COMPLAINT FILED ON: 01.03.2010

DISPOSED ON: 07.03.2011

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)

07^TH MARCH 2011

       PRESENT :-SRI. B.S.REDDY                PRESIDENT                        

                         SMT. M. YASHODHAMMA    MEMBER    

                         SRI.A.MUNIYAPPA               MEMBER              

O R D E R

SMT. M. YASHODHAMMA, MEMBER

This is a complaint filed u/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction against the Opposite Party (herein after called as O.P) to reimburse medical expenses of Rs.17,532/- along with interest at the rate of 18% p.a. from the date of payment of bills to the hospital along with damages of Rs.10,000/- on the allegations of deficiency in service.

2.      The brief averments made in the complaint are as follows:

Complainant had taken Medi Classic Insurance Policy schedule medi family package plan from the OP bearing No.P/141115/01/2010/000739 which is valid from 16.06.2009 to 15.06.2010. The sum assured being Rs.2,00,000/-. Complainant with a complaint of change of voice and difficulty in breathing had admitted to Chord Road Hospital, Basaveshwar Nagar, Bangalore on 28.08.2009 and discharged on 31.08.2009. Surgery was conducted on 29.08.2009 on the next date of admission. Complainant incurred expenses to the extent of Rs.17,532/- towards treatment and medicines. Complainant gave intimation to OP regarding her admission to hospital and asked for cashless facilities. OP rejected her request for cashless facilities and asked the complainant to pay the bill of the hospital of her own and to come for “Free reimbursement”. Accordingly complainant herself spent for treatment charges. On 17.09.2009 complainant submitted claim form to OP for reimbursement of Rs.17,532/- spent for treatment and medical expenses along with other relevant documents. OP after receipt of claim form along with other documents issued claim No.22360 to the complainant. On 15.11.2009 OP sent claim rejection letter to the complainant stating her claim had been rejected on the ground patient is suffering from the said complaint since one month as mentioned by treating doctor in discharge summary. Since the patient is having complaint even before issuance of the policy the claim is not tenable under the policy. The doctor of the OP had checked the complainant and issued certificate stating that “No pre existing decease” and on their recommendation OP had issued the policy. In the policy itself OP had mentioned that “Pre existing decease Nil” as per the certificate issued by their doctor. Now OP had taken ‘U’ turn and says that claim had been rejected because of pre existing decease. After receipt of the claim rejection letter from OP complainant contacted her doctor and asked for clarification regarding the rejection of the claim on the ground of pre-existing decease. The treating doctor issued a certificate dated 23.11.2009 stating that “The decease was not pre existing”. Inspite of the receipt of the said certificate OP had not honoured the claim of the complainant. OP has repudiated the claim of the complainant illegally without any justification. Hence on 10.12.2009 complainant caused legal notice to OP’s Regional Office and Head Office. Inspite of service of notice OP failed to respond to the notice. Inspite of repeated requests OP failed to settle her medical claim. Hence complainant felt deficiency in service against the OP. Under these circumstances she is advised to file this complaint for the necessary reliefs.

3.      On appearance OP filed its version contending that both the opponents are not independent of each other and commonly can be called as “opponent” M/s. Star Health and allied Insurance Company Ltd., being a corporate sole it is represented through its authorized representative of its units. Second opponent is the concerned unit concerned with the questioned transaction in the complaint, the joining of first opponent to the complaint merits only as a mis-joinder of a party to the extent of the transaction.  Therefore the second opponent alone is contesting the above complaint as proper party as the transaction of insurance and contract was entered into with it. The claim of the complainant has been repudiated after due application of mind and following due procedures as per the contract of the insurance the transaction is purely contractual and deciding of the facts will be only within agreed scope of the contract. No independent or sympathetic view of the contract can be taken contrary to the agreed terms, rules, regulations and procedures enshrined in the insurance laws. On this ground also complaint is not maintainable. Complainant being an proposed/insured was supposed to disclose all the true facts at the time of seeking the policy.  Complainant suppressed the fact of long existing medical problem of “Vocal card Folyp” and breathlessness and obtained the policy. The alleged ailment is excluded under clause No.1 of the policy. OP subject to the scrutiny of the documents, the claim if payable it will be paid and if any violation of the contract or claim falls under any exclusion clause of the contract, the decision will be taken accordingly and also if necessary subject to the expert opinion. In this case also OP has followed the same and repudiated the claim as it fell under exclusion clause no.1 of the policy.  Complainant has obtained the policy by suppressing the facts which would influence decision of the OP either to accept or reject the proposal the fact came to the knowledge of the OP only on examination of the documents made available by the complainant. Hence OP is not bound to pay the amount and complaint deserves to be dismissed with cost. There is no cause of action for the complaint. Repudiation of claim does not amount to deficiency in service. The rejection of the claim also based on the said certificate issued by the doctor. The treating doctor has issued a certificate dated 23.11.2009 stating that alleged decease is not pre existing will clearly demonstrates that the doctor has not applied his mind in issuing the said certificate for the reason apparent on it. The complainant has not produced the reply notice. The complainant’s right to take back the documents, whatever have been produced in making the claim is not restricted for the various reasons stated in the reply notice and the claim rejection letter issued based on the medical documents that were produced by the complainant and opinion of the doctor. Hence claim of the complainant are not payable and claim is rightly rejected. Among other grounds OP prayed for dismissal of the complaint.

4.      In order to substantiate the complaint averment complainant filed her affidavit evidence and produced Medi classic Insurance Policy claim form, claim rejection letter medical certificate dated 23.11.2009, copy of the legal notice and acknowledgement card, discharge summery, hospital invoice, receipt dated 21.08.2009, 9 prescription bills and also filed witness affidavit of Dr. Deepak Haldipur, ENT Surgeon of West of Chord road hospital Pvt. Ltd., Bangalore. On behalf of the OP-1 Mr. John Noronha, Zonal Manager of OP filed affidavit evidence, and produced copy of the Insurance Policy, medical insurance schedule, receipt issued by OP, proposal form, policy terms and conditions policy schedule.  Dr. Chetana, Senior Medical Officer in the Oriental Insurance Company filed her witness affidavit. OP filed written arguments. Complainant submitted citation along with memo.  Heard oral arguments from both the sides.

5.      In view of the above said facts the points now that arises for our consideration in this complaint are as under:

Point No. 1 :- Whether the complainant has Proved

                     the deficiency in service on the part of

                       the OP?

     Point No. 2 :- If so, whether the complainant is

                    entitled for the relief’s now claimed?

     Point No. 3 :- To what Order?

6.      We have gone through the pleadings of the parties both affidavit and documentary evidence and the arguments advanced.  In view of the reasons given by us in the following paragraphs our findings on the above points are:

Point No.1:- In Affirmative

Point No.2:- Affirmative in part

Point No.3:- As per final Order.

R E A S O N S

7.      At the out set it is not in dispute that complainant had obtained Medi Classic Insurance Policy schedule medi family package plan bearing No.P/141115/01/2010/000739 from OP which is valid from 16.06.2009 to 15.06.2010.  The sum assured under the policy is Rs.2 lakhs.  It is also not in dispute that on 28.08.2009 complainant admitted to Chord Road Hospital, Basaveshwaranagar, Bangalore with a complaint of change of voice and difficulty in breathing. Complainant got operated and discharged on 31.08.2009.  Complainant incurred expenses of Rs.17,532/- towards treatment and medicines. Complainant informed the same to OP and asked for cashless facilities. OP rejected her request and informed the complainant to pay the bill of her own and to come for reimbursement along with other documents. On 17.09.2009 complainant submitted the claim form to OP. On 15.11.2009 OP repudiated the claim on the ground that complainant was suffering from the said complaint since one month as mentioned by the doctor in the discharge summery. Inspite of service of legal notice OP failed to settle the claim.  Hence complainant approached this Forum.

8.      As against the case of the complainant the defence of the OP is that complainant suppressed the fact of “Vocal Card Folyp” and breathlessness and obtained the policy.  The alleged ailment is excluded under clause No.1 of the policy.  Hence OP is not bound to settle the claim.  This contention of the OP cannot be accepted, because policy inception date is 16.06.2009. The complainant has undergone operation on 28.08.2009 i.e. on the date of admission and discharged on 31.08.2009. The complainant in her affidavit has denied the fact that she was having any knowledge or any problem relating to change in voice and difficulty in breathing at the time of issuing the policy. The doctors of OP had checked the complainant and on issuance of recommendation by panel doctors only OP had issued the policy. If complainant was aware of the existing decease and has obtained the policy by suppressing the said fact then it amounts to suppression of facts. In this case complainant was not aware of any decease at the time of obtaining the policy.  Burden is on the OP to establish that complainant was aware of the pre-existing decease. Doctor in anticipation of any problem at the later stage has advised for operation. Burden of proving suppression of facts and pre-existing decease is on the OP. RW-2 Dr. Chetana though filed her affidavit in support of the version of OP that problem of such kind cannot occur suddenly and only it gets generated gradually only in extreme level surgery will be advised.  This opinion is not based on any medical proof. Hence same cannot be accepted. OP failed to discharge the burden.  OP has not produced any piece of evidence to show that complainant was suffering from ‘Vocal Card Folyp’ and breathlessness at the time of submitting the proposal or at the time of obtaining the policy. Hence repudiation of claim is unjust and improper.

9.      When policy is in force as on the date of operation as per the terms of the policy complainant is entitled for reimbursement of medical expenses.  Hence repudiation of claim by OP amounts to deficiency in service on the part of the OP. The complainant admitted to the Chord Road Hospital Pvt. Ltd., on 28.08.2009 with a complainant of change in voice and difficulty in breathing.  She was diagnosed “Poly Left Vocal Cord”. Micro laryngeal excision done under GA on 29.08.2009 and discharged on 31.08.2009.  Complainant incurred expenses of Rs.17,532/- towards operation and medical expenses; the receipts and medical bills, discharge summary issued by the hospital is produced. Further the same hospital issued the certificate dated 23.11.2009 to the complainant stating; the said disease was not pre-existing and also Dr. Deepak Haldipur, ENT Surgeon working at Chord Road hospital filed his affidavit swearing to the fact that he conducted the surgery on 28.08.2009 for Micro laryngeal excision of left Vocal Card policy; under general anesthesia and also issued the certificate stating this disease was not pre-existing. The documents produced by the complainant corroborate the case of the complainant.  When policy is in force non payment of hospital expenses and bills to the extent of Rs.17,532/- to the hospital authorities amount to deficiency in service on the part of the OP. For no fault of complainant she was made to suffer both mental agony and at that crucial moment she was made to arrange amount from outside.  This act of Op amounts to deficiency in service. We are satisfied complainant is able to prove deficiency in service on the part of the OP.  Under these circumstances we are of the considered view that complainant is entitled for reimbursement of medical expenses to the extent of Rs.17,532/- repudiation of the claim is unjust and improper.  Accordingly we proceed to pass the following:

ORDER

          The complaint filed by the complainant is allowed in part. OP is directed to reimburse medical expenses of Rs.17,532/- and pay litigation cost of Rs.2,000/- to the complainant; within 30 days from the date of communication of this order failing which complainant is entitled for interest at the rate of 12% p.a. on the said amount from the date of complaint till the date of realization.

(Dictated to the Stenographer and typed in the computer and transcribed by him verified and corrected, and then pronounced in the Open Court by us on this the 7^th day of March 2011.)

                                                  PRESIDENT

MEMBER                                          MEMBER             

gm.