BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 18th of February 2011
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.50/2010
(Admitted on 06.02.2010)
Mr.Divakar Bangera,
So. K. Vasu Kotian,
Aged about 49 years,
RA. Sri.Veeranjaneya,
Saldanha Compound, Moodbidre,
Dakshina Kannada. …….. COMPLAINANT
(Advocate for the Complainant: Sri.Udayananda A)
VERSUS
1. The New India Assurance Company Limited,
Represented by its Branch Manager,
Balmatta Branch, Plaza Complex,
2 Floor, Balmatta Road,
Mangalore 2.
2. TTK Health Care TPA Pvt. Ltd.,
Represented by its Authorized Signatory,
No.2, H.B. Complex,
100 feet BTM First State,
B.T.M. Layout,
Bangalore – 570 068. ……. OPPOSITE PARTIES
(Advocate for the Opposite Parties: Mrs.Hemalatha Mallya).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant submits that, he had obtained Mediclaim Insurance Policy with the Opposite Party as per policy No.67080534088700000447 and the same is valid from 01.09.2008 to 31.08.2009 for a sum of Rs.50,000/-. Under the above said policy himself and his family was covered since the year 1995. It is stated that, since 1995 they have not made any claim with the Opposite Party during the subsistence of the previous policies.
It is stated that, the Complainant had suffered stomach pain, on 10.03.2009 got admitted to UMC Hospital Mangalore and was inpatient from 10.03.2009 to 23.03.2009. The doctors of the said hospital treated for acute variceal hemorrhage and spent Rs.1,50,000/- at UMC hospital and Rs.75,000/- spent for transport and other incidental expenses. It is stated that, the Complainant has submitted the claim to the Opposite Party No.1 on 14.04.2009 along with documents. But the Opposite Party despite of taking all those documents sent a letter dated 24.07.2009 by repudiating the claim stating that vomiting of blood and acute variceal hemorrhage is probably alcohol related disease which is not covered under the policy. The Complainant stated that, the repudiation made by the Opposite Party is not correct which amounts to deficiency in service and hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to pay a sum of Rs.2,25,000/- towards reimbursement of mediclaim amount due under the policy along with interest at the rate of 12% p.a. from 14.04.2009 to 20.01.2010 and also pay Rs.1,00,000/- as compensation and cost of the proceedings.
2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed version admitted the policy but it is stated that, the Complainant is not entitled for any compensation and it is stated that the illness of the Complainant was due to consumption of alcohol and this is not covered under the policy conditions. It is stated that, the repudiation made by them is correct, there is no deficiency and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Sri.Divakar Bangera (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C6 were marked for the Complainant as listed in the annexure. One Mr.A.M. Belma (RW1), Senior Manager of the Opposite Party No.1 filed counter affidavit and answered the interrogatories served on him. One Dr.B.Vishwanath Tanthry, Gastroenterology, K.M.C. Hospital, Mangalore and Dr.Keshava Pai, Associate Professor, Department of Psychiatrics, K.M.C. Hospital, Mangalore (RW2 and RW3) examined on behalf of the Opposite Parties. Ex R1 to R5 were marked for the Opposite Parties as listed in the annexure.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
The facts which are not in dispute is that, the Complainant obtained Family Mediclaim Group Insurance Policy from the Opposite Party bearing policy No.67080534088700000447 and the said policy is valid from 01.09.2008 to 31.08.2009 (as per Ex C4) for a sum of Rs.50,000/-. It is also admitted that, during the subsistence of the policy, the Complainant admitted to UMC Hospital, Mangalore, he was an inpatient from 10.03.2009 to 23.03.2009 (as per Ex C6).
Now the point in dispute between the parties before this Forum is that, the Complainant stated that after discharge from the hospital submitted the claim form to the Opposite Party but the Opposite Party No.1 repudiated the claim by sending a letter dated 24.07.2009 i.e., after lapse of three months, which is not correct, hence this complaint came to be filed.
The Opposite Party on the other hand stated that, as per the policy conditions the sum assured was only Rs.50,000/- and the illness of the Complainant was due to consumption of alcohol, the same is not covered under the policy conditions and produced evidence of RW1 to RW3 and document i.e., Ex R1 to R5.
The Complainant also filed oral evidence by way of affidavit and produced Ex C1 to C6.
On scrutiny of the oral as well as documentary evidence placed on record, we find that, the Complainant obtained a Mediclaim Group Insurance Policy as per Ex C1 i.e., the policy bearing No.670805/48/05/168 issued by the Opposite Party for the period from 01.09.2005 to 31.08.2006 for a sum of Rs.50,000/-, the another policy i.e., Ex C2 bearing policy No. 670805/48/06/ 00151 valid from 01.09.2006 to 31.08.2007 for a sum of Rs.50,000/-, the Ex C3 policy bearing No.670805340787000512 valid from 01.09.2007 to 31.08.2008 for a sum of Rs.50,000/- and the 4th policy bearing No.67080534088700000447 valid from 01.09.2008 to 31.08.2009 for a sum of Rs.50,000/-. The Ex R5 is the hospital records, wherein, the discharge summary reveals that, the Complainant admitted to KMC Hospital on 10.03.2009 at 7.00 p.m. with a complaint of vomiting of blood since 4.00 p.m on the same day. The hospital diagnosed the case of the Complainant, on final diagnosis the doctor came to the conclusion that, the Complainant was suffering from Cirrhosis of liver with partial hynetenson …… acute variceal hemorrhage. The hospital authority treated the Complainant and discharged on 23.03.2009. Further the history recorded by the KMC Hospital reveals that, he is a known alcoholic since 15 years and stopped for three months from July 2008 – October 2008 but restarted. And further reveals that, the patient is conscious and coherent. We noticed that, the Opposite Party Company basing on the history of the Complainant repudiated the claim stating that, the Complainant is a alcoholic and examined treated doctor i.e., RW2 Dr.B.Vishwanath Tanthry, Gastroenterology, K.M.C. Hospital, Mangalore and RW3 Dr.Keshava Pai, Associate Professor, Department of Psychiatrics, K.M.C. Hospital, Mangalore. The doctor who examined before the Forum deposed that they do not have any personal knowledge with regard to taking of alcohol since 15 years. Further, the RW2 who is a Gastroenterology in his evidence page No.1 and 2 deposed as follows:-
Further, RW3 i.e., Dr.Keshava Pai, Associate Professor, Department of Psychiatrics, K.M.C. Hospital, Mangalore deposed as follows:-
From the evidence of the treated doctors, it is very clear that the above disease may come due to four reasons, out of that, one is the alcoholic and another one is hypotitis B and C and fourth one is cryptogenic. The doctor one who treated the Complainant not certain that, the above disease is caused because of the alcohol only. The doctor one who treated the patient deposed before the Forum that
From the above, one can make out that, there is no specific evidence that the above disease is caused because of the alcohol only. To confirm the same, there should be a nexus to the alcoholism. Just because a person taking alcohol cannot be considered that, he is a alcoholic. Before considering the Complainant is a alcoholic, the two factors is to be considered. Firstly, the above disease is the result of alcoholism and has thus nexus to the alcoholism. Secondly, it is for the Insurance Company to prove by chemical test that the Complainant was having in his blood alcohol exceeding 30 mg per 100 mg of blood at the time of suffering from the disease. But in the instant case, the doctors assumed that the above disease may be due to alcohol but there is no chemical test of the Complainant to show that in his blood the alcohol level is exceeding from the normal. Apart from that, the doctor also stated that, the above disease may come even due to some other reasons than the alcohol. Under such circumstances, one cannot repudiate the claim by assumption and presumption or basing on the history recorded in the case sheet. We observed that, in the instant case, the Insurance Company failed to prove that the Complainant is alcoholic. Just basing on the history report one cannot repudiate the claim of the Complainant which is not acceptable which amounts to deficiency.
As far as compensation is concerned, the Complainant produced medical bills more than Rs.1,17,889.73 i.e., as per Ex C6. However, the Ex C1 to C4 i.e., the continuous policy, there is no breakage in the policy. No doubt, the fourth policy shows that the sum assured was Rs.50,000/- but the policy is continuous, definitely the Complainant should have accrued the bonus which is not stated by the parties. In the absence of the same, the Complainant is entitled only Rs.50,000/- i.e., the sum assured. By considering the above, the Opposite Party No.1 i.e., New India Assurance Company Limited represented by its Branch Manager is hereby directed to pay Rs.50,000/- towards the medical expenses to the Complainant. Opposite Party No.1 is further directed to pay Rs.10,000/- as compensation for the harassment and mental agony caused to the Complainant and Rs.1,000/- as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
There is no contractual relationship between the Complainant and Opposite Party No.2. Hence, complaint against Opposite Party No.2 is hereby dismissed.
6. In the result, we pass the following:
ORDER
The complaint is partly allowed. Opposite Party No.1 i.e., New India Assurance Company Limited represented by its Branch Manager is hereby directed to pay to the Complainant a sum of Rs.50,000/- (Rupees fifty thousand only) towards the medical expenses. Further pay Rs.10,000/- (Rupees ten thousand only) as compensation and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
On failure to pay the aforementioned amount within the stipulated time as mentioned above the Opposite Party No.1 is hereby directed to pay interest at the rate of 10% p.a. on the total amount from the date of failure till the date of payment.
Complaint against Opposite Party No.2 is hereby dismissed.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 11 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 18th day of February 2011.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sri.Divakar Bangera – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 01.09.2005: Original Corp Mediclaim Group Insurance Certificate.
Ex C2 – 01.09.2006: Original Corp Mediclaim Group Insurance Certificate.
Ex C3 – 01.09.2007: Original Corp Mediclaim Group Insurance Certificate.
Ex C4 – 01.09.2008: Original Corp Mediclaim Group Insurance Certificate.
Ex C5 – 24.07.2009: Repudiation letter issued by the Opposite Party No.2.
Ex C6 – 09.10.2009: Entire records including the medical bills returned by the Opposite Party No.2.
Witnesses examined on behalf of the Opposite Parties:
RW1 – Mr.A.M. Belma, Senior Manager of the Opposite Party No.1.
RW2 – Dr.B.Vishwanath Tanthry (RW2), K.M.C, hospital – summoned witness of the Opposite Party.
RW3 – Dr.Keshava Pai, Associate Professor, K.M.C. Hospital – summoned witness of the Opposite Party.
Documents produced on behalf of the Opposite Parties:
Ex R1 – : Policy with conditions.
Ex R2 – 11.05.2009: Medical information issued by the Opposite Party No.2.
Ex R3 – 02.06.2009: Letter issued by Dr.B.V. Tantry to the Opposite Party No.2.
Ex R4 – 24.07.2009: Letter of the Opposite Party No.2 to the Opposite Party No.1 and copy to the Complainant.
Ex R5 - : Outpatient and inpatient records (Case Sheets) maintained at K.M.C. Hospital pertaining to the Complainant.
Dated:18.02.2011 PRESIDENT
