BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE.
DATED THIS THE 16th DAY OF JULY 2021
PRESENT
MR. RAVISHANKAR : JUDICIAL MEMBER
MRS. SUNITA CHANNABASAPPA BAGEWADI : MEMBER
APPEAL NO. 375/2017
Star Health & Allied Insurance Company Limited, Family Health Optima Insurance Plan, C-51, 1st Floor, 8th Main, Above : Professional Couriers, Saraswathipuram, Mysuru 570 008. Through its Zonal Office, Esteem Tower, No.71, 3rd Floor, Railway Parallel Road, Kumara Park West, Bangalore 560 001, Rep. by its Joint Vice President Mr. John Noronha. (Bu Sri K. Krishna Kishore) | ……Appellant/s |
V/s
Sri D. Basavaraju, Major, S/o Doddaiah, No.1269/1, 7th Cross, Sahukar Cennaiah Road, Janathanagar, Mysuru. (By Sri T. Ajay) | …Respondent/s |
ORDER
MRS. SUNITA CHANNABASAPPA BAGEWADI , MEMBER
1. The appellant/Opposite Party has preferred this appeal being aggrieved by the Order dt.13.01.2017 passed in CC.No.1165/2016 on the file of District Consumer Disputes Redressal Commission, Mysuru.
2. The facts leading to the appeal are as hereunder;
It is the case of the complainant that he had obtained “Family Health Optima Insurance Plan” from the Opposite Party on 31.03.2014 bearing policy No. P/141116/01/2015/006181 for an assured sum of Rs.3 lakhs which commences from 31.03.2015 to 30.03.2016 which covers 2 adult + 2 children. Such being the case, on 16.01.2016 the complainant while riding a two wheeler a cow came between the way, he applied brake and had skid and fall and sustained back pain and other injuries all over the body. He took a treatment at Apollo Hospital on 19.01.2016 and the doctor suggested MRI Scan and other checkups. The doctor diagnosed that the complainant is suffering from L5-S1 Degenerative stenosis with right lower limb Radoculopathy and weakness and Retrolisthesis L5 over S1 and Lumbraised S1 and on the basis of scan report he advised the complainant to undergo surgery as early as possible. On 21.01.2016 the complainant underwent surgery of Minimally Invasive L5-S1 Decompression Stabilization + Tlifi and spent Rs.2,18,291/-. By virtue of the policy, the complainant had claimed for the medical expenses paid towards his treatment, but, the Opposite Party in its letter dt.22.01.2016 approved only preliminary amount of Rs.30,000/- and again on 25.01.2016 sent a letter to the hospital regarding rejection of pre-authorization for cashless treatment of the complainant is not approved. After discharge, the complainant again sent several letters to the Opposite Party towards claim of his medical expenses, but, the Opposite Party repudiated his claim due to non-disclosure of material facts. Aggrieved by this, the complainant filed a complaint before the District Commission, wherein the District Commission allowed the complaint and directed the Opposite Party to pay a sum of Rs.2,18,291/- along with other expenses towards mental agony, unfair trade practice and litigation cost.
3. Aggrieved by the said Order, the appellant/Opposite Party is in appeal. Heard the arguments of both counsels.
4. Perused the memorandum of appeal, certified copy of the Order passed by the District Commission and materials on record, we noticed that it is an undisputed fact that the complainant has obtained the “Family Health Optima Insurance Plan” from the Opposite Party on 31.03.2014 bearing policy No. P/141116/01/2015/006181 commences from 31.03.2015 to 30.03.2016 which covers 2 adult + 2 children for an insured amount of Rs.3 lakhs. Further, it is an admitted fact that on 21.01.2016 complainant underwent surgery of Minimally Invasive L5-S1 Decompression Stabilization + Tlifi and discharged on 26.01.2016. The complainant spent Rs.2,18,291/- towards his treatment as per the bill issued by Apollo Hospital, Mysore.
5. On going through the appeal memo, the only disputed fact is that the complainant has intentionally did not disclose the pre-existing disease at the time of taking the policy and non-disclosure of this fact by the complainant amounts to violation of the terms and condition of policy and for such violation, the Opposite Party company is not liable to settle the claim of the complainant.
6. As per Clause-3.0 Exclusions: During the first two years of continuous operation of insurance cover any expenses on cataract, diseases of the Vitreous and Retina, Glaucoma, diseases of ENT, Mastoidectomy, Tympanoplasty, Stapedectomy, diseases related to Thyroid, Prolapse of intervertebral disc (other than caused by accident). Varicose veins and varicose ulcers, all diseases of prostate, stricture urethra, all obstructive-uropathies, all types of hernia, varicocele, hydrocele, fistula/fissure in ano, Hemorrhoids, Pilonidal sinus and fistula, Rectal Prolapse, stress incontinence and congenital internal disease/defect. Disc prolapse occurs due to building up of excessive pressure in the spinal card. It usually occurs in the lumbar spine or the lower back, in cervical spine or neck and rarely in thoracic spine or mid back region and same causes of disc prolapsed could be landing on your buttoks when you fall from significant heights means prolapsed of intervertebral disc occurred due to age or fall from significant heights.
7. In this case, the complainant while riding the two wheeler applied sudden brake to avoid cow and fell on road and sustained back pain and other injuries all over the body. When the pain was increased, the complainant visited the hospital for treatment on 19.01.2016 and on the basis of MRI scan report, the doctor advised the complainant to undergo surgery as early as possible. The complainant underwent surgery for Minimally Invasive L5-S1 Decompression Stabilization + Tlifi on 21.01.2016 and spent Rs.2,18,291/- as per the bill issued by the Apollo Hospital, Mysore. This fact is proved by the complainant by producing documentary evidence in Commission below. The contention of the Opposite Party was the complainant has pre-existing disease and intentionally he did not disclose the same at the time of taking the policy. However, the Opposite Party has taken a defence that the complainant was suffering from pre-existing disease before taking the policy, then the burden is shifted on Opposite Party to prove the complainant has pre-existing disease and he has taken treatment from any hospital before taking the policy. Mere defence taken by the Opposite Party without any documentary evidence that the complainant has suppressed about his pre-existing disease, the Opposite Party cannot be escapes from its liability. Hence, in our opinion, the District Commission rightly directed to pay a sum of Rs.2,18,291/-, but, the rate of interest awarded by the District Commission is at 18% p.a. on Rs.2,18,291/- and 12% p.a. on the amount for mental agony, unfair trade practice and litigation expenses is quite high. Hence, it has to be modified. Hence, the following;
ORDER
The appeal is disposed-of.
The Order passed by the District Commission, Mysuru in CC.No.1165/2016 is hereby modified;
The Opposite Party is directed to pay a sum of Rs.2,18,291/- to the complainant along with interest at 9% p.a. from 22.01.2016, till realization.
The Opposite Party is further directed to pay a sum of Rs.10,000/- towards deficiency in service and Rs.5,000/- towards litigation expenses to the complainant.
The Opposite Party is granted 60 days time from this date to comply the Order.
The amount in deposit shall be transmitted to the District Commission for disbursement of the same to the complainant.
Forward free copies to both parties.
Sd/- Sd/-
MEMBER JUDICIAL MEMBER
KCS*
