PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
Present complaint is filed by the Complainant for himself and on behalf of his father. The Complainant’s father had taken Mediclaim Policy from National Insurance Co.Ltd. bearing no.101100/48/2000/8503112 on 13/03/2000 for himself and for his wife. Said policy was for period of 1 year. The sum assured under the said policy given to the Complainant’s father was Rs.50,000/- and for mother was Rs.25,000/-. The policy was renewed for furtherperiod of one year. In the year 2002 the Complainant started residing with his parents and then he obtained mediclaim policy bearing no.131000/34/06/20/00002650 on 20/02/2002 from Opposite Party No.1 for himself and his parents. There was no break in the mediclaim policy taken from the Opposite Party No.1. Sum assured to the father of the Complainant was Rs.50,000/-. Subsequently the Complainant got enhanced assured sum for his father from Rs.50,000/- to 2,00,000/-. The said policy was also renewed. Alongwith the complaint, the Complainant has produced photo copy of mediclaim policy dtd.20/02/2002.
2) It is the case of the Complainant that his father developed hip pain therefore, his father visited various hospitals for treatment thereof. For the first time on 26/06/2007 the Complainant’s father was advised by doctor for hip joint replacement. The Complainant gave information of the aforesaid matter to the Opposite Party No.1. On 26/06/2007 Complainant’s father was admitted in Ganga Hospital at Coimbator, Tamilnadu and he underwent the Hip Joint Replacement Surgery. The Complainant incurred expenses of Rs.2,26,036/- in the aforesaid hospital. After discharge from the hospital, the Complainant submitted Claim Form to the Opposite Party No.2 alongwith medical case papers and bills. Opposite Party No.2 is a TPAof Opposite Party No.1. Opposite Party No.2 rejected genuine claim of the Complainant’s father on the alleged ground of pre-existing disease. The Complainant’s father vide letter dtd.08/10/2007 requested Opposite Party No.1 for re-consideration of his claim. Opposite Party No.2 asked the Complainants father for certain documents vide their letter dtd.20/10/2007 and in response to the said letter the Complaint’s father submitted the documents to the Opposite Party. The Complainant’s father informed Opposite Party that initially he had taken mediclaim policy in the year 2000 and that time he was not suffering from any disease. Mediclaim policy taken from National India Insurance Company Ltd. was transferred from Opposite Party No.1 – New India Insurance Co.Ltd. on 20/02/2002 much prior to the expiry of the period of earlier policy. Complainant’s father had mediclaim policies since 2000.
3) It is submitted that alongwith letter dtd.04/03/2008 Opposite Party No.2 forwarded a cheque of Rs.62,500/- to the Complaint’s father. The Complainant’s father had preferred claim of Rs.2,26,036/- however, Opposite Parties have sanctioned only sum of Rs.62,500/-. Sum assured under the insurance policy was Rs.2,00,000/-. After receipt of aforesaid letter Complainant vide their advocates letter/notice dtd.18/03/2008 returned said cheque to the Opposite Party No.2 and called upon to allow total claim of Rs.2,26,036/-. Opposite Parties have not complied with the aforesaid notice therefore, the Complainant has filed this complaint before this Forum.
4) the Complainant has requested to direct Opposite Parties to pay to the Complainant a sum of Rs.2,26,036/- alongwith interest @ 24 % p.a. from 26/06/2007 till realization of entire amount. The Complainant has prayed to direct Opposite Parties to pay sum of Rs.5,00,000/- as compensation for mental agony and Rs.50,000/- towards cost of this proceedings.
5) Opposite Party No.1 has filed written statement and thereby resisted claim of the Complainant contending interalia that there is no substance in the allegations made in the complaint and complaint deserves to be dismissed with cost. Opposite Party No.1 has admitted that mediclaim insurance policy mentioned in the complaint was given to the Complainant and his parents under which sum assured was Rs.50,000/- each person. It is further admitted that Complainant’s parents were mediclaim policy holders from 13/03/2000. It is admitted that sum assured to the Complainant’s father under mediclaim policy was enhanced from Rs.50,000/- to 2,00,000/-. According to the Opposite Party No.1 in aforesaid mediclaim policy issued by them, no mediclaim cover was given to the Complainant and his parents for pre-existing disease. Pre-existing diseases were especially excluded under clause 4.1 of the mediclaim policy.
6) It is alleged by the Opposite Party that after scrutiny of the documents Opposite Party No.2 noticed that the Complainant’s father was suffering from joint hip pain disease since 6 years. The Complainant and his father suppressed aforesaid material fact from Opposite Party and got increased sum assured from Rs.50,000/- to 2,00,000/-. Therefore, on the ground of suppression of material facts the complaint deserves to be dismissed with cost.
7) As per the Opposite Party No.1 Complainant’s father was suffering from pain in left hip since 6 years and therefore, claim was rejected. After representation made by the Complainants’ father his claim was again reconsidered and Opposite Party No.2 vide their letter dtd.04/03/2008 had sent cheque of Rs.62,500/- to the Complainant’s father. In the letter it was specifically stated that “Amount payable restricted for Arthritis left Hip as per the documents provides the beneficiary has a history pain in hips since 6 years, hence, the amount payable restricted of Rs.65,000/-“.
8) Opposite Party No.1 has denied all the allegations made in the complaint. It is submitted that after considering the representation Opposite Party No.2 sent a cheque for Rs.62,500/-, however, the Complainant refused to accept the said amount. In such circumstances it cannot be said that there is deficiency in service on the part of Opposite Party No.1. It is contended that the Complainant is not entitle to recover Rs.2,26,036/- or compensation of Rs.5,00,000/- or any other amount from the Opposite Party. It is contended that the complaint deserves to be dismissed with cost.
9) Opposite Party No.2 was duly served with the notice of this complaint. However, Opposite Party No.2 failed to appear before this Forum and has not filed written statement.
10) Alongwith complaint, the Complainant has produced documents at Exhibit – “A” to “H”, photo copy of General Power of Attorney and affidavit in support of the complaint. The Complainant has also produced photo copy of mediclaim policy issued by the National Insurance Company Ltd. Opposite Party No.1 has filed pursis stating that the written statement to be treated as their written argument.
11) Heard oral submissions of Ld.Advocate Mr.Chaitanya Jadhav for the Complainant and Ld.Advocate Mr.R.M. Bhandari for Opposite Party No.1. Opposite Party No.2 was absent.
17) 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 amount of Rs.2,26,036/- with interest @ 24 % p.a., compensation of Rs.5 Lakh and cost of this proceedings as claimed in the complaint ? | As per final order. |
Reasons :-
Point No.1 :-From the documents produced on the record following facts appears to be undisputed fact that the Complainant’s father and mother had obtained mediclaim policy from National Insurance Co.Ltd. on 13/03/2000. Said policy was for the period of 1 year. Sum assured under the said policy was Rs.50,000/- for the Complainant’s father and Rs.25,000/- for Complainant’s mother. Aforesaid policy was renewed for further period of 13/03/2001 to 13/03/2002. It is admitted fact that the Complainant obtained mediclaim policy from the Opposite Party – New India Assurance Co.Ltd. on 20/02/2002 bearing policy no. 131000/34/06/20/00002650. Iinitially sum assured under the aforesaid joint family mediclaim policy was Rs.50,000/- each. Subsequently sum assured to the father of Complainant was increased from Rs.50,000 to 2,00,000/- The Complainant has produced photo copy of mediclaim policy issued by the Opposite Party No.1 to the Complainant and his family members in which sum assured stated against the name of Complainant’s father is Rs.50,000/- + 1,50,000/- i.e. Rs.2,00,000/-.
As per the Complainant, about in the year 2007 his father developed hip pain and visited various hospitals for treatment thereof. The Complainant’s father was advised by doctor for hip joint replacement. On 27/06/2007 Complainant’s father underwent hip joint replacement surgery in Ganga Hospital at Coimbator, Tamilnadu. The Complainant gave information of the aforesaid matter to the Opposite Party No.1. It is submitted that the Complainant’s father has incurred expenses of Rs.2,26,036/- for hospitalization. After discharged from the hospital the Complainant submitted Claim Form to the Opposite Party No.2 alongwith medical case papers and bills. The Complainant has produced photo copy of claim form alongwith complaint at Exhibit – “C”. It appears that Complainant’s father had claimed Rs.2,26,036/- towards medical expenses from Opposite Party No.1.
It is not in dispute that Opposite Party No.2 rejected aforesaid claim on the ground of pre-existing disease under exclusion clause 4.1 of the policy. Subsequently Complainant’s father made representation and his claim was reconsidered by Opposite Party and then Opposite Party sanctioned sum of Rs.62,500/- to the Complainant’s father. Claim settlement voucher dtd.04/03/08 sent by Opposite Party No.2 is produced by the Complainant at Exhibit-“G” to the complaint. In the Remarks column it is stated that “Amount payable restricted for Arthritis left Hip as per the documents provides the beneficiary has a history pain in hips since 6 years, hence, the amount payable restricted of Rs.65,000/-“. It is submitted on behalf of the Complainant that during relevant period in the mediclaim policy issued by Opposite Party No.1 sum assured to the Complainant’s father was Rs.2,00,000/- According to the Complainant, Complainant’s father was not suffering from any Arthritis left hip since 6 years as alleged by Opposite Parties. It is contented that Complainant’s father for the first time suffered hip joint pain in the year 2007. In letter dtd.05/11/07 addressed to Raksha TPA Pvt.Ltd. - Opposite Party No.2. by the Complainant’s father it is stated that he had pain in the left hip about 6 years ago and that time he consulted a general practitioner in Kalkatta and he was advised to try some pain killers like Paracetamol and Voveran. The pain was subsided with the pain killers and no further investigations and treatment was required. Since there was no trouble and in the month of April, 2007 he felt pain in left hip so he consulted Dr.Rajsekaran of Ganga Hospital at Coimbator, Tamilnadu and as per doctors advise he underwent hip joint replacement surgery at Ganga Hospital at Coimbator, Tamilnadu.
It is submitted on behalf of Opposite Party No.1 that the Complainant was suffering from pain in hip since 6 years. In support of the contention Ld.Advocate for Opposite Party No.1 has relied upon letter dtd.20/10/07 of Opposite Party No.2 addressed to the father of Complainant. Submitting that in the letter it is specifically stated that after scrutiny of claim papers they noticed that the Complainant’s father was suffering from pain in the left hip since 6 years therefore, aforesaid claim was rejected. Subsequently on representation made by the Complainant’s father, case was reconsidered and after scrutiny of papers Opposite Party No.2 sanctioned said claim at Rs.62,500/-. It is submitted that there is no deficiency in service on the part of Opposite Parties.
It is clear from the evidence that initially Complainant’s father had obtained mediclaim policy for himself and is wife from National Insurance Co.Ltd. on 13/03/2000 and the said policy was for the period of 1 year. Said policy was renewed for the period of 1 year i.e. upto 13/03/2002. The Complainant obtained mediclaim policy from Opposite Party No.1 for himself and for his parents from 20/02/2002 i.e. before expiry of earlier policy taken from National Insurance Co.Ltd. Initially sum assured of Joint Mediclaim Policy of Complainant’s father was Rs.50,000/- and subsequently it was increased to Rs.2,00,000/-. Said policy was renewed from time to time. The Complainant has produced photo copy of mediclaim policies upto 20/02/07 to 19/02/08. Sum assured under the said policy to the Complainant’s father Mr.Omprakash was Rs.50,000/- + Rs.1,50,000/- i.e. Rs.2,00,000/-. Cumulative Bonus of Rs.37,500/- is recorded against name of Complainant’s father. It is the case of the Complainant that in the month of April Complainant’s father had suffered hip joint pain and underwent hip joint replacement surgery at Ganga Hospital at Coimbator, Tamilnadu. The Complainant’s father incurred total expenses of Rs.2,26,036/- and accordingly he claimed said amount from Opposite Party. Initially Opposite Parties rejected his claim on the alleged ground of pre-existing disease however, subsequently they have sanctioned part of the claim i.e. Rs.62,500/-.
Absolutely there is no evidence on record to show that about 6 years prior to hip joint replacement surgery the Complainant’s father had suffered Arthritis left hip. As per Opposite Party at the time of scrutiny of case papers of hospitalization it was notice that the Complainant’s father was suffering from Arthritis of left hip in the year 2000. Aforesaid papers of Ganga Hospital at Coimbator, Tamilnadu are not produced on record. Further it is well settled that mere history recorded in the discharge summery is not sufficient proof for rejection of mediclaim. In the instant case Opposite Party has partly allowed claim to the extent of Rs.62,500/-. There is no evidence to support allegations of pre-existing disease made in the claim settlement voucher dtd.04/05/08. No proper reason is assigned as to why claim was restricted to Rs.62,500/- when sum assured to the Complainant’s father during the relevant period under mediclaim policy was Rs.2,00,000/- ? Besides that, cumulative bonus recorded in the name of Complainant’s father was Rs.37,500/-. Therefore, considering the facts on record we hold that settlement of claim at Rs.62,500/- by the Opposite Parties was not justifiable and it amounts to deficiency in service on the part of Opposite Parties and therefore, we answer point no.1 in the affirmative.
Point No.2 :- As discussed above about in the month of June, 2007 the Complainant’s father incurred expenses of Rs.2,26,036/- for hip joint replacement surgery at Ganga Hospital at Coimbator, Tamilnadu. During relevant period sum assured under the mediclaim policy to Complainant’s father was Rs.2,00,000/- and cumulative bonus recorded against his name was Rs.37,500/- therefore, we hold that the Complainant is entitled to recover Rs.2,26,036/- from the Opposite Parties.
The Complainant has claimed interest @ 24 % p.a. on aforesaid amount from 26/02/2007. Interest claimed by the Complainant is at exorbitant rate. Considering the facts and circumstances of the case we think it just to direct Opposite Parties to pay interest on Rs.2,26,036/- @ 9 % p.a. from 04/03/08 till realization of entire amount to the Complainant.
The Complainant has claimed Rs.5,00,000/- as compensation for mental agony from the Opposite Parties. The amount claimed by the Complainant is exorbitant and without any justification. We think it just to direct Opposite Parties to pay Rs.5,000/- as compensation for mental agony to the Complainant.
The Complainant has claimed Rs.50,000/- as cost of this proceeding from the Opposite Parties. Considering the nature of proceeding we think it just to direct Opposite Parties to pay Rs.1,000/- as cost of this proceeding. Hence, 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.138/2009 is partly allowed.
ii. Opposite Parties Nos.1 & 2 shall jointly and/or severally pay an amount of Rs.2,26,036/- (Rs.Two Lakhs Twenty Six Thousand Thirty Six Only) to the
Complainant with interest @ 9 % p.a. on aforesaid amount from 04/03/2008 till realization of entire amount to the Complainant.
iii.Opposite Parties Nos. 1 & 2 shall jointly and/or severally pay an amount of Rs.5,000/- (Rs.Five Thousand Only) as compensation for mental agony and
harassment and Rs.1,000/- (Rs.One Thousand Only) as cost of 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.
