D.O.F. 10.12.2008

                                            D.O.O. 19.04.2012

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:      Sri. K.Gopalan                  :                President

                   Smt. K.P.Preethakumari   :               Member

                   Smt. M.D.Jessy                 :               Member

Dated this the 19^th day of April,  2012.

C.C.No.302/2008

Udayabhanu A.K.

Trainer Softskills,

Kuthirakode House,                                             :         Complainant

P.O. Panayal,

Via Bekal – 671318

Kasaragod Dist.

(Rep. by Adv. P.N. Nambiar)

1.  Branch Manager,

     M/s. Cholamandalam MS General

     Insurance Company Ltd.,

     2^nd Floor, Pearl Building,

     Near Makkani, South Bazaar,

     Kannur – 670 002.

2.  M/s. Cholamandalam MS General

     Insurance Company Ltd.,

      DARE House, 2^nd Floor,

      Old No. 234, New No.2,

      N.S.C. Bose Road,

      Chennai – 600 001.                                       :         Opposite Parties

3.  TTK Healthcare Services (Pvt) Ltd.

     1400-B, Mareena Building

      M.G. Road, Cochin-16.

(OP No.1,2 & 3 rep. by Adv. S. Mammu)

4.  Maxwealth Finance (Pvt) Ltd.,

     Plot No.49, 3^rd Floor,

     Nagarjuna Hills, Punjagatta,

     Hyderabad – 500 082

5.  ICFAI National College (INC),

     5^th Floor, Mirra Trade Centre,

     Panchagudda Cross Road,

     Hyderabad – 500 0082

(OP No.3 & 4 rep. by Adv. B.P. Premarajan)

O R D E R

Sri. K. Gopalan, President.

          This is a complaint filed under Section 12 of Consumer Protection

 Act for an order directing the opposite party to pay ` 1,00,000 as claim amount and ` 53,000 as compensation.

          The case of the complainant in brief is as follows:  Complainant joined ICFAL Group Mediclaim and paid his share premium 50% in October, November and December 2007 @ ` 599 per month.  It is the employer who has to pay the other 50%.  The validity period was from 1<sup>st</sup> October, 2007 to 30  September, 2008.  Maximum of four dependents can be covered for an employee.  New born babies are to be covered from day one onwards.   Complainant added his father, mother, wife and new born baby whose date of birth was on 22.09.2007.  Baby was under treatment for months and finally expired on 18.07.2008.  Complainant has spend ` 5 lakhs for the child’s treatment.  While the treatment was on, the complainant submitted claim on 30.05.2008 for ` 1,74,000 to TTK Health Services, Cochin-16 for necessary action.  They forwarded the claim to the insurer, Cholamandalam/ 2<sup>nd</sup> opposite party.  4<sup>th</sup> opposite party is dealing with wealth management of the company.  1<sup>st</sup> opposite party is the Kannur Branch of Insurance Company.  Entire bill pertaining to the claim were not submitted since the claim is limited to    `  One lakh.  On enquiry 3^rd opposite party informed there is no need to forward subsequent bills.  Opposite parties have not so far settled the claim which amounts to deficiency in service.  Hence this complaint.

          In response to the notice sent by the Forum opposite party No.1 to 5 entered appearances and filed version.  1^st and 2^nd opposite party filed version jointly, the brief of which is as follows.   Opposite parties had availed Group Health Policy under which employees and dependents could be covered.   But there is no automatic cover until declared and covered. The allegations of complainant especially with regard to cover of new born babies from day one onwards are incorrect and misleading.  There is no such automatic cover under the group policy.  By an endorsement on 04.02.2008, 197 new employees and 7 dependents were covered, including the new born child of the complainant.  The name of the child erroneously mentioned got it corrected later.   So child was covered only after the correction dated 04.02.2008.  The child was under medical care and treatment in ICU from the day of birth until she expired on 18.07.2008 due to congenital ailment. The hospitalization was prior to the inclusion of the policy.  Therefore, the claim pertains to a congenital ailment and for hospitalization, prior to inclusion in the policy which is specifically excludes pre-existing ailments.  The complainant’s claim thus not payable under policy.  Hence to dismiss the complaint.

          4^th opposite party filed version separately.  4^th opposite party is the facilitator of health insurance to 5^th opposite party and its affiliates.  The contentions raised by 4^th opposite party in brief are as follows:  Complainant was ex-employee of 5^th opposite party.  4^th opposite party paid premium amount of opposite parties and its affiliates to 2^nd opposite party on 02.09.07 under Group Health Insurance Policy.  Membership of ICFAI Group Mediclaim is mandatory to all its employees.  In the case of employees covered under other group schemes they are exempted from ICFAI Group Mediclaim.  Employees seeking admissions from the said scheme have to furnish details and give a declaration to that effect.   4^th opposite party rendered its service perfectly by paying the premium on 29.09.2007.  The period of insurance was from 01.10.07 to 30.09.08.  The complainant had no telephonic conversation with 4^th opposite party.   2^nd and 3^rd opposite parties are responsible for the claim of the complainant.  But still as requested by the complainant this opposite party forwarded the mails to opposite party No.2 and 3 to settle the claim immediately.   There is no deficiency in service on the part of this opposite party.  Hence to dismiss the complaint.

          5^th opposite party, ICFAI National College (INC) also filed version separately contenting as follows :  This opposite party has nothing to do with the settlement of claim amount.  Complainant was an employee of this opposite party and joined the Group Mediclaim Policy issued by 1^st and 2^nd opposite parties.  The whole premium amount was first paid by this opposite party and recovered 50% of the share from the employee in three equal monthly instalments from the salary of the complainant.  The coverage under the policy was ` 1,00,000.  This opposite party is not way related with the claim of the complainant.  This opposite party is only a witness to testify that there is a subsisting contract between the complainant and 1^st and 2^nd opposite party.  There is no deficiency in service on the part of this opposite party.   Deficiency in service is not alleged against this opposite party.  So complainant is not entitled for any relief from this opposite party.  Hence to dismiss the complaint against him.

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

1.     Whether there is any deficiency in service?

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

3.     Relief and cost.

The evidence consists of the oral testimony of PW1, CW1, DW1, Ext.A1 to A7, Ext. B1 to B6 and Ext. C1 to C3.

Issues No.1 to 3 :

          The case of the complainant is that complainant and new born child was covered by Group Health Policy.  Admittedly the new born child expired on 18.07.2008.  The validity period of the policy is from 1.10.2007 to 30.09.2008 is also an admitted fact.  Complainant’s case is that as per terms new born babies are to be covered from the day one onwards.   Complainant added his father, mother, wife and new born baby.  The date of birth of the baby was 22.09.2007.  Baby was under treatment for months till her death on 18.07.2008. Complainant spent 5 Lakh for treatment.  During treatment a claim for ` 1,74,000 was submitted to T.T.K. Health services wherefrom the same was forwarded to the insurer, Cholamandalam.  Opposite parties so far not settled the claim.

          At the same time 1^st and 2^nd opposite parties contended that the allegation of the complainant that the cover of new born baby from  the day one onwards are incorrect and misleading.  There is no such automatic cover until declared and covered.  The baby was covered only after 04.02.08.   The name of the child was erroneously entered and got it corrected later.   So child was covered only after this correction.  The period of insurance was from 01.10.07 to 30.09.08.  The main contention of 1^st and 2^nd opposite party is that they are not liable to pay the amount since the death of the child was due to the ailment which was being preexisting prior to the inclusion for cover.  It is also contended that the claim is pertaining to a congenital ailment and for hospitalization prior to inclusion in the policy. Pre-existing ailments are specifically comes under exclusion clause.  4^th opposite party contended that complainant was Ex-employee of 5^th opposite party.  4^th opposite party paid the premium amount of 5^th opposite party and its affiliates to opposite party NO.2 on 29.09.2007 under Group Health Insurance policy.  5^th opposite party in their version stated clearly that complainant had Group Mediclaim policy issued by 1^st opposite party.

          Original policy has not been produced by opposite parties even after filing petition for cause production of the same.

          Admittedly the period of Insurance was from 01.10.07 to 30.09.08.  The baby was born on 22.09.07.  The complainant’s definite case is that the baby was not named then and the child was shown as baby of Anitha, the mother. New born baby would not have name immediately usually baby would be called with the name of the mother.  It is the tradition of our society that the calling of name is a separate ceremony following certain customs.  Till name is called child would be known with the name of the mother.  The opposite party contended that the name of the baby was corrected later and had coverage only after the date of correction.  Any how, 6 months coverage after correction of the name had been admitted.  Whatever it may be, the technical objection with respect to the coverage in connection with the correction of name cannot be considered as genuine and suitable for the credibility of a prestigious insurance company.

Ext.B1(a) serial number  202 reveals dependent addition Anita daughter of Udaya Bhanu A.K. It has come in light that Anita is the mother of the baby girl. Entry of daughter of the employee in any way cannot be denied.

Ext.B2(a) message on 31.05.2008 reveals that request has been made to change the name of baby Anitha to Advika.  Even if the name of baby is changed that can not be taken as a ground to deny the very birth of the child.  In Ext.B2  it is stated thus : “in the reimbursement format it is given her name as “Baby of Anitha”.  Hence the mere question of change of name is only a technical objection.  It can also be seen that Ext.A2 Para 6 reveals that coverage of new born babies from day one.  Para 5 shows inclusion of all pre-existing disease from the first day of insurance.  Para 6 also covers congenital internal diseases.

Ext.B3/Policy produced by 5^th opposite party goes to show in page 11 thus:

          “This policy shall be subjected to the following

1-Exclusions

          (a) General Exclusion C1(Pre existing condition) stand

              deleted in respect of all persons who are insured

              under this policy.

The above clause cut the root of the contention raised by opposite parties that the pre-existing ailments are specifically comes under exclusion clause.

                   So there is no justice in denying the coverage of the baby from the date of birth. It is pertinent to note that Ext.B3 page 11 clause 5 states as follows: New born children of employees shall be covered from day  subject to an intimation and adequate advance deposit being maintained by the insured to cover the inclusion consequently, definition(Dependents) stands modified congenital  ailments/disorders will not be covered”. Inclusion of the child recorded as seen in Ext.B1(a) serial number 202 with effective date 1^st February 2008 and its corrected from shown in Endorsement 23 serial No.1 and employee ID.15450 Daughter of Udaya Bhanu.A.K. It proves that 4^th opposite party informed 1^st  opposite party to effect the change of name.

          Any how, DW1 in his cross examination deposed that “ policy \ne-hn-ep-ff ka-b-¯mWv Ip«n ac-W-s¸-«Xp”. So coverage of baby girl can be taken for granted right from 4.2.2008 even according to  opposite parties 1 and 2. Hence their main footing lies up on congenital disease. It can be seen opposite parties has not taken any steps to prove that the baby was died out of congenital illness. In cross examination DW1 deposed that “congenital disease Bb-Xn-\m-emWv claim repudiate sNbvXXp. Insured lmP-cm-¡nb discharge summary photocopy lmP-cm-¡m³ X¿m-dmWv opinion of doctors’ A\p-k-cn-¨mWv congenital disease BsW¶p ]d-ªXp”. No document produced to prove it. Opposite parties did not take care to prove that the baby girl was died due to congenital disease. Which is the document opposite parties No.1 and 2 based, together the opinion of doctors so as to conclude that the death of the baby was taken place due to congenital disease. Opposite parties No.1 and 2 have produced neither documentary evidence nor oral evidence to establish their contention in respect of congenital disease. The request of 4^th opposite party on 6.10.2008 as per Ext.B4 also was not considered by opposite parties 1 to 3. Opposite parties 1 to 3 could not succeed in establishing the case put forwarded by them by producing cogent and convincing evidence.

          Taking into consideration the facts and circumstances, we are of considered opinion that the repudiation of claim amounts to deficiency in service and opposite parties 1 to 3 are liable to compensate the complainant by paying the claim amount  `1,00,000 together with  a sum of ` 2500 as cost of this litigation. Thus issues 1 to 3 are answered in favour of complainant and order passed accordingly.

          In the result, the complaint is allowed directing opposite parties 1 to 3 to pay an amount of ` 100,000 (Rupees One lakh only) as claim amount and a sum of ` 2500 (Rupees Two thousand five hundred only) as cost of this litigation to the complainant within one month from the date of receipt of this order failing which the complainant shall be entitled to get 10% interest from the date of filing this complaint till realization. Complainant is also at liberty to execute the order as per the consumer protection Act after the expiry of 30 days.

                            Sd/-                      Sd/-               Sd/-

                       President               Member          Member

APPENDIX

Exhibits for the Complainant

A1.  (a) to (c) : Pay slips

A2.  Letter issued by 4^th opposite party.

A3.  G-mail sent by 4^th opposite party.

A4.  E-mail sent by 4^th opposite party.

A5.  Bills for ` 1,17,994.

A6.  Guidelines by Insurance Regulatory Authority.

A7.  E-mail sent by 5^th opposite party.

Exhibits for the opposite party

B1  Schedule Group Health Endorsement.

B2.  E-mail dated 30.05.2008.

B2 (a).  E-mail dated 03.06.2008.

B3.  Copy of Schedule Group Health Policy.

B4.  E-mail dated 06.10.2008.

B5.  True copy of repudiation letter dated 04.11.2008.

B6.  Discharge summary dated 29.01.2008.

Exhibits for the Court

C1.  Report of inspection.

C2.  Copy G-mail inbox of complainant.

C3.  Proceedings of inspection.

Witness examined for the complainant

PW1.  Complainant.

Witness examined for opposite party

DW1. Manjusha V.

Witness examined for the Court

CW1.  Sukesh Das M.

      /forwarded by order/

                                                                     SENIOR SUPERINTENDENT