Tamil Nadu

North Chennai

CC/106/2018

S.Ramesh Kumar ,S/o.Late D.Shanmugam - Complainant(s)

Versus

Cholamandalam M/s.General Insurance co Ltd Rep by its Manager - Opp.Party(s)

M/s.R.Rajesh Kumar

22 Aug 2022

ORDER

                                                                   Complaint presented on :25.09.2018                                                                      Date of disposal           : 22.08.2022

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

PRESENT: THIRU. G.VINOBHA, M.A., B.L.                            : PRESIDENT

TMT. KAVITHA KANNAN,M.E.,                        : MEMBER-1

                               THIRU V. RAMAMURTHY, B.A.B.L., PGDLA      : MEMBER II

 

C.C. No. 106/2018

 

DATED THIS MONDAY THE 22^nd DAY OF AUGUST 2022

 

S. Ramesh Kumar

S/o. Late D. Shanmugam,

Plot No. MIG-6008,

TNHB Plots, Ayyapakkam,

Chennai, Tamilnadu-600 077                                                .. Complainants.     

..Vs..

 

Cholamandalam MS General Insurance Co. Ltd.,

Rep By its Manager,

New No.319, Old No.154,

Shaw Wallace Building, 2^nd Floor,

ThambuChetty Street, Parrys Corner,

Chennai-600 001.                                                          ..  Opposite party.

 

Counsel for the complainant                  : Ms. R. Rajesh Kumar,

 

Counsel for the opposite party              : M/s. M.B.Gopalan Associates.

 

 

 

 

 

 

 

 

 

ORDER

THIRU V. RAMAMURTHY, B.A.B.L., PGDLA      : MEMBER II

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 prays to pay a sum of Rs.35633/- being the medical bill amount along with 18% interest p.a. from the date of claim and to pay a sum of Rs.2,00,000/- towards mental agony suffered by the complainant and further sum of Rs.2,00,000/- towards the negligence and deficiency of service.

1.THE COMPLAINT IN BRIEF:

          The complainant submits that he has received a phone call from the opposite party marketing executive assuring that all the ailments including pre-existing ailments would be covered under by his company’s medical insurance policy and also assured to give services in this regard.  Believing this, the complainant has purchased a medical insurance policy from the opposite party for himself, wife and two daughters vide policy no. 2864/00127193/000/00 from 23.02.2017 to 22.02.2018 by paying premium of Rs 28,642/-.  The complainant states that one of his daughter Radha Nivedha suffered from severe Grade III Tonsil and faced problem in breathing and sleeping and taken to Sundaram Medical Foundation, Shanthi Colony, Anna Nagar, Chennai on 04.08.2017 and based on severe condition she was operated on 05.08.2017 and for this a sum of Rs.35,633/- was incurred by the complainant.  The complainant submitted the claim hoping for full reimbursement from opposite party since his daughter was hospitalized for more than 24 hours.  The complainant submits that opposite party abruptly refused to reimburse the claim vide their letter dated 05.09.2017 stating that the sign and symptoms of the present ailment were existing since 6 months which is prior to the inception of policy and hence the claim is inadmissible as per general exclusion clause section 5.5.2.  Also the present treatment of Tonsilitis is excluded in the policy for the first two years and hence the claim is inadmissible as per general exclusion clause 5.1.2.  The complainant further submits that the complainant called the opposite parties and explained that she was not suffering from any disease nor she had any symptoms and the doctor of Sundaram Medical Foundation on his own and based on erroneous judgement had said the ailment found since 6 months.  The claim was rejected taking advantage of casual opinion of Doctor.  The actions of opposite party caused great level of mental agony and financial loss and non fulfillment of the insurance claim tantamount to deficiency and negligence of service.  Aggrieved by the act of opposite party, the complainant sent a legal notice on 18.06.2018 and the same was received by the opposite party and a reply dated 09.07.2018 denying the averments was sent by the opposite party.  Hence this complaint.

2.WRITTEN VERSION OF OPPOSITE PARTY IN BRIEF:

The opposite party deny all the averments made in the complaint except those that are specifically admitted.  The opposite party states that complainant had obtained Chola Healthline policy covering himself and his family w.e.f. 23.02.2017, with provision for renewal.  The policy was issued covering hospitalization expenses for treatment of sickness/diseases, subject to terms and conditions of the Policy.  In particular, the Policy does not cover Pre-existing diseases and Exclusions for a period of 48 months and only thereafter claim in respect of the same would be admissible.  The opposite party contended that the complainant avoided filing policy terms and conditions and thus suppressed the same.  The opposite party states that the complainant made a claim for treatment undergone by his daughter RadhaNivedha at Sundaram Medical Foundation for Tonsillectomy on 04-05.08.2017.  The opposite party further submits that the discharge summery produced by complainant revealed that the Tonsillectomy was necessitated by Grade III Tonsils that had developed over a period of 6 months and was thus pre-existing at the time of insurance.  The policy having been availed afresh  within 6 months of the treatment and thus the claim was found to be clearly for pre-existing ailment and therefore not covered by the policy.  Such ailments would be covered only 48 months after the first insurance.  The opposite party states that Tonsils had developed to Grade III and could not have happened all of a sudden.  The discharge summery filed by the complainant itself is sufficient evidencethat the ailment was present for 6 months prior to the treatment.  The opposite party further states that the complainant is blaming doctors of hospital for the narration in the discharge summary by making false allegations against them.  The opposite party has taken proper decisions after going by the records and also as per terms and conditions of policy and the rejection of claim was justified in law and on facts.   Though the complainant blamed the hospital for error in medical records but the hospital was not made as a party.  The complainant cannot target the opposite party by making allegations of error in the medical records having been committed by the hospital.  The complaint is thus frivolous against the opposite party.  The opposite party submits that they have not committed any deficiency of service.  Hence prayed for dismissal of complaint.

3. POINTS FOR CONSIDERATION:

1. Whether the opposite party have committed any deficiency in service?
2. Whether the complainant is entitled for the reliefs prayed in the complaint.     If, so to what extent?

 

The complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A13 were marked on his side.The opposite party has filed proof affidavit and document Ex.B1 was marked on his side.

4.POINT NO :1

             Both parties have filed their written arguments.  Heard the counsels’ arguments also.  Perused the records namely the complaint, written version, proof affidavitand documents.  According to the complainant, he had purchased a medical insurance policy from the opposite party for himself, wife and two daughters vide policy no. 2864/00127193/000/00 from 23.02.2017 to 22.02.2018 by paying premium of Rs 28,642/-.  The complainant’s daughter RadhaNivedha suffered from severe Grade III Tonsil and faced problem in breathing and sleeping and taken to Sundaram Medical Foundation, Shanthi Colony, Anna Nagar, Chennai on 04.08.2017 and she was operated on 05.08.2017 and spent Rs.35,633/- towards hospital expenses and submitted the claim to opposite party for reimbursement.  The opposite party abruptly refused to reimburse the claim stating that the sign and symptoms of the present ailment were existing since 6 months which is prior to the inception of policy and also the present treatment of Tonsilitis is excluded in the policy for the first two years and hence the claim is inadmissible.  The complainant called the opposite parties and explained that her daughter was not suffering from any disease nor she had any symptoms and the doctor of Sundaram Medical Foundation on his own and based on erroneous judgement had said the ailment found since 6 months.  The claim was rejected taking advantage of casual opinion of doctor. 

5. The opposite party denied all the averments made in the complaint.  The opposite party states that complainant had obtained Chola Healthline policy covering himself and his family w.e.f. 23.02.2017, with provision for renewal and the policy was issued covering hospitalization expenses for treatment of sickness/diseases, subject to terms and conditions of the Policy which includes Pre-existing diseases and Exclusions for a period of 48 months.  The complainant daughter RadhaNivedha undergone treatment at Sundaram Medical Foundation for Tonsillectomy on 04-05.08.2017.  As per the discharge summery that Tonsillectomy was necessitated for Grade III Tonsils that had developed over a period of 6 months and was thus pre-existing at the time of insuranceand therefore not covered by the policy.  Such ailments would be covered only 48 months after the first insurance.  The opposite party states that Tonsils had developed to Grade III and could not have happened all of a sudden.  The contention of complainant that the doctors of hospital wrongly narrated in discharge summary is wrong.The opposite party submits that they have not committed any deficiency of service.  Hence prayed for dismissal of complaint.

6. The undisputed facts are that the Complainant had taken medical insurance policy from the opposite party for himself, wife and two daughters vide policy no. 2864/00127193/000/00 from 23.02.2017 to 22.02.2018 by paying premium of Rs. 28,642/- as per Ex.A1.  The complainant alleged that the marketing executive of opposite party assured that all pre-existing diseases are covered in this policy but no proof is filed by the complainant.  On the other hand, the opposite party filed the policy document with terms and conditions which is marked as Ex. B1 and denied no such assurance by their marketing executive.  The complainant neither filed the terms and conditions of policy nor revealed about the knowledge of terms and conditions of policy.  It is observed from Ex.A6 the in-patient test report against Clinical Details it is stated that Chronic tonsilitis, C/O Recurrent sore throat, cough – 6 months.  On perusal of   Discharge summery issued by the hospitalmarked as Ex. A7, it is stated “This 15 year old girl was admitted with recurrent episodes of throat infection for the past 6 months”.   The opposite party relied on the discharge summary as a proof of pre-existing disease and contended that theailment was existing since 6 months which is prior to the inception of policy and hence the claim is inadmissible.  The rejection of claim issued by opposite party which is marked as Ex.A8 states as follows:

             7.  On perusal of documents, it is observed that the sign & symptoms of the present ailment were existing since 6 months, which is prior to the inception of policy (23/02/2017).  Hence present ailment is considered as pre-existing disease and the claim is inadmissible as per General Exclusion clause Section 5.5.2 which reads as below and also it is observed that the present treatment for Tonsilitis which is excluded in the policy for the first two years.  Hence the claim is inadmissible as per General Exclusion Clause 5.1.2 which reads as below.

 

1. General Exclusion clause section 5.5.2 which reads as No indemnity is available or payable for claims directly or indirectly caused by, arising out of or connected to any Pre-Existing Condition benefits will not be payable for any condition(s) as defined in the policy, until 48 consecutive months of coverage for the insured person have elapsed, since inception of the first policy with the insurer. 
2. General Exclusion clause section 5.5.1.2 which reads as No indemnity is available or payable for claims directly or indirectly caused by, arising out of or connected to the following Congenital Internal Diseases, Varicose veins and Varicose Ulcers, Rheumatism and arthritis of any kind, Treatment of diseases on ears/tonsils/adenoids/paranasal sinuses/Deviated Nasal Septum ……. Joint replacement surgery unless because of accident.

 

8. But the complainant contended that his daughter was not suffering from any disease nor she had any symptoms, the doctor of Sundaram Medical Foundation on their own and based on erroneous judgement had stated that the daughter of the complainant was suffering from the said ailment since 6 months.  It is observed from the discharge summary that the girl was admitted with recurrent episodes of throat infection for the past 6 months.  The patient was brought to hospital with symptoms of recurrent throat infection and the patient may not know/judge the kind of disease from the beginning itself.  Hence there is no merit on the  contention of the complainant that the ailment was pre-existing.  The complainant is relying on the following citations :

1. Religare Health Insurance Company Limited VsHarwant Singh son of Amar Singh and Ajindar Kaur – State Consumer Disputes Redressal Commission, Punjab, Chandigarh – FA 133 of 2020
2. Reliance Life Insurance Co. Ltd., VsTarun Kumar SudhirHalder  National Consumer Disputes Redressal Commission, New Delhi – Revision Petition 2097 of 2017.

 

9. The facts of the above cases are different from the facts of the present case, those cases related to hypertension and diabetics which are commonly known as life style diseases.  But, the present case relate to Tonsillectomy which initially starts from the stage of throat infection.   As per Discharge Summary, Ex.A7, the insured was having recurrent episodes of throat infection.  It is a matter of common knowledge that some ailments can spend decades, lurking the body of an individual, until they suddenly spring up in life.  Many persons have diseases that they are already having without knowing the same.  The diseases remain dormant in the body for years and  At any time and at any age, they can strike without warning, changing life forever.  In these circumstances,  as per Ex.A7 discharge summary since it is stated that the complainant daughter was having chronic tosnsilities and recurring sore throat cough for six months and it was further found by the hospital that it is Grade III tonsils, there is every possibilities for the said disease pre-existing at the time of taking policy which was suppressed by the complainant and hence the opposite party rightly rejected the claim by quoting the terms and conditions of the policy which cannot be said to be illegal.  The burden of proof was upon the opposite parties to prove that the insured was suffering from above referred disease prior to taking the policy, and the opposite party by relying upon Ex.A6 and A7 which were issued by the hospital rejected the claim as the disease was pre-existing at the time of policy and also since it is covered under exclusion clause of the policy conditions.  Since the complainant singed in the policy by accepting to the terms and conditions of the policy including Clause 5.5.2 and 5.5.1.2. there is no necessity for the insurance company to conduct medical examination prior to taking policy and there is no force in such contention raised by the complainant.

10. The opposite party in their written version stated that the policy was issued covering hospitalization expenses for treatment of sickness/diseases, subject to terms and conditions of the policy.  In particular, the policy does not cover Pre-existing diseases and Exclusions for a period of 48 months and only thereafter claim in respect of the same would be admissible.  The opposite party filed the policy along with terms and conditions, marked as Ex.B1 and the claim was rejected on two parameters i.e. 1. Pre-existing disease 2. Exclusions for a period of 48 months.  Though the complainant contradicts with the contention of opposite party with respect to Pre-existing disease but was silent with regard to Exclusions for a period of 48 months.  The complainant not even made a mention about the terms and conditions of policy. 

It is found from the terms and conditions of policy, Section 5 EXCLUSIONS, Clause 5.1.2 Expenses incurred on treatment of following diseases within the first 2 years from the commencement of the policy will not be payable: 

d) Treatment of diseases on ears/tonsils/adenoids/paranasal sinuses/Deviated

Nasal Septum.

The opposite party rejected claim of complainant since the ailment for which the complainant daughter undergone falls under the category of Exclusions as per the terms and conditions of policy. Hence this Commission of considered view that the opposite party have not committed any negligence and deficiency of service.  This point is answered accordingly.

 

11. Point No. 2:-

            Based on findings given to the Point.No.2 since there is no deficiency in service by the Opposite party, the complainant is not entitled for  reimbursement of medical bill and compensation as claimed in the complaint.  Point no.2 answered accordingly.

          In the result, the complaint is dismissed. No costs.     

Dictated  by the Member-II to the Steno-Typist taken down, transcribed and computerized by him, corrected by the President and pronounced by usin the open Commission on this the 22^th day of August 2022.

 

MEMBER – I                   MEMBER II                      PRESIDENT

LIST OF DOCUMENTS MARKED ON THE SIDE OF THE COMPLAINANT:

Ex.A1	23.02.2017	Health Insurance Policy.
Ex.A2	05.08.2017	Medical Bill No.95817/DRSAL/1/2017
Ex.A3	05.08.2017	Medical Bill No.95582/DRSAL/1/2017
Ex.A4	05.08.2017	Medical Bill No.95757/DRSAL/1/2017
Ex.A5	05.08.2017	In Patient Medical bill no. 7475/SMF/IPBL/2017
Ex.A6	05.08.2017	In patient test report.
Ex.A7	05.08.2017	In patient Discharge summary.
Ex.A8	05.08.2017	Payment receipt.
Ex.A9	29.08.2017	Claim form.
Ex.A10	05.09.2017	Claim rejection letter.
Ex.A11	18.06.2018	Legal notice caused by the complainant.
Ex.A12	20.06.2018	Acknowledgement.
Ex.A13	09.07.2018	Reply notice caused  by the opposite parties.

LIST OF DOCUMENTS MARKED ON THE SIDE OF THE OPPOSITE PARTY

Ex.B1

Insurance policy with terms and conditions.

 

 

MEMBER – I                   MEMBER II                      PRESIDENT