PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
Original Complainants Nos.1 & 2 obtained Mediclaim Policy from Opposite Party No.1 for 1 year from 27/02/98 to 26/02/99 on payment of premium of Rs.6,870/. The Complainants have produced photo copy of the aforesaid Mediclaim policy alongwith complaint which is marked at Exhibit ‘A’. According to the Complainant, before obtaining aforesaid Mediclaim policy they had submitted proposal form to the Opposite Party. Original Complainant No.2 Smt. Veena D. Khankhoje in her proposal form had clearly mentioned that she had undergone Mitral Stenosis in 1965. after operation of Mitral Valve Correction (enhancement) in 1965, deceased Complainant No.2 was leading normal life nearly for about 40 years. In the month of January, 07 deceased Complainant No.2 had symptoms of cough and cold and said ailment was not curing for more than 2 months, therefore, Complainant No.2 late Veena D. Khankhoje consulted Cardiologist. The Cardiologist suggested that there a need for operation of Mitral Valve as it was not functioning properly. Thereafter, late Veena Khankhoje was admitted in Asian Heart Institute on 18/05/07 under the care of Dr.Ramakanta Panda and Dr. Rajiv Karnik and she underwent surgery on 23/05/2007 and was discharged on 02/06/2007.
2) It is submitted that on 18/05/2007 the Complainant No.1 had applied to Opposite Party No.2 who is working as TPA of Opposite Party No.1 for cashless facility. However, Opposite Party No.2 denied cashless facilities vide its letter dtd.23/05/07. Again on 27/05/07 the Complainant wrote letter to Opposite Party placing correct facts on record and requested Opposite Party No.2 to reconsider earlier decision. In the meantime on 23/06/07 Complainant No.1 filed Mediclaim alongwith necessary documents to the Opposite Party No.1.
3) It is submitted that Opposite Party No.2 vide its letter dtd.06/06/07 repudiated the claim of the Complainants on the ground that as per available documents the patient was admitted for valvular heart disease with hypertension with diabetes with mitral valvotomy in 1965. As per the policy papers, the date of inception of policy is 25/02/1999. Hence, ailment falls prior to inception of policy and therefore, pre-existing. The Complainants claim was repudiated under exclusion clause 4.1 of the Mediclaim policy.
4) Thereafter the Complainant approached Grievance Cell of Opposite Party but his request was rejected. Then he approached Mumbai Grahak Panchayat vide its letter dtd.02/12/07 against Opposite Party No.2. The Mumbai Grahak Panchayat addressed another communication dtd.30/03/08 to the Opposite Party, but no cognizance of the said letter was taken by the Opposite Party No.2. According to the Complainant, Opposite Parties have illegally rejected the Complainant’s claim and it amounts to deficiency in service on the part of Opposite Party. Therefore, Complainants have filed this complaint. They have prayed to direct Opposite Parties to pay to the Complainant an amount of Rs.2,60,000/- with interest @ 9 % p.a. from the date of claim i.e. 23/05/07 till realization of the entire amount. The Complainants have also claimed Rs.50,000/- as compensation and Rs.15,000/- towards cost of this proceeding from the Opposite Party.
5) During pendancy of this proceeding death of Complainant No.2 Veena Khankhoje took place on 06/03/2010. After here death her legal heir Complainant No.1 and 2A were brought on the record.
6) Alongwith complaint, the Complainant has filed documents as per list of document and affidavit of Complainant No.1 in support of complaint.
7) Opposite Party No.1 has filed written statement and thereby resisted claim of the Complainant contending interalia that the allegations made in the complaint are false and the complaint deserves to be dismissed with cost.
8) According to Opposite Party No.1 claim submitted by the Complainant was repudiated on the ground on pre-existing condition. The Complainant has been insured under the Mediclaim policy since 27/02/98. The Complainant No.2 was admitted for mitral stenosis with hypertension with diabetes from 18/05/07 to 02/06/07. As per discharge card of the hospital, the original Complainant No.2 had undergone surgery for the same ailment in the year 1965. Before inception of the policy, the Complainant was suffering from aforesaid ailment. As per the terms and conditions of the policy the Complainant is not entitle for reimbursement of the medical expenses incurred for treatment of pre-existing disease and therefore, claim of the Complainant was repudiated by letter dtd.18/10/07. It is submitted that there is no deficiency in service on the part of Opposite Part. Hence, complaint is liable to be dismissed.
9) Opposite Party No.1 has admitted that Mediclaim policy mentioned in the complaint was given to the original Complainant No.1 & 2 for the period from 27/02/98 to 26/02/99 and sum assured under the said policy was Rs.2 Lacs. It is submitted that the Complainant are not entitled for compensation from Opposite Party No.1 and so complaint be dismissed against Opposite Party No.1.
10) Opposite Party No.2 was duly served with he notice but has not appeared before this Forum therefore, ex-parte order was passed against Opposite Party No.2. The Complainant have filed affidavit in rejoinder and written argument. Opposite Party No.1 has not adduced any evidence and remained absent since 05/11/09 Therefore, we heard oral submissions of Ld.Advocate Mr.Parte for the Complainant and case was closed for order.
11) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainants have proved deficiency in service on the part of Opposite Party ?
Findings : Yes.
Point No.2 : Whether the Complainant is entitled to reimburse Rs.2,60,000/- towards medical expenses with interest and
compensation, etc. from Opposite Party?
Findings : As per final order.
Reasons :-
Point No.1 :- It is the case of the Complainant that the Original Complainants No.1 Digambar S. Khankhoje and his wife Veena D. Khankhoje on 27/02/98 obtained Mediclaim Policy for the period of 1 year from Opposite Party No.1 from 27/02/98 to 26/02/99 on payment of premium of Rs.6,870/-. Photo copy of the aforesaid policy produced alongwith complaint at Exhibit ‘A’. It is submitted that for obtaining aforesaid policy the Complainants had submitted their proposal forms. The Complainants had produced copy of proposal form submitted by original Complainant No.2 - late Veena Khankhoje. By referring to the proposal form it is pointed out that in the proposal form Complainant NO.2 had clearly mentioned that she had undergone operation for mitral stenosis in 1964. Even then in the first policy issued to the Complainant, there was no exclusion of any of the disease. On the reverse page of the 3rd policy there is executive endorsement which is kept blank. It is submitted that the aforesaid policy was renewed by the Complainant from time to time without any break on payment of necessary premium. According to the Complainant from 1998 till 2007 no Mediclaim was preferred by the Complainant, so Complainants are eligible for cumulative bonus for Rs.60,000/-. Last policy produced on record is from 27/02/07 to 26/02/08. In the said policy cumulative bonus recorded against the name of original Complainant No.2 late Veena Khankhoje is Rs.60,000/-.
It is not in dispute that on 18/05/2007 late Veena Khankhoje was admitted in Asian Heart Institute where she underwent surgery for enhancement of valve. The Complainant has produced medical case papers of Asian Heart Institute. It appears from the record that Complainants application for cashless facilities was rejected by Opposite Party No.2 and subsequently the Complainant submitted claim form to the Opposite Party. Photo copy of Claim Form is produced alongwith complaint at Exh.‘F’. The Opposite Party vide their letter dtd.18/10/07 rejected claim of the Complainant under exclusion clause 4.1 of the policy stating that there is old history (1965) of Mitral Valvotomy. This was not disclosed at the time of inception of policy. According to the Opposite Party, if history of Mitral Valvotomy was disclosed then said ailment would have been excluded form the scope of policy. It is alleged that the Complainant are guilty of non discloser of material fact regarding health of original Complainant No.2.
Ld.Advocate Mr.Parte by refereeing to the proposal form submitted by original Complainant No.2 late Veena Khankhoje to the Opposite Party No.1 pointed out that in the proposal form itself in the column no.15 Complainant No.2 late Veena Khankhoje has stated particulars of illness suffered as “mitral stenosis, date of treatment 1964 and name of treating the Doctor as Dr.T.H. Tulpule”. It is submitted that inspite of specific information given by the original Complainant No.2 about mitral stenosis operation undergone by her in 1964 in the first policy issued to the Complainant no disease was excluded. Considering contents of the proposal form submitted by late Veena Khankhoje before taking first policy, we do not find substance in the allegations made by the Opposite Parties that the Complainant suppressed material facts of pre-existing disease from the Opposite Party. Further it is to be noted that the aforesaid policy was renewed from the year 1998 till 27/02/07 – 26/02/08. Hence, according to the Complainant’s advocate exclusion clause 4.1 is not applicable to the present case. Considering evidence on record it appears that the Opposite Parties have wrongly rejected claim of the Complainant without application of mind and misinterpreting provisions of exclusion clause 4.1 of the policy. Hence we answer point no.1 in the affirmative.
Point No.2 :- It appears from the record that original Complainant No.2 late Veena Khankhoje in the month of May/June, 2007 underwent surgery for mitral valve and for that purpose they have paid total bill of Rs.5,56,437.84 paise to the Asian Heart Institute. In the Mediclaim policy issued from 27/02/07 to 26/02/08 sum assured is Rs.2 Lacs and cumulative bonus of Rs.60,000/- is recorded against the name of Complainant No.2 late Veena Khankhoje. Therefore, we think it just to direct Opposite Party to pay Rs.2,60,000/- to the Complainant.
The Complainants have claimed interest @ 9 % p.a. on Rs.2,60,000/- from 23/05/07 till realization of entire amount. Considering the evidence on record we think it just to direct Opposite Party to pay interest @ 9 % p.a. on Rs.2,60,000/- from 06/07/07 i.e. from the date of repudiation of claim till realization of the entire amount to the Complainant.
The Complainants have prayed for compensation of Rs.50,000/- from the Opposite Parties as their claim was wrongly rejected. We think it just to direct Opposite Party to pay Rs.10,000/- as compensation to the Complainant. The Complainants have also claimed Rs.15,000/- towards cost of this proceeding. Considering the nature of this proceeding, we think it just to direct Opposite Party to pay Rs.2,000/-to the Complainant. Therefore, we answer point no.2 accordingly.
For the reasons discussed above, we pass the following order -
O R D E R
i. Complaint No.140/2008 is partly allowed.
ii. Opposite Party Nos.1 & 2 are directed to pay jointly and/or severally an amount of Rs.2,60,000/- (Rs. Two
Lacs Sixty Thousand Only) to the Complainant with interest @ 9% p.a. on aforesaid amount from
06/07/2007 till realization of the entire amount to the Complainant.
iii .Opposite Party Nos.1 & 2 are directed to pay jointly and/or severally an amount of Rs.10,000/- (Rs. Ten
Thousand Only) as compensation and Rs.2,000/- (Rs. Two Thousand Only) towards cost of this
proceeding to the Complainant.
iv.Opposite Party Nos.1 & 2 are directed to comply with the aforesaid order within the period of 30 days from
the date of receipt of this order.
v.Certified copies of this order be furnished to the parties.
