By Sri. K. Gheevargese, President:-

The complaint filed under section 12 of the Consumer Protection Act 1986.

The sum up of the complaint is as follows:- The Complainant had been a Medi-claim Policy holder for the period in between 12.5.2007 to 11.05.2008. The coverage of this policy

was in continuity of the earlier policy and the policies were renewed from time to time. On 31.5.2007 the Complainant was hospitalized for renal stone ailment in the left renal lobe at Baby Memorial Hospital Calicut. Towards the treatment, the Complainant spent Rs.15,591/- in the hospital. The Complaint is for reimbursement of the amount spent for treatment. The Complainant made a claim before the 3^rd Opposite Party who is known as the policy processor. The claim of the Complainant was rejected vide the letter dated 29.6.2007. The reasons for rejection according to the Opposite Parties are that the Complainant's ailment was a pre-existing one and in respect of which the claim was repudiated. The renewed policy in effect covers the period. The Complainant had an ailment of kidney stone in the right ESWL about eight years back. The kidney stone in the left lobe of the kidney is not consistent or not having any connection with the treatment in the right lobe. The repudiation of the claim by the Opposite Party on the ground of preexisting disease is against reason and spirit of policy. There may be an order directing the Opposite Party to cancel the repudiation of Medi-claim Policy and to pay the Complainant Rs.15,591/- and compensation of Rs.50,000/-.

2. Opposite Parties filed version, the version filed by the 1^st and 2^nd Opposite Parties are as follows:- The domiciliary hospitalization policy and the inception of the Complainant to the scheme is admitted starting from 12.5.2007 to 11.5.2008. The Complainant renewed the policy on completion of period of coverage from 12.5.2006 till 11.5.2007. The documents produced by the Complainant speaks that the Complainant had a history of right ESWL- renal stone eight years back coupled with ailment such as hecmateria, colic and hypertension. The earlier ailment of the Complainant was not disclosed by the insured in the proposal form. The concealment of the existing disease makes the Complainant not entitled for reimbursement of the treatment expenses. The clause 4.1 of the policy enables the Opposite Party to exclude the claim. Eight years back the Complainant had renal stone in the other kidney. Since the Complainant suppressed the facts of the disease he is not entitled for the reimbursement of the treatment expenses as per the provisions of the policy. There is no deficiency in service on the part of the Opposite Party. The Complainant is not entitled to get the sum of Rs.15,591/- towards the mediclaim along with compensation and cost.

3. The 3^rd and 4^th Opposite Parties filed version, in short it is as follows:- The 3^rd Opposite Party is a third party administrator of the insurance company. The Complainant had submitted the records required for the processing by the 3^rd Opposite Party and forwarded to 1^st Opposite Party for their final opinion. The decision taken by the 1^st Opposite party for the settlement of the claim is binding. Upon the scrutiny of the documents produced by the Complainant it came to know that the Complainant had right ESWL and renal stone 8 years back and other ailments such as hecmataria with colic and hypertension. The existence of the earlier ailment was not disclosed to the 3^rd Opposite party at the time of inception to the policy. The claim of the Complainant was recommended to be denied under the exclusion clause 4.1 of the policy. The request of the Complainant is to reconsider the decision of repudiation was also subjected for expert opinion of Doctors who treated the ailment of such nature. According to this expert opinion renal colic is recurring in nature and as a result the ailment for which the Complainant claimed cannot be considered on the ground of preexisting disease and thereby repudiated the claim. The 3^rd Opposite Party is not in anyway liable for compensation.

4. The points in consideration are:

1. Whether any deficiency in service on the part of the Opposite parties?

2. Relief and cost.

5. Points No.1 and 2:- The points No.1 and 2 can be considered together. The evidence in this case consists of the documents Exts.A1 to A5 are of the complainant and Exts.B1 to B12 for the Opposite Parties. The Complainant and the Opposite Parties have given oral testimony in this case. The case of the Complainant is that he had undergone the treatment for left renal stone and operation was done at Baby Memorial Hospital, Calicut. The treatment expenses Rs.15,591/- which is liable to be reimbursed by the Opposite Party. In contrary repudiated on the ground that the Complainant suppressed the renal stone ailment in the right kidney 8 years back.

6. The Complainant's inception to the domiciliary hospitalization benefit policy started from 12.5.2006 and on completion of the 1^st term which was on 11.5.2007, the renewal of the policy was done on payment of the premium which started from 12.5.2007 to 11.5.2008. The policy covers 3 members and the premium amount is Rs.3,147/- for 2 years. The Complainant remitted Rs.3,147/- in two times for the renewal of policy. The repudiation of the claim was on the ground of the exclusion clause 4.1 of the policy conditions. The Ext.B2 is the policy and its conditions. The clause reads as such that “the preexisting disease and conditions benefits will not be available for in condition(s) as defined the policy until 28 months of continuous coverage elapsed since inception of the 1^st policy with us”. The repudiation of the claim of the Complainant is only because of the preexisting renal stone in the right lobe of the kidney 8 years back. The Opposite Party examined one Doctor Ashok kumar G Menon as OPW1 for aducing the expert opinion in respect of the renal stone. This witness is an expert in homoeopathic medicines an another branch of medical science. The treatment availed by the Complainant was Allopethic. On examination of OPW1 it is deposed that the ailment is called renal calculis. The symptom of the ailments is pain and colic. Ext.B5 the discharge summery postulates that the history of right ESWL was eight years back. It further details that the left colic one week duration, single episode. The colic persists in the patient was for the last one week. According to this documents all other body functions of the patients were normal. The right kidney was also normal in function. The points which is to be decided is whether the left renal calculi for which the patient had undergone treatment can be considered as a suppression of the preexisting disease. Eight years back the Complainant had the right renal calculi. The symptom of it was Severe pain. As per Ext.B5 the colic had only one week duration and single episode. An ordinary man cannot be taken for consideration as a judge of himself in the matter of ailment and symptoms. The most people suffer from symptoms of disease without knowledge of the same. The ruling of the Hon'ble National Commission in National Insurance Company Ltd., V/S Balkhandi Lal Sharma (2009 CTJ Page 873) is squarely applicable to the case on hand. The Hon'ble National Commission reiterated what held in Praveen Damani V. Oriental Insurance Company Ltd., (2007 CTJ 131 (CP)= IV 2006). The National Commission gave an attention to the exclusion clause 4.1 and held that if this interpretation of the exclusion clause if accepted then the Insurance Company would not be liable to pay any claim whatsoever. Because most people suffer from symptoms of diseases without the knowledge of the same. It is further held in that case that “ the policy is not a policy at all as it is just a contract entered only for the purpose of accepting the premium without the bonafide intention of giving any benefit to the insured under the garb of pre-existing disease. Most of the people are totally unaware of the symptoms of the disease that they suffer and hence, they cannot be made liable to suffer because the insurance company relies on their Exclusion Clause 4.1 of the policy in a malafide manner to repudiate all the claims”.

7. The Complainant herein had the symptoms and renal calculi eight years after. More over the colic infection was in the left lobe of kidney. The earlier treatment was for the renal stone in the right lobe of kidney. We are in the opinion that the repudiation of the claim by the Opposite Party is a deficiency in service. The Complainant had remitted the premium of Rs. 6,294/- in total for two years. The amount claimed by the Complainant is only Rs.15,591/-. The 1^st and 2^nd Opposite Parties are the insurer in this case. The 3^rd and 4^th Opposite parties are only third party administrator of the Insurance company. The 1^st and 2^nd Opposite Parties are liable to reimburse the amount claimed by the Complainant for the treatment. The 3^rd and 4^th Opposite parties already admitted that they have received claim form and the requisite document of Rs.15,591/-.

In the result, the complaint is partly allowed. The 1^st and 2^nd Opposite Parties are directed to reimburse Rs.15,591/- (Rupees Fifteen thousand Five hundred and Ninety One only) the treatment charges of the Complainant along with cost of Rs.1,000/- (Rupees One thousand only) and Rs.1,000/- (Rupees One thousand only) towards compensation. The 1^st and 2^nd Opposite Parties are directed to comply this within one month from the receipt of this order.

Pronounced in open Forum on this the day of 30^th September 2009.

PRESIDENT: Sd/-

MEMBER- I: Sd/-

MEMBER-II: Sd/-

A P P E N D I X

Witnesses for the Complainant:

PW1. Ibrahim Complainant.

Witnesses for the Opposite Parties:

OPW1. Dr. Ashok Kumar G. Menon Doctor

OPW2. K.K. Mohanan. Manager, New India Assurance Co., Kozhikode.

Exhibits for the Complainant:

A1. True Copy of Policy Schedule.

A2. True Copy of Policy Schedule.

A3. Letter. dt:29.6.2007

A4. Copy of the Letter. dt:02.8.2007

A5. Letter. dt:20.11.2007

Exhibits for the Opposite Parties:

B1. Mediclaim Insurance Proposal Form. dt:12.05.2006

B2. Copy of Policy Schedule.

B3. Claim Form dt:12.06.2007

B4. Medical Certificate.

B5. Discharge Summary

B6. Letter. dt:26.10.2007.

B7. Letter. dt:31.10.2007.

B8. Medical Opinion issued by Dr.Shenoy. K.V. dt: 23.9.2008.

B9. Letter. dt:29.6.2007.

B10. Letter. dt:02.08.2007.

B11. Copy of Claim Review Summary dt:20.12.2007.

B12. Letter. dt:21.12.2007.