PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 31st day of December 2011
Filed on :17/02/2009
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member. Member.
Smt. C.K. Lekhamma, Member
C.C. No.95/2009
Between
Nalini Nair, : Complainant
Gayathri, SMP Colony road, (By Adv. Radhika P. Gopinath
Near Water Tank, Eroor, Akshya Building, Compara Jn,
Tripoonithura-682 301. Near Central Police Station,
Cochin-14)
And
1. I.C.I.C.I Lombard General : Opposite parties
Insurance Company Ltd.,
Zenith House, Reslaw Rao, (1st & 2nd O.P. by adv. R. Ajith Kumar
Khadu Marg, Varma39/1747, Chittoor road,
Mahala Ra Mumbai-400 034. Ernakulam south, Cochin-682 016)
2. I.C.I.C.I Lombard General
Insurance Company Ltd.,
Kannaankeri Building,
3rd Floor, Shanmugham
road, Marine Drive, Kochi.
3. T.T.K. Health Services (3rd O.P. absent)
Pvt. Ltd., ALT House,
3rd Floor, Lok Bharathi Complex,
Mumbai Marg-400 050.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
The complainant availed herself of a health insurance policy of the 1st opposite party on 15-10-2007 with sum assured of Rs.2 lakhs. In December 2007 the complainant was diagnosed with breast cancer and she underwent treatment at KMC Hospital Manipal. The claim for insurance was rejected by the opposite parties by letter dated 14-02-2008 stating “possibility of ailment to the pre-existing cannot be ruled out completely, hence cash less denied.” Again the complainant was admitted in Kasturba Hospital, Manipal from 17-06-2008 to 23-07-2008. The complainant had to spend a sum of Rs. 1,86,656.34 towards treatment expenses. Aggrieved by non consideration of the insurance claim the complainant caused to issue a lawyer notice to the opposite party. The 1st opposite party sent a reply notice raising untenable contentions. Complainant is entitled to get the insurance claim with interest from the opposite parties. Hence this complaint.
2. The version of the 1st and 2nd opposite parties.
The policy had commenced from 15-10-2007. The FNA test to detect the disease was done on 10-12-2007 within less than 2 months of taking the policy for a lump on the breast of 2 months duration. The 1st hospitalization was on 18-12-2007 after about 2 months of the commencement of the policy. The complainant has had the complaint of lump on the breast even prior to the commencement of the policy. As per the terms and conditions of the policy pre-existing disease are excluded from payment. In spite of repeated requests the complainant did not submit the recent medical records to process the claim application. Thus the claim has been rendered not payable which was informed to the complainant as well. There is no deficiency in service on the part of the 1st and 2nd opposite parties.
3. In spite of serve notice from this Forum the 3rd opposite party opted not to contest the complaint. Ext. A1 to A11 were marked on her side. The witness for the 1st and 2nd opposite parties was examined as DW1. Exts. B1 to B5 were marked on their side. Heard the counsel for the contesting parties.
4. The point that came up for consideration is whether the complainant is entitled to get insurance claim of Rs. 2 lakhs from the opposite parties.
5. Admittedly the complainant availed himself of Ext. A1 ICICI Lombard Health Care Policy from the 1st and 2nd opposite parties for the period from 15-10-2007 to 14-10-2008. As per Ext. A1 policy the sum insured is Rs. 2 lakhs.
6. Ext. A7 discharge summary issued from Kasturba Hospital Manipal goes to show that the complainant had undergone treatment for the period from 17-06-2008 to 23-07-2008. Her disease was diagnosed as “Infiltraing ductal carcinoma (Rt breast)-post upfront chemotherapy, Rt. Total Mastectomy and axillary dissection done”.
7. According to the opposite parties the complainant was suffering from the above ailment ever prior to the inception of Ext. A1 policy and the complainant failed to submit the relevant treatment records to prove the claim application in spite of repeated requests.
8. The complainant had to undergo various tests before the treatment at the Hospital. Exts. B2 is the FNA test result conducted on 10-12-2007. Ext. B3 series is the test results of mammography, oncology test, smear report and histopathology report respectively conducted on 19-12-2007, 28-12-2007, 20-12-2007 and 27-12-2007. The clinical diagnosis as per smear test report as follows:
“Lump right breast 2 months increasing in size”
The History of the disease as per the histopathology report reads as follows:
“Lump of right breast since 2 months”
9. During evidence the complainant deposed that she came to feel about the lump on her breast prior to 7 to 10 days from the date of her first consultation with Dr. Maya Narayanan at Varma Hospital.
10. Apart from the nomenclatures in Ext. A3 reports regarding the history of the ailment no independent evidence is before us to substantiate the same. Moreover even as per the medical records the lump was detected within the currency of the policy. Further more nothing is on record to come to a conclusion that the complainant was aware of her ailment before joining the policy. The opposite parties ought to have taken steps to prove the same in this Forum in which they failed. The Hon’ble National Consumer Disputes Redressal Commission in LIC of India Vs. Shri. Anil Kumar Rastogi 2009 (4) CPR 130 (NC) held in para 13 as follows:
“Except a mere noting that he has been made in the discharge summary regarding respondent’s history and the diagnosis nothing is on record has been shown as to what medication the respondent was taking for any of the ailments for which he took treatment in the year 2002.”
The principle laid by the Hon’ble National Commission squarely applicable in the instant case as well.
11. In the above circumstances we are of the considered opinion that the opposite parties fail to produce any medical evidence to corroborate their contentions. So complainant is entitled to get insurance claim from the opposite parties.
12. The opposite parties maintain that they could not process the claim application since the complainant has not produced the relevant documents as demanded by them as per Ext. B4 dated 20-02-2008. However it can be seen that the documents mentioned in Ext. B4 is on record which has been served on the 1st and 2nd opposite parties by way of notice from this Forum. So there is no point in further directing the opposite parties to process the claim application. The complainant has produced Ext. A11 series to prove the quantum of expenses incurred by her for the treatment. As per Exts A10 and Ext. A11 she had to expend Rs. 2,46,429.98 for her treatment and hospitalization expenses. Since the sum insured is Rs. 2 lakhs as per Ext. A1 she is entitled only to get Rs. 2 lakhs from the 1st and 2nd opposite parties.
13. In the result, we allow the complaint and direct that the 1st and 2nd opposite parties shall jointly and severally pay Rs. 2 lakhs to the complainant for the reasons stated above. The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order, failing which the amounts shall carry interest @ 12% p.a. till realization.
Pronounced in the open Forum on this the 31st day of December 2011.
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
