Date of Filing: 24.03.2010<br /> Date of Order: 12.11.2010<br /> <br /> 2<br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 12TH DAY OF NOVEMBER 2010<br /> <br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> COMPLAINT NO: 636 OF 2010<br /> A.C. Bopanna<br /> S/o. Late A.B. Changappa<br /> Herror Estate, Siddapura<br /> Kodagu District<br /> Rep. by its P.A. Holder A.B. Biddappa Complainant<br /> V/S<br /> 1. United India Insurance Co. Ltd.<br /> Divisional Office 3, 1st Floor<br /> Classic Building, No. 24<br /> Richmond Road, Bangalore 560 025<br /> Rep. by Divisional Manager<br /> <br /> 2. M/s. E-Meditex Solutions Ltd.<br /> No. 36/1, 1st Floor<br /> Dekenson Road, Bangalore 560 042 Opposite Parties<br /> <br /> ORDER<br /> By the President Sri S.S. Nagarale<br /> <br /> This is a complaint filed under section 12 of the Consumer Protection Act.<br /> The facts of the case are that complainant is a senior citizen aged 85 years. He has availed the Can-comfort Group Mediclaim Insurance Certificate through Cancard Division of Canara Bank since year 1991 and continued to pay the premium under the said policy to the first opposite party till the year 2004 continuously. Thereafter, Cancard division of Canara Bank tied up the scheme with the first opposite party and complainant has paid premium for the year 2005-06, 2006-07. Subsequently, complainant sought to renew the policy for the year 2007-08, the first opposite party did not renew the policy as far as the complainant was concerned, but renewed the policy in respect of complainant’s wife and grand son. Complainant requested the opposite party to issue him a policy for the period 01.11.2007 to 31.10.2008. Subsequently, opposite party renewed the policy in respect of the complainant, his wife and grand son for the period 01.11.2008 to 31.10.2009 and again from 01.11.2009 to 31.10.2010. The opposite party settled the claim to the complainant for cataract eye surgery. Limit for the policy was for Rs. 3,00,000/-. Complainant opted for larger cover to the extent of Rs. 5,00,000/- under policy period 01.11.2009 to 31.10.2010 by paying higher premium. During the subsistence of the policy for the period 01.11.2009 to 31.10.2010, the complainant diagnosed with Aseptic loosening of right sided TKR by Hosmat Hospital. He was advised to undergo right side revision TKR and procedure was carried out on 17.11.2009. The bill of Hosmat Hospital is to the tune of Rs. 4,64,000/-. Hosmat Hospital applied for cashless facility. Same was rejected. Left with no other alternative complainant paid bills out of his own fund to the tune of Rs. 4,64,000/-. The second opposite party settled the claim for Rs. 3,00,000/- on 10.02.2010 declining to reimburse balance of Rs. 1,64,000/- without any reason, when under the policy complainant was entitled to be indemnified to the extent of Rs. 5,00,000/-. Therefore, the complainant has filed this complaint seeking direction to the opposite party to pay the difference amount in settlement of the claim to the tune of Rs. 1,64,000/- and Rs. 25,000/- for damages for deficiency of service.<br /> 2. The opposite party filed defence version admitting that complainant has obtained policy from 2007-09 to cover the risk to the extent of Rs. 3,00,000/- and knowing fully well the pre-existing diseases and has paid additional premium to cover the additional risk from Rs. 3,00,000/- to Rs. 5,00,000/- and undergone Eye surgery and also surgery for Total Knee Replacement (TKR) at Hosmat Hospital. The opposite party after obtaining medical expert’s opinion settled the claim for Rs. 3,00,000/- as per the terms and conditions of policy and repudiated the balance claim to the extent of Rs. 1,64,000/-, since, complainant was suffering knee problem since 1994 itself and he had undergone surgery in the year 1994. The opposite party submits that the liability is limited to sum insured of the policy which was operating at the time of taking policy in respect of treatment taken for all pre-existing diseases. Subsequently, if the sum insured enhanced for the next renewal of policy then enhanced sum insured will start operating only for the treatment taken for ailment which are not preexisting. The complainant has suppressed the facts and he had undergone surgery again for same problem. Opposite party considered the claim and settled for a sum of Rs. 3,00,000/- as per the terms and conditions of the policy and repudiated the balance of Rs. 1,64,000/-. There is no basis for the complainant to claim Rs. 1,64,000/-. The complainant has aggrieved by the manner in which the claim is processed, he has to either invoke arbitration clause under the policy or should approach competent civil court to establish his case. Therefore, the opposite party has prayed to dismiss the complaint.<br /> 3. Respective parties have filed affidavit evidence.<br /> 4. Arguments are heard.<br /> 5. The points for consideration are:<br /> 1. Whether there is deficiency of service on the part of opposite party?<br /> 2. Whether the complainant is entitled for the relief?<br /> 6. It is admitted case of the parties that complainant has obtained mediclaim policy right from the year 2005-06. The policy for the year 2005-06 had covered to the extent of Rs. 3,00,000/-. The complainant has paid additional premium to cover the additional risk coverage of Rs. 2,00,000/-. Thus, the total coverage is Rs. 5,00,000/-. The complainant under gone surgery for total knee replacement at Hosmat Hospital and he has claimed Rs. 4,64,000/- reimbursement from the opposite party. The opposite party after obtaining medical expert’s opinion and going through the medical bills settled the claim for Rs. 3,00,000/- and repudiated claim to the extent of Rs. 1,64,000/- since, the complainant has suffered knee problem since 1994 itself and said disease was pre-existing. The main defence of the opposite party is that the liability is limited to the sum insured under the policy which was operating at the time of taking policy in respect of treatment taken for all pre-existing diseases or ailments. Subsequently, if the sum insured enhanced for the next renewal of the policy then enhanced sum insured will start operating only for the treatment taken for ailment / diseases which are not pre-existing. Therefore, on this defence the opposite party repudiated the claim to the extent of Rs. 1,64,000/-. But the opposite party has not been able to prove and establish the said defence. No particular rule or clause in the policy has been quoted in the defence version by the opposite party. Even in the affidavit filed by the Deputy Manager of opposite party the defence has not been explained and no particular rule or clause of the policies stated which dis-entitles the complainant to claim full amount of Rs. 4,64,000/- as per the hospital bill. Therefore, in the absence of any proper proof and explanation on behalf of opposite party about the terms and conditions of policies it would be unreasonable, unjust and unfair on the part of opposite party to repudiate the claim to the extent of Rs. 1,64,000/-. The learned counsel for the complainant has relied upon the decision of Hon’ble National Commission reported in II (2008) CPJ 267 (NC) wherein it has been held that policy conditions when not clear, capable of more than one interpretation, the interpretation beneficial to consumer should be adopted. So in view of the above decision which is binding force under the Indian Constitution I have to hold that the repudiation of the part of the claim by the opposite party company in this case is not justified. Consumer Protection Act is a social and benevolent legislation intended to protect better interests of consumers. The complainant herein is a senior citizen and he had been taking the policy from the opposite party and paying the premium amount and he had been admitted to Hosmat Hospital for Total Knee Replacement (TKR) and the hospital bill amounting to Rs. 4,64,000/- had been paid by the complainant to the hospital and he has produced hospital bills and copy of D.D. to show that he has cleared the bill of the hospital. So under these circumstances the opposite party could have paid Rs. 4,64,000/- to the complainant. Instead of that the opposite party has admitted the claim only for Rs. 3,00,000/-. Therefore, the opposite party directed to pay Rs. 1,64,000/- to the complainant. The repudiation of the claim partly by the opposite party amounts to deficiency in service. Therefore, complaint is liable to be allowed. In the result I proceed to pass the following:<br /> ORDER<br /> 7. The complaint is allowed. The opposite party No. 1 United India Insurance Co. Ltd. is directed to pay Rs. 1,64,000/- to the complainant within 60 days from the date of this order. In the event of non-compliance of the order the above amount carries interest at 6% p.a. from the date of this order till payment / realisation.<br /> 8. The opposite party is directed to pay the amount as ordered above directly to the complainant by way of D.D. / cheque with intimation to this forum.<br /> 9. Send the copy of this Order to both the parties free of costs immediately. <br /> 10. Pronounced in the Open Forum on this 12TH DAY OF NOVEMBER 2010. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> MEMBER MEMBER<br /> <br />