Tamil Nadu

North Chennai

199/2014

Mr.Ravindran Pillai - Complainant(s)

Versus

The Managing Director,ICICI Lombard General Insurance Co.Ltd., - Opp.Party(s)

V.Balaji

22 Mar 2017

ORDER

 

                                                            Complaint presented on:  16.10.2014

                                                                Order pronounced on:  22.03.2017

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,           MEMBER II

 

WEDNESDAY THE 22^nd DAY OF MARCH 2017

 

C.C.NO.199/2014

 

 

Mr.Ravindran Pillai,

A3, Aurora Flats,

No.35, Kandan Street,

Shenoy Nagar,

Chennai – 600 030.

                                                                                    ….. Complainant

 

..Vs..

1.The Managing Director,

ICICI Lombard General Insurance Co.Ltd.,

401-402, Interface Buildings,

No.11, Link Road, Malad (West),

Mumbai – 400 064.

 

2. The Manager,

ICICI Bank Limited,

Poonamallee High Road Branch,

New No.331, Old No.270/A,

Poonamallee High Road,

Aminjikarai, Chennai – 600 029.

 

.....Opposite Parties

Date of complaint                                 : 21.10.2014

Counsel for Complainant                      : M/s.V.Balaji, A.Sermaraj

Counsel for 1^st Opposite Party                 : Mr.Michael Marie Antony

 

Counsel for 2^nd Opposite Party             : Mr.K.Kumaran           

 

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant  to direct the 1^st Opposite Party to pay the claim amount Rs.2,37,680/- towards the hospitalization expenses and  a sum of Rs.2,00,000/- towards compensation for mental agony with cost of the Complaint   u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The 1^st Opposite Party issued Family Protect Plan Insurance Policy to the Complainant based on the Tele Conversation dated 08.04.2009 for the period 08.04.2009 to 07.04.2010. During voice recording the 1^st Opposite Party put a question whether the Complainant had undergone any surgery and he had replied that he had not under gone any surgery. Hence without proposal form the policy was issued. The premium remitted by the Complainant through the credit card issued by the 2^nd Opposite Party to him.  He had renewed the policy without any break till April 2015. During the month of September the Complainant had sudden pain in chest and was hospitalized at Madras Medical Mission.

 2. The Complainant had submitted claim to the 1^st Opposite Party for an amount of Rs.2,37,680/- enclosing all the medicals bills. However, the 1^st Opposite Party repudiated the claim on 08.11.2013 that the Complainant is suffering from diabetes and hypertension even before the inspection of the policy. The Complainant approached ombudsman and he passed an Ex-gratia of Rs.50,000/- on 25.07.2015 and the said amount was also credited to the Complainant account  on 22.08.2014.

3. The repudiation  of the claim made by the 1^st Opposite Party not sustainable for the reason that he had not followed regulations 9.4.5 of the Health Insurance Regulations 2012  and the 1^st Opposite Party failed to file the agreement with the TPA to IRDA under the Health Insurance Regulation 2012. The hyper-tension and diabetes are not diseases and it is only a metabolic disorder and further the 1^st Opposite Party failed to note that section 45 of the Insurance Act is applicable to Medi Claim Policy as the two years period expired on 2011. The 1^st Opposite Party repudiated the claim caused mental agony to the Complainant. Hence the Complainant filed this Complaint to direct the 1^st Opposite Party to pay the claim amount of Rs.2,37,680/- and compensation for mental agony with cost of the Complaint.                      

4. WRITTEN VERSION OF THE   1^st  OPPOSITE PARTY IN BRIEF:

          The 1^st Opposite Party admits that based on the telephonic conversation with the Complainant on 08.04.2009, he had issued the Family Protect Premier Individual Policy to the Complainant for an insured sum of Rs.3,00,000/-  for the period 08.04.2009 to 07.04.2010. The said policy was issued to the Complainant subject to the terms and conditions of the policy and the policy was also renewed by the Complainant in the subsequent years. The Complainant made a claim towards the reimbursement of medical expenses incurred at Madras Medical Mission during September 2013 for Angioplasty treatment. The documents submitted by the Complainant reveals that he was a known case of hyper-tension and type II diabetes for the past 15 years. The Complainant had suppressed the material facts at the time of proposal of the policy.

5. As per the terms and conditions and exclusion of the policy, the claim was rejected on 08.11.2013.  The policy was also cancelled by giving due notice and premium amount of Rs.23,083/- was refunded and credited  in the Complainant’s bank account on 16.01.2014. The ombudsman also observed that the contention of pre-existing diseases cannot be ruled out and however he awarded an exgratia amount of Rs.50,000/- and credited to the  Complainant account.  The 1^st Opposite Party states that in the voice recording, the caller has asked whether the Complainant had any pre-existing disease and undergone any surgery. The Complainant had replied that he had not undergone any surgery and intentionally ignored the question regarding the existence of pre-existing disease. Therefore, it is false to state that the caller had asked only about the surgery as averred in para 2 of the Complaint. The 1^st Opposite Party denies that the hyper-tension and diabetes are not disease and only a metabolic disorder. The 1^st Opposite Party has not committed any deficiency by repudiating the claim of the Complainant and therefore prays to dismiss the Complaint with cost.

6. WRITTEN VERSION OF THE   2^nd  OPPOSITE PARTY IN BRIEF:

          This Opposite Party is no way connected with the transaction between the Complainant and the 1^st Opposite Party and he had no knowledge about the transaction that has transpired between them. No relief sought in the Complaint against this Opposite Party and he was unnecessarily dragged in this Forum for no fault of him. Hence this Opposite Party prays to dismiss the Complaint with cost.

7. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite parties?

          2. Whether the complainant is entitled to any relief? If so to what extent?

8. POINT NO :1 

          The admitted facts are that the 1^st Opposite Party issued Ex.A1  Family Protect Premium Individual Insurance Policy for the period 08.04.2009 to 07.04.2010  to the Complainant based on the Tele Conversation dated 08.04.2009 and Ex.B2 is the renewal policy issued to the Complainant  and during September  the Complainant had sudden chest pain and was hospitalized at Madras Medical Mission, Hospital on 18.09.2013 and after undergoing Angioplasty surgery by fixing stent,  he was discharged on 21.09.2013 as evidenced in Ex.B3 Discharge Summary and thereafter the Complainant made Ex.A2 claim to the 1^st Opposite Party for reimbursement of Rs.2,37,680/- enclosing the medical bill and the said claim was repudiated by the Opposite Party on 08.11.2013 under Ex.A3 Repudiation Letter and thereafter the Complainant approached the ombudsman for redressal and the ombudsman passed Ex.A4 award  dated 25.07.2014 by awarding an exgratia amount of Rs.50,000/- to the Complainant and the said amount was also credited in Ex.A5 Complainant bank account.

          9. The  2^nd Opposite Party is only a formal party and no relief sought from him in the Complaint by the Complainant.

          10. The claim made by the Complainant under Ex.A2 was repudiated by the 1^st Opposite Party as follows.

  We regret to inform you that “as per the voice recordings available with us, the history of hyper-tension and diabetes was not disclosed and hence we stand by our rejection”  

As per the above repudiation, the 1^st Opposite Party is having the voice recordings of the Complainant, which was recorded on 08.04.2013 by way of Tele Conversation. The Complainant specifically contended that the only question was put to him on that day whether the Complainant had undergone any surgery and he replied negatively. However the 1^st Opposite Party pleaded in the written version that in the voice recording, the caller has asked whether the Complainant had any pre-existing diseases and undergone any surgery.  However, the Complainant’s case is that the 1^st Opposite Party never asked anything about the pre-existing diseases. The 1^st Opposite Party repudiated the claim due to non disclosure of pre-existing diseases viz. hyper-tension diabetes.

          11. The categoric case of the 1^st Opposite Party is that the voice recording in respect of none disclosure of pre-existing diseases is available with him. It is the 1^st Opposite Party who owes a duty to prove that the Complainant had not disclosed the pre-existing diseases even then he was questioned by the 1^st Opposite Party man on 08.04.2009. To prove the same the voice recording has to be produced before this Forum along with the transcription. However, no reason was adduced by the 1^st Opposite Party for non production of the evidence of voice recording. When the available evidence not produced, an adverse inference can be drawn against the 1^st Opposite Party. In support of this fact the Complainant relied on the judgment of the State Consumer Disputes Redressal Commission, Chennai in FA No.110/2006 (M/S NEW INDIA ASSURANCE CO.LTD. VS. M.KRISHNAMOORTHY)  dated 13.01.2010 held that the Proposal Form should be available with the Opposite Party and therefore for the non production of the said proposal form, even an adverse inference could be drawn, as if nothing had been suppressed by the Complainant and that is why the Opposite Party failed to produce the same. In the case in hand there is no proposal form obtained by the 1st Opposite Party and admittedly the policy was issued based on Tele Conversation   and further according to the 1^st Opposite Party the voice recordings of the Complainant available with him and failed to produce the same to prove the pre-existing disease on the Complainant an adverse inference could be drawn as nothing suppressed by the Complainant.

          12. The Complainant next contended that as per section 45 of the Insurance Act within two years from the date issuance of the policy, the Insurance Company has the power to cancel the policy and failure to do the same they are bound by the policy. In the case in hand also if the Complainant suppressed the pre-existing disease, the 1^st Opposite Party could have cancelled the policy issued to him and failed to cancel the same, the 1^st Opposite Party is bound by the policy.  Admittedly the Complainant made claim to the 1^st Opposite Party when the policy issued by him is in force. Therefore as stated above the 1^st Opposite Party is bound to honour the claim made by the Complainant.

          13. Admittedly when the Complainant approached the insurance ombudsman, he has ordered only an exgratia amount of Rs.50,000/- to the Complainant. The said order of the ombudsman is  not binding  this Forum as per the order of the National Commission, New Delhi reported in 1(2005) CPJ 107 (NC)  (KAMLESHWARI PRASAD SINGH VS. NATIONAL INSURANCE CO.LTD) and therefore the Complaint made by the Complainant is maintainable in this Forum.

          14. Therefore as discussed above we hold that the 1^st Opposite Party failed to prove that the Complainant suppressed the pre-existing disease by him, the order passed by the Insurance Ombudsman not binding on this Forum and the 1^st Opposite Party has not cancelled the policy within two years from the date of inception of the policy and the 1^st Opposite Party subsequently cancelled the policy of the Complainant and also repudiated the claim of the Complainant under Ex.A3 is not sustainable and hence it is held that the 1^st Opposite Party committed deficiency in service.

15. POINT NO:2

          It is held above that the repudiation of the policy by the 1^st Opposite Party is not sustainable, the Complainant is entitled for the claim amount of Rs.2,37,680/- from the 1^st Opposite Party. However, the Complainant himself admitted that on the basis of the award of ombudsman   a sum of Rs.50,000/- was credited in his  bank account on 22.08.2014. The Complainant would contend that he had sent Ex.A6 protest letter to the 1^st Opposite Party and not utilized the amount of Rs.50,000/-. There is no evidence on behalf of the Complainant that the amount of Rs.50,000/- was refunded to the 1^st Opposite Party. Therefore, in such circumstances we hold that the Complainant is only having the credited amount in his account. In view of such conclusion the said sum of Rs.50,000/-  has to be deducted from the claim amount of Rs.2,37,680/-  and the balance amount of Rs.1,87,680/- only the Complainant is entitled from the 1^st Opposite Party towards his claim amount. Due to repudiation of the claim the Complainant suffered with mental agony is accepted and for the same, it would be appropriate to order a sum of Rs.50,000/- towards compensation, besides a sum of Rs.5,000/- towards litigation expenses. As no relief sought from the 2^nd Opposite Party, the Complaint in respect of him is liable to be dismissed.

          In the result the Complaint is partly allowed. The 1^st Opposite Party is ordered to pay a  sum of Rs.1,87,680/-(Rupees one lakh eighty seven thousand six hundred and eighty only) towards the balance claim amount to the Complainant and also to pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards the compensation for mental agony, besides a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses. The Complaint in respect of the 2nd Opposite Party is dismissed.

          The above amount shall be paid to the Complainant within 6 weeks from the date of receipt of copy of this order failing which the above said amount shall carry 9% interest till the date of realization.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 22^nd day of March 2017.

 

MEMBER – II                                                               PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 09.04.2009                   Policy issued by the 1^st Opposite Party

Ex.A2 dated NIL                     Claim Form

Ex.A3 dated 08.11.2013                   Repudiation letter

Ex.A4 dated 25.07.2014                   Award of the Insurance Ombudsman

Ex.A5 dated 22.08.2014                   Bank Statement

Ex.A6 dated 28.08.2014                   Protest letter

 

 

LIST OF DOCUMENTS FILED BY THE 1^st OPPOSITE PARTY :

 

Ex.B1 dated 18.04.2013                   Verbal proposal and the Risk Assumption Letter

 

Ex.B2 dated NIL                     Renewal policy with terms and conditions

 

Ex.B3 dated NIL                     Medical Records

 

Ex.B4 dated NIL                     Affirmation of Repudiation Letter

 

Ex.B5 dated 26.11.2013                   Notice of Termination

 

LIST OF DOCUMENTS FILED BY THE 2^nd OPPOSITE PARTY:

 

                                                …..NIL…….

 

                                                         

 

 

MEMBER – II                                                               PRESIDENT