By Sri. Chandran Alachery, Member:

The complaint is filed under section 12 of the Consumer Protection Act for an order directing the Opposite parties to pay Rs.81,135/- being the balance amount of the claim amount by the 1^st Opposite party, to pay Rs.10,000/- as compensation for the physical and mental agony due to the deficiency of service of Opposite Parties, to pay the cost of this complaint.

2. Complaint in brief:- The Complainant joined in the Family Health Optima Insurance Policy of the Opposite Party through its Kalpetta Branch. The validity of policy is from 28.10.2014 to 27.10.2015. On 14.04.2015, the Complainant was admitted in the Hospital Leo Metro Kalpetta within chest pain and it was diagnosed as Cardiac arrest has undergone angioplasty. It was informed to Opposite Parties and the agent has visited the Hospital. The Complainant was discharged on 18.04.2015. The Complainant incurred an amount of Rs.1,36,135/- towards expenses. After discharge, the Complainant submitted claim form and it was repudiated after 5 months. In the repudiation letter dated 05.09.2015, it was stated that the Complainant has suffering from pre-existing disease. The reason is baseless and the Complainant has adviced to submit 2^nd application. Subsequently, the Complainant received a DD dated 11.12.2015 for a sum of Rs.55,000/- only and informed that the balance will be given soon. The 2^nd Opposite Party obtained signature in a paper which was brought by the Opposite party from the Complainant and informed that it is only acknowledgment of DD only. Again when Complainant contacted for balance, it was told that already full and final settlement is given. The act of Opposite parties is clear unfair trade practice. Hence the complaint.

3. On receipt of complaint, notices were issued to Opposite parties and 1^st Opposite Party appeared before the Forum and filed version. The 2^nd Opposite Party not appeared before the Forum and the 2^nd Opposite party set exparte. In the version of 1^st Opposite party, 1^st Opposite Party contended that the Complaint is bad for non-joinder of necessary parties. More over, the complaint is bad for territorial jurisdiction since no cause of action has arisen at Kalpetta. The 1^st Opposite party is not residing or carrying an business at Wayanad. The policy is taken from Calicut. The claim was submitted at Thiruvananthapuram office and the repudiation was made from Chennai Office. Branch office at Kalpetta will not give jurisdiction. The Complainant has accepted the settlement of claim by signing the discharge voucher without any protest. Once the Complainant has accepted the amount unconditionally and got the cheque, the Complainant cases to be consumer. Privity of contract come to an end. On scrutiny of discharge summary, it was revealed that the Complainant is a known case of diabetes mellitus and also has a history of smoking and drinking alcohol. The CAD must be a long standing one as per the opinion of expert doctor. The policy is issued as per policy conditions. The Complainant not disclosed the true facts. The disease of complainant is a pre-existing disease. To maintain customer relationship and for goodwill basis, the Opposite Party is decided to settle the claim on non-standard basis. There is no deficiency of service or unfair trade practice from the part of 1^st Opposite Party.

4. On perusal of complaint and version, the Forum raised the following points for considerations.

1. Whether there is deficiency of service from the part of Opposite Parties?

2. Relief and cost.

5. Point No.1:- The Complainant filed proof affidavit and is examined as PW1 and documents are marked as Exts.A1 to A4 and confronted documents is marked as Exts.B1 to B2. 1^st Opposite party is also filed proof affidavit and the 1^st Opposite Party is examined as OPW1 and documents are marked as Exts.B3 to B6, Ext.A1 is the Policy Schedule, Ext.A2 is the Admission/ Discharge record (copy). Ext.A3 is the Repudiation Letter copy, Ext.A4 is the copy of letter given to the 1^st Opposite party by the complainant requesting to give the claim. All these Exts.A1 to A4 documents are marked with objection. Ext.B1 is the proposal form copy and Ext.B2 is the discharge voucher (Copy). Ext.B3(1) and (2) are the policy schedule and terms and conditions. Ext.B4 is the Discharge Summary, Ext.B5 is the Repudiation Letter Ext.B6 is the Authorisation letter. As per Ext.B5 repudiation letter, the reason for repudiating the claim is pre-existing disease as per exclusion No.1 of the policy. Admittedly, the Complainant was admitted at Leo Metro Hospital Kalpetta on 14.04.2015 and discharged on 18.04.2015. After discharge the Complainant submitted claim to 1^st Opposite Party. But after 5 months only the 1^st Opposite Party repudiated the claim as per records. The contention of 1^st Opposite Party is that 1^st Opposite party sought expert opinion and got an opinion that the Complainant have CAD and it must be a long standing one. According to 1^st Opposite party, from discharge summary the 1^st Opposite party found that the Complainant is a known case of diabetics mellitus and have a history of smoking and drinking alcohol. Ext.B4 is the Discharge Summary, the History in the past is noted that “No HTM, CVA, IHD” only. No other pre-existing disease are noted in it. The 1^st Opposite Party did not produce any other documents to prove the pre-existing disease of the claimant. The case of complainant is that the Complainant submitted claim for getting Rs.1,36,135/- towards treatment expenses. But the Opposite party gave only Rs.55,000/- towards the expenses. The Complaint is filed for getting the balance amount. So it is up to the 1^st Opposite party to prove that the Complainant is not entitled to get the entire claim amount. But 1^st Opposite party failed to prove their contention by producing cogent and convening evidence of pre-existing disease. The 1^st Opposite party not examined the concerned doctor also. Even if the policy is issued from the 1^st Opposite Party's office at Calicut, the Complainant took the policy through Kalpetta Branch office and availed services of 1^st Opposite Party at Kalpetta office where the Complainant resides. When the Complainant gets services of 1^st Opposite Party from 1^st Opposite Party's Branch office at Kalpetta, the Complainant can file complaint before this Forum, The 1^st Opposite Party did not produce any contra evidence to disprove the contention of complainant. Hence the Forum is of the opinion that the repudiation of claim after 5 months of getting claim application and later paying only Rs.55,000/- out of 1,36,135/- stating that it is a full and final settlement of claim cannot be justified. The Forum found that allowing of part of claim amount itself is an injustice from the part of 1^st Opposite Party in the absence of proper records. Ext.B2 discharge voucher had no much value and importance at this circumstances. Hence on an overall evaluation of the records and evidences, the Forum is of the opinion that the Complainant is entitled to get the balance amount of claim from the 1^st Opposite party. 2^nd Opposite Party is only an agent of 1^st Opposite party company. Point No.1 is found accordingly.

6. Point No.2:- Since point No.1 is found in favour of Complainant, the Complainant is entitled to get cost and compensation.

In the result, the complaint is partly allowed and the 1^st Opposite party is directed to pay the balance amount of claim ie (Rs.1,36,135 – 55,000 = 81,135/-) Rs.81,135/- (Rupees Eighty One thousand One hundred and Thirty Five) only along with Rs.3,000/- (Rupees Three thousand) only as compensation and Rs.2,000/- (Rupees Two thousand) only as cost of the proceedings. 1^st Opposite party shall comply the order within 30 days from the date of receipt of this order failing which the Complainant is entitled to get 12% interest for the whole sum.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Forum on this the 22^nd day of December 2016.

Date of Filing:16.01.2016.

PRESIDENT : Sd/-

MEMBER : Sd/-

MEMBER : Sd/-

/True Copy/

Sd/-

PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:

PW1. Poulose K.V Complainant.

Witness for the Opposite Parties:

OPW1. Manu Mohan Senior Executive, Claims Star Health,

Thiruvananthapuram.

Exhibits for the complainant:

A1. Copy of Family Health Optima Insurance Policy- Schedule.

A2. Copy of Admission/ Discharge Record.

A3. Copy of Repudiation of Claim. dt:05.09.2015.

A4. Copy of Letter. dt:14.09.2015.

Exhibits for the opposite Parties:

B1. Copy of Proposal Form.

B2. Copy of Discharge Voucher. dt:12.12.2015.

B3(1) Copy of Policy Schedule.

B3(2) Copy of Policy Terms and Conditions.

B4 Copy of Discharge Summary.

B5. Copy of Repudiation Letter. dt:05.09.2015.

B6. Authorisation Letter. dt:05.08.2016.