Decided on May 17,2008

Jeewanjee Hooseinbhai Moriswala Appellant


- (1.) THE complainant Mr.Jeewanjee Hooseinbhai Moriswala was a businessman and he was 80 years old at the time of the filing of the complaint. On 30.8.1997, he had a fall at his house. He was rushed to Bacha s Memorial Belle -Vue Nursing Home, "La Citadelle", Maharshi Karve Marg, Mumbai. He was admitted in that hospital on 2.9.1997. He underwent surgery for "Trans Cervical fracture of neck femur (Left). Surgery was performed by Dr. Shakir S. Kapadia, M.S.(Orth). An "Austin Moore Arthoplasty (L) Hip" was done by Dr. Kapadia and complainant was discharged from the hospital on 8.9.1997. According to the complainant, he recovered quite well and he used to walk down to his office from his residence. As per medical opinion he was having good health and free from any medical illness.
(2.) ACCORDING to the complainant, for holidaying, he wanted to go to U.S. in June 2002. He therefore approached O.P. Insurance Company and filled in proposal form on 29.5.2002. The O.P. Insurance Company issued Overseas Mediclaim Policy bearing No. 110900/46/02/80489 on 4.6.2002 on payment of hefty premium of Rs. 59,422 for a period of 180 days from 4.6.2002 to 31.11.2002. Thereafter, he along with his wife left India for U.S.A. on 4.6.2002. He was staying in Sacramento, U.S.A. However, on 11.11.2002 during morning stroll, he had an accidental fall on the road which resulted into injuries to right shoulder and right hip. The complainant was rushed to Mercy General Hospital at Sacramento with the help of police. On examination, a crack was noticed in his right shoulder. He was treated and allowed to go home. On 17.11.2002, he started facing difficulty in making movement in his right leg and right shoulder. Again, he was rushed to Mercy General Hospital, Sacramento where he was admitted. On examination it was found that complainant sustained "Displaced right hip femoral neck fracture". On the following day, he was operated for "Bipolar Hemiarthroplasty, right hip" on emergency basis. He was discharged from the hospital on 11.12.2002. After discharge, he submitted total mediclaim of Rs. 42,06,701 equivalent US $95,498. However, insurer under their letter dated 12.9.2003, informed the complainant that they have repudiated the claim on the basis of exclusion clause incorporated in Overseas Mediclaim Policy issued to him. Therefore, the complainant had approached Insurance Ombudsman and by order dated 30.11.2004, the Insurance Ombudsman directed New India Assurance Company Limited/ O.P. to settle the claim of Mr. Jeewanjee Hooseinbhai Moriswala for the admissible amount as per terms of settlement of US $1,566.33. Not satisfied with this order, the complainant filed consumer complaint with the prayer that O.P. Insurance Company should be directed to pay Rs. 42,06,701 (US $95,498) and also claimed damages of Rs. l lakh, besides cost of the complaint.
(3.) THE complainant in his complaint mentioned that he has filed the complaint within limitation because after repudiation of the claim by the Insurance Company by its letter dated 24.9.2003, he had approached Insurance Ombudsman who rejected the claim of the complainant by its order 13.11.2004 and since then within two years he has filed the complaint, but in case, there is delay of 113 days, then he has filed separate application for condonation of delay. O.P. Insurance Company filed written statement and pleaded that complaint is hopelessly time barred and there is no condonation of delay application filed along with the complaint hence complaint should be dismissed. It also pleaded that complainant had approached Insurance Ombudsman and obtained final order from the said authority and in accordance with the order of the Ombudsman, O.P. had sent discharge voucher and therefore on the principle of res judicata complaint should be dismissed. It also pleaded that O.P. had offered amount US $ 1516.33 as per the order of the Insurance Ombudsman but the complainant refused to sign the discharge voucher and instead filed consumer complaint alleging deficiency in service against O.P. On this ground also it pleaded that complaint should be dismissed. O.P. further pleaded that it had repudiated the claim rightly on the basis of exclusion clause of mediclaim insurance policy issued to the complainant. The said exclusion clause runs as under: All expenses incurred directly due to total HIP replacement and allied ailment. Thus, O.P. pleaded that policy specifically excluded any surgery related to hip. Accordingly the complainant s claim for surgery to right hip was not payable. It however pleaded that it was willing to pay the amount for right shoulder injury and as per Ombudsman s order it had even drawn the voucher for payment for surgery to right shoulder. It therefore pleaded that it was not liable to make any payment of any ailment which is specifically excluded on the face of the policy. Therefore, it pleaded that complaint should be dismissed with cost.;

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