THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NO.160 /2012.
JUDGMENT DTD: 15-02-2013.
PRESENT
SMT. A. RADHA: MEMBER
SHRI.K.CHANDRADAS NADAR: JUDICIAL MEMBER
M/s. Oriental Insurance Company Ltd.,
Divisional Office – II,
St. Mary Villa, Ulloor,
Thiruvananthapuram – 11,
R/by its Divisional Manager. -- APPELLANT
(By Adv. Sri. M.Nizamudeen)
Vs.
1. Mini Krishnakumar,
W/o, P.S. Krishnakumar, Dhanya,
T.C.30/1171, Railway Station Road,
Pettah, Thiruvananthapuram.
2. M/s. TTK Health Care Services
Pvt. Ltd., 39-4130, 1st Floor,
Marina Building, M.G. Road,
Ernakulam, Cochin-682 016. -- RESPONDENTS
(Authorised Agent – Sri.M.A. Vahab for R1)
JUDGMENT
SMT. A. RADHA : MEMBER
The 1st opposite party is the appellant who preferred this appeal against the order dated 15/10/2011 in CC No. 33/2008 on the file of CDRF, Thiruvananthapuram.
2. The complaint is filed on repudiation of the medi-claim policy taken by the complainant and her husband. The policy covered the period from 06/11/06 till 05/11/07 and a premium of Rs.1,501/- was paid towards the medical claim insurance policy of the opposite parties. The policy certificate bearing no.3692920 dated 01/11/06 was issued to the complainant. The complainant was served with a copy of the prospectus explaining the salient features of the policy. It is also stated in the complaint that clause 4 of the prospectus is the exclusion clause whereby the company was excluded from the obligation if the insured was suffering from certain complaints specified therein within certain specified period. During the period of policy the complainant’s husband developed some ear disorders in his left ear and he had undergone Tympanoplasty operation. He was admitted in the hospital and discharged on 03/07/2007 and an amount of Rs.29,972/- had incurred by the complainant. Thereafter the complainant sent the original medical bills for medi-claim to the second opposite party which was not responded. On issuance of Advocate’s notice a reply was sent stating that the medi-claim was repudiated as the surgery underwent falls within the category specified in exclusion clause 4.3 of the policy condition. It is the definite case of the complainant that in clause 4.3 (1) the treatment undergone by the husband of the complainant does not come within that clause. The decision of repudiation on the said reason was intimated by the opposite party by letter dated 10/12/2007. There is no justification in repudiating the claim under clause 4.3 (1). Hence filed this complaint for an amount of Rs.29,972/- and also for compensation and cost.
3. The version filed by the opposite party stated that the claim is not payable for the reason that under clause 4.3 (1) of the policy condition relates to the expenses for the ENT disorders which is not payable during the first year of the inception of the policy. The policy was taken for the period from 06/11/06 to 05/11/07 and as per the treatment certificate the medical certificate issued by the treating doctor reveals that the complainant had discharge in the left ear since 3 months, decreased hearing and cortical Mastodectemy with Myringoplasty on 27/07/07 Typanoplasty is the operative correction of a damage middle ear and Myringoplasty is the operative repair of damaged tympani membrane. As per the first year exclusion, the claim submitted by the complainant was repudiated under the conditions of the policy. The claim was not payable for valid and legal grounds. The expenses relating to ENT disorders are not payable during the first year of the policy as per policy conditions. The treatment under- went by the complainant comes under squarely within the exclusion clause 4.3 (1) of the policy condition. The claim against the opposite party is frivolous and complaint is liable to be dismissed.
4. The complainant’s evidence consisted of the oral testimony of PW1 & PW2 and documents were marked as P1 to P11. The opposite parties were examined as DW1 & DW2 and the documents D1 & D2 were marked in evidence. The Forum below on considering the evidence and documents came to the conclusion that Exbt.D1 policy condition was a later edition printed in the year 2008 and allowed the complaint in favour of the complainant.
5. The counsel for the appellant/opposite party submitted that the Forum below erred in its conclusion based on the P1 policy. DW1 is the Divisional Manager who has specifically stated in his deposition that D1 conditions are the same conditions which were in force from 2006 onwards. DW2 is the then Manager, who issued policy to the insured with policy details. Exbt.P3 policy conditions are the same conditions which were handed over to the insured in 2006. The Forum below totally ignored the evidence of DW2 and relied on Exbt.P3 prospectus produced by the respondent. As per D1 clause 4.3 (1) does not cover the expenses on treatment for the diseases for specified periods during the currency of the policy and against 4.3 (1) includes Benign ENT disorders and surgeries i.e. Tonsillectomy, Adenoidectomy, Mastodectomy, Tympanoplasty etc. – 1 year. As per the said policy conditions during the first year of the policy the opposite parties are not liable to honour the claim by the insured. The same condition was prevalent and was in force from 2006 onwards. Hence the exclusion clause shreds away the liability to entertain the medi-claim of the insured and justified the repudiation.
6. Resisting the argument the agent for the respondent/ complainant submitted that the policy was issued for period from 06/11/06 to 05/11/07 on payment of Rs.1,501/-. During the relevancy of the policy period the husband of the respondent underwent an operation and the medical bills were submitted for reimbursement before the appellant which was repudiated stating the exclusion clause 4.3 (1). As per the policy and the prospectus issued to the complainant while taking the policy the exclusion clause in 4.3 does not include ENT disease under exclusion clause. It is also submitted that the claim is to be responded as the ENT disorder will not come under this clause. The appellant had not justified in repudiating the claim as the treatment does not fall under 4.3 (1) of the condition. It is to be pointed out that the policy is not disputed nor the treatment challenged by the appellants. The only question that is to be considered is whether the repudiation is justified. As per the exclusion clause described in the document issued to the respondent, Exbt.P1, is the policy certificate and Exbt.P3 is the prospectus issued along with the policy describing the salient features of the policy. There is no case for the appellant that they have issued the copy of Exbt.D1 to the complainant. Further he has no case that Exbt.P3 is a forged document. It is also admitted by DW1 the Exbt.D1 printed in the year 2008. It has come out in evidence that the Exbt.P3 prospectus was issued along with the P1 policy and in the exclusion clause 4.3 in Exbt.P3 does not exclude ENT disorders coming under exclusion clause during the first year exclusion of the said policy. He argued that the respondent is entitled for the claimed amount and compensation for protracting the matter so much. The respondent is entitled for compensation and cost of the proceedings.
7. Heard both parties in detail. We have gone through the documents on record and on perusal it is seen that Exbt.P1 policy certificate was accompanied by Exbt.P3 prospectus. No case is pleaded or proved that the policy or the P3 prospectus is forged one. The appellant had no case that a copy of D1 was issued to the respondent. The only contention raised is with regard to the conditions in the Exbt.P3 and Exbt.D1 under clause 4.3 are one at the same. On perusal of Exbt.P3 and D1 it is clear that P3, Sl.No.46629, in the 8th page bottom it is written ‘Smiths/50,000/05/2003’ whereas Exbt.D1 Sl. No. 63653 page no.12 it is printed ‘CNRO/09/2008/30,000/Viva”--It is very clear from the printing both these prospectus were printed in different years and condition in the exclusion clause also. We can safely come to the conclusion that Exbt.D1 is a later printing version of the prospectus. The respondent was issued with the prospectus Exbt.P3 in the year 2006 which does not contain the exclusion clause for the ENT treatment during the first year of the policy. As per the policy conditions the respondent is entitled to get the claim amount. Appellants are liable to pay compensation also to the complainant for trying to mislead the Forum by filing the prospectus issued subsequently which is not expected from an insurance company, which stands for the welfare of the general public.
In the result, appeal is dismissed and we uphold the order passed by the Forum below. We modify the order by awarding Rs.10,000/- as compensation in addition to the award passed by the Forum below. The order is to comply within one month on receipt of the copy of the order.
The office is directed to send a copy of the order to the Forum below with LCR.
A.RADHA: MEMBER
K.CHANDRADAS NADAR: JUDICIAL MEMBER
NB
