M/s M.V.Kini & Co. for the complainant
Advocate Shashikala Wagdarikar for the
Opponent
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 26th November 2013
This complaint is filed by consumer against the Insurance Company u/s 12 of the Consumer Protection Act, 1986. Brief facts are as follows-
[1] Complainant is resident of ‘Wilson Gardens’, Opp. Pune Railway Station, Pune. Her husband Shyam Kapurchand Agarwal expired on 30/09/2010 at Jahangir Hospital due to illness. Opponent Insurance Company’s office is situated at Chennai. Husband of the complainant had obtained Health Shield Insurance Policy bearing No.HLSTCB0024 for the period of 21/09/2009 to 20/09/2010. He had paid premium for the same. The said policy was renewed on 21/09/2010 upto 20/09/2011. On 22/12/2009 husband of the complainant was admitted in Jahangir Hospital, Pune. During that period first policy was valid from 21/09/2009 to 22/09/2010 and that claim of Rs.3,00,000/- was paid by the Opponent. Husband of the complainant was again hospitalized on 2/9/2010 for the treatment of Dengue fever in Jahangir Hospital and he died on 30/09/2010 during the course of treatment. It is the case of complainant that she had spent Rs.5,02,646/- for the treatment of her husband. Her husband died during the validity of the insurance policy. Complainant lodged claim of Rs.3,00,000/- on 12/11/2010 with the Opponent. Opponent vide letter dated 16/11/2010 informed the complainant the sum insured under the policy is exhausted towards payment of cashless claim. The Opponent has approved claims for Rs.3,00,000/- and for Rs.1,80,000/- for the admission on 22/12/2009 and 2/9/2010 respectively. Opponent informed that, as the cashless claim was approved, the remedy is exhausted and refused to pay the balance amount. According to the complainant as per the terms and conditions of the policy, she is entitled to claim Rs.3,90,000/-. Complainant had issued notice to the Opponent and demanded Rs.3,90,000/- but the Opponent did not give any response. Hence, she has filed present complaint and asked insurance claim of Rs.3,90,000/- alongwith interest @ 15% p.a., compensation of Rs.25,000/- for mental and physical trauma and harassment. She has further asked cost of Rs.10,000/- for present proceeding.
[2] Opponent resisted claim by filing written statement in which it has denied the claim of complainant. According to the Opponent there is clause of Arbitration in the insurance policy and as per the said clause the dispute is to be referred to the Arbitrator and this Forum has no jurisdiction to entertain the present complaint. It is further contended by the Insurance Company that, as per the terms and conditions of the policy, specifically clause No. 17
“When the Company is admitting liability for disease/illness/medical condition/injury contracted by the Insured Person during the previous period of Insurance(s) with Us, then we shall pay either the sum insured for that insured person during the first occurrence of such disease/illness/medical condition/burns or the available sum insured under the current policy, whichever is less.”
Complainant is entitled for any one of the claim whichever is less, when the claim is stretched in between two policies. It is the case of Opponent that there is no negligence on the part of Opponent. There is no deficiency in service. Hence, the complaint is liable to be dismissed.
[3] After considering the pleadings of both parties, scrutinizing the documentary evidence, affidavits, written argument and hearing the argument of both counsel, following points arise for my determination. The points, findings and reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether this Forum has jurisdiction to entertain the present complaint in spite of arbitration clause ? | In the affirmative |
2 | What order ? | Complaint is dismissed. |
Reasons-
As to the Point Nos. 1 and 2-
[4] The admitted facts in the present proceeding are that the husband of complainant had obtained insurance policies from the Opponent. The validity of the first policy was from 21/09/2009 to 20/09/2010 and that of second policy was 21/09/2010 to 20/09/2011. It is not in much dispute that the policy was valid during the course of medical treatment of husband of complainant. It is not in much dispute that the illness of the husband of complainant was stretched in between the two policies.
[5] It is the case of Opponent that as there is clause No. 13 of Arbitration in the policy, the dispute shall be referred to the sole Arbitrator appointed by the parties. The learned Advocate for the complainant argued before me that the Consumer Forum has all powers including the powers of arbitration. In that context, reliance has been placed upon the ruling of the Hon’ble National Consumer Disputes Redressal Commission, reported in 2000 (4) Bombay Case reporter page 220 between Skypark Couriers Ltd. etc. vs. Tata Chemicals Ltd. In that proceeding Hon’ble National Commission has observed that,
“Even if there could be arbitration clause, there was no bar for Commission to take cognizance of complaint, as remedy under the Consumer Protection Act, 1986 is in addition to any other law in force. ”
[6] In the light of observations in the said ruling, I held that eventhough there is arbitration clause, this Forum has jurisdiction to entertain the present complaint.
[7] It appears from the policy itself that in view of clause No. 17, the complainant is entitled to claim any one of the claim, if the illness is stretched in between two policies. It is admitted fact that the Opponent has already paid Rs.4,80,000/-. In such circumstances, complainant is not entitled to claim Rs.3,90,000/- from the Opponent. The insurance claim shall be determined on the basis of terms and conditions which are finalized between the parties. The insured person has agreed that he is entitled for one of the claim if the illness is stretched between the two policies, then the complainant is not entitled to ask for further compensation. We held that Opponent has rightly repudiated the insurance claim. We answer the points accordingly and pass the following order-
:- ORDER :-
1. Complaint is dismissed.
2. No order as to costs.
3. Both parties are directed to collect the sets which are provided for the Hon’ble Members within one month from the date of order. Else those will be destroyed.
Copy of order be supplied to both the parties free of cost.
Place – Pune
Date – 26/11/2013
