Complaint filed on: 27-12-2010

Remanded on: 05-03-2016

                                                      Disposed on: 26-07-2017

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM

OLD DC OFFICE COMPOUND, TUMAKURU-572 101

CC.No.192/2010

DATED THIS THE 26^th DAY OF JULY 2017

PRESENT

SMT.PRATHIBHA. R.K. BAL, LLM, PRESIDENT

SMT.GIRIJA, B.A., LADY MEMBER

Complainant: -         

                                        Sri.Gangadharaiah.G.H,

                                                S/o. Mayanna,

                                                Aged about 48 years,

                                                R/at C/o. B.G.Ganganna,

                                                Swarnamba Nilaya,

                                                3^rd Cross, Jayanagara East,

                                                Shettihalli Main Road,

                                                Tumakuru

(By Advocate Sri.V.R.Venkateshappa)

                                            V/s

Opposite parties:-    

1.VIDAL HEALTH TPA PRIVATE

LIMITED, 1^st floor, 135, Brigade

Towers, Bengaluru-25

2.The Manager, Indian Overseas

Bank, 13, Ganga Sapthagiri

Extension, Tumakuru, Karnataka State, India

3.Universal Sompo General

Insurance Co. Ltd. 4^th Floor, KVV Samrat, 217/A, 3^rd Main, Outer             ring Road, Kasturi Nagara,

Bengaluru

                                                (OP No.1 & 2-By Advocate Sri.M.S.Harish Babu)

(OP No.3-By Advocate Sri.H.K.Ramamurthy)

REMANDED ORDER

SMT.PRATHIBHA. R.K. PRESIDENT

This complaint is filed by the complainant against the OP Nos.1 to 3, under Section 12 of the Consumer Protection Act. The complainant prays to direct the 1^st OP to pay a sum of Rs.44,353=00 with interest @ 18% p.a. from 3-8-2009 till its realization and to pay a sum of Rs.50,000=00 towards deficiency in service for causing mental agony and harassment along with interest 12% p.a., in the interest of justice and equity.

2. The brief facts of the complaint is as under:- 

        The 1^st OP has issued insurance to the public at large by collecting certain premium. The complainant had paid premium to the 1^st OP through 2^nd OP bank and obtained a family policy for himself and to his family members. The 1^st OP has issued a health care plus policy bearing No.2008/484100233/39, certificate no.724/57743 plan opted “A” and the said policy was covered from 18-4-2008 to 17-4-2009.

          The complainant further submitted that, after lapse of the stipulated period of the said policy, the complainant renewed the same by paying necessary charges from 17-4-2009 to 16-4-2010 for which the 1^st OP had issued a policy No.2817/50096934/00/ 000 and the said policy also ended on 16-4-2010. After lapse of the said policy, again the complainant has renewed the same on 21-4-2010 by paying necessary charges for which the 1^st OP has issued another policy bearing No.2817/560602240/00/000 and the said policy was valid from 16-4-2010 to 15-4-2011 and the said policy covered with all medical treatment reimbursement.

          The complainant further submitted that, in the month of July 2009, the complainant became ill and got admitted at Vinayaka Hospital, Tumakuru for benign prostate hypertrophy. After diagnosis the doctors have sent pre-authorization letter to the 1^st OP on 27-7-2009 for a sum of Rs.35,100=00 and the said requisition has been approved by the 1^st OP for a sum of Rs.20,000=00 on 29-7-2009. After issuance of the said approval letter, the hospital authority had again sent another letter dated 31-7-2009 seeking to enhance the said approval amount from Rs.20,000=00 to Rs.35,100=00. As per the request of the hospital, the same has been enhanced to Rs.35,100=00 as per the letter of the OP dated 3-8-2009. Thereafter, the complainant underwent operation. The complainant further submitted that, the hospital authority had sent a bill bearing no.15917 on 3-8-2009 for a sum of Rs.44,353=00 and requested to release the said amount before discharge of the complainant from the said hospital. Instead of releasing the amount, the OP had sent a letter dated 4-8-2009 by rejecting the claim amount stating that the complainant was suffering from the disease prior to obtain the policy.

          The complainant further submitted that, as per the terms and conditions of the policy, the complainant is eligible to get the medical benefits from the 1^st OP immediately after 30 days of issuance of the policy. However the complainant was having policy since 18-4-2008 with the OP and he has been paying the necessary premium since that date. Hence, the complainant is eligible to get the benefit under the policy. The complainant himself paid the hospital bill and was discharged from the hospital. As per the terms and conditions of the policy, the 1^st OP has no right to reject the said expenses of the hospital for the treatment of the complainant. Instead of that, the 1^st OP showed his negligence and also deficiency in service. Hence, the present complaint is filed.

          3. After service of the notice, the 2^nd OP had appeared through his counsel and filed version. The 1^st OP has not appeared before the forum and he was called out absent and he has been placed exparte. 

          4. In the objection, the 2^nd OP submitted that, the address of the complainant is not within the knowledge of this
OP. The 1^st OP established medical care and this OP has nothing to with the business of the 1^st OP.

          The 2^nd OP further submitted that, the 2^nd OP is not aware of the fact that, the complainant has obtained the policy from the 1^st OP. The complainant has not approached the 2^nd OP after obtaining the policy. The 2^nd OP is only canvassing agent and the 2^nd OP is collecting the premium from the parties and then the collected amount will be sent to the 1^st OP. There is no responsibility with the 2^nd OP. The 2^nd OP further submitted that, the complainant never approached the 2^nd OP for any purpose after obtaining policy. There is no burden to the 2^nd OP regarding claims made by the complainant against the 1^st OP.  

          The 2^nd OP further submitted that, the complainant has not sought any remedy against 2^nd OP. The 2^nd OP has not made any mistakes regarding collecting policy amount. After collection of the policy amount, the 2^nd OP sent to the 1^st OP. Hence, there is no deficiency in service on the part of the 2^nd OP. The 2^nd OP is not a necessary party to this proceeding. The conditions of the policy is very clear that, any condition, ailment or injury or related to the conditions for which the party signs or symptoms within 48 months prior to first policy with the 1^st OP, then the complainant is not eligible to claim and other conditions also is clearly mentioned in the policy.    All benefits under this policy shall be forfeited and the policy shall be treated as void in case of any fraudulent claims or if any fraudulent means are used by the parties or any one acting on their behalf to obtain any benefits under the policy. Hence, the complainant is not liable to claim any amount from the 1^st OP.

The 2^nd OP further submitted that, the complaint is not maintainable and there is no deficiency in service on the part of the OP No.1 and 2. If any dispute or differences shall arise, the matter shall be resolved by referring to sole arbitrator to be appointed as per Arbitration and Reconciliation Act of 1996. Other allegations made in the complaint are all false and incorrect. Hence, it is prayed to dismiss the complaint with cost, in the interest of justice and equity.  

5. The Forum had passed the order on 28-9-2011 on hearing the arguments of both the sides. The Forum allow the complaint partly directing to the 1^st OP to pay a sum of Rs.44,353=00 together with compensation of Rs.15,000=00 and litigation cost of Rs.2,000=00.

          6. Being aggrieved by the said order, the 1^st OP had preferred an appeal bearing No.82/2012 before the Hon’ble State Commission. The Hon’ble State Commission has heard the argument and passed the order on 19-01-2016 allowing the appeal, impugned order dated 28-9-2011 passed in Consumer Complaint No.192/2010 on the file of District Consumer Complaint No.192/2010 on the file of District Consumer Redressal forum, Tumakuru is hereby set aside and matter was remanded to the said District Forum with a direction to consider the case afresh by giving an opportunity to the Appellant herein who was arrayed as OP No.1 before the district forum to put forth its case. Both the appellant as well as respondent are hereby directed to appear before the District forum on 5-2-2016 and no fresh notice of posting need be given to them. On such appearance, the district forum was directed to dispose of the case afresh within three months from the date of receipt of this order. Further if the complainant chooses to implead any other insurance company to the proceedings of the complaint, the district forum shall consider such application on merits independent of the observation made herein and dispose of the case accordingly. The amount in deposit is ordered to be refunded to the appellant.

7. The OP No.1 and 3 have appeared through their counsel and filed separate version.

          8. The 1^st OP submitted in his version by way of affidavit that, the 1^st OP is the third party administrator and he is engaged for a fee or remuneration by an insurance company and that insurance contract is entered between the insured/complainant and Universal Sompo General Insurance Co. Ltd and that any liability arising out the said contract, the insurance company alone is liable and not the 1^st OP. The role of the third party administrator is only to process the claims as per the terms and conditions of the policy and instructions received by the insurance company from time to time and final authority of settlement lies with the insurance company only. The 1^st OP is not a proper necessary party to the above case.

          The 1^st OP further submitted that, Universal Sompo General Insurance Co. Ltd had issued policy no.2817/50096934/00/000 for the period from 17-4-2009 to 16-4-2010 by accepting premium of Rs.1602=00 towards health insurance and Rs.42=00 towards personal accident cover, covering the risk of the complainant, spouse and two children. The said policy was renewed for the period from 16-4-2010 to 15-04-2011 vide policy bearing no.2817/50602240/00/000 and thus the insurance company is responsible to make any payment under the policy and not the 1^st OP. Further the ailment of the complainant is pre-existing disease as per the discharge summary and it is not payable by the insurance.

          The 1^st OP further submitted that, on 28-8-2009 the complainant had submitted the claim form along with necessary documents to the 1^st OP. The 1^st OP processed the claim and same was intimated to the Universal Sompo General Insurance Co. Ltd. vide letter dated 16-9-2009 with remarks as “Claim is inadmissible as ailment three years and policy is since 2007 only. Further the insurer/Universal Sompo General Insurance Co. Ltd forwarded a repudiation letter dated 15-12-2009 to the complainant rejecting the claim of the complainant as per Exclusion clause no.1 of the policy of insurance. It reads as under: “Any condition ailment or injury or related condition(s) for which you and signs or symptoms, and /or were diagnosed and/or received medical advice/treatment with 36 months prior to your first policy with us”. The 1^st OP is only processing agent that it is proper and necessary to implead the insurance company Universal Sompo General Insurance Co. Ltd. in the said case and exempt the 1^st OP from the liability. Hence, it is prayed to dismiss the complaint with cost.

9. In the version, the 3^rd OP admitted that, the policy was issued in favour of the complainant in respect of medi-claim policy and the complainant was covered under the said policy vide policy no.2817/50096934/00/000 which is valid from 17-04-2009 to 16-4-2010. The liability of the 3^rd OP, if any is in accordance with the terms and conditions of the policy. The complainant seeking compensation of Rs.44,353=00 and other relief which is not maintainable either in law or on facts.

The 3^rd OP further submitted that, the complainant had taken inpatient treatment for chest pain and surgery was done by the doctors for coronary angiogram and the claim was reported to TPA. The complainant submitted the claim form to the TPA, where the doctors who treated to the complainant clearly mentioned that, the complainant has suffered Hypertension and asthma since10 years and doctor who treated him has been issued a certificate and opined that, the complainant suffered from bleeding per rectal since 2 years and was on Ayurvedic treatment for the same, which is pre-existing disease also and that hypertension and asthma is not covered and the claim made in the case does indicates that, the complainant has undergone surgery for the heart disease and all pre-existing are excluded under the policy of the insurance.

The 3^rd OP further submitted that, as per the medical records filled by the complainant, it is very clearly establishes that, the complainant was suffering from hypertension and asthma since 10 years and for that he had already taken treatment for heart ailments and at the time of the inception of the policy. The expense for the heart disease was excluded under the policy and hence the claim of the complainant is not payable. Accordingly the TPA has sent a letter on 1-2-2010 to the complainant to provide additional documents, but the complainant has failed to do so. Hence, the TPA has rightly repudiated the claim of the complainant. As per the policy and conditions “All pre-existing diseases are not covered under the policy of insurance” accordingly the claim of the complainant is repudiated. Hence the present complaint is not maintainable. The 3^rd OP denies the averments made in the complaint and there is no deficiency of service on the part of the 3^rd OP, since the 3^rd OP has acted as per the terms and conditions of the policy and the repudiation of the claim will not amount to deficiency of service on the part of the 3^rd OP. Hence, the 3^rd OP prays to dismiss the complaint with cost.

          10. In the course of enquiry into the complaint, the complainant and the OPs have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant has produced documents which were marked as Ex-C1 to C38. The 3^rd OP has produced documents which were marked as Ex-OP3-1 and OP3-2.  We have heard the arguments of both the parties and pursued the documents scrupulously and then posted the case for order.

11. Based on the above materials, the following points will arise for our consideration.

1.Whether there is deficiency in service on the part of the OPs?

2.What Order?

12. Our answers to the above points are as under:-

Point No.1:           In the affirmative  

Point No.2:           As per final order below

REASONS

          13. The material placed by both the parties, it is an admitted fact that, the complainant had obtained a Family Health Care Plus Policy from the 1^st OP vide the policy bearing No.2008/484100233/39, certificate No.724/57643 plan opted-“A” and the said policy was covered from 18-4-2008 to 17-04-2009. The above said policy was renewed by making necessary charges from 17-4-2009 to 16-4-2010. It is also an admitted fact that, the complainant was hospitalized at Vinayaka Hospital, Tumakuru and diagnosed that, the complainant was suffering from Prostate Hypertrophy. The concerned doctor had sent a preauthorization letter to the 1^st OP on 27-7-2009 for a sum of Rs.35,100=00 towards medical treatment expenses and the 1^st OP had approved for a sum of Rs.20,000=00 on 29-7-2009. The said hospital authority had sent one more letter to the 1^st OP dated 31-7-2009 to enhance the medical treatment expenses and the 1^st OP enhanced the medical expenses of Rs.35,100=00. Thereafter the complainant had underwent an operation. The hospital authority had sent final bill to the 1^st OP for releasing the amount. The 1^st OP had repudiated the said claim on the ground that, the complainant had preexisting disease prior to obtaining the said policy.

14. The learned counsel appearing for the 3^rd OP submitted that, the complainant was suffering from Asthma and Hypertension since 10 years. Doctor who treated him has issued certificate and opinion given that, the complainant was suffering from bleeding per rectal since two years and he was on Ayurvedic Treatment. The 3^rd OP further submitted that, the complainant was suffering from the above said disease from long time prior to inception of this policy and he was treatment for the same. Hence, as per the policy terms and conditions, all preexisting diseases are not covered under the policy of insurance. Accordingly the claim of the complainant was repudiated. To substantiate his contention, the 3^rd OP has not produced any documentary evidence, hence the contention of the 3^rd OP cannot be accepted. Moreover, the complainant got admitted to the hospital for “Benign Prostate Hypertrophy” and the claim is made for above said disease.

15. The counsel appearing for the 1^st OP submitted that, as per the discharge summary, they have noticed that, the complainant is having preexisting diseases. As per the terms and conditions of the policy, the claim of the complainant was rejected.  

16. On perusal of the documents produced by the complainant i.e. Ex/C6 is the discharge summary of the complainant dated 4-8-2009, in the brief history column, it is mentioned as “History of decreased urine stream since 2-3 years, increased frequency 5-6 times/not associated with pain, known case of DM and on treatment since 6 months”. On perusal of Ex-C5A, the letter issue by the Dr.Mahendra Jain, Consultant Urologist, Vinayaka Hospital Tumakuru to the 1^st OP stating that, the remarks in the discharge summary is written inadvertently by the doctor in charge of OPD is regretted. The correct duration of the illness i.e. six months as mentioned in the preauthorization is correct and genuine. The above said letter, it is clearly shows that, the complainant is having illness since six months as mentioned in the Ex-C5A.  On perusal of the Ex-C8 dated 31-7-2009, initially the OP had approved medical expenses of Rs.35,100=00 and again the OP had issued a letter dated 4-8-2009 for repudiating the claim of the complainant. Though, the 1^st OP had initial approved medical expenses, apart from that, the OP No.1 and 3 have not produced any documentary evidence to show that, the complainant had taken treatment for the disease of “Prostate Hypertrophy” prior to obtaining of the said policy. Hence, without documentary evidence, the contention of the OP No.1 and 3 cannot be accepted. Hence, repudiation of the claim of complainant made by the OP No.1 and 3 amounts to deficiency in service.  On the other hand the complainant has proved with convincing material evidence that the OP No.1 an 3 are negligent and there is deficiency of service on the part of the OP No.1 and 3 in making rejection of his claim without any proper material evidence. The 2^nd OP is only a formal party as the premium amount was forwarded to the 1^st OP through 2^nd OP. Hence, there is no deficiency on the part of the 2^nd OP. In the above discussion made hitherto, we come to conclusion that, there is deficiency in service on the part of OP No.1 and 3. Hence, it is just and proper to direct the OP No.1 and 3 to pay approved amount of Rs.35,100=00 to the complainant along with 9% interest per annum from the date of complaint to till the date of realization, failing which, the OP No.1 and 3 shall pay the above said amount to the complainant along with 9% interest per annum from the date of complaint to till the date of realization. Further the OP No.1 and 3 are directed to pay compensation of Rs.10,000 and litigation cost of Rs.5,000=00 to the complainant respectively. Accordingly we answer this point in a affirmative. In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

The complaint filed by the complainant is allowed in part.

The OP No.1 and 3 are jointly and severally directed to pay approved amount of Rs.35,100=00 to the complainant along with 9% interest per annum from the date of complaint to till the date of realization, failing which, the OP No.1 and 3 shall pay the above said amount to the complainant along with 9% interest per annum from the date of complaint to till the date of realization.

The OP No.1 and 3 are jointly and severally directed to pay compensation of Rs.10,000 and litigation cost of Rs.5,000=00 to the complainant respectively.

This order is to be complied by the OP No.1 and 3 within 45 days from the date of this order.

          Supply free copy of this order to both parties. 

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this, the 26^th day of July 2017)

LADY MEMBER                                         PRESIDENT