BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH,                                                                                                    MANGALORE

Dated this the 9^th November 2016

PRESENT

       SRI. VISHWESHWARA BHAT D  : HONBLE PRESIDENT

       SRI. T.C. RAJASHEKAR                : MEMBER

ORDER IN

C.C.No.425/2014

(Admitted on 11.11.2014)

    Sri.  Sathyashankar K

    S/o Sri. Gopalakrishna Bhat K

    Aged about 50 years

    R/at Sukritha, Samethadka,

    Puttur Taluk.

                                                  ….. COMPLAINANT

(Advocate for the Complainant: Sri NBPR)

VERSUS

1. Branch Manager,

    Life Insurance Corporation India,

    Opposite Bhavani Shankar Temple,

    Puttur Branch,

    Puttur.

2. Manager,

    LIC of India,

    Divisional Office,

    Jeevan Krishna PB No.8, Azzaekad,

    Udupi, D.K.

                                 …....OPPOSITE PARTIES

(Opposite Party No.1: Ex parte)

(Advocate for the Opposite Party No.2: Sri. AKU)

ORDER DELIVERED BY HON’BLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain reliefs. 

  The brief facts of the case are as under:

     The admitted facts between the parties are that the complainant contends he obtained health plus Insurance Policy from opposite party No.1 issued by opposite party No.2.  The complainant further submits due to displaced fracture of right condyle of mandible due to trauma injury sustained by him on 14.04.2014, he was admitted and underwent ORIF under general anesthesia in Mangala Hospital and Mangala Kidney Foundation, Vajra Hills, Kadri Road, Mangalore 3.  He was discharged on 16.04.2014 and spent more than Rs.50,000/.  Inspite of bringing this fact to the notice of opposite parties with necessary documents with the legitimate claim, the opposite party without any basis repudiated complainant’s claim.  To the legal notice of complaint dated 31.07.2014, opposite party No.2 issued reply dated 2.08.2014 mentioning its in reconsideration of competent authorities as their Hyderabad office.  Hence complainant seeks direction to opposite parties to pay Rs.50,000/ and also pay compensation of Rs.2,00,000/ towards mental agony, hardship, loss and inconvenience caused to the complainant. The opposite party further contends as per discharge summary of the said hospital the complainant was in hospital from 14.04.2014 i.e., 16.08 pm to 16.06.2014 i.e. 17.05 pm for the treatment of right condylar fracture.  The period of the hospitalization was less than 52 hrs.  Hence hospital cash benefit is not payable as per the policy condition.  For major surgical benefit is payable under the event of any of the insured lives covered under the policy due to medical necessity undergoes any of the surgeries defined in Annexure II of the policy.  In respect of the complainant he suffered Mandibular fracture due to fall which pertains to Mandibular for which he underwent ORIF for fixation of simple fracture under the major surgical benefit insurance policy Annexure II coverage is given to ORO FACIO MAXILLARY RECONSTRUCTION due to accident.  The treatment taken by the complainant does not include maxillary part and facial part.  Hence the claim could not be considered under major surgical benefit leading to LIC on 25.04.2014 repudiate the bill amount of Rs.35,676.  The claim for this 50,000/ towards mental agony, hardship, loss were denied.  Hence seeks dismissal of claim. In support of the above complainant Mr. Sathyashankar K filed affidavit evidence as Cw1 and answered the interrogatories served on him and produced documents got marked Ex C1 to C7 detailed in the annexure here below.  On behalf of the opposite parties Mrs. M Jacintha Pais (Rw1) Manager (L&HPF) also filed affidavit evidence and answered the interrogatories served on them and produced documents got marked Ex.R1 to R3 detailed in the annexure here below.

III.     In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the other reliefs claimed?
3. What order?

      We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:         

          Point No. (i): Affirmative 

          Point No. (ii): Affirmative

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

REASONS

IV.      POINTS No. (i):  The medical risk of complainant’s is covered under the policy issued by opposite party is admitted.  After the claim laid by complainant for payment of amount spent towards surgery is disputed by opposite party.  Hence opposite party a service provider and the complainant paid the charges for the purchase of insurance policy as a consumer and that when opposite party refused to make payment of the medical bill amounts to relationship leading to a dispute is established.  Hence the answer point No.1 is in the affirmative.

POINTS No. (ii):   The rival contention is narrowed out to the extent whether the surgery done to complainant falls within the exclusion clause claim by opponent.  As what was the bill amount of the hospitalization is concerned, the complainant has not specifically mentioned even in the complaint though complainant claims more than Rs.50,000/ was spent towards hospital treatment.  However in the opposite partys version at para 9 there is mention made that paper submitted by complainant to LIC on 25.04.2014 is for Rs.35,676.  Hence we have no difficulty to conclude this as the amount claimed by the complainant from opposite party as medical expenses.

          Opposite party produced Ex R3 the Insurance Policy issued by opposite party with terms and conditions.  The clause of surgical procedure which is allowed in the terms of the policy is in the last page of this document listed as surgical benefit annexur.  We are concerned within the entry therein the English version that reads as ORO MAXILLA FACIAL SURGERY Major reconstructive oro maxillafacial surgery due to trauma or burns and not for cosmetic purpose.

          It was contended by the learned counsel for opposite parties that the injury caused and surgery conducted on the lower jaw of complainant only.  Hence it is not covered in the list of surgical procedure as quoted above.  However as we can make out, as rightly pointed out by learned counsel for complainant, the injury sustained by complainant is not face and lower Jaw also part of face.  In the circumstances we are of the opinion that the contention of learned counsel for opposite party that surgery mentioned in the list of surgical procedure on Ex R3 does not cover the surgery done to complainant cannot be accepted.  In the circumstance we are of the view that the complainant succeeded in establishing of deficiency in service on the part of the opposite party by repudiation of the claim of complainant.

          The learned counsel for opposite parties have also pointed out that the period of hospitalization is less than 52 hrs.  Hence under clause 2.1 of Ex R3 also complainant is not entitled for the claim.  At Ex R3 clause 2.1 reads thus.

Hospital Cash Benefit:

In the event of Accidental Bodily Injury or Sickness first occurring or manifesting itself after the Date of Cover Commencement and during the Cover Period and causing an Insured’s Hospitalization to exceed a continuous period of 48 hours within the Policy Period, then, subject to the terms and conditions, waiting period and exclusion of the policy, the daily benefits is payable by the Corporation as follows:

  However as we can make out on going through 2.1 of Ex R3,  this provision is applicable only in respect of hospital cash benefit and not in respect of the amount.  Hence the argument on this count is rejected.

          As to the claim quantum of complainant he had mentioned in the complaint of complainant spent more than Rs.50,000/.  However no document are produced by the attending doctor of Ex C1 about surgery.  But as already mentioned opposite party in its written say did mention the bill amount submitted by complainant as Rs.35,676/.  But as seen from ExR3 mentioned in respect of that surgery the available is only 60%.  Hence 60% of Rs. 35,676/ is Rs i.e. 21,405/ this amount shall be paid to complainant by the opposite parties.  Further towards damages and the mental agony and inconvenience caused Rs.10,000/- including cost of the case in our opinion is justified. Hence point No.2 is answered partly in affirmative.

POINTS No. (iii):  As per final Order:

ORDER

     The Complaint is partly allowed with cost.  The opposite parties are directed to pay Rs.21,405/ (Rupees Twenty One thousand Four hundred Five only) with interest at the rate of 8% from date of  leading to LIC on 25.04.2014 bill till the date of payment.  Opposite parties shall also pay Rs.10,000/- (Rupees Ten thousand only) as damages to complainant. Payment shall be made within 30 days from the date of receipt of this copy of this order.

     Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Page No.1 to 7 Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 9th November 2016)

​ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. Sathyashankar K

Documents marked on behalf of the Complainant:

Ex C1: Copy of theletter issued by Dr. Jagadish Chandra, Professor, Yenepoya Dental College, Deralakatte, Mangaluru

Ex C2: The letter issued by L.I.C dated 21.06.2012

Ex C3:  The letter issued by L.I.C dated 02.08.2014

Ex C4:  The copy of the letter issued by Mangala Hospital and  Mangala Kidney Foundation, Kadri, Mangaluru.

Ex C5: The Office copy of the legal notice.

Ex C6: The postal Receipts (2 in No. s)

Ex C7: The Acknowledgment (2 in No. s)    

Witnesses examined on behalf of the Opposite Parties:

RW1: Mrs. M Jacintha Pais, Manager

Documents marked on behalf of the Opposite Parties:

Ex Rw1: True copy proposal of Health Insurance

Ex Rw2: True copy of policy bond

Ex Rw3: True copy of policy conditions and privileges Booklet

Dated:  09.11.2016                                          PRESIDENT