FA.No.668/2008 against CC.No.1029/2007 District Consumer Forum-III, Hyderabad.

Between-

United India Insurance Co. Ltd.

Rep. by the Divisional Manager,

Divisional Office No.IV.

Tilak Road, Hyderbad.

…Appellant/Opp.Party No.1.

And

1.G.Venkateswar Reddy,

   S/o.Krishna Reddy,

   H.No.42-669/3, Chandabagh,

   Moulali, Hyderabad.

…R.1/Complainant.

2.United India Insurance Co.Ltd.

   Head Office - 24, Whites Road,

   Chennai.

3.M/s.Family Health Plan Ltd.

   Aditya J.R.Towers, 8-2-120/86/9/A and B,

   3^rd and 4^th Floor, Road No.2,

   Banjara Hills, Hyderabad.

…R.2 and R.3/O.P.No.2 and 3.

Counsel for the Appellant        -     Mr.G.Sundararamayya.

Counsel for the Respondents  -     Admn.Stage.

QUORUM- THE HON’BLE MR.JUSTICE D.APPA RAO, PRESIDENT,

SMT.M.SHREESHA,HON’BLE LADY MEMBER,

AND

SRI G. BHOOPATHI REDDY, HON’BLE MALE MEMBER.

THURSDAY, THE FIFTH DAY OF JUNE,

TWO THOUSAND EIGHT.

Oral Order (Per Hon’ble Mr.Justice D.Appa Rao, President)

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1.         This is an appeal preferred by the 1^st opposite party against the order of the District Consumer Forum-III, Hyderabad, dated 17.04.2008 in CC.No.1029/2007 directing opposite parties 1 to 3 to jointly pay Rs.44,442/- besides compensation of Rs.10,000/- and costs of Rs.2,000/-.

2.         Heard the learned counsel for the appellant.  We are of the opinion that the matter could be disposed of at the stage of admission.  The brief facts of the complaint are set out as hereunder.

3.         G.Venkateswar Reddy, an employee of M/s.Nile Ltd., at Hyderabad had taken a group mediclaim policy through his employer, which covers the health and welfare of the families of the employees.  K.Sri Lakshmi, the wife of G.Venkateswar Reddy is also covered by the insurance policy for the period from 20.07.2005 to 20.07.2006.  Subsequently, it was renewed on 20.07.2006.  Sri Lakshmi had developed abdominal pain during the month of May, 2006.  She, therefore,  went to M/s.Sai Vani Hospital, Hyderabad.  After perusing the health card, the matter was referred to a third party administrator, who is shown as opposite party No.3.  It denied the cashless facility and further observed that the disease, hernia was excluded during the first year of the policy inception.  Thereupon, she was admitted in KIMS Hospital, who in turn referred the matter to a third party administrator.  Thereupon, the complainant got the operation done to his wife on 28.09.2006 in KIMS and bore expenses of Rs.44,442/-.  When a claim was made, the opposite parties repudiated the same on the ground that it was a subsisting disease at the time of taking the policy and non-mention of the same would entail rejection.  Therefore, the complaint was filed for recovery of Rs.44,442/- paid towards KIMS hospital expenses with interest at 18 percent per annum together with compensation of Rs.15,000/- and costs. 

4.         The 1^st opposite party resisted the complaint.   While denying each and ery averment made in the complaint,  it put the complainant to prove that Sri Lakshmi underwent operation and spent the amount claimed.  Since the complainant knew  that his wife had pre-existing disease and it was not covered by the terms of mediclaim policy, he was not entitled to compensation, and therefore, prayed for dismissal of the complaint.

5.         Before the District Forum, the complainant had filed his affidavit and Exs.A.1 to A.19, while the 1^st opposite party/appellant did not choose to file any documents.  The District Forum after considering the evidence placed on record opined that the complainant had spent Rs.44,442/- towards medical expenses and awarded the said sum besides compensation of Rs.10,000/- and costs of Rs.2,000/-.

6.         Aggrieved by the said order, the 1^st opposite party  Insurance Company preferred this appeal contending that the complainant is not entitled to the compensation since he knew the pre-existing disease of his wife at the time when the policy was taken.  She had suffered from incisional hernia from the last 13 years and therefore, she was not entitled to compensation.  She had suppressed the said disease.

7.         The point that arises for consideration is whether there was any deficiency on the part of the appellant?

8.         It is not in dispute that Sri Lakshmi is the wife of G.Venkateswar Reddy, who took mediclaim policy on his family members valid upto 20.07.2007.  Whileso, in the month of May, 2006 when she had developed abdominal pain she went to Sai Vani Hospital and later to KIMS where she was diagnosed that she was suffering from incisional hernia.  The complainant alleges that about 13 years prior to the taking of the policy she had cesarean operation and got hernia 13 years after the surgical operation.  It cannot be said that either he or his wife knew that she had hernia nor it could be termed as a disease -  the ground on which the Insurance Company repudiated the liability. 

9.         The learned counsel for the appellant mainly contended that Sri Lakshmi, the wife of the complainant, has been suffering from incisional hernia for the last 13 years and when she has been suffering from abdominal pain, undoubtedly, she knew that she had ailment, which she suppressed at the time of taking of the policy.  Since the patient knew this pre-existing ailment she was not entitled to any compensation. 

10.       The record discloses that about 13 years ago the complainant’s wife had undergone cesarean operation.  Evidently, she was not having hernia all through.  Dorland’s Medical dictionary (Edition 28. International edition W. B. Saunders) did not clarify it as a disease.   It can be said that hernia is not a disease, the ground on which the Insurance Company intend to repudiate the claim. The medical literature filed in the appeal would undoubtedly discloses that –

  An incisional hernia occurs in the abdomen in the area of an old surgical scar.  A part of an organ in the abdomen, such as the bowel or intestines, protrudes through the weakened area of the abdominal wall.” 

It was further stated that –

It was also stated that -

“virtually any prior abdominal operation can subsequently develop an incisional hernia at the scar area including those from large abdominal procedures (intestinal surgery, vascular surgery) to small incisions (Appendectomy, or Laparoscopy).  Hernias in this area have a high rate of recurrence if repaired via a simple suture technique under tension and it is especially advised that these be repaired via a tension free repair method using mesh (a type of synthetic net)”.

Evidently hernia will not be occasioned whenever a person undergoes some surgery.  It may develop if the abdominal wall is weak.  This development cannot be termed as disease.   

       The wife of the complainant never felt any pain prior to May, 2006.  The Insurance Policy was taken in the year 2005.  Since she had suffered pain, she went to the hospital, where it was diagnosed as incisional hernia.  Therefore, the complainant made a claim before the third party administrator for the Insurance company, who repudiated it stating that she was not entitled to reimbursement on the ground that the disease was not informed to the company. 

       At the cost of repetition, we may state that incisional hernia is not a disease so as to attract the terms of the Mediclaim Policy.  This was gradually formed, in view of a cesarean operation that had undergone by the complainant’s wife about 13 years ago.  She could not have thought that she would develop hernia after 13 years of the operation.  None had informed her.  Had she been in the knowledge of this, she could be found fault with.  When she never suspected nor had any pain, there was no reason why she should disclose that she may develop hernia in future.  We repeat that this is not a disease where she could have informed to the Insurance Company at the time when the policy was taken.  Obviously this is a ruse to the Insurance Company to repudiate its liability on one ground or the other.  The Insurance Company ought to have found whether incisional hernia was a disease, where the mediclaim policy could not be extended.  We do not see any misrepresentation of facts or law in this regard.  The bills filed in this regard would, undoubtedly, disclose that the complainant had spent Rs.44,442/- towards operation.  When the Insurance Company had undertaken this liability, necessarily it had to pay the amount whatever, incurred in this regard.  We also observe that the Insurance Companies are repudiating claims of the genuine claimants without any basis.  If the claim is repudiated on the ground that the complainant knew that for operation that was conducted about 13 years ago, she would develop hernia it is unfortunate.  The repudiation is unjust.  We do not see any merits in this appeal.  This appeal must go at the threshold.

13.       In the result, the appeal is dismissed at the stage of admission.  However, no costs.              

  PRESIDENT              LADY MEMBER         MALE MEMBER

Dt-05.06.2008.

Vvr.