BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT  HYDERABAD.

FA 483  of 2013  against CC  31/2011, Dist. Forum-I,  Hyderabad

Between:

1)  The Bajaj Allianz  General Insurance Company Ltd.

Rep. by its Authorised Signatory

Head Office : GE Plaza

Airport Road, Yerwada

Pune-411 006.

2)  The Manager

The Bajaj Allianz  General Insurance Company Ltd.

508, V Floor, Navketan Complex

Near Clock Tower,

Secunderabad.                                            ***                         Appellants/

Opposite Parties

                                                                   And

Smt. Thatiparthi Koteswaramma

W/o. Satyanarayana

D.No. 40-16-24, IV Lane

Gopalanagaram, Ongole

Prakasham Dist.                                          ***                         Respondent/

                                                                                                Complainant

Counsel for the  Appellant :                        M/s.   N. Mohana Krishna

Counsel for the  Respondent:                      M/s.  P.S.P. Suresh Kumar

CORAM:

                              SMT. M. SHREESHA, PRESIDING MEMBER

&

                              SRI  S. BHUJANGA RAO, MEMBER

THURSDAY, THE FIFTH DAY OF SEPTEMBER TWO THOUSAND THIRTEEN

ORAL ORDER:  (Per Smt. M. Shreesha, Member)

***

1)                Aggrieved by the order in C.C. No. 31 of 2011 on the file of Dist. Forum-III, Hyderabad   the opposite parties  preferred this appeal.

2)                The brief facts  as stated in the complaint are that the complainant’s daughter   T. Naga Jyothi  had obtained  individual Health Guard policy from the  opposite party insurance company valid from  6.3.2008 to 5.3.2009 wherein  sum assured was Rs. 5 lakhs.   The complainant submits that after obtaining the policy she suffered from some back pain for which she visited  Kamineni Wockhardt Hosptial.  The doctors after conducting various tests opined that she was suffering from  Thoracic Kyuphosis for which they suggested to undergo surgery.   Accordingly, she was admitted  on 24.4.2008 and  while undergoing surgery  on 25.4.2008 she died due to Cardiac Arrest.   The complainant submits that  she being the nominee under the policy laid claim for which the opposite parties  sent  a letter dt. 23.7.2009 to submit further documents.    Accordingly she submitted all the documents required by the opposite parties however they repudiated the claim on  6.10.2009  on the ground of suppression of  pre-existing disease prior to obtaining the policy.   The complainant got issued a legal notice  and the opposite parties sent reply reiterating their  earlier stand.    Hence this complaint praying to direct the Opposite Parties to pay Rs. 5 lakhs covered under the policy with interest @ 24% p.a., from the date of expiry of insured till the date of payment  together with compensation and costs. 

3)                 The opposite parties filed counter stating that the daughter of the complainant was admitted  and treated at the hospital for severe  end stage Kyphosis  a pre-existing disease not covered under the policy.    Her daughter obtained the policy  by making wrong declaration in the proposal.  The claim made by the complainant  is contrary to Clause C1 and 13a of the policy and therefore  they repudiated the claim.   The contract of insurance  is based on principle of  good faith and trust between the insured and the insurer.  The opposite parties submit that before obtaining the policy  it is mandatory for the subscriber to  disclose all the material facts relating to his/her health condition  and any concealment would vitiate the very policy itself.    As there is clear suppression of material information relating to her health at the time of obtaining the policy they are not liable to pay any amount.  

4)                The Dist. Forum based on the evidence adduced i.e., Exs. A1 to A10 and Exs. B1 & B2  and the pleadings put forward allowed the complaint  directing the opposite parties to pay Rs. 5 lakhs   with interest @ 9% p.a., from the date of  repudiation  till the date of  realization together with compensation of Rs. 25,000/- for deficiency of service and Rs. 5,000/- towards costs. 

5)                Aggrieved by the said order, the opposite parties preferred this appeal.

6)                The point for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

7)                Admittedly the daughter of the complainant Ms. Thatiparthi Naga Jyothi, a software engineer  obtained  Health Guard Policy  Ex. A1 from  the opposite party insurance company valid from 6.3.2008  to 5.3.2008 for the sum assured of Rs. 5 lakhs.   Ex. A1 policy under the heading Limit of  Indemnity reads as follows :

Cover1:       Medical expenses – Mentioned in the table below

Cover2:       Ambulance expenses -  Rs. 1,000/- per event of hospitalization

Cover3:       Medical Check up – 1% of average limit of indemnity for cover1. 

                   Over a period 4 years or Rs. 1,000/- whichever is lower.

It is also an admitted fact that   said Ms. Naga Jyothi died  of Cardiac Arrest on 25.4.2008  during the course of surgery at  Wockhard Hospitals evidenced under Ex. A3.  The cause of death reads as follows:

“Intra Operative  Cardiac Arrest during correction of severe end stage  kyphosis.”

          Under the policy  the appellant/opposite party insurance company   is liable to indemnify  the medical expenses, ambulance expenses and medical check up expenses as stated above but not  the sum assured  at  Rs. 5 lakhs  in the event of her death.   The  Dist. Forum  has not  properly  appreciated the limit of indemnity mentioned  in  Ex. A1 policy schedule.  In the instant case  the complainant  is entitled to  actual medical expenses incurred by the complainant.   As  seen from the record  an amount of Rs. 1,59,282/-   was  incurred by the complainant  for her treatment at  Wockhard Hospitals evidenced under Ex. A2 which she was entitled  to  as per the terms of the policy but not the entire sum assured at  Rs. 5 lakhs. 

8)                 Coming to the contention of appellant/insurance company that the deceased had suppressed her ailment  at the time of obtaining the policy and therefore they are not liable to indemnify the medical expenses in the light of  Clauses C1 and 13(a) of the policy,    in this context it is important to note that ‘kyphosis’ is not a disease but only a deformity.  The medical literature relating to Khyphosis  extracted from  Medline Plus – a  service of US National  Library of Medicine reads as follows:  

Kyphosis
Kyphosis is a curving of the spine that causes a bowing or rounding of the back, which leads to a hunchback or slouching posture.

Causes
Kyphosis can occur at any age, although it is rare at birth.

Adolescent kyphosis, also known as Scheuermann’s disease, is caused by the wedging together of several bones of the spine (vertebrae) in a row. The cause of Scheuermann’s disease is unknown.

In adults, kyphosis can be caused by:

Degenerative diseases of the spine (such as arthritis or disk degeneration)
Fractures caused by osteoporosis (osteoporotic compression fractures)
Injury (trauma)
Slipping of one vertebra forward on another (spondylolisthesis)
Other causes of kyphosis include:

Certain endocrine diseases
Connective tissue disorders
Infection (such as tuberculosis)
Muscular dystrophy
Neurofibromatosis
Paget’s disease
Polio
Spina bifida
Tumors
Kyphosis can also be seen with scoliosis. Each cause has its own risk factors.

Symptoms
Difficulty breathing (in severe cases)
Fatigue
Mild back pain
Round back appearance
Tenderness and stiffness in the spine

Exams and Tests
Physical examination by a health care provider confirms the abnormal curve of the spine. The doctor will also look for any nervous system (neurological) changes (weakness, paralysis, or changes in sensation) below the curve.

Other tests may include:

Spine x-ray
Pulmonary function tests (if kyphosis affects breathing)
MRI (if there may be a tumor, infection, or neurological symptoms)
Treatment
Treatment depends on the cause of the disorder:

Congenital kyphosis requires corrective surgery at an early age.
Scheuermann’s disease is treated with a brace and physical therapy. Occasionally surgery is needed for large (greater than 60 degrees), painful curves.
Multiple compression fractures from osteoporosis can be left alone if there are no nervous system problems or pain. However, the osteoporosis needs to be treated to help prevent future fractures. For debilitating deformity or pain, surgery is an option.
Kyphosis caused by infection or tumor needs to be treated more aggressively, often with surgery and medications.
Treatment for other types of kyphosis depends on the cause. Surgery is needed if neurological symptoms or persistent pain develop.

Outlook (Prognosis)
Adolescents with Scheuermann’s disease tend to do well even if they need surgery, and the disease stops once they stop growing. If the kyphosis is due to degenerative joint disease or multiple compression fractures, surgery is needed to correct the defect and improve pain.

Possible Complications
Decreased lung capacity
Disabling back pain
Neurological symptoms including leg weakness or paralysis
Round back deformity
Prevention
Treating and preventing osteoporosis can prevent many cases of kyphosis in the elderly. Early diagnosis and bracing of Scheuermann’s disease can reduce the need for surgery, but there is no way to prevent the disease.

Alternative Names
Scheuermann’s disease; Roundback; Hunchback; Postural kyphosis

9)                It is evident from the above that Kyphosis can occur at any age, although it is rare at birth.   Even assuming that  she falls under the category of rarest of rare cases  and that she  had this deformity right from her child hood,   at the time,   when the insurance company  issued the  Health Guard Policy,  even  to the naked eye,  it is visible that  she had some deformity or disorder.    If that  is the case, when knowingly the insurance company  issued the policy  that she had some disorder or deformity now  they are estopped from contending that  the complainant is not entitled to even the medical expenses incurred by the complainant as it falls  under clauses C1 and 13(a) of the policy.  It is needless to emphasize that at the time of receiving the premiums  by the insurance companies  either directly or through their agents  all these technicalities  would not appear,  but only at the time when the claims are made they start raising all these  objections.   The principle of  uberimma fides  applies to both the parties.  The consumers obtain the policies  with a fond hope  that the insurance companies would indemnify  them in case of  untimely death  of their dear ones or  loss of limbs or  any such eventuality.   Hence, the contention of  appellant/opposite party insurance company is  that they are not liable to refund the medical expenses is unsustainable. 

10)               For the foregoing reasons,  in the facts and circumstances of the case, we are of the opinion that the complainant is entitled to an amount of Rs. 1,59,282/-   covered under the policy with interest @ 9% p.a., from the date of repudiation till  the date of payment  and  we also set-aside the compensation of Rs. 25,000/- awarded by the Dist. Forum while confirming the costs of Rs. 5,000/-  imposed on the insurance company.

11)               In the result this appeal is allowed in part  modifying the order of the Dist. Forum.   Consequently, the complaint is allowed in part directing the opposite party insurance company to pay Rs. 1,59,282/- with interest @ 9% p.a., from the date of repudiation i.e., from 6.10.2009  till the date of payment together with costs of Rs. 5,000/- awarded by the Dist. Forum.   Since we are awarding interest  on the said amount, compensation of Rs. 25,000/-  awarded by the Dist. Forum is set-aside.  There shall be no order as to costs in the appeal.  Time for compliance four weeks. 

1)      _______________________________

PRESIDING MEMBER 

2)           ________________________________

MEMBER  

*pnr                                                                               05/09/2013

UPLOAD - OK