IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 416/08 DATED 19.02.2009<br /> ORDER<br /> <br /> Complainant R.S.Govind, No.48, EWS (OYHS), 3rd Cross, SBI Main Road, Hebbal 1st Stage, Mysore.<br /> (By Sri.P.C.Ponnappa., Advocate)<br /> <br /> Vs. <br /> Opposite Parties 1. The Divisional Manager, The New India Assurance Company Ltd., No.13/2, 1st Floor, 2nd Main, Temple Street, V.V.Mohalla, Mysore.<br /> 2. The Authorized Officer, Meid Assist India Pvt.Ltd., 3rd Floor, No.49, Shilpa Vidya Sarakkai Industrial Layout, 1st Main, J.P.Nagar, 3rd Phase, <br /> Bangalore-560078.<br /> (By Sri.J.S.K., Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 19.12.2008<br /> Date of appearance of O.P. : 16.01.2009<br /> Date of order : 19.02.2009<br /> Duration of Proceeding : 1 MONTH 2 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The grievance of the complainant in brief is, that himself, his wife, daughter and a son had availed mediclaim policy from the opposite parties from 02.12.2004 to 07.01.2009 for a period of 4 years for a sum of Rs.1,00,000/- each and the policy are in force. That they have not made any claim from the last 3 years 9 months. That his wife Smt.N.Vimala suffered from Chronic Tonsillitis was admitted in a private hospital and after treatment got discharged on 06.08.2008. Then she made a claim of reimbursement of medical expenditure of Rs.15,938.80. But, the second opposite party with whom the claim was made forwarded the claim to the first opposite party, but thereafter the first opposite party vide his letter dated 13.10.2008 repudiated the claim basing on clause No.4.3 of the policy clauses stating that there was a breakage of policy for 26 days and that disease is not covered within the first year of the policy. The complainant contended that the opposite parties are not right in relying upon clause no.4.3 of the policy clauses and stated that insurance was continued for the entire period and repudiation is improper and thus has prayed for a direction to the opposite parties to pay him Rs.15,938.80 with interest at other compensation.<br /> <br /> 2. The opposite parties have appeared through their advocate and filed a common version admitting the policy taken by the complainant for himself and members of his family. But, contended that as verified from their records, the complainant after taking the first policy did not renew his policy before the expiry of the first policy and he had taken a fresh policy after 13 days from the expiry of the first policy. The risk of the 2nd policy commenced from 14.12.2005 to 13.12.2006 and the complainant got the policy renewed from 14.12.2006 to 13.12.2007, but the complainant failed to get it renewed in time and he took the policy from 08.01.2008 to 07.01.2009 that is after expiry of the policy and after lapse of 26 days and stated there was a breakage in the policy and it was not a continues one. The opposite parties relying upon condition no.4.3 of the policy conditions have stated that the ENT problem of the complainant’s wife sins has arisen within 2 years period from taking the last policy, the complainant is not entitled for reimbursement and thus justifying their action in repudiating the claim have submitted for disposal of the complaint.<br /> <br /> 3. In the course of enquiry in to the grievance of the complaint, the complainant and one Sumangala for opposite parties have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant has produced policy copies, letter of repudiation issued by the opposite parties and copies of certain correspondences they had with the opposite party including copy of the legal notice they got issued. The opposite parties have also produced copies of previous mediclaim policies and conditions of the mediclaim policy. Heard the counsel for both the parties and perused the records.<br /> <br /> 4. On the above contentions, following points for determination arise.<br /> 1. Whether the complainant proves that the opposite parties have caused deficiency in their service in repudiating the claim by relying upon condition no.4.3. of the conditions of the mediclaim policy?<br /> 2. To what relief the complainant is entitled to?<br /> <br /> 5. Our findings are as under:-<br /> Point no.1 : See the reasons given below.<br /> Point no.4 : See the final order.<br /> <br /> REASONS<br /> <br /> 6. Point no. 1:- As evident from the contentions of both the parties, there is no dispute between them regarding the complainant and his family members had taken probably a joint mediclaim policy from 02.12.2004 to 01.12.2005, then got it renewed from 14.12.2005 to 13.12.2006 and again for a period from 14.12.2006 to 13.1.2007 and then from 08.01.2008 to 07.01.2009, but the opposite parties have contended that the complainant after the expiry of the first policy delayed for about 13 days in getting the policy renewed and therefore there was a breakage and they have also further contended that the third policy though expired on 13.12.2007, the complainant only got it renewed from 08.01.2008 to 07.01.2009 and again there was a breakage of 26 days, as such there is no continuity in the policy and thereby relying upon condition no.4.3. of the conditions of the policy have stated that the disease of the wife of the complainant is throat problem occurred within 2 years from the date of commencement of the last policy and therefore the opposite parties are not liable to reimburse the medical expenditure. Condition no.4.3 says that from the time of inception of the cover, the policy will not cover ear, nose, throat dis-orders if that dis-orders occurs within 2 years and that condition further provides that exclusion will be deleted, provided the policy has been continuously renewed with them without any brake. On reading this condition, it is manifest that in order to cover the disease of the wife of the complainant, the insured must have had the valid insurance for a period of 2 yeas continuously and if there is any breakage then the company is not liable. Relying upon this condition, the opposite parties have contended that there had been brake down of the policy once in the year 2006 and again in the year 2007 and they have treated the 4th policy, which commenced from 08.01.2008 to 07.01.2009 as a fresh policy and because of the exclusion contained in 4.3. of the conditions of the policy they are not liable to reimburse the mediclaim insurance.<br /> <br /> 7. The counsel representing the complainant in is oral arguments and also in his written arguments contended that the complainant was not aware of the breakage of the policy and that the opposite parties did not also inform them in getting those policies renewed and submitted without lapse of much time that is within reasonable time they have got the mediclaim policy renewed and therefore the opposite parties cannot refuse to honour the claim of the complainant and therefore submitted for allowing the complaint. The learned counsel representing the opposite parties invited our attention to condition no.6 of the conditions of the policy wherein it says that the company sends renewal notice as a matter of courtesy. If the insured does not receive the renewal notice it will not amount to any deficiency of service and by relying upon this condition, the learned counsel for the opposite parties submitted that issue of notice would not mandatory and any lapse in issue of notice would not bind the opposite parties to share the liability.<br /> <br /> 8. We should bear in mind that the insurance contract is one entered in good faith and for the mutual benefits of both parties, to say in the strict sense. The conditions of policy though do not mandate issue of notice for renewal in a strict terms. But, there is an obligation for the opposite parties to send the notice to the insured for getting the policy renewed. Here, the opposite parties admittedly have not sent any notice to the complainant for renewing the policy. That notice in our view for the sake of courtesy should have been sent. The opposite parties shall also bear in their mind that the policies are issued to the benefit of the insured and the insured may be of all type of people particularly in our country including ignorant, illiterates, and trusties people with whom they enter into a contract should take initiative to keep in touch with the insured to inform them of developments. In the case on hand we find that the opposite parties have failed to discharge that minimum act of courtesy of informing the insured. Therefore, a total repudiation of the claim of the complainant in our view is not sustainable in view of the fact the complainant had paid the premiums through out for more than 4 years continuously except the breakage of 13 days once and 26 days at another time. Taking into consideration of all these facts, we though find that the opposite parties cannot be in a legal sense be held as not totally deficient in their performance, but their responsibility cannot be execrated. As a result, we propose to award damages on non-standard basis and dispose of the complaint accordingly by pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is allowed in part.<br /> 2. The opposite parties are jointly and severally held liable to pay damages of Rs.12,000/- by way of reimbursement of the medical expenditure of the complainant’s wife on non-standard basis and that shall be paid to the wife of the complainant within 60 days from the date of this order, failing which they shall pay interest at 9% p.a. from the date of this order till the date of payment.<br /> 3. Parties to bear their own costs.<br /> 4. Give a copy of this order to each party according to Rules.<br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 19th February 2009)<br /> <br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br />