BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 27th October 2016
PRESENT
SMT. C.V. SHOBHA : HON BLE PRESIDENT
SMT.LAVANYA M. RAI : HON BLE MEMBER
COMPLAINT NO. 268/2013
(Admitted on 27.09.2013)
Mr. Vijay D Souza,
S/o Leo D Souza,
R/at D Souza Villa,
Kanwathritha Road, Post Kunjathur,
Manjeshwar 671323,
Kasaragod Dist, Kerala State.
…….. COMPLAINANT
(Advocate for Complainant: Sri VK)
VERSUS
- The Chairman,
Star Health and Insurance Company Ltd.,
Corporate Office, No.1, New Tank Street,
Vallur Kottam High Road, Nungambakkam,
Chennai 34.
- The Branch Manager,
Star Health and Insurance Company Ltd.,
2nd Floor ,City Light Complex,
Balmata Road,
Mangalore 1.
……OPPOSITE PARTIES
(Advocate for Opposite Parties: Sri AKK)
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. C.V. SHOBHA
1. This complaint is filed under section 12 of the Consumer Protection Act alleging deficiency in service as against the opposite parties claiming certain reliefs.
2. The complainant prays for the order for reliefs directing the opposite parties to pay a sum of Rs.1,00,000/ towards the assured policy income with interest, to restore the cancelation of the insurance policy with immediate effect and to pay a sum of Rs.1,00,000/ towards damages for deficiency in service caused great tension, worry, anxiety and mental agony.
I. The brief facts of the case are as under:
The top Number Complaint lodged by the complainant against the above of the opposite party Under Section 12 of Consumer Protection Act for the relief as sought for, on the strength that the complainant has stated that the opposite party No.1 is the Insurance Company registered under companies Act and took the license from Insurance Regulatory Development Authority of India. The Opposite party No.2 is the Branch office for the Opposite Party No.1 in the Mangalore region. Complainant has purchased the medical insurance policy by name “Star Senior Citizen s Red Carpet Insurance Policy for his father from opposite party through online. The policy number has P/700002/01/2013/006252 is covered assured sum of Rs. 1,00,000/ and complainant has paid a premium of Rs.5,000/ and the period of policy is start from 06.11.2012. Further that the Star Senior Citizen s Red Carpet Insurance Policy is the Health Insurance Plan from opposite patty and it is unique among Senior Health Insurance Policies and extends benefits of Hospitalization cover as well as Post Hospitalization cover. The main feature of the said policy is there is no pre-insurance medical test is required. All pre existing diseases are covered from the first year, except those for which treatment or advice was recommended by or received during the immediately preceding 12 months from the date of proposal and Disease for which treatment or advice was recommended by or received during the immediately preceding 12 months from the date of proposal will be covered from second year onwards. Further on 02.02.2013 at around 2.30 AM his father i.e. Mr. Leo D Souza was admitted in the KMC Hospital, Mangalore with restrosternal chest pain, associated with burning type of pain, cough and breathlessness. On evaluation ECG showed acute anterior wall MI (myocardial infarction), echo showed regional wall motion abnormality (RWMA) in left anterior descending coronary artery (LAD) territory. He felt chest discomfort for the first time and was advised to undergo immediate angiography. Hence he was taken for coronary angiography (CAG) on the same day and found that coronary artery disease (CAD) of single vessel and had to undergo treatment procedure of percutaneous transluminal coronary angioplasty (PTCA) and stunting to LAD done. The complainant was informed the opposite parties about the admission in the Hospital. It is submitted that the opposite party No.2 has visited the hospital and enquired about the disease from the complainant as well as from the hospital people and also verified the hospital records. Thereafter complainant father was discharged from the hospital on 12.02.2013 with doctor advice and bill raised by the hospital for Rs. 2,58,000/- and the same was settled by the complainant by arranging funds from various sources. Further submitted that after conclusion of the treatment, the complainant has submitted the claim form before the opposite party for the claim of medical insurance as per claim application for the insurance claim on 22.02.2013 as per the claim intimation No.CLI/2013/700002/0172417 for reimbursement of the medical expenses spent by him. The opposite party collected all the documents from the complainant. But unfortunately the opposite parties has rejected complainant’s claim and gave the explanation that our medical team has observed from the echo report which shows concentric LVH, an systolic dysfunction which is the outcome of longstanding HTN and exited much prior to inception of policy on 06.11.2012. Opposite party rejected Complainant’s claim as per letter dated 10.04.2013 That on 24.04.2013 opposite party canceled/discontinued the complainant’s policy on pro-rata basis and the remaining period of the policy premium is refunded and DD No.231407 dated 23.04.2013 for a sum of Rs.2,315/ was sent to complainant’s address. Further the complainant was issued a notice dated 27.05.2013 to the opposite parties through his lawyer calling upon the opposite parties to pay the claim amount of the complainant and sent back the DD No.231407 dated 23.04.2013 of Rs.2,315/ which amount is refunded by the opposite party. The opposite party has acknowledged the said notice. After receiving the said legal notice the opposite party has neither complied with notice nor gave any reply to the said notice.Further the complainant has utterly shocked to read the letter dated 10.04.2013 in that opposite party has rejected complainant’s claim for the violation of the condition No.7 of the policy i.e. misrepresentation, fraud or non-disclosure of material facts by the insured person or by any other person acting on his behalf. The act of opposite party are violation of the company rules and decision taken on arbitrary basis with regard to the cancelation of the policy. Opposite party are in the field of service sector and violated commitment/assurance given at the time of the issuing the insurance policy only with malafide intention that the insurer had contracted disease during this period of the policy and the continuance of the cover to such insured would be more burdensome with the insurer. This attitude of opposite party is attracting unfair trade practice and also deficiency of service. Further the complainant has sent a copy of the legal notice to the opposite party’s grievance cell. The opposite party’s did not even respond the said notice and failed to consider an settle the complainant s grievances. All this caused great tension, worry, anxiety and mental agony to the complainant.
II. 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 complaint. The opposite parties appeared through their counsel filed version as per the document available in the case. The opposite parties admit the issue of Star Senior Citizen s Red Carpet Insurance policy bearing No.P/700002/01/2013/0006252 on 06.11.2012 to the complainant, which is a first year policy. However, the claim, if any, under the said policy is subject to the terms, conditions and exclusion clauses attached there in, which are duly furnished to the complainant along with the policy which are part and parcel of the policy. The opposite parties do not admit, and deny the complaint averments in para 3 of the complaint that all the preexisting diseases are covered from the first year, except for which treatment or advice was recommended by or received during immediately preceding 12 months from the date of proposal and disease for which treatment or advice was recommended by or received during the immediately preceding 12 months from the date of proposal will be covered from second year onwards.
The opposite parties do not admit and deny that the complainant s father namely Leo D Souza wad admitted to KMC Hospital, Mangalore with the complaint of retosternal chest pain, cough breathlessness and advised for angiography and the complainant has spent Rs.2,58,000/ towards treatment of his father and the opposite party s have rejected the claim of the complainant without any justification and cancelled the above policy by invoking the condition No.10 of the policy without any clarifications and violation of the company rules and the decision taken or arbitrary basis with regard to cancellation of policy. Further the opposite parties submit that during the regular course of its business they have received a claim from the complainant and no receipt of the claim papers and medical reports of the complainant, the opposite parties medical team has evaluated the entire treatment records of the complainant and observed from the record that the complainant had history of the alleged complaints since long back which is prior to inception of the policy and therefore the alleged complaint is preexisting disease, which is excluded under Exclusion clause No.1 of above stated mediclaim policy. As such the ailment for which the complainant has undergone is not coverable. Further submit that the Exclusion Clause No.1 of the above policy stipulates that the company shall not be liable to make any payments under this policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of all pre-existing disease/conditions existing and or suffered by the insured person for which treatment or advice was recommended. Therefore, after applying its mind to the terms of the policy and the complaints of the complainant reflected in his treatment records, the opposite parties have repudiated the claim and intimated the complainant accordingly and the repudiation is in accordance with law. There are no merits in the averments and allegations made in the complaint against opposite parties. In support of the complaint the complainant Mr. Vijay D Souza examined as (CW1) and produced documents got marked the documents as Ex C1 to C21. On behalf of the opposite parties Mr. Melwin D Souza (Rw1) Branch Manager filed evidence by way of affidavit.
III. 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 Party?
- 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) & (ii): As per Affirmative
Point No. (iii): As per the final order.
REASONS
IV. POINTS No. (i) & (ii): It is the case of the complainant against both the opposite parties for claiming the assured policy amount under mediclaim, of Rs.1,00,000/ and others. So that for the convenience the said both the points discussed here together. As per the pleadings the complainant prayed for all the appropriate reliefs and inturn the opposite parties prays for its dismissal.
Admittedly, the said mediclaim policy issued by the opposite party concerned under the name and style of Star Senior Citizen’s red carpet Insurance Policy, for the father of the complainant vide policy number is P/700002/01/2013/006252. And the said policy is covered for the assured sum of Rs.1,00,000/- for which the opposite party concerned issued the same on collecting a total premium amount of Rs.5,000/- and the period of policy computing from 06.11.2012.
For which the father of complainant took treatment at M/s KMC Hospital Mangalore on 02.02.2013, as an indoor patient got admission at 2.30 A.M. For the reason of retrosternal chest pain, associated with burning type of pain cough and breathlessness. For the reason of the same all detailed needful treatment given, on thorough diagnosed all examinations done. It was also revealed that he suffered by sudden cardiac arrest. As such it was very emergent and required all necessary treatment pertaining into sudden heart problem. Hence, the treatment of immediate angioplasty done. Even as per the heart specialist opinioned that it was attacked suddenly even without any past history to the same, including he has no symptom of either hypertension or diabetic. So that all the said timely treatment taken till 12.02.2013 in the hospital and for which he incurred a total huge expenses of Rs.2,58,000/. The same was arranged by the complainant, and his father got discharged. By virtue of the same the complainant made claim under the said policy on 22.02.2013, for reimbursement of the said assured sum of Rs.1,00,000/-, by producing all the hospital documents with bill in original. On receipt of the same, the opposite party instead of settled the same, sent DD by way of refund part of policy premium of Rs.2,315/ dated 23.04.2013.
In turn under shock the complainant got issued a legal notice on 27.05.2013, with all the details and also for demanding the said legal claim of Rs.1,00,000/ of the assured amount along with sent back the said DD of Rs.2,315/ Inspite of receipt of the same nothing has been done by the opposite party concerned. Despite the opposite party sent a repudiation letter dated 10.04.2013, by rejecting the said claim a per Ex C4, mainly on the ground that the said policy was obtained by misrepresentation, fraud and or non disclosure of material facts, hence refused. Now, in such a situation we observed on the basis of important medical documents available on record as per Ex C11 and Ex C12 dated 12.02.2013 and 11.02.2013 respectively issued by Dr. M.N. Bhatt, consultant Cardiologist, of M/s KMC hospital Mangalore, regarding treatment given to the father of the complainant. Wherein, it is clearly mentioned in Ex C11 that there is no past History of DM/HTN/IHD. Further even in Ex C12 document reveals that He has no previous of history of hypertension, diabetic or any other, including with no medicine. Under the said facts alone, is enough to consider that intentionally the opposite party made the said repudiation with a malafide intention to escape from making payment as per Ex C4 that on 10.04.2013. On this ground it is enough to conclude by us that there is a pure deficiency in service, which made by opposite party. That apart there are innumerable document available regarding treatment of him obtained from M/s KMC Hospital Mangalore. Inspite of it only with a malafide intention the opposite party is utterly fails to consider the same with proper application of the mind, atleast prior to issuance of said Ex C4, and the repudiation letter that on 10.04.2013. Further if it is so, the need of collecting the premium of a huge sum of money of Rs.5,00,000/ and issuance of the said mediclaim policy as per Ex C3, to be explained by opposite party concerned regarding comply of the said claim which made by the complainant. But in the case on hand, there are material to show even under oral and documentary, the lapse which made by the opposite party. Accordingly it was done by them only with a view to make profit and gain by themselves and inturn to cause wrongful loss and damage to the complainant along with the result of causing mental agony and harassment. With all these we come to a considerable opinion that, on any angle the opposite party concerned cannot escape from its liability in order to discharge the same by make payment of the said sum insured of Rs.1,00,000/ as per the document Ex C1 i.e. Insurance policy schedule. Such being so the act of the opposite party concerned is also amounts to unfair trade practice as it is of a commercial trade business. In such a situation the present illegal act done by opposite party to the general public in the society, is also amounts to illegal and without any justification. Therefore with all the above facts and circumstances which are discussed above in this matter, together with all the above oral and documentary evidence with written notes of arguments, we come to a firm opinion that, the said above both the points held affirmative. Further, it is also clear that, except the oral denial which made by opposite party concerned with regard to its repudiation of the claim, no documents or medical evidence addressed by them before us. So that, it is not sufficient material to believe the version of the opposite party by us in the case. Hence, it is crystal clear that the opposite party concerned that is always liable to pay the said legal claim of the said complainant of sum assured of Rs.1,00,000/ immediately. Since when it is not done at the relevant point of time, the opposite party is also liable to pay interest at the rate of 10% on the said sum of Rs.1,00,000/ from the date of legal notice dated 27.05.2013, as per Ex C20 till realization. Further due to the said illegal act of the opposite party as aforesaid, the opposite party is also liable to pay the compensation of Rs.10,000/ along with another sum of Rs.5,000/ towards cost and litigation expenses incurred by the complainant.
POINTS No. (iii): In the result, as per the Order below:
ORDER
The Complaint is allowed in part. The opposite parties are responsible and liable to pay for a sum of Rs.1,00,000/ (Rupees One lakh only) with accrued interest at the rate of 10% per annum from the date of legal notice dated 27.05.2013 till realization. Further, they are also liable to pay for a sum of Rs.10,000/ (Rupees Ten thousand only) towards compensation and also another sum of Rs.5,000/ (Rupees Five thousand only) towards cost and litigation expenses incurred by the complainant. 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 14 pages dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 27th 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. Vijaya D Souza
Documents marked on behalf of the Complainant:
Ex. C1: Copy of the Insurance policy
Ex. C2: Copy of the customer Identity card of the Insurance policy
Ex. C3: Brochure of the Star Senior citizens Red Carpet Insurance Policy
Ex. C4: Claim repudiation letter dated 10.04.2013
Ex. C5: Original endorsement premium dated 19.04.2013
Ex. C6: Letter dated 24.04.2013 issued by the opposite party for Refunding of premium amount
Ex .C7: Copy of the DD bearing No.231407 dated 23.04.2013 drawn on HDFC Bank
Ex. C8: Covering letter dated 24.04.2013 for returning the claim Documents of the complainant
Ex. C9: Returned Claim form of the complainant submitted Before the opposite party
Ex.C10: Hospital admission receipt
Ex.C11: Letter dated 12.02.2013 issued by the Dr. M.N. Bhat, KMC Hospital Mangalore
Ex.C12: Letter dated 11.02.2013 issued by the Dr. M.N. Bhat, KMC Hospital Mangalore
Ex.C13: Hospital bill dated 12.02.2013
Ex.C14: Summary of the medical bills dated 12.02.2013 (Total 11 pages)
Ex.C15: Discharge summary dated 12.02.2013
Ex.C16: Coronary Angioplasty report dated 02.02.2013
Ex.C17: Coronary Angiography report dated 02.02.2013
Ex.C18: Cardiac scan report dated 07.02.2013
Ex.C19: Lab report 15 No s
Ex.C20: Legal Notice dated 27.05.2013
Ex.C21: Postal acknowledgement 3 No s
Witnesses examined on behalf of the Opposite Parties:
RW 1: Mr.Melwin D Souza
Documents marked on behalf of the Opposite Parties:
Nil
Dated: 27.10.2016. PRESIDENT
