<br /> <br /> DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MALAPPURAM<br /> <br /> (Present: Smt. C.S. Sulekha Beevi, President,<br /> Smt. E. Ayishakutty, Member,<br /> Sri. Mohammed Mustafa Koothradan, Member)<br /> <br /> Date of filing: 30-9-2003<br /> <br /> Date of Order: 17-11-2008 <br /> <br /> O.P..No.243/03<br /> <br /> Mrs. N. Prema, W/o Kuttan, Aged 37 years, ) Pattayil House, Kadalundi Nagaram, ) <br /> Malappuram District. ) Complainant <br /> )<br /> (By Adv. K.V.P. Muraleedharan, Malappuram) )<br /> <br /> Vs<br /> <br /> The New India Assurance Co. Ltd., ) Public Sector Branch, Kottarathil Buildings, ) Palayam, Thiruvananthapuram. ) Opposite party ) <br /> (By Adv. Prakash Ramanathan, Manjeri) )<br /> <br /> ORDER <br /> <br /> By Smt. C.S. Sulekha Beevi, President,<br /> <br /> 1. Brief Facts:-<br /> The husband of the complainant who is a non-resident Indian availed insurance policy with opposite party under the 'Pravasi Suraksha and Kudumba Arogya' Scheme. The validity of the policy was for five years from 23-11-2000 to 22-11-2005. The complainant, her husband and their three children were enrolled in the Scheme. All the family members were hale and healthy at the time of availing the policy. On 01-6-2002, Rinju the daughter of complainant was admitted in Amrita Institute of Medical Science and Research Centre, Cochin and she underwent a surgery on 03-6-2002 for pericardial patch closure. A sum of Rs.1,54,020.46 was incurred as expenses for treatment and medicine. The claim submitted before opposite party was repudiated stating that the disease for which treatment was undertaken by Rinju was 'Foss Ovalis ASD' which is a congenital defect and is excluded as per clause VII (1) of the conditions of the policy. Complainant alleges that the repudiation is made on unsustainable grounds and amounts to deficiency in service. Hence this complaint.<br /> <br /> 2. Opposite party filed version admitting the issuance of policy to the husband of the complainant. That a claim was preferred on 24-6-2002 stating that Rinju, 8 years was detected having heart disease on 10-01-2002 and that she was operated on 03-6-2002 for a condition known as 'Fossa Ovalis ASD'. That on receiving the claim petition opposite party sought opinion of Dr.N.P. Padmaja a cardiologist, who gave opinion that it is a congenital defect of the heart. That congenital defect being pre-existing disease is specifically excluded vide clause VII (1) of the relevant policy. The claim was thus repudiated on legal grounds and there is no deficiency in service. That as per the bills submitted the expenses detailed by insured is Rs.72,564.21. That complainant is not entitled to any reliefs.<br /> <br /> 3. Evidence consists of the affidavit filed by complainant and Exts.A1 and A2 marked for complainant. Opposite party has filed counter affidavit and Exts.B1 to B6 marked for opposite party. Either side has not adduced any oral evidence.<br /> <br /> 4. Points for consideration:-<br /> (i) Whether opposite party is deficient in service.<br /> (ii) If so, reliefs and costs.<br /> <br /> 5. Point (i):-<br /> The limited question that arises for consideration is whether the repudiation of the claim by opposite party on the ground that the disease is a congenital and pre-existing disease is justifiable or not.<br /> <br /> 6. According to complainant the child, Rinju had no problem or illness prior to obtaining the policy. That there was no occasion for the child to undergo any treatment. Complainant contends that the child had undergone pericardial patch closure surgery and it is not a congenital defect. It is also submitted that the policy was taken in the year 2000 and the child was detected having heart disease on 10-01-2002.<br /> <br /> 7. As against this opposite parties contend that it is evidenced by the medical records produced before them that the child had pre-existing congenital defect viz., “Fossa Ovalis ASD”. It is the case of opposite party that being a congenital defect it was existing even before obtaining the policy and therefore comes well within the exclusion of clause VII (1) of the policy.<br /> <br /> 8. Clause VII (1) of the policy reads as under:<br /> VII Exclusions:<br /> “The company shall not be liable to make payment under this Scheme in respect of expenses whatsoever, incurred by or for any insured person in connection with or in respect of :-<br /> (1) Such diseases which have been in existence at the time of proposing this insurance. Pre-existing condition means any injury which existed prior to the effective date of this insurance. Pre-existing condition also means any sickness or its symptoms which existed prior to the effective date of this insurance whether or not the insured person has knowledge that the symptoms were relating to the sickness. Complication arising from pre- existing disease will be considered part of that pre-existing condition.<br /> <br /> 9. Opposite party relies upon Ext.B2 which is a letter issued to opposite party by Dr.N.P. Padmaja, Cardiologist, Kerala Institute of Medical Sciences (KIMS), Thiruvananthapuram. It is stated in Ext.B2 that 'Fossa Ovalis ASD' is a congenital defect in the interatrial septum of heart and that being a congenital defect it must have been present since birth. Relying upon this opinion opposite party has repudiated the claim. The above opinion is given by Dr.N.P. Padmaja by perusing medical records only. She has not seen or treated the patient. This doctor was neither examined as a witness nor was any affidavit filed by the doctor. Opposite party has not tendered any evidence that insured was aware of the disease at the time of taking the policy. No treatment records or history of treatment before taking the policy is placed by opposite party. Even by the facts on record, there is no material to show that the child had any symptoms like, chest pain etc., prior to 01-11-2000 (date of proposal form).<br /> <br /> 10. At this juncture, we think it is necessary to examine the mode of enrollment in the Scheme and issuance of policy. The Scheme was floated by Government of Kerala through the Department of NORKA for the benefit of non-resident Keralites with intention to indemnify them and their family members from medical expenses and also in cases death. As per the arrangements with NORKA opposite party is the insurer. Any person who is a non-resident Indian can enroll in the Scheme by filling the proposal form and remitting the necessary premium. Opposite party avers that the proposal form submitted by husband of complainant is false and incorrect in so far as the insured has stated that his family members had no existing diseases. We are unable to accept this contention in toto. If the complainant has no knowledge of any disease definitely he cannot state it in the proposal form.<br /> <br /> 11. In clause VII (1) of the policy it is stated that it is not material whether the insured has knowledge of the pre-existing disease or not. If this interpretation is applied in verbatim, Insurance company would not be liable to pay upon any claim, because every person may be suffering from a number of symptoms without knowing that it pertains to a particular disease. In this regard, counsel for complainant placed reliance on the decision rendered by Apex commission in National Insurance Company Vs. Raj Narian 2008 CTJ 347 (CP) NCDRC decided on 15-01-2008. The commission in that case relied upon it's observations in an earlier decision 2007 CTJ 131 (CP) Praveen Damini Vs. Oriental Insurance Co. which is noteworthy. <br /> “Most of the people are totally unaware of the symptoms of the disease that they suffer and hence they cannot be made liable to suffer because the insurance company relies on their clause 4.1 of the policy in a malafide manner to repudiate the claims. No claim is payable under the medi-claim policy as every human being is born to die and disease are perhaps pre-existing in the system totally unknown to him which he is genuinely unaware of them.” <br /> Ratio of the above cases is to a great extend applicable to this case before us.<br /> <br /> 12. From the foregoing reasons we are able to conclude that the repudiation of policy by opposite party is unjustifiable. We hold that the act of opposite party amounts to deficiency in service. This point found in favour of complainant.<br /> <br /> 13. Point (ii):-<br /> Complainant claims Rs.1,54,020.46 as expenses incurred for treatment with interest @ 18%. He prays for compensation of Rs.1,00,000/-. According to opposite party as per the bills produced by complainant the expenses incurred for treatment is only Rs.72,564.21. Ext.B4, Ext.B5 and Ext.B6 series are the details of bills which shows that the expenses incurred is Rs.72,564.21. Complainant is definitely entitled to this amount as benefits under the policy. We consider that complainant has to be compensated for the deficiency also. In our view interest @ 9% per annum upon the above amount would meet the ends of justice being sufficient compensation to the complainant.<br /> <br /> 14. In the result, we allow the complaint and order opposite party to pay to the complainant a sum of Rs.72,564.21 (Rupees Seventy two thousand, five hundred and sixty four and paise twenty one only) along with interest @ 9% per annum from the date of complaint till payment along with cost of Rs.1,500/- (Rupees one thousand and five hundred only) within one month from the date of this order.<br /> <br /> Dated this 17th day of November, 2008.<br /> <br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> Sd/-<br /> MOHAMMED MUSTAFA KOOTHRADAN, Sd/-<br /> MEMBER E. AYISHAKUTTY, MEMBER<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> APPENDIX<br /> <br /> <br /> Witness examined on the side of the complainant : Nil <br /> Documents marked on the side of the complainant : Ext.A1and A2<br /> Ext.A1 : Photo copy of the Certificate of Insurance Certificate No.2000/47/760505/<br /> 85428(760602) for the period from 23-11-2000 to 22-11-2005 issued by <br /> opposite party in the name of complainant's husband.<br /> Ext.A2 : Repudiation letter dated, 30-9-2002 from opposite party to complainant.<br /> Witness examined on the side of the opposite parties : Nil<br /> Documents marked on the side of the opposite parties : Ext.B1 to B6<br /> Ext.B1 : Photo true copy of the Certificate of Insurance No.2000/47/760505/<br /> 85428(760602) for the period from 23-11-2000 to 22-11-2005 issued by <br /> opposite party in the name of complainant's husband.<br /> Ext.B2 : Photo copy of the letter dated 15-9-2002 from Dr.N.P.Prema, Cardiologist<br /> to opposite party.<br /> Ext.B3 : Photo copy of the Repudiation letter dated, 30-9-2002 from opposite party <br /> to complainant.<br /> Ext.B4 : Photo copy of the In patient detailed bill for Rs.72,024.21 dated, 09-6-2002 <br /> from Amrita Institute of Medical Sciences and Research Centre, Kochi in the <br /> name of Rinju, complainant's daughter.<br /> Ext.B5 : Photo copy of the Out patient detailed bill for Rs.500/- dated, 26-4-2002 <br /> from Amrita Institute of Medical Sciences and Research Centre, Kochi in the <br /> name of Rinju, complainant's daughter.<br /> Ext.B6 : Photo copy of the Out patient detailed bill for Rs.40/- dated, 26-4-2002 <br /> from Amrita Institute of Medical Sciences and Research Centre, Kochi in the <br /> name of Rinju, complainant's daughter.<br /> <br /> <br /> <br /> Sd/-<br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> Sd/-<br /> MOHAMMED MUSTAFA KOOTHRADAN, Sd/-<br /> MEMBER E. AYISHAKUTTY, MEMBER<br />