1. This is an appeal filed by New India Assurance Co. against the judgment and award dated 26/03/2008 passed by District Consumer Forum, South Mumbai in CC No.228/06. While allowing the complaint, the Forum below directed the appellant herein to reimburse the amount of Rs.1,41,568/- with interest @9% p.a. from the date of complaint till actual realization. The Forum also directed to pay Rs.25,000/- as compensation and Rs.5000/- towards cost. Aggrieved by this order, the Insurance Co. has filed this appeal.
2. We heard submissions of Adv.Mrs.K.R Trivedi for appellant and Adv.Ashok Singh for Respondent. We are finding that Respondent had purchased two policies from appellant insurance Company, one was personal accident policy and domiciliary Hospitalization benefit policy bearing No.112800/48/03/20/ 5000496 for the period 23.6.2003 to 22.06.2004 and another Personal Accident policy bearing No.112800/48/04/20/70050041 for the period 23.6.2004 to 22.06.2005 for insured sum of Rs.2 lac each. On 26.2.2004 he met with an accident and he had taken medical treatment. Again in May,2004 he again got multiple fracture in an accident and was required to take treatment. Respondent filed claim with the Insurance Company for reimbursement of the expenditure. However, the said claim under policy bearing No.112800/48/04/20/70050041 was repudiated by the Insurance Co. under clause 4.10 of the terms and conditions of the policy. But in respect of claim under policy bearing No.112800/48/03/20/5000496, sum assured was 2 lac + there was cumulative bonus of Rs.60,000/- and this policy was paid by the appellant.
3. The complainant had filed Consumer Complaint in respect of policy No.112800/48/04/20/70050041(75041) policy period 23.-6.2004 to 22.06.2005 and hospitalization charges for the period 20.09.2004 to 22.09.2004 were claimed amounting to Rs.81,186/- This claim was rejected by the Insurance Co.. on the ground that there was pre existing disease. It was the contention of the appellant before the Forum below that Respondent was suffering from osteoporosis since 10-12 years. This contention was on the basis of report of the investigator appointed by the appellant namely ESSEX Investigations, who had allegedly recorded the statement of the Respondent himself. This report is at page 41 & 42. However, in the statement allegedly recorded by the ESSEX Investigations, the complainant has nowhere admitted that he was suffering from osteoporosis before taking policy in question. ESSEX Investigations nowhere consulted Dr.S.I.Hussain of Bandra. The affidavit of Dr.Hussain is not filed by the Insurance Co. before the Forum nor there was affidavit of M/s ESSEX Investigations. In the circumstances, relying on the ESSEX Investigations report, in our view, the Insurance Co. erroneously disallowed the claim of the Respondent so far as claim of amount of Rs.81,186/- is concerned.
4. There was no relevant and cogent proof placed on record to prove that Respondent was suffering from osteoporosis as alleged by the Insurance Company and this is proving to be fatal to the appellants own case. In the circumstances, we are of the view that the Forum has rightly allowed the complaint. But while allowing the complaint partly, the Forum below directed the Insurance Co. to pay the amount of Rs.1,41,568/- though under the said policy, amount payable by the Insurance Co. was Rs.81,186/- only. In the circumstances, by allowing the appeal partly, the amount awardable to the Respondent will have to be reduced from Rs.1,41,568/- to Rs.81,186/- and to this extent only appeal will have to be allowed by this Commission partly. In the circumstances, we pass the following order…
ORDER
1. The appeal is partly allowed.
2. In place of amount of Rs.1,41,568/- as mentioned in operative para No.1 of the impugned order, we direct that O.P.No.1 shall pay an amount of Rs.81,186/- with interest @9% p.a. from 04/04/2006 till realization.
3. Rest of the order is confirmed.
Pronounced on 28/02/2011
