KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACADU THIRUVANANTHAPURAM
APPEAL NO: 83/2007
JUDGMENT DATED:09..02..2011.
PRESENT
SRI. M.V. VISWANATHAN : JUDICIAL MEMBER
National Insurance Company Ltd.,
R/by its Administrative Officer, : APPELLANT
Kochi Regional Office, Muthoot Towers,
MG Road, Kochi – 35.
(By Adv:Sri. Jacob Mathew)
Vs.
Santhoshkumar.P.B,
Panaparambil House, L3/43 Ashok Nagar, : RESPONDENT
Ayyathole, Thrissur.
(By Adv:Sri.Pramji Paul)
JUDGMENT
SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER
Appellant was the opposite party and the respondent was the complainant in OP.761/02 on the file of CDRF, Thrissur. The complaint therein was filed alleging deficiency of service on the part of the opposite party/National Insurance Company Ltd in repudiating the insurance claim preferred by the complainant under Jeevan Raksha Insurance Policy. The the complainant claimed Rs.34,189.29 towards the medical expenses and Rs.5000/- as compensation with cost of Rs.1500/-.
2. The opposite party/National Insurance Company Ltd entered appearance and filed written version denying the alleged deficiency of service. The opposite party justified their action in repudiating the insurance claim on the ground that the insurance claim preferred by the complainant is not covered by the insurance policy viz. Jeevan Raksha Insurance Policy; that the treatment undergone by the complainant was for a disease which was pre-existing. Thus, the opposite party prayed for dismissal of the complaint.
3. Before the Forum below, the complainant was examined as PW1. Exts.P1 to P7 documents were also marked on the side of the complainant. From the side of the opposite party RW1, Dr. Sunny Pazhayattil was examined. Ext.X1 case sheet of Mother Hospital, Thrissur with respect to the treatment of the complainant at that hospital was marked through RW1. Ext.R1 to R11 documents were also marked on the side of the opposite party. On an appreciation of the evidence on record, the Forum below passed the impugned order dated:5th January 2007 allowing the complaint and directing the opposite party to pay to the complainant Rs.34,189/- towards medical expenses with interest at the rate of 12% per annum from 21/6/2002 till realization. The opposite party was also directed to pay compensation of Rs.3000/- for mental agony and financial loss with cost of Rs.1,500/-. Hence the present appeal by the opposite party/National Insurance Co. Ltd.
4. When this appeal was taken up for final hearing, there was no representation for the respondent/complainant. This commission was pleased to hear the learned counsel for the appellant/opposite party. The counsel for the appellant submitted his arguments based on the grounds urged in the memorandum of the present appeal. He much relied on Ext.X1 case sheet maintained by Mother Hospital Private Ltd, Thrissur with respect to the treatment of the respondent/ complainant. He also relied on the testimony of RW1and argued for the position that the claim preferred by the respondent/complainant is legally unsustainable as the said claim was not covered by the insurance policy, viz, Jeevan Raksha Insurance Policy. It is further submitted that the complainant/respondent undergone treatment for IVDP L-4-5, L-5-S1 with foot drop and the said disease was a pre-existing disease and the same is excluded by the insurance policy. Thus, the appellant prayed for setting aside the impugned order passed by the Forum below.
5. The points that arise for consideration are:-
1. Whether there was any deficiency of service on the part of the appellant/opposite party/National Insurance Co.Ltd in repudiating the insurance claim preferred by the respondent/complainant under Jeevan Raksha Insurance Policy?
2. Whether the Forum below can be justified in passing
the impugned order dated:5th January 2007 directing the
appellant/opposite party/Insurance company to pay the
medical expenses of Rs.34,189/-incurred by the
complainant with compensation of Rs.3000/- and cost of
Rs.1500/-?
6. Point Nos:1 and 2:-
There is no dispute that the respondent/complainant had taken Jeevan Raksha Insurance Policy for the period from 19/9/2000 to 18/9/2005. Ext.P1 is the insurance certificate issued by the appellant/opposite party under Jeevan Raksha Insurance Policy with policy NO.570704/47/99/9600781. It is dated:19/9/2000. It would show that P1 insurance certificate was issued subject to the conditions and exclusions incorporated in the policy issued to the insured. The complainant has also produced copy of the very same insurance certificate and marked as Ext.P6. Admittedly the complainant preferred insurance claim for Rs.34,189.29. Ext.R2 is the Group Personal Accident Hospitalization Benefit Claim form submitted by the complainant. Ext.R4 is the medical report submitted by the complainant along with R2 claim form. The aforesaid claim was repudiated by the insurance company. Ext.P2 is the repudiation letter dated:4/10/2002 issued by the appellant/opposite party/insurance company. As per P2 repudiation letter, the said claim was repudiated under exclusion clause No.4.1 of the insurance policy. It is also stated as follows:-
‘!\<ZG7 %\:_T,Ha9[NL LU\gTMea `=*TC^, \5T*a3LW[3 \C+ `=*TC^ \=TJUHUBUO \/CWk8U<a AWN=Wm !HW+AT[7ka *T7WkW&’ Thus, it can be seen that the insurance claim preferred by the respondent/complainant was repudiated on the ground that the aforesaid disease was a pre-existing disease. It would also show that the claim was repudiated based on the report of the investigator and the doctor’s document. It is because of the aforesaid repudiation, the complaint in OP.761/02 was filed.
7. As per R2 claim form the case of the complainant/insured was that he sustained injury in an accident while walking in his house at Elathuruth. The time and date of the accident is shown as 8.pm on 19/5/2002 at his house in Elathuruth. The nature of the accident or how it occurred is stated as “when walking skid away from steps”. The nature of the injury sustained is also stated as follows:-
“When walking at house skid away from steps” disc prolapse L-4-5, L-5-S1 levels. The name of the doctor who treated the insured is shown as professor, Dr.Sunny Pazhayattil, Ortho Peadic Surgeon, Mother Hospital, Thrissur. The period of treatment as inpatient is shown as 20/5/2002 to 27/5/2002. It can be seen that the patient was discharged from Mother Hospital, Thrissur on 27/5/2002 and the expenses incurred is shown as Rs.34,189.29.
8. There is no dispute that the respondent/complainant being the insured under P1 Jeevan Raksha Insurance Policy is entitled to get the treatment expenses as an inpatient in a hospital/nursing home for an amount up to Rs.1.lakh. It is to be noted that the aforesaid treatment must be in connection with bodily injury sustained in an accident. As per R2 claim form, the complainant/insured sustained the injury on 19/5/2002 at 8 pm in his house at Elathuruth and the said accidental injury sustained while walking he skid away from steps and thereby sustained disc prolapse L-4-5, L-5-S1 levels and for the said injury he was admitted in Mother Hospital on 20/5/2002 and discharged from the hospital on 27/5/2002. He was treated by the Orthopeadic Surgeon, Professor Dr.Sunni Pazhayattil and the complainant/insured incurred a sum of Rs.34,189.29.
9. The case of appellant/opposite party/insurance company is that the complainant/insured had disc prolapse L-4-5, L-5-S1 levels even prior to the taking of P1 insurance policy and that the said disc prolapse was pre-existing disease and he had no such fall or accidental injury as alleged. The appellant/opposite party/insurance company much relied on Ext.X1 case sheet, maintained at Mother hospital, Thrissur in connection with the treatment of the complainant/insured at that hospital. The appellant has also relied on the testimony of RW1 Dr.Sunny Pazhayattil who treated the complainant/insured at Mother Hospital, Thrissur. Ext.X1 case sheet would make it abundantly clear that the complainant had consultation at Mother hospital, Thrissur on 17/3/2000 and on that day the respondent/complainant had consultation with Dr.Sunny Pazhyattil. For the aforesaid consultation at Mother Hospital, the complainant was allotted MRD No.52852. The diagnosis is shown as IVDP (Intra Vertebral Disc Prolapse), Sciatica. Ext.X1 case sheet would also show, thereafter the complainant/insured had the consultation at Mother Hospital, Thrissur on 20/5/2002. The diagnosis on 20/5/2002 was weakness of left foot and on examination foot drop left side was detected. The complainant was admitted as an inpatient in that hospital on 20/5/2002. Ext.X1 case sheet would also make it clear that the complainant (patient) is having left side L5 Radiculopathy with foot drop since one week and that MRI Lumbar Spine showed degeneration of L-4-5 and L-5-S1 disc. Severe disc herniation, extrusion and cordial migraine of L4-5 disc, and moderate disc herniation at L5-S1, especially of (L) side compressing L5 and S1 roots. It was suggested in L-4-5 and L-5-S1 discectomy. Ext.X1 case sheet would also show that on 21/5/2002 the complainant as patient was posted for laminectomy and discectomy under general anesthesia on 22/5/2002. It was also suggested to get the consent for the said surgical procedures. Thereby on 22/5/2002 Hemi laminectomy at L-4, L-5 level and discectomy at L-4-5 L5–S1 level. The surgery was conducted by the Professor Dr.Sunny Pazhayattil under general anesthesia. The complainant as patient continued as inpatient. He was discharged from the hospital on 27/5/2002. He had numbness of left lower limb following walking. On discharge he was advised for review after 7 days. Thereafter on 3/6/2002 the sutures were removed. The complainant came for review on 10/6/2002 and he was referred to another doctor for partial weakness and numbness of left foot.
10. A perusal of X1 case sheet would make it clear that up to 9/6/2002 there was no case for the complainant (patient) with respect to any fall. He has no case that he had fell at his house or anywhere else. X1 case sheet would show that on 17/3/2000 the complainant had consultation with Dr.Sunny Pazhayattil at Mother Hospital, Thrissur and the disease was IVDP and some medicines were prescribed for the aforesaid ailment. Thereafter, the patient had consultation on 20/5/2002 at Mother Hospital, Thrissur and he had consultation with Dr.Sunny Pazhayattil. The complainant (patient) had the complaint of weakness of left foot and foot drops. It was detected as disc prolapse due to degeneration of L4-L5, L5-S1 disc. The patient was admitted on 20/5/2002 and on 21/5/2002 he was posted for laminectomy and discectomy and the aforesaid surgical procedures were performed by Dr.Sunny Pazhayattil on 22/5/2002. Thereafter the patient was discharged on 27/5/2002. Till his discharge, on 27/5/2002 the complainant had no case of any fall on the ground at his house or anywhere else. But, only on 10/6/2002 the complainant developed the case of a fall on his back on 15th May 2002. It is to be noted that on 10/6/2002 there is an entry in X1 case sheet regarding the history of fall on his back on 15th May 2002. Had there been any such fall on 15th May 2002 or on 19th May 2002 that fact should have been referred to in X1 case sheet on 20/5/2002 or on the subsequent days till 27/5/2002, the date on which the patient was discharged from Mother Hospital. It is also to be noted that sutures were removed on 3/6/2002. On that day also the complainant had no case regarding a fall on his back. So, the case of the complainant regarding fall on his back can only be treated as a cooked up story to substantiate his insurance claim under the Jeevan Raksha Insurance Policy.
11. The recitals in the written complaint in OP.761/02 would make it clear that the complainant preferred the insurance claim on 25/6/2002. This would give an indication that immediately after the complainant’s discharge from the hospital he thought of getting the treatment expenses reimbursed through Jeevan Raksha Insurance Policy. It is after the complainant’s discharge from the hospital on 27/5/2002 he thought of getting the medical expenses reimbursed. So, he tried to develop the story of a fall at his house and as a result of the alleged accidental fall, the complainant sustained injury. So, this circumstance would give an indication that the story of fall on his back can be treated as an after thought to get the insurance claim under the Jeevan Raksha Insurance Policy.
12. Another important aspect to be noted at this juncture is the date of the accidental fall mentioned in R2 group personal accident hospitalization benefit claim form which was submitted by the complainant for getting the insurance claim for Rs.34,189.29. In R2 claim form the date of the accident is shown as 19/5/2002 at his house Elathuruthu. It is also stated that he had a skid away from steps while walking. But in X1 case sheet the date of the alleged fall is noted as 15/5/2002. This inconsistency regarding the date of fall would also create genuine doubt about the case of the complainant regarding accidental fall. No explanation is forthcoming from the side of the complainant for the aforesaid inconsistency. No explanation is also forthcoming from the side of the complainant as to why he omitted to disclose the alleged history of fall on 20/5/2002 when he had consultation with Dr.Sunny Pazhayattil at Mother Hospital, Thrissur. It is also to be noted that on 20/5/2002 up to 10/6/2002 there is no whisper in Ext.X1 case sheet regarding such accidental fall. On the other hand, it would only show that the case of accidental fall came into the picture only on 10/6/2002. This is a strong circumstance that the story of fall on his back was developed to get the medical expenses reimbursed through Ext.P1 insurance policy.
13. The doctor who treated the respondent/complainant at Mother Hospital, Thrissur has been examined before the Forum below as RW1. Ext.X1 case sheet was proved through RW1. Dr.Sunny Pazhayattil as RW1 has categorically deposed that the complainant as patient had the first consultation on 17/3/2000 and on that day the complainant had Intra Verticular Disc Prolapse with Sciatica. The complainant had the next consultation on 20/5/2002. On that day he was having weakness on left foot of one week duration. After the surgical procedures he was discharged on 27/5/2002. He also admitted the letter received from the insurance investigator and R3 reply dated:28/4/2003 issued by him. The evidence of RW1 would show that the surgery was conducted because the patient had foot drops and for the foot drop, RW1 conducted surgery of L-4-5 and L5 – S1 level and that the surgery was conducted to remove the disc prolapse. It is categorically deposed by RW1 that the aforesaid surgery was conducted to remove the disc prolapse. It is further deposed that the compression of L4-L5 caused foot drop. It is also deposed by RW1 that on 17/3/2000 the patient (complainant) was having IVDP (Intra Verticular Disc Prolapse) and on 17/3/2000 the patient complained of pain and the doctor detected IVDP. There is no case for RW1 that the complainant told him that he had a fall on his back at any place.
14. It can be seen that the complainant had IVDP as early as on 17/3/2000. The Jeevan Raksha Insurance Policy was taken only on 19/9/2000. It would suggest that the disease of IVDP was there even prior to the taking of the Jeevan Raksha Insurance Policy. Thus, it can be concluded that on 17/3/2000 itself the complainant/insured was having the disease of IVDP. The evidence of RW1 would show that the foot drop occurred because of IVDP. In other words, it is deposed by RW1 that the compression of L4-L5 caused foot drop and by doing surgery the part of L4-L5 and L5-S1 were removed and that the said surgery was conducted for removal of the disc prolapse. The testimony of RW1 and X1 case sheet would make it abundantly clear that the IVDP was the disease which resulted in causing compression of L4, L5-S1 and it caused foot drop. It would also make it crystal clear that on 17/3/2000 itself the complainant/insured was having IVDP, ie disc prolapse. The expenses of Rs.34,189/- was incurred for the medical treatment including the surgical procedures. So, the expenses incurred can be considered as the medical treatment expenses for the pre-existing disease of IVDP. If that be so, the appellant/opposite party/Insurance Company is perfectly justified in repudiating the insurance claim as the claim is not covered by P1 Jeevan Raksha Insurance Policy. The appellant/opposite party/insurance company is also justified in taking the contention that the claim has excluded by exclusion clause No.4.1 of the Jeevan Raksha Insurance Policy.
15. The Forum below has given a wrong interpretation to the testimony of RW1, Dr.Sunny Pazhayattil. The mere fact that RW1 has given an answer to a general question as to whether surgery is the only mode of treatment for disc prolapse. It is true that RW1 has stated that in majority cases of disc prolapse and foot drop there are alternative mode of treatment other than surgery. But the Forum below was of the view that the surgical procedure was adopted only for foot drop. But the Forum below failed to anlyse and appraise the evidence of RW1 in its correct perspective. It is pertinent to note that RW1 has categorically deposed that the surgery was done for disc prolapse and that the disc prolapse caused compression of nerves and had resulted in foot drop. The evidence on record would make it abundantly clear that the foot drop was caused due to compression at L-4 - L-5 level and that the said compression was on account of the disc prolapse. Thus, it can be concluded that the surgery was conducted for disc prolapse. There is nothing on record to show that the disc prolapse was caused on account of any accident like a fall etc. It is also to be noted that RW1 has only deposed that a patient having disc prolapse may get the disease of disc prolapse aggravated by a fall from certain height. The mere fact that fall may aggravate the disc prolapse cannot be taken as a ground to hold that the disc prolapse occurred on account of the fall. More over, in the present case in hand there is nothing on record to show that the complainant/insured had any such fall as alleged. The aforesaid case of alleged fall cannot be believed for a moment because of the inconsistency regarding the date of the alleged fall. At one place it is stated that the fall occurred on 15/5/2002 and yet another place it is stated that the alleged fall was on 19/5/2002. It is further to be noted that there is no whisper in Ext.X1 case sheet regarding the fall when the complainant approached RW1, Dr.Sunny Pazhayattil on 20/5/2002 at Mother Hospital, Thrissur. All these circumstances would go to show that the alleged case of fall is only a cooked up story which was created or developed for getting the insurance claim. So, the Forum below cannot be justified in allowing the complaint in OP.761/02 by giving benefit of doubt infavour of the complainant. On the other hand, it can be seen that the IVDP at L4-5, L5 – S1 level was a pre-existing disease. The appellant/opposite party/insurance company is perfectly justified in repudiating the insurance claim.
16. The case of the appellant/opposite party/insurance company is further fortified by the report submitted by the insurance investigator. Ext.R3 is the report/letter submitted by the insurance investigator stating that the IVDP was a pre-existing disease. Ext.R3 report is fortified by the letter dated:28/4/2003 issued by Dr.Sunny Pazhayattil. The aforesaid letter is attached along with the report submitted by the insurance investigator. The aforesaid report is also fortified by Ext.R8 letter issued by the mother of the complainant/insured. In R8 letter it is stated that the complainant had a fall 3 years back while the complainant was working in a gulf country. The aforesaid letter would also belie the case of the complainant that he had a fall during May 2002. In all respects, the insurance claim preferred by the respondent/complainant is to be treated as unsustainable. The appellant/opposite party cannot be found fault with in repudiating the insurance claim preferred by the respondent/complainant. In effect there was no deficiency of service on the part of the appellant/opposite party in repudiating the insurance claim. The impugned order passed by the Forum below is liable to be quashed and the complaint therein is to be dismissed. These points are answered accordingly.
In the result the appeal is allowed. The impugned order dated:5/1/2007 passed by CDRF, Thrissur in OP.761/02 is set aside and the complaint therein is dismissed. The parties to this appeal are directed to suffer their respective costs throughout.
M.V. VISWANATHAN : JUDICIAL MEMBER
VL.
