DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No. 386/12
Sh. Arun Khosla
R/o B-89, Greater Kailash-I
New Delhi -Complainant
Vs
1. M/s National Insurance Co. Ltd.120
Mumbai Dvisional Office No. VII, 3rd Flkoor,
104, Bharat House, Mumbai Samachar Marg
Mumbai – 400 023.
2. M/s Dedicated Health Care Services (TPA) India Pvt. Ltd.
Chiranjiv Towers (Opp ITT)
12th Floor, 1205, Building No. 3
Nehru Place, New Delhi.
3. M/s Karvat Health Care Services Pvt. Ltd.
615, 6th Floor, Somdutt Chamber-II
9, Bhikajir Cama Place, New Delhi-66. -Opposite Parties
Date of Institution : 03.08. 12 Date of Order : 02.07.16
Coram:
N.K. Goel, President
Naina Bakshi, Member
S.S. Fonia, Member
O R D E R
S.S. Fonia, Member
Succinctly narrated the case of the complainant is that he took a medical insurance policy No. 250700/46/10/8500000078/028943 on 28.12.2010 covered under the OP-1’s Health First Floater Policy No. 250700/46/10/8500000078 dated 7.5.2010 issued in favour of the OP-2 and had paid the requisite premium of Rs. 27,380/-. A copy of the policy and the terms and conditions is annexed as Annx. C-1. He further states that OP-1 had advised that the OP-2 was its third party agent appointed to facilitate all interaction with the insured and would also be the final authority with regard to medical claim raised by the insured. The complainant further states that he had undergone medical check ups annually as a measure of routine caution. On 16.4.2011 the complainant suddenly experienced breathlessness on exertion and consulted Dr. Naresh Trehan, Managing Director, Medanta – The Medicity. Various tests were carried out and the TRANS-ECOPHAGEAL ECHO CARDIOGRAPHY report revealed:
“…..Myxomatous mitral valve leaflets with flail P2 scallop leading to eccentric jet of severe MR directed anteriorly, superiorly and medially…..”
The doctors followed up the said tests with a coronary angiography on 7.5.2011. This procedure revealed “Minor Plaque in LAD”. The discharge summary is annexed as Annexure. C-2. After following this procedure he raised medical claim for Rs. 34,000/- on 10.5.2011 as per Annex. 3. This claim was allowed by OPs for Rs.27,200/- as per Annex. 4. In view of Minor Plaque in LAD, doctors at Medanta decided to either repair or replace the mitral valve and the operation was carried out on 21.5.2011. Following the said operation the complainant raised his claim dated 1.6.2011 for the sum of Rs. 5,78,525.18p. Copy of the said claim is annexed as Annex. C-5 (Colly). Complainant states that his claim of Rs. 34,000/- was settled on 7.12.2011 but OP-2 repudiated his claim with regard to claim of Rs.5,78,525.18p vide repudiation letter dated 15.12.2011 (Annex. C-8) on the ground that “…..As per the History the patient could not develop this lesion in a span of 5 months. Hence the condition was pre-existing. Hence the admissibility of the claim cannot be ascertained under clause 4.1…….” Despite several requests his second claim was not allowed and payment not released. On 21.01.2012 complainant suffered a Posterior Circulation Tia leading to “Excruciating Headache, Black out and difficulty in speaking with left sided weakness (Left of Mouth Drooped)” and was once again hospitalized and discharged after requisite heart related treatment on 23.1.2012 as per discharge summary (Annex. C-11). The complainant raised a further claim of Rs.47,615.80p which was allowed in the sum of Rs. 27,966 as per Annx. C-12. The complainant further suffered episode of 5.2.2012 and was hospitalized and discharged on 6.2.2012. On this occasion the medical Claim in the sum of Rs. 23,527.60 was orally rejected but letter of repudiation has not been released despite several reminders. The complainant submitted a medical certificate issued by Medanta and requested for review of the repudiation but the OP-2 again opined that there is no change in the decision of the claim under exclusion clause 4.1 of the policy as per Annex. C-17. The complainant further states that there is no logical basis for the part passing of the claims in the sum of Rs. 34,000/- and Rs. 47.615.80p and oral rejection of the claim of Rs. 23,528/- and the written rejection of the claim in the sum of Rs. 5,78,525.18p when all claims relate to either tests carried out for the same disease or the medical or surgical treatment thereof. The complainant states that the basis of repudiation of claim for Rs. 5,78,525.18p is entirely misconceived. The Exclusion clause 4.1 of the policy for the said repudiation is as follows:
“4.1 All diseases/injuries which are pre-existing when the cover incepts for the first time. However, those diseases will be covered after two continuous or more claim free policy years depending upon the specific exclusions mentioned in the policy certificate based on the medical condition at the time of the proposal. This exclusion shall not be applicable in roll over cases, where the insured person has been covered under any individual mediclaim insurance scheme. However, if there are any specific exclusion in the existing individual mediclaim policy, the two years or more waiting period will be applicable depending upon the current medical condition.”
It is stated as under:-
“23. That the lesion or the damage in question was not “… pre-existing when the cover incepts for the first time…” Indeed neither was there any knowledge of a pre-existing disease or physical symptom thereof manifested.”
The complainant further states that “if the claim founded upon the expenses incurred in undergoing the test that revealed the existence of a disease is maintainable then it follows a fortiori that the claim founded upon the expenses incurred in the treatment of the same disease is also maintainable”.
It is further stated as under:
“25. That woeful deficiency of service is writ large on the face of the LETTER OF REPUDIATION related to the claim in the sum of Rs.5,78,525/18 and the non-settlement of the Claim in the sum of Rs.23,528/- despite repeated reminders.”
Claiming deficiency in service on the part of the OPs, he has moved this forum seeking directions to the OPs to pay:-
(i) the sum of Rs. 6,02,053.18p along with interest calculated at the rate of 12 percent per annum from the date of the institution of the complaint till the release of payment.
- such sum of money as deemed fit by this Forum to compensate for the mental agony suffered by the Complainant on account of the arbitrary rejection of the aforementioned funds urgently required for further medical treatment, and
- the costs of the instant Complaint.
OPs were proceeded exparte vide order dated 27.9.2012. OPs had filed an appeal before the State Commission vide FA No. 2012/1117. The State Commission vide order dated 13.11.2013 set aside the exparte order subject to payment of costs of Rs. 2000/- which the appellant/OP was to pay to complainant. As directed by the State Commission, this Forum was called upon to decide the case after giving opportunity to the OP to file written statement and adduce evidence.
Accordingly, OP No.1 has filed written statement denying all the averments.
However, from a perusal of order dated 11.12.2013 passed by our predecessors, it transpires that the complaint had already been disposed off vide order dated 26.03.2013 and copies were sent to the parties. Therefore, it was observed “therefore, both the parties, if they are aggrieved of the final order dated 26.03.2013 may move to the Hon’ble State Commission for its setting aside.” Execution Petition was filed by the Complainant/DH. RC was directed to be issued by our predecessors. However, vide order dated 10.07.13 passed by the State Commission order dated 26.03.13 was stayed. Vide order dated 18.08.15 passed by the State Commission in F.A. No. 632/13, the order dated 26.03.2013 has been set-aside. However, we feel it painful that despite directions of the State Commission, the OPs have not put their appearance before this forum.
OP No.2 & 3 who were instrumental in processing insurance papers, medical claim and repudiation of the claim of the complainant chose not to file any written statement.
OP-1 has raised preliminary grounds and stated that the complaint is void for want of jurisdiction as the branch office of OP-1 is situated in Mumbai and insurance policy in question was issued from Mumbai Branch and Delhi is not the concerned branch where any cause of action had arisen. Reliance has been placed on the decision of the Supreme Court in Sonic Surgical Vs. National Insurance Company Ltd. (2009) 4 CPJ 40 SC. On merits the OP-1 has invoked clause 4.1 of the insurance contract which covers exclusion clause especially existence of pre-existing disease. OP No.1 has categorically stated that CT Coronary Angiography test undergone by the complainant reveals that the complainant is a case of “Minor Plaque in LAD” which the complainant could not develop this lesion in a span of 5 months, hence, the present disease is a pre-existing disease.” Very interestingly enough it is pleaded that due to the inadvertent mistake of the OPs the earlier claim of amount of Rs.47,615.80 of the Complainant was wrongly sanctioned and allowed in sum of Rs.27,966/- and the OP No.1 reserves the right to recover the wrongly and inadvertently paid amount of claim to the Complainant. Therefore, OP No.1 has prayed for dismissal of the complaint.
Complainant has filed his own affidavit in evidence.
Written arguments have been filed on behalf of the complainant.
We have gone through the record very carefully.
Now we straightway advert to the main issue, whether the relief prayed for by the complainant is admissible or not?
Firstly, we shall deal with the preliminary issue raised by OP-1 regarding territorial jurisdiction of this Forum. Para 2 of the complaint reads as under:-
“2. That the opposite party No.1 had advised that the opposite party No.2 was its THIRD PARTY AGENT which was appointed to facilitate all interaction with the Insured and would also be the final authority with regard to MEDICAL CLAIMS raised by the Insured.”
Corresponding para 2 of the written statement (Para 2 Parawise Comments) of OP No.1 reads as under:-
“That the contents of the Para no.2 are being mater of record, are not denied.”
Undisputedly, OP No.2 has its office in Delhi. The Complainant fell ill at Delhi and his claim was once accepted by OP No.2 and again repudiated by OP No.2. The Complainant had been corresponding with OP No.2 at Delhi as revealed from Annexure 6 & 7 of the complaint. Therefore, we hold that this Forum has the territorial jurisdiction to entertain the complaint.
Secondly, it is revealed that the claim of the complainant for Rs.23,527.60 was orally rejected by the OPs without any formal communication. This act on the part of OPs is arbitrary and entitles the complainant to his claim of Rs.23,527.60
Lastly, the most important aspect of the complaint regarding repudiation of the claim of Rs.5,78,525.18p has been examined by us. We find that the claim was rejected by the OPs under the exclusion clause 4.1 of the policy which deals with all diseases or injuries which are pre-existing when the cover incepts for the first time. The relevant portion of the repudiation letter as per Annexure C-8 is as follows:-
“ MR ARUN KHOSLA NON HYPERTENSIVE AND NON DIABETIC ADMITTED WITH C/O BREATHLESSNESS ON EXERTION UNDERWENT CAG S/O MINOR PLAQUE IN LAD, SEVERE MITRAL REGURGITATION WITH MITRAL VALVE PROLAPSE UNDERWENT MITRAL VALVE REPLACEMENT FOR THE SAME, DOI—28/12/2010 AS PER THE HISTORY THE PATIENT COULD NOT DEVELOP THIS LESION IN A SPAIN OF 5 MONTHS HENCE THE CONDITION WAS PRE EXISTING. HENCE THE ADMISSIBILITY OF THE CLAIM CANNOT BE ASCERTAINED UNDER CLAUSE 4.1”
The complainant had never experienced any cardiac ailment before he felt breathlessness on exertion for which he was evaluated, ECO done which revealed mitral valve cooptation. He underwent coronary angiography which revealed minor plaque in LAD on 25.05.11 as per the discharge summary (page 36 of Annexure C-3). It is, therefore, erroneous presumption on the part of OPs to have treated minor plaque in LAD as pre-existing disease. It is a matter of common knowledge that such minor plaque can be detected only through coronary angiography or in the event of feeling uneasiness or breathlessness which the complainant never felt before 25.02.11. On the other hand, the OPs are not competent to draw such inference of pre-existing disease as a result of findings of the discharge summary without a valid medical opinion which the OPs have failed to do so. It is also a matter of common knowledge that the insurance company get the insureds medically examined before issuing medical policy in their favour. In the present case, no such statement is found from which one could infer that the complainant had concealed the material fact. The complainant has already been reimbursed the expenses to tune of Rs.27,966/- for undergoing the angiography. Therefore, it would be appropriate to draw an inference that “ if the claim founded upon the expenses incurred in undergoing test that reveal the existence of disease is maintainable then it follows afortiori then claim founded upon the expenses incurred in the treatment of the same disease is also maintainable.”
The issue of pre-existing disease has been dealt with by the Hon’ble National Commission in the matter of Praveen Damani Vs. Oriental Insurance Company Ltd. IV (2006) CPJ 189 (NC), decided on 03.10.06 wherein the Hon’ble National Commission has held as follows:-
“... If this interpretation is upheld, the Insurance Company is not liable to pay any claim, whatsoever, because every person suffers from symptoms of any disease without the knowledge of the same. This policy is not a policy at all, as it is just a contract entered only for the purpose of accepting the premium without the bonafide intention of giving any benefit to the insured under the garb of pre-existing disease. Most of the people are totally unaware of the symptoms of the disease that they suffer and hence they cannot be made liable to suffer because the Insurance Company relies on their Clause 4.1 of the policy in a malafide manner to repudiate all the claims. No claim is payable under the mediclaim policy as every human being is born to die and diseases are perhaps pre-existing in the system totally unknown to him which he is genuinely unaware of them. Hindsight everyone relies much later than he would have known from some symptom. If this is so every person should do medical studies and further not take any insurance policy. Even on the facts on record, there is no material to show that the Petitioner had any symptoms like chest pain etc. prior to 11.8.2000.”
The aforesaid judgment of the Hon’ble National Commission outrightly tears apart the invocation of clause 4.1 of the policy of the OPs. The OPs have obfuscated the claim of the complainant who is a senior citizen under the erroneous ground of pre-existing disease with the sole aim of denying the legitimate entitlement of the complainant and to cause wrongful gain to themselves at the cost of the insured. Instead of repudiating the bonafide claims of the insured in a totally irresponsible and perfunctory manner the officials of the OPs must always act with transparency and unbiased mind which they have failed to do in the present case. First claim of Rs.34,000/- submitted by the Complainant was settled by the OPs and Complainant was accordingly paid Rs.27,200/-. Passing of the first claim itself proves that the officials of the OPs had concluded that the case of the Complainant was not covered under exclusion clause 4.1 of the policy in question. But they repudiated the claim of Rs.578525.18p arbitrarily and capriciously. Therefore, we are of the considered opinion that rejecting both the claims of the complainant for Rs.5,78,525.25p & Rs.23,528/- on such flimsy ground amounts to gross deficiency in service and unfair trade practice on the part of OPs.
Accordingly, we allow the complaint and direct the OP-1 to pay a sum of Rs.6,02,053/- (Rs.5,78,525 + Rs.23,528) alongwith interest @ 9% per annum from the date of institution of the complaint i.e. 03.08.12 till the realization of the payment . We further direct the OP No.1 to pay a sum of Rs.2 lacs as compensation for causing mental agony and harassment to the complainant by rejecting the claim of the complainant arbitrarily including cost of litigation. In case the above payment is not released within one month to the complainant from the date of receipt of copy of this order, the aforesaid amount of Rs.6,02,053/- will fetch an interest @ 12% per annum from the date of filing of complaint till realization.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
(S.S. FONIA) (NAINA BAKSHI) (N. K. GOEL) MEMBER MEMBER PRESIDENT
Announced on 02.07.2016.
Case No. 239/09
08.06.2016
Present – None
Vide our separate order of even date pronounced, the complaint is dismissed. Let the file be consigned to record room.
(S.S. FONIA) (NAINA BAKSHI) (N. K. GOEL) MEMBER MEMBER PRESIDENT
