BEFORE THE DISTRICT FORUM: KURNOOL
Present: Sri K.V.H.Prasad, B.A., LL.B., President
Smt C.Preethi, M.A., LL.B., Member
Sri R. Ramachandra Reddy, B.Com., LL.B., Member
Thursday the 13th day of April, 2006
CC No. 138/2005
K. Sankar Rao,
S/o. Subbarayudu,
Aged 30 years,
Hanumanthagundam (V),
Kolimigundla (M),
Kurnool Dist. . . . Complainant
-Vs-
1.The Managing Director,
Paramount Health Services (Pvt) Ltd,
503, V Floor, M.G.R Estate,
Hyderabad.
2.The Divisional Manager,
The New India Assurance Co., Ltd,
Kurnool. . . . Opposite parties
This complaint coming on 12.4.2006 for hearing in the presence of Sri M.L. Srinivasa Reddy, Advocate, Kurnool for complainant, M/s C.M.K. Ranjani Advocate, Kurnool for opposite party No.2 and opposite party No.1 called absent set exparte, and stood over for consideration till this day, the Forum made the following.
O R D E R
(As per Smt C.Preethi, Hon’ble Member)
1. This Consumer Complaint of the complainant is filed under section 12 of C.P Act, 1986, seeking a direction on the opposite parties to pay Rs.40,000/- towards medical expenses with 12% interest per annum, Rs.5,000/- towards compensation for mental agony, costs of the complaint and any such other relief or reliefs which the complainant is entitled in the circumstances of the case.
2. The brief facts of the complainant’s case is that the complainant has taken a medi-claim policy bearing No. 611`502/48/02/00244 from opposite party No.2 through opposite party No.1. As per the policy terms and conditions, if the insured suffered from any disease or received injuries due to accident, the expenses incurred by the insured in any hospital, the opposite parties have to reimburse the same up to the limit shown in the policy. On 28.12.2002 the insured met with accident and received injuries to his nose and has taken treatment in E.N.T Nursing home at Secundrabad and incurred Rs.40,000/- towards medical expenses. As the complainant is entitled for reimbursement, on 11.8.2003 sent a letter along with claim form and bills to opposite party No.1 but to the dismay of the complainant the opposite party No.1 repudiated the claim by its letter dt 25.8.2003 stating that the disease for which the insured taken treatment was pre-existing one, and the same is not covered under the policy. But the complainant submits that he never suffered from any disease muchless the nose problem and which is not a pre existing disease and which constrained the complainant to resort to the Forum for redressal.
3. The complainant in substantiation of his case relied on the following documents Viz (1) repudiation letter dt 28.8.2003 of opposite party No.1 addressed to the complainant (2) office copy of letter dt 5.3.2003 of the complainant addressed to opposite party No.1 and (3) office copy of letter dt 11.8.2003 of the complainant addressed to opposite party No.1 besides to the sworn affidavit of the complainant as evidence and the above documents are marked as Ex A.1 to A.3 for its appreciation in this case. The complainant caused interrogatories to the opposite party No.2 and suitablely replied to the interrogatories caused by the complainant.
4. In pursuance to the notice of this Forum as to this case of the complainant the opposite party No.1 was made exparte and remained absent throughout the case proceedings. The opposite party No.2 appeared through their standing counsel and contested the case by filing written version.
5. The written version of opposite party No.2 submits that there is no cause of action for filling this complaint against opposite party No.2 and further alleges that the records enclosed to the complaint reveals that the complainant was admitted in E.N.T Nursing Home from 22.1.2003 to 24.1.2003 and was diagnosed as suffering from chronic deviation septum, chronic means persisting for a long time, it confirms that the complainant had the said Nasal problem for a long time and has taken the policy by suppressing the fact of ailment and further alleges that there is no basis to the alleged injury he sustained in the accident on 28.2.2002. Hence, it is clear that the ailment suffered by the complainant was pre-existing at the time of commencement of the policy and the claim of the complainant was rightly rejected by opposite party No.1 as per clause 4.1 of the policy. The complainant failed to submit FIR or punchanama or any record for proving the accident, the fact itself lead to suspicion and there is no cause of action or deficiency of service on part of opposite party No.2. The complainant has not given any opportunity to opposite party No.2 to as certain the injury by appointing an investigator till the receipt of notice of the Forum and did not submit required documents to opposite party No.2 within time prescribed and there is no contract or privity between opposite party No.2 and the complainant and lastly submits that the complainant claimed an amount of Rs.40,000/-, where as the bill submitted by complainant reveals that he has incurred Rs.11,171-15/- only, hence, the claim of the complainant is also excessive and untenable and seeks for the dismissal of complaint with costs.
6. Hence, the point for consideration is to what relief the complainant is entitled alleging deficiency of service on opposite parties:-
7. It is not in dispute that the complainant by name K. Shakara Rao has obtained an Individual Mediclaim policy bearing No. 611502/48/02/00244 by paying Rs.1,775/- from opposite party No.2 vide Ex B.5 and the said policy commenced from 17.12.2002 to 16.12.2003 and it is also not in dispute that the complainant underwent treatment in ENT Nursing Home from 22.1.2003 to 24.1.2003. When the complainant put forth the claim for the incurred expenditure under the policy to opposite party No.1, the claim was repudiated vide Ex A.1 by opposite party No.1 on the ground that the complainant has taken treatment for the disease which is pre-existing under exclusion clause 4.1 of the terms and conditions of policy.
8. Hence, the main contention of opposite parties is that the complainant suffering with Nasal problem before to the said treatment at ENT Nursing Home and the counsel for opposite party No.2 has forcefully contended that while submitted proposal form for entering into contract of insurance, the complainant has concealed the material facts from the opposite parties about his suffering from Nasal problem, therefore, the repudiation by opposite party No.1 is justified. The other contention of opposite party No.2 is that the opposite party No.2 has no privity of contract with complainant, the claim form and other documents are submitted to opposite party No.1 and it is opposite party No.1 who has repudiated the claim and it has nothing to do with the claim of the complainant.
9. The Ex B.5 is the policy issued by opposite party No.2 to the complainant under the said policy the opposite party No.2 received Rs.1,775/- as premium from the complainant, hence, opposite party No.2 cannot deny their privity of contract with complainant. In the said exhibit it is mentioned that exclusion are subject to paramount clause enclosed, but the opposite party No.2 at the time of filing this document did not chose to file the said paramount clause as mentioned in the Ex B.5, from the above clause what appears is that exclusions of this policy are subject to paramount clauses, the policy was issued by opposite party No.2 and the claim under the said policy made by the complainant was submitted to opposite party No.1 Vide Ex B.6 and the same was repudiated by opposite party No.1 vide Ex A.1, all the documents filed by opposite party No.2 marked as Ex B.1, B.2, B.3,B.4 and B.6 are submitted by the complainant to opposite party No.1 and the same are filed in this case by opposite party No.2 and there is no averment in the written version or in the sworn affidavit of opposite party No.2 as to how the opposite party No.2 received the said documents and how the same are filed before the Forum and all the said documents are stamped by opposite party No.1. Hence, what appears is that opposite party No.1 has acted on behalf of opposite party No.2 and the opposite party No.2 is now estoped from taking a stand that all the documents are submitted to opposite party No.1 and it is the opposite party No.1 which repudiated the claim of the complainant and it has nothing to do with the claim of the complainant. All the documents marked in uni-tone says that they are submitted to opposite party No.1 and the same documents are filed by opposite party No.2 hence, there is privity between opposite party No.1 and 2, hence, the contention of opposite party No.2 that required documents are not filed by the complainant to opposite party No.2 within time is rejected.
10. Now the main contention of opposite party No.2 is that the treatment taken by the complainant at ENT Nursing Home is for pre-existing disease, in support of above contention the opposite party No.2 did not file any documents or any direct evidence showing that the complainant has actually suffered from Nasal ailment prior to submitting the proposal form. In the absence of any document any evidence produced on record regarding the Nasal ailment of complainant, it cannot be said that the opposite parties has proved on record that the complainant was suffering from such Nasal ailment prior to taking the policy. Therefore, the opposite parties have failed to prove the case by placing any record which can be looked into, merely taking a plea that the complainant has taken treatment for pre-existing disease does not mean that the contents there of are necessarily true, no document is produced by the opposite parties about the pre existing ailment of the complainant, mere assertion or oral testimony in respect of ailment prior to taking policy neither can be acted upon nor relied upon. Onus is on the opposite parties to substantiate their plea that the complainant concealed material facts of his Nasal ailment before taking the policy or at the time of submitting proposal form.
11. The complainant in substantiation of his case relied on decision of AP State Consumer Disputes Redressal Commission reported in IV 2005 CPJ pg 205 between LIC of India and ors Vs Mora Rajeshwari, where in, it was held that burden of proving false representation and suppression of material facts lies on the Insurance Company and when the suppression of facts it not proved Insurance Company is liable, with the above position of Law of AP State Commission the decisions cited by the opposite parties reported in II 2005 CPJ page NO. 426 between Vasantha Vs LIC of India and Ors, M/s Zenith Computers Ltd and another Vs The New India Assurance Co. Ltd, at page No. 1493, National Insurance Company Ltd Vs Surinder Lal Arora at Page No. 33, The Marketing Manager, LIC of India Vs Smt S. Vijaya at page No. 1391 the above decisions are reported in National Commission and Supreme Court and Consumer cases, Smt Draupadi Devi S. Chaudhari Vs United India Insurance Co. Ltd at page No. 507 reported in Consumer cases reporter has little relevancy for its appreciation in this case.
12. Having regard to over all consideration and following the decision of our State Commission, there is no hesitation to hold the opposite parties have miserablely failed to substantiate that the complainant before taking the policy or at the time of submitting proposal form suppressed that he was suffering from Nasal ailment from opposite parties. Therefore, in these circumstances, the repudiation of claim by the opposite parties is wholly, arbitrary, unreasonable and unjust and amounts to deficiency of service on their part.
13. The next question that requires consideration is as to what claim the complainant is entitled under the said policy. The complainant in this case claimed as sum of Rs.40,000/- but failed to file any documents in substantiating the said claim and it is not the case of the opposite party that the complainant has not taken treatment at ENT Nursing Home and the expenses incurred by the complainant are claimed in Ex B.6, the Ex B.6 is the claim form issued opposite party No.2 submitted by complainant to opposite party No.1, the complainant claimed a sum of Rs.10,900/-, Rs. 149-25/- and Rs.122-00/- only as expenditure alleged to have been incurred by him during the treatment and the same is neither excessive nor unreasonable. Hence, the complainant is entitled to Rs.10,900/- Plus Rs.149-25/- plus Rs.122-00/- = Rs. 11,171-25 only and the same is payable by opposite parties to the complainant.
14. In the result, complaint is allowed directing the opposite parties 1 and 2 jointly and severally to pay an amount of Rs. 11,171-25/- to the complainant with 12% interest from the date of claim form i.e of 11.8.2003 till realization along with Rs. 1,000/- as costs within a month of receipt of this order. In default the opposite parties 1 and 2 jointly and severally shall pay the supra awarded amount with 18% interest from the date of default till realization.
Dictated to the stenographer, transcribed by him, corrected and pronounced by us in the Open Forum on this the 13th day of April, 2006.
PRESIDENT
MEMBER MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant :Nil For the opposite parties:Nil
List of exhibits marked for the complainant:-
Ex A.1 Repudiation letter, dt 25.8.2003 of opposite party No.1.
Ex A.2 Letter, dt 5.3.2003 addressed to opposite party No.1 by complainant
Ex A.3 Letter, dt 11.8.2003 addressed to opposite party No.1 by complainant
List of exhibits marked for the opposite parties :-
Ex B.1 Bill for In-patient Service (Ent Nursing Home) No. 957, for Rs.10,900/-.
Ex B.2 Dis-charge card.
Ex B.3 Receipt, dt 5.1.2003 for Rs.300/-.
Ex B.4 Medical bills (2) of Arun Medicals, Secunderabad, for Rs.122+ 149-25/- Ex B.5 Duplicate copy of policy with conditions Policy No. 611502/48/ 02/
00244.
Ex B.6 Claim form.
PRESIDENT
MEMBER MEMBER
Copy to:-
1.Sri M.L. Srinivasa Reddy, Advocate, Kurnool.
2.M/s C.M.K. Ranjani, Advocate, Kurnool.
1.The Managing Director, Paramount Health Services (Pvt) Ltd, 503, V Floor, M.G.R Estate, Hyderabad.
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties:
