IN THE CONSUMER DISUTES REDRESSAL FORUM, PATHANATHITTA

Dated this the 13^th day of May, 2010.

Present : Sri. Jacob Stephen (President):

Smt. C. Lathika Bhai (Member)

                                                  Sri. N. Premkumar (Member)

C.C.No.109/08 (Filed on 25.7.08)

Between:

Shiju Sebastian,

Maliakal Thundiyil House,

Near CANA,

Thuruthy.P.O.,

Changanacherry.                                                             .....     Complainant.

And:

1.     TATA AIG Life Insurance Co. Ltd.,

2^nd Floor, Foto Fast House,

M.G. Road, Kochi – 682 035,

Rep. by its General Manager.

2.     M/s. Bajaj Capital Insurance Broking Ltd.,

(Agency Office CO01), Rubicon Building,

S.A Road, South Over Bridge,

Valanjambalam, Cochin – 16,

Rep. by its General Manager.

3.     Khaleel. P.K.,

Parekkattu House,

Veroor.P.O., Changanacherry.

4.     TATA AIG Aban Towers,

Pathanamthitta,

Rep. by its Manager.

(By Adv. Isac. T. Paul)                                                   .....     Opposite parties.

O R D E R

Smt. C. Lathika Bhai (Member): 

                   The complainant has filed this complaint against the opposite parties for getting a relief from Forum.

                   2. The complainant’s case is as follows:-  The 1^st opposite party is an insurance company, 2^nd opposite party is an agent of 1^st opposite party, 3^rd opposite party is a servant of 1^st and 2^nd opposite party and 4^th opposite party is the branch office of 1^st opposite party.  The complainant had taken a mediclaim policy from the 1^st opposite party as per the instructions given by the 3^rd opposite party.  The 3^rd opposite party narrated the features and benefits of the policy as the policy shall cover the medical expenses of an amount of Rs.3,75,000/- and for the surgery Rs.37,500/-.  On the insistence of 3^rd opposite party the complainant had taken the insurance policy called “Full In Hospital Insurance” known as Health First (Units).  On 7.11.06 the complainant paid the premium and the policy was issued to the complainant.  The policy was granted 3 Health First Units.  The proposal form was filled by the 3^rd opposite party and the benefit of holding of 3 units is not explained by the opposite parties to the complainant.  On 29.11.06 the complainant sustained extensive craniofacial injuries in a road accident and he was taken to St. Thomas Hospital, Chethipuzha.  This hospital is included in the ‘Hospital list’ (No.631) published by 1^st opposite party.  On 30.11.06 the complainant was referred to the Pushpagiri Medical College Hospital for better treatment and surgery.  On 30.11.06 the complainant underwent surgery (debridement repair) and he was discharged on 21.12.06 after that underwent treatment as outpatient.  He had incurred an amount of Rs.22,056.371 for treatment.  On 6.2.07 the complainant lodged a claim before the 1^st opposite party for getting the medical expenses.  On 9.2.07 they had sent a reply to submit the form and documents.  The complainant had submitted all the relevant documents but the opposite parties had taken any action for settling the claim.  After that on 19.4.07 the 1^st opposite party offered to pay a sum of Rs.4,125/- only to the complainant.  The complainant is entitled to get the medical expenses incurred him from the opposite parties.  The opposite parties have repudiated the claim without exercising due care and caution and after application of mind.  This amounts to a deficiency in service from the part of opposite parties, which caused mental agony, financial loss and other inconveniences to the complainant for that the opposite parties are liable to compensate the same.  Hence he filed this complaint for getting an order for directing the opposite parties to pay the medical expenses of Rs.22,056.37 incurred to the complainant with interest and to pay the surgical benefit of Rs.37,500/- along with interest and to pay excess premium received from the complainant along with compensation and cost.  The complainant prays for granting the reliefs.

                   3. The 1^st and 4^th opposite parties filed a common version raising the following contentions:  The 1^st opposite party has no relationship between the 2nd and 3^rd opposite party, there is no Principal and agent relationship subsisting between the 1^st and 2^nd opposite party.  The complainant had purchased 3 units of health policy floated by the 1^st opposite party.  The complainant is entitled to get all policy benefits in multiples of three.  The benefits under the policy have been clearly explained to the complainant at the time of applying for the same and have also been clearly laid down in the policy document issued to the complainant.  These opposite parties have admitted the policy issued to the complainant.  The excess premium amount Rs.145/- received from the complainant has been reduced the annual premium amount for the subsequent year.  The benefits of holding the policy are that the policy holder is entitled to a fixed amount of Rs.250/- per day as daily hospital benefit, a fixed amount of Rs.125/- per day as post hospitalisation benefit and also surgical benefits of Rs.12,500/-.  If the complainant was not comfortable with the policy condition he could have invoked the free look period Clause contained in the application form to cancel the policy and obtain the refund of premium.  The benefits under the policy are subject to the limitations as laid down in the policy document.  The benefits are as follows:-

(1)   DAILY HOSPITAL BENEFIT:-  While this policy is in force and

during the lifetime of the insured, if the insured is admitted to a Hospital in India as an inpatient under the recommendation and professional care of a Registered Medical Practitioner of Medically necessary treatment of a covered injury or covered illness, we will pay the daily hospital benefit for each day of confinement in the hospital (except for the insured’s first three (3) days of confinement), but not exceeding ninety (90) days for any one covered injury or covered illness in respect of the same confinement.

If, for, medically necessary treatment of an emergency medical condition, the insured is admitted as an inpatient to a hospital which meets all the conditions of a hospital as defined in this policy except that it is not pre-approved by the company (refer to (iii) of definition of “Hospital”), we shall deem it an admission to a hospital meeting our definition, provided that such confinement is no more than 5 days in respect of the same confinement.  Only in the case where the insured is transferred to a hospital as defined in this policy immediately following discharge from such hospital for treatment of the same emergency medical condition, we shall deem that the confinement in the defined hospital to have started from admission to the hospital which has treated earlier for the emergency medical condition.

The above confinement must be medically necessary for benefits to be payable by us.

                    The Daily Hospital Benefit is shown on the policy information page (or as modified by any subsequent endorsement).  In all circumstances, we will pay no more than one Daily Hospital Benefit for each Day of Confinement.

(2)              POST HOSPITALISATION BENEFIT:-  Provided the  Daily Hospital Benefit in 1 above is payable, if the insured received medically necessary follow-up treatment for the same covered injury or covered illness within thirty (30) days of discharge and while the policy is in force, at the outpatient department of a hospital in India or by the same attending physician of the relevant confinement, we will pay an amount equal to fifty percent (50%) of the Daily Hospital Benefit for each day of such follow-up treatment, subject to a maximum of three (3)days for any one covered injury or covered illness in respect of the same confinement.  In all circumstances, we will pay no more than one post hospitalisation benefit for each day of such follow-up treatment.

                  Notwithstanding that the Daily Hospital Benefit in 1 above is 

payable, no Post-Hospitalisation Benefit is payable if the relevant 

confinement is admission for emergency medical condition to a hospital 

not pre-approved by the company.

3.  SURGICAL BENEFIT:-  Provided the Daily Hospital Benefit in 1 above is payable, if a surgical procedure/surgery specified in the attached Table of Surgical Procedures/Surgeries was performed on the insured during such Confinement for Medically Necessary treatment of the same Covered Injury or covered illness under recommendation and professional care of a Registered Medical Practitioner, we will pay an amount equal to fifty (5)) times the Daily Hospital Benefit.

        4. The complainant has not produced documents showing that he incurred expenses of Rs.22,056.37 for treatment.  The complainant was discharged from Pushpagiri Medcal College Hospital on 8.12.06.  He did not undergone treatment as inpatient in that hospital till 12.12.06.  The complainant is entitled to get an amount of Rs.4,125/- as per the terms and conditions of the policy.  According to the details furnished by the complainant he was hospitalised for 8 days.  As per the policy terms the first 3 days are excluded for the computation of benefit.  He was entitled to post hospitalisation benefit for one day only.  Since the complainant had purchased 3 units of the policy the complainant is entitled to all policy benefits in multiples of three.  For the inpatient treatment he would get Rs.750/- per day and as outpatient he would get Rs.375/- per day.  As such the complainant is entitled to get only Rs.4,125/- as the hospital benefit of the policy.  The complainant is not entitled to get the surgical benefits since the surgery performed does not fall within the surgery referred in the Table of Surgical procedures/surgeries specified in the policy document.  The complainant had refused to accept the cheque issued to him in settlement of his claim.  1^st and 4^th opposite parties have granted all possible benefits to the complainant under the policy.  Further the complainant is not a consumer as defined in the C.P.Act.  Therefore the complainant is not entitled to get any reliefs as sought for in the complaint hence this opposite parties prayed for the dismissal of the complaint.

          5. The 2^nd opposite party has not appeared or filed version hence he set exparte.

          6. The 3^rd opposite party has filed a version stating as follows:-  He was a staff working with Bajaj Capital since June 2006 to December 2006.  He has no involvement in this issue except he sold a product of TATA AIG for Bajaj Capital.  As per the brouchure of TATA AIG the customer is eligible for the daily hospital benefit and surgery benefit.  He prayed for avoid him from this case as the issue is between the TATA AIG Bajaj Capital.

          7. The points for consideration in this complaint are:

(1)   Whether the complaint is maintainable before the Forum?

(2)   Whether the complainant is entitled to get a relief as prayed

for in the complaint?

(3)   Relief and Costs?

           8. The evidence in this case consists from the side of the complainant is that the proof affidavit filed by the complainant and the documents produced by him.  On the basis of the proof affidavit the complainant has examined as PW1 and the documents produced is marked as Exts.A1 to A9 series.  For the 1^st and 4^th opposite parties the cluster operations Manager of the 1^st opposite party has filed a proof affidavit and documents.  On the basis of the proof affidavit, the witness has been examined as DW1 and the documents produced were marked as Exts.B1 to B11.  There is no oral or documentary evidence from the part of other opposite parties.  After closure of the evidence, both sides heard.

          9. The complainant’s case is that the complainant had taken an Insurance policy called “Full In Hospital Insurance” known as Health First (units) by the insistence of 3^rd opposite party from the 1^st opposite party on 7.11.2006.  As per the policy the complainant is entitled to get daily hospital benefit Post hospitalization and surgery benefits from the opposite parties.  On 29.11.06 the complainant sustained grave extensive craniofacial injuries in a road accident and he was treated in St. Thomas Hospital, Chethipuzha and Pushpagiri Medical College Hospital.  For the treatment he had sustained an amount of Rs.22,056.37/-.  The complainant filed a claim before the opposite parties for getting the medical expenses.  But the claim was not settled.  The 1^st opposite party offered an amount of Rs.4,125/- but the complainant refused to receive that amount and he filed this complaint for getting the reliefs as sought for in the complaint.

          10. In order to prove the complainant’s case, the complainant has adduced oral evidence as PW1 and Ext.A1 to A9 were marked.  Ext.A1 is the policy information page relating to the medicalim policy taken by the complainant.  Ext.A2 is the copy of the policy application form of the complainant.  Ext.A2(a), A2(b)  are the relevant portion in Ext.A2 stated the name and address of the 2^nd opposite party.  Ext.A3 is the 1^st premium receipt of the policy.  Ext.A4 is the statement of accounts of the complainant’s account in HDFC Changanassery Branch (marked with subject to the objection of opposite party).  Ext.A5 is the reply slip from 1^st opposite party.  Ext.A6 is the copy of reference letter issued from Chethipuzha Hospital to Pushpagiri Medical College Hospital.  Ext.A7 is the No.631 entry stating the name of the Chethipuzha Hospital.  Ext.A8 is the medical certificate issued by the Pushpagiri Hospital.  Ext.A9 series are the medical bills issued from the Pushpagiri Hospital for the treatment of the complainant.  The 1^st and 4^th opposite parties counsel has been cross-examined PW1.

          11. The 1^st and 4^th opposite party contended that this opposite parties have granted to the complainant all possible benefits that the complainant is entitled to get under the policy terms.  The complainant is not entitled to surgical benefit since the surgery performed does not fall within the surgeries specified in the policy document.  The complainant is not entitled to entire hospital expenses relating to all days and post hospitalisation treatment.  Since such expenses are not covered under the terms of the policy. 

          12. According to 3^rd opposite party he sold the product of TATA AIGonly, he has no involvement in this case.  As per the brochure the customer is entitled to get the daily hospital benefit and surgery benefit.

          13. In order to prove the contentions of opposite parties, 1^st opposite party’s manager has been adduced oral evidence as DW1 and Exts.B1 to B11 were marked.  Ext.B1 is the policy application form of the complainant.  Ext.B2 is the copy of the policy certificate issued to the complainant.  Ext.B1 and B2 is already marked as Exts.A1 and A2.  Ext.B3 is the hospitalisation claim form dated 23.3.07.  Ext.B4 is the certificate of medical attendant dated 11.4.07.  Ext.B5 is the discharge summary issued from Pushpagiri Medical College Hospital. Ext.B6 is the copy of claim settlement letter issued by the 1^st opposite party to the complainant On 19.4.07.  Ext.B7 is the O.C of premium payment notice dated 19.10.07.  Ext.B8 is the premium reminder notice dated 22.11.07.  Ext.B9 is the O.C of lapse notice dated 11.12.07 issued by 1^st opposite party to the complainant.  Ext.B10 is the authorisation letter issued by the 1^st opposite party to the Cluster Operations Manager.  Ext.B11 is the O.C of sample sales illustration issued by the 1^st opposite party to the complainant.  The complainant’s counsel has cross-examined DW1.

          14. There is no dispute to the point that the complainant had taken Health First (units) policy from the 1^st opposite party.  As per the policy the policy holder is entitled to daily hospital benefit, post hospitalisation and surgical benefits.  The opposite parties have admitted the policy and its coverage.  Ext.A6 shown that the complainant had treated in Chethipuzha St. Thomas Hospital on 29.11.06 due to the injuries sustained in the road traffic accident and he was referred to further expert management.  On 30.11.06 the complainant was admitted in Pushpagiri Medical College Hospital.  As per Ext.A8 and B5, medical certificate issued by the doctor who treated by the complainant and the discharge summary issued by the Pushpagiri hospital shown that wound debridement and sutured (repair) was done under GA to the complainant on 30.11.06 at Pushpagiri Hospital.  Ext.A9 series medical bills shows that the complainant had spend an amount of around Rs.25,000/- for his treatment.  The complainant had filed a claim before the 1^st opposite party and the 1^st opposite party was offered an amount of Rs.4,125/- as the daily hospital benefit and post hospitalisation benefit only.  They referred to pay the surgical benefits to the complainant.  But the complainant refused to accept the amount allowed by the opposite parties.

          15. According to the opposite parties they have contended that the complainant is not entitled to surgical benefit since the surgery performed does not fall within the surgeries referred in the Table of Surgical procedures/surgeries specified in the policy.  On a perusal of Ext.B2 terms and conditions of the policy, the exclusion clause does not says the treatment availed by the complainant is excluded from the benefits under the policy.  The materials on records clearly shows that the complainant was done wound debridement and suturing (repairing) on lower eyelid and adjacent check in Pushpagiri Hospital for the facial injury sustained due to the road traffic accident.  The complainant has been paid an amount of Rs.25,000/- for the treatment as per Ext.A9 series.  As per the policy condition the insured is entitled to daily hospital benefit post hospitalisation and surgical benefits.  The complainant was taken the policy by believing that he had get all the hospital benefits and surgical benefits under the policy on claim.  But the opposite parties have repudiated the claim without sufficient reason. The fundamental principles of the insurance law is that utmost good faith must be observed by the contracting parties.  It is the duty of the insurance company and its agent to disclose all material facts relating to the policy taken by the insured.  In the circumstances, the complainant is entitled to get the surgical benefits from the opposite parties.  From the above discussions, we find a clear deficiency in service from the part of opposite parties, which caused mental agony, financial loss and other inconveniences to the complainant for that the opposite parties are liable to compensate the same.  The opposite parties are liable to pay the hospital benefits of 5 days, post hospitalization benefit of 1 day and surgical benefit of Rs.22,056/- to the complainant as per the conditions of the policy.  The complainant is also entitled to get compensation and cost from the opposite parties. 

          16. At the time of cross-examination PW1 stated that, “case file sNbvXtijw Rm³ \ÂInbncp¶ excess premium aS¡n¯¶p”.  Hence the prayer of the complainant for directing the opposite parties to refund Rs.145/- (excess amount) collected from him is not considering.  In the circumstances, other prayers of the complainant can be allowed. 

          17. In the result, the complaint is allowed, thereby the complainant is allowed to realise an amount of Rs.3,750/- (750x5 days) as daily hospital benefit and post hospitalisation benefit of Rs.375/- (1 days) and surgical benefit of Rs.22,056/- (Rupees Twenty two thousand and fifty six only) claimed by the complainant from the 1^st opposite party with interest at the rate of 8% per annum from the date of filing of this complaint till this date.  The complainant is also allowed to realise an amount of Rs.5,000/- (Rupees Five Thousand only) as compensation along with a cost of Rs.2,000/- (Rupees Two Thousand only) from the first opposite party.  The first opposite party is directed to pay the amount within 30 days from the date of receipt of this order failing which an interest at the rate of 9% shall be paid to the complainant till the realisation of the whole amount.

          Declared in the Open Forum on this the 13^th day of May,2010.

                                                                                          (Sd/-)

                                                                                   C. Lathika Bhai,

                                                                                         (Member)

Sri. Jacob Stephen (President)            :         (Sd/-)

Sri. N. Premkumar (Member)              :         (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Shiju Sebastian

Exhibits marked on the side of the complainant:

A1     :  Policy Information Page

A2     :  Photocopy of the Application Form

A2(a) :  Relevant portion of Ext.A2

A2(b) :  Relevant portion of Ext.A2

A3     :  First Life Insurance Premium Receipt

A4     :  Statement of account

A5     :  Reply slip

A6     :  Copy of reference letter issued from Chethipuzha Hospital to Pushpagiri 

              Medical College Hospital.

A7     :  The No.631 entry stating the name of the Chethipuzha Hospital.

A7(a) :  Hospital list of TATA AIG

A8     :  Medical certificate issued by the Pushpagiri Hospital. 

A9 series:  Medical bills (27 Nos. issued from the Pushpagiri Hospital for the 

                  treatment of the complainant.   

Witness examined on the side of the opposite parties:

DW1  :  Murali Prasad Thekkeppatt

Exhibits marked on the side of the opposite parties:

B1     :  Policy application form of the complainant. 

B2     :  Copy of the policy certificate issued by 1^st opposite party to the 

             complainant. 

B3     :  Hospitalisation claim form dated 23.3.07. 

B4     :  Certificate of medical attendant dated 11.4.07 issued by 1^st opposite party 

             to the complainant. 

B5     :  Discharge summary issued by Pushpagiri Medical College Hospital

             to the complainant.

B6     :  Copy of claim settlement letter dated 19.4.07 issued by the 1^st opposite 

              party to the complainant. 

B7     :  O.C of premium payment notice dated 9.10.07 issued by the 1^st opposite 

              party to the complainant. 

B8     :  Premium reminder notice dated 22.11.07 issued by the 1^st opposite party to 

             the complainant. 

B9     :  O.C of lapse notice dated 11.12.07 issued by 1^st opposite party to the 

             complainant. 

B10    :  Authorisation letter dated 30.12.08 issued by the 1^st opposite party to the 

             Cluster Operations Manager.

B11    :  O.C of sample sales illustration issued by the 1^st opposite party to the 

             complainant. 

                                                                                                (By Order)

                                                                                      Senior Superintendent

Copy to:  (1)  Shiju Sebastian, Maliakal Thundiyil House, Near CANA,

                       Thuruthy.P.O., Changanacherry.                                                                    (2)   The General Manager, TATA AIG Life Insurance Co. Ltd.,

             2^nd Floor, Foto Fast House, M.G. Road, Kochi – 682 035,

     (3)    The General Manager, M/s. Bajaj Capital Insurance Broking Ltd.,

             (Agency Office CO01), Rubicon Building, S.A Road, South Over    

             Bridge, Valanjambalam, Cochin – 16,

     (4)   Khaleel. P.K., Parekkattu House, Veroor.P.O., Changanacherry

               (5) The Manager, TATA AIG, Aban Towers,  Pathanamthitta,

               (6)   The stock file.