BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE
Dated this the 14th August 2009
COMPLAINT NO.28/2009
(Admitted on 09.12.2009)
PRESENT: 1. Smt. Asha Shetty, B.A. L.L.B., President
2. Sri. K. Ramachandra, Member
BETWEEN:
Mr.Walter Isac Monteiro,
So. Raphael Monteiro,
Christian aged 54 years,
RA. Suraj Vihar,
Opp: Vamanjoor Church,
Vamanjoor Post,
Mangalore. …….. COMPLAINANT
(Advocate for the Complainant: Sri.D.A.L. Andrade)
VERSUS
National Insurance Company Limited,
Rasik Chambers,
Opposite Central Market,
Mangalore 575 001,
Represented by its
Divisional Manager. ……. OPPOSITE PARTY
(Advocate for the Opposite Party: Mrs.Hemalatha Mallya).
***************
ORDER DELIVERED BY SMT. ASHA SHETTY, PRESIDENT;
1. The facts of the complaint in brief are as follows:
This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.
It is submitted that Complainant and his family were covered under the medicalim policy bearing policy No.604300/48/07/8500000785 for a sum of Rs.1,50,000/-. It is submitted that the Complainant’s wife Irene Gretta Monteiro was hospitalized on 1.10.2007 for thyroid surgery. She was hospitalized in City Hospital Mangalore from 1.10.2007 and discharged on 8.10.2007. After the discharge from the hospital, a claim was made for reimbursement of the medical bills and the treatment expenses in total Rs.23,424/-. The Opposite Parties instead of honouring the claim of the Complainant repudiated the claim stating that the claim of the Complainant falls within the purview of exclusion clause 4.3 of the policy. It is submitted that the exclusion policy i.e., 4.3 is applicable only towards the expenses on treatment and surgeries during the first year of the operation of the policy, the treatment and surgery for the disease took place on 1.10.2007, the Complainant’s wife neither treated nor had she undergone a surgery during the period 6.9.2006 to 15.9.2007 i.e., 1st year of the policy, hence it is contended that the service rendered by the Opposite Party amounts to deficiency in service and filed the above complaint before this Hon'ble Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Party to pay Rs.23,424/- towards the medical expenses and Rs.1,00,000/- claimed as compensation and cost of the proceedings.
2. Version notice served to the Opposite Party by RPAD.
Opposite Party appeared through their counsel filed version admitted the mediclaim policy and stated that the policy was valid upto 15.9.2008. The liability of the policy was limited to Rs.25,000/- only.
It is submitted that Mrs. Gretta was admitted to the hospital on 1.10.2007 and she had a history of complaint of swelling in the neck since 9 months which dates back to January 2007. The knowledge of contracting of the disease falls in the first year of the policy i.e., during the policy period 16.9.2006 to 15.9.2007 and contended that the alleged treatment falls under the mediclaim policy exclusion clause No.4.3. As per the exclusion clause the Opposite Party is not entitled any claim and contended that the repudiation made by the Opposite Party is just and valid and there is no deficiency in service and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Party has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Mr.Walter Isac Monteiro (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C4 were marked for the Complainant as listed in the annexure. One Mrs.Shyamala Bhat (RW1), Administrative Officer of the Opposite Party filed counter affidavit and answered the interrogatories served on her. Ex R1 to R8 were marked for the Opposite Party as listed in the annexure. The Complainant produced notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and we have also considered the materials that was placed before the Hon'ble Forum and answer the points are as follows: Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
The facts which are not in dispute are that the Complainant obtained mediclaim policy No.604300/48/07/ 8500000/785 which covers the Complainant and his family. The said policy was commenced on 16.9.2006 and valid from 16.9.2006 to 15.9.2007 (as per Ex R1).
The dispute between the parties are that the Complainant’s wife Irene Gretta Monteiro was hospitalized on 1.10.2007 for thyroid surgery and she was hospitalized in City Hospital Mangalore from 1.10.2007 to 8.10.2007 and underwent thyroid surgery and spent Rs.23,424/-. Thereafter the Complainant submitted the claim form to the Opposite Party but the Opposite Party repudiated the claim stating that the disease/ailments are falling within the exclusion clause of 4.3 of the policy. It is contended that the same is arbitrary and not valid.
On the contrary, the Opposite Party contended that the claim of the Complainant falls within the purview of exclusion clause 4.3 of the policy and the Complainant is not entitled to get the benefit of the policy.
Now the point for consideration is that, whether the Opposite Party proves that the policy holder i.e., the wife of the Complainant had pre-existing disease at the time of obtaining the policy and which excludes under the terms and conditions of the policy? In a case of like this nature, the entire burden lies upon the Opposite Party Company to prove before the FORA that the claim falls under the exclusion clause.
It is worthwhile to refer policy condition before discussing the points on merits. The exclusion clause 4.3 reads thus –
“The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of:-
“During the first one year of the operation of the policy the expenses on treatment of Benign ENT disorders & surgeries like Tonsilectomy/ Adenoidectomy/Mastoidectomy/Tympanoplasty.
Treatment of diseases such as Cataract, Benign Prostatic Hypertrophy, Hysterectomy, Hernia, Hydrocele, Congenital Internal Diseases, Fissures/ Fistula in anus, Piles, Sinusitis and related disorders, Polycystic ovarian diseases, Non-infective arthritis, Undiscended testis, Surgery of gall bladder & bile duct excluding malignancy, surgery of Genito-urinary system excluding malignancy, Pilonidal Sinus, Gout & Rheumatism, Hypertension, Diabetes, Calculus diseases, surgery for prolapsed intervertebral disc unless arisinf from accident, surgery of varicose veins are not payable for the first two years of operation of the policy.
Treatment for Joint replacement due to degenerative conditions, Age related osteoarthritis and osteporosis are not payable for first four years of operation of the policy.
If these diseases are pre-existing at the time of proposal, will be covered only after four continuous claim free policy years”.
From the above clause it is very clear that if the Opposite Party Company proves that the claim of the Complainant falls within the purview of the above exclusion clause then definitely the Complainant is not entitled for any reimbursement of the claim under the policy.
However, in order to substantiate the case of the Opposite Party, the Opposite Party filed affidavit and contended that the wife of the Complainant Mrs.Irene Gretta Monteiro was admitted to the hospital on 1.10.2007 and she had a history of complaint of swelling in the neck since 9 months which dates back to January 2007. The knowledge of contracting of the disease falls in the first year of the policy i.e., during the policy period 16.9.2006 to 15.9.2007 and relied the discharge summary (i.e., Ex R6).
However, we have gone through the most crucial document in the present case is the discharge summary issued by the City Hospital Mangalore, wherein the clinical details is being reproduced in verbatim as under:
“43 years old female patient come with history of swelling in the neck (front side) since 9 months. No history of pain or tenderness. No sudden increase in size of lump. The final diagnosis reveals that the Complainant’s wife had nodular goiter and the partial thyroidectomy done on 2.10.2007”.
This document stands unchallenged.
On careful scrutiny of the above discharge summary the Complainant’s wife was for the 1st time treated in City Hospital Research and Diagnostic Centre Mangalore, wherein she has gone with the history of swelling in the neck since 9 months. No history of pain or tenderness, no sudden increase in size of lump and she has been diagnosed as nodular goiter and underwent partial thyroidectomy surgery. There is no contra evidence produced on the side of the Opposite Party company to show that the Complainant’s wife had knowledge of her problem earlier that she had suppressed the same and had the medical policy issued. The above disease diagnosed by the doctor reveals that she had come with the history of swelling in the neck since 9 months and she had no pain or tenderness. The above swelling was diagnosed by the doctor when she gone to the hospital for the 1st time. Only after the final diagnoses the Complainant and his wife came to know that she had nodular goiter and taken treatment in the hospital. We are very surprise to note that how the Opposite Party Company can presume that just because she had a swelling in the neck they cannot assume that the Complainant was aware of the above disease before she treated by the doctor. As we know, some of the swellings in the neck may not cause any symptoms and the patient may not come to know till it reach/show some symptoms.
However, there is no evidence on record to show that the policy holder had ever taken any treatment for the alleged disease prior to her examination in City Hospital Mangalore. A person might be suffering from a disease but he may not take care of that and go to a doctor. Quite often a person, who might be having some problem but he may not be knowing about it and may not go to a doctor. Similarly in the present case, though the insured had swelling on her neck but it may not cause any pain or tenderness she might not have been gone to the doctor. The question always, which has to be determined, is, was the pre-existing disease to the knowledge of the insured. This knowledge can be attributed if the person takes some or the other treatments from a doctor/hospital. A person who might be having swelling in the neck may not be knowing about it till gets it tested. In the given facts and circumstances of the case, the Complainant’s wife was not either in the immediate past nor at any stage admitted in the hospital or underwent any treatment. There is no evidence that the Complainant or his wife knew about the disease at the time of taking of the insurance policy. Under such circumstances, the claim of any insured should not be and cannot be repudiated by taking a clue or remote reference to any so called disease/ailment from discharge summary of the insured by invoking exclusion clause.
Further we find that the exclusion clause 4.3 is applicable only towards the expenses on treatment and surgeries during the 1st year of the operation of the policy. But in the present case the treatment and surgery for the disease took place on 1.10.2007 i.e., after a year. Further even if we presume that the alleged disease since 9 months let us consider it as January 2007 even on the date of proposal and taking of the policy from 16.9.2006 she had no disease. So the question of suppression of facts or pre-existing or knowledge of the disease does not arise in the present case on hand.
In this connection we would refer the judgment rendered by Delhi State Consumer Disputes Rdressal Commission, New Delhi: III (2005) CPJ 205; in Tirath Dass versus New India Assurance Company Ltd. referred by the counsel for the Complainant dealing with the similar contention. The Hon’ble State Commission held that –
Consumer Protection Act, 1986 – Section 2(1)(g) – Insurance – Mediclaim policy – Repudiation of claim – contention, insured suffering from ailment for last two years – complaint dismissed by Forum – Hence appeal – Disease involved gradual de-generating process and was continuing for about two years prior to actual admission in hospital – Process was so slow and gradual that no ordinary person was supposed or expected to know about the nature of disease – Complainant was not supposed to disclose such problem for which he never hospitalized or operated upon – Opposite Party also negligent in not getting medical check up of insured before issuing policy, liable under policy – Order of Forum set aside.
[Paras 6, 7 and 9]
In another case the Delhi State Consumer Disputes Redressal Commission, New Delhi: III (2009) CPJ 51; in Life Insurance Corporation of India and Another versus Arati Chatterjee held that –
(i) Consumer Protection Act, 1986 – Section 15 – Life Insurance – Suppression of material facts – Death due to cardiac arrest – Claim repudiated – Contention, deceased suffering from diabetes mellitus at time of taking of policy, not disclosed – Contention not acceptable – Unless a person hospitalized/ undergone operation/admitted for treatment for particular disease in rear proximity of obtaining policy, not supposed to disclose about day-to-day problem – Complaint allowed by Forum – Order upheld in appeal.
[Paras 4, 5 and 6]
Further in a case National Consumer Disputes Redressal Commission, New Delhi: III (2009) CPJ 6 (NC); in New India Assurance Company Limited versus Arun Krishan Puri held that –
Consumer Protection Act, 1986 – Section 2(1)(g) and 14(1)(d) – Insurance – Mediclaim policy – Insured operated for coronary heart by-pass surgery – Reimbursement claim denied by insurer – Contention, pre-existing disease suppressed by insured – Onus to prove pre-existing disease at time of taking of policy lies on insurer – Except investigator’s report, no evidence produced in support of concealment of pre-existing disease – Complaint allowed by Forum – Order upheld in appeal – Hence revision - In absence of verification of discharge summary by doctor who treated/issued discharge summary, no reliance can be placed on it – Orders of lower Fora upheld.
[Paras 4, 5]
In another case the Tamilnadu State Consumer Disputes Redressal Commission, Chennai: III (2009) CPJ 61; Radha Palaniappan (Dr.) versus Oriental Insurance Co. Ltd held that –
- Consumer Protection Act, 1986 – Section 2(1)(g) – Insurance – Mediclaim – Repudiated – Suppression of material facts regarding pre-existing disease alleged - complaint dismissed by Forum – Hence appeal – complaint wrongly dismissed by Forum – No evidence produced to prove that Complainant had knowledge of her problem earlier, suppressed that at time policy issued – Insurance amount increased by Complainant for purpose of income-tax proved – Order of Forum set aside – Insurer held liable under policy.
[Paras 6, 7 and 10]
Similarly in the present case, there is no evidence produced in support that the Complainant and his wife knew about the disease at the time of obtaining the policy.
In view of the above discussion, we are of the considered opinion that the Opposite Party Company misinterpreted the policy by denying the claim of the insured. There was no material produced on the side of the Opposite Party Company to show that the insured had pre-existing disease. There is absolutely no justification on the part of the Opposite Party Company to say the disease suffered by the insured pre-existed prior to commencement of the policy. In the absence of any cogent/material evidence, we hold that the repudiation made by the Opposite Party Company is not just and valid which amounts to deficiency in service.
As far as medical reimbursement is concerned, the medical bills placed before the FORA proved that the Complainant is entitled Rs.23,424/- towards the medical reimbursement. By considering the facts and circumstances of the case, we have noticed in several cases the National Insurance Company tried the claims in too technical grounds. The Catena of judgments rendered by the Hon’ble National Commission as well as State Commissions are very clear that when the claim under mediclaim policy shall be repudiated. The company should look into the same before repudiating the mediclaim policies. We observe that the company should be generous rather too technical. By considering the above, we award Rs.10,000/- as compensation for the inconvenience and the deficiency in service because the repudiation on too technical grounds to be discountenanced. And further Rs.1,000/- awarded as cost of the litigation expenses. The payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Party i.e., National Insurance Company Limited is hereby directed to pay Rs.23,424/- (twenty three thousand four hundred and twenty four only) towards the medical reimbursement to the Complainant. And further Rs.10,000/- (ten thousand only) as compensation and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
(Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 14th day of August 2009.)
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SRI. K.RAMACHANDRA)
APPENDIX
Witnesses examined on behalf of the Complainant:
CW1 – Mr.Walter Isac Monteiro – Complainant.
Documents produced by the Complainant:
Ex C1 - : Mediclaim Insurance Policy.
Ex C2 – 07.08.2008: Letter of the Complainant to the Opposite Party.
Ex C3 – 18.10.2008: Lawyer’s notice sent to the Opposite Party.
Ex C4 – 18.09.2008: Reply notice of the Opposite Party.
Witnesses examined on behalf of the Opposite Party:
RW1 – Mrs.Shyamala Bhat, Administrative Officer of the Opposite Party.
Documents marked on behalf of the Opposite Party:
Ex R1 – : Mediclaim Insurance Policy along with policy conditions.
Ex R2 - : Proposal form.
Ex R3 - : USG of Thyroid Gland report issued by KMC Hospital.
Ex R4 – 02.10.2007: Histopathology report of the Complainant’s wife issued by City Hospital.
Ex R5 – 01.10.2007: Admission record.
Ex R6 – 01.10.2007: Discharge summary pertaining to the Complainant’s wife issued by City Hospital.
Ex R7 – : Reference record and Doctor’s record pertaining to the Complainant’s wife issued by City Hospital, Mangalore.
Ex R8 - : Bills and documents produced by the Complainant at the time of preferring the claim along with the letter – now produced by the Opposite Party.
Dated:14.08.2009 PRESIDENT
