BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL

FORUM AT BANGALORE URBAN

26^th DAY OF JUNE 2015

               PRESENT:- SRI. J.N.HAVANUR                  PRESIDENT

                                SMT. M. YASHODHAMMA        MEMBER                                                         

                  O R D E R

SRI. J.N. HAVANUR, PRESIDENT              

This is a complaint filed by the complainant against the OP Under Section 12 of the Consumer Protection Act, praying to pass an order, directing the OP to pay Rs.4,20,000/- along with interest at 18% p.a and to pay a sum of Rs.5,00,000/- towards compensation and to pass any other efficacious reliefs as deemed fit in the interest of justice and equity.

2. The brief facts of the complaint can be stated as under:

The complainant has borrowed two personal loans from OP Bank and following are the details of loan availed by him Loan.1 borrowed Rs.2,98,000/- on 26.08.2010 (2) Loan.2 borrowed Rs.1,35,000/- on 04.10.2011 and both these loans were covered under accidental insurance with HDFC ERGO Insurance Company Ltd.  One policy bearing No.2950200133129300000 for an amount of Rs.4,00,000/- and another policy bearing No.40522256 for an amount of Rs.2,00,000/-.  In the month of December 2012 the complainant was on an official visit to Mumbai and he checked in a hotel by name Mourya in Thane, Mumbai.  During that time, while getting down from first floor he slipped and fell on the floor.  In view of this his right leg knee (patella) was broken on the spot and immediately he was shifted to nearby hospital by name Kousalya Medical Foundation in Thane, Mumbai to get first aid treatment and later on shifted to Bangalore and admitted to Columbia Asia Hospital for an emergency surgery and there he was shifted to ICU for an emergency operation and finally got operated.  After treatment complainant was shifted to his house at Bangalore for complete bed rest, as he was unable to work, walk, sit and also sleep.  Complainant has incurred huge expenses for the treatment in the above said Columbia Asia Hospital and he had borrowed the above mentioned two loan amounts from HDFC Bank and same has been covered under the said insurance policies, which have been issued by OP.  In order to meet the medical expenses, operation expenses complainant was in need of immediate funds.  Therefore, complainant gave an application dated 02.01.2013 along with the claim form claiming the amount in respect of the above mentioned policies from OP.  Along with application complainant had submitted the claim form with all documents like medical bills, ambulance bills, hospital final bills for claiming the amounts.  According to the policies as mentioned above, the complainant is entitled to 70% of the insured amount i.e., the OP is liable to pay Rs.4,20,000/-.  The OP had given two claim numbers to the complainant in respect of above said claims i.e., (1) C 295012002512 and (2) PA/12-13/1047.  OP thereafter by their email dated 19.01.2013 requested the complainant to furnish the disability certificate from Columbia Asia Hospital to process the complainant’s claims and also informed him to which address the documents to be couriered.  Accordingly, complainant couriered the disability certificate dated 11.02.2013 to the OP and also the complainant emailed this fact to the OP by its mail dated 12.02.2013.  Thereafter, the complainant wrote number of mails and also called the OP by using the toll free numbers but no response.  Finally the complainant wrote a number of reminder mails saying that he is fed up with the follow ups etc., and for that OP had replied by its email dated 13.03.2013 informing the complainant that his claim application is under investigation and it will be processed accordingly.  After lot of persuasion and follow-up with above mentioned claims, the OP has finally rejected the complainant’s claim through e-mail dated 07.02.2013 on flimsy ground that the policy covers permanent disability and not temporary disability.  Though the disability certificate says that, all together there is a disability to an extent of 50% of his right lower limb.  Thereafter the OP requested the complainant to submit fresh disability certificate after going fresh investigation.  Accordingly the complainant has undergone in the above said hospital and the doctor did not find any fresh improvements in the movements of the right leg and gave a fresh disability certificate dated 11.02.2013 reiterating the earlier facts.  The complainant again sent the disability certificate to OP office and also informed them by his email dated 12.02.2013.  The OP by its email dated 11.03.2013 again confirmed that they have received the certificate and it is under investigation and it will take one month to complete the process.  OP again rejected the complainant’s claim giving the same reasons as earlier given by its letter dated 07.02.2013 fraudulently rejected the complainant’s claim in order to avoid to pay huge sum amount.  In spite of clearly mentioning in the policies above referred particularly in the page No.2 of the policy in the section-2 personal accident regarding the classification of disabilities as “permanent total disability and permanent partial disability” whereas the complainant’s disability will come under “permanent partial disability” as mentioned in the above referred disability certificate dated 07.02.2013.  The OP conveniently and fraudulently avoided from paying compensation to the complainant and rejected the complainant’s claim.  OPs action referred above is illegal, non sustainable and deficiency of service under C.P Act.  Complainant got issued legal notice dated 04.04.2013 and though that notice was served, OP did not choose to reply the notice.  Hence the complainant has come up with present complaint.    

3. After service of the notice, OP appeared through its counsel and filed the version contending interalia as under.

The claim of the complainant is not maintainable.  The complaint is totally misconceived and is based on erroneous assumptions.  OP admits that complainant had borrowed a personal loans from Bank and details of loans are (1) for Rs.2,98,000/- on 26.08.2010 (2) Rs.1,35,000/- on 04.10.2011 and both these loans were covered under accidental insurance with OP and the policies bearing No.2950200133129300000 for an amount of Rs.4 lakhs and another policy No.40522256 for an amount of Rs.2 lakhs valid from 21.08.2010 to 20.08.2014.  The policy is issued subject to various terms, conditions, exceptions, limitations.  The averments of complaint, regarding the grievous injuries so sustained by the complainant in respect of an accident, said to have been occurred on December 2012 while the complainant was on an official visit to Mumbai and while getting down from the first floor in a hotel by name Mourya in Thane, Mumbai at that time the complainant slipped and fell on the floor due to this the complainant sustained injuries over the right leg Patella and he was shifted to the nearby hospital namely Kousalya Medical Foundation in Thane, Mumbai and later shifted to Columbia Asia Hospital, Bangalore for further treatment are put to strict proof of the same.  As could be seen from the dates of events, the insurer wishes to inform that the insurer and its official in respect of the claim have rendered prompt and timely service to the complainant.  In fact the matter has been expeditiously handled after receipt of the claim form and relevant documents and as well as the repudiation letter has been forwarded to the complainant vide letter dated 07.02.2013.  There is no deficiency in service or negligence in service as alleged and no compensation be awarded even on this ground.  The claim of the complainant was repudiated as the OP on perusal of the documents and the medical records so submitted by the complainant, it is ascertained that the claim of the complainant does not fall under the purview of the policy as per provision of section 2.3 – permanent total disability & permanent partial disability and as such in view of the fact as per the medical records and the documents so submitted by the complainant and the injuries so sustained by the complainant in respect of a accident that occurred on December 2012 would not fall under any of the category at items (1) to (27) of sec.2.3.  It is brought to the notice of the Forum that the explanation offered by the complainant in regard to the letter at page that under nature of injuries as per clause 2.3 (18) of Section II – Permanent Total Disability cover for insurer, resulting permanent disablement for injuries other than named above.  Whereas, in the case on hand the complainant had failed to produce the documents to the said effect regarding permanent disablement.  The authorities to give disability certificate will be a Medical Board duly constituted by Central and State Government and not the certificate dated 23.01.2013.  The claim of complainant as prayed in the complaint is unjust, fanciful, baseless and claim of the complainant is considered and repudiated as per the terms and conditions contained in the policy.  Hence, it is prayed to reject the complaint awarding exemplary costs in the interest of justice and equity.

4. So from the averments of the complaint of the complainant and version of Opposite Party the following points arise for our consideration as under:

5. Our answer to the following points:

REASONS

6. So as to prove the case the complainant has filed his affidavit by way of evidence and produced 9 documents along with complaint and produced documents along with written arguments.

7. On the other hand one Jayashekar, Manager, Legal of OP has filed his affidavit and produced documents along with version.  We have heard arguments of both the side.  We have gone through oral and documentary evidence of both the parties meticulously.  Sri.A.S Venkatesh, who being complainant has stated in his affidavit that he had borrowed two personal loans from HDFC Bank.  The details of loans are (1) Loan.1 borrowed Rs.2,98,000/- on 26.08.2010 (2) Loan.2 borrowed Rs.1,35,000/- on 04.10.2011 and both these loans were covered under accidental insurance with OP HDFC ERGO Insurance Company Ltd., having policy bearing No.2950200133129300000 for an amount of Rs.4,00,000/- and another policy bearing No.40522256 for an amount of  Rs.2,00,000/-.  In the month of December 2012 he was on an official visit to Mumbai and he checked in a hotel by name Mourya in Thane, Mumbai and during that time, while getting down from first floor he slipped and fell on the floor.  Due to that his right leg knee (patella) was broken and immediately he was shifted to Kousalya Medical Foundation in Thane, Mumbai to get first aid treatment and later shifted to Bangalore and admitted to Columbia Asia Hospital for an emergency surgery he was shifted to ICU for an emergency operation and finally got operated.  After treatment he was shifted to his house at Bangalore for complete bed rest, as he was unable to work, walk, sit and also sleep.  He had incurred huge expenses for the treatment in the said Hospital.  In order to meet his medical expenses, operation expenses he was in need of money.  Thereafter he gave an application dated 02.01.2013 along with the claim form claiming amount in respect of the above mentioned policies from OP.  Along with application he had submitted the claim form with all the documents like medical bills, ambulance bills, hospital final bill etc., for claiming the amount covered under the insurance policy.  According to the policies, he was entitled to 70% of the insured amount i.e., the OP is liable to pay Rs.4,20,000/- to him.  OP gave him two claim numbers in respect of above said claims.  The OP by its email dated 19.01.2013 asked him to furnish the disability certificate from Columbia Asia Hospital to process his claim and also informed him to which address the documents to be couriered.  Accordingly, he had couriered the disability certificate dated 23.01.2013 to OP.  He wrote number of reminder mails to OP and for that OP replied through email dated 13.03.2013 informing him that his claim application is under investigation and it will be processed.  After lot of persuasion and follow-up the OP has rejected his claim through e-mail dated 07.02.2013 on the ground that the policy covers permanent disability and not temporary disability.  Though the disability certificate says that there is disability to an extent of 50% of his right lower limb.  The OP requested him to submit fresh disability certificate.  Accordingly he had undergone in the said hospital and the doctor did not find any fresh improvements in the movements of the right leg and gave a fresh certificate dated 11.02.2013 reiterating the earlier facts.  He has sent again the disability certificate informed by email dated 12.02.2013 and OP informed him that it is under investigation and it will take one month to complete the process and OP finally rejected his claim on the ground as stated above.  The OP in order to avoid payment has fraudulently rejected his claim as per policy disability will come under permanent partial disability and OP conveniently avoided from paying compensation to him.  The action of OP in making rejection of his claim is illegal and it amounts to deficiency of service and criminal breach of trust.  He got issued legal notice on 04.04.2013 to OP.  He did not choose to reply.  So he has come up with present complaint.  So, he prays to allow the complaint and grant reliefs as prayed for.

8. Let us have a look at the relevant documents of the complainant.  Document No.1 consists of copies of two policies issued by OP in the name of complainant for a period from 21.08.2010 to 20.08.2014 and 28.09.2011 to 27.09.2014, covering risk of complainant and his wife by collecting premium of Rs.1,186/- and Rs.782/- and in one of the policy it is stated that in case of accidental death Rs.4,00,000/- & in case of permanent total disability/permanent partial disability Rs.4,00,000/- and policy schedule covered the terms and conditions of the policy and another policy issued covered risk upto Rs.2,00,000/-.  Document No.2 is the copy of letter dated 02.01.2013 submitting the claim to OP.  Document No.3 is disability certificate of Columbia Asia Hospital dated 23.01.2013 stating that the complainant has sustained fracture of the right patella and was operated for the same on 20.12.2012 and now he has right lower limb 50% disability, which will gradually improve after three months.  Document No.4 consists of email correspondences between complainant and OP.  OP has sent a letter to complainant rejecting his claim stating that disability is not permanent in nature.  Document No.8 is the legal notice of complainant dated 03.04.2013 issued to OP.  Postal receipts and AD cards is also produced at document No.9.

9. Looking to the evidence of complainant on the background of terms and conditions of the policy and also policy schedule and disability certificate issued by Columbia Asia hospital it is made clear that the doctor working in Columbia Asia Hospital has stated in the disability certificate that the complainant has a right lower limb 50% disability on account of communited fracture of right patella and in the policy terms and conditions for permanent total disability/permanent partial disability the complainant is entitled to claim Rs.4,00,000/- and case of the complainant as per disability certificate, policy schedule and terms and conditions of the policy, it is coming under permanent partial disability.  The oral evidence of complainant that his case covered under permanent partial disability stands corroborated by the disability certificate, policy documents and terms and conditions of the policy produced by the complainant.

10. Let us have a cursory glance at the material evidence of OP.  Sri.Jayashekar, Manager, Legal of OP has stated in his affidavit that the claim of complainant is not maintainable.  The policy issued is subject to the terms, conditions, exceptions and limitations.  The complainant has borrowed a personal loans from Bank for Rs.2,98,000/- on 26.08.2010 and Rs.1,35,000/- on 04.10.2011.  Both these loans are covered under accidental insurance for an amount of Rs.4,00,000/- and another policy of Rs.2,00,000/- from 21.08.2010 to 20.08.2014 and policy issued is subject to terms, conditions, exceptions and limitations thereof.  After scrutiny of claim of the complainant and documents produced the injury sustained by the complainant would not fall under category of item No.1 to 27 of sec.2.3 of permanent total disability.  So the claim of complainant has rightly repudiated and repudiation made by the OP is justified.  There is no deficiency of service on the part of OP in communicating the complainant.  There is no negligence or deficiency of service on the part of the OP.  So it is prayed to reject the complaint of complainant with costs.

11. OP has produced the copies of rejection letter of OP addressed to complainant, policy terms and conditions and policy schedule and letter of complainant dated 29.01.2013, disability certificate issued by Columbia Asia Hospital. 

12. So taking the oral and documentary evidence of complainant and compare the same with material evidence of OP and viewing the permanent disability certificate issued by Columbia Asia Hospital and policy terms and conditions, it is no doubt true that as per disability certificate issued by Columbia Asia Hospital it is made manifest that the complainant is having 50% disability of his right lower limb on account of communited fracture of right patella and in the certificate issued by the Columbia Asia Hospital dated 11.02.2013 produced by the complainant it is clarified by doctor that the complainant had surgery for communited fracture of right patella on 21.12.2012 and doctor has found that he has no improvement in the operated portion of right leg and it amounts to permanent partial disability of 50% and in the policy terms and conditions also it is clarified that in case of permanent partial disability claimant is entitled to claim the insured amount.  Whatever interpretation made by OP in respect of terms and conditions of the policy and rejection of claim of the complainant stating that disability of complainant is not permanent is not in accordance with policy terms and conditions.  Since the claim of complainant comes within the ambit of permanent partial disability and complainant is entitled to claim 50% of policy taken and not as claimed in the complaint.

13. So from the oral and documentary evidence of complainant and OP, we are of the view that the oral and documentary evidence of complainant placed before the Forum are more believable, trust worthy and acted upon than the material evidence of OP.  So from the discussions made hitherto we are inclined to come to the said conclusion that the complainant who comes to Forum seeking relief has proved this point with convincing material evidence that OP is negligent and there is deficiency of service on the part of the OP in not making settlement of his claim as per the terms and conditions of the policy and accordingly we answer this point in a affirmative.

14. As per two policies the sum assured by OP is Rs.4,00,000/- and Rs.2,00,000/-.  The complainant has suffered 50% permanent partial disability of his right lower limb as per certificate of doctor dated 23.01.2013 and 11.02.2013 produced by the complainant.  So complainant is entitled to 50% of the policies i.e., Rs.2,00,000/- and Rs.1,00,000/- and not the amount as prayed in the complaint.  So OP is directed to pay Rs.3,00,000/- to the complainant along with 6% interest p.a on the said amount from the date of the complaint within 30 days from the date of this order failing which OP shall pay the said amount to the complainant along with 7% interest p.a on the said amount from the date of complaint to till the date of realization.  OP is further directed to pay Rs.2,000/- to the complainant towards cost of litigation and accordingly we answer this point.  In the result for the foregoing reasons, we proceed to pass the following:     

   O R D E R

The complaint of the complainant is partly allowed.  OP is directed to pay Rs.3,00,000/- to the complainant along with interest @ 6% p.a on the said amount from the date of the complaint within 30 days from the date of this order failing which OP shall pay the said amount to the complainant along with interest @ 7% p.a on the said amount from the date of complaint to till the date of realization.  OP is further directed to pay Rs.2,000/- to the complainant towards cost of litigation.

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 26^th day of June 2015)

MEMBER                                                                  PRESIDENT

Vln* 

Witnesses examined on behalf of the complainant dated 25.10.2013

1) Sri.A.S Venkatesh

Witnesses examined on behalf of the Opposite party dated 25.11.2013

1. Sri.Jayashekar V.R  

MEMBER                                                                 PRESIDENT

Vln*