalasery Mission Hospital on 19.4.07 and discharged on 21.4.07. Ext.A5 (1) is the discharge summary issued by the above said Hospital. Ext.A1 to A4 reveals that complainant was the registered owner of the insured vehicle and possessing valid licence. There is no evidence to show that any one else sustained injury by this accident on the same day. The evidence adduced by way of chief affidavit also shows that she was admitted Hospital as is seen in Discharge summary. In the ordinary course there is nothing wrong to believe that she was taken hospital due to the accident and she was driving the vehicle at the time of accident. Since there was no other person admitted in Hospital due to that accident, it can be assumed that she had been alone driving the vehicle. Complainant’s case is that she had sustained very grievous injury with multiple fractures left humerus and plaster of Paris was affixed for 42 days. What is the main case of the opposite party? Opposite party has no case that such an accident had not been taken place at all though there is mere denial. The opposite party’s case on relevant point is that the complainant had not intimated regarding the accident and had not submitted the claim form along with the documents. Ext.A4 lawyer notice specifically stated that she has sustained injury on 19.4.07 while using the said vehicle and thereby she was admitted to Thalassry Mission hospital. All these facts show that the complainant sustained injuries in the accident while she was driving the vehicle insured under opposite party.

Now the question arose whether the disability if any caused to her makes her entitled to get compensation as per the cover in the insurance policy.

The complainant was first taken to Hospital on 19.4.07 As per Ext.A4 she was discharged on 21.4.07. It shows she was hospitalized for a period of three days for the first injury. Condition on discharge was stable. Details of injuries clinical features noted no external injuries. Complainant’s case is that she had sustained very grievous injury with multiple fractures left humorous and plaster of Paris was affected for 42 days. The doctor who treated the complainant adduced evidence as PW2. He deposed that she was examined by him admitted in the above said Hospital on 19.4.07 and discharged her on 21.4.07. He further deposed thus “she was again admitted due to another fall on 11.7.07 and she had dislocation of right elbow due to second fall. This was treated by plaster on 26.3.08. I examined the patient again and issued disability certificate Ext.A6”. However, he has made it clear that the second injury had not been considered in issuing the disability certificate Ext.A6 issued by him. He has further deposed that as per Ext.A6 the patient is not having total disability. He has also explained that Disability may be permanent or temporary and it may also be total or partial. According to the explanation given by the witness PW2 doctor Ext.A6 disability certificate shows that the complainant is having 15% partial permanent disability and not 100% disability.

As per the insurance policy and the scale of compensation provided under section 111 of the personal accident cover as per the insurance policy she is not entitled for compensation for the disability of 15% sustained to her. Opposite party’s contention is that the compensation shall be payable under only one of the items (1) to (IV) of the scale of bodily injury given under section 111 in respect of the owner-driver. The counsel for the opposite party vehemently argued that as per the insurance policy and its terms and conditions complainant is not entitled for the compensation since she has sustained only 15% permanent disability and not 100% permanent total disability.

The learned counsel for the complaint lodged a vehement argument raising an important point whether the disability is required to be 100% for claiming disability benefit as contended by the opposite party. According to him 100% disability is not a condition precedent in policy attracting accident benefit clause. He has also sited a case Prabir Kumar Nath Vs. Life Insurance Corporation of India and others (2004 ACJ 1582.

It is pertinent to note that the facts of the above case have nothing to do with the present case in hand. The case of the Prabir Kuamr Nath was a most unfortunate case where the complainant who had been a bus driver became permanently disabled by reason of amputation of right leg above knee consequent to an accident. It has to be taken in to account that the complaint therein lost a vital limb totally making him permanently disabled. The driver of the bus never in future will be able to drive the bus for his livelihood. He has lost his job as a driver forever, on account of the amputation of his leg. His incapability to do the job of driving as a driver made him permanently incapable of earning any livelihood out of driving a vehicle. The permanent liability suffered by the driver is thus total and permanent as far as his livelihood is concerned. Considering this aspect it was held that the words “ a total liability” used in the policy is to be liberally interpreted to mean total and permanent disability of a vital organ or limb which seriously impairs important human functions such as movement, vision etc. The facts of the Prabir Kuamr Nath case are in no way similar to the facts of the case in hand. Hence, the decision no way applicable to this case.

The insurance company undertakes to pay compensation as per the scale provided under personal accident cover for owner-driver. The scale consist of 4 items as given

below.

Nature of Injury


Compensation

(i).Death


100%

(ii)Loss of two limbs or sight of two eyes or one limb and sight of one eye

100%
(iii)Loss of one limb or sight of one eye
50%

(iv) permanent total disablement from injuries other than named above
100%

As per terms the compensation shall be payable under only one of the items (1) to (iv) above in respect of the owner-driver arising out of any accident. Even if Ext.A8 disability certificate issued by a Dr.George the permanent disability is only 15%. The case of the complaint does not fall in any one of the items in the above scale. Hence we are of opinion that there is no deficiency in service on the part of Opposite Party and complainant is not entitled for the compensation as per the terms and conditions of insurance policy. The issues 1 to 3 are found against the complainant.

In the result, the complaint is dismissed. No order as to cost.

consumer case(CC) No. 96/2006

Premdeep Haridas
...........Appellant(s)

Vs.

K.Muraleedharan

The General Manager,
...........Respondent(s)


BEFORE:
1. Smt.Bhanumathi.A.K
2. Smt.Preetha.G.Nair
3. Smt.Seena.H


Complainant(s)/Appellant(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


OppositeParty/Respondent(s):


ORDER


DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

Civil Station, Palakkad – 678001, Kerala


Dated this the 31st day of December, 2009.


Present: Smt.Seena.H, President

Smt.Preetha.G.Nair, Member

Smt.Bhanumathi.A.K, Member


C.C.No.96/2006

Premdeep Haridas,

S/o.Haridas,

Prathyusha,

Sreekrishnapuram, Palakkad. - Complainant

(Adv. U.Suresh and K.Dhananjayan)

Vs

1. K. Muraleedharan,

Administrative Officer,

The National Insurance Co Ltd,

East Fort Complex, Fort Maidan,

Palakkad.

(Adv. A R V Sankar)


2. The General Manager,

National Insurance Co Ltd,

Regd Office, 3. Middleton Street,

Post Box No.9229, Kolkata,

Pin – 700071. - Opposite parties

(Adv. A R V Sankar)


O R D E R

By Smt.H.Seena, President
Complainant is the R C owner of KL9/J 0393 Eicher G/V Truck. He was using the vehicle for his livelihood. Vehicle met with an accident on 17/09/2004 at 3.30 A M at Palladam. At the time of accident the vehicle was insured with 2nd opposite party. Policy covers full cover protection and includes 3rd party risk and own damages. The fact was informed to Palladam Police Station and crime was registered. The accident was informed to the 1st opposite party insurance company. Surveyor after examining the vehicle has submitted report noting defects. Totally

complainant has spent Rs.1,25,000/- to repair the truck and to make it reusable. After obtaining the surveyor's report complainant consulted the 1st opposite party

to reimburse his claim. But the 1st opposite party had not even cared to give him a

claim form. According to the complainant, the act of the opposite parties amounts to clear deficiency of service. Complainant claims an amount of Rs.1,25,000/- being the repair charges together with Rs.25,000/- as compensation for mental agony.


2. Opposite parties filed version. According to the opposite parties, complaint is defective as company is not a party in the petition. Further no claim intimation is given to the opposite parties and the alleged accident is also not reported. When a claim is reported, it is the option of the opposite party to repair the vehicle at the risks of the company or permit the insured to repair it through authorised workshop. In this case nothing has been taken place. Complainant has not approached the National Insurance Company for any relief. Further as the vehicle was hypothecated to Canara Bank, Sulthanpet, Palakkad, it is the Bank who is entitled to make a claim. Again the petitioner has reported a claim for the same vehicle on 01/05/2006. Opposite party has settled the claim and amount was paid to the financier Canara Bank, Palakkad. According to the opposite party, complainant has not mentioned about the present claim any where in the earlier claim form and the intention of the complainant is to grab money through illegal source from the same Insurance Company. There is no deficiency of service on the part of the opposite parties.

3. The matter was remitted back to the forum by the Hon'ble State Commission. As per the order, forum is directed to permit the parties to adduce evidence and dispose of the matter.

4. Opposite parties filed an IA for cross examination of the complainant. Application was allowed. Even though sufficient opportunity was given complainant was not made available for cross examination.

5. Issues for consideration;

1.

Whether there is any deficiency in service on the part of opposite parties?
2.

If so, what is the relief and cost?
6. Issues 1 & 2:

Specific case of the complainant is that the accident occurred during the period of policy and when the complainant approached 1st opposite party, 1st opposite party did not issue the claim form for claiming the insurance amount.


7. 1st opposite party has argued in the additional argument notes filed after remitting of the case, that no claim intimation was given to the company by the complainant before filing the complaint. Further it was contented by opposite party that the complainant has not produced the survey report as well as the translated copy of the FIR.


8. Heard both parties and perused relevant documents on record. It is true that the complainant has not produced the translated copy of FIR and survey report. But opposite parties has not raised objection regarding this aspect earlier. As per the order of the Hon'ble State Commission, the forum has permitted the parties to adduce evidence if any. 1st opposite party has filed an interim application seeking permission to cross examine the complainant which was allowed. Even though sufficient opportunity was given, complainant was not made available for cross examination in order to ascertain true facts. In these circumstances, the evidence tendered by the complainant by way of affidavit cannot be considered at all.


9. Moreover the same company has settled a claim arising out of an accident happened on 01/05/06 with respect to the same vehicle. In the claim form submitted by the complainant to the company, nothing has been mentioned about the accident which took place on 17/09/04 even though there was a specific column for answering that point.


10. In view of the above stated facts and circumstances of the case, we are of the view that complainant miserably failed to prove a case in his favour.

11. In the result, complaint dismissed.
12. Pronounced in the open court on this the 31st day of December, 2009

consumer case(CC) No. CC/07/393

JOY ISSAC
...........Appellant(s)

Vs.

M/S.NATIONAL INSURANCE COMPANY LTD.

M/S. MEDI ASSIST INDIA PVT. LTD,
...........Respondent(s)
BEFORE:
1. A.RAJESH
2. C.K.LEKHAMMA
3. PROF:PAUL GOMEZ

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

OppositeParty/Respondent(s):

OppositeParty/Respondent(s):

O R D E R
Paul Gomez, Member.

1. Put shortly, the facts leading to this complaint are :-

The complainant is a family mediclaim policy holder of the 1st opposite party with policy No. 570802/48/05/8500003449. His son George C. Joy has undergone treatment in M.O.S.C. Medical College, Kolencherry as inpatient from 22-09-06 to 25-09-06. Rs. 11,000/- was spent towards hospital charges. When an insurance claim was preferred, it was repudiated by the 2nd opposite party on the ground that there was no active treatment requiring hospitalisation. The repudiation is not well founded as the patient was admitted as inpatient only on the advice of the doctor who treated him.

2. The above set of facts driven the complainant to the Forum urging us to direct the opposite parties to pay the claim amount of Rs. 11,000/- along with interest at the rate of 12% p.a. from the date of claim till realisation in addition to compensation and cost.

3. Separate versions have been filed by the opposite parties reiterating their respective stands taken in repudiation of the claim.

The 1st opposite party admits that the patient had undergone inpatient treatment during the period mentioned in the claim. But according to them, the repudiation was made after scrutinising the case by a team of medical experts under the 2nd opposite party, the third party administrations appointed by the Insurance Regulatory and Development Authority. The patient spent some days in hospital only for cardiac and renal evaluation and MVP. As per the conditions of mediclaim policy, only hospitalisation expenses which are reasonably and necessarily incurred is covered. The amount of Rs. 11,392/- claimed is spent for investigative procedure, except a sum of Rs. 28/- for drugs. Thus, the repudiation of the claim was made for valid grounds.

4. The following facts are highlighted in the version submitted by the 2nd opposite party, the third party administrators. The patient was admitted only for evaluation of heart and kidney function. There is no positive diagnosis in the discharge summary except mentioning young hypertension under evaluation and MVP. The indoor case papers/earlier treatment details were not submitted in spite of repeated requests. The claim for Rs. 11,392/- is mainly due to investigative procedure and there is no active treatment requiring hospitalization. The investigation do not warrant hospitalisation. Therefore, their version ends with the plea that the repudiation is done for valid reasons. Hence both the opposite parties prays dismissal of the complaint with costs.

5. Both the complainant and opposite parties were represented by learned counsel. The complainant was examined as PW1. Exts. A1 to A4 were filed by the complainant. Witness for opposite parties were examined as DW1 and DW2. Ext. B1 was marked on their side. On closure of evidence, counsel filed argument notes and subsequently they were heard.

6. The points culled out for settlement :-

1.

Whether hospitalisation of the patient was inevitable in the facts

and circumstances of the case?
2.

Whether there was deficiency in service on the part of the

opposite parties in repudiating the insurance claim?
3.
What are the consequential reliefs?

7. Point No. (a) :- The subject matter under dispute is the insurance claim submitted by the complainant before the opposite parties which has been repudiated by them on the ground that hospitalisation of the adolescent patient was not warranted as he spent the period of hospitalisation only for investigative purposes and there was no active line of treatment. They have produced Ext. B1 discharge summary to show that there was only various kinds of investigations under gone by the patient and there was nothing that has substantially taken place except administration of certain medicines worth Rs. 28/-.


8. On the face of it, it seems to be an attractive argument putforth by the opposite parties, we would ultimately reach the conclusion that the contention is not sustainable, given the peculiar circumstances of the case. The patient who was to be admitted in the hospital is an adolescent of 19 years. He was admitted in the hospital not for any common disease of ordinary concern like fever or headache but for hypertension which is an uncommon and extraordinary physical condition in his young age, the anxiety, mental tension and stress of his parents is quite conceivable. At that critical juncture one would not be patient enough to wait for time and evaluate the physical condition slowly by preferring to be an out patient. Generally, parents will be anxious to get immediate relief to his son and for that they would go to any extent. The gravity of situation has been underscored by the admission of the young patient in the hospital by the physician. The doctor who treated him was examined by the opposite parties. His deposition emphasised the necessity of the patient staying in the hospital at least to undergo one particular test. He has also disclosed that his blood pressure condition was monitored in the hospital every 2 hours. This was a case of primary blood pressure, a condition which cannot be co-related to any other diseases. That is why, he was subjected to a thorough investigation and check-ups. Ext. B1 would show that a plethora of medical investigation of various organs were done by the hospital. One cannot think that the complainant has subjected his child to undergo the trauma of medical investigation simply because of the comfortable feeling that one day he would be able to get the reimbursement by the 1st opposite party. In this context, it has to be reiterated that the ultimate decision must be that of the treating doctor as to the mode and modalities of treatment of his patient. Nobody else can sit in judgment over the decision of the competent medical practitioner. If his decision is sought to be re-opened by persons who are not well versed in that particular branch of knowledge it would be the case of blind leading the blind as is now evident from the deposition of DW2 in this complaint. Therefore, the only conclusion to which we would naturally lead ourselves is to the obvious position that hospitalisation was well advised by the treating doctor and investigations undergone by him were warranted by the peculiarity of his disease, given the tender age of the patient.




9. Point No. (b) :- Now the only question left open to be addressed by us is as to whether there is any evidence to show the amount of claim of Rs. 11,000/-. When the same question was raised at the bar the learned counsel for the complainant has answered that the opposite parties have not seriously challenged the quantum of claim. We also think that this is true. As the opposite parties have not seriously disputed the quantum of claim, we are left with no option but to uphold the amount of claim putforth by the complainant.




10. Point No. (c) :-The complainant is the father of the child who was to undergo all kinds of medical investigation to track the reasons for fluctuation in the blood pressure. Naturally after, the patient was discharged from hospital, he would expect that the insurance company would give a kind and compassionate approach to his claim. Unfortunately, the conduct of the opposite parties fell short of that legitimate expectation. It may be kept in view that time and again the Hon'ble Apex Court has exhorted the public sector insurance companies to rise above the narrow considerations of commercialism and reminded them that they are state under Act 12 of the constitution of India. Often times these words fall on deaf years. The present complaint also emanate from such an uncharitable attitude. Therefore, we are awarding a compensation of Rs. 10,000/- in addition to the cost of hospital expenses as mentioned above. As it was a litigation thrust upon the unwilling complainant, the 1st opposite party shall pay litigation cost of Rs. 1,000/-.




11. In the result, the complaint is allowed as follows:-

i) The 1st opposite party shall pay to the complainant Rs. 11,000/- (Rupees Eleven thousand only) being the claim amount.

ii) The 1st opposite party shall pay Rs. 10,000/- (Rupees Ten thousand only) as compensation for mental agony.

iii) The 1st opposite party shall pay Rs. 1,000/- as cost of the proceedings.

C.C. No. 08/2006

Smt. Selvarani,

W/o. Senthil,

1/78c, Thiruvalluvar Nagar,

Nallipalayam Post,
Namakkal Taluk & District. .. Complainant.

.Vs.
M/s. National Insurance Co.Ltd.,

Kangayam Branch,

by its Manager,

58, Rajaji Street, Kangayam,

Erode District. ..Opposite Party.





This complaint coming on for final hearing before us on 10.12.2009 in the presence of Thiru K. Jayaprakash, Advocate for Complainant and of Thiru K. Pandiyan, Advocate for the opposite party and after hearing of both sides and having stood over till this day for consideration, this Forum passed the following order:
ORDER

This complaint is filed under Section 12 of the Consumer Protection Act.
The crux of the complaint is:-

The complainant is the owner of Tata Sumo vehicle bearing Reg.No.TN-28-L-1306. The said vehicle has been registered under the classification of LMV tourist vehicle. The said vehicle is insured with the opposite party vide policy bearing No.651402/31/04/6303880 for the period covering 27.01.2005 to 20.01.2006. The said vehicle met with an accident on 27.05.2005 at about 6-30 hours near Nalla Thaneer Thottam as a vehicle bearing Reg.No. TN-28-H-5793 dashed against the same and the complainant’s vehicle was damaged extensively. The Aravakurichi police has registered a criminal case under Section 279,337 IPC in Cr.No.148/2005. The opposite party undertook spot survey and on completion of the same the vehicle was towed down to M/s. Automative Centre, Namakkal for carrying out repairs. On 02.06.2005 an official of the opposite party along with one Surveyor Mr. Regupathy met the complainant and insisted the complainant to receive Rs.2,00,000/- on total loss basis, which was refused by the complainant and they left the place informing him that they would consult their higher officials and inform him. Nothing was heard from the opposite party hence the complainant issued lawyer notice on 23.06.2005 and the same was received by the opposite party for which they never bothered to reply. The complainant’s vehicle was repaired at the Automative Centre and incurred a sum of Rs.81,533/-. The opposite party as the insurer of the vehicle is bound to settle the claim. The complainant alleges deficiency in service on the part of the opposite party and has lodged this claim for compensation, cost etc.

2. The contention of the opposite party in the written version is:- The opposite party contends that the complainant’s vehicle was authorized to carry only 6 pesons (including driver), but there was 8 members were traveling in the said vehicle, which is violation of mandatory provisions contemplated under policy disentitles the complainant from claiming any Redressal. The Surveyor appointed by the opposite party has assessed the repairs to be carried out at Rs.57,860/-. There is no dispute and there is no deficiency in service on their part and hence the complaint has to be dismissed with cost.

3. The complainant has filed proof affidavit along with 7 documents and the same has been marked as Ex.A1 to Ex.A7. The opposite party has filed proof affidavit along with 4 documents and the same has been marked as Ex.B1 to Ex.B4.

4. The point for consideration is:-

1. Whether there is any deficiency in service on the part of the opposite party and if so to what relief the complainant is entitled for?

5. POINT:- The complainant is the owner of Tata Sumo vehicle bearing Reg.No.TN-28-L-1306. The complainant has produced and placed before us the RC of the vehicle and permit as Ex.A1 and Ex.A2. The said vehicle has been registered under the classification of LMV tourist vehicle. The said vehicle is insured with the opposite party vide policy bearing No.651402/31/04/6303880 for the period covering 21.01.2005 to 20.01.2006. The copy of the insurance policy has been produced and placed before us as Ex.A3. The said vehicle met with an accident on 27.05.2005 at about 6.30 hours near Nalla Thaneer Thottam as a vehicle bearing Reg.No.TN-28-H-5793 dashed against the same and the complainant’s vehicle was damaged extensively. The Aravakurichi police has registered a criminal case under Section 279,337 IPC in Cr.No.148/2005. The copy of the FIR has been produced and placed before us as Ex.A5. The driver of the complainant’s vehicle who drove the vehicle at the time of accident was having valid driving license. The copy of driving license has been produced and placed before us as Ex.A4 by the complainant. The opposite party undertook spot survey and on completion of the same the vehicle was towed down to M/s. Automative Centre, Namakkal for carrying out repairs. On 02.06.2005 an official of the opposite party along with one Surveyor Mr. Regupathy met the complainant and insisted the complainant to receive Rs.2,00,000/- on total loss basis, which was refused by the complainant and they left the place informing him that they would consult their higher officials and inform him. Nothing was heard from the opposite party hence the complainant issued lawyer notice on 23.06.2005 and the same was received by the opposite party for which they never bothered to reply. The copy of the lawyer notice has been produced and placed before us as Ex.A6 by the complainant. The said vehicle has been insured with the opposite party and the accident has taken place within the period of insurance coverage. The complainant has convincingly established the ownership of the vehicle, competency of the driver to drive the said vehicle, the occurrence of the accident etc.through documentary evidences. The opposite party has contended that the complainant’s vehicle was authorized to carry only 6 person (including driver), but there was 8 members were traveling in the said vehicle, which is violation of mandatory provisions contemplated under policy disentitles the complainant from claiming any Redressal. It can be evidenced from Ex.A5 and Ex.B3 that around 8 persons (including driver) were traveling in the said vehicle at the time of the accident. But, at the same time the opposite party has not produced and placed before us any documentary evidence to show that the accident was result of the said reason. The opposite party ought to have produced and placed before us the M.V. Inspector Report which reveals the cause of accident. There is no iota of evidence before us to establish that the accident was due to the reason that 8 persons were traveling in the complainant’s vehicle at the time of the accident. Being so this Forum is unable to accept this contention of the opposite party. The complainant’s vehicle has stated that she had repaired her vehicle at the Automotive Centre and
incurred a sum of Rs.81,533/-. The bills has been produced and placed before us as Ex.A7 by the Complainant. On the other hand the Surveyor appointed by the opposite party has assessed the repairs to be carried out at Rs.57,860/-. The said report along with photographs has been produced and placed before us as Ex.B3. The complainant has not disputed the Ex.B3 nor had she chosen to cross-examine the Surveyor.

The Hon’ble National Commission in the case of

Champalal

Vs.

Oriental Insurance Company

reported in III(2008) CPJ 93 (NC) has held that as per the law it is the report of the surveyor which has to be given due weightage and the District Forum could not go into the question of quantum dispute as it will involve a detailed investigation, which could not be held in the summary proceedings under the provisions of the C.P.Act,1986.

6. Hence we have no hesitation to accept the Ex.B3. The complainant is entitled to receive Rs.57,860/- as claim from the opposite party. The opposite party ought to have settled the claim but the opposite party has maintained stoic silence even after receiving the complainant’s notice. The opposite party ought to have settled the claim or repudiated the claim but had kept quiet and has taken the stand only after the present complaint is lodged. In this circumstances we have no hesitation to come to the conclusion that non-settlement of the claim by the opposite party as deficiency in service. The act of the opposite party would have definitely suffered mental agony, pain and anguish besides financial hardship and as such she is entitled to get compensation on this account and the opposite party are liable to compensate her.

7. In the result, the complaint is allowed and the opposite party is directed to pay Rs.57,860/- to the complainant along with interest at the rate of 9% per annum from the date of this complaint till the date of actual payment. Further the opposite party is directed to pay a sum of Rs.5,000/- to the complainant as compensation for mental agony suffered by him and Rs.3,000/- towards the cost of this complaint. Time for payment one month from the date of this order.

Pronounced by us in Open Forum, this the 17th day of December,2009.

C.C. No. 13/2007

Thiru A. Ilayappan,

S/o. Athiyappa Gounder,

1/80A, Kulathupalayam Village,

Irayamangalam Post,

Tiruchengode Taluk,

Namakkal District. .. Complainant.

.Vs.

National Insurance Co. Ltd.,

by its Regional Manager,

Paramathi Main Road,

Namakkal Taluk & District. ..Opposite Party.





This complaint coming on for final hearing before us on 26.11.2009 in the presence of Thiru A. Gunasekaran, Advocate for Complainant and of Thiru K. Pandiyan, Advocate for the opposite party and after hearing of both sides and having stood over till this day for consideration, this Forum passed the following order:
ORDER

This complaint is filed under Section 12 of the Consumer Protection Act.
The crux of the complaint is:-

The complainant is the owner of the tipper lorry bearing Reg. No.TN-34-D-2007. The said vehicle was insured with the opposite party vide policy bearing No.651300-3104-6300006883 for the period covering 23.03.2005 to 22.03.2006. On 12.08.2005 the vehicle while carrying sand Tiruchengode to Thondi Karadu, a cyclist suddenly crossed the road, the driver of the vehicle turned the vehicle to avoid hitting at the cyclist dashed against the wall in the left side. The vehicle suffered extensive damages. The opposite party was inspected by the opposite party and claim form was issued. On the instructions of the opposite party the complainant took the vehicle to M/s. Palaniandavar Motor Works for carrying out repairs. The complainant incurred Rs.2,53,285/- towards repairing the vehicle. The opposite party submitted the claim form with the opposite party along with all required documents. The opposite parties maintain stoic silence for one year from 16.08.2005 to 19.06.2006 and later on 19.06.2006 returned all the papers along with a letter dated 03.03.2006 repudiating the claim. The complainant on 21.08.2006 issued lawyer notice, but in vain. The complainant alleges deficiency in service on the part of the opposite party and has lodged this complaint to direct the opposite party to settle the claim with interest, compensation and cost.

2. The contention of the opposite parties in their written version is:- The opposite party strongly contends that manner of accident as narrated by the complainant was found false as per the spot survey, final survey; and re-inspection by the officials of the company on various dates as well as perusal of the vehicular records and report of the surveyors. Photographs which were taken on the spot clearly shows that the vehicle has not capsized as stated by the complainant. The opposite party further contends that as per Section I Sub-Clause 2 of the insurance policy they are not liable to make any payment. The opposite party contends that accident is not due to external means and only due mechanical and other defects which are excluded from the purview of the policy. Hence the claim was repudiated by the opposite party. Hence the complaint has to be dismissed.

3. The complainant to prove his case has filed proof affidavit along with 9 documents and the same has been marked as Ex.A1 to Ex.A9. The opposite party has filed proof affidavit along with 3 documents and the same has been marked as Ex.B1 and Ex.B3.

4. The point for consideration is:-

1. Whether there is any deficiency in service on the part of the opposite party if so to what relief the complainant is entitled for?



5. POINT:- The complainant is the owner of the tipper lorry bearing Reg.No.TN-34-D-2007. The copy of RC book has been produced and placed before us as Ex.A1 by the complainant. The said vehicle was insured with the opposite party vide policy bearing No.651300-3104-6300006883 for the period covering 23.03.2005 to 22.03.2006. The receipt for payment of premium has been produced and placed before us as Ex.A5 by the complainant. On 12.08.2005 the said vehicle while carrying sand Tiruchengode to Thondi Karadu, a cyclist suddenly crossed the road, the driver of the vehicle turned the vehicle to avoid hitting at the cyclist dashed against the wall in the left side. The vehicle suffered extensive damages. The opposite party was inspected by the opposite party and claim form was issued. On the instructions of the opposite party the complainant took the vehicle to M /s. Palaniandavar Motor Works for carrying out repairs. The complainant incurred Rs.2,53,285/- towards repairing the vehicle. The opposite party submitted the claim form with the opposite party along with all required documents. The opposite party has repudiated the claim on 03.03.2006 and this was communicated to the complainant only along with letter dated 19.06.2003. The opposite party strongly contended that manner of accident as narrated by the complainant was found false as per the spot survey, final survey and re-inspection by the officials of the company on various dates as well as perusal of the vehicular records and report of the surveyors. But the opposite party has not and produced and placed before us any such report for our perusal for substantiating that their version. The opposite party further contends that as per Section I Sub-Clause 2 of the insurance policy they are not liable to make any payment as the accident is not due to external means and only due mechanical and other defects which are excluded from the purview of the policy. The opposite party has to prove and establish with documentary evidences as how they came to the conclusion and the accident is only due to mechanical defect. No iota of evidence has been placed before us. The opposite party ought to have placed before us the various reports upon which they have repudiated the claim. But conspicuously the said report has not been placed before our perusal. Without out which the opposite party cannot be allowed to take shelter under Section 1 Sub-Clause 2 of the policy. In this circumstances this Forum is inclined to accept the reasons stated by the opposite party for repudiating the claim of the complainant. In view of the above discussion we have no hesitation to hold that the repudiation of the complainant’s claim by the opposite party as deficiency in service. The act of the opposite party would have definitely caused mental agony to the complainant as such he is entitled to get compensation for mental agony.

6. In the result, the complaint is allowed and the opposite party is directed to settle the complainant’s claim of Rs.2,53,285/- along with interest at the rate of 7.5% per annum from the date of repudiation i.e. 03.03.2006 till date of payment. Further the opposite party is directed to pay Rs.2,000/- as compensation for mental agony and Rs.1,500/- as cost to the complainant. Time for payment one month from the date of this order.

Pronounced by us in Open Forum, this the 10th day of December,2009.

C.C.No.82/2007
K.S.Selvakumar,

S/o.K.Subramaniam,

D.No.301, Kaliamman Nagar,

Kurumandur Post,

Gobichettipalayam Taluk,

Erode Dist 638 457. .. Complainant.

/Vs/;

1) The Branch Manager,

National Insurance Co.Ltd.,

No.7, Raja Street,

Gobichettipalayam, Erode District.

2) The Divisional Manager,

National Insurance Company Ltd.,

Divisional Office, 1st Floor,

No.18, Court Street,

Kumaran Road Corner,

Tirupur-641 601.

3) M/s.TTK Health Care Services Pvt.Ltd,

Sri Saibaba Towers,

146, Raju Naidu Road, Tatabad,

Coimbatore 641 012. .. Opposite parties.



This complaint came up for final hearing on 14.12.2009, before this Forum, in the presence of Thiru.D.Easwaramoorthy, Advocate for the complainant, and Thiru.A.Srinivasan, Advocate for the opposite parties 1 and 2. 3rd Opposite party being set exparte, for his absence and non representation on 11.1.08 and upon hearing the arguments of bothsides, and on perusal of the records and having stood for consideration till this day, this Forum passed the following :- ORDER

Complaint filed under section 12 of the Consumer Protection (Amendment) Act 2002. The averments in the complaint are as follows : - The complainant Thiru. K.S.Selvakumar has taken as Hospitalization and Domiciliary Hospitalization Benefit

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Policy dated 10.5.06 under Policy No.651401/48/06/8500000033 with the 1st opposite party. Complainant has paid premium of Rs.1524/-. The policy covers, the Hospitalization, expenses for himself, his wife, and his son up to the tune of Rs.1,25,000/. The period of the policy is from 10.5.06 to 9.5.07. The 1st opposite party has also issued a health card to the complainant. The complainant has got a sudden jerk on his right leg on 27.2.07. Noticing the jerk on his right foot and consequential difficulties in walking he consulted the doctor and was advised to admit as in patient. As per the doctor’s advise complainant was admitted in KMCK Hospital, Coimbatore as in patient on 10.3.07. The complainant took treatment from 10.3.07 to 14.3.07. On investigation, it was fund that the complainant has developed, hypertension and due to the same there was a partial paralysis (initial stage). For finding out the actual problem tests and scans taken. Complainant was not suffered from any congenital disease. Unfortunately, due to sudden raise of blood pressure complainant has sustained a paralytic stroke (ischemic) that induced a jerk in his right leg (lower limb). Complainant took timely treatment by way of admitting himself as inpatient and recovered.

2) The 1st opposite party authorized the 3rd opposite party to do all the formalities in connection with the said policy including the follow up, approval etc. As pe the instruction of the 1st opposite party, the complainant submitted the pre-authorization request form, with the 3rd opposite party and approval letter was duly sent to the KMCH Hospital, Coimbatore. The doctor treated the complainant has given a medical certificate, and discharge summary. The doctor has also given additional information as per the request of the 3rd opposite party on 6.8.07. In the additional information the doctor has stated that the problem was “worse for the past two days’ he was forced to admit in the Hospital.

3) The complainant has filed the claim form with the 1st opposite party on 5.4.04 and enclosed all the original medical bills, discharge summary etc. On 23.4.07, the 3rd opposite party has sent a letter stating that on scrutiny of the documents it was observed that Hospitalization was for evaluation only and since the evaluation was normal and no active line of treatment was involved the expenses incurred for evaluation is not payable, as per the policy condition 4.10 and asked the complainant for a

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clarification from the Doctor. The complainant has submitted a letter to the 3rd opposite party on 27.4.07, enclosing the clarification letter from the Doctor. Even after that there is no positive reply from the opposite parties. Hence the complainant sent a reminder dated 31.5.07 to the 1st opposite party stating the grievances met by the complainant, due to the lethargic attitude of the 3rd opposite party, in postponing the satisfaction of the claim. In the meantime the 3rd opposite party has sent a copy of letter to the complainant stating that all the originals and the opinion for rejecting the mediclaim of the complainant was handed over to the 1st opposite party under 4-10 of the policy. The complainant sent another representation to the 1st opposite party on 20.6.07 enclosing a letter from the doctor concerned to that effect that there was a possibility, for a complete paralysis if left un attended and he was treated at the right time in the KMCH Hospital as inpatient. The 2nd opposite party acknowledged the receipt of the representation and replied that the same has been forwarded to the 3rd opposite party for further action. Believing the words of the 2nd opposite party the complainant waited for about 15 days and there was no response. Again the complainant sent a notice through the Gobi Consumer Protection Council to the 1st opposite party for immediate settlement of the mediclaim. On 8.8.07, the 1st opposite party has sent a letter stating that they have repudiated the claim under the policy exclusion 4-10.

4) The repudiation by the opposite parties is not legal. The complainant has not undergone any evaluation. In fact he was treated properly, in time. Otherwise, the initial stage of paralysis, due to hypertension may become total paralysis, which cannot be cured at all. In order to defeat, delay and defraud the legitimate claim of the complainant the opposite parties colluded together and repudiated the claim. The opposite parties rendered deficiency in their service by repudiating the claim for on illegitimate reason. The complainant has incurred a sum of Rs.22,173.37 towards hospital expenses and the original bills have been produced to the opposite parties. The complainant is claiming the medical expenses for a sum of Rs.22,173/- along with compensation of Rs.1,00,000/- towards the mental agony sustained by him, due to the deficiency in service rendered by the opposite parties.



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5) Counter averments of the 1st opposite party and adopted by the 2nd opposite party are as follows :- It is false and incorrect to state that the policy covers the Hospitalization expenses for complainant and his wife and his son up to the tune of Rs.1,25,000/-. The complainant is put to prove that the period of the policy commences from 10.5.06 to 9.5.07. It is utter false to state that the complainant has got a sudden jerk on his right leg on 27.2.07 and he has consulted since the complainant noticed a jerk on his right foot and consequential difficulties in walking and he was advised to admit as inpatient and as per the Doctor’s advice he has been admitted it KMCH Hospital, Coimbatore as inpatient on 10.3.07 and took treatment there up to 14.3.07 on investigation it was found that he has developed hypertension and due to the same there was a partial paralysis (initial stage). It is false and incorrect to state that for finding out the actual problem tests and scans taken. It is false and incorrect to state that the complainant was not suffered from any congenital disease. It is false and incorrect to state that the complainant is young hale and healthy. It is false and incorrect to state that unfortunately due to sudden raise of blood pressure he has sustained a paralytic stroke (ischemic) that induced a jerk in his right leg (lower limb) and he took timely treatment by way of admitting himself as inpatient and recovered.

6) It is not correct that the 1st opposite party authorized the 3rd opposite party to do all the formalities in connection with the said policy including the follow up, approval etc. It is not correct that as per the instruction of the 1st opposite party, the complainant submitted the pre-authorization request form to the 3rd opposite party and subsequently approval letter was duly sent to the KMCH Hospital, Coimbatore. It is false and incorrect to state that the Doctor who has treated the complainant gave medical certificate, discharge summary and additional information as per the request of the s3rd opposite party on 6.8.07. It is not admitted that the complainant has filed the claim with the 1st opposite party on 5.4.07 with all the original medical bills discharge summary etc. It is true that the 3rd opposite party has sent a letter stating that on scrutiny of the documents it was observed that Hospitalization was for evaluation only. Since the evaluation was normal and no active line of treatment was involved, the expenses incurred for evaluation is not payable as per policy conditions 4.10 and asked for

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classification from the Doctor. The complainant must prove that he has sent a letter to the 3rd opposite party on 24.7.07 enclosing the classification letter, from the Doctor. The complainant has to prove that he sent another reminder dated 31.5.07 to the 1st opposite party stating the grievances met out by him, due to the lethargic attitude of the 3rd opposite party, in postponing the satisfaction of the claim. The complainant has to prove that the 3rd opposite party has sent a copy of the letter to the complainant stating that the 3rd opposite party handed over the originals giving opinion for rejecting the mediclaim of the complainant. It is true that the complainant is not payable for the mediclaim under 4-10 of the policy. The complainant must prove that he sent another representation to the 2nd opposite party on 20.6.07 enclosing a letter from the doctor concerned and the copy of the letter has been sent to the 2nd opposite party. The complainant has to prove that the 2nd opposite party acknowledged the receipt of the representation and replied that the same has been forwarded to the 3rd opposite party for perusal and further action. It is false to state that the complainant believing the words of the 2nd opposite party waited or about 15 days and nothing happened. It is false and incorrect to state that the complainant sent a notice through the Gobi Consumer Protection Council to the 1st opposite party for immediate settlement of mediclaim. The opposite parties did not commit any deficiency in service by repudiating the claim of the complainant.

7) It is true that the complainant had taken a mediclaim policy with the 1st opposite party and. The complainant has been admitted in the KMCH Hospital only for Evaluation of Right Hemiparesis. The complainant concealed the material fact and given wrong particulars and wrong information about his Hospitalization. The hospital records and other correspondences clearly proves that the complainant admitted in the hospital only for evaluation. The policy does not cover the expenses incurred for evaluation. The 1st opposite party followed all the procedures and obtained the opinion and repudiated the claim under the policy exclusion 4-10. Therefore the opposite party are not liable to pay any amount to the complainant as per the policy condition 4.10. The complainant without disclosing the pre-existing disease and taken the mediclaim with ulterior motive. It is a clear violation of policy conditions. For the above said reasons,the



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1stopposite party, repudiated the claim of the complainant. The complaint must be dismissed with costs.

8) On the basis of the complaint averments and counter averments the following issues are framed for consideration :-

1) Whether there is any deficiency in service on the part of the opposite parties ?

2) Whether the complainant is entitled to the reliefs prayed for ?

9) To prove the complaint allegations, complainant Thiru.K.S.Selvakumar has been examined as PW1 and Exhibits A1 to A18 have been marked. The Assistant Manager, Divisional office, Erode of the 1st opposite party has been examined as RW1 and Exhibits B1 has been marked on the side of the opposite parties.

10) Complainant K.S.Selvakumar has taken a Hospitalization and Domiciliary Hospitalization Benefit Policy dated 10.5.06 under policy No.651401/48/06/8500000033 with the 1st opposite party-National Insurance Company Limited, Gobichettipalayam. The original policy certificate has been marked as Exhibit A1. As per Exhibit A1 the policy period is from 10.5.06 to 9.5.07. The name of the insured persons are 1) K.S.Selvakumar (Insured-complainant) 2) Mrs.S.Kavitha ( Wife of the insured)j and 3) Minor S.Kisanth (Son of the insured) for Rs.50,000/-, Rs.50,000/- and Rs.25,000/- respectively. The total sum insured for 3 persons is Rs.1,25,000/-. But the same has been denied as false and incorrect in the counter filed by the opposite parties in Para 3 which reads,

“It is false and incorrect to state that the policy covers the Hospitalization expenses for complainant and his wife and his son up to the tune of Rs.1,25,000/-. The complainant is put to prove that the period of the policy commences from 10.5.06 to 9.5.07.”



11) The complainant has got a sudden jerk on his right leg and on 27.2.07 and he has consulted the Dr.K.Vijayan, M.D., (Neurologist) of KMCH Hospital, Coimbatore for the jerk on his right foot and consequential difficulties in walking. The prescription of the Doctor dated 27.2.07 forms part of the medical bills submitted by the complainant, in Ex.A18 series. Hence the complainant approached the 3rd opposite party and submitted the pre-authorization request form which has been marked as Ex. A2 (True copy). On the

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basis of the pre-authorization request form the 3rd opposite party requested further additional information and clarifications from the doctor. Request for additional information and clarification dated 6.3.07 by the 3rd opposite party has been marked as Exhibit A16 (True copy). In Exhibit A16 it has been clearly stated by the Doctor,

“1) No investigations have been done yet

2) Detected by the patient 3 months back.

3) Worse for the past 2 days.

4)(Rt) foot drop–R/o(Rt) L5 radiculopathy UMN foot drop doubts ischemic infant.”

The same particulars has been mentioned in Exhibit A2 also by the same doctor. As per the advise of the doctor complainant has been admitted in KMCH Hospital on 10.3.07 at 10.30 AM as inpatient No.A10684. After examination and final diagnosis complainant was given treatment till 14.3.07 and discharged on 14.3.07 at 1 pm. The discharge summary of the complainant given by KMCH Hospital has been marked as Exhibit A3 (True copy). In Exhibit A3 it has been clearly mentioned,

“FINAL DIAGNOSIS:

SPASTIC RIGHT HEMIPARESIS

LACUNAR INFARCT/? FOCAL DEMYTELINATION

HISTORY

Mr.Selvakumar was admitted on 10.3.07. He had developed an acute onset of weakness in the right LL3 months back. 3 months back when he woke up one day he noticed a jerk in the right lower limb followed by this weakness. He had not undergone any evaluation for this so far.

ON EXAMINATION :

He has a mild spastic right hemiparesis. The fact is relatively spared. There is a pronator drift of the right UL and weakness of right ankle DF and PF. The right calf is slightly wasted compared to the left. All the jerks are brisk on the right side. Right plantar in extensor. Pulses are well felt. A MRI brain with MRA was normal. A MRI C-spine with screeing of the wholes pine was normal. A SSEP form all 4 limbs was normal. He had a mild systemic hypertension and dyslipidemia. The possibilities of a lacunar infact Vs.focal demyelization has been entertamed. He is discharged on 14.3.07.”

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12) The medical bills of the KMCH Hospital for complainant’s treatment from 10.3.07 to 14.3.07 and the medicine prescriptions of the doctor from 27.2.07 and 14.3.07 of Dr.K.Vijayan has been marked as Exhibit A18 series. As per Exhibit A18 series the total medical bill of the KMCH Hospital is for Rs.22,173.37. On the basis of the Exhibits A2, A16, A3 and A18 series , the 3rd opposite party has given an approval letter dated 14.3.07 at t.5.30 pm to KMCH Hospital and the same has been marked as Exhibit A4. In the approval letter Exhibit A4, it has been mentioned,

“Authorization : Approved

Authorized Limit(Rs): 22,173.00 (Rupees Twenty Two Thousand One Hundred and

Seventy Three only)

This includes previous approved amount of : 5000.”

Hence it is learnt that the 3rd opposite party has approved the medical bills submitted by the complainant as per Exhibit A18 series. The complainant has submitted his claim form on 5.4.07 to the 3rd opposite party with the original discharge summary and medical bills up to 2.4.07 for Rs.24,168.37. The claim form has been marked as Exhibit A5 (True copy). The complainant obtained the treatment certificate from Dr.K.Vijayan, KMCH Hospital on 2.4.07 and the same has been submitted to the 3rd opposite party. The true copy of the medical certificate of Dr.K.Vijayan, dated 2.4.07 has been marked as Exhibit A6 (True copy). On 23.4.07 the 3rd opposite party has sent a letter to the complainant and the same has been marked as Exhibit A7. Exhibit A7 reads,

“Dear Sir,

On scrutiny of the documents relating to your claim on above said policy it was observed that hospitalization was for evaluation only. The said evaluation was normal and no active line of treatment was involved. The expenses incurred or evaluation is not payable as per policy condition 4.10 stated below.

4.10 Charge incurred at Hospital or at nursing home primary for diagnostic, X ray or laboratory examinations not consistent with or incidental to the diagnosis and treatment of the positive existence or presence of any ailment, sickness or injury, for which confinement is required at a hospital/Nursing Home.



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However we request you to send a letter from treating doctor clarifying the line of treatment for your hospitalization. If such condition satisfies policy condition 4.10, we may review and favorably consider your claim.”

As per the request of the 3rd opposite party through Exhibit A7 letter, the complainant submitted a reply letter to the 3rd opposite party on 27.4.07 with clarification letter of Dr.K.Vijayan dated 26.4.07. The true copy of the letter dated 27.4.07 and the clarification letter dated 26.4.07 of the Doctor has marked as Exhibit A8. The clarification letter of the Doctor dated 26.4.07 reads,

“Mr.Selvakumar K.S. had acute ouset of a (R1) LL weakness, 3 months back. He woke up 3 months back with a jerk in the (R1) LL followed by Weakness.OE The weakness was found to be a spatic weakness. The patient had decided inst to consult a doctor then because he thought it was a minor problem. After extensive investigation and based of the history and clinical findings a diagnosion of Lacunar Infant Vs. Local demyelization in the CNS was made. The working diagnosis at present is a stroke (Ischemic) and he is being treated for the same.”

As per the clarification letter of the doctor also the complainant was having problem with his right leg for the past 3 months and due to the jerk the leg was followed by weakness and has taken treatment on 27.2.07 itself. Since the complainant thought it was a minor problem he did not consult the doctor before 27.2.07. As per the diagnosis of the complainant at present complainant is having stroke (Ischemic) and being treated. Hence for treatment only complainant has been admitted in the hospital 10.3.07 and all the tests and X-rays have been taken to diagnosis for the correct treatment and the complainant has been given treatment through medicines as per the prescriptions given by the doctor. In the Exhibit A3 Discharge summary advice, the Doctor has prescribed the following medicines for 15 days the advice reads,

1) T.Covance 25 mg BD

2) T.Ecosprin 150 mg HS

3) T.Storfib HS

4) T.Lomicort 16 mg 2 OD x 8 days

1 OD x 7 days

To come for review after 15 days “

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Hence it is clear that the complainant has taken treatment for his problem in the right leg.

13) Even after the receipt of the reply letter from the complainant along with classification letter of the doctor as per Exhibit A8 there was no response from the 3rd opposite party. Hence the complainant wrote a complaint against the 3rd opposite party, through a letter dated 31.5.07, to the 1st opposite party with copy to the Regional Officer, National Insurance Company Limited, Coimbatore and the 2nd opposite party. The true copy of the letter dated 31.5.07 has been marked as Exhibit A9. Knowing that a complaint letter has been submitted to the 1st opposite party against the 3rd opposite party, 3rd opposite party sent a letter dating 31.5.07 itself to the 1st opposite party and the same has been marked as Exhibit A10. The copy of the letter has been communicated to the complainant also. In Exhibit A10 it has been stated “We forward herewith above claim file for rejection at your end.” From Exhibit A10, it is learnt that the 3rd opposite party has recommended for rejection of the claim of the complainant. The mediclaim computation dated 31.5.07 of the 3rd opposite party has been marked as Exhibit A11. In Exhibit A11 the sum assured for the complainant under the policy Exhibit A1 has been mentioned as Rs.50,000/- and the balance has been mentioned as Rs.27,827/-. The balance has been arrived at after deducting Rs.22,173/- shown in the medical bill of the KMCH Hospital in Exhibit A18 series. Hence it is learnt that the mediclaim of the complainant for KMCH Hospital bill has been accepted. But in the remarks column it has been stated, “This claim is for evaluation which is not payable under 4.10 of the policy.”

14) After receipt of the letter Exhibit A10 and Exhibit A11, the complainant has written another letter dated 20.6.07 to the 1st opposite party along with clarification letter of Dr.K.Vijayan dated 16.6.07 and the same has been marked as Exhibit A12. The copy of the letter has been sent to the 2nd opposite party and the Regional Manager, National Insurance Company Limited, Coimbatore and the Association Leader, GTHRCPA, Kurumandurmedu. After receipt of the letter, the 2nd opposite party has written a letter to the complainant on 22.6.07 and the same has been marked as Ex.A13. Ex.A13 letter reads,

“We acknowledge receipt of your letter dated 20.6.07 in respect of above claim. In this connection, we have been informed by our Gobi Branch that they have forwarded your representation along with claim file to M/s. TTK for their perusal and further action.

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Kindly note that we are also taking up the matter with TTK based on your representation and until then kindly bear with us.”

On receipt of the copy of the letter Exhibit A12 from the complainant, the President of the GTHRCPA, Kurumandurmedu has written a letter dated 7.7.07 to the opposite party regarding the claim of the complainant the true copy of the letter has been marked as Exhibit A14 with copies of the 2nd and 3rd opposite parties. Immediately after the receipt of the copy of letter Exhibit A14, the 3rd opposite party has written a letter dated 11.7.07 to the complainant and the same has been marked as Exhibit A15. Exhibit A15 reads, “The claim was rejected as per the opinion of our branch doctor. We have again referred your case for the opinion of our panel doctor of our regional office. We shall revert shortly on hearing from them. In the meanwhile, please bear with us.”

The opinion of the doctor for rejection of the complainant’s claim has not been submitted to the Forum along with counter statement of the opposite parties or along with proof affidavit. The opinion of the penal doctor of the Regional Office also not produced by the opposite parties for perusal of this Forum, to decide whether the rejection of the complainant’s claim was correct or not. The 1stopposite party has sent a letter dated 8.8.07 to the complainant and the same has been marked as Exhibit A17. Ex.A17 letter reads,

“With reference to the above, we hereby inform you that the claim lodged by you is closed as NO CLAIM for the following reason :-


THE HOSPITALIZATION IS PURELY FOR EVALUATION OF RIGHT HEMIPARESIS EXISTED SINCE THREE MONTHS WHICH WAS NOT IMMEDIATELY FOLLOWED BY ANY ACTIVE TREATMENT

Hence, your claim is hereby repudiated under Policy Exclusion 4.10 “

As per Exhibit A17 the claim of the complainant has been repudiated under policy exclusion 4.10.

15) The true copy of the policy Exhibit A1 along with policy conditions has been marked as Exhibit B1 on the side of the opposite parties. Policy condition 4.10 reads,

“ Expenses incurred primarily for evaluation/diagnostic purposes not followed by active treatment during hospitalization.”

The complainant has taken treatment prior to evaluation and after evaluation during Hospitalization as per the discharge summary Exhibit A3 of KMCH Hospital, medical bills and prescription in Exhibit A18 series.

In IV 2006 CPJ 189 (NC)

“Praveen Damani Vs. Oriental Insurance Co. Ltd.,

The National Commission has held, “ The District Forum also relied on Clause 4.1. of the policy which states that it is not material whether the insured had knowledge of the

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disease or not, and even existence of symptom of the disease prior to effective date of insurance enables the Insurance Company to disown the liability.

If this interpretation is upheld, the Insurance Company is not liable to pay any claim, whatsoever, because every person suffers from symptoms of any disease without the knowledge of the same. This policy is not a policy at all as it is just a contract entered only for the purpose of accepting the premium without the bona fide intention of giving any benefit to the insured under the garb of pre-existing disease. Most of the people are totally unaware of the symptoms of the disease that they suffer and hence they cannot be made liable to suffer because the Insurance Company relies on their Clause 4.1. of the policy in a mala fide manner to repudiate all the claims. No claim is payable under the mediclaim policy as every human being is born to die and diseases are perhaps pre-existing in the system totally unknown to him which he is genuinely unaware of them. Hindsight everyone relies much later that he should have known from some symptom. If this is so every person should do medical studies and further not take any insurance policy.”

Letter of the complainant dated 26.6.07 Exhibit A12 reads,

“ Your National Insurance Co.Ltd (Gobichettipalayam branch) is not issued rules and regulation of mediclaim insurance policy. (Hospitalization and Domiciliary Hospitalization Benefit Policy) at the time of issuing my policy, your agent also not supplied rules and regulation of mediclaim policy. And also proposal for mediclaim insurance policy, issued Mediclaim Insurance Policy, premium receipt supplied by your company is not containing any where the rules and regulations of above said policy. so I did not know the said policy conditions before and after taking mediclaim policy.

Your National Insurance Co.Ltd, (Gobichettipalaym branch) is not done pre-medical test to me and then not asked the Medical fitness certificate from me, before issuing my mediclaim insurance policy.

Your TPA (TTK Health Care Service (P) Ltd, Coimbatore branch) is doing very very poor customer satisfaction. ID Card issued by your TPA is taken at least 6 months



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(or) 1 year after the policy is issued . And there is irresponsibility answers for customer enquiries.”

As per Exhibit A12 the rules and regulations of Mediclaim Insurance, Hospitalization and Domiciliary Hospitalization Benefit Policy were not issued to the complainant along with the policy or during obtaining the proposal form. The complainant did not know the policy conditions before and after taking the mediclaim policy. Hence the rules and regulations filed along with the insurance policy Exhibit B1 are not known to the complainant until this claim has been repudiated under policy condition No.4.10. Even as per the policy condition No.4.10. The complainant has taken treatment from Dr.K.Vijayan from 27.2.07 and only as per his advise he has been admitted in the Hospital on 10.3.07 only, for treatment. All the test has been taken and on the basis evaluation and diagnosis, complainant was given treatment during his Hospitalization from 10.3.07 to 14.3.07. Even after discharge on 14.3.07, complainant has been advised to take prescribed medicines mentioned in discharge summary for 15 days and requested the complainant to come to the hospital for review after 15 days. On the basis of the additional information and clarification given by Dr.K.Vijayan of KMCH Hospital, Coimbatore as per Exhibit A16 dated 6.3.07 discharge summary Exhibit A3 dated 14.3.07, medical certificate issued by Dr.K.Vijayan dated 2.4.07 Exhibit A6 clarification letter of Dr.K.Vijayan dated 16.6.07 submitted along with Exhibit A12 and medical bills of KMCH and prescriptions of the Doctor Exhibit A18series, we came to the conclusion that the tests, x-rays and scane were taken for evaluation and further treatment. Hence the tests and X-rays taken are not for evaluation only. Hence the repudiation of the complainant under policy condition No.4.10 is not acceptable. In spite of repeated reminders for his mediclaim the 3rd opposite party has dragged the matter due to the complainant submitted the complaint letter against 3rd opposite party, 3rd opposite party has recommended for rejection of the claim of the complainant for which opinion of the panel doctor has not been filed. Hence the services of the opposite parties regarding the claim of the complainant suffers from deficiency.

16) As per the claim form Exhibit A5 the amount claimed by the complainant is Rs.24,168.37 for which the complainant has produced the originals to the opposite parties

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and true copies of the same has been filed as Exhibit A18 series. As per Exhibit A1 policy the complainant is entitled to mediclaim up to Rs.50,000/- but in the complaint the complainant has claimed mediclaim only for Rs.22,173/- towards medical expenses. Hence the complainant is entitled to claim the mediclaim expenses of Rs.22,173/-with interest from the date of the complaint. Due to the deficiency in service on the part of the opposite parties, for mental agony caused to the complainant, compensation of Rs.1,00,000/- has been claimed. The compensation claimed by the complainant is abnormal and excessive. We are of the view that the compensation of Rs.25,000/- is sufficient.

17) In the result, the complaint is allowed. The opposite parties are directed to pay the mediclaim policy amount of Rs.22,173/-, with 9% interest, from the date of the complaint till the date of realization, compensation of Rs.25,000/- and cost of the proceedings of Rs.10,000/- within two months from the date of this order.

Dictated to the Assistant/Steno-Typist, transcribed by him, corrected and pronounced by us in the open Forum this the 15th day of December 2009.

Date of Order: 22.01.2010.

Name of the Complainant(s) Name of the Opposite party/parties

Mali Mondal, 1. Golden Multi Services Club of GTFS,

W/O Late Dakhulal Mondal, Panchanantal, P.O. Berhampore,

Suti Math (Dakshin), Holding No.339, Dist. Murshidabad.

P.O.& P.S. Berhampore, 2. National Insurance Co. Ltd.,

Dist. Murshidabad. Divn. III, 1, Shakespeare Sarani,

6h Floor, Kolkata-700071.

PRESENT

1. Shri G. M. Midhya - President

2. Smt. P. Ali - Member

3. Shri T. K. Biswas - Member

JUDGMENT

The petitioner’s case, in brief, is that her husband Dakhulal Mondal was insured with National Insurance Co. Ltd (OP No.2) through Golden Multi Services Club of GTFS (OP No.1) under Group Janata Personal Accident Policy. The policy was valid up to 30.3.2016. Dakhulal died in a road-accident on 27.09.2008. The petitioner, being the nominee cum wife of the insured Dakhulal Mondal placed her claim for the sum assured amounting to Rs.3,00,000.00 by submitting all relevant documents and papers to the Ops on 4.10.2008 as per procedure but there was no result from the side of the Ops in spite of repeated demands. Hence, this case.


The petitioner prayed for direction upon the Ops to release a sum of Rs.3, 00,000.00 and also to pay Rs.10, 000.00 as cost and compensation in her favour.

Copy of the complaint was referred to both the OP Nos. 1 & 2 & each of them has received the same. The OP no.1 filed written version and contested the case; while the OP no.2 neither entered in appearance nor filed any written version to contest the case.

In fact the OP no.1 has fully corroborated the case of the petitioner. According to the OP no.1, the Insurance Policy No. 100300/47/2K/9601062/2K/96/00347 was issued in favour of Dakhulal Mondal(since deceased) by the OP no.2 covering the policy period from 31.03.2001 to 30.03.2016. His wife Mrs. Mali Mondal was the nominee. On the death of Dhakulal Mondal in a road accident the petitioner submitted her claim to Berhampore Office of OP no.2 as well as OP no.1 along with requisite papers. As per agreement between OP Nos. 1 & 2 absolute right to settle the claim is reserved by the NIC Limited and in this case the GTFS has no liability. So, the OP no.2 is bound to settle the claim and failure on its part amounts to deficiency in ervice. Therefore, according to OP no.1 the claim of the petitioner should be allowed.


We have already stated that the OP no 2 has neither appeared in this case nor filed written version to contest the case. Even on the date of hearing nobody appeared on its behalf. We have perused the documents on record. Also we have examined the conditions of the policy together with the written version filed from the side of OP no.1.

Copies of document clearly reflect that the claim petition dt. 4.10.2008 of the complainant along with papers had been sent to both the Ops. On 10.10.2008 by registered post with A/D. The OP No.1 received the same on 17.10.2008 and the OP no.2 received the same on 20.10.2008 under signature and seal of the office. Therefore, it cannot be said that the Ops were not aware of the claim by the complainant. As per terms and agreement between the OP no.1 and 2; the OP no.1 is liable to settle the claim. But it did not do so as yet. It is the clear case of deficiency in service. So, the case is liable to be allowed.

Hence,

O R D E R E D
That Consumer Complaint No. 07/2009 be and the same is allowed ex parte against the OP no.2 but dismissed against the OP no.1 on contest. The OP no.2 is directed to liquidate the claim of the petitioner to the tune of Rs.3, 00,000.00 within one month from the date of this order and also to pay Rs.5, 000.00 as compensation to the petitioner within the above period failing which the petitioner shall be at liberty to realize her dues by executing this order as per law and procedure.

Free copy of this order be made over to parties each immediately.