Ex-P A R T E   O R D E R

PER SHRI. S.S. PATIL - HON’BLE MEMBER :

1)        This is the complaint regarding deficiency in service on the part of Opposite Parties as they wrongly  repudiated the legitimate claim of the Complainant as per clause 4.8 of the policy as alleged by the Complainant.

            The facts of this complaint as stated by the Complainant are that the Complainant had taken Health Plus Medical Expenses Policy bearing No.020100/48/12/00004343 valid from 15/08/2007 to 14/08/2008, from Opposite Party No.2.  He himself alongwith his wife was the insured persons and the sum insured was Rs.3 Lacs each.  The Opposite Party No.2 came with a new health policy known as Individual Health Insurance Policy, on 14/08/08 for sum of Rs.4 Lacs.  This policy has been renewed by him from time to time.  The last one being valid till 14/08/2012 without any break.

 2)        The Complainant has further stated that he visited to his family Physician on 07/02/2010 for fever and chest congestion.  The physician prescribed some test.  The Complainant underwent these tests at Rishabh Diagnostic Centre.  On 08/02/2010 he was admitted in Bhatia Hospital for chest pain, fever & cough.  He was diagnosed for Lt. sided acute pneumonia with alveolar proteinosis.  He was in hospital for 12 days.  After discharge he was advised for complete bed rest.  The Complainant paid Rs.1,44,639/- for his hospitalization (from 08/02/2010 to 20/02/2010). On 27/03/2010, the Complainant submitted his claim to the Opposite Parties.  He was informed vide letter dtd.25/09/2010 by Opposite Party No.1 that the claim is not tenable under clause 4.8 of the policy. The Complainant then requested the Opposite Party No.1 to reconsider the claim but the Opposite Party vide its letter dtd.02/11/2010 again rejected the claim on the same ground.  The clause 4.8 reads as under -

            “Convalescence, general debility, run down condition or rest cure, congenital, external diseases or defects or anomalies, sterility, venereal diseases, intentional self injury and use of intoxication drugs/Alcohol.” 

            It is the contention of the Complainant that, the Opposite Party have wrongly interpreted this clause and wrongly repudiated his claim.    

 3)        The Complainant has further stated that, the Opposite Parties have failed to prove that the acute pneumonia caused to the Complainant due to drinking and smoking.  Inspite of knowing the history of the Complainant the Opposite Party No.2 was continuously accepting the premium and renewing the policy. Dr. Pratit Samdani, MD, attending the Complainant had denied that the pneumonia caused to the Complainant is not related to drinking & smoking.  Even the Opposite Parties have not filed any experts opinion to the effect that the pneumonia caused to the Complainant was due to alcohol or due to smoking.  

4)        The Complainant  has  finally  prayed  that  the  Opposite  Party  be  directed  to reimburse the expenses of Rs.1,44,639/- to the Complainant incurred by him for his hospitalization alongwith interest, Rs.1 Lac compensation for mental agony, and cost of this complaint.  The Complainant has attached the xerox copies of the following documents alongwith his complaint.-

1) Insurance                                                                                                                                                                                               2)  Test reports of the Complainant given by Rishabh Diagnostic Centre.

3)  History sheet provided by Bhatia Hospital.

4)  Medical Bills.

5)  Claim.

6)  Repudiation letter of the Opposite Party.

7)  Letter dtd.02/11/2010.

8)  Certificate dtd.05/10/2010.

9)  Notice.

 5)        The complaint was admitted and notices were duly served on the Opposite Parties.  Inspite of service of notice, the Opposite Party remained absent before this Forum.  Hence, an ex-parte order was passed vide rozanama dtd.05/03/2012.  The Complainant then filed his affidavit of evidence and written argument wherein he reiterated the facts mentioned in his complaint and finally prayed to allow his complaint.  We heard the Ld.Advocate of the Complainant and perused the papers submitted by the Complainant and our findings are as follows.

 6)        The Complainant was having a Mediclaim Policy of the Opposite Party No.2. During the validity of this policy, he was hospitalized for acute pneumonia and incurred expenses of Rs.1,44,639/-.  He submitted his claim on 27/03/2010.  But the Opposite Party No.2 repudiated his claim vide letter dtd.25/09/2010.  The repudiation letter of Opposite Party No.2 is as under –

            “We are in receipt of your claim documents.  As per available documents patient was admitted for Complainant’s Left upper zone/MZ Pneumonia with effusion with alcohols and chronic smoker, had undergone treatment for the same. As per available treating consultant letter, patient is chronic alcoholic ad chronic smoker from many years.  As any expenses related to treatment or complications arising due to alcoholic or intoxication substance are not payable under medical policy hence, this claim stands non-payable under exclusion clause 4.8.”     

“Exclusion Clause 4.8 convalescence, general debility, run down condition or

rest cure, congenital external disease or defect or anomalies sterility, venereal disease, intentional self injury and use of intoxicating drugs alcohol, acute pneumonia.”

 7)        We have thoroughly scrutinized the papers of the hospitalization of Bhatia Hospital where the Complainant was admitted.  In all the bunch of papers and particularly in discharge card, the Complainant was admitted for acute pneumonia Left sided Complainant alveolar proteinosis.  Only the history sheet of the said hospital the column personal history the smoking and alcohol is tick marked as ‘?’.  On this tick mark the Opposite Party No.2 has manipulated his letter and stated in its letter mentioned above that “As per available documents patient was admitted for complaints of Lf. Upper zone/MZ phenomena with efflusion with alcohol ad chronic smoker.  We do not find this alcoholism & chronic smoker anywhere in the papers.  The Opposite Party No.2 has also surreptitiously added the words “acute pneumonia” in exclusion clause 4.8 wherein these words acute pneumonia is not in that clause.  This certainly amounts to adopting unfair trade practice by the Opposite Parties.

 8)        The treating doctor Shri. Pratit Samdani has clearly stated in his letter dtd.05/10/2010 that the patient “Mr.Shantilal Jain, as per history is a social drinker/smoker this pneumonia is not related to this.”

 9)        Clause 4.8 states “Expenses incurred for the following causes are not payable (excluded).

            “Convalescence, general debility, run down condition or rest cure congenital external disease or defect or anomalies, sterility, veneral disease, intentional self injury and use of intoxicating drugs/alcohol.”

            It appears that the Opposite Party No.2 has taken shelter of the last word alcohol i.e. use of alcohol is excluded.  However, both the Opposite Parties have forgotten to note that the Complainant was not hospitalized for using alcohol.  The fact is that the Complainant was hospitalized for acute pneumonia and not for use of alcohol.  Therefore, certainly the exclusion clause does not apply to the preset case and the Opposite Parties cannot take shelter of this clause and repudiate the mediclaim of the Complainant.

 10)      What is more objectionable is that the Opposite Party No.2 in his letter dtd.25/09/2010 has added the words ACUTE  PNEUMONIA  in clause 4.8 in fact these words are not there in clause 4.8.  Therefore, the Opposite Party No.2 is also guilty of adopting unfair trade practice.

 11)      Therefore taking into consideration, the above said facts and circumstances; there is deficiency in service on the part of Opposite Parties as they repudiated the claim of the Complainant on wrong ground. The Complainant is entitled for his mediclaim of Rs.1,44,639/- with interest. The Complainant must have sustained mental agony and he must have run from pillar to post to get his claim.  Therefore, he is entitled for the compensation for mental agony, inconvenience and harassment due to deficiency in service on the part of Opposite Party.  he is also entitled for the cost of this complaint.  However, his prayer of compensation for mental agony and cost of the complaint is exorbitant.  Therefore, in our candid view a compensation of Rs.25,000/- and cost of Rs.5,000/- will be just and proper to meet the ends of justice.  Hence, we pass the order as follows –

                                                                                                            O R D E R

            1.    Complaint No.312/2011 is partly allowed.

2.          The Opposite Parties are directed to reimburse to the Complainant jointly and/or severally a sum of Rs.1,44,639/-(Rs.One Lac Forty Four Thousand Six Hundred Thirty Nine Only) with interest @ 9% p.a. from 27/06/2010 till its payment (as the Opposite Parties were supposed to settle the claim within 3 months of the receipt of the claim from the insurance).

3.         The Opposite  Parties  are  also  directed  to  pay  to  the Complainant jointly and/or severally a compensation of Rs.25,000/-(Rs.Twenty Five Thousand Only) for the mental agony, inconvenience and harassment caused to the Complainant due to deficiency in service and unfair trade   practice adopted by the Opposite Parties.  

4.         The Opposite Parties are also directed to pay to the Complainant jointly and/or severally a sum of Rs.5,000/-(Rs. Five Thousand Only) towards the cost of this complaint.

5.         Opposite Parties  are  directed  to  comply  with  the  above said order jointly and/or severally within 30 days of the receipt of this order.

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