COMPLAINT FILED ON: 01.03.2010

DISPOSED ON:11.07.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

11^th DAY OF JULY-2011

  PRESENT:-  SRI. B.S. REDDY                             PRESIDENT

                     SMT. M. YASHODHAMMA                   MEMBER

                     SRI. A. MUNIYAPPA                           MEMBER

COMPLAINT No.434/2010

O R D E R S

SRI. B.S. REDDY, PRESIDENT

The complainants filed this complaint U/s.12 of the Consumer Protection Act of 1986, seeking direction against the Opposite Party (herein after called as O.P.) to refund advance amount of Rs.3,80,000/- with interest at 15% p.a. and to pay compensation of Rs.50,000/- on the allegation of deficiency in service.

  2.  The case of the complainants to be stated in brief is that:

       The OP being a developer got plan sanctioned for construction of a multi-storied apartment from the Gottigere Panchayat for constructing an apartment of 10 units in Sy.No.82 and 83 site No.104. Gottigere Panchayat was brought under the jurisdiction of Bruhat Bangalore Mahanagara Palike vide Notification dt.16.01.2007. The plant sanctioned by the Gottigere Panchayat was valid for a period of 12 months as per the license to construction dt.28.12.2006. OPs started the construction of the flat in the year 2009 without a plan approved by the BBMP. The property comes under the jurisdiction of BBMP. OP introduced the complainant book a flat assuring that the documents are in order to and he got valid approval for construction. The FAR of the area at any stretch cannot extend 1.75 under the comprehensive development plant, 2015 and the actual FAR as per brochure of OP is 4.66. IN a site of 2400 maximum construction could not exceed 4200 sq.ft within FAR of 1.75 but the actual construction is 11190 sq.ft which is totally illegal. The complainant was asked to pay sum of Rs.3,80,000/- as advance before the documents of title were made available to the complainant for scrutiny. Accordingly, the complainant paid a sum of Rs.3,80,000/- through cheque dt.22.10.2009 and entered into an agreement of sale of even date. OP acknowledged the receipt of the sum of Rs.3,80,000/- in the said agreement.  It was agreed by both the parties that the registration of the sale deed shall be done as soon as the bank loan for the purchase of the flat is processed and sanctioned. As per clause-3 of the agreement dt.22.10.2009 it was also agreed that if the complainant is not able to procure the bank loan then the agreement will stand cancelled and the same is a condition precedent to the said agreement and the advance amount of Rs.3,80,000/- paid by the complainant will be returned without any deduction within 30 days. The documents, the complainant found out that there was no proper plan sanctioned by jurisdictional authority and the construction was carried out illegally with some plan sanction by the village Panchayat which is not in existence. Initially the complainant approached Deena Housing Finance Limited; they have refused to sanction the loan for want of proper sanction of plan. Then the complainant approached SBI for housing loan the SBI panel Advocate and seeing the documents has summarily rejected the same. When the Banks refused to sanction the loan, in the first December-2009, the complainant approached the OP demanding for the refund of the advance amount paid. In spite of repeated requests and demands the OP did not refund the advance amount paid. The complainant got issued legal notice, OP neither reply for the notice nor complied the demand. Hence the complaint.

3. On appearance, OP filed version contending that the allegation that the validity of the plan sanctioned does not confirm with the guidelines under the Town and Country Planning Act is false and denied. It is denied that the OP started construction in the year 2009 without plan of the BBMP. It is submitted that OP no sooner on the sanction of plan commenced construction and due to unfortunate downward trend in the real estate market had to make slow progress. However, the project was started well within the period provided in the plan. There was no any inducement; the complainant himself approached the OP. All the documents of the property were furnished to the complainant well in advance and the complainant showed it his advocate for legal scrutiny and his counsel has given his clear opinion to the complainant. The Advocate was categorical that the documents of title and requisite permissions have been obtained by the OP to put up construction of the apartment. It is denied that the floor area ration cannot extend to 1.75 under the comprehensive development plan 2015 and the actual FAR as per the brochure 4.66 and in the site of 2400 maximum construction cannot exist 4200 sq.ft within FAR of 1.75 but actual construction is 11190 is false and denied. The complainant had booked only a flat, as such he need not be concerned about the building and has to confine himself to his specific apartment. It is not the case of the complainant is that his flat has been built in violation of the CDP2015.It is admitted that the  complainant paid Rs.3,80,000/- as advance but it is denied that without scrutiny of the documents, the complainant was made to pay that amount. If the statement of the complainant is that he paid Rs.3,80,000/- for verification of documents, then he should have got the same verified and not entered into his sale agreement. It is denied that as per Clause-3 of the agreement if the complainant is not able to procure Bank loan, the agreement will be cancelled and the advance refunded within 30 days. The loan of the complainant was rejected by the said Dena Housing Finance Limited on the ground that the complainant was unable to show a steady income for 3 years. OP has availed loan from Karnataka Bank to put up the construction of the building. The said Bank in fact affected the property of the OP has a security in the loan sanctioned. The complainant approached SBI for Housing loan and the Advocate rejected the application is made for the purpose of the complaint. The complainant has not produced any documents to show that the SBI Advocate has rejected the loan application. The dispute before this Hon’ble Forum is such that the complainant intends to ask this Hon’ble Forum to declare that the title of the property belonging to OP and the permissions to put up construction are illegal the Civil Court to consider such prayer. The allegation that OP is carrying on construction without sanction plan and the construction is illegal is false. The complainant could not comply with the contractual covenants of the Agreement of the Sale Dt.22.10.2009 and having defaulted in paying further amounts, he is now trying to wriggle out of his liabilities by making false statements against the OP, since he very well know that he cannot get loan from any Bank since his financial statements are weak. OP is not liable to any return any amounts since the complainant has defaulted. Further he has blocked the sale of the said apartment and the said parties and the OP lost out on prospective customers due to the agreement of the complainant over the same. Hence, it is prayed to dismiss the complaint with exemplary costs.

3.    

4.    

5.   In order to substantiate the complaint averments the complainant filed affidavit evidence and additional affidavit evidence. The Divisional Manager of OP1 filed affidavit in support of defence version and produced documents. Written arguments filed by both the parties. Argument heard on both sides.

6. Points that arise for our consideration are:

       Point No.1:- Whether the complainant has proved           

                          the deficiency in service on the part of

                            the OPs?

Point No.2:- If so, whether the complainant is

                   entitled for the reliefs now claimed?

       Point No.3:- To what Order?

7.  We record our findings on the above points:

Point No.1:- In Negative.

Point No.2:-In Negative.

Point No.3:- As per final Order.

R E A S O N S

8.   It is not in dispute that the complainant for his parents obtained Varistha Mediclaim Policy bearing No.60440/48/07/ 8500001091 from the 1^st OP by paying initial premium amount of Rs.17,310/- on 21.11.2007. The complainant’s mother Smt.Pankajavallama was admitted to M.S.Ramaiah Narayana Hrudayalaya, on 23.03.2008 with complaint of discomfort in the chest. She was diagnosed by specialist doctors, found to be a case of blocks in her heart and suggested for angioplastic treatment on two of the blocked arteries. The preauthorization of the estimated expenses of the operations was rejected by OPs on 26.03.2008 repudiating the claim for cashless treatment on the ground that the patient is known case of hypertension and IHD since 4 years, now admitted with complications of the same, date of inception 21.11.2007, first year for the policy according to the policy terms and conditions for these ailment and its complications is not payable for the first 3 years of the policy period without break, hence case needs denial under Clause 4.1 of the policy.

9.   The case of the complainant is the repudiation of the claim for cashless treatment by the OPs 1 and 2 is erroneous and incorrect. While filing the proposal form and submitting the same to the OP for issuing of the policy, all medical records pertaining to the previous history of the patient with regard to heart problem were furnished. Only after the scrutiny and verification of the earlier medical records and the statements made in the proposal form OP has issued the policy. The patient did not suffer from any of the disease earlier. The doctor who sought preauthorization by mistake stated that the patient is suffering from hypertension and IHD since 4 years. Subsequently, the hospital authorities clarified and corrected by their subsequent letters dt.23.03.2008 and 01.04.2008 stating that the patient was diagnosed to have IHD acute coronary syndrome only a week prior to admission in September-2007. The said clarification was submitted to the OPs, in spite of that OPs repudiated the claim by issuing letter dt.24.06.2008 stating that the patient has been suffering from ailment prior to 21.11.2007 (the inception of Varistha Mediclaim cover) hence the claim falls under exclusion No.4.1 of the policy. Further, the OPs requested to send all the previous mediclaim insurance policies covering the subject claimant to enable them to reconsider the claim on the basis of previous continuous mediclaim insurance cover. It is contended that previous mediclaim insurance policy is not at all necessary. There is no suppression of pre-existing disease. Thus the claimant claims for reimbursement of medical expenses to the extent of Rs.6,00,000/-.

10.   The total sum insured is Rs.6,00,000/- the copy of the policy produced at Annexure-A by the complainant reveals that the policy period was from 21.11.2007 to 20.11.2008. The exclusion clause 4.1 reads:-

All diseases/injuries which are pre-existing when the cover incepts for the first time. However, those diseases will be covered after one claim free year under the policy. Cost of treatment towards dialysis, chemotherapy and radiotherapy for diseases existing prior to the commencement of the policy is excluded from the scope of cover of this policy even after one claim free year.

11.   As per the said clause Op shall not be liable to make any payment in respect of any expenses whatsoever incurred by any person in connection with or in respect of pre-existing disease when the cover incepts for the first time. The policy was obtained on 21.11.2007. The copy of the proposal form produced by the OP reveals that the complainant while furnishing the details of ailments of his parents, he has not disclosed the heart ailment of his mother. For the question do you suffer from any cardiac ailment; It is stated ECG report enclosed. There is no material to show that the ECG report of the mother of the complainant disclosed heart ailment. The complainant as proposer of the policy should have disclosed the previous history of his mother’s heart ailment and the medical treatment taken for the same. We are unable to accept the contention that all medical records with regard to the heart ailment of his mother were furnished along with proposal form and OP after scrutiny of those records has accepted the proposal. The additional premium was collected for the diabetes only as the same was disclosed in the proposal form with regard to the mother of the complainant. At Para-31 of the written arguments, the complainant has stated that OP-company has received an additional premium covering diabetes and IHD also while issuing the policy; in fact no additional premium has been received for IHD, the said contention taken is without any basis.

12.   Further the contention at Para-29 of the arguments that OP having issued the policy despite the disclosure of the disease estopped from contending anything to the contrary cannot be accepted as there is no material to support the contention that at the time of proposal pre-existing disease connecting to heart ailment was disclosed. Further, the complainant has gone to the extent of contending at Para-31of the arguments that the Varishta Mediclaim Policy was never furnished to him nor the contents of the clause of the same was disclosed to him. The complainant himself has produced the copy of the policy containing the terms and conditions, in view of the same it cannot be said that the complainant was not aware of the terms and conditions of the policy and exclusion clause with regard to pre-existing decease.

13.   The copy of the letter marked as Annexure-E Dt.27.03.2008 addressed to OP2 by M.S.Ramaiah Memorial Hospital with regard to Mrs.Pankajavallamma (mother of the complainant) reveals that in the pre-authorization form by mistake it has been stated that she is a known case of hypertension and IHD since 4 years whereas when compared with her previous records it was found that she had hypertention and IHD 4 months prior to her previous admission in September-2007, in another letter dt.01.04.2008 copy of which has been marked as Annexure-F it is stated that on reverifying earlier OP/IP records of Mrs.Pankajavallama it is quite evident that she was diagnosed to have IHD-acute coronary syndrome only a week prior to admission in September-2007. It may be noted that even as per the letter dt.01.04.2008 addressed by M.S.Ramaiaha Memorial Hospital by way of clarification it becomes clear that Mrs.Pankajavallama was diagnosed to have IHD-acute coronary syndrome only a week prior to admission in September-2007. The policy was obtained on 21.11.2007 by that time, the complainant was well aware of his mother Pankajavallama being diagnosed to have IHD-acute coronary syndrome as she was admitted in the Hospital in September-2007; the complainant has not disclosed the said material fact in the proposal form. Thus it becomes clear that the complainant did not disclose the pre-existing heart ailment of his mother while obtaining the policy.

14. We have gone through the citations relied upon the learned counsel for the complainant; the principles laid down in those citations cannot be made applicable to the facts of the case. In case if the OP failed to prove suppression of pre-existing decease and not furnished the terms and conditions of the policy making known the exclusion clause to the insured, the principles of those cases can be applied. Under these circumstances, we are of the opinion that the OPs were justified in repudiating the claim on the ground of suppression of pre-existing disease while obtaining the policy. The complainant failed to prove deficiency of service on the part of the OPs, as such he is not entitled for any of the relief’s claimed. Accordingly we proceed to pass the following:

O R D E R

The complaint filed by the complainant is dismissed.  Considering the nature of dispute no order as to costs.

(Dictated to the Stenographer and typed in the computer and transcribed by him verified and corrected, and then pronounced in the Open Court by us on this the 17^th day of June 2011.)

 MEMBER                      MEMBER                       PRESIDENT

Cs: