DOF.4.5.2009

DOO.3.3. 2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Preethakumari:  Member

Smt.M.D.Jessy              : Member

Dated this, the 3^rd   day of  March  2011

CC.109/2009

V.P.Sanal Kumar,

‘Nandanam’,

Mambaran.P.O.                                          Complainant

(Rep. by Adv.K.Ajith Kumar)

1.Manager,

    Medi Assist India Pvt.Ltd.,

   49 “Shilpa Vidhya”, 3^rd floor building

   1^st Main

   Sasakki Industrial Layout,

   3^rd phase, J.P. Bangalore 560 078.

2.Branch Manger,

   National Insurance Co. Ltd.

   Narangapuram,

   Thlassery.

   (Rep. by Adv.V.V.Gopinathan)                             Opposite parties                                                         

O R D E R

Sri.K.Gopalan, President

          This is a complaint filed under sectin12 of consumer protection Act for an order directing the opposite parties to pay an amount of `50,000 together with interest @12% and to pay `10000 as compensation with cost.

          The case of the complainant in brief is as follows: Complainant took hospitalization benefit policy from the 2^nd opposite party for the period continuously commencing from 27.7.06 to 14.8.09. An amount of `1837 paid each year by complainant. He was assured an amount up to 50000 if any hospitalization or domiciliary hospitalization due to any disease or sickness. Complainant was hospitalized on 17.10.08 in Indira Gandhi co. operative Hospital, Thalassery due to Coronary artery disease together with Right Basi-frontal contusion, Alcoholic liver Disease and Diabetes indipidus and discharged with an advice to expert management. So the complainant was referred to Malabar Institute of Medical Science Ltd., Kozhikode on 25.10.08. He was admitted on the same day and discharged on 30.10.08. There from CT scan of complainant’s brain was taken, which showed a small contusion in the Right Basi-frontal region with minimal mass effect. The complainant was under the treatment of Dr. Sankar. A. Indira Gandhi Co. operative hospital authorities informed 1^st and 2^nd opposite parties regarding the treatment of the complainant. More over complainant approached 2^nd opposite party several times, but they did not make payment. Legal notice was sent on 27.11.08 to the 1^st opposite party. 1^st opposite party replied with an instruction to apply in a proper form issued by the 1^st opposite party. Accordingly claim was submitted on 15.1.09 with claim form, bills signed and sealed by the treated doctor. Complainant even now continues the treatment. Opposite party did not pay the insured amount to complainant. Hence this complaint.

          Pursuant to the notice 2^nd opposite parties entered appearance and filed version. 1^st opposite party initially represented. Subsequently remained absent and set exparte.

          The brief facts of the contention of 2^nd opposite party are as follows: - The complainant obtained policy by suppressing the material facts. He did not disclosed  regarding the pre existing disease/illness by making proposal for insurance policy. He has made false declaration in the proposal form by suppressing the details of pre-existing disease. The complainant cannot claim continuity of policy. The earlier policy taken by complainant was expired. The present policy issued on the basis of a fresh proposal executed by the complainant on 14.8.08 for the period from 15.8.08 to 14.8.09. The earlier policy was expired on 20.7.08. Disease for which the claim is preferred is an existing one before the inception of the policy. The claimant is a chronic alcoholic.Since policy was obtained by the complainant suppressing the material facts the insurer is not liable to make any payment. The claim of the complainant arose during the first 30 days from the commencement of the policy. Since this is a 1^st year policy the claim arose during the 1^st 30 days from the commencement of the policy complainant is not entitled for the claim. Complainant is a chronic alcoholic with history of excessive intake and complaint of giddiness. Since the complainant obtained the policy by suppressing the material facts  and the claim arose during the 1^st 30 days and the claim arose during the 1^st year of the policy this opposite party is not liable  under exclusion  4.1, 4.2, 4.3, and 4.8 of the policy. There is no deficiency of service on the part of  2^nd opposite party. Hence prays to dismiss the complaint.

          On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite party?

2. Whether the complainant is entitled for the relief as prayed in

     the complaint?

3. Relief and cost.

The evidence consists of oral evidence of PW1, DW1, DW2 and Exts. A1 to A6 and B1 to B9.

Issue Nos.1 to 3

          Admittedly complainant has taken hospitalization benefit policy. The case of the complainant is that he has taken policy commencing from 21.7.06 to 14.8.09. He was admitted in Indira Gandhi co. operative hospital, Thalassery on 17.10.08 and discharged on 25.10.08 with advice of expert management. On 25.10.08 he was referred to Malabar Institute of Medical Science, Kozhikode  and got admitted there on the same day. After few days treatment he was discharged on 31.10.08. Complainant submitted claim before the  1^st opposite party  but the same has not been settled at all.

          At the same time opposite party contended that complainant has no policy continuously commencing from 21.7.06 to 14.8.09. The existing policy has been issued on the basis of a fresh proposal. The earlier policy taken by the complainant was expired. The period of present policy is from 15.8.08 to 14.8.09. The validity period is only one year hence preferred as a fresh policy.  Policy was obtained by complainant suppressing the material facts with false declaration. Pre-existing disease  was not disclosed. So opposite party is not liable to pay any insurance amount.

          The 1^st point to be answered is whether or not complainant is entitled to claim continuity of policy. The period of policy in the name of complainant is as follows:

Policy Numbers

          It is clearly understandable that there is break between Ext.A1(2) and A1(1) whereas Ext.A1(3) and Ext.A1(2) are continuous policy without break. Hence the contention of the opposite party that the complainant cannot claim continuity since there was a break, cannot be rejected. The foot note to Exclusion No.4 it is specifically written that if the continuity of cover is not maintained with National Insurance Company Ltd. Cover will be treated as fresh for application of clause 4.1, 4.2, 4.3. Since there is a clear direction the cover Ext. A(1) can only be treated as fresh policy. Complainant in affidavit evidence has stated that it is false to say that the policy is not continuous but first year policy. But complainant has not explained why there is break exist. It is a fact that the second policy expired on 20.7.08. Why it is not renewed on the day of expiry has not been explained by complainant. Actually there is no policy since 21.7.08 to 14.8.08. Unless it is explained how does this gap of break benefited it is not possible to consider Ext.A1 (1) policy as continuous policy. Except saying it is false nothing has stated by the complainant with respect to the gap of renewal of policy. Ext.B1 is the proposal form which is admittedly singed by the complainant. It is seen submitted on 14.8.08. Complainant has admitted in cross examination that there is break for taking the policy. Thus the date of commencement of policy is from 15.8.08 and naturally the  date of expiry is  on 14.8.09. As per the clause 5.8 the company shall not be liable to give notice that it is due for renewal. Under this given situation in the absence of a legal explanation for the break the Ext.A1(1) policy can only be treated as a fresh policy. The application for policy is submitted on 14.8.08. If that be so there is no meaning in saying that the policy has validity even before applying for the policy. Hence the contention of opposite party that policy is first year policy is sustainable.

          DW2 adduced evidence by way of affidavit evidence that the complainant cannot claim continuity of the policy and the policy against claim has been preferred is a first year policy.  He stated that complainant obtained the policy by suppressing the material facts. Complainant didn’t disclose the pre-existing disease while making the proposal and has made false declaration. PW1 further stated that the complainant was suffering from Alcoholic liver Disease, Coronary Artery Disease Diabetes, Insipidus etc. and at the time of proposal these facts were not disclosed.

          The question arose herein is whether the disease for which the claim is preferred is an existing one before the inception of policy Ext.A1(1). DW1 stated that the complainant is a chronic alcoholic admitted with history of excessive intake. He further stated that since the claim arose during the first 30 days of policy the opposite party is no liable for the relief sought. Ext.B4 shows recorded the past history as ‘He was an alcoholic, on de addition therapy. Also had coronary artery, disease”. Ext.B4 is issued by DW1 Shanker, the treating doctor. Ext.B3 is the discharge summary. He has deposed in chief that the complainant was an inpatient from 25.10.08 to 31.10.08. DW1, doctor deposed that as per the discharge summary the final diagnosis is Right Basi frontal  contusion and alcoholic liver  disease coronary  artery disease, Diabetes, inspidus etc.  He further deposed that at the time of admission he has the case history of altered sensorium for one week. He was being treated at a local hospital for coronary artery.

The complainant’s claim had been repudiated by opposite party on the ground condition No.4.8 of the insurance policy. Condition No.4.8 includes intentional self injury, suicide, all psychosomatic disorders/diseases, and accidents due to misuse of abuse of drugs/alcohol. As per condition No.4.8 the repudiation is baseless and meaningless for the reason of consuming alcohol. Use of alcohol is actual reason intended when conditonNO.4.8 is taken as a ground. But what really condition No.4.8 in respect of alcohol intended is ‘accidents due to misuse or abuse of drugs/alcohol. Here the question of accident doesnot arise at all. Complainant’s treatment is not for any disease or injury that arose out of any accident. Thus in no way condition No.4.8 is applicable to the disease of the complainant. The nature of the contention of opposite party really intended the treatment of liver disease as the ground The treating Doctor DW1 in his cross examination deposed that the liver disease may occur due to  some other reasons which makes it clear that the liver disease of the complainant need not  necessarily be because of the use of alcohol. It is also pertinent to note that he   is answered to another question that the Basi-frontal condition is not the result of the consumption of alcohol. He further deposed categorically that in col.No.7 of Ext.B4, medical certificate, the past history of the patient was written as per the information given by the bystanders. But no one from among them has been brought before the forum and examined to adduce evidence. It is also important to note that in cross examination DW1 has deposed thus “the present ailment is not a complication of any previous illness or any pre-existing ailment”. He further deposed “in Ext.B4 column.8 I had specifically mentioned that the  present ailment is not because of any complication of previous ailments”.  The evidence of DW1 as a medical expert has great relevancy as far as this case is concerned. His evidence   goes to show that there is no evidence to show that the disease of the complainant has connected with the consumption of alcohol. DW2 in his cross examination admitted that “ ap³t] lc-Pn-¡m-c³ tcmKn-bm-sW¶v ImWn-¡p¶ tcJ Rm³ I­n-«n-Ô. Expert evidence by DW1,  treating Doctor  is that “ the present ailment is not a complication of any previous ailment or any pre-existing ailment”. In cross examination DW2 also admits that “investigation \S-¯p-Itbm dnt¸mÀ«v hcp-¯p-Itbm  sNbvXn-«n-Ô. DW2 also deposed that “Alcoholic liver disease Bbn-cp¶p F¶v ]d-bp-¶Xv  medical certificate I­-Xp-sIm-­pT    discharge summary bnep-f-f-Xp-sIm-­p-amWv”.

          Ext.B4 is the medical certificate issued by DW1 who has deposed that he has written the past history in column No.7 as per the information given by bystanders. DW2 forming his opinion depending upon this entry in columnNo.7 of Ext.B4, which has lost    it’s weightage   by the direct evidence given by DW1. Hence the important contentions built up on the consumption of alcohol are pre-existing disease has been shattered from the facts brought in evidence.

          After all complainant is admitted in Indira Gandhi co. operative hospital on 17.10.08. The case of the 1st opposite party is that the claim arose during the first 30 days of the commencement of the policy even though policy is considered as first year policy; the date of commencement of the policy is on 15.8.08. That means hospitalization taken place after 2 months of inception of the policy. Thus the case of the complainant   is that the claim rose within 30 days of the inception of the policy is not sustainable. It is also necessary to take into account that there was no claim in the previous years though he had policies of those years in his name even if there is a brake with the present policy. Even if it is a 1^st year policy complainant is definitely entitled for the claim.

In Life Insurance Corporation of India Vs. Smt.Sukhwinder Kaur reported in 2008 CTJ 286(SCDRC) it was held that taking of alcoholic drink was not such a material fact as suppression of which would have entitled the appellant to repudiate the claim. So also in Life Insurance Corporation of India  & Anr. Vs. Ramandeenkaur and Anr. Reported in 2009(3) CPC557, dealt with the subject of diabetes. This is a case wherein under claim was repudiated alleging that insured had concealed that fact that she was suffering from diabetes mellitus when policy was obtained. The Hon’ble State commission of Punjab held that “non disclosure of diabetes while taking the policy cannot be made of ground for repudiation of claim” and further pointed out that “diabetes mellitus is not a fatal diseae-25% of the population of the country is suffering from diabetes”. Hence it is clear that suppression of material fact is not sustainable here. Any how 2nd opposite party has not succeeded in establishing their case that there are justifiable grounds for repudiation of claim.          

          In the light of the above discussion we are of the view that complainant is entitled for the claim. The bills produced by the complainant goes to  show that the complainant has spend more than  `45,312, 2<sup>nd</sup> opposite party is liable to pay  `45,000 as claim amount together with `1000 as cost of this litigation. Thus issues 1 to 3 are answered in favour of the complainant and order passed accordingly.

          In the result, the complaint is allowed directing the 2^nd opposite party to pay   `45,000 (Rupees Forty five thousand only) as claim amount with `1,000 (Rupees One thousand only) as cost to the complainant within one month from the date of receipt of this order, failing which the complainant is allowed to execute the order against 2^nd  opposite party as per the provisions of consumer protection Act.

                             Sd/-                    Sd/-                    Sd/-                                          

President              Member                Member

APPENDIX

Exhibits for the complainant

 A1. Copy of insurance certificate issued by OP

 A2. Copy of discharge summary issued from MIMS

 A3.Copy of discharge bill issued from MIMS  

 A4. Copy of Lawyer notice sent to OP

 A5.Copy of the covering letter sent to OP

 A6. Postal AD cards 

Exhibits for the opposite party:

B1. Proposal form  submitted by complainant

B2. Claim form submitted by complainant

B3. Discharge summary issued from MIMs in connection with

      Complainant’s treatment

B4. Medical certificate to be filled by the doctor treating the complainant

B5. Copy of request for cashless hospitalization/claim form submitted by

      Complainant.

B6. Letter enclosed bills sent by complainant

B7. Copy of the letter dt.26.1.09 sent to  OP1 to OP2

B8. Copy of the repudiation letter sent to complainant

B9. Policy conditions

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite party:

DW1.Dr.Shankar.A

DW2. T.A.Sankarankutty                                              

                           /forwarded by order/

                     Senior Superintendent

Consumer Dispute  Redressal Forum, Kannur.