PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 31st day of July 2012
Filed on : 02/07/2011
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No. 349/2011
Between
G. Gangadharan, : Complainant
Vrindavanam house, (By Adv. Tom Joseph,
Thrikkalathoor, Court road, Muvattupuzha)
Muvattupuzha via.
And
M/s. United India Insurance Co. Ltd., : Opposite party
3rd Floor, Vettukattil Building, (By Adv. Lakshmanan T.J.
Jos Junction, Ernakulam-682 016. Penta Queen, Padavattom Cochin-24)
O R D E R
A Rajesh, President.
To put it shortly, the case of the complainant is as follows:
The complainant is a family mediclaim policy holder of the opposite party. Smt. Saraswathiyamma, complainant’s mother underwent treatment at Kolenchery Medical College Hospital with complaint of Tuberculosis Meningitis from 08-06-2010 to 24-06-2010. The complainant incurred a sum of Rs. 62,077/- towards treatment expenses. The insurance claim application submitted by the complainant was repudiated by the opposite party stating that the complainant’s mother had symptoms of ailment one week prior to the date of admission. Against the repudiation of the claim the complainant preferred a complaint before the learned Insurance Ombudsman. The learned Insurance Ombudsman dismissed the complaint. The complainant was not aware of the ailment at the time of inception of the policy. So the repudiation of the claim by relying on clause 4.1 and 4.2 of the policy amounts to deficiency in service. The complainant is entitled to get the insurance claim of Rs. 62,077/- with interest together with costs of the proceedings.
3. The version of the opposite party is as follows
The complainant at the outset approached the Insurance Ombudsman and the Insurance Ombudsman dismissed the petition filed by the complainant. So the present complaint is barred by principles of res-judicata. The opposite party issued mediclaim policy for the period from 08-05-2010 to 07-05-2011. Along with the claim application of the complainant, he submitted a medical certificate and as per the certificate the complainant’s mother was admitted at the hospital on 08-06-2010 and she was suffering from the illness one week prior. As per clause 4.3 of the policy the opposite party is not liable to pay any insurance amount for the ailments during the first 30 days from the commencement of the date of policy. Moreover as per clause 4.1 of the policy existing illnesses are not covered and the opposite party is not liable to pay insurance claim to the complainant.
4. No oral evidence was adduced by the parties. Exts.A1 and A2 and B1 to B3 were marked on the side of the complainant and the opposite party respectively. Heard the counsel for the parties.
5. The points that arose for consideration are as follows:
i. Whether the complaint is barred by principle of res-judicata?
ii. Whether the complainant is entitled to get insurance claim
from the opposite party?
iii. Whether the opposite party is liable to pay costs of the
proceedings to the complainant?
6. Point No. i. :- The Hon'ble National Consumer Disputes Redressal Commission in Kamaleshwari Prasad Singh Vs. National Insurance Co. Ltd. I (2005) CPJ 107 (NC) held in para 12 that, “In view of the above discussions, it is held that the decision of the Ombudsman is not binding on the complainant and the decision of the Insurance Company to repudiate the claim is subject to adjudication by the Fora constituted under the Consumer Protection Act.” In view of the above authority, we are only to hold that this complaint is maintainable in this Forum.
7. Point No. ii &iii. Admittedly the complainant was holding a medi-claim insurance policy for the period from 08-05-2010 to 07-05-2011 evident from Ext. A1 policy. According to the complainant clause 4.1 and 4.2 of the policy will not be applicable in this case since the insured was not aware of her ailment at the time of inception of the policy. On the contrary the definite case of the opposite party is that as per the medical record the insured came to know about the ailment 8 days prior to the treatment period. According to the opposite party her ailment was diagnosed within 30 days from the date of inception of the policy and as per clause 4.1 and 4.2 of the policy the opposite party is not liable to pay insurance claim to the complainant.
8. It is worthwhile to note that there is no medical evidence or anything else before the Forum to show that the insured was aware of her ailment at the time of inception of the policy. Since she was not aware of the ailment naturally she is entitled to get insurance claim from the opposite party. Our decision is relied on the dictum laid down by the Hon’ble National Consumer Disputes Redressal Commission in Oriental Insurance Company Ltd. Vs. Rajiv Bhadani IV (2010) CPJ 263 (NC) the para 9 of the decision is as follows:
9. We have considered the contention made by both Counsel and have also gone through the evidence on record. There is no ambiguity in Clauses 4.2 and 4.3 as well as the saving clause which clearly indicates that though the exclusion clause pertains to the first 30 days from the date of commencement of the policy but this will not apply if a panel of medical practitioners constituted by the Petitioner company opine that the insured person did not know about the existence of the disease at the time of applying for the insurance. Unfortunately, the leanred counsel for the petitioner could not explain why such a panel was not constituted. On the other hand, we agree that the Respondent has been able to provide credible evidence before the State Commission that he had no history of heart ailment and the recent ECG and medical examination proves this fact.”
The facts and merits of the above case squarely applies in the instance case as well before this Forum.
9. In view of the above, we are of the view that the complainant is entitled to get insurance claim from the opposite party together with its interest. We feel ends of justice has been met by the reliefs awarded. Nothing further is called for.
10. In the result, we partly allow the complaint and direct that the opposite party shall pay the insurance claim of the complainant with interest at the rate of 12% p.a. from the date of complaint till realization.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of the order.
Pronounced in the open Forum on this the 31st day July 2012.
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits :
Ext. A1 : Copy of policy along with
conditions
A2 : Copy of the representation given
to the company
Opposite party’s Exhibits : :
Ext. B1 : Copy of policy along with
conditions
B2 : Copy of medical certificate
B3 : copy of proceedings of the
Insurance Ombudsman,
Kochi.
