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

1)        The Complainants by this complaint have claimed total amount from the Opposite Parties towards the deficiency of services and unfair trade practice on their part as per the details below -

A)  The Complainant No.1 prayed aggregate amount of Rs.1,01,046.73 alongwith interest @ 9% p.a. from the date of complaint to the date of realization.

 B)   The Complainant No.2 prayed aggregate amount of Rs.1,45,612.05 alongwith interest @ 9% p.a. from the date of complaint to the date of realization.

C)   To pay an amount of Rs.3,00,000/-  towards compensation, mental agony and stress undergone by the Complainants.

D)       To pay Rs.50,000/- as cost of the complaint.

 2)        It is the case of the Complainant that the Complainant No.1 is an advocate and aged about 75 years.  The Complainant No.2 is also an advocate and aged about 67 years.  This claim arises out of mediclaim policy issued by the Opposite Party No.1 as per Exh.‘A’ for the period 14/01/2009 to 13/01/2010 in favour of the Complainants.  According to the Complainants, their mediclaim policy with the Opposite Party is since 2006-07 without any gap and by paying regular premium. It is alleged that therefore, they are the consumers within the meaning of the Consumer Protection Act, 1986 (referred to as the Act). The Opposite Party No.2 is any employee of the Opposite Party No.1 and has acted as the Agent of the Opposite Party No.1. It is submitted that as such the Opposite Party No.1 is liable for the act of Opposite Party No.2 and for the deficiency of service on the part of Opposite Party No.2.

 3)        According to the Complainants, on or about 14/05/2009 the Complainant No.1 experienced mild pain on the left side of his chest in the heart reason and therefore, medical treatment and consultation was done at Jaslok Hospital on 18/05/09 and 21/05/09.  The aggregate sum of Rs.12,124/- spent on the test and the Doctor’s fees and medicines.  The copies of the said documents are marked as Exh.‘B’ colly.

 4)        It is alleged that on 22/05/2009 the Complainant had an TIA Attack and was therefore, admitted to the Jaslok Hospital for observation.  He was discharged on 23/05/09 with the direction to continue the medical treatment.  The Complainant No.1 paid Rs.22,152/-  to Jaslok Hospital. The documents pertaining to such expenditure are marked at Exh ‘C’.  It is submitted that during 22/05/09 to 02/06/09 total amount spent was Rs.23,866.48. It is submitted that the intimation about having being admitted by the Complainant No.1 to the hospital was given to the Opposite Party No.1 through the Opposite Party No.2 on or about 25/05/09.              

 5)        According to the Complainants, the Complainant No.1 thereafter again admitted on 04/06/09 to Jaslok Hospital till 07/06/09 and for that period he was required to incur hospitalization charges amounting to Rs.38,939/- for medicine bills and Doctor’s fees apart from pathologist charges aggregating to Rs.48311/-. The copies of the said bills are marked as Exh.‘D’ colly.

 6)        It is the case of the Complainants that again the Complainant No.1 was required to be admitted on 24/10/2009 at Cumballa Hill Hospital and Institute.  After his discharge against medical advise from St. George Hospital.  The Complainant No.1 was discharged on 25/10/2009 from the said hospital after keeping him under observation.  The Complainant No.1 paid Rs.6,021/- to said Cumballa Hill Hospital.  The copy of the bill and other documents issued by the said hospital are marked as Exh.‘E’ (colly.).  According to the Complainants, all the claim papers in respect of the aforesaid claims of the Complainant No.1 are at the time of filing of the complaint wherewith TPA namely M/s. Medicare.  It is submitted that the said papers duly singed by the Complainant No.1 were given to the Opposite Party No.2 for the purpose of completion of the form and lodging the same with the TPA.  The Opposite Party No.2 for the reasons best known to himself failed or neglected to lodge the claim in time with the TPA.  The Opposite Party No.2 ultimately, as per the Complainants lodged the said documents of Complainant No.1 with TPA on 02/02/2010.  It is submitted that the total amount spent by Complainant No.1 on his treatment comes to Rs.90,322.48 to which the Complainant No.1 is entitled to reimburse under the terms of the Mediclaim Policy. 

7)        It is alleged that the Complainant No.2 had undergone laser treatment on two occasions and had her Cataract removed.  An amount of Rs.41,246/- was spent for the said treatment. The copies of the bills and other documents are marked as Exh.‘F’ (colly.).

 8)        According to the Complainants, thereafter in view of the attack cellulites the Complainant No.2 have to under take Doppler Test and was required to be admitted to Cumballa Hill Hospital during the period 05/08/2009 to 15/09/2009 an amount of Rs.34,266/- was spent as Doctor’s fees, Hospitalization charges.  The copies of the said documents such as, bills, etc. are at Exh.‘G’ (colly.).

 9)        It is submitted that thereafter in between 28/07/09 to 05/10/09 an amount of Rs.56,319/- was also spent on the treatment of the Complainant No.2 and she had to undergo surgery during the said period.  The copies of the bills and other documents pertaining to the said expenditure are marked as Exh.‘H’ (colly.).      

 10)      According to the Complainants, the total sum spent on the medical treatment of the Complainant No.2 as mentioned above comes to Rs.1,31,831/-.  It is submitted that all the documents for lodging the claim of Complainant No.2 to the Opposite Party No.1 were handed over to Opposite Party No.2. The said papers alongwith claim form duly singed by the Complainant No.2 were given to the Opposite Party No.2 for the purpose of completion of the form and lodging the same with the TPA.  The Opposite Party No.2 for the reasons best know to him failed and neglected to lodge the claim in time with the TPA.  According to the Complainant, the Opposite Party No.2 ultimately competed the claim form of the Complainant No.2 and appears to have lodged the same with TPA on 02/02/2010. The total sum spent by both the Complainants works out to Rs.2,22,153.48.

 11)      It is alleged that even though numerous phone calls and letters addressed to the Opposite Party No.1 by the Complainants dtd.11/12/2009 (colly.).  No reasons for delay were forwarded to the Complainant by the Opposite Party No.1. However, on 15/01/2010, the Complainant received a letter from Opposite Party No.1 that it had not received any documents from the Complainants and they are unable to process the claim.  It is also submitted that thereafter on 15/03/2010 the Opposite Party No.1 sent repudiation letter which is marked as Exh.‘K’.  It is alleged that the Opposite Parties have indulged in unfair trade practices and gross negligence in service.  It is alleged that the Complainants are entitled for mediclaim policy benefits.  The Complainants therefore, prayed that the Opposite Parties be directed to pay the amounts as claimed in the reliefs clause of the complaint and mentioned in para 1 of this order.

 12)      The Opposite Party No.1 by its written statement contested the claim.  It is contended that the complaint is false, frivolous and liable to be dismissed as no cause of action has arisen against the Opposite Party No.1 as the claim was not submitted as per clause no.5.1, 5.3 & 5.4 of the policy.  It is denied that the Opposite Party No.1 has wrongly repudiated the genuine claim of the Complainants and the Opposite Party No.2 is an employee of Opposite Party No.1, and  as  such  the Opposite Party No.1 is liable to the acts of the Opposite Party No.2 for deficiency of service on the part of  Opposite Party No.2.  It is submitted that the Opposite Party No.2 is the agent of the Opposite Party No.1 only for the limited purpose of issuing policies to the customers.  There is no other service that the agent of the Insurance Company is required to perform.  It is contended that the Complainants who are experienced lawyers had handed over the bill to the agent of the Insurance Company, when the policy condition No.5.1 clearly states that “Every notice or communication to be given or made under this policy shall be delivered in writing at the address of the TPA Office as shown in the schedule.”  According to the Opposite Party No.1, therefore, the allegation that the original bills were handed over to the Opposite Party No.2 is not proper and acceptable.  It is submitted that the Complainants could have visited Insurance Office and given the notice of the claim.  It is contended that as per condition No.5.3 & 5.4 of the Insurance Policy, the Complainants claims have been treated as “No Claim” for not submitting the relevant documents within 15 days from the date of discharge from the hospital.  It is contended that the contract of insurance cannot be enforced unless the condition are strictly observed.  It is submitted that as the claims of Complainant No.1’s treatment on various occasions in between 22/05/2009 to 25/10/2009 and Complainant No.2’s treatment claims in between 24/06/09 to 25/08/09 were filed by the Complainant on 11/12/2009 the same were not entertained.  It is denied that the Opposite Party No.1 has indulged in unfair trade practices and gross deficiency of service and failed to observe the conditions of the policy.  According to the Opposite Party No.1, it is entirely the failure and negligence as well as gross violation of policy conditions on the part of the Complainants.  It is denied that the Opposite Party No.1 has acted in unlawful, illegal and unfair manner while repudiating the claim of the Complainants.  It is submitted that the complaint deserves to be dismissed with cost.

 13)      The Opposite Party No.2 though served remained absent. The complaint therefore, proceeded ex-parte against Opposite Party No.2. The Complainant No.1 filed affidavit of evidence.  The Divisional Manager of Opposite Party No.1 - Sushil Patil filed his affidavit of evidence.  Both the parties filed their written argument.  We heard the oral argument of Complainant No.1 for the Complainants.  The Advocate for the Opposite Party No.1 remained absent though the notice was issued to her and did not argue on behalf of the Opposite Party No.1.  On the basis of the oral argument of Complainant No.1 and the written arguments of both sides we have proceeded to decide this complaint.

 14)      While considering the rival contentions it is necessary to see that the Complainants have obtained the mediclaim policy for the period 14/01/09 to 13/01/2010 from Agency/Broker Code 1902 which is mentioned in the policy document placed on record at Exh.‘A’. The Complainants have obtained the information under RTI Act, 2005 from the Opposite Party which is filed by the Complainant alongwith his affidavit dtd.19/09/2011, wherein it is mentioned that the Agency Code 1902 was that of Mrs. Shyamali Shinde.  The Complainant has stated that said Shyamali Shinde is the sister of Opposite Party No.2 who is in the employment of the Opposite Party No.1.  The Complainant has placed on record the information supplied by the Opposite Party No.1 vide its letter dtd.05/08/2011 wherein it is mentioned that the Opposite Party No.2 is serving with the Opposite Party No.1 from 04/07/96 till the aforesaid date and the Agent Code Number of Mrs. Shyamali Shinde (Shyamali Bane) is 1902.  The Complainant No.1 by pointing out the above information and documents submitted that the Complainants have specifically contended that all the documents regarding the medical treatment obtained by each Complainant were handed over to the Opposite Party No.2 to lodge the claim and to seek reimbursement for the expenses incurred by them is tried to prove and establish as alleged. It is pertinent to note that the Opposite Party No.1 vide its letter dtd.15/01/2010 addressed to the Complainant No.1 in reply to the Complainant No.1’s letter dtd.11/12/2009 which is filed at Exh.‘I’ to the complaint informed that the Opposite Party has not received any claimed documents from the Complainant side and therefore, they are unable to process his claim. However, by letter at Exh.‘K’ filed with the complaint, dtd.15/03/2010 the Opposite Party No.1.  The Opposite Party No.1 by quoting the claims of Complainant No.1 & 2 with the details of hospitals and date of admission as well as date of discharge informed to the Complainant No.1 that the Opposite Party regret to inform him that his claim are treated as “No Claim” for the reason for not submitting related documents with 15 days from the date of discharge from the hospital (refer policy condition no.5.3 & 5.4).  It is pertinent to note that the letter dtd.15/03/2010 at Exh.‘K’ the Opposite Party No.1 has not specifically mentioned the date on which the Opposite Party No.1 has received the above claims of expenditure incurred by the Complainants for their treatment at various hospitals.  However, in the written statement in para 5 it is mentioned that the claim was filed by the Complainant on 11/12/2009.  The Complainants by producing the document obtained under RTI Act, 2005 tried to establish that they were not negligent in submitting their claim and tried to abide by the terms and conditions of the policy.  Even assuming that as per the contention of the Opposite Party No.1 in written statement the claims submitted by the Complainants were filed on 11/12/09, it cannot be held liable for repudiation as per clause 5.4. Because as per the condition no.5.4 “All supporting documents relating to the claim must be filed by the TPA within 7 days from the date of discharge from the hospital.  In case of post hospitalization treatment (limited to 60 days), all claim documents should be submitted within 7 days after completion of such treatment.”  There is also note to clause 5.4 which says that “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 which the Insured was placed it was not possible for him or any other person to give such notice or file claim within the prescribed time limit.”  In the present case and from the pleadings from the Complainants which is not disputed by the Opposite Party No.1. The Complainant No.1 was under treatment at Jaslok Hospital in between 22/05/09 to 23/05/09 then 04/06/09 to 06/06/09.  Thereafter, he was under treatment at Cumballa Hospital from 24/10/09 to 25/10/09.  It appears that he was treated for chest pain and TIA Attack.  At the relevant time his age was about 75 years.  The Complainant No.2 was also under treatment for 24/06/09 to 29/06/09 at Cumballa Hospital and 29/06/09 at Bombay City Eye Hospital. Thereafter, again she was admitted at Cumballa Hospital on 23/08/09 to 25/08/09.  The Complainant No.2 was also at the relevant time aged about 67 years.  Considering these facts in our view the repudiation communicated by the Opposite Party No.1 to the Complainant No.1 vide letter dtd.15/03/2010 in view of policy clause no.5.3 & 5.4 is not justifiable.  As in the present case both the Complainants remained hospitalized on number of times for different periods for their severe health problems and by considering the “NOTE” in clause no.5.4 referred above the Opposite Party ought to have waived the condition of limitation mentioned in clause no.5.4 because such discretion is given to the Opposite Party No.1 under the policy clause.  The Hon’ble National Commission in the similar type of case in Revision Petition No.2559/2008 decided on 28/05/2013 in the case of Oriental Insurance Co. Ltd. V/s. Smt. Shobha Mukhia, in para 9 of its order held that it would be proper to waive the condition of limitation mentioned in clause 5.4 of the policy.  Furthermore, the Insurance Regulatory and Development Authority in the circular dtd.20/09/2011 issued to all Life Insurers and Non Life Insurers have specifically informed that it has been receiving several complaints that the claim are being rejected on the ground of delayed submission of intimation and documents.  However, this condition should not be prevent settlement of denying claims particularly when there is delay in intimation or in submission of documents due to unavoidable circumstances. It is also directed that the Insurers must not repudiate such claims unless and until the reason of delay are specifically ascertained, recorded and the Insurers should satisfied themselves that the delayed claims would have other been rejected even if reported in time.  Considering the discussion made above and it appears that the Opposite Party No.1did not ascertain the reasons mentioned in the letter issued by the Complainant No.1 dtd.11/12/2009 at Exh.‘J’ as to whether the claim documents were submitted to Opposite Party No.2 who is the employee of Opposite Party No.1 as well as who is the brother of the agent of the Complainants insurance policy. We therefore, hold that the claim made by the Complainants and supported by the medical bills as well as hospital bills is liable to be granted towards the treatment of the Complainant No.1 of Rs.90,323/- and Rs.1,31,832/- towards the treatment of the Complainant No.2.  In total 2,22,155/- with interest @ 6% p.a. from 11/12/2009 till its realization.  The Complainants are entitled for compensation from the Opposite Party No.1 towards mental agony and hardship caused to them due to adopting unfair trade practice to the tune of Rs.5,000/- and cost of Rs.3,000/-.  The Opposite Party No.2 cannot be held personally liable for the claim made by the Complainants in the complaint. In the result we pass the following order–

O R D E R

i.                    Complaint No.325/2010 is partly allowed against Opposite Party No.1 and rejected against Opposite Party No.2.

ii.                 Opposite Party No.1 is directed to pay total amount of Rs.2,22,155/- (Rs. Two Lacs Twenty Two Thousand One Hundred Fifty Five Only) to the Complainants towards the treatment of the Complainants with interest @ 6% p.a. form 11/12/2009 till its realization.

iii.              Opposite Party No.1 is directed to pay Rs.5,000/- (Rs. Five Thousand Only) as compensation to the Complainants towards unfair trade practice adopted against the Complainants.

iv.               Opposite Party No.1 is directed to pay cost of Rs.3,000/-(Rs. Three Thousand Only) to the Complainants towards this proceeding.  

v.                  The Opposite Party No.1 is directed to comply with the above order  within one month from the date of service of this order.  

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