BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 15th March 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.179/2013
(Admitted on 29.06.2013)
Mr. Vinayachandra D Suvarna,
S/o late Damodhara Suvarna,
Aged 54 years,
Vaishnav, Shivabhag Main Road,
Kadri, Mangalore 575 002.
….. COMPLAINANT
(Advocate for the Complainant: Sri RRK)
VERSUS
The Authorised Signatory,
Bajaj Allianz Gen. Insurance Co, Ltd,
Health Administration Team,
2nd Floor, Bajaj Finserv Building,
Survey No.208/B.1,
Behind Weikfield IT Park,
Off. Nagar Road, Viman Nagar,
Pune 411 014.
…........OPPOSITE PARTY
(Advocate for the Opposite Party: Sri KP)
ORDER DELIVERED BY HON’BLE MEMBER
SRI T.C. RAJASHEKAR:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act 1986 alleging deficiency in service against the Opposite Party claiming, to pay a sum of Rs.1,41,976/ being the hospital bills amount and to pay a sum of Rs.2,00,000/ for deficiency in service unfair trade practice, mental agony, torture, irreparable injury and loss and damages with interest at 18% per annum from 22.6.2012 and the cost of the complaint.
2. In support of the above complainant Mr. Vinayachandra D. Suvarna filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C17 as detailed in the annexure here below. On behalf of the opposite parties Mr. Sadashiva K (RW1) Legal officer and authorized signatory of Bajaj Allianz Gen. Ins. Co. Ltd., also filed affidavit evidence and answered the interrogatories served on him and produced documents got marked at Ex.R1 to R5 as detailed in the annexure here below. Dr. Kiran B (RW2) also filed affidavit evidence and answered the interrogatories served on him.
The brief facts of the case are as under:
We have perused the complaint and the version of the parties. This dispute arose when the opposite party repudiated the mediclaim on the policy obtained by the complainant. The complainant alleges that he had obtained a mediclaim policy and admitted for hospital and got treatment of angiogram and submitted the claim bill to the opposite party, but the opposite party repudiated the claim and hence deficiency in service. The opposite party contested the allegations stated that the complainant has committed breach of policy condition by not disclosing the pre disease and hence there is non disclosure of material facts and hence the repudiation is proper and there is no deficiency in service on their part. These are being the facts of dispute in resolving it we consider the following.
POINTS FOR ADJUDICATION.
On considering the evidence lead and the documents produced, the admitted facts are, The issue of policy and its subsistence and the admission to hospital and treatment taken. It is also admitted that the claim was repudiated on the ground of non disclosure of pre disease. It is not denied the bill amounts and its submission to opposite party for refund and the nature of treatment taken or operation done. Admissions and the denials reconciled and considered the following points for adjudication.
- Whether the complainant is a consumer under the consumer protection Act 1986?
- Whether opposite party proves the repudiation is proper and justifiable?
- Whether the complainant is entitled for the relief prayed for?
- What order?
On close examination of the evidence produced and the scrutiny of the documents on record and on considering the notes filed, we heard the party counsel submissions and answered the above points as under:
- In the affirmative.
- In the negative.
- In the affirmative.
- As per delivered order.
REASON
POINT NO. 1: We have referred the document EX C 1 produced by the complainant which is the mediclaim insurance policy SILVER HEALTH POLICY where it is obtained in the name of the complainant herein and it is not disputed too. Hence we hold the point No 1 in the affirmative.
POINT NO. 2: The complainant admitted to the Omega Hospital from 19.06.2012 to 22.06.2012 and undergone angioplasty by inserting stent and submitted the hospital bill to the opposite party for claim settlement and the claim was repudiated and all these facts are admitted. The opposite party on the contention of the policy condition breach repudiated the claim. Hence it is opposite party burden to prove the breach of the policy condition. Hence the point No. 2 taken for consideration.
2. In proving his case the opposite party contends that first, there is non-disclosure of pre-disease while submitting the proposal form, secondly, the policy has exclusion for diabetic mellitus and its complications during the first year of policy. In our opinion the opposite party has to prove there is non-disclosure of pre-disease prior to taking insurance policy and the treatment taken by the insured is the result of diabetic complications.
3. The opposite party not produced any documents to establish the pre-disease and its treatment in hospital but claims in his version para 11 that, the treatment documents pertaining to the complainant for the treatment undergone at Omega Hospital Mangalore on 19.06.2012 disclosed that he was hospitalized for treatment of diabetic mellitus with hypertension and ischemic heart disease. It is further revealed that the complainant is known to be suffering from PCI TO LAD and RCA 1 ½ years back.
We have meticulously examined the discharge summery issued by the Omega Hospital Mangalore produced by the opposite party as EX-R 3. The same has been engrossed below.
FINAL DIAGNOSIS: DIABETES MELLITUS TYPE II
HYPERTENSION
ISCHAEMIC HEART DISEASE
S/P PCI TO LAD & RCA 1 ½ YEAR
As per opposite party contention this summery is the only base for coming into conclusion that the complainant had diabetic mellitus and heart disease prior to policy purchase. In the first instance it is not
history but it is final diagnosis made on 22.06.2012 after discharge from the hospital after operation. The report continuous to state that, CAG 20.062012: TWO VESSEL DISEASE LAD (MID) PATENT STENT...and so on. In our view this summery cannot be accepted without corroborative evidence. As per opposite party version as above engrossed that, the treatment documents pertaining to the complainant for the treatment undergone at Omega Hospital Mangalore disclosed that he was hospitalized for treatment of diabetic mellitus with hypertension and ischemic heart disease. According to opposite party the Omega hospital treatment documents disclosed the hospitalization for treatment, but the opposite party has not produced any past treatment documents of omega hospital and the present discharge summery is not disclosing anything about past hospitalization or treatment undergone except the present hospitalization. The only mention as S/P PCI TO LAD & RCA 1 ½ YEAR can we jump into conclusion that the complainant had pre-disease of diabetic mellitus and heart problem when there is document (EX C 14) to show that the glucose was normal as on 26.11.2011 as per medical examination conducted by the opposite party himself. The opposite party panel doctor by secret report send this information to opposite party. The other point pertinent to note that the policy EX R 5 produced by the opposite party recommended by the opposite party doctor is with exclusion clause as to exclude the illness by the result of diabetic complications by stating in the policy as any claims in respect of any disorder, injury, disease, disability, or treatment whether directly or indirectly caused by or attributable to diabetes...policy period(in case...still applicable). We are at a lost to understand when there is no traces of blood or urine glucose in test report EX C14 taken by the opposite party before issuing the policy, why this exclusion suggested.
Some of the points observed in the medical examination report given by the opposite party appointed doctor Mr Dinesh M.D. is worth mentioning here.
- It is secret report not in the information of the complainant.
- Q No 6: Do you consider the respiratory system to be healthy? Answered Yes
- Q No 8: Is there any evidence of cardiac hyper trophy? Answered No. Heart sounds normal.
- Q no 12: Is the pulse normal in character? yes
- Q no 16: Sugar absent.
- Q no 19: is there any further evidence, medical, or otherwise, which you think should be obtained in order to assess the person to be fit for health insurance? Answered No.
What emanated from the above points are, the opposite party doctor examined the insured thoroughly and answered the points and Question no 19 reveals the doctor had opportunity to further investigate which the doctor presumed to be satisfied with the examination and the test report. As per doctors opinion it is evident that the insured has considered the respiratory system healthy, No cardiac problem, heart sounds normal, and no sugar. It proved that the insured had no either heart problem or diabetic mellitus before issue of policy.
It is true in the discharge summery EX R3 it is stated
FINAL DIAGNOSIS: DIABETES MELLITUS TYPE II
HYPERTENSION
ISCHAEMIC HEART DISEASE
S/P PCI TO LAD & RCA 1 ½ YEAR
The question is only because it is sated as S/P PCI TO LAD & RCA 1 ½ YEAR and stated to be Final diagnosis at the time of present hospitalization to be believed as pre disease and non disclosure? The question is, after one and half year can it be finally diagnosed as stated in the report by a doctor. The source of diagnosis not revealed. It is not in history column. The opposite party not produced any test report of 1 ½ years back in spite claims that the insured has been hospitalized for the said treatment. There is other documentary evidence and circumstances to show that the complainant was of normal health before issuing the policy. The opposite party not produced a single paper to show the hospitalization and treatment taken and also the Doctor treated and the doctor given medical examination report have not been examined and get clarified with the source of their findings, we are tight lipped to say the complainant had the pre disease and not disclosed it. It is also not proved that the present heart related problem is the complication arising out of diabetic mellitus or attributable to diabetic with any report or anything found in the discharge summery to establish it.
We deem it fit to throw some light on the policy condition C on which the opposite party vehemently addressed. The condition added in bracket that the insured shall reveal the pre-disease which is even not in his knowledge. The law of the land and as well as natural justice do not support this kind of conditions and damn it as not for the modern society. How one can expect to reveal facts which is not in his knowledge. The condition itself bad abinitio and the opposite party cannot rely on the said condition.
So on the base of these discussions we hold the opposite party not proved the repudiation as proper and justified it and there is deficiency in service on the part of the opposite party and we answered the point no 2 in the negative.
POINT NO. 3: As per above discussion we arrived at the conclusion that the opposite party not shown any record or evidence to show that the complainant had pre disease and not disclosed except a note in the discharge summery without corroborative evidence and the note was mentioned in the final diagnosis but not in the history column, we hold the opposite party not appreciated the facts properly while repudiating the claim and liable for deficiency in service. The complainant is entitled for relief prayed for. The complainant claimed an amount of Rs. 1,41,976/ towards medical expenses bills and the opposite party not disputed the bill and the amount and hence the complainant is entitled for the same with an interest of 10% per annum from the date of repudiation till the date or payment and an amount of Rs. 20,000/ towards compensation and Rs. 6,500/ towards cost.
POINT NO 4: In the light of above discussion and adjudication of the above points we deliver the following
ORDER
The complaint is allowed. The opposite party shall pay the complainant an amount of Rs. 1,41,976/(Rupees One lakh forty one thousand nine hundred seventy six only) with an interest of 10% per annum from the date of repudiation till the date of payment and an amount of Rs.20,000/(Rupees Twenty thousand only) towards compensation and Rs.6,500/(Rupees Six thousand five hundred only) towards litigation expenses within 30 days from the date of order copy received.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 10 directly typed by Member, revised and pronounced in the open court on this the 15th March 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKAR) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore. Additional Bench, Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. Vinayachandra D. Suvarna
Documents marked on behalf of the Complainant:
Ex.C1: Copy of the policy
Ex.C2: Copy of the Discharge bills dated 22.06.2012
Ex.C3: The Claim form submitted by the complainant
Ex.C4: The copy of the letter from OP rejecting the claim of the complainant dated 14.08.2012
Ex.C5: Office copy of the lawyers registered notice sent to OP Dated 11.09.2012, along with the postal receipt Dated 13.09.2012
Ex.C6: Letter sent by the OP dated 05.10.2012
Ex.C7: The second lawyer’s notice sent by the complainant to OP dated 03.12.2012, along with the postal receipt dated 10.12.2012
Ex.C8: Original medical bills with medical report
Ex.C9: Original claim form
Ex.C10: Original medical examination report for health insurance
Ex.C11: Electro Cardiogram by SRL Diagnostics
Ex.C12: Test report CBC with ESR by SRL Diagnostics
Ex.C13: Test report immunoassays by SRL Diagnostics
Ex.C14: Test report bio-chemistry by SRL Diagnostics
Ex.C15: Lipid profile by SRL Diagnostics
Ex.C16: Urine Analysis
Ex.C17: Self attested copy of certificate dated 22.06.2012 Issued by Dr. Mukund.
Witnesses examined on behalf of the Opposite Parties:
RW1 Mr. Sadashiva K, Legal officer and authorized signatory of Bajaj Allianz Gen. Ins. Co. Ltd.
RW2 Dr. Kiran B.
Documents marked on behalf of the Opposite Parties:
Ex.R1: Original proposal form for Silver Health Policy submitted by complainant.
Ex.R2: 08.12.2011 rating letter for Health check up
Ex.R3: Original discharge summary of Omega Hospital Pvt, Ltd
Ex.R4: 09.07.2012 Repudiation letter
Ex.R5: True copy of Silver Health policy schedule with terms and Conditions.
Dated: 15.3.2017 MEMBER
