Complaint filed under section 12 of the Consumer Protection Act.

Brief of the complaint is as follows:

The Complainant here in has taken mediclaim policies from 4.2.2004 onwards. The policy was taken from Opposite Party No.2 through Opposite Party No.1. The Complainant has paid the premium and other payments and policy No.760604/48/05/752223 which is having a risk coverage for a sum of Rs.2,50,000/-. The policy covers the health risk and hospital expenses of insurer and his family members. While so on 7.11.2006 the wife of the Complainant Swapna Jestus admitted in P.V.S Hospital, Calicut due to illness and after check up and medical investigations the doctors informed the Complainant that his wife is suffering from HINDRA DENTIS SUPPURA TOVA and for curing the said disease surgery is necessary and advised to come with preparation for surgery and discharged on 10.11.2006. The Complainant has spent Rs.4865.82 on that occasion. To get the amount claim form forwarded to Opposite Party No.2. There after Complainant's wife admitted in Amritha Institute of medical sciences, Cochin on 10.12.2006 and undergone surgery. She was discharged on 19.12.2006. Towards medical expenses Complainant has spent Rs.36,845/-. A claim form was submitted to Opposite party No.2 for the said amount. But the claim forms were repudiated by the Opposite Party No.2. The repudiation of claim is illegal and there is serious deficiency of service on the part of Opposite Parties. The reason shown for repudiation is that the decease is pre-existing . Hence it is prayed to pass an order directing Opposite Parties to pay a sum of Rs. 41,710/- with 11% interest from 30.1.2007, to pay Rs.10,000/- towards compensation, to pay cost of this litigation.

2. Notices were served on both Opposite Parties. Opposite Party appeared and filed version. 1^st and 2^nd Opposite Parties admitted that Medic Claim Policy was issued in favour of the Complainant covering the period from 4.2.2006 to 3.2.2007. They contented that the policy does not cover the expenses towards the treatment expense for any disease contracted before the date of commencement of risk. The Complainant taken medi claim policy at the first instance on 4.2.2004. As per the discharge certificate issued from P.V.S Hospital dated 17.11.2006 shows that the patient was suffering from the disease for 3 years. So the disease was pre-existing. The Complainant had suppressed the material facts while submitting the proposal form. The disease for which the hospitalization was necessitated was contracted prior to the date of commencement of the policy cover. So repudiated the claims and communicated the reason for denial by way of letter dated 17.3.2007. The insurance incepts from 4.2.2004 and the patient was admitted for treatment of Hidradenitis Suppurativa of Groin and left axilla. As per discharge summary, the patient is suffering from the ailment for last three years as per discharge summary vide previous claim No. 568112. Going by the duration of ailment and taking into account the date of inception of insurance, the ailment is pre-existing. Hence the claim is not admissible under the policy and stand repudiated under the exclusion clause No.4.1 of the mediclaim policy. Second Opposite Party consists of a team of doctors who are well versed in Medical Science and they scrutinize every claim and decide on the insurance liability of the claim as they are empowered to do under the IRDA regulations. There is no deficiency of service on the part of Opposite Parties. Hence dismiss this complaint with compensatory cost.

3. On perusing the complaint and version, the following points are to be considered.

1. Whether there is any deficiency of service on the part of the Opposite Parties?

2. Relief and cost.

4. Point No.1:- The evidence adduced by the Complainant is the complaint, chief affidavit and Ext. A1 to A7 documents. In the chief affidavit he stated as stated in the complaint. Ext.A1 is the copy of discharge summary issued by PW2. Ext. A2 is the copy of discharge summary issued from Amrita Institute of Medical Sciences and Research Centre, Cochin-26. Ext.A3 series are the copies of advance, Material Bills and open bills issued from the above mentioned hospital. Ext.A4 series are the copies of Policies (5 in number) issued by Opposite Party to the Complainant. The above policies cover from 4.2.2004 to 3.2.2009. Ext.A4 is the repudiated letter issued by Opposite Party No.2 to the Complainant. Ext.A6 is the copy of claim form dated 15.11.2006. Ext.A7 is the copy of claim form dated 26.1.2007. Ext.B1 document also marked through PW2. Ext.B1 is the discharge summary of Swapna issued from P.V.S. Hospital, Kozhikode.

5. Opposite Party No.1 is filed chief affidavit. In the chief affidavit he stated as stated in the version. Ext. B2 to B7 were marked. Ext.B2 is the copy of proposal form for Mediclaim Insurance Policy with connected documents. Ext.B3 is the policy of the Complainant from 4.2.2006 to 3.2.2007. Ext.B4 is the claim form and Ext.B5 is the Medical certificate of Swapna issued by Dr. T.K. Jayarajan. Ext.B6 is the Pathology Report of Swapna dated 21.11.2006. Ext.B7 is none other than Ext.A5.

6. On perusing the complaint, version, evidence and documents produced by the Petitioner and Opposite Parties it is revealed that the applicant has been taking Mediclaim Policies from 4.2.2004 to 3.2.2009. It is clear from Ext.A1 that Complainant's wife Swapna was admitted in P.V.S Hospital, Kozhikode on 7.11.2006 and she was discharged on 10.11.2006. Ext.A2 shows that she was again admitted in Amrita Institute of Medical sciences and Research centre on 10.12.2006 and discharged on 19.12.2006. Ext.A3 series and Ext.A7 shows that the Complainant has paid Rs.36,845/- for the above treatments. Ext.A6 shows that the Complainant was paid Rs.4,865.82 at P.V.S. Hospital for the treatment. Ext.A5 and B7 shows that the Opposite Parties repudiated the claim stating that the patient is suffering from the ailment for last three years as per the discharge summary of claim No.568112. The doctor who treated the patient noted that recurrent painful modules over left axilla since one year. Dr. Laxmi V Nair who attended the patient was examined as PW2. In her deposition she has stated that after admission relevant investigations were carried out. She has been having the problem since one year. She further stated that the discharge certificate dated 17.11.2006 (Ext.B1) issued from the hospital. I don't think that signature in the certificate that of Dr. Jaya Rajan, though it is shown as the attending doctor as Dr. T.K. Jayarajan. Ext.A1 and B1 might have signed by some other doctors, who were on duty at that time. In the re-examination she stated that all the entries in Ext.A1 checked and verified by me. All the prior treatments were within one year. In my opinion Ext.B1 document is evented mechanically. Dr. T.K. Jayarajan may not have gone in to the details of the case so as to assess the duration as three year. On examination it is likely that she has had the disease for one year. In Ext.A2 the doctor recorded that the patient came with history of pain and discharge from the public area and left axilla since one year.

7. Here the points to be considered are: 1. Whether the patient is suffering from disease at the time of taking the policy. 2. Whether the policy holder or patient was aware about the disease. Whether they have suppressed the same at the time of taking the policies. Ext.A1,A2, and deposition of PW1 and PW2 clearly prove that the patient was suffering from disease one year back from 17.11.2006. The doctor who issued Ext.B5 Medical Certificate is not examined by Opposite Party. It is mentioned that the patient is suffering from these disease for 3 years. It is not clear under what circumstances the doctor has given such an opinion. More over it is clear from the evidence of PW1, that the patient is not aware about the disease. As per the decision of Hon'ble National Commission in New India Assurance Co. Ltd V/S Sri. Kashinath Bal Mukund Marvadi, Reported in 2008 CPR (Part IV) Page 95 it was held that there may be some positive evidence on the suppression of disease. Here the first policy was taken on 04.02.2004. She was admitted first for treatment on 7.11.2006. Every person suffers from symptoms of any disease without the knowledge of the same.

Most of the people are totally unaware of the symptoms of the disease that they suffer Opposite Party relies on their clause 4.1 of the policy in a malafide manner to repudiate all the claims. Opposite Party must prove, to repudiate the claim, that there is pre-existing disease at the time of taking the policy and that disease was known to the patient. In this case Opposite Party miserably failed to prove the same. Hence we come to the conclusion that the patient was not suffering from any disease at the time of taking the policy with their knowledge and they have not suppressed any disease at the time of taking the policy. Hence point No.1 is decided in favour of the Complainant.

8. Point No.2:- Ext.A6 shows that the applicant has spent Rs. 4,865.82 for the treatment of his wife at P.V.S Hospital from 7.11.2006 to 10.11.2006 and the claim form was sent to the Opposite Party on 30.1.2007. Ext.A3 series shows that the applicant has spent Rs. 35,295/- for the treatment of his wife at Amrita Institute of Medical Sciences and Research Centre from 10.12.2006 to 20.12.2006. He submitted the claim form on 26.1.2007. Ext.A4 series shows that the wife of the Complainant is insured under Mediclaim Hospitalization and Domiciliary Hospitalization benefit policy for Rs.50,000/-. Hence the Complainant is entitled to get Rs.40,161/- (35295 & 4806) from Opposite Party with 9% interest from 30.1.2007 till the payment is made. He is also entitled to get Rs. 1,000/- as cost of this litigation. Point No.2 is decided accordingly.

9. In the result, the complaint is allowed the Opposite Party is directed to pay Rs.40,161/- (Rupees Forty thousand One hundred and Sixty one only) with 9% interest from 30.01.2007 till the payment is made. He is also directed to pay Rs. 1,000/- (Rupees One thousand only) as cost of this litigation.

The order is to be complied with within one month from the receipt of this order.

Pronounced in open Forum on this the 26^th day of November 2008.