State Consumer Disputes Redressal Commission
Mrs.Savita Anant Talathi, vs The New India Assurance Co. Ltd., on 16 August, 2010
BEFORE THE HON
BEFORE THE HONBLE STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI
First Appeal No.17/2010
Date of filing: 30/12/2009
In Consumer Complaint No.46/2009
Date of order: 16/08/2010
District Consumer Disputes Redressal Forum,
Raigad.
Mrs.Savita Anant Talathi,
R/at Amar Peye,
Mahatma Gandhi Road,
Taluka-Mahad, Dist. Raigad.
..Appellant/
(Org. Complainant)
V/s.
The New India Assurance Co. Ltd.,
Shree Baug, Taluka Alibaug,
District Raigad.
..Respondent/
(Org. Opp. Party)
Quorum:
Shri P. N. Kashalkar, Honble Presiding Judicial Member.
Smt. S. P. Lale, Honble Member.
Present:
Mr.S.S. Bhide, Advocate for the Appellant.
Mr.A.S. Vidyarthi, Advocate for the Respondent.
-: O R D E R :-
Per Shri P.N. Kashalkar, Honble Presiding Judicial Member:
Heard both Counsels.(1)
This appeal is filed by original Complainant whose complaint stood dismissed having been filed beyond the period of limitation, by the District consumer Disputes Redressal Forum, by its impugned judgment and order dated 14.10.2009 in Complaint No.46/2009.(2)
Facts to the extent material may be stated as under:
Complainant is resident of Mahad, District Raigad . She had filed consumer complaint against New India Assurance Company Ltd., alleging that she had taken medicclaim policy in 2001 for herself and for her husband and assured sum was Rs.3,00,000/-. The policy was issued after thorough medical check-up made by panel Doctors of the Insurance Company. She was renewing the policy every year. In the year 2004 it so happened that the Complainant Ms.Savita Talathi had some chest pain, therefore, she was admitted in Pune Hospital & Research Centre. Since it was found that there was blockage of veins Doctor advised her coronary artery by-pass graft. That was done in the said hospital. She was required to incur Rs.2,31,484/-. After discharge she had lodged claim under mediclaim policy with the Opposite Party Insurance Company. The Opposite Party Insurance Company rejected the claim stating that Complainant was suffering from diabetes mellitus right from the date she had taken the policy. She had then sent letters and registered notice through her Advocate, but the claim was repudiated. She had even approached Insurance Ombudsman. Insurance Ombudsman had also informed her after hearing her that the claim was rightly repudiated. That order was passed on 24.10.2008. Not satisfied with the said repudiation made by various authorities she then filed consumer complaint in the Forum below. She has claimed an amount of Rs.2,31,486/- towards medical expenses incurred by her. In her complaint she had also asked for compensation of Rs.50,000/- and Rs.10,000/- towards cost of the proceeding.(3)
Opposite Party filed written statement and denied allegations made by the Complainant. According to Opposite Party it was not guilty of deficiency in service of any kind. Opposite Party specifically pleaded that complaint as filed by the Complainant is absolutely barred by limitation since it was filed beyond the period of two years from the date of discharge of the Complainant from the Hospital. Opposite Party also pleaded that the claim was rightly repudiated since Complainant was suffering from diabetes mellitus and she had suppressed this material ailment while purchasing the policy. Opposite Party therefore pleaded that complaint should be dismissed with costs.(4)
The Forum below was required to decide whether the complaint as filed by the Complainant was barred by limitation. Forum below gave finding that the complaint was itself barred by limitation and therefore, dismissed the complaint. Being aggrieved by the dismissal of complaint the original Complainant has filed this appeal.(5)
We heard submissions of Advocate Mr.Bhide, for the Appellant and Mr.Vidyarthi, Advocate for the Respondent.(6)
We are finding that the order passed by the Forum below is surely tenable in law in as much as Complainant was admitted in Pune Medical and Research Centre in the year 2004. She had lodged the claim in the year 2005. The claim was repudiated by the TPA on 18.02.2005 and the consumer complaint came to be filed as late as on 09.04.2009. It was surely not within the period of two years since the accrual of cause of action.(7)
Mr. Bhide, Ld. Counsel for the appellant vehemently submitted before us that cause of action arose to the Complainant/Appellant only when the Insurance Ombudsman repudiated her claim by its order dated 24.10.2008 and since then within two years the Appellant had filed the consumer complaint. However, the letter of repudiation is dated 18.02.2005. It was tried to be contended by the Advocate Mr.Bhide for the Appellant that this repudiation letter of 2005 was sent by third party agency. In the Mediclaim Policy issued for the year 2003-04 and in 2004-05 of Insurance Company specifically mentioned name of TPA as Paramount Health Services Pvt. Ltd., whereas repudiation was sent by MDIndia Healthcare Services (P) Ltd. and therefore, this repudiation letter could not have even acted upon by the Forum below. Moreover, he further submitted that his client had not received any repudiation letter directly from the Respondent Insurance Company. That apart, countering this argument Mr.Vidyarthi submitted that the consumer complaint must be filed within two years from the date of accrual of cause of action and date of accrual of cause of action in the mediclaim policy would be date of discharge from the hospital of the particular patient. In the instant case the Appellant was required to undergo lower artery graft in Pune Medical and Research Centre and she was discharged from the said hospital on 23.11.2004. Mr. Vidyarthi therefore rightly argued that the cause of action accrued to the Complainant from the date of discharge, i.e. from 23.11.2004 and all subsequent letters and correspondence between the Complainant/appellant on the one hand Insurance Co. or its TPA on the other hand will be immaterial, in view of recent Honble Supreme Court ruling. In the case of Kandimalla Raghavaiah & Co. V/s. National Insurance Co. Ltd. & Anr., reported in III (2009) CPJ 75 (SC), it has been clearly laid down by the Honble Supreme Court that cause of action for filing consumer complaint is the date of fire wherein the insured premises was totally burnt and not from the date of repudiation letter or other dates. Only letters and counter letters were sent by the Complainant to the Opposite Party. In the instant case for the Mediclaim cause of action arose only when patient gets admitted in the hospital and patient gets discharged from the hospital. It is primarily from the date of discharge from the hospital that cause of action arose for the Appellant/Complainant. Since the Appellant herein was discharged on 23.11.2004 she should have filed the complaint within two years, i.e. on or before 22.11.2006. Since this complaint came to be filed in the year 2009, it was absolutely barred by limitation . We are finding that the order passed by the Forum below in the circumstances is just, proper and it is sustainable in law. We cannot give different view than what has been taken rightly by the Forum below while dismissing the complaint on the point of limitation. Said dismissal order will have to be upheld. Hence, we pass the following order:
O R D E R
(i) Appeal stands dismissed.
(ii) Parties to bear their own cost.
(iii) Inform the parties accordingly.
(S.P. Lale) (P. N. Kashalkar) Member Presiding Judicial Member