PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
The Complainant No.1 Dr. Girish Sanghavi had taken mediclaim policy for himself and for his wife and other family members from the Opposite Party New India Assurance Co. Ltd., on 01/04/07. The aforesaid policy was for period of one year. Sum assured under the policy was Rs.1,50,000/-. Subsequently the Complainant renewed the said policy with United India Insurance Co. Ltd. i.e. present Opposite Party for period 01/04/98 to 31/03/99 with increased sum assured of Rs.3 Lacs which later on was increased to sum insured of Rs.5 Lacs for the policy 01/04/2000 to 31/03/2001.
2) Smt. Mamta Sanghavi, wife of Complainant was covered under the said policy. She was admitted in Dr. Bacha’s Memorial Belle-Vue Nursing Home for total knee replacement (Right Knee) from 07/04/2002 to 16/04/2002. After right knee replacement surgery, the Complainant submitted claim form for reimbursement of Rs.2,31,044.40 paise of medical expenses to the Opposite Party. The Opposite Party offered to settle the claim partially on the basis of sum assured of Rs.1,50,000/- + C.B. of 10 % amount i.e. total Rs.1,65,000/- and accordingly sent voucher for the said amount of Rs.1,65,000/- to the Complainant. The Complainant was not satisfied of settlement of Rs.1,65,000/- and he sent voucher back to the Company under protest vide letter dtd.09/09/02. Opposite Party by letter dtd.19/09/02 again sent a fresh discharge voucher to Dr. Sanghavi and advising him to accept the amount of Rs.1,65,000/- as full and final settlement, stating that there were not in position to entertain a discharge voucher executed under protest. The Complainant No.1 sent a letter to the Opposite Party stating that he is not agreeable to accept Rs.1,65,000/- as full and final settlement on the alleged ground that disease was pre-existing.
3) It is submitted that prior to the hospitalization of Mrs. Sanghavi, by letter dtd.02/04/02, the Complainants demanded from the Opposite Party complete policy papers. By another letter dtd.06/04/02, Opposite Party was informed about the operation of Complainant No.2 which was fixed on 08/04/02. However, Opposite Party’s have partly allowed the claim for reimbursement of hospital expenses. According to the Complainant the allegations of the Opposite Party regarding pre-existing disease is not supported by medical record. In the policy there is no mention about exclusion of any disease in 5 years. The terms and conditions of policy were not supplied to the Complainant. Bonus amount was not correctly calculated. In the initial policy sum assured was Rs.1,50,000/- and that was renewed for sum assured Rs.3 Lacs. However, Opposite Party restricted claim to the previous sum insured in the policy. The Opposite Party with vindictive attitude demanded loading of 100 % premium which is arbitrary and illegal. Being aggrieved by decision of Opposite Party, the Complainant filed complaint to the Hon’ble Insurance Ombudsman. The Hon’ble Insurance Ombudsman in his order dtd.13/12/02 has observed that “Companies attitude amounts to coercive bargaining interfering with the right of the insured.” The Insurance Ombudsman has not allowed the Complainant’s claim for balance amount. Therefore, the Complainant has filed this complaint before this Forum. The Complainant has requested to direct Opposite Party to pay to the Complainant claim amount of Rs.2,31,044.40 paise with interest @ 13 % p.a. till realization of entire amount. The Complainant has further requested to direct Opposite Party to pay cumulative bonus @ 10 % for the period till and when the claim was lodged with further cumulative bonus at the same rate. The Complainants have requested to declare loading of 100% premium is arbitrary, illegal and amounts to unfair trade practice on the part of Opposite Party. The Complainants have claimed Rs.25,000/- as compensation for mental agony and Rs.15,000/- towards cost of this proceeding.
4) Alongwith complaint, the Complainant has filed documents as per list of documents.
5) Opposite Party has filed written statement and thereby resisted claim of the Complainant contending interalia that complaint is not maintenable for simple reason that the Complainant has already approached the Hon’ble Insurance Ombudsman and as per the award of the Hon’ble Insurance Ombudsman, the Opposite Party has already paid an amount of Rs.1,65,000/- with simple interest @ 6.25 % p.a. from 15/06/02. Therefore, the Complainant is estopped from reagitating same issue before this Forum as the cause of action has been finally settle according to award passed by Insurance Ombudsman. It is submitted that Opposite Party is carrying on business of insurance on the basis of utmost good faith. Terms and conditions of policy including exclusions are binding on the Complainant. The Complainant has not come before this Forum with clean hand. The Complainant did not disclose pre-existing ailment of Complainant No.2 when initially Complainant obtained mediclaim policy from Opposite Party. Insurance Ombudsman after hearing both the parties, have passed its reasoned order. The Complainant’s claim for enhanced amount is dismissed by Insurance Ombudsman and therefore, present complaint is not maintenable. Opposite Party has denied the allegations made in the complaint. Inspite of repeated demands Complainant did not submitted x-ray report and x-ray plates and inspite of suppression of material facts Opposite Party has acted in good faith and settled the claim as per award passed by the Insurance Ombudsman. There is no deficiency in service on the part of Opposite Party and therefore, complaint deserves to be dismissed with cost. Alongwith written statement Opposite Party has produced copy of the award dtd.10/12/02 passed by the Insurance Ombudsman. Copies of the letter sent to the Complainant regarding calculation of cumulative bonus, copy of the discharge card of Dr. Bacha’s Memorial Belle-Vue Nursing Home, copy of report of Sumit Diagnose Centre, medical literature, etc. Opposite Party has produced affidavit of their Manager Shri. S. Goplakrishnan, affidavit of Dr. L.N. Vora, affidavit of Dr. Mrs. G.J. Sunavala.
6) The Complainant has filed affidavit and written argument. Opposite Party has also filed written argument. Heard Ld.Advocate Ms. Rashmi Manne for the Complainant and Ld.Advocate Mr. R.N. Char. and the complaint was closed for order.
7) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainants have proved deficiency in service on the part of Opposite Party ?
Findings : No
Point No.2 : Whether the Complainants are entitled for relief as prayed for ?
Findings : No
Reasons :-
Point No.1 :- Following facts are undisputed fact that initially on 01/04/97 Complainant No.1 Dr. Girish Sanghavi had obtained mediclaim policy from New India Assurance Co. Ltd. for himself and for his family members. The said policy was for the period of one year from 01/04/97 to 31/03/98 and the sum assured under the said policy was rs.1,50,000/-. It is admitted fact that subsequently from 01/04/98 the Complainant renewed the said policy with United India Insurance Co. Ltd. i.e. present Opposite Party. It was for period of 01/04/98 to 31/03/99 with increased sum assured of Rs.3 Lacs. It is admitted fact that subsequently sum assured enhanced to 5,00,000/- from 01/04/2000 to 31/03/2001.
The Complainant No.2 was admitted in Dr. Bacha’s Memorial Belle-Vue Nursing Home from 04/04/02 to 16/04/02 where she underwent surgery for total knee replacement (Right knee). As per the Complainant, for the aforesaid operation he incurred expenses of Rs.2,31,044.40 paise and after discharge from the hospital claim was preferred for reimbursement of the said amount. Out of aforesaid amount, Opposite Party sanctioned sum of Rs.1,50,000/- on the basis of sum assured in the initial policy + C.B. of 10 % i.e. total amount of Rs.1,65,000/- and sent voucher of the sum to the Complainant on 05/09/02. The Complainant was not satisfied with the decision of disallowing of the balance claim amount and therefore, he sent back voucher alongwith protest letter dtd.09/09/02 and requested for payment of 1,65,000/- pending the decision regarding balance payment. Opposite Party by letter dtd.16/09/02 sent fresh discharge voucher and advised the Complainant to accept the amount as full and final settlement, submitting that they are not in position to entertain a discharge voucher executed under protest. The Complainant was not agreeable to accept Rs.1,65,000/- as full and final satisfaction. So he approached the Insurance Ombudsman. Copy of the award of the Insurance Ombudsman is produced on record. The Insurance Ombudsman on 13/10/02 has passed order which is as follow –
“The claim in question of Dr. Girish Sanghavi for payment of balance amount towards expenses of treatment of his wife at Dr. Bacha’s Memorial Belle-Vue Nursing Home from 07/04/02 to 16/04/02 for total knee replacement (R) is not sustainable. However, the United India Insurance Co. Ltd. is directed to pay Rs.1,65,000/- as already admitted, alongwith simple interest @ 6.25 % p.a. from 15/06/02 till date of payment and case disposed off accordingly.
Being aggrieved by the decision of the Insurance Ombudsman, the Complainant has filed this complaint before this Forum and has prayed to direct Opposite Party to pay claim amount of Rs.2,31,044.40 paise with interest @ 13% p.a. alongwith complaint, the Complainant has produced xerox copy of the first mediclaim policy taken from the New India Insurance Co. Ltd. The policy was for period of 01/04/07 to 31/03/98. In the aforesaid policy sum assured is stated as Rs.1,50,000/- against name of Mrs. M.G. Sanghavi. Thereafter the Complainant renewed said policy with present Opposite Party from 01/04/98 to 31/03/99 with increase in sum assured upto Rs.3 Lacs. The Complainant has not produced xerox copy of the policy for the period 01/04/98 to 31/03/99. According to the Opposite Party, for aforesaid period assured sum was increased from Rs.1,50,000/- to Rs.3,00,000/-. However, pre-existing disease was excluded from the increase sum assured. In support of his contention, Ld.Advocate for the Opposite Party has referred the photo copy of the policy for the period 01/04/02 to 31/03/03 produced by the Complainant at Pg. 65 alongwith complaint and pointed out that in the said policy there is specific endorsement in the said policy that “pre-existing disease is excluded for the increased sum assured.”
Ld.Advocate for the Opposite Party has referred to xerox copy of the discharge summery of Dr. D. S. Kothari Hospital produced by the Complainant alongwith complaint at Pg.43/46. It appears from the discharge summery of Dr. D.S. Kothari Hospital that Complainant No.2 Mrs. M.G. Sanghavi was admitted in Dr. D.S. Kothare Hospital on 20/01/98 and discharged on 23/01/98. During aforesaid period the Complainant underwent surgery of right knee. In the history it is stated that “Fall in bathroom on 18/01/98 - pain in both knee more on right knee locking in left knee joint. Operation of Arthroscopy was done. It is submitted on behalf of Opposite Party that after operation in Dr. Kothari’s Hospital, the Complainant approached Opposite Party for renewal of mediclaim policy taken from the New India Assurance Co. Ltd. and Opposite Party renewed said policy from 01/04/98 to 31/03/98. It is vehemently submitted that at the time of renewal of policy on 01/04/98 the Complainant did not disclose that the Complainant No.2 was suffering from pain in both knees and she had underwent operation at Dr. Kothari Hospital. By suppressing material facts regarding health of the Complainant No.2, Complainant obtained mediclaim policy from Opposite Party with increase sum of Rs.3 Lacs. Suppression of the material facts is a breach of trust and on this ground alone the Complainant’s claim was liable to be rejected. However, Opposite Party inspite of rejecting claim as per the terms and conditions of policy, restricted claim of the sum assured in the initial policy and sanctioned total amount of Rs.1,65,000/-. Considering documentary evidence on record, decision taken by the Opposite Party to allow Complainant’s claim to the extent of Rs.1,65,000/- appears just and proper. We do not find substance in the allegations made by the Complainants. Therefore, we hold that the Complainant failed to prove deficiency in service on the part of Opposite Party.
Point No.2 :- For the reasons discussed above decision taken by the Complainant to pay Rs.1,50,000/- + C.B. of Rs.15,000/- i.e. total Rs.1,65,000/- to the Complainant towards claim of Rs.2,31,044.40 paise appears to be just and proper. It is submitted on behalf of Opposite Party that in this case Opposite Party acted fairly and sent voucher of Rs.1,65,000/- to the Complainant but the Complainant refused to accept the said voucher. Complainants suggestion to accept Rs.1,65,000/- under protest was against practice followed by the Insurance Company. Therefore, Opposite Party again sent fresh voucher of Rs.1,65,000/- and advised to accept it as full and final amount but inspite of accepting the said amount as full and final satisfaction, the Complainant approached Insurance Ombudsman. The Insurance Ombudsman directed Opposite Party to pay Rs.1,65,000/- with interest @ 6.25 % p.a. on aforesaid amount from 15/06/02 and accordingly Opposite Party has paid Rs.1,65,000/- with interest awarded by Insurance Ombudsman to the Complainant. It is submitted that even after accepting the aforesaid amount, the Complainant has filed this complaint and hence, present complaint is not maintenable. On the contrary, relying upon the decision of the Hon’ble National Commission in New India Assurance Co. Ltd. V/s. Vasant Rao, reported in 2006 CTJ 526(CP) (NCDRC). Ld.Advocate for the Complainants has submitted that partly settlement of claim and obtaining voucher as full and final satisfaction amounts to coercive bargaining. Facts of this case are totally different than the fact stated in the above cited judgment of the Hon’ble National Commission. In the instance case, the Complainant refused to accept discharge voucher twice and approached the Insurance Ombudsman. As per order of Insurance Ombudsman, he has accepted the amount of Rs.1,65,000/- alongwith interest awarded by the Insurance Ombudsman. In this complaint the Complainant has not disclosed about the acceptance of amount and has prayed to direct Opposite Party to pay entire claim of Rs.2,31,044.40 paise with interest. Complaint is filed in the year 2003. For the first time in the written argument filed on 21/07/08, the Complainant has admitted that he has received Rs.1,65,000/- with interest @ 6.25 % p.a. from the Opposite Party. Considering aforesaid fact, we hold that the Complainants are entitled to recover any amount from the Opposite Party and the Complainants are not also entitle to any other relief claimed. Hence we answer point no.2 in the negative.
For the reasons discussed above, the complaint deserves to be dismissed hence, we pass following order -
O R D E R
i.Complaint No.275/2003 is dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the party.
