O R D E R

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

  1)        By this complaint the Complainant has prayed that the Opposite Party be directed to reimburse the medical expenses of Rs.94,039/- incurred by the Complainant on the treatment of his son Yashvardhan.  The Complainant has also prayed that the Opposite Party be directed to pay Rs.10,000/- by way of damages for mental torture and harassment caused to the Complainant.

 2)        It is undisputed that the Complainant had taken Mediclaim Policy from the Opposite Party which is marked as Exh.‘A’ and paid premium of Rs.3,744/-. The period of the said policy was of one year from 06/10/2005 till midnight of 05/10/2006.   The receipt of payment of premium is marked at Exh.‘B’. The sum insured for the Complainant his wife and the son Yashvardhan each was Rs.1 Lac. 

 3)        According to the Complainant his son Yashvardhan was admitted in the hospital at Dr. Bacha’s Memorial Belle New Nursing Home, Kings Road Mumbai on 17/05/2006 and he had undergone surgery on 18/05/2006 for his left Ankle Tenodesis.  Thereafter, he was discharged on 23/05/2006 alongwith plaster and his plaster was opened on 01/06/06.  It is alleged that again the leg of his son was put in plaster which was finally re-opened on 21/06/2006. Thereafter, he was regularly under the treatment of Physiotherapist till 08/05/2007.  Dr. Bacha’s issued fitness certificate regarding his son on 08/05/2007. The Complainant had incurred Rs.94,039/- by way of medical expenditure as per Exh.‘C’ collectively for the treatment of his son.  It is alleged that the Complainant by his letter dtd.17/05/2006 had informed the Opposite Party regarding the admission of Complainant’s son at the above hospital for surgery and also informed that he will file mediclaim as per Exh.‘D’. According to the Complainant he lodged the mediclaim to the Opposite Party as per Exh.‘E’ on 04/06/2007. The Opposite Party by its letter dtd.14/06/2007 informed the Complainant that they are unable to accept his claim as the same was filed after a period of one year as per Exh.‘F’. The Complainant thereafter, requested the Opposite Party to waive the condition of claim to be filed within 30 days from the date of discharge from the hospital and requested to consider the claim for medical treatment of his son. The said correspondence made by the Complainant is at Exh.‘G’. The Opposite Party vide letter dtd.16/06/2007 informed that they are taking up grievance of the Complainant with concerned TPA as per Exh.‘H’.  However, nothing was reported to him. Then the Complainant by letter dtd.24/09/2007 marked at Exh.‘I’ and letter dtd.13/12/2007 marked at Exh.‘J’ made correspondence with grievance cell of Opposite Party and requested the Opposite Party to communicate the status of the claim made by him and settle the claim. It is alleged that the case of the Complainant is covered by the exception clause of extreme hardship in not being able to submit the claim as his son has not resumed or recovered fully till 08/05/2007 and thereafter, he had submitted his claim within 30 days i.e. on 04/06/2007.  It is submitted that the Opposite Party has discretionally power to waive the condition of 30 days but have rejected to waive the said condition and had chosen not to respond the claim which is arbitrarily and contrary to the principle of natural justice.  The Complainant therefore, prayed that as stated in para 1 of this order the direction s may be issued against the Opposite Party.

 4)        The Opposite Party by written statement contested the claim on the ground that the Complainant has not disclosed any cause of action as the Opposite Party have not committed any deficiency in services in relation to the Complainant’s claim and therefore, the complaint is not maintainable and liable to be dismissed with cost.  It is contended that the claim of the Complainant was rejected by the Opposite Party by due application of mind.  It is contended that the liability of the Insurance Company arise within 12 calendar months from the date of such disclaimer have been made.  It is contended that the claim of the Complainant was rejected on 14/06/2007 whereas the complaint is filed on 06/06/2009 which falls beyond the 12 calendar months as stipulated in the policy wording which are as under –

            “If the Company shall disclaim liability to the Insured for any claim hereunder and if the Insured shall not within 12 calendar month from the date of receipt of the notice of such disclaimer notify the Company in writing that he does not accept such disclaimer and intends to recover his claim from the Company then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder.”   

             It is also contended that as per the clause of policy that the final claim alongwith the hospital bills/cash memos, claim form and list of documents, etc. should be submitted to the Company within 30 days of discharge from the hospital. It is contended that the Complainant has not disputed that the claim is filed late.  It is thus, contended that as a Complainant has failed to comply with the policy clause and has not lodged his claim within 30 days from the date of discharge of his son from the hospital, the Complainant is not entitled for the claim as prayed for. It is thus, prayed that the complaint be dismissed.  

 5)        The Complainant has filed rejoinder to the written statement of the Opposite Party.  The Opposite Party has filed affidavit of evidence.  Both the parties have filed their written arguments.  We heard the Ld.Advocate Pravin Baria, for the Complainant and Smt. Sapna Bhuptani, Ld.Advocate for the Opposite Party.

 6)        While considering the submissions made by both the parties it is necessary to be considered that the Complainant in the complaint himself averred that his son was discharged after surgery on 23/05/2006 from the hospital where he had taken treatment.  In the document issued by Dr. Bacha’s Hospital i.e. Bill No.4957 also there is mentioned that admitted on 17/05/2006 and to be discharged on 23/05/2006 morning.  In the policy document filed at Exh.‘A’ there is specific mention as per clause 5.4 “claim must be filed within 30 days from the discharge from hospital.”  In the present case admittedly the Complainant has lodged the claim by letter dtd.04/06/2007 as per Exh.‘E’ and it appears that as per the endorsement on it, it was received by the Opposite Party on 07/06/2007 i.e. after the discharge from the hospital after about more than one year. We therefore, hold that the contention raised by the Opposite Party that the Opposite Party has rightly informed by letter dtd.14/06/2007 at Exh.‘F’ that they are unable to accept the claim made by the Complainant as the claim was submitted after one year of discharge which he should have submitted within 30 days of discharge from the hospital is legal and proper as per the terms of the policy.  The submission made by the Advocate for the Complainant that the son of the Complainant was taking the treatment of Physiotherapist and he was recovered fully on or about 08/05/2007 as per the certificate issued by Dr.A.R. Bacha’s dtd.08/05/07 and therefore, the claim could not be lodged within the stipulated period and on that count the claim made by the Complainant is required to be allowed on the ground of natural justice in our view cannot be accepted in view the above referred specific clause of policy.  Further more as per the case relied by the Ld.Advocate for the Opposite Party Smt. Sapna Bhuptani, H.P. State Forest Co. Ltd. V/s. United India Insurance Co. Ltd., 2009 (1) Consumer Protection Judgments pg.1 (SC).  It is held that if the claim is not pressed within 12 months from the date of loss, Insurance Company ceases to be liable and if no claim/ arbitration proceedings made during prescribed period then the Insurer is not liable under policy and the Insured is not entitled for any relief.  In our view the Opposite Party has rightly objected the claim made by the Complainant. We also hold that as admittedly the claim of the Complainant was objected and rejected on 14/06/2007, whereas the Complainant has filed this complaint on 06/06/2009, which falls beyond the period of 12 calendar months as stipulated in the policy wordings and observed by the Hon’ble Supreme Court in the above case, the Complainant is not entitled for the claim as prayed for.   In view of the above facts in our candid view the present complaint is not maintainable under the contract of insurance and therefore, the same is liable to be dismissed.  In the result the following order is passed -                                                                                               

O R D E R

i.                    Complaint No.174/2009 is dismissed with no order as to cost.  

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