BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER O.P.No. 299/2004 Filed on 26.07.2004 Dated : 29.08.2008 Complainant: J. Gopinathan Pillai, Vilayil Veedu, Cherunniyoor P.O, Varkala, Thiruvananthapuram. (By adv. Cherunniyoor P. Sasidharan Nair) Opposite parties: 1.The New India Assurance Company Limited, represented by its Divisional Manager, II Floor, Kottarathil Buildings, Palayam, Thiruvananthapuram. 2.The Branch Manager, New India Assurance Company Limited, Divisional Office, II Floor, Kottarathil Buildings, Palayam, Thiruvananthapuram. (By adv. Sreevaraham G. Satheesh) This O.P having been heard on 30.07.2008, the Forum on 29.08.2008 delivered the following: ORDER SMT. S.K.SREELA: MEMBER The allegations in the complaint is as follows: The complainant took a medical policy under Pravasi Suraksha Kudumba Arogya Scheme of the opposite parties' company on 02.08.2001. On 11.11.2002 the complainant was admitted to Lords Hospital, Anayara, Thiruvananthapuram for treatment of renal failure and the right kidney of the complainant was removed on 23.11.2002. The complainant was under treatment as inpatient in the said hospital upto 24.11.2002. Thereafter the complainant was under treatment of Dr. Satheeshkumar of Lords Hospital upto 01.07.2003 and incurred an expenditure of Rs. 70000/-. The symptoms of the disease was noticed only on 28.09.2002. the policy was taken on 02.08.2001, very much earlier to the noticing of first symptoms. The complainant preferred the claim duly submitting the necessary application together with original policy certificate, other medical certificates and details of expenditure. But it was repudiated stating that the disease was pre-existing. The expert doctor did not either examine the complainant or verify any documents in the presence of the complainant to arrive at an adverse report leading to denial of the genuine claim of the complainant. The denial of the claim is a pre-planned one and expected to defeat the very purpose of the medical policy under Pravasi Suraksha Kudumba Arogya Scheme. This act of the opposite parties amounts to deficiency in service for which complainant claims compensation under the Consumer Protection Act, 1986. The complainant has suffered great financial loss and damages on account of the rejection of claim. There is deficiency in service and breach of conditions in the certificate of insurance issued to the complainant by the company. Hence this complaint directing the opposite parties to settle the claim of Rs. 70000/- towards medical expenses incurred by the complainant along with compensation and costs. The opposite parties have filed a joint version contending as follows:- The policy taken by the complainant is admitted. The complainant submitted a claim form on 02.07.2003 claiming Rs. 40344/- towards medical expenses for the treatment for renal tumor. The claim was processed by the opposite parties and all the medical records submitted by the complainant were given to an expert doctor for medical opinion regarding the pre-existence of the disease. The doctor gave an opinion that the disease of the complainant was existing even before the commencement of the policy. The examination of the complainant is unnecessary to find out whether the disease was pre-existing. As per the clause VII (1) of the condition of the policy attached to the policy, any disease, sickness or its symptoms which existed prior to the date of commencement of the insurance are excluded and any expense in connection with the same are not payable under the scheme. In the case of the complainant, the medical opinion and medical records show that the alleged disease for which the treatment expenses are claimed was in existence even before the inception of the policy. Hence the same is not payable as per the conditions of the policy and the opposite parties correctly repudiated the claim. There is no deficiency in service on the part of the opposite parties. The opposite parties have only acted legally as per the policy conditions observing all rules and regulations for claim settlement. The averment in the complaint that a medical expense of Rs. 70000/- was incurred is not correct. Even as per the claim form submitted by the complainant, the expense was only Rs. 40344/-. That amount itself is not correct as it includes many bills of pre-hospital expenses and other bills which are not payable as per the policy. There is no deficiency of service on the part of the opposite parties as alleged. Hence prays for dismissal of the complaint with costs. Complainant has filed affidavit and examined as PW1, marked Exts. P1 to P6. One doctor witness has been examined as PW2 on their part. DW1 and DW2 were examined for the opposite parties and Exts. D1 to D16 were marked on the side of the opposite parties. The issues that would arise for consideration are:- (i)Whether the act of the opposite parties in repudiating the claim justifiable? (ii)Whether the complainant is entitled for the reliefs claimed for? Point (i):- There is no dispute with regard to the policy. But the claim made by the complainant was rejected by the opposite parties on the ground that the disease was in existence even before the inception of the policy. According to the opposite parties they have repudiated the claim as per the conditions stipulated in Clause VII (1) of the policy. Ext. P1 is the policy and clause VII Exclusions 1 reads as follows: The company shall not be liable to make payment under this Scheme in respect of expenses whatsoever incurred by or for any insured person in connection with or in respect of such diseases which have been in existence at the time of proposing this insurance. Pre-existing condition means any injury which existed prior to the effective date of this insurance. Pre-existing condition also means any sickness or its symptoms which existed prior to the effective date of this insurance whether or not the insured person has knowledge that the symptoms were relating to the sickness. Complication arising from pre-existing disease will be considered part of that pre-existing condition. The complainant alleges that the complainant had no symptoms of any disease of the nature coming under the said clause prior to the taking of policy or at the time of applying for the policy. The complainant further alleges that symptoms were noticed only on 28.09.2002 and the policy is dated 02.08.2001. At this juncture, the aspect to be looked into is, whether the disease was pre-existing even before the commencement of the policy and whether there is any violation of the conditions of the policy by the complainant. The policy is valid from 02.08.2001 to 01.08.2006. As per records, the complainant has been admitted in the hospital for treatment on 11.11.2002, which is after about 1 year and 3 months of taking the policy by the complainant. Dr. Satheesh Kumar, who is the Urologist of Lords hospital has been examined as PW2 and he has deposed that 'when he was presented before me, he told me that he was suffering from abdomen pain for the last one month'. PW2 further affirms that the complainant was not treated for the same before and this was for the first time. During cross examination he has deposed that the scan report shows that it was taken two months prior to the consultation with him. The learned counsel for the opposite parties had put a specific question that 'on the basis of the report, can you identify from what time it was there? For which PW2 has answered that 'period cannot be identified since it is a renal cancer. All growth is spontaneous'. Further he deposes that no one can predict if it was there for one year since it is cancerous growth and no one can specify the period as to whether the patient was having this ailment for the past one year. DW1 who is the Urologist attached to P.R.S Hospital deposed that the disease of the complainant was a pre-existing one and it is a very slow growing cancer and to achieve the size of 5 cm in the CT Scan, it will take definitely more than 2-3 years time. The learned counsel for the complainant vehemently argued that, DW1 has issued the report without examining the complainant. Now, before us there are two different versions of the doctors. PW2 is the doctor who had treated the complainant. But DW1 has come to the conclusion that the disease is pre-existing on the basis of the records. But we are left in darkness as to how DW1 has come to the said conclusion. There is no authoritative medical records to substantiate his conclusion. On a perusal of his report Ext. D3, it is seen that based on the copies of the reports, the disease is pre-existing before 02.08.2001. DW1 has specifically stated even the date but on what basis he has come to the conclusion is horrendous. He has not stated about the records which he has perused for coming to the conclusion as to the disease was pre-existing. It is not at all a reasoned report and we are inclined to conclude it as a report prepared on baseless speculations and without any materials to substantiate the same. Moreover, there are two different depositions of the doctors, one that of the doctor who had examined the insured and the other that of the doctor who had come to the conclusion on the basis of the records. In such a circumstance, since this being a Forum for the benefits of the consumers, the deposition of the doctor who has treated the complainant has to be accepted and when there are two different opinions, one favourable and beneficial to the insured should be accepted. The learned counsel for the opposite parties produced the ruling of the Hon'ble National Commission reported in I(2007)CPJ 203(NC) wherein the repudiation on the ground that the petitioner suffered from heart problem since 1994 itself being pre-existing is not covered under policy. We had gone through this and the context in the above referred case is different from that of this complainant. In the above referred case, there is a direct evidence with regard to the pre-existing disease which has been noticed in the discharge summary itself. The learned counsel for the complainant has cited the decision of the Hon'ble National Commission reported in III(2007)CPJ 320(NC) wherein the Hon'ble National Commission has upheld the order of the Fora repelling the defence of the Insurance Company that there was suppression of pre-existing disease as there was no evidence to prove insured suffered from any disease or received treatment before purchase of policy. In this case also there is no evidence to prove that the disease of the complainant was a pre-existing one and he was suffering from the disease even before or for a longer period. Moreover, this is a medi-claim policy which is different from other policies. When a person takes a policy under this scheme, where health is the basis, it should be mandatory on the part of the opposite parties to check the physical condition of the insured before the issuance of the policy. When an insured approaches the Insurance Company for reimbursement and the Insurance Company examining the complainant's history at that point of time and thereby repudiating on baseless grounds will defeat the very purpose of the policy. We doubt that, will any person come forward to take a policy after reading the exclusion clause which says pre-existing condition also means any sickness or its symptoms which existed prior to the effective date of this insurance whether or not the insured person has knowledge that the symptoms were relating to the sickness. In the light of the above discussions we are of the considered view that the disease of the complainant was not existing before the commencement of the policy, the defence of the opposite parties that the complainant had a pre-existing disease is but a contention made for the purpose of defence and the complainant is found entitled for the claim and the act of opposite parties in repudiating the claim is not at all justifiable and the stand taken by the opposite parties is really horrendous. Point (ii):- The complainant has claimed for an amount of Rs. 70000/- towards medical expenses incurred by the complainant. But the complainant as PW1 has admitted the above mentioned amount is not correct and the amount of Rs. 40344/- claimed in Ext. D1 is correct. The learned counsel for the opposite parties argued that the amounts before 11.10.2002 and those after 24.01.2003 are not payable since these amounts claimed are pre-hospital expenses beyond one month and post hospital expenses after two months. The bills and records have been produced by the complainant. We have perused all the materials on record. Taking all the facts and circumstances into consideration, we find that the complainant is entitled for an amount of Rs. 40344/- towards his medical expenses under the insurance policy. The complainant is also entitled for a compensation of Rs. 3000/- for the inconveniences and sufferings caused to the complainant due to the deficiency in service of the opposite parties. In the result, the opposite parties shall pay an amount of Rs. 40344/- along with a compensation of Rs. 3000/- and a cost of Rs. 1000/- to the complainant within a period of one month failing which the above amounts shall carry interest @ 12% per annum. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 29th August 2008. G. SIVAPRASAD President BEENAKUMARI. A : MEMBER S.K.SREELA : MEMBER O.P.No. 299/2004 APPENDIX I COMPLAINANT'S WITNESS : PW1 - J. Gopinatha Pillai PW2 - Dr. Satheesh Kumar II COMPLAINANT'S DOCUMENTS : P1 - Photocopy of certificate of insurance with Certificate No. 2001/47/813500/21547 dated 02.08.2001. P2 - Photocopy of application for insurance claim. P3 Series - Photocopy of doctor's prescriptions and bills receipts(10 Nos) P4 - Photocopy of letter with reference TVM/PSB/Pravasi card 7657 dated 28.11.2003. P5 - Copy of advocate notice dated 04.06.2004. P5(a) - Original postal receipt dated 04.06.2004. P6 - Original advocate notice dated 11.06.2004 issued to the complainant. III OPPOSITE PARTIES' WITNESS : DW1 - Dr. Gopakumar DW2 - Anil IV OPPOSITE PARTIES' DOCUMENTS : D1 - Photocopy of application for insurance claim. D2 - Photocopy of scan report of patient ID B 000006267 dated 12.10.2002. D3 - Photocopy of doctor's letter dated 22.09.2003. D4 - Photocopy of medical opinion submitted to the opposite party by the complainant. D5 - Original authorization letter dated 31.08.2008 issued by the opposite party. D6 - Photocopy of ultra sound scan Report dated 15.02.2003 of the complainant. D7 - Photocopy of summary at discharge of complainant dated 24.11.2002. D8 - Photocopy of laboratory report dated 01.10.2002. D9 - Photocopy of laboratory report dated 30.09.2002. D10 - Photocopy of report dated 02.10.2002 from Thyrocare, Ernakulam. D11 - Photocopy of report 02.10.2002 from Thyrocare, Elisa. D12 - Photocopy of prescription dated 30.09.2002. D13 - Photocopy of Histopathology Report dated 21.11.2002 of Id No. 0B/16302. D14 - Photocopy of ultra Sound Scan Report of the complainant. D15 - Photocopy of C.T Scan of Abdomen dated 15.10.2002 of the complainant. D16 - Photocopy of Certificate of Insurance No. 2001/47/813500/21547/(760500) dated 01.08.2001. PRESIDENT
......................Smt. S.K.Sreela ......................Sri G. Sivaprasad
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