DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 20^th day of June 2009.

Present : Smt. H. Seena, President

: Smt. Preetha.G. Nair (Member)

: Smt. Bhanumathi.A.K. (Member)

C.C.No.97/2008

Juju.P. George

S/o. George.P. Mathew

Jojima

Behind Civil Station

Palakkad - Complainant

(Adv. K. Tony Jose)

V/s

Royal Sundaram Alliance

Insurance Co Ltd.,

Sundaram Towers

45 & 46 Whites Road

Chennai

(Adv .P. Prasad) - Opposite Party

O R D E R

By Smt. H. Seena, President

In short the case of the complainant is as follows.

Complainant and his father has availed a medi claim insurance policy from the Opposite party. Accordingly complainant and his father got insured under Plan I scheme bearing Policy No.HS BIL0004 vide certificate No. CS00025590000100. An initial premium of Rs.2,200/- was also collected from the petitioner's SBI account. The said insurance policy provides that in the event of hospitalization of the insured for a period of more than 24 hours a daily cash benefit as shown in the schedule of the certificate will be paid subject to a maximum period of 180 days per illness/accident. Father of the complainant who is the Ist insured in the policy was admitted in Lakshmi Nursing Home, Palakkad due to A/c weakness of right side of his body on 27/08/2006. Further on 29/08/2006 he was discharged and admitted in Jubilee Mission Medical College, Trichur. He was again discharged on 09/09/06 and was admitted in Palana Institute of Medical Sciences . On the same day he died due to stroke. Complainant made a request letter claiming the expense incurred as offered as per the policy to the tune of Rs.47,851/- with all the necessary documents. But opposite party repudiated the claim stating the insured died due to stroke which is a complication of pre existing disease such as diabetics and hypertension. According to the

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complainant his father was not affected with diabetics mellitus or hypertension even at the time of treatment pertaining to the present claim and if at all the said diseases were present, it can only be induced due to the continuous treatment for the stroke. The opposite party has not verified or asked with the petitioner or petitioners father about the existence of any existing diseases. More over there is absolutely no proposal form supplied by the opposite party in order to enable the complainant to disclose any material information as to any existing disease if any. All the transactions were preceeding the receipt of Voice Consent Confirmation letter and issue of policy certificate was through telephonic conversation. The complainant's father was neither affected with diabetics and hypertension nor he was aware of the presence of any such disease on the date of policy. Opposite party has repudiated the genuine claim of the complainant. Hence the complaint.

Opposite party filed version with the following contentions. The Ist contention of the opposite party is that as per the policy condition opposite party can disclaim the liability to the insured person if the given claim is not made a subject matter of litigation in a court of law within 12 calender months from the date of repudiation . Claim was denied on 13/10/2006 and the complainant preferred a consumer complaint only on 23/09/2008, i.e, after 23 months and therefore opposite party is not liable to pay any sum under the instant claim since the complainant has waived his right to sue by not filing the claim within 12 months from the date of cause of action. The second contention is that the documents submitted by the complainant himself reveals the fact that the insured was having hypertension for 10 years and was diabetic for 16 years. The attending physician has also reported the same in the medical certificate. In the discharge summary of the Cardia Care Lakshmi Hospital also Diabetic Mellitus and Hypertension is noted under the head diagnosis. Further the discharge summary from Jubilee Mission Hospital also reveals the fact that the complainant is a known Diabetic/Hypertensis. As per the policy conditions it is clear that pre-existing diseases are not covered under the policy. The documents submitted by the complainant himself clearly shows that the complainant's father died due to the ailment which is a complication of a pre-existing disease and hence the compliant is liable to be dismissed.

The evidence adduced consists of the proof affidavits on their respective side and Exhibit A1 to A5 on the side of the complainant and Exhibit B1 to B5 on the side of opposite party.

Now the issues for consideration are

1. Whether the act of opposite party in repudiating the claim of the complainant amounts to deficiency in service?

2. If so, what is the reliefs and costs?

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Point No.1

Opposite party raised a contention that as per their policy conditions, opposite party can disclaim the liability to the insured person if the claim is not made subject matter of litigation in a Court of law within 12 calender month from the date of repudiation. Present complaint is filed after 23 months from the date of repudiation of the claim and hence the complaint is not maintainable. We are of the view that even though such a clause is there in the policy conditions it is not applicable as far as a consumer who files a complaint before the Consumer forum. Complaint filed within 2 years from the date of cause of action is maintainable by the forum and is not barred by Section 24(A) of Consumer Protection Act. We answer the point in favour of the complainant.

Point 2

Opposite party has repudiated the claim of the complainant stating that as per the medical certificate filled by the attending physician the insured has a history of diabetic mellitus for the past 16 years and hypertension for the past 10 years and the present ailment is the resultant of these pre-existing diseases. As per the exclusion clause, the company shall not be liable under the policy for any claim, in connection with or in respect of a pre-existing disease and any disease, illness, medical condition, injury, which is a complication of pre-existing disease. According to the complainant the insured was not having diabetics or hypertension at the time of taking policy and if at all there is, it is the result of the treatment for the present ailment.

We have carefully gone through the evidence on record. Exhibit B4 is the discharge summary issued by the hospital wherein the complainant was taken first. Under the head diagnosis complainant is found to have diabetics and hypertension. From there the patient was referred to Jubilee Mission Medical College Hospital, Trichur. Exhibit B5, discharge summary from the Jubilee Mission Hospital also under the head history it is noted (known diabetic/hypertension ). It is relevant to note that in both these documents, the period of these disease existing is not mentioned. The only document in which the same is mentioned is Exhibit B3. There is no convincing evidence in support of Exhibit B3. When the insurer alleges pre exisitng disease, it is upon them to prove the same. Further opposite party has not proved that complainant has knowledge of the pre-existing diseases. Hence it is not fine on the part of opposite party to repudiate the genuine claim of the complainant.

In the result complaint allowed. Opposite party is directed to pay Rs.47,851/- to the - 4 -

complainant being the claim amount and Rs.6,000/- as compensation for mental agony

and sufferings. Order shall be complied within one month from the date of receipt of order failing which the whole amount shall carry interest at the rate of 9% per annum.

Pronounced in the open court on the 20^th day of June 2009

PRESIDENT (SD)

MEMBER (SD)

MEMBER (SD)

APPENDIX

Witness examined on the side of Complainant

Nil

Witness examined on the side of Opposite party

Nil

Exhibits marked on the side of the complainant

1. Ext. A1 – Covering letter dated 25.09.06 of closure of Insurance Policy

2. Ext. A2 – Letter of Royal Sundaram addressed to Juju George dated 13^th Oct 2006.

3. Ext A3 – Voice consent confirmation for Hospital cash insurance of Royal Sundaram dated

28^th Feb 2006.

4. Ext. A4 –Copy of Hospital cash claim form of Royal Sundaram

5. Ext. A5 – Copy of Hospital Cash Plan of Royal Sundram

Exhibits marked on the side of the Opposite Party

1. Ext. B1 – Copy of Hospital Cash Plan Insurance certificate issued to George.P.Mathew

2. Ext. B2 – Copy of repudiation letter from Senior Executive-claims dated 13^th Oct 2006 addressed to Juju.P.George

3. Ext .B3 – Copy of cash claim form of Royal Sundaram

4. Ext. B4 – Copy of Discharge summary of Cardia Care, Lakshmi Hospital

5. Ext. B5 – Copy of Discharge summary of Jubilee Mission Medical College Hospital, Thrissur-5.

Forums Exhibits

Nil

Forwarded/By order

Senior Superintendent