BEFORE THE DISTRICT FORUM: KURNOOL

Present: Sri K.V.H.Prasad, B.A., LL.B., President

Smt.C.Preethi, Hon’ble Lady Member

Sri R.Ramachandra Reddy, B.Com., LL.B., Member

Thursday the 10^th day of August, 2006

C.C.No.33/2006

M.C. Nagappa,  S/o Eswarappa,  Aged about 50 years,

R/o H.No. 43/258/8-16B, N.R. Peta, Kurnool.                  

. . . Complainant                                          -Vs-  

1) M/s United India Insurance Company Limited,    Rep. by its Divisional Manager,

    Divisional Office No. 4, United India Insurance Co., Ltd.,1^st Floor Pasanta Bhavan, Tilak Road, Hyderabad.

2) The Divisional Officer,

    United India Insurance Company Limited, Near State Bank Circle, Kurnool.

3) Andhra Bank,

    Rep. by Branch Manager, Ashok Nagar Branch, Kurnool.                          

             .. . Opposite parties

This complaint coming on this day for Orders in the presence of                       Sri K. Lokeswara Reddy, Advocate, Kurnool for Complainant, Sri B.V. Ramana Reddy, Advocate, Kurnool for Opposite Party No.1 and 2 and opposite party No.3 called absent set ex-party, and stood over for consideration till this day, the Forum made the following.

O R D E R

(As per Smt.C.Preethi, Hon’ble Lady Member)

1. This Consumer Complaint of the Complainant is filed U/s 12 of C.P. Act, 1986, seeking a direction on the Opposite Party No.1 and 2 to pay Rs 1,80,000/-, towards medical reimbursement expenses with 18% interest, Rs 30,000/- towards compensation, Rs 20,000/- towards costs and any such other relief or reliefs which the complainant is entitled in the circumstances of the case.
2. The brief facts of the Complainant’s case is that the Complainant has take an Ab- Arogyadaan Group Mediclaim Insurance Policy covering the complainant, his wife and his two sons and the renewed policy commenced from 09-06-2005 to 08-06-2006.  As per the terms and conditions of the policy if the insured and his family members incurred any Hospitalization expenses the Opposite Party No.1 has to reimburse.  On 30-07-2005 the Complainant was admitted to Care Hospital, Hyderabad with complaint of CAD, Triple vessel disease. Accordingly the Complainant was operated for by pass surgery and discharged on 12-08-2005, the Complainant incurred expenditure of Rs 1,80,000/-.  Thereafter, the Complainant submitted claim for reimbursement along with relevant documents.  To the dismay of the Complainant the Opposite Party No.1 through their communication dt 04-10-2005 repudiated the claim of the Complainant on the ground that the present hospitalization is for management of an ailments which is related to a pre-exiting condition.  The Complainant further submitted that the said repudiation of claim is without basis and it is made only to evade payment of claim amount.  Thus the act of Opposite Party No.1 in repudiating the valid claim of the Complainant is amounting to deficiency of service.
3.    In substantiation of his case the Complainant filed the following document Viz (1) Repudiation letter dated 04-10-2005 addressed by Opposite Party to the Complainant, besides to the sworn affidavit of the Complainant in reiteration of his complaint averments and the above document is marked on Ex.A1 for its appreciation in this case. The Complainant caused interrogations to Opposite Party and suitably replied to the interrogatories caused by Opposite Party.
4.  In pursuance to the notice of this forum as to this case of the Complainant the Opposite Party No. 1 and 3 remained absent though out the case proceedings and were made exparte.  The Opposite Party  No.2 appeared though their standing counsel and contested the case by filling written version denying the Complainant’s case as not maintainable either in law or on facts and any deficiency of service at its end and thereby any of its liability for the claim of the Complainant.

1. The written version of Opposite Party No.2 even though admits the Complainant taking a Ab- Arogyadaan Group Insurance Policy and admitted to Care Hospital for Surgery and incurred an amount of Rs 1,80,000/- but denies that the Complainant is entitled to reimbursement of above incurred expenditure.  It further submits that the above policy was entrusted to the Family Health Plan Limited, Hyderabad which is third party administrator for settlement and the third party repudiated the claim of the Complainant for the reasons, that the present hospitalization is for the management of an ailment which is related to a pre-existing condition, Cl 4(2) of the policy condition reads as pre-existing diseases are not payable under the policy.  As the claim was rejected by Family Health Plan Limited, Hyderabad under Cl 4(2), the Opposite Party No 1 and 2 are not liable to pay any amount to the Complainant’s and seeks for the dismissal of complaint with costs.
2. In support of its case the Opposite Party relied on the following documents viz (1) Panel Report issued by Family Health Plan Limited dt 29-04-2006 and (2) Certificate of Insurance issued to the Complainant M.C. Nagappa, besides to the sworn affidavit of the Opposite Party in reiteration of his written version averment and the above documents are marked as Ex.B1 and B2 for its appreciation in this case.  The Opposite Party caused interrogatories to the Complainant and suitably replied to the interrogatories caused by the Complainant.
3. Hence, the point for consideration is to what relief the Complainant is remaining entitled alleging deficiency of service and deficient conduct on part of Opposite Party ?:
4. It is not in dispute that the Complainant by name M.C. Nagappa has obtained an Ab- Arogyadaan Group Mediclaim Insurance Policy and under went by pass Surgery at Care Hospital.  When the Complainant put forth the claim for the incurred expenditure under the policy, it was repudiated on the ground of pre-existing disease.
5. The main contention of the Opposite Party is that the Complainant’s present Hospitalization is for management of an ailment which is related to pre-existing disease and relied C l 4(2) of terms and conditions of the policy which says that pre-existing diseases are not payable under the said policy.  The learned counsel for Opposite Party relied upon the Ex.B1 panel report issued by Family Health Plan Limited.  From the Ex.B1 one thing is clear and may significantly be noticed that the panel report is based on record and is not based on personal knowledge nor the Complainant was examined and no record original or an attested copy there of, what so ever has been placed on the record before the Forum, to substantiate their contentions, hence the said Ex.B1 does not hold good in the instant case.
6. There is no dispute that the Complainant has undergone by pass surgery and was hospitalized and that at the relevant time the insurance policy was in force, but the crucial question that requires consideration is whether the repudiation by Opposite Party  under Cl 4(2) basing on Ex.B1 is justified or not.

11.      From the contends of Ex.B1 relied upon by the Opposite Party does not inspire any confidence about the contents which can be acted upon.  No doubt it has been mentioned by the Dr Syed Mazhar. Medical Officer (FHPL) in the panel report in Ex.B1 that the said panel report is prepared based on the documents submitted by the complainants along with claim, hence it is clear that he (Medical officer, Family Health Plan Limited) has not examined the Complainant.  Further more the panel report of Dr. Syed Mazhar, Medical Officer is not supported by his affidavit or by any document, what so ever, on the record, which could substantiate that the Complainant’s hospitalization was related to pre-existing disease.  No documents or any direct evidence showing that the Complainant’s hospitalization was related to pre-existing have been put on the record by the Opposite Party.  In the absence of any document or evidence produced on record, primary or secondary regarding pre-existing disease, it cannot be said that the Opposite Parties has proved on record that the Complainant’s hospitalization was for pre-existing disease.  Therefore the Opposite Party  have failed to prove the case by placing any original documents or by placing on record the certified copies of its original which has not been done.  Hence, the panel report in Ex B.1 cannot be looked into nor it can inspire any confidence.

12.      There is no dispute between the parties that no affidavit of the doctor who is alleged to have treated the complainant in Care Hospital is filed, the doctor has neither been examined nor his affidavit has been brought on record.  Unless expert evidence of the doctor, who has treated the complainant is produced, such evidence cannot be relied upon and form the basis of a finding that Hospitalization of the complainant is related to pre-existing disease.  Merely filing panel report of a Medical Officer doesn’t mean that the contents there of are necessarily true, no document is produced by the opposite party about the pre-existing disease of the complainant, mere assertion or oral testimony in respect of disease exiting prior to the policy inception neither inspires any confidence nor can be acted upon and relied upon. Onus is on the opposite party to substantiate their plea that the complainant disease is a pre existing disease.

13.      The complainant in support of his case relied on the following citations

(1) National Insurance Co Ltd Vs Bipua Kundu reported in II (2005) CPJ Pg 12 (NC), wherein it was held that when the policy holder was suffering from rheumatic heart disease prior to taking of policy, the burden to prove suppression is on the insurer the statement fraudulently made by the policy holder with knowledge of falsity when it is not proved, the repudiation of claim by the opposite party is unjustified and the company is liable under the policy.  (2) Life Insurance Corporation of India Vs Badri Nageswaramma and ors reported in II 2005 CPJ Pg 9 (NC), it was held that policy holder was an old TB Patient having diabetes and the disease was not known on the date of proposal, the burden is on the Insurance Company is prove false representation and Suppression of facts.  The Insurance Company also relied on the doctor’s certificate which is not supported by any affidavit, hence there is no basis for repudiating the claim and there is no conclusive evidence produced by Insurance to suggest that suppression is on the part of the deceased, hence the Insurance Company is liable under the policy.

14.      Having regard to over all consideration and following the above mentioned citations.  There is no hesitation to hold that the opposite parties miserably failed to substantiate that the complainant’s disease was a pre existing disease and knowingly suppressed these facts from opposite party.  Therefore, in these circumstances the repudiation of claim by opposite party is wholly arbitrary, un-reasonable and unjust and amounts to deficiency of service.

15.      The next question that requires condition is as to what claim the complainant is entitled to under the policy.  In is not the case of the opposite party that complainant has not under gone by pass Surgery.  It is common knowledge that in case of By Pass Surgery in Heart Institute like Care Hospital one has incur lot of expenditure.  The expenditure alleged to have been incurred by the complainant can neither by considered excessive nor unreasonable.

16.      In the light of the discussion made above and following the decisions, having regard to such circumstances, it is just and proper that the complainant must have incurred an expenditure of Rs. 1,80,000/- and the complainant is entitled to such amount under the said policy.

1. In the result, the complainant is allowed, directing the opposite parties to pay an amount of Rs. 1,80,000/- to the complainant under the Mediclaim policy with    12% interest from the date of filling of this complaint i.e 28.3.06 till realization along with Rs.5,000/- as costs within a month of receipt of this order.

Dictated to the stenographer, transcribed by her corrected and pronounced by us in the Open Forum this the 10^th day of August, 2006.

PRESIDENT

           MEMBER                                                                       MEMBER

APPENDIX OF EVIDENCE

Witnesses Examined

For the complainant: Nil                                        For the opposite parties: Nil

List of Exhibits marked for the complainant:-

Ex A.1 Repudiation letter dated 04-10-2005 addressed by Opposite Party to the Complainant.

List of Exhibits marked for the opposite parties:- Nil

Ex B. 1 Panel Report issued by Family Health Plan Limited dt 29-04-2006.

Ex B.2 Certificate of Insurance issued to the Complainant M.C. Nagappa.

PRESIDENT

MEMBER                                                                                  MEMBER

Copy to:-

1. Sri  K. Lokeswara Reddy, Advocate, Kurnool.
2. Sri B.V. Ramana Reddy, Advocate, Kurnool.

     3.  Andhra Bank, Rep. by Branch Manager, Ashok Nagar Branch, Kurnool

Copy was made ready on:

Copy was dispatched on:

Copy was delivered to parties: