IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Dated this the 31st day of May 2023
Present: Sri.Manulal.V.S, President
Smt.Bindhu.R, Member
Sri.K.M. Anto, Member
CC No. 205/2020 (Filed on 09/04/2021)
Complainant : Dileepkumar C.S
Chemmanaparambil House
Edappady P.O, Bharananganam
Pala, Kottayam-686578
(By Adv.Justin Joseph & Adv. Solimol Sebastian)
Vs
Opposite party : HDFC ERGO General
Insurance Co.Ltd, 1st Floor
HDFC House, 165-166,
Backbay Reclamation
H.T, Prakash Marg, Church Gate
MUMBAI-400020
(By Adv.Lithin Thomas)
O R D E R
Sri.Manulal.V.S, President
The complainant filed this complaint u/s.35 of the Consumer Protection Act 2019.
The complainant is the holder of medi claim health insurance Policy under No. 2866203269029900valid from 22-05-2017 to till date and it covers the complainant and his family members. According to the Complainant, his daughter Aleena Dileepkumar got injured from her home on 08-04-2020 and visited at IHM hospital Bharanaganam on 09-04-2020 and consulted Dr. M.P.Mathew. As per his advice said Aleena took MRI scan on 20-04-2020 and was diagnosed that “thinning with irregular outline and full thickness fissure of articular cartilage is noted involving medial facet of patella, Mild joint effusion. As per the advice of Dr. M.P Mathew complainant consulted Dr.O.T.George at St.Mary’s hospital Thodupuzha and Aleena was admitted at St.Mary’s hospital on 12-05-2020 and on 13-05-2020 she underwent MPFL recounstruction + arthoscopic loose body removal and shaving of patella under SA and was discharged on 15-05-2020. The complainant thereafter filed Mediclaim Form with the opposite party supported with Medical documents and bills, with a total claim amount of Rs.1,31,029. However, the opposite party repudiated claim stating that the Complainant had the same complaint before taking the policy. According to the complainant the said Aleena never took any type of medicine for any other diseases related to this disease.
The complainant stated that the non-payment of mediclaim amount amounted to deficiency in service and he also suffered inconvenience, hardship and mental trauma and agony. The complainant claimed the said amount of Rs.1,31,029/- along with interest at the rate of 12% p. a from 20/05/2020 till payment, an amount of Rs.10,000/- as compensation for mental agony and incidental expenses.
By way of written version the opposite party stated as under:-
The complaint is time barred and the policy issuing office is not located within the jurisdiction of this commission and hence the complaint is not maintainable. The complainant had taken a My Health Medisure Super Top Up insurance vide policy no.286620329029900 for the period from 30-01-2020 to 29-01-2022. The issuance of the policy is dated 16-07-2020. The policy is taken for self and family for a sum insured amount of Rs.12,00,000/-. Under the pre existing section no ailment has been disclosed for any of the insured. There is a deductible for Rs.3,00,000/-.
My health Super top Up policy provides with an option of buying a top-up insurance cover which works alongside the current health insurance policy; the current health insurance policy could have been bought by the person individually or provided by any organization. The insured had made a claim for hospitalization for the period from 12-05-2020 to 15-05-2020 at St. Mary’s hospital for recurrent dislocation right patella which was also evident from the discharge card. After careful perusal of the claim documents, the discharge summary, the patient was admitted with the complaint of recurrent dislocation right patella 3 years, last episode 2 weeks. As the date of inception of policy was 30-01-2020 and the patient having the complaints of present ailment past 3 years, it is evident that the ailment is pre-existing in nature. Policy schedule clearly states no PED has been disclosed for any of the insured there by amounting to non disclosure. It is submitted in the version that the complainant has suppressed material facts from the insurance company that she was suffering from dislocation of right patella 3 years back. Hence the claim was rejected on the ground of non disclosure of pre-existing disease. The opposite party is not liable to pay any amount to the Complainant.
The Complainant filed his own affidavit-in-evidence and marked exhibit A1 to A6. No oral or documentary evidence was adduced from the side of the opposite party. Complainant filed written arguments before the commission.
On evaluation of complaint, version and evidence on record we would like to consider the following points.
- Whether there is any deficiency in service or unfair trade practice on the part of the opposite party?
- If so what are the reliefs and costs?
For the sake of convenience we would like to consider the point number 1 and 2 together.
Indisputably, complainant had taken a My. Health Medisure Super Top up insurance vide policy no.286620329029900 for the period from 30-01-2020 to 29-01-2022. On perusal of exhibit A1 policy schedule it can be seen that the complainant , his wife Synamol Dileepkumar, daughter Aleena Dileepkumar and Son D. Gouri Nandan are the insured persons and the sum assured was Rs.12,00,000/-. There is also no dispute that the said daughter of the complainant consulted Dr.O.T.George at St. Mary’s hospital Thodupuzha and Aleena was admitted at St.Mary’s hospital on 12-05-2020 and on 13-05-2020 she underwent MPFL recounstruction + arthoscopic loose body removal and shaving of patella under SA and was discharged on 15-5-2020. The bills produced by the Complainant towards the said operation and other expenses are on record and the same are also not disputed. It is proved by Exhibit A4 that the doctor diagnosed pain of Aleena as due to injury to this recurrent dislocation of right Patella. In the Exhibit A2 certificate, the doctor has mentioned that she has not done consultation before 22-04-2020.
Opposite party contented as per Exhibit A4 the discharge summary, the patient was admitted with the complaint of recurrent dislocation right patella 3 years, last episode 2 weeks and the patient having the complaints of present ailment past 3 years, it is evident that the ailment is pre-existing in nature.
There is no evidence on record to prove that said Aleena was symptomatic before 30-01-2020 ie the date of inception of the policy.
Merely because it was stated in the discharge summary that there was history of pre-existing recurrent dislocation 3 years , it did not mean that the daughter of the Complainant had pre- existing injury or disease for which the operation was done by Dr. O.T.George. We are not experts in the medical field. The opposite party did not produce any expert evidence of any Doctor or affidavit or documentary or any other evidence to prove that the said history of recurrent dislocation right patella 3 years, ought to be considered as pre-existing injury or disease, for which operation was conducted on 13-05-2020. In this regard, we reley upon the order dated 05/07/2012 passed by the Hon'ble National Commission in the case of "National Insurance Company Ltd., vs. Girin R. Shah". Since the opposite party have not established that there was pre-existing injury, it cannot be also said that the operation that was conducted on Aleena was excluded under pre-existing disease from the date of inception of policy.
Though the opposite party contended that the pre -existing disease is excluded under the policy terms and conditions the opposite party did not produce the terms and conditions of the policy.
In our view, the act of the opposite party amounts to imperfection and inadequacy in performing their contractual obligation under contract of insurance and amounts to deficiency in service. No doubt the Complainant suffered inconvenience, mental trauma and, hardship due to the deficient act of the opposite party.
In the result, the complaint is allowed as under:
The opposite party shall pay to the complainant Rs.1,31,029 along with interest at the rate of 9% p.a. from 15-05-2019 till the date of payment and shall further pay an amount of Rs.10,000/- as compensation for inconvenience, mental trauma and hardship. If the said amounts are not paid to the Complainant within 30 days from the date of this order, the compensation amount shall carry interest at the rate of 9% p.a. from the date of expiry of the said 30 days period, till realization.
Pronounced in the Open Commission on this the 31st day of May,2023.
Sri.Manulal.V.S, President sd/-
Smt.Bindhu.R, Member sd/-
Sri. K.M. Anto, Member sd/-
Appendix
Exhibits marked from the side of complainant
A1- Copy of the tax certificate issued by HDFC ERGO General Insurance Company Ltd.
A2- Copy of the claim repudiation letter without prejudice from HDFC ERGO General Insurance Company Limited.
A3- Copy of the MRI- right knee report issued by Jeevan MRI Centre, Caritas Hospital Thellakom, Kottayam, dated 20.04.2020.
A4- Copy of the discharge summary issued by St.Mary’s Hospital Thodupuzha, dated 15.05.2020.
A5- Copy of the bills of Aleena Dileepkumar (12.05.20 to 15.05.20)
A6- Copy of the medical certificate signed by Dr.O.T.George, Orthopaedic Surgeon, St.Mary’s Hospital Thodupuzha, dated 17.07.2019.
Exhibits marked from the side of opposite party
Nil
By order
Assistant Registrar
