BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 10th January 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.279/2014
(Admitted on 5.08.2014)
Smt. Artiben Rana,
W/o.Mahendrasingh Rana,
Aged 39 years,
R/at.House No.7.3.289/1,
Prakruti Kiran Apartment,
Tilak Nagar, Sulthan Batterry Road,
Opp.Hindustan Liver Ltd,
Near Hotel Geegay, Boloor,
Mangalore, D.K, Karnataka 360005.
….. COMPLAINANT
(Advocate for the Complainant: Sri MRK)
VERSUS
1. The Manager,
Star Health & Allied Insurance Co. Ltd,
City Light Complex, Balmatta Road,
Mangalore, Karnataka 575001.
2. The Manager Director,
Star Health & Allied Insurance Co.Ltd,
No.1, New Tank Street,
Valluvarkottam High Road,
Nungambakkam, Chennai 600034.
….........OPPOSITE PARTIES
(Advocate for the Opposite parties No.1 & No.2: 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 against opposite parties alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The admitted facts are the complainant customer had obtained Medi Classic Health Insurance Policy (for short Policy) coverage from opposite party from March 4, 2010 renewed every year with current policy from 4th March 2013 to 3rd March 2014 for an amount of Rs.1,50,000/
2. Complainant further contends recently the complainant was diagnosed as having acyanotic CHD diagnosed in May June 2013 when she was first checked by cardiologist in Jabalpur who concluded that there was a hole of around 28 cm and advised an ASD closure surgery. This was confirmed by another cardiologist in Mangalore in the month of July August 2013. She was admitted to Escorts Fortis Hospital on August 28th, 2013 under the supervision of senior Dr. S. Radhekrishna treated at the hospital. Not only opposite party No.1 rejected pre authorization cashless request form on the ground that the disease was of progressive nature initiated 6 years ago and advised to reimbursement but also repudiated the subsequent claim made for reimbursement made of Rs.1,73,791/ incurred towards treatment.
3. The ground urged by opposite party was misrepresentation/non disclosure of the material facts. But it is not possible for a reasonable layman to know the presence of the disease unless the symptoms appear. Hence seeks reliefs claimed.
II. Opposite party on appearing filed objection admitting the Medi Claim Policy issued as mentioned and also repudiation of the claim either for cashless or for reimbursement. Opposite party further contends that on scrutiny of the claim records it is observed from the indoor case papers of the hospital that it is the case of Dysponea on Exertion (DEO) class III 1 year of progressive for 6 years i.e. the complainant is specific symptoms of atrial septal defect (ASD) with 6 years duration which was clearly in the policy.
2. Opposite parties further claim Dysponea is a symptom of atrial septal defect (ASD). As complainant has failed to disclose the facts of that the policy was issued and due to non disclosure of the symptoms at the time of inception of the first policy in view of condition no.7 of the policy for non disclosure opposite party repudiated the claim of the complainant. Hence seeks dismissal.
3. In support of the above complainant Smt. Artiben Rana filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked Ex.C1 to C6 as 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 him got marked Ex.R1 to R8 as detailed in the annexure here below.
In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- 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): As motioned earlier the complainant had Medi Claim Insurance coverage from 4th March 2010 till 4th March 2014 the last one being the current policy which is issued by opposite party is undisputed. Hence there is consumer and service provider relationship between the parties. The claim of complainant for payment of the expenditure incurred by complainant for the treatment of acyanotic CHD was repudiated by opposite party on the ground of non-disclosure. But the complainant claims there were no symptoms and for the first time this acyanotic CHD was diagnosed in May June 2013 by an cardiologist at Jabalpur. Hence the parties are at issue on this aspect. Hence we answer point No.1 in the affirmative.
POINTS No.(ii): The sole point for consideration in the case is whether there is withholding of information and or non-disclosure of material facts as to complainant’s health condition when the first policy was purchased from opposite party on 4th March 2010. The complainant in her evidence specifically mentioned there were no symptoms for her and for the first time when she came to know about condition when she consulted a cardiologist at Jabalpur in May 2013. However the complainant did produce Ex.C2 the claim form given to opposite party at medical certificate to be filled by treating Doctor in Clause.6 (a) the following is mentioned:
6. (a) With What complaints was the patient admitted for Progressively increasing dyspnea on exertion grade III/IV associated with palpitations.
With respect to the above portion the opposite party has taken a stand that the meaning of these words is the disease is progressive since 6 years. However the opponent has overlooked what is answer at column 6 (b) wherein it is written Palpitations Three Month Back
6. (b) Since when was the patient suffering from the said complaints: PALPITATIONS THREE MONTH BACK
Thus it is clear symptoms that occurred in respect of the disease of complainant in question occurred 3 month prior to the surgery. Hence as rightly pointed out for the complainant we are of the view that the complainant cannot be accused of withholding of the information at the time of purchasing of the policy as on 4th March 2010.
2. Opposite party did produce 8 documents in which an x-ray at sl.no.8 including discharge summary dated 1.9.2013 issued by Fortis Escorts Hospital, New Delhi. But they were not marked earlier but now marked at Ex.R1 to R8. As seen we can make out from Ex.R2 or any other document including Ex.R1 the consultation slip issued by City Hospital and Research Centre Pvt. Ltd, Jabalpur does not indicate of any symptoms experienced by complainant prior to 3 months to the date of procedure done on complainant.
3. It would appear the opposite party took stand of non- disclosure of the material fact based on the meaning of the word acyanotic CHD as progressive acyanotic CHD meaning started CHD on the basis of the endorsement made by the treating hospital as diagnosed as Dysponea on Exertion (DEO) class III 1 year progressive for 6 years. However even as seen from the answer provided by complainant to the interrogatories there is no indication as to any symptom complainant had six years prior to the date of surgery done on her. Unlike the allegation made by the opposite
party that it is progressive since 6 years acyanotic CHD there is no mention made of any symptom the complainant had either spoken by her in her evidence or in complaint or recorded by the doctors who treated her unless and until there was some symptoms which the complainant did not disclosure at the time of purchasing the first Medi Claim policy on 4th March 2010. The contention raised for opposite party that the complainant had not disclosed material facts while purchasing the Insurance Policy on March 4th 2010 cannot be accepted. The medical record produced by opposite party at Ex.R1 to R8 does not disclose these facts alleged by opposite party. Hence we are of the firm view that the claim made by opposite party of non disclosure of the material fact of pre-existing disease of complainant as on 4th March 2010 is not established by opposite party. In the circumstance the repudiation of the claim of complainant to reimburse the expenditure incurred by the complainant towards her medical treatment is unjustified.
4. Ex.C1 is the insurance policies of which the one pertaining covering the risk issued on 26.2.2013 with effect from 4.3.2013 to 4.3.2014. In this document the sum insured is shown as Rs.1,50,000/. Hence the opposite party is liable to pay the amount of Rs.1,50,000/ of the total amount of Rs. 1,73,791/ of the amount of the expenditure incurred by the complainant.
5. In respect of compensation for not honouring the liability by repudiating the claim just claim of the complainant and causing pain & suffering we are of the view opposite party shall be directed to pay compensation of Rs. 50,000/ and also cost of the complaint. Advocates fee at Rs.1,000/ Hence answer point No.2 in the affirmative.
POINTS No. (iii): Wherefore the following order
ORDER
The Complaint is allowed with cost. Opposite parties are directed to pay Rs. 1,50,000/ (Rupees One lakh Fifty thousand only) to complainant with future interest at 10% from the date of repudiation i.e. May 29th 2014 till the date of payment.
2. Opposite parties shall also pay Rs. 50,000/ (Rupees Fifty thousand only) as compensation to complainant. Advocates fee Rs.1,000/ (Rupees One thousand only).
3. Payment shall be made within 30 days from the date of the copy of this order.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 8 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 10th January 2017)
MEMBER PRESIDENT
(SRI T.C. RAJASHEKAR) (SRI VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Smt. Artiben Rana
Documents marked on behalf of the Complainant:
Ex.C1: Original Insurance Policy issued by Star Health & Allied Insurance Co. Ltd
Ex.C2: Xerox Copy of claim form for medical insurance
Ex.C3: Original report of the doctor by way of reply to the query
Ex.C4: Xerox Copy of Medical Bills (original submitted to the Opposite party while filing complaint
Ex.C5: 29.05.2014 Letter written by the complainant’s husband to O.P for deficiency in service
Ex.C6: Courier receipt with Shipment Tracking
Witnesses examined on behalf of the Opposite Party:
RW1 Mr. Melwin D’Souza, Branch Manager
Documents marked on behalf of the Opposite Party:
Ex.R1: OPD Record of City Hospital with Three Echocardiography Report (4 sheets)
Ex.R2: Discharge summary dated 01.09.2013 issued by Fortis Hospital (4 sheets)
Ex.R3: Cardiac Angiography Report by Fortis Hospital (3 Sheets)
Ex.R4: Lab Report Fortis Hospital (4 Sheets)
Ex.R5: Inpatient Bill issued by Fortis Hospital (1 in number)
Ex.R6: Consultation & Diagnosis Bill issued by Fortis Hospital (2 in numbers)
Ex.R7: ECG Reports
Ex.R8: X-Ray (One)
Dated: 10.01.2017 PRESIDENT
