Kerala

StateCommission

A/15/794

THE MANAGER CHOLAMANDALAM MS GENERAL INSURANCE CO LTD - Complainant(s)

Versus

ALEYAMMA K MATHEW - Opp.Party(s)

MANIKANTAN NAIR

07 Jun 2019

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

 

APPEAL NUMBER 794/15

JUDGMENT DATED :07.06.2019

 

(Appeal filed against the order in CC.No.191/2013

on the file  of CDRF, Kollam)

PRESENT

SRI.T.S.P.MOOSATH                                : JUDICIAL MEMBER

SRI.RANJIT.R                                   :MEMBER

 

APPELLANTS/ OPPOSITE PARTIES 1 & 2

        1.The Manager, Cholamandalam.M.S, General Insurance Co.Ltd

Hari Nivas Towers, 2^nd Floor, 163, Thambu Chetty Street, Parry’s Corner, Chennai – 600 001

 

2.The Manager, Cholamandalam.M.S, General Insurance Co.Ltd, 2^nd floor, Post Office Juction, Pallimukku, Kollam – 69110

       

Rep.by its Deputy Manager- Claims

 

                (BY Adv.Sri.V.Manikantan Nair)

 

 

                                VS

 

RESPONDENTS / COMPLAINANT & THIRD OPPOSITE PARTY

 

1. Aleyamma.K, Mathew, W/o.T.Prakash Mathew, Theruvath House, Vidya Nagar 68, Pattathanam.P.O, Kollam – 691 021

 

2. The Manager, South Indian Bank Ltd, Mundakkal Branch, Kollam – 691 001

 

1.  

(R2 by Adv.Sri.R.S.Mohanan Nair)

JUDGMENT

SRI.T.S.P.MOOSATH                :JUDICIAL MEMBER

The opposite parties 1 & 2 in CC.No.191/2013 of the Consumer Disputes Redressal Forum, Kollam, in short the district forum has filed the appeal against the order passed by the district forum by which they were directed to pay Rs 1,63,506/- towards the medical expense incurred by the insured and to pay Rs 25,000/- as compensation and Rs 5000/- as cost or proceedings to the complainant.

               2. The averments contained in the complaint are in brief as follows. The complainant is maintaining SB account with the third opposite party bank. The third opposite party bank used to enroll its account holders to the mediclaim insurance policies of the first opposite party. As per the request of the third opposite party the complainant remitted Rs 4,100/- towards the premium of the medical insurance policy issued by the first opposite party. The premium amount was transferred from the account of the complainant from the South Indian Bank to the account of Cholamandalam MS General Insurance. On receipt of the premium amount from the third opposite party bank the first opposite party issued policy bearing Reg.No.2840/0450053000010404/000/00. The said policy is issued on 17.08.2011 and it covers period up to 16/08/201. Upon the expiry of the said policy the complainant renewed the policy for a further period of one year from 17/08/2012 to 16/08/2013 by paying the renewal premium of Rs 4,176/-. The policy covers complainant and her husband Adv.Prakash Mathew. At the time of enrolling complainant into the policy the insurer was fully convinced of the health status and conditions of the insured and her family members covered by the insurance policy. On 26.12.2012 the 9^th annual meeting of the Theruvath Family was held at Orthodox Student’s Centre, near University College, Thiruvananthapuram. The meeting started at 10 am and it continued till 3.30 pm. The complainant’s husband Adv.Prakash Mathew as the Secretary of the Association was actively and physically involved in the meeting and he was tempted to stand continuously without any rest in the said meeting. After the completion of meeting when he was trying to return through the stair case of the building, he felt sudden heavy pain on his right leg more particularly knee. He was immediately attended by the family members and one of their family doctor advised them to take him to the nearby Jubilee Memorial Hospital, Palayam, Thiruvananthapuram. On the base of investigations the patient was referred to Dr.A.G.Sajan Jerome, Senior Ortho Surgeon, who diagnosed the condition of the patient as medical joint lint tenderness. The doctor advised knee surgery and the surgery was done on 07.01.2013. The discharge summary and other medical records were already sent to the office of the first opposite party along with claim on 05.02.2013. After the receipt of the claim form, the first opposite party’s office has sent letter dated 04.03.2013, directing the complainant to provide all previous /past consultation papers and investigation report related to knee pain. Since the patient, Adv.Prakash Mathew has not undergone any previous treatment or consultation in connection with his knee pain, or any other ailment, the complainant was unable to submit any such documents. Actually either at the time of subscribing the policy or before that the patient Prakash Mathew has not been suffering from any ailment relating to knee joint. This fact was very well replied by the complainant in her letter dated 21.03.2013. The first opposite party has sent a repudiation letter on 11.03.2013, repudiating the claim of the complainant on the ground pre –existing disease. It is ridiculous to see that the repudiation later was dated 11.03.2013 which was much even prior to the receipt of the complainant’s reply dated 21.03.2013. This repudiation letter was just following their earlier query letter dated 04.03.2013. Hence it is obvious that the repudiation of the claim made by the first opposite party was preconceived and predetermined. On receipt of the repudiation letter dated 11.03.2013 the complainant sent another letter by registered post on 09.04.2013 requesting the insurer to reconsider the claim of her husband. But the opposite parties had taken a deaf ear to the grievances to the complainant. The complainant has incurred a sum  of Rs 1.63.506/- (Rupees one lakh sixty three thousand five hundred and six only) towards the hospitalisation expenses at Jubilee Memorial Hospital, Thiruvananthapuram. Since there is no valid reason for rejecting the claim of the complainant including the quantification of amount, the first opposite party is legally liable to reimburse the entire medi claim preferred by the complainant. The act of repudiating the genuine and bonafide claim of the complainant by the first opposite party amounts to unfair trade practice an d deficiency in service on the part of the insurance  company, for which the complainant has no other option but to prefer this compliant before this Hon’ble Forum. Before filing this complaint the complainant has caused to issue lawyer notice on 08.08.2013 calling upon the first opposite party to reimburse the medical expenses incurred by the complainant within 10 days from the date of receipt of the notice. Though the first opposite party received the notice there is no reply from them so far. The subsequent conduct of the first opposite party would also go to show that they are really cheating the complainant by misinterpreting technicalities in the medi claim policy. Hence complainant approached the forum to direct the first opposite party, insurer, to reimburse a sum of Rs 1,63,506/- being the medical expense incurred by the complainant for the surgery and treatment of complainants husband, and to direct the opposite parties 1 to 3 pay a sum of Rs 50,000/- as compensation for the mental agony and sufferings of the  complainant due to the repudiation of claim and the unfair trade practice of the opposite parties and to direct the opposite parties to pay the cost of this proceedings.    

        3. Opposite parties 1 & 2 filed version raising the following contentions. The opposite parties have received claim intimation on 11.02.2013. Immediately investigation was arranged on the basis of the claim received in respect of the above claim. The expert study of the claim, on the basis of the documents submitted by the complainant, revealed that the signs and symptoms of the present ailment were existing since several years, which is prior to the inception of the policy (17/08/2011). A letter was issued on 13.02.2013, to the insured, to provide details of past consultation and investigation reports related to the knee pain. The insured has not responded to the same and accordingly a reminder was given on 04.03.2013. The study of the medical records submitted along with claim form and the investigation conducted with respect to the treatment undergone at the Jubilee Memorial Hospital revealed that the patient was suffering from the ailment prior to the inception of the policy. As per the policy condition “ No indemnity is available or payable for claims directly or indirectly caused by, arising out of connected to any pre-existing condition, benefits will not be payable for any condition(s) as defined in the policy, until 24 consecutive months of coverage for the insured person have elapsed, since inception of the first policy with the insurer”. In view of the above policy conditions, the claim has been repudiated on 11.03.2013, and the copy of the repudiation letter is produced herewith. There was no unfair trade practice and deficiency in service from the side of the first and second opposite parties. The claim was repudiated on valid and lawful grounds as per condition no.1 of the policy. There was no cheating or misrepresentation of technicalities, which would be convinced from the treatment records which does not require any further clarification. The complainant is not eligible for any amount as shown in (a) (b) (c) and (d) of complainant since the complainant is not eligible for any compensation as per policy conditions on the grounds discussed above.

               4.      Opposite party 3 filed separate version contending that the complaint is not maintainable either in law of on facts and hence liable to be dismissed in limine. This opposite party is not a necessary party in this case. It is with the oblique motive of creating jurisdiction for filing this case at Kollam that this opposite party has been arraigned as one of the opposite parties. This opposite party marketed the health policy as an agent on commission basis. This opposite party has no role for either to enroll the customers for taking the policy or for making settlement of claims. All that this opposite party has done is that the information of existence of policy of the first opposite party which can be availed by the customers if they are interested to pay Rs 4100/- towards the premium of the medical insurance policy of the first opposite party through this opposite party was given to the customers. The entire terms and conditions are described and explained in the said policy. There is no relation or role whatsoever for this opposite party in the framing of the said terms and conditions in the policy issued by the first opposite party. This opposite party has no knowledge whatsoever about the repudiation letter dated 11.03.2013 which the first opposite party had issued to the complainant. This opposite party is not aware of the any details of ailments or treatments availed by the complainants husband. The complainant has not issued any notice to this opposite party or made any representation regarding the same to this opposite party. In the said circumstances it is very clear that this opposite party is not at all liable to redress the grievance of the complainant. These being the real facts the entire allegations made by the complainant are false and hence denied by this opposite party as the same is not known to them. There is no deficiency in service or unfair trade practice on the part of this opposite party. The complainant is not entitled to get any relief prayed for in the complaint against this opposite party. The complainant is not entitled to get any compensation, damage or cost from this opposite party. But this opposite party is entitled to get their cost from the complainant.  

        5.     Complainant was examined as PW1 and Exts.P1 to P10 were marked on his side. On the side of the opposite parties DW1 and DW2 were examined and Exts.D1 to D5 were marked. Ext.X1 was also marked. Considering the evidence adduced by the parties and hearing both sides the district forum has passed the impugned order. Aggrieved by the order passed by the district forum the opposite parties 1 & 2 have filed the present appeal.

        6.     Heard both sides. Perused the records.

        7.     The complainant is maintaining on SB account with the third opposite party bank. The third opposite party bank used to enroll its account holders to the medi claim policies of the first opposite party and as per the request of the third opposite party the complainant remitted Rs 4100/- towards the premium of the Medical Insurance Policy. The first opposite party issued Ext.P1 policy. It was issued on 18.07.2011 and it covers the period up to 16.08.2012. Upon the expiry of the said policy the complainant renewed the policy for a further period of one year from 17.08.2012 to 16.08.2013 by paying the renewal premium of Rs 4176/-and the first opposite party had issued Ext.P2 policy. The policy covers complainant and her husband Adv.Prakash Mathew. The husband of the complainant Adv.Prakash Mathew underwent a knee surgery on 07.01.2013 at the Jubilee Memorial Hospital, Palayam, Thiruvananthapuram. Exts.P3 series & P4 are the copies of the treatment records regarding the treatment of the husband of the complainant. Complainant submitted Ext.P5 claim form before the opposite parties 1 & 2 along with the the treatment records. By Ext.P8 letter dated 11.03.2013, the opposite parties 1 & 2 repudiated the claim of the claim of the complainant on the ground of “ pre-existing disease ‘’’. There is not much dispute between the parties to these facts. The district forum found that the opposite parties 1 & 2 have not adduced any oral or documentary evidence to prove that the husband of the complainant had underwent treatment with respect to a pre-existing disease and or he was suffering from that disease before taking the policy. The district forum found that the opposite parties 1 & 2 repudiated the claim without any evidence and there is deficiency in service on the part of the opposite parties 1 & 2. So the complainant is entitled to get medical claim as per the policy with compensation and cost of the proceedings from opposite parties 1 & 2. Aggrieved by that order the opposite parties have preferred the present appeal.

        8.     There is no dispute regarding the validity of the policy or the amount claimed by the complainant towards the treatment expenses of her husband. It is the case of the opposite parties 1 & 2 that the insured is bound by the conditions in the policy and they had repudiated the claim of the complainant, as per the policy condition wherein it is stated that no indemnity is available or payable for claims directly or indirectly caused by arising out of connected to pre-existing condition, benefits will not be payable for any condition (S) as defined in the policy, until 24 consecutive months of coverage for the insured person have elapsed, since the inspection of the first policy with the insurer. It is the case of the opposite parties 1 & 2 that the husband of the complainant underwent knee operation with respect to a pre-existing disease. It is the case of the complainant that on 26.12.2012 the complainant’s husband felt sudden heavy pain on his right leg more particularly knee. It is the case of the complainant that on  that day the annual meeting of the Theruvath family was held at Orthodex Students Centre near University College, Thiruvananthapuram and the husband of the complainant as the Secretary of the Association was  actually and physically involved in the meeting and he has to stand continuously without any trying in the said meeting. After the compliant of the meeting when he was tried to return through the stair case of the building he felt sudden heavy pain on his right leg more particularly knee. He was taken to the Jubilee Memorial Hospital, Palayam and Doctor advised knee surgery and the surgery was done on 07.01.2013. Ext.P3 shows that the husband of the complainant first consulted the Doctor of the Jubilee Memorial Hospital, Palayam on 26.12.2012. The burden is on the opposite parties 1 & 2 to prove their contention that the husband of the complainant had undergone knee surgery with respect to pre-existing disease. If he had been suffering from the disease/pain on his right knee, he would have definitely undergone treatment from any hospital or Doctor. No such treatment records of the patient either inpatient or out patient was produced by the opposite parties 1 & 2. In Ext.P4 discharge summary it is not stated that the patient was suffering his pain / disease for his right knee for long time. The counsel for the appellant pointed out that in one of the pages of the case sheet of the Jubilee Memorial Hospital, it is mentioned “ several years’. There is no signature or initial of the doctor who had made that entry and even the name of the doctor is not mentioned. It is not mentioned that the said entry/writing is made on the basis of the examination of the patient or as stated by the patient. It may be a casual observation of the casualty doctor at the time of admission. Ext.D1 contain the questionnaire answered by Dr.Sajan Jerome who treated the husband of the complainant wherein it is stated by the doctor that the husband of the complainant came before him for treatment on 26.12.2012 complaining of unbearable pain in (R) knee joint and he was suffering from right knee Osteoarthritis for few months, as told by the patient. The cause of osteoarthritis to the patient is stated as ‘due to wear and tear of articuler cartilage’ It is also stated that the husband of the complainant has no past history of hospitalisation. So there is no evidence to consider that the husband of the complainant was suffering from the disease at the time of taking the policy. In these circumstances on the basis of the entry in one of the pages o f the case sheet regarding the treatment of the husband as “several years”, it cannot be found that the husband of the complainant has got the disease / pain to his right knee long back, which was existing at the time of taking the policy. DW1 admitted that as per the IRDA rules if medi claim insurance policy is to be issued to a person aged above 55 years, he / she shall be subjected to medical examination before the issuance of the policy. DW1 deposed that at the time of issuing the medi claim insurance policy the husband of the complainant was aged about 57 years, but he was not subjected to medical examination. DW1 deposed that it is the discretion of the insurance company. So the opposite parties 1 & 2 insurance company waived or dispensed with the medical examination, in the case of the husband of the complainant, before issuing the insurance policy even though he was aged 57 years at that time. If they had subjected him to medical examination before issuing the policy, they would have found out any disease existing at that time which is termed as ‘pre existing’. In these circumstances it requires strong evidence on the part of the opposite parties insurance company to prove that the treatment undergone by the husband of the complainant was with respect to a pre existing disease which, was suppressed by him and the complainant, at the time of issuing the policy and it cannot be decided on the basis of presumption, surmises and conjectures. As found by the district forum, the opposite parties 1 & 2 failed to prove the contentions of pre-existing disease and the rejection of the claim of the complainant by them is without any evidence and the complainant is entitled to get the claim. We consider that there is no ground / reason to interfere with the finding of the district forum that there is deficiency in service on the part of the opposite parties 1 & 2 and hence the complainant is entitled to get Rs 1,63,506/-, medical expenses incurred by her, with compensation and cost of the proceedings. Considering the facts and circumstances of the case we consider that the amount of compensation and cost ordered by the district forum is just and reasonable. Hence no interference is called for the regarding compensation and cost ordered. The district forum has directed the opposite parties 1 & 2 to pay the amount within one month from the date of receipt of the order, failing which they were directed to pay interest at the rate of 9% per annum only on the amount of Rs 1,63,506/-which is just and reasonable. For the above reasons the appeal is to be dismissed.

        In the result, the appeal is dismissed.

        Parties are directed to suffer their respective costs.

                The first respondent / complainant is permitted to obtain the release of the amount of Rs 25,000/- deposited by the appellant at the time of filing of the appeal, on proper application, to be adjusted / credited towards the amount ordered, as above.

 

T.S.P.MOOSATH              : JUDICIAL MEMBER

 

RANJIT.R                         : MEMBER

 

 

 

 

Be/

 

 

 

 

 

 

 

 

 

KERALA STATE

 CONSUMER DISPUTES

 REDRESSAL COMMISSION

SISUVIHARLANE

VAZHUTHACADU

THIRUVANANTHAPURAM

 

APPEAL NUMBER 794/15

JUDGMENT DATED :07.06.2019