PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 22nd day of September 2012
Filed on :08/06/2012
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No. 337/2010
Between
Benny M. Varghese, : Complainant
S/o. Varghese, (By Adv. John Joseph,
MKV Buildings, M.G. Road, Lawrence D’Cunha (L-188)
Ernakulam, Kochi-682 035. High Court of Kerala, Market
Road north ends, Ernakulam
Kochi-682 018)
And
The National Insurance Co. Ltd., : Opposite party
Rep. by its Senior Divisional Manager, (By Adv. Rajan P. Kaliyath)
Aluva Divisional Office,
Pump Junction, Aluva-683 010.
O R D E R
Paul Gomez, Member.
The complaint stems out of the following facts.
The complainant is a medi claim policy holder with opposite party insurance company from 27-04-1999. It was renewed annually and the facts of the complaint occurred during the currency of the policy from 26-04-2000 to 25-04-2001. Initially he had a short treatment in Sree Sudheendra Medical Mission Hospital. The expenses of the treatment were indemnified by the opposite party. Again he was treated in the same hospital for a short stint and was referred to Amrita Medical Science and Research where he had undergone Angiogram and heart surgery. Claim application seeking indemnity of the expenses to the tune of Rs. 91,427.53 was disallowed. The said repudiation was challenged in this Forum and his prayer was allowed with the direction to the opposite party to reconsider his claim. Appeal was preferred by the opposite party in the Hon’ble State Commission. Fortunately for the complainant, the appeal was not allowed and the company was asked to consider his claim. But the opposite party did not decide in favour of complaint on the ground that some of the documents especially Ext. A6 discharge summary was a fabricated one. The said decision is impugned and contends that the dismissal of his claim amounts to deficiency of service.
2. In the version filed by the opposite party, the facts pertaining to the complaint are not disputed. The claim that the repudiation is well founded since there was suppression of material facts in as much as the true physical condition of the complainant were not disclosed to the opposite party. Whereas the complainant had been suffering from hypertension and Diabetes Mellitus, those material facts were with held from opposite party without divulging those facts truly in the proposal form when the insurance policy was renewed. It is also alleged that Ext. A6 discharge summary was fabricated. Whereas the longevity of those diseases were stated as two years and five years initially, it was corrected to 2 months and five months the respectively with the exterior motive to defraud the opposite party and mislead the opposite party to allow his claim. Hence the Forum is urged to dismiss the complaint.
3. Complainant was examined as PW1. Exts. A1 to A12 were marked on his side. Witness for opposite party was examined as DW1. Exts. B1 to B10 were marked for them. Learned counsel appearing on both sides were heard.
4. The following points deserve for consideration.
i. Whether there was suppression of materials facts in this
case?
ii. Whether Ext. A6 discharge summary is fabricated?
iii. Whether opposite party is justified in repudiation of claim?
iv. What are the reliefs that can be granted, if any?
5. The legal validity of Ext. A12 repudiation letter dated
27-10-2009 is in the line of fire in these proceedings. The said repudiation was a sequel to Ext. A11 judgment of Hon’ble State Consumer Disputes Redressal Commission dated 25-04-2009 confirming Ext. A10 order of this Forum directing the opposite party to reconsider the order of repudiation. In short, Ext. A12 repudiation order is only a reiteration of its earlier Ext. A5 repudiation letter addressed to the complainant.
We need not deal with the details of the policy and treatment and expenses incurred because they are not points at issue in this complaint. We think, it is enough that we confine ourselves within the legal bounds of the repudiation of the claim. The grounds for repudiation are stated in Ext. A5 letter as “non-disclosure of material fact regarding these ailments in the completed proposal form”. These ailments indicated are diabetes Mellitus and Hyper tension. In short, according to opposite party, complainant was suffering from these diseases even when Ext. A1 proposal form was submitted. Opposite parties are banking on the noting made by the doctor in Ext. B4. In the said document it is stated that he was ailing from Diabetes and Hypertension since 1.5 years and 4 years respectively as on 05-09-2000. It may be noted that the said period have been corrected to 4 months and 1.5 months and it is inscribed in the margin, “According to the family Physician”. If we follow the averments of the complainant that these diseases surfaced since 4 months and 1.5 months only, the imputation of pre-existing disease and its suppression would diffuse into thin air. On the other hand, if we go by the stand that these superscription were after thought and the document was corrected, the repudiation would have to be upheld. Hence the whole controversy boils down to fabrication of documents viz Exts. B4 and B6 discharge summary, where the history of Diabetes and Hypertension are stated to be of 5 years and 2 years respectively. It is pertinent to note that these figures do not correspond with those uncorrected period recorded in Ext. B4, presumably reference letter issued from Sree Sudheendra Medical Mission Hospital, Ernakulam. The carelessness shown in preparing Ext. A2 discharge summary is borne out by discrepancy in entry even as to age. At the top, whereas the patient is stated to be of 58 years old, when one comes down towards the bottom, he is younger by 8 years. Where such an error has crept in as to as certain a fact age, one can naturally expect that author of the document might go wrong on other minor aspects such as his diabetic status etc. When opposite party smelt a rat in the materials produced in support of the claim submitted by complainant, they forwarded Ext. A3 letter requesting Dr. Haridas, the cardiologist to let them know as to the duration of the diseases specified in Ext. A2 discharge summary. In the Ext. A4 reply letter the doctor has stated, ”Mr. Benny has been a diabetic for the last 2 years and Hypertensive for 5 years”. Incidentally it is interesting to note the recording on Ext. A2 discharge summary where it was stated, “50 year old Mr. Benny is known hypertensive for 2 years”. These contradictions could have been avoided if people were more careful. It may also be noted that in Ext. B4, the document prepared nearly one month earlier the periods were shown as 11/2 years and 4 years. This confusing situation was salvaged with the intervention of Dr. Isaac Abraham, the family doctor of the complainant who addressed a communication to the Amrita, hospital to set the records, right stating that the complainant had been suffering from the ailments since a few months only. Accordingly Ext. A6 fresh discharge summary was prepared where it is stated that “Mr. Benny 58 years old male is a known diabetic for 2 months and known hypertensive for 5 months He presented with history of recent onset angina “. Ext. A8 communication was forwarded to opposite party incorporating the corrections as per Ext. A6, discharge summary. But the subsequent events would reveal that the opposite parties were not prepared to accept the corrected version of the Discharge summary. On the other hand, they preferred to stick on to their earlier stand of repudiation on the ground of suppression of material facts by not disclosing the following diseases viz.
(i) Diabetic Mellitus
(ii) Hypertension
(iii) Coronary artery disease.
6. It is interesting to note that neither in Ext. B4 nor in ext. A2 was there any mention of past history of heart disease. Still opposite parties have raised the allegation that history of heart disease was suppressed. This shows the want of proper application of mind by the concerned authority on the issue at hand. Also it is a noticeable fact that when a lesser amount was claimed, opposite parties have readily allowed it.
7. As we have found earlier, the imputation being concoction of documents by the complainant with the connivance of the hospital authority as rightly pointed out by the Hon’ble State Commission, the authors of those documents ought to have been examined in the court. On the other hand one Dr. Isaac Abraham, who has been treating the patient since 2000 was examined as DW1. He has deposed that he has issued Ext. B5 on request by the complainant after examining his previous medical records. We do not think this deposition in any way would advance the case of the opposite parties. On the other hand, it explains why he wrote the letter to make the necessary alterations in the discharge summary. It is settled law that when an allegation is raised regarding the credibility of the document, the onus is on the party who makes the allegation to establish it. It is note worthy in this context that, despite these allegations, the District Consumer Forum did not find favour with those documents and they were dismissed as untenable. The same stand has been endorsed at the appellate stage by the Hon’ble State Commission.
8. In the light of the discussions and deliberations we have made, hitherto, we do not find any merit in the act of repudiation of the insurance claim preferred by the complainant with regard to his heart surgery conducted in Amrita Hospital, Cochin.
As a consequence, the question that remains to be answered is as to the kind of relief that can be granted. In this regard it is to be borne in mind that, this is the second round of litigation pertaining to the same set of facts. The events leading to the complaint occurred way back at the thresh hold of this century and now we have well past the first decade. The complainant is still to get a real relief worth the name. This is so despite the fact that he had been running from one end to the other seeking relief. It is noteworthy that in the earlier complaint this Forum as well as the Hon’ble State Commission had rightlyy turned down the pleadings of the opposite parties and asked them to reconsider the claim. Despite the tone and tenor of those orders, the opposite parties were adamant in dismissing the claim, not once but twice. This uncovers the insensitivity of the authorities concerned to the genuine claims raised by the insured at the moments of distress. This was done even in the face of judgments handed down by the Hon’ble Supreme Court exhorting the administrative authorities to refrain from the unhealthy practice of dragging the insured from one court to another on technical grounds simply for denying legitimate claims of the people. We are constrained to make this statement because the circumstances leading to repudiation of the claim for the second time warrants such comments when the credibility of public sector insurance companies are allowed to be eroded by such business practices, slowly but steadily people would lose faith and confidence in these institutions, which in turn would be beneficial to the private sector.
9. Coming back to the reliefs advisable in the present set of facts, we think it would be a cruel joke to ask the complainant once again to approach the insurer for reconsideration of his claim. It is just and fair, in the circumstances of this case, to grant relief directly rather than in a round about manner. Therefore we allow the relief sought in the complaint in substantial measures. In this context, it may be borne in mind by all concerned that in the celebrated judgment of the Supreme Court in Lucknow Development Authority case the Consumer courts have been directed to award compensation against the public authorities personally for the acts of negligence, omissions and commissions, oppression, insults humiliations and malafides Even though, we think it is a border line case for award of such compensation against officers at fault, we refrain from doing so for the sake of judicial propriety.
10. To sum up the complaint is allowed as follows:
i. Opposite party shall pay an amount of Rs. 91,427.53 along
with interest @ 9% p.a. from the date of repudiation of the
insurance claim till realization.
ii. Opposite party shall pay an amount of Rs. 5,000/- towards
costs of proceedings.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the 22nd day of September 2012
Sd/-
Paul Gomez, Member.
Sd/-
A Rajesh, President.
Sd/-
C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s Exhibits :
Ext. A1 : Copy of mediclaim policy
A2 : Copy of discharge summary
A3 : Copy of letter dt. 04-01-2001
A4 : Copy of letter dt. 06-03-2001
A5 : Copy of letter dt. 30-03-2001
A6 : Copy of discharge summary
dt. 06-10-2000
A7 : Copy of letter dt. 02-05-2001
A8 : Copy of letter dt. 10-05-2001
A9 : Copy of letter dt. 26-06-2001
A10 : Copy of order of CDRF,
Ernakulam
A11 : Copy of order of CDRC, Tvm.
A12 : Copy of letter dt. 27/10/2009
Opposite party’s Exhibits :
Ext. B1 : Application form
B2 : Test report
B3 : Copy of letter dt. 03-05-2001
B4 : History, physical examination etc.
B5 : Copy of letter dt. 02-05-2001
B6 : Copy of letter dt. 05-09-2000
B7 : Mediclaim policy, schedule
B8 : Copy of letter dt. 04-01-2001
B9 : Copy of letter dt. 06-03-2001
B10 : Copy of case record
dt. 27-09-2000
Depositions:
PW1 : Benny M.Varghese
DW1 : Dr. M. Isaac Abraham
