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

1)        The Complainants have prayed that the Opposite Parties be directed to pay Rs.1,58,174/- towards the claim for hospitalization expenses to the Complainant No.2 alongwith interest @ 12% p.a. from the date of lodging of claim i.e. 31/08/2010 till it’s realization. It is also prayed that the Opposite Party be directed to pay compensation of Rs.15,000/- to the Complainant No.2 for the mental tension and physical harassment caused to him and reasonable cost of this complaint.

2)        The Complainant No.1 is a voluntary consumer organization. The Complainant No.2 is the actual aggrieved consumer of insurance services rendered by the Opposite Parties.  The complaint is filed by the Complainant No.1 on behalf of Complainant No.2.  According to the Complainants the son of Complainant No.2 Ishan is covered under the Mediclaim Policy obtained by the Complainant No.2.  The Complainant No.2 had obtained first mediclaim policy on 09/08/1989 and thereafter it was renewed from time to time without any break.  At the material time the policy annexed to the complaint at Exh.‘A’ for the period 09/08/2010 to 08/08/2011 was inforce. It is submitted that as per the said policy the coverage applicable in respect of the sun of Complainant No.2 i.e. Ishan Bahl was Rs.7,50,000/-.

3)        According to the Complainant the son of Complainant No.2 Ishan Bahl suddenly developed acute appendicitis and for that he was admitted to Breach Candy Hospital on 21/08/2010.  Ishan was required to undergo an emergency operation on 22/08/2010 in the said hospital known as “Open Appendicectomy” and he was discharged on 25/08/2010.  The copy of discharge card is marked as Exh.‘B’.  The copy of hospital bill of Rs.1,58,174/- is marked as Exh.‘C’.  It is submitted that the Complainant No.2 had to go out of town from 26/08/2010 onwards but upon his return the few days later he sent the fax massage on 30/08/2010 giving intimation of the claim to the Opposite Party No.2. The Complainant No.2 lodged the claim for hospitalization expenses of Rs.1,58,174/- alongwith supporting documents and letter dtd.31/08/2010. The copy of which is marked as Exh.‘D’. It is alleged that the Opposite Party No.2 refused to process the claim as prior intimation of the treatment and hospitalization was not given to the Opposite Party No.2.  The copy of the said communication received from Opposite Party No.2 dtd.19/05/2011 is marked as Exh.‘E’. The Complainant No.2 then sent representation dtd.25/05/2011 to the Opposite Party No.1 and informed that all the documents had been submitted in time and enquired whether the claim was under consideration or it had been rejected.  The copy of the said letter is marked as Exh.‘F’.  It is submitted that the said letter has remained ignored.  The Complainant has therefore filed this complaint against the Opposite Parties for the reliefs mentioned in para 1 of this order.

4)        The Opposite Parties filed their written statement and contested the complaint.  The Opposite Parties contended that they had rightly denied and rejected and repudiated the claim of the Complainant No.2 as to he had flouted the terms and conditions of the policy.  It is contended the Opposite Parties are not aware that the son of Complainant No.2 Ishan was admitted in Breach Candy Hospital from 21/08/2010 to 25/08/2010 and the surgery was performed on him on 22/08/2010 as alleged by the Complainant.  According to the Opposite Parties as per the terms and conditions no.5.3, 5.4 & 5.5 the Complainant No.2 failed and neglected to send intimation of hospitalization within the specified time. It is denied that the Complainant was out of station from 26/08/2010 onwards.  The Complainant No.2 was supposed to intimate the Opposite Parties regarding the treatment provided to his son within 24 hrs. of admission in the hospital.  The Opposite Parties thus rejected and denied the claim made in the complaint and submitted that the complaint be dismissed with compensatory cost.

5)        The Complainant has not filed separate evidence on affidavit and submitted pursis that the affidavit filed alongwith complaint and the documents filed with the complaint are relied by the Complainant.  The Opposite Parties have filed affidavit of Mr. M.R. Gaikwad, Br. Manager of Opposite Party No.1.  Both the parties filed their written arguments.  We heard the representative of the Complainant Shri. Jehangir Gai and Smt. S.D. Gandhi, Advocate for the Opposite Parties. We have perused the documents filed in the complaint.

6)        While considering the claim made in the complaint, it appears that the Complainant submitted the mediclaim to the Opposite Party No.2 of Rs.1,58,174/- on 31/08/2010 by letter at Exh.‘D’. The Opposite Party No.2 by letter dtd.19/05/2011 informed to the Complainant No.2 that the rejection is made according to the General Mediclaim and of the Opposite Party No.1’s policy terms and conditions.  It was also informed that the condone delay is yet not received from Insurance Company and patient has submitted clarification for same to Opposite Party No.1 on 15/04/2011 and till date no reply is received from Opposite Party No.1. It was also informed that as condonation is mandatory for further procedure hence, no action is required.  The said letter is marked as Exh.‘E’.  Upon going through the said letter of Opposite Party No.2 it cannot be considered that the Opposite Parties have refused or rejected the claim lodged by the Complainant No.2 upon any specific clause of the terms and conditions of the policy document.  It appears that the Opposite Parties have after thought come out with the defence that the Complainant No.2 had violated the terms and conditions of 5.3, 5.4. & 5.4 of the policy.  Upon going through the said clauses of the policy filed at Exh.‘A’ to the complaint, it appears that there is no clause in the said terms and conditions that by not observing/following the said terms and conditions, the Opposite Parties have any right to repudiate the claim.  The Opposite Parties have not disputed that the Complainant No.2’s son Ishan was treated and operated for Appendectomy in between 22/08/2010 to 25/08/2010 and the Complainant No.2 had paid the bill of Breach Candy Hospital to the tune of Rs.1,58,174/-.  Furthermore, in clause no.5.4 of the terms and conditions of the policy there is specific waiver clause which reads as “Waiver of this condition may be considered in extreme cases of hardship where it is proved to the satisfaction of the Company that under the circumstances in which the Insured was placed and it was not possible for him or any other person to give such notice of the claim within the prescribed period”.  The representative of the Complainant Jehangir Gai made submission that Acute Appendicitis is the most common condition of the abdomen to require emergency surgery.  Because of the likelihood of the appendix rupturing and causing a severe, life-threatening infection, the usual recommendation is that the appendix be removed as soon as possible.  He thus, submitted that in such a situation it is not justified that the intimation as mentioned in clause 5.3 of the policy was expected to be given to the Opposite Party No.2. He made submission that the Complainant No.2 had given intimation to the Opposite Party No.2 on 30/08/2010 and immediately filed the claim on 31/08/2010 i.e. within 7 days of discharge of his son Ishan Bahl from the hospital. Shri. Jehangir Gai made submission that the Complainant No.2 had not flouted the condition of the policy.  The Complainant has also given the explanation as to why he could not intimate that his son was admitted in the hospital on 21/08/2010for the operation of Appendectomy in Breach Candy Hospital by letter dtd.20/09/2010.  He made submission that then also as per waiver clause in 5.4 the Opposite Parties did not consider the claim lodged by the Complainant No.2 and the Complainants are required to file the present complaint.  He submitted that the Complainant No.2 is entitled for the claim made in the complaint.  He also submitted that in this case as the Complainant No.2 had to suffer harassment and agony the Opposite Parties are required to fix the responsibility against the officer/officers who are responsible for such harassment and mental agony suffered by the Complainant No.2 and the amount of compensation determined by this Forum be directed to be recovered from such responsible officers.  In support of his submission he relied the following authorities –

            1)  Lukhnow Development Authority V/s. M.K. Gupta, reported in III (1993) CPJ 7 (SC).

            2)  B.N. Venkateshmurthy V/s. Bangalore Development Authority, reported in III (1994) CPJ 96 (NC).

            3)  Delhi Development Authority V/s. M.K. Gorawara, reported in I (2013) CPJ 37 A (NC) (CN).

The Ld.Advocate for the Opposite Party Smt. S.D. Gandhi submitted that as the Complainant No.2 did not inform to the Opposite Parties about the admission of his son in the hospital within 24 hrs. and the Complainant No.2 had flouted the condition of the policy as contended in the written statement, the Complainants are not entitled for any reliefs and the complaint is liable to be dismissed.

7)        For considering the claim made by the Complainants it is also necessary to be taken into consideration that the right of repudiation cannot be granted to the Insurance Company on flimsy ground or sketchy evidence as all the Insurance Companies insure a person, take the premium and when it comes to making the insurance claim they find out one or other ground to reject the claim.  The Hon’ble State Consumer Disputes Redressal Commission Punjab in the case reported in 2009 CTJ 1308 between Life Insurance Corporation of India V/s. Smt. Usha Rani have condemned such attitude of Insurance Companies for not allowing the genuine claim of the insurer.  The said Commission held that Courts, therefore, have to be cautious while determining the rights of the parties and has to insure that the right of repudiation is exercised by the Insurance Companies judicially and on sound principles.

            Considering the aforesaid observations and as the Complainant No.2 had intimated regarding the treatment provided to his son to the Opposite Party as early as possible i.e. on 30/08/2010 and submitted the claim on 31/08/2010 and there is no specific rejection of the claim by the Opposite Parties and the Complainant No.2 by letter dtd.20/09/2010 explained the delay for giving intimation on 30/08/2010 in view of the query made by the Opposite Party No.2 by it’s letter dtd.20/09/2010 it can be held that the Complainants have proved that the Opposite Parties have adopted unfair trade practice which amounts to deficiency in service under the Consumer Protection Act, 1986 in respect of the Complainant No.2. The Complainant No.2 has also produced the medical bills issued by Breach Candy Hospital to the tune of Rs.1,58,174/- at Exh.‘C’. In our view as the Complainant’s son was required to be operated for appendectomy i.e. Emergency Surgery as submitted by the representative of the Complainant Shri. Jehangir Gai the Opposite Parties ought to have paid the claim lodged by the Complainant No.2 immediately after submitting the claim as per Exh.‘D’.  In our view as the Opposite Parties did not take the decision regarding the genuine claim lodged by the Complainant No.2 and the Opposite Parties were tossing his claim and thereby caused mental harassment and agony to the Complainant No.2.  The Opposite Parties are thus liable to pay Rs.1,58,174/- to the Complainant No.2 towards the hospitalization expenses alongwith interest @ 9% p.a. from 31/08/2010.  The Opposite Parties are also liable to pay compensation for harassment and mental agony caused to the Complainant No.2 to the tune of Rs.8,000/- and cost of this proceeding to the tune of Rs.3,000/-.

8)        In view of the submissions made by Shri. Jehangir Gai, representative of the Complainant and the cases relied by him (Cited Supra) we hold that an enquiry will be conducted by the Opposite Parties for ascertaining who amongst the members of its staff were responsible for the lapses and in what proportion the liability should be saddle on the action for causing harassment and agony to the Complainant No.2 within a period of 6 months from the copy of this order is produced or served on it.  The amount of compensation of Rs.8,000/- awarded by this Forum for mental harassment shall be recovered from such officers proportionately from their salary.  Compliance of this order shall be reported to this Forum within 1 month after expiry of the period granted for determining the responsibility.  The Registrar is directed to send the copy of this order to the Opposite Party No.1 & 2 immediately.  In the result the following order is passed –

O R D E R

i.          Complaint No.135/2012 is jointly and severally partly allowed against the Opposite Parties No.1 & 2.

ii.         The Opposite Parties jointly and severally are directed to pay Rs.1,58,174/- (Rs. One Lac Fifty Eight Thousand One Hundred

           Seventy Four Only) to the Complainant No.2 towards hospitalization expenses of his son Ishan Bahl with interest @ 9% p.a.

            from 31/08/2010 till it’s realization.

iii.       The Opposite Parties jointly and severally are directed to pay Rs.8,000/- (Eight Thousand Only) as compensation to the

          Complainant No.2 for causing harassment and agony and cost of Rs.3,000/- (Rs. Three Thousand Only) to the Complainant

          No.2 towards this complaint.        

iv.      The Opposite Parties are directed to comply with the directions given in para 8 of the aforesaid order and submit its report as

         directed in the said order to this Forum. 

v.      The Opposite Parties are directed to comply the order of payment to the Complainant No.2 within two months from the date of

         service of this order. 

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