PER SHRI. S. G. CHABUKSWAR – HON’BLE  MEMBER

1)        This is a complaint for the reliefs of reimbursement of medical expenses Rs.36,000/- with interest @ 9% p.a., compensation Rs.25,000/- for mental agony and cost of the complaint.

2)        The case of the Complainant in short is as under –

The Complainant is the resident of Mamlatdar Wadi, Malad (West), Mumbai.  The Complainant had purchased from Opposite Party Individual Personal Accident Policy bearing No.020700/42/09/01/00000608 for the period from 30/08/2009 to 29/08/2010, for sum insured Rs.1,00,000/- under Table IV, Rs.2,00,000/- under Table IV, and Rs.7,00,000/- under Table III. Since 2007, the Complainant was in the books of Opposite Party and he was regularly paying the premium for his policies.  On 17/05/2010 the Complainant met with vehicular accident and the pedestrians brought him to his house.  Thereafter, the Complainant went to Ishita Nursing Home for the treatment. The Complainant was under continuous treatment of the doctor till 17/08/2010. The Complainant was under medical treatment during the period of three months and he was bed ridden.  The Complainant has paid the entire bill Rs.15,000/- of the hospital plus weekly benefits.

3)        The further case of the Complainant is that on 25/08/2010 he submitted his claim with Opposite Party.  The Complainant was not aware of the procedure of giving immediate intimation of the accident to the Opposite Party and as his sister-in-law was badly ill, he could not immediately convey the intimation to the Opposite Party.  However, Opposite Party rejected the claim of the Complainant on the ground that the intimation of the accident was not given to them immediately after the accident.  The Complainant under the above said insurance policy is entitled to the claim of reimbursement of medical expenses incurred by him for a period of three months at the rate of Rs.3,000/- per week, total Rs.36,000/-. Opposite Party had promised to render services within the meaning of Section 2(o) of the Consumer Protection Act, 1986, by selling Individual Personal  Accident Policy and accepted premium Rs.1,366/- and service tax Rs.141/- total Rs. 1,507/- in advance.  Opposite Party has engaged in unfair trade practices and rendered deficiency in service by rejecting the claim of the Complainant on flimsy ground.  The Complainant had made complaints with Grievance Cell and Insurance Ombudsman.  However, no satisfactory response was received from the said Grievance Cell and Insurance Ombudsman.  The Complainant has suffered mental stress.  Hence, this complaint for the reliefs mentioned in above para no.1.

4)        Opposite Party has resisted the claim by filing written version.  The contention of Opposite Party is that the claim of the Complainant has been rejected on 16/09/2010 and the present complaint filed before the Forum on 25/06/2012 after 21 months from the date of repudiation of the claim.  As per condition no.8 of the policy the claim of the Complainant has been extinguished. The condition no.8 of the insurance policy is upheld by the Hon’ble Supreme Court in their Judgment reported in (1997) 4 Supreme Court Cases 366, the National Insurance Co. Ltd. V/s. Surjit Ganesh Nayak & Co. & Ors.  In view of the above judgment of the Hon’ble Supreme Court the right of the Complainant has been extinguished  and  therefore, complaint  is liable to be dismissed.   

5)        The further contention of Opposite Party is that, on 04/11/2010, Opposite Party sent letter to the Complainant and re-confirmed the fact of no claim under condition no.1 of the policy in question. The Grievance Cell of Opposite Party informed to the Complainant the fact of upholding decision of repudiation of Opposite Party by the letter dtd.06/01/2011. The Insurance Ombudsman by their order dtd.12/10/2011 condoned the delay and the Insurance Company was directed to examine the admissibility of the case of Complainant and to inform the outcome within 7 working days. The Complainant was advised to co-operate with the Insurance Company and to submit the relevant documents to them.  The Opposite Party as per the direction of the Insurance Ombudsman sent letter dtd.13/10/2011 to the Complainant and requested for submitting x-ray films/scan films in original.  However, the Complainant did not submit the same to the Opposite Party.  Opposite Party had also appointed Investigator Kamlesh P. Sodha to collect the papers from Hospital Ishita Nursing Home on 15/10/2011. The said Investigator had approached to collect the papers of the treatment given to the Complainant and x-ray films, visual scan report but the said doctor did not submit the same to the Investigator.  The Opposite Party had referred the file to M/s. Adroit Consultancy Medicolegal Services for their opinion.  The penal doctor also gave opinion vide their report dtd.20/10/2011 contending that, he is unable to comment on the claim matter as the claimant has not submitted x-ray plates showing fracture.  On 05/12/2011 the Insurance Ombudsman dismissed the complaint of the Complainant as Complainant could not substantiate his claim by submitting medical evidence.  In view of condition no.8 of the policy, complaint is not maintainable.  Opposite Party has denied that they are engaged in unfair trade practice and there is deficiency in service on it’s part.  Opposite Party has denied all rival contentions of the Complainant and prayed for dismissal of the complaint with costs.

6)        From the rival pleading of both the parties following points arises for determination and our findings thereon are noted against each of them for the reason given below –

                                                Points                                                             Findings

            1.  Does the Complainant prove that Opposite                            Affirmative.

                  Party is engaged in unfair trade practice and

                 rendered deficiency in service to the Complainant ?

            2.  Whether Complainant is entitled to the reliefs as              Reimbursement of

                 Claimed ?                                                                                  medical expenses

                                                                                                                     Rs.36,000/-,

                                                                                                                    compensation

                                                                                                                    Rs.5,000/-for  

                                                                                                                    mental agony and

                                                                                                                    Rs.3,000/- cost of

                                                                                                                    the complaint.

            3.   What order -                                                                           As per final order.

Reasons

7)        The Complainant has submitted his affidavit of evidence.  Opposite Party has submitted affidavit of evidence of Shri. Amit S. Nakhare, Asst. Manager.  Both the parties have submitted their written notes of argument. Perused the documents produced on record.  We heard Shri. Manoj Gujar, Ld.Advocate for the Complainant and Shri. J.D. Karanjkar, Ld.Advocate for Opposite Party.

8)        Point Nos.1 & 2 :-  Admittedly Opposite Party issued to the Complainant Individual Personal Accident Policy bearing No.020700/42/09/01/00000608 for the period from 30/08/2009 to 29/08/2010.  On 25/08/2010 the Complainant informed to the Opposite Party that on 17/05/2010 he badly met with an accident of auto-rickshaw and submitted claim form with Opposite Party. The Complainant has mentioned in the said claim form that he was admitted in the hospital on 17/05/2010 and was under the treatment till 17/08/2010.  The Complainant had attended his normal duties from 17/08/2010.  Opposite Party repudiated the claim of the Complainant on the basis of condition no.8 of the policy on the ground that intimation of accident has been given after three months of the accident.  The Complainant had approached to the Grievance Cell and Insurance Ombudsman by filing complaints but those are dismissed by the said Authorities. The Opposite Party repudiated the claim of the Complainant on 16/09/2010.  The Complainant has filed this complaint on 25/06/2012 i.e. after 1 year 9 months of repudiation of claim of Complainant.

9)        Shri. J.D. Karanjkar, Ld.Advocate for the Opposite Party has argued that in view of condition no.8 of the policy complaint is not maintainable.  Condition No.8 of the Policy in question says that –

“It is also hereby expressly agreed and declared that if the Company shall disclaim liability to the Insured for any claim herein under, and such claim shall not, within 12 calendar months from the date of such disclaimer have been made the subject matter of a suit in a court of law, then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder.”

10)      Shri. J.D. Karanjkar, Ld.Advocate for the Opposite Party has argued that, condition no.8 of the policy in question even, if the period specified therein is shorter than that prescribed by the Consumer Protection Act, 1986, for filing complaint for that purpose, it is not hit by Section 28 of the Contract Act, 1872.  The advocate for Opposite Party in support of his argument relied on the judgment reported in (1997) 4 Supreme Curt cases 366, National Insurance Co. Ltd. V/s. Sujit Ganesh Nayak & Co. and another wherein the Hon’ble Supreme Court observed that -

“An agreement which in effect seeks to curtail the period of limitation and prescribes a shorter period than that prescribed by law would be void as offending Section 28 of the Contract Act.  But there could be agreements which do not seek to curtail the time for enforcement of the right but which provide for the forfeiture or waiver of the right itself if no action is commenced within the period stipulated by the agreement. Such a clause in the agreement would not fall within the mischief of Section 28 of the Contract Act.  To put it differently, curtailment of the period of limitation is not permissible in view of Section 28 but extinction of the right itself unless exercised within a specified time is permissible and can be enforced.”      

            In the present case on 30/08/2009 the Complainant has waived by the condition no.8, enforcement of his right within the period provided by the law.  The Insurance Regulatory and Development Authority, by its circular dated. 20/09/2011, has given guidelines to the Insurance Companies on receiving several complain of rejection of claims on the ground of delayed submission of claim intimation and documents.  It has been directed, inter alia, that all insurers need to develop a sound mechanism of their own to handle such claims with utmost care and caution. The insurers must not repudiate such claims unless and until the reasons of delay are specifically ascertained and recorded. The insurers should satisfy themselves that the claims would have been even otherwise rejected even if reported in time. The Complainant had mentioned in the intimation letter the reasons of delay caused in filing the claim.  In view of the circular dtd.20/09/2011 issued by the Insurance Regulatory and Development Authority the repudiation of claim of the Complainant by the Opposite Party is not proper and justified.  The Insurance Regulatory and Development Authority has relaxed the condition no.8 of the policy in question by the above circular.  Hence, citation relied by the Opposite Party does not support the case of the Opposite Party.

11)      Shri. J.D. Karanjkar, Ld.Advocate for the Opposite Party also relied on the judgment delivered by this Forum in Consumer Complaint No.92/2008, M/s. Jai Auto Hirers V/s. United India Insurance Co. Ltd. decided on 30/04/2011.  In the said case consumer complaint was filed against present Opposite Party and one of the reason of repudiation of claim was condition no.8 of the policy.  This Forum on relying the judgment reported in (1997) 4 Supreme Court Cases 366, National Insurance Co. Ltd. V/s. Sujit Ganesh Nayak & Co. and Other, dismissed the complaint.  The circular of Insurance Regulatory and Development Authority come in to existence on 20/09/2011. The said circular was not in existence when this Forum decided above consumer complaint on 30/04/2011 and hence, same view cannot be taken in the present complaint.

12)      Opposite Party has produced the copies of orders passed by the Insurance Ombudsman regarding condonation of delay on 12/10/2011 and in the complaint on 05/12/2011.  The Insurance Ombudsman while condoning the delay directions were given to the Opposite Party for examining the admissibility of the case and to inform the outcome within 7 working days.  On 13/10/2011 Opposite Party issued letter to the complainant and directed for submitting x-ray films/scan films, report in original, fitness certificate from attending doctor, income proof, claim form duly filled and signed, medical report duly filled by attending doctor.  Opposite Party had appointed Kamlesh P. Sodha for the investigation and also called the opinion of M/s. Adroit consultancy medico-legal services. The investigating officer visited to Dr. Dilip Panchal, Orthopedic Surgeon and demanded x-ray reports of the Complainant but the said doctor could not submit the same.  The fact of above visit of Kamlesh Sodha, Investing Officer and non submission of x-ray report by Dr. Dilip can be proved only by the affidavit of Kamlesh Sodha and Opposite Party has not submitted affidavit of evidence of Kamlesh Sodha to prove the said fact. On 20/10/2011 Adroit Consultancy submitted his report contending that he cannot give his final opinion without x-ray report.  The letter of Opposite Party dtd.13/10/2011, reports of Investigating Officer and Adroit Consultancy dtd.19/10/2011 and 20/10/2011 shows that Opposite Party was required x-ray reports for processing the claim of Complainant and the Complainant has not submitted it to the Opposite Party. 

13)      The orders passed by Insurance Ombudsman regarding condonation of delay and complaint clearly goes to show that, Insurance Ombudsman has recorded the deposition of present Complainant and the Complainant deposed before the Insurance Ombudsman that, during his treatment he was not exposed to x-ray examination but doctor gave the treatment by doing scanning. The Complainant was not exposed to  x-ray examination therefore, question of submission of x-ray plats by the Complainant or his doctor does not arise. The Opposite Party has directed to the Complainant for submitting scan films and reports by the letter dtd.13/10/2011. However, the Complainant has already submitted scan report alongwith the complaint at page no.26.  The said report has been issued by Dr. Dilip Panchal and it bears his signature but it does not bear the date.  The name of the Complainant is appearing in the said report.  The column of date of the report is blank. It is not the case of the Opposite Party that, present Complainant has submitted various claims and scan report in question is not related with the present complaint.  It appears that, Complainant has submitted only one claim with the Opposite Party regarding the accident dtd.17/05/2010. The evidence available on record shows that the scan report filed alongwith the complaint at page no.26 is in respect of the treatment taken by the Complainant in the month of October, 2010. The Complainant has already produced the scan report on record and hence, again production of scan report does not arise.

14)      Shri. Manoj Gujar, Ld.Advocate for the Complainant has relied on the judgment delivered by the Hon’ble High Court of Jharkhand at Ranchi in W.P. No.609 of 2009, Baby Devi V/s. National Insurance Co. Ltd. In the said case the Hon’ble High Court of Jharkhand at Ranchi on relying the circular date 29/09/2011 issued Insurance Regulatory and Development Authority allowed the Writ Petition and remanded the P.L.A. case to the permanent Lok Adalat for deciding on merits as the said case was not entertained only on technical ground of delay.  In the present case also Opposite Party repudiated the claim of Complainant on the technical ground of delay. After 12/10/2011 condonation of delay by the Insurance Ombudsman, Opposite Party has decided the claim of the Complainant on merit.  Hence, above citation is applicable to this complaint. 

15)      The Complainant has produced alongwith the complaint at page nos.11 to 22 receipts issued by Dr. Panchal’s Ishita Nursing Home regarding treatment and follow-up changes.  The Complainant has calculated the claim in para nos.3 and 4 of the complaint.  It is not the case of Opposite Party that claim of the Complainant is excess than the expenditure made by him on the treatment.  The Complainant calculated his claim Rs.36,000/- in para no.4 of the complaint.  In view of the evidence available on record we find that Complainant is entitled for reimbursement of medical expenses Rs.36,000/-. The condition no.2 of the policy in question says that no sum payable under this policy shall carry interest.  As per said condition Opposite Party is not entitled to the interest on the sum payable under the policy Rs.36,000/-.  The Opposite Party has caused mental harassment to the Complainant by calling x-ray films and reports of treating doctor by the letter dtd.13/10/2011.  Opposite Party also rendered deficiency in service to the Complainant by not allowing the claim after 13/10/2011.  Hence, Complainant is entitled to the compensation Rs.5,000/- for mental agony caused to him and Rs.3,000/- cost of the complaint.  Hence, we answer point no.1 in the affirmative and point no.2 accordingly.

16)      In the result complaint deserves to be partly allowed with cost.  Therefore, we proceeds to pass following order –

O R D E R

 i.        Complaint No.131/2012 is allowed with cost.

              ii.        Opposite Party is directed to pay reimbursement of medical expenses Rs.36,000/- (Rs. Thirty Six Thousand Only) to the

                         Complainant.      

                     iii.        Opposite Party is directed to pay to the Complainant compensation Rs.5,000/-(Rs. Five Thousand Only) for mental

                                  harassment caused to him.

                    iv.         Opposite Party is directed to pay to the Complainant Rs.3,000/- (Rs. Three Thousand Only) towards cost of the complaint.

           v.         Opposite Party is directed to pay amount mentioned in above para No. ii, to iv to the Complainant within one month from the

                       date of this order.  In the failure Opposite Party is liable to pay interest on the said amount @ 9% p.a. from such date till   \

                      realization of the amount.

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