O R D E R
Sri. P. Satheesh Chandran Nair (President):
The complainant filed this petition u/s.12 of the C.P. Act 1986 for getting a relief from the opposite party.
2. The case of the complainant is as follows:- The complainant in this case availed a Family Health Policy named Family Health-Optima Insurance policy which was issued by 2nd opposite party to the complainant. The said policy issued from 25/03/2014 to 24/03/2015 vide policy No. P/181113/01/2014/005301 for a sum of Rs.2,00,000/-. According to the complainant, as per the terms and conditions of the said policy the insurer is bound to meet the hospitalization of the complainant and his family members. It is contended that on 25/10/2014 he consulted a Govt. Ayurveda Doctor for the treatment of grievous pain happened due to a fall from staircase. The concerned doctor advised complete rest and also directed to take MRI of right Knee. On the basis of the MRI report he was referred the complainant to Pushpagiri Medical College Hospital for higher orthopedic consultation. On 06/11/2014 he was admitted in the above said hospital and arthroscopic ACL reconstruction with quadrupled hamstring graft PLUS partial menisectomy of lateral meniscus also was done under GA on 08/11/2014. He was discharged on 18/12/2014 from Pushpagiri Medical College Hospital. On 29/01/2015 as a result of infection he suffered pain and swelling on right knee. Hence for further treatment the complainant was admitted in S.P Fort Hospital Thiruvananthapuram and underwent synovectomy on 20/02/2015 and again he was admitted in Christian Medical College, Vellore for further treatment. It is contended that for the above said treatments, the complainant incurred an expenses of Rs. 1,75,000/ and it happened at the time of the policy period. Though the complainant preferred a claim before the opposite parties, they repudiated the claim on ground that the complainant was suffering the knee problem prior to the inception of policy. It is again contended that the complainant received the above Insurance Policy from additional opposite party 3 and additional opposite party 4 who are functioning within the jurisdiction of this Forum. The complainant has not suppressed any fact at the time of the inception of said policy and he has not suffering any pre-existing disease as pleaded by the opposite parties. Hence the complainant for directing the opposite parties to pay the insurance amount of Rs. 2,00,000/-, compensation cost etc.etc.
3. This Forum entertained the complaint and issued notice to opposite parties for their appearance. The opposite party 1 & 2 appeared before the Forum and they filed joint version. The additional opposite party 3 & 4 are also filed another joint version.
4. The contents of the version of opposite party 1 & 2 are as follows. The addl. opposite party 4 also adopted the version of opposite party 1 and 2 by memo. According to the opposite party 1 & 2, the case is not maintainable either in law or on fact. According to them this Forum has no territorial jurisdiction to try the case moreover no cause of action is arised against the opposite parties as pleaded by the complainant. It is contended that the complainant availed the policy from first opposite party’s branch at Kottayam. The re-imbursement of the hospitalization expenses to the complainant is strictly on the basis of the policy terms and conditions. It is further contended that in Claim No. 246896 to the opposite party it is seen that he was admitted on 29/01/2015 at Pushpagiri Hospital, Thiruvalla and diagnosed with ‘3 month old ACL reconstruction surgical site infection’ and he was discharged on 09/02/2015. According to opposite parties, they consulted this fact to the medical expert and understood that the symptoms/injury was pre existing, hence they repudiated the policy claim. It is further stated that the pre-existing disease is excluded as per Exclusion clause No.1 of the policy it reads. “Pre Existing Disease as defined in the policy, until 48 months of continuance coverage have elapsed, since inception of the first policy with any Indian Insurance Company”. It is the duty of the complainant to prove that he has not suffering any pre-existing disease and also has to prove the reason for hospitalization in S.P. Fort Hospital, Thiruvananthapuram and Velloor Christian Medical College Hospital. The claim of the complainant, medical expense Rs. 1,75,000/- has to be proved by the complainant himself. According to the opposite parties the complainant is not entitled to re-imbursement of hospitalization expense since he is suffering pre-existing disease related to his right knee. Therefore, this opposite parties prayed to dismiss the case with their cost.
5. Additional opposite party 3 also filed his version as follows: According to them the case is not maintainable before this Forum and there is no deficiency in service on the part of this opposite parties against the complainant. It is contended that the complainant in this case is not at all a complaint defined a Consumer Protection Act 1986 and this opposite parties are not necessary parties for these proceedings. It is again contended that this opposite party had never given any kind of Insurance representing to the complainant as alleged by complainant. Therefore, this opposite parties also prayed to dismiss the complaint in their cost.
6. The opposite parties filed a maintainability petition which is numbered as I.A 46/16 and on the other side the complainant also filed an amendment petition which is numbered as 58/16 and another impleding petition which is also numbered I.A. 59/16. We heard the above said I.A’s in the presence of the learned counsels appearing for the complainant and opposite party 1 & 2 and we dismissed I.A.46/16 (maintainability) and allowed I.A. 58/16 and I.A.59/16.
7. We peruse the complaint, versions and records before us and framed the following issues in this case:
1. Whether the case is maintainable before the Forum?
2. Whether the opposite party is committed any deficiency in service as alleged?
3. Regarding cost and relief?
8. In order to prove the case of the complainant, the complainant he who filed a proof affidavit in place of chief examination and he is examined as PW1. Ext.A1 to A10 were marked in favour of the complainant. Ext.A1 is the Policy certificate for the period from 24.03.2014 to 25.03.2015 issued by the opposite party. Ext.A2 is the prescription letter of Dr. Padmakumar dated : 02/11/2014. Ext.A3 series are the discharge summary of the Pushpagiri Hospital. Ext.A4 series are the discharge summary of S.P. Fort Hospital. Ext.A5 is the discharge summary of Christian Medical Hospital, Vellore. Ext.A6 is the disability certificate from Pathanamthitta District Hospital dated: 22.12.2015. Ext.A7 series are the Medical bill of all Hospitals. Ext.A8 Claim Rejection letter dated 16.03.2015 of the opposite party. Ext. A9 is the Medical Certificate of Pushpagiri Hospital dated 30.03.2015. Ext. A10 is the photograph of opposite party’s office at Thiruvalla.
9. On the other side though the opposite party 1 to opposite party 4 are filed versions in this case they did not adduce any oral evidence in favour of them except the policy condition. The said policy condition is marked as Ext. B1. After the closure of evidence we heard both sides. The learned counsel appearing for the opposite party 1 to 4 filed an argument note in their favour.
10. Point No.1:- The opposite party 1 & 2 seriously contended that this Forum has no jurisdiction to try the case since all the transactions of the policies are with Kottayam branch. It is further contended that the opposite party has no branch office at Pathanamthitta District. When we evaluate the available evidence before us, it can be seen that the complainant availed an insurance policy for a period 2014 to 2015 and for that they paid an amount of Rs.4,781/- as premium. Though the opposite party contended that they have no branch office at Pathanamthitta District as alleged by the complainant it is to see that the opposite party failed to adduce any cogent/conclusive evidence to substantiate their contention. Ext. A10 is clearly shows that one Sales Manager Jaya Mathew’s Office is functioning in the style as ‘Star Health and Allied Insurance Company Ltd, at T.K. Road, Thiruvalla’. It is sufficient to see that the opposite party’s agency office is functioning at Thiruvalla and through that office opposite party 1 & 2 are carrying out its insurance business. The opposite party 1 & 2 are not questioned the relevancy of that office at T.K. Road Thiruvalla, it is also seen that the insurance business of opposite party 1& 2 are smoothly conducting in that office. Therefore, we find that this Forum has every right to try the case and it also find that the complainant is a Consumer and the opposite parties are service providers of the complainant. Hence Point No. 1 found in favour of the complainant.
11. Point Nos.2 & 3:- For the sake of convenience, we would like to consider Point No.2 and 3 together. The main question to be considered is whether the repudiation of the claim of the complainant is justifiable or not and whether the opposite party 1 & 2 has committed any deficiency in service as alleged by the complainant. When we appreciating the evidence adduced by the complainant, it is proved that the complainant availed a Health Insurance Policy with opposite party 1 & 2 after paying premium amount of Rs.4,781/- and the said policy is valid from 25/03/2014 to 24/03/2015. This fact can be proved by Ext.A1 policy schedule. The opposite parties are also admitted this Ext. A1 document. As per Ext.A2 it is proved that on 25/10/2014 the complainant has consulted with a Government Ayurveda Doctor one S. Padmakumar and stated the history of the incident as ‘fall on knee’ and also recorded ‘right knee pain present’. The complainant again consulted the said doctor on 02/11/2014 due to severe pain and refer the patient for MRI Scan. Ext.A3 series proves that he was admitted in Pushpagiri Medical College Hospital in Thiruvalla on 06/11/2014 and discharged on 18/11/2014. In that Ext.A3 page one, it is seen that the complainant caused the right knee pain due to a fall by slipping on stairs for two weeks. The hospital conducted arthroscopic ACL on 08/11/2014. In page 3 of Ext.A3 it can be seen that 3 months old ACL RECONSTRUCTION SURGICAL SITE INFECTION was conducted. In the light of Ext.A3 series, we can easily inferred that the complainant faced a surgery for his right knee on 08/11/2014 and on 29/01/2015. He caused an infection in connection with the said surgery. As per Ext.A4 series, it is proved that on 19/02/2015 the complainant was admitted in S.P. Fort Hospital and he was discharged on 25/02/2015 for the treatment of Septic Arthritis Knee (right). As per Ext.A5, it is seen that the complainant was admitted in Christian Medical College Hospital, Vellore on 18/05/2015 and discharged on 29/05/2015, for the treatment of “right knee chronic infective arthritis secondary to Infected ACL graft”. As per Ext.A6 it proves that complainant is suffering 25% disability with regard to the right knee problem. The certificate is issued by a team of doctors connected to General Hospital, Pathanamthitta as members of the Medical Board. Ext.A7 series are the medical bills issued to the complainant from Pushpagiri Medical College Hospital, S.P. Fort Hospital, Lakeshore Hospital and Christian Medical Hospital Vellore. As per the calculation seen in last page of A7 series an amount of Rs. 3,49,888/- was spent by the complainant for this treatment. At the time to cross-examination, the genuineness or velocity of this medical bills were not challenged on the other side. Ext.A8 is a repudiation letter issued by the opposite party in favour of the complainant dated 16/03/2015. Ext.A9 is a certificate issued by an Assistant Professor of Orthopedic Dr. Shibu Varghese MS (Ortho) attached by Pushpagiri Medical College Hospital, Thiruvalla in favour of the complainant. Ext. A9 again proved that the difficulty in walking and fluxion of the right knee of the complainant happened due to a fall by slipping on stairs. Ext. A10 is a document shows that additional 4th opposite party office is functioning at Thiruvalla.
12. When we peruse the evidence adduced by the PW1 with regard to the hospitalization at Pushpagiri Medical College Hospital at Thiruvalla, S.P.Fort Hospital, Thiruvananthapuram and Christian Medical Hospital Vellore the Ext. A3 series to Ext.A5 documents are cogent and conclusive evidence. In order to prove the expense incurred by the complainant for the right knee treatment Ext.A7 series bills are sufficient evidence. According to the opposite parties the main contention in this case is that PW1 is suffering a pre-existing disease for his right knee even prior to the inception of the policy since the repudiation of the claim of PW1 is Justifiable. If we look into the evidence it can be seen that the opposite parties not succeed to prove the contention of “pre-existing disease” against the complainant. Though they alleged pre-existing disease to the complainant no positive evidence was adduce against PW1 in this case. It is true that the opposite parties pleaded that the injury on the right knee of PW1 was caused at the time of playing football. If so, what prevented the opposite parties to adduce any evidence to substantiate their case? When we go through the cross-examination of the PW1, it reveals that on the same day of the fall from the staircase the PW1 consulted a doctor and stated the history of the incident. In cross he answered, “25/10/2014 ൽ ആണ് ഞാൻ വീണത് എന്ന് രേഖപ്പെടുത്തിയിട്ടുണ്ട്. വീണ ദിവസം തന്നെ ഞാൻ doctor Padmakumar നെ കണ്ടു. Stair case ൽ നിന്ന് വീണു എന്ന വിവരം doctor നോട് പറഞ്ഞു.”. In another question he answered “Foot ball കളിക്കിടയിൽ പരിക്ക് പറ്റിയ നിങ്ങള് claim ലഭിക്കാൻ stair case ൽ നിന്നു വീണു എന്ന് പറയുകയല്ലേ?(Q) അല്ല(A)”. Though all the opposite parties cross-examine PW1 nothing brought out to disbelieve the case of the complainant. Moreover, it is to see that the opposite parties has not take any steps to adduce any positive evidence in their favour except Ext.B1 documents (terms and conditions). As we discussed earlier, as per Ext.A1 the sum assured is only Rs.2,00,000/-. Even if the medical expenses are exceeded from the sum assured the insurer only eligible to get the amount with in the sum assured. Therefore, we would like to found that the complainant is succeeded to prove the case. In the light of the evidence before us, we find that though additional opposite party 3 & 4 are necessary parties for this proceedings they are not at all liable to the complainant as far as this case is concerned. Opposite party 1 & 2 are equally and severely liable to the complainant. Hence, Point No. 2 and 3 are also found in favour of the complainant.
13. In the result we pass following orders:
1. Opposite party 1 & 2 are directed to pay an insurance claim of
Rs. 2,00,000/- (Rupees Two Lakhs only) to the complainant with 10%
interest from the date of this petition i.e.,19/02/2016 onwards.
2. The opposite party 1 & 2 are also directed to pay a compensation of
Rs.10,000/- (Rupees Ten Thousand only) and a cost of Rs. 3,000/-
(Rupees Three Thousand only) to the complainant with 10% interest
from the date of receipt of this order onwards.
Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 31st day of January, 2017.
(Sd/-)
P. Satheesh Chandran Nair,
(President)
Smt. Sheela Jacob (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1: Anil Samuel
Exhibits marked on the side of the complainant:
A1 : Policy certificate for the period from 24.03.2014 to 25.03.2015 issued
by the opposite parties.
A2 : Prescription letter of Dr. Padmakumar dated : 02/11/2014.
A3 series : Discharge summary of the Pushpagiri Hospital.
A4 series : Discharge summary of S.P. Fort Hospital.
A5 : Discharge summary of Christian Medical Hospital, Vellore.
A6 : Disability certificate from Pathanamthitta District Hospital
dated: 22.12.2015.
A7 series : Medical bill of all Hospitals.
A8 : Claim Rejection letter dated 16.03.2015 of the opposite party.
A9 : Medical Certificate of Pushpagiri Hospital dated 30.03.2015.
A10 : Photograph of opposite party’s office at Thiruvalla.
Witness examined on the side of the opposite parties: Nil.
Exhibits marked on the side of the opposite parties:
B1 : Policy Conditions
(By Order)
Copy to:- (1) Anil Samuel, Anil Bhavanam, Kadampanad P.O, Adoor. (2) Branch Manager, Star Health and Allied Insurance Company Ltd,
Second Floor, Puthenpurackal Complex XIII/858D,
M.C. Road, Kottayam.
(3) Star Health and Allied Insurance Company Ltd.,
K.P.R.Tower, Puramattom.P.O, Thiruvalla – 689 543.
(4) Manoj. P.V, Star Health and Allied Insurance Company Ltd.,
S.M. Office, Nanavettil Building, Near Private Bus Stand, T.K.
Road, Thiruvalla – 689 101.
(5) Senior Sales Manager, Star Health and Allied Insurance Company
Ltd, -do. –do.
(6) The Stock File.
