PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        The Complainant is a stenographer. He was regular subscriber to the Mediclaim Policy of the Opposite Party No.1 since last 8 years he had renewed the same from year to year without any gap.  When the grievance in this complaint arose he was holding Policy No.250301/48/07/8500000338 for the period from 06/05/2006 to 05/05/2007.  The Opposite Party No.2 is the Agent of Opposite Party No.1.  

 2)        According to the Complainant after obtaining first mediclaim policy, he has enjoyed good health and has also received no claim bonus for last 8 years.  He has annexed copies of insurance policies for the preceding 3 years issued by Opposite Party No.1 to him which are marked as Exh.‘A’ collectively.  The Complainant states that in October, 2007, he required serious medical attention and was hospitalized for  Atherosclerotic Occlusion RT. Lower Arteries for which the surgical procedure was performed successfully at Bombay Hospital.  The Complainant states that for the said operation the Complainant had paid an amount of Rs.2,05,962/-. Copies of bills issued by the Bombay Hospital are marked as Exh.‘B’ Collectively. According to the Complainant, he has with prior intimation and with approval of the Opposite Parties got himself surgically treated and has thereafter submitted his claim to Opposite Party No.1. It is the case of the Complainant that the claim has been rejected by the Opposite Parties, under the Exclusion Clause 4.8 of the policy on the ground of “use of intoxicating drugs/alcohol”.  Copy of the repudiation letter is marked at Exh.‘C’.

 3)        The Complainant has come out with the case that the said reason of repudiation is totally incorrect and wrong as he has never been an alcoholic or a drug abuser.  The Complainant has also alleged that at the time of taking the policy for the first time, he has declared that he is a smoker and was not an excessive smoker, ever exceeding 8/10 cigarettes in a day and therefore, he has requested the Opposite Parties to reconsider repudiation. The Complainant has alleged that such kind of casual smoking and that the cause of the present illness suffered has no direct nexus for Opposite Parties to justify the repudiation.  The said clotting could be on account of continuous sitting posture which the Complainant requires to be in as he has a stenographer since last 30 years.  According to the Complainant, the popliteal vein when remains pressed because of the sitting posture on the chair is a known cause of Deep Vein Thrombosis, (DVT). The Complainant has further alleged that he has issued notices to the Opposite Parties through his advocate Shri. Anand Patwardhan on 26/02/2008 and 18/02/2008, asking them to settle the claim of the Complainant.  The same was not adhered to and the Opposite Party did not reply both the notices.  The copies of the legal notices are marked at Exh.‘D’. The Complainant has contended that the Opposite Parties have wrongly and on baseless assumptions repudiated the claim and depicted unfair trade practice on their part. The Opposite Party vide letter dtd.10/08/2008, as per Exh.‘E’ declined the claim made by the Complainant.  

 4)        The Complainant has therefore, filed the present complaint on 28/07/2008. The Complainant has prayed that the Opposite Party No.1 be directed to pay the claim amount of Rs.2,05,960/- alongwith interest @ 15% from the date of repudiation till actual realization.  The Complainant has prayed compensation of Rs.50,000/- for the mental torture and agony undergone by the Complainant and cost of Rs.25,000/- of this complaint. 

 5)        The Opposite Party No.1 contested the complaint by filing written version. It is contended that the claim of the Complainant was fully investigated and thereafter the same is rejected by the Opposite Party and on that ground his claim is not maintainable.  It is contended that the repudiation is totally correct as per the policy condition.  It is denied that the Complainant declared that he was chain smoker.  The Complainant admitted that he was smoking 8-10 cigarettes in a day, which amounts to use of intoxicating and therefore, it was not necessary to reconsider repudiation.  It is contended that the smoking intoxicating has caused the present illness suffered by the Complainant and there is direct nexus to justify the repudiation.  The Opposite Party No.1 denied that the clotting could be on account of continuous sitting posture, etc. as alleged by the Complainant. It is denied that the Complainant had ever suffered physical hardship and mental agony and therefore, the Opposite Parties liable to pay any compensation. It is denied that Opposite Party has adopted any unfair trade practice in refusing to consider the claim made by the Complainant.  It is submitted that the Complainant is not entitle for the claim made in the complaint.

6)        Opposite Party No.2 remained absent though served, hence, the complaint proceeded against Opposite Party No.2 ex-parte.

7)        Both the parties filed their affidavits in support of their contention at the time of filing the complaint as well as written statement, thereafter they did not adduce any separate evidence on affidavit.  The Opposite Party No.1 filed written argument.  The Complainant has not filed written argument. 

 8)        We heard Ld.Advocate Shri. Anand Gawand for the Complainant and the Ld.Advocate Shri. Ganesh Shirke for the Opposite Party No.1.  We have perused the documents filed by both the parties in this complaint.  Following points arise for our determination and our findings thereon for the reasons are as under –     

Point No.1 :  Whether complaint made by the Complainant falls under the exclusion clause 4.8 and the Opposite Party is   having right to repudiate the claim made by the Complainant ?

Findings     :  No

 Point No.2 :  Whether the Complainant is entitled for any claim ? if yes, what extent ?

Findings    :   Yes, to the extent of Rs.1 Lac. 

Point No.3 :  Whether the Complainant is entitled for compensation from Opposite Party No.1 & 2 for the mental torture and    agony ?

Findings    :  Yes, to the extent of Rs.10,000/-. 

Point No.4 :  Whether the Complainant is entitled for the cost from Opposite Party No.1& 2 towards the complaint ?

Findings    :  Yes, to the extent of Rs.5,000/-.

Reasons :-

Points No.1 to 4 : It is undisputed fact, the Complainant has been operated in Bombay Hospital during the period of mediclaim policy obtained from the Opposite Party No.1. The Complainant was hospitalized for the Atherosclerotic Occlusion RT. Lower Arteries, for which the surgical procedure was performed successfully at the Bombay Hospital.  It is also undisputed that the Complainant was required to pay an amount of Rs.2,05,962/- to Bombay Hospital for his operation and towards hospitalization charges.  The Opposite Party on the basis of the investigation made by the Opposite Party No.2 vide letter dtd.08/01/2008, issued repudiation letter on the ground that the Complainant is chain smoker & use to consume 8-10 cigarettes per day and so the claim is not allowable as per clause 4.8 of the policy. The clause 4.8 renders as under –

“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 use of intoxicating drugs/alcohol.” 

The advocate for the Opposite Party No.1 in his argument relied on the said clause of the policy and submitted that the Opposite Party has rightly repudiated his claim as per the repudiation letter dtd.08/01/2008.  He has also relied on the certificate issued by Dr. Paresh Pai, dated December 10, 2007, wherein it is mentioned that “Mr. Shashikumar (Complainant) used to smoke 10 cigarettes a day.  Tobacco use may have been the probable cause of the Peripheral vascular disease in the absence of other aetiological factors.”  It is submitted that in view of the certificate of Dr. Pai, who has treated the Complainant, the Complainant is not entitle to any claim made in this complaint. He also further submitted that as per the policy obtained by the Complainant, he was insured to the tune of Rs.1 Lac only and therefore, the claim made by the Complainant to the tune of Rs.2,05,962/- is improper.

Shri Anand Gawand, the Ld. Advocate for the Complainant submitted that the ground on which the claim of the Complainant has been repudiated by the Opposite Party No.1 & 2 is improper as a cigarette smoking cannot be said put a consumption of intoxicating drugs/alcohol.  He submitted that the Opposite Party No.1 had renewed the mediclaim policy of the Complainant and is family member for about past 8 years.  The Opposite Party has also paid bonus to the Complainant. Under such facts and circumstances the rejection of the claim by the Opposite Parties is totally unjust and improper.

While considering rival contention, we find that the exclusion clause 4.8 as referred above cannot be said applicable in the present case for repudiating the claim made by the Complainant.  As per the Oxford Dictionary Intoxicate or Intoxicated means Alcoholic drink or drug.  The Opposite Party has not brought on record that the Complainant was in habit of consumption of any alcoholic substance or habitual drugs abuser when he had obtained the policy from Opposite Party No.1.  In the certificate of Dr. Pai, he has only opined that tobacco use may have been probable cause of the Peripheral vascular disease in the absence of other aetiological factors. From the certificate of Dr. Pai, it appears that he has opined general possibility and probable cause of the disease suffered by the Complainant.  Thus, from the certificate of Dr. Pai which is relied by the Opposite Party No.1 & 2, it cannot be said that the Opposite Party can take benefit of exclusion clause 4.8 of the policy. 

In the case of Lakhwinder Singh & Anr. V/s. United India Insurance Co. Ltd. & Ors., the Hon’ble State Commission of Chandigarh, reported in CPJ 2010 page 265 held that –

“Normal wear and tear of life cannot be termed as suppression of material facts and on that count repudiation is unjustified.”

Further more the Hon’ble Supreme Court in the case of Oriental Insurance Co. Ltd. V/s. Ozma Shipping Co. & Anr., reported in 2009 CTJ 1187 have observed as under –

“Before parting with this case we would like to observe that the insurance companies in genuine and bona fide claims of the insurers should not adopt the attitude of avoiding payments on one pretext or the other.  This attitude puts a serious question mark on their credibility and trustworthiness of the insurance companies.  Incidentally by adopting honest approach and attitude the insurance companies would be able to save enormous litigation costs and the interest liability.”

            Considering the aforesaid observation in our view as the Complainant has specifically come out with the case that at the time of obtaining the policy, he has declared that he is smoker and was not excessive smoker exceeding 8-10 cigarettes per day.  Further more the Complainant has also specifically alleged that the operation which was required to perform, was on account of continuous sitting posture as being stenographer since last 30 years and has no direct nexus as opined by Dr. Pai. We therefore, find that the Opposite Parties have improperly repudiated the claim made by the Complainant under the garb of Clause 4.8 of the policy.

In this contest the observations of the Hon’ble State Consumer Disputes Redressal Commission, Punjab, reported in 2009 CTJ 1308 in the case of Life Insurance Corporation of India & Anr. V/s. Smt. Usha Rani which are as under – can be considered for allowing the genuine claim made by the Complainant.  The said observations are noted as below –

            “The right of repudiation cannot be granted to the Insurance Companies on flimsy grounds or sketchy evidence.  After all the Insurance Companies insure a person, take the premium and when it comes to making the insurance claim, they find out one or the other ground to reject the claim.  Courts, therefore, have to be cautious while determining the rights of the parties and has to insure that the right of repudiation is exercised by the Insurance Companies judicially and on sound principles.” 

            The Complainant has claimed that the Opposite Parties be directed to pay Rs.2,05,962/-.  In our view, the said claim made by the Complainant is not covered within ambit of insurance policy which he had obtained from the Opposite Party No.1.  As per the said policy the Opposite Party No.1 agreed to insure his mediclaim to the extent of Rs.1 Lac only.  We therefore, hold that the Complainant is not entitled to the tune of Rs.2,05,962/-, but he is entitle for mediclaim of Rs.1 Lac only from the Opposite Parties.

            The Complainant has claimed compensation of Rs.50,000/- towards the mental

torture and agony undergone by him because of repudiation of the claim made by him with the Opposite Parties.  It is true that the Opposite Parties wrongly repudiated the claim.  The Opposite Parties ought to have considered that the Complainant is entitled for the operational as well as hospitalization charges which he had incurred at Bombay Hospital for his treatment to the extent of Rs.1 Lac i.e. to the extent of policy limit.  It appears that the Opposite Parties wrongly avoided the payment of genuine and bonafide claim of the insured Complainant on one or other pretext i.e. Clause 4.8 of the policy.  We therefore, hold that the Complainant is entitled for compensation on account of mental torture and agony suffered by him to the extent of Rs.10,000/-.  It appears that prior to filing of the present complaint, even after repudiation of claim by the Opposite Parties, the Complainant by issuing legal notices had requested the Opposite Parties to settle his claim or reconsider his claim which is bonafide one.  However, the Opposite Parties did not find it proper and thereby compelled to file this complaint.  We therefore, hold that as the Opposite Parties have wrongly rejected the claim made by the Complainant which he was entitled to the extent of Rs.1 Lac and he was required to file present complaint, the Opposite Parties are therefore, liable to pay cost of Rs.5,000/- of this litigation to the Complainant. In the result we answer all the points accordingly and pass the following order –

O R D E R

i.                  Complaint No.129/2008 is partly allowed.

ii.                 Opposite Party No.1 & 2 shall pay jointly and/or severally mediclaim amount of Rs.1,00,000/- (Rs. One Lac Only) to the Complainant with interest @ 9% p.a. from the date of filing of this complaint i.e. 28/07/2008 till its realization.

iii.               Opposite Party No.1 & 2 shall pay jointly and/or severally an amount of Rs.10,000/- (Rs.Ten Thousand Only) to the Complainant towards the compensation for the mental torture and agony undergone by the Complainant.

iv.               Opposite Party No.1 & 2 shall pay jointly and/or severally an amount of Rs.5,000/- (Rs. Five Thousand Only) to the Complainant towards cost of this proceeding.

v.                  The Opposite Parties are directed to comply with the above order within four weeks from the date of service of this order.  

vi.               Certified copies of this order be furnished to the parties.