By. Sri. Chandran Alachery, Member:

The complaint is filed Under Section 12 of the Consumer Protection Act of 1986 for an Order directing the opposite parties to pay Rs.22,000/- to the complainant towards the medical expense reimbursement and to pay Rs.10,000/- as compensation and Rs.2,500/- as cost of the proceedings.

2. Complainant's case in brief is as follows:- The complainant took a mediclaim insurance policy from the 1^st opposite party through the 3^rd opposite party who is the authorized representative of 1^st opposite party wide Policy No.P/181314/01/2011/004000 for the period from 18.10.2010 to 17.10.2011. The policy covers the complainant and his wife Cicily. A sum of Rs.6,618/- was paid towards the premium and the premium amount was collected by the above said agent Mr. C. V. Joseph. Thereafter, on 15.11.2011 the 3^rd opposite party collected Rs.7,346/- from the complainant towards the renewal premium amount for the subsequent period. The 3^rd opposite party promised and made the complainant believe that there would be continuity of the insurance. Thereafter, the opposite party No.2 sent the policy to the complainant and believing the words of 3^rd opposite party, the complainant did not verify the policy. While so during February 2012 the complainant developed serious stomach ache and consulted the doctor at Fathima Matha Hospital, Kalpetta. The Doctor diagnosed the cause as bilateral inguinal hernia and directed the complainant to undergo a surgery and accordingly the complainant underwent an operation on 17.02.2012. The complainant informed the 1^st opposite party about the hospitalisation through the 3^rd opposite party, being the authorized representative on the date of admission itself. The complainant sent more than Rs.22,000/- towards medical expense, room rent, consulting charges etc... The complainant after discharge submitted claim form to the 1^st opposite party through 3^rd opposite party with all Bills in original. But on 04.04.2012 the 3^rd opposite party repudiated the claim and send letter to the complainant. So the act of the opposite parties amount to deficiency of service. Aggrieved by this, the complainant preferred this complaint.

3. On receipt of complaint, Notices were issued to the opposite parties and the opposite parties appeared before the Forum and filed version. In the version the opposite parties contented that as per exclusion clause 4 of the policy, the opposite parties are not liable to pay claim to the illness of hernia during the first year of operation of the insurance policy coverage, the expenses on treatment of diseases such as Benign Prostate Hypertrophy, Hernia, Hydrocele, Congenital Internal disease/defect, Fistula in anus, Sinusitis and related disorders, gallstones and renal stone removal are not payable. If these diseases are pre-existing at the time of proposal they will be covered subject to the exclusion No.1 as per policy conditions. The opposite parties admitted that there is previous policy to the complainant with them having coverage from 18.10.2010 to 17.10.2011. But the allegation that on 15.10.2011 the 3^rd opposite party collected Rs.7,346/- from the complainant towards renewal premium amount for the subsequent period and promised the continuity of policy etc are denied by the opposite parties. More over, the opposite parties denied the acceptance of Rs.7,346/- by the 3^rd opposite party being the agent of 1^st and 2^nd opposite parties from the complainant on 15.10.2011. The opposite parties issued policy on 03.11.2011. As per renewability Clause attached to the policy schedule, it is clearly recorded the renewal should be made on or before the expiry of the policy. However the continuity of benefits relating to 30 days waiting period, waiver of first year exclusions, waiver of first two years exclusions and cover for pre-existing diseases would be available as applicable, if the policy is renewed within a period of 15 days from the date of expiry of the policy. But complainant renewed the policy only after 16 days after the date of expiry. Since, there is break of more than 15 days, the said policy cannot be renewed. So continuity of benefits cannot be allowed. So the repudiation of claim is as per IRDA conditions. Therefore, no deficiency of service from the part of the opposite parties, hence the complaint is liable to be dismissed.

4. On going through the complaint, chief affidavit of complainant, version of opposite parties the Forum raised the following points for consideration:-

1. Whether there is any deficiency of service on the part of the opposite parties?

2. Relief and Cost.

5. Point No.1:- In addition to complaint, the complainant filed proof affidavit and the complainant is examined as PW1 and Ext.A1 series, Ext.A2 series and Ext.A3 are marked. Ext.A1 series are the copy of Policies, Ext.A2 series are the Hospital Bills and Ext.A3 is the repudiation letter issued by the opposite parties to the complainant. After closing the evidence of complainant, the opposite party filed proof affidavit through opposite party's Legal officer and examined him as OPW1. Produced documents are marked as Exts.B1 to B5. Ext.B1 is the copy of Policy conditions and its schedules. Ext.B2 is the copy of Medical ceritificate and discharge summary. Ext.B3 is the copy of Proposal form and Ext.B4 is the copy of Premium Receipt and Ext.B5 is the Authorization Letter. The case of the complainant is that the Policy No. P/181314/01/2011/004000 for the period from 18.10.2010 to 17.10.2011 is the first policy and the Second policy No.P/181314/01/2012/004587 for the period 03.11.2011 to 02.11.2012 in the policy having continuity to the first one. Because the case of the complainant is that he had paid the renewal premium with 3^rd opposite party being the agent of 1^st and 2^nd opposite party on 15.10.2011, believing and under the promise of opposite party No.3 that the policy will be renewed in time. Opposite parties denied such a contention of complainant and stated that the premium and fresh proposal was received by 3^rd opposite party only on 03.11.2011. So according to opposite parties, the second policy is only a fresh policy and not in continuation of first policy. Here the specific case of complainant is that the complainant entrusted the renewal premium amount of Rs.7,346/- with the 3^rd opposite party on 15.10.2011 itself. The Forum analyzed that the 3^rd opposite party is the best person deny it in the box by adducing evidence.  The complainant should get a chance for cross examine the 3^rd opposite party to test the truth from his mouth. But instead, opposite parties filed version denying all these aspects without producing the alleged person to answer it. 3^rd opposite party is the best person to answer it. The 3^rd opposite party is the best witness put in the box from the side of opposite parties to answer whether he had received the renewal premium amount from the complainant in time or not. The absence of 3^rd opposite party will cause a doubt that 3^rd opposite party is hiding something. Absence of 3^rd opposite party in the box will draw an adverse inference against opposite parties. More over the Forum found that the version filed by the 1^st to 3^rd opposite parties are signed by only 1^st opposite party. 2^nd and 3^rd opposite parties are not put their signature in the version. In the version, there is no mention that the 1^st opposite party filed the version for and on behalf of other opposite parties. So it can be safely taken that 3^rd opposite party did not specifically deny the contention of the complainant. 1^st opposite party might have received the premium and proposal form on 03.11.2011. So the 1^st opposite party took this policy as a fresh policy and not the continuation of earlier policy. As per policy conditions, a fresh policy will not attract liability for a disease like hernia during the 1^st year of its beginning. So 1^st opposite party and 2^nd opposite party are not liable to pay claim to the complainant as per policy conditions. 1^st opposite party cannot say whether 3^rd opposite party received the renewal premium from the complainant on 15.10.2011 or not. The complainant did not get a chance to cross-examine the 3^rd opposite party. The 1^st and 2^nd opposite parties admitted that 3^rd opposite party is the authorized agent of them. So where agent commits deficiency of service, the principal is vicariously liable to compensate the complainant. So by analyzing the evidence in toto, this Forum found that there is clear latches on the part of 3^rd opposite party in remitting the renewal premium in time which caused deficiency of service and big losses to the complainant. Since there is agent and principal relationship with opposite parties, the opposite parties No.1 to 3 are jointly and severally liable to pay the reliefs to the complainant. The Point No.1 is found accordingly.

6. Point No.2:- Since the Point No.1 is found against the opposite parties, the opposite parties are liable to pay cost and compensation to the complainant.

In the result the complaint is partly allowed and opposite parties No.1 to 3 are hereby directed to pay Rs.22,000/- (Rupees Twenty Two Thousand) only to the complainant towards the medical expenses incurred by the complainant along with 12% interest from the date of filing of this complaint till realization. More over, the Opposite parties No.1 to 3 are also directed to pay Rs.1,000/- (Rupees One Thousand) only towards compensation and Rs.1,000/- (Rupees One Thousand) only towards cost of the proceedings. The opposite parties No.1 to 3 are directed to pay the above amount to the complainant within 30 days from the date of receipt of this Order.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 12^th day of May 2014.

Date of Filing:18.08.2012.

PRESIDENT :Sd/-

MEMBER :Sd/- MEMBER :Sd/-

/True Copy/

 Sd/-

PRESIDENT, CDRF, WAYANAD

APPENDIX.

Witness for the complainant:

PW1. Thomas. P. V. Complainant.

Witness for the Opposite Parties:

OPW1. Padma Prabha. Senior Officer (legal),

Star Health and Allied Insurance Co Ltd.

Thiruvananthapuram.

Exhibits for the complainant:

A1(Series). Copy of Policy Document and Schedule(4 pages).

A2(Series). Copy of Hospital Bills (12 Nos).

A3. Repudiation Letter. Dt:04.04.2012.

Exhibits for the opposite Parties:

B1. Copy of Policy conditions.

B2(Series). Copy of Medical Certificate and Discharge Card.

B3. Copy of Proposal Form. Dt:03.11.2011.

B4. Copy of Premium Receipt. Dt:03.11.2011.

B5. Authorization Letter. Dt:09.12.2013.

Sd/-

PRESIDENT, CDRF, WAYANAD.