1. The Complainant has come up with this Complaint under section 12 of the Consumer Protection Act, 1986 against the Opposite parties with his grievance that he had opted for CANCOMFORT Mediclaim Policy since last 8 years and the said policy was shifted from New India Insurance Company Ltd., by Can Card Division as they had tie up with 1st Opposite party. He was paying premium regularly for the policy to New India Insurance Company Ltd., and also United India Insurance Co., through Can Card. That for the year 2006-07 he opted new scheme called Can Mediclaim policy with the premium of Rs.7,307/-, but the Opposite party had issued a policy which he had not opted and deducted Rs.12,254/- from his Can Card account. That he issued several letters to the 1st Opposite party and also to Canara Bank, but so far the Opposite parties have not issued the right policy and the amount due of Rs.4,997/- reversed by the Can Card Division. Despite a letter dated 08.01.2007 the Opposite parties have not issued right policy to him. He undergone treatment for his illness as inpatient and made a claim with 2nd Opposite party as directed by the 1st Opposite party. But 2nd Opposite party has not met his claim despite issue of legal notice dated 11.06.2007 and therefore prayed for a direction to pay Rs.91,585.31 which is mediclaim with interest at 18% p.a.<br /> 2. The 2nd Opposite party who is duly served with the notice of this complaint remained absent, is set exparte. The 1st Opposite party has filed version admitting to had issued policy under CANCOMFORT Insurance scheme and the complainant who was a Can Card holder obtained that scheme insurance cover for his self, his wife and daughter for 2005-06, when the 1st Opposite party introduced a new scheme called CAN Mediclaim to the card holders commencing from 01.11.2006 with a upper age limit for entry to that new scheme was limited to 65 years. The complainant sent his application in Form “B” intended to migrate to mediclaim policy, but the complainant was found over 67 years as he was born on 14.01.1939. As on 01.11.2006 the complainant had completed 67 years as such the complainant was not eligible to opt for CANCOMFORT insurance policy, therefore his Cancomfort policy was renewed for a period from 01.11.2006 to 31.10.2007 to his wife and also daughter with a total premium of Rs.12,254/- and further contended that the complainant had taken treatment for his pre-existing ailment since 1991 i.e. prior to the inception of policy taken during 1999. As the same came to their notice through discharge summary of G.K.N.M. Hospital where the complainant took treatment. Therefore, under Clause 4.1 of the condition of the policy, the complainant is not entitled for the benefit of the insurance scheme and therefore has prayed for dismissal of the complaint.<br /> 3. During the course of enquiry into the complaint allegations, the complainant and the Divisional Manager of the 1st Opposite party have filed their affidavit evidence. The complainant reiterated the contentions of his complaint touching the material facts whereas the witness of the 1st Opposite party in his affidavit stated to read their version as part of his affidavit. Both the parties have produced copies of conditions of insurance policy, copy of the proposal of CAN mediclaim applied for by the complainant, discharge summary of the complainant issued by the hospital in which the complainant took treatment and copies of certain correspondences. <br /> 4. Heard the counsel for both the parties and perused the records. <br /> 5. On the above contentions, following points for determination arise.<br /> 1. Whether the Complainant proves that the repudiation of his claim by Opposite parties made for reimbursement of the medical expenditures amounts to deficiency?<br /> 2. Whether the complainant is entitled for the relief as prayed for?<br /> 3. What order?<br /> 6. Our findings are as under:-<br /> Point no.1 : In the Negative.<br /> Point no.2 : In the Negative.<br /> Point no.3 : See the final order.<br /> REASONS<br /> <br /> 7. Points no. 1 and 2:- Though the complainant admitted that he had opted for Cancomfort mediclaim policy since last 8 years, but has not given the exact year from which he had this Cancomfort mediclaim policy. However, the 1st Opposite party in its version admitted that the complainant took Can comfort mediclaim policy in the year 1999 and it came to be renewed from time to time and it was also renewed from 01.11.2006 to 31.10.2007. It is also not in dispute that when the complainant opted for this policy, he had taken insurance cover for his wife and also to his daughter with a total premium of Rs.12,254/-. There is no dispute with regard to these facts.<br /> 8. But, the complainant has contended that in the year 2006-07 he opted a new scheme called CAN mediclaim policy with a premium of Rs.7,307/-, but the Opposite party had issued a policy which he had not opted for and further contended that in para 3 of his complaint and also in his affidavit evidence that the Opposite parties till date have not issued the right policy i.e. CAN mediclaim policy he had opted for. Whereas the 1st Opposite party has categorically stated that though the complainant sent his application Form “B” proposal to have CAN mediclaim policy, but it has contended that policy to which the complainant wanted to migrate was limited to the persons who was below 65 years of age and further stated the date of birth of the complainant was 14.01.1939 and was on 01.11.2006 when this CAN mediclaim was introduced and as the complainant had completed 67 yeas of age as on that date and he was not eligible for the CAN mediclaim policy therefore they did not issue that policy in favour of the complainant and instead they renewed Can comfort policy of the complainant and other members of the family from 01.11.2006 to 31.10.2007. Therefore, the claim of the complainant that he had opted for that mediclaim policy and the Opposite parties have not issued the policy till date and thereby have caused deficiency has no substance. The complainant has not disputed the claim of the 1st Opposite party, thus it is clear that CAN mediclaim policy scheme is one meant for the persons who were aged below 65 years, and not for the persons aged above 65 years. Therefore, when this scheme itself provides for eligibility of certain persons who can become members the complainant who was aged more than the permissible limit could not have been issued the policy under the CAN mediclaim scheme. Therefore, with this it is manifest from the facts of this case that the old policy of the complainant that is Cancomfort mediclaim continued to be renewed covering the life of the complainant, his wife and daughter. Thus, we find no force in the claim of the complainant in attributing deficiency to the Opposite parties in not issuing CAN mediclaim policy as contended by him in the complaint and also in the affidavit. Hence, the complainant who had a valid insurance policy as on the date of his treatment has to be seen whether he is entitled for insurance amount under the policy, considering the exclusive clause relied upon by the Opposite parties. <br /> <br /> 9. The complainant has relied upon a legal notice got issued through his advocate to the Opposite parties to claim that the Opposite parties have failed to issue CAN mediclaim policy. The 1st Opposite party has sent reply, reiterating the fact that the complainant was not eligible for CAN mediclaim policy because of his over age. It is under these facts and circumstances we are of the view that the Opposite parties could not have and the complainant cannot compel the Opposite parties to issue a policy for which he was not eligible.<br /> <br /> 10. The counsel for the 1st Opposite party referring to the contention of the 1st Opposite party and further relying upon clause 4.1 of conditions of mediclaim insurance policy refer to the exclusions. <br /> <br /> Condition 4 reads as under:- “The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by and insured person in connection with or in respect of; <br /> <br /> Condition 4.1 reds as under:- All diseases / injuries which are pre-existing when the cover incepts for the first time. For the purpose of applying this condition, the date of inception of the initial mediclaim policy taken from any of the Indian Insurance Companies shall be taken, provided the renewals have been continuous and without any break.” <br /> 11. This clause excludes a policy holder from claiming benefits under the mediclaim policy for a pre-existing disease or diseases. The 1st Opposite party has produced discharge summary issued by G.Kuppaswamy Naidu Memorial Hospital, Tamilnadu where it is stated that the complainant had coronary artery disease – S – P – CABG (10/91) and taken treatment at Vijay Hospital, Chennai for Cardiac evaluation and the complainant had undergone treatment for coronary artery disease during 1991 admitted to G.Kuppaswamy Naidu Memorial Hospital on 20.01.2007 for continued treatment and evaluation. The complainant has neither denied nor disputing this discharge summary of the hospital produced by the Opposite party and the fact that he had been under treatment for his cardiac problem from the year 1991. Therefore, the 2nd Opposite party issued a letter of repudiation, repudiating the claim of the complainant contending that the complainant is a known case coronary artery disease – S – P – CABG (10/91) and as the insurance is taken w.e.f. 01.11.1999 and during that year he had pre-existing disease which claim falls under clause 4.1 of the policy. These facts as contended by the Opposite party is not controverted by the complainant. Therefore, the claim of the complainant for benefit under insurance policy has been rightly repudiated which cannot be termed as deficiency in the service of the Opposite parties. Thus, the complainant in our view has failed to prove the deficiency caused by the Opposite parties and therefore is not entitled for the relief sought for. With the result, we answer point no. 1 and 2 in the negative and proceed to pass the following order. <br /> <br /> ORDER<br /> <br /> 1. The Complaint is dismissed.<br /> 2. Parties to bear their own costs.<br /> 3. Give a copy of this order to each party according to Rules.<br /> <br />