IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM

            DATED THIS THE 27th  DAY OF JANUARY 2018

 

Present: - Sri. E.M.Muhammed Ibrahim,B.A, LL.M. President

Sri. M.Praveen Kumar, Bsc, LL.B, Member

 

       CC.No.126/2015

Lijoy John : Complainant

S/o John

Leela Bhavan

Odanavattom P.O

Kottarakkara

 [By Adv.K.B.Sreekumar]

 

V/S

1. The Executive Director : Opposite  Parties

Life Insurance corporation of India

Pattom

Thiruvananthapuram

 

2. Branch Manager

Life Insurance corporation of India 

Kasturba Building

Pulamon P.O

Kottarakkara

[By Adv.K.Jayakrishnan]

 

 

2

 

 

This is a consumer complaint filed by Lijoy John, the insured spouse under Section 12 (1) of the Consumer Protection Act 1986 against 2 opposite parties seeking re-imbursement of the medical expenses under Health Plus Policy No.7842300142 issued by the LIC and also for compensation.

According to the complainant he is a LIC agent.  He had taken a Health  Plus Policy issued by the 2nd  opposite party covering himself and his wife.  After satisfying the health conditions of the complainant and his wife the risk was accepted and policy was issued on 19.03.2009.  The complainant had remitted Rs.3750/- as insurance premium which is prescribed half yearly premium for the policy.  There after the complainant has been regularly remitting the premium amount without any default from 2009 and till date.  On 09.03.12, the complainant had met with a major accident and sustained very serious injuries including fracture to his leg and hip.  He was admitted at the KIMS Hospital Thiruvananthapuram and treated there as an impatient during the period from 09.03.12 to 22.03.12, 11.04.12 to 13.04.12 and again on 10.06.12.to 19.06.12.  On diagnosis, it was ascertained that he had sustained Type IIIB open fracture BB(R) Leg and Fracture dislocation( R ) Hip with transverse fracture (RT) acetabulum.  The matter was brought to the notice of the 1st opposite party immediately after the occurrence .  The complainant had incurred a total expense of Rs.7,00,000/- in the hospital itself in addition to other expenses incurred.  The complainant had lodged claim with all the  relevant  medical  records  seeking  HCB  and  MSB three 

 

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times.  But the opposite parties partly accepted and settled the claim to the extent of Rs.11,325/- only. The other major claim with regard to the surgery the complainant had undergone was repudiated by saying that ‘the operation performed is not listed in the allowed surgeries’ attached to the annexure of the policy the claim was repudiated as per letter dated 11.08.12.  According to the complainant  as per the terms of the policy, the opposite parties are liable to pay to the complainant major surgical benefits amounting to Rs.1,00000/- which is subject to increase at the rate of 5% annually.  The opposite parties are also liable to pay hospital cash benfits to the complainant. The complaint has been filed seeking recovery of the aforesaid amount with costs and compensation.

The opposite party resisted the complaint by filing a detailed version raising the following contentions.  LIC Contracts are contracts based on utmost good faith.  The policy is governed strictly by the Policy Terms and conditions.  The operation done was Open Reduction and Internal Fixation – Right ascetabulum and wound debridement of Right Leg.  This Operation is not listed as a major surgical procedure in the Policy conditions.  Under the Musculoskeletal System, only the total replacement of Hip Joint or Knee Joint following accident and amputation of Arm, Hand, Foot or Leg due to trauma or accident is covered.  The surgical procedure undergone by the complainant does not come under these categories.  Hence, there is no payment of Major Surgical Benefit (MSB).  Only  the Hospital Cash Benefit (HCB) is payable under this policy.  Hence, a sum of Rs.11,325/- was paid as the HCB.  

 

 

 

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In view of the above  pleadings the following points arise for consideration.

1. Whether there is any deficiency in service or unfair trade practice committed by the opposite party No.1&2?

2. Whether the complainant is entitled to get re-imbursement of medical expenses to the tune of Rs.1,00,000/- from opposite party 1&2 as claimed ?

3. Whether the complainant is entitled to get compensation from opposite party 1&2?

4. Reliefs and costs?

Evidence of the complainant consists of the oral evidence of PW1 and Ext.P1 to P8 documents.  Evidence on the side of the opposite parties consists of oral evidence of DW1 and 2 and Ext.D1 to D13 documents. 

 Both sides have filed notes of argument.   Heard both sides in detail.

Point No.1

 Admittedly the complainant is a consumer who is entitled to file a complaint before the Consumer Disputes Redressal Forum, if the complainant is able to establish there is any deficiency in service or unfair trade practice on the side of the opposite parties.  Now it is to be considered whether there is any deficiency in service or unfair trade practice on the side of the opposite parties.

It is also an admitted case that the complainant Sri.Lijoy John is the insured spouse in the Insurance Policy No.784230142 dated 19.03.09 issued in the name of Smt.Asha Lijoy who is the wife of the complainant. Ext. P1/D2 is Copy of the policy and Ext.D1 is the proposal form.  This is a Health Plus Policy (Plan-901) for 45 years.  It is further admitted that the policy holder had paid ½ yearly premium 

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which is evident from Ext.B2 document.  In short the policy is live as on the date of the alleged accident which is clear from the oral evidence of PW1 and DW1 and also Ext.D2 premium paid certificate.  It is also an admitted case at the time of taking policy the copy of the policy document(Ext.B3) and also policy conditions and privileges, book let which is marked as Ext.B4.  PW1 would admit during while facing cross examination by the learned counsel for the opposite parties that he is a LIC agent who knows all the terms and conditions of the policy stated in Ext.D4 book let.  He would also admit that  ‘Ext.P1  t\msSm¸w Hcp book let D­v.  AXv lmP-cm-¡n-bn-«n-Ã. Book let  Â cash s\Ip-dn¨v clause 2(1)(A) bn ]d-bp¶ hnhcw icn-bmtWm ? icn-bm-Wv, accident case  Â CXv _m[-I-a-Ã.  AXv sXfn-bn-¡p¶ tcJ lmP-cm-¡n-bn-«n-Ã.  Hmscm  LIC policy bpw Hmtcm contract BWv.  AXnsâ terms & conditions {]Im-c-amWv benefits In«p-¶Xv. In view of the above admission of PW1 the contention of the learned counsel for the complainant that there was no such policy conditions and Ext.B4 document has been subsequently created one so as to repudiate the claim will not stand at all especially when PW1 would admit during cross examination that he is a LIC agent and the facts regarding policy conditions are mentioned in Ext.P1 and Ext.D1 to D3 documents.

Even according to PW1 he met with an accident and his right leg and hip was fractured.  The operation was done at KIMS Hospital Thiruvananthapuram for the above fractures.  PW1 would also admit that  Major Surgical Benefit (MSB) is available only to those surgeries listed in the policy terms and conditions and no such major operation has undergone by him. 

 

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 However the complainant would claim that the Ext.D4 policy condition are not applicable to accident cases and the same is  applicable only to person who need such operation due to their sickness.  But there is absolutely nothing on record to establish that claim.  A mere reading of clause 2 (ii) of Ext.D4 policy conditions would disprove the above claim of the complainant .

According to the opposite parties there is no deficiency in service or unfair trade practice on their part and therefore there is  no cause of action for the complainant to file the complaint. I was consider whether there is any deficiency in service or unfair trade practice on the side of the opposite parties.  Admittedly the complainant is a consumer who is entitled to file a complaint before the Consumer Disputes Redressal Forum, if the complainant is able to establish there is any deficiency in service or unfair trade practice on the side of the opposite parties.  Give dictation regarding the definition of Deficiency of Service and unfair trade practice. It is an admitted fact that the matter was considered by the Insurance Ombudsman Kochi and as per its Ext.D13 award dated 26.12.14  the claim by the learned Ombudsman.  

Admittedly payments under the policy is covered by the terms  and conditions stated in the policy.  When a person opts for the policy he may have sufficient knowledge regarding terms  conditions and benefits under the policy.  The benefits stated under the policy are as follows.

1. Major surgical benefit:- In the event of an insured under the policy undergoing any “specified surgery” in a hospital due to “accidental injury” or “sickness”  first  occurring or  manifesting  itself  after the  date of cover 

 

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commencement and during the cover period then, subject to the terms and conditions of this policy , the benefit amount reckoned as a percentage of the sum assured as mentioned in the Surgical benefit Annexure against the specified surgery performed shall be payable by the insurance corporation.

2. It is further to be  pointed out that there is limit for benefit.  For however hospitalization no benefit would be paid for the first 48 hours(2 days) of hospitalization regardless of whether the insured was admitted in a general or special ward or in an intensive care unit.

3. No payment shall be made under the benefit for the operations performed, which are not listed in the Surgical benefit Annexure.  All surgical procedures claimed should be confirmed as essential and required by a qualified physician or surgeon to the satisfaction of the corporation.

The above clauses in Ext.D4 policy conditions are very clear.  According to the complainant as he has sustained an injury due to an accident which was  an un expected event even if it is not mentioned in the policy document an exception should be made and all benefits should be released.  According to the opposite parties they are not expected to make any exception to the policy conditions.  It is further contented that the complainant being a LIC agent is having  full knowledge of the different clauses and complainant as he is involving in for soliciting business by explaining the terms and conditions of the insurance policy to his clients.    

 

The learned counsel for the complainant has argued that  it is for the first time when the claim was repudiated with the complainant came to know that there is an annexure to the policy where in the surgery is enlisted. 

 

 

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It is further contented that the amount allowed as Hospital cash benefits is a paltry sum and he is entitled to get Rs.17500/- against which the opposite parties allowed only Rs.11,325/-.  The complainant is also entitled to get Rs.1,000,00/- as major surgical benefits.  According to the complainant the opposite parties are liable to pay an amount of Rs.1,32,250/- to the complainant as per the terms of Ext.P1 policy and out of which Rs.11,325/- already received and the balance due from the insurance company is Rs.1,20925/- with interest at the rate  of 12% per annum from 09.03.2012. We find no force in the above claim of the complainant.  

It is well settled with Consumer Forum cannot  go behind or beyond the terms of the contract of insurance between the parties as contract of insurance is an uberrimae fidei contract and therefore parties are bound by the terms of the contract.  It is also clear that Health plus Policy is a benefit and not an indemnity based policy.  The complainant is eligible for Hospital cash benefits as provided under terms and conditions stipulated in Ext.D4 document.  On evaluating the entire materials available on record we are of the view that the opposite parties have repudiated  the  major surgical benefit strictly in accordance  with the policy conditions stipulated under Ext.D4 document.  In the circumstance we are of the view that the complainant is not entitled to get any benefit under the policy for the operation already undergone due to the motor accident.

On evaluating the entire materials available on records we are of the view that there is no deficiency of service or unfair trade practice on the part of the opposite parties and the complainant is not entitled to get any benefit under Ext.P1 Policy for the operation  undergone  by  him  as the  same is not  enlisted in 

 

 

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the  specified surgery enlisted in Surgical Benefit Annexure.  The points answered accordingly.

In view of our findings with regard to point No. 1 to 3 the complaint is only to be dismissed.  In the result the complaint stands dismissed.  The parties are directive to suffer their respective costs.

 

Dictated to the  Confidential Assistant Smt.Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the 27th day of January 2018.

 

 

                                                                                                          E.M.Muhammed Ibrahim:Sd/-

                                                                                                           President

                                                                                                         M.Praveen Kumar:Sd/-

                                                                                                         Member

 

                                                                                                 Forwarded/by Order

                                                                                                 Senior Superintendent

 

 

 

 

 

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INDEX

Witness Examined for the Complainant

Ext. PW1 : Lijoy John

Documents marked for the  complainant

Ext.P1 : Copy of  insurance policy dated 25.03.09

Ext.P2 : Letter issued by complainant dated 05.01.13

Ext.P3 : Claim settlement letter dated 11.08.12

Ext.P4 : Copy of letter dated  02.10.12

Ext.P5 : Letter  dated 28.01.2013

Ext.P6 : Copy of Medical certificate dated 05.07.2012

Ext.P7 : Status report of policy no.784230142

Ext.P8 : Receipt dated 26.11.14

Witnesses examined for the opposite parties

Ext.DW1 : Sreekumar

Ext.DW2 : Dr.Renjith Unnikrishnan

Documents marked for the  opposite parties

Ext.D1 : Proposal Form

Ext.D2 : Copy of certificate of policy No.784230142

Ext.D3 : Copy of Policy document

Ext.D4 : Policy conditions and privileges book let 

Ext.D5 : Copy of  FIR

Ext.D6 : Discharge summary 

Ext.D7 : Copy of Certificate issued by Dr. Ranjith Unnikrishnan

Ext.D8 : Copy of Hospital bill 

Ext.D9 : Claim Intimation form dated 02.05.2012

Ext.D10 : Document Deficiency Letter dated 18.06.12

Ext.D11 : Copy of Claim Process summary

Ext.D12 : Copy of  letter dated 12.11.12

Ext.D13 : Award passed on 26.12.14

 

 E.M.Muhammed Ibrahim:Sd/-

          President

    M.Praveen Kumar:Sd/-

           Member

Forwarded/by Order