PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.118/2012
(Admitted on 21.4.2012)
Mr. Fakir Mohammed,
Aged 56 years,
S/o Mr.Moideen Sheik,
Residing at B.A.Housing Colony,
Thumbe Post,
Bantwal Taluk 574 170. …….. COMPLAINANT
(Advocate for Complainant: Sri.M.S. Krishnaprasad)
VERSUS
1. STAR HEALTH AND ALLIED
INSURANCE CO. LTD.,
Branch, Mangalore,
No:14-2-104/24, T.S.No:26-01,
City Light Building,
Balmatta Road,
Mangalore575 001
Represented by its Manager.
2. STAR HEALTH AND ALLIED
INSURANCE CO. LTD.,
Regd. Office, 1,
New Tank Street,
Vallluvar Kottam High Road,
Nangambakkam,
Chennai-600 034.
Rep. by its Authorized
Signatory/Manager. ……OPPOSITE PARTIES
(Advocate for Opposite Parties: Sri.Anil Kumar.K.)
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. ASHA SHETTY:
I. 1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The complainant stated that, he had obtained a Medi-Claim Insurance Policy bearing No. P/141211/01/2012/000343 the same was valid from 20.4.2011 to 19.4.2012. It is stated that, the Complainant had developed problem of burning sensation and general weakness during January 2012 and he had gone to hospital and treated as inpatient from 7.1.2012 and 21.1.2012, from 29.1.2012 to 3.2.2012, 6.2.2012 to 7.2.2012, 13.2.2012 to 14.2.2012 and 17.2.2012 to 22.2.2012. In between 15.2.2012 to 17.2.2012 and 9.2.2012 to 11.2.2012 admitted in some other hospital on diagnosis it is found that, the Complainant facing Sub-acute intestinal obstruction, small bowel bleed aspirin induced TYPT 2 DM, Anaemia. The Complainant submitted the claims to the Opposite Party, but the Opposite Party rejected the claim by quoting the exclusion clauses no.11 of the policy, which is arbitrary and amount to deficiency in service. It is stated that, the Complainant has spent as sum of Rs.1,66,463-50 and stated that he is entitled by the policy and feeling aggrieved by the complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to pay a sum of Rs.1,66,463-50 towards Medi-Classic Insurance Policy (individual ii) along with compensation and cost of the proceedings.
II. 1. Version notice served to the Opposite Party No.1 and 2 by R.P.A.D. Opposite Party No.1 and 2 appeared through their counsel filed common version admitted the policy. It is stated that, the Complainant has undergone treatment for Dimorphic Anemia and Myelody Splatic Syndrome which is excluded under the exclusion No.11 of the policy. Therefore, the Opposite Parties are not reimburse any claim and denied the deficiency and prayed for dismissal of the complaint.
III. 1. In support of the complaint, Mr.Fakir Mohammed (CW1) – Complainant filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and produced Ex. C1 to C4. On behalf of Opposite Parties one Mr. Melwyn D’Souza (RW-1) Branch Manager of Opposite Party No.1 filed counter affidavit and answered the interrogatories served on him.
In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Parties have committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
REASONS
IV. 1. POINTS NO. (i) TO (iii):
In the instant case, the facts which are admitted is that, the Complainant obtained Medi-Claim Insurance Policy bearing No.P/141211/01/2012/000343 the same was valid from 20.4.2011 to 19.4.2012 and during the existence of the policy the Complainant taken treatment in different hospital. In the instant case, the Opposite Party took a contention that the Complainant was suffering from Dimorphic Anaemia and taken treatment which excluded under exclusion No.11 of the Medi-Claim policy. When the Opposite Party contending that the claim of the Complainant falls within the purview of exclusion clause then the entire burden lies on the Opposite Parties to prove that the disease which the Complainant/insured suffered is not entitled. However, we have referred the exclusion clause NO.11 of the policy which reads thus:-
“11.All expenses arising out of any condition directly or indirectly caused due to or associated with Human T-cell Lymph Tropic Virus type III (HTLV-III) or Eymphadinopathy Associated Virus (LAV) or the Mutants Derivative or Variations Deficiency Syndrome or any Syndrome or condition of a similar kind commonly referred to as AIDS.”
No doubt by reading the exclusion clause the expenses arising out of any condition directly or indirectly caused due to or associated with variations deficiency syndrome or any syndrome or condition of a similar kind of commonly referred as aids etc or excluded. Except quoting exclusion clauses the Opposite Parties not produced any corroborative evidence to establish the exclusion clause that the Complainant suffered the similar type of disease which has been mentioned in the exclusion clause. In the absence of any such material evidence, we are declined to consider that the diseases which the Complainant suffered falls within the purview of Exclusion Clause No.11. The Discharge summary disclosed that the Complainant come with a history of Synoralise weakness and gastric pain and difficulty in passing urine and DM and HTM since two years on treatment. And on the final diagnosis it is revealed that the Complainant is Dimorphic Anemia. If at all the disease is falls within the purview of any kind of Syndrome the best person to speak about this aspect is the doctor one who treated the patient or a doctor one who is expert in this field. The Opposite Parties not examined any of the doctor hence the Opposite Parties are miserably failed to establish that the disease suffered by the Complainant is excluded under the policy. In the absence of the same, we hold that the Complainant is entitled for the medical reimbursement in this case. Not considering the claim of the Complainant till this date amounts to deficiency in service as well as unfair trade practice.
In view of the aforesaid reasons, we hold that the Opposite Parties i.e Star Health And Allied Insurance Co. Ltd, represented by Authorized Signatory/Divisional Manager hereby directed to pay Rs.1,66,463/- to the complainant along with interest at 12% per annum from the date of repudiation till the date of payment and also pay Rs.2,000/- (Rupees Two thousand only) as costs of the litigations expenses. Payment shall be made within 30 days from the date of this order.
In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded.
In the result, we pass the following:
ORDER
The complaint is allowed. The Opposite Parties i.e Star Health And Allied Insurance Co. Ltd, represented by Authorized Signatory/Divisional Manager hereby directed to pay Rs.1,66,463/- (Rupees One lakh sixty six thousand four hundred sixty three only) to the complainant along with interest at 12% per annum from the date of repudiation till the date of payment and also pay Rs.2,000/- (Rupees Two thousand only) as costs of the litigations expenses. Payment shall be made within 30 days from the date of this order.
Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.
(Page No.1 to 7 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 28th day of February 2014)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr.Fakir Mohammed – Complainant.
Documents produced on behalf of the Complainant:
Ex C1: Photostat copy of Medi classic Insurance Policy..
Ex C2: Photostat copy of Discharge Summary.
Ex C3: Photostat copy of Medical bills.
Ex C4: 19.2.2012: Photostat copy of Repudiation letter.
Witnesses examined on behalf of the Opposite Parties:
RW-1: Mr. Melwyn D’Souza (RW-1) Branch Manager of Opposite Party No.1.
Documents produced on behalf of the Opposite Parties:
- Nil -
Dated:28-02-2014 PRESIDENT
