Date of filing: 21.07.2014.
Date of disposal: 19.01.2015.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – II:
VIJAYAWADA, KRISHNA DISTRICT
Present: Smt N. Tripura Sundari, B. Com., B. L., President (FAC)
Sri S. Sreeram, B.Com., B.A., B.L., Member
Monday, the 19th day of January, 2015
C.C.No.160 of 2014
Between:
P. Bikshalu, S/o Viswanadham, R/o.D.No.24-18-16, Sarabaiah Temple Street, Durgapuram, Vijayawada.
…..Complainant.
And
1. ICICI Lombord General Insurance Company Ltd., Rep: by its Authorized Person, Registered Office, ICICI Lombord House, 414, Veer Savarkar Marg, Near Siddhi Vinayak Temple, Prabhadevi Mumbai – 400 025.
2. ICICI Lombord General Insurance Company Ltd., ICICI Lombord Health Care, Rep: by its Authorized Person, ICICI Bank Tower, Plot No.12, Financial District, Nanakram Guda, Gachibawli, Hyderabad – 500 032.
3. ICICI Lombord General Insurance Company Ltd., Rep: by its Manager, D.No.39-1- 82/A, 6th Floor, Anjaneya Towers, Anjaneya Jewellary, Venkateswarapuram, Labbipeta, Vijayawada – 10.
.. … Opposite parties.
This complaint coming on before the Forum for final hearing on 31.12.2014, in the presence of Sri S. Samba Siva Reddy, advocate for complainant; Sri D. Ravi Kiran, advocate for opposite parties; and upon perusing the material available on record, this Forum delivers the following:
O R D E R
(Delivered by Hon’ble Member Sri S. Sreeram)
This is a complaint filed by the complainant under Sec.12 of Consumer Protection Act, 1986 against the opposite parties 1 to 3 with a prayer to direct them to pay Rs.96,599/- together with interest at 24% p.a from the date of claim till realization towards reimbursement of indemnified money through the medi-claim policy, to award Rs.1,00,000/- towards compensation and damages, to award costs and for other reliefs.
1. The brief facts which lead to filing the present complaint are that the complainant obtained a Health Insurance policy from the opposite parties on payment of required premium vide policy No.40341/FPP/81030828/00/000 for the period from 30-6-2013 to 29-6-2014 and that a Health Card was issued to him bearing No.101014771. As per the policy, the opposite parties could indemnifies the complainant against medical charges incurred as a result of suffering of illness or bodily injury during the period of insurance which requires hospitalization for a minimum period of 24 hours. While so, the complainant met with an accident and sustained grievous injuries and admitted in MVS Accidental Hospital, Vijayawada on 26-2-2014 vide IP No.4975 and was discharged on 5-3-2014 and he underwent surgeries and incurred an amount of Rs.96,599/-. The complainant submitted claim form on 10-3-2014 claiming the above said amount. But the opposite parties after lapse of two months issued seven days notice dt.2.5.2014 terminating the policy, which acts of opposite parties is nothing but arbitrary. The complainant got issued a legal notice dt.21.5.2014 demanding the opposite parties to settle the claim. The opposite parties received the said notice, but of no use. Hence, the complaint.
2. After registering the complaint, notices were sent to the opposite parties. The 3rd opposite party filed version while denying the material averments of the complainant, but admitted the issuance and existence of policy. It is further contended that they received the intimation regarding alleged injuries sustained by complainant and made enquiries and after scrutiny of documents, it was found that the insured with held the information about undergoing CABG 12 years back and thereby breached the terms and conditions of policy and that as the complainant had fraudulently not disclosed about the pre-existing disease, the policy becomes void ab-initio and that there is no deficiency in service on their part in terminating the policy and finally prayed to dismiss the complaint.
3. The complainant filed his chief affidavit reiterating the material averments of the complaint and got marked Ex.A1 to A11 on his behalf. The Legal Manager of 3rd opposite party filed affidavit and got marked Ex.B1 to B5 on its behalf.
4. Heard both sides. Perused the record.
5. Now the points that stood for consideration are:
- Whether there is any deficiency of service on the part of opposite parties in terminating the policy of complainant?
- If so, to what relief?
Point No.1:
6. On considering the material on record, the undisputed facts are that the complainant took Health Insurance policy from the opposite parties vide policy No. 40341/FPP/81030828/00/000, which is valid from 30-6-2013 to 29-6-2014 and in that regard, a Health Card was issued to him bearing No.101014771. Ex.A1 is health card, which bears the policy number and period of insurance valid up to 29.6.2014. The opposite parties also not disputed the said facts. The contention of the complainant is that he met with an accident and sustained grievous injuries and was admitted in MVS Accidental Hospital, Vijayawada on 26-2-2014 and was discharged on 5-3-2014 and during the said period, he incurred Rs.96,599/- towards surgery and medical charges and that he submitted claim form to the opposite parties for settlement of claim to that extent, but the opposite parties arbitrarily terminated the policy without any lawful reason. Ex.A2 is the claim form submitted by the complainant. Ex.A3 is the seven days notice informing about termination of policy.
7. As seen from the version and Ex.A3 notice, the contention of the opposite parties in terminating the policy is that the complainant at the time of proposal for policy not disclosed that he underwent CABG 12 years back and as such he committed breach of terms and conditions of policy and accordingly they terminated the policy. Ex.B5 self declaration letter marked on behalf of opposite parties discloses the said fact. But the complainant has been disputing Ex.B5 as forged and fabricated one.
8. Now the point that stood for deliberation before this Forum is that whether the ground taken by opposite parties in terminating the policy is justifiable one or not. In this case, admittedly the complainant met with a Road Traffic Accident on 26-2-2014 and was admitted in MVS Accident Hospital, Vijayawada on 26-2-2014 itself. Ex.A4 FIR dt.26.2.2014 discloses the factum of accident and Ex.A7 discharge summary discloses that the complainant joined in the hospital on 26-2-2014 and was discharged on 5-3-2014. Further perusal of Ex.A7 discloses that the complainant was diagnoized for fracture of both bone left leg and fracture of left lateral tibial condyle and also conducted surgeries. Ex.A5 and A6 are the medical bills and other prescriptions issued by the hospital. Ex.A8 is the legal notice got issued by complainant along with postal receipts and ExA9 and A10 are postal acknowledgments of opposite parties 2 and 3. Ex.A11 is the Health Cards issued by opposite parties for the year 2011 and 2012. As such, from the above documentary evidence, it is clear that the complainant met with an accident and joined in the hospital and spent Rs.90,999/- towards medical expenses etc., Ex.A5 which contains the bill dt.6.3.2014 bearing No.13001201 discloses the said expenditure.
9. As per the version of the opposite parties, the complainant underwent CABG (Cardio Vascular Bypass Surgery) 12 years back. But the opposite parties have not placed any material before this Forum to connect the link between the cause of road traffic accident and non disclosure of surgery conducted 12 years back. Further the complainant is disputing the Ex.B5 alleged self declaration as forged and fabricated one. The complainant also appeared before this Forum in person and on examination of body in the presence of counsel for opposite parties, we found no surgery marks. In this case, the complainant sustained bodily injury as seen from the discharge summary under Ex.A7 in road traffic accident only and he incurred Rs.90,999/-. Further the complainant has been taking mediclaim policies from the opposite parties since 2009. Further except Ex.B5 alleged self declaration letter of complainant, which is strongly disputing by complainant, the opposite parties have not placed any documentary proof in support of their contention that the complainant underwent CABG 12 years back. Further filing of Ex.B5 only discloses that the opposite parties have not made any enquiries in respect of alleged bypass surgery. The burden heavily rests on the opposite parties to enquire into the issue and submit documentary proof regarding pre-existing disease of complainant. Solely basing on the Ex.B5, this Forum cannot come to conclusion that the complainant had withheld the fact of undergoing CABG 12 years back. Further the opposite parties also not chosen to cross-examine the complainant to prove the contents of Ex.B5. As such, solely basing on the fact that the complainant withhold about the pre-existing disease, the opposite parties cannot terminate the policy. The contract of insurance was for benefit of insured. In this regard, we would like to rely on the decision of Hon’ble State Consumer Dispute Redressal Commission, New Delhi in FA No.8/98, which was relied on by the complainant, wherein it was held that
“claim of insured should not be and cannot be repudiated by taking a clue or remote reference to any so-called from the ‘discharge summary’ of the insured by invoking the exclusion clause’ or ‘non disclosure of pre-existing disease’ unless the insured had concealed his hospitalization or operation for the said disease undertaken in the reasonable near proximity”
It is further held that
“Doctrine of good faith being often resorted to by the insurance company cannot be used in such a manner so as to jeoparadize the interest of insured
In this case, even for a moment assuming without admitting that the complainant underwent bypass surgery 12 years back. Further the complainant is not claiming the amount in respect of amounts hospitalized or operated with regard to said disease. The complainant is claiming amount in respect of injuries sustained by him in Road Traffic Accident and there is no link between the pre-existing disease and the accident. As such we are of the considered opinion that the act of opposite parties in terminating the policy is nothing but deficiency in service on the part of opposite parties. Accordingly this point is answered.
10. The complainant in support of his contentions also relied upon the following decisions reported in
- Punjab State Commission Karamjit Kaur & others Vs. Directorate Personnel, Punjab State Electricity Board (1994) 1 CPJ 487
- Madhya Pradesh State Commission in Smt.Geeta Jeevnani Vs. The Oriental Insurance Co., Ltd. 2004 (1)CPR 280
- Hon'ble Nationa Commission in National Insurance co., Ltd. Vs. Nabin Chandra Naik 2006 (2) CPC (NC),
- Hon'ble Nationa Commission in M/s.Rama Associates Ltd., Vs. New India Assurance Co., Ltd. 2013 (4) CPR (NC) 435
- Ruling of Rajahsthan State Commission in Radhey Shyam Goyal Vs. M/s.National Insurance Co., Ltd. 2008 (3) CPR 57,
The above decisions are squarely applicable to the facts of present case.
11. Now coming to the quantum of award, though the complainant claimed Rs.96,599/-, he filed Ex.A5 bill dt.6.3.2014 to the tune of Rs.90,099/- only. As seen from clause No.2 of the Ex.B4, the complainant is entitled for pre-hospitalization expenses and post hospitalization expenses in case of bodily injury. But the complainant has not filed any documentary proof with regard to incurring of Rs.3,000/- towards post hospitalization expenses and Rs.3,500/- towards Ambulance charges. As such the complainant is entitled for Rs.90,099/- only.
Point No.2
12. In the result, the complaint is allowed partly directing the opposite parties 1 to 3 jointly and severally to pay Rs.90,099/- to the complainant with subsequent interest at 9% p.a. from the date of termination of policy i.e. 2-5-2014 till realization besides payment of compensation of Rs.5,000/- and costs of Rs.1,000/-. Time for compliance is one month from the date of dispatch of the copy of this order. The other claims of complainant if any shall stands dismissed.
Typewritten by Steno N. Hazarathaiah, corrected by me and pronounced by us in the open Forum, this the 19th day of January, 2015.
PRESIDENT (FAC) MEMBER
Appendix of evidence
Witnesses examined
For the complainant: -Nil- For the opposite parties: -Nil-
Documents marked
On behalf of the complainant:
Ex.A1 Original copy of health care card.
Ex.A2 Photocopy of ICICI Lombord health care claim form.
Ex.A3 02.05.2014 Photocopy of letter issued by OP to complainant.
Ex.A4 26.02.2014 Photocopy of FIR and intimation to police.
Ex.A5 Photocopies of medical bills.
Ex.A6 Photocopies of medical prescriptions and diagnostic reports.
Ex.A7 05.03.2014 Photocopy of discharge summary.
Ex.A8 21.05.2014 Copy of legal notice got issued by complainant to Ops.
Ex.A9 Postal acknowledgement.
Ex.A10 Postal acknowledgement.
Ex.A11 Health care cards (2).
On behalf of the opposite parties:
Ex.B1 Photocopy of family protect proposal form.
Ex.B2 Photocopy of cashless authorization request note.
Ex.B3 02.05.2014 Photocopy of letter issued by OP to complainant.
Ex.B4 Photocopy of ICICI Lombard health care policy.
Ex.B5 28.02.2014 Photocopy of self declaration letter.
PRESIDENT (FAC)
