Medi Assist India Pvt.Ltd., Divisional Manager,New India Assurance Co.Ltd.,
...........Respondent(s)
BEFORE:
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
Date of Filing:13.08.2007 Date of Order: 23.01.2008 BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20 Dated: 23RD DAY OF JANUARY 2008 PRESENT Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President. Smt. D. LEELAVATHI, M.A.LL.B, Member. Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member. COMPLAINT NO: 1711 OF 2007 M.R. Prasanth Kumar, R/o 387, I Cross, III Main, Girinagar, I Phase, Bangalore-560085. (Prashanth Clinic Bidadi, Bangalore Rural District) Complainant V/S 1) Medi Assist India Pvt. Ltd., Shilpa Vidya Building, III Floor, Door No.49, I Main Road, Sarakki Industrial Layout, J.P. Nagar, III Phase, Bangalore-560 078. By its authorized signatory. 2) Divisional Manager, New India Assurance Co. Ltd., INDOCEM HOUSE II Phase, 327/5, Mysore Road, Bangalore-400 003. Opposite Parties ORDER This is complaint filed in respect of medical claim. The facts of the case are that, the complainant has taken mediclaim policy from the opposite party covering of his family members including his mother T. Usha for the period from 13/1/2006 to 12/1/2007. Subsequently, the policy was renewed for the period from 17/1/2007 to 16/1/2008. Complainants mother fell ill and admitted to Bharati Nursing Home on 17/1/2007. Usha was operated on 19/1/2007. Claimant preferred claim for Rs.40,057/- for having incurred expenditure for hospitalization, but opposite party kept quite without any payment. Legal notice was issued. The first opposite party repudiated the claim. Hence, the complaint. 2. Notice was issued to opposite parties and they have put in their appearance and filed defense version stating that, the policy dated 17/1/2007 shall be treated as fresh policy. Policy exclusion clause 4.3 clearly states during the first year of operation of insurance cover if the diseases are pre-existing at the time of proposal they will not be covered. The exclusion of the claim is applicable in the case. Therefore, there is no deficiency in service. The repudiation of the claim under exclusion clause 4.3 is by virtue of terms and conditions of mediclaim policy. Therefore, the opposite parties have requested to dismiss the complaint. 3. Affidavit evidence of both the parties are filed. Arguments are heard. 4. The points for consideration are:- 1. Whether there was a deficiency of service on the part of the opposite parties? 2. Whether the repudiation of claim on the part of the opposite parties is justified? REASONS 5. We have gone through the records and documents. As regards the facts of the case there is absolutely no dispute. Almost all the facts are admitted. It is an admitted case of the parties that the complainant has taken mediclaim policy for himself, his mother and brothers. The sum assured is Rs.1,00,000/- for each of the members. The policy period was from 17/1/2007 to mid night of 16/1/2008. Earlier to this policy the complainant had taken mediclaim policy for the period from 13/1/2006 to mid night of 12/1/2007. It has been argued by the learned counsel for the complainant that the earlier policy was renewed. The renewal of the earlier policy is immaterial. Admittedly as per the case of the opposite parties the mediclaim policy covering period from 17/1/2007 to mid night of 16/1/2008 is a new policy. Even if the policy is considered to be a new policy the question is whether the opposite parties can disallow the claim submitted by the complainant for the reimbursement of the medical expenses. The only defense taken by the opposite parties is that under clause 4.3 of the policy terms and conditions that company shall not be liable to make payment under the policy for the diseases which are pre-existing when the policy was taken. On this condition alone the claim had been repudiated by the opposite parties. Admittedly, the mother of the complainant was admitted to the Bharati Nursing Home on 17/1/2007. She was operated on 19/1/2007 and discharged from hospital on 21/1/2007. As per hospital records the date of consultation was on 15/1/2007. It is stated by the opposite parties that the patient was suffering since 8 months. Therefore, on this ground itself the claim had been repudiated. The claimant was suffering from Fibroid Uterus and for her disease she underwent operation on 19/1/2007 for abdominal Total Hysterectomy and bilateral salpingo Oopherectomy the exclusion clause will apply only in case if the insured is aware of the existence of congenital internal diseases/defect before inception of policy, it will be treated as pre-existing. In this case, there is absolutely no evidence or documents to show that the claimant was aware of the pre-existing disease. The claimant was suffering from Fibroid Uterus Anemia as per the diagnosis. This kind of disease cannot be known and it cannot be expected by ordinary person that she was knowing the disease before taking the policy. Before issuing policy the person has to be medically examined by the Doctors of the company and if the insurance company fails to dot he same, it cannot be allowed to take advantage of its wrong. In this case, admittedly the opposite party company had not medically examined the insured before issuing policy. Therefore, now it cannot be take defense and repudiated the claim on the ground that, there was pre-existing disease. The defense taken by the opposite parties is unjustified and unreasonable. Such kind of defense cannot be accepted at all. The Delhi State Consumer Disputes Redressal Commission in a Judgment reported in III 2005 CPJ 418 in ORIENTAL INSURANCE CO., LIMITED V/S HEMANTH BHANDARI his lordship has held as under:- The appellant is Insurance Company. It appears that every Insurance Company has started taking undue advantage of its wrong. Whenever they cover a person under mediclaim insurance policy and the person suffers from some or the other ailments or even dies a stereotype defence is taken by the Insurance Company that the insured had concealed the factum of the pre-existing disease he was suffering from. On this short ground alone Insurance Company repudiates the rightful claim of he insured. Any person who desires to be covered by the insurance policy is required to be medically examined by the doctors of the company and if the Insurance Company fails to do the same it cannot be allowed to take advantage of its wrong. Again the West Bengal State Consumer Disputes Redressal Commission in a case reported in 2(1998) CPJ 356 at page 358 in para-8 it has been observed as under:- In fact, we are not satisfied why the insurance claim in any of the cases should be excluded on the ground that it was in respect of a pre-existing disease. A distinction has been sought to be made by showing that a new proposal for insurance carries with it the baneful effect of making all subsequent disease old and existing ones. We are, however, of the view that the existence of an old disease being a question of fact must be proved by satisfactory evidence. A technical flaw cannot frustrate the purpose of an insurance contract. So, in view of the above authority to pronouncement we are of the opinion that the opposite parties must accept the claim and pay the hospital expenses as per the claim submitted by the complainant. The opposite parties cannot be permitted in law to repudiate the claim on the facts and circumstances of the present case. Therefore, there is absolutely no merit and substance in the defense or objections taken by the opposite parties. In the result the complaint is accepted. In the result, we proceed to pass the following:- ORDER 6. The complaint is partly allowed. The opposite parties are directed to pay Rs. 40,057/- to the complainant. The opposite parties are directed to pay interest at 12% p.a on the award amount from the date of claim (i.e., 20/2/2007) till realization. The complainant is also entitled to Rs. 5,000/- towards the costs of the present proceedings. 7. Send the copy of this Order to both the parties free of costs immediately. 8. Pronounced in the Open Forum on this 23RD DAY OF JANUARY 2008. Order accordingly, MEMBER MEMBER PRESIDENT
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