Brief facts of the case are that the complainant is a retired professor aged about 71 years and she has her residence at Siliguri. Being approached by the OP Nos.1 & 2 the complainant obtained a mediclaim policy in the year 1991 and since then she has the mediclaim policy without break for the last 23 years.
In the year 2003, the complainant suffered from cancer of the right breast and got herself treated at TATA Memorial Centre (Tata Memorial Hospital) in Mumbai. Subsequently, on 16th July, 2010 a lump was detected in her left breast and she underwent two surgery one at New Delhi and another at TATA Memorial Hospital at Mumbai. Subsequently, she preferred a claim against the OPs which the OPs tried to avoid. Complainant had to file an application before this Forum for the Redressal of her grievance being Consumer Case No. 80/S/2011 and she obtained order in her favour.
In the year 2012, the mediclaim policy issued by the OP No.1 being No.313207/48/2013/733 dated 3rd September, 2012 in the name of the complainant and the said policy was valid from 11th September, 2012 to 10th September, 2013 and premium of Rs.7,231/- had been paid by the complainant.
The complainant was having pain in her knees for sometimes and on 16.03.2013 she went to Max Super Speciality Hospital at New Delhi where she underwent bilateral total knee replacement by Dr. Abhijit Dey and some implants were inserted in her knees and she was discharged from the said hospital on 21.03.2013. The complainant spent a sum of Rs.4,47,816.71/- for aforesaid treatment. The complainant on 25.03.2013 submitted a claim to the Delhi Branch of the OP No.3 along with supporting original documents in respect of her claim, but finding no response from the OPs, complainant wrote a letter dated 17.07.2013 to the OP No.2 enquiring about the status of her claim. Although, OP No.2 in reply to her said letter stated that they were looking into the matter and it would be disposed of soon but the OPs failed to process the claim of the complainant and reimburse the amount spent by her for her treatment. The OPs have indulged in unfair trade practice and there is gross deficiency of service on their part. Accordingly the complainant has filed the instant case against the OPs for payment of Rs.1,25,000/- along with interest @ 12% p.a. from 25.03.2013 till the date of actual payment and Rs.20,000/- for causing harassment and mental agony and Rs.10,000/- as litigation cost.
The OP Nos.1 & 2 entered appearance and contested the case by filing written version wherein the material averments made in the complaint are denied and it has been contented inter-alia that the present case is not maintainable. It has been contended by the OPs that having received the claim documents of the complainant, the OPs found that there was break of insurance in the year 2009, 2010 for almost two months. Since the policy was found lapsed for almost two months, for which the insured submitted a self declaration form on 11.09.2009 on the basis of which policy was issued vide Policy No.48/2010/756 for the period from 11.09.2009 to 10.09.2010 which was a fresh policy. Hence, the disease in question falls outside the scope of cover under exclusion clause no.4.1, 4.2 & 4.3 (xxxiii) of the said policy. It has been further contended by the OPs that since there is a break in the policy for almost two months as per Exclusion Clause 4.1, 4.2 & 4.3, as incorporated in the mediclaim policy, the company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by the insured person in connection with any disease or ailment or injuries. It has been further submitted by the OPs that there is no deficiency in service or unfair trade practice on the part of the OPs/Insurance Company and accordingly the instant case is liable to be dismissed.
To prove the case, the complainant has filed the following documents:-
1. Photocopy of Mediclaim Policy No.313207/48/2013/733, dated 3rd September, 2012, valid from 11.09.2012 to 10.09.2013.
2. Photocopy of Discharge Certificate & other Medical papers of the complainant (3 sheets).
3. Photocopy of bill of Max Super Speciality Hospital, dated 21.03.2013, of Rs.4,47,816.71/-.
4. Photocopy of Claim Form, dated 25.03.2013, submitted by the complainant (4 sheets).
5. Photocopy of letter dated 12th April.2013, sent by the OP No.3 to the complainant, for additional documents received on 20.07.13.
6. Photocopy of the reply of the complainant dated 24.07.2013, to the letter of the Branch Office of the OP No.3.
7. Photocopy of letter dated 17th July, 2013, written and sent by the complainant to the OPs.
8. Photocopy of the reply of OP No.1 dated 5th August, 2013, to the letter of the complainant dated 17.07.2013.
OPs have filed the following documents :-
1. Individual Mediclaim Policy Schedule bearing policy No.13207/48/2009/324 for the period from 17.07.2008 to 16.07.2009.
2. Individual Mediclaim Policy Schedule bearing policy No.313207/48/2010/756 for the period from 11.09.2009 to 10.09.2010.
3. Individual Mediclaim Policy Schedule bearing policy No.313207/48/2013/733 for the period from 11.09.2012 to 10.09.2013 along with Mediclaim Insurance Policy (individual) containing the terms, conditions, exclusions and limitations.
4. Self Declaration Form signed on 11.09.2009 and submitted by the complainant to the OP insurance company on 11.09.2009.
Complainant has filed evidence in-chief.
Complainant has filed written notes of argument.
OPs have filed Written Notes of Argument.
Points for determination
1. Is there any deficiency in service on the part of the OPs ?
2. Is the complainant entitled to get any relief as prayed for ?
Decision with reason
Both issues are taken up together for the brevity and convenience of discussion.
The specific case of the complainant is that she obtained a mediclaim policy from the OP Nos.1 & 2/Insurance Company in the year 1991 and since then she has mediclaim policy without break for last 23 years. Complainant was having pain in her knees for sometimes and on 16.03.2013 she went to Max Super Speciality Hospital at New Delhi where she had undergone bilateral total knee replacement by Dr. Avijit De and she was discharged on 21.03.2013. Complainant spent a sum of Rs.4,47,818.71/- for the aforesaid treatment. On 25.03.2013 the complainant submitted a claim to the Delhi Branch of OP No.3 together with supporting documents, but she found no reply from the OPs. She again wrote a letter dated 17.07.2013 to OP No.2. But the OPs failed to process her claim and reimburse the amount spent by the complainant for her treatment.
In support of her claim, the complainant has submitted a good number of documents.
It is not disputed that the complainant had mediclaim policy with the OPs. The main contention of the OPs is that the complainant has not maintained the continuity of renewal and there was a break of insurance in the year 2009-2010 for almost two months. The complainant then submitted a self declaration form on 11.09.2010 and in view of declaration of the complainant a fresh policy was issued in the year 2009-2010. Since, the policy issued in the year 2009-2010 was a fresh policy the disease of the complainant falls outside the scope of cover under 4 (four) years exclusion clause. The complainant had undergone bilateral knee replacement on 16.03.2013 i.e., within four years of aforesaid policy for which the aforesaid claim of the complainant is not maintainable.
Here we find that the complainant has filed examination-in-chief supported by affidavit wherein she has repeatedly stated that she has never submitted any declaration form to the OPs at any point of time and the alleged photocopy of the declaration dated 11.09.2010 submitted by the OPs is a fake and forged document. Complainant denied her signature appears in the declaration form and categorically stated that the said declaration form is manufactured by the OPs for the purpose of this case. In order to evade the liability on the insurance policy duly issued in favour of the complainant, the burden lay heavily on the OPs to prove the exclusion clause.
According to OPs there was break of policy for two months in the year 2009-2010 and in view of self declaration of the complainant a fresh policy was issued but the complainant categorically denied the signature appears in the declaration form and stated that she never signed any such declaration form at any point of time. OPs could apply for expert’s opinion to establish that the alleged declaration form was duly signed by the complainant and that it was a genuine document. But OPs did not take any initiative to prove the alleged declaration form allegedly submitted by the complainant for issuance of a fresh policy. So, we constrained to hold that the alleged declaration dated 11.09.2010 was not submitted by the complainant. When there was no fresh proposal form and declaration submitted by the complainant then on what basis the fresh policy was issued by the OP. OPs failed to satisfy on this point and there is no satisfactory answer available on record.
Here we find that the OPs have failed to prove that the policy period from 11.09.2009 to 10.09.2010 was issued on the basis of any fresh proposal form and declaration which is the basis of the contract as per terms of the policy. So, it is clear that the said policy for the period from 11.09.2009 to 10.09.2010 was a renewal for the period from 17.07.2008 to 16.07.2009 and the subsequent policies are the continuity of renewal of the previous policies. So, it cannot be held by any stretch of imagination that the complainant’s claim is vitiated by any break of insurance policy.
In the year 2012 the mediclaim policy was issued by the OP being No.313207/48/2013/733 for the period from 11.09.2012 to 10.09.2013. The complainant has undergone bilateral total knee replacement on 16.03.2013 i.e., within the cover period of mediclaim policy. The sum insured during the period from 11.09.2012 to 10.09.2013 was Rs.1,25,000/-. Here, the complainant has made prayer for payment of the claim amount of Rs.1,25,000/- which she is entitled. The insurer has not paid the said amount despite her claims. So, it appears that there was some deficiency of service on the part of the insurer/OPs. So, we find that the complainant is entitled to an award of Rs.1,25,000/- from the OPs. She is further entitled to get a sum of Rs.10,000/- for mental pain, agony and harassment and Rs.2,000/- towards litigation cost.
Thus Issue No.1 is answered in the affirmative in favour of the complainant and Issue No.2 is answered with the observation that the complainant is entitled to a total award of Rs.1,37,000/- from the OP Nos.1 & 2.
Both the issues are disposed of accordingly.
In the result, the case succeeds in part.
Hence, it is
O R D E R E D
that the Consumer Case No.70/S/2014 is allowed on contest in part against the OP Nos.1 & 2 with cost and dismissed exparte against OP No.3, since no relief was sought for against the OP No.3.
The OP Nos.1 & 2, jointly and severally, do pay to the complainant a sum of Rs.1,37,000/- by issuing an account payee cheque in the name of the complainant within 45 days of this order, failing which the award de carry interest @ 9% per annum from the date of this order till realization.
Failing which, the complainant will be at liberty to put the decree into execution.
Copies of the judgment be supplied to the parties free of cost.
