FA 421 of 2010 against C.C. 142/2009 Dist. Forum-II, Hyderabad     

Between:

1.  Ayyagari Sri Rama Murthy (Died)

2.  Smt. A. Naga Lakshmi

W/o. A. Sri Rama Murthy

R/o. 13-6-434/C/4,

Maruthinagar, Ring Road

Via Mehidipatnam

Hyderabad.                                                           ***                           Appellant/

Complainant.

                                                                    And

1.  The New India Assurance Company Ltd.

Rep. by its Sr. Divisional Manager

Kautilya, 4^th Floor, Amrutha Estates

Somajiguda, Hyderabad.                             ***                         Respondent/

                                                                                                O.P No. 1

2.  M/s. Good Health Plan Ltd.

Rep. by its Authorised Signatory

8-2-1/B/1, SVR Towers, 4^th floor

Srinagar Colony Road

Punjagutta, Hyderabad.                              ***                         Respondent/

                                                                                                O.P No. 2

Counsel for the                          M/s.  S. S. Bhatt

Counsel for the Respondent:                       M/s.  KNV Radha Krishna (R1)

CORAM:

HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.

    &

MONDAY, THE NINETEENTH DAY OF MARCH TWO THOUSAND TWELVE

ORAL ORDER:  (Per Hon’ble Sri Justice D. Appa Rao, President.)

***

1)                 Appellant is unsuccessful complainant.

2)                The case of the complainant    brief is that he had taken a medi-claim  insurance policy  through Op2 a third party administrator  in the year 1995 for a sum of  Rs. 2 lakhs  renewing for subsequent period.   While so, when she suffered from pain in the knees she was admitted in  Safe Health Knee Joint Centre  on 11.3.2008 and was discharged on 12.3.2008 with a diagnosis of  ‘Osteoarthritis  of knees (bilateral)’  where he incurred expenditure of  Rs. 1,38,320/-.  When the claim was   the insurance company repudiated  on the ground that it was not a chronic disease and the treatment taken by her  was not approved by  Indian Medical Council.   When he approached the Ombudsman he has awarded ex-gratia of Rs. 20,000/-.  Assailing the   he filed the complaint claiming Rs. 1,38,000/- together with interest, compensation and costs. 

3)                The insurance   resisted the case.   While admitting issuance of medi-claim   in the year  1995  and renewing for the subsequent period, however  alleged that it was subject to terms and conditions of the policy.   The Indian Medical Council did not approve the treatment taken by complainant’s wife Cytotron where no hospitalization is required.  It comes under naturopathy exclusion.   Since she suffered from ‘bilateral Osteo   (OA) of knees (Grade-III)  and was failed to respond for the medicines and drugs and she had suppressed  the same while renewing the policy.  It would not develop within a span of one or two years.  Dr.   Balaji Reddy  opined thinning of the articular cartilage bilaterally means that she has onset of pain  and that it was progressive in nature and that there was deformity of both knees.  It was not a sudden development.  It was pre-existing which was suppressed.  The insurance company was not liable to pay any amount, and prayed for dismissal of the complaint with costs.  

4)                Op2 did not choose to contest the matter. 

5)                 The complainant in proof of  case filed his  affidavit evidence and got Exs. A1 to A11 marked while the insurance company filed the affidavit evidence of   Senior Divisional Manager and that of  their panel doctor Dr. T. K. Shenoy and got  Exs.   and B2 marked.

6)                 The Dist. Forum after considering the evidence placed on record opined that  the disease   undoubtedly was pre-existing within her knowledge which she had  suppressed, and therefore she was not entitled to any more amounts that that was granted by the Ombudsman towards ex-gratia, and accordingly dismissed  the complaint. 

7)                 Aggrieved by the said order,  complainant preferred the appeal contending that the Dist. Forum did not appreciate the facts or law in correct perspective.  It ought to have seen that it does not come under clause of exclusions and therefore prayed that the complaint be allowed.

8)                During the pendency of the appeal complainant No. 1 died and his wife is impleaded as his L.R. 

9)                 The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

10)               It is an undisputed   that the complainant had taken  medi-claim insurance policy as long back as in 1995 for a sum of Rs. 1 lakh and later renewed it for a sum of Rs. 2 lakhs, and during the time when the policy was in existence she had taken treatment for  ‘Osteoarthritis  of knees (bilateral)’   on 11.3.2008 and was discharged on 12.3.2008,    and a sum of Rs. 1,38,320/- was expended for the said treatment  vide  Exs.    The insurance company resisted the case on the ground that the ailment would not develop immediately,  it is progressive in nature.  Apart from it,   therapy was not recommended by Indian Medical Council.  She had suppressed the said ailment, and therefore he was not entitled to any amount.  In support of its plea, it has filed the affidavit   Dr. T. K. Shenoy.  After going through the record he was of the opinion that this treatment was not approved by Indian Medical Council and comes   naturopathy which is excluded (Magnetic therapy). She must have aware that she was having pain in the knees and was already suffering and   could be termed as pre-existing ailment which she had suppressed.  Only in the year 2008 it was aggravated. 

In support of its contention it also   an article from Davidson’s  Principles and Practice of Medicine edited by  John Macleod  published by  ELBS.    It is not known the year of publication.      the learned author observed

Clinical features             The joints most frequently involved are those of the spine, hips and knees. In the majority of patients the disease is confined to one or only a few joints. The symptoms are gradual in onset. Pain is at first intermittent and aching. It is provoked by use of the joint and relieved by rest. As the disease progresses, movement in the affected joint becomes increasingly limited, initially as a result of pain and muscular spasm, but later because of capsular fibrosis, osteophyte formation and remodelling of bone.  There may be repeated effusions into joints especially after minor twists or injuries. Crepitus may be felt or even heard. Associated muscle wasting is an important factor in the progress of the disease, as in the absence of normal muscular control the joint becomes more prone to injury. Pain arises from trabecular micro-fractures, traumatic lesions in the capsule and peri-articular tissues, and a low grade synovitis  Nocturnal aching may be attributable to hyperaemia  of the subchondral bone.

          Nodal osteoarthrosis is a clinically district form of primary generalised OA which occurs predominantly in middle-aged women. Characteristically it affects the terminal IP joints of the fingers with the development of gelatinous cysts or bony outgrowths on the dorsal aspect of these joints (Heberden’s nodes). The onset is sometimes acute with considerable pain, swelling and inflammation. Although these lesions may be associated with a good deal of deformity they seldom cause disability.  Similar lesions may affect the proximal IP joints and the disorder also frequently involves the carpometacarpal joints of the thumbs, the spinal apophyseal joints, the hips and knees. A strong family history of Heberden’s nodes is usual in such cases and though the existence of multi-generation families with the disorder appears to suggest a single autosomal dominant gene, careful family studies reveal polygenic inheritance in both nodal and non-nodal primary generalized osteo-arthrosis.  Patients with nodal primary generalised osteoarthrosis are probably also more susceptible to secondary OA, again emphasising the multifactorial aetiology of this disorder.

Investigation:                The blood count and ESR are characteristically normal in osteoarthrosis. Synovial fluid is viscous and has a low cell count. Apatite crystals can be detected on rare occasions. Radiographs show loss of joint space and formation of marginal osteophytes. Subchondral bone sclerosis, bony remodelling and cyst formation are seen in more advanced cases.

Treatment:           Although the pathological changes of osteoarthrosis are irreversible much can be done to alleviate symptoms particularly in the early stages. Periods of rest and avoidance of undue trauma and physical stress to affected joints are essential. This may involve such measures as the fitting of rubber heels to reduce jarring and minimise the risk of slipping, the provision of built-up shoes to equalise leg lengths, weight loss in obese patients with OA of the knee or hip and the provision of a suitable walking stick.   Occasionally patients may have to be advised to change their occupation, transfer to lighter work or give up unduly strenuous hobbies.

NSAID can be used to relieve pain and stiffness but are often disappointingly ineffective in osteo-arthrosis.

          Occasional intra-articular or peri-articular corticosteroid injections can be very helpful especially in the knee. Hydrotherapy may be useful for patients with OA of the hip associated with pain and muscle spasm. Hip or knee arthroplasty may be necessary in advanced cases.  Arthrodesis is occasionally considered if the knee is the only joint involved. 

           This in fact supports the case of the complainant.  In the light of above, it cannot be said that the   would aware that there was steady rise in degenerative change in joints from the age of 30.  She was 56 years at the time when the policy was renewed.   It could not   said that she had suffered pain when policy was taken and as such it  could not be stated  that it was pre-existing.  It may be stated herein that the doctor who gave the affidavit could not file any   of  Indian Medical Council  wherein Cytotron  treatment was not approved.   He contends that it comes under magnetic therapy for which he could not place any reliance or material.   It is not as though magnetic does not mean magnetic therapy.     also based on ‘Magnetic Resonance Imaging’.    We may also state that there  lot of research going,  and   technological developments are  being made in the medical field,  and one cannot by relying a practice of medicine,  prevailing in a particular period, to hold good for the subsequent development in medicine.    In fact the treatment suggested by the learned   is that of  Osteoarthritis. Therefore it cannot be said   this treatment was excluded  nor was un-approved by Medical Council.    Simply because the insurance company nor the doctor who gave the opinion, we can conclude that it is an unapproved form of treatment. 

11)               The learned counsel for the insurance company relied a decision of Punjab State Commission in New India Assurance Company Ltd.    That was a case of total knee replacement.  In those circumstances it was observed that it would be a long drawn process and that the complainant must have had knowledge about pre-existing knee disease at the time when the policy was taken.    Coming to the   the complainant had taken the policy as long back as in the year 1995 and has been renewing it and during the year 2008 she had taken treatment and it could not be said that she was aware of the ailment and had suppressed the same which she took policy in 1995 or  which it was renewed later.       

12)              The complainant has filed Ex.  in regard to details of Cytotron Therapy.  This was not controverted by the respondent insurance company nor could file any literature to state that it was not approved form of treatment.   it cannot be said  neither such treatment comes under exclusion nor treatment was un-approved.   There was no proof that she was aware of the disease and had suppressed the same at the time when the policy has been renewed.   When an advance care or treatment is introduced and procedure is invasive  and  when parties resort to such treatment,  necessarily the insurance company  had to compensate whatever the amount spent by her during the course of treatment covered under the policy.    Therefore, we are of the opinion that the complainant had neither suppressed the ailment nor the treatment taken by her was not approved by the Indian Medical Council.  The complainant is entitled to the amount claimed under the policy.  The repudiation was unjust.   We do not agree with the opinion expressed by the Dist. Forum in this regard.

13)               In the result the appeal is allowed setting aside the order of the Dist. Forum.  Consequently the complaint is allowed directing the insurance company to pay Rs. 1,38,000/- with interest @ 9% p.a., from the date of complaint  viz., from 30.1.2009 till the date of realization together with costs of Rs. 5,000/-.     

1)      _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER           

                                                                                       19/03/2012

*pnr

UP LOAD – O.K.