By Smt. C.S. Sulekha Beevi, President,

1. Complainant had taken a medi claim policy with opposite party covering the period from 10-10-2002 till 09-10-2003. His wife was also covered under the policy. On 03-4-2003 at about 10PM complainant was admitted in Marthoma Hospital, Chungathara due to severe chest pain. He was discharged on 10-4-2003. On 23-4-2003 complainant preferred a claim before opposite party. The claim was denied by opposite party on the ground that in the discharge card the doctor has noted 'known case of Ischemic Heart Disease (IHD). Complainant then approached the hospital and pointed out the mistake. Dr.Gopesh who had treated the complainant told him that it was a mistake committed by the duty Doctor, Sri.Najeeb and issued a letter on 19-9-2003 to opposite party informing the error in discharge card and to consider the claim favourably. Complainant forwarded these documents to opposite party. As there was no response from the opposite party he caused a lawyer notice to opposite party on 23-7-2004. Opposite party did not respond to this notice also. It is stated that complainant did not have any disease prior to taking the policy. That opposite party has repudiated the policy on unjustifiable grounds. Hence this complaint claiming Rs.10,697.93 as benefits under the policy along with interest, compensation and costs.

2. Version was filed by opposite party admitting the insurance coverage. It is stated that the liability is strictly limited to the said terms, conditions, and exclusions specifically mentioned in clause 4 sub clause 1 to 13 of the mediclaim insurance policy. Opposite party submits that the discharge certificate issued from the hospital showed that the complainant was 'a known IHD' patient and 'known PTB' patient. That this will clearly show that complainant was suffering from the said diseases before inception of the policy and that the complainant was suppressing the said facts and has had the policy issued in his favour. The documents produced subsequently are only to be discarded since it is an after thought to defraud the Forum. The claim was correctly and legally repudiated. Without prejudice it is submitted that the amounts claimed are high, exorbitant and without basis. That there is no deficiency in service.

3. Evidence consists of the proof affidavit filed by complainant. Exts.A1 to A5. Opposite party filed counter affidavit and Exts.B1 to B7 marked for opposite party. Exts.X1 and X2 also marked. Either side has not adduced any oral evidence.

4. Points for consideration:-

(i) Whether opposite party is deficient in service.

(ii) If so, reliefs and costs.

5. Point (i):-

The main point that arises for consideration is whether opposite party was justified in repudiating the claim on the ground of pre-existing disease.

6. The exclusion clause relied by opposite party in Ext.B1 policy is reproduced as under:-

“4. Exclusions:

4.0 The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured Person connection with or in respect of:-

1. All diseases/injuries which are pre-existing when the cover incepts for the first time.

    

7. The treatment undergone by complainant from 03-4-2003 till 10-4-2003 at Marthoma Hospital, Chungathara is for chest pain due to acute Myocardial Infarction. The medi claim preferred by complainant was for the expenses incurred for this treatment. Opposite party has repudiated the claim basing on Ext.B2 discharge card issued to complainant from Marthoma Mission Hospital. In Ext.B2 the diagnosis and history noted are as under:

“Diagnosis : Myocardial Infarction

Pulmonary Tuberculosis

History: Chest pain 45 mts

Known IHD patient. Know case Pulmonary Tuberculosis on treatment since 2 months”

Relying upon Ext.B2 it was submitted on behalf of opposite party that the heart ailment for which complainant underwent treatment was a pre-existing disease.

8. Complainant has affirmed that he did not have any disease before the inception of policy. It is his case that the mentioning of 'known IHD patient' in Ext.B2 is an error committed by the doctor of the hospital. It is also submitted that he came to know of this error in Ext.B2 only when opposite party repudiated the claim. He then approached the hospital and the doctor who treated him ie; Dr.Gopesh acknowledged it to be a mistake committed by the then duty doctor, Dr. Mohamed Najeeb P.U. Complainant was then issued Ext.B3 discharge card rectifying the mistake and mentioning as 'not a known IHD patient'. Dr. Gopesh also issued Ext.B7 letter to opposite party stating in detail the mistake committed and also acknowledging the mistake.

9. It was argued by the counsel for opposite party that Ext.B3 and Ext.B7 documents cannot be relied at all and that they are made up as after thought. It was also argued that mentioning history of a patient as 'not a known case of a particular disease' is alien to medical practice. We have considered these arguments and perused the documents carefully. What can a doctor do if he bonafidely committed a mistake? The only remedy available is to correct the mistake. The doctor can only set it correct by issuing documents rectifying the mistake. The doctor in the present case, has shown the courtesy of writing to opposite party acknowledging the mistake. Further Ext.B4 which is the Medi Claim Medical Report issued to opposite party by Dr. Mohammed Najeeb.P.U. does not support the case history noted by him in Ext.B2. This points to the conclusion that the history of IHD noted in Ext.B2 is an innocent mistake committed by Dr. Mohammed Najeeb P.U. The answer to query No.7 in Ext.B4 is as under:

“7. (b) According to you how long the insured )

person would have been aware of and ) About one hour

suffering from this illness. )

1. Date when injury sustained : -NIL-

2. Date when illness contracted ) 03-04-2003

   Give approximate period of illness) about one hour

    

Ext.B4 bears the signature of Dr. Mohammed Najeeb.P.U. It is also worth stating the relevant portion of Ext.B7 letter written to opposite party by Dr. Gopesh which is as follows:

“We are sorry for the error in our discharge summary card issued to Mr. Thomas T.T. Aged 56 years. This is to inform you that our duty doctor Dr. Muhammad Najeeb instead of writing “Not a known case of IHD” he has written as known case of IHD.

Actually, this patient had Acute Myocardial Infarction on 3^rd April 2003, got admitted to ICCU and was under my treatment. In the past, patient never had any chest pain or heart disease as per the history. He was on treatment for Pulmonary tuberculosis at the time of admission (2 months duration).

This is a honest information. Please consider his claim. We are most welcome for your clarifications and further details.”

10. The complainant in an earnest effort to prove his contention filed I.A.508/08 seeking permission to examine Dr. Gopesh who had not only treated him but had also issued Ext.B3 and Ext.B7 documents. Though summons was issued to Dr. Gopesh it was returned as 'addressee left, present address not known'. Thereafter complainant filed I.A.89/09 to issue summons to the Senior Superintendent of Marthoma Hospital to cause production of his treatment records kept in the hospital. These records were produced and marked as Exts.X1 and X2. As per Ext.X1 treatment records the complainant was admitted with chest pain on 03-4-2003. The only history noted down by the doctor at the time of admisson is 'Pulmonary TB on treatment since 2 months'. There is no mention that complainant has history of IHD. Ext.X1 proves and substantiates the case of complainant, that the mention of 'known case of IHD' in Ext.B2 discharge card was only an inadvertant bonafide mistake committed by the duty doctor. Ext.X2 is the copy of Ext.B7 letter kept in the hospital records. We have no hesitation to conclude that the mention of 'know case of IHD' in Ext.B2 discharge card was only a mistake committed by the doctor.

11. Whenever an exclusion clause is contained in the policy it is for the insurer to show that claim falls within the exclusion. Apart from Ext.B2 there is no evidence put forward by opposite party. If opposite party wished to rely upon the contents in Ext.B2 discharge card even after the issuance of Ext.B3 and Ext.B7 documents by the doctor, then the burden lies upon them to prove the same by examining the doctor who issued it or at least by filing his affidavit. Further, opposite party has not produced or stated details of previous treatment if any undergone by complainant. The unproved case history noted in the discharge card not supported by treatment records would not be cogent and convincing evidence to repudiate the claim. The burden to prove that the disease was a pre-existing one and comes within the exclusion is heavy upon the insurance company. In the present case even the case history of IHD noted in Ext.B2 has been established to be a bona fide mistake committed by the duty doctor. From the foregoing discussions we are able to conclude that the repudiation of policy was on unjustifiable grounds. Opposite party ought to have reconsidered their decision on receiving Ext.B3 and Ext.B7 documents. An insured can never be made to suffer on account of a mistake committed by the doctor while noting down the case history. We therefore find opposite party deficient in service. Point found in favour of complainant.

12. Point (ii):-

Complainant has claimed Rs.10,697.93 as treatment expenses. No evidence is adduced by opposite party to controvert this amount. We hold that complainant is entitled to the above amount as benefits under the policy. In our view, the complainant has to be compensated for the illegal retainment of legitimate amount. We consider that interest @ 12% per annum upon the said sum together with cost of Rs.1,500/- will be adequate relief to the complainant.

13. In the result, we allow the complaint and order that opposite party shall pay to the complainant a sum of Rs.10,697.93 (Rupees Ten thousand six hundred and ninety seven and ninety three paise only) along with interest @ 12% per annum from date of complaint till payment together with cost of Rs.1,500/-(Rupees one thousand five hundred only) within one month from the date of receipt of copy of this order.

Dated this 24th day of August, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : Nil

Documents marked on the side of the complainant : Ext.A1 to A5

Ext.A1 : Photo copy of the Medicare Member Certificate insured with opposite party.

Ext.A2 : Photo copy of the Discharge card issued by opposite party to complainant.

Ext.A3 : Copy of letter dated, 19-9-2003 by opposite party to complainant.

Ext.A4 : Photo copy of the request dated, 22-9-2003 by complainant to opposite party.

Ext.A5 : Photo copy of the lawyer notice dated, 23-7-2004 issued by complainant

to opposite party.

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Ext.B1 to B7

Ext.B1 : Mediclaim insurance policy (revised) with terms and conditions.

Ext.B2 : Discharge card issued by opposite party to complainant.

Ext.B3 : Discharge card issued by opposite party to complainant.

Ext.B4 : Mediclaim medical report dated, 21-4-2003 given by

Dr. Mohammed Najeeb.P.U. to complainant.

Ext.B5 : Request dated, 22-9-2003 by complainant to opposite party.

Ext.B6 : Carbon copy of repudiation letter dated, 14-7-2003 by

opposite party to complainant.

Ext.B7 : Letter dated, 19-9-2003 by Dr. Gopesh to opposite party.

Third party document marked : Ext.X1 and X2

Ext.X1 : Hospital records regarding treatment given to complainant.

Ext.X2 : Copy of letter dated, 19-9-2003 by Dr. Gopesh to opposite party..

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER