FA.No.617/2008 against CC.No.19/2007 District Consumer Forum, Nizamabad.

Between:

1.Sri Chandrakanth Rao, S/o.Vittal Rao,

   45 years, Occ: D.O.

   New India Assurance Company Limited, Kamareddy,

2.The Branch Manager, New India Assurance Company Limited

   Weekly Market Road,

   Kamareddy, District Nizamabad.

…Appellants/Opp.Parties.

And

J.Siddha Lingaiah Swamy, S/o.Nagaiah Swamy,

Aged : 69 years, Occ: Private Business,

R/o.Yellammagutta, Nizamabad.

…Respondent/Complainant.

Counsel for the Appellants       :  Smt.K.Aruna.

Counsel for the Respondent    :  Sri D.R.Krishnam Rajesh.

QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT,

AND

SMT.M.SHREESHA, HON’BLE MEMBER.

MONDAY, THE SECOND DAY OF AUGUST,

TWO THOUSAND TEN.

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

*******

1.         The opposite parties, the New India Assurance Company Limited, preferred this appeal against the order of the District Forum directing it to pay the amount covered under the medi-claim policy with interest and costs.

2.         The case of the complainant in brief is that the Insurance Company issued a medi-claim policy to him promising that it would come to his aid and also helpful to get monetary benefits towards medical expenses. An amount of Rs.5075/- was collected towards yearly premium covering the period from 26.8.2005 to 25.8.2006 for an assured sum of Rs.1   While so, he suffered from pain and vision problem in his right eye and thereafter he went to Shri Ganapati Netralaya, Jalna for check up.  They diagnosed it as right photo dynamic therapy plus intravitreal avastin.  An operation was conducted on 28.7.2006 and was discharged on 29.7.2006.  Altogether he had spent an amount of Rs.91  When he submitted claim, the same was repudiated on the ground that the ailment was pre existing.  Aggrieved by the said repudiation, he filed the complaint claiming Rs.91

3.         The Insurance Company resisted the case.  While denying each and every allegation made in the complaint, it alleged that the policy was obtained in order to have wrongful gain.  The complainant was aged 65 years.  He underwent operation in the right eye for cataract surgery in the year 1995 and left eye cataract surgery in 2004.  The doctor after going through the record opined that the deceased had pre existing ailment and therefore the claim was repudiated.

4.         The complainant in support of his case filed affidavit evidence and got the documents marked as Exs.A.1 to A.11 while the Insurance Company filed affidavit evidence and got the documents marked as Exs.B.1 to B.7. 

5.         The District Forum after considering the evidence placed on record opined that the disease was not pre existing and directed the Insurance Company to pay Rs.91,000/- towards medical expenses with interest at 12% per annum from July, 2006 till realization, besides costs of Rs.1,000/-.

6.         Aggrieved by the said order, the Insurance Company preferred this appeal contending that the District Forum did not appreciate the facts in its correct perspective.  It ought to have seen that the ailment was pre existing and the same was suppressed by him.  Therefore, it prayed for dismissal of the complaint.

7.         The point for consideration is whether the order of the District Forum is vitiated by mis-appreciation of facts?

8.         It is an undisputed fact that the complainant, aged 65 years, had taken a mediclaim policy covering the period from 26.8.2005 to 25.8.2006 for Rs.1,00,000/-, evidenced under Ex.B.2.  It is also not in dispute that the complainant was treated with photodynamic therapy with intravitreal avastin in the right eye evidenced under Ex.A.2 certificate.  This operation was conducted in Shri Ganapati Netralaya, Jalna, and the hospital authorities issued a bill for Rs.90  towards operation as well as treatment charges.  No doubt the complainant underwent right eye cataract surgery in the year 2005 and left eye cataract surgery in the year 2004.  He was wearing glasses for the last 25 years.  After considering the entire record the doctor at Shri Ganapati Netralaya issued   case summary, mentioning that  “the previous ocular alignment has no correlation with the present ocular alignment”.  The Insurance Company did not examine any doctor in order to refute the above opinion.  The claim has been repudiated under exclusion No.4.1 of the Standard Mediclaim/Group Mediclaim policy.  It has filed Ex.B.6 a certificate issued by the medical officer of the Family Health Plan Ltd., Hyderabad, that (1) myopia (spectacles since 25 years), (2) Occular trauma (cataract surgery in left eye 1995) and (3) Eye related maclular degeneration (age 67 years) for CNVM, were existing prior to policy inception.   The affidavit evidence of the said doctor, who gave Ex.B.6 not filed.  The Insurance Company did not counter the opinion issued under Ex.A.6.  The Insurance Company having repudiated the claim ought to have examined T.Shalini to state that the opinion given by the doctor at Shri Ganapati Netralaya is not scientifically correct.  They did not file any medical literature to say that the ailment suffered by the complainant could not have been contacted within short span of two months after giving the policy.

9.         The learned counsel for the Insurance Company contended that in the proposal form he did not mention that he had underwent cataract surgery earlier which amounts to suppression of material fact.   We may state that the operation was conducted about 10 years prior to the issuance of the policy.  In the light of the opinion given by the doctor under Ex.A.6 it cannot be said that there was suppression and even if the said fact was not mentioned it cannot be said that it was material in view of the fact that it has no correlation with the said disease.      10.         The Insurance Company having found that the complainant was aged 65 years must have satisfied with his health condition and issued mediclaim policy.  They could not have though that an old man would be hale and health and would not get any ailment whatsoever within the period stipulated under the insurance policy.  Having collected the premium they now intend to take advantage to repudiate the claim.  The District Forum has rightly allowed the claim.  We do not see any merits in the appeal.

11.       In the result, the appeal is dismissed with costs of Rs.2000/-.   

             PRESIDENT                                                                                                                                                                                        

MEMBER

DtVvr.