KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL No. 21/2010
JUDGMENT DATED: 23-11-2010
PRESENT:
SMT. VALSALA SARANGADHARAN : MEMBER
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SHRI. M.K. ABDULLA SONA : MEMBER
APPELLANT
Oriental Insurance Co. Ltd.,
Divisional Office, Palakkad.
(Rep. by Adv. Sri. G.S. Kalkura & others)
Vs
RESPONDENTS
1. Mrs. Lakshmi Sreenivasan, W/o T.S. Sreenivasan,
“Seenus” S.K. Puram Road, Ganesh Nagar, Palakkad – 678 010.
2. Yagnapriya Bharath,
Officer on Special Duty,
Insurance Regulatory and Development Authority IRDA,
Parishrama Bhavanam, 5-9-58 B,
Basheerbagh, Hyderabad – 500 004.
3. M/s Family Health Plan Ltd. No. 39/496,
G. UZNAZ TOWER, 5th Floor,
Medical Trust Junction, Pallimukku,
M.G. Road, Ernakulam, Kochi.
(R1 rep. by Adv. Sri.S. Easwaran)
JUDGMENT
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
Appellant herein was the first opposite party and respondents 1 to 3 were the complainant and opposite parties 2 and 3 respectively in CC No. 129/2007 on the file of CDRF, Palakkad. The complaint was filed alleging deficiency of service on the part of the opposite parties in repudiating the insurance claim (medi-claim) for Rs. 36,029/-. The first opposite party entered appearance and filed written version denying the alleged deficiency of service. They contended that the complainant enhanced the medi-claim insurance from Rs.15,000/- to Rs. 50,000/- and that the ailment of fibroid uterus was a preexisting disease and only because of the existing disease the insurance amount was enhanced from Rs. 15,000/- to Rs. 50,000/-. Thus, the first opposite party justified the repudiation of the insurance claim for Rs. 36,029/-. It was also contended that the sustainable claim was allowed to the tune of Rs. 15,750/- and a cheque with covering letter dated 30-08-2006 was forwarded to the complainant. Thus, the first opposite party prayed for dismissal of the complaint in CC No.129/2007.
2. The opposite parties 2 and 3 before the Forum below remained absent and set exparte.
3. Before the Forum below, the doctor who treated the complainant at Lakshmi Hospital, Palakkad was examined as PW1. Exts. A1 to A11 documents were also marked on the side of the complainant. On the side of the first opposite party, the Ultra Sonogram report dated 11-05-2006 was marked as Ext.B1. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 30th September 2009 allowing the complaint in part and thereby directed the opposite parties 1 and 3 to pay the balance insurance claim of Rs. 21,000/- with Rs. 15,000/- as compensation and Rs. 2,000/- by way of cost. The aforesaid order was passed with a default clause to pay interest at the rate of 9% from the date of the order till realization in the event of failure to discharge the decree debt within one month from the date of receipt of copy of the order. It is against the said order, the present appeal is filed by the first opposite party.
4. The complainant in CC No. 129/2007 had also filed another appeal as Appeal No. 672/2009 for getting the compensation of Rs. 15,000/- enhanced. This State Commission by the judgment dated 28-12-2009 dismissed the aforesaid appeal No. 672/2009 by upholding the impugned order dated 30-09-2009 passed by CDRF, Palakkad in CC No. 129/2007.
5. There is no dispute that the complainant Mrs. Lakshmi Sreenivasan was having a medi-claim policy for an amount of Rs. 50,000/- during the relevant period. Admittedly, the previous medi-claim policy for Rs. 15,000/- was enhanced to Rs. 50,000/- with effect from 19-04-2006. The said policy was in existence when the complainant undergone treatment at Lakshmi Hospital, Palakkad on 25-05-2006. The complainant preferred the claim for Rs. 36,029.48 with respect to her treatment at Lakhsmi Hospital, Palakkad in connection with her abdominal pain.
6. The aforesaid claim was repudiated by the first opposite party Oriental Insurance Company Ltd. on the ground that the claim is related to a preexisting disease. But, the first opposite party/Insurance Company miserably failed in establishing the alleged preexisting disease. The evidence of PW1, the doctor who treated the complainant at Lakshmi Hospital, Palakkad has deposed that the Ultra Sound Sonogram was taken on 11-05-2006 and thereafter PW1 conducted the hysterectomy on the complainant on 29-05-2006. There is nothing in the testimony of PW1 to come to a definite conclusion that the said ailment of fibroid uterus was a preexisting disease. At any rate, there is nothing on record to show that the complainant/insured was aware of the illness of fibroid uterus. It is to be noted that the policy was renewed on 19-04-2006. But, the Ultra Sonogram was taken only on 11-05-2006. It can be seen that after the lapse of 22 days of the renewal of the policy, the sonogram was taken. It is only on getting USG report the complainant and the doctor came to know about the fibroid uterus. It is only thereafter PW1 decided to conduct the hysterectomy on the complainant/insured. Thus, the case of the first opposite party/Oriental Insurance Company Ltd. that the claim is based on preexisting disease cannot be believed or accepted. The Forum below is perfectly justified in discarding the aforesaid contention adopted by the first opposite party.
7. Admittedly, the complainant preferred a medi-claim for Rs. 36,029.48 on 15-06-2006. It is the definite case of the complainant that she got the cheque for Rs. 15,750/- with A7 covering letter dated 30-08-2006 on 24-11-2006. It is also to be noted that the complainant issued the protest letter, which is marked as Ext.A8. The available circumstance would show that the medi-claim was partly repudiated by the first opposite party after a lapse of about 5 months. The case of the first opposite party that the cheque was given to the complainant on 30-08-2006 cannot be believed or accepted without any supporting material. It is pertinent to note that the first opposite party/Insurance Company is having dispatch register and other documents to substantiate their case that the cheque was issued on 30-08-2006. There is no case for the first opposite party that the complainant encashed the said cheque prior to 24-11-2006. In the ordinary course nobody will keep a cheque for Rs. 15,750/- for a period of more than 3 moths. So, it can be concluded that the first opposite party/Insurance Company delayed settlement of the insurance claim preferred by the complainant. The aforesaid delay can be treated as inordinate delay of 5 months. The Forum below has rightly held deficiency of service on the part of the first opposite party and thereby awarded a compensation of Rs. 15,000/- for the said deficiency of service on the part of the first opposite party in settling the insurance claim.
8. It is also to be noted that there was deficiency of service on the part of the first opposite party in repudiating part of the medi-claim preferred by the complainant. The total claim was for Rs. 36,029.48. But, the first opposite party allowed only Rs. 15,750/- The materials on record would show that the repudiation of part of the claim would also amount to deficiency of service. No valid and acceptable reason is given by the first opposite party/Insurance Company for repudiating the claim for Rs. 21,000/-. Thus, in all respects, the Forum below can be justified in awarding compensation of Rs. 15,000/- with costs of Rs. 2,000/-. The impugned order passed by the Forum below is to be confirmed. Hence we do so.
9. The complainant had preferred another appeal for enhancement of the compensation and this State Commission dismissed the aforesaid Appeal No. 672/2009 at the admission stage itself. It is also to be noted that no notice was issued or served on the first opposite party, the appellant herein. It is true that the judgment in the aforesaid Appeal No. 672/2009 will not bind the first opposite party, the appellant herein because of the fact that the first opposite party/Insurance Company was not given an opportunity to submit its case. Anyhow, while considering the entire aspects of this case, the aforesaid judgment dated 28/12/2009 in appeal No. 672/2009 would loom large. Thus, in all respects, the impugned order passed by the Forum below is confirmed. The present appeal deserves dismissal.
In the result, the appeal is dismissed. The impugned order dated 30-09-2009 passed by CDRF, Palakkad in CC No. 129/207 is confirmed. As far as the present appeal is concerned, the parties are directed to suffer their respective costs.
M.V. VISWANATHAN : JUDICIAL MEMBER
VALSALA SARANGADHARAN: MEMBER
M.K. ABDULLA SONA: MEMBER
Sr.
