PER SHRI. S.M. RATNAKAR – HON’BLE PRESIDENT
1) By this complaint the Complainant has prayed that the Opposite Party No.1 be held guilty of deficiency of service and unfair trade practices. The Complainant has prayed that the Opposite Party No.1 be directed to pay balance amount of Rs.80,188/- towards medical expenditure incurred by him alongwith interest @ 18% p.a. from the date of claim till its realization. The Complainant has further prayed Rs.50,000/- towards compensation for the mental agony and the harassment caused to him and cost of Rs.50,000/- from the Opposite Party No.1 towards this proceeding.
2) The Complainant has alleged that he had availed mediclaim insurance facility of the Opposite Party No.1 through the Opposite Party No.2 and he is consumer under Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986 (referred to as the Act). According to the Complainant, initially the sum assured under the mediclaim policy was Rs.1,65,000/- and the same was increased as per the offer letter of Opposite Party No.2 dtd.17/02/2012 to the tune of Rs.3,00,000/-. The Complainant paid the premium of Rs.15,097.75 paise of the increased mediclaim amount on 06/03/2012. The copy of which is marked as Annexure - ‘C-2’. It is alleged that the wife of the Complainant was also covered under the policy issued by the Opposite Party No.1. She was operated in pursuance of MRI Report dtd.21/05/2012 on 10/07/2012 at Holy Sprit Hospital, Andheri (E) and was discharged on 16/07/2012. The Complainant had lodged his first claim with the Opposite Party No.1 of Rs.1,95,096/- vide Claim No.20938 with all hospital reports all receipts of payment made to the hospital and chemist bills. The Complainant thereafter lodged further claim of Rs.13,519/- towards post operation treatment and medical expenses vide Claim No.21501 through Opposite Party No.2 to the Opposite Party No.1. According to the Complainant, the Opposite Party No.2 vide Annexure - ‘C-5’ informed the Complainant that it had received amount of Rs.1,28,427/- from Opposite Party No.1 and the same has been credited to the Complainant’s account. According to the Complainant, the Opposite Parties have not settled the claim of Rs.80,188/- which the Complainant had submitted to the Opposite Party No.1. The Complainant thereafter, made several correspondence by stating that the sum insured was enhanced to the tune of Rs.3,00,000/-. The copies of the said letters are filed on record. It is alleged that the Opposite Parties did not give response to the correspondence made by the Complainant and therefore, the Opposite Parties are guilty of deficiency in service and unfair trade practices towards the Complainant. The Complainant has therefore, prayed the reliefs as mentioned in para 1 of this order.
3) The Opposite Party No.1 contested the claim by filing written statement. It is contended that the policy issuing office had issued Group Mediclaim (Tailor Made) Insurance Policy to Opposite Party No.2 to cover their employees, retired employees and their dependents bearing Policy No.120700341205000003 for the period 01/04/2012 to 31/03/2013 for the sum insured of Rs.2,50,000/. The copy of the said policy is marked at Exh.‘A’. It is submitted that the claim under the policy was admissible subject to observance of terms and conditions stated in the aforesaid policy. The copy of the terms and conditions are filed at Exh.‘B’. It is contended that the particular condition applicable to the present Complainant is condition no.2(A) which was as under –
“However, if it is found that the sum insured has been optionally increased to take care of particular disease or a planned surgery, the claim would be settled only upto the basic sum insured during the policy period. The decision of the Company will be final and binding.”
It is the case of the Opposite Party No.1 before the commencement of policy w.e.f.01/04/2012 the Complainant had increased sum insured from Rs.1,65,000/- to Rs.3,00,000/- for himself and his wife. It is contended that the sum insured was increased subject to the observance of the particular above condition.
4) It is the case of the Opposite Party No.1 that during the currency of policy period 01/04/2012 to 31/03/2013 the Complainant filed four claims of his wife Mrs.Shantha Krishnan which were as under -
A) First claim dtd.02/05/2012 for Rs.27,996/-. Xerox copies of the said claim and discharge card for the period 25/04/2012 to 28/04/2012 of
Holy Spirit Hospital are marked as Exh.‘C’.
B) Second claim dtd.30/05/2012 for Rs.8,577/-. The copies of the said claim are collectively marked as Exh.‘D’.
C) Third claim dtd.17/07/2012 for Rs.1,95,096/-. The copies of the said claim are collectively marked as Exh.‘E’.
D) Fourth claim dtd.05/09/2012 for Rs.13,519/- for post hospitalization treatment. The copies of which are collectively marked as Exh.‘F’.
It is submitted that by letter dtd.01/10/2012, it was informed to the Opposite Party No.2 that fourth claim was not payable as sum insured was already exhausted. The copy of the said letter is marked as Exh.‘G’. According to the Opposite Party, the earlier sum insured was Rs.1,65,000/- out of which first and second claim as noted above were already paid to the Complainant and the amount of Rs.1,28,427/- remained balance in the said sum insured as per the policy. According to the Opposite Party No.1, the documents which are placed on record by the Opposite Party No.1 show that the surgery and the treatment which was taken in the Holy Spirit Hospital between 09/07/2012 to 16/07/2012 on Right Knee Total Replacement was pre-planned surgery and therefore, Complainant increased the sum insured to take care of a particular disease. It is submitted that the Complainant ought to have restricted his claim to original sum insured only. It is submitted that as per the report of Dr. Manoj Gupta, marked at Exh.‘K’ as the wife of Complainant was suffering from right knee pain since 6 months before surgery which was not brought to the notice of the Insurance Company at the time of increasing sum insured which amounts to non-disclosure of material facts. It is also submitted that as per the said report knee replacement is not an emergency surgery and is always planned in advance after given trial of other conservative treatment and therefore, from the third claim Rs.66,669/- was not being payable from the sum insured amount of Rs.1,65,000/- was disallowed and fourth claim for Rs.13,519/- was not considered. It is submitted that as the said amounts were not payable as per clause no.2(A) of the policy and the Complainant has not disclosed the earlier first two claims which he had received from the Opposite Party No.1 the Complainant has not come with clean hands and therefore, the claim made in the complaint is liable to be rejected. The Opposite Party No.1 has denied all the allegations made in the complaint and prayed for dismissal of complaint with cost.
5) The Opposite Party No.2 filed written statement and contended that the Complainant is a retired employee of Opposite Party No.2. The Opposite Party No.2 have provided the Group Mediclaim Insurance Policy to their existing and retired employees to the Opposite Party No.1. It is contended that the Opposite Parties have not committed any deficiency in service as defined under Sec.2(1)(g) of the Act. The complaint filed against the Opposite Party No.2 is liable to be dismissed with exemplary cost.
6) The Complainant has filed his affidavit of evidence. The Opposite Party No.1 filed affidavit of Shri.A.D. Disouza, Manager of the Opposite Party No.1. The Opposite Party No.2 filed its written statement on affidavit of Pradeep C. Sukale, Manager (Legal & HPF). The Complainant and Opposite Party Nos.1 & 2 filed their written arguments. The parties have filed documents relating to the complaint. We have perused the said documents. We heard oral arguments of Shri. Gaurang Nallawala, Ld.Advocate for the Complainant and Shri. J.D. Karanjkar, Ld.Advocate for the Opposite Party No.1 and Shri. M.V. Damle, Ld.Advocate for the Opposite Party No.2.
7) While considering the claim made in this complaint it is undisputed that the Complainant had initially obtained Mediclaim Policy of sum insured to the tune of Rs.1,65,000/-. The Complainant in view of the documents placed on record by the Opposite Party No.1 received an amount of Rs.27,996/- as per the claim no.1 and thereafter as per claim no.2nd Rs.8577/- and Rs.1,28,427/- out of third claim of Rs.1,95,096/-. The Complainant has thus, received total amount of Rs.1,65,000/- from the Opposite Party No.1 against the total claims submitted by him of Rs.2,45,188/-. The Opposite Party No.1 by letter dtd.11/12/2012 vide at Exh.‘L’ filled with written statement at page 63-64 had specifically in our view rightly clarified that as per the terms and conditions of the policy an amount of Rs.80,188/-from the total claims submitted by the Complainant to the tune of Rs.2,45,188/- could not be settled by considering the factual position. The knee replacement of the wife of the Complainant was not an emergency surgery but it was pre-planned and as per the clause 2(A) of the terms and conditions of the policy the claim made of excess amount of Rs.1,65,000/- by the Complainant than the sum insured was not payable, as the sum insured amount of Rs.1,65,000/- was paid to the Complainant. Thus, in our view the complaint filed for the remaining claim of Rs.80,188/- cannot be held liable to be paid by the Opposite Party No.1. From the fact on record as the Complainant has not disclosed that he had received the claim of Rs.27,996/- and Rs.8,577/- which were earlier lodged on 02/05/2012 and 30/05/2012 as well as while increasing the sum insured amount failed to disclose the problem of right knee pain suffered by the Complainant’s wife since 6 months before surgery, it cannot be said that Complainant has come with clean hands. The Opposite Party No.1 had rightly settled the claim upto the sum insured amount of Rs.1,65,000/-. The submissions therefore, made by the Advocate for the Complainant that as the sum insured was increased upto Rs.3,00,000/- and the Complainant had only claimed an amount Rs.2,45,188/- from the Opposite Party No.1 and the Opposite Party No.1 ought to have paid remaining amount of Rs.80,188/-to the Complainant cannot be accepted as legal and proper. The Complainant has failed to prove any deficiency in service and unfair trade practice on the part of Opposite Party No.1. In our view as the Complainant is not entitled for the amount of Rs.80,188/-, the claim of compensation and cost prayed for in this complaint is also liable to be rejected. We therefore, pass the following order –
O R D E R
i. Complaint No.115/2013 is dismissed with no order as to cost against the Opposite Party Nos.1 & 2.
ii. Certified copies of this order be furnished to the parties.
