BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 22nd May 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.496/2014
(Admitted on 16.12.2014)
Sri. Rajesh Bhat,
S/o Late Mandara Madav Bhat,
R/at 2.62/6 Perinje Post,
Hosandgadi Village,
Belthadgadi Taluk.
….. COMPLAINANT
(Advocate for the Complainant: Sri. BKSY)
VERSUS
M/s Universal Sompo General Insurance Co.ltd,
Having its branch office at City Trade Centre,
Opp. City Hospital Mangalore 575003.
…......OPPOSITE PARTY
(Advocate for the Opposite Party: Smt. HM)
ORDER DELIVERED BY HON’BLE MEMBER
SRI T.C. RAJASHEKAR:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act 1986 alleging deficiency in service against the Opposite Party claiming, to reimburse the entire bill amount of Rs.3,154/, to pay interest on the bill amount of Rs.315/ to pay Rs.1,000/ towards causing mental agony, to pay Rs.1,500/ towards cost of the complaint, to pay Rs.1,000/ towards travelling to the forum from Moodabidri and to advocate office and any other reliefs.
2. In support of the above complaint the complainant Sri. Rajesh Bhat, filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C12 as detailed in the annexure here below. On behalf of the opposite party Mr. Ashwani Gaba, (RW1) Service, Universal Sompo GIC Ltd, also filed affidavit evidence answered the interrogatories served on him.
The brief facts of the case are as under:
We have perused the complaint and the version of the parties. This dispute is with regard to repudiation of the mediclaim insurance policy on the ground of pre existing disease (PED). The complainant alleges that he had obtained an insurance policy to cover his medical expenses from the opposite party and submission of claim after hospitalization and undergoing treatment, the opposite party has refused the claim on the ground of PED and non disclosure of it. The opposite party contended that, the complainant was suffering from Hyper tension (HTN) since 10 years and the same has not been disclosed at the time of taking the policy and thereby committed breach of the policy condition. The opposite party also raised the contention of non-joiner of necessary party. These are being the facts of dispute we are of the view to decide the following
POINTS FOR ADJUDICATION
On close examination of the evidence adduced and the documents produced the admitted facts are, the issue of the policy, the admission to hospital for treatment and the amount spent for treatment. It is also admitted that the complainant had lodged the claim and its repudiation on the ground of PED not disclosed. It is denied that the complainant had the HTN since 10 years and the non-disclosure of it. The opposite party denies the repudiation as illegal and there is deficiency in service on their part. Admissions and denials reconciled and the following points are taken for consideration in resolving this dispute.
- Whether the complainant is the consumer under the consumer protection Act 1986?
- Whether the opposite party proves that the repudiation is legal and there is no deficiency in service from their part?
- Whether the complainant is entitled for the relief prayed for?
- What order?
We have taken into consideration the evidence led by the parties and the documents produced. Notes filed by the complainant traversed through and we heard the party counsels. We answered the above points as under:
- In the affirmative.
- In the negative.
- In the affirmative.
- As per delivered order.
REASON
POINT NO.1: The EX-C 8 is the insurance policy issued by the opposite party to the complainant which established the complainant is the consumer and hired the service of the opposite party. Hence we hold the complainant is the consumer and answered the point no 1 in the affirmative.
POINT NO 2: The pivot point of dispute is the mediclaim insurance policy claim is rejected by the opposite party on the ground of non disclosure of PED. The complainant has established the validity of the insurance policy and the admission to the hospital for treatment and the filing of claim which is not disputed. The opposite party claims the repudiation is legal and there is breach of policy condition hence they are not liable either of deficiency in service or to pay the expenses of the treatment. Hence in our opinion the burden of opposite party is to prove their case hence the point No 2 taken for consideration.
2. The sole evidence of the opposite party with regard to PED is the EX R 1given by One Dr Mahaveer Jain MBBS, MS, consultant ENT surgeon. He has issued a certificate certifying that the Rajesh the complainant herein aged 45 years is having Hypertension (HTN) since 10 years and DM (diabetes mellitus) since 3 months. Based on this document the opposite party repudiated the claim of the complainant. It is understood from the records that the opposite party has settled the two previous claims of the complainant. The question is, while allowing the previous claims was there no breach of policy condition? Will it not amount to connivance?
3. Apart from this, the document EX R 1 issued by a doctor of the hospital where the complainant has taken treatment in the period of the present claim that is of admission on 15.02.2014 to 16.02.2014. It is not seen from the file record that the complainant is taking treatment in the same hospital since 10 years under the consultancy of the same Doctor. If it is, the opposite party could have produced the lab reports of pre existing disease from the same hospital or from the same doctor from whom they got the certificate. There is no any other analysis report about the HTN suffered by the complainant since 10 years. It is also in blank on which base the author of the certificate said the HTN since 10 years. The complainant produced the discharge summery as EX C 4. Under the History head it is mentioned as k/c/o (Known case of) HTN, DM but not reveals since 10 years or since how many years. Hence the document EX R1 cannot be relied upon to say the complainant was suffering from HTN since then till the date of the policy taken.
4. We have closely observed the contents of the condition of the policy EX R 2 produced by the opposite party. In page 6 it is defined Pre Existing Disease it states, means any condition…treatments within 48 months to prior to the first policy issued by the insurer. So in our opinion it is within 48 months to prior to the first policy but not more than 48 months. As per EX C 7 the first policy was issued from date 18.10.2009 and as per EX R 1 dated 08.04.2014 the 10 years backs to 2004 which is not within 48 months prior to policy and there is no other documents to show that in the year 2005 and later the insured had HTN. It is understood that there are cases that the HTN is cured in about 15 to 20 % of the cases. It is not the case that, once become HTN patient always be an HTN patient. Unless the opposite party proves with cogent evidence to prove the complainant was suffering from HTN since 10 years and till the date of the first policy we cannot hold the non-disclosure of PED.
5. Another point we like to show that the opposite party not produced the proposal form or any other documents to prove the non disclosure by the complainant. It is the burden of the opposite party to prove the non-disclosure as well as Pre Existing Disease which has not been done.
6. It is also pertinent to note that the doctor who has certified is not examined to elicit what is the base for his certification and it is not advanced as the doctor is the family doctor and knew the complainant since more than 10 years. The certificate produced as EX R 1 is the Xerox copy and the original is not produced even though the opposite party stated from the bar that, he will produce.
7. The complainant argued that because the claim is for the third time the opposite party is finding a reason to repudiate. To a suggestion by the complainant in his interrogatories to the opposite party in question No 15
Q: I say that you are repudiating the claim of the complainant as it is a third one which is answered in the affirmative. Our concern is once the policy is issued can the claim be restricted to number of times the claim made? Of course on the concept of the contents should be read in whole we have taken the admission in low profile. With these observations we hold the opposite party not proved their case by showing the repudiation is legal and there is no deficiency in service from their part. Hence we answered the point no 2 in the negative.
8. With regard to non-joiner of necessary party we cannot buy the argument as the contract is between the complainant and the opposite party but not with the TPA as contended by the opposite party.
POINT NO 3: The evidence produced by the opposite party to show that there was a non-disclosure of Pre Existing Disease is not accepted by us and no documents produced to prove the non disclosure by the complainant we hold the opposite party liable for deficiency in service, we are of the opinion that the complainant is entitled for a sum of Rs.3,154/ with an interest at 10% per annum from the date of repudiation till the date of payment. The complainant prayed for an amount of Rs. 1,000/ towards mental agony and Rs. 1,000/ towards travelling expenses and Rs.1,500/ towards cost of the complaint. There is negligence on the part of the opposite party in appreciating the claim, we award as prayed for an amount of Rs.2,000/ towards travelling expenses and mental agony and Rs.1,500 as cost. Complainant also prayed for such other relief which forum thinks fit. We are of the opinion that the complainant had prayed for the litigation expenses as Rs.1,500/ and mental agony of Rs. 1,000/ in the year 2014 i.e. three years back. Considering the negligence on the part of the opposite party and considering the increase in cost of fees and cost of living we deem fit to allow an amount of Rs.5,000/ as additional cost towards mental agony and the cost of litigation. Hence we answered the point no 3 in the affirmative.
POINT NO 4: In the light of the above discussions and the adjudication of above points we deliver the following
ORDER
The complaint is allowed. The opposite party shall pay an amount of Rs.3,154/ (Rupees Three thousand one hundred fifty four only) with an interest of 10 % per annum from the date of repudiation till the date of payment and an amount of Rs.8,500/ (Rupees Eight thousand five hundred only) towards mental agony and cost of complainant including additional cost within 30 days from the date of copy of the order received.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 9 directly typed by Member, revised and pronounced in the open court on this the 22nd May 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore. Additional Bench, Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 : Sri. Rajesh Bhat
Documents marked on behalf of the Complainant:
Ex.C1: Doctors certificate (2 in Nos)
Ex.C2: Bills (7 in Nos)
Ex.C3: Lab Reports (6 in No)
Ex.C4: 16.02.2014: Discharge summary.
Ex.C5: 26.03.2014: Letter by Opposite Party.
Ex.C6: 04.03.2014: Letter by Opposite Party.
Ex.C7: 18.04.2014: Letter by T.P.A
Ex.C8: Insurance policy.
Ex.C9: 24.02.2014: Claim form
Ex.C10: 06.05.2014: letter by T.P.A
Ex.C11: 04.06.2014: Advocates notice.
Ex.C12: Acknowledgment.
Witnesses examined on behalf of the Opposite Party:
RW1: Mr. Ashwani Gaba, Service, Universal Sompo GIC Ltd,
Documents marked on behalf of the Opposite Party:
Ex.R1: Letter issued by Doctors of Alvas health centre.
Ex.R2: Policy conditions
Dated: 22.5.2017 MEMBER
