PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
The Complainant had taken Life Insurance Policy from Life Insurance Corporation of India and said policy was renewed from time to time. In the month of February, 2004 Mr.Mohan Joshi, an agent of the Opposite Party approached the Complainant and persuaded her to take mediclaim policy. The Complainant decided to take aforesaid policy for herself, her husband Mr.Subhash and her son Mr.Satyajit. M/s.Expert Medico Legal Consultancy, registered medical consultant of Opposite Party carried out medical examination of the Complainant and her family members and submitted its report to the Opposite Party on 03/03/2004. The Complainant has produced photo copy of the said report alongwith complaint at Exhibit-‘A’. The Opposite Party has issued health plus medical expenses policy in the name of Complainant bearing no.111400/48/03/18587 for the period from 08/03/2004 to 07/03/2005 on payment premium of Rs.10,000/-. The Complainant has produced photo copy of the said policy at Exhibit-‘B’.
2) As per the Complainant, she had been enjoying good health. However, sometime in the middle of April, 2004 she noticed a lump in her left breast. Therefore, she consulted their family doctor and undergone a medical checkup. The medical report indicated suspected malignancy. Therefore, for the further check up, the Complainant went to renowned Oncologist, Dr.Sultan Pradhan at Prince Ali Khan Hospital, Mazgaon. Dr.Sultan Pradhan after through investigation came to conclusion that there was malignancy in the left breast of the Complainant and needed surgery. Before surgery the Complainant was underwent some test. The Complainant was operated on 25/05/2004 and her left breast was completely removed. The Complainant has produced photo copy of the medical case papers of Price Ali Khan Hospital at Exhibit-‘D’colly.
3) The Complainant had paid policy premium for the year 2005-2005 and 2006 to the Opposite Party. For medical treatment at Prince Ali Khan Hospital, the Complainant incurred expenses of Rs.54,382.83 paise. After surgery she was advised to undergo six sittings of chemotherapy and thereafter six sittings of radiation. For aforesaid treatment the Complainant spent Rs.44,364.83 + Rs.17,710/- for consultation and pathology charges. The Complainant has spent an amount of Rs.12,150/- as a taxi fare for visiting Prince Ali Khan Hospital and Jaslok Hospital. During aforesaid period the Complainant has incurred total expenses of Rs.1,34,057.66 paise. Particulars of which are given in the complaint para no.7.
4) On 21/07/2004 the Complainant submitted her mediclaim to the Opposite Party alongwith her relevant papers. The Opposite Party appointed Mr.Sarabjit Singh Bright as Investigator who visited house of the Complainant on 02/10/2004. The Complainant furnished him with all required information. Mr.Bright told Complainant that during course of his investigation Oncologist of the Tata Memorial Hospital opined that malignancy already ought to have been there in the Complainant’s body before the surgery i.e. before 25/04/2004. Mr.Bright told the Complainant that in view of the Clause No.4.1 in the mediclaim policy the Complainant’s claim should not be entertained. Mr.Bright asked the Complainant to produce evidence to prove that disease was not pre-existing. The Complainant produced the mammography report dtd.09/06/1999 when general tests were carried out at the Hinduja Hospital, Mahim. However, Mr.Bright was reluctant to accept the said report. Oncologist of the Tata Memorial Cancer Hospital had never examined the Complainant nor carried out surgery on the Complainant. However, merely on so called opinion of Oncologist of the Tata Memorial Hospital, Mr.Bright had recommended to the Opposite Party not to entertain Complainant’s mediclaim. On 16/02/05 the Complainant received letter from Opposite Party rejecting her claim on the certificate allegedly given by the said Tata Memorial Hospital stating that such a disease cannot be developed with a span of few months. Opposite Party have repudiated the claim relying upon Clause No.4.1 of the policy. According to the Complainant aforesaid provision was not brought to her notice by the Opposite Party at any time till rejection of her claim.
5) It is the case of the Complainant that she was not aware of existence of malignancy in her body prior to obtaining of mediclaim policy. Infact, she was medically examined by medical experts of the Opposite Party on 02/03/2004 and medical examination did not reveal prima facie existence of malignancy. It is submitted that Opposite Party has wrongly rejected her claim therefore the Complainant had preferred appeal to the Division Manager of Opposite Party. The Divisional Manager asked the Complainant to refer the matter to the Grievance Cell of the Opposite Party. Accordingly, Complainant sent representation dtd.09/05/2005 to the Grievance Cell. However, Complainant’s representation was not considered favourably by Grievance Cell. The Complainant approached Dr.Sultan Pradhan who had performed operation and told him that her claim has been rejected on the ground of pre-existence of disease. Dr.Sultan Pradhan was of the opinion that in rapidly growing neoplasia, a short history is well-known presenting features. Accordingly he issued medical certificate dtd.16/03/2005. However, Opposite Party totally ignored aforesaid certificate issued by Dr.Sultan Pradhan.
6) According to the Complainant under the mediclaim policy the Opposite Party are bound to reimburse medical expenses of Rs.1,34,057.66 paise to the Complainant and therefore, the Complainant has filed this complaint before this Forum. The Complainant has requested to direct Opposite Party to pay an amount of Rs.1,34,057.66 paise to the Complainant. The Complainant prayed for interest @ Rs.21 % p.a. on aforesaid amount from the due dated till realization of the entire amount. The Complainant has requested to condone the delay, if any caused in filing of this complaint. The Complainant has prayed for cost of this complaint to the Complainant.
7) Opposite Party has filed written statement and thereby resisted claim of the Complainant. Opposite Party has raised preliminary objection that complaint is time barred hence, deserves to be dismissed with cost. It is submitted that the Complainant had filed claim against Opposite Party before Insurance Ombudsman. The Insurance Ombudsman after hearing both the parties has decided the matter on merit and therefore, present complaint barred by principle of the Res Judicata. According to Opposite Party there is no deficiency in their service. Opposite Party has repudiated the claim as on the ground that the disease was pre-existing and the claim falls under exclusion clause no.4.1 of the policy.
8) Opposite Parties have admitted fact that mediclaim policy was issued to the Complainant. After receipt of claim form submitted by the Complainant they have appointed investigator – Mr.Bright. According to Opposite Party rejection of the claim based on medical opinion and therefore, there is no deficiency in service on the part of Opposite Party. Opposite Party has denied allegations made by the Complainant and submitted that Opposite Party has not liable to pay Rs.1,34,057.66 paise as prayed by the ‘Complainant. It is submitted that the Complainant is not entitled to any relief against Opposite Party and therefore, complaint is liable to be dismissed.
9) Alongwith complaint, the Complainant filed documents as per list of document. The Complainant has filed an application for condonation of delay and affidavit in support of the complaint. Opposite Party has also filed affidavit in proof of evidence. The Complainant has filed her affidavit in lieu of examination-in-chief. The Complainant has filed written argument. Ld.Advocate - Bhakti Barve for the Opposite Party has filed pursis stating that written statement and written argument of the Opposite Party be considered as oral argument of the Opposite Party and matter may be closed for order.
10) On 15/07/2010 we heard oral submissions of Ld.Advocate–Mr.S.K.Swadi in presence of Ld.Advocate – Ms.Bhakti Barve for the Opposite Party and matter was closed for order.
11) Following points arise for our consideration and our findings thereon are as under –
SR.NO. |
POINTS |
FINDINGS |
1 |
Whether complaint is barred by law of limitation ? |
No |
2. |
Whether the Complainant has proved deficiency in service on the part of Opposite Party ? |
Yes. |
3. |
Whether the Complainant is entitle to recover amount of Rs.1,34,057.66 paise alongwith and cost of this proceeding from Opposite Party ? |
As per final order. |
Reasons :-
Point No.1 :- The Complainant has filed complaint before this Forum on 27/09/2007. Alongwith complaint, the Complainant has filed an application of condonation of delay. Opposite Party in its written statement has raised contention that complaint is barred by law of limitation. It appears from the documentary evidence produced on record that the Complainant submitted her mediclaim to the Opposite Party on 21/07/2004. Opposite Party had appointed investigator, Mr.Bright. After receipt of investigator’s report, vide letter dtd.16/02/2005 the Opposite Party has rejected claim of the Complainant on the ground of pre-existing disease. Thereafter Complainant has preferred appeal to the Divisional Manager of Opposite Party. However, the Divisional Manager advised the Complainant to refer the matter to Grievance Cell. The Complainant accordingly sent the representation to the Grievance Cell on 09/05/2005. The Complainant was asked to produce certain documents. But her claim was not considered favourably. Then the Complainant had approached Insurance Ombudsman and the Insurance Ombudsman by his vide letter dtd.01/08/2007 rejected her claim. It is submitted on behalf of the Complainant that, if there is any delay in filing the present complaint, the same may be condoned.
The Opposite Party has stated in their written argument, the Complainant’s claim was repudiated on 16/02/2005 and the Complainant has filed his complaint in September, 2007 therefore, complaint is barred by law of limitation.
It appears from evidence of record by letter dtd.16/02/05, Opposite Party has repudiated claim of the Complainant. Thereafter, the Complainant had preferred appeal to the Divisional Manager of Opposite Party who asked the Complainant to approach Grievance Cell. Accordingly, the Complainant approached on 09/05/2005 Grievance Cell of Opposite Party. Vide letter dtd.26/06/2006 Administrator Officer of Grievance Cell informed to the Complainant vide letter dtd.11/12/2005 that they have requested the Complainant to produce supporting documents of evidence for screening of mammography treatment papers etc. However, the Complainant had not submitted documents called for. Lastly it is stated that “they concurred with the decision that claim is not admissible as it falls under clause no.4.1 of mediclaim policy.” So it is clear from the record that the Complainants claim was finally rejected by the Opposite Party on 26/07/2006. Complaint is filed within period of 2 years from 26/06/2007. In the meantime Complainant had approached Insurance Ombudsman but her claim was rejected by the Insurance Ombudsman. Considering the aforesaid facts, we hold that present complaint is filed within prescribed period of limitation. We do not find substance in the contentions raised by Opposite Party that the complaint is barred by law of limitation. Therefore we answer point no.1 in the negative.
Point No.2 :- The Opposite Party vide their letter dtd.16/02/2005 rejected claim of the Complainant on the alleged ground of pre-existing disease. It is admitted fact that Opposite Party had issued mediclaim policy to the Complainant bearing no.111400/48/03/18587 for the period from 08/03/2004 to 07/03/2005. It is admitted fact that prior to the issuance of aforesaid mediclaim policy, the Complainant was examined by M/s.Expert Medico Legal Consultancy – Medical Consultant of the Opposite Party. Report of medical examination of the Complainant was submitted to the Opposite Party on 03/03/2004. The Complainant has produced photo copy of the medical report alongwith complaint at Exhibit-‘A’. In the medical examination papers, nowhere it is stated that the Complainant was suffering from malignancy. According to the Complainant, after obtaining of mediclaim policy for the first time in the middle of April, 2004 she noticed a lump in her left breast. Therefore, she consulted their family doctor and underwent a medical examination which indicated suspected malignancy. Thereafter, the Complainant consulted Oncologist, Dr.Sultan Pradhan of Prince Ali Khan Hospital, Mazgaon who confirmed that there was malignancy in the left breast of the Complainant and needed surgery. Dr.Sultan Pradhan performed surgery on the Complainant on 25/05/2004. The Complainant has produced copies of medical report and medical case papers at Exhibit-‘C’ colly. & ‘D’ colly. According to the Complainant prior to taking of original policy from the Opposite Party she was not suffering from malignancy for the first time in the middle month of April, 2004 she came to know about aforesaid disease. On the contrary according to the Opposite Party after receipt of claim papers from the Complainant Opposite Party had appointed Mr.Bright as a Investigator. During the course of investigation Mr.Bright obtained medical opinion of Oncologist of the Tata Memorial Hospital who opined that such disease cannot be developed within span of few months. Accordingly, Mr.Bright submitted his report and on that base Opposite Party have rejected Complainant’s claim on the ground of pre-existing disease by a letter dtd.16/02/2005. Opposite Party has not produced so called opinion given by the Oncologist of Tata Memorial Hospital. The Opposite Party has also not produced report of the Investigator. The Complainant has produced certificate issued by Dr.Sultan Pradhan at Prince Ali Khan Hospital, who performed surgery on the Complainant. The Complainant has produced photo copy of the letter dtd.16/03/2005 of Dr.Sultan Pradhan at Prince Ali Khan Hospital. In the aforesaid letter Dr.Sultan Pradhan has stated that he had first seen Mrs.Jayashree Swadi on 27/04/2004 with one week history of a left breast lump. He has clearly stated that prior to her visit on 27/04/04 she had no signs or symptoms of malignancy. In rapidly growing neoplasia a short history is a well known presenting feature as in the case of Mrs.Jayashree Swadi.
Absolutely there is no evidence on record to show that prior to obtaining mediclaim policy, the Complainant was suspected malignancy in her left breast or she had taken any treatment. On the contrary Dr.Sultan Pradhan who performed surgery on the Complainant has clearly stated in the letter dtd.16/03/2005 that when he firstly saw the Complainant on 27/04/2004 with one week history of a left breast lump. It is further stated that prior to her first visit on 27/04/2004 the Complainant had no signs or symptoms of malignancy. It appears from the record, that Opposite Party was insisting the Complainant to adduce evidence to prove that her disease was not pre-existing. Considering medical case papers on record, it appears that Opposite Party has wrongly repudiated claim of the Complainant on the alleged ground of pre-existing of disease under Clause No.4.1 of the mediclaim policy. Repudiation of claim without any evidence on the ground of clause 4.1 pre-existing disease amounts to deficiency in service therefore, we answer point no.2 in the affirmative.
Point No.3 :- It is proved that the Opposite Party have wrongly repudiated genuine claim of the Complainant for reimbursement of the hospital expenses. The Complainant has claimed recovery of Rs.1,34,057.66 paise towards diagnostic tests and medicines purchased for performing surgery, hospital charges etc. The Complainant has given details of amount of Rs.44,364.83 paise for Chemotherapy and amount of Rs.17,710/- spent for Radiation. The Complainant has claimed Rs.5,450/- as an amount spent for post surgery check-ups. The Complainant is entitled to recover aforesaid amount of Rs.54,382.83 + 44,364.83 + 17,710/- + 5,450/- i.e. total 1,21,907.66 paise. The Complainant has further prayed for recovery of Rs.12,150/- as a taxi fare for visiting hospital and Jaslok Hospital details are given in the complaint para no.7. Under the mediclaim policy, Opposite Party is not liable to pay taxi fare and other expenses incurred by the Complainant. The Complainant is entitled to recover only hospitalization expenses i.e. 1,21,907.66 paise from the Opposite Party.
The Complainant has claimed interest @ 21% p.a. on aforesaid amount. The Complainant’s claim of interest appears to be excessive. Considering the facts and circumstances of the case, we think it just to direct Opposite Party to pay interest @ 9 % p.a. to the Complainant on Rs.1,21,907.66 paise till realization of entire amount to the Complainant.
Considering the nature of proceeding, we think it just to direct Opposite Party to pay Rs.2,000/- as cost of this proceedings to the Complainant. Hence, we answer point no.3 accordingly.
For the reasons discussed above, we partly allow the complaint and pass following order -
O R D E R
i.Complaint No.271/2007 is partly allowed.
ii.Opposite Party shall pay an amount of Rs.1,21,907.66 (Rs.One Lakh Twenty One Thousand Nine Hundred Seven and Sixty Six Paise Only) to the
Complainant with interest @ 9 % p.a. on aforesaid amount from 26/06/2006 till realization of entire amount to the Complainant.
iii.Opposite Party shall pay an amount of Rs.2,000/- (Rs.Two Thousand Only) as cost of this proceeding to the Complainant.
iv.Opposite Party shall comply with the order within period of 1 month from the date of receipt of this order.
v.Certified copies of this order be furnished to the parties.
