D.o.F:21/1/2010 D.o.O: 31/8/2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD CC.NO. 12/10 Dated this, the 31st day of August 2010 PRESENT: SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER SMT.P.P.SYAMALADEVI : MEMBER Mrs.Suhara, W/o N.Moidu, Nellikkad House, Povval, Muliyar Po, Kasaragod. : Complainant (Adv.Kusuma.M,Kasaragod) 1. Branch Manager, Oriental Insurance Co.Ltd,2nd floor, City Point Building, M.G.Road,Kasaragod. (Adv.Mahalinga Kasaragod) 2. B.Sarathchandra Das Proprietor, : Opposite parties Aparna Enterprises,C/o Kasaragod Power- Corporation Pvt. Ltd, No.5/332, Bare village, Mylatti Po, Kasaragod. (Exparte) ORDER SRI.K.T.SIDHIQ : PRESIDENT In short, the case of the complainant is as follows: Complainant’s husband Moideen was an employee under 2nd opposite party. In 2001 a Medi claim insurance policy was secured from Ist opposite party which covers the complainant, her husband and their 3 children. The premium of the said medi claim policy was paid through 2nd opposite party. The said policy was renewed from time to time and still in existence. As per policy No.441602/48/2008/349 for the period 1/8/2008 to 31/7/2009 the complainant was insured for ` 50,000/- and the premium ` 3187/- was also duly paid. Complainant was suffering from heart disease and due to complaint on her heart valve in the month of April 2009 she was hospitalized at A.J.Hospital & Research Centre Mangalore from 25/4/09 to 9/5/09 as in patient. She spent ` 1,05,000/- towards the treatment expenses. Husband of the complainant filed a claim before Ist opposite party for reimbursement of the sum of ` 50,000/- as per the terms of policy. But Ist opposite party repudiated the claim raising untenable contentions . Though complainant has caused a lawyer notice to Ist opposite party it was yielded no result. Hence the complaint alleging deficiency in service on the part of opposite parties. 2. Though notices were issued by registered post. Inspite of receipt of notice 2nd opposite party remained absent. Hence 2nd opposite party had to be set exparte. Ist opposite party filed version. According to Ist opposite party, complainant’s husband has obtained a mediclaim policy for the period 31/7/03 to 30/7/04 through his employer Aparna Enterprises. It was renewed for the period 31/7/04 to 30/7/05. The policy ended on 30/7/05 was not renewed within the due period. The insured had obtained a policy only on 1/8/05 and there was a break up period of 2 days in obtaining the policy of insurance thereby the continuity of the previous policy had come to an end . As per Section 4.1 of the policy, pre existing disease can be covered under the scope of the policy only if the insurance has been in force continuously for four years. More over as per the discharge summary dtd.25/4/09 issued from A.J.Hospital Research Centre . complainant Suhara has been suffering from the disease since 25 years. Hence pre existing disease are excluded from the scope of the mediclaim cover. Hence repudiation letter sent to the complainant is valid. Therefore there is no deficiency in service on their part. 3. Complainant filed proof affidavit in support of her claim Exts.A1 to A7 marked. Complainant cross examined by the counsel for opposite party. On the side of opposite party Exts.B1 to B8 marked. Both sides heard. Documents perused. 4. Sri.Mahalinga, learned counsel for opposite party tried to maintain that complainant was suffering from heart ailments since 25 years as per the records issued from A.J.Hospital, Mangalore. To substantiate his contention, he relied on Ext.B7 the confidential Medical Certificate issued from A.J.Hospital & Research Centre, Mangalore to opposite party. It is seen issued by one Dr.Jayashankar Marla. But he did not examined. Further Ext.B8 contains a number of additions with a different ink. This also casts serious doubts about the veracity of the document. Contrary to this Suhara PW1, has deposed that she had treatments pertaining to her heart valve since 3 years. She denied the suggestion that the disease was persisting since 10 years she was admitted on 25/4/2009 and 3 years before the date of admission. She had complaints to the heart. 5. The evidence let in by complainant negates the contention of opposite party that the complainant was suffering from heart disease since 25years. In this regard learned counsel for complainant Kusuma invited our attention to the decision rendered by the Hon’ble National Commission reported in 2001(3)CPR 121(NC). In that case insurer repudiated the claim sticking on the contention of suppression of material information that the insured was suffering from diabetes and hypertension. To support the contention the insurer has produced certain unauthenticated record of hospital. There the Hon’ble National Commission has held that the unauthenticated record of hospital cannot be relied upon. In this case also except Ext.B6 the confidential medical certificate no authentic medical records were produced to substantiate the contention . Therefore, we are not inclined to accept the contention of opposite party that the complainant was suffering from heart ailments since 25 years. 6. Another contention advanced by the learned counsel for opposite party is that the continuity of the policy is lost since there was a breakup of 2 days in between 30/7/2005 and 1/8/2005. The policy lapsed on 30/7/05 did not renew on the next day. Hence the continuity of the policy come to an end. Therefore as per Sec.4.1 of the policy, pre-existing diseased can be covered under the scope of the policy only if the insurance has been in force continuously for four years. 7. This contention is also not sustainable in view of the following reason. There is no dispute that 2nd opposite party is the employer of complainant’s husband and the policy taken by 2nd opposite party. It is his duty to renew the policy. Therefore here the status of 2nd opposite party in payment of premium is that of an agent Exts.B1 to B6 the copies of policy issued by opposite party from the period 31/7/03 show that the premium is remitted by 2nd opposite party and not by complainant or her husband. What was the terms and condition or arrangements in remitting the premium to 1st opposite party by 2nd opposite party is not available since 2nd opposite party is exparte. It appears that in this scheme the employee was made to believe that it is the duty of the employer (2nd opposite party) though may be gratuitously or under any obligation to remit the premium to Ist opposite party. This issue is fully covered by the decision of the Hon’ble Supreme Court of India in the case of Delhi Electric Supply Undertaking vs. Basante Devi reported in III (1999) CPJ 16 (SC) and therefore 2nd opposite party could not evade the liability to honor the claim of complainant. 8. According to learned counsel for opposite party Sri.Mahalinga the policy lost its continuity in 2005 since there was a breakup for 2 days in remitting the premium and unlike LIC policies the policy cannot be renewed with retrospective effect. Therefore both the complainant’s husband and 2nd opposite party has to undergo all the formalities if issuing a new policy. For that 2nd opposite party has to submit fresh proposal form. But Ist opposite party has no case that the policy issued after the break up period of 2 days ie the policy commencing from the date from 1.8.05 to 31/7/06(Ext.B3) is undergone such procedures and it is a fresh policy. Learned counsel for the complainant Kusuma relying on the decision in the case of LIC of India vs. O.P.Bhallela & others reported in AIR 1989 Patna 269 has argued that by the acceptance of premium for the subsequent policies after the breakup period opposite party has waived their right to content that the policy is lapsed. We accept the said argument. Therefore, it is clear that the repudiation of the mediclaim of the complainant amounts to deficiency in service. Relief & costs: As per the policy the liability of Ist opposite party is limited to ` 50,000/-. Hence Ist opposite party is liable to pay that amount to the complainant with costs. The complaint is therefore allowed and Ist opposite party is directed to pay ` 50,000/- to the complainant together with interest @8% per annum from the date of complaint till payment . 2nd opposite party is directed to pay ` 3000/- towards the cost of these proceedings. Time for compliance is limited to 30 days from the date of receipt of order. Failing which Ist opposite party shall pay interest @12% for `50,000/- from the date of complaint till payment. Sd/ Sd/ Sd/ MEMBER MEMBER PRESIDENT Exts; A1&A2-1/11/09 & 12/11/09- letter sent by Ist OP A3-24/11/09- copy of lawyer notice A4-21/12/09- reply notice A5-&A6- Postal acknowledgment cards A7-Discharge bill B1to B6-- Medi claim insurance policy B7- 17/3/09- mediclaim issued from Care well Hospital,Kasaragod B8-9/5/09- medi claim issued from A.J.Hospital,Mangalore. Pw1- Suhara- complainant Sd/ Sd/ Sd/ MEMBER MEMBER PRESIDENT /Forwarded by Order/ SENIOR SUPERINTENDENT eva | 
