BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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Complaint  Case No :1203 of 2009

Date  of  Institution  :   24.08.2009

                                Date  of    Decision  :   26.02.2010

Sh. Vinod Kumar Sikka, aged about 53 years, s/o Late Sh. O.P.Sikkar, R/o House No.1041, First Floor, Sector 18-C, Chandigarh, U.T., 160 018.

….…Complainant

V E R S U S

1]     ICICI Lombard General Insurance Company Limited, through its Managing Director, Corporate Office: Zenith House, Keshav Rao Khade Marg, Landmark: Opposite Racecourse, Mahalakshmi, Mumbai 400 034

2]     ICICI Lombard General Insurance Company Limited, through its Branch Manager, SCO Nos. 24-25, First Floor, Sector 8-C, Madhya Marg, Chandigarh, U.T., 160 009.

3]     TTK Health Care TPA Private Limited, through its Managing Director, Corporate Office: No.2, HB Complex, 100 Feet BTM Ring Road, BTM First Stage, BTM Layout, Banglore 560 068.

                                                ..…Opposite Parties

CORAM:    SH.JAGROOP SINGH MAHAL              PRESIDENT

                DR.(MRS) MADHU BEHL                      MEMBER

Argued by:       Sh.Neeraj Pal Sharma, Adv. for complainant.

                        Sh.Mrigank Sharma, Adv. for OPs No.1 & 2.

                        OP No.3 exparte.

PER SH.JAGROOP SINGH MAHAL, PRESIDENT.

                Briefly put, the complainant took one health care cashless policy of “Family Protect Premier Individual” from OP Insurance Company vide Ann.C-1 for the sum insured of Rs.3.00 lacs effective from 15.5.2008 to 14.2.2010 after paying the premium of Rs.14,713/- vide Ann.C-2.  On 9.4.2009 the complainant felt some pain in his abdomen.  He visited Dr.Naveen C. Raina, Senior consultant, General Surgeon, Laparoscopist & Oncologist, who operated him in the Emergency Surgery on 10.4.2009 after having been diagnosed as suffering from Perforation Peritonitis and was thereinafter discharged on 21.4.2009 (Ann.C-3). OP No.3 was informed about the accrual of claim during the period of his stay in the hospital, which was denied vide Ann.C-4 with a direction to file claim in routine manner after making payment directly to the hospital.  It is averred that the complainant had to incur an expenditure to the tune of Rs.3,80,699/- (Ann.C-5) on his admission and surgical treatment at Fortis Hospital, Mohali. After his discharge, the complainant filed his claim with OP No.3 vide Ann.C-6 and submitted all requisite documents as sought vide Ann.C-8 & C-9.  However, the OP No.3 on behalf of other OPs vide its letter dated 6.7.2009 (Ann.C-12) illegally & arbitrarily repudiated the claim on the ground that it was not payable having been excluded per Clause 3.3 of the Exclusionary Clauses of the Insurance Policy.  Ultimately, a legal notice Ann.C-15 was sent to the OPs for indemnification of his claim to the value of the sum insured being Rs.3.00 lacs but to no avail.  Therefore, the present complaint has been instituted alleging the above repudiation as illegal, arbitrary and deficiency on the part of OPs due to which the complainant had to suffer great mental tension, physical harassment and financial loss.

2]             OPs No.1 & 2 filed reply and admitted the factual matrix of the case.  It is stated that the complainant on admittance and diagnose was found to be suffering from Perfotation Pertonitis i.e. a kind of Gastric Ulcer.  It is also stated that immediately after intimation of the claim, OP Company duly deputed its third party administrator, which after collecting data from the hospital, undertook the management of the disease and gave finding that the claim was not payable since the expenses incurred in the treatment of Gastric and duodenal Ulcers within the first few years of the policy were not covered.  It is further stated that as per Medical Certificate filed-up by Fortis Hospital (Ann. R-3) and Discharge Summary (Ann.R-4) the claim of the complainant was found to be not payable as it was beyond the purview of the policy.  It is asserted that the claim was rightly repudiated.  Denying rest of the allegations, it is prayed that the complaint be dismissed.

3]             OP No.3 did not turn up despite having been duly served with the notice of complaint and therefore, it was proceeded against exparte.

4]             Parties led evidence in support of their contentions.

5]             We have heard the ld.Counsel for the parties and have perused the record.   

6]             Though none of the parties has produced the copy of the insurance policy, yet it is admitted that there is exclusionary clause 3.3 of the insurance policy according to which “expenses incurred on treatment of Gastric and Duodenal Ulcers within the first two years from the commencement of the policy are not payable”. The only dispute between the parties is whether the gastric perforation is the other name of gastric ulcer or the two are different from each other.  Since the OP is taking up the plea that the gastric perforation i.e. peritonitis is infact gastric ulcer, the onus was on the OP to prove the same.  Even before repudiating the claim the OP was expected to have conducted investigation on this point and therefore it is the duty of the OP to prove beyond doubt that the disease with which the complainant was suffering was infact gastric ulcer. The OP however did not produce any such opinion obtained by them from the treating surgeon or other proof if the patient was suffering from gastric ulcer. In the absence of evidence to this effect, the OP was not justified in repudiating the claim.

7]             The Learned Counsel for the complainant argued that peritonitis is an inflammation or infection of the peritoneum and peritoneum is a thin tissue lining that covers the inside of the abdominal cavity and also covers the outside of the intestines and other abdominal organs. According to him peritonitis occurs when there is a buildup of fluid in the abdomen which is called ascites. It may be caused by chronic liver disease, among other conditions and the secondary peritonitis is caused by bacteria that enter the abdominal cavity and could be due to an injury or a condition, such as a ruptured appendix. According to him there is no such medical literature which treats perforation as a result of gastric ulcer or the two are synonymous.  Annexure C-3 is the discharge summary showing that the patient was admitted with pain abdomen associated with vomiting for one day and loose stools, the operative findings that large amount of pus was found in peritoneal cavity.  Annexure C-4 is the intimation sent by OP-3 to Fortis Hospital in which also diagnosis was mentioned as gastric perforation for surgery c/o abdominal pain and DM.HT. In Annexure C-6 also gastric perforation has been mentioned. As per Mosby’s, Medical, Nursing & Allied Health dictionary, fourth edition, page 1197 peritonitis is an inflammation of the peritoneum produced by bacteria or irritating substances introduced into the abdominal cavity by a penetrating wound or perforation of an organ in the GI tract or the reproductive tract.  It is further mentioned that peritonitis is caused most commonly by rupture of the vermiform appendix but also occurs after perforations of intestinal diverticula, peptic ulcers, gangrenous gallbladders, gangrenous obstructions of the small bowel, or incarcerated hernias, as well as ruptures of the spleen, liver, ovarian cyst, or fallopian tube, especially in ectopic pregnancy. Therefore peritonitis could be due to so many reasons one of which is ulcer. When we see definition of ulcer (at page 1608) it is described as a circumscribed, craterlike lesion of the skin or mucous membrane resulting from necrosis that accompanies some inflammatory, infectious or malignant processes. An ulcer may be shallow, involving only the epidermis, as in pemphigus, or deep, as in a rodent ulcer. On the other hand perforation has been described at page 1190 to pierce through, a hole or opening made through the entire thickness of a membrane or other tissue or material. Similarly in the case of ulcer it is not mentioned if it results in perforation. From the above facts it is clear that the perforation may be due to ulcer but neither the two are interchangeable words, nor ulcer is the only cause of perforation. Perforation may be due to so many reasons and in the present case it was for the OP to prove that perforation occurred due to ulcer. OP therefore derived a conclusion without any basis. There is no evidence to prove if the patient had gastric ulcer.  The perforation is not excluded under clause 3.3 of the insurance policy. The decision of the OP to repudiate the claim was therefore not justified.

8]             In view of the above discussion, we are of the opinion that the present complaint must succeed.  The same is accordingly allowed. Annexure C-5 shows that the complainant has paid a total of Rs.3,80,699/- for the treatment in the Fortis Hospital, Mohali.  However the OPs are liable to pay Rs.3,00,000/- only.  The OP No.1 and OP No.2 are therefore directed to pay Rs.3,00,000/-  alongwith Rs.5,000/- as litigation costs to the complainant within 30 days from the receipt of the copy of this order.  If the amount is not paid within the aforesaid period, they would be liable to pay the same alongwith penal interest @12% p.a. with effect from 6.07.2009 (the date of repudiation vide Annexure C-12) till the payment is actually made to the complainant. 

                Certified copies of this order be sent to the parties free of charges.  The file be consigned.