BEFORE THE DISTRICT FOUM: KURNOOL
Sri K.V.H. Prasad, B.A., LL.B., President
And
Smt C. Preethi, M.A., LL.B., Member
Wednesday the 24th day of August, 2005
CD NO. 02/2005
T.Uma Maheswara Goud, S/o. Venkataswamy Goud,
Upstairs, Shop NO.23, SVC Sharaff Bazar, Kurnool.
. . . Complainant.
-Vs-
1. The Divisional Manager, New India Assurance Co., Ltd,
Railway Station Road, Kurnool.
2. M/s. Paramount Health Services Pvt Ltd,
MGR Estates, 205,2nd floor, Dwarakapuri Colony, Panjagutta, Hyderabad.
. . . Opposite parties
This complaint coming on 17.08.2005 for arguments in the presence Sri A.V.Subramanyam, Advocate for complainant, P.Ramanjaneyulu, Advocate for opposite party No.1 and opposite party set exparte and stood over for consideration till this day, the Forum made the following.
O R D E R
(As Per Smt C.Preethi, Hon’ ble Lady Member)
1. This CD complaint of the complainant is filed under section 12 of C.P. Act, 1986, seeking a direction on the opposite party No.1 to pay Insurance amount of Rs1,25,000/- to the complainant with 12% interest from the date of admission to the hospital, Rs.25,000/- towards mental agony, Rs.2,000/- as costs and any other relief or reliefs which the complainant is entitled in the circumstances of the case.
2. The brief facts of the complainant’s case is that the complainant has taken an Individual Mediclaim policy from opposite party No.1 from the period 1998-1999 till 2002-2003 without break. In the year 1999- 2000 the complainant incurred expenditure for treatment of diabeties, on the claim preferred opposite party No.1 settled the claim for Rs.2,800/-. For the years 2002-2003 the complainant paid Rs.2,141/- as premium for continuation of said policy, and a policy bearing No. 6115500/48/03/00197 was issued covering for the said period, as there was no claim the opposite party No.1 enhanced the assured amount from Rs.1,00,000/- to Rs. 1,25,000/-.
3. In the month of October, 2003 the complainant suffered from respiratory problem and underwent Angiogram test on 29.10.2003 at Care Hospitals, Hyderabad. After the said test the complainant was diagnosed Triple Vessel disease and was advised to undergo By Pass Surgery, accordingly the complainant was operated on 6.11.2003 and discharged from the hospital on 14.1.2003.
4. The complainant thereafter informed the opposite party No.1 about the disease and hospitalization and submitted claim form along with relevant necessary documents and bills for reimbursement of medical expenditure of Rs.1,27,590/-. Inspite of submitting necessary documents the opposite party No.1 did not settle the claim. On 22.3.2004, the complainant received a letter from opposite party No.2 stating that the claim of the complainant is liable to be repudiated on the ground of pre-existing disease under clause 4.1 of the policy. Thereafter, the complainant addressed letter dt 31.3.2004to opposite party 1 and 2 to reconsider his claim. The complainant further submits that the opposite party No.2 has no locus standi to repudiate the complainant’s claim and the said repudiation is without basis and it is made only to evade payment of claim amount. Thus, the act of opposite parties in repudiating the claim of the complainant is amounting to deficiency of service.
5. In substantiation of his case the complainant filed the following documents Viz (1) certificate dt 15.06.2004 issued by Dr P.Raghava Raj (2) repudiation letter dt 18.03.2004 of opposite party No.2 to the complainant (3) Legal notice dt 31.3.2004 of complainant’s counsel to opposite party No.3 and (4) notice dt 29.4.2004 of complainants counsel to opposite party No.1, besides to the sworn affidavit of the complainant in reiteration of his complaint avernments and the above documents are marked as Ex A.1 to A.4 for its appreciation in this case.
6. In pursuance of the receipt of the notice of this Forum as to this case of the complainant, while the opposite party No.2 remained absent through out the case proceedings and opposite party No.1 caused his appearance through their standing counsel and contested the case by filling written version denying the complainant’s case as not maintainable either in law or on facts and any deficiency of service at its end and there by any of its liability for the claim of the complainant.
7. The written version of opposite party No.1 even though admits the complainant taking mediclaim policy with it, but denies of other avernments as to suffered chest pain and undergone By Pass Surgery at Care Hospitals, Hyderabad on 6.11.2003 and the incurred medical expenditure of Rs.1,27,590/-. It also alleges suppression of facts with malafide intention to have monitory undue advantage for claiming insured amount from opposite party No.1. The claim submitted by the complainant was forwarded to opposite party No.2 who is a third party Administrator between the insurance company and policy holder which came into existence in the services of Health Insurance policy holders as per the decision of IRDA. As per their verification of available records with them, the complainant was having diabetes, since 10 years prior to existing policy (i.e 2003 to 2004), hence, the opposite party No.2 rightly repudiated the claim basing on the policy terms and conditions and basing on discharge summary card of the complainant, therefore the complainant is not entitled to claim insurance amount of Rs.1,25,000/- towards reimbursement of medical expenses and seeks for the dismissal of complaint with costs.
8. In support of its case the opposite party No.1 relied on the following documents Viz (1) Hospitalization benefit policy bearing No. 611500/48/03/00197 of the complainant, besides to the sworn affidavit of opposite party No.1 in reiteration of his written version averments as defence, it also relied on the deposition of RW1 (Dr G.Easwar).
9. Hence the point for consideration is to what relief the complainant is remaining entitled alleging deficiency of service and deficient conduct on part of opposite parties:-
10. It is not in dispute that complainant by name T.Umamaheswar Goud has obtained Medicalaim Policy, commencing from 8.5.2003 to 7.5.2004 and it is not in dispute that the complainant underwent By Pass Surgery at Care Hospital on 6.11.2003. When the complainant put forth the claim for incurred expenditure, claim was repudiated by opposite party No.2 on the ground that the decease suffered by the complainant comes under preexisting disease under clause 4.1 of policy terms and conditions.
11. The main contention of the opposite party No.1 is that the complainant was suffering from diabetes for past 10 years before to the said operation at Care hospital and the opposite party No.1 contended that, while submitting the proposal form for entering into contract of Insurance the complainant has concealed material facts from the opposite parties about his suffering from diabetes, therefore the opposite parties are absolutely justified in repudiating the claim.
12. The crucial question that requires consideration for disentitling the complainant to his mediclaim is, whether or not the complainant concealed the suffering of diabetes from the opposite parties. The complainant in the years 1999-2000 incurred expenditure of Rs.2,800/- for treatment of diabetes and on claiming the said amount, the opposite party No.1 reimbursed the said expenditure, therefore, what appears is that the complainant had not concealed any material facts from the opposite parties, when once the claim for diabetes treatment was reimbursed and later the opposite parties cannot take a plea that the complainant concealed suffering of diabetes. Hence, the above contention of the opposite party No.1 is remained devoid of merit and force.
13. The opposite parties in support of their case relied on the deposition of RW1, Dr G.Easwar, the said RW1, Dr G.Easwar, says that he has recommended for repudiation of complainant’s claim, as the complainant was suffering with diabetes since last 10 years as per discharge summary card issued for By Pass Surgery and as the said diabetes is related to Coronary Heart disease leading to By Pass Surgery, from the said deposition one thing is clear and may significantly be noticed that the said statement is based on record and he did not examined the patient/complainant. Further the deposition of RW1, Dr G.Eashwar is not supported by any document, what so ever, on the record, which could substantiate that the complainant suffering with diabetes resulted to By Pass Surgery, no document or any evidence has been put on the record by the opposite parties to show that the patient suffering from diabetes is prone to By Pass Surgery, but the said RW1, Dr G.Eashwar further deposes that he is not qualified to diagnose heart disease and a diabetic patient is prone to heart disease and further says that a heart disease can occur to a non-diabetic patient also and also says that if diabetes is under control prone diseases could be delayed. From the above what follows is that the coronary heart disease can occur to any body. In the absence of any document, any evidence produced on record, primary or secondary regarding the ailment suffered by the complainant, before to the said operation at Care Hospital, it cannot be said that the opposite parties has proved that the complainant was suffering from such pre existing disease leading to said operation. Therefore, the opposite parties have failed to prove the case by placing any original documents or by placing on record the certified copies of its original, which has not been done. Hence, the deposition of RW1, Dr G.Eashwar cannot be looked into nor it can inspire any confidence.
14. There is no dispute between the parties that no affidavit of the doctor who is alleged to have treated the complainant in Care Hospital is filed, the doctor has neither been examined nor his affidavit has been brought on record. Unless the expert evidence of the doctor, who has treated the complainant is produced, such evidence cannot be relied upon and from the basis of a finding that the complainant was suffering with diabetes for past 10 years which lead to By Pass Surgery. Merely relying on the deposition of RW1 Dr G.Eashwar doesn’t mean that contents there of are necessarily true, no document is produced by the opposite parties about the pre existing disease leading to By Pass Surgery, mere assertion or oral testimony in respect of pre existing disease prior to taking the policy neither inspires any confidence nor can be acted upon and relied upon. Onus is on the opposite parties to substantiate their plea that the complainant has concealed material facts before taking the said policy or at the time of submitting proposal form.
15. Having regard to over all consideration, there is no hesitation to hold opposite parties have miserably failed to substantiate that the complainant has suppressed material facts of pre existing disease from opposite parties. Therefore, in there circumstances, the repudiation of claim by opposite party No.2 is wholly arbitrary, unreasonable and unjust and amounts to deficiency of service on their part.
16. The opposite parties further submits that they have repudiated the claim of the complainant in good faith having regard to the facts and circumstances of the case. This contention is equally devoid of merit and force as it has already held that repudiation is arbitrary and untenable and the claim of the complainant should not have been rejected, as per the decisions of AP State Consumer Disputes Redressal Commission, reported in 2003 (1) ALD Pg 897, Himachal Pradesh State Consumer Disputes Redressal Commission reported in 1999, Consumer cases reported Pg 416 and Rajasthan State Consumer Redressal Commission reported in 1996, Consumers cases reported Pg 605.
17. The next question that required for consideration is as what claim the complainant is entitled to under the said policy. The complainant submits that all required documents relating to expenditure are submitted to opposite party for setting the claim and all such documents are with opposite parties and it is not the case of the opposite parties, that the complainant has not undugone By Pass Surgery. It is common knowledge that in case of operation of heart By Pass Surgery in a Heart Institute like Care Hospital, one has to incur lot of expenditure. The expenditure alleged to have been incurred by the complainant can neither be considered excessive nor unreasonable.
18. In the light of the discussions made above and following the supra stated decisions, having regard to such circumstances it is just and proper that the complainant must have incurred an expenditure of Rs.1,27,590/- and the complainant is entitled to insured amount under the said policy.
19. In the result, the complaint is allowed, directing the opposite party No.1 to pay to the complainant the insured amount of Rs.1,25,000/- under the said mediclaim policy with 12% per annum from the date of surgical operation till realization along with Rs.5,000/- as costs of this case, within a month of receipt of this order.
Dictation to the Stenographer Typed to dictation corrected by us pronounced in the Open Court this the 24th day of August, 2005.
Sd/- sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant For the opposite parties
-Nil- Deposition of RW1 ( Dr
G.Easwar) dated 15.7.2005.
List of Exhibits Marked for the complainant:-
Ex A.1 Certificate dated 15.6.2004 issued by Dr P.Raghava Raju.
Ex A.2 letter dated 18.3.2004 repudiation letter by opposite party No.2.
Ex A.3 Legal notice dated 31.3.2004 of complainant counsel to opposite party
No.2.
Ex A.4 Notice dated 29.04.2004 of complainant counsel to opposite party No.1.
List of Exhibits marked for the opposite parties:-
Ex B.1 Hospitalisation benefit policy bearing No. 611500/48/03/00197 issued
by the New India Assurance Co., Ltd.
Sd/- Sd/-
MEMBER PRESIDNT
Copy to:-
1. Sri A.V.Subramanyam, Advocate, Kurnool for the complainant
2. Sri P.Ramanjaneyulu, Advocate, Kurnool for the opposite party No.1.
3. M/s. Paramount Health Services Pvt Ltd, MGR Estates, 205,2nd floor,
Dwarakapuri Colony, Panjagutta, Hyderabad.
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties:
