Date of Filing:16.03.2009<br /> Date of Order:26.11.2009<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 26TH DAY OF NOVEMBER 2009<br /> <br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> <br /> COMPLAINT NO: 599 OF 2009<br /> <br /> Sunitha Ahuja,<br /> W/o Mr. R.G. Ahuja,<br /> R/at No.201, Falcon’s Nest,<br /> No.9, Bride Street,<br /> Langford Town,<br /> Bangalore-560 025. Complainant<br /> <br /> V/S<br /> <br /> The New India Assurance Company Ltd.,<br /> Malleshwaram Branch, <br /> No.339, I Floor, Near 11th Cross,<br /> Sampige Road, Bangalore-56003,<br /> Represented by its Divisional Manager. Opposite Party<br /> <br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed under Section 11 of the Consumer Protection Act, 1986.<br /> The facts of the case are that, the complainant has taken mediclaim insurance policy from the opposite party. She was suffering from knee pain. The complainant has written a letter to opposite party wanted to know at the earliest, from the opposite party as to whether she was eligible for reimbursement of the cost of RFQMR treatment under the mediclaim policy. Opposite party wrote a letter informing that they asked their higher officers for their advise. She was waited for an early reply, but there was no reply from the opposite party. Therefore, she underwent RFQMR treatment from July 30, 2007 to August 20, 2007 at SBF Health Care Pvt. Ltd.,. She had paid Rs. 80,000/- to SBF Health Care Pvt. Ltd., towards treatment. The complainant sent claim form for a sum of Rs.1,07,500/- for the treatment at SBF Health Care Pvt. Ltd.,. Opposite party informed that RFQMR treatment was not claimed under the mediclaim policy. Complainant submitted that insurance ombudsman Chandigarh ordered for payment of claim amount relating to RFQMR treatment. The opposite party company had settled the claim of one Chandraprabha who had also taken treatment in SBF Health Care Pvt. Ltd., Bangalore. The opposite party company had also settled the claim of one Peter G.M for a similar RFQMR treatment. The claim of Smt. Munnidevi Garg was also settled and claim of Smt. Gangu Bielliappa for the same treatment was also settled. Complainant wrote a letter to the insurance ombudsman at Hyderabad. The insurance ombudsman passed an award in October 27, 2008 allowed a exgratia payment of only Rs. 20,000/- which was not accepted by the complainant. Complainant approached the Insurance Regulatory Authority and the said authority informed the complainant to seek relief from the Courts. The rejection of the claim by the opposite party is opposed to law of natural justice and equity. The complainant submitted that it is a clear case of deficiency in service on the part of the opposite party. The rejection of the claim of the complainant is in violation of natural justice and equal treatment to the policy holders. The opposite party is a statutory authority and they have no right to discriminate against the complainant. The refusal of the claim has resulted in grave injustice and subjected the complainant to inordinate suffering and mental privation. Therefore, the complainant has prayed that opposite party be directed to pay Rs. 1,07.500/- being the expenses incurred by her towards treatment and the opposite party has prayed for the grant of interest and compensation. <br /> 2. After admitting the complaint notice was issued to the opposite party. Notice was served on the opposite party. Opposite party put in appearance through Advocate and defence version filed stating that, the subject matter in issue has already been adjudicated by the insurance ombudsman, Hyderabad by rejecting the claim of the complainant. Hence, the complainant cannot seek to bring the same subject matter for adjudication before this Hon’ble Forum. The opposite party admitted that the complainant had taken mediclaim policy for the period 30th March-2007 to 29th March-2008 from the opposite party. Complainant cannot take two or three cases as a precedent because each of every case is different from every case. The treatment of RFQMR does not satisfy the requirements of policy conditions. Further, RFQMR treatment has never been recognized by any authority like Medical Council of India. The SBF Health Care Pvt. Ltd., Bangalore where the complainant took treatment does not qualify or come within the definition of a Hospital as required under the mediclaim policy. The complainant cannot rely on the award passed by the Chandigarh Insurance Ombudsman. The opposite party submitted that there was no deficiency of service on their part. For all these reasons stated above, the opposite party requested to dismiss the complaint. <br /> 3. Affidavit evidence of complainant Smt. Sunitha Ahuja as been filed. On behalf of opposite party affidavit evidence of Mr. P.B. Nayak, divisional Manager has been filed. The complainant in all has produced 21 documents under list of documents. Arguments of learned Advocates for both the parties heard. <br /> <br /> 4. In the light of the arguments advanced by both the learned counsel for the parties, the following points arise for consideration:<br /> <br /> 1. Whether the opposite party has committed deficiency in service?<br /> <br /> 2. Whether the repudiation of the claim put up by the complainant is justified?<br /> <br /> 3. Whether the complainant is entitled for the claim amount? <br /> <br /> REASONS<br /> 5. It is an admitted fact that the complainant has taken mediclaim policy from the opposite party. The policy period was from 30/03/2007 to 29/03/2008. Sum assured is for Rs. 2,00,000/-. The complainant has paid premium of Rs.5,623/-. Copy of policy is produced. The complainant had written letter to the opposite party on 14/07/2007 seeking clarification that RFQMR treatment is available in Bangalore and she wish to undergo the same and asked the opposite party to inform whether the cost of said treatment is eligible for reimbursement under the subject mediclaim policy and requested the opposite party to convey the decision early. The complainant has produced letter of opposite party dated 19/07/2007 wherein they have stated with reference to letter of the complainant that they have asked for an advice from the higher office regarding coverage of the new line of treatment under the mediclaim policy and they will revert back to the complainant on receipt of the reply. The complainant waited for early reply, but there was no reply from the opposite party. Therefore, in order to alleviate her suffering from the unbearable pain, she underwent RFQMR treatment from 30th July-2007 to 20th August-2007 with SBF Health Care Pvt. Ltd. The complainant sent claim form to the opposite party for a sum of Rs.1,07,550/- for the treatment taken at SBF Health Care Pvt. Ltd., Bangalore. The opposite party repudiated the claim as not admissible by letter dated 22/11/2007. The complainant had filed her complaint before insurance ombudsman, Hyderabad. The insurance ombudsman passed an order on 27/10/2008 awarding ex-gratia payment of Rs.20,000/-. The complainant has not accepted the said award. Therefore, ultimately she has approached this Forum for getting justice. The learned Advocate for the opposite party has very much relied upon the award of insurance ombudsman and vehemently argued that since the complainant had approached the insurance ombudsman and award has been passed granting only ex-gratia payment of Rs. 20,000/-. Therefore, the complainant is bound by the award of the insurance ombudsman, Hyderabad. The learned counsel submitted that the complainant cannot file her complaint before the Consumer Grievances Redressal Forum under the C.P Act, 1986. The learned counsel submitted that the complainant is hit by res-judicata since the matter in issue has already been adjudicated by the insurance ombudsman, Hyderabad. The main focus of the argument of the learned counsel for the opposite party is in regard to the award passed by the insurance ombudsman and on that ground he argued that the present complaint is liable to be dismissed. The learned counsel for the opposite party submitted that the opposite party is ready and willing to abide by the award of the insurance ombudsman and always ready to pay Rs.20,000/- as ex-gratia amount to the complainant. The learned counsel for the complainant on the other hand argued that the award of insurance ombudsman is not binding on the complainant. The complainant has not accepted the award. Therefore, she has come up with her complaint before this Forum for getting justice. The learned counsel for the complainant submitted that there is no bar to file the complaint before the Consumer Forum even though there was an award of the insurance ombudsman. Under the insurance ombudsman rules, the complainant shall furnish claim within a period of one month from the date of receipt of the award, a letter of acceptance that the award is in full and complete settlement of his claim. Thereafter, the insurer shall comply with the order within 15 days of the receipt of the acceptance letter. If the complainant does not intimate the acceptance, the award may not be implemented by the insurance company. In this case admittedly the complainant has not accepted the award, he has not sent letter of acceptance of the award to the opposite party. On this point there is a direct decision of Hon’ble National Commission between Kamaleshwari Prasad Singh Vs. National Insurance Co Ltd., I (2005) CPJ 107 (NC) wherein it has been held as under:-<br /> “claim rejected by Insurance Ombudsman – Hence complaint – Forum held, complaint maintainable under Act- Order set aside in appeal – State Commission held, dispute adjudicated by statutory authority, complaint not maintainable – Hence revision – Ombudsman not discharging judicial or quasi – judicial functions, role is altogether different – Award of Ombudsman not binding on complainant – Repudiation of claim subject to adjudication by Fora – Revision allowed – Order of Forum restored – Redressal of Public Grievances Rules, 1998. (Revision allowed)<br /> <br /> Held that, apart from the aforesaid general principles, the rules framed by the Central Government no where provide that the decision of the Ombudsman would be a binding on the assured if he does not agree to the said decision. The agreement by the assured is the basis of passing award and that the recommendation / award made by the Ombudsman is binding on the Insurance Company and the Insurance Company is required to carry out the same. <br /> <br /> Held further that, in case, if the award is not accepted by the complainant, then the Insurance Company may not implement the said award.<br /> <br /> The Rules quoted above are clear and do not require any further consideration.<br /> <br /> In view of the above discussion, it is held that the decision of the Ombudsman is not binding on the complainant and the decision of the Insurance Company to repudiate the claim is subject to adjudication by the Fora Constituted under the Consumer Protection Act.<br /> <br /> In the result revision application filed by the complainant is allowed. The impugned order passed by the State Commission is set aside. The order passed by the District Forum is restored. The District Forum is directed to proceed in accordance with law. There shall be no order as to costs.”<br /> <br /> The above authority of law is the full and complete answer to the arguments advanced by the learned counsel for the opposite party. In view of the above decision of the Hon’ble National Commission, it is very clear that award of insurance ombudsman is not binding on the complainant. There is absolutely no bar to entertain the present complaint and to pass orders. The award of insurance ombudsman in this case has no consequence. The complainant is entitled to file this complaint against the opposite party for deficiency of service. The learned counsel for the complainant submitted that for the similar treatment taken at SBF Health Care Pvt. Ltd., by other insured persons have been allowed and accepted by the opposite party company. The complainant has referred the case of one Anil Kumar Garg in respect of Munnidevi Garg taken the similar treatment with SBF Health Care and another claim in respect of Smt. Gangu Belliappa has also been accepted. The complainant has also referred the case of Peter G.M. had taken RFQMR treatment and his claim had also been allowed by the New India Assurance Company Ltd. The complainant has produced an award of insurance ombudsman, Chandigarh who had allowed the claim in respect of RFQMR treatment. The complainant has also produced claim form of Anil Kumar Garg and is also had been accepted. The papers in respect of Gangu Belliappa had also been produced to show that claim had been accepted for the same treatment. The learned Advocate for the complainant referred to us a judgment of Supreme Court reported in (2008) 10 Supreme Court Cases 404 and argued that the insurance company cannot be permitted to act as arbitrarily and unreasonably. The learned counsel for the complainant submitted that the insured company cannot apply one rule to one person and another rule to another person. The insurance company being a statutory creation and part of State under article 12 of the Constitution of India is required to act fairly and reasonably. The opposite party company cannot act arbitrarily and it should be fair to all the consumers. On the ground of parity and fairness, the opposite party company is bound to accept the claim of the complainant. The repudiation of the claim put up by the complainant in this case is unjustified. The repudiation of claim is definitely amounts to deficiency in service on the part of the opposite party. Therefore, the complainant is entitled for the relief from the hands of this Forum. The complainant has to fight the litigation for getting the claim amount, she has spent her time and energy and suffered mental agony and inconvenience on account of not accepting the claim in time by the opposite party company. Therefore, the complainant is entitled for the interest on the claim amount. In the result, I proceed to pass the following:- <br /> ORDER<br /> 6. The complaint is allowed. The opposite party is directed to pay Rs.1,07,550/- along with interest at 9% p.a on the said amount from the date of her claim till payment/realisation.<br /> 7. The complainant is also entitled for Rs.2,000/- as cost of the present proceedings from the opposite party. <br /> 8. The opposite party is directed to comply the order within 30 days from the date of this order. <br /> 9. The opposite party is directed to send the amount by way of cheque or D.D directly to the complainant with intimation to this Forum. <br /> 10. Send the copy of this Order to both the parties free of costs immediately as a statutory requirement. <br /> 11. Pronounced in the Open Forum on this 26TH DAY OF NOVEMBER 2009. <br /> <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> I concur the above findings.<br /> <br /> <br /> MEMBER<br /> <br />