KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 729/2016

JUDGMENT DATED: 15.06.2023

(Against the Order in C.C. 391/2015 of CDRF, Ernakulam)

PRESENT:

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN     : PRESIDENT

SRI. AJITH KUMAR D.                                                    : JUDICIAL MEMBER

SMT. BEENA KUMARY. A                                              : MEMBER

SRI. RADHAKRISHNAN K.R.                                        : MEMBER

APPELLANT:

Bobby Abraham, S/o Babu Malamel, Malamel House, Thrikkakara P.O., Cochin-682 021.

                   (By Advs. P.G. Ganappan & Tom Joseph)

                                                Vs.

RESPONDENT:

The Divisional Manager, Oriental Insurance Co. Ltd., Divisional Office-II, Rukiyabagh, II Floor, Ravipuram, M.G. Road, Ernakulam, Kochi-682 025.

                       (By Adv. V. Manikantan Nair)

JUDGMENT

SMT. BEENAKUMARY A. : MEMBER

The appellant is the complainant before the Consumer Disputes Redressal Forum, Ernakulam (District Forum for short) in C.C. No. 391/2015.  The respondent is the opposite party.  The District Forum dismissed the complaint on 12.07.2016.  Against that order the complainant filed this appeal. 

2.  Brief facts of the complaint are as follows: The complainant availed a medical policy by name “Happy Family Floater Policy” from the opposite party covering the period from 10.08.2014 to 09.08.2015 for a sum of Rs. 6 lakhs on payment of Rs. 31,665/- towards the premium, in order to cover the complainant, his wife, minor daughter and parents under the policy.  The father of the complainant had undergone treatment at Aster Medicity as inpatient from 09.03.2015 to 16.03.2015 for the diagnosed disease called ‘Right Inguinal Hernia with Fissure in Ano’.  He underwent Robotic TAPP repair with lateral sphincterotomy and was discharged on 16.03.2015 on payment of the hospital bill of Rs. 2,45,887/- towards medical expenses.  A claim form was submitted for an amount of Rs. 2,47,592/- with supporting documents before the third party administrator to the opposite party.  The third party administrator intimated the complainant by letter dated 28.04.2015 that as against the claim of Rs. 2,47,592/-, only an amount of Rs. 62,817/- alone would be granted.  As per the terms and conditions the entire amount claimed by the complainant should have been reimbursed.  Despite legal notice the opposite party refused to oblige.  The opposite party had committed unfair trade practice and deficiency in service.  Hence the complaint was filed to give direction to the opposite party to pay Rs. 1,84,755/- the disallowed amount with interest @ 12% per annum along with Rs. 22,000/- and also to pay the costs of the proceedings.

3.  The opposite party filed their detailed version.  They admitted the existence of the policy during the hospitalization period.  The opposite party stated in their version that the policy was subject to the conditions, clauses, warranties and endorsements contained therein.  Clause 4 of the policy deals with “Exclusions”.  As per clause 4.3.III, surgery of Hernia and 4.3.X Fissure/Fistula is excluded for a period of two years from the commencement of the policy.  In this context, it is to be noted that under clause 4.3 of the policy, it is provided that “If the sum insured is enhanced subsequent to the inception of the policy, the exclusion 4.1, 4.2 and 4.3 will apply afresh for the enhanced portion of the sum insured for the purpose of this section”.  Hence the sum insured is limited to Rs. 2,00,000/-. 

4.  According to the complainant his father, who was covered under the policy, was diagnosed as “Rt.Inguinal  Hernia + Fissure in Ano” and underwent Robotic TAPP repair with lateral sphincterectomy at Aster Medicity.  The opposite party alleged that the complainant and his agent had not provided the break-up from the hospital towards the amounts charged as ‘Robotic Charges” and Hernia repair charges.  The opposite party could not obtain the details directly from the hospital as the hospital provided the details only to the patient.  Hence they processed the claim on the basis of the available documents and an amount of Rs. 62,817/- was allowed.  The same was paid to the complainant vide bank transfer (UTR HSBCN5106065838) on 16.04.2015.  The details of the deductions were also communicated to the complainant vide claim settlement letter dated 15.09.2015.  The opposite party further submitted that even presently, the complainant can produce the additional documents required viz; records of the hospital with regard to the break-up of Rs. 1,00,000/- shown as robotic charges and Rs. 74,380/- shown as robotic hernia repair charges.  They submitted that they shall and will be processing the claim and reimbursing the eligible amount. 

5.  Complainant was examined as PW1 and he was cross examined by the opposite party.  Exts. A1 to A8 documents were marked on the side of the complainant.  Ext. B1 was marked on the side of the opposite party. 

6.  On the basis of the evidence adduced by both the parties the finding of the District Forum was that the complainant did not produce sufficient documents to the opposite party for processing the claim.  The complainant admitted the same.  As per Ext. B1 Rs. 1,00,000/- was claimed as robotic charges and Rs. 74,380/- towards the robotic hernia repair charges.  Ext. A3 is the bill for an amount of Rs. 2,45,887/-.  The opposite party had a case that the details of robotic charges and robotic repair charges were sought from the complainant even prior to the e-mail communication issued to the counsel. 

7.  The opposite party had issued Ext. A5 claim settlement on 28.04.2015 stating the reason for the deductions. The complainant did not intimate any objection to the settlement within 10 days.  The complainant had issued a lawyer’s notice on 10.05.2015 demanding the entire payment as per the claim.  The District Forum found that as per clause 4.3(III) of policy conditions surgery of hernia and as per clause 4.3(X) Fissure/Fistula are excluded for a period of two years from the commencement of the policy.  Under 4.3 proviso, if the sum insured is enhanced subsequent to the inception of the policy the exclusion 4.1, 4.2 and 4.3 will be applicable.  The sum assured was enhanced to Rs. 6,00,000/- from Rs. 2,00,000/- only in the year 2013.  Therefore, the claim made by the complainant in excess of Rs. 2,00,000/- cannot be granted by the opposite party.  The opposite party had sanctioned Rs. 62,817/- only after making the deduction which is shown in Ext. A5.  The District Forum found that the complainant is not seen to have responded to the TPA within the time stipulated therein or within reasonable time.  So, the complainant had approached the District Forum without clean hands.  Further the District Forum found that the complainant did not make the third party administrator, a party to the complaint.  Hence there was no deficiency in service on the part of the opposite party in disposing the claim.  The District Forum found that as per policy condition 4.3 the loss to the complainant is not covered under the insurance policy.  So the District Forum dismissed the complaint.  Aggrieved by the impugned order the complainant has filed this appeal. 

8.  The appellant argued that if any further details were required for processing the claim prior to Ext. A5 claim settlement letter, the respondent or their TPA could have requested for the same and as there was no such request, once the claim was settled in full and final, the respondent was estopped from taking a contention that further documents were necessary at a later stage, that too, after accepting the lawyer’s notice, through Ext. B1 e-mail communication to the counsel.  The argument of the appellant is correct.  Even in their version the respondent stated that they were ready to settle the matter if the complainant produced the details of hospital records in the trial stage.  The complainant has already produced the details of bill as per Ext. A4.  After getting the bill Ext. B1 document was prepared and produced by the opposite party.  As per Ext. B1 document the opposite party clearly deducted the bill amounts.  Hence that contention raised by the opposite party is not correct. 

9.  The appellant further argued that the findings of the District Forum that the disease of the appellant was not covered under the policy was not correct and without properly understanding the terms and conditions of the policy and insurance law.  The respondent has no such case also.

10.  The respondent argued that as per policy conditions the claim of the appellant was not maintainable.  But the opposite party allowed Rs. 62,817/- to the appellant.  The respondent did not mention on what ground they allowed the amount.  Again they stated that the complainant/appellant failed to submit sufficient documents to settle the claim. But they did not make any request to the complainant to produce the documents required for processing the claim.  Hence that argument raised by the respondent is not correct.  Ext. A5 document clearly shows that the respondent had got all the details of the treatment bill.  We note that the exclusion clause 4.1, 4.2 and 4.3 would apply to the policy since the sum assured was enhanced to Rs. 6 lakhs from Rs. 2 lakhs only in the year 2013.  Therefore the claim made by the complainant is in excess of Rs. 2 lakhs.  But the opposite party had sanctioned Rs. 62,817/- only after making the deductions which are shown in Ext. A5 on 28.04.2015.  This amount is not full and final settlement of the claim.  The complainant had sent lawyer’s notice on 11.05.2015 within two weeks.  Thereafter the opposite party sent e-mail dated 03.07.2015 in that letter they requested to provide the details of Rs. 1,00,000/- and Rs. 74,380/- to enable them for further processing and computing the eligible amount. 

11.  Moreover in the version the opposite party submitted that as and when the documents are produced the opposite party shall and will be processing the claim and reimbursing the eligible amount.  From these contentions of the respondent we find that the opposite party himself admitted that the complainant was entitled to get the benefit of the insurance policy.  As per Proviso 4.3 of the policy the amount entitled to the policy holder is up to Rs. 2,00,000/-.  As per clause 4.3 of the policy surgery of hernia is excluded for a period of two years from the commencement of the policy.  Here the complainant undergone “Right Inguinal Hernia with Fissure in Ano”.

12.  The opposite party paid Rs. 62,817/- to the complainant and was willing to pay the balance amount if the complainant had produced the details of robotic charges.  As per Ext. A3 surgery charges mentioned is Rs. 1,13,585/-.  From this amount Rs. 22,725/- is the discount granted by the hospital.  Balance amount is seen as Rs. 90,860/-.  The opposite party had paid Rs. 62,817/- to the complainant before filing the complaint. 

13.  From the above mentioned reasons, we find that the complainant is entitled to get an amount of Rs. 90,860/- in addition to the first payment of Rs. 62,817/-.

In the result, the appeal is partly allowed.  The order passed by the District Forum is set aside.  We direct the respondent/opposite party to pay Rs. 90,860/- to the appellant/complainant on non-standard basis.  The respondent shall pay the amount within 30 days from the date of receipt of the order.  Otherwise the amount shall carry interest @ 9% per annum.  No order of costs. 

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                             AJITH KUMAR  D. : JUDICIAL MEMBER

                                                                                          BEENA KUMARY. A         : MEMBER

                                                                                                RADHAKRISHNAN K.R.  : MEMBER

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