BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
F.A. 675/2008 against C.C. 701/2005, Dist. Forum-III, Hyderabad
Between:
Smt. Sarita Dabriwal
W/o. Sajjan Dabriwal
Age: 38 years, Service
H.No. 6-3-1097/98-B
Flat No. 605, Gareen Manor Apartments
Somajiguda, Hyderabad. *** Appellant/
Complainant.
. And
The New India Assurance Company Ltd.
Khairatabad, Divisional Office
IV Floor, Kautilya
Amrutha Estates, Somajiguda
Hyderabad-500 082.
Rep. by its Divisional Manager. *** Respondent/
OP
Counsel for the Appellant: M/s. K. Visweswara Rao
Counsel for the Resp: Mr. K.M.V.Radha Krishna.
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SMT. M. SHREESHA, MEMBER
WEDNESDAY, THIS THE THIRTEENTH DAY OF OCTOBER TWO THOUSAND TEN
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
1) Appellant is unsuccessful complainant.
2) The case of the complainant in brief is that she along with her husband and son had taken hospitalization and domiciliary hospitalization benefit policy for Rs. 2 lakhs covering the period from 11.10.2003 to 10.10.2004. While so she was admitted at Kottakal Arya Vaidyasala, Kottakal for weakness, hypothyroids and irregular menstruation. She was treated and had incurred an amount of Rs. 68,036.80 towards medical expenses, hospitalization and treatment charges. When claim was made along with receipts, bills etc. the insurance company repudiated on the ground that it was pre-existing and was suffering from muscular dystrophy since 1996. In fact she never suffered from such a disease. Initially the policy was taken in the year 1999 and has been renewing from time to time and therefore it would not have taken the plea that she has been suffering from muscular dystrophy. Earlier the claims were honoured and the doctors must have mistakenly mentioned that she had been suffering from five years instead of three years. She was admitted for the first time in the hospital in the year 2001. Her admission was subsequent to the policy. Opinion of Dr. K. K. Mathur confirms that it was not pre-existing. In fact when she had taken policy subsequent to 10.10.2004 the insurance company had excluded muscular dystrophy related diseases. This is unfair. When her claim was not settled earlier she filed C.D. 723/2002 and the same was allowed observing that she was not suffering from pre-existing disease. Therefore she claimed reimbursement of Rs. 68,036/- with interest together with compensation of Rs. 20,000/- and costs.
3) The insurance company resisted the case. Earlier policy for the period from 11.10.1999 to 10.10.2000 when was lapsed it was revived and a fresh policy was taken after a lapse of 8 days commencing from 18.10.2000 and it was continuously being renewed. She was a habitual claimant. Earlier she claimed Rs. 40,370/- during the year 2002 for the treatment of twisted gangrenous right fimbrial cyst and the entire amount of Rs. 40,370/- was paid. Again she claimed Rs. 60,328.25 in May, 2003 for muscular dystrophy by staying as in-patient for 27 days in luxurious resort like ‘Arya Vaidyashala’ at Kottakkal in Kerala which provides naturopathy treatment in summer vacation period. It has settled the claim by paying Rs. 63,604/- though her complaint was pre-existing. Again she was spending lengthy holidays at Kottakkal in a Spa for the alleged treatment of muscular dystrophy. It provides air conditioned rooms, sprawling lawns and gardens etc. The claim for Rs. 68,036/- for such treatment is not covered. She has suppressed the previous medical history against coloumn No. 12. The allegation that the doctor had mistakenly issued the certificate cannot be true. The date of first consultation for the disease was mentioned in O.P. No. 2127 under the coloumn there under: How long has the patient been suffering from the disease as on the date of 1st consultation. It was mentioned as 2001. It was three years prior to first consultation viz., 1998 itself. Therefore there was a specific exclusion in regard to this disease in her policy in coloumn No. 4.13 under heading ‘Exclusions’. There was a mention that it would not reimburse the medical expenses incurred for naturopathy treatment. During her treatment in Global Hospital in 2002 she informed that she was having muscular dystrophy. When the claim was repudiated on the ground that muscular dystrophy excludes the coverage, it was challenged in an earlier case in C.C. No. 911/2005 which is pending before the Dist. Forum. The liability of reimbursement of amount would not arise. An independent investigation report of Sri K. Vithal Rao amply proves the same. In fact Kottakkal Arya Vaidyasala is having a branch at Secunderabad. She being a resident of Hyderabad she ought to have taken treatment at Secunderabad instead of going to Kerala in summer vacations. Therefore it prayed for dismissal of the complaint with costs.
4) The complainant in proof of her case filed her affidavit evidence and got Exs. A1 to A6 marked while the insurance company filed the affidavit evidence of its Divisional Manager and did not file any documents.
5) The Dist. Forum after considering the evidence placed on record opined that in doctor’s report Ex. A6 he categorically mentioned that he was suffering from muscular dystrophy, three years prior to first consultation in 2001 and at least it could be said that she was suffering since 1998. The first policy being taken in the year 1999, suppressing the said fact, would not enable her to claim the amount covered under the policy and therefore dismissed the complaint.
6) Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. Ex. A6 no doubt mentions muscular dystrophy however incorrectly mentioned the period from which she has been suffering. There is no evidence to show that she was suffering from such disease from 1998 prior to the policy. The fact that earlier in C.C. No. 732/2002 when her complaint was allowed, the insurance company paid the amount without preferring any appeal. Thus it shows that the respondent has been coming with false reference, and therefore she prayed that the amount claimed be granted to her.
7) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
8) It is an undisputed fact that she was admitted in Kottakal Arya Vaidyasala, Kottakal on 2.4.2004 and had taken treatment from 2.4.2004 to 2.5.2004 evidenced under Ex. A6. According to her since she was covered by medi-claim policy taken from 11.10.2003 to 10.10.2004 she was entitled to Rs. 68,036/- incurred by her for her treatment vide Ex. A2 bill. When she made the claim with the insurance company the complainant husband Sajjan Dabriwal by his letter dt. 16.9.2004 mentioned that:
“the certificate issued by Arya Vaidyan, K.V.R. Varier erroneously stated that the patient has been suffering from disease as on date of 1st consultation for the last five years, which is erroneous, instead of three years. The doctors’ erroneously mentioned as five years which can be evident from the same doctors earlier certificates dt. 24.4.2003 & 19.1.2002 based on which earlier claims were honoured.”
9) At the outset, we may state that the complainant having taken the plea that doctor has erroneously mentioned as five years instead of three years could have taken a certificate from the very same doctor in order to claim the amount. In the very complaint, the complainant alleged that when the earlier claim was not settled she filed C.D. No. 723/2002 and the same has been allowed, and therefore this claim must have been allowed. Though the insurance company contended that the policy excludes naturopathy treatment
as per clause-4.13 and that the policy was issued excluding the coverage of muscular dystrophy, and the complainant had been adept in claiming the said amount, neither the complainant could deny the said fact nor file the policy to state that the said disease was not excluded from the terms of the policy. Ex-facie when her own evidence shows that she has been suffering from muscular dystrophy for the last five years from first consultation on 20.4.2001 it must be held that she was not entitled to claim the amount. The complainant for the reasons best known did not file earlier record in C.D. 723/2002 in order to appreciate the contention that the said disease was not excluded, when the policy was taken. Evidently earlier amount was claimed for the treatment of twisted gangrenous right fimbrial cyst in Global hospital. It was not for muscular dystrophy. Since earlier amount was allowed it would not debar the insurance company from repudiating the claim when she sought the amount spent towards muscular dystrophy more so when the doctor has specifically stated that she has been suffering from said ailment even by the time of taking first policy. The allegation that the disease muscular dystrophy was excluded was not disputed by the complainant, we do not see any mis-appreciation of fact or law by the Dist. Forum in this regard. We do not see any merits in the appeal.
10) In the result the appeal is dismissed. However, no costs.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 13. 10. 2010.
*pnr
“CORRECTED – C. CHECK – C. TITLE”
