CONSUMER DISPUTES REDRESSAL FORUM,PALAKKAD

Dated this the 11^th November, 2015

PRESENT :  SMT. SHINY.P.R, PRESIDENT

               :  SMT. SUMA. K.P, MEMBER                      Date  of filing : 06/07/2013

CC /60/2013

Anwar.M.Quereshi,

S/o.Masih Subhan, X/723 Al-Ameen,

Behind Co-opertive Bank,                                         :        Complainant

Puduppariyaram New Panchayath-678 733

(By Adv.T.G.Suresh)         

             Vs

1. Menon Balakrishnan Ittam Veetil,

    Branch Manager- Palakkad,                                   :        Opposite parties

    Star Health and Allied Insurance

    Company Fine Centre, 4^th Floor,

    Shakunthala Junction,

    T.B.Road, Palakkad

    (By Adv.V.K.Venugopalan)

2. Claims Department Manager,

    Star Health Insurance Zonal Office,

    1^st Floor, S.S.Kovil Road,

    Thampanoor, Thiruvananthapuram

     Pin-695 001

    (By Adv.K.Dhananjayan)

O R D E R

By Smt. Suma. K.P, Member,

The case of the complainant as follows:  The complainant has took a Medi Classic Insurance Policy for individual from the opposite party on 03/05/2010  while he was working as Production Manager at Cogit Air IT Services, Palakkad.  The policy No.P/18/1214/01/2013/000234 and the period of insurance was till midnight on 02/05/2013.  As per the policy issued by the opposite parties they would indemnify the complainant to a tune of Rs.5lakh for hospitalization/treatment of any illness.  The complainant had some backpain issues in the year 2012 for which he was checked at Ganga Hospital, Coimbatore on 25/05/2012 and diagonized with Avascular Necrosis of Bilateral Femoral Head on the basis of x-ray for which a surgery of total hip replacement was necessary.  Complainant states that he had not fallen ill or sick or had any issues medically before this incident.  The complainant got admitted in Moulana hospital at Perinthalmanna which comes under the network of hospital of the opposite party on 18/07/2012 and underwent the surgery bilateral total hip replacement surgery  and was discharged on 30/07/2012.  His claim for reimbursement was not provided by the opposite party.  The doctors wanted him to undergo the surgery as soon as possible so he underwent the surgery on a reimbursement basis.  The complainant has submitted all the original bill, x-ray, original discharge summary, receipt, outpatient summary from Ganga Hospital, x-rays before and after surgery from Moulana Hospital etc. to the opposite party.  The claim filed by the complainant stands repudiated and repudiation letter was issued to him.  Against this repudiation the complainant has preferred the above complaint for reimbursement of Rs.4,80,000/- being covered by the policy issued by the opposite party. 

Opposite parties have appeared and filed their version stating the following.  It is admitted that the complainant had taken a Medi Classic Insurance policy from the opposite party w.e.f. 03/05/2010 – 02/05/2013.  The complainant has renewed the policy also.  During the said period the complainant had registered 3 claims.  Ultimately the claim which the complainant has been filed is against the repudiation of the claim bearing claim no.47517 for his disease of total hip replacement surgery, held at Moulana hospital, Perinthalmanna, Malappuram.  The definite contention taken by the opposite party and reason for repudiation of the claim was due to the following aspects: 1. pre existing disease, 2. suppression of material facts and misrepresentation.  It is stated in condition 7 of the clause of the insurance policy “ the company shall not be liable to  make any payment under the policy in respect of any claim if such claim is in any manner fraudulent or supported by any fraudulent means or device, misrepresentation whether by the insured or by any other person acting on his behalf.”  The repudiation was informed to the complainant on 24/04/2013.  Since the complainant has committed fraud and misrepresentation by concealing the actual and true facts and the surgery conducted by him was a planned one, the insurance company is justified in repudiating the claim.   Hence the complainant is not entitled to get any relief against the opposite parties.   Hence the complaint has to be dismissed.

Both the parties have filed their chief affidavit along with supporting documents. Ext.A1-A21 Except A 11 was marked from the part of the complainant.   Opposite parties filed application for cross examination of Manager, Menon hospital and Manager, Malabar hospital. Both the applications were allowed and witness from Menon hospital was examined as PW1 and witness from Malabar hospital was examined as PW2.  Complainant was cross examined as PW3. Opposite parties filed petition  seeking permission to examine an expert witness.  Application was allowed and expert witness was examined through Commissioner as DW1. Evidence was closed and  matter was heard.

The following issues are to be considered.

1. Whether there is any deficiency of service on the part of the opposite party?
2. If so, what are the reliefs and cost? 

 ISSUE No. 1

The very specific contention taken by the op is that the disease was a pre-existing disease and the surgery by which the complainant had undergone is a planned one and of pre-existing even before taking the policy.  The burden of proving the above contention is upon the opposite party that the complainant was having pre-existing disease even before taking the policy.  The op have cited Dr.Sabarisree Associate Professor, in Orthopeadic surgery working in Govt.Medical College, Thiruvananthapuram as a witness and he was examined through Adv.Commissioner.  The expert doctor has only stated that disease of the complainant was at the 4^th stage and he might have started the symptoms 2½  years back.  This fact would have detected if the complainant had taken out an MRI Scan.  But it is revealed from Ext.A7 that doctor who had conducted the surgery has stated that the history of the disease is having only past seven months.  The opposite party has not tendered any medical evidence to prove that the complainant was hospitalized or has underwent the surgery for a particular disease in the near proximity of obtaining the insurance policy.  The disease should be pre-existing, which means that the disease for which the person has received treatment should have been existing and in the knowledge of the person.  The counsel for the opposite parties had placed decision of our National Commission stating that suppression of pre existing ailment can vitiate insurance cover. But in the present case the facts are totally different and the complainant herein had no knowledge about his ailment till he was examined from Ganga Hospital on 25/05/2012.  Hence there is no question of suppression of material facts as described in those decisions.  If later on in the treatment it is found that the person has also been suffering from the disease in the past, he is not expected or supposed to disclose the same in the proposal form.  Merely because some positive sign were shown it cannot be treated as pre-existing disease.  There are many day to day problems which are normal and layman is not expected to know and disclose in the proposal form unless and until a person suffers from such diseases, for which he has been hospitalized and undergone operation.  Insurance company cannot take advantage of its Act of omission and commission as it is under obligation to ensure before issuing mediclaim policy whether a person is fit to be insured or not.  It appears that insurance companies don’t discharge this obligation as half of the population is suffering from such malaises and they would be left with no or very little business.  The claim of any insured should not be and cannot be repudiated by taking a clue or remote reference to any so called disease from the discharge summary of the insurer by invoking the exclusion clause or non disclosure of pre existing disease unless the insured had concealed his hospitalization in the reasonable near proximity.    In order to prove that  it is a case of pre-existing disease, the op examined the officials of Dr.Menon’s hospital, Olavakkode and Malabar hospital, Palakkad.  According to the said witnesses they are not keeping any of the records of the out patient, that the complainant had undergone treatment of Orthopaedic treatment and in any of these hospitals.  Other than the examination done in Ganga hospital  there is no other records to prove that the complainant has undergone any treatment for AVN.

Non disclosure of hospitalization / or operation for disease that too in the reasonable proximity of the date of mediclaim policy is the only ground on which insured claim can be repudiated and on no other ground.  The opposite party has not entered any medical evidence in order to prove the above facts. 

In the light of the above discussions we are of the view that the repudiation by the opposite party is not proper and cannot be justified. The opposite parties had committed deficiency of service by not allowing the claim.  Hence the complaint is allowed and opposite parties directed to pay the claim amount of Rs.3,38,878/-(Rupees Three lakh thirty eight thousand eight hundred and seventy eight only)  being the cost of the surgery as evident from Ext.A6 along with Rs.10,000/-(Rupees Ten thousand only)  as compensation for mental agony suffered due to the deficiency of service along with Rs. 3,000/-(Rupees Three thousand only) as cost of litigation.  The aforesaid amount shall be paid within one month from the date of receipt of this order failing which complainant is entitled to get 9% interest for the compensation amount from the date of order till realization.

Pronounced in the open court on this the 11^th  day of November, 2015.

                                                                   Sd/-

                                                                   Smt. Shiny.P.R

                                                                     President

                                                                       Sd/-                                                                                                                  Smt. Suma. K.P

                                                                       Member

A P P E N D I X

Exhibits marked on the side of complainant

Ext.A1 –Xerox copy of Driving licence of complainant issued on 06/01/2010

Ext.A2 – Xerox copy of orthopedic outpatient card of complainant  dtd.25/05/2012 at Ganga Hospital

Ext.A3- Xerox copy of prescription issued by  Ganga Hospital dtd.25/05/2012

Ext.A4 – Xerox copy of denial of cashless letter  dtd.25/06/2012

Ext.A5-Xerox copy of patient registration card Moulana Hospital,Perinthalmanna

Ext.A6- Xerox copy of claim form and details of bills from Moulana Hospital

Ext.A7- Xerox copy of discharge summary card from Moulana Hospital  

Ext.A8- Xerox copy of reply letter to Claims Dept. dtd.03/09/2012

Ext.A9- Xerox copy of complaint letter sent to Star Health Insurance dtd.06/10/2012

Ext.A10- Xerox copy of Requirement of additional details letter from Star Health Insurance dtd.25/2/2013

Ext.A12 -Original of the star health insurance policy dtd.03/05/2010 – 02/5/2011

Ext.A13 -Original of the star health insurance policy dtd.03/05/2011 – 02/5/2012

Ext.A14 -Original of the star health insurance policy dtd.03/05/2012 – 02/5/2013

Ext.A15-Original customer ID card valid from 03/05/2010 to 02/05/2011

Ext.A16-Original customer ID card valid from 03/05/2011

Ext.A-17-Original Doctor’s prescription from Moulana Hospital dtd.04/07/2012

Ext.A18- Original requirement of additional details letter from Star Health Insurance dtd.17/08/2012

Ext.A-19- Rules and regulations of Star Health Insurance company(Original)

Ext.A20- Original brochure of Star Health Insurance

Ext.A21- Xerox copy of discharge bill at Moulana Hospital, Perinthalmanna dtd.31/07/2012

Witness marked on the side of complainant

PW1-Ramadas.P

PW2-Mohan.V

PW3- Anwar.M.Quereshi

Exhibits marked on the side of opposite party

Nil

Witness examined on the side of opposite party

DW1-Sabari Sree.M

Cost Allowed

Rs.3000/- as cost.