BEFORE THE VISAKHAPATNAM CIRCUIT BENCH OF A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION:AT HYDERABAD.
FA.No.1634/2006 against C.D.No.197/2005, District Forum-II, Visakhapatnam.
Between:
1. Dr.Gopalakrishna Sinha
S/o.Narayana Prasad, Hindu,
Aged 71 ears, residing at Udayakunj,
Dr.No.14-41,2A, Maharanipeta, Visakhapatnam.
2. Smt.Udaya Lakshmi Sinha,
W/o.Dr.Gopalakrishna Sinha
Hindu,
Aged 65 ears, residing at Udayakunj,
Dr.No.14-41,2A, Maharanipeta, Visakhapatnam .Appellants/ Complainants
And
M/s.New India Insurnace Company Limited,
Rep. by its Divisional Manager,
Dwarakanagar, Visakhapatnam. Respondent/
Opp.party.
Counsel for the Appellant: M/s.G.Ramagopal.
Counsel for the Respondent. Mr.Kota Subba Rao.
QUORUM:SMT.M.SHREESHA, HON’BLE MEMBER.
AND
SRI K.SATYANAND, HON’BLE MEMBER.
TUESDAY, THE EIGHTEENTH DAY OF AUGUST,
TWO THOUSAND NINE
ORAL ORDER: (Per Hon’ble Sri K.Satyanand, Member .)
***
The unsuccessful complainants filed this appeal assailing the order of the District Forum dismissing their complaint.
The facts of the case briefly stated are as follows:
The complainant No.2 is the wife of complainant No.1. Both of them purchased a Medi-claim insurance policy from the opposite party and it has been in force since the year 1995. The second complainant developed Arthritis of both knees during the year 2003 and consulted a doctor by name, Mr.T.V.Ramana Murthy, a Specialist in Orthopedics. He advised total replacement of the knee. Accordingly the first complainant admitted her in Hurkisondas Nurrotamdas Hospital and Research Centre, Mumbai for the said operation which was performed and in that process the complainants claimed to have incurred an expenditure of Rs.2,70,940/-. After the operation, the complainants filed a claim before the opposite party on 31-12-2003 for reimbursement of the medical expenses. Soon the opposite party repudiated the claim on the ground that the said ailment was a pre-existing disease. Aggrieved by the said repudiation, the complainants filed the consumer complaint before the District Forum.
The said complaint was opposed by the opposite party reiterating the ground that the complainant No.2 was suffering from an ailment associated with her knee joint even by the time of taking the policy and in as much as the treatment taken was a pre-existing disease which was suppressed, their claim was liable to be dismissed on the ground of suppression of pre-existing disease.
In support of their case, the complainants got filed the affidavit of one of the complainants as also the affidavit of a third party doctor, by name Dr.T.V.Ramana Murthy and they tendered documentary evidence marked as Exs.A1 to A8. Opposite party also filed an affidavit by way of evidence and marked Ex.B1, a letter by their own agents, Medicare Services, reiterating the repudiation of the claim on the self same grounds.
On a consideration of the evidence adduced by both sides, the District Forum came to the conclusion that the second complainant was already suffering from Arthritis by the date of commencement of the policy and as such the repudiation was justified. It read Ex.B1 as furnishing such an evidence and dismissed the complaint.
Aggrieved by the said order, the present appeal is filed by the complainants on the grounds inter alia that the insurance policy was repudiated without justification labouring under the wrong impression that the pain associated with knee joint was a disease at all and also by taking a wrong view that the said condition was suppressed by the complainants.
Heard both sides.
The points that arise for consideration are:
<!--[if !supportLists]-->1) <!--[endif]-->Whether the complainants could establish that the repudiation was not justified and thereby the opposite party, insurance company rendered itself guilty of deficiency in service?
<!--[if !supportLists]-->2) <!--[endif]-->Whether the complainants are entitled to any relief in this appeal?
<!--[if !supportLists]-->3) <!--[endif]-->Whether there are any good grounds to interfere with the order of the District Forum?
1. The jural relationship between the complainants on one hand and the insurance company on the other as the insured and the insurer/ ‘service provider’ is not at all in controversy. The complainants originally took the policy in question in the year 1995 and it came to be renewed from time to time and admittedly the operation in question for which the complainants incurred a heavy expenditure of nearly Rs.3 lakhs had occurred while the insurance policy was very much valid and in force. The only ground upon which the insurance company repudiated the claim was that the infirmity of the knee joint was very much in existence for the last 10 years and it was in vogue long before the insurance policy was obtained and in that view of the matter, the complainants were guilty of suppressing the material fact by which they rendered themselves disentitled to make any claim of the insurance amount. The argument of the opposite party proceeded on erroneous lines essentially in two aspects. In the first place, the pain in the knee joint cannot be characterized as any disease as rightly observed by Dr.Ramana Murthy, who categorically stated that fact in his evidentiary affidavit which ought to have been referred by the District Forum in the appendix of evidence as affidavit of P.W.2. The evidence of P.W.2 is very essential and it remained unrebutted and it furnishes best evidence of the fact that by no stretch of imagination, Arthritis by itself can be termed as a disease which can be concealed. The said Dr.Ramana Murthy averred that Arthritis was common among both sexes after the age of 55 years. The said Dr.T.V.Ramana Murthy, was no other than the doctor who had been examining and treating the second complainant since the year 2003. The District Forum failed to take into account the valuable evidence found in the affidavit of P.W.2. The insurance company on the other hand relied upon only one document, Ex.B1, which is obviously a self serving document, which came to be issued by their own panel engaged, it seems, to process medi-claims. They did not tender any independent evidence to fortify their allegation that she was suffering from the degenerating disease with knee pain for the last 10 years. It is pertinent to point out that even according to Ex.B1, it was a condition described as degenerative knee joint disease which is anything but a disease. Any degenerative state of an organ cannot be characterized as a disease and therefore banked upon to magnify as pre-existing disease. The repudiation made by the opposite party suffers from this vice. We are, therefore, firmly of the opinion that the District Forum was wrong in vindicating the unjust repudiation. This calls for interference of the order of the District Forum. In these circumstances, the order of the District Forum is liable to be set aside and consequently the complaint claim deserves to be upheld.
Accordingly the appeal is allowed setting aside the order of the District Forum and consequently allowing the complaint. In terms thereof, the opposite party, Insurance company, is directed to pay to the complainants an amount of Rs.2,70,940/- with interest at the rate of 9% p.a. from 31-12-2003 till the date of realization as also an amount of Rs.10,000/- by way of costs within six weeks from the date of receipt of this order. In as much as an award is passed in favour of the complainants giving interest also, we do not feel that it is reasonable to grant damages also. The interest component will take care of the element of compensation by way of damages.
MEMBER.
MEMBER
Dated 18-8-2009
