A Rajesh, President.
Case of the complainant is as follows:
The complainant had taken a family mediclaim policy of the 1st opposite party for the period from 19-11-2007 to 16-11-2008. It was renewed for the period from 19-11-2008 to 18-11-2009. Again it was renewed for the period from 19-11-2009 to 18-11-2010. While so, the complainant underwent treatment for renal stone for the period from 16-11-2009 to 21-11-2009 at PVS Memorial Hospital. He had to spend Rs. 47,000/- for hospital expenses. Subsequently a claim was lodged with the first opposite party. But the claim was repudiated by the 2nd opposite party by their letter dated 07-01-2010 alleging that the current illness at renal calculus is excluded for 2 years from the scope of the policy. The reason given for repudiation is not at all sustainable. The period of treatment was 16-11-2009 to 21-11-2009. The 1st policy was incepted on 19-11-2007 and the treatment was completed during the pendency of 3rd year policy and the payment of the bill amount was made after 2 years. So the repudiation of the claim amounts to deficiency of service. The complainant is entitled for the claim amounts of Rs. 47,000/- along with interest at the rate of 12% p.a. from the date of claim till realization together with costs of the proceedings. Hence this complaint.
2. Version of the 1st opposite party
The complainant had initially proposed and contracted and mediclaim policy with the opposite party for the period from 19-11-2007 to 18-11-2008 for a sum insured of Rs. 50,000/- each for the complainant, his wife and two children. The said policy was renewed by the complainant up to 18-11-2010. On 16-12-2009 the opposite party received a claim from the complainant claiming Rs. 44,492/- towards treatment and surgery undergone by him for the period from 16-11-2009 to 21-11-2009 for renal calculus. As per clause 4.3 (X1X) of the policy any treatment or surgery for calculus disease is not payable for the first two years. He had undergone the surgery on 17-11-2009 it was within the 2nd year of the policy and was not payable. The parties are bound by the terms of the contract. There is no deficiency in service on the part of the opposite parties. The opposite parties request to dismiss the complaint.
3. No oral evidence was adduced by the parties. Exts. A1 to A3 and B1 were marked on the side of the complainant and the opposite parties respectively. Heard the counsel for the parties.
4. The points that arose for consideration are.
i. Whether the complainant is entitled to get insurance claim from the opposite party with interest?
ii. Costs of the proceedings
5. Point No. i. Admittedly the complainant had availed and informed mediclaim policy from the opposite party for the following period with sum insured of Rs. 50,000/- each for himself and his family i. 19-11-2007 to 18-11-2008
ii. 19-11-2008 to 18-11-2009
iii. 19-11-2009 to 18-11-2010.
6. Ext. A3 is the discharge summary issued from PVS memorial hospital, Kochi. As per Ext. A3 his disease was diagnosed as “right renal calculus. He had undergone inpatient treatment from 16-11-2009 to 21-11- 2009. The procedure adopted for the treatment is as follows:
“PROCEDURE:
Right PCNL done under GA on 17/11/09.
3 cm renal stone with secondary stones in the upper calyx.
PCNL right done. Removed all stones completely.
Nephrostomy tube placed.
Postoperative period was uneventful.
Foleys catheter and Nephrostomy tube removed
postoperatively.
Patient voided well after catheter removal.”
7. The opposite party vehemently relies on the following clause in Ext. B1 policy.:
“4.3 During the period of insurance cover, the expenses on treatment of following ailment/diseases/surgeries for specified periods are not payable if contracted and/or manifested during the currency of the policy.
XiX Calculus diseases - 2 years”
8. The surgery of the complainant was conducted on 17-11-2009. Literally it is within the 2nd policy for the period from 19-11-2008 to 18-11-2009 that means only one day left in the 2nd policy. The opposite party does not have a case that the disease of the complainant was pre existing or he has suppressed any material facts before them. Since the operation had to be conducted though at the very brim of the 2nd year policy we are of the firm and considered view that in spite of the vehement contention of the opposite party they cannot disagree with the spirit of the contract of insurance. In a question of exigencies extreme steps would have to be taken in time that is the case here.
9. The Hon’ble National Commission in Oriental Insurance Company Ltd. Vs. Rajiv Badani IV 2010 CPJ 263 (NC) held in paragraph 9 as follows:
“We have considered the contention made by both Counsel and have also gone through the evidence on record. There is no ambiquity in Clauses 4.2 and 4.3 as well as the saving clause which clearly indicates that though the exclusion clause pertains to the first 30 days from the date of commencement of the policy but this will not apply if a panel of medical practitioners constituted by the petitioner company opine that the insured person did not know about the existence of the disease at the time of applying for the insurance. Unfortunately, the learned counsel for the Petitioner could not explain why such a panel was not constituted. On the other hand, we agree that the Respondent has been able to provide credible evidence before the State Commission hat he had no history of heart ailment and the recent ECG and medical examination proves this fact”
10. In the light of the above higher wisdom we are at a loss how we can concur with the contentions of the opposite. For reasons above we are only to allow the complaint. The contention raised by the opposite party alone which has been explained against them can not be held against the complainant here the consumer.
10. Accordingly we allow the complaint and direct that the 1st opposite party shall pay insurance claim of the complainant as per the bills produced before them. No order as to compensation and costs.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order, failing which the above amount shall carry interest at the rate of 12% p.a. till realization.
Pronounced in the open Forum on this the 27th day of July 2011
