BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 357/2005 Filed on 26.10.2005

Dated : 15.07.2009

Complainant:

M. Divakaran Nair, “Sumeru”, T.C 29/890(2), CPRA-19, Palkulangara, Pettah P.O, Thiruvananthapuram.

(By adv. S. Reghukumar)

Opposite parties:

1. M/s T.T.K Health Care Services (Pvt) Ltd., Mareena Buildings, M.G. Road, Ravipuram, Ernakulam, Kochi.

    

2. The Divisional Manager, M/s National Insurance Co. Ltd., P.B. No. 434, St. Joseph's Press Buildings, Vazhuthacaud, Thiruvananthapuram – 14.

(By adv. U.S. Ganesh Kumar)

This O.P having been heard on 01.07.2009, the Forum on 15.07.2009 delivered the following:

ORDER

SMT. S.K.SREELA : MEMBER

The grievances of the complainant are the following: The complainant had taken a mediclaim policy from the 2^nd opposite party which was effective from 13.10.2003 to 12.10.2004 and the policy covered hospitalisation and domiciliary hospitalisation benefit during the policy period and the 1^st opposite party had issued a health card also. Unfortunately on 04.04.2004 the complainant was admitted to Amrita Institute of Medical Sciences and Technology, Ernakulam, consequent to severe chest pain and allied discomforts and the complainant had to undergo an angiogram test on 05.04.2004 wherein it was found that he has Triple Vessel Artery disease. The complainant was discharged on 06.04.2004 and was advised to undergo immediate surgery to save his life. As advised the surgery was done on 21.04.2004 and the complainant was discharged on 28.04.2004 with advice to continuous follow-up check ups. The opposite parties were informed of the sickness of the complainant vide letter dated 22.04.2004. As the complainant had the Medicare policy, the hospital bills, medical certificate, discharge summary, X-ray report, Angiogram report, medical bills and other connected clinical reports were submitted to the 1^st opposite party on 17.05.2004 along with the claim form for Rs. 95,764.13. Even though all the required documents were submitted before the 1^st opposite party the opposite party was bent upon finding one defect or other on many occasions. All the documents sought for by the 1^st opposite party were given and despite the furnishing of all the documents and details, the 1^st opposite party has chosen to decline the claim of the complainant. The 1^st opposite party had informed the complainant vide letter dated 13.09.2004 that the disease for which the complainant had undergone treatment was pre-existing and the non-disclosure of the same had prompted the opposite party to decline their liability under the policy. Complainant had never concealed any facts either before or after the taking of the policy. The story of TMT and the existence of the heart disease were cooked up by the 1^st opposite party to decline the genuine claim of the complainant. The said acts constitute deficiency in service and unfair trade practice on the part of the opposite parties. Hence this complaint for redressal of his grievances along with compensation and costs.

The 1^st opposite party remains exparte. The 2^nd opposite party has filed their version contending as follows: The complaint is not maintainable. The policy is admitted. For availing the insurance coverage vide medi-claim (individual) policy from this opposite party it mandates for the due performance of the contract that the person who availed the said policy should disclose all the pre-existing disease or any symptoms or complaints thereof at the time of making the proposal for insurance to the company. But in the present case in dispute the complainant at the time of making the proposal before the opposite party has not made mention of any disease or any symptoms or complaints even though the complainant has got sufficient knowledge regarding the pre-existing disease suffered by him as he had undergone treatments even prior to the availing of medi-claim policy from this opposite party. It is wrong to say that the complainant had submitted all the details of his treatment before the 1^st opposite party on 17.05.2004. The officials attached to the 1^st opposite party made enquiries with the hospital wherein the complainant had undergone treatment. The said enquiry revealed that the complainant had consulted with the doctors for Ostial Stenosis, a case of Tripple Vessel Coronary Artery Disease as early as 20.09.2003. As the complainant has suppressed the material facts regarding the pre-existence of illness at the time of proposal for availing the policy and its inception on 13.10.2003, he cannot compel this opposite party to indemnify or to fasten up with any liability to indemnify and therefore the complaint is to be dismissed. Exclusion clause 4.1 of the policy conditions attached to the policy certificate clearly states that the insurer shall not be liable to indemnify the insured, if the insured suppressed the fact that the disease for which he underwent treatment was pre-existing. Therefore this opposite party has been justified by truth by repudiating the claim. The complainant is not entitled to any of the reliefs claimed in the complaint.

Complainant, PW1, has filed affidavit and marked Exts. P1 to P9. PW1 has not been cross examined and hence his affidavit stands unchallenged. No evidence has been adduced on behalf of the opposite parties.

The issues that would arise for consideration are:-

1. Whether the act of the opposite party in repudiating the claim is justifiable?

2. Whether the complainant is entitled for any of the reliefs claimed?

    

Points (i) & (ii):- Admittedly, as per Ext. P1, the hospitalisation and domiciliary hospitalisation benefit policy of the complainant is for a period from 13.10.2003 to 12.10.2004. The complainant alleges that he was admitted in AIMS Ernakulam, on 09.04.2004 consequent to severe chest pain and allied discomforts and had undergone Angiogram test on 05.04.2004 where it was found that the complainant had Triple Vessel Artery. Complainant further submits that as advised by the Cardiologist of the AIMS, he was again admitted on 19.04.2004, the surgery was done on 21.04.2004 and he was discharged on 28.04.2004 with advice to continuous follow up check up. According to the complainant, he had submitted all the required documents to the 1^st opposite party along with the claim form for Rs. 95,764.13 ps., but the same has been repudiated by the 1^st opposite party stating that the disease for which the complainant had undergone treatment was pre-existing. The 2^nd opposite party in their version has contended that as per the said policy it is mandatory that the person who had availed the said policy should disclose all the pre-existing disease or symptoms, but the treatment details collected by the officials of the 1^st opposite party reveal that the complainant had suffered illness even prior to the date of availing the policy, i.e, 13.10.2003, and this has not been disclosed by the complainant at the time of proposal and accordingly the 2^nd opposite party permitted the 1^st opposite party to repudiate the claim on their request.

We have carefully gone through the records on file. Though the opposite parties contend that the disease of the complainant is a pre-existing one, there is nothing on record to support the same. The 2^nd opposite party contends that, in the medical certificate produced by the complainant, the column No. 7 & 8 which relates to the past history of the patient with the duration of illness and whether the present ailment is a complication of pre-existing disease seems corrected in such a way to tune the false claim. But the 2^nd opposite party has not produced the said document. When the insurance company alleges a contention with regard to pre-existing disease, the onus is on them to prove the same with corroborative evidence. But in the present case, no such records have been produced in support of the contentions in the version. The burden of proving that insured had made false representation and suppressed material facts was undoubtedly on the opposite parties. Having gone through the entire records and evidence, we find that the opposite parties have failed to discharge the burden of proving the defence story about the pre-existing disease of the insured at the time of taking out the insurance policy and knowingly suppressing the material information. No record of treatment prior to proposal form has been produced by the opposite parties. Since there is no proof, the contention of the 2^nd opposite party cannot be accepted. The suspicious approach of the opposite parties without proof cannot be justified.

For the foregoing discussions, we are of the view that, the act of the opposite parties in repudiating the claim of the complainant without any base is unjustifiable amounting to deficiency in service on their part for which the complainant has to be compensated.

The complainant claims for Rs. 95764.13 from the opposite parties. As per the records produced by the complainant, though there is no specific document for the same, the said amount has been mentioned and also made known to the opposite parties. In the above circumstance, since the opposite parties have failed to establish their contention in the version and since they have failed to disprove the case of the complainant, we allow the said amount along with 12% interest from 17.05.2004 till realisation along with a cost of Rs. 2000/-. Since interest has been awarded there is no separate order as to compensation.

In the result, the complaint is allowed and the opposite parties shall pay an amount of Rs. 95,764.13 with 12% interest from 17.05.2004 till realisation along with a cost of Rs. 2,000/-.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15^th day of July 2009.

S.K. SREELA : MEMBER

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

C.C. No. 357/2005

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Divakaran Nair. M

II COMPLAINANT'S DOCUMENTS :

P1 - Original policy dated 13.10.2003

(2 Nos) - Original policy schedule dated 13.10.2003

P2 - Copy of intimation letter dated 22.04.2004.

P3 - Copy of letter dated 17.05.2004.

P4 - Original letter dated 09.06.2004 sent by 1^st opposite party

P5 - Copy of reply letter dated 22.06.2004.

P6 - Original letter dated 15.07.2004 sent by 1^st opposite party

P7 - Copy of letter dated 30.07.2004.

P8 - Original letter dated 13.09.2004 sent by 1^st opposite party

P9 - Copy of Echocardiography report dated 19.09.2003.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT