Per Mr.S.R.Khanzode, Hon’ble Judicial Member
This appeal preferred by the original complainant takes an exception to an order dated 31/08/2009 passed in consumer complaint no.456/2006, Tejswini S.Jhobalia v/s. The New India Assurance Co.Ltd.; passed by South Mumbai District Consumer Disputes Redressal Forum (‘forum’ in short).
It is the case of alleged deficiency in service on the part of M/s.New India Assurance Co. Ltd. (herein after referred as ‘Insurance company’) for repudiation of the mediclaim. Consumer complaint was filed. It was partly allowed. However, not satisfied with the compensation awarded, original complainant preferred this appeal. At Bar it is submitted that the Insurance company did not file any appeal and, thus, acquiesced the impugned order..
Undisputed facts are that the appellant/complainant Tejaswini Jhobalia (herein after referred as ‘complainant’) has taken mediclaim insurance policy in the year 2001 and which was renewed from time to time, lastly for the period 13/11/2003 to 12/11/2004. During the subsistence of last renewal, she had undergone surgery on 14/11/2003 and was also suffered hospitalization for post operative care during the period 14/11/2003 to 19/11/2033. She was diagnosed and treated for surgical treatment for chronic Advanced Generalised suppurative periodontitis. She had received the surgical treatment through Periodontist-Dr.A.Kumarswamy and for the post operative care, she was hospitalized at JoyHospital, Chembur, though intermittently she was taken to surgeon Dr.A.Kumarswamy for required dressing. The insurance claim was made on 02/12/2003 with requisite papers. Additional papers were submitted as per requirement of the Insurance company, whenever the demand was made. Insurance company however repudiated the claim. Earlier repudiation dated 12/02/2004 was communicated by M/s.TTK Healthcare Services Pvt.Ltd., a representative of the Insurance company for the purpose. When complainant requested Insurance company to reconsider such repudiation, the Insurance company did so but ultimately, by its letter dated 18/07/2005 repudiated the claim affirming earlier repudiation. Feeling aggrieved thereby, initially the complainant took up the matter with insurance ombudsman who did not entertain the grievance and, therefore, consumer complaint was filed on 23/11/2006.
The Forum by impugned order found that Insurance company arbitrarily repudiated the claim but instead of granting the full claim as per the complaint, partly allowed the same and awarded the claim of `1,75,000/- towards the mediclaim, `30,000/- as compensation towards mental and physical torture and in addition to it `6000/- were awarded as cost. Above amounts were directed to be paid within 45 days and, failing which, it would carry interest @ 7% p.a. Entire claim of the complainant was for `2,27,786/- and since the entire claim was not awarded towards the mediclaim, this appeal is preferred, supra.
Heard both the sides.
Since it is an appeal by the complainant restricted to the quantum of compensation awarded for the deficiency in service on the part of the Insurance company and, further, since Insurance company did not file any appeal, and, thereby, the finding of deficiency in service on the part of Insurance company for repudiating the insurance claim is no more open for challenge to the Insurance company.
Coming to the quantum of compensation awarded, it could be seen that complainant claimed `2,26,540/- towards the hospital bills, `706/- for medicines, and `540/- towards the other charges total amounting to `2,27,786/- (appeal compilation page 57 marked as Exhibit ‘F’). Since there is repudiation based upon the alleged exclusion clause to which the forum did not accept and proceed to grant compensation, we find that the repudiation being arbitrary, since it did not fall in either of the exclusion clauses to which a repudiation letter refers, grant of compensation is proper. We further find that it is not a case of Insurance company that the bills submitted for as hospitals bills are false or not proper. All the payments to the surgeon are made by cheque only. Therefore, not to grant compensation of `2,26,540/- as claimed and which are supported by the documents i.e.hospital bills, ought to have been granted entirely since it falls within the insured limit of `3 lakhs for the complainant. Similarly, there is no reason to disallow the claim for medicines and other charges, supra. Thus, total claim of compensation which could be awarded under the mediclaim policy by way of compensation is `2,27,786/-. Forum was pleased to award only `1,75,000/- but without assigning any reasons as to how they arrived at that particular figure and as to why the entire claim was not awarded. Therefore, the difference of `52,786/- (`2,27,786/- minus `1,75,000/-) is to be awarded as additional compensation on that particular count to the complainant. We find no reason to disturb the claim awarded i.e. `30,000/- towards the mental torture and `6,000/- as cost.
The cause of action to lodge the insurance claim arose on the date of event that is when the appellant/complainant got discharge from the hospital on 19/11/2003. The insurance claim was lodged on 02/12/2003. Under the circumstances, we find that since the date of cause of action is relevant to entertain the consumer complaint in view of section 24 of the Consumer Protection Act, 1986, we find it just and proper to award the interest by way of compensation on the insurance claim amount from the date of filing of the insurance claim i.e.02/12/2003.
For the reasons stated above, we hold accordingly and pass the following order:-
OPERATIVE ORDER
“Appeal is allowed.
Impugned order dated 31/08/2009 is modified and substituted with the following :
“Opponent/Insurance company do pay `2,27,786/- (Rupees Two lakhs twenty seven thousand seven hundred eighty six only) to the complainant along with interest @ 7% per annum from the date 02/12/2003 till its realization.
In addition to this opponent/Insurance company do pay `30,000/- (Rupees thirty thousand only) by way of compensation towards mental torture/inconvenience suffered by the complainant.
Opponent/Insurance company to bear its own costs and to pay `6,000/- (Rupees six thousand only) to the complainant.”
In the given circumstances, in this appeal, both the parties to bear their own costs.
Copies of the order be furnished to the parties.
Pronounced on 30th November, 2011.
