BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 70/2012.
THIS THE 02nd DAY OF APRIL 2013.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
3. Smt. Pratibha Rani Hiremath,M.A. (Sanskrit) MEMBER.
*****
COMPLAINANT :- Bhagirath Sharma S/o. Bhagwat Sharma, aged
about 38 years, Occ: Business, R/o. 11-12-93/94, Patel road, Raichur- 584 101.
//VERSUS//
OPPOSITE PARTY :- Divisional Manager, United India Insurance
Company Ltd, Divisional Office, Raichur.
CLAIM :- For direct the opposites to pay a sum of Rs.
1,60,000/- with 12% interest, to direct them to pay an amount of Rs. 50,000/- towards mental harassment, deficiency in service and to direct them to pay a sum of Rs. 10,000/- towards cost of litigation with other reliefs as deems fit to the circumstances of the case.
Date of institution :- 01-09-12.
Notice served :- 24-09-12.
Date of disposal :- 02-04-13.
Complainant represented by Sri. TM. Swamy, Advocate.
Opposite to represented by Sri. Vikram Nair, Advocate.
This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Gururaj, Member:-
This is a complaint filed by the complainant Bhagirath Sharma S/o. Bhagawat Sharma against the Opposite U/sec. 12 of Consumer Protection Act for to direct the opposites to pay a sum of Rs. 1,60,000/- with 12% interest, to direct them to pay an amount of Rs. 50,000/- towards mental harassment, deficiency in service and to direct them to pay a sum of Rs. 10,000/- towards cost of litigation with other reliefs as deems fit to the circumstances of the case.
2. The brief facts of the complainant case are that, after knowing about the Individual Health Insurance Policy through Respondent Company authorized agent by name Ratan. R. Tadas, the complainant insured himself and his family members Health Insurance through Policy No. 240200/48/11/97/542. During the pendency of the policy the complainant had chest pain and accordingly, he consulted a local doctor, who after complete evaluation and investigating has diagnosed as “Blockage of walls of heart”. After that, immediately he approached Apollo Hospital, Hyderabad for treatment, as per the advise of one doctor Bharat.V. Purohit admitted in the said hospital on 04-04-2012 and got direct to stenting to LAD with 3x24 mm Biomine stent by spending Rs. 1,60,000/- and was discharged on 06-04-2012 with an advise of follow up treatment and also to take bed rest and avoid tension.
Further it is the case of the complainant that, when he has received chest pain problem and treatment at Hyderabad was intimated to the Respondent through his agent and also provided the originals of treatment for furnishing to Respondent for claim purpose on 15-04-2012. Thereafter, he also furnished entire information and papers of treatment in the second week of May-2012 by claiming the medi claim amount as per the assurance made by Respondent in the policy in question. Apart from the said intimation through the agent of Respondent, the complainant had also intimated the same personally to Respondent over the phone with little delay because of his ill-health and bed rest as per doctor advise.
Further it is the case of the complainant that, inspite of intimation provided as supra the Respondent Insurance Company sent a repudiation letter dt. 10-05-2012 on alleged ground that, “there is a delay” in intimating and furnishing treatment papers to Respondent authority. This is surprising reply from the Respondent because the entire matter has been already intimated to the agent but, the agent has failed to inform same to the Respondent which was learnt by the complainant after due enquiry with the Respondent Company agent. This act of the Respondent agent is not the ground for rejection of the claim. Further it is contended that, the terms and conditions of policy we are not brought to the notice of the complainant at any point of time since beginning of policy to till this date. Under such circumstances rejection of the claim by the act of the agent of the Respondent and not made known to the terms and conditions by the Respondent, the rejection of the claim under the policy in question is nothing but a deficiency in service. Hence he has sought for reliefs as prayed in the complaint.
3. Opposite Insurance Company appeared in this case through its Advocate and filed written version by contending that, the present complaint is an abuse of the process of the Hon’ble Forum, as it is filed on false and frivolous allegations, it involves complicated issues and requires examination of experts. Further it is contended that, the complainant was suffering from heart ailment prior to taking the policy which was not disclosed at the time of taking the policy, he has also not informed has not informed within seven days about the treatment to the Respondent as required under the terms of the policy and all necessary papers should be submitted within 30 days, the complainant for reasons best known has not intimated the same which amounts to breach of policy condition, consequently the complainant is not entitled for any claim against this Respondent.
Further, it is contended that if, the complainant is successful in claiming his claim through this Hon’ble Forum he is entitled only 70% of the sum assured. It means he is entitled only to the tune of Rs. 70,000/- only but not more than that. Further it has contended that, the complaint is false, frivolous and vexatious the claim under the complaint is highly exaggerated, excessive, speculative, hence opposite sought for dismissal of complaint as there is no deficiency in service on the part of the Respondent and among other grounds along with cost.
4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that:
1. Whether the complainant proves that, there is a deficiency in service on the part of Respondent as alleged?
2. Whether complaint is entitled for the reliefs as prayed in the complaint.
3. What order?
5. Our findings on the above points are as under:-
(1) In the affirmative
(2) As discussed in the body of this judgement and as noted in the final order.
(3) In-view of the findings on Point Nos. 1 & 2, we proceed
to pass the final order for the following :
REASONS
POINT NO.1 & 2:-
6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-9 are marked.
7. On the other hand affidavit-evidence of Assistant Manager of Opposite Insurance Company was filed, he was noted as RW-1. One document was filed as same was marked as Ex.R-1.
8. From the pleadings of the parties and their respective evidences it is a fact that opposites has not disputed regarding the purchase of the policy from the complainant, treatment taken by the him, while his medi claim policy is in-force. Further it is also not in dispute that, the complainant has submitted his papers for claim to the Respondent and the claim has been rejected by the Respondent on the ground that, the claim has not submitted within seven days and related papers have not submitted within one month.
9. After perusal of the pleadings of the parties and documents submitted by them, the question before us for to decide the case are as under;
1) Whether the complainant has intimated about the ailment and its treatment to the opposite within seven days or not and whether he has submitted all the relevant documents about the treatment and ailment within one month as per the terms and conditions of the policy or not.
2) Whether the complainant is suppressed material facts regarding his heart ailment prior to taking the policy or not.
10. The Point No-1 is concerned, we have gone through the legal notice issued by the complainant to the Respondent filed under Ex.P-9 wherein, the counsel for the complainant in Para-4 of the said notice contended that, the claim has been put forth before the Respondent on 15-04-2012 by submitting originals of the treatment and further contended that, rest of the documents have also submitted second week of May-2012. The another document filed under Ex.P-8 claim repudiation letter dt. 10-05-2012, the Respondent Insurance Company contended that, they have received claim intimation on 07-05-2012 and documents relating to claims received on 09-05-2012. No doubt, these dates were not tallying each other further it is also discloses that, the Respondent Insurance Company is not accepting the dates submitted by the complainant regarding claim intimation and submissions of papers is concerned, but it is fact that, at no where in the documents made available before the forum neither the complainant has proved about the intimation through the agent as contended by him in the complaint nor the Respondent has proved that, whether they have made any enquiry with its agent by name Ratan. R. Tadas about the intimation received by the complainant regarding the claim of the complainant. As per the said Ex.P-8 the claim papers have been received by the Respondent on 09-05-2012 it means just six days delay has been caused by the complainant for to submit the documents. But it is worth while to note here that, how they have received the said documents from the complainant is not mentioned. Whether they have received it by the post or personally is under dark. Therefore, such delay cannot be considered as so serious and only on the said ground the claim of the complainant cannot be rejected. In our view when the policy is under force, when the treatment is not under dispute merely on the technical ground regarding time of intimation and presentation of documents (which is under dispute) holds no good. In this regard, we have referred the rulings of our Hon’ble National Commission cited in 2012(2) CPR 279 NC submitted by the counsel for the complainant wherein it has held that, Insurance Company cannot repudiate the claim of complainant only on the technical ground when the policy is in force and when the complainant is eligible for to claim.
11. Further it is worth while to note here that, whether the policy terms and condition regarding time bound is concerned, are made known to the policyholder immediately at the time of obtaining the policy or not? This main question will arise. Here in the present case, no doubt the opposite has filed the policy cover note filed under Ex.R-1 supported by the terms and conditions of the policy, however the copy of the policy filed by the complainant is no doubt explains about the name and details about the premiums but it is quite different from the policy produced by the opposite and does not includes the terms and conditions and apart from that, the policy field by the opposite is under Ex.R-1 does not carry the signature of the complainant where the terms and conditions mentioned under such circumstance, there is no any reasons to believe that, the complainant is having knowledge about the terms and conditions of the policy and same are made known to the policyholder by the opposite. But as per the IRD Authority all the terms and conditions are to be provided to the policyholder in respect of a proposed cover to the prospect immediately and attached to the policy. But here no such intimations are made available in the policy hence, it cannot be said that, the same has been informed to the policyholder at the time of obtaining the policy as contended by the Respondent. Hence, the contention of the Respondent in this regard not accepted.
12. Point No-2 is concerned, the counsel for the complainant vehemently argued on the point that, the present policy is medi claim policy it is totally different from Life Insurance Policy. Hence section 45 of Insurance Act, has no application. On the other hand, the counsel for opposite by pressing the suppression of material facts he has strongly argued on the point that, the policyholder have no rights to claim anything over the policy as he has suppressed the material facts and violated the terms and conditions of the policy and principle of “UTMOST GOOD FAITH” We have perused the entire documents submitted by the complainant and opposite but no documents were made available before this forum by this opposite to show that, the complainant is suffering from Heart ailment prior to obtaining the policy in question. Actually the burden lies upon the Insurance Company to prove about the suppression of material facts regarding the health of the insurer is concerned, mere making allegation about his heart ailment and rejection of the claim on the one among the other ground holds no good. Hence, we have not accepted the claim of the opposite. Further we have also gone through the rulings of the Hon’ble Supreme Court cited in 2009 CJ 890 (SC) and Hon’ble National Commission cited in 2012(3) CPR 225 (NC) counsel for complainant, we have gone through the said rulings wherein, the Hon’ble Justices have categorically held that, section 45 of Insurance Act, has no application for Health Policy is concerned and clause pertaining to special exceptions was not made available to the policyholder nor was he appraised about it, under such circumstances claim cannot be repudiated by the Insurance Company. Even on the present ground also we have not accepted the contention of the opposite as the complainant has no rights to claim any monetary benefits under the present complaint. Under above circumstances, we hold that, the complainant has proved his case without any doubts. On the other hand, the opposite has utterly failed to prove its case. Therefore, we answered Point No-1 in affirmative.
13. As regards to the relief claimed by the complainant, he claimed total expenditure Rs. 1,60,000/- in respect of medi-claim policy No. 240200/48/11/97/542 along with 12% interest from 10-05-2012 to till realization. The complainant has produced bills of the Apollo Hospital as per Ex.P-5 to the tune of Rs. 1,59,684/-. The policy amount is for Rs. 1,00,000/- only. Hence the claim of the complainant is restricted only to the tune of Rs. 1,00,000/- as regards to the interest is concerned, the claim of the complainant is concerned, is excessive hence we have awarded only 9% interest from the date of complaint till realization.
14. Definitely there is a deficiency in service on the part of Respondent by repudiating the legal claim of complainant, as such we have granted lumpsum of Rs. 3,000/- which recoverable by the complainant on the Opposite for deficiency in service etc.,
15. As regards to the cost of litigation is concerned, we have taken note of the entire litigation of the complainant and awarded a lumpsum amount of Rs. 2,000/- towards cost of the litigation. Accordingly the complainant is entitled to recover a total sum of Rs. 1,05,000/- from Opposite, accordingly we answered Point No.2.
POINT NO.3:-
16. In view of our finding on Point No-1 & 2 we proceed to pass the following order:
ORDER
The complaint filed by the complainant is partly allowed against Opposite with cost.
The complainant is entitled to recover a total sum of Rs. 1,05,000/- from the Opposite.
The complainant is entitled to recover future interest at the rate of 9% p.a. on the above total sum of Rs. 1,05,000/- from the date of the complaint till realization of the full amount.
One month time is given to the opposite to make the payment above total sum with interest.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 02-04-13)
Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. Pampapathi,
Member. Member. President,
District Consumer Forum Raichur. District Consumer Forum Raichur. District Consumer Forum Raichur.
*RK*
