FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU, MEMBER.
The complaint case, in brief, is that the complainant purchased Health Forever Insurance Policy from OPs 1, 2 and 3 for the period of 05.05.2012 – 04.05.2018 . His wife , who was insured in the said policy , was suffering from
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low back ache (LBA) and was admitted under OP4 on 14/07/2015. His wife underwent Posterior Spinal Decompression L-4, L-5 , S1 on 15.07.2015 and was discharged on 18.07.2015. The complainant lodged a claim for Rs.1,83,443/- including Pre and Post Hospitalization expenses to the OP3. However, the claim was repudiated on grounds of Pre - existing ailment. Being aggrieved by the decision of the OPs 1, 2, and 3 the complainant approached to the Insurance Ombudsman, Kolkata, for settlement of his claim. But the Insurance OMBADSMAN has concurred the decision of the OP 1, 2 and 3. Finding no other option, the complainant has filed the present consumer complaint seeking reliefs fully mentioned in the prayer portion of the complaint.
OPs 1, 2 and 3 contested the case by filing W/V contending inter alia that the instant complaint is barred by limitation as the same is filed more than two years after the final repudiation letter of the OPs . Without prejudice to the above it is submitted by the OPs 1, 2 and 3 thatthe insured had taken Health Forever Insurance Policy for the period from 05.05.2014 to 04.05.2016 inception coverage being from 05.05.2012. Claim for 1,83,443/- was lodged for Hospitalization of complainant’s wife under OP4 in a case of Lumbar Canal Stenosis for the period of 14.07.2015 to 18.07.2015. As per findings of the Insurance Investigator, the Patient is a known case of LBA since 6months prior to the first consultation on 19.08.2009. Also the Discharge Summary sheet collected from the Hospital mentions the history of LBA since 2 years. Hence, it is amply proved that the present ailment was pre-existing, requiring mandatory 48 months waiting for period for the due coverage as per terms and conditions of the policy. The policy being in the 4thyear, the claim was rightly repudiated as per Policy T&C.
Despite service of notice op4 did not turn up.
To prove their case both the parties have adduced evidence on affidavit. The complainant restrained himself from cross-examination. OPs 1, 2 and 3 has filed questionnaires which was replied by the complainant. Both parties have advanced their case with relevant documents in support of their respective cases. . BNAs are also filed by the both the parties .We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us .
There is no dispute that the complainant purchased Health Forever Insurance Policy from the contesting OPs being Policy No. HCJ0000448000102 on 05.05.2012 . The fact also remains that the complainant’s wife,and one of the insured, Mrs. Lucky Mukherjee, was suffering from LBA and was under treatment of Dr. R. Gopal Krishnan, Chief Orthopedic surgeon, Dept. of Orthopedics and Traumatology, Apollo Hospital, Chennai. Undoubtedly the
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said insured admitted under OP4 on 14.07.2015 and underwent Posterior Spinal Decompression L4-L5, L5-S1 and discharged on 18.07.2015. It is also admitted fact that the complainant lodged claim for Rs.1,83,443/- including Pre and Post Hospitalization expenses to the OP3 on 31.07.2015 for imbursement and the same is repudiated by the OP3 on the ground of PRE-EXISTING AILMENT vide letter dated 15.09.2015 which was reconfirmed on 13.10.2015 in reply of the email sent by the complainant on24.09.2015. Again on 27.11.2015 denying an disputing the OPs stand as to repudiation the complainant gave a reply to the OPs through letter. Finally The OPs repudiated the claim vide letter dated 21.12.2015. After that the complaint lodged his complaint before the Ld. Insurance Ombudsman, Kolkata, for settlement on 12.02.2016. The Insurance Ombudsman concurred the decision of theOps vide order dated 03.08.2016.
Ld. Advocate for the contesting OPs argued that the instant complaint is barred by limitation as the complaint is filed more than two years after the final repudiation letter of the OPs dated 21.12.2015 and cited a ruling passed by the Hon’ble APEX Court in the decision reported in 2009 (7) SCC 768 where it is observed that :
Section 24A of the Act bars any for a set up under the Act , from admitting a complaint , unless the complaint is filed within two years from the date of which the cause of action has arisen . The provision expressly casts a duty on the commission , admitting a complaint , to dismiss a complaint unless the complainant satisfies the District Forum , the State commission or National commission , as the case may be , that the complainant had sufficient cause for not filing the complaint within the period of two years from the date on which the cause of action had arisen .
In view of the above , the question which arises is whether the complaint petition is barred by limitation . Documents on record furnished by both theparties it is found that final repudiation letter was issued by the contesting OPs on 21.12.2015 . Thereafter the complainant placed his case before the LD. Insurance Ombudsman and the order of Ld. Insurance Ombudsman came on 03.08.2016 . The instant complaint petition is filed before this commission on 16.01.2018 i.e. within two years from the date of order issued by the Ld. Ombudsman . Therefore the objection raised on behalf of the contesting OPs is not tenable .
The contesting OPs have alleged that ailments of the insured is pre-existing. The discharge certificate filed by the contesting OPs shows that the disease was pre-existing for two years . On the other hand the same discharge certificate furnished by the complainant shows the disease was pre-existing for
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six months .The photocopy of the investigator report filed by the contesting OPs shows that the ailment for which the insured was hospitalized was a long standing condition and that the ailment was existing since the year 2009 . In the conclusion the investigator mentioned as under
2. while verifying the case sheet we found that the patient is aknown case of LBA since 6 months prior to the first consultation on 19.08.2009 .
3. The hospital discharge summary collected by us mentioned that ‘low back ache since 2 years’ where as the insured submitted discharge summary to RSA mentioned that “low back ache since 6 months’ both do not coincide .
4. Therefore the patient’s present treatment at Apollo Hospitals , Chennai, was a pre-existing ailment.
In support of above findings the contesting OPs have produced photocopies of the medical records of the OP4 from which it was observed by the investigator appointed by the contesting OPs that the insuredconsulted Dr. R. Gopalakrishnan for the first time on 19.08.2009 with complain of LBA and radiating to right lower limb since 6 months . Again on 26.02.2010 the said insured came to the OP4 with complaint of continuous pain in the Right Hip Joint radiating down the right leg + foot since 3 years . The complainant admitted the above fact and submitted that after taking pain killers the insured had no symptoms for next 4.5 years . It is controverted by the complainant that the present case has no connection with that fact .In this regard Ld. Advocate for the complainant relied upon the discharge summary filed by the complainant and a medical certificate issued by the treating doctor in which it is stated that the insured ‘presented with complaints of low back ache since 6 months’when she admitted in the hospital for said surgery . On the other hand the discharge summary filed by the contesting OPs stating that the insured ‘presented with complaintsof low back ache since 2 years.’ Both are issued by the OP4 and as the OP4 did not bother to appear before this Ld. Commission the reason behind the different version of case history in two discharge summaries could not besolved .
The complainant submitted that an amount of Rs.1,83,443/- which was incurred in connection with the treatment of the insured has been claimed to the contesting OPs by the complainant and the same was repudiated on the ground of Pre-existing ailments. But not a single scrap of bill/receipt has been annexed with the instant complaint petition in support of the said expenditure on the part of the Complainant.
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As such, without any supporting document of expenditure made by the complainant our hands are tight to give any relief to the complainant as prayed for in the complaint petition but to dismiss the case.
In result, the case merit fails .
Hence,
ORDERED
That the case be and the same is dismissed on contest against the OPs 1, 2 and 3 and on ex-parte against aop4. However, there will be no order as to costs.
