Date of Filing: 05/07/2011
Date of Order: 24/08/2011
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20
Dated: 24th DAY OF AUGUST 2011
PRESENT
SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT
SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER
SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER
COMPLAINT NO. 1226 OF 2011
Smt. U.C. Anupama,
No.13, Vasuki Nilaya,
Nagarabhavi 2nd Stage,
Behind Jubilee International Public School,
Papa Reddy Palya,
BANGALORE.
(Rep. by Advocate R.Krishna) Complainant.
-V/s-
The Branch Manager,
M/s. Oriental Insurance Company Limited,
Audugodi Branch, # 6, 7th Main, Above Food World,
80 feet Road, Koramangala, III Block,
BANGALORE-560 034.
(Rep. by Advocate Sri.M.B.Chandra Chooda) Opposite party.
BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT
ORDER
The brief antecedents that lead to the filing of the complainant made Under Section 12 of the Consumer Protection Act, seeking direction to the opposite party to pay a sum of Rs.1,23,304/-, are necessary:-
The complainant had obtained medi-claim policy frm the opposite party covering the risk of sicknesses and medical treatment. The latest policy is valid for the period between 30.12.2010 to 30.12.2011. The complainant suffered abdominal pain intermittently. She was examined by the doctors at M/s. Manipal North Side Hospital and was admitted as an inpatient between 26.01.2011 to 30.01.2011 and was operated for total abdominal Hysterectomy on 27.01.2011. As the complainant was entitled for the reimbursement she made the claim through the authorized third party auditor M/s. Raksha TPA Private Limited along with the claim form on 07.02.2011. She was informed that the amount will be paid before April-2011. The complainant claimed Rs.73,304/-. On 06.04.2011 the opposite party repudiated the claim on untenable grounds. The complainant replied explaining in detail the falsity of the claim of the opposite party. The opposite party has not honoured the same. It is deficiency in service. Hence the complainant is entitled to refund of the amount of Rs.73,304/- along with compensation of Rs.50,000/-. Hence the complaint.
2. In brief the version of the opposite party are:-
The repudiation of the claim as under Exclusion clause 4.1 is absolutely justified. The opposite party had issued the medi-claim policy for the period between 31.12.2008 to 30.12.2009. The cheque issued by the complainant towards the said policy has been dishonoured hence the said policy had been cancelled by the opposite party on 15.01.2009. The complainant has obtained a fresh medi-claim policy for the period between 31.12.2009 to 30.12.2010 and thereafter the policy was obtained for the period between 31.12.2010 and 30.12.2011. The complainant by obtaining the policy dated: 31.12.2009 has submitted the proposal form and in the said proposal form the present disease has not been disclosed and hence there is suppression of the material facts. The discharge summery issued by the Manipal North side Hospital dated: 26.01.2011 specifically refers to the disease suffered by the complainant is since two years. Even otherwise the medi-claim insurance policy was not in existence for continuous two years. All the allegations to the contrary are denied.
3. To substantiate their respective cases the parties have filed their respective affidavits and documents. The arguments were heard.
4. The points that arise for our consideration are:-
- Whether the repudiation of the claim by the opposite party amounts to deficiency in service/unfair trade practice?
- What order?
5. Our findings on the above points are:-
Point (A):In the Positive
Point (B) : As per the final order
For the following:-
REASONS
POINT (A) to (B):-
6. Reading the pleadings in conjunction with the affidavits and documents on record, it is an admitted fact that the complainant had obtained medi-claim policy from the opposite party towards her risk of sickness and medical treatment. It is also an admitted fact that the complainant had obtained medi-claim policy for the period from 31.12.2008 to 30.12.2009, 31.12.2009 to 30.12.2010 and from 31.12.2010 to 30.12.2011. That means for three continuous years the policy is in existence.
7. The main contention of the learned counsel for the opposite party is that the policy issued between 31.12.2008 to 30.12.2009 was cancelled, since the cheque issued by the complainant with respect to the office was dishonored. This is an untenable contention. The opposite party itself at Annexure-R2 has filed an internal e-mail correspondence dated: 29.07.2011 at 12.40 PM made between one office of the opposite party and another office of the opposite parties. The said e-mail reads thus:-
Subject: Fwd: policy status/422800/48/2009/2803
Dear Sir,
We wish to inform you that the above policy was issued to Ms. U.C.Anupama by collecting a premium of Rs.761/- vide cheque no.996108 dt 29.12.2008 for the period from 31.12.2008 to 30.12.2009 and the same is receipted vide collection no.5130008236 dt 31.12.2008. Subsequently, the cheque got dishonored on 12.01.2009 and the policy the was cancelled by us on 15.01.2009. We have informed the insured about the same.
We have issued a fresh policy no.422800/48/2009/3075 on 28.01.2009 i.e. after a lapse of 29 days, by collecting cash of Rs.761/-.
We are sending you the copy of 64 VB and policy copy with end for your reference and doing the needful in the matter.
This is the document of the opposite party itself that means though the cheque was dishonoured earlier, after lapse of 29 days collecting an additional amount of Rs.761/- the opposite party have reissued a fresh policy for the same period. That means the policy for the period in question was not cancelled by the opposite party. The contention of the opposite party that the said policy between 31.12.2008 and 30.12.2009 was cancelled is an untenable contention. After collecting additional amount of Rs.761/- the policy was re-issued. That means the policy started from 31.12.2008 and it is being renewed or enhanced every year and the policy is in existence between 31.12.2008 and 30.12.2011. That means the policy has not been broken and it is in existence for three consecutive years.
8. Further it is an admitted fact that the complainant was admitted to Manipal North Side Hospital on 26.01.2011 for abdominal pain and she was operated for abdominal Hysterectomy on 27.01.2011 and was discharged from that hospital on 30.01.2011 and she has spent Rs.73,304/- towards the hospitalization and medical charges and this has been repudiated by the opposite party on the ground of pre-existing disease firstly. Now let us consider whether the contention of the opposite party that there was a pre-existing disease is justified or not. The relevant portion of the discharge summery reads thus:-
PRESETING COMPLAINTS:
C/o. Pain in right part of lower abdomen since 2 years. Pain is intermittent, dragging type in nature, severe in intensity and non radiating in nature. USG shows Right ovarian cyst. Patient underwent USG guided aspiration in August-2010. Repeat USG shows recurrence of the cyst and adenomyosis. Not associated with bladder, menstrual or bowel disturbances.
MENSTRUAL HISTORY:
LMP: 25.01.2011 Menstrual cycle: 3-4 days/28-30 days. Dysmenorrhoea present.
OBSTETRIC HISTORY:
1st Pregnancy: LSCS-Baby died after 5 days.
2nd Pregnancy: Termination of Pregnancy.
Ind: Molar pregnancy.
3rd Pregnancy: LSCS-female-9 ½ years old now.
4th Pregnance: LSCS wit Tubectomy with right ovarian cystectomy-Female-3 years.
MEDICAL HISTORY:
Underwent Left Oophorectomy in 2004.
Ind: Twisted ovarian cyst.
Underwent Tubectomy with Right ovarian cystectomy in 2007
No past h/o HTN/DM/Asthma/Thyroid disorders.
FAMILY HISTORY: Father is Hypertensive.
ON EXAMINATION:
A 38 year old lady moderately build, & nourished.
No pallor/pedal oedema, Pulse-80 min, BP-106/70 mm of Hg.
Breast/Thyroid: Normal
CVS-S1, S2 +
RS: Clear P/A-Soft,
On the complainant complained of pain in the abdomen since two years intermittent, dragging type. But no pallor/pedal oedema, was present. That means there was no cyst present since two years. This is the findings of the doctor. Cyst has been developed subsequent to obtaining the policy and she was operated. Hence it cannot be said the complainant had suppressed her cyst in the abdomen and hence the opposite party is entitled to repudiate the claim.
9. The complainant was operated for Hysterectomy i.e., cyst in the abdomen. Cyst will not be known to the complainant unless some doctor on examination tells her and there is cyst and it has to be operated. Here the complainant was not known anything about the cyst. When she had not been known any cyst in her abdomen how can she disclose it to the opposite party? Merely taking a stray sentence in the discharge summery without reading it properly and examination by the Doctor the opposite party cannot repudiate the claim of the complainant on the ground of pre-existing disease. The opposite party has not produced any record to show that the complainant was having cyst in her abdomen since two years prior to the policy dated: 31.12.2008. There is no such plea or proof by the opposite parties. They have not produced the proposal form of policy of 31.12.2008. Hence this repudiation on this ground is nothing but deficiency in service and unfair trade practice. The other contention of the opposite party is that Under Clause 4.1 of the conditions of the policy being allegedly violated. This is nothing but an untenable contention. This contention is with respect to the pre-existing disease that is cyst. This is already been discussed supra. The same under holds the water.
10. The other contention is that since the policy of 31.12.2008 and 30.12.2009 has been cancelled the policy of 31.12.2009 to 30.12.2010 is the fresh policy as such the policy of 31.12.2010 and 30.12.2011 will not amounts to 2 years continuation of the policy and hence the claim is rejected by the opposite party. This is nothing but an untenable contention. Already discussed supra that the policy of 31.12.2008 and 30.12.2009 was in existence by issuing a fresh policy by the opposite party. Hence this contention is an untenable contention.
11. The other contention of the opposite party is that earlier the sum assured was certain amount and it was enhanced in the subsequent policies, hence the policy is a fresh policy. This is an untenable contention. It is not the amount assured that matters itself, the policy for a particular cause i.e., medi-claim that matters and not any other matter in this case, it is a medi-claim that has been obtained by the complainant. Hence the repudiation is nothing but an unfair trade practice and deficiency in service.
12 The insurance is made by the party so that at the time of exigencies it may come to their rescue. In large number of cases this medi-claim will be an income to the insurance companies only in a very few cases the insurance companies have to pay certain amounts that is peanut, even it is paid the net will be profit to the insurance companies. Insurance is service to the society. The opposite parties have forgotten the meaning and purpose of the insurance as rightly contended. Be that as it may. Hence we hold the above points accordingly and proceed to pass the following:-
ORDER
1. The complaint is Allowed-in-part.
2. The opposite parties are directed to pay to the complainant a sum of Rs.73,304/- together with interest thereon at the rate of 12% per annum from 06.04.2011 until payment within 30 days from the date of this order.
3. The opposite parties are also directed to pay Rs.2,000/- to the complainant towards cost of this litigation.
4. The opposite parties are directed to send the amounts as ordered at Serial Nos. 2 & 3 above through DD by registered post acknowledgment due to the complainant and submit the compliance report to this Forum with necessary documents within 45 days.
5. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
6. Send a copy of this order to both parties free of costs, immediately.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 24th Day of August 2011)
MEMBER MEMBER PRESIDENT
