BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  ADDITIONAL BENCH,                                                                                                    MANGALORE

Dated this the 9^th November 2016

PRESENT

       SRI. VISHWESHWARA BHAT D  : HON BLE PRESIDENT

       SRI. T.C. RAJASHEKAR                : MEMBER

ORDER IN

C.C.No.45/2013

(Admitted on 05.02.2013)

    Mr. Richard Jerold Martis,

    Aged about 42 years,

    Residing at Queen Mary Villa,

    Nadumane, Kudupu Post,

    Mangalore  575 028.

                                             ….. COMPLAINANT

(Advocate for the Complainant: Sri MNA)

VERSUS

1. Star Health and Allied Insurance

Company Ltd.,

Registered & Corporate Office,

1, New Tank Street,

Valluvar Kottam High Road,

Nungambakkam

Chennai  600 034.

Represented by its Authorized Signatory.

2. M/s. Star Health & Allied Insurance,

Company Ltd.,

City Light Complex, Balmatta Road,

Balmatta Road Mangalore  575 001,

Represented by its Authorized Signatory.

                                                        …..... OPPOSITE PARTIES

(Advocate for the Opposite Party: Sri. AKK)

ORDER DELIVERED BY HON BLE PRESIDENT

SRI. VISHWESHWARA BHAT D:

I.       1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain reliefs. 

  The brief facts of the case are as under:

     The admitted facts of the case is that the complainant took Family Health Optima Insurance Policy from opposite party covering the risk of complainant his wife and his daughter for Rs.3,00,000/ for the period from 00.00hrs on 29.10.2011 to midnight of 28.10.2012 on a premium of Rs.5,327/ in the month of August 2011. The complainant further contends in August 2011 complainant’s wife Mrs. Jessy James Martis developed stomach pain and undergone clinical examination and diagnosed by the Doctor for DVB bilateral Chocolate Endometrial Hyperplasia was admitted as on the advice of the Dr. Geethanjali M Shetty to S.C.S Hospital, Mangalore on 10.08.2011 and undergone surgery on 11.08.2011 and discharged on 17.08.2011. The complainant incurred medical expenses of Rs.48,593/.  Even though on discharge from the hospital, the complainant lodged a claim with the opposite party with documents, the opposite party prolonged processing the claim and ultimately by wrong interpretation of exclusion clause of 3.0 of the policy repudiated the claim.  There was no pre-existing disease at the time of purchase of the policy and no suppression of material facts by complainant’s side.  It is of contention that the repudiation of claim by opposite party is to refuse claim entitled to and  legally seeks direction against opposite party to pay medical expenses of Rs.48,593/ with interest at the rate of 18%, Rs.50,000/ towards mental agony, stress and inconvenience, cost of legal notice of Rs.1,000/ and also the proceedings.

II.     The opposite party in the written version further contends there is no consumer dispute or deficiency in service of opposite party.  The complainant, it is stated has undergone treatment of Hysterectomy for Menorrhagia due to Endo metrical hyperplasia Fibroid Uterus which is excluded under exclusion No.3 of the Mediclaim Classic Individual Policy obtained by the complainant hence opposite parties are not liable to re imburse the medical bills under the policy.  Hence seek dismissal of the complaint.

 In support of the above complainant Mr. Richard Jerold Martis filed affidavit evidence as Cw1 and answered the interrogatories served on him and produced documents got marked Ex C1 to C4 detailed in the annexure here below.  On behalf of the opposite parties Mr. Melwin D’Souza (Rw1) Branch Manager also filed affidavit evidence and answered the interrogatories served on them and produced documents detailed in the annexure here below.

III.     In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2. If so, whether the Complainant is entitled for any of the other reliefs claimed?
3. What order?

      We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:         

          Point No. (i): Affirmative 

          Point No. (ii): Affirmative

         Point No. (iii): As per the final order.             

REASONS

IV.      POINTS No. (i):  In the case on hand Mediclaim policy regarding the purchase by complainant covering the risk during the relevant period in respect of himself and his wife and daughter is not in dispute.  The complainant’s wife during the period under reference of cover of the mediclaim policy issued by the opposite party underwent certain treatment namely surgery as mentioned in the complaint and claimed for payment of the expenses incurred towards the treatment was repudiated by the opposite party.  As such complainant being a consumer opposite party is servicer provider bound by the terms of the policy and opposite party having repudiated the liability.  There is a consumer dispute between the parties.  Hence the answer point No.1 is in the affirmative.

POINTS No. (ii):  The only question for consideration is whether the surgery undergone by complainant s wife Mrs. Jessy James Martis falls within the mischief in respect of the copy of the policy purchased by opposite party as claimed by opposite party.  For the sake of convenience this is mention in Ex A1 clause 3.0 The company shall not be liable to make any payments under this policy in respect of any expenses what so ever incurred by the insured person in connection with or in respect of the insurance policy issued by the opposite party to complainant:

1. Preexisting Disease as defined in the policy, until 48 months of continuous coverage have elapsed, since inception of the first policy with any Indian Insurance Company.

      The learned counsel for complainant argued that there was no hiding of any fact by complainant and there was no preexisting ailment that lead to the present surgery, hence the exclusion clause is not applicable.  It was also contended the opposite party has not taken any steps before issue of policy for medically examination of the persons whose risks are covered under the policy.  This fact is not in dispute.  In fact the learned counsel to substantiate his argument relied Reported Judgment of the National Consumer Redressal Commission (NCRC) first CDJ 2014 case No.211 Apollo Munich Health Insurance Co., Ltd and Another Versus Kirti and Another:

Removal of fibroid was absolute necessity, for Better health of patient Fibroid one of causes of infertility, but many patients, might conceive, even in presence of fibroids Opposite party rejected claim on basis that primary cause for surgery was Primary Infertility-Repudiation of claim by opposite parties, under exclusion clause Section 6 (e) (ix) just and arbitrary Act Petitioner could not just assume reason, for ailment, according to its own convenience, and/or whims and fancies No error or any illegality in order passed by State Commission Petition dismissed.

 and CDJ 2015 case No.809 New India Assurance Co. Ltd., Versus B.Y. Srikanta in mentioned case referred above it is held thus :

Complainant suffered from Parkinson disease so claimed medical reimbursement under the said policy District Forum allowed the complaint and directed the opposite party/Insurance company to pay a sum of amount Opposite party/insurance company filed appeal, which was dismissed Hence with this revision Court held that District Forum has accepting the evidence adduced by the parties at great length of its order before finally non suiting the defence of the Insurance company and accepting the claim of complainant And insurance company has not produced any iota of evidence to show that Parkinson disease is a pre existing disease and the same was not disclosed in the proposal form by the complainant Revision petition is dismissed.

     In CDJ 2014 Case No.487 New India Assurance Company Limited Through its duly Constituted Attorney, Manager New

India Assurance Co., Ltd., Versus Rakesh Kuamar the para 6 that observed that

That, many times the healthy persons are unaware of such silent silent aliments of diabetes and hypertension, which come to their knowledge first time during health checkup camps or in any emergent situation.  Thus, opposite party cannot apply a hard and fast rule to presume that, the complainant was suffering for long duration i.e. before taking the policy.

     Like in the present case the patient in the reported case was admitted to the hospital with complaint of stomach pain that lead to diagnose and advice followed by the surgery.  Though in the present case the assertion made by the complainant and in evidence as seen from the reply affidavit of Rw1 Branch Manager of the opposite party to the interrogatories of question No.13, Is it not true that the complainant was admitted to the hospital with the complaint of stomach pain? To the following answer was furnished: Stomach pain diagnosed to have menorrhagia/Fibromyoma  Thus from the above it is clear the complainant was taken to the hospital with complaint of stomach pain that lead to the surgery.  In question as such the facts in the present case is identical to that of reported case referred above.

     Ongoing to the above 2 reported judgment in the case on hand complainant was taken to the hospital and with the complaint of stomach pain the opinion with exclusion clause 3.0 of Ex A1 is not applicable in as much as the object for which the complainant was admitted to the hospital primarily was for stomach pain.  The exclusion clause in our view is not applicable to the case of facts on our hand.  Our view on this count is buttressed by in reported judgment of NCRC CDJ 2014 pronounced case No.487 New India Assurance Company Limited Through its duly Constituted Attorney, Manager New India Assurance Co., Ltd., Versus Rakesh Kuamar. In this reported judgment the claim made by the Insurance Company is of complainant had preexisting disease i.e. diabetic and Hypertension was not accepted by the National Commission.  Hence in above view the claim of exclusion clause 3.0 to repudiate the claim of complainant is by opposite party is unjustified.  Hence the complaint in our view is entitled for reference of medical payment of Rs.48,593 with interest at the rate of 8% from the date of legal notice issued on above of complainant on 14.10.12  complainant term covered by in policy is this which amount is not dispute by opposite parties. As to the claim for damages, mental agony and towards inconvenience after the claim was made by complainant soon after the treatment took almost one year to repudiate the claim.  Hence considering these facts awarding the damages of Rs.25,000/ towards mental agony stress and inconvenience is in our view justified.  As per Ex C3 till the date of payment to complainant shall also pay cost of the proceeding fixed at Rs.3,000/.  Hence we answer point 2 is in affirmative. 

POINTS No. (iii): As per final Order:

ORDER

     The Complaint is partly allowed with cost.  The opposite parties are directed to pay Rs.48,593 (Rupees Forty Eight thousand Five hundred Ninety Three only) with interest at the rate of 8% from date of Ex.C3 14.10.2012 till the date of payment.  Opposite parties shall also pay Rs.25,000/ as damages to complainant.

Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Page No.1 to 9 Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 9th November 201

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1  Mr. Richard Jerold Martis

Documents produced on behalf of the Complainant:

Ex C1: Copy of the Mediclaim Policy

Ex C2: Copy of the Health card of complainant

Ex C3: 14.10.2012 Office copy of the legal notice with postal Receipt

Ex C4: Postal acknowledgment

Witnesses examined on behalf of the Opposite Parties:

RW1: Mr. Melwin D Souza

Documents produced on behalf of the Opposite Party:

1. Medi Classic Individual Insurance Policy with terms and Conditions.

Dated:  09.11.2016                                          PRESIDENT