BEFORE THE ADDITIONAL BENCH DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MYSURU.
Consumer Complaint (C.C.)No. 1165/2016
Complaint filed on 29.03.2016
Date of Judgement.13.01.2017
PRESENT : 1. Shri Ramachandra M.S., B.A., LL.B.,
PRESIDENT
2. Shri Thammanna,Y.S., B.Sc., LL.B.,
MEMBER
Complainant/s : 1. D.Basavaraj
S/o Doddaiah
No. 1269/1, 7th cross
Sahukar Chennaiah road,
Janahathanagar, Mysuru.
(Smt. M.V. Geetha., Advocate)
V/s
Opponent /s : Star Health and allied insurance
company limited. Family Health
optima insurance plan, C-51, 1st
floor, 8th main above professional
couriers, Saraswathipurarm,
Mysuru-570008.
(Sri B.N.Shashidhar. , Advocate)
Nature of complaint | : | Deficiency in service |
Date of filing of complainant | : | 29.03.2016 |
Date of Issue notice | : | 19.05.2016 |
Date of Order | : | 12.01.2017 |
Duration of proceeding | : | 7 Month 25 days |
SHRI RAMACHANDRA . M.S., PRESIDENT
JUDGEMENT
The complainant has filed the complaint under section 12 of the C.P.Act 1986. against the opposite party pray for the refund of amount and compensation other reliefs as prayed in the complaint.
2. The brief facts complainant is that the opposite party is a Branch officer of Star Health and allied Insurance Company Limited. The complainant had obtained a Family Health Optima Insurance Plan opposite party on 31.03.2014this policy covered the complainant , his wife and children the policy number is P/141116/01/2015/006181 for the period from 31.03.2015 to 30.03.2016 this policy was renewed by the complainant and the policy is still in force.
3. It is submitted that, the above said family Health Optima Insurance Plan covered 2adult+2 children basic Floater sum insured Rs. 3,00,000/- while issuing the above said policy the opposite party assured that for any medical expenses to the tune of Rs. 3,00,000/- will be covered under the policy to the complainant.
4. It is submitted that, on 16.01.2016 the complainant while riding a two wheeler a cow came between the way he applied brake and had skid and fall near Sahukar Chennaiah road, TK layout around 6.30 p.m and sustained back pain and other injuries all over the body at that time the pain was little later it increased by day and he visited to Apollo hospital for treatment on 19.01.2016 Dr. Sree Harsha suggested for MRI Scan and other checkups. The complainant undergone check up and finally diagnosed as the complainant is suffering from L5-S1 Degenerative stenosis with right lower limb Radoculopathy and weakness and Retrolisthesis L5 over S1 and Lumbraised S1 and on the basis of scan report he advised the complainant to undergo surgery as early as possible on 20.01.2016.
5. It is submitted that, the complainant admitted to the appollo hospital mysuru on 21.01.2016 and underwent surgery of MINIMALLY INVASIVE L5-S1 DECOMPRESSION STABILIZATION+TLIFI on 22.01.2016 and the complainant was discharged on 26.01.2016. To this medical treatment the complainant spent Rs. 2,18,291/- as per the consolidated bill issued by the Apollo hospital , Mysuru.
6. It is submitted that, the complainant wrote a letter to the Star Health and Allied Insurance co Ltd. Regarding the accident and Hospitalization through hospital for this the opposite party send letter to the hospital on 22.01.2016 there by approve preliminary amount of Rs. 30,000/- is provisional and it is subject to review upon the receipt of further details. Again on 25.01.2016 sent letter to the hospital regarding rejection of Pre authorization for cashless treatment of the complainant is not approved.
7. It is submitted that, the complainant came to know the rejection of the claim by the opposite party at the time of discharge, by the hospital and shocked, and paid entire hospital charges of Rs. 2,18,291/- and discharged from the hospital on 25.01.2016 After the discharge the complainant wrote several letters along with original medical bills, discharge summary and etc., to the opposite party to requesting to pay the medical expenses to the complainant and the wife of the complainant personally visited the office of the opposite party for requesting to pay the medical expenses. But the opposite party instead of paying the medical expenses to the complainant, they send untenable reply notice dated 18.02.2016 stating that the MRI report shows evidence of chronic degenerative changes there is no acute traumatic changes thus, the complainant has undergone treatment for degenerative disc disease, the company is not liable to make any payment in respect of any expenses incurred by the insured person for treatment of the above mentioned disease. Hence due to non disclosure of material facts the insurance contract void and close the claim as no claim.
8. The complainant prays for the relief of payment of medical expenses of Rs. 2,18,291/- and compensation of Rs. 1,00,000 and relief as prayed in the complaint.
9. The notice to the opposite party duly served and represented by the counsel and filed version and affidavit in the complainant. In the version the opposite party has taken specific defence by admitting the issuance of the policy in favour of complainant and his family members for a sum of Rs. 3,00,000/-. And further the opposite party denies some of the averments made in the complainant which is not within their knowledge and also shifts the burden of proving the same to the complainant. The specific defence taken by the opposite party, since the complainant is suffering from pre existing disease which leads to the present disease for which the complainant has undergone operation as per the advice of the doctors. Here the opposite party further contends that the non discolour of pre existing disease of complainant at the time of obtaining the policy by the complainant amounts to the violation of the condition of policy for which the opposite party is not liable to pay the claims made by complainant. On that ground the opposite party contends that the repudiation of claim the complainant is valid and it is in accordance with the condition of the policy. Therefore on these grounds the opposite party justified the rejection of complainant claim and prays for dismissal of complaint.
10. To prove the facts, the complainant and opposite party lead their evidence by filing affidavit along with documents. On perusal of the documents placed on board, and on hearing oral arguments and perused written arguments, matter posted for orders.
11. The points that arise for our consideration are;-
- Whether the complainant proves that there is deficiency in service and unfair trade practice on the part of opposite party by not paying the claim amount to the complainant and thereby he is entitled for the reliefs sought?
- What order?
12. Our answer to the above points is as follows;
- Point No.1: Partly in the affirmative.
- Point No.2: As per final order for the following;
REASONS
13 . Point No.1:- It is a un disputed fact that complainant has obtained a family health optima insurance plan from opposite party on 31.03.2014 this policy covered the complainant his wife and children. The policy no is P/141116/01/2015/006181 for the period from 31.03.2015 to 30.03.2016 the policy is in force as on the date of raising claim of complainant.
14. Further the above said health optima insurance plan covered two adults +2 children. Basic floater sum insured Rs. 3,00,000/- while issuing policy the opposite party assured that, for any medical expenses to the tune of Rs. 3,00,000/- will be covered under the policy to the complainant these facts is also not disputed by the opposite party.
15. Further it is submitted that on 16.01.2016 when the complainant while riding a two wheeler when he applied sudden break to avoid a cow he fell on road and sustained back pain and other injuries all over the body later pain was increased. He visited hospital daily for treatment on 19.01.2016 Dr. Sree Harsha suggested for MRI Scan and other checkups. It was diagnosed the complainant is suffering from L5-S1 degenerative Stenosis with right lower limb Radiculopathy and weakness and Retrolisthesis L5 over S1 and Lumbarised S1 and on the basis of Scan report doctor advised the complainant to undergo surgery as early as possible. These facts are not either admitted or denied by opposite party he only claims that these facts are not within his knowledge and he put the burden of proving the same on the complainant. He proved all these facts with documentary evidence in support of his claim.
16. Furhter it is an undisputed fact that the complainant had underwent surgery for MINIMALLY INVASIVE L5-S1 DECOMPRESSION STABILIZATION+ TLIFI on 22.01.2016 and complainant was discharged on 26.01.2016. for the operation and treatment complainant spent Rs. 2,18,291/- as per the consolidated bill issued by the Appollo Hospital , Mysuru . Here these facts of complainant is admitted to the hospital and further that he had undergone operation and latter he was discharged from hospital and medical bill these facts is proved by the complainant. With documentary evidence in support of his claim at the same time opposite party is not disputing the same.
17. Further the only disputed issue between complainant and opposite party is that regarding settlement of claim in respect of operation and hospital bill of Rs.2,18,291/-. Here repudiation to settle the claim of hospital bill of complainant by the opposite party is for the reason that the complainant was suffering from long standing pre existing disease and also complainant has intentionally did not disclose the pre existing disease at the time of taking policy the non disclosure of these facts by complainant amounts to violation of condition of policy laid down by the opposite party company. When such being the case any violation of policy condition by complainants is fatal to the settle the claims. It can also be held that for such violation the opposite party company is not liable to settle the claim of complainant and thereby the opposite party is also justified in denying the claim of complainant.
18. Further opposite party merely by making a bald allegation that the complainant has violated policy condition thereby they are not liable for settlement of claim. Apart from this stray allegation we have to examine whether opposite party has proved that the complainant was suffering from pre existing decease. Which leads to the present disease for which the operation was conducted upon complainant. Here by examing the evidence and documents produced by opposite party has utterly by failed prove that the complainant was suffering from pre existing disease as contended by opposite party. Further the when he takes the defence that the complainant was suffering from pre existing disease prior to obtaining policy from opposite party the burden is shifted on the opposite party to prove the same when he fails to discharge his burden to prove, the defence taken by him will not survive it has to be held as not proved by the opposite party. The opposite party has relied on the judgements rendered by Hon’ble National Commission and other State Commission the principal of these ruling cannot be applied to present complaint for simple reason that when the opposite party has failed to established the pre existing disease of complainant these rulings cannot be made applicable to the complainant.
19. Further the complainant has admittedly obtained the health policy for the first time on 31.03.2014 for himself and his family members and after it was again renewed in the year 31.03.2015 to 30.03.2016 it was a valid policy in force when the alleged operation was conducted to the complainant. Further very important aspect is that when at the first time when policy was taken by complainant in the year 2014 no claims is raised by him between 2014 and 15.01.2016. It is a very interesting fact that for period of almost one year 7 months from the date of taking first policy till this present Claim absolutely no claim is raised by complainant. till the present claim , If the complainant is suffering from any pre existing disease as alleged by opposite party in such case definitely there may be on occasion for any further follow up treat by complainant. and if complainant was suffering from any disease there is every chance of him falling sick or he may be force to take further treatment for the same. When there is no proof of any further treatment for the alleged pre existing disease as contended by opposite party. We can safely come to the conclusion that whatever defence taken by opposite party is in order to escape the liability to settle the lawful claim of complainant.
20. Further the history of cause of disease is that on 16.01.2016 when complainant was riding two wheeler a cow come between the way when he applied break due to skid he fall on the road and he sustained back pain and other injuries all over the body at that time resulting in the surgery for the diagnosed disease. Here it can be relied and linked that the history of accident and the disease suffered by complainant , it can be believed that there is a nexus between the cause of accident and disease suffered by complainant. Further the complainant has discharged his burden of proof which lies on him and thereby he has clearly established that the rejection of his claim by opposite party is nothing but a violation of contractual obligation. And it amounts to unfair trade practice on the part of opposite party for which he is liable to pay compensation and other reliefs to the complainant as prayed.
21. Complainant has relied on judgement rendered by National C.D.R.C in case a between New India Assurance Co. Ltd., V. Anith Chaudhary
Suppression of Pre-existing disease alleged –Not proved-Medical reimbursement-Repudiation not justified.
Consumer Protection Act, 1986-Section 2(1)(g), 21(b)-Insurance (Mediclaim)-Valve replacement Surgery-Medical reimbursement-Suppression of Pre-existing disease alleged –claim repudiated-Deficiency in service-District Forum allowed complaint-State Commission dismissed appeal-Hence revision-Merely because complainant underwent valve replacement surgery in May, 2011 it cannot be assumed that he was suffering from heart problem- Violation of policy conditions not established-Repudiation not justified. The principles of the above ruling is aptly applicable to the case of complainant.
22. For the above reasons by looking at the facts and documents produced by complainants has proved his case beyond reasonable doubt and also complainant proved that there is a deficiency of service on the part of opposite party by doing unfair trade practice.
23. According to this forum we answered Point no.1 in the partly affirmative and pass the following:
24. Point no.2:- For the above discussion we here by proceed to pass the following:
ORDER
- The complaint is hereby allowed in part.
- The opposite party is hereby directed to pay the amount of Rs. 2,18,291/- to the complainant, within 60 days of this order. with interest at the rate of 18% p.a. from the date 22.01.2016 till payment is made.
- The opposite party is directed to pay a sum of Rs 10,000/- towards mentally agony and Rs. 5,000/- towards litigation expenses and also a sum of Rs. 5,000/- towards unfair trade practice has to be paid to the complainant within 60 days of this order.
- In default the opposite party shall pay interest at 12% p.a. on the
said total sum of Rs. 20,000/- from the date of this order till payment.
- In case of default to comply this order, the opposite parties shall undergo imprisonment and also liable for fine under section 27 of the C.P. Act, 1986.
6. Give the copies of this order to the parties, as per Rules.
(Dictated to the stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on the 13th January 2017)
Shri Thammanna Y.S., Shri Ramachandra M.S.,
Member. President.
LIST OF WITNESSES EXAMINED AND DOCUMENTS MARKED ON BEHALF OF COMPLAINANT
Evidence by way of affidavit on behalf of complainant:
CW-1 : BASAVARAJU . D
List of Documents Produced on behalf of complainant:
1 : Application for membership with the OP.No. 35390
2 : Application for site no 35890 dated 08.06.2007 with OP
3 : Letter written by the OP dated 11.07.2008
4 : Legal notice and postal window coupon dated 06.04.16
5 : Reply notice dated 18.04.2016.
LIST OF WITNESSES EXAMINED AND DOCUMENTS MARKED ON BEHALF OF OP.
Evidence by way of affidavit on behalf of OP :
RW-1 : UPPENDER KUMAR NAIK
List of Documents Produced on behalf of OP :
1 : Original policy copy containing the terms and conditions
of the policy issued to the complainant .
2 : Xerox copy of the discharge summary issued by BGS
Appollo Hospital , Mysore.
3 : Xerox coy of the report give by Dr. B. Pasupathy, a
consultant orthopaedic surgeon dated 15.02.2016
Shri Thammanna Y.S., Shri Ramachandra M.S.,
Member. President.
