Apinder Singh aged about 49 years son of Sh Baldev Singh resident of ward no.11 , near Gurudwara Bunga Sahib, Mahilpur District Hoshiarpur.

vs.

National Insurance Company Limited through its Branch Manager , National Insurance Company Limited Branch Hoshiarpur Tehsil and District Hoshiarpur.

1.

The complainant namely Apinder Singh has filed the present complaint under section 12 of the Consumer Protection Act,1986 (as amended upto date) “hereinafter referred as the Act.”. In short,the facts of the case are that the complainant got his car bearing no. PB07-L-9616 insured with the OP.
2.

It is the allegation of the complainant that engine of the said car got damaged due to stoppage of car in the flood water on 14.6.2008. The complainant brought the car for repair to Hoshiarpur Automobiles, Hoshiarpur on 15.7.2008. That Hoshiarpur Automobiles demanded Rs.100685/- as repair charges of the car. . The complainant made a request to the OP to pay the bill amount of Rs.100685/- but of no consequences, hence this complaint.
3.

OP filed the reply Preliminary objections vis a vis jurisdiction, and non joinder of necessary parties were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the policy in question was issued by the office of National Insurance Co.,New Delhi . It is denied that the insurance company is liable for any damages of the car during the insured period .That as per terms and conditions of the insurance policy, the insurance company is not liable to pay any consequential losses. However, it is admitted that the complainant got his car repaired from Hoshiarpur Automobiles, Hoshiarpur. It is denied that the car in question suffered damages on 14.6.2008. That as per intimation and survey report, the car of the complainant suffered damages on 15.6.2008 near Phagwara. . It is further replied that the policy in question is a cashless policy issued under the tie up agreement with the dealer by the Delhi Office of the OP and as per terms and conditions of said policy, the payment of the damages to the car is to be made to the dealer , per survey report by the insurance company after deducting the amount of excess clause and depreciation . In the instant case, M.L.Mehta & Co. made a report dated 24.9.2008 that the vehicle of the complainant suffered loss to the tune of Rs.11974/-, payment of which was made to the dealer, and the remaining claim amount was not allowed by the surveyor being the consequential loss to the insured car.
4.

In order to prove the case, the complainant tendered in evidence affidavit Ex.C-1, insurance policy Ex.C-2, retail invoice dated 15.7.2008 Mark C-3, RC Mark C-4 and legal notice Ex. C-5 and closed the evidence.
5.

In rebuttal, the opposite party tendered in evidence the insurance policy with terms and conditions Ex. OP-1, survey report Ex. OP-2, letter dated 16.6.2008 Ex.OP-3, claim form Ex. OP-4, letter dated 5.11.2008 Mark OP-5, affidavit of Dr. A.S.Kohli Ex. OP-6 and affidavit of M.L.Mehta Ex. OP-7 and closed the evidence.
6.

The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
7.

The admitted facts may be noticed thus :-

i) That the car bearing registration No. PB07-L-9616 was insured with the replying OP-National Insurance Company Limited, Hoshiarpur – Ex. OP-1.

ii) That the vehicle was got repaired from Hoshiarpur Automobiles, Hoshiarpur.

iii) That that OP appointed the Surveyor, who assessed the loss to the tune of Rs. 11,974.
8.

The opposite party made the payment of Rs. 11,974/- to Hoshiarpur Automobiles, Hoshiarpur – dealer, as per Survey report of M/s. M.L. Mehta & Company dated 24.9.2008 – Ex. OP-2 and the remaining amount was not allowed by the Surveyor being the consequential loss to the insured car.
9.

Now, the only point which calls decision from this Court is whether the opposite party was legally competent to withhold the remaining claimed amount being consequential losses to the insured car? The answer to this is in the negative.
10.

The learned counsel for the complainant argued that all the losses to the car in question are direct losses, therefore, the opposite party has no right to withhold the payment of the remaining amount on the ground that the remaining claimed amount was not allowed by the Surveyor being the consequential losses to the car bearing registration No. PB07-L-9616. It is an admitted fact that the car was comprehensively insured with the opposite party vide insurance policy – Ex. OP-1. The learned counsel for the opposite party, Sh. Brij Thakur argued that from the Survey report – Ex. OP-2 and the affidavit of the Surveyor – Ex. OP-7, it stands established that the loss is consequential loss and as per Clause 4(1) of General Exceptions, consequential losses are not payable, therefore, the claim was settled as per the survey report and the payment of Rs. 11,974/- was made to the dealer – Hoshiarpur Automobiles qua Ex. OP-5, as the insurance policy is a cashless policy issued under the tie-up agreement with the dealer and as per terms and conditions of the policy and agreement, the payment of damages is to be made to the dealer after deducting the amount of Excess Clause and depreciation. That as per the report of the Surveyor qua Ex. OP-2, the vehicle suffered damage to the tune of Rs. 11,974/-, the payment of which was made to the dealer and the remaining claimed amount was not allowed by the surveyor, being the consequential loss to the insured car.
11.

Admittedly, the surveyor is neither a mechanic nor can be said to be an expert to ascertain with regard to the consequential losses to the vehicle. Since the surveyor has not availed the services of Automobile Expert to reach on the conclusion that the vehicle in question bearing registration No. PB07-L-9616 suffered a consequential loss and as per Clause 4(1) of General Exceptions of the Insurance Policy – Ex. OP-1, the balance amount is not payable, therefore, the report of the expert with regard to the said fact i.e., loss caused to the vehicle in question is consequential loss, per clause 4(1) of the General Exceptions of the Insurance Policy – Ex. OP-1, cannot stand the test of legal scrutiny. The affidavit filed by the Surveyor – Ex. OP-7, wherein it has been stated that the vehicle suffered loss of Rs. 11,974/- and the remaining claimed amount was not allowed by the deponent being the consequential loss to the insured car, is also not sufficient to entitle the opposite party – insurance company not to pay the remaining amount being consequential loss to the insured car, as the surveyor is neither a automobile engineer nor expert to make the report that the remaining amount cannot be allowed being consequential loss to the insured car. Consequently, it is held that the insurance company was under legal obligation to make the payment of the remaining amount to the complainant.
12.

The learned counsel for the opposite party raised the argument that this Court has got no jurisdiction to try this complaint, as the loss occurred at Phagwara and the policy was issued at Delhi. The learned counsel for the opposite party agreed at bar that the Branch Office of the Opposite Party is at Hoshiarpur, therefore, we are of the opinion that this Court has the jurisdiction to entertain and decide the present complaint.
13.

The learned counsel for the opp. Party also submitted that the complainant is seeking the compensation with regard to the loss dated 14.6.2008, as pleaded vide para No. 4 of the complaint, whereas from the intimation letter – Ex. OP-4, it is proved that the loss is dated 15.6.2008. It appears that it is only a typographical error in para No. 4 of the complaint that the loss is dated 14.6.2008, therefore, on this count the claim cannot be disallowed.
14.

The learned counsel for the complainant submitted that M/s. Hoshiarpur Automobiles, Hoshiarpur has demanded Rs. 1,00,685/- as repair charges of the car bearing registration No. PB-07-L-9616 qua Mark C-3. The opposite party has not disputed the invoice that Hoshiarpur Automobiles, Hoshiarpur has not demanded the amount of Rs. 1,00,685/-, therefore the opposite party is liable to pay Rs. 88,711/- (Rs. 1,00,685/- minus Rs. 11,974/- as Clause 4(1) of General Exceptions of insurance policy – Ex. OP-1 is not attracted to the facts and circumstances of the present case.
15.

As a result of the above discussion, the complaint is accepted and the opposite party is directed to pay Rs. 88,711/- alongwith interest @ Rs. 9% per annum from the date of filing of the complaint i.e. 10/2/2009 till payment. Litigation expenses are assessed at Rs. 1000/- to be paid by the opposite party to the complainant within one month from the date of receipt of copy of the order.

01) Ambati Rama Rao (Died).

02) Ambati Ramanamma, W/o. late Rama Rao, Hindu, aged 37 years,

House-hold duties, Gara Street, Krishnapuram Village,

Ponduru Mandal, Srikakulam District. 03) Ambati Radha, D/o. late Rama Rao, Hindu, aged 19 years,

Student, Gara Street, Krishnapuram Village,

Ponduru Mandal, Srikakulam District. 04) Ambati Rambabu, S/o. late Rama Rao, Hindu, aged 10 years,

being minor represented by his mother, guardian and next friend

Ambati Ramanamma, 2 and complainant Gara Street, Krishnapuram

Village, Ponduru Mandal, Srikakulam District. … Complainant.

01) Branch Manager, Golden Trust Financial Services,

Kolkata Branch at N.R.Raju Complex, Opposite ING VYSYA BANK,

New Colony, Srikakulam Town and District.

02) National Insurance Company Ltd. Represented by its

Divisional Manager, Division –III (1), Shakespear Sarani,6th Floor,

Kolkata – 700 071 (Calcutta) West Bengal State. … opposite parties.

O R D E R

Complainant No.1 (died) is father of the deceased Ambati Seetharamulu who obtained Janata Personal Accident Insurance Policy for Rs.50,000/- from opposite party NO.2 through opposite party No.1. Policy covers the period from 23-2-2004 to 22-02-2019. While so, on 6-1-2005 the deceased Seetharamulu had been to Vijayawada on his personal work and he was bitten by a mad dog.

Immediately he was shifted to Government Hospital, Vijayawada. He was treated there, but unfortunately he died there on the same day in the hospital. He was brought to his native place Krishnapuram alias Gara Peta and he was cremated. Within one week after the accident, complainant NO.1 informed the same to opposite party NO.2 insurance company through opposite party No.1 and submitted claim form dated 21-1-2005 along with original policy bond, out-patient ticket issued by the Government Hospital, Vijayawada and death certificate dated 10-2-2005, but there was no response from the opposite parties. Notice dated 25-7-2006 was issued to opposite party nO.2 claiming Rs.50,000/- together with interest at the rate of 24% per annum. There was no reply from the opposite parties. Hence complaint is filed for a direction to the opposite parties to pay a sum of Rs.50,000/- with interest at the rate of 24% per annum from 6-1-2005 and for compensation of Rs.10,000/- and costs of Rs.5,000/-.

2) Opposite party No.1 filed counter stating that there was specific mention in the relevant proposal form that for any insurance claim, insurer i.e, National Insurance Company Limited would be solely liable and under no circumstances, Golden Trust Finance Services would have any liability in this respect. Hence there was no role to play by Golden Trust Finance Services as far as claim settlement/payment of insurance claim is concerned. It is further stated that as a good gesture, however, Golden Trust Finance Services used to collect the claim documents from the insured persons/nominees and forward them to the insurer i.e, National Insurance Company Limited for settlement of the claim. They also used to pursue the pending claims with the insurer whenever there is delay. There is no deficiency in service on their part. It is further stated that the insurance claim was received on 1-2-2005 in respect of accident occurred on 6-1-2005 and after receiving all the papers on 25-2-2005 the entire file was forwarded to opposite party NO.2 on 16-3-2005.

3) Opposite party No.2 insurance company filed counter stating that there is no claim from the complainants within time. He further stated that dog bite is not covered by the policy. It is further stated that they are not liable to pay any amount to the complainants.

4) Both parties filed affidavits. Exs.A1 to A10 are marked on behalf of the complainants. Ex.B1 is marked on behalf of opposite party NO.2.

Heard both parties.

Point for consideration is:

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

5) POINT:

The main contention of the insurance company is that dog bite is not covered by the policy as it is not accident. Counsel for the complainant cited a decision reported in Life Insurance Corporation of India and Another Vs. V.Tamil Selvi, II (2005) CPJ at page No.420 (Tamil Nadu State Consumer Disputes Redressal Commission, Chennai). In the above decision it has been clearly held that dog bite is an accident and covered by the insurance policy under the term accident.

6) Ex.A2 is copy of out-patient ticket. It shows that the deceased was admitted in the Hospital and treatment was given for dog bite. The Doctor who treated the deceased is examined as PW-1. She stated that she examined the patient by name Ambati Seetharamulu. She found him conscious with severe Dehydration and Hydrophobia and Tremors. She prescribed I.V. Fluids and injection Rabipur and Monocef. She deposed in her cross-examination that person bitten by a dog would die within one month from the date of attack of Rabis. She again deposed that the patient will die for minimum one month to one year.

But the insured Seetharamulu died on the same day in the Hospital. There is suspicion about Ex.A2 because it bears no date and not supported by other Hospital record. Except Ex.A2 and the evidence of PW-1, there is no hospital record to show that the insured Seetharamulu died in the hospital due to dog bite, but opposite party No.2 insurance company has not denied the case of the complainant that the insured Seetharamulu died due to dog bite. Opposite party NO.2 insurance company has filed counter and affidavit also but they have not denied the death of the insured due to dog bite.

7) Ex.A3 is copy of Death Certificate. It shows that the insured Ambati Seetharamulu died on 6-1-2005 and it was registered on 20-1-2005. The Death of the insured Seetharamulu is not denied by the insurance company. Ex.A5 is office copy of notice dated 25-7-2006 issued to opposite party No.2 insurance company claiming insurance amount of Rs.50,000/-. There was no reply from opposite party No.2 insurance company. Ex.A7 is copy of claim form. The Doctor who treated the insured Seetharamulu made endorsement in the claim form stating that the insured Seetharamulu died in Government Hospital, Vijayawada on 6-1-2005 due to Cardio Respirator Failure due to Rabis.

8) Death due to dog bite is not denied by the insurance company. There is evidence to show that the insured died due to dog bite. The Doctor who treated the insured in Government Hospital, Vijayawada is examined as PW-1 and she deposed that she treated the deceased for dog bite. We therefore hold that there is deficiency in service on the part of opposite party No.2. Complainant No.2 is mother of the deceased Seetharamulu. She is entitled to receive the insurance amount. Complainant No.3 is major sister of the deceased. She is not entitled to receive the insurance amount. Complainatn No.4 is minor brother of the deceased. He is also not entitled to receive the insurance amount. Hence we answer the point accordingly.

In the result, complaint is allowed. Opposite party No.2 insurance company is directed to pay Rs.50,000/- (Rupees fifty thousand only) to complainant No.2 i.e., Ambati Ramanamma (Mother of the insured) with interest at the rate of 12% per annum from the date of filing the complaint i.e, 18-9-2006 till the date of payment and costs of Rs.1,000/- (Rupees one thousand only). Advocate’s fee is fixed at Rs.1,000/-.

The case of complainant is as follows. The complainant was a coconut tree climber and the income from that is the only source of livelihood of his family. He was a policy holder of respondent insurance company vide policy No.02/9600280. While so on 12.6.03 the complainant fell down from a coconut tree and sustained serious injuries. He was treated in Medical College Hospital Thrissur till 26.6.03. The doctor reported that the complainant is unable to do works like climbing coconut trees in future. He has permanent and total disability. So the respondent is liable to pay Rs.2,00,000/- lakhs as compensation. The complainant intimated the things to the respondent and submitted all relevant documents to get insurance benefits. But it was denied by the respondent by a letter dt. 9.10.03. This act of respondent is deficiency in service and this complaint.

2. The averments in the counter are as follows: This respondent has issued a Group Janata Personal Accident Policy No.570704/47/02/9600280 for the period 25.3.03 to 24.3.04 in the name of the Agricultural Officer, Krishibhavan, Manalur in which Mr. Velayudhan.N.A. is also covered subject to the terms, conditions, exclusions and limitations stipulated therein. So the insured or his legal representatives is entitled to get claim only in case of permanent total disability or total and irrecoverable loss sustained. As per medical certificate submitted by petitioner, he is having only temporary disablement and required six months rest only. So the complainant is not entitled to get any claim. Hence dismiss.

3. The points for consideration are:

(1) Is there any deficiency in service?
(2) If so, reliefs and costs.

4. The evidence consists of Exts. P1 to P3 and Exts. R1, R2 series and R3.

5. The case is filed to get insurance claim amount.

6. The case of complainant is that he has got serious injuries due to a fall from coconut tree. According to the complainant, he was a coconut climber and fell down from a coconut tree and sustained serious injuries. Being a policyholder he is entitled to get policy benefits and is entitled to get Rs.2,00,000/- as compensation for the injuries sustained.

7. In the counter the respondent Company stated that the insured is entitled to get claim only in case of permanent total disability. According to them, as per the medical report submitted by the petitioner he is having only temporary disablement and required six months’ rest only.

8. As per Ext. R1 policy if the insured sustains any bodily injury resulting solely and directly from accident caused by external violent and visible means and if such injury shall within a period of six calender months of its occurrence by the sole and direct cause (a) leading to death of insured person or (b) total and irrecoverable loss of sight of both eyes or of the actual loss by physical separation of the two entire hands or two entire feet or of one entire hand and one entire foot or of such loss of sight of one eye and such loss of one entire hand or one entire foot, (c) the total and irrecoverable loss of the sight of one eye or of the actual loss by physical separation of one entire hand or one entire foot, fifty percent (50%) of the capital sum insured stated in the scheduled hereto applicable to such insured person, (d) if such injury shall be the sole and direct cause of permanently totally and absolutely disabling the insured person from engaging in being occupied with or giving attention to any employment or occupation of any description whatsoever; the sum insured stated in the schedule. So as per the policy the insured will be entitled for Rs.1,00,000/- only if there is permanent total disability or total and irrecoverable loss due to accident. In the present case the complainant has no such disability. The counsel for complainant argued that since he is a coconut tree climber and unable to climb coconut tree he will come under the clause stated in the policy and in that extent he has permanent total disability and is entitled for the capital sum assured. The nature of permanent total disability is explained in the policy and the complainant will not come under it. In Ext. R2 claim form the doctor reported that he is temporarily totally disabled and bedridden now and he requires a minimum period rest for 6 months. He further reported that he is likely to get permanent disability, which can assess after the course of treatment. There is no certificate after the course of treatment. The medical board report, which is marked as Ext. P1 shows that this person has 24% disability. The certificate is dated 10.10.06 and the report of doctor in Ext. R2 claim form was in the year 2003. So it can be taken that the disability at present as 24%. But one of the conditions stated that 50% of the capital sum applicable to such persons if the injury shall be the sole and direct cause of permanently totally and absolutely disabling the insured from engaging in being occupied with or giving attention to any employment or occupation of any description whatsoever the sum insured stated in the schedule. Here the petitioner cannot work as a coconut climber because of this accident. So he is entitled to get half of the capital sum and definitely not for capital sum. So there is deficiency in service on the part of respondent in denying the claim by stating the reasons without proper consideration of the claim.

9. In the result, complaint is allowed and the respondent Company is directed to pay Rs.50,000/- (Rupees fifty thousand only) as insurance benefit with Rs.1000/- (Rupees one thousand only) as costs and no order as to compensation.

Ajithkumar Shetty,

aged 54 years,

Family Health Plan Ltd.,

Millers Point, No.1, II Floor,

11th Main Vasantha Nagar,

Bangalore – 560 052.

………….. Complainant

Versus


1. The Manger,

Family Health Plan Ltd.,

Miller Point, No.1, II Floor,

11th Main Vasantha Nagar,

Bangalore – 560 052.


2. The Divisional Manager,

National Insurance Co. Ltd.,

Shankar Building, Mosque Road,

Udupi - 576 101.

1. Complainant has filed this complaint against the Opposite Party alleging deficiency in service in repudiating the claim the Complainant and prayed for a direction to the Opposite Party to pay to the Complainant a sum of Rs.1,00,000/- being the sum assured under the policy with interest at 15% p.a. from 10.11.2008 till 30.01.2009 and further Rs.1,00,000/- as compensation for illegally repudiating the claim, Rs.5,000/- towards traveling and other miscellaneous expenses, Rs.2,500/- as cost of the notice, Rs.5,000/- as cost of the proceedings, etc.


2. The Complainant had taken medi claim insurance policy from Opposite Party No.2 bearing No.603800/46/06/8500000108 (UHID No.FHUK.0001110104) and has paid the premium amount periodically and upto date. Complainant

Contd…….2

was admitted to Narayana Hrudayalaya, No.258/A, Bommasandra Industrial Area, Anekal Taluk, Bangalore on 29.10.2006 as an inpatient and has undergone coronary artery bye pass grafting surgery on 02.11.2006. The Complainant has spent an expenditure of Rs.1,72,500/- and was discharged on 10.11.2006. After discharge, Complainant has lodged claim for the insured amount of Rs.1,00,000/- with Opposite Party No.1 through Opposite Party No.2 and subjected all necessary documents as required by Opposite Party No.2. As required by Opposite Party No.1 vide letter dated 5.2.2007 the Complainant sent all the documents requisitioned in the said letter under cover of his letter dated 28.02.2007. Thereafter Opposite Party No.1 further required the Complainant to send additional documents as per letter dated 29.03.2007. Complainant sent a letter dated 14.05.2007 alongwith medical certificate dated 16.04.2007. Inspite of the Complainant sending all the documents and complying with their requirements, his claim has not been settled inspite of elapse of nearly two years.


3. The Opposite Parties are bound to honour the commitments under the contract of insurance. They have been putting forward one lame excuse or the other with the sole intention of placing the Complainant in such a position as to unable him to comply with their unnecessary, unwarranted and uncalled for demands which is clear from the series of exchange of letters referred to above.


4. The act of requisitioning the Complainant to produce documents in installments shows their mala fide intention of defrauding the Complaint and to refuse settlement of claim involving huge sum of money.

5. The Complainant is a consumer of medical cum insurance services and Opposite Parties are service providers as per contract. The action of the Opposite Parties in not settling the claim amounts to deficiency in service ultimately amounting to repudiation of the claim. Thus the Opposite Parties are guilty of deficiency of service by adopting dilatory tactics which is nothing but unfair trade practice of which the Complainant client is made a victim.. The Complainant has thus been put to untold hardship, agony, mental tension, strain and stress, financial loss and other pecuniary and non pecuniary loss. Therefore the Opposite Parties are liable to compensate the Complainant in a sum of Rs.1,00,000/- apart from the genuine expenses incurred by him as stated above.

Contd……3

6. When all avenues of getting the claim settled failed, the Complainant got issued a legal demand notice dated 15.09.2008 to the Opposite Parties calling upon them to pay him (1) Rs.1,00,000/- being the sum assured under the policy, (2) Rs.1,00,000/- being the compensation, (3) Rs.5,000/- towards miscellaneous expenses with interest at 15% p.a. from 10.11.2008 till payment alongwith a further sum of Rs.2,500/- being the cost of notice within seven days of the receipt of the said notice. Opposite Party sent a reply dated 7.10.2008 and the contentions taken by the Opposite Party No.1 which are against the case of the Complainant are true.

7. The Complainant submits that repudiation of the claim made by the Opposite Parties is baseless and the reason assigned by the Opposite Parties is only a myth. The Complainant is a consumer of insurance cum medical service from the Opposite Parties which they failed to provide to the Complainant. Therefore the Opposite Parties are guilty of deficiency of service, hence this complaint.


3. After service of notice of complaint, Opposite Party appeared through their counsel and filed the version contending that the complaint is false, frivolous, vexatious and same is unsustainable at law and on the facts and same is liable to be dismissed.


9. The complaint is framed and brought before this Forum is not correct and same is liable to be rejected. This Opposite Party admits that the Complainant has obtained “Jain Arogya Bima” policy from the Opposite Party bearing No.603800/46/06/8500000108. The said policy issued on good faith by imposing certain terms and conditions which are binding to both parties.

10. The Complainant alleged that he was admitted to Narayana Hrudayalya at Bangalore on 29.10.2006 as an inpatient and has undergone coronary artery bye pass grafting surgery on 02.11.2006 and he spent of Rs.1,72,000/- and was discharged on 10.11.2006. It is further alleged that after discharge from the Hospital, the Complainant lodged claim for the insured amount of Rs.1,00,000/- with documents and further alleged that even though all required documents supplied to the Opposite Parties they failed to honour their claim etc.. The above allegation of the Complainant is utter false and the same is denied by this Opposite Party.

Contd……4

11. This Opposite Party submits that on8.12.2006, Mr.Ajith Kumar Shetty who is the Complainant herein has reported to this Opposite Party that he was operated on 02.11.2006 at Narayaba Hrydalaya at Bangalore. On 18.01.2007, the Third Party Administration have received the claim form seeking reimbursement of the medical expenses incurred for the treatment undergone by the Complainant. After perusing the documents the Opposite Party came to the concluded that the Complainant has first time taken aforesaid policy on 31.08.2006 and was admitted in Narayana Hrudalaya at Bangalore on 29.10.2006 with Complaints of breathiness and Chest pain.

The Complainant was diagnosed as a case of CAD with good I.V. function. The discharge summary further disclosed that the Complainant had treated with previous medications i.e. Tap imdur/Tap Pantodac/Tap Atorval/Tap Metoprolol. In view of this fact, the Opposite Party raised query and requested the Complainant to submit treating doctor’s certificate of the past history and duration of the hypertension, dialbities, mellius an CAD and first consultation papers and investigation report. It is submits that the Opposite Party simultaneously addressed the letter Vijaya Bank also to clarify and furnish details regarding claim and previous insurance if any. It is submitted that either the Complainant or the Bank failed to reply anything till the day.

The documents produced by the Complainant would indicate that he has taken treatment prior to getting the treatment in question in other hospitals. But the insured has intentionally and deliberately suppressed such material facts as regards pre-existing disease while entering into an contract of insurance with the Opposite Party and thus the complainant has intentionally and deliberately made false declaration in the proposal. Hence the contract of insurance entered into between the Opposite Party and the Complainant on the basis of the proposal is VOID AB INITIO. It is settled proposition of law that in the medi claim Policy pre-existing diseases are not covered as per Exclusion Clause 4.1 of the Policy issued to the insured. The nature of disease reflects that the insured must be suffering from cardiac and other health problems from long time as he was under medication which necessitated Coronary Artery bypass surgery within two months from inception of the Policy. Further these heart disease/problem do not emerge overnight and they are definitely having a history of several years to come to the stage of surgery. This Opposite Party further submits that the certificate issued by Dr.Praveen Kumar, Cardiac Surgeon which cannot be

Contd…….5

accepted as he failed to provide any explanation since how the Complainant was suffering heart disease. Therefore, the said certificate cannot be accepted by a prudent man. Thus, this Opposite Party submits that the treatment which taken by the Complainant is not covered under the Policy as the treatment taken by the Complainant at Narayana Hrudalaya on the alleged date which are pre-existing when the cover incepts for the first time. Thus, the Opposite Party is not liable to pay amount claimed by the Complainant and the same is liable to be dismissed.

12. In view of the non co-operating by the Complainant with the TPA/Opposite Party by providing necessary and material documents, the Opposite Party has no option except rejection of the claim. As per the terms of the policy, the insured shall provide all medical records to the Opposite Parties within 30 days from the date of discharge, if failed to provide such documents to the Insurer by the insured, then the insurer is not liable to pay the amount. Thus, the Opposite Party states that even though repeated demands made by Opposite Parties, the Complainant has failed to submit such material documents relating his claim to the Opposite Party which amounts to violation of the terms of the Policy. Therefore, the Opposite Party has not committed any deficiency in rendering their service while discharging their lawful duties. Hence, this complaint is liable to be dismissed.

13. This Opposite Party denies that he Opposite Party rejected the claim on false and frivolous grounds or they have misinterpreted their own policy conditions or the Opposite Party has repudiated the genuine claim of the Complainant by citing false reasons or the Complainant is a ‘consumer’ within the meaning of Consumer Protection Act or the act of the Opposite Party amounts to Unfair Trade Practice which inturn is a Deficiency of Service’ are all false and imagination of the Complainant.

14. That the Opposite Party further submits that the Complainant has claimed the amount of Rs.2,15,829/- without any basis. This Opposite Party is not liable to pay compensation to the Complainant claimed in the complainant. The Opposite Party submits without prejudice the above contentions taken above that as per the policy the company’s liability in respect of all claims admitted during the period of insurance shall not exceed the sum insured of Rs.1,00,000/-

Contd……6

per person which is stipulated in the policy and by taking into all consideration applying his mind alongwith the terms and conditions of the policy, thereafter the Opposite Party has rightly repudiated the claim of the Complainant. So, the Opposite Party has not committed any guilty of deficiency of service as alleged by the Complainant.

15. The Opposite Party denies that repudiation of the claim made by the Opposite Parties is baseless and the reason assigned by the Opposite Parties is only a myth. when the Complaint issued the legal notice, this Opposite Party has rightly got issued reply notice to it. In the said reply notice and also other notices, this Opposite Party clearly stated the genuine reason of rejection of his claim.

16. All other allegations of the complaint not specifically admitted or denied the Complainant is put to strict proof of such allegations in accordance with the law. Hence, prayed to dismiss the complaint with cost.

17. The Complainant has produced 15 documents which are marked as Ex.C-1 to Ex.C-15. Opposite Party has produced 7 documents which are marked as Ex.R-1 to Ex.R-7. Both the parties filed affidavits, interrogatories and reply affidavits. We heard both the parties.

18. Now the points that arise for our consideration are:

1) Whether the Opposite Party is justified in repudiating the claim of the Complainant?

2) Whether the Opposite Party has committed deficiency in service?

3) Whether the Complainants are entitled for the relief claimed in the

complaint?
4) What Order?

Point No.1:

19. It is an admitted fact that the Complainant has obtained “Jan Arogya Bima policy from the Opposite Party bearing No. 603800/46/06/8500000108. The Complainant was admitted to Narayanan Hrudayalaya, Bangalore on 29.10.2006 as an inpatient and has undergone coronary artery bye pass grafting surgery on 2.11.2006. After discharge from the hospital the Complainant lodged the claim for the insured amount Rs.1,00,000/- with the Opposite Party through

Contd…….7

Opposite Party No.2 and submitted all necessary documents required by the Opposite Party No.2. The Complainant has produced 15 documents before this Forum which are marked as Exs.C-1 to Exs.C-15. Ex.C-1 is the policy cover note

Ex.C-2 is the certificate + discharge summary, Ex.C-3 to Ex.C-5 are the medical bills, Ex.C-6 is the claim form with annexure, Ex.C-7, 8 and 9 are the communications, Ex.C-10 is the medical certificate, Ex.C-12 is the legal notice, Ex.C-15 is the reply to legal notice repudiating the claim of the Complainant dated 7.10.2008.


20. Inspite of production of all required documents to the Opposite Party, did not oblige to pay the insured amount to the Complainant. The Opposite Parties repudiated the claim as per Ex.C-15.



21. The contention of the Opposite Party is that the Complainant has suppressed the pre-existing disease at the time of taking the policy. According to the Opposite Party the Complainant was suffering from pre-existing heart disease. He was admitted to Narayana Hrudayala, Bangalore on 29.10.2006 and he had undergone coronary Angiogram on 29.10.2006 followed by a coronary artery bye pass grafting on 2.11.2006 and he was discharged from the hospital on 10.11.2006.



22. On 16.4.2007 Dr.Praveen Kumar, Senior Consultant Cardiac Surgeon of Narayanan Hrudayalaya, Bangalore has issued a certificate with regard to the above facts and he has stated that “according to the medical records the Complainant was suffering from DYSPNOEA on exertion since 5 months and detected to have hypertension recently. No history of Diabetes Mellitus”. The disease DYSPNOEA refers to breathing problem or difficult in breathing. It is not a disease related to heart problem.



23. The counsel for the Opposite Party argued that as per the medical certificates the Complainant was having the problem since 5 months prior to the operation that means the problem must be 2 months prior to the taking of the policy. The policy was taken in the month of August 2006 within 3 months he has undergone the coronary artery bypass. Hence, there is clear suppression of pre existing ailment. Hence, the repudiation of the claim of the Complainant is justified.

Contd…….8

24. The Opposite Party further submitted that the complainant was diagnosed as a case of CAD with good IV function. Discharge summary further disclosed that the Complainant had treatment with previous medication i.e. Tap imdur/Tap Pantodac/Tap Atorval/Tap Metoprolol. It is further submitted that it is settled proposition of law that in medi claim policy pre existing diseases are not covered as per exclusion clause 4.1 of the policy issued to the insured. But in page No.3 the Opposite Party specifically submitted that the certificate issued by the Dr.Praveen Kumar Cardiac /Surgeon which cannot be accepted as he has failed to provide any explanation since how the Complainant was suffering from heart disease. Therefore, said certificate cannot be accepted by a prudent man. The plea taken by the Opposite Party is quite contrary to the argument. The Opposite Party has failed to produce documentary evidences that the Complainant had taken previous treatment for the heart disease in any of the hospital or with any doctors. Opposite Party has filed citations reported as follows:

1) IV 2004 CPJ 380

Legal Digest : State forum Tamilnadu LIc of India Vs. K.Muthammal : It was held by the Honb;e State Commission that the Insurance Company was correct in repudiating claim and treating the contract ab initio in account of suppression of material facts even when no nexus existed between cause of death and illness suppressed.

2) Appeal No.1263, State commission Dispute Redressal Commission, Circuit Bench, Rajasthan, Jaipur.

LIC Vs. Smt.Vimla Devi – Head notes : the policy was repudiated due to suppression of material facts. The District Forum held that there was no nexus of suppression with the cause of death. The State Commission observed that it was not necessary for the Insurance Company to have proved the nexus between the ailment prior to issuance of the policy and the cause of death was cardio respiratory attack, the medical certificate shows that the cause of death was also Tuberculoses, Repudiation upheld.

3) National Consumer Dipsutes Redressal Commission, New Delhi Revision Petition No.3197 of 2008 Manju Bai Vs. LIC of India.

Para No.4 : From the material on records and the statements of the surgeon who performed the renal transplant Surgery on the deceased assured, the State Commission has rightly concluded that the assured could not have developed such a kindly ailment, calling for renal transport on 28th June 1996 (i.e. within twenty eighty days of filing of the insurance policy proposal forms) if he was indeed hale and healthy on 31st May 1996, as he state in his replied to specific questions in the Annexure attached to the proposal forms. He also failed to comply with stipulation to infirm the material fact of his disease and hospitalization during the period between filing of the proposal form and acceptance of

Contd…….9

the policies by the LIC and therefore there was no deficiency of service, in terms of the provisions of the consumer Protection Act 1986 on the pat of the LIC in repudiating the insurance claim.

25. The facts and circumstances of the aforesaid cases and the principles adopted in deciding in the said matters do not squarely fall to the facts of the case on hand and hence the above said citations are not applicable in this case.

26. Counsel for the Complainant submitted that the Complainant had no knowledge about the heart problem at the time of taking the policy and he has not taken any treatment for the heart problem in any of the hospitals or from the doctors. He went to the Narayana Hrudayalaya hospital with a complaint of breathing problem and only after subjecting the Complainant for medical examinations the doctors advised him to undergo Coronary Angiogram and only after going through the Angiogram report the doctors came to a conclusion that the coronary artery bypass grafting is necessary and they have done the same. The Complainant was made known the heart problem only before the operation. Hence submitted that there is no suppression of pre-existing ailment and hence the repudiation of the claim of the Complainant is not justified.

27. The Opposite Parties have not produced any documents to show that the Complainant was suffering from pre existing heart disease at the time of obtaining the policy. The certificate issued by the Doctor of Narayana Hrudayalaya at Ex.C-10 discloses that the Complainant was suffering from dyspnoea on exertion since 5 months. DYSPNOEA is not a heart problem but the problem relates to the breathing. The bypass surgery was done only after detection of heart problem after angiogram. Therefore, we are of the opinion that Opposite Party is not justified in repudiating the claim of the Complainant. Hence the point No.1 is answer in the Negative.

Point Nos.2 to 4

28. In view of the Negative answer to point No.1, we hold that Opposite Parties have committed deficiency in their service and the Complainant is entitled for the reliefs. As per the medical bills the Complainant has spent Rs.1,72,500/- but he has lodged the claim for the insured amount of Rs.1,00,000/- for which he is entitles. Hence, point No.2 & 3 are answered in the Affirmative.

Contd…..10

29. In the result, we pass the following:

ORDER
Complaint is allowed. Opposite Parties are directed to pay to the Complainant a sum of Rs.1,00,000/- being the insured amount under the policy with interest @ 12% per annum from the date of claim, till payment. Opposite Parties are further directed to pay to the Complainant Rs.3,000/- towards the cost of the proceedings. Opposite Parties shall comply with the aforesaid order within one month from the date of receipt of this order.

1. Mrs.Devaki Menon, W/o.P.P.Menon,

2. P.P.Menon,

Devaprabha Thoppil Nagar,

Kalveerampalayam, Coimbatore-46 Complainants

Vs.

1. The Branch Manager,

National Insruance Co.Ltd. Branch IV,

930, Sathy Road, Coimbatore-12.

2. The Branch Manager,

TTK Healthcare Services Pvt.Ltd.

146, Sri Sai Baba Tower,

Raju Naidu Road, Tatabad,

Coimbatore 641 012. --- Opposite Parties.

ORDER

Complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the opposite parties to pay the difference of medical expenses Rs.44,831, to pay Rs.1,00,000/- towards compensation for mental agony and to pay cost of the proceedings.

The averments in the complaint are as follows:

1. The Complainants have availed services of the opposite parties by way of mediclaim. The complainants have taken a mediclaim policy vide Policy No.650104/48/06/8540000/5076 and the policy is in force since the inception of the opening of mediclaim policy by the opposite party No.1. The 2nd complainant admitted at Sri Ramakrishna hospital in Coimbatore for medical treatment such as incisional hernia/herneoplasty and systematic hypertension and type II DM.

The 1st complainant is also eligible for mediclaim under cashless for convenience. The 1st complainant was hospitalized for the period from 24.11.2007 to 10.12.2007. During the period of hospitalization 2nd complainant wanted to avail the mediclaim on cashless convenience. The 2nd opposite party who is the agent of 1st opposite party permitted to spend yp to Rs.30,000 but when the hospital wanted to enhance the medical expenses from Rs.30,000 to Rs.50,000 the 2nd opposite party straight away say “no” to the medical expenses. In that regard the Ramakrishna hospital did not want to undertake the responsibility from collecting medical expenses from the opposite parties.

2. The opposite parties having undertaken that 1st complainant can claim mediclaim upto Rs.2,60,000 without cash with Health card in hand issued by the opposite party, all of a sudden say a big “no” to undertake the medical expenses amounts to deficiency of service on the part of the opposite parties. The complainants never violated the policy terms and conditions and as per opposite parties advice only the complainant had gone to Sri Ramakrishna hospital.

The opposite parties have given a list of hospitals where the complainants can avail medical facilities and Ramakrishna hospital is also one of the hospitals which the opposite party prescribed. The complainant paid Rs.94,831 to Ramakrishna hospital for the treatment of 1st complainant and the opposite parties who are liable to pay Rs.94,831 paid only Rs.50,000 amounts to deficiency of services on the part of the opposite parties. The complainants sent a legal notice on 2.6.2008 to the opposite parties. Having received he notice sent by the complainants, the opposite parties did not choose to reply the notice amounts to acceptance of the averments of the legal notice sent by the complainants. Hence this complaint.

The averments in the counter filed by 1st Opposite party and adopted by 2nd opposite party are as follows:

3. The complainant has taken the mediclaim policy under this opposite party. The opposite party also can act according to the terms and conditions of the policy and as agreed upon by both the parties. As per the condition clause 3.12 of the policy,

Clause 3.12

“Reasonable and Customary expenses means: reasonable and customary surgical/medical treatment expenses within the scope of cover of the policy to treat the condition for which the insured person was hospitalized.

As per this condition the opposite party has settled the claim amount of Rs.50,000 according to the terms and conditions of the policy. There are no merits or bonafides in the complaint. Hence the complaint has to be dismissed.

4. The complainants and opposite parties have filed Proof Affidavit along with documents Ex.A1 to A8 was marked on the side of the complainant and Ex.B1 to B10 was marked on the side of the opposite parties.

The point for consideration is

Whether the opposite party has committed deficiency in service?

If so to what relief the complainants are entitled to?

ISSUE 1

5. The complainant has taken a mediclaim policy from the opposite parties and the terms and conditions is marked as Ex.B1. The contention of the opposite parties is that as per clause 3.12 of the policy, they have settled the claim for an amount of Rs.50,000/-. The extract of terms and conditions of the policy clause 3.12 is given below:-

“Reasonable and Customary expenses means: reasonable and customary surgical/medical treatment expenses within the scope of cover of the policy to treat the condition for which the insured person was hospitalized.

As per Ex.B5 the 2nd opposite party has stated that no expense under any heading was totally disallowed and it was shown as disallowed to arrive at the settlement amount. The 2nd opposite party has already given a reply stating the reasons for repudiation of the claim and agreed condition of the policy. The reply dt.8.5.2008 is marked as Ex.B8.


The relevant portions are given below:-

TTK HEALTHCARE SERVICES PRIVATE LTD.

……….

……….

7.4.2008

To

The Branch Manager,

National Insurance Co.Ltd.

930, Sathy Road, Gandhipuram,

Coimbatore.

TTK Id No.COM-NC-0000-HO-00012-B

Policy No. 650104/48/06/8540000/5076

Claimant:Mrs.Devaki Menon

Insured Name: Mr.P.P.Menon

Subject: Regarding the disallowance of the claim Devaki Menon

With reference to the above claim, we would like to inform you that the claim of Mrs.Devaki Menon for the ailment Ventral Hernia since 1 day for Hernioplasty was settled for Rs.50,000 which is reasonable and necessary for the treatment taken at Sri Ramakrishna hospital, coimbatore. Please also note that major hospitals in Coimbatore charge only below Rs.50,000/- for Hernioplasty. One of the speciality hospital in Coimbatore ie. Gem hospital charge only Rs.50,000 for hernioplasty. Hence the balance amount which is claimed is not payable under wide clause 3.12.


“Reasonable and Customary expenses means: reasonable and customary surgical/medical treatment expenses within the scope of cover of the policy to treat the condition for which the insured person was hospitalized.

Further under cashless facility for the said ailment, the hospital have requested for an amount of Rs.35,000 and subsequently we have approved Rs.20,000. This being the case we have settled this claim for an amount of Rs.50,000 against the exorbitant amount of Rs.94830.

Thanking you,
Yours faithfully,
(A.Petchimuthu)
Branch Manager.


6. After considering the charges levied by the other hospitals namely Gem, hospital etc. the opposite party has allowed Rs.50,000 “as a reasonable amount”. The complainants have already received the eligible amount as per the bills produced by them and as per the terms and conditions of the policy and they have settled the claim. Hence there are no merits in the complaint.

7. Hence for the above said reason, the repudiation of the claim by the opposite parties was based on medical records and as per terms, conditions in the policy and with due application of mind. Therefore the decision to repudiate the claim cannot be construed as deficiency of service. Hence the complainants are not entitled to any further relief from the opposite parties.

Shiv Lahari Singh, S/o Shri Lalan Singh

R/o Main Road, Chas, Near Chandra Talkies, Chas,

Dist. - Bokaro.

Versus

The National Insurance Co. Ltd,

Chas Branch Office, Natraj Mansion, Bye Pass Road,

Chas- 827013.

-: Judgment:-

The complainant has filed this case against the opposite party for payment of Rs. 200000/- as compensation

along with interest @ 12% till payment.

2 Brief fact of the case is that the complainant purchased a Xerox Machine from M/s Vipro-G Co. which was supplied by M/s Pravin Brother being distributers of the Company. The said Xerox Machine was financed by the United Bank of India and was insured by the National Insurance Co. Ltd. under Electronic equipments insurance policy for the period from 28.02.2001 to 27.02.2002. The financed Bank paid renewal premium to the insurance co. On 05.08.2002 the said Xerox Machine was damaged due to Electrical fire damaging the parts of its picture tube. The complainant reported the loss to the insurance co. and requested to appoint a surveyor to assess the loss damage.

The complainant also furnished and estimate of loss of Rs. 65000/- along with claim Form in the office of opposite party. But it was utter surprised of the complainant that without having inspection of the damaged Xerox Machine, the opposite party reputed the claim vide letter dated 09.09.2002 on the ground that the Xerox Machine was cover only for fire and theft risk, where as the claim intimated the damage was due to break down, as such the opposite party hold that risk of ground of break down was not covered under fire and theft policy, and accordingly the opposite party close the claim file of the complainant. However against the said repudiation of claim by the opposite party, the complainant referred the matter to the insurance Ombudsman, Kolkata and Ombudsman ordered dated 30.12.2004 that the repudiation of claim by the insurance co. was not justified and directed the insurance co. to depute one licensed and experienced Survivor with technical specialization in the related fields and review the claim passed of the Surveyor report. The opposite party deputed Shri Shamir Mukherjee Surveyor to conduct and assess the loss and the said Surveyor assessed the loss of Rs. 53000/- and the opposite party after deducting necessary deduction paid Rs. 49475/- to the United Bank of India as per agreed bank clause.

The complainant issued a notice against the opposite party against the said payment on the ground that the opposite party had not consider about the loss cause to the complainant due to repudiation of claim of the complainant of false and frivolous ground and also for not paying any interest on the claim amount causing financial loss to the complainant. Therefore, the complainant demanded compensation of Rs. 200000/- including up to date claim. The opposite party replied the notice of the complainant vide letter dated 10.09.2007 stating therein that the opposite party has discharged its duty as directed by the Ombudsman. Therefore, from the above averment it is clear that the opposite party has committed deficiency in service and also caused mental agony to the complainant on the ground of repudiation of claim on frivolous ground, hence the complainant is entitled to get the compensation claim in the relief from the opposite party.

3 Upon issuance of notice the opposite party appeared and filed its written statement. The opposite party has submitted that the claim against the opposite party is not maintainable and there is no cause of action in the present case, and the case is also barred by law of limitation, as such the present case is fit to be dismissed.


It is further submitted that the opposite party repudiated the claim of the complainant on 09.09.2002, therefore, the complainant challenged the said repudiation before the insurance Ombudsman, Kolkata where on 30.12.2004 an order was passed and it was recommended that the insurance co. may depute one licensed and experienced surveyor with technical specialization in the related filed and review the claim based on his survey report. Accordingly the insurance co. deputed Shri Samir Mukherjee to assess the loss but since the machine was repaired he submitted his report on the basis of repairing bill etc. The loss was assessed for Rs. 53000/- less policy excess Rs. 2500.00 and salvage Rs. 500/-. Accordingly the claim was settled between the both the parties and a cheque of Rs. 49475/- of Indian Overseas Bank vide cheque No. 716625 dated 29.06.2007 was issued in favour of the United Bank of India, Chas and Shiv Lahari Singh. The complainant put his signature on the disbursement voucher on 29.06.2007 with full and final satisfaction without any protest. It is further submitted that the opposite party had not advised to the complainant to go before Ombudsman rather it was the complainant’s choice. The insurance did their job in the light of order passed by the Ombudsman so the delay was not caused by the insurance co., rather the complainant is himself responsible.

Once the settlement was made as full and final and in the light of Ombudsman recommendation and if the party is not satisfied, he should go again before the same Forum, not this Forum. The complainant received the said amount and put his signature without any objection as indicating in the receipt as well as disbursement voucher, he is literate person. The Ombudsman examined the entire aspects at great length and recommended for proper assessment by a competent surveyor, which was done accordingly. The complainant did not raise for interest at the time of settlement of claim. It is after thought only to harass the insurance co. The present claim has already been settled in spite of that the complainant has filed the present case only to harass the opposite party. Therefore, there is no deficiency in service on the part of the opposite party and hence the present consumer complaint case is fit to be dismissed.

4 We have heard the complainant. The opposite parties failed to argue its case though it has already filed its written notes of argument. It is observed after the repudiation of the complainant’s claim by the opposite party on 09.09.2002; the complainant had challenged the repudiation before the office of the insurance Ombudsman, Kolkata. The Ombudsman passed an order dared 30.12.2004 directing the opposite party Insurance Co. to depute one Surveyor and to review the claim based on his survey report. The insurance co. there upon deputed Shri Samir Mukherjee to assess the loss who submitted his report on the basis of repair bill of the machine in question. The loss was assessed for Rs. 53000/- less policy excess Rs. 2500/- and salvage Rs. 500/-. Accordingly the claim was settled between both the parties for Rs. 49475/-. Cheque No. 716625 dated 29.06.2007 of Indian Overseas Bank for a sum of Rs. 49475/- was issued by the opposite party in favour of the complainant Shiv Lahari Singh. The complainant Shiv Lahari Singh received the said cheque after signing the disbursement voucher on 29.06.2007 with full satisfaction as full and final payment without any protest.

5 In view of the above we have come to the conclusion to hold that the opposite party has not been negligent and deficient towards the complainant. The opposite party, therefore, is not held liable to pay any relief to the complainant.

Minati Roy,

Wife of Chitta Ranjan Roy,

Vill.– Lohagara, P.O. – Maharaja Hat,

P.S. – Raiganj, Dist.– Uttar Dinajpur. Complainant.



versus



1) National Insurance Company Limited,

Represented by its Divisional Manager,

Division – III, Rubi House,

8, Indian Exchange Place (Ground Floor),

K O L K A T A – 7 0 0 0 0 1.



2) The Branch Manager,

Raiganj Branch,

National Insurance Company Limited,



3) Golden Trust Financial Services,

Represented through its Divisional Manager,

16, R. N. Mukherjee Road, Kolkata – 700 001.



4) The Branch Manager,

Golden Trust Financial Services,

Raiganj Branch, Uttar Dinajpur. Opposite Parties.



Judgment

Date: 23.07.2009.

This is a complaint Under Section 12 of Consumer Protection Act, 1986 filed by the Complainant, Minati Roy against Opposite Party/ Insurer, National Insurance Company Limited for a direction upon them to pay Rs.1,00,000.00 (rupees one lac) only, which is assured amount as per the policy taken by the deceased Debraj Sarkar of which the Complainant, Minati Roy is the nominee.

The case is that the deceased died of Electrocution accidentally on 20.08.2005. Thereafter, the Complainant being the nominee submitted the claim along with all the relevant papers to the Opposite Party/Golden Trust Financial Services, which interned resent those documents to the Opposite Party No. 1 for settlement of the claim. Thereafter, receiving no response from the Opposite Party No. 1, the Complainant served an Advocate Letter with the Opposite Party No. 1, which in reply asked for the relevant papers. The requirement of the Opposite Party No. 1 was complied with. But no fruitful result has yet been known by the Complainant. So this complaint has been filed for a direction to the Opposite Party No. 1 to pay a sum of Rs.1,00,000.00 (rupees one lac) only to the Complainant along with interest and also a sum of Rs.1,00,000.00 (rupees one lac) only as compensation for mental pain and agony.

Here we may note that Opposite Party No. 1 did not contest the complaint rather allowed the case to be heard ex-parte. But the Opposite Party/ Golden Trust Financial Services has contested the complaint by filing one Written Version, stating therein that Golden Trust Financial Services is the insure facilitator of National Insurance Company Limited.

Debraj Sarkar obtained a ‘Janata Personal Accident Insurance Coverage’ of National Insurance Company Limited covering the insured person Debraj Sarkar, since deceased for the period from 31.03.2003 to 30.03.2018 for sum insured as Rs.1,00,000.00 (rupees one lac) only. Minati Roy, the Complainant is his aunt and nominee of the policy, but the claim under the policy in question shall only be met by the Opposite Party/ Insurer as per memorandum of understanding in between them. Golden Trust Financial Services as further submitted has no any role to play in payment of the assured sum. The said Golden Trust Financial Services has sent all the relevant documents to the Opposite Party/ Insurer on 13.09.2006 for early settlement of claim. Two more reminders dated 05.03.2007 and 08.03.2008 were issued by Golden Trust Financial Services to the National Insurance Company Limited.


Taking the above plea, the Opposite Party No. 2 prays for dismissal of the case against Golden Trust Financial Services.

Decisions with reasons:

Complainant has filed several documents in support of her claim. Amongst the documents there is one letter dated 05.12.2007 sent by Opposite Party/ Insurer to the lawyer of the Complainant, Minati Roy asking to furnish certain documents. Next is the letter dated 19.02.2008, which is the answer to the letter dated 05.12.2007 of the Opposite Party/ Insurer. Letter dated 19.02.2008 written by the Ld. Lawyer for the Complainant shows the list of annexed documents as asked by the Opposite Party/ Insurer. Complainant’s case is even after submission of the required documents with the Opposite Party/ Insurer, no effective result was found. There is none from the side of the Opposite Party/ Insurer to appraise this Forum, what had remained short of the documents for discharging the policy. Complainant has filed her evidence in an affidavit narrating the entire incident, which actually went unchallenged.

The fact that the deceased died of Electrocution is supported by the Post Mortem Report of the deceased. He has purchased a ‘Janata Personal Accident Insurance Policy’ through Opposite Party No. 3, which happened to be franchisee of the scheme. Opposite Party No. 3 has also admitted the same in its Written Version. Letter dated 12.09.2006 sent to the Senior Divisional Manager, National Insurance Company Limited by the Opposite Party No. 3 again discloses that initially all documents were filed with the Opposite Party No. 3, which redirected the same to the Opposite Party/ Insurer for taking necessary action. List of documents given in the said letter and sent to Opposite Party /Insurer are, in our view, sufficient to consider the claim of the Complainant. But the Opposite Party/ Insurer kept its hands washed off since 2006, save and except asking the claimant to submit relevant documents to them on several occasions.

In the opinion of the Forum, Complainant was not fairly dealt with by the Opposite Party/ Insurer. The entire activity of the Opposite Party/ Insurer from the very beginning remained suspicious. They have no cogent ground to keep the matter pending since 2006. The paper, that the Complainant holds are sufficient to establish her claim. So, in our view, the Complainant by her statement in affidavit and on documents has been fairly able to prove her case and as such she is entitled to get an award as per prayer along with compensation against the Opposite Party/ Insurer. So, the case succeeds against the Opposite Party Nos.1&2 but fails against Opposite Party Nos.3 & 4.


Fees paid are correct.

Hence, it is ordered,


That the complaint is allowed ex-parte against Opposite Party Nos. 1 & 2 and dismissed against Opposite Party Nos. 3 & 4.


The Complainant, Minati Roy do get an award of Rs. 1,00,000.00 (rupees one lac) only against the Opposite Party Nos. 1 & 2 and also do get a sum of Rs.5,000.00 (rupees five thousand) only for mental agony and pain Opposite Party Nos. 1 & 2.



Further, she also do get a sum of Rs.500.00 (rupees five hundred) only as litigation cost.


The Opposite Party/ Insurer is directed to pay the total amount of Rs.1,05,500.00 (rupees one lac five thousand five hundred) only within one month from the date of this order, in default the entire amount shall carry an interest at the rate of 6.5 (six and half) percent per annum till full satisfaction.

Siddhartha Chowdhury,

Son of Late Mihir Kumar Chowdhury,

Proprietor of M/S B. S. Enterprise,

Hospitalpara, P.O. and P.S. – Islampur,

District Uttar Dinajpur, West Bengal. Complainant.

versus

1) The National Insurance Company Limited,

Malda Divisional Office,

Represented by the Divisional Manager,

93 A, Rebindra Avenue (2nd Floor),

P.O., P.S. & District – Malda.

2) The National Insurance Company Limited,

Represented by the Branch Manager,

Raiganj Branch, Uttar Dinajpur. Opposite Parties.

Judgment

Date: 14.07.2009.

This complaint is filed by the Complainant, Siddhartha Chowdhury, Proprietor of M/s B. S. Enterprise, Hospitapara, Islampur, district Uttar Dinajpur praying for an award of Rs.1,34,600.00 (one lac thirty four thousand six hundred) only against the O.P./ Insurer. Sammerise fact of this case is as follows: -

The Complainant has got his shop room insured with the Opposite Party/ Insurer. On 11.02.2002 an incident of burglary took place in his shop. The incident was reported to the O.C., Islampur P.S., vide Islampur P.S. Case No. 26/02 dated 11.02.2002 Under Section 461, 379 IPC. Police of Islampur P.S. investigated the incident and concluded that value of the stolen article was around Rs.1,34,974.00 (one lac thirty four thousand nine hundred seventy four) only. Surveyor of the Opposite Party/ Insurer also assessed the value of the stolen articles to the tune of Rs.1,34,600.00 (one lac thirty four thousand six hundred) only. Complainant made several representation to the Opposite Party/ Insurer for disbursement of the assessed amount but no payment till the filing of the complaint has been made by the Opposite Party/ Insurer so, the present complaint.

Opposite Party/ Insurer has contested the present complaint by filing one Written Version. It is a very Written Version containing details of process that was initiated on receipt of the claim application of the Complainant. Now, on a cursory look at this lengthy Written Version, we get one point is admitted in paragraph – 9 of it.

According to paragraph – 9 Opposite Party/ Insurance Company appointed M/s S. K. Kundu and Associate to reexamine the documents produced by the Insured to Apex Surveyor Private Limited, Kolkata. The second assessing body as assessed the loss to the tune of Rs.1,34,902 and piasa 41(one lac thirty four thousand nine hundred two and forty one piesa) only. But finally, it has concluded its Written Version stating that Forum may pass appropriate order/ orders or appropriate direction in accordance with Law and Justice.

Decisions with reasons:

It is admitted fact that Complainant is the Proprietor of a shop named and styled as M/s B. S. Enterprise. It is also an admitted position that the said shop was insured with the Opposite Party/ Insurer’s Company. Complainant files a copy of the policy, from which it appears that the period of coverage of the insurance of his shop was in between 03.12.2001 to 02.12.2002. Complainant’s case is that on 11.02.2002 an incident of burglary took place in his shop. Naturally, he placed his claim for the disbursement of the loss, he has suffered due to the burglary. We go from his case further, that a Police Case was started over the incident of burglary and Police duly investigation assessed the loss to the tune of Rs.1,34,974.00 (one lac thirty four thousand nine hundred seventy four) only. We also got a hint from the case of the Complainant that a surveyor is also appointed by the Company to assess the loss.

The Written Version of the Opposite Party/ Insurer discloses a very peculiar fact. It did not believe the report of the first surveyor appointed by it and appointed the second surveyor to assess the loss suffered by the Complainant. This second surveyor also assessed the loss to the tune of Rs.1,34,902.41 (one lac thirty four thousand nine hundred two and forty one piesa). It is not the case of the Opposite Party/ Insurer that it has thrown away the second report rather from the Written Version we do not find any comment on the second report made by Opposite Party/ Insurer. That is why it did not directly make any averment for the rejection of this complaint, if that be the line of thinking of the Opposite Party/ Insurer, this Forum fails to understand why it has not discharge the claim and compel the Complainant to come before this Forum. So, we find in conclusion of our discussion that the loss suffered by the Complainant is also an admitted position in this case. So the prayer is allowed.

Fees paid are correct.

Hence, ordered,

That the complaint is allowed, on contest, without cost, against the Opposite Party/ Insurer.

The complainant do get an order of award of Rs.1,34,600.00 (one lac thirty four thousand six hundred) only.

Putul Tikadar,

Wife of Late Gokul Tikadar,

Vill. – Tunivita, P.O. – Tungidighi,

P.S. – Karandighi, Dist. – Uttar Dinajpur. Complainant.



versus



1) The National Insurance Company Limited,

Malda Divisional Office,

Represented by the Divisional Manager,

93 A, Rebindra Avenue (2nd Floor),

P.O., P.S. & District – Malda.



2) The National Insurance Company Limited,

Represented by the Branch Manager,

Mohanbati, Raiganj Branch, Uttar Dinajpur.



3) The Golden Trust Financial Services,

Represented by the Manager,

Raiganj Branch, Bokultala (Ukilpara),

District – Uttar Dinajpur, West Bengal.



4) The National Insurance Company Limited,

Represented by its Divisional Manager,

Division – III, 8, India Exchange Place,

Kolkata – 700 001, West Bengal. Opposite Parties.

Judgment

Date: 14.07.2009.

We are sitting here to consider an application filed Under Section 12 of Consumer Protection Act, 1986 by Putul Tikadar, who claimed the disbursement of the assured amount of the policy, which her late husband has purchased from The National Insurance Company Limited, which is the Opposite Party of this case. Her husband faced an accident on 17.11.2004 and succumbed to his injury. The Complainant thereafter intimated the Opposite Party/ Insurer about the accidental death of her husband and claimed discharged of the policy, which her husband purchased. The Complainant complied with all the requirements asked by the Opposite Party/ Insurer. But the Opposite Party did not disburse the claim amount though Complainant has made several approaches to the Opposite Party for discharging the assured amount. So, the Complainant has come before this Forum for a competent order.


Opposite Parties 1 and 2 contested the claim application stating inter alia that they are not concerned with the relevant Insurance purchased by Late Gokul Tikadar. They asserted rather that Division – III of National Insurance Company Limited having its office at 8, India Exchange Place, Kolkata – 700 001, but at the time of issue of the concerned policy is office was at 1, Sakespere Sarani, Kolkata – 700071.

On the basis of the Written Version submitted by O.P. No. 1 and 2; O.P. No. 4 was added as Opposite Party, which has contested the claim application by filing one Written Version. The crux of the Version is that the identity of the Complainant could not be verified and Complainant is supposed inform the office of the death of the Insured as early as possible and all relevant documents/ papers be submitted to establish the genuineness of the claim. The final say of this Opposite Party is that the present claim application should be dismissed with cost.

Opposite Party Golden Trust Financial Services contested the complaint. Its case is that it played the role of intermediary between the Insured and Insurer.

The Complainant has filed a bunch of documents that include the 1) The Certified Copy of the F.I.R., 2) Certified Copy of Charge Sheet, 3) Money Receipt issued by the Golden Trust Financial Services, 4) Xerox Attested Copy of the Post Mortem Report, 5) Xerox Attested Copy of Death Certificate of the deceased Gokul, 6) Xerox Attested Copy of the, 7) Xerox Attested Copy of the Insurance Policy, 8) The Claim Form filled in by Superintendent, Raiganj District Hospital, Uttar Dinajpur duly signed by the Putul Tikadar, the Complainant and 9) A Letter issued by Golden Trust Financial Services to Late Gokul Tikadar.

Decisions with reasons:

As we find from the case of the both parties, the accidental death of Gokul, the deceased is admitted. Moreover, the P.M. Report and the Death Certificate of the deceased support the above contention. It is also admitted that Gokul, the deceased purchased one Policy of assured sum of Rs.2,00,000.00 (rupees two lacs) only from the Opposite Party/ Insurer on 23.07.2002, which was valid between 23.07.2002 to 22.07.2017. Admittedly, the deceased died with the validity of the Policy. Now, question is why the Opposite Party/ Insurer refused to admit the discharge of the assured sum.

Their case is, as we see, that the identity of the Claimant is very difficult to be determined. It is a very peculiar defense. There are so many avenues open to the Opposite Party/ Insurer to determine the identity of the Complainant. There is no any case of the Opposite Party/ Insurer that it had made any attempt as per the rule of the Insurance Company to determine the identity of the Complainant. It will not be out of context to say that this Insurer has been settling lacs of claims by following the process, available under their Rules and Regulations.

The second defense is that the Complainant has submitted her claim at a belated stage. We get however, admitted here that the complainant had submitted her claim before the Opposite Party/ Insurer. The Complainant is an inhabitant of a remote village. She had seldom knowledge about the paraphernalia to pursue the claim. Yet it should not pass our notice that collection of P.M. Report, Death Certificate of the deceased, C.C. of FIR, C.S. etc. is a strenuous job for a village woman time-taking also. So, we do not find any fault on the part of the Complainant in the matter of submission of her Claim Application. So, in our view has been able to establish her case for gating a favorable order from this Forum.

Fees paid are correct.

Hence, ordered,

That the complaint is allowed on contest against the O.P. No. 4 without cost and dismissed on contest without cost against Golden Trust Financial Services.

The Complainant do get an award of Rs.2,00,000.00 (rupees two lacs) only against the O.P. No. 4/ Insurer, which will be payable within one month from the date of this order, failing which an annual interest at the rate of 6.5 percent will be imposed on the total awarded amount.

Taslima Khatun,

Wife of Late Md. Khalil,

Village Mahabatpur, Choprajhar,

Post Office & Police Station Islampur,

District Uttar Dinajpur, West Bengal. Complainant.



vs



1) The Divisional Manager,

National Insurance Company Limited,

Division – III, National Insurance Building,

8, India Exchange Place, Kolkata: 700 001.



2) The Branch Manager,

National Insurance Company Limited,

Raiganj Branch, Mohanbati,

Raiganj, Uttar Dinajpur.



3) The Manager,

Golden Trust Financial Services,

Raiganj Branch, Mohanbati,

District – Uttar Dinajpur, West Bengal Opposite Parties.

Judgment


Date: 07.07.2009.


This application Under Section 12 of Consumer Protection Act, 1986 has been filed by one Taslima Khatun praying for re-imbursement of the insured amount against the Insurance Policy, which was taken by her husband Md. Khalil since deceased. Md. Khalil succumbed to his injury, which was caused by a road traffic accident on 21.08.2005. A police case was initiated and the insurance amount was asked for re-imbursement by the complainant. She submitted a claim application before the O.P. / Insurer along with all documents as asked for by the Insurer. But, no payment tills the filing of this complaint before this Forum. Hence this complaint filed for an order of reward of the sum assured (Rs.1,00,000.00) along with interest and other reliefs.

O.P., National Insurance Company Limited (hereinafter called as O.P./Insurer) has contested the present application for claim by filing one W.V. stating therein certain defence. A casual look upon the W.V. seems to be an avoiding one; O.P. does not admit or deny if the deceased insured was the holder of insurance policy under ‘Janata Personal Accident Insurance Policy’. It has been further alleged that the claim petition has been file on the expiry of the statutory provision and the conditions of the insurance policy. There is difficulty to ascertain the genuineness of the claimant/ nominee. The final averment of O.P./ Insurer is that no valid or authentic document has been received by the insurer from the claimant.

O.P. No. 3 has also contested this case by filing one W.V. It has admitted that the deceased, Md. Khalil obtained a ‘Janata Personal Accident Insurance Policy’ of the O.P. / Insurer being entrusted through the O.P. No. 3, which was entrusted to convince the public to take a policy like above nature under O.P./ Insurer. It has been asserted by this contesting O.P. that it has no responsibility to reimburse the claim amount.

Decisions with reasons:

This case is entirely based on documents filed in course of hearing of the case. The complainant has filed a bunch of documents, which includes 1) Xerox copy of F.I.R. (3 sheets), 2) Xerox copy of Charge Sheet (3 sheets), 3) Xerox copy of Policy Copy issued by National Insurance Company Limited (1 sheet), 4) Xerox copy of J.P.A.I. Policy Claim Form (1 sheet), 5) Xerox copy of letters, Sr. Divisional Manager, N.I.Co. Ltd. (1 sheet), 6) Xerox copy of letter, dated 08.12.2007 issued by G.T.F.S. (1 sheet), 7) Xerox copy of letter, dated 19.07.2007 issued by G.T.F.S. (1sheet), 8) Xerox copy of Certificate of Death (1 sheet), 9) Xerox copy of Post Mortem Report (1sheet). All the documents taking together make out a favourable case for the complainant. The O.P./ Insurer never assertively denied the accidental death of the deceased rather in its W.V., it remains evading on material points specially, the facing of a road traffic accident and resultant death of Md. Khalil. The copy of the F.I.R. and the charge sheet is a corroborative piece of evidence of the incident of accidental death of the deceased.


Admittedly, the deceased took an insurance of accidental death of himself making the complainant his nominee to receive the reimbursement of the assured amount. The O.P./Insurer, it is alleged never paid the amount to the nominee of the deceased, for reason yet unknown to this Forum. Being the position of the case this Forum is incline to hold that the complainant is entitled to get an award as applied for.

Fees paid are correct.

So, ordered,


That the complaint No. CC-13/2008 is allowed on contest against the O.P. No. 1 and 2 without cost and dismissed without cost against the O.P. No. 3. The complainant shall get an award of Rs.1,00,000.00 (rupees one lac) only. The assured amount to be disbursed by the O.P. No. 1 and 2 within one month from the date of this order; in default the awarded amount shall carry an interest at the rate of 6.5 percent per annum. The other reliefs as prayed for are rejected.

Varsha Chauhan D/O Shri Vishvajeet Chauhan

Vaishali Chauhan D/O Shri Vishvajeet Chauhan

Both minors through mother Smt. Geeta Chauhan

W/O Shri Vishvajeet Chauhan, All R/O Village Shawat, P.O. Veergarh, Tehsil Kumarsain, District Shimla, H.P.

… Complainant.

Versus

The National Insurance Company Ltd.

Divisional Office, Himland Hotel, Circular Road,

Shimla-1, H.P. through its Divisional Manager.
…Opposite Party
O R D E R:

Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant by invoking the provisions of Sections 11 & 12 of the Consumer Protection Act, 1986. The complainant avers that late Shri Visjhvajeet Chauhan was owner of Maruti Alto bearing registration No. HP-06-3535, which was duly insured with the OP-Company vide insurance policy Annexure A-1 commencing from 27.08.2004 to 26.08.2005 qua payment of premium. The complainant further proceeded to aver that late Shri Vishvajeet Chauhan was also insured under the policy for personal accident coverage for a sum of Rs.2,00,000/-.

It is asserted that the insured vehicle met with an accident on 29.10.2004 causing extensive damage to the afflicted vehicle and Shri Vishvajeet Chauhan, owner-cum-driver also met his end in the said accident. It is further averred that the claim was lodged with the OP-Company who deputed its surveyor to inspect the afflicted vehicle and submit the report. The OP-Company instead of indemnifying the claim, repudiated the same on the ground that late Shri Vishvajeet Chauhan was not having a valid driving licence at the relevant point of time. Hence, it is asserted that there is apparent deficiency in service on the part of the OP-Company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OP-Company filed detailed reply to the complaint. In the preliminary objections, it was contended that the complaint, is, not maintainable, as this Forum has no jurisdiction to entertain the present complaint and there is no enforceable cause of action. Also it was contended that the driver of the vehicle was not having a valid and effective driving licence to drive the vehicle, in as much, as, he was possessed of a learns licence. On merits, it is admitted that the vehicle was insured with it and it also met with an accident resulting in death of the owner-cum-driver. It is, denied that there is any deficiency in service on the part of the OP-Company.

3. We have heard the learned counsel for the parties at length and have also thoroughly scanned entire record of the case.

4. The complainant relies upon Annexures A-1 to A-4 illustrating the fact that the vehicle was duly insured with the OP-Company during the period 27.08.2004 to 26.08.2005. The fact of its having met with an accident on 29.10.2004, and the driver-cum-owner having met his end, is also, not in contest, interse, the parties. The only point, which requires adjudication, by this Forum is, as to whether there was breach of terms and conditions of the insurance policy, in as much, as whether the driver-cum-owner was competent to drive the vehicle being possessed with learner’s licence at the relevant time, without his being accompanied by a duly authorized driver.

5. The OP-Company in the reply has contended that the insured/driver of the car was possessing learner’s licence for LMV and as per Rule 3 of the Central Motor Vehicle Rules, 1999, a driver having a learner’s licence could not have driven the vehicle unless the person sitting with him, is, a duly licensed driver. The necessary condition necessitating compliance by the complainant for claiming indemnification, is, of the person possessing the driving licence being accompanied by a person having a valid and effective driving licence, when, the accident occurred.

Obviously, when the aforesaid condition of the person, who, was driving the vehicle, at, the relevant time, while, merely holding a learner driving licence, hence, being enjoined to be accompanied by a person possessing a valid and effective driving licence, hence, has been, contended by the OPs to have been not complied with, which fact of its non-compliance by the complainant, as, recited in their affidavit, has, not been repulsed or rebutted by the complainant. Obviously, its, non-rebuttal enables us to infer that the complainant omitted to rebut it, as, the said recital is truthful. Besides, omission on his part to rebut it, also, tantamounts to acquiescence by the complainant to the said recital.

Resultantly, the OP has been able to prove that the complainant while merely possessing a learner’s driving licence, whereas, it was statutorily ordained, as well, as ordained in the insurance cover of his being required to be accompanied by a person who was holding a valid and effective driving licence, his, for, reasons aforesaid, being not accompanied, so, by a duly licensed driver at the relevant time, infracts the mandate of the statute, as well, as of the terms and conditions on insurance cover. For such infraction, his, claim is liable to be discountenanced.

6. In the light of the above discussion, it is obvious, that there is no merit in the complaint. Resultantly, the complaint is dismissed.

Shri Rohit Kumar Battu C/O Mrs. Prem Cloth House,

Upper Bazar Solan, Tehsil and District Solan, H.P.
… Complainant.
Versus

The National Insurance Company Limited,

Through its Branch Manager.

The Mall Solan, Tehsil and District Solan, H.P.

…Opposite Party
O R D E R:

Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant, against the OP-Company, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. It is averred that the complainant purchased personal accident insurance policy from the OP-Company vie cover Note bearing No.004355 for a total sum of Rs.6,00,000/- effective from 31.12.2000 to 12.12.2001.

The complainant further proceeded to aver that on 27.03.2001 during the currency of insurance policy, he met with an accident and sustained injuries on his body due to skid of scooter as a result of which extensive damage was caused to the scooter. The complainant got his right hand thumb and arm plastered for six months and got his treatment from IGMC, Shimla and incurred more-than Rs.50,000/- and suffered 7% disability. It is further averred that the factum of accident was brought to the knowledge of the OP-Company and all the necessary documents were supplied for settlement of the insurance claim. It is averred that the OP-Company did not settle the insurance claim and dilly-dallied its payment on one pretext or other. Hence, it is averred that there is apparent deficiency in service on the part of the OP-company and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant-concern.

2. The OP-Company filed detailed reply to the complaint. The preliminary objections regarding limitation, maintainability of the complaint were raised. On merits, it is admitted that the complainant had purchased a personal accidental insurance policy on 13.12.2000 which was effective upto 12.12.2001. It is contended that the complainant did not complete the codal formalities and also did not submit the required documents and as such the OP-Company was left with no option but to close the claim of the complainant as ‘no claim’. However, the documents submitted by the complainant vide letter dated 03.07.2002 were vague and incomplete. It is contended that the complainant suffered 7% permanent partial disablement and the claim/benefit for the same works out to be Rs.14,000/- only, the capital sum insured being Rs.2,00,000/-. It is denied that there is any deficiency in service on the part of the OP-Company.

3. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case.

4. The complainant in support of the fact that he promptly processed his claim for relief to him as envisaged to him in the insurance cover purchased by him, from the OP-Company, has, placed, on, record various annexures. The OP-Company does not deny the fact that the complainant was covered under the insurance cover. The denial, is, limited to the effect, that the complainant had not, as desired, by the OP-Company adduced the requisite papers before it, hence, their non-production, disabled, the, OP-Company to process his claim.

5. The said contention in the reply of the OP-Company comes to be torn apart by Annexure C-7 dated 16.12.2004, which, is, a letter addressed to the complainant by the Branch Manager of the OP-Company divulging the fact that the complainant, as, revealed by the preceding annexures had promptly submitted all the relevant papers before the OP-Company. However, for lack of theirs being not arranged in a chronological order, the, complainant was asked to visit the office of the OP-Company to so arrange them. In Annexure C-7 it is not detailed that the papers, as, are now urged to have been not received by the OP-Company, were, not, received by the OP-Company from the complainant at the outset, rather, for lack of their having not been arranged in a chronological order, that, the complainant was asked to visit the office of the OP-Company. In any case, the OP-Company, may well, could have arranged the documents, as, submitted by the complainant to them, in, a chronological order without asking, for, the appearance of the complainant before the authroised functionary of the OP-Company to do so. Hence, it appears, that, at this stage, a, lame excuse has been projected in the reply of the OP-Company that, for, non-submission of the relevant documents, the, claim of the complainant could not be processed or that his claim, hence, was rejected, as no claim.

6. For reiteration, the falsity of the reason attributed for rejecting the claim of the complainant, as, no claim, is, revealed by Annexure C-7. Obviously when, their, was promptness on the part of the complainant to seek redressal of his claim, from the OP-Company, the bar of limitation cannot operate against him.

6. The result of the above discussion is, that, despite receiving of the relevant papers from the complainant, the OP-Company having not settled his claim, has committed deficiency in service. In the circumstances and facts, we deem it fit and expedient that the OP-Company be ordered in accordance with the relevant provisions enshrined in the insurance cover purchased by the complainant from the OP-Company, to, settle the claim of the complainant within a period of forty five days after the date of receipt of copy of this order and the admissible amount shall be defrayed to the complainant by the OP-Company within fifteen days thereafter. With these observations, the complaint stands disposed of. No order as to the cost.

P.R. Shaju
...........Appellant(s)

Vs.

National Insurance Company Ltd.
...........Respondent(s)


ORDER


The case of complainant is that he was a policy holder of respondent vide policy No.570701/48/06/850000637. On 3.9.06 he met with an accident and sustained injuries. He was taken to Thrissur Heart Hospital and undergone treatment till 6.9.06. After that he was re-admitted on 11.9.2006 due to pain and was discharged on 12.9.06. Later he applied for the insurance policy claim but was refused by the respondent. Hence this complaint.

2. The counter is that it is admitted by the respondent that complainant met with an accident on 6.9.06 and consulted the doctor. He admits that he was discharged on the same day. The subsequent hospitalization from 11.9.06 to 12.9.06 is for the investigation and evaluation of the ailment only. The investigations have been done on outpatient basis without the necessity of admission. So the claim was repudiated vide repudiation letter dt. 17.10.2006. The admission of complainant in the hospital is only to facilitate him to claim the expenditure made by him. Hence dismiss the complaint.

3. The points for consideration are:
(1) Is there any deficiency in service?
(2) If so, reliefs and costs.

4. The evidence consists of Exts. P1 to P3 and R1 series to R8.

5. Points-1 & 2: The complainant’s case is that he had met with a road traffic accident and sustained injuries and admitted in Thrissur Heart Hospital from 3.9.06 to 6.9.06. The accident was occurred on 3.9.06 and immediately he was taken to the hospital. According to him, he was re-admitted on 11.9.06 due to body pain and discharged on 12.9.06. Subsequently he applied for the policy claim. But it was refused by the Company.

6. In the counter it is stated that the complainant met with an accident on 3.9.06 and sustained injuries and admitted in Thrissur Heart Hospital. He was discharged only on 6.9.06. Subsequently due to body pain, he was re-admitted on 11.9.06 and discharged on 12.9.06. Ext. P1 the medical certificate of attending Doctor states that the first date of admission was on 3.9.06 and date of discharge on 6.9.06. It is also stated that re-admission on 11.9.06 and discharged on 12.9.06. Ext. R2 the copy of discharge summary reveals that the admission date as 3.9.06 and the discharge date as 6.9.06. Again Ext. R3 reveals that he was admitted on 11.9.06 and discharged on 12.9.06. So it is proved that he was admitted on 3. 9.06 due to injuries sustained in road traffic accident and treated in the hospital as inpatient. In the counter the respondent stated that complainant met with an accident on 6.9.06 and consulted the doctor as the precedent men do in the ordinary course.


It is also stated in the counter that complainant admits that he was discharged on the same day. But there is no such admission made by the complainant. In the complaint it is specifically stated that on 3.9.06 he met with an accident. The records submitted by both parties reveal that the date of accident was on 3.9.06 and he was taken to hospital and treated there as inpatient. According to the respondent, the subsequent hospitalization is for investigation and evaluation of the ailment only. Whatever may be the disease it is very clear that the complainant was treated as inpatient from 3.9.06 to 6.9.06.

7. As per Ext. P2 the reason for rejection of claim states as the present hospitalization is for the investigation and evaluation of the ailment. The investigations could have been done on outpatient basis without the necessity of admission for the same. But this finding of the respondent Company is utterly false.


The documents produced by the Company itself show that the complainant was treated as an inpatient from 3.9.06 to 6.9.06. The discharge summary of that period reveals the examination done and the treatment given. More over the respondent did not produce the policy conditions and exclusions to justify the rejection of claim. So the complainant is entitled to get the amount incurred as the medical expenses. The amount claimed by him is Rs.2842.83. There is no denial or dispute on this point.

8. In the result, the complaint is allowed and the respondent is directed to pay Rs.2842.83 (Rupees two thousand eight hundred and forty two and paise eighty three only) and Rs.3000/- (Rupees three thousand only) as compensation with cost Rs.500/- (Rupees five hundred only) to the complainant within a month.

Mariyamma. K. K
...........Appellant(s)

Vs.

National Insurance Company Ltd
...........Respondent(s)





ORDER




The complainants joined an insurance policy with the respondent vide policy No.01/8501138. Subsequently the first complainant was undergone treatment for Colloid goiter in Amritha Institute of Medical Sciences. The treatment expenses incurred were Rs.11,600/-. Later they applied for the insurance benefits with all documents. But was not allowed. The claim was rejected due to pre existence of disease. So a lawyer notice was issued. But the claim was not settled. Hence this complaint.

2. The case of respondent is as follows:
This respondent denies the averment that the first complainant has taken treatment for Colloid goiter only after taking the policy. The medical records submitted along with the claim form shows that the first complainant had disease even before the policy. The surgical pathology report, Amritha Institute of Medical Sciences shows that the first complainant has undergone a Fine Needle Aspiration Cytology test pertaining to her Thyroid complaint years before. She and her mother have admitted in writing to the investigator deputed by the company that she was hospitalized in Little Flower Hospital, Angamaly for a period of 2 weeks for the same disease. As the medical reports and investigation report clearly reveal the fact that the claim is for preexisting disease, the company has rightly repudiated the claim. There is no deficiency in service. Hence dismiss the complaint.

3. The points for consideration are :
1) Is there any deficiency in service ?
2) If so reliefs and costs ?

4. The evidence consists of Exhibit P1 and Exhibits R1 to R11 and the testimony of RW1.

5. Points : The complaint is filed to get insurance policy benefits from the respondent company. The case of complainants is that being subscribers of the policy No. 01/8501138, the first complainant is entitled to get treatment expenses incurred. According to them the first complainant undergone treatment for Colloid goiter in 2002 at Amritha Institute of Medical Sciences. They had incurred medical expenses for Rs.11,600/-. According to them the treatment was within the coverage of the policy and entitled to get treatment expenses.

6. In the counter the respondent stated that the medical records and investigation report clearly reveal the fact that the claim is for a preexisting disease and the company rightly repudiated the claim and the complainants are not eligible for policy benefit.

7. The claim of first complainant was repudiated on the ground of ‘preexisting disease’. According to the respondent the medical records submitted by the complainant along with the claim form clearly show that the first complainant was having the disease Goiter even before the policy was taken. The coverage of the period was 20/6/01 to 19/6/02. Exhibit R1 is the medical certificate issued from AIMS shows that probable duration of injury when the patient was first attended by the Doctor was 8 months. The date of admission shows as11/4/2002. So as per Exhibit R1 the disease was well within the policy period. In the counter the respondent further stated that the surgical Pathology Report of AIMS shows that the first complainant has undergone a Fine Needle Aspiration Cytology test years before. Exhibit R2 is the surgical pathology report shows that “ Previous FNAC site”.


There is no mention about the date of test and merely mentioned previous. It does not mean that before the policy the first complainant was suffered from the disease of Goiter and treatment was taken. Exhibit R3 the discharge summary states that the history of thyroid swelling of 8 months duration. Exhibit R3 was issued on 12/4/2002. So the disease was within the policy period and the first complainant is entitled to get treatment expenses from the company.

8. Another point put forward by the respondent to repudiate the claim is the finding of the investigator. The investigator deputed by the respondent company submitted 2 statements to the company and the company produced the statement and marked as Exhibits R5 and R6. These are the alleged statements taken from the first complainant and her mother. According to the respondent the first complainant and her mother have admitted clearly in writing to the investigator that the first complainant was hospitalized in Little Flower Hospital, Angamaly for a period of 2 weeks for the very same disease. Those statements show that the first complainant was a patient of Dr.Ranganathan and undergone treatment in Little Flower Hospital, Angamaly for the very same disease. Both the statements did not reveal the date of treatment.


The genuineness of these statements are doubtful. The marking of these documents was objected by the learned counsel of complainant on the ground that they were not issued such letters. Those statements can not be relied. The investigator who is examined as RW1 deposed that he had not visited the hospitals mentioned in the reports submitted by him. He also deposed that Exhibits R5 and R6 did not show that the complainant had suffered from the disease Goiter. Being an investigator it was his duty to visit the places personally and to collect the report. Taking statements like Exhibits R5 and R6 is not proper. He is bound to submit his report with cogent reasons.

9. The above discussion shows the dishonour of claim on the basis of preexistence of disease was unfair and the complainants are entitled to get compensation also. The repudiation of genuine claim is a serious deficiency in service and the respondent is liable to pay for it.

10. In the result the complaint is allowed and the respondent is directed to pay Rs.11,600/- (Rupees Eleven thousand and six hundred only), the medical expenses incurred and Rs.3,000/- (Rupees Three thousand only) as compensation and Rs.750/- (Rupees Seven hundred and fifty only) towards costs within one month.

Mr. Narayana Alva K.

S/o. Late K.M. Alva,

Aged about 60 years,

R/A. Usha Kiran,

Opp: Girija Clinic, Darbe,

Puttur,

Dakshina Kannada District. …….. COMPLAINANT



(Advocate: Sri.Deenanath Shetty).



VERSUS



1. The Branch Manager,

M/s. National Insurance Company Limited,

Branch Office: Shri Kshetra

Dharmasthala Building,

Main Road,

Puttur – 574 201.

Authorized Signatory.



2. TPA,

PTK Health Services Pvt. Limited,

Crimson Court – II No.4,

Jeevan Bhima Nagar,

Main Road, HAL Third Stage,

Bangalore – 560 075. ……. OPPOSITE PARTIES








1. The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.

The Complainant obtained health policy bearing No.602301/48/07/8500000820 for a sum of Rs.2,00,000/-, the said policy was valid from 26.9.2007 to 25.9.2008.

It is submitted that the Complainant has been hospitalized in A.J. Hospital from 16.6.2008 upto 03.07.2008 in connection with Hepatic Encephalopathy and he had been subjected to medical treatment and on 03.07.2008 he was discharged from the said hospital and thereafter the Complainant submitted the claim form. The Opposite Party No.2 repudiated the claim stating that the Complainant is chronic alcoholic and the present hospitalization is for alcohol abuse related ailment and the claim falls under exclusion clause 4.8 of the policy and the claim was rejected.

The Complainant submits that the repudiation is arbitrary, capricious the Complainant had not been on any point of time either afflicted with any condition or disease or defects or disorders or anomalies or had met with any accident under the influence of alcohol or using abuse of drugs etc. etc. It is submitted that the Complainant spent a total sum of Rs.1,25,000/-. The repudiation is not just and valid which amounts to deficiency in service and hence the Complainant filed the above complaint before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Parties to pay a sum of Rs.3,50,000/- towards the compensation and Rs.10,000/- towards the cost of the proceedings.



2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed version admitted the policy but it is contended that there is no cause of action for the complaint. The Opposite Party No.2 after applying its mind has recommended for repudiation of the claim of the Complainant for the hospitalization period 16.6.2008 to 3.7.2008 under the clause 4.8 of the policy. And further contended that since the Complainant has collected back all the claim papers, original medical reports and bills etc. the Opposite Party presumed that the Complainant has withdrawn his claim the Opposite Parties could not reject or honour the claim of the Complainant. It is contended that the Opposite Parties have not repudiated yet the claims of the Complainant and contended that the complaint is not maintainable and the Complainant is not a consumer and prayed for dismissal of the Complaint.



3. In view of the above said facts, the points now that arise for our consideration in this case are as under:

(i) Whether the Complainant proves that the Opposite Parties committed deficiency in service?



(ii) If so, whether the Complainant is entitled for the reliefs claimed?


(iii) What order?



4. In support of the complaint, Mr.Narayana Alva K (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. One Sri.Rajesh Shetty (CW2) – Neurologist – witness of the Complainant was examined and cross-examined by the learned counsels for the parties. 109 (one hundred and nine) documents were produced by the Complainant as listed in the annexure. One Sri.H.Chandrashekar Shetty (RW1), Branch Manager of the Opposite Party No.1 filed counter affidavit and answered the interrogatories served on him. Ex R1 to R18 were marked for the Opposite Party as listed in the annexure. Both parties have produced notes of arguments along with citations.

We have considered the notes/oral arguments submitted by the learned counsels and we have also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows: Point No.(i): Negative.

Point No.(ii) & (iii): As per the final order.
Reasons



5. Point No. (i) to (iii):

In the present case, the facts which are not in dispute that the Complainant obtained V-Arogya Bima Health Policy bearing No.602301/48/07/8500000820 for a sum of Rs.2,00,000/- and the said policy was valid from 26.9.2007 to 25.9.2008 (as per Ex R2).

Now the grievances of the Complainant is that he was admitted to A.J. Hospital Mangalore and he had been hospitalized as an inpatient from 16.6.2008 to 3.7.2008 and he has been diagnosed as Hepatic Encephalopathy by the doctor and thereafter he has submitted claim before the Opposite Party but the Opposite Party not honoured the claim stating that the claim falls under exclusion clause 4.8 of the policy is arbitrary and not just and valid.

On the contrary, the Opposite Party contended that the claim of the Complainant was referred to Opposite Party No.2 i.e., Third Party Administrator to process the claim and as per the hospital records the Complainant was diagnosed for Hepatic Encephalopathy and it shows that it is a chronic liver conditions is due to alcoholic abuse leading to Alcoholic Liver Disease (herein after called ALD) cirrhotic liver and stated that the Complainant was a chronic alcoholic earlier and contended that there is no cause of action for the Complainant to file a complaint. As per clause No.4.8 of the policy the Complainant is not entitled for any claim.

Now the point for consideration is that, though the claim was not repudiated by the Opposite Party but the Opposite Party in their version in Para No.11 stated that the Opposite Party No.1 before taking any decision on the claim handed over the letter written by the Third Party Administrator with enclosures to the Complainant to give a reasonable opportunities of explaining his defence in respect of the grounds urged in the said letter i.e., the letter dated 8.8.2008 that itself is sufficient to hold that the Opposite Party is not ready to honour the claim.

Now let us see what is the letter dated 8.8.2008 issued by the Third Party Administrator contains? On perusal of the aforesaid letter it makes clear that the discharge summary of the Complainant reveals that the Complainant diagnosed as Hepatic Encephalopathy, the claimant is a chronic alcoholic, stopped alcohol 15 days back, since the present hospitalization is for alcohol abuse related ailment the claim falls under exclusion clause 4.8 of the policy.

However, in this connection we have perused the policy i.e., document No.1 issued by the Opposite Party reveals that the Complainant was issued with V-Arogya Bima Policy for one members for a sum of Rs.2.00 lakhs which falls as per V-Arogya Bima Policy conditions. The exclusion clause No.4.8 defines as follows:

“The Company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of –

4.8: Convalescence, general debility, run-down condition or rest cure, congenital external disease or defects or anomalies, Sterility, Infertility, Venereal disease, intentional self injury and use of intoxication drugs/alcohol”.



From the above policy condition it is very clear that the expenses arising out of any conditions whatsoever included by any insured persons are excluded from claiming compensation.

It is a settled position of law that whatever the Insurance Company claims under exclusion clause, the burden of proof – onus to prove that the Complainant’s claim falls under the exclusion clause of the policy is squarely on the Opposite Party Insurance Company.

In the instant case, the Opposite Party relied several documents i.e., Ex R1 to R18 especially the hospital records as well as the evidence of the doctor who attended the Complainant. Obviously the discharge summary issued by the A.J. Hospital i.e., Ex R9 reveals that the Complainant came with a complaint of drowsiness and altered sensorium, coldness of body. Hospital was diagnosed as Hepatic Encephalopathy. The history of the patient as well as the case records of the A.J. Hospital i.e., document No.17 – doctor’s order dated 16.6.2008 recorded that the Complainant was a chronic alcoholic, stopped alcohol 15 days back. The another record i.e., document No.28 – reference record the opinion of the doctor discloses that the patient has Alcoholic Liver Disease.

On overall looking into the hospital records it revealed that the Complainant is a chronic alcoholic and stopped alcohol 15 days back. And further the evidence of the doctor who seen the Complainant i.e., Dr.Rajesh Shetty – CW2 deposed before the FORA that he has examined the Complainant and he admitted the statements recorded in the case sheet placed before the FORA and stated that ALD means ‘Alcoholic Liver Disease’ and also stated that medicine liverium given to prevent symptoms of alcohol. From the evidence of CW2, it is significant to note that the Complainant is suffering from Alcoholic Liver Disease and as per the discharge summary he has been diagnosed as Hepatic Encephalopathy. However, the Oxford Medical dictionary reveals that Encephalopathy is a neuropsychiatric syndrome caused by liver disease. Liver failure and portosystemic shunting of blood are the underlying causes.


In the present case, the case sheet reveals that the patient had ALD. When that being the case, the Encephalopathy caused due to liver disease is proved. As per the policy conditions under V-Arogya Bima Policy the Complainant is not entitled for any claim and his claim falls within the purview of exclusion clause 4.8 of the policy conditions. The policy conditions relied by the Complainant in this case i.e., relates to Mediclaim Insurance Policy (Individual) not related to the V-Arogya Bima policy which obtained by the Complainant in this case. Hence the same cannot be considered.

Taking the overall view we hold that the claim of the Complainant falls under exclusion clause 4.8 of the V-Arogya Bima policy hence the repudiation made by the Opposite Party Company is just and valid. Therefore, the complaint deserves to be dismissed. No order as to costs.



6. In the result, we pass the following:


ORDER

The complaint is dismissed. No order as to costs.