Delhi

StateCommission

FA/235/2014

CHOLAMANDALAM MS GEN. INSU. CO. LTD. - Complainant(s)

Versus

MAYA GAUR - Opp.Party(s)

26 Sep 2018

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                             Date of Decision: 26.09.2018

First Appeal No. 235/2014

(Arising out of the order dated 30.10.2013passed in complaint case No. 914/2008 by the District Consumer Disputes Redressal Forum-VI, VikasBhawan, I.P. Estate, New Delhi-110001)

In the matter of:

M/s. CholamandalamMs Genl. Ins. Co. Ltd.

1st Floor, Plot No.6, Pusa Road,

Karol Bagh

New Delhi-110005                                                ..........Appellant

Versus

 

Mrs. Maya Gaur,

W/o, Dr. Y.D. Gaur,

R/o: DB-119/D, Hari Nagar,

New Delhi-110064                                                          …….Respondent                       

 

CORAM

 

JUSTICE VEENA BIRBAL                 -                       PRESIDENT

SALMA NOOR                                    -                       MEMBER

 

1.             Whether reporters of local newspaper be allowed to see the judgment?                                              Yes

2.             To be referred to the reporter or not?                                                                                                    Yes

 

 

SALMA NOOR            -           MEMBER

 

1.                 Present appeal is filed under Section 15 of the Consumer Protection Act 1986, (in short the ‘Act’) wherein challenge is made against the order dated30.10.2013 in CC No.914/08 passed by the Consumer Disputes Redressal Forum-VI, VikasBhawan, New Delhi (in short the ‘District Forum)’.
2.           Brief facts of the case are that Ms. Maya Gaur i.e. respondent/complainant had travelled to US on 19.07.2007. Respondent/complainant had obtained an Insurance Policy to cover her health problem from the appellant/OP for the period of 19.07.2007 to 14.01.2008 or the actual arrival whatever is earlier. It was stated by the respondent/complainant that during her stay in America on 06.10.2007 she developed certain rashes, itching, vomiting etc. and was taken to near by hospital at Saint Peters University Hospital, New Jersy, U.S.A. on 07.10.2007 in emergency treatment and kept under observation till 08.10.2007. On her admission to St. Peter’s University Hospital respondent/complainant was diagnosed as having “Anaphylactic shock to Amoxicillin”. Thereafter, the respondents/complainants condition deteriorated and she was again admitted in the hospital on 20.10.2007, for further treatment. It was stated that respondent/complainant was admitted for 3 days and was thereafter discharged on 22.10.2007. The respondent/complainant incurred expenses amounting to US $ 11,254 1^st bill, +US $ 31,131 2^nd bill (total US $ 42,385) equivalent to Indian Rs.17,80,170/-. The claim was filed with the appellant/OP along with all the bills regarding medical expenses.It was stated that the claim was repudiated vide letter dated 11.02.2008 on the ground that the respondent/complainant was suffering from pre-existing disease. Hence, a complaint was filed before the Ld. District Forum wherein respondent/complainant prayed for US $ 42,385 (Rs. 17,80,170/-) along with Rs.1,00,000/- as compensation.
3.           Appellant/OP filed written statement. In the reply it was admitted that respondent/complainant had obtained a Superior Short Term Travel Insurance policy valid from 19.07.2007 to 14.01.2008, which excluded pre-existing disease. It was also admitted that respondent/complainant got admitted in Saint Peters University Hospital, New Jersy, U.S.A. on 07.10.2007 for emergency treatment and after getting treatment she was discharged from the hospital next day. It was also not disputed thatrespondent/complainant on 20.10.2007 again got admitted in the same hospital for similar anaphylactic reaction in addition to acute renal failure. She was again treated with emergency medication and discharged on 22.10.2007. It was also admitted that, the claim was submitted with the appellant/OP but it was not allowed. It was stated that, in any case 100 US $ is deductable from the claim which might be found admissible. It was also stated that respondent/complainant had taken by way of self medicationAmoxicillin. It was stated that Amoxicillinand Ampicillin belong to the same group ofPencillin and to which respondent/complainant had similar allergic reaction 20 years back. Due to the aforesaid reasons the view was taken by appellant/OP that it was a pre-existing disease and the claim was not admissible under the policy.
4.           Both the parties filed their affidavit of evidence reiterating the facts as stated in the complaint and also filed written statement.
5.           The Ld. District Forum after considering the evidence filed by the parties allowed the complaint by observing as under:

    We have thoroughly gone through the documents filed by complainant regarding the treatment. The complainant got admitted in the hospital with rashes, itching, vomiting, fever etc., and after getting treatment she got discharged on next day. It was diagnosed as Anaphylactic shock to Amoxycillin which was acute and hospitalization was necessary. After getting treatment the condition of complainant was deteriorated and again admitted in the hospital for 3 more days. 

    The plea taken by OP that complainant was suffering from pre-existing disease as 20 years back there was allergic reaction for Ampicillin. Complaint’s claim is justified. It was reaction of medicines “pencillin” and we cannot say it is pre-existing disease.

    The plea taken by OP is unjustified. OP failed to settle the claim of complainant, so holding OP guilty of deficiency in service we direct OP to pay Rs.17,80,170/- the actual expenditure incurred during hospitalization at U.S. less 100 U.S. $ as per terms and conditions of policy. We award Rs.50,000/- as compensation including litigation cost.                                                                             

6.           Aggrieved by the aforesaid order of the Ld. District Forum present appeal is filed by the appellant/OP.
7.           The contention of the appellant/OP is that the claim preferred by the respondent/complainant is inadmissible under exclusion point (b) of the insurance policy where it is clearly stated that no indemnity is payable for claim arising out of any treatment arising due to a pre-existing condition. It is contended by the appellant/OP that the respondent/complainant past medical history recorded at hospital disclosed that she had similar allergic reaction 20 years back for Ampicillin.
8.           Notice was issued to the respondent/complainant who appeared and contested the appeal.
9.           We have heard the counsels for the parties and perused the material on record.
10.  There is no dispute between the parties that respondent/complainant had travelled to U.S.A on 19.07.2007 and before leaving India she obtained an insurance policy to cover her entire health problem vide policy No.SST-00002989-000-00 for the period of 19^th July, 2007 to 14^th January, 2008. It is also not disputed that during her visit to U.S.A the respondent/complainant got admitted in Saint Peters University Hospital, New Jersy, U.S.A and after getting treatment got discharged on 08.10.2007 and was diagnosed as “Anaphylactic shock toAmoxicillin”. It is also not disputed that the respondent/complainant again was admitted in the same hospital on 20.10.2007 for the same problem and after getting treatment was discharged after 3 days from the hospital. It is also evident from the record that the expenses incurred amounted to US $ 42,385approximately i.e. Rs.17,80,170/- and the bills wereforwarded to the appellant/OP along with the medial report which was repudiated by the appellant/OP company vide letter lated 11.02.2008 on the ground of pre-existing disease.
11. The only ground to challenge the order of the District Forum by the appellant/OP is that respondent/complainant was suffering from pre-existing disease as 20 years back therewas  a similar allergic reaction to ampicillin. To resolve this controversy during the pendency of the appealwe asked  appellant/OP to produce the proposal form filled by the respondent/complainant at the time of taking the policy from which it can be seen,whether there was a column regarding the allergies and for that question what was the answer given by the respondent/complainant at the time of obtaining the policy. Despite giving sufficient opportunities appellant/OP failed to produce theproposal form bywhich it can be affirmed that the respondent/complainant did not declare that she is allergicto some medicine. In absence of any documentary proof no reference can be drawn that respondent/complainant had earlier knowledge of allergic  reactionto Amoxicillin. If at all we presume that appellant/OP was allergic to some medicine 20 years back, it is difficult to remember after 20 years that she was allergic to the same medicine.  Thus, plea taken by the appellant/OP, that respondent/complainant was suffering from a pre-existing disease since 20 years back and had suffered allergic reaction to Ampicillin a type of“pencillin” is not justified. In our view,reaction to a drug cannot be presumed a pre-existing disease. Hence, the plea taken by the appellant/OPis not justified.
12. In our view appellant/OP is not justified in repudiating the claim of the respondent/complainant and the Ld. District Forum has correctly passed the order in favour of the respondent/complainant by allowing the complaint.
13. Appeal is dismissed.
14. A copy of the order be sent to the parties free of costs as well as to Ld. District Forum for necessary information. File of the District Forum will also sent back forthwith.

                   File be consigned to record room.     

 

                                                                                                                                               (Justice VeenaBirbal)

President

 

 

                                                                                                                                                           (Salma Noor)

                                                                        Member