Date of Filing:23.10.2008

Date of Order: 20.03.2009

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20

Dated: 20th DAY OF MARCH 2009

PRESENT

Sri. Bajentri H.M, B.A, LL.B., President

Smt.C.V. Rajamma, B.Sc., LL.B., PGDPR, Member


COMPLAINT NO. 2267 OF 2008

Sri. N. Bhyrappa,
S/o. Late Nanjundappa,
Aged About 48 Years,
R/at: No.158, 12th Cross,
Vinobha Road, Pipeline,
Kalyna Nagara, T.D. Halli,
BANGALORE-560 057. …. Complainant.

-V/s-

1.M/s. Swastik Health Care,
Sponsored by M/s. Swastik
General & Healthcare Services Pvt. Ltd.,
Rep. by its Manager,
Administrative Office:-
Kamadhenu Corner,
# 399, 2nd Floor, 1st Main,
1st Stage, 3rd Phase,
Manjunath Nagar,
West of Chord Road Main Road,
BANGALORE-560 010.

2.United India Insurance Co. Ltd.,
Rep. by its Manager,
No.24, Classic Building,
1st Floor, Richmond Road,
BANGALORE-560 025.

3.The New India Assurance Co., Ltd.,
Rep. by its Divisional Manager,
Divisional Office-7,
Hudson Circle,
BANGALORE-560 027. …. Opposite Parties.

ORDER

This complaint is for a direction to the opposite parties to pay jointly severally a sum of Rs.2,70,679/- with interest at the rate of 24% per annum from the date of complaint till the date of payment. The case of the complainant is as under:-
The complainant is a member of the Health Care Scheme sponsored by opposite party No.1 M/s. Swastik Health Care since three years. For the first year the membership was valid from 04.10.2005 to 03.10.2006. The wife, daughter and son of the complainant are also the associate members of the said Scheme. The complainant got the membership renewed for the year 2006-2007 for the period from 30.09.2006 to 29.09.2007. Opposite party No.1 issued certificate disclosing the insurance policy number issued by opposite party No.2, The United India Insurance Company. He also got the membership renewed for the year 2007-2008 for the period from 30.09.2007 to 29.09.2008 and opposite party No.1 issued the certificate disclosing the policy number of opposite party No.3, The New India Assurance Company. Smt. G.B. Sharada the wife of the complainant suffered from severe headache in January-2008 and was admitted to Sarojini Hospital, T. Dasarahalli, Bangalore, on 17.01.2008. After examinations she was diagnosed as suffering from Sinusitis with Left Fungal Sinusitis. After the treatment she was discharged from the hospital on 21.01.2008 with advice for bed rest and follow-up treatment. The complainant incurred expenses of Rs.29,474/- for treatment of his wife in Sarojini Hospital. Even thereafter the wife of the complainant suffered the same ailment continuously and therefore she was taken to KIMS Hospital and as per the advice she was admitted to the KIMS Hospital on 24.03.2008 and after treatment she was discharged on 03.04.2008. The complainant spent Rs.36,206/- for the treatment of his wife in KIMS Hospital. He submitted all the relevant documents and medical bills to the opposite party and claimed reimbursement of the medical expenses, but the claim was repudiated. The policy was in force when the claim was made. Non-settlement of the claim amounts to deficiency of service. On account of non-settlement of the claim the complainant suffered hardship and mental agony, therefore entitled for the compensation of Rs.2,00,000/-. Hence the complaint.

2. In the version the contention of opposite party No.1 M/s. Swastik General Insurance And Health Care Services Private Limited is as under:-
The insurance scheme is only launched by opposite party Nos. 2 and 3. Therefore the claim lies only against opposite party Nos. 2 and 3. The statements in Para-4 of the complaint are denied. The statements in Para-3 of the complaint are in-correct. Opposite party No.1 is not aware of the same. The sum of Rs.29,.474/- is exaggerated and opposite party Nos. 2 & 3 have already repudiated the claim of the complainant. The statements in Para-6 of the complaint are denied. The sum of Rs.36,206/- is also exaggerated and opposite party Nos. 2 & 3 have already repudiated the claim. Opposite party No.1 forwarded the documents of the complainant to the Insurance Company in time. The role of opposite party No.1 is only to help the people, but not to make payment. The insurance policy is issued by opposite party Nos. 2 & 3 and not by opposite party No.1. The statements in Para-6 of the complaint are denied. Opposite party No.1 is not liable to pay any amount. There is no deficiency in service on the part of opposite party No.1 as it has not issued any insurance policy. The total claim of Rs.2,70,679/- is also disputed. Opposite party No.1 has only assisted the complainant and the insurance amount is remitted to the Insurance Company. The Insurance Company has already rejected the claim on the ground that, the disease is not covered under the policy. On these grounds opposite party No.1 has prayed for dismissal of the complaint.

3. The contention of opposite party No.2, The United India Insurance Company is as under:-
The complainant has not made-out minimum required averments to make-out a case of deficiency in service. The complaint is filed contending that indemnification is required in respect of the hospitalization of Smt. G.B. Sharada from 17.01.2008. The complainant has not made any averment to the effect that there existed any policy of insurance to cover the risk as on the date of admission for the alleged ailment of the wife of the complainant. The complainant has made a clear mention that, the risk was covered under a policy of insurance issued by M/s. The New India Assurance Company. Therefore opposite party No.2 is neither a necessary nor a proper party to the proceedings. The complainant appears to have impleaded opposite party No.2 for the purpose of luxury, but such a course is not open. Since the alleged risk is not covered by opposite party No.2 during the relevant point of time it is not necessary to traverse the contentions in the complaint. On these grounds opposite party No.2 has prayed for dismissal of the complaint.

4. The contention of opposite party No.3, The New India Assurance Company is as under:-
The complainant is not entitled to seek any relief from opposite party No.3, because as per Clause-4.3 of the terms and conditions of the policy opposite party No.3 is not liable to reimburse the medical expenses in respect of any disease arising within a year from the date of obtaining the policy. Therefore opposite party No.3 has no liability under the insurance policy. Opposite party No.3 issued the policy and the same was in force for the period from 30.09.2007 to 29.09.2008. The ailment of the complainant’s wife is said to have been diagnosed in the month of January-2008 which is within two years from the date of taking the insurance policy. Therefore any claim within a period of two years of commencement of the policy is not entertainable as per Clause-4.3 of the policy. Therefore opposite party No.3 cannot be saddled with any liability. On these grounds opposite party No.3 has also prayed for dismissal of the complaint.

5. In support of the claim, the complainant has filed his affidavit. In spite of sufficient opportunity opposite party Nos.1 to 3 have not adduced evidence. When the matter came up for arguments the learned counsel for opposite party Nos. 1 and 3 remained absent. We have heard the arguments of the learned counsel for the complainant and opposite party No.2.

6. The points for consideration are:-
(1) Whether the complainant has proved deficiency in service on the part of the opposite parties?

(2) Whether the complainant entitled to the relief prayed for in the complaint?

7. Our findings on the above points are:-
POINT NO.1:- In the affirmative as against
opposite party No.1
POINT NO.2:- As per final order

REASONS

POINT Nos. 1 & 2:-
8. From the documents on records it is clear that the complainant had availed the services of opposite party No.1 Swastik General Health Care & Service for obtaining the insurance policies. As per the receipt dated: 08.09.2007 opposite party No.1 collected Rs.4,190/- from the complainant towards admission fee and membership fee. The certificate of insurance was also issued by opposite party No.1 for the period from 30.09.2007 to 29.09.2008 mentioning the name of the insurer as M/s. The New India Assurance Company, namely opposite party No.3. Even for the period from 30.09.2006 to 29.09.2007 opposite party No.1 issued the insurance certificate disclosing the name of the insurer as M/s. United India Insurance Company namely opposite party No.2. It was opposite party No.1 who had issued the membership card to the complainant and the members of his family from time to time. From this it can be inferred that opposite party No.1 used to receive the subscription amount from the members and use to take insurance policy from the Insurance Companies on behalf of and for the benefit of the members. The terms and conditions of the Scheme are printed on the back of the certificate issued by opposite party No.1. In Clause-10 of the terms and conditions with regard to the ‘Exclusions’ it is stated that, “during the first year of operation of the policy the expenses on treatment of diseases such as Benign Prostatic, Hyperthrophy, Hernia, Hydrocele, Congenital internal disease, Fistula in Anus, Piles, Sinusitis and related disorders are excluded”. Opposite party No.3 contends that, since the ailment suffered by the wife of the complainant was within one year from the inception of the policy issued by them the claim was repudiated under Clause-4.3 of the terms and conditions of the policy. Since it was opposite party No.1 who obtained the insurance polices from the Insurance Company from time to time it is deemed that, they are aware of the exclusion Clause-10 printed on the back of the insurance certificate issued by them so also Clause-4.3 of the terms and conditions of the policy issued by the Insurance Company. The contention of the complainant that, he has been subscribing to the membership of opposite party No.1 right from 2005 without any break is not denied by opposite party No.1. From the copies of the insurance certificates also it is seen that, the complainant obtained the insurance polices for the year 2006-2007 and 2007-2008 without any break. Being fully aware of condition No.10 of the terms and conditions opposite party No.1 obtained the insurance policy for the period from 30.09.2006 to 29.09.2007 from opposite party No.2 and it obtained insurance policy for the period from 30.09.2007 to 29.09.2008 from opposite party No.3. Therefore the insurance policy obtained from opposite party No.3 for the period from 30.09.2007 to 29.09.2008 was a first policy. The wife of the complainant was admitted to the hospital for treatment in January and March-2008 which is within one year from the inception of the policy issued by opposite party No.3 and therefore opposite party No.3 rightly repudiated the claim based on Clause-4.3 of the terms and conditions of the policy. If opposite party No.1 has obtained the insurance policy for the period from 30.09.2007 to 29.09.2008 also from opposite party No.2 it would have been in continuation of the earlier policy issued by opposite party No.2 for the period from 30.09.2006 to 29.09.2007 and in that event there was no scope for opposite party No.2 to repudiate the claim, because the wife of the complainant had suffered the ailment during the second year of the insurance policy. The complainant is deprived-of the benefits of the policy, because opposite party No.1 obtained the insurance policy from opposite party No.2 for the period 2006-2007 and from opposite party No.3 for the period 2007-2008 and thereby it was convenient for opposite party No3 to repudiate the claim on the ground that, the wife of the complainant suffered from the disease within one year from the inception of the policy. As a Corporate Agent of the Insurance Companies a duty is cast on opposite party No.1 not to force the insured to change the Insurance Company, as per Clause-9 of the Notification dated: 16.10.2002 issued by the Insurance Regulatory & Development Authority. It is not even the case of opposite party No.1 that only at the instance of the complainant the insurance policy for the year 2007-2008 was obtained from a different Insurance Company. The act of opposite party No.1 in changing the Insurance Company every year deprives the insured the benefits flowing from insurance policies. Only on account of the deliberate negligence of opposite party No.1 the complainant is deprived-of the benefit under the policy. As stated earlier if opposite party No.1 had obtained insurance policy for the year 2007-2008 from opposite party No.2 the complainant would not have been placed in the situation which he is now facing. Since the insurance policy issued by opposite party No.3 was the first policy no fault could be found with opposite party No.3 in repudiating the claim. Therefore for the lapses on the part of opposite party No.1 we deem it fit to fasten the liability on opposite party No.1 alone and not on opposite party No.3. No liability can be fixed on opposite party No.2, because they had not issued the insurance policy for the relevant period. From the medical records produced by the complainant it is clear that, the wife of the complainant was hospitalized in Sarojini Hospital from 17.01.2008 to 21.01.2008 and the complainant spent Rs.29,474/- for treatment of his wife in the said hospital. Again the wife of the complainant was admitted to KIMS Hospital from 24.03.2008 to 03.04.2008 and the complainant spent Rs.36,205/- for treatment of his wife in the said Hospital. Thus the complainant has spent Rs.65,679/- for the treatment of his wife. Since the complainant is deprived-of the benefit of claiming reimbursement of the said amount from the Insurance Company on account of the lapses on the part of the opposite party No.1 we hold that, opposite party No.1 is liable to reimburse the said amount to the complainant. In the result, we pass the following:-

ORDER

9. The complaint is Dismissed against opposite party Nos. 2 & 3 and Allowed–in-part against opposite party No.1.

10. Opposite party No.1 shall pay Rs.65,679/- to the complainant with interest at the rate of 9% per annum from the date of the complaint till the date of payment and shall also pay costs of Rs.2,000/-. Compliance of this order shall be made within eight weeks from the date of communication.

11. Send a copy of this order to both the parties free of costs immediately.

12. Pronounced in the Open Forum on this 20th DAY OF MARCH 2009.

-Sd/- -Sd/-
MEMBER PRESIDENT