State Consumer Disputes Redressal Commission
The New India Assurance Co Ltd vs Shri Anand V Fedane on 26 September, 2018
1 (A/15/1205)
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
MAHARASHTRA, MUMBAI
FIRST APPEAL NO.A/15/1205
(Arisen out of Judgment and order dated 07/05/2015 passed by Ld. Mumbai
Suburban District Forum in complaint No.28 of 2011)
The New India Assurance Co. Ltd.
Divisional Manager
New India Centre,
D.O.120400, 11th floor,
17/A, Co-operage Road,
Mumbai 400 001. Appellant(s)
versus
1. Shri.Anand V.Fedane
701, Home Court,
Lokhandwala Complex,
Andheri(W),
Mumbai 400 053.
2. Veejhay C.Shah
Managing Director,
Fun N Joy
(A division of Charlette
Agrotech Ltd.)
2nd floor, Patel House,
Near Bank of Baroda,
75, M.G.Cross Road,
Vile Parle (E),
Mumbai 400 057.
3. The Chairman
Dhanlaxmi Co.Op.Credit
Society Ltd.,
A-11, Narendra Apartments,
Gajdhar Bandh Road,
Khar (W),
Mumbai 400 052. Respondent(s)
BEFORE:
Hon'ble Mr.D.R.Shirasao, Presiding Judicial Member
Hon'ble Mr.A.K.Zade, Member
2 (A/15/1205)
PRESENT:
For the Advocate Smt.S.S.Dwivedi
Appellant(s):
For the
Respondent(s): Advocate Shri.Vasant Bhange for
Respondent No.1
None present for respondent Nos.2 and 3
ORDER
Per: Hon'ble Mr.D.R.Shirasao, Presiding Judicial Member
[1] Being aggrieved by the Judgment and Order passed by the Ld.Mumbai Suburban District Forum on 07/05/2015 directing the opponents to pay medical claim of complainant of Rs.4,03,660/- alongwith interest on that amount alongwith costs and compensation opponent No.2 has preferred this appeal. Brief facts of the case are as under-
[2] Complainant had filed complaint against the opponents for getting medical claim of Rs.5,77,853/- in respect of him and his wife alongwith costs and compensation. Complainant submitted that opponent No.3 Dhanlaxmi Co.Op.Credit Society Ltd. had taken cover of Insurance Policy cum Mediclaim policy for the members of their society. Complainant's son Mr.Rajiv Fedane was the member of Dhanalaxmi Co.Op.Credit Society Ltd. He had taken that policy for himself and his family members including his father and mother. Complainant submitted that since last 15 yrs. he was policy holder of opponent No.2 Insurance Company. He had taken mediclaim policy from them without any break. Policy was for the period from January to December. In the year 2010 also he had taken this policy from opponent No.2 by depositing amount of premium of Rs.42,600/- for the same with opponent No.1 who had taken this policy for the members of Dhanlaxmi Co.Op.Credit Society. Complainant submitted that in the year 2010 complainant had already deposited the amount of premium with opponent No.1 on 24/12/2009. Opponent No.1 had deposited consolidated cheque in respect of all the members of the society to opponent No.1 on 3 (A/15/1205) 01/01/2010 of amount of Rs.15,00,000/- However, when complainant had received insurance certificate from opponent No.2 he revealed that insurance cover is given for the period from 04/03/2010 to 03/03/2011. Complainant had made grievance about the same with opponent No.1 and opponent No.1 had promised complainant that the period of cover will be changed by opponent No.2. However, opponent No.2 had not changed the same.
[3] Complainant submitted that on 06/06/2010 he was required to undergo Angiography in P.D.Hinduja Hospital and for that purpose he was required to spend Rs.31,303/-. Subsequently he had undergone Bypass surgery on 18/06/2010 and for that purpose he paid amount of Rs.3,67,378/- He also incurred amount of Rs.4979/- for post operation expenses. Thus he was required to make total expenditure of Rs.4,03,660/- for his illness. Complainant further submitted that on 29/01/2010 and 08/02/2010 his wife had undergone Cataract operation on her eyes. For that purpose he was required to make total expenditure of Rs.1,23,193/-. Complainant submitted that he had made insurance claim in respect of himself and his wife with opponent No.2. However, opponent No.2 had rejected both the claims on different grounds. Hence, complainant filed this complaint against opponents for getting total insurance claim of Rs.5,77,853/- from opponents alongwith interest on that amount alongwith costs and compensation. [4] Opponent No.1 contested complaint by filing their written version on record. They submitted that the contract of insurance policy was in between complainant and opponent No.2. Opponent No.1 had only taken insurance policy for complainant from opponent No.2. Opponent No.2 is liable to pay the insurance claim of complainant. They submitted that they have not given any deficiency in service to complainant and hence complaint filed against them be dismissed.
[5] Opponent No.2 contested complaint by filing their written version on record. They submitted that complainant had taken insurance policy from opponent No.2 and the same was for the period from 04/03/2010 to 4 (A/15/1205) 03/03/2011. The cataract operation of wife of complainant had taken place on 29/01/2010 and 08/02/2010. During this period complainant was not having insurance cover and hence complainant is not entitled to get this insurance claim from opponent. They also submitted that from medical papers of complainant it has become clear that complainant was having pre- disease of hypertension, diabetes, coronary artery etc. Because of these diseases he was required to undergo angiography. They submitted that if any disease is arising out of the pre-existing disease then for such disease policy is excluded for initial four years as per the terms and conditions of the policy at Sr.No.4.1. Hence, they submitted that complainant was not entitled to get insurance claim in respect of this disease for initial period of four years and hence Insurance Company had rightly repudiated the claim of complainant. Hence, they submitted that they have not given any deficiency in service to the complainant, hence complaint filed by complainant be dismissed.
[6] Opponent No.3 had not contested the complaint.
[7] Considering rival contentions of parties, evidence adduced by them on record and documents filed on record Ld.District Forum had come to conclusion that complainant cannot get continuous cover of Insurance Policy. Ld.District Forum had further considered that the cataract operation of wife of complainant had taken place on 29/01/2010 and 08/02/2010 and during this period complainant was not having any insurance cover. However, Ld.District Forum had considered that opponent No.2 by not giving insurance claim of Rs.4,03,660/- to the complainant in respect of his angiography has given deficiency in service to the complainant. Hence, Ld.District Forum directed the opponent to give this amount to the complainant alongwith interest on that amount alongwith costs and compensation. Being aggrieved by the same opponent No.2 Insurance Company has preferred this appeal.
[8] Heard Ld.Advocate appearing for appellant/opponent No.2. She submitted that admittedly insurance policy was for the period from 5 (A/15/1205) 04/03/2010 to 03/03/2011. Cataract operation of wife of complainant had taken place on 29/01/2010 and 08/02/2010. During this period complainant was not having insurance cover and hence Ld.District Forum has rightly rejected claim of complainant in respect of this operation. She submitted that however Ld.District Forum had directed appellant/opponent No.2 to give insurance claim of complainant in respect of his angiography. She submitted that however from medical papers of complainant it has become clear that complainant was having old history of hypertension since last 12 yrs, coronary artery disease inferior wall myocardial infarction since last 10 yrs and DM since 2 years as per the certificate dated 23/09/2010 issued by the P.D.Hinduja Hospital. She submitted that because of all these pre- existing diseases complainant had to undergo angiography. She submitted that as per rule 4.1 of terms and conditions of insurance policy if any disease is occurring because of the pre-existing disease then insurance cover will not be available for these diseases for initial period of four years. Hence, she submitted that as it was the first policy of complainant with opponent No.2 and complainant had no continuous cover of insurance, complainant is not entitled to get this claim from opponent. Opponent had rightly repudiated claim of complainant on this ground. However, Ld.District Forum had not considered the same and directed the opponent to pay this insurance claim to the complainant alongwith other incidental charges alongwith costs and compensation. Hence, she submitted that order passed by the Ld.District Forum be set aside by allowing this appeal.
[9] Heard Ld.Advocate appearing for respondent No.1/complainant. He submitted that complainant was taking insurance policy from opponent No.2 since last 15 years. Opponent No.1 had taken insurance policy for all members of opponent No.3. Opponent No.1 had collected amount of premium from all the members of opponent No.3 and had deposited that amount with opponent No.2 on 01/01/2010. However, opponent No.2 had not given insurance policy to all the members of the society including complainant from January 2010 to December 2010. On the contrary they 6 (A/15/1205) had given insurance policy to the complainant and other members of society for the period from 04/03/2010 to 03/03/2011. He submitted that as opponent No.2 had already received amount of premium from opponent No.1 they must have given insurance cover to the complainant and other members from January 2010 to December 2010. He submitted that if this insurance cover is given to the complainant then complainant is entitled to get medical claim in respect of his angiography. He submitted that because of the fault of opponent Nos.1 and 2 complainant should not suffer and he should get his insurance claim. Ld.District Forum had considered the same rightly and directed the opponent No.2 to give insurance claim to the complainant in respect of angiography. Hence, he submitted that order passed by the Ld.District Forum is to be confirmed by dismissing this appeal.
[10] Perused record of the case, evidence adduced by the parties on record and documents filed by them on record. On perusal of the same it has become clear that opponent No.1 had taken insurance policy in respect of all the members of opponent No.3 from opponent No.2. It appears that complainant was taking insurance policy from opponent No.2 since last 15 years. He had taken insurance policy from opponent No.2 in the year 2009. In the year 2010 complainant had already deposited amount of premium with opponent No.1 and opponent No.1 had deposited consolidated amount of all the members of Rs.15,00,000/- with opponent No.2 on 01/01/2010. Opponent No.2 has not denied this fact. It is also not disputed that premium given by complainant was included in that amount. However, opponent No.2 had given insurance cover to the complainant from 04/03/2010 to 03/03/2011. For that purpose opponent No.2 has given reason that the final list of all the members alongwith their particulars were not given by opponent No.2 to them and hence they could not give final insurance policy to the members of opponent No.3. Opponent No.2 submitted that when they had received complete information and upto date list of members of opponent No.3 from opponent No.1, thereafter they had given group 7 (A/15/1205) insurance to all the members of opponent No.3 and hence that insurance policy was given for the period from 04/03/2010 to 03/03/2011. Explanation given by opponent No.2 in respect of giving insurance policy from 04/03/2010 is accepted by the Ld.District Forum and considered that complainant cannot get continuous cover of insurance. Complainant has not preferred any appeal against that order. Hence, the decision taken by the Ld.District Forum in that respect considering that complainant cannot get continuous insurance cover has become final.
[11] As per the insurance policy the insurance cover is given for the period 04/03/2010 to 03/03/2011. Cataract operation of wife of complainant had taken place on 29/01/2010 and 08/02/2010. Admittedly during this period complainant was not having insurance cover. Hence, complainant was not entitled to get insurance claim in respect of cataract operation of his wife. Ld.District Forum had rightly rejected claim of complainant in that respect. Complainant has not preferred any appeal against that order and accepted the same.
[12] On perusal of record it has become clear that complainant had to undergo angiography in Hinduja Hospital on 06/06/2010. Further he had to undergo by-pass surgery in the same hospital on 18/06/2010. He was required to make total expenditure of Rs.4,03,660/- for his illness. Complainant had made insurance claim in respect of this amount with opponent No.2. However, opponent No.2 has rejected the claim of complainant on the basis of terms and conditions of insurance policy at Sr.No.4.1. It is the contention of Ld.Advocate appearing for appellant/ opponent No.2 that complainant was known patient of hypertension since last 12 years, coronary artery disease inferior wall myocardial infarction since last 10 yrs and DM since 2 years. It is her contention that only because of this, complainant required to undergo angiography on 06/06/2010. It is her contention that if any disease had taken place because of old existing disease then insurance cover is excluded for the same for initial period of four years. For that purpose, she relied on the terms and conditions of 8 (A/15/1205) insurance policy at Sr.No.4.1. On perusal of medical papers of complainant it appears that he was suffering from hypertension and other diseases since last many years. However, there is no evidence on record that only because of pre-existing diseases complainant was required to undergo angiography on 06/06/2010. We are of the opinion that complainant was required to undergo angiography only because of this disease is required to be proved by the opponent No.2 as opponent No.2 has repudiated claim of complainant on this ground. However, opponent No.2 has not produced any evidence in that respect on record. Merely complainant was suffering from hypertension and other diseases, it cannot be presumed that he had to undergo angiography only because of pre-existing disease unless there is opinion given in that respect by consulting doctor of complainant. On the contrary, on perusal of medical papers of complainant it has become clear that he was not on continuous medication for this reason. It also appears probable that angiography of complainant may not be because of pre- existing disease of complainant. Looking to these facts of the case we are of the opinion that the rejection of the claim of complainant in this respect by the opponent No.2 is not proper. Hence, complainant is entitled to get the insurance claim in respect of his angiography. Accordingly the Ld.District Forum it appears that Ld.District Forum had directed the opponent No.2 to pay amount of Rs.4,03,660/- to the complainant in respect of his medical claim. We have already considered that the medical claim of wife of complainant cannot be given as during the period when she had undergone cataract operation medical claim was not available to the complainant. Amount of Rs.1,23,193/- is claimed by the complainant in respect of his cataract operation of his wife. Hence, complainant is not entitled to get this amount. However, the learned District Forum has directed opponent Nos.1 and 3 to give this amount to complainant. Opponent Nos.1 and 3 have not preferred any appeal against the order passed by the learned District Forum. Hence, we are of the opinion that the order passed by the learned District Forum against opponent No.2 to pay the amount of Rs.4,03,660/- to 9 (A/15/1205) complainant alongwith interest on that amount alongwith costs and compensation is legal and correct. Hence, appeal is to be dismissed. Hence, we proceed to pass the following order-
ORDER
1] Appeal is dismissed.
2] Parties to bear their own costs.
Certified copy of this order be supplied to both the parties.
Pronounced on 26th September, 2018.
[D.R.SHIRASAO] PRESIDING JUDICIAL MEMBER [A.K.ZADE] MEMBER rsc