Date of Filing:26/03/2014

     Date of Order:07/11/2016

ORDER

BY SRI.SYED ANSER KHALEEM, PRESIDENT

1.     This is the complaint filed U/S 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter referred in short as O.Ps) alleging deficiency in service on their part and prays for direction to the O.Ps to pay a sum of Rs.52,571/- and Rs.38,044/- towards the medical expenditure incurred by the complainant with interest. Also claiming Rs.2,00,000/- towards mental agony loss caused to the complainant and to pay Rs.5,000/- towards litigation charges.

2.   The brief facts of the complaint is that, the complainant while going in his motor cycle on 7.11.2013 at 5.30 p.m met with an accident caused by the other motor bikes. Hence the complainant states that on account of accident he suffered pain in the left foot and  it was swollen and took treatment with the doctor. Ultimately when the swelling and pain was acute  he went to koshys hospital on 9.11.2013 finally he was operated for the dislocation. After the discharge from the hospital complainant submitted the medical bills to the O.Ps but the O.Ps repudiated the claim on the ground that he was suffering from the diabetic prior to taking the policy and the disease is preexisting one and it was not disclosed in the proposal form and on this ground the claim of the complainant was repudiated. Hence this complaint.

3.     Upon issuance of notice Ops appeared through their counsel and filed their version. In the version it is contended that the complaint is not maintainable either in the eye of law or on facts.  The complaint is filed take advantage and for wrongful gain.  It is the contention of the O.P the policy of life insurance is a policy of utmost good faith. Upon receiving the policy from the complainant the medi-claim policy was issued bearing policy No.30155244201200 on 17.12.2012. The policy issued based on the declarations provided by the complainant in his proposal form subject to certain terms and conditions. O.Ps contended that on perusal of medial documents, it  reveals that the complainant was taking medicines for diabetes mellitus from last four years which is much prior to the policy issuance and the said fact is revealed to the OP on investigation.   On this ground O.Ps contended that the complainant did not disclose the pre-existing diabetes and hence they repudiated the claim. Therefore the Ops contended that there is no deficiency or negligence on their part.  Further O.Ps denies all the allegations made in the complaint and prays for dismissal of the complaint with cost.

4.     To substantiate the case, both the parties have filed their respective affidavit evidence along with documents. We have heard the arguments.

5.     On the basis of pleadings of the parties, the following points will arise for our considerations are:-

                                (A)    Whether the complainant has proves

                     deficiency in service on the part of the O.Ps?

(B)    Whether the complainant is entitled to the

         relief prayed for in the complaint?

(C)    What order?

6.     Our answers to the above points are:-

POINT (A) & (B) :     In the Affirmative.

POINT (C):       As per the final order

for the following:

REASONS

POINT (A) & (B):-

7.     On perusing the pleadings of both the parties, it is an undisputed fact that, the complainant has availed services of OPs and the O.Ps issued insurance policy bearing No.30155244201200 and the said policy is in force for the period from 17/12/2012 to 16/12/2013.  It is also not in dispute that the complainant met with an accident and underwent surgery in the Chinmaya Mission Hospital. The crux of the matter is to consider is there is any nexus of diabetes and undergoing surgery for his dislocation of disc.

8.     In order to prove the case of the complainant the complainant filed his affidavit evidence. On perusal of the affidavit evidence the complainant reiterated all the averments made in the complaint.  In order to substantiate the case of the complainant, the complainant produced certain documents such as a letter issued by the Chinmaya Mission Hospital dated 22.1.2014 and copy of the discharge summary issued by the Chinmaya Mission Hospital.  On perusal of the discharge summary it clearly discloses that the complainant admitted on 28.11.2013 and discharged on 12.12.2013. It also discloses that the complainant took treatment of displaced fractures 5^th METATARSAL LEFT + UNDISPLACED FRACTURE 4^TH METATARSAL LEFT, EXTERNAL FIXATOR APPLICATION ORIF WITH SCREW 5^TH METATARSAL & BELOW KNEE POP SLAB ON 29.11.2013. Hence on perusal of the discharge summary there is no dispute regarding the treatment and medical expenditure incurred by the complainant.  On perusing the bills of Chinmaya Hospital where surgery was conducted, it discloses that the medical bills of the Rs. 52,571/- and Rs.38,044/- was paid by the complainant. Further more on perusing the letter issued by the Chinmaya Hospital discloses that the hospital authority confirm that the complainant is not admitted to their hospital for the diabetes problem and further confirms that the complainant underwent surgery for his accident.  However, the O.P did not place any rebuttable evidence in respect of the letter issued i.e. TO WHOM SOEVER IT CONCERN. Further the O.Ps did not place any cogent evidence in order to show the surgery conducted is any nexus with the diabetes.  The object of insurance is come for the aid of the person when the insured suffering from diseases and other perils and for any impact of such diseases and perils the family of the insurer should not be in destitute. Therefore, mere technical contention of O.Ps without any substantial proof it is nothing but attempting to exonerate the liability of the insurance company and hence O.Ps made the complainant to wonder from pillar to post.  The repudiation without any strong reasons is nothing but deficiency in service on the part of the O.Ps.  Therefore, the complainant obviously entitle for the medical expenditures incurred by him and hence we hereby deem it just and proper to direct the O.Ps to pay the claim amount as per the bills produced by the complainant along with the cost of Rs.2,000/- it will meets the ends of justice. Accordingly, we answered  these points in the affirmative.

POINT (C):

9.     On the basis of findings given on Point (A) and (B) and in the result, we proceed to pass the following:-

ORDER

1. 01. The complaint is allowed in part with cost.

1. The O.Ps No.1 and 2 jointly and severally liable to pay Rs. 52,571/- and Rs.38,044/- to the complainant

2. The O.Ps are directed to pay Rs.2,000/- to the cost of the proceedings.
3. The O.Ps are hereby directed to comply the order of this Forum within 30 days from the date of receipt of this order, failing which O.Ps are directed to pay interest at the rate of 9% per annum after the expiry of 30 days till realization and submit the compliance report to this Forum within 45 days from the date of receipt of this order.

4. Send a copy of this order to both parties free of cost.

 (Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 7^th Day of November 2016)

        MEMBER                PRESIDENT

*Rak