PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
The complainant is a medical student studying in 2nd year M.B.B.S in MGM Medical College, Kamothe.
2) It is submitted that Opposite Party – National Insurance Company Ltd. had offered to MGM College a Group Insurance Policy “Amartya Siksha Yojna Policy” a policy for medical student. In the aforesaid mediclaim policy following contingencies are covered -
a) Accident to parent/Legal guardian directly resulting in:
i) Death
ii) Permanent total disablement (PTD) causing
-loss of two limbs / two eyes
-loss of one limb and one eye
-Disablement of the insured from engaging in any employment / Occupation
b) Death during surgical operation or within 7 days of the surgical operation whilst in hospital.
3) Duration of the cover of the insurance policy is of 5 years i.e. from 12/01/2005 to 11/01/2010 and one time premium paid for it was Rs.729/-. Aforesaid policy was issued by the Opposite Party alongwith a list of student who paid premium amount. Name of the Complainant appears in the list of students at Sr.No.75. The sum insured and assured is Rs.5,00,000/-.
4) The Complainants father who was at Riyadh in Saudi Arabia was admitted in the National Hospital Saudi Arabia on 03/03/2006. Surgery was done on him in the said hospital and subsequently on 06/03/206 the Complainants father was declared dead while in the Intensive Care Unit of the said Hospital. Thereafter Complainant obtained details of medical report, of National Hospital and Death Certificate issued by the Kingdom of Saudi Arabia. Then the Complainant made an application to Director, Medical Education and Research, Mumbai on 02/05/2006 for claim of students’ insurance. The Complainant also made an application to the Opposite Party and submitted claim form on 19/01/2007 alongwith necessary documents.
5) The Complainant received a letter dtd.08/08/2007 from the Opposite Party stating that the claim does not fall within the scope of the cover granted under the policy and for which the Opposite Party claimed inability to pay insurance claim amount. After receipt of aforesaid letter the Complainant had sent a legal notice through his advocate on 11/02/2008 to the Opposite Party. The Opposite Party did not comply with the notice nor they sent reply to the said notice.
6) It is submitted that the Complainant is a consumer as defined under Consumer Protection Act, 1986. The Opposite Party without any just cause repudiated his claim. The Complainant is studying in 3rd year M.B.B.S. and he had to pay college fee approximately Rs.23,000/-. However, due to illegal repudiation of claim by Opposite Party, the Complainant is in tremendous financial crises. The Complainant has suffered immense mental agony and therefore, he has filed this complaint.
7) The Complainant has requested to direct Opposite Party to pay insurance claim amount of Rs.5,00,000/- to the Complainant. The Complainant has prayed for compensation of Rs.50,000/- for mental torture and harassment. He has also prayed for cost of this proceeding from the Opposite Party. Alongwith complaint, the Complainant has filed photo copies of the following documents –
1) Bonafide Certificate.
2) Pamphlet of the insurance policy.
3) Copy of Insurance Policy issued by the Opposite Party.
4) List of the students covered under the policy showing the Complainant’s name.
5) Copy of the Death Certficate issued by the Kingdom of Saudi Arabia, Ministry of Interior Civil Affairs and the extract of the Disposal
Registry entry in the Cemetery issued by the Municipal Corporation for Greater Bombay.
6) Details of Medical Report, Operation Report wherein the details of the surgery and also the name of the surgeon can be found, from
the National Hospital, Saudi Arabia.
7) Copy of an application to the Director, Medical Education and Research, Mumbai.
8) Copy of claim form submitted to the Opposite Party.
9) Copy of letter dtd.08/08/2006 received from Opposite Party.
10) Copy of legal notice dtd.11/02/2008 sent to the Opposite Party.
8) Opposite Party Nos.1 & 2 have filed common written statement and thereby resisted claim of the Complainant containing that complaint is false, frivolous vexatious and bad in law hence, deserves to be dismissed with cost. It is alleged that the Complainant has filed complaint with malafide intension by suppressing of material facts.
9) The Opposite Parties have admitted that Opposite Party No.2 had offered in MGM College a Group Insurance Policy “Amartya Siksha Yojna Policy” bearing no.270800/48/03/4201571/ 2004 for the period from 12/01/2005 to 11/01/2010 for medical student, wherein parent/guardian of the student are covered. It is group insurance policy.
10) It is admitted by the Opposite Parties that Applicant/Complainant is a medical student studying in 2nd year M.B.B.S. Medical College, Kamothe. It is further admitted that the Complainant is one the student who is covered under aforesaid Group Insurance Policy.
11) It is stated that father of the Complainant expired on 06/03/2006. It is admitted that the Complainant had filed claim with the Opposite Party but the said claim was repudiated by Opposite Party by their letter dtd.08/08/2007 stating that the claim does not fall within the scope of the cover granted under the policy.
12) It is the case of the Opposite Party that as per hospital record, father of the Complainant suffered brain hemorrhage and an urgent brain CT was done to evacuate the subdural haematoma and death can be attributed to brain hemorrhages only. It is the contention of the Opposite Party that as per terms and conditions of “Amartya Siksha Yojna Policy” death during surgical operation or within 7 days period while in the hospital, but arising out of surgical operation only would be considered to be death due to accident for the purpose of benefit under this policy, Opposite Party has submitted that though the policy was subsisting at the time of the death of the father of the Complainant, the claim of the Complainant does not fall within the scope of the cover granted under the policy hence, there is no cause of action against the Opposite Party and the Opposite Parties are not under obligation to pay any claim to the Complainant.
13) The Opposite Parties have denied allegations made in the complaint and submitted that death during surgical operation of within 7 days thereafter whilst in the hospital but resulting from surgical operation would be considered to be death due to “Accident” therefore, there is no cause of action to the complaint. There is no deficiency in service on the part of Opposite Party and therefore, complaint deserves to be dismissed with cost.
14) Shri. Jawhar Kaur, Divisional Manager of Opposite Party No.1 has filed affidavit in support of the written statement.
15) The Opposite Party Nos.1 & 2 have filed their written argument. The Complainant has filed affidavit of evidence. On 19/06/2009 alongwith affidavit of evidence the Complainant has produced original documents such as, Bonafide Certificate, Pamphlet of Amartya Siksha Yojna Policy, Death Certificate, Medical Report, etc. From 19/06/2009 the Complainant did not appear before this Forum. The Opposite Parties have filed their written argument. On the ground absence of Complainant, from time to time mater was adjourned for hearing. On 19/07/2010 in the absence of Complainant we heard oral argument of Ld.Advocate, Shri. Nitin Patil for the Opposite Party.
16) Following points arise for our consideration and our findings thereon are as under –
SR.NO. | POINTS | FINDINGS |
1. | Whether the Complainant has proved deficiency in service on the part of Opposite Party Nos.1 & 2 ? | Yes. |
2. | Whether the Complainant is entitle to recover claim amount of Rs.5,00,000/-, compensation and cost of this proceeding from Opposite Party as prayed for ? | As per final order. |
Reasons :-
Point No.1 :- Following facts are admitted facts that at the instance of Director of Medical Education and Research Government of Maharashtra, Opposite Party No.2 National Insurance Co.Ltd., Kolhapur presented “Amartya Siksha Yojna Policy” for medical student. National Insurance Co.Ltd., Kolhapur is having branch office at Royal Insurance Building, Churchagate, Mumbai. “Amartya Siksha Yojna Policy” was offered by National Insurance Co.Ltd. for MGM Medical college students studying in medical college, Kamothe, Navi Mumbai. Duration of the aforesaid insurance policy cover is of 5 years i.e. from 12/01/2005 to 11/01/2010 and one time premium paid for it was Rs.729/-. Under this policy parent/legal guardian of the student are covered. Alongwith the complaint, Complainant has produced pamphlet of Amartya Siksha Yojna Policy to the MGM Medical College and list of the students of MGM Medical College covered under the scheme. Name of the present Complainant is appearing in the list of students at Sr.No.75.
It appears that under Amartya Siksha Yojna Policy sum insured was Rs.5,00,000/-per student. The insurance scheme was sponsored with an intention to insure uninterrupted education of the student despite the unfortunate accidental death total disablement of the parents or the legal guardian of the child. It is not dispute that the Complainant is eligible under the said scheme and his name was included in the students to whom cover under the policy was given. It is specifically stated what contingency which are covered under the policy. Contingencies covered under the policy are stated as under –
a) Accident to parent/Legal guardian directly resulting in:
i) Death
ii) Permanent total disablement (PTD) causing
-loss of two limbs / two eyes
-loss of one limb and one eye
-Disablement of the insured from engaging in any employment / Occupation
b) Death during surgical operation or within 7 days of the surgical operation whilst in hospital.
It is undisputed that during relevant period of policy the Complainant’s father (Ashiq Ali Hussain) was at Riyadh in Saudi Arabia. During the subsistence of the aforesaid policy Complainant’s father was admitted in National Hospital of the Saudi Arabia on 27/02/2006. The Complainant has produced medical report issued by the National Hospital alongwith operative report, operative flowsheet, etc. In the medical report of National Hospital, Saudi Arabia it is stated that patient by name Ashiq Ali Hussain was admitted in the said hospital on 27/02/2006. The patient was about 50 year old an Indian male known to have D.M.(20 years) and Hypertension (4 years), on regular treatment presented with complaints of dizziness, right sided headache and vomiting of one day duration. After admission, necessary investigations were made and he was admitted in Intensive Care Unit. Subsequently he was transferred to ordinary ward. It stated that 03/03/06 patient became more drowsy and omitted several times, where urgent CT brain done, and the subdural haematoma were evacuated by neurosurgeon, then the patient transferred to ICU, where the condition deteriorated, and brain death was documented on 05/03/06 and arrested on 06/03/06 and declared death at 10.58 H.
Opposite Parties in their written statement have specifically admitted the following facts –
That the father of an applicant expired on 06/03/2006 in Saudi Arabia wherein the surgery was done on him on 03/03/2006 in the National Hospital and he was declared death subsequently on 06/06/2006. After death of father, the Complainant collected necessary medical record. Funeral of Complainant’s father was performed on 16/06/2006 at Mumbai. Thereafter the Complainant submitted an application to the Director Medical Education Research, Mumbai. Then Complainant submitted claim form to Opposite Party. The xerox copy of claim form it is produced at Exhibit-‘H’ to the complaint. The Opposite Party by letter dtd.08/08/2006 rejected claim of the Complainant. Xerox copy of the said letter is produced at Exhibit-‘I’ to the complaint. In the aforesaid letter Opposite Party has observed that “as per hospital record the father of the Complainant suffered brain hemorrhage and an urgent brain CT was done to evacuate the subdural haematoma and death can be attributed to brain hemorrhages only”. It is further stated that “as per Amartya Siksha Yojna Policy, death during surgical operation or within 7 days of the surgical operation whilst in hospital but arising out of surgical operation only would be considered to be death due to accident for the purpose of benefit under this policy.”
By giving aforesaid reasons Opposite Party has rejected claim of the Complainant. As mentioned above in the pamphlet Amartya Siksha Yojna Policy published by the Opposite Party what contingences do the policy cover are stated at Sr.No.2. It is stated that “death during surgical operation or within 7 days of surgical operation files in the hospital”. In the pamphlet it is nowhere stated “but arising out of surgical operation only would be considered to be death due to accident for the purpose of benefit under this policy”. The Opposite Parties have not produced any other terms and conditions of the Amartya Siksha Yojna Policy. So we have to rely upon point no.2 of what contingencies do the policy covered ? stated in the pamphlet. For rejecting claim of the Complainant the Opposite Parties have added the words “but arising out of surgical operation only would be considered to be death due to accident for the purpose of benefit under this policy”. It is not explained by the Opposite Party how they added aforesaid words in point no.2 to restrict benefit of the policy only to the death arising out of surgical operation only. Terms and conditions printed in the pamphlet is a contract between the parties. Opposite Party – National Insurance Co.Ltd. cannot add or make alterations arbitrarily in the terms and conditions of the policy without notice to the Insured or beneficiary under the group insurance policy. It appears that Opposite Parties have deliberately added aforesaid words with the intension to repudiate genuine claim of the Complainant. In the pamphlet it is stated that policy will cover death of parent or legal guardian during surgical operation on within 7 days or surgical operations whilst in hospital. In the instance case Complainant’s father undergone surgical operation in the National Hospital at Saudi Arabia on 03/03/2006 and after surgical operation his condition was deteriorated and he was declared as dead on 06/03/2006. In view of the aforesaid fact the Complainant is entitled for benefit under the policy. Rejection of genuine claim by adding words but arising out of surgical operation only which are not stated in the pamphlet of the Amartya Siksha Yojna Policy was most unwarranted and it amounts to deficiency in service on the part of Opposite Parties. Therefore, we answer point no.1 in the affirmative.
Point No.2 - Due to unfortunate death of father of the Complainant he is entitled to take benefit of insurance under Amartya Siksha Yojna Policy. Sum assured under the policy is Rs.5 Lakh per student. The Opposite Parties has wrongly rejected claim of the Complainant therefore, the Complainant is entitled to recover Rs.5 Lakhs from Opposite Party.
The Complainant has claimed of Rs.50,000/- as compensation for mental agony and harassment and further he has prayed for cost of this proceeding form the Opposite Party. Considering the facts and circumstances of the case we think it just to direct Opposite Parties to pay compensation of Rs.10,000/- for mental agony and harassment and Rs.1,000/- as cost of this proceeding to the Complainant. Therefore, we answer point no.2 accordingly.
For the reasons discussed above, we partly allowed the complaint and pass following order -
O R D E R
i.Complaint No.58/2008 is partly allowed.
ii.i.Opposite Parties Nos.1 & 2 shall jointly and/or severally pay an amount of Rs.5,00,000/- (Rs.Five Lakhs Only) to the Complainant.
iii.Opposite Parties Nos. 1 & 2 shall jointly and/or severally pay an amount of Rs.10,000/- (Rs.Ten Thousand Only) as compensation for mental agony and
harassment and Rs.1,000/- (Rs.One Thousand Only) as cost of this proceeding to the Complainant.
iv.Opposite Party Nos.1 & 2 shall comply with the order within period of 1 month from the date of receipt of this order.
v.Certified copies of this order be furnished to the parties.
