Sri. P. Satheesh Chandran Nair (President):

                   The complainant filed this complaint u/s.12 of the C.P. Act 1986 for getting a relief from the opposite parties.

                   2. The case of the complainant is stated as follows:  The 1^st opposite party is a registered company engaged in insurance services including health insurance service.  The 2^nd opposite party is the agent of 1^st opposite party.  The complainant availed a Group Health Master Policy named ‘Family Health– Platinum’ which was issued by the 2^nd opposite party.  The complainant has taken the said policy through the 2^nd opposite party and he remitted the 1^st premium Rs.15,888/- on 26.08.2013.  According to the complainant, as per the policy the 1^st opposite party is bound to pay a hospital expense up to Rs. 4 lakhs.  He again stated that the complainant, wife and his one son is eligible for this treatment package.  It is stated that after the completion of 6 months from the date of policy, the complainant suffered liver disease and admitted in Thiruvalla Medical Mission Hospital and subsequently for further treatment he is admitted in Lakeshore Hospital at Kochi on 04.03.2014.  As a result of the ultra sound scanning, it reveals that the complainant is suffering liver cerrhosis along with subdural haematoma.  A surgery of SDH was done to him and up to 18.03.2014 he was an inpatient at Lakeshore Hospital, Kochi.  According to him, for all these treatment he spent merely Rs.2,08,710/-.  In order to get the insurance coverage he preferred a claim form to the 1^st opposite party, but the 1^st opposite party repudiated his claim on 21.05.2014 on a ground that he is alcoholic drunkard.  The above said policy is issued for a period of 26.08.2013 to 25.05.2014 vide policy No.2842/00101351/000600 for a sum of Rs. 4 lakh.  He again submitted that the 1^st opposite party issued the insurance policy through their branch, the 2^nd opposite party M/s. IndusInd Bank Ltd., Thiruvalla Branch as a customer-cum savings bank account for 2^nd opposite party as a customer of the 2^nd opposite party, no medical check up was conducted before the issuance of the said policy.  He again submitted that he has not suppressed any material fact at the time of entering into the contract with the opposite parties.  The ground stated for the repudiation of the complainant’s claim is baseless and merely an attempt to escape from opposite parties responsibility.  The complainant further stated that the opposite parties are liable to pay Rs.2,08,710/- being the claim amount along with 12% interest from the date of the claim onwards.  The act of the opposite parties by repudiating the claim is unsustainable, illegal and it caused mental agony and hardship to him.  Hence this complaint is for directing the opposite parties to pay the hospital expense of Rs.2,08,710/-, a compensation of Rs.1 lakh and cost from the opposite parties.

                   3. This Forum entertained his complaint and issue notices to the opposite parties for their appearance.  The opposite parties appeared before the Forum and filed their version as follows:  2^nd opposite party filed the version for and on behalf of the 1^st opposite party also.  According to this opposite parties, this complaint is not maintainable either in law or on facts.  According to this opposite parties, on perusal of the claim document it is observed that the ailment, chronic cure disease is a complication of alcohol abuse which is not covered under the said policy.  Hence the claim of the complainant is inadmissible under General Exclusion Clause (15)C of the Group Health Insurance Policy.  As per Clause (15)C no indemnity is available or payable for claim directly or indirectly caused by arised out of or connected to use, misuse, abuse of alcohol, banned substances or narcotic drugs (whether prescribed or not).  This opposite parties further submitted that the referral letter to the Consultant Gastroenterologist, Lakeshore Hospital from Thiruvalla Medical Mission is self explanatory that claimant complainant is chronic alcoholic and the discharge summary from Lakeshore Hospital also affirm the same.  According to them, the 1^st opposite party is not liable to pay any account as claimed by the complainant.  The 1^st opposite party prayed to dismiss the complaint with cost to them. 

          4. This Forum peruse the complaint, version and document produced by the parties and framed the following issues:

1. Whether the complaint is maintainable before the Forum?
2. Whether the opposite parties committed any deficiency in   

    service?

3. Regarding cost and reliefs?

          5. In order to prove the case of the complainant, complainant himself examined as PW1 and filed proof affidavit in lieu of chief examination and marked Ext.A1 to A5.  On the side of opposite parties, DW1 and DW2 were examined and marked Exts.B1 to B5 series.  Ext.A1 is the copy of repudiation letter dated 21.05.2014 sent by the 1^st opposite party to the complainant.  Ext.A2 is the insurance policy certificate.  Ext.A3 is the copy of ultra sound scan of abdomen.  Ext.A4 is the copy of MRI scan of brain with MR angiogram.  Ext.A5 is the copy of bills (21 Nos.) dated 18.03.2014 for Rs.2,14,687/- issued by the Lakeshore Hospital, Kochi in the name of the complainant.  On the other hand, opposite parties marked Ext.B1 to B5 series.  Ext.B1 is the photocopy of the proposal form.  Ext.B2 is the authorisation.  Ext.B3 series are the attested copy of Group Health Insurance Policy.  Ext.B4 series is the outpatient case record of Thiruvalla Medical Mission Hospital.  Ext.B5 series is the patient record of Lakeshore Hospital, Kochi.   

             6. The proof affidavit of the complainant is more or less as per the tune of the complaint and the Ext.A1 is the letter dated 21.05.2014 issued by the opposite party to the complainant (PW1).  Through this letter we can see that the proposal for the insurance claim is repudiated by the opposite party and through that letter the opposite party explained the reason for repudiation.  As per Ext.A1, the Chronic liver diseases is an alcohol abuse, which is not covered under the scope of the policy.  On that ground, the complainant’s claim is inadmissible under General Exclusion Clause 15(C).  It reads as follows: ‘No indemnity is allowable for claims’ directly or indirectly caused by arising out of or connected “the use, misuse or abuse of alcohol, substances or drugs (whether prescribed or not) is not covered”.  As per Ext.A2 policy dated 30.08.2013 it is seen that the period of the policy is from 26.08.2013 to 25.08.2014 and the total sum insured is for Rs. 4 lakhs and the policy is a Health Master Policy and as per this exhibit it is also seen that the complainant, his wife and his son are covered with the insurance policy and the said policy is issued in the name of M/s. IndusInd Bank Ltd. (2^nd opposite party).  The Ext.A3 dated 08.03.2014 is the Ultra Sound scan of the abdomen of the complainant shows that, (a) liver is decreased in size and shows coarse, echotexture and surface irregularity-chronic liver disease, (b) borderline splenomegaly.  Ext.A4 is another MRI scan brain with MR angiogram dated 10^th March, 2014.  In the said Ext.A4, the finding is as follows:-

1. Subdural hematoma involving bilateral cerebral convexity and also extending into right anterior interhemispheric fissure with associated mass effect over adjacent brain parenchyma.
2. Bilateral symmetrical TIW hyperintensity at globus pallidus – Possible secondary to chronic liver disease.
3. No evidence of any arteriovenous malformation/aneurysm seen in the Circle of Willins.

Ext.A5 series, which contains Page No.1 to 21 is the details of the treatment expenses incurred by the complainant as doctors fee, medicines, room charges, nursing charges etc.

                   7. In this case, the opposite party adduced evidence and through DW1 the 1^st opposite party filed proof affidavit and marked Ext.B1 to B3.  As per the proof affidavit he admitted that on 24.08.2013 the complainant availed Group Health Master Policy as ‘Family Health Platinum’ by executing Ext.B1 proposal form.  Ext.B2 is a notary attested true copy of the power of attorney in favour of one Aneesh Varghese, Senior Manager of the 1^st opposite party dated 1^st April, 2015 is also marked.  Ext.B3 series are the copy of the certificate of insurance of the complainant and Ext.B4 series are the outpatient registration form and inpatient admission register dated 26.02.2014 and 03.03.2014 respectively.  In Ext.B4 series, history and physical examination progress notes and consultation, doctors order sheet, medication sheet and lab test results are also seen.  Ext.B5 series contains Page No.1 to 198.  This Ext.B5 series contains registration of the patient on 04.03.2014, history of examination, discharge summary, lab test result details of the medicine administered from the said hospital etc. etc. After closing of evidence on both side, we heard both side.

                   8. Point Nos.1 to 3:- As per the deposition of PW1 he deposed that he is a policy holder of Group Health Master Policy of the opposite party and the policy come into existent from 26.08.2013.  He categorically deposed that for the said policy there is a coverage of Rs. 4 lakhs is stated in favour of the complainant and apart from him his wife and the son are eligible for the benefit of the said medical insurance claim.  He also adduced evidence to the effect that he suffered liver diseases after the 6 month from the date of commencement of the policy he who was admitted in the Thiruvalla Medical Mission Hospital and for better treatment and medical management he was again admitted at Lakeshore Hospital, Ernakulam.  According to his deposition, it is evident to see that he was an inpatient of Lakeshore Hospital up to 18.03.2014 and spent more than Rs. 2 Lakhs for the Lakeshore Hospital treatment.  In order to prove his case, he produced the policy certificate which is marked as Ext.A2 in this case.  According to PW1, even though he submitted the claim form the opposite party repudiated the claim without any sufficient ground.  Ext.A1 is the repudiation letter of 1^st opposite party.  The ultra sound scan of abdomen report dated 08.03.2014 of Lakeshore Hospital, Ernakulam is produced and marked as Ext.A3 in this case.  On the basis of Ext.A3, the impression is as follows: (a) liver is decreased in size and shows coarse, echotexture and surface irregularity-chronic liver disease, (b) borderline splenomegaly.  As per Ext.A3, it is come out in evidence that the complainant is suffering chronic liver diseases and the borderline is splenomegaly.  According to this PW1, he spent Rs.2,14,687/- for his treatment and in order to prove it he produced and marked Ext.A5 medical bill.  The final bill amount of Rs.2,14,687.82 can be seen from Page No.21 of Ext.A5 series.  It is so pertinent to see that all exhibits which are marked as Ext.A1 to A5 are without any objection.  At the time of cross-examination, 1^st opposite party has not disputed the genuineness or reliability of this exhibits. 

                   9. We do admit that the opposite party raised serious contention to the effect that the case is not maintainable before the Forum and also questioned the locus standi of the complainant for contesting the case.  But when we peruse the evidence adduced in this case, it is to see that even the opposite party admitted that the complainant is an insured and the opposite party is the insurer.  Regarding the genuineness of Ext.A2 insurance policy, it is seen that no dispute raised from the opposite party.  Considering all these facts we find Point No.1 in favour of the complainant. 

                   10. The opposite party vehemently contested this case and cross-examined PW1.  It is the definite case of the 1^st opposite party is that the complainant is a chronic alcoholic and as a result of the consumption of alcohol the complainant suffered chronic liver disease and other allied diseases and the opposite party has not liable to pay any insurance to this complainant because these kind of persons are exempted from insurance claim.  In order to substantiate the case, the opposite party point out Clause (15)C of Ext.B3 series, i.e., policy document and terms and condition dated 23.08.2014.  As per the certificate of insurance issued on 23.08.2014 it is seen that insurance is valid from 23.08.2013 to 25.08.2014 and the sum assured is for Rs.4 lakhs and the policy is a family floater (self + spouse + 1 children). It is true that at the time of cross-examination, the learned counsel appearing for the opposite party put certain question regarding the alcoholism of the complainant and with regard to the eligibility of the policy with 24 month from its commencement, the complainant given answers in negative.  We do admit that in order to substantiate the case of the opposite party, the learned counsel produced Ext.B4 series and Ext.B5 series which are marked through DW2.  In order to substantiate the opposite parties case apart from the said document Ext.B1 to Ext.B3 are also marked through DW1.  In cross-examination, the learned counsel appearing for the complainant asked a question to DW1, “Ext.B1 proposal form-ലെ വിവരങ്ങള് അടിസ്ഥാനമാക്കിയാണ് പോളിസി കൊടുത്തത്. - Ext.B1-നോടൊപ്പം terms and conditions attach ചെയ്തിട്ടില്ല”.  As per the testimony of this DW1, who is the Senior Manager of 1^st opposite party he admitted that the terms and condition of the said policy has not been attached with Ext.B1.  He again answer in cross, “Ext.B1-Â policy holder അസുഖങ്ങള് ഉള്ളതായി രേഖപ്പെടുത്തിയിട്ടില്ല. ആയത് ഉണ്ടെങ്കിൽത്തന്നെ ആയത് ചേർക്കാനുള്ള കോളം Ext.B1-ൽ ഇല്ല.  Ext.B1-ൽ ഞങ്ങള് ‘no need of medical check up’ എന്ന് എഴുതി ചേർത്തിട്ടുണ്ട്”.  When we examine this testimony, we can come to a conclusion that opposite party has not given any importance for a medical check up prayer to the admission to their insurance scheme.  If the opposite parties repudiated the claim on the basis of a prayer disease what prevented them to give a medical check up prayer to the admission to the insurance policy.  He again answered in cross-examination, “Ext.B3 (showing)-യിൽ വാദി ഒപ്പിട്ടിട്ടില്ല”.  On the basis of this answer of DW1, it is also clear that even though there is a terms and condition attached in the insurance policy that terms and condition are not binding to the complainant since he is not at all a party in the said agreement.  It is true that the terms and condition of the said policy is seen from Ext.B3 series.  But it is evident to see that all this terms and conditions are signed by 1^st opposite party’s authorised signatory.  Either in this document, the signature of the complainant is seen.  As per contract act an agreement can be effected only when both the parties signed in that document.  In this case, PW1 deposed that he is not in aware of the terms and condition of the policy and more over nobody explain the terms and condition of the policy when he joined in this insurance scheme.  At the time of hearing, the 1^st opposite party’s counsel point out Group Health Insurance Policy, ‘Clause (15)C it reads as, ‘connected use, misuse, abuse of alcohol, banned substances or narcotic drugs (whether prescribed or not)’. This portion contains in Ext.B3 series to the effect that no indemnity is available or payable for claims directly or indirectly, caused by arising out of the above said General Exclusions.  On the basis of the pleading of the opposite party the opposite party examined DW2 in this case.  The DW2 Dr. Antony Paul Chettupuzha, who is the Senior Gastroentrologist attached to Lakeshore Hospital and marked Ext.B4 series and Ext.B5 series through him.  In chief examination he answered, “in Page No.73, Neurosurgeon written as, ‘history of chronic alcoholism’ whether the disease of the patient is caused due to alcohol?  His answer was ‘100% not sure’.  In cross-examination, “alcohol use  ചെയ്യാത്ത ആളുകളിൽ liver cerrhosis കണ്ടുവരുന്നു”.  Chronic use of drugs is also a reason for liver cerrhosis.  “ഈ patient  പ്രമേഹബാധിതനായിരുന്നു, faulty liver failureþൻറെ beginning stage ആണ് ”.  When we peruse the chief examination and the above stated portion of cross-examination, it is seen that the reason for the liver diseases is not by alcoholism but also due to chronic use of different drugs or for other reasons.  DW2 is a medical expert in this sphere either parties of the proceedings not challenged his competency in this aspect.  The said DW2 categorically deposed to the effect that he had not gone through Ext.B4 and this exhibit had been seen only at the time of examination before the Forum and he had only gone through with the reference letter containing in the Ext.B5 series.  It is true that in Page No.19 of Ext.B5 series, the reference letter from Thiruvalla Medical Mission Hospital is seen.  Nowhere in the reference letter the alcoholism of the complaint found a place.

                   11. Considering the nature, circumstances and available evidence in this case, we are come to a conclusion that the opposite party is not succeed to prove that the complainant was a chronic drunkard and the reason for the liver disease is due to his alcoholism.  In order to substantiate the case of the complainant, the counsel produced a decision reported on 09.06.2014 by the State Consumer Disputes Redressal Commission, Punjab, Chandigarh in New India Assurance Company Vs. Kuljinder Kaur, in that decision the antecedent cause was recorded as de-‘compensated alcoholic cerrhosis’ but even in that case also the commission reported like this, “as per that report, the alcohol was the contributory factor of the liver disease and the kidney disease but it is not mentioned therein that the same was on account of alcohol.  Therefore, the present case does not fall under permanent exclusion clauses and the opposite party was not competent to repudiate the claim of the complainant on that ground.  Correct finding to effect was recorded by the District Forum and the same is hereby upheld”.  Regarding the expense incurred for the medical treatment which was marked as Ext.A5 series is a cogent and conclusive evidence in favour of the complainant to decide the real expenditure incurred for the treatment.  In the light of the evidence before us it is clear that opposite party has committed deficiency in service as a service provider or the complainant.  The Points found accordingly. 

                   12. On the basis of the above finding, we find that the Ext.A1 repudiation letter is not sustainable and the reason stated for the repudiation in the said letter is not tenable.  Regarding the claim of compensation, the complainant is not adduced any sufficient evidence to allow the compensation as stated in the complaint.  However, we find that as a result of the repudiation of the genuine insurance claim of the complainant, the complainant suffered mental agony and different harassment.  It is seen that the 2^nd opposite party is the Branch Manager of M/s. IndusInd Bank Ltd., Thiruvalla, but he has not cross-examined the complainant at the time of adducing evidence before the Forum, or he has not adduced any oral evidence on his side.  We do admit that as per the evidence this 2^nd opposite party was functioned as an agent when the complainant joined this insurance scheme with the 1^st opposite party.  Being the Branch Manager of a commercial bank he is duty bound to answer the claim of the complainant or he has to rebut the claim.  In this case, this 2^nd opposite party has not discharged his duties properly.  The attitude of the 2^nd opposite party also can be seen as a deficiency in service on his part.  In the light of the above finding, we decided to allow the complaint as follows.  The Point No.2 and 3 are also found in favour of the complainant.

                   13. In the result, we pass the following orders:

1. The 1^st opposite party is directed to pay the hospital expenses of the complainant for Rs.2,08,710/- (Rupees Two Lakh Eight Thousand seven hundred and ten only) with 10% interest to the complainant from the date of order onwards.

2. The 1^st opposite party is also directed to pay an amount of Rs.25,000/- (Rupees Twenty Five Thousand only) as compensation to the complainant with 10% interest from the date of order onwards.

3.  The 2^nd opposite party is also directed to pay an amount of Rs.25,000/- (Rupees Twenty Five Thousand only) as compensation to the complainant with 10% interest from the date of order onwards.

4.  1^st and 2^nd opposite parties are directed to pay a cost of Rs.3,000/- (Rupees Three Thousand only) to the complainant with 10% interest from the date of order onwards.

           Declared in the Open Forum on this the 30^th day of November, 2015.

                                                                                         (Sd/-)

                                                                                P. Satheesh Chandran Nair,

                                                                                                (President)

Smt. K.P. Padmasree (Member – I)         :       (Sd/-)

Smt. Sheela Jacob (Member – II)           :    Not agreed

Dissenting Order

Smt. Sheela Jacob (Member –II):

                   The point to be considered in the evidence adduced by the parties the complainant could not prove any deficiency in service against the 2^nd opposite party.  The 2^nd opposite party, the bank is only an agent between the complainant and 1^st opposite party.  The 2^nd opposite party complied all the duties and formalities in time without any fail, i.e. the bank insured the complainant and his family, under the 1^st opposite party.  The claim was repudiated by the 1^st opposite party, the 2^nd opposite party has no role in it.  In the circumstances, I find that the complainant failed to prove the deficiency in service against 2^nd opposite party and there is no need to pay any compensation to the complainant.

                   The 1^st opposite party is directed to pay Rs. 2,08,710/- is an admissible amount but the compensation is an exorbitant amount.  So the 1^st opposite party is directed to pay Rs.10,000/- as compensation to the complainant.

                                                                                                 (Sd/-)

                                                                                            Sheela Jacob,

                                                                                            (Member – II)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Varghese Thomas

Exhibits marked on the side of the complainant:

A1 :  Copy of repudiation letter dated 21.05.2014 sent by the

        1^st opposite party to the complainant. 

A2 :  Photocopy of Insurance policy certificate. 

A3 :  Photocopy of Ultra Sound Scan of abdomen. 

A4 :  Photocopy of MRI scan of brain with MR angiogram.

A5 :  Photocopy of bills (21 Nos.) dated 18.03.2014 for Rs.2,14,687/-

        issued by Lakeshore Hospital, Kochi in the name of the complainant. 

Witness examined on the side of the opposite parties:

DW1  :  Aneesh Varghese

DW2  :  Antony Paul Chettupuzha

Exhibits marked on the side of the opposite parties:

B1 :  Photocopy of the proposal form. 

B2 :  Authorisation. 

B3 series:  Attested copy of Group Health Insurance Policy. 

B4 series:  Outpatient case record of Thiruvalla Medical Mission Hospital. 

B5 series :  Patient record of Lakeshore Hospital, Kochi.

                                                                                                (By Order)

Copy to:- (1) Varghese Thomas, Thannickal House,

                    Thirumoolapuram. P.O., Thiruvalla.

2.  Cholamandalam MS General Insurance Co. Ltd.,

           2^nd Floor, Dare House, 2 NSC Bose Road,

                    Chennai – 600 001.

3. Branch Manager, M/s. IndusInd Bank Ltd.,

          Thiruvalla.

4. The Stock File.