Date of Filing            : 30/09/2010

Date of Admission   : 05/10/2010

Date of Judgment    : 23/05/2013

 

Sou. Layata Shashikant Shah,

Age 60 years, Occup.- Household

R/o “Lobhas”, Opp. Rajmati Bhavan,

Neminath Nagar, Sangli,

Tal. Miraj Dist. Sangli                                                               ……. COMPLAINANT

 

1. Reliance General Insurance Co.Ltd.,

2. Medi, Assit. India Pvt.Ltd.,

 

 

 

 

 

 

 

1.         The instant complaint u/s 12 of the Consumer Protection Act, 1986 has been filed by the complainant, alleging unfair trade practice and defective service on the part of the respondent, in repudiating the medi-claim submitted by the complainant and she has claimed the amount of Rs.87,575/- alongwith interest @ 18 p.c.p.a. from 22/8/09 till the date of realization of the entire amount. She has also prayed for the direction to the respondent to pay an amount of Rs.50,000/- towards mental strain, stress, harassment and monetary loss etc. and further to direct the opponent insurance company to accept her renewal payment for the renewal of the said insurance policy and to issue renewed policy for the further period.

 

2.         The facts in nutshell are : That the complainant had taken Health Wise Policy from opponent No.1 on 22/3/06. The period of the said policy was of two years commencing from 22/3/07 to 21/3/07. The sum assured was Rs.3 lakhs. The respondent insurance company had accepted the premium of Rs.7,470/-. The Respondent No.2 was the third party administrator for the said policy. After the expiry of the term of two years w.e.f. 21/3/09, the complainant had renewed the said policy by paying premium of Rs.3,836/- and the said policy was renewed from 22/3/09 to 21/3/10. In the renewed policy, it was clearly mentioned that the complainant is suffering from preexisting disease of cancer. In the said policy, there is a condition incorporated that the benefits will not be available for any preexisting disease defined in the policy until 24 months of continuous coverage have lapsed since the inception of first policy. At the time of taking the policy on 22/3/07, the complainant had disclosed in the proposal form that she is suffering from cancer and the medical certificate to that effect was also enclosed. Knowing full well that the complainant is suffering from the preexisting disease, the policy was issued for a period of 2 years and after that by accepting the renewal premium, the policy was issued from 22/3/09 to 21/3/10. 

 

3.         The complainant was required to take a treatment for her illness of cancer and for that she was admitted in Bombay Hospital and Research Centre at Mumbai from 10/8/09 to 14/08/09. She was required to spend an amount of Rs.87,575/-. The complainant had submitted a claim for the said amount alongwith original investigation report and original discharge intimation card and original payment receipt for Rs.87,575/- on 22/8/09 to the opponent No.2 insurance company and prayed for the sanction of the said claim. On 2/9/09, the Respondent No.2, the Third Party Administrator issued letter to the complainant asking her to submit the original discharge card from Bombay Hospital in order to process the claim. Accordingly, the complainant by her letter dated 12/9/09 submitted the original discharge card from the Bombay Hospital. The opponent No.2, by his letter dated 21/9/09, repudiated the said claim on the ground that she was admitted for “recurrent minimal invasion seurmou cell carcinamo Rt.floor of mouth, laser treatment given, date of inception 29/3/09, history/Operated Sq. Carcenoma, April 2000, claim denied note 107”. The complainant had received only one page of the said letter dated 21/9/09, although the said letter consisted of 3 pages and therefore, by her letter dated 24/9/09, the complainant called upon the Respondent No.2 to issue the remaining two pages of this letter dated 21/9/09 and to return all the original documents submitted by the complainant alongwith her letters dated 22/8/09 and 12/9/09 as those documents were necessary for filing an appeal regarding the denial of her claim. The Opponent No.2 did not reply and comply with the said request and hence, again on 7/10/09, the complainant requested the respondent No.2 to issue the remaining two pages and return the original documents. However, till today, no pages or original documents are forwarded to the complainant. In the month of January 2010, the complainant was required to be admitted in Prince Alikhan Hospital Mumbai from 15/1/10 to 19/1/10 and there she was treated for her pre-existing illness of cancer. At that time, the complainant was required to pay Rs.1,32,303/-. The complainant had submitted the claim to the respondent No.1 insurance company for the said treatment and her claim was sanctioned to the extent of Rs.1,28,280/-. The complainant has alleged that by denying her first claim for the amount of Rs.87,575/-, the opponents have committed deficiency in service. When under the same policy, opponents have sanctioned claim for the amount of Rs.1,28,280/-, they could not deny the claim for the amount of Rs.87,575/-. The complainant has alleged that the opponents are not rendering the services which are standard services and there is deficiency in that service. The rejection of claim of Rs.87,575/- is not proper. The reasons given for denial of the said claim are not correct. That the renewed policy No.282530019997 is a continuation of the policy No. 282540002365 which is commenced w.e.f. 22/3/07. That in the medical papers of Bombay Hospital, nowhere mentioned that the complainant has undergone laser surgery or laser treatment. In those documents, the word “Laser Excision” is mentioned which is not a laser surgery or laser treatment.

 

4.         The complainant has contended that as the opponent had rejected her claim for Rs.87,575/-, she suffers from mental strain and stress and also from monetary hardship.   The said policy No.282530019997 is to expire on 21/3/10 and therefore, the complainant had sent the payment for the renewal of the said policy. At the time of first taking the said policy, the complainant had disclosed the preexisting illness i.e. cancer. For renewing the said policy, the complainant had not submitted any fresh proposal or application but on the basis of the original application form itself, the said policy was renewed for the further period of one year commencing from 22/3/09. As per the conditions of the said insurance policy, definition of pre-existing disease reads as “Any condition, ailment or injury or related conditions for which the insured had signed her symptoms and those were diagnosed and/or received medical advice or treatment within 48 months prior to the first policy, the exclusions for the pre-existing illness should be read as benefits will not be available for any conditions defined in the policy until 24 months of continuous coverage have lapsed, since inception of the first policy. In that note 7 of policy exclusions, it is mentioned that routine medical, eye and ear examinations, cost of spectacles, laser surgery (emphasis supplied), contact lenses or hearing aids, vaccinations, issue of medical service and examinations as to suitability for employment or approval will be excluded from the medical claims. That the insurance company had rejected her claim on the ground that the complainant had taken the laser treatment. In the said Note No.7, the word treatment is not mentioned. That there is a big difference between “Treatment” and “Surgery”. That nowhere in the medical report and in the discharge card of Bombay Hospital, the word “Laser surgery” or “Laser treatment” is used. That because of the rejection of the renewal of her mediclaim policy by the opponent, the complainant cannot take health insurance policies from other companies. Therefore, it is necessary to direct the opponents to accept the renewal policy premium and to continue the said policy for the further period. That the acts on the part of opponents in denial of the claim of Rs.87,575/- and in refusing to renew the policy for the further period are definitely deficiency in service on the part of opponents and therefore, the complainant is constrained to file this complaint. On such contentions, the complainant has prayed for the reliefs as mentioned above.

 

5.         In support of her contentions, the complainant has fled her affidavit at Exh.3 and has filed as many as 14 documents alongwith list at Exh.5. The complainant has also filed alongwth list at Exh.15 the proposal form which was submitted on 22/3/07 for taking the medical policy from the respondent. She has also filed a letter dated 15/1/09 issued by the insurance company for renewal of her Health Wise policy No. 282540002365 alongwith list Exh.17.

 

6.         The Resp.No.1 insurance company appeared and filed its written statement at Exh.13. It has denied the entire contentions of the complainant and denied the claim of the complainant. The Resp.No.1 has not disputed the averments of the complainant about the Health Wise policy for the period from 22/3/07 to 21/3/09 of the sum assured therein. It has contended that the said policy was subjected to the terms and conditions laid down by I.R.D.A. which are specifically laid down by IRDA for each type of policies. The Resp.No.1 has also not disputed that the premium for the said policy including service tax was Rs.7,470/- and that the complainant is its consumer but it is specifically denied that the Resp.No.1 has rendered any deficient service to the complainant as alleged. The fact that the opponent No.1 is the Third Party Administrator is also not disputed. The Opp.No.1 has not disputed that after the expiry of the first policy on 21/3/09, another policy was issued for the premium of Rs.3,836/- including service tax. The mention of pre-existing illness of cancer in the renewed policy is also not disputed. It is denied that preexisting illness under the policy issued on 22/3/07 was accepted. That there was no mention of preexisting disease in the policy for the period March 07 to March 09. That as per the policy terms and conditions, it is only after the issuance of second policy to which the complainant refers as renewal claims in respect of preexisting diseases are payable. The opp.No.1 has denied that the complainant had disclosed in the proposal form, her preexisting disease and the affected area. It is further denied that the medical certificate to that effect was also enclosed alongwith the proposal form. It is specifically denied that despite knowing the preexisting disease of the complainant, the policy was issued for the period of two years and was continued from 22/3/09 to 21/3/10. The insurance company has contended that the inclusion of preexisting disease from 2 years after two policies, or from 5^th year of policy after 4 policies is the choice of the insurer as per the plan. It has denied that the complainant was hospitalized for the disease mentioned in the policy, w.e.f.10/8/09 to 14/8/09 and she was required to spend Rs.87,575/- for her treatment. It has denied that for that the complainant has submitted medical claim on 22/8/09. However, the Resp.No.1 has not denied the averments of the complainant that the Resp.No.2 had asked the complainant to submit the original discharge card and thereafter the complainant’s claim was repudiated. It is contended that the reason given for the repudiation is on the basis of medical evidence in the nature of discharge summary of the Bombay Hospital Mumbai submitted by the complainant. That in the discharge summary given by the Bombay Hospital in respect of the treatment given and the past history of the disease, it clearly records that one operation of carcinoma was done in 2005. Further in the same discharge summary card, there is mention of laser surgery. Only on the basis of discharge summary, the complainant’s claim was repudiated by the opponent No.1. The Opp.No.1 insurance company has not denied the averments of the complainant regarding the second hospitalization in Prince Ali Khan hospital Mumbai and her treatment for preexisting illness and the opponent No.1 is not paying her claim for the said treatment. However, the opponent No.1 has alleged that the complainant has deliberately not disclosed what treatment she had in the said hospital at the affected area of the disease.  The complainant has deliberately not produced any document in that behalf and has withheld the said information. It is contended that the acceptance of the second claim was due to the fact that the treatment in the hospitalization at that time was within the fore corners of policy terms and conditions. That her claim was honoured after two consecutive policies. There was deficiency in service while denying the first claim of the complainant. It is denied that the policy No. 282530019997 for the period from 20/9/10 is the renewal of the previous policy No. 282540002365. It is alleged that the complainant has tried to mislead. It is denied that in the original medical report issued by Bombay Hospital, there is no mention of laser surgery or laser treatment. That in the said report, the word “laser incision” is mentioned. It amounts to surgery of laser treatment. That the laser incision is a cut taken at the time of surgery on the body part or the organ of the patient. A cut is taken with the help of surgical instruments or knife.  Actual area of cut and its measured length is required to be mentioned in the operation notes. That in the discharge summary, issued by Bombay Hospital, there is column entitled operation notes. Therein, there is a mention of laser incision which is a part of laser surgery procedure which ensures minimal cut of a body part, minimal damage of tissues where the incision is taken, fast healing and minimal hospitalization period. The cut or wound in the mouth has the healing rate in the entire body. Therefore, when the operation notes clearly record that there was a laser surgery, the claim of the complainant was not at all payable. Moreover, two consecutive policies had not followed at the time of first claim. Therefore, in denying the first claim of the complainant, the respondent No.1 has not rendered any deficiency in service. It is denied that due to the rejection of her claim, the complainant has suffered very mental strain or stress or financial hardships etc.

 

7.         The insurance company has further denied that the health care policy is a renewable policy. The Health Wise policy of the Resp.No.1, also known as mediclaim policy issued by other companies, are generally a contract of insurance for year to year. In this case, for better service benefits, the opp.No.1 had provided the insurance cover for two years to the complainant when the first policy was taken. The policy issued for each year is distinguished as a fresh contract of insurance, is entered into, if the insured requests by paying required premium. The fact that the medical policy of the complainant was going to expire on 21/3/10 is not disputed by the opponent No.1. It is denied that the complainant could not take insurance cover from other insurance company. That the complainant had suppressed the material fact of preexisting cancer and laser surgery treatment, she had undergone in the year 2005. That the prayer of the complainant to direct the opp.No.1 to accept the premium of renewal of the said policy and to continue the said policy, cannot be granted. A party to the contract cannot force the other party to the contract to alter or add any term of contract to which the other party is not agreeable. It is denied that this Forum has territorial jurisdiction to try this claim of the complainant. It is denied that the Resp.No.1 has committed any deficiency in service and therefore, it is not liable to pay anything to the complainant. On such and other contentions, the Resp.No.1 has prayed for dismissing the complaint. 

 

8.         The Opp.No.2, the Third Party Administrator has not appeared in this case and the complainant does not appear to have taken any steps against the opp.No.2. There is no written statement filed by the Resp.No.2 nor it has justified the repudiation of the claim for Rs.87,575/- submitted by the complainant.

 

9.         The opp.No.1 insurance company has neither filed any document nor has led any evidence. So also the complainant has refrained from leading any oral evidence and has filed pursis at Exh.18 in that behalf. The opp.No.1 insurance company has not bothered to file even the said pursis.

 

10.       We have heard the extensive arguments of learned counsels of both the sides at length. The counsel for the complainant has also filed his written notes of arguments at Exh.20. The following short points arise for our determination in this case.

 

 

1) Whether the complainant has proved the alleged

 

2) Whether the complainant is entitled to recover the

 

3) What order ?                                                                                As per final order.

 

 

11.       The reasons for our findings above are as follows.

 

 

 

 

12.       The material facts in this case are reproduced. Therefore, they are not necessary to be reproduced for the brevity’s sake. The complainant has specifically come up with the case that when she applied for the insurance on 22/3/07, she was already suffering from cancer and she had disclosed the said fact to the insurance company while submitting her proposal form and knowing full well her preexisting disease, the Resp.No.1 insurance had accepted her proposal and had issued the mediclaim policy to her for initial period of two years commencing from 22/3/07 to 21/3/09 and further that the said policy was renewed for a further period of one year starting from 22/3/09 to 21/3/10. The period from 22/3/09 to 21/3/10 is the relevant period for the purpose of this complaint. The issuance of these two policies is not denied by the opponent No.1 insurance company. However, the insurance company has tried to create a confusion with regard to these two policies by saying the policy for the period from 22/3/09 to 21/3/10 was in fact a new policy and it was not a continuation of the previous policy for the period from 22/3/07 to 21/3/09 and that for the period from 22/3/09 to 21/3/10, there was a fresh contract of insurance between the parties. The insurance company has tried to create this misconception due to the certain terms and conditions incorporated in the insurance policy which are filed on record.

 

13.       The complainant has produced on record the policy No. 282530019997 dated 22/3/09 which is to remain valid till midnight on 21/3/10 and also the policy for the period from 22/3/07 to midnight on 21/3/09 bearing the policy No.282540002365. These policies are filed alongwith list at Exh.5/1 and 5/2. For the sake of convenience, we would refer to these policies as new policy and old policy, hereinafter. We have already mentioned above that the complainant has produced on record the copy of her proposal form for the Health Wise policy dated 22/3/07 alongwith the questionary to be completed by her doctor. The same is filed alongwith list at Exh.15. The receipt of the said proposal form alongwith the medical certificate at the time of commencing the first policy dated 22/3/07 bearing No. 282530019997 is not denied by the opp.No.1. In the said proposal form in the column “Preexisting illness, if any”, the complainant has clearly mentioned cancer. In the particulars regarding the medical history of the said preexisting disease/illness/injury, the complainant has given the length and the year when the said preexisting disease was first treated as March 2005 and it is operated. The name of the disease is given as C.A. – Alvelous. The said proposal form is signed by the complainant and questionary is signed by one Dr.Naim Shaikh, Consulting Cardiologist and Physician from Miraj. It is pertinent to note that it is not the case of the opp.No.1 insurance company that at the time of the alleged second policy, the complainant had submitted a proposal form giving the history of preexisting disease. The complainant has simply deposited the renewal charges and her Health Wise policy was renewed for the period of one year w.e.f. 22.3.09 to 21/3/10. On the background of this, if we revert to the old policy “List Exh.5/2”, we find that there is no column of preexisting disease. In the new policy at Exh.5/1, there is a specific column of preexisting illness and in that column, the preexisting illness of cancer is mentioned. In the old policy “Exh.5/1”, in the benefit details column, it is mentioned that the benefits for the preexisting disease would be available after second year renewal of the said policy. The plain reading of this term in the old policy which show that if there is a disclosure of the preexisting disease at the time of the commencement of the said insurance policy, the benefits of that policy would be available to the insured after the second renewal of the said policy. It means that no benefits under the Health Wise policy for the preexisting disease were available to the insured within the period of first two years of the said policy. In the new policy at Exh.5/2, on the next page thereof, under the head “Conditions, if any” :- Definition of preexisting disease should be read as :- “Any condition, ailment or injury or related condition(s) for which you had signs or symptoms and/or were diagnosed and/or received medical advice/treatment within 48 months prior to your first policy with us, exclusions for the preexisting should be read as :- Benefits will not be available for any conditions(s) defined in the policy until 24 months of continuous coverage have elapsed since inception of the first policy with us.” From these wordings of conditions incorporated in the new policy, it is clear that for any prescribed disease, the complainant was not entitled to any benefits under the said Health Wise insurance policy for the first two years of the said policy and she could get the benefits only during the third year of the said policy which in this case was commencing from 22/3/09 to 21/3/10. It does not lie in the mouth of the Resp.No.1 to say that the complainant had suppressed the preexisting disease of cancer from it. We have already pointed out above that the Opp.No.1 insurance company has clearly admitted that for the said preexisting disease, the complainant had taken the further treatment at Prince Alikhan Hospital Bombay and for that she had submitted a second claim under the said insurance policy and the claim was granted by the insurance company and an amount of Rs.1,28,000/- was paid to the complainant. Having sanctioned second claim of the complainant for the said preexisting disease under the same policy, the insurance company is now stopped from denying first claim under the policy for the amount of Rs.87,575/- on the ground that the said claim was not tenable because it was not within the prescribed period. The learned counsel for the Opp.No.1 insurance company has fairly conceded to this position. We are clearly of the view that the opponent could not have repudiated the claim of the complainant on the ground that the new policy was ongoing a fresh policy. Therefore, the benefit of the said policy was not available to the complainant for her preexisting disease as it was not within the prescribed time period etc. 

 

14.       The opponents and more particularly Opp.No.1 insurance company has repudiated the claim of the complainant for the amount of Rs.87,575/- by its letter dated 21/9/09. The copy of the said letter is filed on record alongwith list at Exh.5/6. We would like to reproduce all the said letter of repudiation for the sake of ready reference. 

 

“We confirm the receipt of your claim as per the reference given above. We state our inability to admit liability due to the following;

 

Clause                                                                       Description

 

NOTE 1          All diseases, illnesses, injuries/conditions which are preexisting

 

NOTE 7          Routine medical, eye and ear examinations, cost of spectacles,

 

THIS PATIENT WAS ADMITTED FOR RECURRENT MINIMALLY INVASION SQUAMOUS CELL CARCINOMA, RT.FLOOR OF MOUTH. LASER TREATMENT GIVEN. DATE OF INCEPTION – 22 Mar.2009 H/O OPERATED SQ. CARCINOMA IN APRIL/05. CLAIM DENIED UNDER NOTE 1 & 7.

 

Hence, we regret our inability to admit this liability under the present policy conditions. We wish to point out, that you still have the right of appeal to the Insurer. “

 

15.       The complainant has also produced on record the directives issued by the Insurance Regulatory and Development Authority to all General Insurance companies on the subject of Health Insurance for senior citizens bearing No. CIT/011/3/IRDA/Health/SN/09-10 dated 25^th May 2009. This circular accompanies certain criterions of the claims which are excluded from the health policies. The said exclusionary clause reads as that the company shall not be liable to make any payment for any claim directly or indirectly caused by, based on, arising out of or howsoever attributable to any of the following :

1.    Preexisting diseases/illness/injury/conditions – All diseases, illnesses, injuries/conditions which are pre-existing when the cover incepts for the first time. However, this Policy shall provide for payment of hospitalization expenses for treatment relating to pre-existing diseases, illness, injury from the 3^rd year of the policy after two continuous renewals or from the 5^th year of this policy after 4 continuous renewals, as the case may be, subject to the plan opted. 

 

The clause No. 7 reads :

 

“Routine medical, eye and ear examination, cost of spectacles, laser surgery, contact lenses or hearing aids, vaccinations, issue of medical certificates and examinations as to suitability for employment or travel.”

 

 

16.       The claim of the complainant for the amount of Rs.87,575/- is repudiated on the ground that at Bombay Hospital, she has undergone a laser surgery which is excluded from the benefits under the said policy and therefore, her claim was not tenable. This is the crux of the matter and we have been laboriously taken through the aspects of the laser surgery, laser treatment, laser incision, laser exision so on and so forth by both the learned counsels for both the parties. Our attention was drawn time and again to the history of treatment given at Bombay hospital to the complainant as is reflected in the discharge card issued by the Bombay Hospital and Medical Research Centre at Bombay. We may point out at this juncture itself that by an application at Exh.14, the complainant requested this Forum to direct the opponent to admit the copies of proposal form and the discharge card of the Bombay hospital or otherwise to produce the originals which are in possession of the opponent. Though the Resp.No.1 has given a say on that application, it is evasive one. In that say, it is not denied that the original proposal form (Exh.15/1) and the original discharge care (Exh.5/4a) are in possession of the opponents. However, it is stated that the search of these two documents is being taken by the opponents and those will be produced in due course of time. Till date the opponents have not produced those documents. Therefore, the authenticity of these two documents is not denied by the opponents and conversely they are to be presumed to be admitted by the opponents. Now having said this, we can examine the discharge summary produced on record by the complainant at list 5/4a. It appears therefrom that the complainant was admitted in Bombay Hospital and Medical Research Centre on 10/8/09 and was discharged on 14/8/09. She was admitted with the history of operated Sq.Carcinoma Rt.floor in April 2005, H/P Sq.Carcinoma, neck node 2+, mandible-normal. Received – Adj.Rt., C/o Whitepatch one tongue – 3 months, Nodular lessen right lower sutens – 1 yr.,

 

Biopsy 1 ½ yr ago – Hyperplasia, no other complaints.

 

In the column of operation notes, it is mentioned in the discharge summary that the complainant has undergone a laser excision of Rt.border of tongue. Exicision means cutting of an organ etc. by surgery. It is a part of surgical process. In case of complainant paraffin satin repoer WTY2 minimally (superficially) invasion nod. Diff. sqnamous all carcinoma Depsh.invasion 0.1 cm. The depth of incision was only 0.1 cm. Still it amounted to a surgery. That surgery was conducted with the help of laser bin which a device which generates an intense bin of coherent monochromatic radiation in infrared visible or ultraviolet region of the electromagnetic spectrum by stipulated emission of photons from any existing source. The laser surgery has its own advantages as compared to the normal surgery. Whatever be the difference between the normal surgery and the laser surgery, the facts remains that the complainant had undergone a laser surgery at Bombay Hospital and on that count, the opponents have invoked the exclusion clause No.7 as mentioned above and have repudiated the claim of the complainant.

 

17.       Objectively, the repudiation of the claim on the ground that the complainant had undergone a laser surgery would appear to be justified. But if we closely scrutinize the directives issued by I.R.D.A. which accompany the guidelines in the matter of policy exclusions which are filed alongwith list 5/14 by the complainant, we find that the word laser surgery in column No.7 is used alongwith other routine aspects like routine medical eye and ear examination, cost of spectacles, contact lenses or hearing aids, vaccinations issue of medical certificates and examinations as to suitability for employment or travel. All these aspects are of lesser significance than a surgery for removal of malignant part. Such a surgery cannot be called as a cosmeticial surgery or routine surgery or mere biopsy or any surgery conducted for the investigation purposes.   The complainant has undergone a laser exicision of a malignant part, howsoever small it may be. This was due to the cancer which the complainant is suffering and therefore, it was a major surgery. We are of the opinion that the word laser surgery, as used in column No.7 of the exclusion clause, refers to the small and minor surgeries including cosmetic surgery. If the opponents had examined any witnesses, then we could have had some explanation from him as to why and in what context, the words laser surgery has been included in column No.7 of the exclusion clause which refers to very minor things and insignificant things. Therefore, what appears to have been done by the opponents is that they have merely followed letter of the said policy conditions and not the spirit behind the said policies. We do not find any justification for repudiating the said claim of the complainant by the opponents. We are drawing the interpretation of the said clause No.7 of the exclusion clause in favour of the complainant by relying on the dictum of the National Commission in the case of Oriental Insurance Co. Vs. Smt. Prakash Devi in Revision Petition No. 2745/03 dated 26 March 2008 which has been downloaded by the learned counsel for the complainant and has produced the same before us in this case. It has been laid down in the said case that wherever the policy conditions are not clear and are capable of more than one interpretations, the interpretation which is beneficial to the consumer should be adopted. Therefore, we hold that the reference to the laser surgery in the said clause No.7 of the exclusion clause refers to mere minor surgeries like cosmetic surgery etc. but the laser surgery which the complainant had undergone for the excision of the malignant operation of the tongue stands excluded from the said exclusion clause and therefore, the opponents could not repudiate the claim of the complainant. We, therefore, hold accordingly and hence, we find and hold that the repudiation of the claim of the complainant amounts to deficiency in service given by the opponents to the complainant. Therefore, we have answered the point No.1 above accordingly.

 

 

18.       The moment it is held that the complainant has proved the deficiency in service rendered by the opponents to her and that her claim was wrongfully repudiated, she is entitled to the amounts claimed by her as mentioned in the claim submitted by her. According to the complainant, she had to incur the expenses of Rs.87,575/- on account of the said treatment at Bombay Hospital and she has submitted the original payment receipt issued by the said hospital to the opponents alongwth claim submitted by her on 22/8/09. The respondent insurance company has not disputed the expenses incurred by complainant at Bombay hospital. The fact that such a claim was submitted alongwith original documents by the complainant to them, is also not disputed by the opponents. Therefore, we find and hold that the complainant has proved to have incurred expenses of Rs.87,575/- for the treatment and she is entitled to claim the same from the opponents in view of the health care policy taken by her from the opponents. The complainant has also claimed amount of Rs. 50,000/- towards the mental strain and stress, harassment and monetary loss etc. It is a fact not disputed that the complainant is suffering from cancer and a statement is made before us by her learned counsel that the said cancer is now spread and the complainant has lost her mandible portion and she has to be fed through the pipes fixed at her neck and she cannot move. It appears that despite the treatment, the complainant is not recovering. Under these circumstances, when her claim is repudiated, the complainant is bound to suffer mental and of course, financially. Under these circumstances, we are inclined to grant the said prayer of the complainant and therefore, we hold that the complainant is entitled to amount of Rs.50,000/- on account of mental harassment, pains and sufferings etc.

 

19.       The complainant has claimed interest on the claimed amount of Rs. 87,575/- @ 18 p.c.p.a. from the date of submission of the claim i.e. dated 22/8/09 till the realization of the entire amounts. We are of the opinion that the said claim is rather exorbitant. The learned counsel for the complainant has not submitted anything on the point of the rate of interest and the period of interest for which the complainant has claimed the interest on the amount claimed. There is no contractual obligation on the part of respondent insurance company to pay the interest @ 18 p.c.p.a. In the present scenario, where commercial transactions are not charging the interest @ 18 p.c.p.a., the nationalized banks are not charging @ 18 p.c.p.a., the complainant can be held to be entitled to the interest on the amount of claims submitted by her to the opponent i.e. on 87,575/- @ 8.5 p.c.p.a. from the date of petition of claim till realization only. It is needless to say that she would be entitled to the cost of this litigation being a successful party. We, therefore, hold accordingly and have answered the point No.2 in the affirmative and to proceed to pass the following order.

 

 

 

 

 

 

1)    The complaint is allowed with cost.

 

2)    The Respondents No.1 & 2 do hereby jointly and severally pay an amount of Rs.87,575/- being the claim amount under the Health-care Policy.

 

3)    The Respondents No.1 & 2 shall pay the interest on the above amount @ 8.5 p.c.p.a. from date of complaint till realization.

 

4)    The Respondents No.1 & 2 shall also pay jointly and severally an amount of Rs.50,000/- to the complainant on account compensation for mental torture, pains and sufferings etc.

 

5)    The Respondents No.1 & 2 shall also pay Rs.1,00/- being the cost of this litigation to the complainant

 

6)    The amounts mentioned above shall be paid to the complainant including the interest, as stated above, within the period of 45 days from this order failing which the complainant shall be entitled to take recourse of either Section 25 or Section 27 of the Consumer Protection Act, as advised.

 

 

SANGLI

Dated : 23/05/2013