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

1)        The Complainant has prayed that the Opposite Parties be held guilty of deficiency in service and unfair trade practices as per the provisions of the Consumer Protection Act, 1986 (referred to as the Act).  The Complainant has prayed that the Opposite Parties be directed to pay Rs.1,50,000/- being the sum insured of the insurance policy with interest @ 18% p.a. from 06/10/2009 till its realization.  The Complainant has further prayed that the Opposite Parties be directed to pay Rs.1,00,000/- towards compensation for mental agony and Rs.50,000/- towards the cost of the complaint.

2)        According to the Complainant, he is consumer within the meaning and definition of consumer under Sec.2(1)(d) of the Act.  It is submitted that in the year 2001 the Opposite Party No.2 represented himself as the Agent of Opposite Party No.1 and introduced the number of polices to the Complainant’s father Jayantilal D. Shah. The father of the Complainant obtained Hospitalization & Domiciliary Hospitalization Benefit Policy of Opposite Party No.1 by paying premium of Rs.5,857/-. Thereafter, on due payment of regular premium the said policy was renewed till the year of filing of the complaint.  It is alleged that in the year 2009–10, the Opposite Parties bifurcated the insurance policy obtained in 2008 into two policies one for Jayantilal Shah and other for Rajendra Shah & Jaywanti Shah.  The copies of the said policies are marked as Annexure - ‘C-1’ colly.    

3)        According to the Complainant, on 05/10/2009, Jayantilal Shah i.e. late father of the Complainant was admitted in Lilavati Hospital for surgery since he developed swelling in the testicles, however, despite giving adequate medical treatment Jayantilal Shah expired on 06/10/2009 during his treatment in Lilavati Hospital due to cardiogenic shock.  The copies of death certificate of the father of Complainant issued by Municipal Corporation of Greater Mumbai are filed as Annexure - ‘C-2’ colly. 

4)        It is submitted that the Opposite Party No.2 was the Agent of Opposite Party No.1 for about 8 years and all the dealings were made with Opposite Party No.1 through Opposite Party No.2 from 2001 till 2009.  It is alleged that after the sad demise of Jayantilal Shah the Complainant immediately informed about it to the Opposite Party No.2.  The Opposite Party No.2 asked the Complainant to submit all the original documents of insurance policy and medical papers/bills for processing the claim.  In view of the instructions of Opposite Party No.2 the Complainant submitted the said documents through Opposite Party No.2 on 01/11/2009.  The copy of the letter of Complainant dtd.01/11/2009 regarding handing over the original insurance policy and hospital papers to the Opposite Party No.2 is marked as Annexure - ‘C-3’.  According to the Complainant, the Opposite Party No.2 gave assurance that he shall immediately take steps to submit the documents to the Opposite Party No.1.  It is the case of the Complainant that since the Opposite Party No.2 was not able to give the status of claim or any acknowledgment of the claim submitted with Opposite Party No.1, the Complainant personally visited Opposite Party No.1.  It is submitted that the Opposite Party No.1 directed the Complainant to approach the TPA i.e. Raksha and when he visited the said TPA he came to know that the Opposite Party No.2 had not submitted the claim of the Complainant to the Opposite Party No.1. The Complainant also noticed that the Opposite Party No.1 & 2 misguided him.  The Complainant therefore, himself addressed a letter dtd.19/03/2010 to the Opposite Party No.1 to find out the status of the claim of the Complainant.  The copy of the said letter is marked as Annexure-‘C-4’. The Complainant thereafter, sent reminders dtd.02/04/2010, 23/04/2010 and 05/05/2010 to the Opposite Party No.1 to know the status of his claim the copies of the said letters are marked as Annexure-‘C-5’ colly.  As the Complainant did not receive any response to the correspondence made by him to the Opposite Party No.1, he issued legal notice on 30/06/2010 to the Vigilance Cell of Opposite Party No.1. The copy of the said notice is marked as Annexure - ‘C-6’.  According to the Complainant, thereafter the Complainant submitted an application dtd.04/09/2010 to the Opposite Party No.1 under Right to Information Act, 2005 by putting specific questions regarding the policy obtained by the father of the Complainant and called upon the information regarding the Opposite Party No.2.  It is submitted that as there was no response from the Opposite Party No.1 within 30 days of receipt of Complainant’s application the Complainant had submitted reminder letter dtd.29/10/2010 and called upon the Opposite Party No.1 to furnish the information called for by the Complainant. The Opposite Party No.1 did not reply the Complainant’s letter.  The Complainant therefore, filed an appeal under the Right to Information Act, 2005 on 28/02/2011.  It is alleged that the Opposite Party No.1 had not bothered to reply any of the applications.  The copies of the said correspondence are marked as Annexure-‘C-7’ colly.

5)        According to the Complainant, the attitude of the Opposite Parties withholding the original documents of the Complainant and not giving any information by keeping the claim pending for indefinite period itself is sufficient to prove the deficiency of the Opposite Parties. The Complainant thereafter issued second legal notice dtd.01/11/2010 to the Vigilance Cell of the Opposite Party No.1.  The copy of the said notice is marked as Annexure-‘C-8’.  According to the Complainant, the Opposite Party No.1 sent letter dtd.19/11/2011 as reply to the Complainant’s letter dtd.30/06/2010 and had directed the Complainant to approach their another branch i.e. D.O.No.1 Office.  It is submitted that the Complainant had already written number of letters to D.O.No.1 office, however, the D.O.No.1 office was not responding to the Complainant and there was no meaning in directing the Complainant to approach to D.O.No.1 office. The copy of the letter received from Opposite Party No.1 dtd.19/11/2010 is marked as Annexure-‘C-9’.  It is submitted that the Complainant again made correspondence through his advocate and forwarded the acknowledgment of Opposite Party No.2 to the Opposite Party No.1 vide letter dtd.09/02/2011.  The copy of the said letter is marked as Annexure - ‘C-10’.

6)        According to the Complainant, he had submitted all the documents which were demanded from the Opposite Parties from time to time but till filing of the complaint no steps have been taken by the Opposite Parties regarding the claim lodged by the Complainant and the same amounts to deficiency of service and unfair trade practice on the pare of the Opposite Parties.  The Opposite Parties with alterative motive and to harass the Complainant avoided the payment of claim money to the Complainant.  It is submitted that both the Opposite Parties are liable to pay the claim made in the complaint as there is deficiency of service on their part.  The Complainant has therefore, prayed to grant the reliefs as mentioned in para 1 of this order.

7)        The Opposite Party No.1 contested the claim by filing written statement.  It is contended that the Complainant has not disclosed any cause of action against the Opposite Party No.1 and there is no deficiency of service in relation to the complaint, the complaint is therefore, not maintainable as the same is malafied and misleading, misconceived and abuse of the provisions of the Act.  It is the contention of the Opposite Party No.1 that the Complainants father while taking the policy Hospitalization & Domiciliary Hospitalization Benefit in the year 2001 renewed the policy for the year 2009-2010.  It was taken for him and his wife and his son.  The claim was rightly repudiated as the party within 24 hrs. of happening of the event has to inform the correct TPA i.e. M/s. Alankit Healthcare whose details are given in the policy documents.  The Complainant might have forwarded the claim to Raksha TPA which was not the correct TPA hence, the claim was rightly rejected. According to the Opposite Party No.1, the Complainant has failed to follow the terms and conditions of the Mediclaim & Domiciliary Hospitalization Benefit Policy.  It is contended that as per clause 5.3 and 5.4 upon happening of any event which may give rise to any claim under the policy, notice with full particulars was required to be sent to the TPA named in the schedule immediately alongwith supporting documents relating to the claim.  The Opposite Party No.1 contended that the Complainant has failed to follow the terms and conditions of the policy and has come before this Forum with vexatious and frivolous claim.  It is admitted that the validity of the policy was from 27/02/2009 to 27/02/2010. It is admitted that under the said policy the mediclaim expense incurred by the Complainant during that period were required to be reimbursed, however, the Complainant was required to give full and correct information regarding the ailments and pre-existing disease at the time of taking the policy and also at the time of renewal.  It is contended that the Complainant has not come with clean hands.  The Opposite Party relied the terms and conditions of Exh.‘C-1’. It is also admitted that the policy was bifurcated as the father of the Complainant was senior citizen.  It is contended that the bifurcation of the policy has nothing to do with rejection of the claim, but rejection of the claim was made due to referring it to wrong TPA i.e. Raksha TPA.  It is contended that it was the duty of the Complainant to contact the correct TPA and follow-up the claim.  It is contended that the Opposite Party is not aware about admitting the Complainant’s father to the hospital and the Opposite Party is also unaware that the father of the Complainant expired on 06/10/2009 due to cardiogenic shock.  It is contended that the Opposite Party No.1 is not aware whether the Opposite Party No.2 asked the Complainant to give original medical papers/documents. It is the contention of the Opposite Party No.1 that the Opposite Party No.1 is not responsible for negligence of the Complainant as he had not approached the correct TPA i.e. Alankit TPA.  The other allegations made in the complaint are specifically denied by the Opposite Party No.1.  It is prayed that the complaint be dismissed with cost.    

8)        The Opposite Party No.2 filed written statement and contended that claim.  It is contended that the Complainant is seeking monetary reliefs without any justification as to what the actual loss suffered by him and as such, the complaint ought not to be entertained by this Forum.  It is contended that the Opposite Party No.2 is the Agent of the Opposite Party No.1. It is submitted that Jayantilal Shah was expired on 06/10/2009 as informed by the Complainant. The Complainant requested the Opposite Party No.2 to process the claim with the Opposite Party No.1.  The Opposite Party No.2 therefore, asked the Complainant to submit all documents to him to forward the same to the third party administration. The Opposite Party received the said documents from the Complainant on 01/11/2009 and he immediately forwarded the same to Raksha TPA on 03/11/2009.  The Complainant was informed about the same accordingly.  The Opposite Party No.2 thereafter contacted the office of Raksha TPA for the enquiries regarding the claim of the Complainant and representative of the Raksha TPA told the Opposite Party No.2 that the Complainant would be informed about the status of the claim.  The Opposite Party No.2 accordingly informed it to the Complainant.  The Complainant thereafter never approached to the Opposite Party No.2 with any grievance that the claim has not been processed by the Opposite Party No.1 and it is not responding to his claim.  It is contended that the Opposite Party No.2 is not aware whether the claim of the Complainant was not processed by the Opposite Party No.1. The Opposite Party No.2 denied all the parawise allegations made by the Complainant against the Opposite Party No.2 and prayed for the dismissal of the complaint.

9)        The Complainant has filed affidavit of evidence.  The Opposite Party No.1 filed affidavit of evidence of Mrs. Kanthi S. Rao, Manager of the Opposite Party No.1.  The Opposite Party No.2 has filed his affidavit.  All the parties have filed their written arguments.  We heard the oral arguments of Ld.Advocate Smt. Rashmi Manne for the Complainant and Smt. Parveen Contractor, Ld.Advocate for the Opposite Party No.1 and Smt. Kirti Shetty, Ld.Advocate for the Opposite Party No.2.  We have perused the documents filed in the complaint.  

10)      While considering the claim made in the complaint it is necessary to be taken into consideration that no document is produced by the Complainant showing that the claim regarding hospitalization of Complainant’s father was lodged to Alankit Healthcare Ltd. i.e. third party administration of the policy holder Jayantilal Shah.  In the policy document placed at page 17 there is specific mention that name of TPA is M/s.Alankit Healthcare Ltd. The submission made by the advocate for the Complainant Smt. Rashmi Manne that the Complainant by letter dtd.19/03/2010 as per Annexure - ‘C-4’ had informed to the Opposite Party No.1 that he had submitted original documents of hospitalization of Mr. Jayantilal Shah to Opposite Party No.2 and thus, the Opposite Party No.1 is having knowledge about the claim lodged by the Complainant and therefore, the Opposite Parties are liable to pay the claim made in the complaint cannot be accepted as legal and proper as the claim was not lodged to TPA Alankit Healthcare Ltd.  Even assuming that the error of non submission of claim to Alankit TPA is there on the part of the Complainant and the Opposite Party No.1 is having knowledge about the lodging of claim to Raksha TPA then also the claim made in the complaint cannot be granted as the Complainant alongwith the complaint has not enclosed the copies of the documents of the treatment obtained by deceased Jayantilal Shah at Lilavati Hospital on 05/10/2009. The Complainant has also not produced on record the bill of expenditure incurred by the Complainant for the treatment of Jayantilal Shah at Lilavati Hospital. The Complainant has also not produced on record any document showing that what amount of claim the Complainant had lodged to Raksha TPA through the Opposite Party No.2.  The Complainant has also not mentioned in any correspondence showing that what amount of medical expenditure he is entitled towards the treatment of deceased Jayantilal Shah and the same is covered under the insurance policy issued in favour of deceased Jayantilal Shah placed at page no.17 with the complaint.  In the notices issued by the Complainant through Advocate Shri. Chile and the other correspondence made to the Opposite Party No.1 nowhere it is mentioned that what expenditure was incurred for the medical treatment of deceased Jayantilal Shah.  In the pleadings of the complaint no details of the medical expenditure incurred for late Jayantilal Shah have been mentioned. We therefore, hold that as no supporting documents are placed on record by the Complainant to prove that the Complainant is entitle for Rs.1,50,000/- towards the medical expenditure incurred for the treatment of Jayantilal Shah, the claim made in the complaint cannot be granted without its proof. The burden is on the Complainant to prove and establish with documentary evidence as to how the Opposite Party No.1 is liable to pay Rs.1,50,000/- under the policy filed at page 17 with the complaint. Vague claim made in the complaint cannot be entertained and granted. The authority relied by the Complainant’s advocate in the case of New India Assurance Co. Ltd. V/s. Nanasaheb Hanumant Jadhav, 2005 (2) CPR 24 and by the Advocate for Opposite Party No.2 of the Hon’ble State Commission of Maharashtra Mumbai in the case of the Oriental Insurance Co. Ltd. V/s. Managing Director, Shri Vitthal Sahakari Sakhar Karkhana Ltd. in our view are not at all applicable to the facts of this case. The same are not relevant regarding the point involved in the present complaint.  We hold that for want of specific proof regarding the expenditure of medical treatment incurred for Mr. Jayantilal Shah as well as not lodging the claim to the proper TPA i.e. Alankit Healthcare Ltd., the complaint filed by the Complainant is liable to be dismissed.  From the pleadings of the complaint as well as documents filed on record by the Complainant we hold that the Complainant has failed to prove deficiency of service on the part of the Opposite Parties to hold that the Opposite Parties are guilty of unfair trade practice and are liable to pay the claim made in the complaint.  In the result the following order is passed –

O R D E R

i.        Complaint No.212/2011 is dismissed with no order as to cost.

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