BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT PUDUHERRY
FIRST APPEAL No.27/2015
THURSDAY, the 4th day of May, 2017
M/s National Insurance Company Ltd.,
No.312, Jawaharlal Nehru Street,
Puducherry -1, Rep. by its
Divisional Manager. ………… Appellant
Vs.
Namrita Gautier, W/o Francois Gautier
Auromodele, Auroville & Post,
Vanur Taluk, Villupuram District, TN. …………. Respondent
(On appeal against the order passed by the District Forum in C.C.No.115/2010, dated 08.09.2015)
C.C.No.115/2010
Namrita Gautier, W/o Francois Gautier
Auromodele, Auroville & Post,
Vanur Taluk, Villupuram District, TN. …………. Complainant
Vs/
M/s National Insurance Company Ltd.,
No.312, Jawaharlal Nehru Street,
Puducherry -1, Rep. by its
Divisional Manager. ………… Opposite Party
BEFORE:
THIRU JUSTICE K.VENKATARAMAN,
PRESIDENT
THIRU S.TIROUGNANASSAMBANDANE,
MEMBER
FOR THE APPELLANT/O.P.:
THIRU K.RAVIKUMAR,
ADVOCATE, PUDUCHERRY
FOR THE RESPONDENT/COMPLAINANT:
THIRU V.GOVINDARADJ,
ADVOCATE, PUDUCHERRY
O R D E R
This appeal is directed against the order of the District Forum, dated 08.09.2015 made in C.C.No.115/2010.
2. The opposite party before the District Forum is the appellant herein and the complainant thereon is the respondent herein. The parties are referred in the same position as they have been referred before the District Forum.
3. It is the case of the complaint before the District Forum was that her husband being customer with the opposite party had taken several policies. The complainant has taken an individual Mediclaim Hospitalization Benefit Policy in her name after paying the necessary premium for the said policy which runs from 24.03.2009 to 23.03.2010. During December, 2009, the complainant sustained injury in her right knee while walking on the road. The complainant got admitted at Apollo Hospitals, Chennai on 16.02.2010 and the doctors treated her and performed surgery on her knee. When the preferred claim with the opposite party, her claim was rejected on the ground that the injury was caused by mountain climbing and hence insurance amount cannot be paid to her. Thereupon legal notice was issued to the opposite party and the opposite party neither chosen to reply nor taken steps to pay the insurance amount. Hence, the complainant filed the complaint before the District Forum.
4. The opposite party has filed the reply version and the averments in nutshell is stated hereunder.
There was no deficiency in service on the part of the opposite party in repudiating the claim. A claim was raised by the complainant alleging she sustained injury while walking. On scrutiny of the claim, it was found that the policy was a fresh policy and not a continuing policy. All the claims under the Mediclaim policy are to be scrutinized and settled by the third party administrator, TTK Healthcare Pvt. Ltd and henceTTK Healthcare Private Ltd is a necessary party to this proceedings. Further, the injury sustained by the complainant was due to mountain climbing. Therefore, the complaint has to be rejected.
5. On the side of the complainant, the complainant examined herself as CW1 and marked Exs.C1 to C12 through CW1.On the side of opposite party, one Mr.K.Nagarajan, Senior Branch Manager was examined as RW1 and Exs.R1 toR21 and R24 were filed marked through RW1. One Dr.M.Kubenthiran, Vidal Health, TPA has been examined as RW2 and Exs.R22 and R23 were marked through him.
6. The District Forum framed 4 points for determination and they are as follows:
1. Whether the complainant is a consumer?
2. Whether the complaint is bad for non-joinder of parties?
3. Whether there is any deficiency of service by the opposite party?
4. Whether the complainant is entitled for any relief?
6. As regards point No.1, the District Forum has decided that the complainant is a consumer under the opposite party. As regards 2nd point, the District Forum found that TTK Healthcare Private Limited is not a necessary party as well as the complaint is not bad for non-joinder of necessary parties. On the 3rd point, the District Forum found that there is deficiency in service on the part of opposite party in repudiating the claim of the complainant. On point No,.4, the District Forum decided that the complainant is entitled to a sum of Rs.50,000/- towards insurance claim; Rs.25,000/- towards compensation for hardship and mental agony suffered by the complainant; and a sum of Rs.5,000/- towards costs.
7. As stated already assailing the said order, the present appeal is preferred.
8. We have gone through the entire records. We have also heard the learned counsel for the complainant as well as the opposite party. As far as the point No.1, namely, whether the complainant is a consumer is concerned, we are of the view that the complainant has taken the policy from the opposite party and since it has been alleged by the complainant that there is deficiency in service on the part of opposite party, the complainant has to be considered as a consumer a per the Consumer Protection Act. On this, we concur with the finding of the District Forum.
9. Regarding point No.2, we are of the view that Ex.R24, which is service level agreement between the opposite party and M/s TTK Healthcare TPA Pvt. Ltd., on 27.07.2012, but whereas the incident related to this case and subsequent events are related to the year 2010. Therefore, Ex.R4 has no relevancy to this case on hand. Moreover, if the opposite party finds that there is breach of agreement by TTk Healthcare Private Limited, then it is for the service provider to indemnify the opposite party and the complainant should not be made to suffer for the deficiency in service on the part of TTK Healthcare Pvt. Ltd. It has to be seen that the complainant has taken a policy from the opposite party and it has to honour the policy. Therefore, we are of the view that non-joinder of M/s TTK Healthcare Pvt. Ltd. may not and shall not affect the consumer, namely, the complainant herein. We further feel that M/s TTK Healthcare Pvt. Ltd. is not a necessary party to the complaint lodged by the complainant and hence we are of the view that the complaint is not bad for non-joinder of parties. On third point we have to see that it is the case of the complainant that she slipped while walking and suffered injury. However, it is the case of the opposite party that the injury was caused while mountain climbing. Admittedly, the opposite party has not proved and established before the District Forum that the injury that has been caused to the complainant was due to mountain climbing. When the opposite party pleads that the injury was caused due to mountain climbing, it is for them to establish the same. Unfortunately, the opposite party has not established the same in a manner known to law. Hence, we are of the view that the claim of the opposite party the complainant sustained injury due to mountain climbing has to be totally rejected.
10. As far as the other claim of the opposite party that it is a fresh policy and not a continuing one and hence they are not obliged to honour the same, we are of the view that the opposite party failed to prove that the complainant suffered from any of the ailments listed in exclusion clause in Rule 4(3) of the prospectus of Mediclaim Insurance Policy which has been marked as Ex.C2 before District Forum. Moreover, Rule 7 of the Prospectus of Mediclaim Insurance Policy does not warrant the complainant to undergo medical check up as the complainant was below 50 years of age at the time of taking policy, Ex.C1. Hence, the reasons specified for rejecting the claim of the complainant by the opposite party cannot be accepted. The District Forum has considered the matter in a proper perspective and allowed the claim of the complainant.
11. In our considered view, the opposite party has not established anything against the claim made by the complainant. Therefore, we are of the considered view that there is deficiency on the part of opposite party.
12. In view of the reasons set out above, we are of the view that the appeal that has been filed challenging the order of the District Forum referred to above, is liable to be dismissed and accordingly dismissed.
13. In fine, the appeal stands dismissed. The appellant is directed to pay a sum of Rs.10,000/- (Rupees Ten Thousand only) to the complainant towards cost for driving the complainant before this Commission by defending the appeal filed by it.
Dated this the 4th day of May, 2017.
(Justice K.VENKATARAMAN)
PRESIDENT
(S.TIROUGNANASSAMBANDANE)
MEMBER
