BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Complaint Case No  :104 of 2009

Date of Institution :21.01.2009

Date of  Decision   :14.05.2010

Nirmal Jain wife of Sh.Ashok Jain, mother of Master Shrey Jain (since deceased), resident of H.No.157, Sector 38-A, Chandigarh.

 ……Complainant

V E R S U S

1]   M/s ICICI Lombard General Insurance Company Limited, through its Managing Director, 3^rd Floor, Zenith House, Keshvrao Khadye Marg, Mahalakshmi, Mumbai 400034

     2^nd Address:-

     M/s ICICI Lombard General Insurance Company Limited, through its Managing Director, ICICI Bank Towers, Bandra Kurla Complex, Mumbai 400051

2]   M/s ICICI Lombard General Insurance Company Limited, through its Branch Manager, SCO No.24-25, Ist Floor, Sector 8-C, Madhya Marg, Chandigarh.

3]   M/s ICICI Lombard General Insurance Company Limited, through its Branch Manager, SCO No.173-74, 1^st Floor, Sector 9-C, Madhya Marg, Chandigarh.

.…..Opposite Parties

CORAM:     SH.LAKSHMAN SHARMA              PRESIDENT

          MRS.MADHU MUTNEJA             MEMBER

PRESENT: Sh.Anuj Raura, Adv. for complainant.

Sh.Sandeep Suri, Adv. for OPs.

PER MADHU MUTNEJA, MEMBER

        In the instant case, a complaint has been filed by Smt.Nirmal Jain – Complainant under Section 11 and 12 of Consumer Protection Act with a prayer that  this Hon’ble Forum may be pleased to direct the respondent to reimburse the amount spent towards treatment of the insured which is payable under the policy, in view of death of Shrey Jain, an amount of Rs.5.00 lac as compensation and litigation expenses to the tune of Rs.30,000/- to the complainant in view of the averments made in the complaint, in the interests of justice.

        It is further prayed that this Hon’ble Forum may be pleaded to pass any other order granting cost of litigation and compensation in view of the peculiar facts and circumstances of the present case, in the interests of justice.

        The facts of the case are as under.

1]      All the family members of the complainant i.e. complainant herself, her husband, two daughters and one son namely Shrey Jain (since deceased) were medically insured with OP Insurance Company under ICICI Lombard Health Care Plan w.e.f. April,2006.  They had made payment of premium for two successive years.  The complainant has stated that at the time of taking the said family health policy, the OPs were clearly told that Shrey Jain was suffering from mental retardation.  They had been assured by the OPs at the time of taking the policies for the parents as well as the children that there would not be any difficulty in having the amount in the eventuality of existence of exigencies.  The requisite premium demanded by the OPs was duly paid.

        Unfortunately, Shrey Jain got high fever in the second week of Dec., 2007. He was taken to INSCOL Hospital, Sec. 34, Chandigarh and from there to G.M.C.H., Sec. 32, Chandigarh.  Since he had acquired pneumonia, he was shifted to PGI where he ultimately died on25.12.2007.  A complete medical record, which eventually lead to his death along with death summary, cause of death, progress sheet have been given from Ann. P-1 to P-3.  Photocopies of bills of medical equipment/medicines purchased have also been attached.  

        The causes of death as per Ann.P-3 are as under:-

i)       cardiac Arrythmia

ii)    Neuroleptic Malignant Syndrome

iii) Hospital Acquired Pneumonia (Psevdomonas Related)

iv)    Sepsis

v)       Right Pneumothorax

vi)    Mental Retardation Intelligence Quotient = 21

A total sum of Rs.98,000/- was incurred on the treatment of Shrey Jain (since deceased) for purchasing medicines and other hospital related expenses. 

        Thereafter, the complainant filed a claim with OPs for the reimbursement, which the OPs have repudiated vide their letter at Ann.P-5.  The complainant has also cited Clause 3.1. of the Policy with regard to pre-existing decease which is as under:-

“3.1 Any pre-existing illness - The claims arising on account of or in connection with any Pre-existing illness shall be excluded from the scope of cover under the policy. This exclusion shall cease to apply, subject to the exclusions mentioned under sub-clause 3.4 herein below, if the Insured has taken a Healthcare Policy from the Company and has been covered under the Policy, without a break, for a period of 4 consecutive years immediately preceding the Period of Insurance. Notwithstanding the foregoing, Permanent Exclusions as mentioned under sub-clause 3.4 herein below shall not be covered under this Policy in any case.”

        Since no concealment was made at the time of taking the policy in respect of late Shrey Jain, the complainant feels that this repudiation by the OPs amounts to deficiency in service on their part and has thus prayed for favourable settlement of the claim as well as compensation.

2]      The OPs in their reply have admitted the issuance of medicalim policy to the complainant and her family members as well as receipt of two years premium thereof.  They have denied that the pre-existing illness of the deceased Shrey Jain was informed to the company by the complainant at the time of taking policy.  It is stated that the deceased was suffering from NMS (Neuroleptic Malignant Syndrome) and this was the primary cause of death of the insured.  The deceased was suffering from mental retardation (neuro illness) which was not disclosed at the time of taking the policy in question.  Even otherwise pre-existing illness or any claim arising on account of or in connection with pre-existing illness was not covered for a period of four years and therefore, the claim of the complainant has rightly been repudiated. Denying rest of the allegations, OPs have prayed for dismissal of the complaint.

3]      We have heard the learned counsels for both the parties and perused the evidence led by both parties in support of their contentions.

4]      The complainant along with her husband had taken a Health Insurance Policy from OPs.  The OPs had also approached her to extend the policy to her children too, hence a policy for the children of the complainant was taken, which commenced from April, 2006.  The learned Counsel for the complainant has stated that the complainant had made it clear to the OPs at the time of taking the said policy that her son Shrey Jain was mentally retarded and not normal in any respect.  However, the OPs at that time did not have any problem about issuing the policy in his name.  The learned Counsel for the OPs has stated that this fact was not brought out by the parents at the time of taking the policy for the children and when the child fell sick and was admitted in the hospital, he died due to the reasons, which could not be covered by the policy.

5]      Both the parties have relied on Clause 3.1 of the Policy, which has already been reproduced above.  The OPs had no problem about the pre-existing illness of complainant’s children while the OPs has stated that the policy could not be extended/disbursed due to pre-existing disease in the child.

6]      A perusal of the death summary and medical certificate about the cause of death of the patient shows that the patient died not only because of his earlier diseases/illness:_

(ii)   Neuroleptic Malignant Syndrome;

(vi) Mental Retardation Intelligence Quotient=21

but also because of the following diseases/illness:-

(i) cardiac Arrythmia

(iii) Hospital Acquired Pneumonia (Psevdomonas Related),

(iv) Sepsis

(v) Right Pneumothorax

7]      The repudiation of the claim by the OPs in such a situation does not seems to be fair and reasonable.  They should not have granted the policy to the complainant for this child. Now when they had issued the policy and have also taken two premiums against said policy, they cannot repudiate the claim of the complainant on the grounds, mentioned above.

8]      In view of the above, the complaint is allowed.  The OPs are directed to pay the following amounts to the complainant:-

i)       Rs.98,000/- incurred on the purchase of medicines and other hospital related expenses of the deceased child.

ii)    Rs.20,000/- as compensation for deficiency in service as well as mental tension and harassment to a mother, who has already lost her child even though mentally retarded.

iii) Rs.5000/- as cost of litigation.

This order shall be complied with within 30 days from the date of receipt of its certified copy, failing which the OPs shall pay the aforesaid amount of Rs.1,18,000/-along with interest @12% per annum from the date of order till the date of realization as well as the cost of litigation.

9]     Certified copies of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

14.05.2010                                       Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

                                             Sd/-

(MADHU MUTNEJA)

MEMBER

‘Om’