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

1)        The Complainants are the legal heirs of the deceased Yogeshchandra Goyal, who was insured under the Mediclaim Policy bearing No.121100/48/2001/3963.  It is alleged that they are beneficiaries under the said policy issued by the Opposite Party.  It is submitted that the insured Yogeshchandra bought a Mediclaim Policy from the Opposite Party prior to that he was having the policy with New India Assurance Co. Ltd. for two years without any claim.  The sum insured was raised from Rs.2 Lacs to Rs.5 Lacs on 30/03/2001.  The Insured Yogehschandra was hospitalized for chest pain in Bombay Hospital from 09/08/2001 to 11/08/2001 and underwent Angioplasty on 09/08/2001. Said Yogeshchandra was diagnosed as heart disease -c– diabetic mellitus.  Yogeshchandra died on 16/10/2001.  The Complainants being his legal heirs and as such, they have filed this complaint.  The copy of insurance policy is at Exh.‘A’.

 2)        It is submitted that the claim was preferred to the Opposite Party alongwith the documents.  The Opposite Party appointed an investigator who obtained the indoor case papers from the hospital.  The claim papers and the indoor case papers were handed over by the Opposite Party to Dr. M.S. Kamath, Medico Legal Consultant who after appraisal of the papers informed the Opposite Party that two vital papers in the indoor case papers of Yogeshchandra’s admission record containing the history of ailment as first recorded by the hospital were missing.  The  Complainant No.2 by his letter dtd.15/02/2002 made representation to the Opposite Party as regards not hearing anything from the Opposite Party regarding the claim preferred by them after the death of Yogeshchandra. The Opposite Party by letter dtd.22/02/2002 informed that the first two pages of the hospital notes stating the previous history of the patient were missing and requested him to submit the same if the same were with him or endeavor to search the same with the hospital authority to enable the Opposite Party to decide on the admissibility of the claim. The Complainant by letter dtd.25/05/2002 lodged his protest against the said letter and requested for settlement of claim by the Opposite Party.  However, not receiving any reply from the Opposite Party the Complainant No.2 approached the Ombudsman by letter dtd.19/04/2002 and 13/05/2002 seeking interference for settlement of claim for Rs.2,40,000/- + interest @ 18% p.a. In the said proceeding Dr. Kamath who represented the Opposite Party deposed on 12/07/2002 that the Opposite Party was yet to get response from the hospital regarding missing pages of the indoor case papers and stated that they were following up with the hospital and they hoped to take final decision by the end of the month. It is submitted by the Complainant that on 15/07/2002 the Complainant No.2 went to the Bombay Hospital to obtain the indoor case papers but he was replied that the same would be given to the Opposite Party only.  According to the Complainant on 22/07/2002 the Complainants received the letter from the Opposite Party to get a complete set of indoor case papers and submitted it to the Opposite Party.  It is submitted that pursuant to the said letter the Complainant No.2 submitted a complete set of indoor papers of Bombay Hospital to the Opposite Party by his letter dtd.25/07/2002 with a request to inform final decision on the claim within 3 weeks.  The Opposite Party, however, by their letter dtd.07/08/2002 informed that it was very surprising that the Complainant No.2 had now been able to procure the papers although they were missing from the hospital records and under the circumstances the Opposite Party requested the Complainant No.2 to get an affidavit from the hospital that the papers located and submitted were genuine and part of hospital record.  The Complainant No.2 being aggrieved by such type of requirement by his letter dtd.23/08/2002 put forth his grievance to C.M.D. of the Opposite Party that the Opposite Party only instructed him to get the indoor case papers from the Opposite Party and not an affidavit from the Opposite Party.  He also informed that the Bombay Hospital is not a Polyclinic that anybody would go and get required document.  The Complainant No.2 also informed by the said letter that he had been to the hospital 3-4 times to get the missing papers and the Opposite Party can go to the hospital and very well verify the genuineness of the papers and also check from the concerned doctors who had signed the papers. 

 3)        It is submitted that the Ombudsman by its letter dtd.03/09/2002 asked the Opposite Party, if it was not satisfied with the authenticity of the documents submitted by the Complainant No.2 then they could very well verify the same through the Investigator already appointed by the Opposite Party.  The Ombudsman therefore, directed to send the final decision of the Opposite Party to the Complainants after verifying the authenticity of the documents submitted by the Complainant No.2.  It is submitted that the Ombudsman vide its order dtd.31/10/2002 directed to decide the admissibility of the claim in question within 15 days after due verification with the hospital to its own Investigation/Medico Legal Consultant about the genuineness of the hospital record submitted by the Complainants to the Opposite Party.  The copy of the said award is Annexed as Exh.‘A’- ‘B’.  

 4)        It is submitted that the Opposite Party after receipt of the directives from the office of the Insurance Ombudsman informed the Complainant No.2 that their Medico Legal Consultant Dr. M.S. Kamath, held that the claim still does not become payable and therefore, the Opposite Party had repudiated its liability as per the instructions from Medico Legal Consultant.  The Opposite Party therefore, closed the file as ‘No Claim’.  The copy of the said letter dtd.29/01/2003 is at Exh.‘C’.

 5)        It is submitted that thereafter, again the Complainant approached the Insurance Ombudsman’s office by their letter dtd.31/03/2003, 30/02/2003 and 10/03/2003, however, the Opposite Parties neglected and failed to settle the claim of the Complainants.  The Complainant’s thereafter issued notice through advocate to the Opposite Party.  The xerox copy of the notice dtd.21/04/2004 is at Exh.‘D’.

 6)        According to the Complainants, the act and attitude of the Opposite Party in respect of the Complainant is deficiency of service. The Opposite Party failed to comply the directions given by Insurance Ombudsman vide order dtd.30/10/2002.  The Opposite Party failed and neglected the genuine claim of the Complainants inspite of submission of all relevant documents.  The Complainants therefore, prayed that the Opposite Party be directed to pay Rs.2,40,000/- with interest @ 18% p.a. from the date of claim till realization of the said payment.  It is also prayed that they be awarded the cost of this proceedings.

 7)        The Opposite Party filed written statement and contested the claim. It is admitted that Mr. Yogeshchandra Goyal availed the Mediclaim Policy issued by the Opposite Party since 30/03/2000 for a period of 1 year.  The policy was thereafter renewed.  The sum assured under the policy was initially Rs.1,50,000/-.  It was then raised from Rs.2 Lacs to Rs.5 Lacs on 30/03/2001 at the time of taking policy the insured had declared in the proposal form that he was healthy and not suffering from any ailment.  The copy of the said form is at annexure ‘B’.

 8)        In August, 2001, the insured was reportedly admitted from 06/11/2001 to 06/12/2001 at Nanavati Hospital for treatment of I.S.C.H.V.M.I.C. Heart Disease (IHD- reduced blood supply to the heart).  A claim under the scheme of about Rs.2, 35,000/- for hospitalization expenses and treatment of the above was made to the Opposite Party on 30/08/2001. [These pleadings are totally incorrect].  It is contended that as it is the standard practice in mediclaim the Complainant was asked to submit all the hospital papers (including indoor case papers) in original to the Opposite Party for scrutiny of the claim. The said medical papers were then scrutinized by the officers and panel of doctor.  It is contended that the insured has brought his indoor case papers as per the request of the Opposite Party but it was noticed that important pages pertaining to the history of the patient were missing. It is contended that the Complainants have annexed the indoor case papers of the hospital admission at page 35-55 with their complaint. The Opposite Party immediately appointed Dr. M.S. Kamath, its Medico Legal Consultant to investigate the matter who reported that the indoor case papers as per record of the Bombay Hospitals where the patient was admitted were not in order and two pages were not in the original file.  Thereafter the Opposite Party wrote to Bombay Hospital and asked the status of the missing pages.  The hospital did not reply to it, then Dr. Kamath approached the medical record department of the hospital on several occasions and even spoke to the dean of the hospital Dr. D.K. Goyal but they expressed their inability to help in any way.   According to the Opposite Party they however, refused to give any statement in writing.  The Opposite Party then asked the insured to get the papers from hospital.  The insured out of the blue produced two sheets of papers purporting to be missing from indoor case papers of the Bombay Hospital pertaining to his admission in the hospital. The Opposite Party then asked the insured to prove that those papers are genuine as the hospital was stating that the papers referred to were missing from their file.  The Opposite Party asked the insured to bring an affidavit from the hospital that the papers are genuine and correct.   As the insured did not produce the affidavit from the said hospital regarding the authenticity of the papers which he had produced, the Opposite Party therefore, did not process the claim on the basis of unapproved documents.

 9)        It is contended that thereafter the Complainant wrote to the Insurance Ombudsman to arbitrate in the matter and take decision in the Complainants case, the said authority passed an award dtd.31/10/2002. It is contended that once the Ombudsman passed an award there can be no dual proceedings on the same subject matter and on that count the complaint deserves to be dismissed.

 10)      The other facts and allegations made by the Complainants have been specifically denied.  It is contended that the question of deficiency of service does not arise.  It is contended that the repudiation of the claim were based on the sound principles of common sense and good application of insurance law.  The Opposite Party rejected the claim in view of the fact that the Complainants have produced      unverified papers in support of the claims.  It is contended that the complaint is barred by time.  It is also barred by principle of resjudicate and as award on the same facts has been passed by the Insurance Ombudsman.  It is therefore, submitted that the complaint be dismissed by applying Sec.26 of the Consumer Protection Act, declaring the complaint is false and vexatious.

 11)      The Complainants have filed affidavit of Complainant No.2 in support of the case of the Complainants.  The Opposite Party vide affidavit of Gaurang Pandya, Divisional Manager, in support of its contention.  The Complainants filed its written arguments.  The Opposite Party also filed its written argument.  On perusal of the case record it appears that earlier this Forum had decided the present complaint vide order dtd.07/08/2009 and partly allowed the complaint.  The record also shows that the said order was challenged by the Opposite Party before the Hon’ble State Commission in First Appeal No.1168/2009 which was decided by the Hon’ble State Commission on 08/03/2011.  By the order of Hon’ble State Commission the appeal was allowed and the order/award passed by this Forum dtd.07/08/2009 was quashed and set aside as the same was disposed of by two members one of whom was Incharge president but it was not disposed of by the President or Members. The Hon’ble State Commission remitted back the present complaint for deciding afresh after hearing both the parties by the President and Member or Members sitting with him. Thereafter, in this complaint the arguments are heard by the President & Member on 14/06/2013. We heard the Ld.Advocate Shri. Navin Seth, for the Complainants and Shri. Dinesh Gupta, Ld.Advocate for the Opposite Party.

 12)      The Opposite Party has contended that the complaint is not filed within limitation and therefore, the same is barred by time.  In our view the said contention cannot be accepted as the record of the case shows that the Complainants have filed the application to condone the delay and this Forum vide its order dtd.22/09/2008 condoned the delay in preferring the complaint of 3 months 20 days. The said contention therefore, is now not required to be considered as the same has become redundant. 

 13)      It is contended by the Opposite Party that in view of the decision of the Ombudsman and as the Complainants had recoursed to the process of arbitration before the Insurance Ombudsman and as it had passed an award.  There can be no dual proceedings on the subject matter for the same reliefs before any other Court, Tribunal or Commission.  It is also contended that it is barred by the principle of resjudicata.  In our view the said objection is also devoid of merits.  In view of the observations relied by the Complainants in the case of Sajjan Kumar Sroff  V/s. United India Insurance Co. Ltd., 2007 CTJ 978 (CP) (SCDRC) wherein it is observed as under –

“The National Commission has dealt with the similar issue in the case of Kamleshwari Prasad Sing V/s. National Insurance Co. Ltd., 2005 CTJ 747 (CT).  The National Insurance Co. after having considered the redressal of Public Grievances Rules, 1998, concluded that the Ombudsman is to act as Counsellor and Mediator in the matters.  If the recommendations made by the Ombudsman are accepted by the Complainant, the Ombudsman shall send the award alongwith acceptance letter of the Complainant and to ask the Insurance Company to comply the award. If the complaint is not settled by the agreement, the Ombudsman can pass an awards which he thinks fair in the facts and circumstances of the case.  The award is required to be sent to the Insurance Company and if it is accepted by the insured in writing letter of acceptance is full and final settlement of his claim; the insurer is required to comply with the award.  If the award is not accepted by the Complainant then the Insurance Company may not implement the said award. The National Commission held that the decision of the Ombudsman is not binding on the Complainant and the decision of the Insurance Company to repudiate the claim is subject to adjudication by the Fora constituted under the Consumer Protection Act, 1986.”

             Considering the above observations we find that the objection raised by the Opposite Party in that regard is devoid of merits. 

 14)      While considering the claim made by the Complainants in respect mediclaim of their father            Yogeshchandra under the mediclaim policy obtained by him on 30/03/2001, it appears that the Opposite Party has not disputed that he had obtained the said policy for the period 30/03/2001 to 29/03/2002 and the sum assured under the said policy was of Rs.5 Lacs.  It is also undisputed that Yogeshchandra was hospitalized for chest pain in Bombay Hospital from 09/08/2011 to 11/08/2001 and underwent Angioplasty on 09/08/2001. It is undisputed that Yogeshchandra i.e. father of the Complainants thereafter died on 16/10/2001. It appears that thereafter, on 15/02/2002, the Complainant No.2 lodged the claim before the Opposite Party regarding the medical expenditure incurred by Yogeshchandra i.e. his father. The Opposite Party then appointed an Investigator, Dr. Kamath, Medico Legal Consultant who did not find 2 missing papers of the medical treatment provided to the father of Complainants.  He also did not find the said papers in the Bombay Hospital.  The Opposite Party then informed by letter dtd.22/02/2002 to Yogeshchandra Goyal (who was not alive at the relevant time) to produce the first two pages of the hospital regarding clinical notes stating the previous history of the patient.  Pursuant to this the Complainant No.2 submitted a complete set of indoor case papers of Bombay Hospital alongwith his letter dtd.25/07/2002.  Thereafter, the Opposite Party had taken different stand and the Complainant No.2 then approached to Ombudsman.  The Ombudsman by its decision 31/10/2002 after giving opportunity to both the parties made following observations -

“It is for the Company to prove fraud if authenticity of the documents is suspected by it.  The insured or claimant cannot be called upon to obtain affidavit from a third party like that of a Hospital.  There is force in the contention of the Complainant that Company can again suspect the genuineness of the affidavit even if it is submitted while the Company’s anxiety to protect the public exchequer from fraud is understandable.  It cannot close its eyes to the contractual obligation and establish principles of law and shift the onus on the other party to keep the settlement indefinitely pending.”    

             In the aforesaid order it was directed to the Opposite Party to decide the admissibility of the claim within 15 days after due verification with the hospital through its own investigator of the hospital records submitted by the Complainant to the Opposite Party.  It is pertinent to note that the Opposite Party vide letter at Exh.‘C’ dtd.29/01/2003 informed to the Complainant No.2 that as per advice of Medico Legal Consultant Dr. M.S. Kamath, the claim does not become payable and the Opposite Party have repudiated its liability as per the instructions from Medico Legal Consultant.  The Opposite Party has though named Dr. Kamath, but the Opposite Party did not file what report he as an Investigator submitted to the Opposite Party.  The copy of that report is also not submitted in this proceeding.  Furthermore, the Opposite Party vide letter dtd.22/07/2002 addressed to Yogeshchandra has specifically requested to kindly get a complete set of indoor case papers pertaining to his case from the Bombay Hospital where he was admitted for treatment and on submission of those papers by Complainant No.2 the Opposite Party twisted its stand, which is rather inconsistent to its earlier request made to Yogeshchandra.  The Opposite Party did not stop there but also requested to obtain the affidavit from the Hospital regarding the genuineness of the medical papers.  Considering all these facts we hold that the stand taken by the Opposite Party as regards the genuineness of the medical papers placed on record by the Complainant No.2 to the Opposite Party is totally improper and wrong.  The repudiation on that count and without report of Investigator - Dr. Kamath, as well as not producing any record as to how even after the direction of Ombudsman what efforts the Investigator had made as regards verification of the hospital records and the genuineness regarding the case papers placed on record by the Complainant No.2 cannot be safely accepted. The Opposite Party has not placed on record any contrary documents to that effect and thus, the submission made by the Advocate for the Complainants that the Opposite Party has rejected the claim on flimsy grounds can be accepted. The submission made by him relying on the judgment in the case of Oriental Insurance Co. Ltd. V/s. Ozma Shipping Co. & Ors. 2009 ACJ 2791 wherein the Hon’ble Supreme Court held that the Insurance Companies in genuine and bonafide claim should not avoid payment on one pretext or the other is perfectly applicable to the facts of this case.   In the result we hold that the claim made in the complaint of Rs.2,40,000/- is necessary to be allowed with interest @ 9% p.a. from the date of repudiation i.e. 29/01/2003 till realization of the said amount.  The complainants are entitled for cost of Rs.5,000/- from the Opposite Party.  In the result following order is passed –

O R D E R

i.                    Complaint No.92/2005 is partly allowed against Opposite Party.

ii.                 Opposite Party is directed to pay Rs.2,40,000/- (Rs. Two Lacs Forty Thousand Only) to the Complainants with interest @ 9% p.a. from 29/01/2003 till actual payment.

iii.               Opposite Party is directed to pay cost of Rs.5,000/- (Rs. Five Thousand Only) to the Complainants.  

iv.               The Opposite Party is directed to comply with the above order  within one month from the date of service of this order.  

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