BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA.

                                                Complaint No.CC/10/90  of 10.2.2010

                                                Decided on:          11.5.2011

Bhagwant Kaur wife of Surinder Singh resident of House No.17, Street No.6,Dashmesh Nagar, Patiala.

                                                                             -----------Complainant

                                      Versus

1.                 Max New York Life Insurance Company Ltd. Office Leela Bhawan, Patiala through its Branch Manager, Patiala.

2.                 Max New York Life Insurance Company Ltd. Registered Office:Max House,3^rd Floor,1,Dr.Jha Marg, Okhla, New Delhi 110020, India through its Managing Director cum CEO.

                                                                             ----------Opposite parties.

                                      Complaint under Section 12 of the

                                      Consumer Protection Act.

                                      QUORUM

                                      Sh.D.R.Arora, President

                                      Smt.Neelam Gupta, Member

Present:

For the complainant:     Sh.Rajiv Lohatbaddi, Advocate

For opposite parties:     Sh.K.K.Jain , Advocate

                                         ORDER

D.R.ARORA, PRESIDENT

                                      It is averred by the complainant that she had got one life line-Safety Net policy no.352556690 from the ops to be effective from 12.6.2008 on the basis of the proposal dated 31.5.2008. The complainant was got medically examined by the ops from their doctor. It was disclosed by the officials of the ops at the time of filling up the proposal that the policy will cover the benefits in respect of expenses to be incurred by the complainant on critical illness with the additional benefit of Rs.one lac.

2.                                   On 25.2.2009, the complainant had suffered breathlessness and pain in her chest and therefore, she had herself got examined by Dr.Dharamvir Gandhi who referred her to Patiala Heart Institute. Dr.Gurdarshan Singh of Patiala Heart Institute, Patiala, examined the complainant and she was operated upon on 28.2.2009 because of her critical illness of her heart. Pacemaker implant was installed for which the complainant had to incur the expenses of Rs.2,08,415/-

3.                                   After having recovered from the illness, the complainant applied the ops for the reimbursement of the expenses as a benefit under the policy, but the ops were interested to deny the claim of the complainant under one or the other pretext. Accordingly the complainant approached this Forum through the present complaint brought under Section 12 of the Consumer Protection Act,1986 (for short the Act) for a direction to the ops to reimburse the amount of Rs.one lac as the additional relief provided under the policy for critical illness; to pay Rs.50000/- by way of compensation for the harassment suffered by her at the hands of the ops and to pay her Rs.11000/- as the costs of the litigation.

4.                                   On notice, the ops appeared and filed their written version. It is the plea taken up by the ops that they got the claim of the complainant investigated by Probus Associates & Consultants Pvt. Ltd., who during investigation exposed the fact that DLI had a history of hypertension, diabetes and C.A.D. On 25.2.2009 the complainant had consulted Dr.Dharamvir Gandhi with the chest pain and underwent treadmill test, which was positive and ECG revealed varying degree AV block. The complainant was diagnosed to be suffering from Right Bundle Branch Block and was admitted in the Patiala Heart Institute. The complainant had also under gone CAG followed by permanent pacemaker implantation on 28.2.2009. The treating doctor had stated that the complainant was a known case of hypertension and diabetes and a labeled case of CAD/TMT +ve/Right Bundle Branch Block at the time of admission on 25.2.2009 which is in direct contradiction to the statement made by the complainant in the claim form. The complainant had deliberately concealed the material factum pertaining to her medical history.

5.                                   It is denied by ops that  the officials of the ops had disclosed the complainant that the policy covered the benefit in respect of expenses to be incurred by the policy holder on critical illness with an additional amount of Rs. one lac. It is denied if the complainant was operated due to critical illness of heart on 28.2.2009. It is denied if there was any deficiency in service on the part of the ops.The complaint is said to be false, frivolous and malafide and it was prayed to dismiss the complaint with costs under Section 26 of the Act.

6.                                   To substantiate her claim, the complainant produced in evidence her sworn affidavit,Ex.C1 alongwith documents,Exs.C2 to C9 and her learned counsel closed the evidence.

7.                                   On behalf of the ops their learned counsel tendered in evidence the sworn affidavit,Ex.R1 of Yogita, Executive of the ops at Gurgaon alongwith documents,Exs.R2 to R47 and closed their evidence.

8.                                   The complainant filed the written arguments. We have examined the same, heard the learned counsel for the parties and gone through the evidence/record on the file.

9.                                   Admittedly the complainant had purchased the health insurance policy from the ops, the copy of the same being Ex.C2. There is also no dispute about the complainant having under gone the operation of the heart but the ops have repudiated the claim of the complainant by virtue of the report,Ex.R10 dated 18.5.2009 obtained by the ops from Probus Associates & Consultants Pvt. Ltd. having conveyed the complainant vide letter,Ex.R48 dated 30.5.2009 that she was diagnosed to be suffering from Right Bundle Branch Block and had under gone treatment at Patiala Heart Institute on February 28,2009 and under Section 5 of the Definitions and Interpretation of the policy,Ex.C2 the said ailment was not covered. Accordingly they regretted their inability to admit the claim on the basis of the policy.

10.                                 Section 5 of the definitions and interpretation being a part of the insurance policy,Ex.C2 relates to heart attack and the same is re-produced as under:

                   “Heart attack The first recorded occurrence of hear attack or myocardial infarction which means death of heart muscle, due to inadequate blood supply, which results in all of the following conditions of acute myocardial infarction:

·        Typical clinical symptoms( for example, characteristic chest pain);

·        New characteristic electrocardiographic changes;

·        The characteristic rise of cardiac enzymes or Troponins recorded at the following levels or higher;

1.     Troponin T > 1.0 ng/ml

2.     AccuTnl>0.5ng/ml or equivalent threshold with other Troponin 1 methods; and

·        the evidence must show a definite acute myocardial infarction.

The following conditions are however not covered:

·        angina;and

·        other acute coronary syndromes e.g.,myocyte necrosis.

The diagnosis must be confirmed by a Cardiologist acceptable to the Company.”

11.                                 Apparently in our case the complainant had not suffered from any heart attack or myocardial infarction and rather it was submitted by Sh. Rajiv Lohatbaddi, the learned counsel for the complainant that the case of the complainant is covered under Section 10 of the aforesaid definition and interpretations. Section 10 of the same is in the following terms:

                   “Heart valve surgery

                     The actual undergoing of open-heart surgery to replace or repair heart valve abnormalities. The diagnosis of heart valve abnormality must be evidenced by echocardiogram and supported by cardiac catheterization, if done, and the procedure must be considered medically necessary by a Cardiologist acceptable to the Company.”

12.                                 Then Sh.Rajiv Lohatbaddi, made us go through the report,Ex.R10 obtained by the ops from Probus Associates & Consultants Pvt. Ltd. In the conclusion, it is recorded that “ In view of the IPD records available in the Hospital, the hospitalization appears to be genuine”. It is further recorded that “IPD papers have been verified and the details available  have been listed above. The hospital has refused to provide the record of the IPD”. It has further been recorded that, “ It appears that the insured had deliberately concealed the material facts pertaining to her medical history and also the treating doctor/ hospital have deliberately concealed the actual duration of the  disease and have nowhere mentioned the duration of HTN or DM despite certifying the patient as a case of long standing HTN & DM and also a labeled case of CAD/TMT +ve/RBBB”.

13.                                 It amounts to mal-practice and despite having been confirmed by our doctor regarding the actual medical history the treating doctor has refused to certify the actual duration of the ailment in this case.

14.                                 In this regard it was submitted by Sh.Rajiv Lahatbaddi, the learned counsel for the complainant that it was for the ops to have led the evidence that the complainant had made a suppression of the material facts regarding the disease of the heart suffered by her. The ops had got the complainant medically examined at the time of the submission of the proposal form. No where it is averred by the ops in the written statement nor there is any evidence with regard to the complainant having suffered from the disease of the hyper tension, diabetes or the ailment of the heart prior to 25.2.2009. It was submitted that the complainant admittedly had a problem on 25.2.2009 having suffered a pain in  chest/ breathlessness and for that sake she had consulted Dr.Dharamvir Gandhi who referred her to Patiala Heart Institute. Ultimately she had to under go the operation regarding the critical illness of heart when Pacemaker was implanted on 28.2.2009.There is no evidence to have been led by the ops that it was disclosed by the treating doctor that the complainant was a known case of hypertension and diabetes and a labeled case of CAD/TMT/+ve BB/Right Bundle Branch Block at the time of admission on 25.2.2009. No such record is produced by the ops in support of their said plea. In this regard he place relies on the citation New India Assurance Company Ltd. Versus Kashinath Balmukund Marwadi 2008(3)CLT 119 of the Hon;ble National Consumer Disputes Redressal Commission (Circuit Bench at Pune,Maharashtra) and  New India Assurance Company Ltd. & Ors. Vs. Dinesh Kumar Mittal 2008(3) CLT 350 of the Honble Rajasthan State Consumer Disputes Redressal Commission, Jaipur.

15.                                 On the other hand it was submitted by Sh.K.K.Jain, the learned counsel of the ops that the case of the complainant is covered under Section 5 of the Definitions and Interpretations  of the Insurance policy, Ex.C2 and not by Section 10 of the same.

16.                                 We have considered the submissions. The ops have repudiated the claim of the complainant by virtue of the letter, Ex.R48 dated 30.5.2009 on the ground that she was diagnosed to be suffering from Right Bundle Branch Block and she under went permanent pacemaker implantation at Patiala Heart Institute on February 28, 2009 and that in view of Section 5 of the terms and conditions of Safety Net Contract the said ailment is not covered. We regret our inability to subscribe the plea put forth by the ops for the simple reason that Section 5 of the Definitions and Interpretation (Ex.R7) being a part of the insurance policy, Ex.R5 covers the eventuality of the heart attack, in respect of which we have already discussed and observed that the complainant had not suffered from any heart attack.

17.                                 Similarly we find ourselves unable to up hold the plea of the ops that the case of the complainant, as per clause 5 of the policy, permanent pacemaker implantation is not covered under the critical illness. Under Clause 1(s) of the Definitions & Interpretations, critical illnesses have been defined covering no. (1) Cancer 2. coma 3. Kidney failure 4.Multiple Sclerosis 5. Heart attack 6. Paralysis/paraplegia 7. Stroke 8. Major organ transplant 9. Coronary artery bypass surgery and No.10 Heart valve surgery.

18.                                 Sub clause (10) of clause (S) relates to Heart Valve surgery which provides for the actual undergoing of open-heart surgery to replace or repair heart valve abnormalities. The diagnosis of heart valve abnormality must be evidenced by echocardiogram and supported by cardiac catheterization, if done, and the procedure must be considered medically necessary by a Cardiologist acceptable to the Company. The implantation of a pacemaker is a heart valve surgery, which pertains to the repair of heart valve abnormalities and therefore, the case of the complainant is covered under Sub clause 10 of clause (S) of the Definitation and Interpretation of the policy. It was for the ops to have led the evidence that the implantation of the pacemaker was not medically necessary, in the absence of which the ops had no justification to repudiate the claim of the complainant.

19.                                 The complainant had suffered from the disease of breathlessness and pain in the chest only on 25.2.2009 when she consulted Dr.Gandhi, who referred her to The Patiala Heart Institute on 25.2.2009 and ultimately the complainant had to undergo the PPI implantation on 28.2.2009 and therefore, it could not be said that the complainant had any history of any illness in the past. In this regard no evidence has been led by the ops to substantiate their plea.

20.                                          Now coming to the entitlement of the complainant in respect of the amount of the claim, under the policy, Ex.C2, as per the schedule in respect of Life Line-Safety Net, there was an insurance of Rs.two lacs in respect of critical illness. The complainant has produced in evidence,Ex.C4 the patient invoice dated 3.3.2009 issued by Patiala Heart Institute showing her date of admission as 25.2.2009 and date of discharge as 3.3.2009 in respect of her treatment, for a sum of Rs.46530/- .She has also produced in evidence,Ex.C5, the detail of the bills numbering 21 attached with the same, the amount in respect of which comes to Rs.1,61,885/- in respect of the medicines purchased by her during the  period 25.2.2009 to 3.3.2009, all to have been counter signed by the Sr.Medical Officer of the Patiala Heart Institute, Patiala. The learned counsel for the ops failed to point out any deficiency in the bills with regard to the treatment imparted to the complainant by the Patiala Heart Institute, the complainant having produced the discharge card, Ex.C6 showing the date of admission as 25.2.2009 and date of discharge as 3.3.2009.Therefore, we are of the considered view that the complainant is entitled to be reimbursed for the expenses incurred by her on her treatment upto a limit of Rs.two lacs. The total amount of Exs.C4 &C5 comes to Rs.2,08,415/-.We accept the complaint and give a direction to the ops to reimburse the amount of Rs. two lacs to the complainant within a period of one month on receipt of the copy of the order. The failure to pay the same in time shall entail the liability upon the ops to pay the same with interest @9% per annum from the date of the repudiation i.e. 30.5.2009.Since the claim of the complainant was repudiated by the ops without any justification the complainant is also entitled  for costs of the litigation which is quantified at Rs.5000/-.

Pronounced.

Dated:11.5.2011

                                                Neelam Gupta                  D.R.Arora

                                                Member                            President