PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
It is averred in the complaint that the Complainant has filed this complaint against the New India Assurance Co. Ltd. - Opposite Party No.1 and also against D.O. and TPA of the Opposite Party No.1 having their address mentioned in the title. It is averred that the Complainant is an individual policy holder of Opposite Party No.1 which is being issued through Opposite Party No.2 and process through Opposite Party No.3. Opposite Party No.2 is a Divisional Office of Opposite Party No.1. Opposite Party No.3 is a TPA of Opposite Party No.1.
2) In the month of April, 2000, the Complainant obtained Hospitalisation and Domiciliary Hospitalisation Benefit Policy issued by Opposite Party No.1 through Opposite Party No.2 bearing Policy No.140100/48/00/00315 for himself, his wife and daughter for Rs.1,50,000/- each for himself and his wife and Rs.75,000/- for his daughter. The aforesaid policy was for the period of one year. The Complainant renewed aforesaid policy from time to time without any break. In the policy for 10/04/05 to 09/04/06 cumulative bonus of Rs.37,500/- is recorded against the name of Complainant. The Complainant has produced photo copy of the aforesaid Hospitalisation and Domiciliary Hospitalisation Benefit Policy for the period of 10/04/05 to 09/04/06 alongwith complaint at Exh.‘C-1’.
3) According to the Complainant, at the inception of aforesaid policy in the year 2000 he was not suffering from any ailment and he had disclosed all material information regarding his health to the Opposite Party. In the month of September, 05 the Complainant started suffering from stomachache and breathlessness and therefore, approached Dr. Pramod D. Thorawade, who after checkup prescribed medicine to the Complainant on 19/09/05. According to the Complainant inspite of taking aforesaid medicine his stomachache and breathlessness continued so he approached Cumballa Hill Hospital where the Complainant was being diagnosed for 2D Echo Cardiography by Dr. Saurabh Goel, who in his report dtd.21/09/05 stated his conclusion as “Normal Echo and Doppler Study”.
4) According to the Complainant, despite the above report he was suffering from stomachache and breathlessness therefore, he again consulted Dr. P.D. Thorawade on 29/10/05 who referred Complainant to Dr.Sangeeta Matang for sonography of Abdomen. Dr. Sangeeta Matang conducted sonography and issued report dtd.08/11/05 stating that Complainant’s health as fully normal. Again in the month of January, 06, the Complainant approached one Dr. Purushottam Dad, a Consultant Physician, who recommended the Complainant to take the medicines mentioned in prescription dtd.30/01/2006.
5) The Complainant after under going OGD Scopy in Hiranandani Hospital in February, 06 and on the advise of the doctor Bhooshan Pandit he got admitted in Holy Family Hospital, Bandra (W), for Angiography CAG. He further underwent diagnose for IHD, Hypertension, Triplevessel Coronary Artery disease, OPCABG X3 GRAFTS at the Asian Heart Institute, which were done on 10/03/06 and the Complainant was discharged on 16/03/06. In the discharge card of the Asian Heart Institute history of the patient it is stated that “the patient is known case of HTN since 2-3 year, IHD since March, 2006 was apparently alright upto 6 month back. Then he started feeling breathlessness on exertion…… Hence, he was advised CAVG and admitted for the same and further management in AHIRC.
6) On 16/03/06 Asian Heart Institute issued bill of medical treatment of Rs.2,66,280/-. However, Complainant (restricted his claim to the limit of assured sum of Rs.1,50,000/- and cumulative bonus i.e. Rs.37,500/- in the claim form dtd.31/03/05 submitted to the Opposite Party No.3. Opposite Party No.3 vide its letter dtd.31/03/06 repudiated claim under the exclusion clause no.4.1 stating that as per medical record, the Complainant is known case of hypertension since 1989. According to the Complainant, Opposite Parties have heavily relied upon Personal Information Proforma dtd.06/03/06 filled up by relative. However, Asian Heart Institute in its discharge summary has clearly stated that “Patient is known case of HTN since 2-3 years, IHD since March, 06”. According to the Complainant, Opposite Parties have wrongly repudiated his genuine claim. Repudiation is not well reasoned and justified and therefore, the Complainant has prayed to direct Opposite Party to reimburse to the Complainant a sum of Rs.1,87,500 with interest @ 18 % p.a. on aforesaid amount from 3103/06 till realization of entire amount to the Complainant. The Complainant has prayed for Rs.50,000/- as compensation for mental agony and Rs.20,000/- towards cost of this compliant. Alongwith complaint, the Complainant has produced copies of the documents as per list of document and affidavit in support of the complaint.
7) Opposite Party No.1 has filed written statement and thereby resisted claim of the Complainant contending that there is no cause of action against the Opposite Party No.1 and therefore, name of the Opposite Party No.1 be deleted from the complaint. According to the Opposite Party No.1 Hospitalisation and Domiciliary Hospitalisation Benefit Policy was issued to the Complainant by Opposite Party No.2 – The New India Assurance Co. Ltd., having its Divisional Office at Santacruz (W), controlled by Mumbai Regional Office - MRO – II. Opposite Party NO.1 has not issued policy in question therefore, no relief can be claim against Opposite Party No.1. It is submitted that this Forum has no territorial jurisdiction to entertain and try this complaint, so complaint is liable to be rejected.
8) Opposite Party No.2 has filed separate written statement and thereby resisted claim of the Complainant. Opposite Party No.2 has admitted that the Complainant is a ‘Consumer’ as defined under Consumer Act. Opposite Party No.2 has denied allegation of deficiency in service and it is submitted that the Complainant has taken Hospitalisation and Domiciliary Hospitalisation Benefit Policy through Opposite Party No.1 for himself, for his wife and daughter for the first time in April, 2000. It is admitted that the Complainant has renewed aforesaid policy from year to year after payment of necessary premium. Opposite Party No.2 has denied averment made in the complaint that at the time of inception of policy the Complainant was not suffering from any ailment.
9) Opposite Party No.2 has justified decision of repudiation of Complainant’s claim submitting that Asian Heart Institute in the admission policy request note as mentioned HTN since 1989. Opposite Party No.3 after application of mind has repudiated claim of the Complainant in accordance with the clause no.4.1 of the mediclaim policy. Reasons for repudiation of claim were informed to the Complainant in the repudiation letter itself. The Complainant was suffering from HTN since 1989 i.e. even prior to the inception of policy dtd.10/04/2000. Pre-exiting ailments are excluded under clause no.4.1 of the Hospitalisation and Domiciliary Hospitalisation Benefit Policy. As per medical record the ailment suffered by the insured is a complication hyper tension from which the insured is suffering from last 17 years.
10) According to the Opposite Party No.2 history of the ailment is always given by the patient to the treating Doctor at the time of admission. Opposite Party No.2 has admitted that in the discharge summery the hospital has recorded that the patient is suffering from HTN for last 2-3 years. They have denied allegation of the Complainant that admission request note is not signed by the Complainant. It is alleged that Complainant has not come with clean hands. There is no deficiency in service on the part of Opposite Party No.2 and therefore, Opposite Party No.2 is not liable to pay amount claimed by the Complainant. The Complainant is not entitled to claim any relief from Opposite Party No.2 and therefore, complaint deserves to be dismissed with heavy cost.
11) Alongwith written statement Opposite Party No.2 has produced xerox copy of admission request note, discharge card of Holy Family Hospital, copy of repudiation letter, terms and conditions of mediclaim policy, etc.
12) Opposite Party No.3 was duly served with the notice but inspite of service with the notice Opposite Party No.3 has not appeared before this Forum so on 27/07/09 ex-parte order was passed against Opposite Party No.3.
13) The Complainant has filed affidavit of evidence. Opposite Party No.1 has also filed affidavit of evidence. The Complainant has filed written argument. Heard Ld. Advocate Ms. R. Manne for the Complainant and Ld.Advocate Smt. Sapna Bhuptani for Opposite Party No.1. Ld.Advocate Smt. Sapna Bhuptani for Opposite Party No.1 has vehemently submitted that in this case no cause of action took place within the territorial jurisdiction of this Forum and therefore, this Forum has no territorial jurisdiction to entertain and decide this complaint. Issue of jurisdiction raised by the Opposite Party No.1 goes to the root of the matter. Therefore, following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether this Forum has territorial jurisdiction to entertain try and decide this complaint ?
Findings : No
Point No.2 : Whether the Complainant is entitled to recover Rs.1,87,500/- with interest, compensation and cost of this
proceeding from the Opposite Party as prayed for ?
Findings : No
Reasons :-
Point No.1 :- It is averred in the complaint that the Complainant has obtained Hospitalisation and Domiciliary Hospitalisation Benefit Policy issued by Opposite Party No.1 through Opposite Party No.2 bearing Policy No.140100/48/00/00315 for himself, his wife and daughter for Rs.1,50,000/- each for himself and his wife and Rs.75,000/- for his daughter. For the first time in April, 2000 the Complainant has paid premium and aforesaid policy was renewed regularly after payment of necessary premium. Alongwith the complaint, the Complainant has produced copies of two insurance policies, first policy is for the period 10/04/03 to 09/0404 and the second policy from 10/04/05 to 09/04/06. It appears from the contents of both the policies that the aforesaid policies were issued by Opposite Party No.2 – The New India Assurance Co. Ltd. – Jeevan Seva, 2nd floor, Santacruz, Mumbai -400 054. Nowhere in the policy it is mentioned that policy was issued by Opposite Party No.1 – The New India Assurance Co. Ltd., Mumbai Regional Office – I, New India Bhavan 34/38, Bank Street, Fort, Mumbai – 400 023. The Complainant has produced copy of the receipt payment of premium. It is clear from the contents of the receipt that premium was paid to Opposite Party No.2 having addressed at Jeevan Seva, 2nd floor, Santacruz, Mumbai. Opposite Party No.1 in its written statement has clearly stated that policy in question was not issued by Opposite Party No.1 to the Complainant. According to Opposite Party No.1, Opposite Party No.2 having its division office situated at Santacruz (W) controlled by Mumbai Regional Office – MRO II has issued the policy. It is submitted on behalf of Opposite Party No.1 that there is no cause of action against Opposite Party No.1 and Opposite Party No.1 unnecessarily joined as a party with sole intention to file this complaint before South Mumbai District Consumer Disputes Redressal Forum.
Ld.Advocate for the Complainant has submitted that Opposite Party No.2 is a branch office of Opposite Party No.1 and the Complainant has obtained mediclaim policy from Opposite Party No.1 through Opposite Party No.2. The Complainant has not produced proposal form filled for obtaining insurance policy in question. There is nothing on record to show that proposal form was submitted Opposite Party No.1. On the contrary Opposite Party No.1 has clearly stated that Opposite Party No.1 has not issued policy mentioned in the complaint. As mentioned above the copies of insurance policy produced by the Complainant clearly disclose that policies were issued by Opposite Party No.2 and for the said policy premium was paid to Opposite Party No.2. Absolutely there is no evidence on record to support averment contend in the complaint that Complainant obtained mediclaim policy in question from Opposite Party No.1 through Opposite Party No.2. On the contrary it is clearly from the document on record that policy in question was issued by Opposite Party No.2 after receipt of premium from the Complainant. The Complainant had submitted claim to Opposite Party No.3 who is a TPA of Opposite Party No.1. There is nothing on record to show that any part was played in this transaction by Opposite Party No.1. Office of Opposite Party No.2 is situated at Santacruz which is not within the jurisdiction of this Forum. Claim of the Complainant was rejected by Paramount Health Services Pvt. Ltd. Office of Opposite Party No.3 is situated at 54A, Chakala, Andheri (E), Mumbai. Opposite Party of Opposite Party No.3 is also outside the territorial jurisdiction of this Forum. Ld.Advocate Smt. Sapna Bhuptani for Opposite Party No.1 has submitted that cause of action or any part of cause of action has not taken within territorial jurisdiction of this Forum. The New India Assurance Co. Ltd. is a big company having its branches throughout India. Opposite Party No.1 is not Head Office of New India Assurance Co., but it is Regional Office. Opposite Party No.2 is not subordinate to Opposite Party No.1. There are several regional and divisional offices of the New India Assurance Co. in Mumbai. It is vehemently submitted that even though Opposite Party No.1 has no concern with the insurance transaction mentioned in the complaint, the Complainant with fraudulent intention has joined Opposite Party No.1 as a party to this proceeding so as to file complaint before South Mumbai District Consumer Disputes Redressal Forum. According to the Ld.Advocate Sapna Bhuptani, Opposite Party No.2 & 3 offices are situated outside the jurisdiction of this Forum. Cause of action or part of the cause of action has not taken place within territorial jurisdiction of this Forum. Therefore, this Forum has no jurisdiction to decide this complaint. Ld.Advocate Sapna Bhuptani for Opposite Party No.1 has relied upon decision of the Hon’ble Supreme Court, Sonic Surgical ….. Appellant V/s. National Insurance Co. Ltd.… .. Respondent. In the aforesaid case the Hon’ble Supreme Court has held that “In our opinion, an interpretation has to be given to the amended Section 17(2)(b) of the Act, which does not lead to an absurd consequences. If the contention of the learned counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Gauhati or any where in India where a branch office of the insurance company is situated. We cannot agree with this contention. It will lead to absurd consequences and lead to bench hunting. In our opinion, the expression ‘branch office’ in the amended Section 17(2) would mean the branch office where the cause of action has arisen.
In this case no cause of action or part of the cause of action took place within the jurisdiction of this Forum. Office of Opposite Party No.1 is situated within territorial jurisdiction of this Forum, but there is no cause of action against Opposite Party No.1. It appears that only with intention to file complaint before this Forum, the Complainant has joined Opposite Party No.1 as party to this proceeding even though Opposite Party No.1 had no concern with the suit transaction. Therefore, we hold that this Forum has no territorial jurisdiction to entertain, try and decide this complaint. Hence, we answer point no.1 in the negative.
Point No.2 : As this Forum as no territorial jurisdiction to decide this complaint, the complaint deserves to be rejected and as such, the Complainant is not entitled to claim any relief against the Opposite Party from this Forum for want of jurisdiction. Therefore we answer point no.2 in the negative.
For the reasons discussed above, for want of territorial jurisdiction complaint is liable to be rejected. Therefore, we pass the following order -
O R D E R
i.Complaint No.90/2007 is hereby rejected for want of territorial jurisdiction.
ii.No order as to cost.
iii.Certified copies of this order be furnished to the parties.
