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

  1)        By this complaint the Complainant has prayed the Opposite Parties be directed to pay Rs.2,37,131/- towards the mediclaim lodged on 17/07/2010 to the Opposite Party No.2.  It is also prayed that the Opposite Parties be directed to pay Rs.25,000/- towards mental torture, harassment and inconvenience suffered by the Complainant for deliberate default in providing the services to the Complainant.  It is also prayed to grant an amount of Rs.41,497/- towards interest for the period 01/08/2010 till 22/06/2011 @ 21% p.a. on the amount of Rs.2,37,131/- by the Opposite Parties and further interest as deemed fit from the date of filing of the complaint till realization of the amount awarded by this Forum. It is also prayed that amount of Rs.20,000/- be granted towards Advocate’s fees and Rs.5,000/- towards the cost of this proceeding against the Opposite Parties.

 2)        According to the Complainant, he obtained the Mediclaim Policy from the Opposite Party No.1 for the period 15/01/2010 to 14/01/2011 as per Exh.‘A-1’.  The premium receipt of Rs.12,798/- in respect of the said policy is at Exh.‘A-2’.  The Complainant had obtained the Mediclaim Policy since for more than 10 years from the Opposite Party No.1 and renewed the same without any gap. 

 3)        According to the Complainant, in May, 2010 the Complainant suffered pain in  abdomen.  On diagnosis it was found that he was having Billary Colic and on advice of Dr. Saumil Shah, he was admitted on 01/06/2010 at Lilavati Hospital, Bandra West, Mumbai for treatment of the said disease.  There he was operated and was discharged from the hospital on 05/06/2010.  The copies of hospitalization documents and the prescription given by Dr. S. Shah dtd.27/05/2010 and discharge card are filed at Exh. ‘B’ & ‘C’. 

 4)        According to the Complainant, during post surgery one of his vocal cord got paralyzed due to which his voice quality had detroited drastically for which he was referred to Dr. Sanjay Kapadia i.e. ENT Specialist based in Lilavati Hospital who advised the Complainant further post surgery treatment.  The Complainant also took second opinion of Dr. Jayant Gandhi (ENT Specialist) and who provided treatment for vocal cord.  The said post hospitalization treatment was continued till 15/07/2010.  Dr. Jayant Gandhi on 15/07/2010 told the Complainant that he has recovered 90% and no further treatment will be necessary.  The said fact has been certified by Dr. Saumil Shah vide his letter dtd.18/09/2010.  The copy of which is at Exh.‘D’.

 5)        The Complainant on or about 17/07/2010 i.e. within 7 days of post hospitalization treatment being completed lodged the claim for all the treatment which he had obtained vide claim No.5452101154779 for Rs.2,37,131/- to the Opposite Parties alongwith all relevant papers. According to the Complainant, thereafter, he visited to the office of the Opposite Party for enquiry of the status of his claim.  The Officer of the Opposite Party informed that he should check the claim status on their website.  It is submitted that on searching on the website of the Opposite Parties on 31/07/2010 the Complainant came to know that his claim was rejected by the Opposite Parties in view of the clause 5.4 of the policy. The copy of the said communication dtd.31/07/2010 whereby the Opposite Parties rejected the claim of the Complainant is filed at Exh.‘E’.  According to the Complainant, the claim was lodged adhering to the clause No.5.4 & 5.5 of the policy on 17/07/2010. The Opposite Parties however, wrongly rejected the claim of the Complainant.  The said act on the part of the Opposite Parties is illegal and contrary to the terms of the policy which amounts to gross deficiency of service on their part.

 6)        The Complainant issued notice through Advocate dtd.28/09/2010.  The copy of which is marked at Exh.‘F’.  Then again the Complainant made correspondence with the Opposite Parties vide letter dtd.29/01/2011 and 13/05/2011.  The copies of which are at Exh.‘G’ & ‘H’. It is submitted that the Opposite Parties are negligent in providing service to the customer and act against the interest of bonafide policy holder.  The Complainant therefore, prayed for the reliefs as mentioned in para 1 of this order. 

 7)        The Opposite Party No.2 though served remained absent. The complaint therefore, proceeded ex-parte against Opposite Party No.2.  However, on 25/08/2011 the Opposite Parties No.1 & 2 appeared through Advocate – Sanil and filed Vakalatnama.  The Opposite Party No.1 was granted time to file written statement till 11/10/2010.  The Opposite Party No.1 did not file written statement on the said date and the matter was fixed for the affidavit and written argument of the Complainant.  The Opposite Party No.1 thereafter filed application to accept the written statement by setting aside ‘No Written Statement order’, however, the said application was rejected by order dtd.04/01/2012. The said order was challenged by the Opposite Party No.1 before the Hon’ble State Commission.  The Hon’ State Commission however, rejected the Revision Petition No.33 of 2012 vide order dtd.03/05/2012.

 8)        The Complainant filed affidavit of evidence.  The Complainant has also filed written argument. The advocate for the Opposite Party Shri. Sanil was allowed to make his oral submission/argument.  We heard Smt. Sneha Bohara, the Ld.Advocate for the Complainant and Shri. K.C. Sanil, the Ld.Advocate for the Opposite Parties.  Smt. Bohara Advocate submitted that the Opposite Parties wrongly rejected the claim lodged by the Complainant on technical ground as per the document at Exh.‘E’ issued by the Opposite Parties on their website relying upon exclusion clause 5.4 of the policy document. She made submission that the Complainant has obtained the mediclaim polices from the year 2002-03 till 2012-13 from the Opposite Parties. The copies of which are placed on record vide application dtd.22/03/2013 before this Forum.  She made submission that there is no violation on the part of the Complainant while submitting the claim to the Opposite Parties. She also submitted that the Complainant was admitted in Lilavati Hospital from 01/06/2010 to 05/06/2010 as per Exh.‘C’. The surgery was performed on her on 02/06/2010 thereafter, he was advised  medical treatment with follow up to 3 weeks.  She submitted that Dr. Saumil Shah by letter dtd.18/09/2010 has certified that follow up treatment was going on to the Complainant after discharge from the hospital about 3 weeks.  The advocate for the Complainant submitted that considering the said fact the Opposite Parties ought to have allowed the claim lodged by the Complainant even as provided under clause 5.4 of the policy.  She submitted that the rejection of the claim made by the Opposite Party is totally wrong and the same is nothing but deficiency in service on the part of the Opposite Parties. She made submission that such technical attitude of the Opposite Party is nothing but the unfair trade practice adopted by the Opposite Parties.  She made submission to avoid such attitude by the Insurance Companies, recently the Insurance Regulatory and Development Authority issued circular dtd.20/09/2011 to all Life Insurers and Non Life Insurers and informed that it has been receiving several complaints that claim are being rejected on the ground of delayed submission of intimation and documents.  She also pointed out that in the said circular it is intimated that the Insurers decision to reject such claims shall be based on sound logic and valid grounds and it may be noted that such limitation clause does not work in isolation and it is not absolute.  It is also advised that the insurers must not repudiate such claims unless and until the reason for delay are specifically ascertained, recorded and the Insurers should satisfy themselves that the delayed claim would have been rejected even if reported in time.  The advocate for the Complainant thus, submitted that the claim made be allowed.

 9)        Shri. Sanil, Advocate for the Opposite Parties submitted that the repudiation on the part of the Opposite Party is just and proper in view of the non compliance of clause no.5.4 by the Complainant.  The Complainant has submitted claim papers on 17/07/2010 i.e. almost after 40 days later from the discharge of the hospital and the Divisional Office of the Opposite Party No.1 has rightly concluded that the case of the Complainant does not merit for condonation and the claim of the Complainant will not be approved.

 10)      While considering rival contentions of the parties, it is necessary to be taken into consideration that as per clause no.5.4 of the policy all supporting documents relating to the claim must be filed within 7 days from the date of discharge from the hospital.  In case post hospitalization, treatment (limited to 60 days), all claimed documents should be submitted within 7 days after completion of such treatment.  There is also ‘Note’ to the said clause under which 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.  It was not possible for him or any other person to give such notice or file claimed within the prescribed time limit. The Complainant has produced discharge card at Lilavati Hospital at Exh.‘C’ in which there is mention that the Complainant was referred to  Dr. Sanjay Kapadia for Hoarsenees of Voice (Post Operation).  The Complainant has also produced the certificate issued by Dr. Saumil Shah at Exh.‘D’, dtd.18/09/2010 in which it is mentioned that the surgery was performed on 02/06/2010 by Dr. Jayesh Zaveri, Post Surgery Patient developed Transient Vocal Cods Palsy, due to which he had significant Hoarsenees of Voice.  He was referred to Dr. S. Kapadia (ENT Specialist) and was advised treatment and recommended to follow up post discharge.  From the said certificate it appears that the Complainant had taken medical treatment with follow up for 3 weeks.  The Complainant in the complaint and his affidavit has stated that he had taken follow up treatment upto 15/07/2010 and submitted the mediclaim on 17/07/2010.  The Opposite Party did not bring any record or contrary evidence about the facts alleged by the Complainant.  We therefore, hold that the fact alleged by the Complainant in the complaint and affidavit that he had taken post hospitalization treatment as per the advice of the doctor is supported by the certificate placed on record of Dr. Shah at Exh.‘D’.  The Opposite Parties therefore, in our view ought to have taken into consideration that the claim lodged by the Complainant was not against the terms of policy clause no.5.4.  Eve assuming that it is not within the ambit of the said clause the Opposite Parties ought to have taken into consideration that the discretion of waiver to be used by the Company could have been used while allowing the claim lodged by the Complainant.  We therefore, hold that the rejection of the claim as per Exh.‘E’ and thereafter as per Exh.‘G’ by the Opposite Parties is totally unjustifiable.  It is also pertinent to note that because of such attitude of the Insurance Companies, the Insurance Regulatory and Development Authority vide circular dtd.20/09/2011 which is relied by the advocate for the Complainant was required to advice the Insurers must not repudiate such claims unless and until the reasons of delay are specifically ascertained, recorded and the Insurers should satisfy themselves that the delayed claim would have otherwise been rejected even if reported in time. In the present case the Opposite Parties have not disputed that the Complainant had incurred expenditure for his treatment as mentioned in the claim lodged to the Opposite Parties.  We therefore, hold that on that count also the rejection of the claim by the Opposite Parties is nothing but the deficiency in service on the part of the Opposite Parties. 

 11)      On the point of controversy set out by the Opposite Parties in our view the observations of the Hon’ble Consumer Disputes Redressal Commission, Punjab, reported in 2009 CTJ 1308 in the case of Life Insurance Corporation of India V/s. Smt. Usha Rani are required to be considered while allowing the genuine claim, if rejected by the Insurance Company.  The said observations are as under –

“The right of repudiation cannot be granted to the Insurance Companies on flimsy grounds or sketchy evidence. After all the Insurance Companies insure a person, take the premium and when it comes to making the insurance claim, they find out one or the other ground to reject the claim.  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.”                             

 12)      The Hon’ble Supreme Court also in the case of Oriental Insurance Co. Ltd. V/s. Ozma Shipping Co., reported in 2009 CTJ 1887 have condemned the attitude of the Insurance Companies as under –

Before parting with this case we would like to observe that the insurance companies in genuine and bona fide claims of the insurers should not adopt the attitude of avoiding payments on one pretext or the other. This attitude puts a serious question mark on their credibility and trustworthiness of the insurance companies.  Incidentally by adopting honest approach and attitude the insurance companies would be able to save enormous litigation costs and the interest liability.”

Considering the aforesaid observations as the Opposite Parties have wrongly rejected the claim lodged by the Complainant by pointing out one isolated clause of the policy and without scrutinizing the note in the discharge card as well as the certificate later on forwarded by the Complainant to the Opposite Parties of Dr. Saumil Shah dtd.18/09/2010 alongwith the notice issued through advocate on 28/09/2010. The Opposite Party No.1 thereafter, also without considering the factual position informed the Complainant that his claim will not be approved by letter dtd.13/05/2011 which is at Exh.‘G’.  We therefore, hold that the submissions made by the Ld.Advocate for the Complainant are just and proper.  The Complainant is entitled for the amount of Rs.2,37,131/- towards the medical treatment claim in view of the sum insured as per Exh.‘A-1’ with interest @ 6% p.a. from 17/07/2010 till its realization. The Complainant is entitled for compensation from the Opposite Parties towards the deficiency in service and causing mental torture, harassment and inconvenience to the Complainant to the tune of Rs.8,000/- and cost of this proceeding to the tune of Rs.4,000/-.  In the result the following order is passed –

O R D E R

i.                    Complaint No.205/2011 is partly allowed against Opposite Parties.

ii.                 Opposite Parties are directed to pay Rs.2,37,131/- (Rs. Two Lacs Thirty Seven Thousand One Hundred Thirty One Only) to the Complainant towards the medical treatment charges with interest @ 6% p.a. from 17/07/2010 till its realization.

iii.              Opposite Parties are directed to pay Rs.8,000/- (Rs.Eight Thousand Only) as compensation to the Complainant towards deficiency in service and mental torture and inconvenience caused to the Complainant

iv.               Opposite Parties are directed to pay cost of Rs.4,000/- (Rs. Four Thousand Only) to the Complainant towards this proceeding.  

v.                  The Opposite Parties are 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.