This complaint coming up before us for hearing on 02-05-12               in the presence of Sri V. V. Ramanuja Rao, advocate for the complainant and of Sri K.B. Prasad, advocate for 1^st opposite party, (the claim against 2^nd opposite party being dismissed as not pressed vide memo filed by the complainant) upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao,  President:-

The complainant filed this complaint under section 12 of the Consumer Protection Act seeking Rs.50,000/- being the unpaid insured amount of mediclaim; Rs.10,000/- being interest on Rs.50,000/- from 01-01-11 to 01-11-11;  Rs.10,000/- towards mental agony and Rs.3,000/- towards legal expenses from the 1^st opposite party.

2.   In brief the averments of the complaint are these:

        The complainant took mediclaim insurance policy from the 1^st opposite party in 2006 and had been regularly renewing the same till 2010.   On 30-06-10 the complainant took mediclaim policy bearing No.462300/4820/11/250MDI-ID No.150007825326 for Rs.1,00,000/- covering the period from 03-07-10 to 02-07-11 and paid Rs.4,859/- towards premium.   The said policy covered the complainant and her husband.   In December, 2010 the complainant developed a tissue on the right side of the head and the doctors after thorough medical examination opined it as “MENINGIOMA”. Advised surgical operation and referred to M/s Appollo Hospitals, Hyderabad.   The doctors at M/s Appollo Hospitals, Hyderabad performed surgery on 02-12-10 and discharged the complainant after 11 days and advised bed rest for about 4 months.   The complainant incurred Rs.2,23,285/- towards her treatment.   The complainant submitted her claim forms along with copies of previous policies and medical reports to 2^nd opposite party for process.   The 1^st opposite party paid Rs.50,000/- instead of Rs.1,00,000/- treating the subject policy as a fresh one.  The subject policy is not a case of renewed policy but is a one of continuation and extension.   The opposite party failed to comply the terms and conditions of policy and amounted to deficiency of service.   Exchange of notices took place between the complainant and the 1^st opposite party. 

3.   The complainant on 29-02-12 filed a memo not pressing the claim against the 2^nd opposite party.   Hence the claim against the 2^nd opposite party was dismissed on 29-02-12 itself.

4.   The contention of the 1^st opposite party in nutshell is hereunder:

        The complainant took the mediclaim policy in 2006 for Rs.50,000/- and enhanced the policy in June, 2010.   The complainant had under gone operation in December, 2010.  The enhancement of the policy will be a fresh one and it does not come under the purview of old one as per condition No.8 of terms and conditions.   On 21-02-12 a letter was sent to the complainant informing that she was not entitled to the enhanced amount of Rs.1,00,000/-.   The medical investigation revealed that the complainant suffered from MENINGIOMA  since one year prior to obtaining the enhanced policy. As per conditions of the policy (4.1) no coverage will be given within four years.   The complaint therefore be dismissed.

5.   Exs.A-1 to A-13 and Exs.B-1 and B-2 were marked on behalf of complainant and 1^st opposite party respectively.

6.  Now the points that arose for consideration in this complaint are:

1. Whether the policy in question was a renewal one or a                  fresh one?

        2. Whether the payment of Rs.50,000/- to the complainant                as against Rs.1,00,000/- is justified?

        3.  Whether the complainant is entitled to compensation?

        4.  To what relief?

7.   POINTS 1 and 2:-     The relevant portion in para 3 of her complaint at 1^st page is extracted below:

                “The complainant herein has been taken Medi-claim insurance    policy from the 1^st opposite party in the year 2006 and had been regularly renewing the same year after year, while so, on 30-06-10 the complainant had taken medi-claim policy bearing No.462300/4820/11/250 MDI- ID No.150007825326 for Rs.1,00,000/- for the year commencing from 03-07-10 to 02-07-11 by paying Rs.4,859/-, the policy covers medi-claim to her and as well as her husband and the sum insured for an amount of Rs.1,00,000/-.”

8.   The complainant in her affidavit mentioned that she had been in continuation of taking medi-claim policy right from 2006 every year and the same has been issued in 2010 also.  The 1^st opposite party in its version took the medi-claim policy in the year 2006 for Rs.50,000/- and enhanced the policy in June, 2010 and undergone operation in December, 2010.   It is quite appropriate to mention at this stage that the complaint as well as affidavit of the complainant was silent regarding the insured amount towards medi-claim in 2006.   It is not the specific case of the 1^st opposite party that the complainant did not renew the policy subsequent to 2006 till obtaining the subject policy.  At this stage a reference can be made to the reply given by the opposite party on 21-02-11 to the complainant (Ex.A-13) wherein it was mentioned

  “We refer to your letter cited above and it is observed that you have taken the renewal policy by enhancing the sum insured from Rs.50,000/- to Rs.1,00,000/- for the period     03-07-10 to 02-07-11 vide our above mentioned policy.”

9.     The above averments in Ex.A-13 coupled with version of the 1^st opposite party lead us to draw an inference that the complainant was renewing the policy from 2006 till obtaining the subject policy for Rs.1,00,000/-. 

10.   The contention of the opposite party is that conditions 4.1, 4.2 and 4.3 will apply to the additional sum insured.                                                                It is the case of the complainant that she took the policy in the year 2006 and was renewing it and took the policy for Rs.1,00,000/- amount in 2010. Condition 4.1 defined pre-existing health condition/disease/ailment/injuries as any ailment/disease/injuries/ health condition which are pre-existing (treated/untreated, declared/not declared in the proposal form) when the cover incepts for the first time are excluded upto 4 years of the policy being in force continuously.  At the bottom of condition 4.3 it was mentioned that if the continuity of the renewal is not maintained the Oriental Insurance Company Limited subsequent cover will be treated as fresh policy and clauses 4.1, 4.2, 4.3 will apply unless agreed by the company and suitable endorsement passed on the policy.    

11.    The 1^st opposite party in its version mentioned that the complainant took the medi-claim policy in the year 2006 for Rs.50,000/- and enhanced the policy in June, 2010 and undergone operation in December, 2010 and she was suffering from pre-existing disease.  The burden is on the 1^st opposite party to prove that the complainant suppressed from pre-existing disease by adducing cogent evidence as held in SBI Life Insurance company Limited vs. Smt D. Leelavathi and another reported in 2012 (1) CPR 232.   The 1^st opposite party relied on Ex.B-2 report dated 26-11-10 from ‘MAA’ Advanced Diagnostic and Research Centre wherein it was indicated that Sai Leela Baireddy was suffering from headache since one year.  Suffering from headache is not uncommon.  Non disclosure of temporary ailments does amount to suppression of material facts as held in LIC of India vs. Tarachand 2011 (4) CPR 122.    Being a common and temporary ailment suppression of headache could not be treated as suppression of pre-existing diseases.  The 1^st opposite party failed to prove that the complainant suffered from pre-existing disease by adducing cogent evidence.  Enhancing the insured amount did not imply suppression of pre-existing disease unless otherwise proved by cogent evidence. 

12.   In Dr. T. Suresh vs. Oriental Insurance Company Limited, New Delhi 2010 (1) ALD 536 it was held

                “The very first sentence gives an indication that in case the premium is paid without delay, renewal becomes a matter of course.   It is not alleged that the petitioner delayed the payment of premium at any pint of time.  Once the policy was taken and it is being renewed from time to time, it virtually becomes a continuous phenomenon, and any change as to the coverage that takes place in between, would not apply to the policy holder.   The change, as regards coverage, may apply to those persons who take out a policy for the first time or where, their existing policy is elapsed and a necessity has arisen to take out a fresh policy, after it…………………………………………….For the foregoing reasons, the writ petition is allowed directing that (a) the petitioner shall be entitled for reimbursement for the diseases that are included in the policy taken out  by him on 21-03-2002, and that exclusion of any disease from the list does not effect the rights of the petitioner to claim reimbursement; (b) the petitioner shall be entitled for the renewal of the policy as long as the premium for renewal is paid within the stipulated time.  This however, shall be subject to the right of the respondents to refuse the renewal on any other grounds that are available for them in law.   There shall be no order as to costs.”

13.  In Ex.A-1 policy it was mentioned “warranted that in case the person covered under the policy has lodged any claim under the previous policy and the sum insured is enhanced under the current policy, for a further claim for the same disease during the current policy, the earlier limit of sum insured shall be applicable and not the enhanced sum insured.”    It is not the case of the 1^st opposite party that the complainant herein earlier made any claim.  Under those circumstances, we are of the considered view that the complainant is entitled to the sum assured of Rs.1,00,000/-.   In view of aforementioned discussion, we answer these points against the 1^st opposite party.

14. POINT No.3:-   The complainant claimed Rs.10,000/- towards mental agony for not settling the claim properly.   No doubt not settling the claim properly by the 1^st opposite party did cause some harassment mentally to any person including the complainant.   The amount claimed as compensation has to commensurate with the injury sustained.  Considering the circumstances of the case awarding Rs.5,000/- as damages will meet ends of justice.   We therefore answer this point accordingly in favour of the complainant.

15.   POINT No.4:-   In view of above findings, in the result the complaint is allowed partly as indicated below:   

1. The 1^st opposite party is directed to pay Rs.50,000/- (Rupees fifty thousand only) together with interest @9% p.a., from the date of complaint till realisation.
2. The 1^st opposite party is directed to pay Rs.5,000/-as damages.
3. 3.  The 1^st opposite party is directed to pay Rs.1,000/- towards costs.
4. 4.  The claim against 2^nd opposite party was dismissed without costs on 29-02-12 as not pressed.
5. 5.   The amounts ordered above shall be paid within a period of six weeks from the date of receipt of the copy of the order.

        Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 7^th day of May, 2012.

MEMBER                                             MEMBER                                 PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties:

                                                                                                                                                                                                                                                PRESIDENT