BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 14th of January 2011
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.221/2010
(Admitted on 21.08.2010)
Smt.Zarina,
Wo. P.Mohammad Ashraf,
Aged about 35 years,
RA. Apoorva Mansion,
K.S. Rao Nagar, Karnad,
Mulki, Mangalore Taluk,
Dakshina Kannada. …….. COMPLAINANT
(Advocate for the Complainant: Sri.K.B. Arasa).
VERSUS
The Branch Manager,
United India Insurance Co. Ltd.,
Krishna Prasad Building,
Opp. Popular Building,
K.S. Rao Road, Mangalore. ……. OPPOSITE PARTY
(Advocate for the Opposite Party: Sri.M.S. Jain).
***************
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 Party claiming certain reliefs.
The brief facts of the case are as under:
The Complainant submits that, she had obtained Mediclaim Policy for herself and family members from the Opposite Party as per policy No.070801/48/09/41/00001004 dated 18.02.2009. It is stated that, on 11.03.2010, the son of the Complainant i.e., Master Shameem Ahmed, aged 1½ years got urinal problems and stopped urinal passing and immediately taken to the doctor, after examining the child advised the Complainant to admit the child as an inpatient at MINSA hospital for surgery. On 12.03.2010, the Complainant admitted her child at MINSA hospital and surgery was conducted and child was discharged on 13.03.2010. It is stated that, she had spent Rs.5,941/- towards the treatment. Thereafter on 15.03.2010, the Complainant submitted the original medical bills and discharge summary to TTK Health Care, TPA Pvt. Ltd. Bangalore to process the claim but the Opposite Party rejected the claim under exclusion clause of the policy. It is stated that, the repudiation of the claim by the Opposite Party is arbitrary and not justifiable and hence issued a legal notice dated 28.05.2010 but the same has not been complied 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 Party to pay Rs.5,941/- with 12% interest p.a. from 13.03.2010 and Rs.10,000/- claimed as compensation and cost of the proceedings.
2. Version notice served to the Opposite Party by RPAD. Opposite Party appeared through their counsel filed version, admitted the policy but it is stated that, as per the exclusion clauses 4.1, 4.3 and 4.5 of the above said Mediclaim Policy the claim of the Complainant is not covered. It is stated that, the child was suffering from Phimosis right from his birth, the circumcision was done after necessary investigation and clinical test to set right a defect of congenital in origin. And contended that, circumcision is not necessitated for the treatment of any disease as specified in the exclusion clause 4.5 of Group Mediclaim Policy issued in favour of the Complainant by the Opposite Party and stated that there is no deficiency and prayed for dismissal of the complaint.
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 Party has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Smt.Zarina (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on her. Ex C1 to C7 were marked for the Complainant as listed in the annexure. Opposite Party not filed counter affidavit but produced 5 (five) documents as listed in the annexure. Both parties produced notes of arguments along with citations.
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):
It is admitted that, the Complainant is the holder of Mediclaim Policy bearing No.070801/48/09/41/00001004 along with her family members i.e., husband, father, daughter and son covering the mediclaim risk for the period from 19.02.2010 to midnight of 18.02.2011. At the time of taking treatment by the Complainant’s child in MINSA Hospital on 12.03.2010 and discharged on 13.03.2010, the policy was in force.
The grievances of the Complainant is that, on 11.03.2010 she found that her son Master Shameem Ahmed aged 1½ years got urinal problems and stopped passing urine and consulted a doctor by name Dr.P.S.M. Ameer Ali. On examination, the child was advised to get admit at MINSA Hospital on 12.03.2010 and on 12.03.2010 the Complainant’s child undergone surgery and discharged on 13.03.2010 and spent Rs.5,941/- towards the treatment. The Complainant after the discharge lodged a claim with the Opposite Party but the Opposite Party repudiated the claim which is not correct, hence she came up with this complaint.
The Opposite Party interalia contended that, the Complainant had knowingly suppressed the material fact that, her son was suffering from phimosis, which is congenital in origin and the above claim falls within the exclusion clause of 4.1, 4.3 and 4.5 of the policy.
However, the Complainant filed oral evidence by way of affidavit and produced Ex C1 to C7. But the Opposite Party except producing 5 documents not led any evidence.
On scrutiny of the oral as well as documentary evidence on the file of this Forum, we find that, admittedly the Opposite Party issued a policy No.070801/48/09/41/00001004 in favour of the Complainant and her family members and the said policy is valid from 19.02.2010 to 18.02.2011 (as per Ex C1). On the date of admission of Master Shameem Ahmed i.e., the son of the Complainant the policy was in force. The Ex C2 i.e., the discharge summary issued by MINSA Hospital, Kankanady, Mangalore, wherein, at the undisputed time, it shows that, on 11.03.2010 the Complainant along with her child baby Shameem Ahmed aged 1½ years old came up with a pain during urination and unable to pass urine and crying during urination. The same was diagnosed as Phimosis and the doctor advised for circumcision and got it operated in the above said hospital on 12.03.2010 and discharged on 13.03.2010.
The contention of the Opposite Party is that, the Phimosis falls within the exclusion clause and produced a policy before this FORA i.e., Document No.1.
However, it is worthwhile to refer the policy conditions especially the clause No.4.1, 4.3 and 4.5 the above exclusion clauses reproduced hereunder:
EXCLUSION CLAUSES
Exclusion Clause 4.1: All diseases/injuries, which are pre-existing, when the cover incepts for the first time. For the purpose of applying this condition, the date of inception of the initial mediclaim policy taken from any of the Indian Insurance Companies shall be taken, provided the renewals have been continuous and without any break. However, the exclusion will be deleted after three consecutive continuous claim free policy years, provided, there was no hospitalization for the pre-existing ailment during these three years of issuance.
Exclusion Clause 4.3: During the first year of the operation of the policy, with any of the Public Sector Insurance Companies, the expenses on treatment of diseases such as Cataract, Benign Prostatic Hypertherapy, Hysterectomy for Menoorhagia or Fibromyoma, Hernia, Hydrocele, congenital internal disease, Fistula in anus, piles and related disorders are not payable. If these diseases (other than congenital internal diseases) are pre-existing at the time of proposal, they will not be covered even during subsequent period of renewal. If the insured is aware of the existence of congenital internal disease before inception of the policy, the same will be treated as pre-existing. However subject 4.1 of Exclusion.
Exclusion Clause 4.5: Circumcision unless necessary for treatment of a disease not excluded hereunder or as may be necessitated due to an accident, vaccination or inoculation or change of life or cosmetic or aesthetic treatment of any description, plastic surgery other than that may be necessitated due to an accident or as part of any illness.
The above exclusion clauses are not applicable to the case on hand because the discharge summary issued by the MINSA Hospital and the certificate i.e., document No.3 dated 25.03.2010 issued by the treated doctor clearly discloses that, Master Shameem Ahmed aged 1½ years came up with a complaint of pain during urination, unable to pass urine. The above said problem was diagnosed as Phimosis and advised for circumcision. The Clause No.4.5 is very clear that, circumcision unless necessary for treatment of a disease not excluded. In the instant case, the Complainant at the undisputed time approached the doctor with a complaint of pain during urination and unable to pass urine. The doctor diagnosed as phimosis and advised for circumcision.
However, in this connection we have referred a text book of pediatric, wherein, the Phimosis disease introduced as follows:
Introduction:
“Phimosis is the inability to retract the prepuce fully and freely to expose the glans penis. It is one of the most common problems referred to the pediatric surgeon.
Phimosis is physiological in infancy and early childhood since there are adhesions between the glans and the foreskin that separate spontaneously by the age of two to three years, sometimes taking upto five years or so.
Phimosis is pathological when it causes symptoms such as straining at micturition, burning micturition or recurrent attacks of balanoposthitis”.
Further, Treatment:
Physiological phimosis should be left alone. Unless there are clearly symptoms associated with phimosis, no specific treatment is required in early childhood. If symptoms occur, a circumcision can be done to relieve the symptoms.
From the above one can make out that, the circumcision is required when the phimosis is pathological when it causes symptoms such as problem in urination or any other problems. In the instant case, it is proved beyond doubt that, the above circumcision was advised because the Complainant came up with a pain in urination and unable to pass urination. By considering the above, the doctor advised for circumcision. When that is so, the Opposite Party Company cannot take shelter under Exclusion Clause as stated by them. Further we have observed that, the Opposite Party Company not led any evidence in support of their defence taken in the version. We have given our thoughtful consideration to the matter, as is evident from the medical text which we have referred clearly shows that, when the phimosis is pathological the circumcision is required.
No doubt, it was the practice in some western countries to routinely circumcise all new born boys. This has now been found to be unnecessary since there is no clear medical benefit to performing this operation. In certain communities, neonatal circumcision may be performed for religious reasons. But in the instant case, the Opposite Party Company failed to establish that the above circumcision performed by the doctor for religious reasons. But on the other hand, the case records i.e., discharge summary clearly reveals that, the child of the Complainant had a problem and thereby it has been diagnosed as phimosis and advised for circumcision which is necessitated to cure the above disease. Hence, the repudiation made by the Opposite Party Company is arbitrary and not justifiable which amounts to deficiency. Therefore, the Opposite Party i.e., United India Insurance Company Limited represented by its Branch Manager is hereby directed to pay Rs.5,941/- towards the medical expenses (as per Ex C3) and also pay Rs.5,000/- as compensation for the inconvenience and harassment caused to the Complainant. And further pay Rs.1,000/- as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Party i.e. United India Insurance Company Limited represented by its Branch Manager is hereby directed to pay Rs.5,941/- (Rupees five thousand nine hundred and forty one only) towards the medical expenses to the Complainant and also pay Rs.5,000/- (Rupees five thousand only) as compensation and also pay Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
On failure to pay the aforementioned amount within the stipulated time as mentioned above the Opposite Party is hereby directed to pay interest at the rate of 10% p.a. on the total amount from the date of failure till the date of payment.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 10 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 14th day of January 2011.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Smt.Zarina – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – : Group Mediclaim – Tailor Made policy bearing No. No.070801/48/09/41/00001004 for the period from 19.02.2010 to 18.02.2011.
Ex C2 – 13.03.2010: Xerox copy of the discharge summary issued by MINSA Hospital, Kankanady, Mangalore.
Ex C3 – 15.03.2010: Letter of the Complainant to M/s.TTK Healthcare TPA Ltd, Bangalore along with prescriptions, bills and receipts for Rs.5,941/-.
Ex C4 – 25.03.2010: Xerox copy of the certificate given by Dr.P.S.M. Ameer Ali.
Ex C5 – : Letter of repudiation given by the TTK Healthcare TPA Pvt. Ltd.
Ex C6 – 26.05.2010: Lawyer’s notice sent to the Opposite Party on behalf of the Complainant.
Ex C7 – 29.05.2010: Postal acknowledgement of the above lawyer’s notice.
Witnesses examined on behalf of the Opposite Party:
Documents produced on behalf of the Opposite Party:
Doc.No.1: Group Mediclaim Tailor Made policy bearing No. No.070801/48/09/41/00001004 for the period from 19.02.2010 to 18.02.2011 along with terms, conditions and exclusions of policy.
Doc.No.2: Discharge summary issued by MINSA Hospital, Mangalore.
Doc.No.3: 25.03.2010: Certificate issued by Consultant Surgeon Dr.P.S.M. Ameer Ali.
Doc.No.4: 23.03.2010: Letter written by TTK Health Care TPA Pvt. Ltd. addressed to the Complainant for production of documents required to process the claim.
Doc.No.5: Repudiation letter given by the TTK Health Care TPA Pvt. Ltd.
Dated:14.01.2011 PRESIDENT
