Date of Filing: 09/03/2016
Date of Order:30/05/2018
BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE - 27.
Dated: 30THDAY OF MAY 2018
PRESENT
SRI.H.R. SRINIVAS, B.Sc., LL.B. Rtd. Prl. District & Sessions Judge And PRESIDENT
SRI D.SURESH, B.Com., LL.B., MEMBER
COMPLAINT NO.400/2016
COMPLAINANT/S | | |
| 1 | Mrs. ShobhaS.Bhat, W/o. Mr. SudhakarN.Bhat, Residing at Flat No.301, Park Avenue, Vivekananda Road, (Fire Station Road) AjjerkaduUdupi -576101 (Sri BL Adv. For complainant) |
V/s
OPPOSITE PARTY/IES | | |
| 1 2 | The Authorized Signatory, Star Health and Allied Insurance Co.Ltd., No.1, New Tank Street, ValluvarKottam High Road, Nungambakkam, Chennai-600034. The Authorized Signatory Star Health and Allied Insurance Co. Ltd., No. 90, 3rd Floor M.G. Tambre Towers, Next to New Athithya Hotel, Gandhi Bazar Main Road, Basavangudi Bangalore -560 004. (By Sri YPVAdv. for O.Ps) |
ORDER
BY SRI.H.R. SRINIVAS, PRESIDENT
1. This is the complaint filed by the complainant against the Opposite Party(hereinafter referred to as O.P) under Section 12 of the Consumer Protection Act, 1986 praying this Forum to direct the O.P to pay Rs.1,69,585/- in all with interest at the rate of 16% from the date of repudiation of the medi-claim policy along with other reliefs as this Forum deems fit.
2. The brief facts of the complainant’s case are that, the complainant has purchased insurance policy namely “Medi Classic Insurance Policy (Individual)” vide insurance policy No.P/141220/01/2014/004600 from OP 1. The complainant was suffering from severe pain in both knee joints. So she decided to seek medical investigation/examination by way of X-rays of knees. It revealed the presence of Osteoarthritis in both knees.Based on this medical examination, she was to undergo treatment using sequentially programmed magnetic field therapy (SPMF therapy) for 21 days at SPF Health care and research center run by W.G Cdr . Dr.V.G.Vasishta (Retd.) who is the CEO.The SPFM treatment along with physiotherapy was for half an hour daily for a period of 21 days continuously. As a result, the complainant has substantial relief from the pain.
3. The complainant has spent of Rs.1,29,585/- for the treatment. After getting details of the treatment by the SPFM health care and research center, she lodged a claim for the aforesaid amount with O.P. But the same was repudiated by the Ops vide communication dated 21/07/2014, on the ground that “the ailment is pre-existing” which has no relevancy to the facts of the matter. In fact complainant was lawfully eligible for the reimbursement. The Exclusion No.1 as stated under the policy itself is baseless and cannot be a ground for repudiation.
4. After the repudiation, the complainant issued a legal notices dated 17.04.2015 and also on 16.01.2016. The Op did not reply the same. Left with no option, the complainant approached this Hon’ble Forum for deficiency in service and unfair trade practice by filing the complaint.
5. After service of notice, O.Ps appeared through their counsel and filed their version contending that,the complaint is not maintainable either in law or on facts and hence liable to be dismissed. The Op raised objection that the transaction between the parties is clearly guided under the policy terms and conditions. It is based on contract. Hence the act of the Ops in repudiating the contract cannot be found as deficiency in service. The O.Ps further contended that the complainant has taken treatment for the alleged knee pain with SBF health care and research center. She had complained of knee pain in both the knees for the last 4 years. Thus it indicates that her knee pain in both the knees were pre-existing. The same was not mentioned in the proposal form. By suppressing the said facts, policy has been obtained and she did not bother to intimate the said facts at least after taking the policy. As per the exclusion class No.1 of the policy, the company is not liable to make any payment in respect of expenses made for the treatment of pre existing disease till completion of 48 months of the continuous policy coverage. O.Ps further alleged that the claim pertains to other then the day care treatment. Hence, she is not entitled for reimbursement of claim. Hence, prayed to dismiss the complaint.
6. From the above pleadings, the following points arise for our consideration:-
1) Whether there is deficiency in service in repudiating the claim of complainant by O.P?
2) Is the complainant entitle for the claim?
7. Our answers to the above points are:-
POINT 1): In the affirmative.
POINT 2): In the affirmative.
As per the final order.
REASONS
ON POINT No.1:-
8. The complainant and O.Ps have filed their affidavit evidence reiterating the contents of the complaint and the version respectively.
9. From the above oral and documentary evidence, it becomes clear that complainant has taken medi-claim insurance from O.Ps and she took the treatment for her knee pain for about 21 days (SPMF) theraphy from Dr. V.G. Vasista (Retd.) MD in radiology after the doctor detecting through X-rays that she was having Osteoarthritis. After paying the medical expenses, charges and fee of Rs.1,29,585/-, she made a claim with the O.p.No.1 since she had a medi- claim policy. When the same was repudiated she issued a legal notice.
10. To substantiate her claim, she has produced copy of the policy along with terms and conditions, treatment summary of Shobha.S.Bhat issued by the Dr. Shuaib Kausar, MBBS D’ ORTHO of SBF Health care, repudiation letter issued by Star Health Care Center dated 21.07.2014, the letter written by the complainant to the SBF Health Care and Research Center Pvt. Ltd., dated 04.07.2014 and legal notice issued by the complainant to Op.2 dated 23.01.2016. These documents reveals that the complainant has undergone treatment for the joint knee pain under the SPMF therapy. When she claimed reimbursement of medical expenses paid to the concerned Health care center, the Ops have repudiated the claim.
11. The main contention of the Ops is that the complainant has taken treatment for the alleged knee pain with SBF health care and research center. She was having pain in both knees for the last 4 years i.e. prior to taking treatment. Thus it indicates that her knee pain was pre existing and the same was not disclosed in the proposal form . As per the Exclusion Clause No.1 of the policy, the company is not liable to make any payment in respect of expenses made for the treatment of pre-existing decease until 48 months of the continuous coverage has lapsed and also alleged that the claim pertains to other then the day care treatment hence, she is not entitled for reimbursement of the claim.
12. The very contention of the Ops in repudiating the claim is that the disease was pre-existing one. But after going through document produced by the complainant, it is clear that the complainant was suffering from joint knee pain. Here, before going to the root of the case, it is very much required to discuss about the few medical terms used under the policy. As the words stated in the medical science that the pain, disease and ailment or not having similar meaning. The definition of “pain is an unpleasant sensation that can range from mild localized discomfort to agony. Pain has both physical emotional components and as well. The word disease defined under the medical science is “disease which result in the disorder of a structure or function in living organism that is not due to any external injury. The study of disease is called pathology”. Further the word ailment means “a body disorder or chronic disease.” From the above, it is very clear that the definition of the above medical terms differs from their statutes, impacts and also in results with each other.
13. Such being the scenario, the word pain “is not shown in the policy, where as the term pre-existing disease is mentioned under the policy. Further it is very clear that there is no specific mention in the policy terms and condition about the list of the diseases/ailments which comes under the column of pre-existing diseases. Simply mentioning the words disease or ailment does not give clear picture to the common citizen. In India many people do not have basic education. So it becomes very difficult for them to understand the meaning of such words. A lay man cannot act to the wisdom of insurance company.
14. If at all the complainant had knowledge over the particular words used under the policy, she would not have purchased the policy. In fact, the format of the policy terms and conditions itself having ambiguity. It is also a settled position of law that if there are two possible interpretations, one beneficial to the insured should be accepted consistent with the purpose for which the policy is taken. We are of the opinion that, when there is no specific mention about the list of pre-existing disease,in the policy, automatically it becomes improper and unjust to draw the inference in favour of OP. Therefore the repudiation of the claim is not justifiable one on the grounds as stated in the repudiation letter.
15. Further, while going through proposal form,there is no column left to mention for joint knee pains. Hence the complainant could not mention the same. Moreover by the time when the proposal form submitted by the insurance company, the complainant herself was not aware of the alleged medical ailment. Hence the question of suppressing material facts does not arise at all. If really the insurance company is working in the interest of policy holder, then what prevented them to get the complainant to subject to medical examination at the very initial stage of issuing policy has not been explained. When the claim made for reimbursement of the expenses, immediately Ops have opened their eyes and taken the defence of pre existing disease only to repudiate the claim which is not acceptable.
16. As we have gone through the treatment summary it reveals that, the date of starting treatment was on 26.05.2014 and date of completing treatment was 15.06.2014. It is a day care treatment. As per the policy terms and conditions, the surgical procedure which is under taken under general or local anesthesia in a hospital/ day care center less than 24 hours also covers the policy. In this regard, we point out that as per the terms of the policy, there is no whisper that the treatment for osteoarthritisis precluded from seeking reimbursement. The very contention taken by the Ops has no application at all to the facts and circumstance of the case. As pointed out above, the treatment is a result of technological advance which has resulted in the growth of new cartilage. In view of the above the discussion, we are of the opinion that, by repudiating the claim of the complainant, OPs have committed deficiency in service. Hence, we answer Point.No.1 in the Affirmative.
POINT No.2
17. Having held Point No.1 in the affirmative, the complainant is entitle for the amount she has spent for medical treatment i.e. Rs.1,29,585/- which the O.P has repudiated the claim of the complainant and she is also entitle for damages for her mental and physical sufferance when the O.Ps repudiated her claim, which we quantify at Rs.20,000/- and also she is entitled to Rs.5,000/-as legal expenses made by her towards paying the advocate fee and also towards the expenses she has met in filing this case and attending the Forum on the day of hearing.
18. The Hon’ble Karnataka State Consumer Disputes Redressal Commission in Appeal 2502/2010 between Divisional Manager, National Insurance company Vs. O.P Kinger has held on 30.8.2011 that: “ Even if the treatment is taken by the patient as an outpatient without admitting has an inpatient is entitle for reimbursement. The main purpose of getting the medi-claim policy is for reimbursement. Therefore the Osteoarthritis is bound to occur in the elderly people for which insurance cannot be denied.
19. It is also held in Revision Petition 2362/2014 between NEW INDIA ASSURANCE CO. LTD., VSISHU MOTAWANI BY NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION on 23.2.2015 held that: Issuing of policy to a person of 61 years and then stating that age related diseases are excluded, amounts to unfair trade practice. When SPMF therapy is not specifically excluded, the act of the OP in repudiating the claim on the ground that treatment is similar to RFQMR without adducing any expert evidence to that effect or filing the affidavit of any doctor to evidence the same amounts to deficiency of service. Hence we answer this Point No.2Partly in the affirmative.
ORDER
1. The complaint is partly allowed with cost.
2. The OP No.1 and 2 are jointly and severally hereby directed to pay to the complainant, a sum of Rs.1,29,585/- along with interest at the rate of 12% per annum from the date of filing this complaint till the entire amount is paid.
3. Further O.Ps are hereby directed to pay a sum Rs.20,000/- towards damages and Rs.10,000/- towards cost of the litigation expenses.
4. The O.Ps arehereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 30th day of MAY 2018)
MEMBER PRESIDENT
ANNEXURES
1. Witness examined on behalf of the Complainant/s by way of affidavit:
CW-1:- Shobha.S.Bhat -Complainant.
Copies of Documents produced on behalf of Complainant/s:
Annexure 1:Copy of Medi-claim insurance policy
Annexure 2: Copy of Treatment summary issued by the SBF health care and research center
Annexure 3: Copy of Proposal form.
Annexure 4: Copy of Legal notice dated 23.01.2016.
Annexure 5: Copy of Postal Acknowledgment.
2. Witness examined on behalf of the Opposite party/s by way of affidavit:
RW-1: G. Mahadevan, Deputy Manager of Zonal office at Bangalore.
Copies of Documents produced on behalf of Opposite Party/s
Doc.No.1: Copy of Treatment summary.
Doc.No.2: Copy of proposal Forum.
Doc.No.3: Copy of policy conditions.
MEMBER PRESIDENT
