BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

                                                Complaint No: 775 of 14.11.2014.

                                                Date of Decision: 07.10.2015.

Somesh Sharma son of Shri Ved Parkash Sharma, resident of House No.810/F, Prem Nagar, Civil Lines, Ludhiana

..… Complainant

 Versus 

Apollo Munich Health Insurance Co. Ltd., through its Chairman/Managing Director, Registered Office: Apollo Hospitals Complex, Jubilee Hills, Hyderabad, Andhra Pradesh 500033.

…..Opposite party 

                                      Complaint under the Provisions of Consumer Protection Act, 1986

QUORUM:

SH. G.K. DHIR, PRESIDENT

SH. S.P. GARG, MEMBER

COUNSEL FOR THE PARTIES:

For complainant            :         Sh. S.M. Gulati, Advocate.

For OP                           :         Sh. Ajay Chawla, Advocate.

ORDER

PER G.K. Dhir, PRESIDENT

1.               Complainant Somesh Sharma filed complaint under Section 12 of The Consumer Protection Act, 1986 (herein-after in short to be referred as ‘Act’) by claiming that he obtained medical insurance policy from OP long back and at that time he was medically examined as per norms for covering him as insured. After finding the complainant fit, OP issued policy bearing No.10004012727 and thereafter, complainant had been paying premium regularly. Complainant has not suffered from any ailment since inception of the insurance policy, which was issued almost a decade earlier. Complainant suffered from infection problem a few months prior to the filing of complaint, due to which he was admitted in Medicine Department of Dayanand Medical College and Hospital, Ludhiana. OP reimbursed the claim without any fuss. At that time a stone was detected. OP sanctioned the surgery expenses for removal of the stone in November 2013. As complainant did not suffer any pain and as such, he decided to postpone the treatment. Earlier to that complainant had not been admitted for any ailment in any hospital. Recently, complainant developed pain and on medical tests being conducted, it was found as if the complainant has stone in left kidney. Complainant got himself admitted in Dayanand Medical College and Hospital on 07.06.2014 and was operated for removal of the stone. Complainant submitted the claim for reimbursement of expenses, but after putting certain queries, claim was repudiated on flimsy excuses vide letter dated 24.09.2014  There was no problem of horseshoe kidney, which was allegedly stated to be asymptomatic for the last 52 years i.e. since from birth of complainant. Horseshoe kidney never caused any ailment till today. Medical authorities stated that horseshoe kidney is the condition in which the kidneys are fused together at the lower end or base. There is no treatment for horseshoe kidney itself. The treatment is directed for the accompanying diseases such as urinary tract infection and hydonephrosis. Reports suggest that left kidney of complainant is normal and there is radio opaque density s/o calculus measuring approximately 15.00 mm seen in KUB film. The only indication is that there was stone of approximately 15.00 mm. In another report dated 07.06.2014, it was mentioned that the left kidney has two stones measuring 6.5 mm and 13 mm. Those stones were lying in the lower part of left kidney and upper portion of ureters.    Those were removed. There was no treatment of horseshoe kidney, but claim has been repudiated illegally. Notice dated 06.10.2014 was issued by complainant through counsel, but no reply of the same received. Reimbursement of Rs.64,595/- along with interest @18% per annum and compensation of Rs.50,000/- claimed.

2.                In written reply submitted by OP, it is pleaded, interalia,  that the complaint is not maintainable; complainant has no cause of action and a false story has been put forth. Dispute not raised regarding issue of policy in question. However, it is claimed that as per discharge summary of complainant, his case was diagnosed as a case of Horseshoe Kidney (L) Nephrolithiasis. Left Percutaneous Nephrolithotomy (PCNL) was done on 10.06.2014. Horseshoe kidney also is known as ren arcuatus (in Latin). That disease is a congenital disorder and is often asymptomatic. However, the persons suffering from horseshoe kidney may experience nausea, abdominal discomfort, kidney stone and urinary tract infection frequently. Claim of complainant was rightly repudiated as per terms and conditions of the policy because Horseshoe kidney is a congenital disorder covered by exclusionary clause of the policy. Proposal/application No.1101759388 dated 03.08.2012 along with Portability Form for purchase of Easy Health Individual Standard Plan for insuring complainant, his wife and daughter were filled. Proposer aspired to quote his earlier policy from United India Insurance Company to Apollo Munich Health Insurance Company Ltd. Medical examinations were conducted on the basis of information provided to the doctor conducting medical examination. The proposal was accepted on the basis of information provided by the proposer and thereafter policy No.110600/11001/1000316932 dated 30.08.2012 was issued with commencement date of 30.08.2012. That policy further stood renewed on 29.08.2013 till 30.08.2014 and further until 29.08.2015. Complainant/proposer after going through the contents of addendum forms, proposal/application form and understanding the terms and conditions of the policy put signatures on the proposal form. Claim form was received by OP on 05.07.2014 for reimbursement of the claim qua complainant, who remained admitted in Dayanand Medical College and Hospital for Horseshoe Kidney with Nephrolithiasis treatment. Date of admission of complainant was 07.06.2014, but date of discharge was 13.06.2014. On post reviewing the documents, queries were raised for getting certificate of treating doctor for etiology of nephrolithiasis and breakup details of final bills on hospital letter head. In the treating certificate of the complainant, age of the complainant was mentioned as 52 years. Even it was mentioned therein that complainant has horseshoe kidney, which is asymptomatic  for the last 52 years. On post reviewing of documents, claim of complainant was rejected on 12.10.2014 on ground that as horseshoe kidney nephrolithiasis was done and as such, defect falls in the category of congenital defect/anomalies. Due repudiation of the claim was done and as such, there is no deficiency in service on the part of OP. Each and every other averment of complaint denied.

3.                Complainant to prove his case, tendered his affidavit Ex. CA along with documents EX. C1 to Ex. C25 and then closed evidence.

4.                On the other hand, counsel for OP tendered in evidence, affidavit Ex. RA (in the shape of written reply) along with documents Annexure-OP1 to Annexure-OP2 and then closed evidence.

5.                Written arguments were not submitted by any of the parties. Only oral arguments heard.

6.                Ex. C1 is the document produced for establishing that renewal of Easy Health Insurance Policy took place for period from 30.08.2013 to 29.08.2014. There is no dispute raised qua fact that complainant was insured and got treatment from Dayanand Medical College and Hospital and thereafter submitted claim form for reimbursement of Rs.64,595/-, the amount spent on treatment. However, that claim was rejected vide letter Ex. C20 on the ground that complainant was admitted for treatment of horseshoe kidney nephrolithiasis, which falls under congenital defect/anomalies. Repudiation of the claim contended to be unjustified because treatment was not got by complainant for horseshoe kidney disorder, but same was got for removal of stones lying in lower part of left kidney and upper portion of ureters. That contention of counsel for complainant stoutly opposed by counsel for OP by contending that actually the treatment was for horseshoe kidney, which is a congenital disorder.

7.                Ex. C2 and Ex. C3 are the radio diagnosis reports showing that impression gathered on conduct of test were, “FATTY LIVER (GRADE I) AND HORSE SHOE KIDNEY WITH LT. RENAL CALCULAS”. Ex. C4 to Ex. C6, Ex. C8 and Ex. C9 are the other reports of blood tests or of microbiology or of pathology. The impression gathered through radio diagnosis report Ex. C7 dated 09.06.2014 also are to the effect that features are suggestive of horseshoe kidney with left Nephrolithiasis and grade-II hydronephrosis. Even in discharge summary Ex. C10, it is mentioned in the column of diagnosis that treatment was for Horseshoe Kidney (L) Nephrolithiasis. Further as per Ex. C10 (L) PCNL was done on 10.06.2014. Perusal of Annexure-OP2 reveals that horseshoe kidney also is known as ren arcuatus (in Latin), renal fusion or super kidney. It is a congenital disorder affecting about 1 in 400 people and is more common in men.   In this disorder, the patient’s kidneys fuse together to form a horseshoe-shape during development in the womb. The fused part is the isthmus of the horseshoe kidney. So horseshoe kidney is most common renal fusion anomaly.  Most of the cases of horseshoe kidney are asymptomatic  and discovery of the same sometimes done on  autopsy only. Persons affected by horseshoe kidney may experience nausea, abdominal discomfort, kidney stones and urinary tract infections more frequently than those without renal fusion.  Treatment of horseshoe kidney is done by nephrolithiasis as per this Annexure-OP2. As the treatment of horseshoe kidney (L) nephrolithiasis was done in this case also is a fact disclosed by discharge summary Ex. C1 and as such, certainly treatment was done for congenital disorder/anomaly. As horseshoe kidney is asymptomatic and as such, the symptoms may not develop for long time of 52 years or even till death. The effect of horse shoe kidney symptoms are hydronephrosis, nephrolithiasis due to which infections are most often complained of and as such by keeping in view the contents of Annexure-OP2 and discharge summary Ex. C1, there is no escape from the conclusion that PCNL was done on complainant on 10.06.2014 after diagnosing congenital disorder of horseshoe kidney of complainant. Submissions of counsel for complainant as such has no force that treatment for horseshoe kidney of complainant was not done during his admission in Dayanand Medical College and Hospital, Ludhiana from 07.06.2014 to 13.06.2014.  

8.                After going through the terms and conditions of the policy, it is made out that payment for any claim in respect of any insured person directly or indirectly for,  caused by, arising from or in any way attributable to congenital internal or external diseases, defects or anomalies, genetic disorders not to be made by OP. As horseshoe kidney is a congenital internal defect or anomaly and as such, repudiation of the claim is as per medical exclusionary clause of the policy. Congenital disorder in fact is a congenital defect or congenital anomaly since from birth and as such, repudiation of the claim for horseshoe kidney treatment through nephrolithiasis is fully justified, being in accordance with the terms and conditions of the insurance policy in question.             

9.                        As the persons affected by horseshoe kidney may experience problem of kidney stones or of urinary tract infection most frequently than those without renal fusion and as such, if the complainant treated for removal of the kidney stone, but the same actually occurred because of frequency of formation of kidney stone in the body of complainant due to horseshoe kidney and as such, said disease was on account of congenital disorder. Removal of the stone was having direct affect with horseshoe kidney and as such, submissions of Sh. S.M. Gulati, Advocate for complainant has no force that treatment was not for rectifying congenital defect/disorder.    

10.              After going through ratio of case National Insurance Co. Ltd. Vs Arun Kumar Goyal 2011(1) C.P.J. (N.C.) 266, it is made out that if clause 4.3 of the policy in question provides that insurer not liable to make the payment in respect of any expenses, whatsoever incurred by any insured person in connection with or in respect of treatment of disease such as cataract, congenital etc., then the insurer will not be liable for treatment of  Acyanotic Congenital Heart disease, which came to the knowledge  in the first year of the policy. Congenital means a disease from birth. Internal diseases could not be seen by naked eye as per ratio of this case. Ratio of this case is fully applicable to the facts of the present case because congenital defect/anomaly of horseshoe kidney cannot be seen by naked eye, but the same can be ascertained only on conduct of due tests or on autopsy only as per medical science Wikipedia Annexure-OP2, referred above.

11.              There is no denial of the fact that certificate dated 01.09.2014 of treating doctor was submitted by complainant with OP. That certificate discloses that the complainant, an aged fellow of 52 years was admitted in Dayanand Medical College and Hospital, Ludhiana on 07.06.2014 for treatment because of his horseshoe kidney, which remained asymptomatic for the last 52 years. As per certificate, 60% of horseshoe kidneys are asymptomatic. Infection, metabolic abnormality and anatomic abnormality are all possible causes for stone formation in body of complainant. So this certificate even corroborates the contents of Annexure-OP2 that horseshoe kidney in complainant may not have been discovered for 52 years and the formation of stones may have been due to this congenital disorder. So virtually the treatment in question was on account of the congenital disorder/defect because of horseshoe kidney. Clause VI(k) of the terms and conditions of the policy as provides for not paying any claim in respect of the congenital  defects or anomalies and as such, the treatment in question has been caused due to the internal defect/anomaly of horseshoe kidney and as such, repudiation of the claim is in accordance with the terms and conditions of the insurance policy.  It is immaterial as to when congenital defect came to the knowledge of complainant or OP. Exclusionary clause referred above is quite in para-materia TO clause 4.3 of the policy conditions referred in above said case of National Insurance Company Ltd. Vs Arun Kumar Goyal  and as such it is immaterial as to when the parties got knowledge of congenital disorder of horseshoe kidney of complainant.

12.              In case titled as National Insurance Company Ltd. Vs Mukesh Kumar Arora 2005(3) CLT 243, distinction was drawn between congenital internal disease and congenital internal disorder or anomaly because the exclusionary clause 4.3 of this reported case covered  congenital internal disease alone. However, in the case before us the congenital defect/anomaly falls in the exclusionary clause and as such, ratio of this case is not applicable to the facts of the present case.

13.              Benefit from ratio of case Parveen Damani Vs Oriental Insurance Co. Ltd. 2007(1) CLT 213 cannot be gained by counsel for complainant because the terms and conditions of the policy in the reported case provided for exclusion of pre-existing disease treatment only in case the factum of that disease would have been suppressed deliberately. That is not the position in the case before us because here the terms and conditions of the insurance policy itself provides for exoneration of insurer in case treatment is got for disease caused by congenital defect/anomaly.  So the question of knowledge of congenital disorder/defect is immaterial.  Even in case of Geeta Gupta Vs New India Assurance Co. Ltd. 2004(3) C.P.J. 399, it has been held by Hon’ble Chhattisgarh State Consumer Disputes Redressal Commission, Raipur, that question of insured’s knowledge would not be relevant or material in case the exclusionary clause provides for exoneration of insurer qua expenses borne on congenital internal disease. Same is the position in the case before us because here question of knowledge has no relevancy with the exclusionary clause VI (k) of the terms and conditions of insurance policy in question. As repudiation of the claim is justified and as such there is no deficiency in service on the part of OP, even though complainant is its consumer.

14.              As a sequel of the above discussion, the present complaint dismissed with no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

                              (Sat Paul Garg)                     (G.K. Dhir)

                               Member                                President

Announced in Open Forum.

Dated:07.10.2015 

Gobind Ram.