Date of filing:19-08-2013
Date of Disposal:08-09-2014
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: ANANTHAPURAMU
PRESENT:- Sri S.Niranjan Babu, B.A.,B.L., President (FAC).
Smt.M.Sreelatha, B.A., B.L., Lady Member
Monday, the 8th day of September, 2014
C.C.NO.124/2013
Between:
A.Papanna S/o Late A.Narayanappa
D.No.1-824, A.S.R. Nagar,
A.Narayanapuram Village,
Ananthapuramu Rural & District. …. Complainant
Vs.
- The Authorized Signatory,
Star Health & Allied Insurance Company Ltd.,
Corporate Office: 1, New Tank Street,
Valuvarkottam High Road
Nungambakkam,
Chennai – 600 034.
- The Branch Manager,
Star Health & Allied Insurance Company Ltd.
II Floor, D.N.R. Complex,
Sapthagiri Circle,
Ananthapuramu – 515 001. …. Opposite parties
This case coming on this day for final hearing before us in the presence of Sri S.Gopi, Advocate for the complainant and Sri A.G.Neelakanta Reddy, Advocate for the opposite parties 1 & 2 and after perusing the material papers on record and after hearing the arguments on both sides, the Forum delivered the following:
O R D E R
Smt.M.Sreelatha, Lady Member:- This complaint has been filed by the complainant under section 12 of the Consumer Protection Act, 1986 against the opposite parties 1 & 2 claiming a sum of Rs.1,047,610/- towards balance medical expenses, Rs.5,000/- towards incidental charges, Rs.1,000/- towards notice charges and Rs.25,000/- towards mental agony in total Rs.1,78,610/- with future interest and costs
2. The brief facts of the complaint are that :- The complainant is the permanent resident of D.No.1-824, A.S.R.Nagar, A.Narayanapuramu, Ananthapuramu Rural and District and the opposite parties are Health Insurance Company having its Headquarters at Chennai and Branch Office at Ananthapuramu. The complainant has taken Family Health Insurance Policy bearing No.P/141122/01/2013/000841 on 30-10-2010 by paying premium of Rs.7,612/- , which is valid from 10-11-2012 to 09-11-2013 from the 2nd opposite party, which covers limit of Rs.3,10,000/- for 2 adults and 2 children. The complainant and his family have been covered under the policy from the year 2010 to 2013 for 3 years. Recently, the wife of the complainant admitted in St.Johns Medical College Hospital, Bangalore on 20-05-2013 for treatment and got surgery vide diagnosis L4,L5,L5-S1,IVDP and incurred an expenditure of Rs.2,47,610/-and after that the complainant preferred Medi-claim to the 1st opposite party by furnishing all relevant documents and bills in original. Surprisingly the 1st opposite party repudiated the claim by settling Rs.1,00,000/- to the hospital towards the treatment and hospitalization expenses and further rejected the remaining claim stating that no further amounts available for payment under the policy for the present claim on 01-07-2013 vide Claims Medical Rejection No.CLI/2014/141122/032112. The policy limit of coverage is Rs.3,10,000/- and the claim of the complainant is only Rs.2,47,610/- and they settled for Rs.1,00,000/- and the opposite parties have to pay entire claim to the complainant. On the advice of doctors and both parties the complainant went on for surgery of his wife. While the complainant was proceeding to the surgery he has been informing every step and taking advice of both parties as per the policy terms and conditions. The complainant has intimated the matter of hospitalization of insured person within 24 hours from the time of admission and he followed the terms of policy plan schedule 1.0 A) to F) and he admitted his wife at St.John Medical College Hospital at Bangalore, which comes within the meaning of definitions of policy plan schedule. The opposite parties cannot escape from their liability under the policy. They have paid only a part amount under the medi-claim and rejected the remaining claim, it comes within the purview of deficiency of service to the complainant under the Health Insurance Policy. Hence, the complainant got issued legal notice on 29-07-2013 to the opposite parties demanding for remaining balance of Rs.1,47,610/- with incidental expenses of Rs.5,000/- and the said notices served on the opposite parties but there is no reply from them. The complainant suffered mental agony and there is deficiency of service on the part of the opposite parties.
3. The 1st opposite party filed a counter stating that as per the Medical record the wife of the complainant was hospitalized from 20-05-2013 to 29-05-2013 in St.Johns Medical College Hospital, Bangalore for the treatment of L4, L5, L5 S1 IVDP Intervertebral Disc Prolapse with deficits and that the said disease for which treatment was received , developed over a period of time and that the complainant had failed to disclose the said physical condition in existence, while availing the insurance cover from 10-11-2012 for Rs.3,10,000/- and that there was non-disclosure and suppression of a material fact as well and that the claim of the complainant does not fall under the purview of the said Family Health Optima Insurance Policy valid from 10-11-2012 to 09-11-2013 and that the said disease, which is related to a pre-existing condition and falls under the previous year Family Health Optima insurance Policy, which restricts the liability of the 1st opposite party company at Rs.1,00,000/- only and accordingly the claim of the complainant was settled at Rs.1,00,000/- only as per the terms and conditions of the policy and as such the complaint is liable to be dismissed on that ground alone. The 1st opposite party submits that the insured – wife of the complainant had symptoms and signs before the enhancement of the sum insured and the liability of the 1st opposite party company is restricted to the sum insured during the inception of the policy. The 1st opposite party further submits that ‘ on scrutiny of Medical records’, the Medical team of the 1st opposite party company observed that there is a discrepancy in the ICP whereas the duration of the LBA (Lower Back Ache – 1 year increased since 3 months) is struck off and mentioned as 3 months. The MRI Report of 22-05-2013 revealed Disc. Osteophyte complexes causing thecal sac compression at multiple levels and according to experts Orthopaedician opinion, the MRI Report points to multiple level disc disease and early facet joint hypertrophy, which indicates chronicity. Hence, this illness must definitely exists for more than seven months. Since the onset of the disease is on the previous year policy for which the sum insured is Rs.1,00,000/-, the amount approved was restricted to Rs.1,00,000/- as per the terms and conditions of the said policy of insurance. Further as per the condition No.9 of the said policy “ in respect of illness of disease/sickness/illness, the sum insured will be restricted to that policy sum insured when the signs and symptoms was diagnosed, medical advise/treatment received “. Thus is the maximum payable duly taking into account the nature of illness/treatment/procedure done and also as are reasonably and necessarily incurred as stated in the preamble of the policy of insurance. Hence the claim was disallowed and the same was communicated to the complainant vide letter dt.01-07-2013. Since the claim of the complainant was already settled for Rs.1,00,000/- as per the terms and conditions of the said Family Health Optima Insurance Policy, this Forum has no jurisdiction to entertain the claim against the 1st opposite party and only civil suit is maintainable in a competent civil court. Most of the material facts, which are available with the complainant are not made available to this opposite party and that insurance policy is based on utmost good faith and that the complainant has a duty to be transparent and truthful and that the recorded documentary evidence shows otherwise and as such the 1st opposite party is not liable to make any further payment to the complainant. There is absolutely no deficiency of serviced on the part of this opposite party and there is no delay and default committed by this opposite party and this opposite party rejected the claim of the complainant on certain facts. The issues involved raise complicated question of fact and law. The issues raised cannot be determined without taking elaborate oral and documentary evidence and such elaborate scrutiny can be satisfactorily determined and performed only in a civil suit. The complainant has claimed a sum of Rs.1,78,610/- against different heads and the said claim is excessive, arbitrary and the complainant is not entitled to any amount further. The claim for Rs.25,000/- towards mental agony is not tenable under law and that the complainant is not entitled to any interest as there is absolutely no deficiency of service on the part of this opposite party. Hence prayed this Forum to dismiss the complaint.
4. The 2nd opposite party filed a memo adopting the counter filed on behalf of the 1st opposite party.
5. Basing on the above pleadings, the points that arise for consideration are:-
1. Whether repudiation made by the 1st opposite party is justifiable?
2. Whether there is any deficiency of service on the part of the opposite
parties 1 & 2?
3. To what relief?
6. In order to prove the case of the complainant, the complainant has filed evidence on affidavit on his behalf and marked Ex.A1 to A9 documents. On behalf of the opposite parties 1 & 2, evidence on affidavit of the 1st opposite party has been filed and marked Ex.B1 to B13 documents. Written arguments filed on behalf of the complainant.
7. Heard on both sides.
8. POINT NO.1:- As per the complaint and counter of the opposite parties, there is no dispute with regard to taking of policy by the complainant with the 1st opposite party for the period from 10-11-2012 to 09-11-2013 under policy No.P/141122/01/2013/000841 and paid Rs.7,612/- and sum assured is Rs.3,10,000/-. It is also no dispute that the policy was in force by the time of admission into the hospital. There is no dispute with regard to admission of the complainant’s wife in the hospital for surgery from 20-05-2013 to 29-05-2013. The opposite parties not denied that under the family health insurance the policy will cover for 2 adults + 2 children. Hence the wife of the complainant also comes within policy.
9. The counsel for the complainant argued that the wife of the complainant admitted in St.John Hospital, Bengaluru on 20-05-2013 for treatment with severe back ache and got surgery vide diagnosis L4-L5,L5-SI IVDP and incurred expenditure of Rs.2,47,610/-. The complainant preferred a claim to the 1st opposite party by furnishing all documents in original. But the 1st opposite party repudiated the claim by settling the claim for Rs.1,00,000/- towards treatment and hospitalization expenses and rejected the remaining claim stating no further amounts available for payment under policy for the present claim on 01-07-2013 under Ex.A9. Then the complainant got issued legal notice demanding for payment of remaining amount of Rs.1,47,610/- on 29-07-2013, but no reply from the opposite parties. Hence the present claim. The repudiation of the claim by the 1st opposite party is illegal, hence the complainant is entitled the claim.
10. The counsel for the opposite parties argued that as per the records of the complainant, it clearly shows that the wife of the complainant was suffering with L4-5 intervertebral disc prolapse with deficits. This disease will not come within short time and it is pre-existing disease and the complainant suppressed the pre-existing disease and taken the present policy. The counsel also argued that the hospital records clearly show that the complainant’s wife was suffering with L4-L5 disease for the past one year. As per the policy terms and condition No.1 if any pre-existing disease as defined in the policy until 48 consecutive months of continuous coverage has elapsed, since inception of the first policy with any Indian insurer. However the limit of the Company’s liability in respect of claim for pre-existing diseases under such portability shall be limited to the sum insured under first policy with any Indian Insurance Company. As per this condition, the complainant is entitled a sum of Rs.1,00,000/-, the complainant has taken policy with the opposite party from 2010 till 3 years. Hence, the repudiation made by the opposite parties is justifiable and the complainant is not entitled any amount as the complainant suppressed material fact.
11. The documents of the complainant and the opposite parties are one and the same i.e. Ex.A1 to A4 and B1 to B12 are the documents of proposal form, policy, terms and conditions of the policy and bills of hospital, discharge summary and MRI Report.
12. Under Ex.B11 the first policy taken by the complainant from 30-10-2010 to 29-10-2011 for Rs.1,00,000/-, Ex.B12 second policy from 10-11-2011 to 09-11-2012 and the present policy under Ex.B13 from 10-11-2012 to 09-11-2013. The opposite party counsel relying on the opinion of the doctor ground for repudiation, which is marked as Ex.B13. In Ex.B13 it is mentioned as per MRI Report presence of multiple level disc disease in cervical, dorsal and lumbar spine, facet joint hypertrophy and ligamentum flavum hypertrophy indicates chronicity. This must be a chronic degeneration of spine which has caused the present symptoms. In support of Ex.B13 no affidavit filed by the opposite party to consider Ex.B13. The opposite party relied on a decision reported in 2009 ACJ 726 (AP) between United India Insurance Co. Ltd., Vs. K.Sukada Bai and others wherein it is quoted that “ Evidence - appreciation of – photo copies of documents were marked by consent and they were not objected to for marking at the time of their introduction in evidence – objection that they are inadmissible in evidence as none connected with the documents was examined – whether the documents have evidentiary value held: yes they were introduced with consent. “ The counsel for the opposite party argued that when Ex.B13 was marked with consent it has to be taken into consideration. The doctor who gave the opinion relying of MRI Report marked under Ex.B8 (MRI Lumber spine and whole spine screening). By seeing the MRI we cannot understand the medical terminology, more-over with bare eyes the entire report says all spinal canal and intervertebral discs are normal. The doctor opined that as per MRI the disease must be chronic degeneration of spine which has caused the present symptoms. But to decide chronicity no proof filed by the opposite parties. The opinion about chronicity differ from one doctor to another. One doctor may say one month sufferance is chronic and another doctor may opine that one year ill-ness considered as chronic. When there is no clarity in the opinion we are not considering the opinion of the doctor. Admittedly by the date of surgery, the policy was in force and policy was taken for an amount of Rs.3,10,000/- and the complainant claiming only Rs.1,47,610/- as they incurred the same for surgery as they have already received Rs.1,00,000/- towards the claim. The opposite parties focusing on the document, which was issued by the St.John’s Hospital and marked as Ex.A5 and Ex.B3 (initial patient evaluation, that in the document it was strike off for 3 months though it indicates one year. But it is not like that as observed by the opposite party. In Ex.A5 document i.e. Discharge Summary, it is clearly mentioned that in the history column that C/o LBA – 3 months with ® LL radiculopathy, h/o claudication (+), no constitutional symptoms, trauma comorbidities, the same was mentioned in initial patient evaluation.
13. So the opposite parties miserably failed to show that the wife of the complainant was suffered with pre-existing disease and the complainant suppressed that material fact at the time of taking policy and the act of the opposite parties for settling the claim for Rs.1,00,000/- and repudiating the remaining claim is unlawful and unjustifiable. Hence, this point is answered accordingly in favour of the complainant and against the opposite parties.
14. The counsel for the complainant submitted written arguments that as per the existence policies the complainant is entitled an amount of Rs.3,10,000/- as the policy covers the surgery for discs also. The complainant incurred Rs.2,47,610/- towards hospital expenses and the opposite parties paid only an amount of Rs.1,00,000/- by keeping the remaining amount of Rs.1,47,610/- unlawfully and repudiated the claim with unreasonable clause in which the complainant is entitled under the policy. The complainant got issued legal notice on 29-07-2013 under Ex.A6. The legal notice served on the opposite party, but no reply for the same. For the first time before this Forum the opposite party raised the allegation of pre-existing disease in the counter, they have not raised that objection at the time of repudiation under Ex.A9. The opposite parties intentionally not settling the claim due to it the complainant suffered a lot of mental agony and the opposite parties failed to render services properly and it is a clear case of deficiency of service on the part of the opposite parties. The counsel for the complainant relying on a decision reported in 2006(4) CPJ 189 N.C. In this case, the Hon’ble National Commission held that the opinion given by the doctor is not be considered because the doctor treated the complainant or not is not proved by the Insurance Company. We are relying on this decision as the same set of facts in the present case also.
15. The counsel for the opposite party argued that as the complainant suppressed the pre-existing disease and the opposite parties settled the claim for Rs.1,00,000/- after taking opinion from doctors and also as per condition No.9 of policy, the complainant is entitled an amount of Rs.1,00,000/-, in para 2 of the counter further as per the condition No.9 of the said policy in respect of illness of disease/sickness/illness, the sum insured will be restricted to that policy sum insured when the signs and symptoms was diagnosed medical advise/treatment received. Hence the claim was repudiated by mentioning the same under Ex.A9 and the complaint is not maintainable before this Forum, only civil suit is maintainable and there is no deficiency of service on the part of the opposite parties, the onset of the disease is previous year policy, the sum assured is only Rs.1,00,000/-. Hence settled for Rs.1,00,000/-. In support of his arguments, the counsel for the opposite parties filed citations reported in 2012(I) CPJ 488 NC, 2009(1) CPJ 117 NC & 2013(4) CPJ 88 NC.
16. The arguments of the opposite parties about not maintainability of the complaint before this Forum is not considered because section 3 of Consumer Protection Act is addition to any other law and not in derogation of the provisions of any other law. The aggrieved may choose to resolve his dispute either before Consumer Fora or from a civil court. The Consumer Protection Act is made for the welfare of the consumer rights. More-over the Hon’ble Supreme Court held in 2012 CPJ SC Page 1. In the above case the Supreme Court held that section 3 of Consumer Protection Act is in addition to other provisions. Hence, we are of the opinion that this Forum having jurisdiction to entertain the complaint.
17. POINT NO.2 - About the deficiency of service the complainant proved that there is deficiency of service on the part of the opposite parties. Admittedly the complainant approached the opposite parties to take policy from the opposite parties in the year 2010 and renewed till 2013. If at all the illness is prior to taking of policy, they might have insured their lives for more value. If the complainant came to know his wife’s illness in the year 2012 itself, he might have insured for more value. The argument of the complainant is considered and believed that the back ache is not chronic disease as alleged by the opposite parties. The back ache attacks if any sudden pressure on the disc while travelling in any mode of transport. There is no option except to go for surgery or to bear with pain throughout life. The hospital records clearly reveals that the disease was occurred only 3 months prior to surgery. In the records i.e. Ex.A5 nowhere it is mentioned that the wife of the complainant has taken treatment for back ache prior to surgery nor she is advised for surgery. The opposite parties simply stated that the complainant suppressed material fact about previous illness. The burden is on the opposite parties to prove their case. As per terms & conditions of policy the opposite parties agreed to pay all the expenses incurred by the complainant while his wife is in hospital for treatment. As per policy conditions under Ex.A4 any surgery shall be done within specialized cities. Bangalore is one of the city for treatment of P/H in terms it is also mentioned that sum payable not exceeding the sum assured. The opposite parties not denied the communication made by the complainant within 24 hours of hospitalization to repudiate the claim on the ground of delay intimation. The opposite party filed number of citations to prove their case but all are about suppression of material facts, hence they are not applicable to the present case as we are of the opinion that there is no suppression of material fact on the part of the complainant and the opposite parties failed to establish that the complainant suppressed the material facts.
18. We are relying on the decision submitted by the complainant reported in 2013(2) ANWR 348. In the above case the Hon’ble court observed that it is mentioned in the policy that exclusion shall cease to apply if the insured has maintained the policy consecutively for 3 years – Insured obtained policy from 06-06-2007 to 05-06-2008 and got it renewed from 06-06-2008 to 05-06-2010 i.e. paid premium for consecutive three years – Insurance Company liable to pay the amount of insured. The facts of the above citation and the facts of the present case are similar facts and the complainant proved about the deficiency of service on the part of the opposite parties. Hence, this point is answered accordingly in favour of the complainant and against the opposite parties.
19. POINT NO.3 - In the result complaint is allowed by directing the opposite parties 1 & 2 jointly and severally to pay a sum of Rs.1,47,610/- towards remaining amount payable under policy with interest @ 9% p.a. from the date of repudiation i.e. 01-07-2013 till the date of realization, Rs.3,000/- towards mental agony, Rs.3,000/- towards deficiency of service and Rs.1,000/- towards costs of the complaint within one month from the date of this order.
Dictated to Steno, transcribed by him, corrected and pronounced by us in open Forum this the 8th day of September, 2014.
Sd/- Sd/-
LADY MEMBER, PRESIDENT(FAC),
DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM,
ANANTHAPURAMU ANANTHAPURAMU
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
ON BEHALF OF THE COMPLAINANT: ON BEHALF OF THE OPPOSITE PARTIES
-NIL - - NIL –
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
Ex.A1 - Photo copy of Family Health Optima Insurance Policy bearing
No.P/141122/01/2013/000841 issued by the opposite parties in favour of the
complainant.
Ex.A2 - Photo copy of hospitalization benefit policy dt.12-11-2012 issued by the opposite
parties.
Ex.A3 - Photo copy of premium payment receipt dt.10-11-2012 for Rs.7,612/- issued by the
Opposite parties.
Ex.A4 - Photo copy of Family Health Optima Insurance Policy terms & conditions.
Ex.A5 - Photo copy of Case summary & Discharge Card relating to wife of the complainant
Dt.29-05-2013 issued by St.Johns Medical College Hospital, Bangalore.
Ex.A6 - Photo copy of Medical Bill issued by the St.John’s Medical College Hospital,
Bangalore.
Ex.A7 - Office copy of legal notice dt.29-07-2013 got issued by the complainant to the
Opposite parties 1 & 2.
Ex.A8 - Postal acknowledgments signed by the opposite parties 1 & 2.
Ex.A9 - Photo copy of repudiation letter dt.01-07-2013 issued by the 1st opposite party to
the complainant.
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTIES 1 & 2
Ex.B1 - Photo copy of proposal form submitted by the complainant to the opposite parties.
Ex.B2 - Original Family Health Optima Insurance Policy bearing No.P/141122/01/2013/
000841 issued by the opposite parties in favour of the complainant.
Ex.B3 - Photo copy of Consultant’s initial evaluation issued by the St.John’s Medical
College Hospital, Bangalore.
Ex.B4 - Photo copy of Admission record –Medical treatments relating to wife of the
Ccmplainant issued by the St.John’s Medical College Hospital, Bangalore.
Ex.B5 - Photo copy of Query on pre-authorization dt.21-05-2013 issued by the
1st opposite party.
Ex.B6 - Photo copy of authorization for cashless treatment of the insured-patient
dt.22-05-2014 issued by the 1st opposite party.
Ex.B7 - Photo copy of rejection of request for enhancement of cashless amount
Dt.30-05-2013 issued by the 1st opposite party.
Ex.B8 - Photo copy of X-ray LS spine AP,lat dt.26-05-0213 issued by St.John’s
Medical College Hospital, Bangalore.
Ex.B9 - Photo copy of Case Summary & Discharge Record relating to wife of the
Complainant issued by the St.John’s Medical College Hospital, Bangalore.
Ex.B10 - Photo copy of repudiation letter dt.01-07-2013 issued by the 1st opposite party
To the complainant.
Ex.B11 - Family Health Optima Insurance Policy bearing No.P/141122/01/2011/
000341 issued by the opposite parties in favour of the complainant.
Ex.B12 - Photo copy of Family Health Optima Insurance Policy bearing No.P/141122/
01/2012/000664 issued by the opposite parties in favour of the complainant.
Ex.B13 - Letter dt.26-06-2013 issued by Dr.B.Pasupathy, Chennai.
Sd/- Sd/-
LADY MEMBER, PRESIDENT(FAC),
DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM,
ANANTHAPURAMU ANANTHAPURAMU
Typed by JPNN
