Date of Filing:13.04.2009<br /> Date of Order: 13.05.2010<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SESHADRIPURAM BANGALORE-20<br /> <br /> <br /> Dated: 13TH DAY OF MAY 2010<br /> <br /> <br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> COMPLAINT NO: 852 OF 2009<br /> <br /> 1. Ms. Ambika A. Narayan<br /> W/o. Ashwath Narayan M.N.<br /> <br /> 2. Amruth A. Makam<br /> S/o. Ashwath Narayan M.N.<br /> <br /> Both of them residing at<br /> # 1611/A, “Sharanya”, 29th Main<br /> Behind Mahila Samaja<br /> Banashankari 2nd Stage<br /> Bangalore 560 070 Complainant<br /> <br /> V/S<br /> <br /> 1. Reliance General Insurance Co. Ltd.<br /> 570, Naigaum Cross Road<br /> Next to Royal Industrial Estate<br /> Wadala (W), Mumbai 31<br /> <br /> 2. Medi Assist India Pvt. Ltd.<br /> # 49, Shilpa Vidya Road<br /> 1st Main, J.P. Nagar 3rd Phase<br /> Bengalooru 560 078<br /> <br /> 3. Wockhardt Hospitals<br /> 154/9, Bannerghatta Road<br /> Opp. IIMB, Bangalore 560 076 Opposite Parties<br /> <br /> <br /> <br /> ORDER<br /> By the President Sri S.S. Nagarale<br /> <br /> This is a complaint filed by the complainant under section 12 of the Consumer Protection Act.<br /> The facts of the case are that first complainant is a holder of mediclaim policy under gold plan for a period from 24.08.2008 to 23.5.2009 from the opposite party No. 1 and opposite party No. 2 is a coordinator of the mediclaim policy. Opposite party No. 3 is a hospital where the surgery of complainant No. 2 took place. Son of complainant Amruth is also beneficiary. Second complainant was found to have intermittent headache and was subjected to eye test. There is no problem concerned. Hence, he was subjected to CT and Magnetic Resonance Imaging (MRI). Complainant No. 2 was diagnosed of having Pineal Teratoma with Associated (Decompensated) Obstructive Hdrocephalus by Ragavs Diagnostic Centre on 11.11.2008. Second complainant was admitted to Wockhardt hospital on 12.11.2008 and was finally diagnosed as having Immature Teratoma Posterior Third Ventricular Region. Second complainant underwent Right Parieto-occipital, Inter-hemispheric approach and subtotal excision of lesion under general anesthesia on 14.11.2008 at Wockhardt hospital. He was discharged from above hospital on 22.11.2008. Complainant No. 2 underwent treatment at Wockhardt Hospital as inpatient from 12.11.2008 to 22.11.2008 and out patient on several occasions for which total claim came up to Rs. 2,45,053/-. Complainants submitted that they have incurred about Rs. 1,92,125/- towards chemotherapy and other incidental follow-up, medical checkup after operation. The opposite party No. 2 vide letter dated 07.01.2009 repudiated the claim made by the complainants under the pretext pre-existing illness. Opposite party No. 2 has come to illogical conclusion. Complainant No. 2 had a regular attendance at school and college which stands as a testimony of good health of complainant No. 2. Complainant No. 2 has excellent health. He has been successful in his studies through out his school and college days and actively participated in sports. Complainant No. 2 actively participated in the competitions organized in his school. He has faired well in competitions and brought laurels to the institution. Complainant No. 2 is pursuing second year BBM at Mahaveer Jain College. Had the complainant No. 2 suffered from the immature teratoma, a pre-existing disease he could not have excelled in his studies. It is submitted that he was one among 85 students short listed from 550 students to travel to Egypt. First complainant and her husband are spending Rs. 1,25,000/- towards the expenses of studies every year. Complainant submitted that opposite parties contention that immature teratoma is a pre-existing disease is a conclusion arrived at irrationally and wrongly solely based on headache of complainant No. 2. Repudiation of claim is to deprive the original claim of the complainants. Legal notice was got issued to the opposite parties dated 02.02.2009. Therefore, the complainants claimed that opposite party No. 1 and 2 be jointly and severally directed to pay Rs. 2,45,053/- towards hospital charges and Rs. 1,92,125/- towards chemotherapy charges and Rs. 1,50,000/- towards mental agony and suffering and Rs. 1,00,000/- for medicines and MRI scan, PET scan, CT Scan, PET scan, blood tests etc., Legal notice expenses Rs. 5,000/-. In this way the complainants have prayed total amount of Rs. 6,92,198/- against opposite parties. <br /> 2. Opposite party No. 1 has filed the defence version stating that opposite party No. 1 is insurer and opposite party No. 2 is third party administrator / claim settling agent. Hence, version may be treated as common version from opposite party No. 1 & 2. Claim has been repudiated following the due procedures as per the contract of insurance. Hence, it will not amount to deficiency of service. The treatment taken by the complainant No. 2 is for pre-existing disease. Insurer is not obliged to pay the claim amount. Opposite party No. 2 received fax message from Wockhardt hospital. Doctor recorded the history of the patient’s illness as headache since six years. The repudiation of the claim of the complainant has been made legally subject to terms and conditions of policy. The repudiation has been done after thoroughly scrutinizing the documents made available to the opposite parties. The claim made by the complainants is denied and complainants have no cause of action to file the complaint. Pre-existing disease does not come under the umbrella risk coverage. For all these reasons stated above the opposite parties have prayed to dismiss the complaint.<br /> 3. Opposite party No. 3 hospital is a formal party to the present proceedings and no claim is made against the opposite party No. 3.<br /> 4. Complainant No. 1 Smt. Ambika has filed her affidavit evidence who is the mother of complainant No. 2. On behalf of complainant affidavit evidence of Sri Pradeep a teacher in Sri Bhagawan Mahaveer Jain College has been filed and also affidavit evidence of Dr. Arjun Srivatsa, Neuro Surgeon has been filed in support of the case of the complainant. On behalf of opposite parties affidavit evidence of Chandrashekar, Deputy Manager, Reliance General Insurance Co. Ltd. has been filed. The complainants counsel submitted detailed written arguments running to 14 pages along with medical literature and rulings. The complainants submitted documents and opposite parties also produced documents.<br /> 5. I have gone through the pleadings of parties, affidavit evidence filed by both parties, documents and records very minutely and carefully.<br /> 6. The points for consideration are:<br /> 1. Whether the complainants have proved deficiency of service on the part of opposite parties?<br /> 2. Whether the repudiation of the mediclaim by the opposite parties is justified?<br /> 3. Whether the complainants are entitled for the claim amount? If so, what would be the quantum of amount?<br /> <br /> 7. It is admitted fact that the complainant Ambika Narayan has taken medical health policy under gold plan for herself and her son Amruth who is complainant No. 2. The period of insurance was from 24.05.2008 to mid night 23.05.2009. Sum insured is Rs. 5,00,000/-. The copy of policy is produced. 2nd complainant subjected to CT scan and MRI at Ragavs Diagnostic Centre on 11.11.2008. Copy of report of the diagnostic centre is produced. The second complainant was admitted to Wockhardt Hospital on 12.11.2008 and diagnosed for having Immature Teratoma and he underwent surgery under general anesthesia on 14.11.2008 at Wockhardt Hsopital. He was discharged from the hospital on 22.11.2008. The copy of discharge summary at Wockhardt hospital is produced. In the said discharge summary final diagnosis description is given as Immature Teratoma Posterior Third Ventricular Region. In the past history column it is mentioned as “nothing significant”. The complainant has spent total amount of Rs. 2,45,053/- at Wockhardt Hospital. Copies of bills have been produced. The complainant No. 2 Amruth had taken chemotherapy treatment at Bangalore Institute of Oncology Speciality Centre and for that the complainant has spent Rs. 1,92,125/-. Copies of hospital bills have been produced. The complainant submitted claim form to the opposite parties along with necessary documents. But, unfortunately, the opposite parties repudiated the claim on the ground that Amruth was having headache since six years which falls prior to the inception of the policy and expenses on treatment of any illness which are pre-existing are not admissible under the policy and claim stands repudiated under policy exclusion No. 1 and accordingly, it was informed to the complainants vide letter dated 07.01.2009. Said repudiation letter has been produced. In the discharge summary of the Wockhardt hospital in the column of past history it has been mentioned that “nothing is significant”. As per the defence version the opposite party No. 2 received fax message on 13.11.2008 from Wockhardt Hospital, Bangalore. The Doctor recorded the history of the patient’s illness as headache since six years. Therefore, the contention of the opposite parties is that the treatment taken by complainant No. 2 for preexisting disease and policy excludes the cover of risk for any preexisting disease and the insurer is not obliged to pay the claim amount to the complainant. Except the fax message of Wockhardt hospital sent by Dr. Suresh, Neurologist stating that the patient was having headache for the last six years, there is no other record or evidence or documents to show that complainant No. 2 Amruth was having pre-exising disease. It is not true that the most common symptoms of brain tumor or headache and fitz, but there are much more reasons for both these symptoms. Headache is one of the symptoms for brain tumor. A brain tumor is not a very likely cause if there are only symptom of headache. People get headache at some point in their life. This is not a definite sign of brain tumor. Brain tumor symptoms vary from patient to patient. Headache can be found in people normally who do not have brain tumors. Therefore, we cannot come to the conclusion that because of headache complainant No. 2 was having brain tumor. Admittedly, complainant No. 2 has not taken any treatment for headache from any hospital or doctor before admitting to Wockhardt hospital. Even it is not the case of the opposite parties that the complainants knew well the pre-existing disease at the time of taking policy. The opposite parties have not produced any record or documents to show that the complainant No. 2 was suffering from pre-existing disease before taking policy. Merely stating in the report by the doctor that patient was suffering from headache for the last six years it is not lead to the conclusion that the complainant No. 2 was suffering from pre-existing disease. In most cases headache does not signify serious disease. It is common disease or ill health being suffered by people. Therefore, the repudiation of the claim by the opposite parties on the ground that the complainant No. 2 was suffering from headache for the last six years and it was pre-existing disease and policy does not cover the claim for pre-existing disease. This bald repudiation of the claim by the opposite parties is absolutely unjustified and not proper. The opposite parties have not produced any expert opinion or any other supporting evidence or documents to show that the headache suffered by complainant No. 2 was cause for brain tumor. The opposite parties have not established nexus between headache and the immature teratoma posterior third ventricular region. Headache may not be ground and sole ground for causing immature teratoma posterior third ventricular region. Though headache is probable common symptom of brain tumor, most people with headache, even severe headache do not have tumor. The complainant No. 2 is a student studying in second year BBM at Mahaveer Jain College as a meritorious student. Had he suffered the deadly disease he could not have excelled in his studies. The complainants have produced certificates of merit, marks card and progress report of the complainant No. 2. All the documents and records produced by the complainants goes to show that Mr. Amruth is a meritorious student and is intelligent boy and he has also obtained merit certificates from the Karnataka Academy of Mathematics and other institutions. Bhagwan Mahaveer Jain College has awarded him certificate of distinction for securing 100% marks in Statistics in II PUC examination held during April 2007 and complainants have produced certificate of appreciation from the Mahaveer Jain College and Amruth complainant No. 2 has also obtained certificate for excellence. Complainant No. 2 was also selected to travel to Egypt. Had complainant No. 2 Amruth was suffering from deadly disease from five to six years he could not have obtained the merit certificates and appreciation letters. Definitely disease could have affected his educational career. But, this thing has not happened. It goes to show that he was not suffering from a deadly disease of cancer before taking the policy from opposite party No. 1. Therefore, on the facts and circumstances of the case and taking consideration of all the material and documents we could definitely say that complainant No. 2 is not having preexisting disease for which he has taken treatment at Wockhardt Hospital and Bangalore Institute of Oncology Centre. The claim put up by the complainants should have been accepted by the opposite parties. There are no proper and convincing reasons to repudiate the claim. The claim put up by the complainants for reimbursement of the amount for the treatment of complainant No. 2 is legal and justified. The opposite party No. 1 shall have to be directed to pay the policy amount of Rs. 5,00,000/-. Repudiation of lawful claim by the opposite parties amounts to deficiency in service. The complainants have claimed Rs. 1,50,000/- for mental agony etc. This claim cannot be allowed or accepted. The ends of justice will be met in ordering the opposite parties to pay the expenses incurred by the complainants for the treatment taken both in Wockhardt hospital and Bangalore Institute of Oncology and the complainants are also entitled for the expenses towards medicine and CT scan, MRI Scan etc. As regards the amount claimed by complainant towards hospital charges, Chemotherapy and medicine expenses there are no dispute. The opposite parties have not disputed claim put up by the complainants under this head. Therefore, the total claim put up by the complainants comes to Rs. 5,37,178/-. But the policy covers Rs. 5,00,000/- only. Therefore, the complainants are entitled maximum expenditure of Rs. 5,00,000/- as per the policy. Taking into consideration of all the facts and circumstances of the case and documents and after considering the arguments advanced by both the counsels for parties the complaint is liable to be allowed as indicated above. In the result I proceed to pass the following: <br /> ORDER<br /> 8. The complaint is allowed. The opposite parties No. 1 & 2 jointly and severally directed to pay Rs. 5,00,000/- to the complainants within 60 days from the date of this order. In the event of non-compliance of the order within 60 days the above amount carries interest at 6% p.a. from the date of filing complaint till payment / realisation.<br /> 9. Complainants are also entitled for Rs. 2,000/- as costs of the present proceedings from the opposite parties No. 1 & 2.<br /> 10. Send the copy of this Order to both the parties free of costs immediately. <br /> 11. Pronounced in the Open Forum on this 13TH DAY OF MAY 2010. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> MEMBER MEMBER<br />