BEFORE THE PRESIDENT, DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR
C.C NO- 61/2012
Present-Sri Dipak Kumar Mahapatra, President, Smt. Smita Tripathy,Member (W).
Sri Dushmanta Hota, aged about 32 years,
S/O- Late Birendra Mohan Hota,
R/O- Sason, Near Sason Police Station,
P.O/P.S- Sason, Tahasil-Rengali,
Dist- Sambalpur,(Odisha) …..Complainant
Vrs.
- Auithorized Officer,
HDFC Ergo General Insurance Company Ltd
-
-
- Authorized Officer, Family Health Plan, (TPA) Ltd,
Ground Floor, Srinilaya-Cyber Spazo,
Road-2,Banjara Hills, Hederabad-500034.
- The Branch Manager,
HDFC Bank,Sambalpur Branch,
At/P.O/P.S-Ainthapali, Dist- Sambalpur.….O.Ps
Counsels:-
- For the Complainant:- Sri S.C. Dash, Advocate & Associates.
- For the O.P-1 :- Sri B.K. Purohit, Advocate & Associates.
- For the O.P-2& 3:- Sri A.K Sahu, Advocate & Associates.
DATE OF HEARING : 01.03.2021, DATE OF ORDER : 22.03.2021
SRI DIPAK KUMAR MAHAPATRA, PRESIDENT:-Brief facts of the case is that the Complainant had a health Insurance policy under HDFC ERGO GENERAL INSURANCE CO LTD. Vide policy no-50729333, reference no-HN200520011000248 on dtd.21.05.2011. He has paid the premium of Rs.8867/- through the O.P-3 who is the branch manager HDFC bank Sambalpur Branch, Ainthapali under Dist-Sambalpur. The policy was valid till dtd.20.05.2012 and the Complainant was issued a Health Card by the O.Ps. During the validity period of the said Health Insurance Policy the Complainant had undergone eye treatment on dtd. 22.09.2011 in LV Prasad Eye Institute, Bhubaneswar which the one of the authorised hospital of the O.Ps. The Complainant has undergone Cataract surgery in his left eye on dtd. 22.09.2011. During his treatment the Complainant has produced the said health Card before the authority of the said hospital but they advised the Complainant to make payment in cash against the treatment and suggested him to claim the amount from the O.P thereafter. The Complainant had to pay the amount to the authority in Rs. 25,720/-to the eye institute for the operation of his eye the said hospital. He also spent Rs.5000/- towards his journey, staying, fooding for himself and for the attendants. On dtd. 09.10.2011 the Complainant has claimed the amount from the O.P-1 with due procedure but no reply made by the O.P-1. A reminder was sent to the O.P-1 on dtd 12.12.2011 but no he did not respond. On dtd. 20.12.2011 the matter was intimated to the O.P-2 by the Complainant over telephone and enquired about the proceedings but no positive response was received for which on dtd. 16.12.2011, a request for early settlement of the claim made by the Complainant but this time also the O.P-2 became deaf ear. Finding no way the Complainant on dtd. 19.03.2012 sent an Advocate notice for the settlement of the claim to the O.P-1 but when no reply was received from him the Complainant has constraint to seek relief from this Commission against the deficiency in service and unfair trade practice caused by the O.Ps and sought certain relief as per the petition.
According to the O.P-1 agrees that the said policy was issued to the Complainant which was valid from 21.05.2012 to 20.05.2012 and the total sum insured was Rs.3,00,000/- and the hospital cash benefit was Rs1,000/- per day for maximum of 30 days. The policy was issued subject to certain terms conditions and limitations. He specified another condition that, the policy does not cover any pre-existing disease as defined in the policy itself. On receiving one notice relating to this case, the O.P-1 attached out that one phone call was received by the family health plan limited on 22.11.2011 from the insured who was asking for the claim procedure which was intimated accordingly. Since no claim was intimated to the Insurance Company there is no occasion to deal with the case. Again the O.P-1 submitted that the Complainant has examined his eye on dtd.10.09.2011 and complained of reduction in vision since six months. This report was drawn on dtd.23.09.2011 by the L.V Prasad Eye Institute, Bhubaneswar. If the policy was taken in 23.09.2012 that particular disease is not covered because it was pre existing disease at the time of taking this policy. As per the medical report dtd. 23.09.2011,hence the claim is liable for repudiation. The Complainant has prior knowledge that the claim would be repudiated hence he would not have intimated the same to the O.P-1. So the O.P-1 has not committed any deficiency in service as the claim was not lodged with him. The Complainant is not entitled to get any amount as compensation from the O.P-1.
The Advocate of the O.P-3 filed a petition to delete his name as necessary party in this present case stating the ground thereof. He has also filed a decision of Hon’ble Supreme court in this regard attached in the case record. . The petition was considered as allowed. As the court felt that no purpose will be served to proceed in this case with the O.P-3, being a mis joinder of party, the name of the O.P-3 was rightly struck out from the list of necessary parties on dtd.04.04.2018.
The O.P-2, despite of service of notice he did not bother to appear before this Commission thus challenging the allegations made by the Complainant. So taking it in to consideration as “IT IS A YEAR OLD CASE”, this Commission has rightly decided to dispose the case as well setting the O.P-2 as ex-parte in this case. Hence hearing conducted exparte under Rule-6 of Order-9 of Civil Procedure Code.
POINTS OF DETERMINATION:-
- Whether the Complainant is comes under the purview of Consumer Protection Act-2019?
- Whether the O.Ps has committed any Deficiency in Service to the Complainant?
From the above discussion and materials available on records we inferred that the Complainant is a consumer of the O.P-1 & 2 as he has availed a Health Insurance from them. According to the science of Opthalmology there are several causes of reduction in vision. These are usually the result of disorders or injuries affecting the eye or a disorder such as Again the Supreme Court in Satwant Kaur Sandhu v. New India Assurance Company Ltd., (2009) 8 SCC 316, held that a Mediclaim Policy is a contract of insurance falling in the category of contract uberrimae fidei, meaning a contract of utmost good faith on the part of the assured. Thus, when aninformation on a specific aspect is asked for in the Proposal Form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the Policy or not. The obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. The term "material fact" is one which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would like to accept the risk. Any fact which goes to the root of the contract of insurance and has a bearing on the risk involved would be "material". It is "essential" and "relevant" information in the context of guiding the insurer to decide whether to undertake the risk or not. But it was the specific contention of the Complainant that the exclusionary conditions in the policy document had not been communicated by the insurer as a result of which the terms and conditions of the exclusion were never communicated. This matter has been well settled in the case of Bharat Watch Company Through Its ... vs National Insurance Co. Ltd. ... on 12 April, 2019, by the Hon’ble Supreme Court(Daily orders). The court has opined that “as the conditions of exclusion under the policy document were not handed over to the appellant by the insurer and in the absence of the appellant being made aware of the terms of the exclusion, it is not open to the insurer to rely upon the exclusionary clauses. In the present case the Complainant has taken the policy on dtd 21.05.2011 and prior to that there is no evidence showing that he was under treatment of any doctor but from the Medical Report documents of LV Prasad Eye Hospital is only disclosed that the Complainant was experiencing the problem of reduction in vision. The Complainant has actually availed treatment on dtd.22.09.2011 which is approximately 5 months after the inception of the insurance policy. Hence there is no question of suppression of material facts of pre-existing disease. Again in the Para-7 of the written statement filed by the O.P-1, the date of policy inception is dtd.21.05.2012 which creates an impression that the O.P-1 is deficient in collection of correct information to show as evidence. From the above observations we opined that the O.p1 & 2 have committed deficiency in services as well as Unfair Trade Practice to the Complainant. Hence we order as under:-
ORDER.
Complaint filed by the complainant is accepted . The O.P-1 & 2 are jointly and severally directed to settle the claim of the complainant and pay him Rs. 26,300/-towards the cost of treatment, refund the expenses incurred towards travel, accommodation, fooding of Rs.5,000/- and Rs.10,000/- towards compensation for mental agony and pain. The O.P-1 & 2 are further jointly and severally directed to pay Rs. 5,000 towards cost of litigation to the complainant within a period of 30 days from the date of receipt of the order passed by this Commission along with interest @ 9% p.a. from the date of filing the complaint till payment.
Order pronounced in the open court today i.e, on 22nd day of March-2021 under my hand and seal of this Forum.
Office is directed to supply copies of the Order to the parties free of costs receiving acknowledgement of the delivery thereof.
I agree,
-sd/-(22.03.2021) -sd/-(22.03.2021)
Smt. S.Tripathy Sri. D.K. Mahapatra
MEMBER.(W) PRESIDENT
Dictated and Corrected
by me.
-sd/-(22.03.2021)
Sri. D.K. Mahapatra
PRESIDENT
