BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 31st of October 2011
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
COMPLAINT NO.281/2010
(Admitted on 23.10.2010)
Mrs.Harinakshi,
Aged about 48 years,
Wo. Mr.Chandrashekha Shetty,
RA. Chowki House,
P.O. Badaje, Manjeshwara,
Kasaragod District 670 323. …….. COMPLAINANT
(Advocate for the Complainant: Sri.A. Nagaraj N)
VERSUS
1. T.T.K. Health Care Services Pvt. Ltd.,
City Plaza, II Floor,
No.201, 202, 203, K.R. Rao Road,
Shedugudda, Near P.V.S. Circle,
Mangalore 575 003.
2. The United India Insurance Co. Ltd.,
Krishnaprasad, Opp: Popular Building,
K.S. Rao Road, Mangalore – 575 001,
Represented by its Manager. ……. OPPOSITE PARTIES
(Advocate for the Opposite Parties: Sri.K.Dayananda Rai).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant submitted that, she along with her family members were insured under the Mediclaim Policy by name ‘Synd Arogya Group Policy’ bearing No.070801/48/09/14/00000355 which is valid from 19.08.2009 to 18.08.2010. The above said policy was issued in continuation of earlier policy bearing No.571101/48/06/ 8500001126 dated 14.08.2006 in continuation of this policy.
It is submitted that, the Complainant has got admitted to Mangala Hospital Mangalore for treatment of her fibroid uterus with fibro lipoma of ulva on 20.01.2010 and underwent total abdominal hysterectomy with BSO with excision of vilval fibro lipoma and discharged on 29.01.2010. After discharge from the hospital the Complainant has submitted the claim form along with all the original medical/hospital/doctor’s bills amounting to Rs.60,000/- and also submitted original laboratory report, original discharge summary issued by the hospital but the Opposite Party No.1 was evading to answer the Complainant with regard to her claim on one or the other pretext. Meantime, Opposite Party No.2 sent a renewal notice pertaining to the above said policy and the same was renewed as per policy No.070801/ 48/10/14/00000516. Even after the renewal of the policy there was no response from the Opposite Parties. Finally the Complainant got issued a Lawyer’s notice dated 26.08.2010 calling upon the Opposite Parties to settle the claim but the Opposite Parties repudiated the claim by stating that the Complainant had a pre-existing disease and suppressed the material facts as to their health conditions while obtaining the policy. It is stated that the repudiation made by the Opposite Parties are arbitrary and hence the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to pay Rs.60,000/- towards the medical expenses incurred for her treatment along with interest at 12% p.a. from the date of admission to the hospital till realization and also claimed Rs.55,000/- as compensation and cost of the proceedings.
2. Version notice served to the Opposite Party No.1 and 2 by RPAD. Opposite Party No.1 and 2 appeared through their counsel filed version as follows:
The Opposite Party No.2 i.e., United India Insurance Co. admitted the policy but stated that the Complainant has suppressed the true and correct version as well as material facts regarding the terms of the policy and ailment in order to make unlawful gain. It is stated, that the policy bearing No.070801/48/09/14/00000355 issued to the husband of the Complainant is not in continuation of the earlier mediclaim policy No.571101/48/06/8500001126 dated 14.08.2006 with National Insurance Company. It is stated that the Complainant was insured with the National Insurance Company from 2005 to 2008 and with the Opposite Party No.2 for the period from 19.08.2009 to 18.08.2011 under the policy No.070801/48/09/ 14/0000516. There was no continuity in the period of insurance of the Complainant. The Opposite Party No.2 has issued a new policy for the period from 19.08.2009 to 18.08.2011.
It is stated that, under clause No.4.3 of the policy issued by the Opposite Parties for the period from 19.08.2009 to 18.08.2011 i.e., during the first year of the operation of the policy the expenses on treatment of diseases such as cataract, benign, Prostatic, Hypertrophy and Hysterectomy for menorrhagia or Fibromyoma, Hernia, Hydrocle, congenital internal diseases, fistula anus, piles, sinusitis and related disorders are not payable. If these diseases are pre-existing at the time of proposal they will not be covered even during subsequent period of renewal and stated that the diseases of the Complainant are pre-existing at the time of proposal and suppressed by her and stated that there is no deficiency and prayed for dismissal of the complaint.
Opposite Party No.1 adopted the version of Opposite Party No.2 by filing a memo.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Mrs.Harinakshi (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on her. Ex C1 to C37 were marked for the Complainant as listed in the annexure in detail. One Sri.Shesha Naik (RW1), Administrative Officer of the Opposite Party No.2 filed counter affidavit and answered the interrogatories served on him. The Complainant filed notes of arguments and also citations. Opposite Parties also filed notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
In the instant case, the facts which are not in dispute are that, the Complainant was insured under the Mediclaim Policy bearing No.070801/48/09/14/00000355 which was valid from 19.08.2009 to 18.08.2010 as per Ex C3. The above said policy was issued by the Opposite Parties i.e., United India Insurance Company Limited to her husband under which the health risk of the family members including the Complainant are covered.
Now the points are in dispute between the parties before this FORA is that, according to the Complainant, the aforementioned policy was issued in continuation of the earlier Mediclaim Policy No.571101/48/06/8500001126 dated 14.08.2006 tie up health policy No.571101/48/07/8500000735 dated 14.08.2007 with the National Insurance Company. Further stated that the Complainant has got admitted to Mangala Hospital Mangalore for treatment of her fibroid uterus with fibro lipoma of ulva on 20.01.2010 and underwent total abdominal hysterectomy with BSO with excision of vilval fifro lipoma and discharged on 29.01.2010 and spent Rs.60,000/- for the treatment which includes medical/hospital/ doctor’s bills but the Opposite Party repudiated the claim stating that her claim falls under Clause 4.3 of the policy. Feeling aggrieved by the above, the Complainant came up with this complaint.
The Opposite Parties on the other hand interalia contended that the claim of the Complainant stands rejected under clause 4.3 of the policy and there was no continuity in the period of insurance when there was a break in the insurance. The new policy will be treated as a fresh insurance and the conditions will apply denovo.
The Complainant in order to substantiate her averments filed oral evidence by way of affidavit and produced Ex C1 to C37. Opposite Parties also filed oral evidence by way of affidavit.
We have perused the oral as well as documentary evidence available on record. Admittedly, the Complainant’s husband one Mr.Chandrashekhar Shetty obtained ‘Synd Arogya Group Policy’ bearing No.070801/48/09/14/00000355 which was valid from 19.08.2009 to 18.08.2010 from the Opposite Party i.e., United India Insurance Company Limited was a new policy because there was a break in insurance. When there was no continuity in the period of insurance the new policies issued by the Company treated as a fresh insurance and the contentions taken by the Complainant that the policy No.070801/48/09/14/00000355 issued by the Opposite Parties was in continuation of the earlier mediclaim policy No.571101/ 48/06/8500001126 dated 14.08.2006, tie up health policy No.571101/ 48/07/8500000735 dated 14.08.2007 cannot be accepted and there is no material produced before this FORA to show that the policy was in continuation of the earlier policy. However, the Ex C1 i.e., the Insurance policy bearing No.571101/48/06/8500001126 issued by the National Insurance Company was valid from 14.08.2006 to 13.08.2007. The another policy i.e., Ex C2 bearing policy No.571101/ 48/07/8500000735 was valid from 14.08.2007 to 13.08.2008 and the 3rd policy i.e., Ex C3 bearing policy No.070801/48/09/14/00000355 issued by the Opposite Parties was valid from 19.08.2009 to 18.08.2010, there was a break in the policy. Hence, it cannot be treated as the policy No.070801/48/09/14/00000355 was issued in continuation of the earlier policy.
As far as clause No.4.3 of the policy is concerned, the Opposite Parties took a specific contention that the claim of the Complainant falls within the purview of Clause 4.3 of the Insurance Policy. When that being so, the entire burden lies on the Opposite Parties to prove the same.
However, the clause No.4.3 of the policy which reads as under:
“During the first year of the operation of the policy the expenses on treatment of diseases such as cataract, benign, Prostatic, Hypertrophy and Hysterectomy for menorrhagia or Fibromyoma, Hernia, Hydrocle, congenital internal diseases, fistula anus, piles, sinusitis and related disorders are not payable. If these diseases are pre-existing at the time of proposal they will not be covered even during subsequent period of renewal”.
It is seen that the discharge summery issued by Mangala Hospital and Mangala Kidney Foundation i.e., Ex C6 reveals that the patient i.e., the Complainant herein came with a history of irregular menstruation with heavy bleed and clots 3 months back later taken medication for the same. She has been diagnosed as fibroid uterus with fibro lipoma of ulva. Further the above medical records reveal that, the treatment given by the doctor was total abdominal hysterectomy with BSO with excision of vulval Fifro lipoma done under SA on 24.01.2010 and discharged on 29.01.2010. But the plain reading of the exclusion clause it reveals that, the hysterectomy for Menorrhagia and other related disorders are not payable. Except producing the letter dated 01.02.2010 issued by the TTK Healthcare nothing has been produced by the Opposite Parties. It is indeed difficult to see that the disease suffered by the Complainant falls within the purview of 4.3 of the exclusion clause of the policy. There is no evidence that it is a chronic or casual one. The Opposite Party not produced any tangible evidence to prove that the disease suffered by the Complainant falls within the disorder of hysterectomy for menorrhagia or other related disorders. In the instant case, the reliance has been placed on a discharge summary of the patient issued by the hospital where the patient was treated. Atleast the Opposite Party should have examined the treated doctor or medical literature available on popular website in order to appreciate their defence. No medical literature available to show that the disease suffered by the Complainant falls within the purview of exclusion clause. However, for better appreciation we have gone through the popular websites i.e., “Google” discloses women’s health information, wherein, the ‘hysterectomy’ means surgical removal of the uterus. A hysterectomy is major operation to remove a woman’s uterus. It is carried out to treat various problems associated with periods, pelvic pain, tumours and other related conditions. The problem experiencing will determine what type of operation is required. It is important that one must understand why doctor has suggested hysterectomy. There are many types of hysterectomies. As we mentioned herein above, hysterectomy is an operation to remove the uterus. The medical history and the reason for the operation will shape the doctor’s decision as to which type of hysterectomy is required.
It is seen that, in the instant case, total abdominal hysterectomy with BSO with excision of vilval fifro lipoma done. But the Opposite Party failed to establish that the fibroid uterus with fibro lipoma of vulva is falls within the purview of Section 4.3 of the exclusion clause as we said herein above. There are many types of hysterectomy i.e., a complete or total hysterectomy, a partial or subtotal hysterectomy, a radical hysterectomy, vaginal hysterectomy, abdominal hysterectomy. Under the heading ‘abdominal hysterectomy’ the website discloses that this method is usually chosen for large pelvic tumours, adhesions or cancer. But the Opposite Parties failed to establish that the diagnosis of the doctor in Mangala Hospital i.e., fibroid uterus with fibro lipoma of vulva is falls within the exclusion clause. According to us, the ground for repudiation is not well based. The discharge summary discloses that she had irregular menstruation with heavy bleed and taken medication for the same. But she may not know that the above will turn to abdominal hysterectomy. When that being so, the Opposite Party Company cannot say that she had suppressed the material information with regard to the above disease. The Opposite Party should have examine the doctor in order to substantiate that the disease suffered by the Complainant is falls within the purview of 4.3 of the policy. In the absence of the same, we hold that the repudiation is arbitrary and not justifiable. Therefore, we hereby direct the Opposite Party No.1 to reimburse the medical expenses spent by the Complainant.
However, the Complainant filed affidavit along with medical bills i.e., Ex C12 to C37, wherein the Complainant spent Rs.43,877.02 towards the treatment which appears to be genuine in this case. Hence, the Opposite Party No.2 i.e., United India Insurance Company Limited represented by its Manager is hereby directed to pay a sum of Rs.43,877/- to the Complainant towards the medical expenses along with interest at 9% p.a. from the date of claim till the date of payment. Further Rs.1,000/- awarded as cost of litigation expenses. Payment shall be made within 30 days from the date of this order.
However, the interest as well as compensation both cannot be allowed. Interest is always inclusive of compensation.
There is no contractual relationship between the Complainant and Opposite Party No.1 i.e., TTK Health Care Services Private Limited, hence complaint against Opposite Party No.1 is hereby dismissed.
6. In the result, we pass the following:
ORDER
The complaint is partly allowed. Opposite Party No.2 i.e., United India Insurance Company Limited represented by its Manager is hereby directed to pay a sum of Rs.43,877/- (Rupees forty three thousand eight hundred and seventy seven only) to the Complainant towards the medical expenses along with interest at 9% p.a. from the date of claim till the date of payment. Further Rs.1,000/- (Rupees one thousand only) awarded as cost of litigation expenses. Payment shall be made within 30 days from the date of this order.
Complaint against Opposite Party No.1 is hereby dismissed.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge or sent to the parties under postal certificate and thereafter the file shall be consigned to the record room.
(Page No.1 to 12 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 31st day of October 2011.)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mrs.Harinakshi – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – : Notarized copy of the Mediclaim Policy No.571101/48/06/8500001126 issued by the National Insurance Company for the period from 14.08.2006 to 13.08.2007.
Ex C2 – : Notarized copy of the Tie up health policy No.571101/48/07/8500000735 issued by National Insurance Co for the period from 14.08.2007 to 13.08.2008.
Ex C3 – : Notarized copy of the Synd Arogya Mediclaim Policy No.070801/48/09/14/00000355 issued by the Opposite Party No.2 for the period from 19.08.2009 to 18.08.2010.
Ex C4 – : Notarized copy of the renewed policy of the above Synd Arogya Policy for the year 2010-11.
Ex C5 – : Notarized copy of the identity card issued by the Opposite Party No.1.
Ex C6 – 20.01.2010: Copy of the discharge summary issued by Mangala Hospital and Mangala Kidney Foundation.
Ex C7 – : Copy of the discharge bill and doctor’s bill (4 in numbers).
Ex C8 – 01.02.2010: Claim acknowledgement issued by the Opposite Party No.1.
Ex C9 – 26.08.2010: Copy of the legal notice issued to the Opposite Parties along with postal receipts and postal acknowledgements (5 in numbers).
Ex C10 – 30.08.2010: Repudiation letter issued by the Opposite Party No.1.
Ex C11 – 20.01.2010: Original discharge summary issued by Mangala Hospital and Mangala Kidney Foundation (Ex C6 – copy of the same).
Ex C12 to C33 - : Medical bills issued by the Mangala Hospital for a total sum of Rs.22,427.62 (22 in numbers).
Ex C34 – 30.01.2010: Receipt issued by Dr.Latha Sharma for Rs.14,000/-.
Ex C35 – 30.01.2010: Bill issued by Dr.P.Ganapathy for Rs.6,400/-.
Ex C36 - : Medical bill issued by Mangala Hospital for Rs.108/-.
Ex C37 – 30.01.2010: Cash memo issued by the Family Medical for Rs.941.40/-.
Witnesses examined on behalf of the Opposite Parties:
RW1 – Sri.Shesha Naik, Administrative Officer of the Opposite Party
No.2.
Documents produced on behalf of the Opposite Parties:
Dated:31.10.2011 PRESIDENT
