Tamil Nadu

StateCommission

CC/2/2013

S. HAMEED ISMAIL AND SABEENA - Complainant(s)

Versus

ROYAL SUNDARAM ALLIANCE INSURANCE COMPANY LTD., THE AUTHORISED SIGNATORY - Opp.Party(s)

K. RAJASEKAR

26 May 2015

ORDER

BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 

   BEFORE           HON’BLE THIRU JUSTICE R. REGUPATHI    PRESIDENT     

                              THIRU.A.K.ANNAMALAI                                JUDICIAL MEMBER 

       Tmt. P. BAKIYAVATHI                                      MEMBER

                                              C.C.NO.2/2013

             DATED THIS THE 26^th DAY OF MAY 2015

                                                                                                                 Date of Complaint        :  14.12.2012

                                                                                                                   Date or Order               :  26.5.2015 

1.S.Hameed Ismail

S/o Syed Ahamed

2. Tmt. Sabeena

W/o S.Hameed Ismail

Both are residing at No.13/23

Vengeeswarar Nagar,

2^nd Main Road, Vadapalani

Chennai 600 026                                              ..complainants

                                             Vs

1.The Authorised Signatory

M/s. Royal Sundaram Alliance

Insurance company Ltd

Corporate Accidents and Health

Claims Department

“Desbandhu Plaza” –Ground Floor,

47, Whites Road,

Chennai 600 014  

 

2. M/s Royal Sundaram Alliance

Insurance Company Ltd,

“Sundaram Towers”

45 & 46, Whites Road,

Chennai 600 014  

Represented by its Head – Direct

Channels and Marketing

 

3. M/s Medicare T.P.A. services (I) Pvt Ltd

No.6, Bishop Lefroy Road

Calcutta 700 020

Represented by its Authorised officer                  ..opposite parties  

 

Counsel for the complainant            :  M/s K.Rajasekaran

Counsel for the opposite parties 1&2      : M/s M.B.Gopalan

For the 3^rd opposite party                      : served called absent

 

  This complaint coming before us for hearing finally on 30.3.2015 upon hearing the arguments on both side, perusing the documents, this commission made the following order.               

                                    ORDER

THIRU.A.K.ANNAMALAI,  JUDICIAL MEMBER

1.       The complainant filed a complaint u/s 17 of Consumer Protection Act 1986.

2.       The complainant praying for direction for payment of Rs.76,809/- towards the mediclaim under the policy and also Rs.50 lakhs as compensation and Rs.3000/- as expenses for notice and for cost.

3.       The gist of the complaint in brief as follows:

          The case of the complainant is that the complainant have obtained mediclaim cashless treatment policy from the opposite parties for the purpose. The complainant took a Health Shield insurance policy on behalf of his wife and their two daughters and was renewing the same year by year during the period from 20.7.2011 to 19.7.2012 and he paid a sum of Rs. 3,747/- towards Health Insurance premium and the 2^nd complainant had complaints of varicose vein problem during April 2012 for which she had treatment at Vijaya Hospital and surgery on 25.4.2012 at 2.30 p.m and was discharged on 27.4.2012. The complainant claimed the claim amount from the opposite parties on 19.7.2012, the 1^st opposite party sent letter stating that the 2^nd complainant had history of pre-existing disease and thereby the claim was rejected. Hence the complainant issued a legal notice on 4.9.2012 and filed a consumer complaint claiming the reliefs as above.

4.       The opposite parties 1 and 2 filed a common version denying allegations except to admit the policy taken by the complainant and for the family members and also the claim made by the complainants and since the claim was related to pre-existing disease, the 2^nd complainant had consulted for pain in the right leg as per medical record since 2005 and final treatment in 2012 does not render in ailment itself having occurred only at the time.  Since the policies for cashless treatment facility that is to be decided even before treatment, in the event, there are any circumstances likely to affect the claim damage, it may be denied and the claim considered after completion of treatment based on full medical records and on the basis of the same, the 3^rd opposite party is the full authority to repudiate the claim. The claim of the complainant was repudiated on the basis of earlier disease after investigating report and for the claim of Rs.50,00,000/- (Rupees Fifty Lakhs) as compensation is grossly exaggerated, baseless and abuse of Consumer Protection Act. Hence the complaint is liable to be dismissed.

5.            The 3^rd opposite party, though received notice, remained absent and nor appeared before this Commission on 27.3.2013 and subsequent hearings.

6.          Both side have filed their proof affidavits and on the side of the complainant Ex.A.1 to A.14 were marked and on the side of the opposite parties Ex.B.1 to B.3 were marked.

7.          Points for consideration are as follows:-

1.  Whether the repudiation of the claim amount of Rs.76,809/- towards the medical expenses for the 2^nd complainant by the opposite parties would amount to any deficiency in service?

2.  Whether the complainants are entitled for the sum of Rs. 76,809/- as claimed towards medical expenses?

3.    Whether the complainants are entitled for the claim of Rs.50 lakhs as compensation towards deficiency in service and Rs.3000/- as expenses for notices?

4.     To what relief the complainant is entitled to?

 

Point No 1 and 2 :-

      In their complaint enquiry, it is the admitted case of both side, that the complainants are having mediclaim policy in the name of Health Shield Insurance policy for their family members and for the treatment of the 2^nd complainant for varicose vein problem in the right lower limb, she was admitted in Vijaya hospital on 24.4.2012 and was discharged on 27.4.2012 by claiming a refund of the medical expenses for Rs.76,809/- from the opposite parties which was repudiated by the opposite parties under Ex.A.9 stating that,

     “Any condition, ailment or injury or related condition(s) for which you had signs or symptoms, and/or were diagnosed, and / or received medical advice / treatment, within 48 months prior to your first policy with us would not be payable until 48 months of continuous coverage have elapsed, since inception of the policy with us.

     Pre-Existing condition means any condition, ailment or injury or related condition for which you had signs or symptoms and/or were diagnosed and/or received medical advice/treatment, within 48 months prior to your policy with us”.

        From this repudiation, it is clear that the opposite party contending since the 2^nd complainant having pre-existing disease, it was not disclosed at the time of taking policy 48 months prior to the policy, and it should have happened, for this purpose, the opposite party relied upon the documents under Ex.B.1 and B.2 under Ex.B.3, the repudiation letter as in Ex.A.9, which is one and the same. Under Ex.B.2, the medical records regarding the treatments given to the 2^nd complainant issued by Vijaya hospital in which it is pointed out that under the head “history of present illness”, the patient stated swelling and pain and on the right lower limb which occasionally bleeds, she was diagnosed as well varicose vein and as come for varicose vein system, past medical history during 2005 and under the head and based on these, the opposite parties denied the claim having symptoms of BP since 2005 and varicose vein, had treatment in 2002, whether these contentions could be accepted are the points for deciding the case. The complainant have stated that they are availing the policy from the year 2009 and the 2^nd complainant had treatment only during the year 2011 and she had no previous treatment for the varicose vein before the claim made in 2011, whereas the opposite party contended on the basis of medical records under Ex.B.2, since the 2^nd complainant was having complaint of varicose vein in 2002 and BP in 2005 which were not disclosed in the proposal and as per the exclusion clause of the policy, the claim was repudiated. By considering both side contention and the arguments and on perusal of the materials, the opposite parties repudiated the claim only on the basis of Vijaya hospital medical report under Ex.B.2. On perusal of Ex.B.2, is concerned the entries made on 25.4.2012 under the head “complaints and duration” swelling in right leg – 2002 and below that under the history of “present illness”, patient states swelling and pain in the right lower limb which occasionally bleed, she was diagnosed to have varicose vein and had come for varicose vein system. This apart from these, two entries and no other documents to show that the complainant had continuous treatment for varicose vein from the year 2002 till taking of policy in the year 2009 and except to point out, she had the complaint in the year 2002 and having no past medical history only at 2005 or during 2005 or 2005 to 2011, till she takes treatment at Vijaya hospital, the opposite party failed to prove the continuous treatment for the same with any other records by way of affidavit from concerned medical officer, no investigation report of the opposite parties was filed. In those circumstances, since because the 2^nd complainant was having complaints of swelling in right limb in 2002 and duration from 2005, but it was not proved with any treatment for the same from the year 2002 to 2011 and in those circumstances, even as per the exclusion clause of the policy, those alleged pre-existing condition was in existence for 48 months prior to the policy and there by we are of the view that the claim of repudiation of the claim by the opposite parties, is not proper one and considering the facts and circumstances of the case, when the 2^nd complainant had not made any claim before 2012, if she had really at pre-existing disease having treatment for the same, they would have come forward to claim under the policy for such expenses prior to that  Hence we are of the view, that the repudiation of the claim of Rs.76,809/- towards the medical expenses for the 2^nd complainant repudiated by the opposite parties would amount to deficiency in service and towards the medical expenses and the complainants are entitled for the claim of Rs.76,809/- and these points are answered accordingly.

Point No.3

        The complainants claimed a sum of Rs.50 lakhs as compensation for the deficiency is service on the part of the opposite parties in repudiating the claim. But in view of the discussions, in point No.1, above since the claim was repudiated on the technical grounds on the basis of exclusion clause of the policy, we are of the view that the complainants could not claim such a huge amount as compensation for the same. Further the opposite parties have relied upon the precedent reported in this regard in :-

    II 2012 CPJ 676 (NC)

  in which it is observed as follows :-

 

    “Consumer Protection Act, 1986 – sections 2(1)(g) , 21(a)(i) – Jurisdiction – Medical negligence – quantum of compensation – Determination – complainant should not value claim which is grossly overvalued – complainant has incurred expenditure of Rs.86,050/- only towards medical expenses – compensation for medical negligence or deficiency in treatment has to be commensurate with resultant loss and injury to patient or his heirs – claim of Rs. 3.00 crore for loss of future prospect is not legitimate – complainant has overvalued his claim just to misuse jurisdiction of this Commission – Legitimate valuation of claim cannot exceed Rs.1 Crore – case not fall within pecuniary jurisdiction of this Commission – Modified complaint may be filed before appropriate forum”.

    As per this, even though we are of the view by considering the facts and circumstances of the case, we could direct the complainant to file the complaint before the concerned District Forum as per the above ruling in view of the nature of the case and don’t want to make the parties to have further or deal, we have decided to dispose of  the case by this Commission  itself and by coming to the conclusion that the complainants are not entitled for such huge compensation to the extent of Rs.50 lakhs or any other compensation in this case and this point is answered accordingly.

 

Point No.4   

        In view of the finding in point No 1 and 2 in favour of the complainants, the complaint has to be allowed in part and accordingly

          In the result, the complaint is allowed in part and the opposite parties 1 to 3 are jointly and severally directed to pay a sum of Rs.76,809/- towards medical claim under the policy for the treatment given to the 2^nd complainant with 6% p.a. interest from the date of complaint till date of realisation and also to pay a sum of Rs.5000/- as cost.

           The direction shall be complied within six weeks from the date of this order.

 

P.BAKIYAVATHI                    A.K.ANNAMALAI                          R.REGUPATHI

   MEMBER                             JUDICIAL MEMBER                          PRESIDENT

                                        

                                     ANNEXURE

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT : 

Ex.A1           18.7.2011     Copy of letter by the 2^nd opp.party

Ex.A.2          18.7.2011     copy of the policy of insurance

Ex.A.3          25.4.2012     copy of denial of cashless access by the 3^rd op

Ex.A.4          25.4.2012     copy of the report of the ultrasound Department

Ex.A.5          26.4.2012     copy of serology report

Ex.A.6          27.4.2012     copy of discharge summary

Ex.A.7          17.5.2012     copy of insurance claim application with details

Ex.A.8          28.5.2012     copy of Acknowledgement issued by the 2^nd opp.

                                       party for receiving all the originals

Ex.A.9          19.7.2012     copy of letter of the 1^st opp.party rejecting the

                                      claim

Ex.A.10        4.9.2012      Notice issued by the complainants

Ex.A.11        6.9.2012      copy of receipts issued by the postal department

Ex.A.12        7.9.2012      copy of Acknowledgement for proof of delivery

Ex.A.13        7.9.2012      copy of Acknowledgement for proof of delivery

Ex.A.14        10.9.2012     copy of Acknowledgement for proof of delivery

 

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES : 

Ex.B.1          Copy of policy

Ex.B.2          copy of case sheet

Ex.B.3          copy of Repudiation letter

 

 

P.BAKIYAVATHI                    A.K.ANNAMALAI                          R.REGUPATHI

   MEMBER                             JUDICIAL MEMBER                          PRESIDENT