IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Prethakumari:  Member

Smt.M.D.Jessy:               Member

                                                  Dated this, the 15^th  day of October 2009

CC.120/2008

Mrs.Shelsy,

Nelpurakkal House,

P.O.Charal,Kannur Dist.                                          Complainant

(Rep. by Adv.Sheeja Emmanual)

1. Divisional Manger, II,

Oriental Insurance Co. Ltd,

KPK Rialto, 2^nd floor,

Thana.P.O. Kannur.

(Rep. by Adv.K.Reghunathan)

2. Mr.Anto K.Antony,

Oriental Insurance co. Ltd.,

Ex-counter, Shakthi Building                                        Opposite parties

Iritty.

3. George Kaveriyil, Rtd. Teacher,

Agent, Oriental Insurance co. Ltd,

P.O.Angadikadavu 670706.

O R D E R

Sri.K.Gopalan, President

            This is a complaint filed under section12 of consumer protection act for an order directing the opposite party to pay a sum of Rs.15, 000/- as medical expenses and Rs.10, 000/- for compensation along with cost of these proceedings.

            The case of the complainant in brief is as follows: The husband of the complainant took Universal Health Insurance policy. It was 3^rd opposite party who approached the insurer and instigated to take the policy explaining the special package adopted by the company to cover the entire family including him, wife and children from all sorts of medical claims. The policy was issued on 25.10.06. The complainant was admitted in Indira Gandhi Hospital on 28.2.07 and discharged on 4.2.07 after a surgery for extraction of submandibular gland. Dr.Sheela who had done the surgery issued a certificate for the purpose of submitting the same before the 1^st opposite party. The total expense for the operation comes to Rs.15, 000/-. All original bills together with medical certificate submitted before opposite party for the claim. But the same was repudiated that the disease was one pre-existing at the time of making proposal to the company. Complainant issued registered notice on 3.4.07. It was replying with same reason stated earlier. It is pertinent to note that opposite parties 2 and 3 made an interview of all the members covered under the policy before issuing the policy and certified that the complainant is physically fit. The denial of claim caused the complainant mental and physical agony for which she is assessing an amount of Rs.10, 000/- as compensation.

            Pursuant to the notice the opposite parties 1 to 3 entered appearance and filed version.

            The contentions of 1^st opposite party can be summarized as follows: Sri.Georgekuttty.P.J had taken a Universal Health Insurance policy from this opposite party bearing No.442508 during the period from 26.10.06 to25.10.07. All the averments in the complaint have been denied by the 1st opposite party one by one except the above admission of policy. The claim of the complainant repudiated on valid ground. The policy contains conditions and exclusions and not covering all sorts of diseases. Any pre-existing diseases are not covered by the Universal Health Insurance policy. The disease of complainant for which tr5eatment has been availed is hit under exclusion clause. Hence opposite party is not liable to honour the claim. The relief sought is exorbitant and unreasonable. As per policy (1) 1-2 the entire bill amount cannot be sanctioned. As Per the section he is entitled for only Rs.6, 115/-. But this amount also could not be settled since the disease had been one that pre-existing.

            The brief contents of the version filed by opposite parties 2 and 3 filed jointly are as follow: It is true that complainant’s claim was repudiated on valid grounds. The policy does not cover all sorts of diseases. Pre-existing diseases has not been covered by the policy which is under exclusion clause. The claim of the complainant is   7,515.23 and not Rs.15, 000/- and the claims is not supported adequate and dependable medical bills. There is no deficiency in service. Hence to dismiss the complaint.

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

1. Whether there is any deficiency on the side of opposite parties?

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

3. Relief and cost.

            The evidence consists of oral testimony of PW1, PW2, DW1 and documentary evidence Exts.A1 to A7 which includes Ext.A2 (16) in numbers and Ext.B1 and B2.

Issue Nos.1 to 3

            Admittedly the husband of the complainant Sr.Georgekutty.P.J had taken a Universal Health Insurance policy from opposite party. The case of the complainant is that as per the advice of doctor for surgery for extraction of submandibular gland. Complainant was admitted in Indiragandhi Co.Op.Hospital, Thalassery and undergone operation by Dr.Sheela and certificate issued to submit before 1^st opposite party. Claim submitted with document but repudiated on flimsy ground. On the other hand opposite party contended that the claim was repudiated on valid grounds. The disease of the complainant was preexisting one and pre-existing disease has not been covered by the policy which comes only under exclusion clause.

            It can be seen that the claim herein is rejected on the ground that the disease of the complainant was pre-existing one. Answer to this question is main pillar of the decision. What is the evidence to show that the complainant and her husband were aware of the fact that complainant was suffering the alleged disease at the time of taking the policy. PW2, Dr.Sheela is the doctor who had done the operation. In the evidence of Dr.Sheela Padmakshan in the box deposed thus; ‘I have seen the patient by name Shelsy and treated her. She had come to me with pain and swelling of left side of neck of 2 to3 months duration on examination”. The surgery was done after 4 months of the issue of policy.  The possibility of knowledge of complainant about the disease is at the maximum 2 to 3 months. Thus it is not possible to ascertain that the complainant was aware of the disease at the time of giving proposal. Ext.A4 is the repudiation letter and it states as follows: “We are unable to consider your claim as it is ob served from the medical reports that your wife was suffering from submandibular slaladenitis, the disease which was preexisting at the time of making proposal to the company”. The first part of this statement is backed by documents i.e. Medical reports whereas, it is not seen explanation with respect to the pre-existence of the disease. The doctor who treated the patient is unable to say the date of beginning of the ailment. Doctor has deposed only the probable duration. Then how can be insurance company come into conclusion that complainant was aware of the disease at the time of giving proposal. In the cross examination doctor deposed that “I cannot say when it is started”. Then, where from opposite party has gathered information regarding the period of ailment? Opposite party has arrived in such conclusion without strong base. DW1 in his cross examination deposed that “Doctor Dambn kT-km-cn-¨-Xn it may started long backF¶p oral   Bbn t^mWn kT-km-cn-¨Xp   scrutiny form record  sNbvXn-«p­v . Scrutiny form lmP-cm-¡m³ X¿m-dmWv “But scrutiny form has not been produced to prove the same. This is not a point that can be decided up on probability. Without definite answer it would be difficult to arrive at a conclusion that the complainant had suppressed the pre-existing disease at the time of giving proposal. Opposite party could not produce sufficient evidence to prove the suppression. In Praveen Damani Vs. Oriental Insurance co. Ltd. reported in IV (2006) CPJ 189(NC) National Commission held that “Repudiation of the claims without proper investigation amounts to deficiency in service” Unless there is enough evidence that helps to derive at a conclusion that complainant was aware of the ailment before taking the policy the denial of claim is a deficiency in service. On going through the evidence available in our opinion the complainant was not aware of the disease at the time of giving proposal. Thus repudiation of claim without proper investigation is a deficiency in service on the part of opposite party and opposite party is held liable to sanction the claim.

            It can be seen that as per the direction of the Forum, the opposite party has submitted the documents which has been produced by the complainant before the Insurance Company. It consists of 14 medical bills and professional and inpatient charges issued by Indira Gandhi co. operative hospital. All together it comes an amount of Rs.12, 069/-. Opposite party has raised dispute with respect to the amount. Opposite party contended that the relief sought is exorbitant. It is further contended that as per policy section1 (1)(2) the entire bill amount cannot be sanctioned and thus complainant is entitled for only Rs.6, 115/-. It is also contended that what is claimed by the complainant is only Rs.7, 515/-. Opposite party stressed this contentions in chief affidavit in tune with the version .Complainant did not challenge it. Even in cross examination no question was put to DW1 with respect to the amount of claim asked for. What is claimed is only Rs.7, 515/- is the specific case of the opposite party. It has come in evidence that Ext.A2 series Medical bills is for Rs.12069/-. But he contention of opposite party that the claim amount is Rs.7, 515/- has not been challenged by the complainant. Even a single question put to   witness in cross examination with respect to his aspect. Thus the contention of opposite party that the claim amount is only Rs.7515/- can only be accepted. Opposite party has also contended that as per section 1(1-2) the complainant is entitled for only Rs.6115/-. Ext.B1 (b) reveals that the amount of expenses subjected to certain limits as given in the table under section (1)1.2. In consideration of the above mentioned aspects and evidence on record we are of opinion that the 1st opposite party is liable to pay the claim amount Rs.7515/- together with an amount of Rs.5000/- as compensation and Rs.1000/- as cost of these proceedings. Issues 1 to 3 are found partly in favour of complainant and passed orders accordingly.

            In the result, the complaint is allowed partly directing the 1^st opposite party to pay a sum of Rs.7515/-(Rupees Seven thousand five hundred and fifteen only) as claim amount together with Rs.5000/- (Rupees Five thousand only) as compensation and Rs.1000/- (Rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which it would attract 10% interest for the claim amount from the date of this order till realisation of the amount. The complainant is at liberty to execute the order against 1^st opposite party as per the provisions of consumer protection act in case the amount has not been paid by the 1^st opposite party within one month from the date of receipt of this order.

                                    Sd/-                             Sd/-                             Sd/-

President                      Member                       Member

APPENDIX

Exhibits for the complainant

A1.Admission discharge card issued from ICM,Tly

A2.Medical bills

A3.copy of the certificate issued by  Dr.Sheela Paddmakshan

A4.Letter dt.23.3.07 sent by OP1

A5.to A7.Copy of the lawyer notice sent to OP, AD card and reply notice

Exhibits for the opposite parties

B1.Copy of the Policy issued to complainant

B2.Certificate issued by  Dr.Sheela Paddmakshan

Witness examined for the complainant

PW1.Complainant

PW2.Dr.Sheela Paddmakshan

Witness examined for the opposite parties

DW1.K.Sreedharan

                                                            /forwarded by order/

                                                            /Senior Superintendent

Consumer Disputes Redressal Forum, Kannur