The Divisional Manager, United India Insurance Co. Ltd., Raichur V/S G. Narasareddy S/o. Yenkappa - Consumer Court Case

Karnataka

Raichur

CC/09/82

G. Narasareddy S/o. Yenkappa - Complainant(s)

Versus

The Divisional Manager, United India Insurance Co. Ltd., Raichur - Opp.Party(s)

Sri. D.Suresh

25 Feb 2010

ORDER

DIST. CONSUMER DISPUTES REDRESSAL FORUM
DIST. CONSUMER DISPUTES REDRESSAL FORUM,DC Office Compound, Sath Kacheri
consumer case(CC) No. CC/09/82

G. Narasareddy S/o. Yenkappa						...........Appellant(s)
Vs.
The Divisional Manager, United India Insurance Co. Ltd., Raichur						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

JUDGEMENT By Sri. Pampapathi President:- This is a complaint filed by complainant G. Nageshreddy against the opposite United India Insurance Company Ltd., for to award compensation amount of Rs. 1,00,000/- with interest. 2. The brief facts of the complainant case are that, he subscribed Medi Guard Claim Policy bearing No. 240200/48/06/12/00000525 from opposite United India Insurance Company for a period of one year starting from 26-11-06 to 25-11-07. He got abdominal pain, he approached doctors in Hyderabad, but the correct cause of the pain was not detected, thereafter he got examined in Manipal Hospital at Bangalore in the year 2007. As per the advise of the doctors, he under went Lyaproscopic Apendisectomy operation by admitting on 25-07-07 and discharged on 31-07-07, he incurred expenditure of Rs. 35,728/- towards medical bill, thereafter he filed claim petition with necessary records with opposite for medical reimbursement along other expenditure incurred by him, it shown its negligence in making payment and repudiatied his claim and thereby he filed this complaint for the various reliefs for total amount of Rs. 1,00,000/- with interest. 3. The opposite Insurance Company Ltd., appeared in this case through its Advocate, filed written version by denying the allegations of the complainant. In Para-4 of its written version it is contended that, complainant is guilty of suppressing of true facts, he was suffering from abdominal ailment prior to taking the policy which has nexus to disease for which he was treated in the Manipal Hospital. Hence it is violation of the condition Nos. 4.1 & 4.2 of the terms and conditions of the policy, there was no deficiency in service on its part, complainant not eligible for any reimbursement, as it is time barred and prayed for to dismiss the complaint among other grounds with cost. 4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant proves that, his Medi Claim Policy bearing No. 240200/48/06/12/00000525 issued by opposite United India Insurance Company is valid from 26-11-06 to 25-11-07 and he under gone Lyaproscopic Apendisectomy in Manipal Hospital, Bangalore by admitting on 25-07-07 and discharged on 31-07-07 and incurred medical expenditure of Rs. 35,728/- with other expenses, thereafter he filed claim petition with all required documents before opposite, but it shown its negligence in settling his claim by repudiating his claim through letter dt. 21-01-08 and thereby opposite found guilty under deficiency in its services.? 2. Whether complainant is entitled for the reliefs as prayed in her complaint.? 3. What order? 5. Our findings on the above points are as under:- (1) In the affirmative (2) As discussed in the body of this judgement and as noted in the final order. (3) In-view of the findings on Point Nos. 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 :- 6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-12 are marked. On the other hand the affidavit-evidence of Divisional Manager of the opposite Insurance Company was filed he was noted as RW-1. The documents Ex.R-1 & Ex.R-1(a) are marked. 7. In the instant case, some of the undisputed facts between the parties are:- 1. Subscription of Medi Guard Claim Policy bearing No. 240200/48/06/12/00000525 from opposite United India Insurance Company covering for a period of one year commencing from 25-11-06 to 25-11-07 is not in dispute. 2. Taking treatment and under going Lyaproscopic Apendisectomy operation by the complainant in Manipal Hospital, Bangalore by admitting on 25-07-07 and discharged on 31-07-07 is also not in dispute. 3. It is undisputed fact that, complainant-himself met out of medical expenditure for his treatment without any kind of assistance by the opposite. 4. It is further undisputed fact that, opposite United India Insurance Company repudiated the claim of the complainant vide its letter dt. 21-01-08. 8. In the light of these undisputed facts between the parties. Now we have to appreciate the affidavit-evidences and documentary evidences of the parties. 9. Admittedly, the claim of the complainant was repudiated by the opposite on the ground that, the complainant was suffering from abdominal ailment prior to taking the policy, which has nexus to the treatment taken by him in the Medical Hospital at Bangalore, there by he is guilty of suppressing the true facts and thereby he violated terms and conditions of the policy, his case falls under exclusionary clause No. 4.1 & 4.2 of the policy. In the light of such contention of the opposite Insurance Company, the burden of proving the suppression of material facts by the complainant is on the Insurance Company, in this regard we have referred the principles of the ruling reported in 1996(3) CPJ 8 (SC) LIC of India V/s. Smt. Channabasamma. In the said case the Honble Supreme Court laid down the law that, the burden of proving the suppression of material facts or making false representation is undoubtedly is on Insurance Company. 10. In the light of the principles of the law laid down by the Honble Supreme Court, it is very much clear that, opposite Insurance Company has to prove the facts pleaded in Para- 4 of its written version as well as in Para-4 of the affidavit-evidence with regard to guilt of the complainant for suppressing the material facts and thereby his case comes under clause No. 4.1 & 4.2 of the Medi Claim Insurance Policy at Ex.R-1(a). Clause No. 4.1 & 4.2 are pertains to exclusionary clause with regard to non disclosure of previous diseases by the insured, except Ex.R-1 & Ex.R-2 no materials placed on record by the opposite to establish the facts of material suppression by the insured as he was having disease nexus to the operation under gone by him in the Manipal Hospital at Bangalore. 11. The learned advocate for opposite is intending to take the benefit of documents at Ex.P-6, Ex.P-6(1), Ex.P-7, Ex.P-7(1) & Ex.P-7(2), Ex.P-8, Ex.P-8(1) which are the records produced by the complainant-himself for consultation by him at Hyderabad Hospital. 12. Their lordships of the Honble Supreme Court in a ruling reported in 1997 (1) SCC 538 Collectors of Customs Calcutta V/s. Tin Plate Company of India, it defined the word suppression of material facts, as, a deliberate or conscious omission to state with the intention of deriving wrongful gain. In another ruling reported in 2005 CTJ CP in a case of National Insurance Company V/s. Bipul Kunda defnined as, the word of mis-representation as suggestion of false facts in the matter of substance essentially material to the subject, whether by acts or by words, by man overs or by positive assertion or material concealment whether a person mis-lead and damnify. 13. In the instant case, no doubt complainant had an abdominal complaint but that was not diagnosed, for the first time Manipal Hospital doctors correctly diagnosed and operation of Lyaproscopic Apendisectomy was conducted. This fact was not known to the complainant at the time of subscribing Medi Claim Insurance Policy from opposite, there are no documentary or other affidavit-evidence to say that, the present complainant was knowing the said disease and intentionally took the Medi Claim Policy by suppressing it with an intention to get wrongful gain, out of that policy. In view of the circumstances stated above and in view of the position of law as laid down in the above cases, we are not convinced from the arguments submitted by the learned advocate for opposite, that complainant was guilty under suppression of material facts at the time of taking medi claim policy and thereby violated the terms and conditions of the policy and his case is falling under exclusionary clause No. 4.1 & 4.2 of the policy, no other evidences on record to believe this line of arguments advanced by the learned advocate for opposite. However in support of the submission made by him, he relied on the ruling reported in 2010 ACJ 265 Salwant Kaur Sandhu V/s. New India Assurance Company Ltd., In the said case the Honble Supreme Court dealt a case with regard to fraudulent suppression of material facts and thereby repudiation of the claim by Insurance Company with regard to medi claim policy. In the said case the complainant was on regular Haemodialysis whereas he had stated in his proposal form that, he was in sound health and had not under gone any treatment or operation in last (12) months. In the said circumstances the Honble Supreme Court accepted the contention of the insurer on the ground of fraudulent suppression of material facts. But in the present case Medical Literature at Hyderabad Hospital not discloses such kind of diseases to establish the nexus in between it with the treatment taken for the disease in he Manipal Hospital at Bangalore, as such with great respect to the Honble Supreme Court, the facts of the present case on hand are different to the facts dealt by their lordships in the said case. 14. The second contention that was taken by the opposite in its written version by stating that, the complaint is barred by limitation. Except this bare contention it not pleaded other facts as to how the complaint is barred by limitation. However the learned advocate for opposite produced a ruling reported in AIR 1997 SC 2049, in support of his submission, according to his submission, the insured as to file this complaint within the time fixed under policy, he cannot avail the benefit of section 24 (A) of C.P. Act to file his complaint. Hence the complaint is barred by limitation. 15. The learned advocate for complainant submitted before us that, the specific provision 24(A) (1) of C.P. Act provides two years for to file complaint from the date of cause of action. Accordingly this complaint is filed within the two years from the date of repudiation of his claim by opposite vide its letter dt. 21-01-08 and it is in time. 16. In the light of the submissions made on both sides, we have gone through the observations made by their lordships of the Honble Supreme Court in the said ruling and we are of the view that, the Act 1986 prevails over the terms and conditions of the Insurance Policy with regard to limitation, as such agreement not over riding effect on the said Act, accordingly we rejected this contention of the opposite. Repudiation of the claim of the complainant in the light of the admitted facts vide its letter dt. 21-01-08 is nothing but in negligence on the part of Insurance Company and thereby it found guilty under deficiency in its service towards complainant, accordingly we answered Point No-1 in affirmative. 17. As regards to the medical expenditure incurred by the complainant to the extent of 35,728/- for this treatment as claimed by him. Contents of Para- 4 of his complaint and evidence by him in his affidavit-evidence and non denial of the relevant receipts produced by the complainant by the opposite, the complainant is entitled to recover an amount of Rs. 35,728/- from the opposite. 18. As regards to the second claim of the complainant for Rs. 20,000/- towards expenditure incurred by him for diagnostic charges, there are no related separate bills Ex.P-5 includes such diagnostic charges in the amount of Rs. 35,728/-. Ex.P-11 is marked containing number of bills out of them. Seven bills are visible pertaining to purchase of medicines, some other bills produced by the complainant are not visible, accordingly we have taken note of the amount visible in (7) which are totally works out to Rs. 8,192.03/- which is rounded to Rs. 8,200/-. This amount is entitled to recover by the complainant from opposite. 19. The third claim of the complainant is for Rs. 10,000/- towards expenditure of his stay and stay of his family members and attended charges etc., is rejected as there are no provisions to grant such claim in the policy. 20. As regards to another claim of complainant for mental torture, compensation towards deficiency in service, we have granted lumpsum amount of Rs. 3,000/- to the complainant. 21. As regards to cost of this litigation is concerned, we have taken note of the entire case of the complainant and thereby granted a lumpsum amount of Rs. 2,000/- towards cost. 22. As regards to the rate of interest is concerned, the complainant is entitled to recover interest at the rate of 9% p.a. on the total sum of Rs. 48,928/- which is rounded to Rs. 49,000/- from the date of this complaint till realization of the full amount. Accordingly we answered Point No- 1 & 2. POINT NO.3:- 23. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order: ORDER The complaint filed by the complainant is partly allowed with cost. The complainant is entitled to recover a total amount of Rs. 49,000/- from the opposite. The complainant is entitled to recover future interest at the rate of interest 9% p.a. on the above total sum of Rs. 49,000/- from the date of the complaint till realization of the full amount. The opposite is granted one month time to make the payment of the above said amount with interest to the complainant. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 25-02-10) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.

JUDGEMENT By Sri. Pampapathi President:- This is a complaint filed by complainant G. Nageshreddy against the opposite United India Insurance Company Ltd., for to award compensation amount of Rs. 1,00,000/- with interest. 2. The brief facts of the complainant case are that, he subscribed Medi Guard Claim Policy bearing No. 240200/48/06/12/00000525 from opposite United India Insurance Company for a period of one year starting from 26-11-06 to 25-11-07. He got abdominal pain, he approached doctors in Hyderabad, but the correct cause of the pain was not detected, thereafter he got examined in Manipal Hospital at Bangalore in the year 2007. As per the advise of the doctors, he under went Lyaproscopic Apendisectomy operation by admitting on 25-07-07 and discharged on 31-07-07, he incurred expenditure of Rs. 35,728/- towards medical bill, thereafter he filed claim petition with necessary records with opposite for medical reimbursement along other expenditure incurred by him, it shown its negligence in making payment and repudiatied his claim and thereby he filed this complaint for the various reliefs for total amount of Rs. 1,00,000/- with interest. 3. The opposite Insurance Company Ltd., appeared in this case through its Advocate, filed written version by denying the allegations of the complainant. In Para-4 of its written version it is contended that, complainant is guilty of suppressing of true facts, he was suffering from abdominal ailment prior to taking the policy which has nexus to disease for which he was treated in the Manipal Hospital. Hence it is violation of the condition Nos. 4.1 & 4.2 of the terms and conditions of the policy, there was no deficiency in service on its part, complainant not eligible for any reimbursement, as it is time barred and prayed for to dismiss the complaint among other grounds with cost. 4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that: 1. Whether the complainant proves that, his Medi Claim Policy bearing No. 240200/48/06/12/00000525 issued by opposite United India Insurance Company is valid from 26-11-06 to 25-11-07 and he under gone Lyaproscopic Apendisectomy in Manipal Hospital, Bangalore by admitting on 25-07-07 and discharged on 31-07-07 and incurred medical expenditure of Rs. 35,728/- with other expenses, thereafter he filed claim petition with all required documents before opposite, but it shown its negligence in settling his claim by repudiating his claim through letter dt. 21-01-08 and thereby opposite found guilty under deficiency in its services.? 2. Whether complainant is entitled for the reliefs as prayed in her complaint.? 3. What order? 5. Our findings on the above points are as under:- (1) In the affirmative (2) As discussed in the body of this judgement and as noted in the final order. (3) In-view of the findings on Point Nos. 1 & 2, we proceed to pass the final order for the following : REASONS POINT NO.1 :- 6. To prove the facts involved in these two points, affidavit-evidence of the complainant was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-12 are marked. On the other hand the affidavit-evidence of Divisional Manager of the opposite Insurance Company was filed he was noted as RW-1. The documents Ex.R-1 & Ex.R-1(a) are marked. 7. In the instant case, some of the undisputed facts between the parties are:- 1. Subscription of Medi Guard Claim Policy bearing No. 240200/48/06/12/00000525 from opposite United India Insurance Company covering for a period of one year commencing from 25-11-06 to 25-11-07 is not in dispute. 2. Taking treatment and under going Lyaproscopic Apendisectomy operation by the complainant in Manipal Hospital, Bangalore by admitting on 25-07-07 and discharged on 31-07-07 is also not in dispute. 3. It is undisputed fact that, complainant-himself met out of medical expenditure for his treatment without any kind of assistance by the opposite. 4. It is further undisputed fact that, opposite United India Insurance Company repudiated the claim of the complainant vide its letter dt. 21-01-08. 8. In the light of these undisputed facts between the parties. Now we have to appreciate the affidavit-evidences and documentary evidences of the parties. 9. Admittedly, the claim of the complainant was repudiated by the opposite on the ground that, the complainant was suffering from abdominal ailment prior to taking the policy, which has nexus to the treatment taken by him in the Medical Hospital at Bangalore, there by he is guilty of suppressing the true facts and thereby he violated terms and conditions of the policy, his case falls under exclusionary clause No. 4.1 & 4.2 of the policy. In the light of such contention of the opposite Insurance Company, the burden of proving the suppression of material facts by the complainant is on the Insurance Company, in this regard we have referred the principles of the ruling reported in 1996(3) CPJ 8 (SC) LIC of India V/s. Smt. Channabasamma. In the said case the Honble Supreme Court laid down the law that, the burden of proving the suppression of material facts or making false representation is undoubtedly is on Insurance Company. 10. In the light of the principles of the law laid down by the Honble Supreme Court, it is very much clear that, opposite Insurance Company has to prove the facts pleaded in Para- 4 of its written version as well as in Para-4 of the affidavit-evidence with regard to guilt of the complainant for suppressing the material facts and thereby his case comes under clause No. 4.1 & 4.2 of the Medi Claim Insurance Policy at Ex.R-1(a). Clause No. 4.1 & 4.2 are pertains to exclusionary clause with regard to non disclosure of previous diseases by the insured, except Ex.R-1 & Ex.R-2 no materials placed on record by the opposite to establish the facts of material suppression by the insured as he was having disease nexus to the operation under gone by him in the Manipal Hospital at Bangalore. 11. The learned advocate for opposite is intending to take the benefit of documents at Ex.P-6, Ex.P-6(1), Ex.P-7, Ex.P-7(1) & Ex.P-7(2), Ex.P-8, Ex.P-8(1) which are the records produced by the complainant-himself for consultation by him at Hyderabad Hospital. 12. Their lordships of the Honble Supreme Court in a ruling reported in 1997 (1) SCC 538 Collectors of Customs Calcutta V/s. Tin Plate Company of India, it defined the word suppression of material facts, as, a deliberate or conscious omission to state with the intention of deriving wrongful gain. In another ruling reported in 2005 CTJ CP in a case of National Insurance Company V/s. Bipul Kunda defnined as, the word of mis-representation as suggestion of false facts in the matter of substance essentially material to the subject, whether by acts or by words, by man overs or by positive assertion or material concealment whether a person mis-lead and damnify. 13. In the instant case, no doubt complainant had an abdominal complaint but that was not diagnosed, for the first time Manipal Hospital doctors correctly diagnosed and operation of Lyaproscopic Apendisectomy was conducted. This fact was not known to the complainant at the time of subscribing Medi Claim Insurance Policy from opposite, there are no documentary or other affidavit-evidence to say that, the present complainant was knowing the said disease and intentionally took the Medi Claim Policy by suppressing it with an intention to get wrongful gain, out of that policy. In view of the circumstances stated above and in view of the position of law as laid down in the above cases, we are not convinced from the arguments submitted by the learned advocate for opposite, that complainant was guilty under suppression of material facts at the time of taking medi claim policy and thereby violated the terms and conditions of the policy and his case is falling under exclusionary clause No. 4.1 & 4.2 of the policy, no other evidences on record to believe this line of arguments advanced by the learned advocate for opposite. However in support of the submission made by him, he relied on the ruling reported in 2010 ACJ 265 Salwant Kaur Sandhu V/s. New India Assurance Company Ltd., In the said case the Honble Supreme Court dealt a case with regard to fraudulent suppression of material facts and thereby repudiation of the claim by Insurance Company with regard to medi claim policy. In the said case the complainant was on regular Haemodialysis whereas he had stated in his proposal form that, he was in sound health and had not under gone any treatment or operation in last (12) months. In the said circumstances the Honble Supreme Court accepted the contention of the insurer on the ground of fraudulent suppression of material facts. But in the present case Medical Literature at Hyderabad Hospital not discloses such kind of diseases to establish the nexus in between it with the treatment taken for the disease in he Manipal Hospital at Bangalore, as such with great respect to the Honble Supreme Court, the facts of the present case on hand are different to the facts dealt by their lordships in the said case. 14. The second contention that was taken by the opposite in its written version by stating that, the complaint is barred by limitation. Except this bare contention it not pleaded other facts as to how the complaint is barred by limitation. However the learned advocate for opposite produced a ruling reported in AIR 1997 SC 2049, in support of his submission, according to his submission, the insured as to file this complaint within the time fixed under policy, he cannot avail the benefit of section 24 (A) of C.P. Act to file his complaint. Hence the complaint is barred by limitation. 15. The learned advocate for complainant submitted before us that, the specific provision 24(A) (1) of C.P. Act provides two years for to file complaint from the date of cause of action. Accordingly this complaint is filed within the two years from the date of repudiation of his claim by opposite vide its letter dt. 21-01-08 and it is in time. 16. In the light of the submissions made on both sides, we have gone through the observations made by their lordships of the Honble Supreme Court in the said ruling and we are of the view that, the Act 1986 prevails over the terms and conditions of the Insurance Policy with regard to limitation, as such agreement not over riding effect on the said Act, accordingly we rejected this contention of the opposite. Repudiation of the claim of the complainant in the light of the admitted facts vide its letter dt. 21-01-08 is nothing but in negligence on the part of Insurance Company and thereby it found guilty under deficiency in its service towards complainant, accordingly we answered Point No-1 in affirmative. 17. As regards to the medical expenditure incurred by the complainant to the extent of 35,728/- for this treatment as claimed by him. Contents of Para- 4 of his complaint and evidence by him in his affidavit-evidence and non denial of the relevant receipts produced by the complainant by the opposite, the complainant is entitled to recover an amount of Rs. 35,728/- from the opposite. 18. As regards to the second claim of the complainant for Rs. 20,000/- towards expenditure incurred by him for diagnostic charges, there are no related separate bills Ex.P-5 includes such diagnostic charges in the amount of Rs. 35,728/-. Ex.P-11 is marked containing number of bills out of them. Seven bills are visible pertaining to purchase of medicines, some other bills produced by the complainant are not visible, accordingly we have taken note of the amount visible in (7) which are totally works out to Rs. 8,192.03/- which is rounded to Rs. 8,200/-. This amount is entitled to recover by the complainant from opposite. 19. The third claim of the complainant is for Rs. 10,000/- towards expenditure of his stay and stay of his family members and attended charges etc., is rejected as there are no provisions to grant such claim in the policy. 20. As regards to another claim of complainant for mental torture, compensation towards deficiency in service, we have granted lumpsum amount of Rs. 3,000/- to the complainant. 21. As regards to cost of this litigation is concerned, we have taken note of the entire case of the complainant and thereby granted a lumpsum amount of Rs. 2,000/- towards cost. 22. As regards to the rate of interest is concerned, the complainant is entitled to recover interest at the rate of 9% p.a. on the total sum of Rs. 48,928/- which is rounded to Rs. 49,000/- from the date of this complaint till realization of the full amount. Accordingly we answered Point No- 1 & 2. POINT NO.3:- 23. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order: ORDER The complaint filed by the complainant is partly allowed with cost. The complainant is entitled to recover a total amount of Rs. 49,000/- from the opposite. The complainant is entitled to recover future interest at the rate of interest 9% p.a. on the above total sum of Rs. 49,000/- from the date of the complaint till realization of the full amount. The opposite is granted one month time to make the payment of the above said amount with interest to the complainant. Intimate the parties accordingly. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 25-02-10) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.