PER SHRI. S.M. RATNAKAR – HON’BLE PRESIDENT
1) The deceased Complainant Ketan Shroff filed the present complaint against the Opposite Party to direct the Opposite Party to pay total amount of Rs.92,634/- and interest thereon + Rs.1,300/- towards travelling and Rs.5,000/- for Guidance Society of India.
2) It is alleged that the deceased Complainant had obtained Mediclaim Policy for himself and for his family members bearing Policy No.30007/HOH/99, dtd.26/02/1999 from the Opposite Party under which Rs.1 Lac was sum assured for the deceased Complainant. Rs.25,000/- for Daxa K. Shroff i.e. wife of the deceased Complainant, Rs.50,000/- for his mother Kalavati N. Shroff. It is alleged that he paid premium of Rs.2,202/- to the Opposite Party by cheque on 28/01/1999.
3) According to the deceased Complainant during second week of the December, 1999, he started breathing problem and used to wake up from deep slip gasping for air during night. On 19/12/1999 at about 6.30 a.m. he nearly shirked and went into coma for few minutes. His wife and other family members informed the doctor and called Cardiologist - Dr. H.M. Shah. He examined the deceased Complainant and took decision that on 20/12/1999 there should be full body check up of the deceased Complainant. Accordingly, he approached to N.M. Medical Centre and as per the Doctor’s advice he was required to be admitted to Dr. D.S. Kothari Hospital for treatment. At the said hospital he was referred to a specialist Dr. Anuradha Shah for Sleep Apnoea syndrome and was treated by her. The deceased Complainant was advised to use SPAP Machine at a air pressure of 10.5 cm. for the rest of his life. It was also informed to the deceased Complainant that, if he would not use the said machine it would be life threatening. The deceased Complainant was thereafter discharged from the hospital on 25/12/1999. The deceased Complainant had informed as regards his treatment to the Opposite Party vide his letter dtd.28/12/1999 which was acknowledged by the Opposite Party on 30/12/1999.
4) According to the deceased Complainant, he submitted his claim to the Opposite Party on 24/02/2000 to which he received a letter dtd.25/02/2000 from the Opposite Party under which the deceased Complainant was requested to submit information of diabetic duration from the Doctor of the deceased Complainant. Accordingly, the deceased Complainant submitted it vide letter dtd.06/03/2000. Thereafter the Opposite Party again vide letter dtd.27/04/2000 informed the Complainant that the Opposite Party has rejected his claim on the reason that “Sleep Apnoea Syndrome is a disorder where the patient has spells of breath holding deep slip for which no treatment is know at the said movement through medical science.” The Complainant then submitted the copy of the clarification regarding Sleep Apnoea Syndrome issued by Dr. Anuradha Shah, dtd.08/05/2000 wherein she had explained that Sleep Apnoea Syndrome may be life threatening if untreated and the CPAP is the only definitive treatment of such disorder. The copy of the said letter was forwarded to the Opposite Party. It is alleged that despite the clarification given by the Dr. Shah, the Opposite Party rejected the claim of the deceased Complainant vide letter dtd.27/06/2000. It is alleged that the claim of the deceased Complainant was though supported by the documents and was within the ambit of the policy, the Opposite Party refused to settle his claim. The deceased Complainant has therefore, filed this Complainant for the reliefs claimed in para one of this order.
During the pendency of the complaint the deceased Complainant died and his legal heirs are brought on record.
5) The Opposite Party contested the claim by filing written statement. It is contended that under the mediclaim policy medical fees arising out of hospitalization of individuals incurred by the Insured are reimbursed. It is admitted that the deceased Complainant availed Mediclaim Policy issued on 26/02/1999 for a period of one year from the Opposite Party. It is contended that at the time of issuing the policy the Insured was asked to fill proposal form for Mediclaim Policy of insurance. The deceased Complainant willingly did so. The copy of which is enclosed as Annexure ‘B’ to the written statement. In the said form he had mentioned that all the diseases are absent by putting the words ‘No’. In December, 1999, the deceased Complainant informed to the Opposite Party that he was admitted at D.S. Kothari Hospital, Mumbai, for treatment. It is contended that on about 24/02/2000 he preferred claim on mediclaim policy stating that he was admitted at the hospital for Sleep Apnoea Syndrome from 20/12/1999 to 25/12/1999 under the case of Dr. H.M. Shah and submitted a claim for about Rs.87,000/- towards the hospitalization expenses for treatment of the said ailment by the Opposite Party.
6) It is contended that as per the standard practice in mediclaim the Complainant was asked to submit all papers in original to the Opposite Party for scrutiny of his claim and the said medical papers were then submitted to a specialist on the panel of doctors of the Opposite Party. Upon perusal of the papers the said doctor in his report dtd.12/04/2000 pointed out to the Opposite Party that the Complainant had given a clear cut history of being a known case of disturbed sleep to his doctors in the hospital and the same was mentioned in the discharged card. The implications of the words “Known case of” in medical practice were that the insured and his doctor were both well aware of the fact that the insured suffered from such disease i.e. he was suffering from the said disease of long standing. It is contended that in the medical report of the
Complainant it was mentioned as follows –
“Scrutiny of the other papers and Discharge card submitted by Mr. Ketan Shroff reveals that he has been administered only his routine tablets and barring a large umber of investigations, no other specific form of treatment has been given to him. It is also pertinent to note that Slpeep Apnoea Syndrome is a disorder wherein the patient has spells of breath-holding during deep sleep, for which no treatment is known at this moment to medical science.”
It is contended that many exclusions one which is relevant in this case is as under –
“Charges incurred at hospital or Nursing Home primarily for diagnostic, X-ray or laboratory examinations not consistent with or incidental to the diagnosis and treatment of the positive existence or presence of any ailment, sickness or injury, for which confinement is required at a Hospital or Nursing Home. The important word in the Clause is ‘primarily’. It may be taken to mean in the ordinary sense of the term ‘the main reason’ or ‘the most important cause’ or ‘only for’. It leads to an interpretation of the entire sentence that where the charges are incurred mainly for diagnosis and not for the treatment of any specific disease, the exclusion applies.”
The Opposite Party therefore, held that the Insured was admitted primarily for diagnostic purposes. The case of the Complainant attracts the clauses pertaining to pre-existing diseases and the clause pertaining to admission form primarily diagnostic purposes and the claim attracted clause 4.10 and 4.1 of the mediclaim policy. The Opposite Party therefore, issued letter of repudiation of the claim dtd.27/04/2000.
7) It is contended that some time in June, 2000 the Complainant challenged the repudiation issued by the Opposite Party by sending a letter alongwith certificate issued by Dr. Anuradha Shah, stating that the Opposite Party had wrongly repudiated the claim. It is submitted that in the said certificate the Doctor stated that the deceased Complainant had undergone spilt night sleep study (both diagnostics and therapeutic) with a trial buy certain machine to determine the extent of pressure require to help the patient in his problem. According to the Opposite Party, as a matter of abundant precaution the Opposite Party asked the medical specialists on its panel to review the case and see whether the decision to repudiate the claim proper. It is submitted that the said specialist went through all the papers on record and opined as follows -
“Turning now to the certificate of Dr. Anuradha A. Shah, it is not worthy to study some of the points made therein :
a. The split night sleep study is basically a diagnostic test by definition of the word “study”.
b. The report of the study dtd.21/12/1999 further indicates that deceased diagnostic only. It is very important to note that the title of reports
report itself mentions it is DIAGNOSTIC.
- The statement that the machine can use to determine the extent of positive pressure that he would need every night also indicates that this was an INVESTIGATION/DIAGNOSTIC TEST.
- The further statement that he needs life long use of the machine in para two of the certificate further indicates that the patient is not being cured by the machine but the disease is being controlled by use of the machine”
8) It is contended that scrutiny of the bills of the insured further reveals that a very substantial portion is for investigative test performed and only a small fraction is for drug and treatment. It is submitted that for all the above reasons that the original verdict of “repudiate” is sound both medically and legally. It is contended that on these facts the Opposite Party confirmed the repudiation of the claim on the basis of exclusion pertaining to pre-existing disease and claims made for preliminary diagnostic admission as mentioned above. It is submitted that the Opposite Party accordingly sent letter to the Complainant on 27/06/2000. The Opposite Party has denied the parawise allegations and contended that the claim is not acceptable and therefore, the same is liable to be dismissed.
9) The Complainant filed rejoinder to the complaint in view of the contentions raised in the written statement by the Opposite Party. The Opposite Party has also filed sur-rejoinder. It appears from the record of this complaint that the Complainant asked for cross-examination of the expert witness of the Opposite Party Dr. M.S. Kamath and the said application was allowed by this Forum. It also appears that the Complainant prayed that the said expert witness be examined by appointing Commissioner and accordingly this Forum had appointed Bhuta (Rtd.) City Civil Court Judge, who recorded part evidence of Dr. Kamath and therefore, further evidence was recorded by Shri. R.J. Purandare, Retired Judge as Mr. Bhuta was unable to continue his commission work as he had suffered a fracture. The Complainant filed affidavit of Dr. Anuradha A. Shah. Neither the Complainant nor the Opposite Party have filed their written arguments. We heard the oral argument of Shri. Vidhur Dhawan, Ld.Advocate on behalf of Shri. Anand Patwardhan, for the Complainant. The Advocate for the Opposite Party Shri. Anand Kumar remained absent at the time of oral argument. We have perused the documents filed in the complaint.
10) While considering the claim made by the deceased Complainant, it appears that the Opposite Party vide letter dtd.27/04/2008 relied the opinion of its panel doctor and the policy condition 4.10 under which the charges incurred at the hospital or nursing home preliminary for diagnostic, x-ray or laboratory examination not consistent with or incidental to the diagnosis and treatment of the positive existence or presence of any ailment sickness, injury, confinement is required at hospital/nursing home is excluded. The Opposite Party has thus, informed to the Complainant by considering the opinion of panel doctor that it is evident from the facts on record that the insured was admitted preliminary for diagnostic purpose and therefore, repudiated the claim. The Complainant has challenged the said repudiation on the ground that his family doctor and Cardiologist - Dr. H.M. Shah on 20/12/1999 took a decision that he was required to be admitted to Dr. D.S. Kothari Hospital for treatment and at the said hospital the Complainant was referred to a Specialist Dr. Anuradha Shah for Sleep Apnoea Syndrome and was treated by her. The Complainant was told to use CPAP machine for the rest of his life and if he would not use the said machine it would be life threatening. It is undisputed that the Complainant was admitted in the hospital of Dr. D.S. Kothari from 20/12/1999 to 25/12/1999. This fact is supported by the affidavit of Dr. Anuradha Shah who in her affidavit has specifically stated that at the relevant time she was honorary chest physician with D.S. Kothari Hospital in Mumbai and she was doing research on ailment of sleep disorder. The said Doctor in her affidavit has stated that the deceased Complainant was referred to her by Dr. H.J. Mehta in December, 1999 and he was kept under her observation and diagnosed as a patient suffering from Sleep Apnoea Syndrome (SAS). The said Doctor has further stated that she had treated him in the hospital with machines and C-PAP Machine. She has further stated that the deceased Complainant was examined by her at D.S. Kothari Hospital and diagnosed for the symptoms of Excessive Day time sleepiness and chocking at Night during sleep. She further stated that alongwith the routine investigation the deceased Complainant underwent Spilt Night Sleep Study (both diagnostic and therapeutic) with a trial of Continuous Positive Airway Pressure (CPAP) to determine the extend of positive pressure that he would need every night to overcome the Apnoea and Hypopmea that occurred during sleep. She has further stated that if the deceased Complainant remained untreated Sleep Apnoea can be life threatening and CPAP is the only definite treatment of the said disorder. Considering her evidence which appears not to have been challenged or cross-examined by the Opposite Party and in policy clause 4.10, if the investigation such as x-ray or laboratory examinations if not consistent with not consistent with or incidental tool the diagnosis and treatment of positive existence or presence of ailments for which confinement is not required at hospital/nursing home appears to have been excluded. From the evidence of Dr. Anuradha Shah as referred above, it appears that the investigation underwent by the deceased Complainant was required to be carried out to know the nature of the disease suffered by him. She has also stated that she has treated the disease in the hospital with medicines C-PAP Machine, whenever the patient sleeps. We therefore, find that the Opposite Party has wrongly rejected the claim lodged by the deceased Complainant under the garb of policy clause no.4.10. In our view it is nothing but deficiency of service on the part of the Opposite Party. We also hold that the evidence adduced by the Opposite Party of Dr. Kamath is not any way helpful to reject the claim made by the deceased Complainant in this complaint.
11) The deceased Complainant had claimed total amount of Rs.92,734.50 paise and Rs.1,300/- towards traveling and Rs.5,000/- for Guidance Society of India for drafting the petition and also prayed for interest on claim amount till the date of settlement. The deceased Complainant however, has not proved the traveling expenses of Rs.1,300/- and Rs.5,000/- paid to Guidance Society of India for drafting the petition. Thus, the said expenses cannot be granted as claimed. The Opposite Party in written statement admitted that on or about 24/02/2000 the deceased Complainant submitted a claim for the treatment of Aponea Syndrome for Rs.87,000/- towards hospitalization expenses for treatment of said ailment. We therefore, find that the deceased Complainant lodged the claim to the Opposite Party of Rs.87,000/- is not disputed by the Opposite Party. The deceased Complainant has also produced the copies of the hospital charges and medicine bills and fee paid to the Doctor’s H.M. Mehta, Dr. Sudhir Mehta and D.S. Kothari Hospital and invoice of CPAP Machine purchased by him. We therefore, hold that the heirs of the deceased Complainant are entitled for re-amount of Rs.87,000/- from the Opposite Party with interest @ 6% p.a. from 27/04/2000 till its realization. In the complaint no other reliefs such as cost, compensation have been claimed, the same is not required to be granted for want of prayers to that effect. In the result the following order is passed -
O R D E R
- Complaint No.342/2000 is partly allowed against Opposite Party.
- Opposite Party is directed to pay Rs.87,000/- (Rs. Eighty Seven Thousand Only) to the heirs of the deceased Complainant whose names are brought on record of this complaint with interest @ 6% p.a. from 27/04/2000 till actual payment.
- The Opposite Party is directed to comply with the above order within one month from the date of service of this order.
- Certified copies of this order be furnished to the parties.
