The Divisional Manager, United India Insurance Company Ltd.,
...........Respondent(s)
BEFORE:
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant K. Amaresh Patil against the Respondent- Divisional Manager United India Insurance Company Ltd., Divisional Office Raichur for direction to the Respondent for payment of assured sum of Rs. 1,00,000/- under medi claim policy together with 12% interest thereon and for payment of Rs. 50,000/- as compensation for mental harassment along with Rs. 10,000/- towards cost of proceedings. The Respondent Insurance Company has filed written version denying the claim of the complainant. 2. During the course of enquiry the complainant has filed his sworn-affidavit by way of examination-in-chief as PW-1 and two affidavit-evidence of Dr. N.G. Shivaswamy of SJIC Bangalore and Dr. B.Ramesh of SJIC Bangalore as PWs 2 & 3 and got marked in all (36) documents at Ex.P-1 to P-36. In-rebuttal the Respondent Company has filed the sworn-affidavit of Divisional Manager United India Insurance Company by way of examination in chief as RW-1 and got marked (14) documents at Ex.R-1 & R-14. 3. Heard the arguments of both sides and perused the records. The following points arise for our consideration and determination: 1. Whether the complainant proves deficiency in service in not settling his claim under medi-claim policy, as alleged.? 2. Whether the complainant is entitled for the reliefs sought for? 4. Our finding on the above points are as under:- 1. In the affirmative. 2. As per final order for the following. REASONS POINT NO.1:- 5. It is the case of the complainant that he had insured his life with Respondent-Company in individual medi-claim policy by name Hospitalization and Domiciliary Hospital Benefits Policy for an assured sum of Rs. 1,00,000/- on 28-03-02 by paying premium of Rs. 1,298/- the policy was valid from 29-03-02 to midnight on 28-03-03. The complainant was healthy prior to and as on the date of submitting the policy proposal with the Respondent company. So he answered duly and rightly to the details sought in the proposal form further the Dr. Basvaprabhu Patil Manvi the panel doctor of Respondent Company has also certified the same to the Respondent before issuing the policy. Five months after issuance of the policy he felt some giddiness on and off so he approached Dr. Vedamurthy.S. consulting physician and cardiologist at Bellary who after thorough examination on 24/25-09-02 diagnosed as the case of Complete Heart Block and advised/referred the complainant for treatment to Sri. Jayadeva Institute of Cardiology Bangalore for implantation of permanent pacemaker. Accordingly he got admitted in Sri. Jayadeva Institute of Cardiology Bangalore (herein after referred as SJIC Bangalore) on 27-09-02 for implantation of permanent pacemaker and under went some tests as per advise of Dr. B.Ramesh and his Assistant Dr. N.G. Shivaswamy. The pacemaker was implanted in the heart of the complainant by Dr. B.Ramesh with his assistant Dr. N.G. Shivaswamy on 28-09-02 and he was discharged from hospital on 03-10-02. The original medical case papers and test papers etc., have been retained by the Hospital Authorities and a Note Book containing contents of the said medical case papers has been issued to him along with ECG papers. In all he spent Rs. 1,27,505/- for the said treatment as per hospital Bill dt. 04-10-02. The illness and his admittance to the hospital was intimated to the Respondent by his Agent-K.Rudrappa through letter dt. 30-09-02 and thereafter claim form duly filled in along with Xerox copies of treatment and tests were furnished to the Respondent on 10-10-02. The Respondent in-turn wrote a letter dt. 09-01-03 asking further information and accordingly he answered through his letter dt. 12-01-03 but in-spite of the same and his continuous personal approach the Respondent did not take any steps for settlement of his claim till 04-01-05 on which day there was some clashes with the Respondent and so he finally asked the Respondent through his letter dt. 04-01-05 to dispose of the matter in any manner. For which the Respondent through their letter dt. 05-01-05 repudiated his claim which is contra to their admittance about receipt of information as per their letter dt. 09-01-03. Hence for deficiency in service by the Respondent he filed a complaint before this Forum in DCFR.No.7/05 which came to be dismissed on 30-11-05 as premature, however without touching on merits. Therefore the complainant again sought documents from SJIC Bangalore as per his application dt. 05-01-06 U/s. IV R.T.I. Act which was accordingly supplied to him on 10-01-06 and when he approached the Respondent with those documents for submission then the Respondent denied to accept in-person. So he sent the same document to the Respondent through RPAD on 16-01-06. In turn the Respondent again sought few documents as per letter dt. 23-01-06 for which the complainant again approached the SJIC Bangalore in the month of February-2006 by enclosing letter of the Respondent dt. 23-01-06 and got certified copy of (19) documents and produced the same to the Respondent with his application dt. 27-02-06. In-spite of having entire case papers of treatment from SJIC Bangalore as per their requisition letter dt. 18-11-02 and in-spite of having in-possession of all the papers produced by the complainant, the Respondent again reiterated the same dialogue through letter dt. 12-07-06 for production of original documents which the complainant and Respondent himself not in a position to secure original papers from SJIC Bangalore in view of Rules and Regulations and in-spite of certified copies of the same which were produced by the complainant the Respondent again asking for production of original which is nothing but intentional act of avoiding its liability of payment of assured sum which amounts to deficiency in service. 6. Per contra the Respondent Company has contended that previously the complainant had filed a complaint in DCFR.No.7/05 which came to be dismissed on 30-11-05 as premature and devoid of merits with regard to the repudiation so the complainant is estopped from making from complaint with necessary requirements and finding in the previous orders. The complainant has again produced the copies of documents required by the Respondent but not the original. The say of the complainant the SJIC Bangalore will not give original is not acceptable. The original medical papers and medical treatment details report prior to the operation are necessary papers to process the claim. The complainant in order to avoid all these things simply he has given Photostat copies through his letter dt. 27-02-06 and got issued legal notice dt. 25-08-06 in order to create fresh cause of action. The allegations that after (5) months of policy he felt giddiness on and often and approached Dr. Vedamurthy.S. who detected Complete Heart Block and referred to Jayadeva Hospital Bangalore itself indicate the prior existence of the disease. Therefore prior test reports conducted at Jayadeva Hospital like Cath report, ECG Papers, Blood report, Second Echo Report which are mentioned in the Bill dt. 03-10-02 are necessary in order to pass justifiable order by the Respondent company. The claim is made without support of documentary evidence. So the complainant is not entitled for any claim. 7. Both the parties have reiterated their case in their respective affidavit-evidence. The complainant has produced in all (36) documents at Ex.P-1 to P-36. The Respondent company have relied on (14) documents at Ex.R-1 to R-14. It is significant to note here that during the course of enquiry, on the application of the complainant, witness summons was issued to the Managing Director of Sri. Jayadeva Hospital, Bangalore for producing entire case-file of patient-K.Amaresh Patil/complainant and accordingly the Assistant Medical Records Officer of Jayadeva Hospital Bangalore produced original medical records of patient/complainant as called for. Admittedly the complainant and the Respondent company has produced Xerox copies of the medical records especially the Physical History/Physical Examination Diagnosis of the patient-complainant at Ex.P-30/Ex.R-10(a) respectively. The History/Physical Examination Diagnosis of the patient/complainant goes to show the complaint of Complete Heart Block and complaint of giddiness since (6) months and one episode (2) days back. The complainant and Respondent have also produced copy of Note Book at Ex.P-12/Ex.R-8(1) respectively and this Note Book according to the complainant was issued by the Jayadeva Hospital. In this Note Book there is mention of brief history of the disease and treatment given to patient/complainant. It also shows the complaint of Complete Heart Block and complaint of giddiness on and off since (6) months and No history of previous illness, no history of chest pain. 8. The Respondent company has contended that the allegation of the complainant that after (5) months of the policy he felt some giddiness on and often and approached Dr. Vedamurthy.S. who detected the complete heart block and referred to Jayadeva Hospital itself indicate prior to existence of the disease. Therefore prior test reports conducted at Jayadeva Hospital like Cath Report, ECG Papers and Blood Report, second Echo Report which are mentioned in the bill are necessary in order to pass justifiable order regarding the claim of the complainant. But the complainant contend that he has produced Xerox true copies of the medical records since the original are retained by the Jayadeva Hospital Authorities. It is also his case that the Respondent Insurance Company have also obtained true copies of case-file by addressing a letter dt. 18-11-02 to the Jayadeva Hospital and a copy of which is produced at Ex.P-19 which shows an endorsement of Jayadeva Hospital on this letter that the United India Insurance Company (Respondent) have taken true copies of the case file on 20-11-02. A perusal of this letter at Ex.P-19 shows that the Respondent Insurance company had requested the Jyadeva Hospital Authorities to send discharge summary, discharge-card, case-sheet, case-history and doctors name & address who referred patient-Amaresh Patil I.P.No. 120329. So from this letter and endorsement thereon it shows that the Respondent company have obtained the entire medical-case-file/report as sought by them in their letter at Ex.P-19 on 20-11-02. In this context the letter of the Respondent dt. 12-07-06 at Ex.P-20 asking the complainant/Amaresh Patil for submitting original medical papers and original treatment detail report prior to the operation etc., appears to be impracticable especially when they have obtained the copies of entire medical records including case history of the patient from Sri. Jayadeva Hospital. Further more the Respondent company itself has produced certified copy of letter of Dr. Vedamurthy.S. vide Ex.R-9 showing the diagnosis of complaint of Complete Heart Block and advising/referring patient/complainant to Sri. Jayadeva Institute of Cardiology Bangalore. 9. As discussed earlier the History/Physical Examination Diagnosis at Ex.P-30/Ex.R-10(a) go to show the complaint of giddiness from (6) months. The complainant has produced a Certificate of Dr. N.G. Shivaswamy of Jayadeva Hospital at Ex.P-8 which shows that Amaresh Patil/patient had under went permanent pacemaker implantation in the hospital and he was suffering from giddiness since one month but by mistake it is written as (6) months instead of (1) month in the case sheet. Pacemaker implantation was done on 28-09-02 and patient was discharged on 03-10-02. This Certificate is dt. 03-10-02. The complainant has also produced affidavit-evidence of this Dr. N.G.Shiva Swamy and Dr. B.Ramesh who have attended for implantation of permanent pacemaker. Dr. N.G.Shiva Swmay in his affidavit-evidence dt. 28-08-07 as PW-2 has stated that the patient/Amaresh Patil was admitted in the Jayadeva Hospital with I.P.No.120329 on 27-09-02 for implantation of permanent pacemaker. He has assisted the senior Dr. B.Ramesh M.D. in the said operation on 28-09-02. On 28-08-07 (referred as today) the complainant-Amaresh Patil came to the hospital for his general checkup along with his all previous treatment records and certificate dt. 03-10-02 by stating about clarification regarding entry of giddiness for (6) months in the case sheet. Then he came to know from the Records Section that the Treatment Case File of patient-Amaresh Patil has been sent to District Consumer Forum Raichur. From perusal of copies of certificate dt. 03-10-02 and the Case Sheet that he has issued the certificate dt. 03-10-02 on the advise of his senior Dr. B.Ramesh. 10. Dr. B. Ramesh in his affidavit-evidence as PW-3 dt. 17-09-07 has stated that the complainant/Amaresh Patil was admitted in their hospital as in-patient No. 120392 on 27-09-02. He has conducted operation of implantation of permanent pacemaker on 28-09-02 Dr. N.G.Shivaswamy Assistant Professor has assisted him for implanting pacemaker to the complainant Today (on 17-09-07) the complainant-Amaresh Patil came to him along with previous Xerox copies of treatment records and he came to know that the complainant was admitted and treated in the hospital in the month of September-2002. On perusal of copies of treatment records and case sheet shown by Amaresh Patil it is true that he has conducted operation to Amaresh Patil on 28-09-02 and advised Dr. N.G. Shivaswamy for issuance of affidavit for clarification regarding having issued certificate dt. 03-10-02 in wrong mentioning (6) months giddiness in the case sheet instead of (1) month. 11. So from the certificate at Ex.P-8 and the affidavit-evidence of Dr. N.G.Shivaswamy (PW-2) and Dr.B.Ramesh (PW-3) it clearly shows that in the case sheet the complaint of giddiness since (6) months mentioned was wrong and it was from (1) month. The Respondent Insurance Company have not chosen to cross-examine these two doctors who have given affidavit by way of examination in chief as PWs 2 & 3. Of course the affidavit-evidence of these two doctors are dt. 25-08-07 and 17-09-07 but the certificate at Ex.P.8 has been issued on 03-10-02 the date of discharge of the patient/complainant. So we do not find any iota of doubt in accepting the contents of the affidavit-evidence of Dr. N.G. Shivaswamy and Dr. B. Ramesh which shows wrong mention of period of giddiness as (6) months instead of (1) month in the case sheet and so the affidavit-evidence cannot be said to be tainted as an after thought. 12. Admittedly the complainant in the first instance consulted Dr. Vedamurthy.S. at Bellary on 24-09-02 as could be seen from prescription chit at Ex.P-2 issued by this doctor. The Respondent Company has also produced the letter of this Dr. Vedamurthy.S. at Ex.R-9 showing the diagnosis of Complete Heart Block and advising/referring patient to Jayadeva Hospital Bangalore for consulting Dr. B.Ramesh or Dr. Manjunath. This letter is dt. 26-09-02. From this letter Ex.P-2 and the letter of the said doctor at Ex.R-9 it is evident that the complainant for the first time had consulted this Dr. Vedamurthy.S. on 24-09-02 and immediately thereafter he got admitted in the Jayadeva Hospital at Bangalore on 27-09-02 and on 28-09-02 implantation of pacemaker was done by Dr. B.Ramesh assisted by Dr. N.G.Shivaswamy. Of course the case sheet shows that the complainant was suffering from giddiness since from (6) months which has been ratified as (1) month in the certificate at Ex.P-8 issued at the time of discharge of complainant on 03-10-02 and the factum of issuance of this certificate with regard to the period to giddiness suffered by the complainant as (1) month instead of (6) months, has been satisfactorily substantiated in affidavit of Dr. B.Ramesh and N.G. Shivaswamy. When according to these two doctors and the certificate at Ex.P.8 the complainant was suffering from giddiness since (1) month prior to the operation/implantation of pacemaker done on 28-09-02, then we are at a loss to know as to how it could be termed as prior existence of disease of Complete Heart Block. Further when according to Ex.P-19 the Respondent Company have obtained true copies of case paper/medical records pertaining to the complainant by addressing a letter for supply of discharge summary, discharge card, case sheet etc., then there was no need for asking the complainant for producing original medical records of Jayadeva Hospital prior to his operation in the hospital. It would be more so when the Respondent Company itself has produced copies of History/Physical Examination Diagnosis of the complainant in Jayadeva Hospital at Ex.R.10(a), Nurses Daily Records at Ex.R-10(b), permanent pacemaker report at Ex.R-11, the copy of Note Book containing the contents of Case Sheet issued by the hospital at Ex.R-8(1). This in-turn shows that the complainant had enclosed all these documents along with his claim form. As stated supra when the Respondent Company has obtained true copies of Medical Case File/Medical Report pertaining to the patient/complainant as per their letter at Ex.P-19 it shows that original documents are with the Jayadeva Hospital which cannot be given to any one except its true copies. If this is so, repeated letters of the Respondent asking the complainant to produce original medical records itself amounts to dodging the settlement of medi-claim of the complainant, and also amounts to deficiency in service by the Respondent Authority, as rightly argued by the L.C. for the complainant. Hence for all these reasons we hold that the Respondent Company has failed to discharge its initial burden regarding pre-existence of disease prior to filing proposal form for medi claim as contended. So the ruling relied upon by the L.C. for the complainant reported in 1986-2005 CONSUMER 8947 of Honble National Commission in (National Insurance Company Limited V/s. Shri. Satya Pal Tuli) Head Note is of no assistance to the Respondent as the facts in the said ruling and the facts in the case at hand are on different footings. On the contrary we are in agreement with the argument advanced by the L.C. for the complainant regarding deficiency in service by the Respondent Company and the rulings relied upon by the L.C. reported in II (2005) CPJ 12 (NC) in (National Insurance Company Limited V/s. Bipul Kundu) Head Note is aptly applicable to the case on hand. Accordingly we hold that the complainant has proved the deficiency in service by the Respondent Company in not settling his medi-claim therefore Point No-1 is answered in the affirmative. POINT NO:-2:- 13. The complainant has sought for payment of policy assured sum of Rs. One Lakh with interest at 12% p.a. from 10-10-02 till realization and also for payment of Rs. 50,000/- for mental harassment and for payment of Rs. One Lakh towards cost of litigation. So far as payment of policy amount Rs. One Lakh is concerned, in-view of our discussion and finding on Point NO-1, the complainant is entitled for the same. Regarding claim of interest at 12% on the assured sum and for payment of compensation of Rs. 50,000/- for mental harassment are concerned, the complainant appears to be claiming compensation under two heads to which he is not entitled. However having regard to the facts and circumstances of the case coupled with our discussion on deficiency in service by the Respondent Company we feel it just and proper to award Rs. 30,000/- including cost of litigation. In this view of the matter we pass the following order: ORDER The complaint of the complainant is allowed in part. The Respondent Company shall pay policy amount of Rs. 1,00,000/- along with Rs. 30,000/- as compensation including cost of litigation. The Respondent-Company shall comply this order within (6) weeks from the date of receipt of copy of this order. Office to furnish certified copy of this order to both the parties forth with free of cost. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 17-10-07) Sd/- Sri. N.H. Savalagi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. On leave. Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.
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