BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. P. SUDHIR : PRESIDENT
SMT. R. SATHI : MEMBER
SMT. LIJU B. NAIR : MEMBER
C.C. No. 90/2013 Filed on 01.03.2013
ORDER DATED: 29.06.2018
Complainant:
Eric E Stephen, Irene Nivas, T.C 34/1520, Jusa Road, Kochuthope, Vallakkadavu P.O, Thiruvananthapuram.
(By Adv. T.K. Ajith Kumar)
Opposite party:
Star Health & Allied Insurance Company Ltd., Zonal Office, First Floor, Vijay Plaza, S.S. Kovil Road, Thampanoor, Thiruvananthapuram-1.
(By Adv. Mann Janarddanam Nair)
This case having been heard on 11.04.2018, the Forum on 29.06.2018 delivered the following:
ORDER
SRI. P. SUDHIR: PRESIDENT
Gist of the complainant’s case is as follows: Complainant is an engineering student. As per the insurance policy number P/181111/01/2011/014892 dated 24.01.2011 issued by the opposite party complainant, his mother and sister were insured for a floater sum of Rs. 1,00,000/- under the Family Health Optima Insurance Policy. On 23.09.2011 at about 8.30 am, when the complainant was going to college as a pillion rider on the motor cycle of his friend, met with an accident and he sustained internal injury on his left knee joint. Immediately after the accident, the complainant was taken to the Medical College Hospital at Trivandrum and treated there as an outpatient. As no major injuries were detected in the X-ray taken from the hospital, a bandage was applied on his knee, advised to take medicine and to take rest. Even after taking the medicines and bed rest as advised by the doctors of the Medical College Hospital, he found difficulty to walk and run normally. So the complainant was taken to Jubilee Memorial Hospital. After investigation of the case and examining the MRI scan of the knee joint of the complainant, the doctors of the Jubilee Mission hospital advised to have a surgical correction of his left knee joint. On 26.12.2011 complainant was admitted in the hospital for surgery and after surgery discharged on 31.12.2011. After the surgery the injury sustained to the complainant in the accident on 23.09.2011 is completely cured now. After discharge from the hospital on 03.01.2012, complainant submitted a claim form before the opposite party, but the opposite party delayed the discharge of the claim citing several reasons. As per the letters of the opposite party dated 28.01.2012, 01.03.2012, 24.03.2012 and 26.06.2012 the opposite party demanded several documents and the parents of the complainant have submitted all available records before the opposite party, but as per letter dated 28.09.2012, the opposite party has repudiated the claim for the reason that the injury of the complainant was a pre-existing one. However on the request of the complainant and his parents, the claim of the complainant has been re-opened and as per the letter dated 01.12.2012, addressed to the mother of the complainant, the opposite party asked to wait for 15 more days to get a final decision of the claim. As per letter dated 12.02.2013 the opposite party has again repudiated the claim for the reason that the injury of the complainant is a pre-existing one. As per the policy terms and conditions, the injury sustained to the complainant is fully covered. Complainant is entitled to get the full expenses for his treatment and medicines from the opposite party as per the terms of the insurance policy. The repudiation of the claim itself amounts to deficiency in service. Apart from that the finding of the opposite party that the injury of the complainant is a pre-existing one is an attempt to escape from their liability. There is no basis for the finding of the opposite party that the injury must have happened during November 2010 or before as stated in the repudiation letter. Opposite party ought to have understood that the complainant has suffered an injury and it was not a disease as mentioned in ‘exclusion No. 1’ of the policy. Hence complainant approached this Forum for redressal.
Notice sent to opposite party. Opposite party appeared and filed version. As per the version the contention taken is that there is neither cause of action for the complaint nor there was any deficiency in service on the part of the opposite party as the sickness for which the complainant was admitted in hospital was for a pre-existing disease which is clear from the MRI report of the complainant. Complainant had taken Family Health Optima Insurance policy from this opposite party for the period from 24.01.2011 to 23.01.2012 vide policy No. P/181111/01/2011/014892 for a sum insured of Rs. 1 Lakh. Proposal form is the basis of insurance contract, on that basis the policy is issued. In the proposal form, the insured has specifically declared that the complainant was not suffering from any disease or ailment at the time of submitting the proposal form or any point of time earlier and that his health condition was good in all respects. In the proposal form the complainant further declared that if after the insurance policy is effected, any particulars stated in the proposal form are found incorrect, the insurance company would incur no liability under the policy. Complainant was admitted on 26.12.2011 at Jubilee Memorial hospital, Trivandrum for the treatment of Anterior cruciate ligament tear and lateral meniscal tear on left knee joint and he underwent surgery for the same and discharged on 31.12.2011. Complainant submitted completed claim form with medical bills and lab reports. In the discharge summary it was recorded that there is history of fall from bike and sustained left knee injury. In the medical certificate the treating doctor has recorded that the complainant was suffering from pain and swelling of left knee since 2 months as on date of admission 26.12.2011. Nowhere in the document it has been recorded that the admission is due to fall from bike. Opposite party had made several requests vide letters dated 28.01.2012, 01.03.2012 & 24.03.2012 for the relevant treatment records. But the complainant has not submitted any relevant documents to substantiate the accident alleged to be occurred on 23.09.2011. Opposite party conducted an investigation and collected a statement from the complainant signed by him, which was contradictory in nature about the accident. Opposite party obtained an independent expert medical opinion from a radiologist on the illness/injury based on the medical records submitted by the complainant. The opinion established that the complainant was suffering from chronic knee injury of more than one year duration. The MRI report dated 15.11.2011 also confirmed that the condition was chronic in nature and not due to any acute injury. Based on the available records and expert opinion, it is confirmed that the injury is pre-existing. Since the injury is pre-existing, the opposite party rejected the claim based on exclusion No. 1 of the policy. Opposite party received a representation dated 17.10.2012 from the complainant. The opposite party re-opened the claim. The opposite party obtained a second expert opinion from an orthopaedician which also confirmed that the present injury as per MRI is chronic and not due to any fresh trauma. Hence a fresh decision on the claim was taken. The policy commences on 24.01.2011. The MRI report dated 15.11.2011 has revealed that the injury was chronic. The expert opinions confirmed a history of more than one year for the injury. Hence it was evident that the injury was a pre-existing condition. As per the policy, pre-existing disease is excluded under exclusion clause No. 1 of the policy which states that ‘pre-existing disease as defined the policy, until 48 months of continuance coverage have elapsed, since inception of the first policy with any Indian insurance company’. Moreover it is elaborately explained in the definition clause of the policy that pre-existing disease/conditions means any ailments or injury or related conditions for which the insured person had signs or symptoms and/or was diagnosed and/or received medical advice/treatment within 48 months prior to insured person’s first policy with the company.
Issues:
- Whether there is deficiency of service on the part of the opposite party?
- Was the complainant suffering from pre-existing disease at the time of proposal for the policy?
- Whether the complainant is entitled for the reliefs sought for?
Issues (i) to (iii):- Complainant filed proof affidavit in lieu of chief examination and marked Exts. P1 to P14 and examined as PW1. PW1 cross examined by opposite party. Opposite party filed proof affidavit in lieu of chief examination and examined as DW1. DW1 cross examined by complainant and marked Exts. D6 to D8. The doctor was examined as DW2 and marked Ext. D9. DW2 cross examined by complainant. Exts. D1 to D5 marked in confrontation of complainant. The specific case of the complainant is that he suffered internal injury on his left knee in an accident occurred on 23.09.2011. Immediately after the accident he was taken to Medical College hospital, Thiruvananthapuram. As no major injuries were detected in the X-ray, a bandage was applied on his knee and advised to take medicine and to take rest. Ext. P2 is the outpatient record. In Ext. P2 the name the complainant is wrongly spelt as Hery instead of Eric. The accident occurred well within the period of insurance as per Ext. P1 policy. DW2 doctor deposed that he did not treat the complainant. He did not examine or even seen the complainant. Such a witness is incompetent to give any evidence regarding the nature of injuries sustained to a patient. By a mere looking to the treatment records no one can give any conclusive opinion about the duration of the injury. Further DW2 who issued Ext. D9 certificate himself opined that the duration of the injury he mentioned in the certificate is only a probability and not conclusive. In cross examination DW2 deposed that he relied Ext. D5 also to reach his probability. But the doctor who prepared Ext. D5 MRI Imaging has written in the report that the modality is having its limitations and the report should be correlated with clinical and other relevant patient date. But DW2 admitted that he has not even seen the complainant. In order to establish that the injury is a pre-existing disease the following facts are to be brought into evidence. (1) Medical records such as medical prescriptions, diagnostic reports, medical bills of the claimant indicating that he had undergone treatment prior to the insurance of the policy for the claim he had made. (2) The treated doctor has to come and give evidence that the claimant/patient had the disease and he treated for that from such and such periods. (3) The medical opinion brought to the court must establish the conclusiveness of a pre-existing disease. In this case the opposite party did not produce any medical documents to show that the complainant had undergone any treatment prior to the issuance of the policy. It is particularly to be borne in mind that Ext. P1 policy is not the policy issued for the first time. It is in continuation of the earlier policies issued by the opposite party. The Hon’ble National Consumer Disputes Redressal Commission in the case of National Insurance Co. Ltd. Vs. Raj Narain 2008 NCJ 559 (NC) and in Praveen Damani Vs. Oriental Insurance Company Ltd., reported in IV(2006) CPJ 189 (NC) as follows: Most of the people are totally unaware of the symptoms of the disease that they suffer and hence they cannot be made liable to suffer because the insurance company relies on their clause 4.1 of the policy in a mala fide manner to repudiate all the claims. No claim is payable under the medi-claim policy as every human being is born to die and diseases are perhaps pre-existing in the system totally unknown to him which he is genuinely unaware of them. Hindsight everyone relies much later that he should have known from some symptom. If this is so every person should do medical studies and further not take any insurance policy. In this case the complainant was totally aware that he had no pre-existing disease before, and he had not undergone any treatment prior to the treatment for which this claim is made since it was an injury sustained in an accident. As per the policy terms and conditions, the injury sustained to the complainant is fully covered. He is entitled to get the full expenses for his treatment and medicines from the opposite party as per the terms of the insurance policy. The repudiation of the claim amounts to deficiency in service. Apart from that, the finding of the opposite party that the injury sustained to the complainant is a pre-existing one is an attempt to escape from their liability. Complainant has produced all documents to prove that his illness started due to the accident occurred on 23.09.2011. There is no basis for the finding of the opposite party that ‘the injury must have happened during November 2010 or before’ as stated in the repudiation letter. The opposite party ought to have understood that complainant has suffered an injury and it was not a disease mentioned in Exclusion No. 1 of the policy. Repudiation of the claim has caused irreparable injury, serious mental agony and grievances to the complainant, for which the opposite party is liable to compensate. However Ext. P2 document clearly proves the date of accident and the nature of injury suffered in the accident. The evidence in this case consists of the evidence of the complainant as PW1 and Exts. P1 to P14 marked and Exts. D1 to D5 marked through him. Complainant is a beneficiary of the Family Health Optima Insurance Policy issued by the opposite party on 24.01.2011. The policy covers the period of 365 days till 23.01.2012. It is proposed by his mother Irena Edison. Complainant sustained an accident on 23.09.2011 that is after 8 months of the commencement of the policy. The injury sustained to him in the accident was ACL (L) knee. As the injury sustained was not appeared to be grievous initially, complainant went to the Medical College Hospital, Thiruvananthapuram and treated as OP. From there they applied bandage on his left knee. Had there been ACL injury as alleged by the opposite party at the time of inception of the policy itself, then the complainant would not have been treated as OP and send with a bandage on 23.09.2011 after 8 months from the commencement of the policy. Further a normal prudent college going student cannot go college or do is routine activities if there is injury to the ACL. The authorities on this subject says that, the Anterior Cruciate Ligament (ACL) is an important, internal, stabilizer or the knee joint, restraining hyperextension. It is injured when it’s biomechanical limits are exceeded (over stretched), often with hyperextension mechanism. Symptoms of severe and sudden (acute) Anterior Cruciate Ligament injury include: Feeling or hearing a ‘pop’ in the knee at the time of injury. Sudden instablility in the knee. Pain on the outside and back of the knee. Knee swelling within the first few hours of the injury. From the above it is distinct that one who sustains ACL may suffer instability in the knee, pain, knee swelling etc. which warrants treatment and medicines. In such a condition no reasonable prudent man will leave it unattended. The opposite party miserably failed to produce any medical records of treatment which had undergone by the complainant prior to the inception of the policy for the treatment of ACL which is essential to establish that it is a pre-existing disease. The ACL injury is occurred at the time of accident on 23.09.2011 that day very much within the insurance cover. Ext. D5 is the MR Imaging of left knee joint said to be issued by one Dr. K.S. Manoj which is dated 15.11.2011, that is 53 days after the accident. Even the said report nowhere says that the ACL injury dates back prior to the inception of policy. Most importantly on the extreme bottom of Ext. D5 it is noted in a very tiny letters as shown below. Note: This modality is having its limitation and the report should be correlated with clinical and other relevant patient data. From the above it is clear that even Ext. D5 is not conclusive with respect to the opinion noted in MRI report. Further this doctor is neither treated nor examined the complainant. Hence no evidentiary value can be given to Ext. D5. In Sahara India Life Insurance Company Ltd. and another Vs. Smt. Hansaben Deepak Kumar Pandya 2012(4) CPR 231 (NC), the Hon’ble National Commission has held that pre-existing disease must be proved by documentary evidence. In the instant case also in order to substantiate the contention of the opposite party, they never produced any documents to prove the previous treatment of the complainant for ACL prior to obtaining the policy. So the dictum laid down in this case is squarely applicable to this case. In the case reported in 2015(3) CPR 697 (NC) New India Assurance Co. Ltd. Vs. B.Y. Srikanta the Hon’ble National Commission has held that ‘insurance company has to prove pre-existing disease by adducing evidence. The opposite party has neither adduced any evidence nor produced any documents to prove that the complainant has been suffering from pre-existing disease. Hence we are of the opinion that there is deficiency of service on the part of opposite party and complainant is entitled for the relief sought for in the complaint and we directed the opposite party to pay Rs. 1,00,859/-, the amount paid for scan and treatment and to pay Rs. 10,000/- as compensation for the mental agony suffered by the complainant and Rs. 5,000/- as cost of the proceedings.
In the result, complaint is allowed and opposite party is directed to pay the complainant Rs. 1,00,859/- (Rupees One Lakh Eight Hundred and Fifty Nine only), the amount paid for scan and treatment and to pay Rs. 10,000/- (Rupees Ten Thousand only) as compensation for the mental agony suffered by the complainant and Rs. 5,000/- (Rupees Five Thousand only) as cost of the proceedings within one month from the date of receipt of this order failing which Rs. 1,10,859/- (Rs. 1,00,859/- + Rs. 10,000/-) carries interest @ 6% per annum from the date of default till realization.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 29th day of June 2018.
Sd/-
P.SUDHIR : PRESIDENT
Sd/-
R. SATHI : MEMBER
Sd/-
LIJU B. NAIR : MEMBER
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C.C. No. 90/2013
APPENDIX
I COMPLAINANT’S WITNESS:
PW1 - Eric E Stephen
II COMPLAINANT’S DOCUMENTS:
P1 - Copy of family health optima insurance policy schedule
P2 - Copy of outpatient record
P3 - Copy of bill issued by Metro Scans & Laboratory
P4 - Copy of pre-authorization request form
P5 - Copy of retail invoice dated 27.12.2011
P6 - Copy of IP consolidated discharge bill
P7 - Copy of discharge summary
P8 - Copy of letter dated 28.01.2012
P9 - Copy of letter dated 01.03.2012
P10 - Copy of letter dated 24.03.2012
P11 - Copy of request letter for supporting documents
P12 - Claim repudiation letter dated 28.09.2012
P13 - Copy of letter dated 01.12.2012
P14 - Copy of letter dated 12.02.2013
III OPPOSITE PARTY’S WITNESS:
DW1 - Padmaprabha. P
DW2 - Dr. Sabarisree. M
IV OPPOSITE PARTY’S DOCUMENTS:
D1 - Copy of letter sent by complainant to opposite party
D2 - Copy of letter dated 28.01.2012
D3 - Copy of letter dated 01.03.2012
D4 - Letter dated 08.03.2012 sent by Edison Stephen
D5 - Report issued by Metro Scans & Laboratory
D6 - Authorization letter
D7 - Proposal form
D8 - Copy of letter dated 17.10.2012
D9 - Certificate issued by Dr. Sabarisree
Sd/-
PRESIDENT
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