Bindhu M Thomas P., Member: Petitioner's case is as follows: The petitioner was the employee of the opposite party Insurance Company. He was working as the Assistant Administrative Officer of Pala Branch.The opposite party is a General Insurance Company. On 1st January 1990. the opposite party introduced a compulsory scheme of Group Medi claim policy to its employees and the petitioner was also a member of the said schem named 'Hospitalisation And Domiciliary Hospitalisation Benefit Policy'. As per the scheme of the policy 1/3 of the premium is to be paid by the petitioner and 2/3 of the premium is to be paid by the employer the said policy covers heart disease also. The policy was renewed by the petitioner from time to time. On 5..3..2000 the petitioner was admitted at Caritas Hospital for myocardial infraction. The petitioner was reimbursed by the opposite party for the said disease. The petitioner renewed the policy with a sum assured of -2- Rs. 2 lakhs with effect from 1..4..2000 recording to the petitioner at the time of renewal the opposite party had knowledge of said disease. Again the petitioner renewed the policy for a sum assured of Rs. 3 lakh from 2001. On 16..10..2004 the petitioner was admitted in MIOT Hospital, Chennai and undergone a coronary arteryBy pass Graft Surgery and discharged on 2..11..2004. On Discharge the petitioner submitted a claim form to the opposite party claiming an amount of Rs. 1,90,741/- along with original bills and other records. The opposite party paid only Rs. 70,000/- repudiating the claim of the balance amount. Petitioner's case is that he was not suffering from any pre-existing disease and the renewal of the policy is without any break. According to the petitioner the disease caused on 16..10..2004 is a fresh illness and is covered under renewal policy from 2001. On repudiation of the claim the petitioner filed a complaint before the Insurance ombudsman, Kochi. Ombudsman on 25..2..2005 dismissed the petition. Petitioner states that the act of the opposite party amounts to deficiency of service and unfair trade practice. So the petitioner seeks the relief for directing the opposite party to pay the balance amount of Rs. 1,20,741/- to the petitioner with 12% interest and also he claims for a compensation in the tune of Rs. 50,000/- for the financial and mental loss sustained to him and for the cost of the proceedings. The opposite party entered appearance and filed version contenting that petition is not maintainable. According to the opposite party the policy has a cover of -3- only Rs. 70,000/- The liability of the company is as per the personal manual of the company they contented that enhanced assurance sum is applicable for the heart disease pre-existing disease shall not cover for the enhanced some assured. According to the opposite party the petitioner accepted the said amount of Rs. 70000/- as full and final settlement so, he has no right to claim any further amount the disease prior to the date of enhancement shall be treated as pre-existing diseas for the enhanced amount. The disease caused on 16..10..2004 is a continuation of the disease caused on 5..3..2000. The filing of the complaint vide No. 10/KCH/G1/11-003/124/2004-05 before the insurance ombudsman and the dismissal of the same estope the petitioner from filing this petition before this forum and also they contended that petition is barred by Resjudicate the decision of the insurance ombudsman is final. Part 2 of personal manual of opposite party company governs the scheme so the petitioner is not entitled to get any enhanced amount and there was no deficiency of service or unfair trade practice on their part. Hence they prayed for a dismissal of the petition with compensatory cost to them. Points for determination are: i) Whether there is any deficiency of service or unfair trade practice on the part of the opposite parties? ii) Reliefs and costs? -4- Evidence of the petitioner consists of affidavit filed by the petitioner Ext. A1 to A5, Evidence of the opposite party consists of affidavit of the opposite party and Ext. B1 to B5 and X 1 is the Exhibit of the forum. Point No. 1 No seperate points with regard to the maintainability of the petition is raised by the parties. The opposite party have raised contention of maintainability in their version, that question is to be determined. The main contention with regard to the maintainability is whether the decision of the ombudsman ousts the jurisdiction of Consumer Forum. The opposite parties definite case is that once the matter was decided by an expert authority constituted for deciding the cases exclusive of insurance matters the petitioner cannot raise the same contentions before this forum now, the present petition is to be dismissed. As reply to the said argument the learned counsel for the petitioner relied on the decesion in 2005 CPJ 464. The opposite party also lend support the said decision to show that the petition is not maintainable . On going through the decesion it is clear that relief envisaged under Consumer Protection Act is not a substitute for other remedies available to the complaints. It is an additional remedy and also we are of the opinion that the award of the ombudsman is only recommendatory in nature and is not a bar for filing a petition before the forum. So much so we are of the opinion that there is no estopped and the present petition is maintainable. The other argument put forth by the opposite party is that the receipt of an -5- amount of Rs. 70,000/- by the petitioner is a full and final settlement or in other words by accepting the said amount the petitioner is estopped from claiming the amount covered by the policy opted under higher category. The opposite party's counsel vehemently argued that the receipt of Rs. 70,000/- by the complainant on 20..12..2004 is without any protest and the said amount is received as a full and final settlement and now the petitioner is estopped from claiming further amounts he also argued that the protest made by the petitioner is not legal. Ext. A3 is the protest letter issued by the petitioner to the opposite party dtd: 16..12..2004. The opposite parties contention is that since the acceptance of the Rs. 70,000/- is after the date of protest the said acceptance is a considered as full and final settlement. According to the petitioner the act of filing of a petition to the insurance Ombudsman is also be considered as a protest. In order to support his arguments he relied upon 2005 (II) CPJ- 654, 2004 (2) CPR 508 and another decision of hon'ble National Commission in 2004 (2) CPR 14. On going through all these dictum, We are of the opinion that the acceptance of the amount by the petitioner is under compelling circumstances and putting signature on a voucher will not deprive the petitioner from claiming the amounts he is entitled so, we are of the opinion that the receipt of an amount of Rs.70,000/- by the petitioner on 20..12..2004 cannot be treated as an acceptance in full and final settlement and principle of estoppe is not applicable in this case. The other question to be decided is whether the disease caused to the petitioner on 16..10..2004 is a pre existing disease or fresh disease. According to opposite -6- party the disease on 16..10..2004 is a pre-existing disease because on 5..3..2000 to 20..3..2000 the petitioner has treated for myocardial infraction. When the petitioner renewed the policy with a sum assured of Rs. 2 lackswith effect from 1..4..2000 and on further renewel of the policyfor the year of 2001 the cardiac disease is pre existing. So he is only entitled to get the amount, which he is entitled under the lower catagory. The opposite party's counsel argued that as per Personal Manual of the opposite party(page 148) cl. 10 Note 1. All pre existing disease are excluded for coverage under the higher category. But the coverage as per lower category granted in the previous year may continue even during the waiting period. On the other hand the petitioner argued that as per clause 22 in page 153 of the said manual if there is no gap of insurance, disease, which have been contracted during the expired policy will continue to be included under the renewel policy or the disease during the expiring policy will not be a pre existing disease, if the renewel is without break. The counsel for the petitioner has also place attention of the forum with regard to the definition given to the fresh illness in Ext. A5 document. According to him if the occurance of the same illness after a lapse of 45 days will be considred as fresh illness. We are of the view that the clause 22 in page 153 of the Ext. A5 is with regard to continuing policy and not with regard to policy of higher category. The definition of fresh illness in clause 4 page 155 of Ext. A5 is with regard to illness and not disease. So, the said arguments of the petitioner will not help him. -7- The other argument placed by the learned counsel for the petitioner is that since the petitioner in his proposal form has stated that he was suffered from Acute myodcardial infraction and the opposite party has accepted his proposal and issued the policy. So now they cannot turn up and say that the petitioner is not entitled for the insured amount. The petitioner produced the copy of proposal form submitted on 5..3..2001 and 1..3..2004 which were marked as Ext. A1 and Ext. A1 (a). The petitioner argument is that he had not suppressed any fact, the fact of his previous disease is mentioned and the opposite party after accepting the proposal and after accepting the premium issued the policy so, they cannot now turn up and say that since the disease is pre existing the petitioner is not entitled for any amount to support the argument of the petitioner he relied support of one decision of Calcutta ssState Commission in Binalesh Chatterjee Vs. Oriental Insurance Co. & others reported in 1995 (1) CPR 577 CPJ in the said case the hon'ble State Commission has stated that the insurance Co. cannot repudiate the claim of a complainant. On the ground of Pre-existing disease if the insured expressly declares in his proposal form and insurance company accepted the same. We are of the opinion that in the case of a medicalim policy the repudiation on the ground that a disease is pre-existing is some what in congruous. People do not take policy of this nature to ensure themselvs against the diseases of which they have never suffered earlier. The insurer would normaly wish to cover himself against the risk of heavy hospitalisation charges. The trust worthiness of such a policy would -8 - disappear if it were not to be applicable to disease which the insured expressely declares in his proposal forms and the Insurance company with its eye open accepted the risk. So we are of the opinion that the act of the opposite party in repudiating the claim of the petitioner after considering the proposal and accepting the premium is a clear deficiency of service on the part of the opposite party. Point No. 1 is found accordingly. Point No. 2 In view of the findings in point No. 1 the petition is to be allowed and the petitioner is entitled to get the reliefs sought for the petitioner claimed an amount of Rs. 1,90,741/- as per Ext. A2 series documents the opposite party has no dispute with regard to medical bills. So, the petitioner is entitled for that amount. The petitioner claims an amount of Rs. 12% interest for the said amount. But we are of the opinion that allowing an interest at the rate of 9% is reasonable since interest is allowed no compensation is ordered. In the result the following order is passed. The opposite party is ordered to pay the balance amount concerned under the disputed policy ie. An amount of Rs. 1,20,741/- with 9% interest from the date of repudiation till realisation. The opposite parties are also directed to pay cost of the proceedings in the tune of Rs. 1000/-. The
......................Bindhu M Thomas ......................Santhosh Kesava Nath P
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