BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.74/2018

DATED ON THIS THE 17^th October, 2019

      Present:   1) Sri. C.V.Maragoor

B.Com., L.L.M., - PRESIDENT   

                     2) Sri. Devakumar.M.C.           

                                        B.E., LLB., PGDCLP   - MEMBER

Sri C.V.MARAGOOR,

President

1.       This complaint has filed by Sri Gopilal S/o Chandmal resident of Mysuru challenging the repudiation of mediclaim by opposite parties to the tune of Rs.69,400/-.
2.        The opposite party No.1 is Star Health and Allied Insurance Company branch office Mysuru and opposite party No.2 is Head Office of opposite party No.1 situated at Chennai.  The opposite party Nos.1 and 2 in the written version admitted that the complainant being the senior citizen has taken Senior Citizen Red Carpet Health Insurance Policy from the opposite party No.1 on 21.08.2013 and thereafter renewed the said policy every year and lastly it was renewed from 21.08.2016 to 20.08.2017. The opposite parties further admitted that the complainant had suffered with left nasal obstruction and for that got admitted in Apollo Hospital, Mysuru on 11.11.2016 and diagnosed with Chronic Pansinusitis with bilateral ethmoidal polyposis and was discharged on 13.11.2016.  The opposite parties contention is that it has repudiated the mediclaim of the complainant as he has suppressed the fact of earlier disease.  The complainant has undergone sigmoid colectomy 10 years back which is prior to inception of medical insurance policy.  The opposite parties have justified in repudiating the claim of complainant.
3.       The complainant filed his affidavit in lieu of evidence and produced seven documents in support of his case.  That one Upendra Kumar Nayak, Branch Manager of opposite party No.1 filed affidavit and got marked Exhibits R.1 to R.5.
4.       We have heard the arguments advanced by the learned counsel for the complainant and opposite parties in addition to written brief submitted by the opposite parties counsel and  the points that would arise for determination are as under:-  

1. Whether the complainant proves that the act of opposite parties repudiating his claim is not justifiable?
2.  Is complainant entitled to the reliefs sought for?

5.    Our findings on the aforesaid points are as follows:

Point No.1 :- In the affirmative;

Point No.2 :- Partly in the affirmative for the below;

:: R E A S O N S ::

6.         Point Nos.1 and 2:- The learned counsel for the complainant argued that the complainant said to have undergone treatment for sigmoid colon about 10 years back which is not correlative to the present treatment taken by the complainant for nasal part.  As against this, the learned counsel for the opposite parties submitted that the complainant has suppressed the fact of earlier disease while taking policy with the opposite parties as such, the opposite parties have repudiated the claim.
7.        The opposite parties in the written version and affidavit evidence have not disputed taking mediclaim policy by the complainant i.e. Senior Citizen Red Carpet Health Insurance Policy on 21.08.2013 and it has renewed every year and the policy was subsisting on the date of treatment i.e. 11.11.2016.  The complainant has produced discharge summary of Apollo BGS Hospital, Mysuru and it indicates that the complainant aged 66 years five months and he was admitted on 11.11.2016 and discharged on 13.11.2016.  He was diagnosed with chronic pansinusitis with bilateral ethmoidal polyposis. History of the complainant that left sided nasal obstruction since two years associated with left nasal mass insidious in onset, progressive in nature aggravated during episodes of common cold not relieved on taking nasal sprays.  No bleeding from nasal part.  The doctor has given treatment of Fess under GA on 12.11.2016 post operative period was uneventful.  He was treated with IV fluids, antibiotics, analgesics and other supportive measures. The hospital has issued bill for Rs.69,599/-. 
8.         The opposite parties have not produced any material in support of their defence that the complainant has undergone sigmoid colectomy 10 years back which is prior to inception of medical insurance policy.  The opposite parties except in repudiation of claim letter have not produced any supporting document to show that the complainant has undergone sigmoid colectomy 10 years back.  The opposite parties have produced Ex.R.1 proposal form submitted in the year 2013 that he had no pre-existing diseases.  The learned counsel for the opposite parties relied upon the case of Ashish Rana Vs M/s Star Health and Allied Insurance Co.Ltd., Chandigarh Revision Petition No. 1583/2013 dated 06.08.2013 (NC) – wherein the father of petitioner had taken health insurance policy namely Senior Citizen Red Carpet Health Insurance Policy for Rs.2,00,000/- for the period from 28.12.2010 to 27.12.2011.  On 16.09.2011, the insuree was admitted in a hospital due to pain in the abdomen and fever and he passed away on 18.09.2011 due to sever metabolic acidosis leading to multi organ failure.  The respondent insurance company has repudiated the claim on the ground that the insuree had Hairy Cell Leukemia at the time of taking the insurance policy.  The Hon’ble National Commission dismissed the revision petition confirming the order passed by the Hon’ble State Commission dismissing the complaint.  The above citation is not helpful to the opposite parties in this case since the opposite parties have not placed any material or document to show that the complainant herein has undergone sigmoid colon about 10 years back.
9.        The learned counsel for the complainant also relied upon the recent decision of Hon’ble National Commission Revision petition No.1795/2015 dated 26.04.2018 Gurbax Singh and another Vs Star Health and Allied Insurance Company Ltd., and others – wherein the complainant and his wife have bought senior citizen red carpet health insurance policy for Rs.2,00,000/- on 18.05.2008 and it was renewed from time to time up to 20.05.2013.  The complainant No.2 wife of complainant No.1 had fallen in the bathroom and suffered fracture in her wrist.  The wife of complainant No.1 had taken treatment to right shoulder i.e. rotator cuff tear.  The mediclaim for taking treatment to right shoulder was rejected by the respondent company on the ground that she was suffering with parkinsonism disease since 2006.  The Hon’ble National Commission upheld the order passed by the District Forum allowing the complaint holding that parkinsonism is completely different from rotator cuff tear.  The Hon’ble National Commission referred Section 45 of the Insurance Act, 1938 the policy should not be called in question on the ground of mis statement of two years unless there is a concealment of material fact in fraudulent manner.  Firstly in this case treatment to nasal part is not correlative to sigmoid colon.  Secondly the opposite parties have not produced any material to show that the complainant has undergone sigmoid colon about 10 years prior to taking policy in the year 2013 or treatment in the year 2016.  Therefore, repudiation of claim by opposite parties is not justifiable.
10.          The opposite parties have not disputed medical bill issued by Apollo BGS Hospital, Mysuru for Rs.69,599/-.  According to Ex.R.1 terms and conditions of the policy, the opposite parties is liable to pay Rs.60,00/- to other major surgery for sum insured of Rs.1,00,000/- apart from other medical expenses.  Therefore, the opposite parties shall liable to refund the medical claim of Rs.69,400/- to the complainant.  The opposite parties shall pay Rs.10,000/- as compensation for mental agony and harassment to the complainant since he being senior citizen was forced to approach this Forum though there is no concealment of material fact of pre-existing disease.  Accordingly, we proceed to pass the following;           

:: ORDER ::

1. The complaint filed by Gopilal is partly allowed directing the opposite party Nos.1 and 2 to pay a sum of Rs.69,400/- with interest at the rate of 10% p.a. from 14.11.2016 till the date of payment.
2. It is further ordered that the opposite party Nos.1 and 2 shall pay a sum of Rs.10,000/- as compensation + litigation cost of Rs.10,000/- to the complainant within 45 days from the date of order.  Otherwise, it carries interest at the rate of 10% p.a. from the date of filing complaint till realization.
3. Furnish the copy of order to the complainant and opposite parties at free of cost.

(Dictated to the Stenographer transcribed, typed by her, corrected by us and then pronounced in open Forum on this the 17^th October, 2019)