The present first appeal has been filed by the appellants A. Hyma and another against the impugned order dated 2.5.2012 of the State Consumer Disputes Redressal Commission, Kerala, Thiruvanthapuram (hereinafter referred as the ‘State Commission’) passed in Consumer Complaint No.18/2009. 2. The brief facts as recapitulated from the complaint are that the first complainant is the wife of one deceased P.N. Pradeep Kumar and the second complainant is the son of the deceased Pradeep Kumar who are the legal heirs and that the said Pradeep Kumar was insured by the opposite parties. It is the case of the complainants that the deceased Pradeep Kumar had taken an insurance policy from the first opposite party in the year 2006 and that he had renewed the policy in the subsequent year and also that the insured when faced with a critical illness inclusive of coronary artery decease had applied for a sum of Rs. 3,90,000/- for the treatment as assured by the opposite parties as per the policy conditions. It is alleged that though the insured had produced necessary certificates for the treatment, the opposite parties did not pay the sum consequent to which the surgery was prolonged and finally on 4.9.2008 the insured was taken to Malabar Institute of Medical Science Ltd, Kozhikode and though the surgery was fixed to be done on 5.9.08 by 6 A.M., the insured succumbed to his illness. The very case of the complainants is that if the opposite parties had disbursed Rs. 3,90,000/- at the appropriate time, the surgery could have been done and the complainant’s life could have been saved. 3. The complainants then filed the consumer complaint no.18/2009. The OP resisted the complaint. The State Commission after hearing both the parties allowed the complaint vide its order dated 2.5.2012 as under: “It is found that the opposite parties had committed deficiency in service in not paying the death claim amount of Rs. 2lakhs even though they were aware of the fact that the insured had passed away on 15.9.2008. We also hold that since no separate compensation for deficiency in service is ordered, the complainant is entitled for the payment of Rs. 2lakhs with 12% interest from the date of complaint till payment. The complainants are also eligible for payment of Rs. 5,000/- towards costs of the proceedings. 4. The complainants have filed the present appeal against the above order of the State Commission. 5. Heard the learned counsel for both the parties and perused the record. 6 . The learned counsel for the appellants stated that though he State Commission has allowed the death claim of Rs.2 lakhs as per the policy condition, however, the claim in respect of the Critical Illness Benefit has not been awarded by the State Commission for which the complainants are entitled. 7. The learned counsel mentioned that insured suffered Chest Pain on 30.3.2008. Though he was relieved after one day but he was advised Bye Pass Surgery by the treating doctor. Accordingly, he filed the claim with OP insurance company under the heading of Critical Illness Benefit. The OP did not allow the claim under the head of Critical Illness Benefit on the ground that the disease of the insured cannot be treated as heart attack as defined in the policy. However, the bye pass surgery could not take place and ultimately the insured died on 5.9.2008. The learned counsel argued that first of all the insured had suffered heart attack as was diagnosed by the doctors in the common parlance and he was advised to go for bye pass surgery. Critical illness of heart attack is covered in the list of critical illnesses in the policy. Under the heading of Critical Illness Benefit, the learned counsel drew attention to Critical Illness Benefits as given in the policy which states as under: “Critical Illness Benefit - In the event of the Assured’s survival for a period of at least thirty (30) days following a first diagnosis of Critical Illness or first performance of any of the covered surgeries while this Policy is in force, we shall, subject to the provisions herein contained, pay in one (1) lump sum equal to the amount of Critical Illness Benefit as shown on the Policy Information Page or any subsequent endorsement attached to the Policy. If a payment has been made for a Critical Illness, the Critical Illness benefit will terminate under this Policy and no further benefits would be payable. The Critical Illness Benefit is not payable together with the Cancer Benefit” 8. Based on the above, the learned counsel emphasised that on first diagnosis of the critical illness, the payment becomes due and that is why claim was preferred. The insurance company vide order dated 26.5.2008, informed that the insured case was not covered under the heart attack as specified in the policy as all the conditions mentioned in the policy for this critical illness are not fully met . The insured had then controverted the assertion of the OP and he replied on 30.6 .2008 and informed the insurance company that his case was covered under the Critical Illness Benefit. It was contended by the learned counsel that as per Clause 3 relating to Claim Procedure, Point No.(d), if there is dispute with regard to disease, the insurance company was duty bound to get the opinion of another expert doctor to resolve the issue. In this case, clearly there was a dispute between the insured and insurer in respect of disease and therefore the insurance company should have appointed another expert doctor to examine the insured for reaching to a definite conclusion. Thus, the insurance company is deficient on this ground also. Finally, the learned counsel prayed that the case of the insured is totally covered under the Critical Illness Benefit and the insurance company should have allowed the claim preferred under this clause. On the ground of not allowing this claim, the opposite parties should be declared deficient in service and the claim be awarded to the complainants. 9. On the other hand, learned counsel for the respondent insurance company stated that critical illness of heart attack is defined in the policy itself and there are three following conditions attached to this critical illness: “Heart Attack A history of typical chest pain, The occurrence of typical new acute infarction changes on the electrocardiograph progressing to the development of new pathological Q waves: and Elevation of Cardiac Troponin (T or I) to at least 3 times the upper limit of the normal reference range or an elevation in CK MB to at least 200% of the upper limit of the normalreference range”.
10. The case of the insured was not covered as all the three conditions were not satisfied and the same was communicated to the insured vide letter dated 26.5.2008. His case was not the case of heart attack as the claim form clearly mentioned the name of the disease as “Coronary Artery Disease”. The cause of death mentioned in the Death Summary is “Sudden Cardiac Death, Coronary Artery Disease”. This also makes it clear that he was suffering from disease of Coronary Artery disease. 11. The learned counsel for the respondent further pointed out that the disease of coronary bye pass surgery is separately mentioned as a critical disease in the policy which clearly states: “Coronary Bye Pass Surgery The actual undergoing for the first time of open chest coronary artery bye-pass grafting surgery to one or more coronary arteries due to disease of those arteries. Angioplasty, stent insertion, laser or other intra-arterial procedures are excluded.” 12. This clearly requires that for bye-pass surgery, no amount could have been given in advance and the amount becomes due only after the surgery is performed. The learned counsel thus mentioned that on account of these facts, the case of the insured was not covered under the Critical Illness Benefit where any amount could have been sanctioned on the first diagnosis. 13. The learned counsel for the respondent further submitted that the terms of the policy agreement have to the strictly construed to determine the extent of liability of the insurer. In support of his arguments, learned counsel for the respondent cited the following judgement of the Hon’ble Apex Court titled as “Oriental Insurance Company Ltd. vs. Sony Cheriyan, AIR 1999 SC 325, which states as under: “The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to the strictly construed to determine the extent of liability of the insurer.” 14. I have carefully considered the arguments advanced by both the learned counsel and examined the record. 15. First of all, it is seen that the claim form was filed for the Coronary Artery Disease as bye pass surgery was suggested to the insured.This disease can be taken to be under the head of critical illness of Coronary Bye-pass surgery and for this type of critical illness, any amount under the critical illness benefit was due only after the surgery. Thus, the claim of the complainants that the claim of the insured in respect of the critical illness benefit was payable at the time of first diagnosis is not supported by the conditions of the policy.However, I find force in the arguments of the learned counsel for the appellants that when a dispute was raised in respect of the disease, the insurance company should have got the insured examined from some other doctor as per clause ‘D’ of the Claim Procedure given in the policy. Moreover, it is not clear, when the claim form was lodged for Coronary Artery Disease, on what basis the insurance company wrote a letter dated 26.5.2008 repudiating the claim in respect of critical illness of heart attack. It was the duty of the insurance company to have clearly informed the insured that he has filed a claim under Critical Illness of coronary bye-pass surgery and he was only entitled to this claim after the bye-pass surgery is done. Had this been done by the insurance company, the insured might have got his operation done from some other financial support and then he would have submitted the claim and his life could have been saved. Thus, the insurance company is found deficient on two grounds that they did not resort to dispute resolution mechanism given in the policy and secondly that they have not correctly advised the insured on the claim submitted. 16. Based on the above examination, I find that there is no substance in the appeal filed by the appellants/complainants as the State Commission has already awarded the death benefit of Rs.2 lakhs and the critical illness benefit is not payable. However, I award Rs.25,000/- as compensation to the complainants for the two lapses/deficiencies as observed above on the part of the insurance company. 17. Based on the above discussion, respondent insurance company is directed to pay Rs.25,000/- (rupees twenty five thousands only) additionally to the complainants/appellants within a period of 45 days from the date of this order, failing which, an interest @ 10% p.a. shall be payable on the amount of Rs.25,000/- by the insurance company from the date of this order till actual realization. The First Appeal No.436 of 2012 is accordingly disposed of. | 
