BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 14^th of October 2011

PRESENT

        SMT. ASHA SHETTY           :   PRESIDENT

                        SMT.LAVANYA M. RAI       :   MEMBER

COMPLAINT NO.275/2010

(Admitted on 08.10.2010)

Mr.Walter Raj DSouza,

So. Late Sylvester DSouza,

Aged about 57 years,

Kitty Villa, 5 99 752 6,

Nagori, Kankanady,

Mangalore  575 002.                                   …….. COMPLAINANT

(Advocate for the Complainant: Sri.A. Nagaraj N).

          VERSUS

1. National Insurance Co. Ltd.,

2^nd Floor, Rasik Chambers,

Opp Central Market, Market Road,

Mangalore, Rep. by its

Divisional Manager.

(Advocate for the Opposite Party No.1: Sri.P.Janakiram).

2. M/s. Vipul Medcorp Private Limited,

154, 2^nd Floor, Malige Complex,

KHB Colony, 5^th Block,

Koramangala – Bangalore.

Rep. by its Manager or

Authorized Signatory.                         ……. OPPOSITE PARTIES

(Opposite Party No.2: Exparte).

                                      ***************

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs. 

The brief facts of the case are as under:

The Complainant submitted that, he had obtained a Health Insurance Policy bearing policy No.604300/48/09/85000548 valid from 19.07.2009 to 18.07.2010. Under the above policy the Complainant and his families were entitled to get the mediclaim benefit of Rs.50,000/- each.

It is stated that, the Complainant was admitted to A.J. Hospital and Research Centre Mangalore as an inpatient from 26.04.2010 to 30.04.2010 and had taken treatment for right knee and elbow with history of fall at home and incurred Rs.14,088/- for his treatment in the said hospital. Complainant stated that, after the above treatment he had approached the Opposite Party No.1 i.e., National Insurance Company and submitted original documents along with discharge summary.  Opposite Party No.1 had forwarded the claim to Opposite Party No.2 who is a Third Party Administrator.  Thereafter words,  the Opposite Party No.1 repudiated the claim through their letter dated 13.08.2010 on the ground that the investigation done are not related to chief complaints and also no active line of treatment was given and it comes under exclusion clause No.4.10 of the policy.  Feeling aggrieved by the above, the Complainant issued a legal notice dated 05.09.2010 to reconsider the claim but the same not complied and hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to pay a cheque for Rs.14,088/- along with interest at 12% p.a. from 26.04.2010 till payment and also claimed Rs.30,000/- as compensation and cost of the proceedings.

2.       Version notice served to both the Opposite Parties by RPAD. Opposite Party No.2 despite of serving notice neither appeared nor contested the case till this date.  Hence, we have proceeded exparte as against the Opposite Party No.2.  The acknowledgement placed before the FORA marked as court document No.1. 

Opposite Party No.1 appeared through their counsel filed version.  Opposite Party No.1 admitted the policy and stated that the Complainant has submitted claim with documents like discharge summary, doctors receipts, medical charges, hospital charges, policy copy etc to the Third Party Administrator i.e., 2^nd Opposite Party to get reimbursement of the hospitalization.  The 2^nd Opposite Party investigated the claim and recommended for repudiation as per their letter dated 14.07.2010.  It is stated that after investigation and verification of the documents submitted by the Complainant the alleged pain to right knee and elbow due to fall at home and no active treatment was taken for alleged injury or pain.  Further it is stated that, during hospitalization the investigation done are not related to the chief complaints, the Complainant had a history of diabetes and hypertension.  Therefore this claim comes under exclusion clause No.4.10 of the policy and stated that there is no deficiency and prayed for dismissal of the complaint.

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant proves that the Opposite Parties committed deficiency in service?

2. If so, whether the Complainant is entitled for the reliefs claimed?

3. What order?

4.         In support of the complaint, Mr.Walter Raj D’Souza (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him.   Ex C1 to C8 were marked for the Complainant as listed in the annexure in detail.   One Mrs.Susheela Rao (RW1), Deputy Manager of the Opposite Party No.1 filed counter affidavit and answered the interrogatories served on her.  Ex R1 to R16 were marked for the Opposite Party No.1 as listed in the annexure in detail.   Opposite Party No.1 filed notes of arguments.

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

                       Point No.(i): Affirmative.

                       Point No.(ii) & (iii): As per the final order.   

Reasons

5.  Point No. (i) to (iii):

In the instant case, the undisputed facts are that the Complainant was a holder of Insurance Policy bearing policy No.604300/48/09/85000548 valid from 19.07.2009 to 18.07.2010.  The Complainant and his family members were covered under the policy for a sum of Rs.50,000/- each (as per Ex C2). 

Now the Complainant came up with a complaint stating that, he had admitted to A.J. Hospital and Research Centre Mangalore as an inpatient from 26.04.2010 to 30.04.2010 and had taken treatment for right knee and elbow with history of fall at home and incurred Rs.14,088/- for his treatment but the Opposite Party repudiated the claim on the ground that he had not taken active line of treatment and falls under exclusion clause 4.10 of the policy which is arbitrary.

The Opposite Party on the other hand interalia contended that, the above claim was investigated by the third party administrator i.e., Opposite Party No.2 and stated that the Complainant was not taken any treatment to the alleged pain to the right knee and elbow, the investigations done are not related to the chief complaints, the claims comes under exclusion clause No.4.10 of the policy and contended that the repudiation is correct.

However, both the parties filed their oral evidence by way of affidavit and also produced Ex C1 to C8 for the Complainant and Ex R1 to R16 for the Opposite Parties.

Firstly, we have perused the policy produced by the Complainant, wherein, the exclusion clause No.4.10 defines as follows: (The same has been re-produced herebelow)

          The Company shall not be liable to make any payment under this Policy in respect of any expenses whatsoever incurred by any Insured Person in connection with or in respect of:-

“4.10: Charges incurred at hospital or nursing home primarily for diagnosis X-ray or Laboratory examinations or other diagnostic studies not consistent with or incidental to the diagnosis and treatment of positive existence of presence of any ailment sickness or injury, for which confinement is required at a hospital / nursing home”. 

          It is seen that, the Opposite Parties specifically contended that the investigations done are not related to the chief complaints and no active treatment was taken for alleged injury or pain.  When that being so, the entire burden lies on the Opposite Party Company to prove the same.

          However, the discharge summary i.e., Ex C1 dated 30.04.2010  produced by the Complainant issued by the A.J. Hospital and Research Centre Mangalore reveals that, the Complainant came up with a complaint with a history of fall at home and had taken treatment for right knee and elbow.  The consultant doctors i.e., one Dr.Sudharshan Bhandary (Orthopedics), Dr.Ganesh H.K (Endocrinologist), Dr.Manjunath B.V (Cardiology) and Dr.Sushanth Kumar (Nephrology) seen the patient and investigated the problems thereby treated the patient. Further it is seen that, at the time of discharge doctors have advised two weeks bed rest and suggested physiotherapy treatment and also advised to review after two weeks. 

          We find that, at the undisputed point of time the Complainant visited the hospital with a history of fall at home and complained of pain in right knee and elbow and taken treatment.  If at all there is no active treatment was taken for the alleged injury or pain the treated doctors are the persons who are answerable and not the Complainant or the Opposite Parties in this case. Opposite Parties should have summoned the consultant doctors one who treated the patient to prove their contentions.  No such attempt has been made by the Opposite Party Companies.  Just basing on the investigation report or the communications sent by the third party administrator the claim cannot be rejected.  There should be some evidence, no expert opinion or treated doctors examined, in the absence of the same the claim of the Complainant definitely cannot rejected or not falls within the purview of exclusion clause 4.10.  The Opposite Parties miserably failed to prove that, charges incurred at the hospital and the diagnostic studies not consistent with or incidental to the diagnosis and treatment of positive existence of presence of any ailments or injury.  In the absence of the same, we hold that the repudiation made by the Opposite Parties is arbitrary and amounts to deficiency in service.

          In view of the above reasons, we constrained to hold that repudiation made by the Opposite Party not correct and arbitrary. Therefore, we direct the Opposite Party No.1 i.e., National Insurance Company Limited represented by its Divisional Manager to pay Rs.14,088/- to the Complainant along with interest at 10% p.a. from the date of repudiation till the date of payment.  Further Rs.1,000/- awarded as cost of litigation expenses.  Payment shall be made within 30 days from the date of this order.

However, the interest as well as compensation both cannot be allowed. Interest is always inclusive of compensation.

There is no contractual relationship between Complainant and Opposite Party No.2, hence complaint against Opposite Party No.2 is hereby dismissed.      

6.       In the result, we pass the following:                          

ORDER

          The complaint is partly allowed.  Opposite Party No.1 i.e., National Insurance Company Limited represented by its Divisional Manager is hereby directed to pay Rs.14,088/- (Rupees fourteen thousand and eighty eight only) to the Complainant along with interest at 10% p.a. from the date of repudiation till the date of payment.  Further Rs.1,000/- (Rupees one thousand only) awarded as cost of litigation expenses.  Payment shall be made within 30 days from the date of this order.

          Complaint against Opposite Party No.2 is hereby dismissed.

The copy of this order as per the statutory requirements be forwarded to the parties free of charge or sent to the parties under postal certificate and thereafter the file shall be consigned to the record room.

(Page No.1 to 9 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 14^th day of October 2011.)

          PRESIDENT                                             MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Mr.Walter Raj D’Souza – Complainant.

Documents produced on behalf of the Complainant:

Ex C1 – 30.04.2010: Copy of the discharge summary issued by A.J. Hospital and Research Centre, Mangalore pertaining to the Complainant.

Ex C2 –                 : Certified copy of the policy schedule.

Ex C3 –                 : Original policy conditions.

Ex C4 – 12.08.2010: Copy of the letter issued to the Opposite Party.

Ex C5 – 13.08.2010: Letter issued by the Opposite Party No.1 (Original).

Ex C6 – 05.09.2010: Copy of the lawyer’s notice issued to the Opposite Parties.

Ex C7 -               : Postal receipts and acknowledgements (2 in numbers).

Ex C8 – 20.09.2010: Reply of the Opposite Party No.1 to the Complainant’s advocate.

Witnesses examined on behalf of the Opposite Party No.1:

RW1 – Mrs.Susheela Rao, Deputy Manager of the O.P. No.1.

Documents produced on behalf of the Opposite Party:   

Ex R1 to R8 - 27.04.2010 & 28.04.2010: Lab reports from A.J. 

                               Hospital.

Ex R9 – 27.04.2010: Tax Invoice for Rs.411.50

Ex R10 – 29.04.2010: Tax Invoice for Rs.41/-.

Ex R11 – 30.04.2010: Discharge summary issued by A.J. Hospital and Research Centre pertaining to the Complainant.

Ex R12 – 26.04.2010: Advance receipt for Rs.1,000/-.

Ex R13 – 30.04.2010: Advance receipt for Rs.13,088/-.

Ex R14 – 30.04.2010: Discharge bill for Rs.14,088/- issued by A.J.Hospital, Mangalore pertaining to the Complainant.

Ex R15 -                 : Medical prescriptions (3 in numbers).

Ex R16 – 17.05.2010: Claim form to Opposite Party No.2 with communication letter of Opposite Party No.2 to Opposite Party No.1 (3 pages).

Dated:14.10.2011                            PRESIDENT