Decided on June 30,2017

Harishbhai Nalinbhai Shah Respondents


Jyoti P. Jani, J. - (1.)Appellant has preferred this appeal being aggrieved by and dissatisfied with the order dated 6.1.2014 rendered in Complaint No. 683 of 2011 by the Consumer Disputes Redressal Forum, Vadodara. For the sake of convenience, parties to the present proceedings will hereinafter be referred to as the complainant and opponent. Briefly stated, it is the case of the complainant - Respondent No. 1 herein before the District Forum that the complainant had availed mediclaim floater policy from the opponent insurance company through original opponent No. 1. The sum insured under the policy was Rs. 4,00,000 and the premium amount was Rs. 40,000. On behalf of the opponent insurance company Certificate No. JMSUM/OOOQ000177 has been Issued which was valid for the period 29.4.2009 to 28.4.2010. During the subsistence of the policy, complainant's mother was admitted to the hospital of Dr. Sheetal Vaidya on 9.6.2000 where she had undergone treatment of knee replacement. She was discharged from the hospital on 21.6.2009. The complainant incurred expenses of Rs. 3,03,676. The complainant thereafter lodged claim with the insurance company. As the claim was not settled, he filed application before the Insurance Ombudsman which came to be decided on 22.7.2011 and considering policy conditions 4.3.21 and 4.3.22 rejected the claim. Policy was cancelled on 13.12.2009 and no pro rata premium was refunded to the complainant. The complainant has alleged deficiency in service on the part of the opponent and resorting to unfair trade practice in rejecting the claim. The complainant therefore filed complaint before the District Forum for a direction against the opponent for payment of compensation of Rs. 3,03,676 with interest, Rs. 25,000 towards special bonus, Rs. 50,000 for mental torture and agony and Rs. 15,000 towards cost of the litigation. The District Forum, after hearing the parties and considering the documents placed on record, partly allowed the complaint against opponent No. 2 i.e. present appellant and directed it to pay to the complainant Rs. 2,42,940 being 80% of the claim amount with interest @ 9% p.a. from 2.4.2010 till realization, Rs. 7,000 for mental torture and agony and Rs. 2,500 towards cost of the complaint. The District Forum dismissed the complaint against opponent Nos. 1, 3 and 4. Hence, the present appeal by original opponent No. 2 insurance company.
(2.)Heard Mr. Palak Thakkar, learned Advocate for the appellant-opponent No. 2 and Mr. Mukesh Shah, authorised representative for the respondent-complainant at length. We have also perused the order of the District Forum, the documents and citations placed on record,
(3.)Learned Advocate for the opponent vehemently argued that the claim of the complainant has been rightly repudiated relying upon the policy conditions 4.3.21 and 4.3.22 which provides 4 years waiting period for joint knee replacement due to degenerative disease and it was first year policy of the complainant. It has also been argued that the District Forum has misunderstood and mixed pre-existing disease Clause No. 4.1 with waiting period Clause 4.3.

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