BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 28^th DAY OF SEPTEMBER, 2022

CONSUMER COMPLAINT NO.1294/2019

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

Aged about 76 years,

Residing at No.G-1,

Chandra Residency, No.10,

Bengaluru-560 003. ……COMPLAINANT

Rep by Sri.Hari Prasad M.S, Adv.

The Authorized Signatory,

Star Health and Allied Insurance Company Limited,

No.48/2, 1^st Floor,

Opposite to Canara Union,

Malleswaram,

Bangalore-560 003.……      OPPOSITE PARTY-1

The Authorized Signatory,

Star Health and Allied Insurance Company Limited,

New Tank Street,

Valluvar Kottam High Road,

Chennai-600 034.……      OPPOSITE PARTY-2

   Opposite party no.1 & 2 Rep by Sri.Janardhan Reddy., Adv.,

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

The complainants have filed this complaint U/s 12 of the Consumer Protection Act, 1986 seeking for direction to the opposite party No.1 & 2 to reimburse the claim of Rs.1,25,000/- and to pay a sum of Rs.25,000/- towards mental agony, trauma and hardship sustained by the complainant and a sum of Rs.30,000/- towards legal expenses, in all a sum of Rs.1,80,000/- with interest at the rate of 18% p.a. from the date of repudiation till realization and such other reliefs as this commission deems fit in the circumstances of the case.

2. It is not in dispute that insured/Mr.Achuthan Unni took Senior Citizens Red Carpet Health Insurance Policy for his father (Mr.K.V.S.Unni).  Further the policy was commenced from 21.09.2011 and continued till 20.09.2018 and been renewed in every year.  Further during the 7^th year the insured claimed mediclaim insurance policy.  Further, the insured was admitted on 08.09.2018 in SBF Health Care, Bangalore and discharged on 28.09.2018.  Further, it is not in dispute that the claim of the complainant came to be rejected on the ground that the insured was treated with sequential programmed magnetic field (SPMF therapy) as per exclusion No.12 of the policy. 

3. It is the further case of the complainant that he had spent Rs.1,25,000/- for the treatment and had paid the same by way of credit card.   Further, without any reason the opposite party No.1 & 2 had repudiated the claim of the complainant.  Further, the complainant got issued a legal notice dt.23.01.2019 to opposite party No.1 & 2 to reconsider the claim of the complainant, but the opposite party No.1 & 2 did not reimburse the claim.  Hence, the complaint came to be filed.

4. It is the further case of the opposite party No.1 & 2 that as per Clause-12 of the policy, the complainant is not entitled for the reimbursement of the claim and sought to dismiss the complaint.

5. To prove the case, the complainant (PW1) has filed affidavit in the form of her evidence in chief and got marked EX.P1 to P6 documents.  The legal officer of opposite party No.1 & 2 (RW1) has filed affidavit in the form of his evidence in chief and got marked Ex.R1 to R8 documents.  

 6. Counsel for the complainant has filed written arguments with citations and counsel for the opposite party has also filed written arguments. 

 7.  Heard the arguments on both the sides.

         8. The points that would arise for consideration are as under:

i) Whether there is deficiency of service on the part of the opposite party No.1 & 2 ?

    ii) Whether the complainant is entitled for the  

         compensation as sought ?

     iii) What order ?

  9.   Our findings on the aforesaid points are as follows:

Point No.1 :  In affirmative

Point No.2 :  Partly in affirmative    

Point No.3 :  As per the final order for the following;

REASONS

10.POINT NO.1:- The complainant (PW1) and legal officer of opposite party No.1 & 2 (RW1) have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief. There is no dispute with regard to the insured (complainant’s father) took treatment as an inpatient and the policy was in force during the said period from 21.09.2011 to 20.09.2018.  Further, it is not in dispute that the policy was renewed in every year from 2012 till 20.09.2018.  Further, the insured was admitted on 08.09.2018 in SBF Health Care, Bangalore and discharged on 28.09.2018.  EX.P2 is the treatment summary issued by SBF Health Centre, in which it is stated that the treatment was started on 08.09.2018 and completed on 28.09.2018 and the insured was aged 75 years at that time and he was admitted to the hospital with complaints of pain in both the knees.  Further, it was revealed during the investigation in the x-ray that the patient had arthritis changes in both knees, right knee-Grade-IV, Left knee-Grade-IV.  Further, he was advised for treatment using sequential programmed Magnetic Field (SPMF Therapy) for 21 days consecutively.  Further the patient had undergone the said treatment.

   11. Further, the complainant claimed for the reimbursement. EX.P4 is the repudiation of the claim, in which it is stated that as per Exclusion-12 of the policy, the companies are not liable to make any payment in respect of the expenses incurred by the insured person for SPMF therapy.  EX.P6 is the legal notice dt.23.01.2019 issued by the complainant for claiming reimbursement.  Ex.R8 is the reply given by the opposite party no.2 dt.05.02.2019 stating that as per Exclusion Clause-12 of the policy the companies are not liable to make any payment.   EX.R6 is the repudiation claim.  EX.R7 is the copy of the notice sent by the complainant to the opposite party No.1 & 2. 

12. It is the contention of the learned counsel for the opposite party No.1 & 2 as averred in the version that the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer.  The insured cannot claim anything more than what is covered by the insurance policy.   In support of the contention, the counsel for the opposite party No.1 & 2 relies the judgment reported in Sony Cherian V/s Oriental Insurance Company Limited, 1999(6) SCC 451.  Even though the opposite party had relied the judgment, the copy of the judgment has not been produced. 

13. Contrary to that, the contention of the learned counsel for the complainant that in view of the judgment rendered by the Hon’ble NCDRC in Writ Petition No.2362/2014 dt.23.02.2015 between New India Assurance Company Limited and others V/s Ishu Motwani, the complainant is entitled for the reimbursement. In the case on hand, admittedly the complainant had undergone SPMF therapy.  In EX.P1 policy in Clause-12, it is not stated that the above said therapy is excluded.  Further in EX.R3 policy also it is not stated that the SPMF treatment is excluded.  In the judgment relied by the counsel for the complainant, it is observed in para-6 that when SPMF therapy is not specifically excluded, the opposite party No.1 & 2 in repudiating the claim on the ground that the treatment is similar to RFQMR without adducing any expert evidence to that effect or filing the affidavit of any doctor to evidence the same, amounts to deficiency of service.  In the case on hand, since the therapy undergone by the insured has not been excluded in the coverage, the complainant is entitled for reimbursement.  Further in spite of request and notice been issued by the complainant, the opposite party No.1 & 2 did not reimburse the same.  Accordingly, we answer this point in affirmative.   

14. POINT NO.2:- The complainant claimed for a sum of Rs.1,25,000/- towards medical bill.  In EX.P3 consolidated invoice issued by SBF Health Centre, it is stated that the cost of the treatment (SPMF) of Rs.1,25,000/-.  The opposite party No.1 & 2 did not dispute the medical expenses incurred by the complainant.  Hence, we feel the complainant is entitled for the said amount of Rs.1,25,000/-.  Further towards mental agony the complainant is entitled for a sum of Rs.20,000/- and a sum of Rs.10,000/- towards litigation cost.  The complainant is entitled for interest at the rate of 9% p.a. from the date of repudiation i.e., from 09.11.2018 till realization.  Accordingly, we answer this point partly in affirmative. 

15. POINT NO.3:-  In view of the discussion made above, we proceed to pass the following;

The complaint is allowed in part.

The opposite party No.1 & 2 are directed to pay a sum of Rs.1,25,000/- with interest at the rate of 9% p.a. from the date of repudiation i.e., 09.11.2018 till realization.

Further, the opposite party No.1 & 2 are directed to pay a sum of Rs.20,000/- towards mental agony suffered and a sum of Rs.10,000/- towards litigation cost. 

The opposite party No.1 & 2 shall comply the order within 30 days. In case, the opposite party No.1 & 2 fail to comply the order within the said period, the above said amount of Rs.30,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stand disposed of in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 28^th day of September, 2022)                                            

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA, K)    
•  

Witness examined for the complainants side:

Sri.K.V.S.Unni, the Complainant has filed his affidavit.

Documents marked for the complainant side:

1. Copy of terms and conditions of the policy.
2. Copy of the treatment summary dt.28.09.2018.
3. Copy of the consolidated invoice.     
4. Copy of the repudiation letter.  
5. Copy of the laudable remarks with typed copy.
6. Copy of Legal Notice dt.23.01.2019.

Witness examined for the opposite party side: 

1. Sri.Virupaksha, Legal Officer of the Opposite Party No.1 & 2 has filed his affidavit.

Documents marked for the Opposite Party side:

1. Copy of the policy bearing No.P/700001/01/2018/008039.

2. Copy of the policy proposal dt.20.09.2011.

3. Copy of the policy terms and conditions.

4. Copy of the claim form dt.10.04.2018.

5. Copy of the treatment summary dt.04.08.2018.

6. Copy of the repudiation letter dt.09.11.2018.

7. Legal notice dt.23.01.2019.

8. Reply notice dt.05.02.2019

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA, K)    
•