DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH [Complaint Case No:378 of 2011] Date of Institution :19.08.2011 Date of Decision :09.03.2012 -------------------------------------- Sh. Manoj Bhatia son of Late Sh. D. B. Bhatia, resident of House No.3750, Sector 46-C, Chandigarh – 160047. ….Complainant. (VERSUS) [1] Star Health and Allied Insurance Company Limited, SCO No.257, Secoind Floor, Sector 44, Chandigarh – 160034 through its Branch Manager. [2] Star Health and Allied Insurance Company Limited, No.1, New Tank Street, Valluvae Kottam High Road, Nungambakkam, Chennai – 600034 through its General Manager. ---Opposite Parties. BEFORE: SHRI LAKSHMAN SHARMA PRESIDENT MRS. MADHU MUTNEJA MEMBER SHRI JASWINDER SINGH SIDHU MEMBER Argued By: Sh. B. B. Bagga, Advocate for the complainant. Sh. Kunal Dawar, Advocate for the OPs. PER LAKSHMAN SHARMA, PRESIDENT [1] Sh. Manoj Bhatia has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OPs be directed:- i) To pay a sum of Rs.98,316.73Ps to indemnify him for the expenditure incurred by him on his treatment; ii) To pay a sum of Rs.1,000/- per day as compensation w.e.f. 24.12.2010 till full and final payment of the claim; iii) To pay a sum of Rs.35,000/- as costs of litigation and miscellaneous expenses. [2] In brief, the case of the complainant is that he took a mediclaim policy [No.PO/161113/01/2011/000205] from the OP. It was valid for the period from 23.5.2010 to 22.5.2011. Subsequently, the said policy was got renewed by the complainant for the period from 23.5.2011 to 22.5.2012 (Annexure C-2). In the month of July, 2010, the complainant was on a trip to Botswana, he experienced pain in his right leg. When the said pain did not subside with normal analgesic, he consulted various doctors. On 8.11.2010, the complainant was got admitted in Max Super Specialit Hospital, Saket at New Delhi where various tests were conducted. Initially the doctors were of the view that the complainant could be suffering from one of the following diseases:- [i] Avascular necrosis and (AVN) or [ii] Transient osteoporosis or [iii] Infection of right hip. However, to ascertain the actual disease, from which the complainant was suffering, two major tests i.e. Decompression and Biopsy of Right Hip were conducted on the complainant on 11.11.2010. On the basis of the Biopsy Report (Annexure C-4), it was conclusively established that the complainant was suffering from ‘Chronic Osteomyelitis’ i.e. Acute Infection of bone or bone marrow. According to the complainant, he was given treatment for the said medical problem and was discharged on 12.11.2010. It has further been averred that the complainant incurred a sum of Rs.98,316.73Ps on his treatment. On 24.11.2010, he lodged a claim for the said amount with the OPs. Despite completion of all the formalities, the claim was not settled. The complainant sent a number of e-mails to the OPs dated 25.12.2010, 04.01.2011 and 5.01.2011 [(Annexures C-7 (Colly)] for settling his claim. A query was raised by the OP vide their email, which was also replied by the complainant on 4.1.2011. According to the complainant, to further delay his claim, OPs appointed a doctor to visit Max Hospital, New Delhi and collect all medical documents relating to the complainant. Finally, the OPs repudiated the claim vide letter dated 5.3.2011 (Annexure C-11) under Exclusion Clause No.11 of the Insurance Policy on the ground that the complainant being alcoholic was diagnosed having AVN. According to the complainant, repudiation of his genuine claim, in the absence of any symptoms of alcoholism in the test report, amounts to deficiency in service. So, the present complaint has been filed by the complainant seeking the reliefs mentioned above. [3] In the joint written statement filed by OPs, the factum of the complainant being insured vide the insurance policy No.PO/161113/01/2011/000205 (Annexure C-2) valid for the period from 23.5.2011 to 22.5.2012 has been admitted. It is also admitted that the complainant got himself admitted in Max Super Speciality Hospital Saket, New Dehli on 08.11.2010 with a complaint of pain in his right leg. It is further averred that on 11.11.2010, he was subjected to Decompression and Biopsy test of his right hip. According to the OPs, while filling the anesthesia form (Annexure R-2), the complainant had declared himself to be an alcoholic. It is alleged that alcohol is one of the most common causes of Non Traumatic Avascular Necrosis. Thus, according to the OP, the claim has rightly been repudiated as per Exclusion Clause No.11 of the insurance Policy vide letter dated 5.3.2011. It is pleaded that earlier in letter (Annexure C-11), the Clause No.10 was inadvertently written instead of Clause No.11, which was subsequently corrected vide corrigendum dated 30.3.2011. Thus, according to OPs, there is no deficiency on their part and the complaint deserves dismissal. [4] We have heard the learned counsel for the parties and have perused the record. [5] Annexure C-16 is the letter dated 23/4/2011, whereby the OPs repudiated the claim of the complainant. The relevant portion of this letter reads as under:- “We refer your letter addressed to us requesting us to review the claim. Our claims department and panel of doctors have reviewed the claim and provide hereunder their observations for your reference.” 2. As per discharge summary and other connected documents, diagnosis was only done for avascular necrosis which was caused by intoxication of liquor which falls under exclusion no. 11 of the policy issued to you. 3. As per the specialist’s opinion, the proximate cause of the disease was only due to liquor intake and no other cause. Hence, we cannot take your contention that the disease was caused by some other cause. We concur with the views expressed by our claims department and express our inability to settle any additional amount.” [6] From the bare perusal of this letter, it is apparent that the claim has been declined in view of exclusion clause No. 11 of the policy, which reads as under: - “11. Convalescence, general disability, mental disorder, Run-down condition or rest cure, congenital external disease or defects or anomalies, sterility, venereal disease, intentional self injury and use of intoxicating drugs/ alcohol.” [7] It appears that the OPs have concluded that the Complainant is an alcoholic on the basis of his disclosures made at the time of operation before the Anaesthiest. From the perusal of the history, recorded by the Anaesthiest (Annexure R-2), it is apparent that the Complainant had disclosed that he is consuming alcohol occasionally. This fact also find mention in the Certificate (Annexure C-12), issued by Dr. Bishnu Prasad Panigrahi, wherein the said Doctor has stated that the complainant consumes alcohol occasionally and the history does not support him to be a chronic alcoholic. [8] It is pertinent to mention here that while the Complainant was being diagnosed for the disease suffered by him, the doctors were of the view that the Complainant was probably suffering from (i) Avascular necrosis and (AVN) or, (ii) Transient Osteoporosis or (iii) Infection of right hip. In order to ascertain the specific disease, the Complainant was advised to undergo Biopsy of Right Hip. From these tests, it was conclusively established that the Complainant was suffering from “Chronic Osteomyelitis” i.e. Acute Infection of bone or bone marrow, as is evident from Annexure C-4. Thus, the ground of repudiation, as mentioned in the letter of repudiation, reproduced above, is contrary to the medical history of the Complainant. Otherwise also, a certificate has been given by the hospital that as per the history given by the Complainant he was not alcoholic and he used to take alcohol occasionally. There is nothing on record to prove that the disease for which the Complainant was treated has any relation with the intake of alcohol. In these circumstances, refusal to settle the claim amounts to deficiency in service. [9] From above discussion, it is abundantly clear that there is deficiency on the part of the OPs, as it has failed to settle the claim of the Complainant. So, the present complaint is allowed and the OPs are, jointly & severally, directed to:- (i) Pay a sum of Rs.98,316.73P being the amount incurred by the Complainant on his treatment. (ii) Pay to Complainant an amount of Rs.25,000/- as compensation for mental agony and harassment; (iii) Pay Rs.7,000/- as litigation costs. [10] The above said order shall be complied within 45 days of its receipt; thereafter, the opposite parties shall be liable for an interest @18% per annum on the aforesaid amount of Rs.1,23,316.73P, till actual payment, besides Rs.7,000/- as costs of litigation. [11] Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 9th March, 2012. Sd/- (LAKSHMAN SHARMA) PRESIDENT Sd/- (MADHU MUTNEJA) MEMBER Sd/- (JASWINDER SINGH SIDHU) MEMBER “Dutt”
C.C.No.378 of 2011 Present: None. --- The case was reserved on 01.03.2012. As per the detailed order of even date recorded separately, this complaint has been allowed. After compliance file be consigned. Announced. 09.03.2012 Member President Member
| | MRS. MADHU MUTNEJA, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | MR. JASWINDER SINGH SIDHU, MEMBER | | 
