IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM

Present:

Hon’ble Mr. Bose Augustine, President

Hon’ble Mr. K.N. Radhakrishnan, Member 

Hon’ble Mrs. Renu P. Gopalan, Member

C C No. 224/2012

Tuesday, the 29^th day of August, 2017

Petitioners                               :         1)      Mohandas P.V.

          `                                                        Puthiyarath House,

                                                                   Kumarakom East P.O.

                                                                   Kottayam.

                                                                 (Adv. Nithin Sunny Alex,  Nithin M.K

                                                                   and Adv. Alex George)

                                                            2)    Geetha Mohan,

                                                                   W/o. late Mohandas P.V.

                                                                   Puthiyarath House,

                                                                   Kumarakom East P.O.

                                                                   Kottayam.

                                                            3)    Jaima Mohan,

                                                                   D/o. late Mohandas P.V.

                                                                   Puthiyarath House,

                                                                   Kumarakom East P.O.

                                                                   Kottayam.

                                                             4)   Jobin Mohan,

                                                                   S/o. late Mohandas P.V.

                                                                   Puthiyarath House,

                                                                   Lumarakom East P.O.

                                                                   Kottayam.

                                                                   (For ptr. 2-4 Adv. Nithin M.K. and

                                                                   Adv. Alex George)

                                                                             Vs. 

Opposite Parties                      :          1)    The South Indian Bank Ltd.

                                                                   Rep. by its Manager,

                                                                   Kumarakom Branch,

                                                                   Kottayam.

                                                                   (Adv. Anie C. Kuruvilla)

                                                              2)    Cholamandalam,

                                                                   Ms General Insurance Company Ltd.
                                                                   Rep. by its Manager

                                                                   IAdv. Agi Joseph) 

O  R  D  E  R

Hon’ble Mr. Bose Augustine, President

          The case of the complainant filed on 02/07/2012 is as follows.

          The case was filed by the 1^st complainant, who died during the pendency of the complaint and legal heirs are impleaded as additional 2^nd and 3^rd complainants.         

The 1^st complainant is an SB account holder of the 1^st opposite party and on 19/08/2010 he approached the 1^st opposite party for depositing the amount of Rs.2,00,000/-.  At that time, the Manager of the 1^st opposite party informed that the 1^st opposite party is also acting as the agent of the 2^nd opposite party and persuaded the 1^st complainant for subscribing to a health insurance policy, covering the 1^st complainant and his family for the premium of Rs.4,350/-.  So he had joined the said policy of the 2^nd opposite party by remitting the premium amount of Rs.4,350/-.  And the 2^nd opposite party issued the insurance policy with certificate No.S70107053000003515 dated 19/08/2010 for an amount of Rs.2,00,000/- for a period from 19/08/2010 to 18/09/2011 in the name of the 1^st opposite party assuring the health coverage of Rs.2,00,000/- for the 1^st complainant and his family.  Thereafter on 22/09/2010 the 1^st complainant was admitted at Medical College Hospital, Kottayam due to fever and undergoing treatment till 15/03/2011 and he had spend Rs.50,162/- towards his treatment.  Then he had submitted claim form with supporting bills and other documents to the 2^nd opposite party, through the 1^st opposite party.  But the intimation regarding the rejection of the claim was also given by the 2^nd opposite party to the 1^st opposite party and the complainant learned about the same only an enquiry with the 1^st opposite party on 05/07/2011.  The 2^nd opposite party had repudiated the claim alleging the existence of ailment to the1^st complainant prior to opting for the insurance policy and remitting the premium amount.  The proposed terms and conditions of the insurance policy which would be issued so a prospective subscriber does not find place in the proposal / application form for the insurance policy and as such the complainant or any other prospective subscriber of an insurance policy remain in dark regarding the terms and conditions and inclusions and exclusions unilaterally prescribed / fixed by the insurance company, the 2^nd opposite party.  According to the complainants, opposite parties are liable to pay the insurance claim amount of Rs.50,162/- and the act of opposite parties, rejection of his claim, amounts to deficiency in service and unfair trade practice.  Hence this complaint.

          The 1^st opposite party filed version admitting that the disputed policy of the 2^nd opposite party was taken by the complainant through the 1^st opposite party.  The allegation of the complainant that the 1^st opposite party persuaded the complainant  for subscribing a health insurance policy of the 2^nd opposite party for taking the same is false.  The 1^st opposite party is not an agent of the 2^nd opposite party and they merely introduce its customers to the 2^nd opposite party and also collects the premium if they avail the policy.  The contract is entered into between the complainant and the 2^nd opposite party and it is binding on them alone.                        The 1^st  opposite party is neither a party to that contract of insurance nor it is  a beneficiary.  The complainant had submitted the claim form and the bills etc and it was forwarded to the 2^nd opposite party.  The 1^st opposite party has no role in allowing or repudiating the claim put forth by the complainant and 1^st opposite party is not liable to pay any amount to the complainant.  Since the policy is a Master policy it was issued in the name of the 1^st opposite party, but the beneficiary of the policy is the complainant and it was issued only for the complainant.  According to the 1^st opposite party there is no deficiency in service on the part of them and 1^st opposite party prayed for dismissal of the complaint with cost.

          Second opposite party filed version contenting that the complaint is not maintainable.  It is barred by limitation.  The policy was taken by the complainant in 1^st time.  The complainant was taken blood test and other test for determining the possibility of cancer on 13/09/2010 and it was done after continuous consultation from Doctors.  This shows that he got illness and which was diagnosed within 30 days from the effectives date of policy.  As per the exclusion clause “Any illness diagnosed or diagnosable within 30 days of the effective date of the policy period if this the 1^st health policy taken by the policy holder with the insurer”  Hence the claim of the complainant is not allowable and it was repudiated on 09/04/2011.  The claim of the complainant is invested and given opinion for repudiation by registered 3^rd party administrator, Health India Medical Services Pvt. Ltd.   So the said 3^rd party is a necessary party for adjudicating this case.  Furthermore the bills given by the complainant has no corresponding treatment records and has not produced any prescription.  As per the terms and conditions of the policy, the claim of on pre-hospitalization and post hospitalization expenses are not admissible and are excluded from the purview of the policy.  From the medical records of the complainant reveals that the treatment taken in the hospital is a related condition of its pre-existing condition.  The policy issued by the 2^nd opposite party does not cover the risk of any pre-existing disease for the first two years and it is mentioned in the policy issued to the insured.  According to the 2^nd opposite party they had repudiated the claim of the complainant as per the terms and conditions of the policy and there is no deficiency in service or unfair trade practice on the part of them.  2^nd opposite party is also prays for dismissal of the complaint with cost.

Points for considerations are

1. Whether there is any deficiency in services or unfair trade practice on the part of opposite parties?
2. Relief and costs?

          Evidence in this case consists of the proof affidavit of both sides and Ext.A1 toA4 documents from the side of the complainant and Ext.B1 to B8 documents from the side of the 2^nd opposite party.

Point No.1

          Complainants alleges deficiency in service on the part of opposite party in repudiating his claim, with regard to the treatment of the husband of the 2^nd complainant and father of the 3^rd complainant, who died during the pendency of this case.  Complainant produced E-mail copy of the repudiation letter and the same is marked as Ext.A4.  In Ext.A4, it is stated that the patient got treated in 30 days of inspection of policy, so the ailment is a pre-existing one and claim is inadmissible as per exclusion clause.  Opposite party produced copy of the certificate of insurance and the same is marked as Ext.B1.  In the reverse side of Ext.B1 it is stated that diagnosed or diagnosable illness within 30 days of effective date of policy is not allowable.  In order to prove that complainant have pre-existing disease,  opposite party  rely on the test report dated 13/09/2010 and 15/09/2010.  The test reports produced were marked as Ext.B2 and B3.  From Ext.B2 and B3, it can be seen that complainant had taken blood test.  Eventhough opposite party has a definite case that complainant conducted the blood test for determining the possibility of cancer, for which he had treated.  No clinching evidence of an expert has been adduced by the opposite party to prove that Ext.B2 and B3 report shows that the complainant is having any pre-existing disease of cancer.  In the lack of pre-existing disease, the act of repudiation of the claim by the 2^nd opposite party amounts to deficiency in service.  Point No.1 is found accordingly.

Point No.2

          In view of the finding in Point No.1 complaint is allowed.

1. 2^nd opposite party is Ordered to pay Rs.50,162/-  the claim amount, to the complainant.
2. Considering the facts and circumstances of the case, no cost and compensation is Ordered.

The Order shall be complied with within a period of 30 days from the date of receipt of copy of Order.  If not complied as directed, the award amount will carry 15% interest from the date of Order till realization.

Pronounced in the Open Forum on this the 29^th day of August, 2017

          Hon’ble Mr. Bose Augustine, President             Sd/-

          Hon’ble Mr. K.N. Radhakrishnan, Member     Sd/-

          Hon’ble Mrs. Renu P. Gopalan, Member                   Sd/-

Documents of petitioner

Ext.A1  :  Copy of brochure of the 2^nd opposite party

Ext.A2  :  Copy of certificate of insurance dtd.19/08/2010

Ext.A3  : Health claim form No.0000371100000 along with list of medicines

Ext.A4  :  Copy of the E-mail message

Documents of opposite party

Ext.B1  :  Copy of certificate of insurance

Ext.B2  :  Copy of medical report dtd.13/09/2010

Ext.B3  :  Copy of report dtd.15/09/2010 from DDRC Primal Diagnostic services

Ext.B4  :    Copy of medical records dtd.22/09/2010 issued by MCH  Kottayam

Ext.B5  :  Copy of Ultra sound report 29/09/10 from Medical College Kottayam

Ext.B6  :  Copy of bone marrow trephine biopsy dtd.01/10/2010

Ext.B7  :  Copy of findings dtd.19/05/11given by Health India Medical Services

                Pvt. Ltd.

Ext.B8  :  Copy of repudiation letter dtd. 09/04/11.

                                                                                               By Order

                                                                            Senior Superintendent