BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 31st of January 2011
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.158/2010
(Admitted on 15.05.2010)
Mrs.Tressie Menezes,
Aged about 39 years,
Wo. Mr.Richard Gonsalves,
RA. Rithesh Cottage,
23 7 1, Kanchalguri Kulshekar Choki,
Mangalore 575 005.
Working as Librarian,
Sty.Agnes P.U. College, Bendore,
Mangalore 2. …….. COMPLAINANT
(Advocate for the Complainant: Sri.K.Balaraj Rai).
VERSUS
Star Health and Allied Insurance Co. Ltd.,
No.14 2 104 24, City Light Building,
Balmatta Road, Mangalore 575 001.
Rep. by its Authorized Signatory. ……. OPPOSITE PARTY
(Advocate for the Opposite Party: Sri.Anil Kumar K).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming certain reliefs.
The brief facts of the case are as under:
The Complainant insured under the Family Health Optima Insurance policy bearing No.P/141211/01/2009/004336 which was valid from 30.11.2008 to 29.11.2009.
It is stated that, the Complainant during the currency of the policy issued by the Opposite Party admitted to Fr. Muller’s College hospital for a complaint regarding the pain in her abdomen and she has treated there as an inpatient from 21.2.2009 to 23.2.2009 and spent Rs.7,500/- for her treatment. After discharge from the hospital, Complainant has submitted all the original bills but the Opposite Party rejected the claim upon the ground that, the disease was pre–existing. The rejection of the claim amounts to deficiency. Hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Party to pay the claim amount of Rs.7,500/- and also claimed Rs.7,000/- as compensation and cost of the proceedings.
2. Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version stated that, the ailment complained of by the Complainant was pre-existing one and the same is not covered under exclusion clause No.1 of the policy and the Complainant has suppressed the pre- existing disease in her proposal form, hence the Opposite Party is not liable to reimburse the medical claim and stated that, there is no deficiency and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Party has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Mrs.Tressie Menezes (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on her. Ex C1 to C9 were marked for the Complainant as listed in the annexure. One Mr.Melwyn D’Souza (RW1), Branch Manager of the Opposite Party filed counter affidavit and answered the interrogatories served on him. Ex R1 to R6 were marked for the Opposite Party as listed in the annexure. Both parties produced notes of arguments along with citations.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
It is admitted that, the Complainant was the Mediclaim Health Policy Holder with the Opposite Party bearing policy No.P/141211/01/2009/004336 and the same was valid from 30.11.2008 to 29.11.2009 (as per Ex C1). The above said policy covers the insured i.e., Complainant and her family members residing with her.
The grievance of the Complainant is that, during the currency of the policy, Complainant was admitted to Fr. Muller’s Hospital Mangalore for a complaint regarding the pain in her abdomen and she was treated there as an inpatient from 21.2.2009 to 23.2.2009 and spent Rs.7,500/- for the treatment. After the discharge, the Complainant submitted original bills and discharge summary but the Opposite Party rejected the claim of the Complainant stating that, the disease was pre-existing which is not correct, amounts to deficiency and came up with this complaint.
The Opposite Party on the other hand stated that, as per the medical records, the Complainant undergone treatment for inflammatory colitis. The hospital record reveals that, the Complainant was admitted to Fr. Muller’s hospital for inflammatory colitis suspected since one year and stated that the Complainant has suppressed the material facts as to her health condition while obtaining the Ex R1 from the Opposite Party, therefore, she is not entitled to avail benefit as per exclusion clause No.5 and produced Ex R1 to R6.
The Complainant also filed affidavit by way of oral evidence and produced Ex C1 to C9.
On scrutiny of the oral as well as documentary evidence placed on record, we find that, the policy and the sum assured and the period of coverage are not in dispute. Even the date of admission, the date of discharge from Fr.Muller’s Hospital Mangalore are not in dispute. The contention of the Opposite Party is that, the ailment complained of by the Complainant was pre-existing and the same is not covered under the exclusion clause of the policy and the Complainant has suppressed the pre- existing disease in her proposal form. However, we have perused the policy i.e., Ex R1 wherein, the Exclusion Clause 5 reads thus:
The Company shall not be liable to make any payments under this policy in respect of any expenses what so ever incurred by any insured person in connection with or in respect of:
5. The exclusions 2, 3 and 4 shall not however apply in case of the Insured Person/s having been covered under any insurance scheme with any of the Indian Insurance Companies for a continuous period of preceding 12 months/24 months respectively without any break.
The Ex C8 i.e., the Health card issued by the United India Insurance Company Limited to the Complainant was valid from 30.11.2007 to 29.11.2008 and the another policy Ex C9 i.e., Hospitalization and Domiciliary Hospitalization Benefit Policy issued by the United India Insurance Company Limited to the Complainant was valid from 30.11.2005 to 29.11.2006. Both the documents have been marked without any objection from the Opposite Party. The Ex R3 i.e., the proposal form of Star Health and Allied Insurance Company Limited, i.e., Opposite Party which carries the references of old policy number 70807/48/07/97/1335, 30.11.2007 to 29.11.2008 of United India Insurance Company. That means, the Opposite Party was aware that, the Complainant was having mediclaim policy with the United India Insurance Company before issuance of the policy bearing No.P/141211/01/2009/004336 of the Opposite Party. The Exclusion clause 5 of the policy mentioned herein above made it very clear that, even as per the above said exclusion clause the Opposite Party is bound to pay the mediclaim claimed by the Complainant. Because the Complainant has proved that, she was covered under the insurance policy issued by the United India Insurance Company Limited earlier to the policy issued by the Opposite Party. Further, we have observed that, the Opposite Party in this case basing on the discharge summary came to the conclusion that, the disease suffered by the Complainant was pre-existing one. But nothing has been placed on record to show that, the Complainant fraudulently by suppressing the pre-existing disease obtained the policy. If at all the Complainant wants to do wrongful gain, she would have obtained the policy for more amount not for meager amount. Obtaining the policy fraudulently by suppressing the pre-existing disease should be proved by Opposite Party Insurance Company. If a person was not suffering from any disease at the time of taking such policy, the Insurance Company cannot be allowed to repudiate the claim without any material. If the policy obtained by suppression of pre-existing disease must be fraudulent. So, in the instant case, since the Opposite Party failed to discharge its burden by producing material evidence to that effect.
However, we have been referred the following citations relied by the counsel for the Complainant while considering the case on hand.
In a case Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad reported in II (2008) CPJ 262; The New India Assurance Company Limited versus A.Thirupati Reddy and Another held that,
Consumer Protection Act, 1986 – Section 2(1)(g) – Insurance – Repudiation of claim – Suppression of pre-existing disease alleged – Discharge summary neither discloses positively time period nor says that Complainant has been suffering from severe diabetes which led to hospitalization – Burden of proof on insurer to establish that material facts suppressed by insured – Complainant aware of symptoms of disease prior to taking of policy not proved – Insurer liable under policy – Rate of interest reduced in appeal.
In another case reported in Jammu and Kashmir State Consumer Disputes Redressal Commission Jammu; II (2008) CPJ 282; in New India Assurance Co. Ltd versus Girdhari Lal Tickoo, has held that –
Consumer Protection Act, 1986 – Section 15 – Insurance – Mediclaim – Angiography test – reimbursement of expenses denied – suppression of pre-existing disease alleged – onus to prove fraudulent act on insurer – no material produced to show that insured had any symptoms of disease prior to taking of policy – document fabricated – word ‘he’ converted into ‘re’ – overwriting on original word discernible even to naked eye – such overwriting amounts to forgery, which is cognizable offence under penal law – complaint allowed – Insurer directed to pay Rs.1.00 lakh along with interest.
The one more citation reported in II (2008) CPJ 291; Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad in United India Insurance Company and Another versus Anumolu Rama Krishna has held that –
Consumer Protection Act, 1986 – Section 2(1)(g) – Insurance – suppression of material facts – alleged, insured suppressed Coronary Artery Disease (CAD) – claim repudiated – as per discharge summary, Complainant had chest pain only for one week duration – no history suggestive of MI in past – Opposite Party failed to establish that disease was in knowledge of insured and he deliberately suppressed it - complaint rightly allowed by Forum.
The ratio laid down in the aforesaid decisions referred by the counsel for the Complainant applicable to the facts on hand. Therefore, we are of the considered opinion that, the Opposite Party come to the erroneous conclusion that the Complainant had suppressed the pre-existing disease and rejected the claim of the Complainant which is unjustified, hence we direct the Opposite Party i.e., Star Health and Allied Insurance Company Limited to pay Rs.7,500/- to the Complainant and also pay Rs.5,000/- as compensation for the mental agony and the inconvenience and Rs.1,000/- awarded as cost of litigation expenses. Payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Party i.e., Star Health and Allied Insurance Company Limited is hereby directed to pay Rs.7,500/- (Rupees seven thousand and five hundred only) to the Complainant and also pay Rs.5,000/- (Rupees five thousand only) as compensation and Rs.1,000/- (Rupees one thousand only) as cost of litigation expenses. Payment shall be made within 30 days from the date of this order.
On failure to pay the aforementioned amount within the stipulated time as mentioned above the Opposite Party is hereby directed to pay interest at the rate of 12% p.a. on the total amount from the date of failure till the date of payment.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 10 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 31st day of January 2011)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mrs.Tressie Menezes – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – : Family Health Optima Insurance Plan Policy No.P/141211/01/2009/004336 (Original).
Ex C2 – 21.02.2009: Case summary and discharge record issued by Fr.Muller’s Medical College Hospital, Mangalore (Photostat copy).
Ex C3 – 23.02.2009: Final bill issued by Fr.Muller’s Medical College Hospital, Mangalore (Photostat copy)/
Ex C4 – 23.02.2009: Receipt issued by Fr.Muller’s Medical College Hospital, Mangalore (Photostat copy).
Ex C5 – 04.04.2009: Claim rejection letter (original).
Ex C6 – 23.01.2010: Copy of the Lawyer’s notice issued to the O.P.
Ex C7 - : Postal acknowledgement served to the O.P.
Ex C8 - : Health card issued by United India Insurance Co. Ltd. to the Complainant (original).
Ex C9 – : Hospitalization and Domiciliary Hospitalization benefit policy issued by United India Insurance Co. Ltd. to the Complainant (Original).
Witnesses examined on behalf of the Opposite Party:
RW1 – Mr.Melwyn D’Souza, Branch Manager of the Opposite Party.
Documents produced on behalf of the Opposite Party:
Ex R1 – : Policy with terms and conditions.
Ex R2 – 04.04.2009: Letter of repudiation.
Ex R3 - : Proposal form.
Ex R4 – : Pre-authorization form given by Fr.Mullers Hospital, Mangalore.
Ex R5 - 09.11.2010: Letter issued by Fr.Muller’s Hospital, Kankanady, Mangalore to this Forum.
Ex R6 - : Case sheet maintained by Fr. Muller’s Hospital pertaining to the Complainant (it contained 31 pages).
Dated:31.01.2011 PRESIDENT
