COMPLAINT FILED: 01.12.2009<br /> DISPOSED ON: 01.06.2010 <br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 1ST JUNE 2010<br /> <br /> PRESENT:- SRI. B.S. REDDY PRESIDENT<br /> <br /> SMT. M. YASHODHAMMA MEMBER <br /> <br /> SRI. A. MUNIYAPPA MEMBER <br /> COMPLAINT NO.2831/2009<br /> <br /> COMPLAINANT Mr. Nitin Wagh,<br /> # 3596, 13th ‘G’ Main and <br /> 5th Cross, HAL 2nd Stage,<br /> Bangalore – 560 025. <br /> <br /> In Person<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTY Royal Sundarem Alliance Insurance Company Ltd.,<br /> 132, 2nd Floor, <br /> Maangalya Punarbhav,<br /> Brigade Road,<br /> Bangalore – 560 025.<br /> <br /> O R D E R S<br /> <br /> SRI. B.S. REDDY, PRESIDENT <br /> <br /> The complainant filed this complaint seeking direction against the Opposite Party (herein after called as O.P) claiming medical reimbursement of Rs.48,140/- with compensation of Rs.50,000/- and further to refund the insurance premium of Rs.24,070/- on the allegations of deficiency in service on the part of the OP. <br /> <br /> 2. The case of the complainant is that he has purchased yearly plan of health shield insurance for himself and his family from OP through their agent Bajaj Capital on 10.07.2007. Since then he has renewed health insurance twice by paying yearly premium. Since July – 2007 till he made a claim on 01.10.2009 he had never made any claims for health related reasons. Total premium paid him is Rs.24,070/-, the plan sold to him as hassle free plan without the need to undergo any medial tests, by bajaj capital. <br /> <br /> It is stated that the complainant had some breathless on 10.09.2009 and had to undergo medical tests. In these tests it was noticed that efficiency factor (EF) was low. He got admitted into Wockhardt hospital on 14.09.2009 under Dr. Padmakumar. In angiography result doctor did not find any blocks. Hence complainant put on medication for two days and released from the hospital with medication prescription. He submitted the claim forms with all documents to OP through the agent. OP rejected the claim as per letter dated 16.10.2009 stating reasons as he had preexisting ailment, hence OP is not liable to reimburse the medical expenses. The complainant never been hospitalization before nor he had any signs or symptoms of this ailment as claimed in the letter denying the claim issued by OP. Thus the complainant claims with OP had cheated him, the medical expenses are to be reimbursed and compensation of Rs.50,000/- is to be awarded as compensation towards mental agony and stress. <br /> 3. On appearance, OP filed the version admitting that the complainant availed health shield gold policy from OP and OP has provided cover subject to specific terms and conditions as stipulated in the policy. It is admitted that complainant was admitted for treatment of dilated cardiomyopathy along with diabetes from 14.09.2009 to 16.09.2009 in M/s Wockhardt Hospital at Bangalore. The claim of the complainant was referred to penal or third party administrator medical experts who opined that the complainant was suffering from pre-existing ailment. OP thoroughly examined the medical documents and the claim file was referred to the independent third medical expert, who opined that the dilated cardiomyopathy of 31% must have been for a long time even before taking the policy on 10.07.2007. The claim of the complainant was rejected as the same was inadmissible since the medical experts opinion clearly showed that complainant was suffering a pre-existing disease; as the echo report showed that dilated cardiomyopathy with global hypokinesia 31% with severe LV dysfunction cannot have been existed without signs or symptoms prior to inception of the policy and hence the claim of the complainant is not maintainable. OP carefully scrutinized the medical records and discharge summary of the complainant and after proper application of mind concluded the treatment underwent by the complainant was pre-existing. The terms of the policy provides that the company shall not be liable under this policy for any claim in connection with or in respect of Pre-existing diseases. The complainant has not disclosed the pre-existing decease while taking the policy. The hospitalization expenses is only Rs.48,140/- and it is denied that insured had spent on Rs.98,140/- for treatment which has been claimed in the claim form. Hence it is prayed to dismiss the complaint with costs.<br /> 4. The complainant filed response to version filed by OP contending that OP is trying to avoid paying the claimed amount by giving frivolous reasons. He did not have symptoms relating to the diagnosis, he had no pre-existing symptoms; the first symptom that he had breathlessness was on 10.09.2009. Thus it is submitted to reject the version filed by OP. <br /> <br /> 5. In order to substantiate the complaint averments, the complainant filed affidavit evidence and produced documents. The Senior Executive – Legal of the OP filed the affidavit evidence in support of the defence version and produced documents. <br /> <br /> 6. Arguments on both sides heard. The Points for now that arise for our consideration:<br /> <br /> Point No.1:- Whether the complainant has proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> Point No.2:- Whether the complainant is entitled<br /> for the reliefs now claimed?<br /> <br /> Point No.3:- To what Order?<br /> <br /> 6. We record our findings on the above points are:<br /> <br /> Point No.1:- In Affirmative. <br /> Point No.2:- Affirmative in part. <br /> Point No.3:- As per final Order.<br /> <br /> R E A S O N S<br /> <br /> 7. At the out set it is not in dispute that the complainant purchased yearly plan of health shield insurance effecting from 10.07.2007 from OP and renewed the same every year by paying the yearly premium charges covered up to 09.07.2010. The total premium paid for the period of 3 years is Rs.24,070/-. The complainant has produced the premium paid receipts marked as Annexure A-1, A-2 and A-3. The complainant had some breathlessness problem on 10.09.2009 and he had undergone medical tests, in the said tests it was noticed that has Efficiency Factor (CF) was low and he was advised to get angiography done to rule out any blocks in his arteries. He was admitted to Wockhardt hospital on 14.09.2009. The angiography was done; the doctor did not find any blocks in the arteries. He was put on medication for two days and discharged from hospital with medical prescription. The copies of the hospital bills, payment receipts are produced, the same are marked as Annexure B-1 to B-13. The total amount paid towards the hospitalization charges is Rs.48,140/-. OP in the version has admitted the fact of complainant having paid that much amount towards medical expenses. The complainant claimed the said amount from OP under the policy in existence; OP rejected the same on the ground that at that time of obtaining the policy the complainant has not disclosed pre-existing ailment. Hence the claim repudiated. <br /> <br /> 8. OP has produced copy of the TPA’s opinion marked as exhibit -1 which reads: <br /> <br /> “The member is enrolled under the policy from 10.07.2007. ECHO report shows dilated cardiomyopathy with global hypokinesia, EF 31 percent with severe LV dysfunction. As per the opinion of the doctors the member is diabetic for last 2 years which is the pre-disposing factor of dilated cariomyopathy. Considering the policy duration and the severity of ailment, it is unlike that the member has no symptoms 48 months prior to the inception of policy. Hence this claim is not admissible and not payable”. <br /> <br /> The other document produced is the medical experts opinion marked as Exhibit -2 which reads:<br /> <br /> “Mr. Nitin Wagh was admitted on 14.09.2009 and discharged on 16.09.2009. He is known case of idiopathic dilated cardiomyopathy, diabetic. He was admitted with breathing difficulty and underwent treatment. Dilated cardiomyopathy of 31% must have been for a long time even before taking the policy on 10.07.2007 even though it may or may not have the symptoms of the disease.” <br /> <br /> 9. OP has not produced any documents of the hospital / clinic showing that the complainant had the symptoms of the dieses at any time earlier to 10.07.2007 the date on which he had taken the policy. As per exhibit -2 dilated cardiomyopathy of 31% must have been for a long time even before taking the policy on 10.07.2007, even though it may or may not have the symptoms of the disease. TPA’s opinion as per exhibit – 1 states: “considering the policy duration and the severity of ailment it is unlike that the member has no symptoms 48 months prior to the inception of policy”. In our opinion without there being any supporting material that the complainant had pre-existing ailment and he has not disclosed the same, while obtaining the policy, OP was not justified in repudiating the claim only on the basis of exhibit -1 and 2. From the affidavit evidence of the complainant it is crystal clear that for the first time he had the first symptom of breathlessness on 10.09.2009. Even if a person is having symptoms of diseases earlier to the policy unless it was known to him and even after knowing the same he has not disclosed at the time of obtaining the policy, then it can be accepted that the company is not liable on account of non discloser of pre-existing diseases. In 2007 CTJ 131 (CP) Praveen Damani V/s Oriental Insurance Co. Ltd., the Hon’ble National Commission held that:<br /> <br /> “The District Forum also relied on Clause 4.1 of the policy which states that it is not material whether the insured had knowledge of the disease or not, and even existence of symptoms of the disease prior to effective date of insurance enables the Insurance Company to disown the liability.<br /> <br /> If this interpretation is upheld, the Insurance Company is not liable to pay any claim, whatsoever, because every person suffers from symptoms of any disease without the knowledge of the same. This policy is not a policy at all, as it is just a contract entered only for the purpose of accepting the premium without the bonafide intention of giving any benefit to the insured under the garb of pre-existing disease. Most of the people are totally unaware of the symptoms of the disease that they suffer and hence they cannot be made liable to suffer because the Insurance Company relies on their Clause 4.1 of the policy in a malafide manner to repudiate all the claims. No claim is payable under the medi-claim policy as every human being is born to die and diseases are perhaps pre-existing in the system totally unknown to him which he is genuinely unaware of them. Hindsight everyone relies much later that he should have known from some symptom. If this is so every person should do medical studies and further not take any insurance policy. Even on the facts on record, there is no material to show that the petitioner had any symptoms like chest pain etc., prior to 11th August, 2000. Since, there were no symptoms, the question of linking up the symptoms with a disease does not arise. In any case, it is the contention of the complainant that he was thoroughly checked up by the Doctors who were nominated by the Insurance Company and at that time he was found hale and hearty. In such set of circumstances, it would be difficult to arrive at the conclusion that the insured had suppressed the pre-existing disease. <br /> <br /> In view of the above discussion and from the records available before us, in our opinion, the complainant has proved that he was unaware of the disease at the time of taking the policy and hence the complaint is allowed.” <br /> <br /> In 2008 CTJ 347 (CP) National Insurance Company Ltd., V/s Raj Narain relying on the earlier decision noted above the Hon’ble National Commission held that:<br /> <br /> “Most of the people are totally unaware of the symptoms of the disease that they suffer from. Therefore, an insurance company cannot be allowed to take advantage of the exclusion clause of pre-existing disease of its mediclaim policy to repudiate the claim preferred by an insured.”<br /> <br /> The ratio of the above two cases are aptly applicable to a great extent to the facts of this case. Under these circumstances we are of the view that failure of OP in not settling the claim and repudiating the same without valid and justifiable grounds is deficiency in service on the part of the OP. It is not in dispute that the complainant has incurred total hospitalization expenses to the extent of Rs.48,140/-. The complainant has claimed an amount of Rs.50,000/- towards compensation for mental agony and harassment. The amount claimed is at a higher side. However taking into consideration of all the facts and circumstances, we are of considered view that justice would be met by awarding compensation of Rs.20,000/- towards mental agony and harassment. Accordingly we proceed to pass the following:<br /> <br /> O R D E R<br /> <br /> The complaint filed by the complainant is allowed in part. OP is directed to settle the medical reimbursement claim of Rs.48,140/- and pay compensation of Rs.20,000/- with litigation cost of Rs.3,000/- to the complainant within 4 weeks from the date of communication of this order. <br /> <br /> Send the copy of this order to both the parties free of cost.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 1st day of June 2010.) <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> Snm: <br />