BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE

Dated this the 30th April 2010 COMPLAINT NO. 267/2009 (Admitted on 13.11.2009) PRESENT: 1. Smt. Asha Shetty, B.A. L.L.B., President 2. Sri K. Ramachandra, Member 3. Smt. Lavanya M. Rai, Member BETWEEN: Narayana S. K., S/o S. S. Keshava Bhar, Aged about 49 years, Graduate Assistant Teacher Subhodha High School Arlapadavu, Panaje, Puttur Taluk, Dakshina Kannada District COMPLAINANT (Advocate for the Complainant : Sri Sanjay D.)

VERSUS 1. Manager United India Insurance Co., Prabhu Building, Main Road, Puttur.

(Advocate for Opposite Party No. 1: Sri G. B. Prabhu).

2. Manager T. T. K. Health TPA Pvt. Ltd., # Crimson Court, J Jeevan Bhima Nagar,

Main Road, HAL III Stage, Bangalore 75 ..OPPOSITE PARTIES (Opposite Party No.2: Exparte)

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ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY: 1. The facts of the complaint in brief are as follows: This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain releifs.

The Complainant submits that, he had obtained Individual Health Insurance Policy of the 1st Opposite Party along with his family for the periods from 20.12.2005 to 19.12.2006, 20.12.2006 to 19.12.2007, 01.01.2008 to 31.12.2008, 01.01.2009 to 31.12.2009 for a sum of Rs. 50,000/-.

It is stated that, the Complainant had undergone operation for Inguinal Hernia on 11.04.2009 at Dhanvanthari Hospital Puttur and got discharged on 18.04.2009 and has spent Rs.11,340/- for the operation. It is stated that thereafter the Complainant has preferred a claim to the Opposite Parties along with required documents but the Opposite Parties repudiated the claim which amounts to deficiency. Hence the above complaint is filed by the Complainant before this Honble Forum under Section 12 of the Consumer Protection Act 1986 (hereinafter referred to as `the Act) seeking direction from this Honble Forum to the Opposite Parties to pay Rs.11,340/- along with interest at 12% p. a. from 11.04.2009 till payment and also claimed Rs.30,000/- as compensation and cost of the proceedings.

2. Version notice served to the Opposite Parties by RPAD. Opposite Party No. 1 appeared through their Counsel filed Version. Version Notice served to Opposite Party No.2 by registered post acknowledgement due, the said notice was returned unserved with the endorsement left. Hence we have proceeded exparte as against the Opposite Party No. 2. The returned postal cover placed before the FOR A marked as court document No.1. Opposite Party No.1 contended that there was a break in the policy from 20.12.2007 to 31.12.2007. It is stated that the exclusion clause in the policy made it clear that the waiting period for hernia is two years. Scanning report and histopathology report confirming the diagnosis is required, because of the break in the policy the histopathology report and scanning report assumes importance but the Complainant not produced the same hence the claim was repudiated and contended that there is no deficiency and prayed for dismissal of the complaint. 3. In view of the above said facts, the points now that arise for our consideration in this case are as under:

(i) (ii) (iii)

Whether the Complainant proves that the Opposite Parties committed deficiency in service? If so, whether the Complainant is entitled for the reliefs claimed? What order?

4. In support of the complaint, Sri Narayana S. K., (CW1) filed

affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C11 were marked for the Complainant as listed in the annexure. One Sri V. P. Naik (RW1), Manager of Opposite Party No. 1 filed counter affidavit and answered the interrogatories served on him. Both parties produced notes of arguments along with citation.

We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Honble Forum and answer the points as follows:

Point No. (i) : Affirmative Point No. (ii) & (iii): As per the final order.

REASONS 5. Point No. (1) to (iii): The facts which are not in dispute is that, the Complainant is the holder of Individual Health Insurance Policy, the same has been obtained from the 1st Opposite Party for the period from 20.12.2005 to 19.12.2006, 20.12.2006 to 19.12.2007, 01.01.2008 to 31.12.2008, 01.01.2009 to 31.12.2009 (i.e., Ex C1, C10 and C11). It is also admitted that the Complainant has undergone operation for Inguinal Hernia on 11.04.2009 at Dhanvanthari Hospital Puttur and was discharged on 18.04.2009. Now the point in dispute before this Honble Forum is that, the Opposite Party repudiated the claim for non-production of the scan/ histopathology reports and considered that the disease suffered by the Complainant as pre- existing. When the Opposite Party bases its case on the above suspicious ground the entire burden lies upon the Opposite Party to satisfy the FORA that the disease suffered by the Complainant is a pre-existing one. In other words, when the Opposite Party invokes the exclusion clause or any specific ground on the subject, the onus of proof lies upon the Opposite Party to prove the same. But in the given case, except the oral assertion stating that the Complainant not produced scan/histopathology report, nothing has been placed on record to show that the disease suffered by the Complainant was preexisting. The Opposite Party should have obtained those reports

from the hospital authority or ought to have examined the doctor one who treated the Complainant. No such attempt was made by the Opposite Party which is fatal to their case. The doctor who treated the patient is the best witness to say or to confirm the diagnosis of the disease suffered by the Complainant. In this case, except the oral assertion no material/cogent evidence produced before this Honble Forum in order to substantiate the same. In the absence of the same, we hold that the repudiation made by the Opposite Party is not justified. The Complaint filed evidence and stated that he had spent Rs.11,340/- towards the medical expenses, the same has not been contradicted by the Opposite Party. In the absence of the same, we hold that the Opposite Party No.1 is hereby directed to pay Rs.11,340/- and also pay Rs.5000/- as compensation for inconvenience and harassment caused to the Complainant and Rs.1000/- as cost of litigation expenses. Payment shall be made within 30 days from the date of this order. Since there is no contractual relationship between the Complainant and Opposite Party No.2, complaint against Opposite Party No.2 is hereby dismissed. 6. In the result, we pass the following: ORDER The Complaint is allowed. Opposite Party No. 1 is hereby directed to pay Rs.11,340/- (Rupees eleven thousand three hundred and forty only) to the Complainant and also pay Rs.5000/- (Rupees Five thousand only) as compensation and Rs.1,000/- (Rupees One thousand only) as cost of litigation expenses. Payment shall be made within 30 days from the date of this order. Failure to pay the aforementioned amount within the stipulated time as mentioned above the Opposite Party No.1 is hereby directed to pay interest at the rate of 10% p. a. on Rs.11,340/- from the date of failure till the date of payment. Complaint against the Opposite Party No.2 is hereby dismissed.

Sd/- President Sd/- Member Sd/- member Dated 30/04/2010