KERALA STATE CONSUMER DISPUTES REDRESSAL 

     COMMISSION VAZHUTHACADU THIRUVANANTHAPURAM

           APPEAL:119/2007

                             JUDGMENT DATED:19..01..2010

PRESENT

JUSTICE SHRI.K.R.UDAYABHANU                :  PRESIDENT

SHRI.M.K. ABDULLA SONA                                      : MEMBER

1.The New India Assurance Co. Ltd.,

  Repd. by the Regional Manager,

  Regd. Office, Ernakulam.

2.The Divisional Manager,

  Divisional Office,                                              : APPELLANTS

  New India Assurance Co. Ltd.,

  Kollam.

3.The Manager,

  New India Assurance Co. Ltd.,

  Kayamkulam Branch.                             

(By Adv: Sreevaraham.G.Satheesh)

          Vs.

K.K.Sunilkumar,

“Udhyanam”, Changankulangara.P.O,               : RESPONDENT

Oachira.

(By Adv:Sri.Dinesh Sajan)

   JUDGMENT

JUSTICE SHRI.K.R.UDAYABHANU:  PRESIDENT

The appellants are the opposite parties/New India Assurance Company Ltd. in OP:480/04 in the file of CDRF, Kollam.  The appellants are under orders to pay a sum of Rs.36,800/- the balance claim amount with 9% interest and Rs.1000/- as cost.

2. The case of the complainant is that during the coverage of the mediclaim policy with the opposite parties he underwent surgery at KIMS Hospital for correction of complications due to piles.  A sum of Rs.82,900.07 is the amount claimed for treatment expenses.  Only a sum of Rs.46,100/- was allowed.  The complainant approached the insurance Ombudsman also.  The claim was rejected clause 4.3 of the exclusion clause.  It is contended that clause 3 of the exclusion clause would not apply as the policy commenced from 1990 onwards.  Initially the assured amount was Rs.50,000/- and the amount was enhanced to Rs.2,00,000/- on 2..8..2001.  It is not yet particularly specified in the policy that clause 4.3 will operate in cases of enhancement of the amount at the subsequent renewals.

3. It is contended by the opposite parties/appellants that the complainant received the amount of Rs.46,100/- in full and final settlement and hence he is not entitled for further claiming the amount.  It is also stressed that during the first year of operation of the renewal policy exclusion clause 4.3 applied to certain illnesses that included piles.  Hence the complainant is not entitled for any amount exceeding the amount for which the enhancement was made at the time of renewal.

4. Evidence adduced consisted of the testimony of PW1, DW1 Exts.P1 to P6, D1 to D8.

5. We find that the Forum has observed that from the very beginning after signing the discharge voucher the complainant has been protesting and he filed application before the Ombudsman.  With respect to the full and final settlement it was pointed out by the counsel for the respondent that PW1 has stated that the relevant portions in the discharge voucher were blank and that the same were incorporated later.  We find that the above contention cannot be upheld in view of the fact that Ext.D4 discharge voucher is a printed one containing the words that the amount has been received in full satisfaction and discharge of the claim.  It is pertinent to note that there is no averment in the complaint or in the lawyer notice issued by the complainant that the amount was received on account of fraud, mis-representation or reasons of the said nature inspite of the fact that in the reply notice ie Ext.P5 the appellant has raised the contention that amount was received in full satisfaction and discharge of the claim.  The Appex Court in United India Insurance Company Vs. Ajmeer Singh Cotton and General Mills and Others II (1999) CPJ (10) SC has stressed that the consumer is to specify the authority under the Act that discharge was obtained by fraud, mis-representation, undue influence or the like in cases wherein the discharge voucher in full satisfaction and discharge of the claim has been executed.  We find that in the instant case in the absence of any pleading or evidence in this regard the contention of the appellant/opposite party in this regard is to be upheld.

6. So far as clause 4.3 is concerned also it is only proper and just to apply the clause with respect to enhanced amount                                                                                                                                                                   failing which after detecting the symptoms of the illness the amount can be enhanced at the option of the assured.  The particular claim has been preferred within one year of the enhancement of the amount to Rs.2,00,000/-.  In this regard also we are unable to uphold the view of the Forum.  The decision cited by the counsel for the respondent ie New India Assurance Company Ltd. Vs. Kashinath Balmukume Marwadi (II) 2008 CPJ 146 NC we find it is not applicable to the instant case as the issue agitated therein was with respect to the existence of pre-existing illness.

In the circumstances the order of the Forum is set aside and the appeal is allowed.

JUSTICE K.R.UDAYABHANU:  PRESIDENT

M.K. ABDULLA SONA : MEMBER

VL.