Andhra Pradesh

Nellore

CC/121/2013

Lalitkumar Son of Sagarmal Hindu aged about 48 years - Complainant(s)

Versus

1.The Manager HDFC ERGO General Insurance Co.Ltd - Opp.Party(s)

S.K.AKbar

31 Aug 2015

ORDER

                                                             Date of filing       :  05-12-2013

                                                             Date of disposal   :  31-08-2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

           :: NELLORE ::

                                                       

Monday, this the 31st day of AUGUST, 2015.

 

          PRESENT:  Sri M.Subbarayudu Naidu, B.Com.,B.L., LL.M.        

                                      President(FAC)& Member

 

                                      Sri N.S.Kumara Swamy, B.Sc., LL.B., Member

                             

         

                                 C.C.No.121/2013

 

Lalit Kumar,

S/o.Sagarmal, Hindu, aged about 48 years,

R/o.D.No.13/646, R.K.Residency, 2^nd Floor,

F Block, Venkataramudu Street,

Chinna Bazar,Nellore.                   .                        …         Complainant

 

                      Vs.                                                                          

                                                                              

1. The Manager,

HDFC ERGO, General Insurance Co.Ltd.,

A Family Health Plam (TPA) Ltd.,

Ground Floor, Suruilaya Cyber Sapzio,

Road, No.2 Bunjara Hills, Hyderabad – 500 084.

 

2. The General Manager,

HDFC ERGO, General Insurance Co.Ltd.,

6^th Floor, Leela Business Park,

Anderi – Kurla Road,

Anderi East, Mumbai – 400 059.

 

3. The Manager,

HDFC ERGO, General Insurance Co., Ltd.,

HDFC Bank, Beside Chandana Brothers,

Nellore.                                              …            Opposite parties

 

 

This matter coming on  24-08-2015  before us for final hearing in the presence of Sri Sk.Akber,  Advocate for the complainant and  Sri D.V.R.Kiran Kumar, Advocate for the  opposite parties and  having stood over for consideration till this day, this Forum passed the following:                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

ORDER                                                                                                                                                                                                                          (BY SRI M.SUBBARAYUDU NAIDU, PRESIDENT (FAC) ON BEHALF OF THE BENCH)

 

   This consumer case is filed by the complainant against the opposite parties 1 to 3 to direct them to pay claim amount of Rs.2,20,000/- with interest at 18% p.a., from the date of the claim application i.e., 25-04-2012 till the date of realization to the complainant and also grant an amount  of Rs.10,000/- to him towards legal expenses and pass such other relief or reliefs as the Hon’ble Consumer Forum may deem it fit and proper  in the circumstances of the case in the interests of justice.

The factual matrix leading to filing of this consumer case is as stated as hereunder:

I(a)It is the case of the complainant that the opposite party – Insurance company offered to him through its agent at Nellore. So, he got Health Suraksha  and Serv Suraksha Policies from the opposite party – Insurance company by paying  Rs.5,589/-, covering the said policies for the year        31-01-2011 to 30-01-2012.  The complainant had continued the same for the next year i.e., 31-1-2012 to 30-01-2013 and paid an amount of Rs.8,017/- towards the said policies.

 

    (b)  It is also further submitted by the complainant in para-4 of his complaint that at the time of filling of policies applications, the opposite party-insurance company took all the relevant documents and other proofs from him and after consultation of the physician of the Insurance Company as per the terms and conditions of the opposite party.  At the time of taking the policy from the opposite party, the complainant had mentioned that he had no-preexisting decease.  So, the opposite party had assured him that any claim with regard to medical expenses will be declared by the opposite party within two months.

 

( c )  It is also further stated by the complainant in para – 5 of his complaint that on 23-03-2012, he had fell in sudden sick for difficulty in breathing and hyper tension and later on he was joined at  Trinty hospital and Health Foundation, Bangalore on 24-03-2012 and underwent treatment and thereafter discharged on 28-03-2012.  An amount of Rs.1,80,000/- was spent by him in the said hospital towards his treatment and also an amount of Rs.10,000/- was also spent by him towards other maintenance expenses.

  

        At the time of the treatment of the complainant, the opposite party’s employee consulted the doctor who treated him and submitted his report to the opposite party.

 

(d)  It is also further submitted by the complainant in para-6 of his complaint that he had submitted a claim application with all relevant documents.  But the opposite party had failed to comply with the same by saying that he had pre-existing decease.  Later on, the complainant had met the 3^rd opposite party personally and requested 3^rd opposite party to clear his claim.  But the opposite parties 1 to 3 have been postponing for paying the same on some pretext or the other by saying otherwise.  He had spent an amount of Rs.5,000/- towards travelling expenses.  He is entitled to  get the above said claim amount from opposite parties 1 to 3, as he got a valid coverage to his policies at the time of the treatment.  The complainant had suffered a lot mentally and physically on account of deficiency in service.  So, he is claiming an amount of Rs.25,000/- towards his mental and physical agony.  He had issued a legal notice dt.13-06-2012 to the opposite parties 1 to 3 demanding them to pay the said claim amount.  The 2^nd opposite party had received notice and 1^st and 3^rd opposite parties were wantonly evaded to receive the same and failed to comply complainant’s demands.

   There are causes of actions to file the complaint which are narrated in para-7 of complaint of the complainant.  Hence, he had prayed that the Hon’ble Consumer Forum may be pleased to allow his complaint as prayed for.  Hence, the complaint.

 

II.  DEFENCE:

 

 The 1^st opposite party was resisted the complaint by filing written version, on 11-06-2014 denying the allegations of the complainant in the complaint and 2^nd and 3^rd opposite parties had also filed a memo dated 11-06-2014 adopting the written version filed by 1^st opposite party.  The complaint is not maintainable either in law or in facts. 

 

(i) It is also submitted by the 1^st opposite party that in para – 4 of their written version that it is true that the 1^st opposite party had issued the said health Suraksha policy in favour of complainant for a sum insured of Rs.2,00,000/- and renewed the same from 31-1-2012 to 30-1-2013.  At the time of taking the said policy from the opposite parties, the complainant had suppressed his earlier disease and obtained the said policy with a view to get wrongful gain from them.  It was established that when the complainant was admitted in Bangalore under the care and protection of Dr.B.G.Muralidhara, who was working in the above said Trinity Hospital and Heart Foundation.  The hospital authorities had refused cash less facility with the complainant during the course of complainant’s treatment and advised him to prefer a reimbursement claim, which would be processed on merits by the first opposite party as per the terms and conditions of the said policy.

 

(ii) It is also further submitted by the 1^st opposite party that in paras 5 and 6 of a written version that the complainant had suppressed the material facts that he was suffering from highper tension since two years i.e., before obtaining the policy with the 1^st opposite party and it denied the cash less claim submitted by the complainant under 3 existing clause according to the policy. He never approached the 1^st opposite party for the reimbursement of the claim along with medical records.  So, there is no deficiency in service on the part of the opposite parties towards the complainant.

 

(iii) It is also further submitted by the 1^st opposite party that in page no.2 of their written version that the complainant was hospitalized during the tenure of the policy of the opposite parties.  Further, it is submitted that the 1^st opposite party got intimated an hospitalization claim in respect of the complainant for cashless facility for treatment of Accelerated hypertension, Acute pulmonary Edema, left ventricular failure, left ventricular systolic Dysfuction at Trinity Hospital and Heart Foundation, Bangalore and 1st opposite party had registered the claim and since the possibility of the present ailment being a pre-existing disease could not be ruled out, 1st opposite party denied the cashless facility to the complainant and requested the complainant to submit the claim under reimbursement mode along with the complete pre-hospitalization medical history of the complainant.  Accordingly, a denial of cashless service letter dt.26-03-2012 was sent to the complainant.

 

(iv)  It is also further submitted by the 1^st opposite party at page no.3 of their written version that as per section 6-D exclusion – preexisting conditions will not be covered until 48 months of continues coverage have lapsed, since inception of the 1^st Health Suraksha Policy of the opposite parties.  The complainant had preferred a claim for the present ailment during the 2^nd year policy, but the cashless facility was denied.  The above said claim of the complainant is barred by limitation.  Hence, it is prayed that the Hon’ble Consumer Forum may please to dismiss the complaint with costs.

 

     III. The complainant had filed an affidavit on 07-1-2015 as PW1 and   

    also the documents which are marked Exs.A1 to A8; whereas the 1^st opposite party had also filed an affidavit on 26-02-2015 as RW1, RW2 on 26-02-2015, RW3 on 26-02-2015 and RW4 on 04-06-2015 are also filed.  The written arguments of the complainant is filed on 05-08-2015 and whereas, the written arguments of the opposite parties are also filed on 05-08-2015 in support of their case, respectively.

IV.   Basing on the material available on the record, the points that arise for determination are namely:-

(a)Is there any deficiency in service on the part of the opposite

    parties towards the complainant?

(b)Whether the complainant is entitled to get the reliefs as

    prayed for, if it is so, to what extent?

                   (c) To what relief?

 

V.  POINTS 1 AND 2 :

     In view of these two points are inter-related and depends on each other, they have been taken up together for discussion and determination of the case.  The complainant has once again reiterated the facts of the case, basing on the complaint and documents filed herein. It is nothing but repetition of them once again in his complaint. 

 

        The learned counsel for the complainant Sri Sk.Akber has vehemently argued that that the complaint, chief-affidavit of complainant as PW1 and  his written arguments of the case may be read as part and parcel of his oral arguments of the case.  He has also further argued that the complainant got the above said policy of the opposite parties by paying Rs.5,589/- and Rs.8,107/- towards the policy in the 2^nd year as premium.    On 23-03-2012 he fell in ill for difficulty in breathing on highpertension and he was joined in Trinity Hospital and Health Foundation, Bangalore on 24-03-2012 and took treatment and finally he was discharged on 28-03-2012 and spent Rs.1,80,000/- towards his treatment and also spent Rs.10,000/- towards other expenses.  He has also further contended that after completion of the treatment of the complainant that he had submitted a claim application with all relevant documents with the opposite parties but they denied the same by saying that the complainant had pre-existing disease.  The complainant has also spent Rs.5,000/- towards travelling expenditure and he got valid coverage of the policy and he is entitled to get the above said claim from the opposite parties.  The said learned counsel has further urged that he had issued a legal notice on behalf of the complainant to the 2^nd and 3^rd opposite parties and the said document of Ex.A8 is established as proof of complainant’s allegation against the opposite parties.  He has also further contended that the burden of proof lies on the opposite parties to prove their allegations against the complainant with regard to that the concealment of medical facts i.e. pre-existing disease of highper tension. The complainant had knowledge about the said disease before obtaining the policy, it is the hospital or examining the concerned doctor who had treated him (complainant) to get his disease cured or subsided, to be proved beyond by adducing the documentary evidence against the complainant.  As per the record, the document which is shown as Ex.B2 i.e., affidavit of Dr.B.G.Muralidhara had issued only that he had treated the complainant and it does not disclose the said disease was pre-existing and also the said doctor opined that in pre-authorization for that history of past illness recurrent to present ailment since two years, Ex.B2 pre-authorization form given by the above said doctor along with letter dated 26-03-2012. The above said learned counsel for the complainant has further contended that the rules promulgated by IRDA as per its hand book on health insurance under point 3FAG wider heading that what is the pre-existing condition in health insurance policy.  It is medical condition/disease that existed before complainant obtained the said insurance policy, because insurance company did not cover such  pre-existing condition within 48 months of prior to first policy,  it means pre-existing can be considered for payment of the completion 48 months of continuous insurance cover.  So, it is clearly shows that after 48 months that the disease cannot be called as the pre-existing disease.  He has cited the rulings in support of the complainant’s case are namely as follows:

        (a)    New India Assurance Company Limited Vs.Shri Mahavir Prasad

        Signania on 14-09-2013; (b) Oriental Insurance Company Limited

        Vs.R.C.Goel on 17-09-2014 (c) New India Assurance Company Vs.Dr.Ajay

        Kumar on 25-11-2013 (d) Star Health and Alliance Insurance Vs.Jaspal

        Singh Soni on 05-03-2014.

             The 3^rd opposite party is a branch office of first and second opposite parties and having jurisdiction to consider the complaint and able to decide the case by the Hon’ble Consumer Court.  Finally, the said learned counsel for the complainant has prayed that this Hon’ble court may pleased to allow the complaint as prayed for. 

           On the other hand, Sri D.V.R.Kiran Kumar, the learned counsel for the opposite parties has also vehemently argued that the written version, the affidavits (RW1 to R4) and written arguments of the opposite parties may be read as part and parcel of his oral arguments.  He has further stressed much that during the course of arguments the complainant is suffering from highpertension prior to two years before obtaining the policy.  The opposite parties denied the cashless claim submitted by the complainant under pre-existing clause as per the terms and conditions of the policy.  The said condition mentioned in section 6(D) exclusion clearly reveals the same.  The complainant had never approached the opposite parties along with pre-hospitalization, medical history to enable the opposite parties to process the claim and in that process the documents Exs.B1 to B3 are marked.  It is clearly established the fact that the complainant had suppressed his ailment before taking the policy. There is no deficiency in  service on the part of the opposite parties towards the complainant.  Finally, the said learned counsel had prayed that the Hon’ble Consumer Forum may please to dismiss the complaint with costs.

 

Forum’s Findings and observations

       Heard, the learned counsel for the both parties and perused the record very carefully. The nature of liability under the C.P.Act, 1986 is not strict liability but fault liability. Parties led their evidence by way of affidavits and produced their documentary evidence. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. One who seeks equity must come to the Forum/Court with clean hands.  This case is lingering on since 3 years on some grounds or the other for a decision. 

 

  The crucial point is involved to decide the case, is that whether complainant is entitled to reliefs as prayed for, from the opposite parties in the given set of facts and circumstances of the case.  Highpertension, can it be a ground for the opposite parties to repudiate the legitimate claim of complainant? It is not so alone according to insurance law, to turn down to repudiate the claim of the policyholder by the opposite parties by showing various reasons and clauses which are stipulated as per the terms and conditions of the policy,  only at the time of settlement of it by the insurance companies.  It is not a correct view. 

 

    It is not correct to say that the opposite parties are entitled to repudiating the genuine claims which arises due to health grounds of the policyholders by showing their strict clauses which are incorporated in the said policy, are applicable and so that they are kept aside the claim applications of the policyholders without considering them.  The C.P.Act, 1986 confers equity jurisdiction on Consumer Fora to decide the cases on the principles of Natural Justice, equity and good consciousness. Let us observe the purpose and object of principles of insurance law, which is applicable, the case on hand.     

  

    The concept of Insurance:

 

   Because of uncertainty of human life as well as perils/risks in trade or industry, insurance business had developed and is developing.  The concept of insurance coverage springs from the principle of indemnity. The insurance company accepts the liability to indemnify the insured for the loss suffered by her/him due to peril against the consideration (premium) received by it.  But in actual practice, the insurer by showing mandatory provisions of rules and regulations framed by them in order to turn down the pleas of insured  while disbursing the valid claims of insured at their convenience.  Foundation of insurance contract is uberrima fides i.e., good faith and not fraud.  Insurer and insured must observe utmost good faith.  The duty of good faith is of a continuing nature.  In case of ambiguity or doubt in terms of the policy it should be interpreted in favour of the insured and against the company – LIC Vs.Rajkumar (1999) 3 SCC 465.

While the Forum is excising sovereign function of dispensation of justice, it is worthwhile to remember once that the proceedings before the Consumer Fora are inquisitorial but not adversary.  The orders are required to pass in accordance with justice and equity on the basis of the evidence available on record.  Primarily, the Consumer  Protection Act, 1986 is for the protection of the consumers and matters are required to be decided by having a rationale approach and non-technical one i.e., the mandate of law.  This is made clear in the case of Indian Photographic Co. Ltd. Vs. H.D.Shourie 1999(6) S.C.C.428.

 

Relevant case law:

 

1.Insurance claim is to be settled within two months of submission of material documents otherwise, the insured is entitled to interest @9% on the awarded claim amount – 2005 (2) CPR 640.

     2. AIR 2001 SC 1213 – It was held that no court ought to base its decision

          on technicalities alone.

About appreciation of evidence – It is a question of fact and each case has to be decided on the facts as they stand in that particular case.  We have bestowed our best of consideration to the rival submissions of the parties.  Measure for adequate compensation can be a lump sum amount may be a reasonable rate of interest by way of damages.  We are satisfied that it is a fit case, where in we have to give the reliefs to the complainant.  All the documents are marked on behalf of the complainant will clearly go to show that the claim of the complainant can be said to be totally justifiable under the circumstances of the case. 

   Admitting the complainant in the Trinity Hospital and Health Foundation, Bangalore is itself, describes under what circumstances he had joined in the hospital and took treatment and paid the said amount as fees and incurred expenditure for maintenance. The opposite parties are invariably must come to the rescue him under the circumstances to the complainant and honour his claim without looking into the technicalities alone, to turn down his claim.  It is not proper on the part of the opposite parties towards the complainant.   The C.P.Act, 1986 is a benevolent legislation to help the consumers.  The complainant is not at all acting to get wrongful gain.  It is not a trade.  It is a genuine claim on health grounds, incurred expenditure to cure the disease of the complainant and nothing else.  Justice is rendered in accordance with law.  Rules of procedure are intended to be a handmaid to the administration of justice. We are convinced with the arguments of the learned counsel for the complainant.  The opposite parties are miserably failed in their attempt to convince us. We cannot measure the mental worry of the complainant in terms of money.  He has suffered considerably since 3 years till today. We find that there is a deficiency in service and gross- negligence on the part of the opposite parties towards the complainant.  To meet the ends of justice, we are of the considered opinion that the complainant is entitled to the reliefs as mentioned hereunder point no.3, accordingly. These two points are held in favour of the complainant and against the opposite parties, accordingly.

 

POINT No.3:  In the result, the complaint is allowed in part, ordering the opposite parties 1 to 3 are jointly and severally liable to pay Rs.2,20,000/- (Rupees two lakhs twenty thousand only) to the complainant along with interest @9% p.a., from the date of the complaint i.e., 05-12-2013 till the date of realization and also to pay Rs.3,000/- (Rupees three thousand only) towards costs of the complaint to the complainant within one month from the date of receipt of the order.

 

Typed to the dictation to the stenographer and corrected and   pronounced by us in the Open Forum this the 31st day of August, 2015.    

 

 

              Sd/-                                                                            Sd/-

         MEMBER                                                                 PRESIDENT(FAC)

 

  APPENDIX OF EVIDENCE

 

WITNESSES EXAMINED FOR COMPLAINANT:

 

PW1

07-01-2015

:

Lalit Kumar, S/o.Sagarmal, Hindu, aged about 49 years, resident of Door No.13/641, RK Residency, 2nd Floor, F.Block, Venkata Ramudu Street, Chinna Bazaar, Nellore, S.P.S.R.Nellore District.

 

 

WITNESSES EXAMINED FOR OPPOSITE PARTIES:

 

RW1       RW2       RW3       RW4

26-02-2015       26-02-2015       26-02-2015       04-06-2015

:       :       :       :

S.Sanjay Kumar, S/o.S.A.Shanmugham, Hindu, aged about 31 years and working as Manager in opposite party office and residing at Cochin.   S.Sanjay kumar, S/o.S.A.Shanmugham, Hindu, aged about 31 years and working as Manager in opposite party office and residing at Cochin.   S.Sanjay Kumar, S/o.S.A.Shanmugham, Hindu, aged about 31st years and working as Manager in opposite party office and residing at Cochin.   Dr.B.G.Muralidhara S/o.Bindumalayam Pattabhi Gopalakirshnaiah Shetty Hindu, aged about 55 years and working in Trinity Hospital and Heart Foundation.

                                                                               

EXHIBITS MARKED FOR COMPLAINANT:

 

Ex.A1	24-01-2012	:	Photostat copies of policy bearing No.50582979 copies of insurance issued by the 2nd opposite party in favour of the complainant.
Ex.A2	26-03-2012	:	Photostat copies of Estimate for Angioplasty, advance receipts and payment transaction details issued Trinty Hospital and Health Foundation.
Ex.A3	24-03-2012 25-03-2012 26-03-2012 27-03-2012	:	Photostat copies Pharmacy requisition slips ten in number issued by Trinty Hospital and Health Foundation.
Ex.A4	24-03-2012	:	Photostat copies of Tax invoices issued by Trinty Hospital and Health Foundation.
Ex.A5       Ex.A6       Ex.A7     Ex.A8	26-03-2012       28-03-2012       09-04-2012     13-06-2012	:       :         :     :	Photostat copies of Coronary Angiogram reports issued by Trinty Hospital and Health Foundation in favour of the complainant.   Photostat copy of discharge summery issued by Trinty Hospital and Health Foundation in favour of the complainant.   Photostat copy of attending Physician information report of Dr.B.G.Muralidhara.   Office copy of legal notice along with acknowledgement of opposite party No.2

 

EXHIBITS MARKED FOR OPPOSITE PARTIES:                      

 

Ex.B1	31-01-2012	:	Photostat copy of Health Suraksha Policy Silver Plan  (schedule endorsed copy)Policy bearing No.50582979 issued by the 2nd opposite party to the complainant.
Ex.B2         Ex.B3	24-03-2012                 -	:         :	Photostat copy of Pre authorization form/admission request note issued by Dr.BG Muralidhara along with copy of ECG obtained by the hospital authorities relating to the complainant.   Health Suraksha Policy wording (terms and conditions manual) issued by the 2nd opposite party.

 

        Id/-                                                                                           PRESIDENT(FAC)

 

 

Copies to:

 

1. Sri  Sk.Akber, Advocate, Nellore.

 

2. Sri D.V.R.Kiran Kumar, Advocate, D.No.25-9-336,

Z.P.Colony, A.K.Nagar, Nellore – 4.

          

 

Date when order copies are issued: