BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 3rd October 2016
PRESENT
SMT. C.V. SHOBHA : HONBLE PRESIDENT
SMT.LAVANYA M. RAI : HONBLE MEMBER
COMPLAINT NO.336/2012
(Admitted on 09.11.2012)
- Mr. Jayaram K. Mijar,
S/o Late Koragappa V. Mijar,
Aged about 60 years,
- Miss Saunhita,
D/o Mr. Jayaram K. Mijar,
Aged about 22 years,
Both are residing at Flat No.301,
Mannagudda Towers, Mangalore.
……… Complainants
(Advocate for Complainant by Sri. MNA)
VERSUS
- The Branch Manager,
United India Insurance Company Ltd,
Bancassurance Branch Office,
Krishnaprasad
Opp: Popular Building,
K.S.Rao Road,
Mangalore 575001.
- T.T.K. Health Care TPA Pvt.Ltd,
#2, H.B. Complex,
100 BTM ring Road,
BTM 1st Stage, BTM Layout,
Bangalore- 560068.
…. Opposite Parties
(Advocate for the Opposite Parties No.1 and 2: Sri. DRK)
ORDER DELIVERED BY HONBLE PRESIDENT
SMT. C.V. SHOBHA
- 1. This complaint is filed under section 12 of the Consumer Protection Act alleging deficiency of service as against the opposite parties claiming certain reliefs.
2. The complainant prays for the order for reliefs directing the opposite parties to pay the sum of Rs. 75,250/ with interest at 18% p.a, damages for mental agony, stress and inconvenience Rs. 50,000/, from 28.12.2011 till realization, cost of the legal notice Rs. 1,000/, and cost of this proceedings total Rs. 1,26,250/ for such other reliefs as this forum deems fit to grant under the circumstances of the case under section 14(f) of Consumer Protection Act.
II. The brief facts of the case are as under:
The top Number Complaint lodged by the complainant against the above of the opposite parties Under Section 12 of Consumer Protection Act for the relief as sought for, on the strength that the complainant No.1 had taken out Synd Arogya Group Mediclaim Policy bearing No. 070801/48/11/14/00000496 valid from 00.00 hours on 08.07.2011 to midnight of 07.07.2012 from complainant No.1 insuring him and his family consisting of his wife and a daughter for a sum of Rs. 2, 00,000/(Rupees two lakhs only) by paying a premium of Rs. 3,424/. During the subsistence of the said insurance policy complainant No.2 had developed decrease in vision. She consulted Dr. Satish Prabhu the Medical Superintendent of Nethradhama Hospitals Pvt. Ltd, Bangalore. She was diagnosed and found that she had High Myopia in both eyes. She was advised to undergo Intra Lase with Custom Lasik for both eyes as she was allergic to contact lens and intolerant to glasses. As per the advice of the doctor she underwent surgery on 28.12.2011 at Nethradhama Hospitals Pvt. Ltd, Bangalore and discharged on 29.12.2011 and incurred medical expenses to the tune of Rs. 75,250/(Rupees Seventy five thousand two hundred fifty only) including consultation and topography charges.
Thereafter every now and then complainants have been visiting the opposite parties office seeking early settlement. Whenever the complainants contacted the opposite party, they were promising the complainants early settlement. But to their utter surprise the opposite party have stated that their claim is not payable citing exclusion clause 4.1 of the policy. The alleged exclusion clause referred by you is wrongly interpreted by the opposite party. In fact at the time of the first policy there was no preexisting disease of any nature suffered by the complainants and that the said first policy was being renewed subsequently without any break and even at the time of renewal there was no indication of any kind of disease and that the complainants have not suppressed anything about their health. Hence, there is no reasonable cause or excuse for repudiation of complainants claim. The complainants said insurance policy was continuously renewed for three consecutive years i.e. since 2009.
It is stated that the opposite party have deliberately and with malafide intention repudiated complainants claim with malafide intention so as to cause loss to complainants. Due to such attitude of the opposite party, the complainants have suffered inconvenience, mental agony and also financial loss which are required to be compensated to them by opposite party for which the opposite party are liable to pay damages which is reasonably estimated at Rs. 50,000/. Further since the opposite party have made use of complainant s money for their benefit, they are also liable to pay interest on complainant claim at the rate of 18% p.a. from the date of hospitalization till payment.
Hence the complainant had issued a legal notice dated 16.05.2012 calling upon the opposite party to pay the sum of Rs. 75,250/ (Rupees seventy five thousand two hundred fifty only) plus compensation with interest within 7 days. The said notice was received by the opposite party and they have issued a reply raising all sorts of frivolous contentions. The opposite party have no basis to repudiate the claim of the complainants. Their service as an insurer in respect of complainants above said mediclaim policy, suffers from deficiency and there is no chance of settlement of claim amicably out of court. Hence the complaint.
III. Further, on observation by us of the order sheet maintained in the case by this Forum, the necessary notice sent to all the opposite parties by RPAD with copies of the complainant. Inspite of receiving version notice the opposite party No.1 and 2 appeared and contested the case before this FORA.
The opposite party admits that the complainant No.1 had taken out Synd Arogya Group Mediclaim Policy bearing No. 070801/48/11/14/00000496 valid from 00.00 hours on 08.07.2011 to midnight of 07.07.2012 from the opposite party insuring him and his family members for a sum of Rs. 2, 00,000/ by paying a premium amount.
The opposite party categorically denied that during the substance of the said Insurance Policy complainant No.2 had developed decrees in vision and she consulted Doctor namely Sathish Prabhu, the Medical Superintendent of Nethradhama Hospital private Ltd, Bangalore. It is further denied that she was diagnosed and found that she had high myopia in both eyes. It is denied that she was advised to undergo Intra Lase with custom, Lasik for both eyes as she was allergic to contact lens and intolerant to glasses.
The opposite party further denied that as per the advice of the doctor she underwent surgery on 28.12.2011 at Nethradhama Hospital pvt. Ltd, Bangalore and discharged on 29.11.2011 and incurred medical expenses to the tune of Rs. 75,250/ including consultation and topography charges.
The opposite party submits that on the perusal of the claim forms and the discharge summary of complainant No.2, it came to light to the opposite party that the complainant No.2 was admitted for high Myopia in both eyes and complainant No.2 underwent intra lase with custom Lasik under TA. The opposite party further observed that the aforesaid conditions of complainant No.2 was pre existing before commencement of policy and the said condition has been suppressed by the complainant No.2 before obtaining the policy from opposite party.
The opposite party denied that the insurance policy was continuously renewed for 3 consecutive years i.e. since 2009. It is denied that the opposite parties have deliberately with malafide intention repudiated complainants claim with malafide intention so as to cause lost to complainants. It is denied that the complainants have suffered inconvenience, mental agony and also financial loss as alleged by the complainants. It is denied that the opposite party are liable to pay the alleged damages of Rs. 50,000/. It is denied that they are liable to pay interest at the rate of 18% on the complainants claim from the date of hospitalization till the payment.
The opposite party denied that your client No.2 in the notice under reply as incurred medical expenses to the tune of Rs. 75,250/ including consultation and Topography charges as alleged in your notice under reply. The exclusion clause referred in the policy is not wrongly interrupted by my clients. My clients further denied that your client renewed the 1st policy without any break and denied that even at the time of renewal there was no indication of any kind of decease. Infact your client has suppressed the condition of her health before obtaining the policy. Therefore, there is a just cause and reason for repudiation of your clients claim by my clients.
IV. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the complainant proves that there is a deficiency of service on the part of the Opposite Parties No. 1 & 2?
- If so, for what relief and from whom the complainant entitled?
- What order?
We have considered the notes/oral arguments submitted by the learned counsel and also considered the materials that was placed before this Forum and answer the points are as follows:.
Point No. (i): As per Affirmative
Point No. (i): As per Affirmative
Point No. (iii): As per the final order.
REASONS
V. POINTS No. (I and II) Regarding reasons required in the case for its disposal, on the basis of the complaint averments is that, the complainant both 1 and 2 have obtained Synd Argoya Group Mediclaim Policy bearing No. 070801/48/11/14/00000496 valid from 00.00 hours on 08.07.2011 to midnight of 07.07.2012. Accordingly, the said family policy, is for an assured sum of Rs. 2,00,000/, by paying a required huge premium of a sum of Rs. 3,424/. Despite the said policy was also renewed continuously for 3 consecutive years from 2009.
Such being so, that on 28.12.2011 on the reason of developed decrease in vision by complainant No.2 daughter of complainant No.1 she consulted one Dr Satish Prabhu of M/s Netradhama Hospital pvt Ltd, Bangalore. On her diagnosed it is found that she had high myopia in both eyes. Hence invariably she undergo intra laser with custom Lasik for both eyes, as she was allergic to contact lens and intolerant to glasses. As per the advice treated her with surgery by the doctor of the said hospital on the same day and discharged on following day on 29.12.2011. For which she incurred a total medical expenses towards hospital, surgery, treatment and medicine etc it is of a tune of Rs. 75,250/ which includes consultation and topography charges.
Later, on that ground the complainant lodge a claim with opposite party and submitted all the required documents for processing their claim. In spite of it even on their best efforts none of the opposite party considered and come forward settlement of the said claim. To that extent, there was no any dispute even by any of the opposite party. Except, the reasons raised by the opposite party for denial of settlement as per the said exclusion clause of 4.1, as narrated in the policy.
As such now it is before us in order to consider the case the said clause, whether come in the way either infavour of any of the opposite party or not, as the defense which taken by the opposite party in the case. Apart from that they have also taken a ground for denial of the claim as the said problem of her eyes, belongs to a pre-existing disease. On the said ground it is also a prime ground to taken up by us that admittedly the said policy of mediclaim with the opposite party was continuously renewed for 3 consecutive years very from 2009. Hence the same is also to be kept in mind, while considering the fact of the case. Even if it is so, it was suppressed by both the opposite party. Despite it was the case ended by opposite parties, by a repudiation of the said claim of the complainant.
Now, in continuation of the said discussion, the plea which taken by opposite parties for their denial on the strength of clause 4.1 of the said policy, differently not come in the way of the demand and claim which made by the complainant. Because, once when in the case on hand it is matter of the said policy was renewed continuously for consecutive 3 years i.e. form the year 2009 and so also the said treatment of complainant No.2 is in the year 2011, there is no any meaning to take any shelter under the said clause of 4.1 of the said policy. Apart from that even on the basis of available pleadings, of both the parties and oral and document tray evidence with written arguments of complainant, we come to conclusion that, none of the opposite party proves their case, to the extent of avoiding from make payment of the claim of the complainant, as per the policy, terms and condition. In support of the same the as per Ex C3, legal notice sent by complainant to both the opposite parties, intern as per Ex C5, both have sent a reply through their Advocate, where in at page 2 they have admitted the point of renewal of the policy. Hence there is no any material ground to dis believe the claim of the complainant against the opposite parties mainly to the extent of the claim of a tune of Rs. 75,250/ for the said treatment as stated above, incurred by her on 28.12.2011 to 29.12.2011 at the said hospital Bangalore for her surgery of both eyes, as found even in the said Ex C3 legal notice dated 16.05.2012. Hence, to that extent said contention of denial which taken by the opposite party is an inconsistent. Further, during the course of filing notes of argument by the complainant by reiterating the same along with 3 documents of the said Netradhama Hospital Pvt. Ltd, Bangalore, discharge summary dated 29.12.2011, bills to in numbers dated 28.12.2011 and 27.12.2011, which reveals the complainant No.2 is incurred a total expenses of Rs. 75,250/ towards the claim, on the ground of treatment, hospital, medicine, surgery etc. Further, it is also reveals that once when all the said original documents have been produced to the opposite party concerned already, now the complainant produced before us in copies. On the ground of presumption also, the opposite party are in the mind of suppressing the material facts because, none of them have adduced any of their evidence with documents. Therefore, it is enough to conclude that, they have not at all proved their case at any extent, in contravention within the defense which taken by them in their detail version. Hence, for all the above reasons we hereby go ahead with even the quantum of the claim. Hence, on that count the complainant entitled for the sum of Rs. 75,250/ in full together interest at 10% p.a from 29.12.2011 till payment from the opposite party by way of refund jointly or severally, since the said act of both the opposite parties amounting to a clear deficiency of service including unfair trade practice. On the same stretch the same is so, the opposite parties are also entitle to pay a sum of Rs. 20,000/ towards compensation. Because, as learnt from the available materials, the opposite party was only in the mind of collecting a huge money towards premium and issue policy, with a malafide intention for gain profit. Inturn with a motive of denial, in order to cause harassments and suffering of both economic damage and mental agony to the general public like complainant under that count it is reasonable in awarding compensation of a tune of Rs. 20,000/ for the conduct shown by the opposite parties and another sum of Rs. 5,000/ towards cost and litigation charges incurred by the complainant. Hence, to this extent the above points No.1 and 2 are hereby held in affirmative.
POINTS No. (iii): In the result, accordingly we pass the following Order:
ORDER
The complaint is allowed in part. The opposite parties are jointly and severally held liable and responsible to pay by way of refund a sum of Rs. 75,250/(Rupees Seventy Five thousand Two hundred Fifty only) with accrued interest at 10% p.a. from 29.12.2011 till payment. Further, opposite parties are also liable to pay Rs. 20,000/ (Rupees Twenty thousand only) towards compensation and another sum of Rs. 5,000/ (Rupees Five thousand only) towards cost and litigation expenses incurred by the complainant in the above case. Hence the payment shall be made within 30 days from the date of receipt of the copy of this order.
Copy of this order as per statutory requirements, be forwarded to the parties and therefore the file shall be consigned to record room.
(1 to 11 pages dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 3rd day of October 2016)
MEMBER PRESIDENT
(SMT. LAVANYA M.RAI) (SMT. C. V. SHOBHA)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW 1: Mr. Jayaram K. Mijar,
Documents marked on behalf of the Complainant:
Ex.C1: Copy of the Mediclaim Policy.
Ex.C2: Copy of the health card of complainant No.2.
Ex.C3: Dated: 16.05.2012: Office copy of the legal notice with postal receipt.
Ex.C4: Postal acknowledgement.
Ex.C5: Dated: 23.06.2012: Copy of the reply notice.
Witnesses examined on behalf of the Opposite Parties:
Nil
Documents produced on behalf of the Opposite Parties:
Nil
Dated: 03.10.2016. PRESIDENT
