PER SHRI. S.M. RATNAKAR – HON’BLE  PRESIDENT

1)        This complaint is filed by the Complainant No.1 on behalf of Complainant No.2 as the Complainant No.1 is a Registered Voluntary Consumer Association and entitled to file complaint under Sec.12 of the Consumer Protection Act, 1986 (referred to as the Act).  The Opposite Party No.1 is the Insurer and the Opposite Party No.2 is TPA of the Opposite Party No.1. 

2)        The Complainants have prayed that the Opposite Party No.1 be directed to settle all future claims, if any of Complainant No.2 as per the terms and conditions since inception of the Mediclaim Insurance Policy (1/9/1996).  It is also prayed that the Opposite Party No.1 & 2 jointly or severally be directed to refund an amount of Rs.12,276/- to the Complainant No.2 which was deducted from the claim amount of Rs.29,155/- with interest @ 18% p.a. from 12/05/2011 till its realization to the Complainant No.2. The Complainants have also prayed that the Opposite Parties No.1 & 2 jointly and severally be directed to pay compensation of Rs.2,500/- to the Complainant No.2 for the financial stain and mental anxiety which she suffered by denying the reimbursement of Rs.12,276/- illegally.  It is further prayed that the Opposite Parties be directed to reimburse Complainant No.2 Rs.7,500/- cost of the complaint paid by her to the Complainant No.1 to prepare the docket and filing the complaint. 

3)        According to the Complainants, the Complainant No.2 had jointly availed the mediclaim insurance services of the Opposite Party No.1 since 02/02/1999 and had regularly renewed the policy from year to year. First Medical Insurance Policy, (1/9/1996) issued by the Opposite Party No.1 which was continued for the period 02/02/2007 to 01/02/2008. For which the Complainant No.2 paid premium of Rs.9,297/-.  The copies of the said policies are Annexed as Exh.‘A’.

4)        It is alleged that at the time of renewing of policy at Exh.‘A’, the Opposite Party No.1 in the year 2008 issued a new policy – Hospital Benefit Policy/Mediclaim Policy 2007 mentioning the new terms and conditions.  The renewed Hospital Benefit Policy/Mediclaim Policy 2007 was continued upto 01/02/2012 for which the Complainant No.2 paid premium of Rs.12,707/-.  The copies of the said policies are marked as Exh.‘B’. The Complainant No.2 during the validity of the policy at Exh.‘B’ was hospitalized and discharged after treatment and then.  She then filed claim for the total amount of Rs.29,155/- to the Opposite Parties. The Opposite Party No.2 processed the claim and issued a claim discharge voucher with cheque of Rs.16,879/- by deducting Rs.12,276/- stating that said amount was not payable as per the disallowance details.  The copy of claim discharge voucher dtd.12/05/2011 issued by the Opposite Party No.2 is marked as Exh.‘C’. The Complainant No.2 protested the action of the Opposite Party No.2 vide letter dtd.08/12/2011 and informed that the payment of Rs.16,,879/- is accepted under protest and the deduction of Rs.12,276/- was illegal as the claim was decided in view of the new terms and conditions of policy (Exh.’B’) instead of the terms and conditions that existed when the policy was first incepted in 1999 (Exh.‘A’).  Copy of the said letter issued to the Customer Care Centre and Grievances Cell (through Agent) is marked as Exh.‘D’.  The Opposite Party No.1 & 2 replied to the said letter vide their letters dtd.12/12/2011 and 22/12/2011 respectively stating that “Mediclaim Policy 2007 is a product provided by the New India Assurance Co. Ltd. as per procedure of file and use.  The product is approved.”  The copies of the said letters are marked as Exh.‘E’. 

5)        It is alleged that the Complainant No.2 did not receive any relief from the Opposite Parties and therefore, this complaint is filed for reliefs and compensation as mentioned in para 2 of this order.  It is submitted that there is deficiency in service on the part of the Opposite Parties as regards deducting the amount of Rs.12,276/- from the claim amount of Rs.29,155/- by applying the terms and conditions of Hospital Benefit Policy/Mediclaim Policy 2007 as the Complainant No.2 was covered since inception in 1999 to the benefits of the Mediclaim Insurance Policy under which she was entitled to the full claim of Rs.29,155/- without deductions.  The Complainants therefore, prayed to allow the complaint against the Opposite Parties. 

6)        The Opposite Party No.1 contested the claim by filing written statement.  The authority to file the complaint by the Complainant No.1 on behalf of the Complainant No.2 is denied.  It is contended that the Complainant No.1 has no locus standi to be a party to the present proceeding as there is no insurable interest in favour of the Complainant No.1, the complaint therefore be dismissed.  According to the Opposite Party No.1 on renewing the policy in 2008, the Opposite Party No.1 issued new policy “Hospital Benefit Policy/Mediclaim Policy 2007” having new terms and conditions.  It is contended that the said policy was taken by the Complainant No.2 and it was the choice of the Insured to opt for any policy alongwith the terms and conditions of his choice.  The Opposite Party No.1 contended that the Complainant No.2 has received the amount of Rs.16,879/- in view of the change in the terms and conditions of the policy.  It is the case of the Opposite Party No.1 that the Complainants have no claim for deficiency of service against the Opposite Parties.  The complaint is therefore, liable to be dismissed and the same may be dismissed. 

7)        The Opposite Party No.2 submitted its reply to the complaint by post.  It is contended that the deduction details were given to the Complainant No.2 in Exh.‘C’ to the complaint.  As per clause 2.1 room, boarding and nursing expenses as provided by the hospital not exceeding 1.0% of the sum insured (excluding cumulative bonus) per day or actual amount whichever is less and the amounts which are allowable as per clause 2.3, 2.4 & clause 4.4.21 have been taken into consideration by the Opposite Party No.2 of the policy and settled the claim as per the guidelines given by the Opposite Party No.1.

8)        The Complainant No.2 filed her affidavit alongwith the complaint.  The Branch Manager of Opposite Party No.1 - Mr. Mohan Limay filed his affidavit alongwith the written statement.  Both the parties filed their written arguments. We heard Representative of the Complainant No.2 - Mr. Mascarhans. The Advocate for the Opposite Party No.1 inspite of notice remained absent at the time of oral argument.  However, the Advocate for the Opposite Party No.1 filed pursis that the written statement and written argument filed by Opposite Party No.1 be treated as oral argument. 

9)        The objection raised by the Opposite Party No.1 that the authority to file complaint by the Complainant No.1 on behalf of the Complainant No.2 is denied and the Complainant No.1 has no locus standi to be a party to the present proceeding and on that count the complaint is liable to be dismissed, cannot be said legal and proper.  As per the Sec.12(1) A complaint in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided may be filed with a District Forum by -

            b)  any recognized consumer association whether the consumer to whom the goods sold or delivered or agreed to be sold or delivered or service provided or agreed to be provided is a Member of such association or not.  We therefore, hold that the locus standi as regards filing of complaint by the Complainant No.1 on behalf of Complainant No.2 as it being recognized Consumer Association cannot be accepted. 

10)      As per the document placed on record by the Complainant as Exh.‘A’ for the policy period 02/02/2007 to 01/02/2008.  It is specifically mentioned that the Opposite Party has considered proposal form and declaration dtd.02/02/1999 in respect of Complainant No.2. The premium is shown as Rs.9,203/-. Copy of the terms and conditions of Mediclaim Insurance Policy is also attached with Exh.‘A’ which were existed on 1/9/1996. In the said policy the Opposite Party vide clause 1.0 had specifically admitted as follows :–

            “In the event of any claim becoming admissible under any scheme the Company will pay to the Insured person, the amount of expenses as would fall under different heads mentioned below, and as such, reasonably and necessarily incurred thereof by and on behalf of such insured person but not exceeding the sum insured in aggregate mentioned hereto.

A)     Room, Boarding expenses as provided by the hospital/Nursing Home.

B)     Nursing expenses.

C)     Surgeon, Anesthetist, Medical Practitioners, Consultants, Specialist Fees.

D)     Anesthetist, Blood, Oxygen, Operation Theater charges, Surgical appliances, Medicines and Drugs, Diagnostic Materials and X-ray, Dialysis Chemotherapy, Radiotherapy, Cost of Pacemaker, Article Limbs and Cost of Organs and similar expenses

(Note : Companies liability in respect of all claims admitted during the period of insurance shall not exceed the sum insured person mentioned in the schedule.)”           

            The Opposite Parties have come out with the case that in view of the renewal of the Mediclaim Policy thereafter from 2007, the coverage under the previous policy 1.9.96 has been changed as mentioned in Exh.‘C’ to the complaint and as per the terms and conditions of Exh.‘B’ to the complaint.  From the documents at Exh.‘B’ there is specific mention that date of issuance of first policy in favour of Complainant No.2 is 02/02/1999 which was covered as per policy 1.9.96.  It is undisputed that the Complainant No.2 had submitted claim of Rs.29,155/- and out of which Rs.12,276/- has been disallowed by the Opposite Party No.2 as mentioned in Exh.‘C’.  As referred above, as per the terms of policy 1/9/96 all the claims regarding hospitalization were allowed to be availed by the Insured subject to the sum insured for that Insured Person.  The ground which raised by the Opposite Parties that Mediclaim Policy 2007 is a product provided by the Opposite Party No.1 as per the procedure file and use and the Complainant No.2 has booked this premium and a fresh proposal form was issued and accepted and also the renewals are done accordingly and therefore, the Complainant No.2 is not entitled for the amount which has been deducted as per the new policy cannot be accepted in view of the observations of the Hon’ble Supreme Courts in the case of Biman Krishna Bose V/s. United India Insurance Co. Ltd., reported in (2001) RD–SC 358 (02/08/2001) wherein the Hon’ble Supreme Court have observed as under –

“A renewal of an insurance policy means repetition of the original policy.  When renewed, the policy is extended and the renewed policy in the identical terms form a different date of its expiration comes into force.  In common parlance by renewal, the old policy is revived and it is sort of substitution of obligations under the old policy unless such policy provides otherwise.  It may be that on renewal, a new contract comes into being, but the said contract is on the same terms and conditions as that of the original policy. When an Insurance Company which has exclusive privilege to carryon insurance business has refused to renew the mediclaim policy of an Insured on extraneous and irrelevant consideration, any disease which and insured had contacted during the period when the policy was renewed, such disease cannot be covered under a fresh insurance policy in view of the exclusion clause.  The exclusion clause provides that the pre-existing diseases would not be covered under the fresh insurance policy.  If we take view that the Mediclaim Policy cannot be renewed with retrospective effect, it would give handle to the Insurance Company to refuse the renewal of policy on extraneous consideration thereby deprive the claim of Insured for treatment of diseases which had appeared during the relevant time and further deprive the Insured for all time to cover those diseases under the insurance policy by virtue of the exclusion cause.  These being the disasters effect of wrongful refusal of renewal of insurance policy, the mischief and harm done to the Insured must be remedied.  We are therefore, of the view that once it is found that the act of any Insurance Company was arbitrary in refusing to renew the policy, the policy is required to be renewed with effect from the date when it fell due for its renewal.”                                       

            In the present case the Opposite Party No.1 has renewed the policy but by imposing new terms of Mediclaim Policy 2007 which is in our view is against the observations of the Hon’ble Supreme Court in the above referred case.  The further policies issued by the Opposite Party No.1 from 2008 onwards as per Exh.‘B’ are not issued and renewed in the identical terms of the original policy and on that count wrongly deducted the amount of Rs.12,276/- from the claim made by the Complainant of Rs.29,155/-.  We therefore, hold that by deducting the said amount the Opposite Parties have indulged in unfair trade practices which amounts to deficiency of service and therefore, the reliefs claimed by the Complainants are required to be granted as follows –

                                                                                                                                     O R D E R

i.                    Complaint No.125/2012 is partly allowed against both the Opposite Parties.

 ii.                 It is declared that the Opposite Parties arbitrarily and illegally converted Mediclaim Insurance Policy (1/1/96) into Hospital Benefit Policy/Mediclaim Policy 2007 after the period of 2008 onwards in respect of Complainant No.2. The Opposite Parties are therefore, directed to settle all the future claims, if any, of Complainant No.2 as per the terms and conditions since inceptions of Mediclaim Insurance Policy (1/1/96).  

iii.               The Opposite Parties No.1 & 2 are jointly and/or severally directed to refund an amount of Rs.12,276/- (Rs. Twelve Thousand Two Hundred Seventy Six Only) deducted from the claim amount of Rs.29,155/- (Rs. Twenty Nine Thousand One Hundred Fifty Five Only) with interest  @ 9% from 12/05/2011 till its realization by the Complainant No.2.   

iv.               The Opposite Parties No.1 & 2 are jointly and/or severally directed to pay Rs.5,000/- (Rs. Five Thousand Only) towards the cost of this proceeding to the Complainant No.2. 

 v.                  The Opposite Parties No.1 & 2 are directed to comply the aforesaid order within one month from the date of receipt of this order.

 vi.               Certified copies of this order be furnished to the parties.