Karnataka

Bijapur

CC/121/2014

Manikant tejashi Shah - Complainant(s)

Versus

The Divisional Manager united India Insurance Co Ltd - Opp.Party(s)

Sri S.D.Patil

25 Jul 2017

ORDER

                 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VIJAYAPUR

DATE OF FILING 27^th  DAY OF OCTOBER 2014

CONSUMER COMPLAINT NO.121/2014

 

DATED THIS THE  25^TH  DAY OF JULY 2017

 

01) Sri S.H. Hosalli                            -             President.  

                  B.Com.LLB. (Spl),

 

02) Smt.G.S. Kalyani                         -        Lady Member.

                 B.Com.LLB. (Spl),

 

COMPLAINANT   -	1	Manikant Tejashi Shah Age:67 Yrs, Occ:Business R/o 1134/37, APMC yard, Bijapur-586101.
		(By Sri. S.D.Patil,  Adv)

- V/S -

 

 

OPPOSITE PARTY  -	1	The Divisional Manager,       United India Insurance Co. Ltd.,       Sangam Building , S.S.Front road,       Bijapur – 586101.
	2	M/S Meditek (TPA) Services Ltd.,       Plot No.577, Udyog Vihar Stage,       Gurgaon-112016.
		(Op-1 & 2 by Sri. B.S.Soragaon,  Adv)

O R D E R

 

Speaking through Smt. G.S. Kalyani, Lady Member.

 

 

 

This is a Complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (herein after referred to as the Act) against the Opposite Parties (in short the “Ops”) directing the Ops to award of Rs. Rs.5,00,000/- claim under the Super Top-Up Policy bearing No.241000/48/11/36/00001874 for a period from 20/03/2012 to 19/03/2013, Rs.1,00,000/- towards mental agony, Rs.100,000/- towards damages on account of unnecessary delay and Rs.10,000/- towards cost of litigation. 

 

 

2)       The brief facts of the case are that:-

         

          Complainant obtained Health Insurance Policy bearing policy No.241000/48/11/97/0000/1873 for a period commencing from 00:00 Hrs of 20/03/2012 to midnight on 19/03/2013 for a sum of Rs.3,00,000/- with a super Top-Up Medicare policy bearing No. 241000/48/11/36/00001847 for a period commencing from 00:00 Hrs of 20/03/2012 to midnight of 19/03/2013 for a sum insured up to Rs.5,00,000/-.  The policies are valid and enforceable.  Since 1990 to 2013 there was commencement of very first insurance with continues insurance cover.  Policy has been renewed from time to time. 

 

3)       During the subsistence of these policy complainant was admitted in Jaslok Hospital and Research Centre, Mumbai from 03/07/2012 to 07/07/2012 for illness CAG/PTCA.  The complainant was treated by Dr. A.B.Mehta on 03/07/2012 for PTCA to proximal LAD with 2.5X18 mm Nobori stent  and RCA – CTO was attempted.  The complainant was under the observation in ICU for Cardiac tamponade and discharged with treatment advice and follow up on 07/07/2012.  Therefore, complainant applied for claim for reimbursement of Rs.9,13,852/- with all necessary documents to Op-1, which was forwarded to Op-2 to process the claim, but the Ops postpone for settlement of claim for one or the other reasons. At last complainant issued letter dtd:17/08/2013 to settle the matter as under for Rs.8,98,802=50 spent in Jaslok Hospital and Rs.1,205=00 spent in Leelavathi Hospital and Rs.3,000=-00 spent towards professional charges and consultation, etc.

 

4)       The complainant further submits that the TTK Health Care PTA Pvt. Ltd., has already settled the claim under the Health Insurance policy bearing No:241000/48/11/97/00001873 having  coverage up to 3,00,000/-.  But the claim for Rs.5,00,000/- under Super Top-up policy is still pending and not settled though several oral and written requests made by the complainant.  Therefore, the complainant filed this complaint, praying for allowing the complaint as prayed. 

 

5)       After receipt of notice from this Hon’ble forum, Op-1 & 2 appeared through counsel and contest the case, by filling written version.  The Op-1 filed this objection as under.

 

          Op-1 in his objections he stated that the complaint filed by the complaint is false, frivolous and contrary to law and facts, hence prayed for dismiss the complaint with cost.

 

6)       But however, it is admitted that complainant had purchased an individual Health Insurance Policy bearing No:241000/48/11/97/00001873 for a period from 20/03/2012 to 19/03/2013 for a sum of Rs.3,00,000/- and this policy enforce since from 1990 to 2013.

 

7)       It is further admitted by this Op-1 that complainant also taken a Super Top-Up policy bearing No.241000/48/11/36/00001874 for a period from 20/03/2012 to 19/03/2013 for sum of Rs.5,00,000/-,  the inception date as per the insurance guidelines for Super Top-Up policy is from 20/03/2012.  The complainant has misrepresented and suppressed the material facts making Super Top-Up polices being inforce since 1990.  After 4 months of purchasing Super Top-Up policy the complainant has preferred the claim of Rs.9,13,852/-, under both policies thought for Super Top-Up policy this is very 1^st year of taking policy and as per Insurance rule the CAD, TMT positive, PTCA are not covered in the 1^st four years of taking any new policy.  The relevant extract of insurance companies guidelines in respect of Super To-Up policies is as under:-

 

Exclusion : “ The company shall not be liable to make any  payment under this policy in respect of any expenses  whatsoever incurred by any insured person in connection with or in respect of:

 

 

 

Any pre-existing condition/disease (s) as defined in the policy, until 48 months of continuous coverage of such insured person have elapsed, since inception of his/her SUPER TO UP MEDICARE Policy with the Company Pre-existing Condition/disease definition – ‘Any condition ailment or injury or related conditions (s) for which insured person had signs or symptoms, and / or were diagnosed, and / or received medical advice/treatment, within 48 months prior to his/her SUPER TOP UP MEDICARE policy with the Company’.  N.B. In case of persons having any other health Insurance Policy from any company with a sum insured above Threshold Level at the time of taking this policy, the exclusion period of 48 months for pre-existing Disease/Condition will be reckoned from the date of inception of the policy for such portion of Sum insured, including Cumulative Bonus earned, if any, above the Threshold Level.  If expiring policy sum insured has increased over the years, the 48 months of continuous coverage has to be completed for the incremental sum insured.

 

8)       This Op submits that complainant taken the Super Top-Up policy only from 20/03/2012 to 19/03/2013, he has not taken said policy since 1990 he had taken individual Health Policy from since 1990 to 2013.  In order to get an amount assured under the Super Top-Up policy illegally has suppressed this fact and falsely averred in para 2 of his complaint, that he has continuous Insurance coverage by renewing time to time.  It is further submitted by this Op that complainant intentionally and deliberately taken the Super To-Up policy on 20/03/2012 just to make a claim for higher cost of treatment for a known disease and taking unfair advantage to defraud the insurance company.  It is further submitted that complainant was diagnosed as TMT Positive PTCA done on 30/07/2013 as CABG since 1988 which was not disclosed by the complainant neither at the time of inspection of the policy nor in the proposal form, complainant has obtained the policy by misrepresentation and suppressed the material facts the claim of the complainant is rightly repudiated  and hence there is no deficiency of service by this Op. Hence, research this Hon’ble forum has no jurisdiction to try this case rest of the contents of complaint paras are denied by this Op, the total claim of Rs.7,10,000/- is imaginary false and without any base, and hence the complaint is not entitled for any compensation as prayed, hence Op prays for dismiss the complaint with compensatory cost of Rs.10,000/-.

 

09)     Op-2 filed this objection. In their objections they reiterate the objections of Op-1, this Op-2 also admit that complainant obtained two Policies one is Health insurance policy and another is Super Top-Up policy.  Op-2 also submits that complainant misrepresented, suppressions of material facts and claim has been repudiated as per the advice of insurance company hence, Op-2 also prayed for dismiss of complaint.

 

10)     Complainant has filed his affidavit in support of his case and 15 documents produced on behalf of complainant same are marked as Ex. C-1 to 15 respectively.  On the contrary Ops file, Super Top-Up Medicare policy and Health Insurance Policy same are marked as Ex.C-1 & 2 respectively. Ops also produced the entire medical records pertaining to complainant, who took the treatment in Jaslok Hosp[ital and Research Centre Mumbai, by way of witness summons, entire case sheet/Discharge summary of complainant is produced same is marked as Ex.Op-3, Op-1 filed his affidavit in lieu of evidence and also filed written arguments Op-2 has filed written objection and not filed affidavit and written arguments. Op-2, adopt the affidavit and written argument of Op-1 by way of passing memo dtd:15/12/2015, Complainant also filed written arguments.

 

11)     After hearing both sides arguments the points that arise for consideration are:-

         

1)Whether the complainant is entitled for the reliefs as is sought for?

 3) What order?

 

12)     Answer to the above points.

 1) In affirmative.

           2) As per Final order.

 

 

 

 

 

 

 

REASONS

 

13)    Point No.1:- It is admitted fact that the complainant obtained two policies i.e. Health Insurance bearing policy No.241000/48/11/97/00001873 for a period of 00:00 Hrs of 20/03/2012 to Midnight on 19/03/2013, for a sum insured is Rs.3,00,000/-.  This policy is not in dispute claim is also settled.

 

14)     It is also admitted fact that, the complainant also obtained another policy i.e. Super Top-Up Medicare policy bearing No.241000/48/11/36/00001847 for the same period for a sum assured up to Rs.5,00,000/-.  The said polices are valid and enforceable since 1990 to 2013.  According to the complainant the said Super Top-Up Medicare policy enforceable since from 1990-2013, we go the both policies of complainant both are obtained for medical reimbursement and both are commenced on the same day i.e. on 20/03/2012 to 19/03/2013 since from 1990 to 2013, because both are taken on same day, but on the contrary Ops submits that they admit the fact that both policies are obtained by the complainant but they refuse the fact that the Top-Up policy was obtained from the complainant on 20/03/2012 to 19/03/2012, not enforceable from 1990 – 2013.  The Op denies the period of inception of Super Top-Up policy, hence the burden upon Ops to prove this fact, but in this case Ops not prove the fact that the Super Top-Up Medicare policy is not enforce since from 1990 to 2013.

 

15)     According to Ops, Ops submits that the policy in dispute is taken by the complainant on 20/03/2012 and said policy was valid up to 19/03/2012. Op submits that,  according to policy, conditions company shall not liable to make any payment under the super Top-Up Medicare policy in respect of any expenses whatsoever incurred by any person connection with or in respect of: 

 

Any pre-existing condition (s) as defined in the policy, until 48 months of continuous coverage of such insured person have elapsed, since inception of his/her SUPER TO UP MEDICARE Policy with the Company Pre-existing Condition/disease definition – ‘Any condition ailment or injury or related conditions (s) for which insured person had signs or symptoms, and / or were diagnosed, and / or received medical advice/treatment, within 48 months prior to his/her SUPER TOP UP MEDICARE policy with the Company’.

 

 

Ops not prove the fact that said Super Top-Up Medicare policy is commence from 20/03/2012 to 19/03/2013 not since from 1990 to till 2013.

 

16)     Ops contention that complainant has a pre-existing disease and he suppressed the said facts while obtaining policy, the onus to prove this fact is on the Ops, who failed to file any expert Medical or Credible evidence in support of his case. Both counsel submits citation, perused the citation.  We come to the conclusion that the Ops contention that complainant suppressed the fact that he was pre-existing disease and he not disclose in the proposal form, the proving this pre-existing disease lies upon the Ops.  But Ops not prove that complainant was suffering from disease prior to taking super Top-Up Medicare policy.

 

17)     Ops further contention that the claim in this case come under exclusion clause of policy terms and conditions i.e 4.1 in the same clause in N.B. in para No.3 of Op-1 objections. “ In case of persons having any other health Insurance Policy from any company with a sum insured above Threshold Level at the time of taking this policy, the exclusion period of 48 months for pre-existing Disease/Condition will be reckoned from the date of inception of the policy for such portion of Sum insured, including Cumulative Bonus earned, if any, above the Threshold Level.  If expiring policy sum insured has increased over the years, the 48 months of continuous coverage has to be completed for the incremental sum insured”.

 

18)     In view of the above clause, complainant already obtained another Health policy and same has been settled.  Therefore the exclusion clause of said policy is not attract to the present case in hand complainant produced the said two policy same are marked as Ex.C-1 & 2 and Ops are also produced said policies same are marked as Ex.1 & 2, Ops not dispute the quantum of claim claimed by the complainant.  Ops themselves admit that the claim of complainant was repudiated.  Looking to any angle, the contention of Ops are not acceptable it is seen that, Ops rendered deficiency in service to the complainant by repudiating the legal claim of complainant.  Hence, the complainant is entitled to receive of Rs.5,00,000/- towards insured value with 10% interest from the date of filing this complaint along with Rs.10,000/- towards mental agony and Rs.5,000/- towards litigation cost except this complainant is not entitled to any other reliefs without cogent evidence.  Hence, we answer to the point No.1 in affirmative.

 

19)    Point No.2:-  In the result, the complaint of the complainant is liable to be allowed. Hence, we proceed to pass the following order.

O R D E R

 

1)The complaint of the complainant is allowed in part.

2)The Ops are directed to pay Rs.5,00,000/-(Rupees Five Lakh Only) towards sum assured with 10% p.a. interest from the date of filing of this complaint i.e. 27/10/2014 to till complete realization.

3)The Ops are further ordered to pay Rs.10,000/-(Rupees Ten Thousand Only) towards mental agony and Rs.5,000/- (Rupees Five Thousand Only) towards litigation cost.

4)The Ops shall comply with this order within two months from the date of this order, failing the sum assured i.e. Rs.5,00,000/- (Rupees Five Lakh Only)  shall carry on interest @ 12% p.a.

5)Free copy of this order shall be sent to the parties

immediately.

   (This order is dictated to the Stenographer, transcript edited,

corrected and then pronounced in the open forum on this 25^th day of July 2017).

 

 

 

Sri. S. H. Hosalli  President.

Smt. G. S. Kalyani     Lady Member.