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

1)        The Complainant has prayed that it be held that the Opposite Parties are guilty of deficiency in service and unfair trade practices as per the provisions of the Consumer Protection Act, 1986 (hereinafter referred to as the Act).  The Complainant has further prayed that the Opposite Party be directed to pay Rs.72,606/- to the Complainant with interest @ 18% p.a. from 25/11/2009 till its realization.  The Complainant has also prayed that an amount of Rs.1,00,000/- may be granted towards compensation for mental agony and Rs.50,000/- towards the expenses incurred by the Complainant for this complaint.

2)        According to the Complainant, she has  opted for  the  insurance  policy  of  the Opposite Party No.1 initially in the year 1991 thereafter, the same was continued and renewed till the filing of the complaint.  The copy of the insurance policy relevant to the dispute in this complaint is marked as Annexure - ‘C-1’ under which the sum insured was of Rs.3,00,000/-.  The Complainant operated in Nagvekar Eye Clinic for Cataract on Left Eye on 01/10/2009 for which she had incurred expenses of Rs.72,606/-.  The copies of the related medical bills and medical papers are marked as Annexure - ‘C-2’.  The Complainant submitted the claim form to the Opposite Parties on 25/11/2009 and requested to settle the claim at earliest.  The copy of the claim form submitted to the Opposite Parties is Annexure - ‘C-3’.  The Opposite Party No.2 sanctioned Rs.46,106/- vide letter dtd.14/12/2009 and balance amount of Rs.26,500/- was repudiated. The Opposite Party No.2 sent cheque dtd.11/12/2009 to the Complainant.  The copies of the letter of Opposite Party No.2 and cheque are marked as Annexure - ‘C-4’.  It is submitted that the Complainant raised strong objection to the Opposite Parties orally as well as in writing and returned the cheque issued by the Opposite Party No.2 by letter dtd.24/05/2010.  The Complainant also raised strong objection for deducting an amount of Rs.1,500/- which she paid for Anesthesiologist.  The Opposite Party No.2 finally repudiated the claim of total amount of Rs.72,606/- and justified the payment offered by the Opposite Party No.2 of Rs.46,106/-by its letter dtd.24/06/2010 which is Annexure - ‘C-7’.  According to the Complainant, as the sum insured under the insurance policy of Rs.3,00,000/- the Complainant was entitled for the reimbursement of Rs.72,606/- from the Opposite Parties. The Complainant has therefore, alleged that the Opposite Parties have wrongfully repudiated the claim lodged by the Complainant. The Complainant has therefore, prayed for the above reliefs mentioned in para 1 of this order against the Opposite Parties.

3)        The Opposite Parties No.1 & 2 filed their separate written statement and justified the action on the part of the Opposite Party No.2 of settling the claim for Rs.46,106/- against the total claim amount of Rs.72,606/-.  It is contended that the deduction was made in view of policy clause 3.13.  It is contended that after careful scrutiny of all relevant documents alongwith a comparative analysis of existing tariffs structure of major hospitals the maximum amount payable for Cataract Surgery was Rs.40,000/- and accordingly an amount of Rs.46,106 was settled against the claim lodged by the Complainant.  It is thus, contended that there is no unfair trade practice on the part of the Opposite Parties and the Opposite Parties are not guilty of deficiency of service.  The Opposite Parties therefore prayed to dismiss the complaint with cost.

4)        The Complainant has filed her affidavit of evidence.  The Opposite Party No.1 filed affidavit of evidence of Lata S. Iyer and Opposite Party No.2 has filed affidavit of evidence of Prasad Laxman.  The Complainant and the Opposite Parties filed their written arguments.  We heard oral arguments of the Ld.Advocate Smt. Rashmi Manne for the Complainant and Smt. Kalpana Trivedi, Ld.Advocate for the Opposite Parties.  We have perused the documents placed on record.

5)        While considering the claim lodged by the Complainant to the Opposite Parties, it is necessary to be considered that the Opposite Party No.1 by Annexure - ‘C-1’ agreed that she that the sum insured towards the claim of the Complainant only Rs.3,00,000/-.  In the Annexure - ‘C-1’ it is mentioned that the date of issuance of first policy is 17/07/1991. It is undisputed that the Complainant had incurred total expenditure for her left eye cataract operation to the tune of Rs.72,606/- and the necessary documents in support of her claim were produced by the Complainant to the Opposite Party No.2 on 25/11/2009. The Opposite Party No.2 by letter dtd.14/12/2009 (Annexure - ‘C-4’) offered an amount of Rs.46,106/- by mentioning that as per reasonability clause Rs.40,000/- has been passed as total package rate for single eye cataract (i.e. on hospital bill only).  The Complainant did not encashed the cheque and returned the same by letter dtd.24/05/2010 to the Opposite Party No.2.  According to the Opposite Parties, as per policy clause no.3.13 which runs as under –

            “Customary and reasonable charges means the charges for healthcare, which is consistent with the prevailing rate in an area or charged in a certain geographical area for identical or similar services.”        

            The Opposite Parties by quoting this clause of the policy deducted the amount of Rs.26,500/- from the claim lodged by the Complainant.  The Opposite Parties however, have not produced any chart showing that the prevailing rate in the area where the Complainant was operated i.e. Santacruz (W), near Nagvekar Eye Clinic were at the relevant time were less than Rs.65,000/- which have been charged by Nagvekar Eye Clinic for Cataract Operation. Furthermore, as the Complainant has obtained the policy prior to 1996 and in the mediclaim insurance policy (01/09/1996) the term of clause 3.13 which is relied by the Opposite Parties was not there thus, the Opposite Parties cannot insist to accept the claim of reduced amount as offered in the letter dtd.14/12/2009.  The Opposite Parties have not filed any consent letter of the Complainant for changes in the policy status and terms and conditions of the earlier policy. We therefore, hold that the Opposite Parties had acted arbitrarily while deducting the claim lodged by the Complainant by pointing out clause no.3.13 of the new policy.  In this context we have to take into consideration the observations of the Hon’ble Supreme Court in the case of Bimal Krishna Bose V/s. United India Insurance Co. Ltd., III (2001) CPJ 10 (SC), wherein it is observed as under –

           “A renewal of insurance policy means repetition of the original policy.  When renewed, the policy is extended and the renewed policy in the identical terms from a different date of its expiration comes into force.  In common parlance, by renewal, the old policy is revived and it is sort of a substitution of obligations under the old policy unless such policy provides otherwise.  It may be that on renewal, a new contract comes into being, but the said contract is on the same terms and conditions as of the original policy.”

            The submissions therefore, made by the Ld.Advocate for the Opposite Parties Smt. Kalpana Trivedi that as the copies of new policies were served upon the Complainant and therefore, the Complainant had accepted the terms and conditions of the new policy cannot be accepted as legal and proper.  The Advocate for the Complainant has relied the cases – 1) New India Assurance Co. Ltd. V/s. M/s. Ramchandran & Co., 1986 – 2002 Consumer  5699 (NS) decided by National Commission on 20/08/2001 (Revision Petition No.712 of 1997).  2) M/s. Modem Insulators V/s. Oriental Insurance Co. Ltd., I (2000) CPJ 1 (SC).  In our view the said cases and the observations therein are not applicable to the facts of this case.  However, as discussed above we hold that the deduction made by the Opposite Party No.2 relying upon clause 3.13 of the policy is arbitrary as the Opposite Parties have not produced on record the documentary proof of comparative prevailing rates in the area where the Complainant was operated i.e. near Nagvekar Eye Clinic, Santacruz (W) to prove its contention that the Complainant has claimed exorbitant amount and the proper amount as offered by the Opposite Party to the tune of Rs.46,106/-is just and proper and payable to the Complainant. In the result we hold that the Complainant is entitled for the amount of Rs.72,606/-with interest @ 6% p.a. from 24/11/2009 (the date of lodging of claim) till its realization. The Complainant has claimed compensation of Rs.1,00,000/- for mental agony suffered by her.  We find that the said amount claimed is exorbitant and an amount of Rs.15,000/- would be justified on this count.  The Complainant has also claimed cost of Rs.50,000/- towards this proceeding.  It is also exorbitant amount and an amount of Rs.5,000/- towards cost of this proceeding would be justified.  In the result the following order is passed –

O R D E R

i.        Complaint No.324/2010 is partly allowed against Opposite Parties.

ii.       The Opposite Parties are directed to pay Rs.72,606/- (Rs. Seventy Two Thousand Six Hundred Six Only) with interest @ 6% p.a.

          from 24/11/2009 till its realization to the Complainant. 

iii.      The Opposite Parties are directed to pay Rs.15,000/-(Rs. Fifteen Thousand Only) as compensation to the Complainant towards 

          agony suffered by her and cost of Rs.5,000/- (Rs. Five Thousand Only) towards this proceeding.

iv.      The Opposite Parties are directed to comply the aforesaid order within one month from the date of receipt of this order.  

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