Tamil Nadu

South Chennai

cc/122/2006

K.R. Sankaran - Complainant(s)

Versus

M/s. Royal Sundaram Alliance - Opp.Party(s)

M/s. V. Balaji

25 Jan 2017

ORDER

                                                                        Date of Filing :   01.03.2006

                                                                        Date of Order :   25.01.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M.                       : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

            DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II          

C.C.NO.122/2006

WEDNESDAY THIS  25^th DAY OF JANUARY 2017

 

K.R. Sankaran,

Old No.11, New No.21,

Fifth Cross Street,

Lake Area, Nungambakkam,

Cheenai 600 031.                                         .. Complainant.

 

                           ..Vs..

 

M/s.  Royel Sundaram Alliance,

Insurance Company Limited,

Corporate Claims Department,

Rep. by its Managing Director,

“Sundaram Towers”,

45 & 46 Whites Road,

Chennai 600 014.                                       ..Opposite party.

 

Counsel for the Complainant           : M/s. V. Balaji & another   

Counsel for the opposite party        : M/s.M.B.Gopalan & others.  

 

ORDER

THIRU. S. PANDIAN, PRESIDENT

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act 1986 seeking direction to pay a sum of Rs.1,64,250/- towards expense for medical treatment with interest and also to pay a sum of Rs.10,000/- as damages to the complainant.

1. The averment of the complaint are brief as follows:

         The complainant has taken Travel Shield Policy valid from 20.5.2004 to 17.8.2005 with the opposite party and the same was renewed from 18.8.2004 to 15.11.2004 and it was in force.  In July 2004, the complainant for the first time, experienced pain in the right thigh during normal course of activities in Califomia, United States of America, where he was staying with his daughter.   Though the complainant got clearance from the opposite party he waited for a month to verify if the pain was temporary or not.   Thereafter as the pain did not subside, in September 2004, the complainant took medical treatment for the pain at Camino Medical Group No.323, North Mathilda Avenue, Sunnwale CA 94085, United States of America.  

2.     The opposite party ultimately negatives the complainant’s claim on the ground that the insurance would not cover a pre existing illness.   It is  relevant to point out that the very purpose of taking the insurance  was only to cover any unforeseen accident or illness and the reason given for rejecting the just claim of the complainant defeats the very purpose for which the policy was taken by the complainant.  Secondly before embarking upon the treatment, the complainant had taken the approval from the opposite party duly indicating the nature of illness and it is not proper for the company to decline reimbursement at a later point of time.  Thirdly, there had been no suppression on the part of the complainant and he had truly and faithfully revealed the entire facts to the opposite party both at the inception and after taking treatment.  Fourthly, the clause in the terms of insurance pertaining to pre existing condition if interpreted as done by the company will result in just claims like that of the complainant being negative.   Any illness will definitely take time to manifest itself and for the said reason, it cannot be said that there was a pre existing condition and hence the claim is not sustainable.   The interpretation now given to deny liability, if accepted, in effect gives the company the unfettered right to deny almost all claims made in relation to illness, simply on the ground that there was a pre existing condition and the same is therefore not only inequitable but amounts to unfair trade practice.   

3.     The complainant was therefore constrained to issue a notice through his lawyer to the opposite party on 7.11.2005, to which a reply was issued by the opposite party, declining satisfaction of the claim and hence the present complaint. 

4. Written Version of  opposite party is  in brief as follows:

           The averments in the complaint are hereby denied except those that are specifically admitted hereunder. The complaint is not maintainable in law or on facts and  is an abuse of the provision of the Consumer Protection Act.  The complainant  made a claim for treatment of pain in the right thigh.   While the treatment was in August 2004, it is stated to have been suffered since July 2004.   The severity of the ailment and the condition clearly revealed that the same could not have developed during the short stay abroad and had its onset much earlier.   Though the complainant may contend that he was unaware of the presence of such an ailment, the spread revealed by the report clearly established presence for substantial period much prior to the travel abroad in May 2004, 3 months before treatment. 

5.     The exclusion in the policy does not depend upon any voluntary affirmation of knowledge by the insured.  Even it is contended that the insured was not aware of disease, when it is otherwise found to have clearly set in much prior to the insurance; the claim is respect of the same is not admissible.

6.     In such circumstances,  the opposite party had considered the claim and repudiated the same after due verification.   The hospital records do not reveal any emergent condition requiring immediate treatment.   The decision of the opposite party is thereafter taken after due consideration of facts in accordance with terms and conditions of the policy.  There is no negligence or deficiency in service.   The complaint is liable to be dismissed.  The complainant is not entitled to any interest or compensation.  There is no cause of action for this complaint and the complaint is liable to be dismissed.

7.    In order to prove the averments of the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A19 marked.  Proof affidavit of opposite party filed and Ex.B1 to Ex.B4 marked on the side of the opposite party.

8     At this juncture, the point for the consideration before this

        Forum is:  

 

1.  Whether there is any deficiency of service on the part of the 

     Opposite party as alleged in the complaint?

 

2. Whether the complainant is entitled to any relief as prayed for?

 

9. POINT No.1:-

              As per the case of the complainant is that the complainant has taken Travel Shield Policy valid from 20.5.2004 to 17.8.2005 with the opposite party and the same was renewed from 18.8.2004 to 15.11.2004.  When the above said policy was enforced, the  complainant undergone treatment at USA after getting prior  permission from the opposite party and thereafter the claim was repudiated by the opposite party and therefore the complainant is constrained to file this complaint.

10.        On the other hand, the opposite party contended the allegations made by the complainant by stating that as per the terms and conditions of the policy there is a specific loss subject to the exclusion of pre-existing condition.  Therefore, the opposite party has rightly repudiated the claim for the reason that the complainant took treatment for the pre-existing disease and hence there is no negligence or deficiency in service on the part of the opposite party.

11.        At this juncture, on careful perusal of the evidence of the complainant it is learnt that the complainant was taken medical claim policy from the opposite party initially for the period from 20.5.2004 to 17.8.2005 and subsequently the same was renewed from 18.8.2004 to 15.11.2004 it is not disputed one.  The said policy is marked as Ex.B1.  It is further seen that the complainant travelled to the USA to visit his daughter on 20.5.2004 and the complainant experienced pain in the right thigh as first time and it was diagnosed  as “Pagets disease” and therefore after getting prior permission, the complainant has taken treatment at USA.  The Ex.A1 is the email communication for the receipt of medical claim procedure, the medical claim procedure is marked as Ex.A2 and the email containing extract of Ex.A1 is marked as Ex.A3.  It is further stated that after  completion of treatment at USA the complainant received the email dated 10.11.2004 from K.Devangana, Medical Assistance Department of opposite party along with the medical claim form is marked as Ex.A4 and the covering letter of the complainant before departure from USA, enclosing the documents readily available including the accident and Sickness claim form sent through Fax for claim of Rs.1,64,250/- are marked as Ex.A5 & Ex.A6.  Ex.A7 and Ex.A8 is the letters of the opposite party and acknowledging the receipt of the documents sympathizing with the development at USA and asking for original bills, doctor’s diagnostic report and receipts for the payments made.    Ex.A9 is the medical report, medicine bills and medical bills submitted by the complainant.  It is further learnt from the complainant, the acknowledgement letter asking for the detailed discharge summary and reminder of opposite party are marked as Ex.A11 & Ex.A12 and Ex.A13 is the letter, the complainant explaining the reason for delay and thereafter on 18.3.2005 the complainant submitted Ex.A14 the Doctor’s report and on receipt of the above document the opposite party has repudiated the claim since the claim as this was pre-existing condition is marked as Ex.A15.  Again the complainant sent Ex.A16 letter to reconsider the case and in turn Ex.A17 letter sent by the opposite party to disallowing the insurance claim and returning all the documents and therefore the complainant was constrained to send legal notice Ex.A18 and the receipt of the notice the opposite party sent the reply notice which is marked as Ex.A19.    It is further learnt from the complainant that there is no document filed to prove that the complainant was suffering disease prior to 18.5.2004 on the side of the opposite party and therefore the repudiation is bad in law, since it is settled law that the burden is on the insurer to prove the factum of pre-existing disease.   

12.        While being so, on the side of the opposite party, it is explained through his evidence that  the “Pre-existing condition means by such disease / injury, which have been in existence all the time of proposing insurance and also it means any disease or its symptoms, which existed prior to the effective date of this insurance,  whether or not the insured person had knowledge that the symptoms were relating to the sickness.   It is further stated that as per the medical records and report of the doctor regarding the ailment which are marked as Ex.B2  to Ex.B4 and the imaging report of whole body bone scan revealed that there was a substantial onset of paget’s disease.   Tough the complainant may contend that he was unaware of the presence of such an ailment, the spread revealed by the report clearly established the presence for substantial period much prior to the travel abroad in May 2004 i.e. three months before treatment.     Therefore, the opposite party has rightly repudiated the claim as per the terms and conditions of Ex.B1 policy.  Furthermore, the hospital record do not reveal any emergent condition requiring immediate treatment and hence there is no negligence or deficiency in service. 

13.        At this juncture on careful perusal of the rival submissions put forth on either side, it is admitted case that the complainant took policy is Ex.B1 with the opposite party for the period mentioned in the complaint and the same was subsequently renewed for the further period.   It is further when the complainant travelled to USA and undergone treatment as alleged in the compliant is also not disputed.  In this respect, the relevant medical report were called for from the complainant by the opposite party then and there.  Furthermore, it is not disputed that the complainant got prior permission for taking treatment at USA and informed the opposite party has prescribed in the terms and conditions of Ex.B1 policy and received the claim form from the Medical Assistance Department of opposite party.  At this point of time the only contention raised by the opposite party  is the reason for the repudiation of the claim is that the complainant was suffering pre existing disease prior to the taking of the policy and therefore the complainant is not entitled for the claim amount.

14.        At the outset, on going through the evidence adduced by both sides the initial burden of proof of the complainant has been fulfilled by the complainant through Ex.A1 to Ex.A19 and proved the existence of the policy and the treatment taken for the alleged disease at USA.  In such circumstances, when the opposite party taken plea that the complainant was suffering pre-existing disease before taking of the medical claim policy and the same has been revealed through Ex.B2 to Ex.B4.  Hence, burden of proof naturally, shifted to the shoulder of the opposite party.  If it is so as rightly pointed out by the learned counsel for the complainant that the opposite party ought to have produced relevant document to show that the complainant was suffered the alleged pre existing disease as alleged by the opposite party.  But in fact, no material documents filed in this regard on the side of the opposite party.   Not only that, the opposite party has not taken any steps to produce any  expert opinion of Doctor regarding the pre existing disease suffered by the complainant prior to taking of the policy.  

15.        In such circumstances, the decision relied upon by the learned counsel for the complainant is squarely applicable to the facts and circumstances of the case in hand. 

III  (2013) CPJ 113

PUNJAB STATE CONSUMER DISPUES REDRESSAL COMMISSION, CHANDIGARH

NEW INDIA ASSURANCE CO. LTD.

..            Vs..

TRIBHUVAN PARKASH GUPTA

 

It is held that

 

         Ex. R-9 is the repudiation letter issued by the opposite party to the complainant.  While repudiating the claim the reliance has been placed on the opinion of the experts.  In the case in hand no affidavit of any expert has been  produced on the file.   When the affidavits of the experts in whose opinion the reliance is placed are not produced on the record then no reliance can be placed on such reports.

 

16.         In the light of the above observation made in the decision and other facts and circumstances it is crystal clear that there is  no relevant evidence which would file with the complainant had any pre existing disease before taking of the policy or he was suffered alleged disease has pointed out by the opposite party.  Therefore, the repudiation of the claim cannot be sustainable.   Therefore, the act of the opposite party clearly amounts for deficiency of service which certainly caused mental agony and hardship as alleged in the complaint.   Thus the point No.1 is answered accordingly.

17. POINT No.2 :-

As per the decision arrived in point No.1, the opposite party  is directed to pay a sum of Rs.1,64,250/- towards expense for the treatment with reasonable interest and also to pay reasonable compensation for causing mental agony due to the deficiency in service with cost. Thus the point No.2 is also answered accordingly.

           In the result, the complaint is allowed in part.   Accordingly the opposite party is directed to pay a sum of Rs.1,64,250/- (Rupees one lakh sixty four thousand two hundred and fifty only) towards expenses for treatment with interest at the rate of 6% p.a. from the date of complaint i.e. 1.3.2006 to till the date of this order i.e. 25.1.2017  and also to pay a sum of Rs.5,000/- (Rupees Five thousand only) towards compensation for causing mental agony and hardship due to deficiency of service on the part of the opposite party  and to pay a sum of Rs.5000/- (Rupees Five Thousand only) towards cost to the complainant. 

          The above amounts shall be payable within six weeks from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9% p.a till the date of payment.        

        Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  25^th  day  of  January 2017.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

 

Complainant’s side documents:   

Ex.A1-  29.7.2004 -  Copy of email from complainant to Medical representative

                               Of opposite party acknowledging the receipt of medical

                               claim procedure.

 

Ex.A2-         Copy of Medical claim procedure.

Ex.A3- 30.9.2004  - Copy of email containing extract of email dated 29^th July

                               2004 from complainant to representative of opposite party.

 

Ex.A4- 10.11.2004  Copy of email dated from K.Devangana, Medical Assistance

                               Department of opposite party enclosing the medical claim

                               Form (in FDF format).

Ex.A5- 11.11.2004         -  Copy of covering letter of the complainant enclosing the

                               Documents readily available including the accident and

                               Sickness claim form sent through Fax.

Ex.A6-           Copy of accident and sickness claim form, clearly

                               Mentioning the case number given by opposite party.

 

Ex.A7- 8.12.2004  - Copy of letter of opposite party acknowledging the receipt

                              Of document sympathizing with the development at USA

                              And asking for original bills, doctors diagnostic report and

                              Receipts for the payments made.

 

Ex.A8- 11.1.2005  - Copy of letter requesting details.

 

Ex.A9- 24.1.2005  - Copy of medical report, medicine bills and medical bills.

 

Ex.A10- 4.2.2005   - Copy of acknowledgment letter asking for detailed

                               discharge summary to rule out the possibility of

                               pre-existing condition.

 

Ex.A11- 15.2.2005         - Copy of reminder of opposite party.

Ex.A12- 3.3.2005  - Copy of reminder for details.

Ex.A13- 14.3.2005  Copy of letter explaining the reason for delay.

Ex.A14- 18.3.2005  - Copy of doctor’s report bringing out in detail the

                                Diagnosis and the measures taken, received through

                                Fax dated 18^th March 2005 which was sent to

                                opposite party.

Ex.A15- 19.4.2005 -  Copy of letter of opposite party turning down the claim

                                As this was pre-existing condition and cannot be as per

                                Policy’s stipulation.

Ex.A16- 23.4.2005         -   Copy of letter to reconsider the case.

Ex.A17- 9.5.2005  -   Copy of letter to disallowing the insurance claim and

                                Returning all the documents.

Ex.A18- 7.11.2005         -   Copy of notice with postal acknowledgment.

Ex.A19- 16.11.2005-  Copy of reply.

Opposite party’s side document: -   

 

Ex.B1-          Copy of insurance policy.

Ex.B2-          Copy of medical report.

Ex.B3-          Copy of medical report.

Ex.B4-          Copy of medical report.

 

MEMBER-I                        MEMBER-II                              PRESIDENT.