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 /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> <br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 117/09 DATED 23.06.2009<br /> <br /> ORDER<br /> <br /> Complainant Dr.T.R.Srinivas, <br /> S/o Late T.R.Ranganatha Rao, R/at D.No.1409/1, Navagraha Temple Street, K.R.Mohalla, Mysore-570024.<br /> (INPERSON)<br /> <br /> Vs. <br /> Opposite Party The Divisional Manager,<br /> The Oriental Insurance Company Ltd., Divisional Office, No.1, Tejas Complex, 1st Floor, Sayyaji Rao Road, Mysore-570001.<br /> (By Sri.J.S.K., Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 21.03.2009<br /> Date of appearance of O.P. : 16.04.2009<br /> Date of order : 23.06.2009<br /> Duration of Proceeding : 2 MONTHS 7 DAYS<br /> <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 against the opposite party in brief is, that he took a mediclaim policy from United India Insurance Company on 10.01.2003, which was in force up to 09.01.2004. At that time, he had declared to had existing disease like hypertension and diabetes. The policy came to be renewed from 10.01.2004 to 09.01.2005 with the same company. Thereafter, on the assurance of one Mr.Suresh Balaram, the Divisional Manager of the Oriental Insurance Company that is the opposite party who assured the continuation of the policy from the previous company with the present one he got the policy renewed from 10.01.2005 and continued to leave the policies with opposite party. It is further contended that Mr. Suresh Balaram assured all the benefits of the policy on switching over from the previous company to the opposite party company. That during the year 2007, he had undergone angiogram and submitted claims to the opposite party who dis-allowed on the ground that he has not completed four years, which is betrayal of the undertaking given by the said Divisional Manager. On 06.01.2009 when his policy was in force he underwent angioplasty operation at Vikram Hospital and submitted claim to opposite party, but the opposite party on 09.02.2009 repudiated the claim by coating clause 4.1 of the policy exclusion on the ground of pre-existing disease and the claim is within four years from the date of inception of the policy and stated that the opposite party has breached the assurance of continuity of the policy and benefits and therefore has prayed for a direction to the opposite party to pay his claim amount of Rs.2,00,000/- and for awarding compensation of Rs.5,00,000/-.<br /> <br /> 2. The opposite party has entered appearance through his advocate and filed version, admitting the complainant taking mediclaim policy with them from 10.01.2005 up to 09.01.2010 continuously. But, contended that on perusal of the medical records of the complainant issued by the Vikram Hospital, Mysore that the complainant was diagnosed with hypertension, diabetes and other coronary artery disease. That the complainant is a known case of unstable angina since one year he has undergone coronary angiogram in the year 2007, which revealed that the complainant is a known case of diabetes mellitus and hypertension since 12 years and he is on treatment. The complainant has undergone angioplasty and stent implantation on 06.01.2009 and the records further reveal that the complainant is suffering from coronary artery since 2007, which was a pre-existing disease. It is further contended that the complainant though in the policy specifically mentioned of his ailments like hypertension and diabetes, but the exclusion clause of the conditions of the policy excludes the coronary artery disease as pre-existing disease and the complainant is not entitled for re-imbursement of the medical expenditure for such ailments up to a period of four years, therefore the opposite party is justified in repudiating the claim of the complainant on that ground. The opposite party further denied the claim of the complainant that one Mr. Suresh Balaram the then Divisional Manager had assured continuation of all the benefits of the policy, for this complainant getting his policy transferred and continued with this opposite party and thus denying other allegations of the complainant has prayed for dismissal of the complaint.<br /> <br /> 3. During enquiry of this complaint, the complainant and the present Divisional Manager of the opposite party have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant has produced copies of the insurance policy he had, right from the inception with United India Insurance Company, which are renewed and continued till 09.01.2010. He has also produced copies of case sheet of Vikram Hospital, Mysore, copies of bills including medical expenditure he has incurred for his treatment. The opposite party has also produced a copy of the mediclaim policy issued in favour of the complainant, and a copy of the terms and conditions of the mediclaim insurance policy. The complainant thereafter has also produced a copy of the letter issued by his banker namely Bank of India with regard to encashment of a cheque for Rs.2,000/- issued by the opposite party. Heard the complainant who is in person, counsel for the opposite party and perused the records. <br /> <br /> 4. On the above contentions, following points for determination arise.<br /> 1. Whether the complainant proves that the mediclaim policy he had taken from United India Insurance Company w.e.f. 10.01.2003 was got transferred to the opposite party company and that mediclaim policy has been treated as a continues one and his policy is effective from 10.01.2003 up to the date of his treatment on 06.01.2009 and the opposite party has caused deficiency in his service in not honouring his claim?<br /> 2. To what relief the complainant is entitled to?<br /> <br /> 5. Our findings are as under:-<br /> Point no.1 : In the Affirmative.<br /> Point no.2 : See the final order.<br /> <br /> REASONS<br /> <br /> 6. Point no. 1:- The claim of the complainant that he took mediclaim policy w.e.f. 10.01.2003 from United India Insurance Company and was later on renewed and was valid till 09.01.2005 is not disputed by the opposite party. The opposite party himself in the version and also affidavit evidence admitted that the complainant took policy from them w.e.f. 10.01.2005 and has been renewed from year to year and its valid up to 09.01.2010. The complainant has further contended that while he was having mediclaim policy from 2 years with United India Insurance Company, he shifted his policy from that company to the opposite party company on an assurance given by Mr. Suresh Balaram the then Divisional Manager of the opposite party who assured him of providing of the benefits of the previous policy. But, the opposite party in the version and also affidavit evidence denied any assurance given by that Suresh Balaram and the opposite party has therefore taken a contention though the complainant in the policy document had disclosed that he had pre-existing disease like hypertension and diabetes, but relying upon condition no.4.1 of conditions of the policy contended that any ailments disease, which are pre-existing when the cover incepts for the first time are excluded up to four years of the policy being in force continuously. The learned counsel representing the opposite party argued that for the purpose of applying condition no.4.1 of the policy that continuation of the policy for four years must be with the Oriental Insurance Company only and any policy had by the insured in any other company or companies will not be considered for reckoning the period of four years and stated, that taking into consideration, the inception of the policy of the complainant with opposite party from 10.01.2005 and the treatment of the complainant on 06.01.2009 submitted that the complainant is not entitled for reimbursement and repudiation of this claim cannot be called as deficient.<br /> <br /> 7. The fact that the complainant had two years continuous mediclaim policy with United India Insurance Company is not in dispute. The complainant has stated on oath that he shifted his policy from that company to the present company on the assurance given by the Suresh Balaram the then Divisional Manager of the opposite party and continued from the year 2005 till 2010. Here it appears if that Suresh Balaram had not assured all the benefits of the policy on transfer from the previous company to the company of the opposite party, there was no need or necessity for the complainant to get his policy transferred or in switching over to the opposite party company. The opposite party has not stated anywhere that Suresh Balaram is not now working with opposite party or has retired from his service. Therefore, it emerges that Suresh Balaram an officer of the opposite party is still working with them. The opposite party could have got an affidavit filed by that Suresh Balaram denying the contention of the complainant, but the opposite party has not chosen to do so and thereby it leads that the opposite party has kept that Suresh Balaram back by not getting affidavit filed through him with a fear of getting themselves exposed in case if the complainant subject that Suresh Balaram to cross-examination. Therefore, we do not find any reasons for this complainant to switch over from United India Insurance Company to the opposite party company and in continuing to renew the policies for all these years and if he had not been assured as stated by the complainant, he would not have chosen to switch over to opposite party. It is under these circumstances, we do not find any reasons to discard the sworn statement of the complainant in this regard. <br /> <br /> 8. The complainant in the course of enquiry into this complaint, submitted that the opposite party company considering the continuation of the policy from the year 2003 and by considering the policy he had with United India Insurance Company has paid Rs.2,000/- through a cheque and has produced an endorsement issued by his Banker namely Bank of India. The complainant further submitted that cheque bearing No.46484 through which he was paid Rs.2,000/- was the cheque of this opposite party company and that was an amount paid to him considering the inception of the policy taken from the previous company. The endorsement produced by the complainant discloses that the cheque referred to above was a cheque issued by the opposite party company. In the course of arguments the learned counsel representing the opposite party was called upon to explain under what circumstances that cheque for Rs.2,000/- was sent to the complainant on which the learned counsel took time to verify and to ascertain from the opposite party company to know the reason for which the cheque was issued to the complainant. After taking time for that purpose he submitted that the opposite party is not in a position to lay their hands on the issue of that cheque. In the absence of any such answer by opposite party, the submission of the complainant that cheque for Rs.2,000/- was given to him by opposite party company acknowledging the continuation of the policy right from the year 2003 stand unrebutted and the same leads to an irresistible inference that amount was paid to the complainant for the continuation of the policy from the year 2003 till the date. Therefore, we take into consideration, the inception of the policy in the year 2003 starting from United India Insurance Company till the complainant undergone angioplasty on 06.01.2009 and it remains that the complainant had continuous mediclaim policy for more than 4 years as on the date of treatment and therefore, the exclusion found in condition no.4.1. of the conditions of the policy gets excluded and as the complainant has undergone treatment for his existing disease after four years after continuation of the policy, he will become entitled for reimbursement of the medical expenditure. The opposite party found to have not considered this uncontroverted facts and has wrongly repudiated the claim of the complainant, which in our view amounts to deficiency in their service. <br /> <br /> 9. The complainant has produced copies of medical expenditure he has incurred for his ailment in Vikram Hospital, Mysore amouting to Rs.2,11,820/-. The insurance limit being Rs.2,00,000/-, the complainant is entitled for reimbursement of that amount. The opposite party has not disputed the bill amount issued by Vikram Hospital and relied upon by the complainant. Therefore, the complainant is entitled for reimbursement of Rs.2,00,000/- from the opposite party. The complainant in addition to the claim for Rs.2,00,000/- has claimed compensation of Rs.5,00,000/- for his mental agony. On perusal of the fact as narrated above, we are of the view that the case of the complainant was not a clear indicative of the liability of the opposite party for straight away reimbursement as the complainant admittedly did not have his policy for more than 4 years with opposite party, as on the date of treatment. Thus the opposite party by relying upon condition no.4.1 of conditions bonafidely repudiated the claim. At this Forum on considering the entire developments have held that the previous policy also to be considered more fixed the liability on opposite party. Therefore, we find that this is not a fit case for awarding any other damages and thus pass the following order: <br /> ORDER<br /> <br /> 1. The Complaint is allowed in part.<br /> 2. The opposite party is directed to pay Rs.2,00,000/- to the complainant within 60 days from the date of this order, failing which he shall pay interest at 9% p.a. from the date of this order till the date of payment.<br /> 3. The opposite party shall also pay cost of Rs.1,000/- to the complainant. <br /> 4. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 23rd June 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 />