By Jayasree Kallat, Member:

            Complaint is filed by the complainant under Section-12 of the Consumer Protection Act.  The complainant had been covered as per the medi claim policies issued by the first opposite party for more than 15 years.  The details of the medi claim policies are as given below:

            1.         100307/48/37/92/12226                      25-6-92  to  24-6-93

2.                  100307/48/37/18151/93                      25-6-93  to  24-6-94

3.                  100307/48/19080/94                           25-6-94  to  24-6-95

4.                  100307/48/37/20164/95                      25-6-95  to  24-6-96

5.                  100307/48/37/20979/96                      25-6-96  to  24-6-97

6.                  100307/48/37/21832/97                      25-6-97  to  24-6-98              

7.                  100307/48/37/98/22550                      19-8-98  to  18-8-99

8.                  100307/48/37/23401/99                      27-8-99  to  26-8-00

9.                  100307/48/37/24411/2000                  27-8-00  to  26-8-01

10.              100307/48/37/11/25639/2001             27-8-01  to  26-8-02

11.              100307/48/02/000409                         20-9-02  to  19-9-03

12.              100307/48/00458                                20-9-03  to  19-9-04

13.              100307/48/04/00765                           20-9-04  to  19-9-05

14.              100307/48/05/76/00000739                20-9-05  to  19-9-06

15.              100307/48/06/20/00000917                20-9-06  to  19-9-07

Complainant has been taking medi claim policy from the first opposite party since 1992.  Meanwhile during January 2007 complainant had developed Coronary artery disease.  She had undergone treatments in the Malabar Institute of Medical Science, Calicut.  She was admitted in the hospital on 27-1-07 and was discharged on 5-2-07.  Complainant had undergone surgery from the hospital on 29-1-07.  Complainant underwent a Coronary artery bypass graft surgery, for which she had to spend an amount of Rs.1,37,312/-.  Complainant submitted claim form before the first opposite party for reimbursement of the amount spent for medical treatments.  The second opposite party rejected the claim of the complainant stating that the policy coverage is only for 4 years.  The present ailments is a complication of the pre existing ailment, it is not covered by the policy.  The ailment of the complainant was detected during 2007 only.  The complainant is holding the policies issued by the first opposite party since 1992.  Complainant is entitled to get the amount spent by the complainant for her treatments in view of the specific terms and conditions contained in the policy.  Opposite parties have repudiated the claim without any reason.  The medi claim policies have been issued by the opposite parties after satisfying themselves that the complainant is not suffering from any disease.  At the time of issuing the policy it is the bounden duty of the opposite parties to verify and to see that the policy holders are not having any pre existing ailments at that time.  The opposite parties rejected the claim of the complainant without any reason or justification.  The act of the opposite parties amounts to deficiency in service.  Complainant had to expend an amount of Rs.137312/- towards treatment expenses.  Due to the rejection of the claim complainant suffered hardships and mental agony.  Hence this petition is filed for reimbursement of the expenses towards medical treatment and for compensation.

            Opposite party-1 filed a version denying the allegations in the complaint except those that are expressly admitted.  Opposite party denies the averment in Para-3 of the complaint that the complainant have been covered as per a medi claim policies issued by the first opposite party for the last 15 years.  There was no insurance policy for the period 27-8-02 to 10-9-02.  Mrs. C.P. Aysha the petitioner herein was a patient since 2002 as per the certificate issued by Dr. Ali Faizal, Department of Cardiology, MIMS Hospital.  According to the certificate dated 19-5-07 she was having hypertension and diabetes mellitus.  As per Sl. No.10 of the policy the details given by the complainant the policy came to end on 26-8-02. There after policy was taken on 28-9-02.  the claim of the complainant is based on the policy for the period from 20-9-06 to 19-9-07.  As per the exclusion clause of the contract of the insurance 4.1 “ All diseases/injuries which are pre-existing when the cover incepts for the first time.”  The Coronary artery disease during January 2007 and admission in the hospital on 27-1-07 and the surgery are for a pre-existing disease and hence the same is not covered by the policy.  The renewal of the policy on 20-9-02 was done after the lapse of the policy ended on 26-8-02.  There was no insurance for the period from 27-8-02 to 10-9-02.  The claim was repudiated by the third party administrator because the present claim for cad, unstable Angina, DVD, as per medical evidence submitted it is clear that the patient is a known case of hypertension since 8 years and diabetes since 4 years.  The policy coverage is only 4 years.  As the present ailment is a complication of pre existing ailment, it is not covered by policy.  Hence claim is rejected.  The complainant is not entitled for any relief.  Opposite party prays to dismiss the complaint with costs.

            Notice sent to opposite party-2.  Opposite party-2 did not appear before the Forum.  Hence after 7 postings opposite party-2 was called absent and set exparte.

            The  points for consideration is whether the complainant is entitled for any relief?  If so what is the quantum?

            PW1 was examined and Ext.A1 to A21 were marked on complainant’s side.  No oral evidence adduced by opposite party.  Ext.B1 and B2 were marked on opposite parties’ side.

Point No.1:-

            The case of the complainant is that she had taken medi claim policy of the opposite parties for hospitalization and domiciliary hospitalization benefit.  Complainant had taken medi claim policy for the first time on 25-6-92.  Ext.A1 is the policy schedule which shows that the complainant started to take the policy with effect from 25-6-92 onwards.  Complainant has produced policy schedules subsequent to 1992 to show that she has been taking the policy regularly up to 19-9-07.  The complainant had undergone surgery on 29-1-07.  She was admitted in the hospital on 27-1-07 and discharged on 5-2-07.  Ext.A17 policy validity for C.P. Ayisha shows the date as 20-9-06 to 19-9-07.  Opposite party admits the fact that the complainant had a valid policy during 20-9-06 to 19-9-07.  The surgery was done within this period that is 27-1-07.  Opposite party has taken the contention that there was no insurance policy for the period 27-8-02 to 10-9-02 so there was no continueous policy.  The counsel for the complainant argued that the complainant started to take the policy from 1992 onwards and she was having valid policy during 2006 to 2007.  The documents produced also will show that she had policies from 1992 to 2007.  Just because she did not renew the policy for two weeks is not a valid reason to repudiate the claim.  Opposite party had repudiated the claim on the basis of the certificate issued by Dr. Ali Faizal on 19-5-07.  Ext.A16 is the certificate given by Dr. Ali Faizal.  In Ext.A16 it was stated that “ Mrs. C.P. Aysha,  was our patient since 2002, and she was having hypertension and diabetes mellitus.”  Quoting this sentence opposite party had taken the contention that C.P. Aysha was having hypertension and diabetes mellitus as early as 2002.  The surgery was done during January 2007.  So the opposite party has concluded that it was a pre existing disease.  In the same certificate Ext.A16 Dr. Ali Faizal has also stated that according to the available current evidence in cardiology it cannot be stated coronary artery disease is a complication of diabetes mellitus, it is only one of the risk factors for coronary artery disease.  Opposite party had repudiated the claim based on the fact that policy came to an end on 26-8-02 or after policy was taken on 20-9-02.  The claim of the complainant is based on the policy for the period from 20-9-06 to 19-9-07 as per the exclusion clause of the contract of the insurance 4(1) of the diseases which are pre existing when the cover incepts for the first time, claim will not be allowed.  According to opposite party the ailment for which the complainant had undergone surgery on 27-1-07 is pre existing.  As the certificate of Dr. Ali Faizal stated that Mrs. C.P. Aysha was a patient since 2002 opposite party has rejected the claim. Complainant’s counsel vehemently argued that there is no relevancy for the contention raised by the opposite parties as the  break as stated by the first opposite party was during 2002.  The surgery was done in 2007 and Ext.A1 is the concrete proof to show that the complainant had started taking medi claim policy as early as 1992.  The subsequent documents Ext.A2,A3,A4 and A5 etc. will show that the complainant was continuously having medi claim policies upto 2007.  If we consider the fact that the complainant was taking medi claim policy from 1992 onwards upto 2007 we can definitely observe that she had been regularly taking medi claim policy then the break up for about 15 days will not carry any relevance as raised by the opposite parties.  There was no suppression of material facts as the complainant is holding policies since 1992.  Complainant has cited several judgments which deal with identical issues.  They are (1)  II (2001) CPJ 467 (Kerala State Commission) which directed the opposite party to reimburse the medical expenses. (2) 2007 (2) CPR 479 (NC) (3)  1993 (3) CPR 203 (N.C.) (4)  1997 (2) CPR 21 ( N.C.)  (5) 1996 (3) CPR 229  (6)  2008 (1) CPR 342 (Hon’ble National Commission).  The latest being in 2008 (3) KLT 1015.  The Hon’ble High Court of Kerala in the said judgment has held that if there is any ambiguity in the terms and conditions of the policy issued by the Insurance Company, the one beneficial to the insured should be accepted.  Going through all the facts of this case and in view of the dictums laid down in the above mentioned judgments we are of the opinion that the complainant is entitled for a relief.

Point No.2:-

            Forum has come to the conclusion that the complainant is entitled for relief.  Next question to be answered is to what extend of the amount is the complainant entitled. Opposite party has produced Ext.B1 medi claim insurance policy.  In Ext.B1 in the column for the details of insured and other family members residing with the insured if covered, the sum insured is shown as Rs.1,00,000/-.  Hence we are of the opinion that complainant, C.P. Aysha in whose name the medi claim policy for hospitalization and domiciliary hospitalization benefit policy is insured is entitled for an amount of Rs.1,00,000/-. ( Rupees One Lakh only)

Pronounced in the open court this the 10th day of February 2010.

            Sd/- PRESIDENT                                Sd/- MEMBER                        Sd/- MEMBER

APPENDIX

Documents exhibited for the complainant:

 A1.  Photocopy of Policy schedule 25-6-92 to 24-6-93.

 A2.  Photocopy of Policy schedule 25-6-93 to 24-6-94.

 A3.  Photocopy of Policy schedule 25-6-94 to 24-6-95

 A4.  Photocopy of Policy schedule 25-6-95 to 24-6-96.

 A5.  Photocopy of Policy schedule 25-6-96 to 24-6-97.

 A6.  Photocopy of Policy schedule 19-8-98 to 18-8-99.

 A7.  Photocopy of Policy schedule 27-8-99 to 27-8-00

 A8.  Photocopy of letter sent by the complainant t the first O.P. dt. 13-6-01.

 A9.  Photocopy of Mediclaim policy schedule 27-8-01 to 26-8-02.

A10. Photocopy of Policy schedule 20-9-02 to 19-9-03.

A11. Photocopy of Policy schedule 20-9-03 to  19-9-04.

A12. Photocopy of Policy schedule 20-9-04 to  19-9-05.

A13. Photocopy of Policy schedule 20-9-05 to  19-9-06.

A14. Photocopy of Policy schedule 20-9-06 to  19-9-07

A15. Photocopy of letter from O.P.2 to the complainant dt. 16-2-07.

A16. Photocopy of Certificate issued by Dr. Ali Faizal of MIMS Hospital dt. 19-5-07.

A17. Photocopy of letter dt. 13-4-07 sent by O.P.2 to the complainant.

A18. Photocopy of Postal acknowledgements ( 3 in Nos.)

A19. Photocopy of repudiation letter dt. 5-11-07.

A20. Reply notice dt. 16-11-07.

A21.  Medical bill issued from MIMS Hospital dt. 5-2-07.

Documents exhibited for the opposite party

B1.  Mediclaim Insurance Policy

B2.  Claim Status letter dt. 16-2-07 sent by O.P.2 to the complainant.

Witness examined for the complainant.

PW1.  C.P. Ayisha (Complainant)

Witness examined for the opposite party.

            None

                                                                                    Sd/- President

                                    // True copy //

(Forwarded/By order)

SENIOR SUPERINTENDENT.