IN  THE  CONSUMER  DISPUTES  REDRESSAL  FORUM,  KOLLAM

            Dated this the   1^st   day of August 2018

Present: -    Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

       Sri. M.Praveen Kumar,Bsc, LL.B ,Member

       CC.No.151/16

Jos Thomas                                                          :         Complainant

Paravila Puthen Veedu, Chengamanadu P.O

Melila Village, Kottarakkara Taluk, Kollam.

[By Adv.P.Thulaseedharan Pillai]

V/s

1. The Manager                                     :         Opposite Parties

          Muthoottu Mini Financiers Ltd.

          Branch Office, State Bank of India Building

         Kunnicode, Pathanapuram Taluk, Kollam-691508

         [By Adv.S.Sreekumar]

2. M/s Liberty Videocon General Insurance Company Ltd.

        10^th Floor, Tower A, Peninsula business Park

        Ganpatrao Kadam  Marg, Lower Parel, Mumbai-400013

        [By Adv.R.Mohana Rajan]

ORDER

E.M.MUHAMMED IBRAHIM , President

This is a consumer complaint filed by Jose Thomas against two opposite parties under Section 12 of the Consumer Protection Act praying various reliefs including compensation. 

2.The averments in the complaint in short are as follows:-

The complainant is a retired teacher.  The 1^st opposite party is the Master Policy Holder of the 2^nd opposite party.  The complainant has taken a Personal Accident Policy bearing No.MPA 47664 through the 1^st opposite party.  The policy is valid from 20.11.2014 till 19.11.15.  On 17.07.15 the complainant met with an accident by falling down from a Ladder while doing cleaning works at his home.  That due to the accident he has sustained Stretch injury left shoulder followed by Bankarts Lesion Left Shoulder.  He  has  also  under  gone  surgery

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medically named as ‘Athroscopic Bankarts Repair ‘ on 21.07.15  at  Lourdes Hospital, Eranakulam, Kochi, where he was admitted on 20.07.15 and got discharged on 22.07.15.  That now also the complainant is having feeling of instability at left shoulder which caused permanent partial disability to the insured.  The 1^st opposite party, as a master policy holder of 2^nd opposite party issued a personal accident policy with assurance of a claim to the extent of the chosen plan ‘Gold’.  As per the chosen plan the complainant is entitled to claim Rs.300000/- for permanent or partial disability.  The complainant spent a total sum of Rs.81467/- out of which Rs.78467/- was paid Hospital Main Bill and Rs.3000/- spent for Post Hospitalization expenses.   In order  to  raise  claim  the complainant issued a written notice, which is a condition precedent to the policy, to the second opposite party through the first opposite party within 15 days from the date of accident and thereafter submitted Claim Form-Part A&Claim Form-Part B vide claim No.100107156, along with documents required by the insurer.

3. As warranted by the policy the complainant Claimed Rs.81467/- which has been spent for his treatment but the same has been declined due to the reason that the case alleged is not an accident case.  It is noted that the case of the complainant doesn’t attract any of the General exclusions mentioned in the policy details.  The opposite parties have issued a policy with assurance of mediclaim/health insurance to the tune of Rs.300000/- but the same has been rejected without any reasonable cause.  The denial of policy benefits shall amount to deficiency in service on the part of opposite parties and the complainant is entitled to get re-imbursement of the amount spent by him, with compensation and compensatory costs from the opposite party jointly and severally.  Hence the complaint.

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4.The opposite party 1&2 resisted the complainant by filing separate detailed written version.  The contentions of the version filed by the 1^st opposite party are as follows.

          The 1^st opposite party is not having any role in the claim settlement process.  The policy was issued by the 2^nd opposite party.  The contract if any is between the complainant and 2^nd opposite party.  The premium paid was also to the 2^nd opposite party. The 1^st opposite party being a mere agent has no power to accept or reject any claim of the policy holders and that the 1^st opposite party firm has not committed any deficiency in service and is not liable to compensate the complainant. 

5.The contention of the version filed by 2^nd opposite party are as follows.

The 2^nd opposite party had issued a policy with conditions bearing number 4112500201-14-5000060-00-220 in the name Muthoot Mini Financiers Limited for the period 20.11.14 to 19.11.15, subject to terms, conditions and exceptions of the policy.  The compensation provided to the insured as per the policy is detailed in Page 4 and 5 of the conditions of the policy.  The opposite party have received claim intimation from the insured, stating that the complainant met with an accident on 17.07.15 due to the fall from a ladder while doing cleaning work at his house and that he had incurred a sum of Rs.81,467/- for his treatment.  On 6.8.15 the second opposite party had issued  a letter to the 1^st opposite party who is the insured to provide the  following documents mentioned below for processing of the claim.  The 2^nd opposite party

had requested to produce the documents and/or information within 15 days from

the receipt of the letter. Due to the non compliance of the above letter, the 2^nd opposite party had issued three reminder letters dated 08.09.15, 31.10.15,and 11.12.15 respectively.  The certified copies of the above letters are also produced along with the version.  Neither the insured nor the complainant had provided any details mentioned in the letter even after three reminders. The 2^nd

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opposite party had repudiated the claim vide letter dated 30.12.15 by stating that the policy covers benefit only in case of death, Permanent Total Disability(PTD) and Permanent Partial Disability(PPD).  The complainant has not sustained any injury which would cause Permanent Total Disability or Permanent Partial Disability.  The 2^nd opposite party had rightly repudiated the claim since the same does not fall within the conditions of the policy and the complainant is not eligible for any compensation since injuries sustained does not come within the purview of policy conditions.  There is no deficiency in service on the part of the opposite party.  Complainant is not entitled to get any compensation.

          6. In view of the pleadings the following points arise for consideration.

1. Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties?
2. Whether the complainant is entitled to get the benefit of mediclaim/Health insurance Cover as claimed in the complaint?
3. Whether the complainant is entitled to get compensation as claimed?
4. Reliefs and costs.

7.  Evidence on the side of the complainant consists of the oral evidence of PW1 and Ext.P1 to P4  documents. PW1 is the complainant himself.  Ext.P1 is the policy certificate, P2 is the Deficiency Letter received from 1^st opposite party, P3 is the Discharge summary and P4 is the Discharge Bills.

Evidence on the side of the opposite parties consists of the oral evidence of DW1 who is the Service manager of the 2^nd opposite party and got martked Ext.D1 to D6 documents.

8. Heard both sides.  Counsel for the complainant and 2^nd opposite party has also filed notes of argument.

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9.Point No.1 to 3

     For avoiding repetition of discussion of materials these 3 points are considered together.  The complainant do admit that the insurance policy is a “Contract of insurance” but the terms and conditions should be specific, clear and understandable and it should not have been the facts which can only be inferred otherwise then it will amount to unfair trade practice and deficiency in  service towards the general public.

10.The present complaint has been filed under section 12 of the Consumer Protection Act.1986.  The complainant’s case is that on 17.07.15 the complainant met with an accident by falling down from a ladder while doing cleaning works at his house and sustained stretch injury to left shoulder followed by Bankarts Lesion left shoulder.  He  has  undergone  surgery-Athroscopic Bankarts repair on 21.07.15 at Lourcles Hospital Eranakulam and for that he was admitted on 20.07.15 and discharged on 22.7.15 and spent Rs.81,467/- as Hospital Bill.  According to the complainant now he is feeling  instability at left shoulder which  according to him causes permanent disability.

11.However the complainant has not produced any records to prove that he has sustained permanent total disability or permanent partial disability either before the 2^nd opposite party or before the 1^st opposite party or before this  Forum to prove his contentions.  The last sentence in para 4 of the application for compensation is “As per the chosen plan the applicant is entitled to claim Rs.300000/- for permanent or partial disability.  This shows that the applicant is well aware of the conditions of the policy and complainant is entitled for the claim only in case of death, Permanent Total  Disability(PTD) and Permanent Partial Diability(PPD) as per the coverage opted by the insured.  So it can be seen  that  the  claim  raised is against the

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coverages, limitations, terms and conditions of the policy and provisions of  law.

12. The learned counsel for the 2^nd opposite party there is no deficiency of service on the part of the 2^nd opposite party,  that an act of repudiation of a claim after considering all the materials and the relevant facts can be no stretch of imagination can be termed as deficiency in service on the part of the 2^nd  opposite party.   In the dictum laid down in  RAVNEET SING BAGGA  Vs KLM ROYALDUTCH AIRLINES (2000) 1 SCC 66 the Hon’ble Supreme Court has laid down the test of deficiency in service. Accordingly the complainant has to prove that there was some fault, imperfection,  shortcoming or inadequacy in the manner of the Insurance company in rejecting the claim and further such fault etc. must be wilful.  The Hon’ble Supreme Court has further held that there is a bona fide  dispute  between  parties  and  where  the  service  provider  has  after considering  all  the  material  with  them and the relevant facts has acted in a particular manner, then such acts will not amount to deficiency in service. According to the opposite parties if the above test is applied  there is no “deficiency in service” on the part of 2^nd  opposite party and that the complaint is liable to be  dismissed on this count alone.  In view of the facts and circumstances of this case we find force in the above contention.          Basically the insurance  policy is a “contract of Insurance” and in this contract,  limitations of the contract of insurance are important and must to be obeyed and followed by the parties. In view of the materials available on record we are of the view that   the complaint is not tenable in law as no deficiency in service  has been proved to have committed by opposite parties as enumerated under Section 2(1)(g) of the Consumer Protection Act and therefore we are of the view that  the complainant is not entitled to get any relief as claimed in the complaint. Points answered accordingly.

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Point No.4

13.On evaluating the entire materials on record we come to the conclusion that the 2^nd opposite party has rightly repudiated the claim and that complainant has not succeeded  in establishing any deficiency in service or unfair trade practice on the part of 1^st or 2^nd opposite party.  Hence the complainant is only to be dismissed.

In the result complaint stands dismissed partied are directed to suffer their respective costs.

Dictated to the  Confidential Assistant  Smt.Deepa.S transcribed and typed  by her corrected by me and pronounced in the  Open Forum on this the  1^st     day of  August  2018.    

                        E.M.Muhammed Ibrahim:Sd/

                        M.Praveen Kumar:Sd/-

                        Forwarded/by Order

                                   SENIOR SUPERINTENDENT

                8

INDEX

Witness Examined for the Complainant:    Jos Thomas

Documents marked for the  complainant

Ext.P1                  :         Policy certificate

Ext.P2                  :         Deficiency letter

Ext.P3                  :         Discharge summary

Ext.P4                  :         Discharge bill

Witnesses examined for the opposite parties: Gopalakrishnan

Documents marked for the  opposite parties

Ext.D1                 :         Copy of policy

Ext.D2                 :         Copy of policy

Ext.D3                 :         Copy of deficiency letter

Ext.D4                 :         Copy of 1^st reminder letter

Ext.D5                 :         Copy of 2^nd reminder letter

Ext.D6                 :         Copy of 3^rd reminder letter

Ext.D7                 :         Copy of repudiation letter

 E.M.Muhammed Ibrahim:Sd/-

                                                                                    President

             M.Praveen Kumar:Sd/-

           Member

                                                                                    Forwarded/by Order

            SENIOR SUPERINTENDENT