This complaint coming up before us for hearing on 19-03-12 in the presence of Sri M. Sravan Kumar, advocate for the complainant and of Sri G.S. Rama Rao, advocate for opposite parties 1 to 3, upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-
O R D E R
Per Sri A. Hazarath Rao, President:-
The complainant filed this complaint under section 12 of the Consumer Protection Act seeking Rs.1,56,437/- being the remaining claim towards medical insurance; Rs.50,000/- towards mental agony and for costs.
2. In brief the averments of the complaint are hereunder:
The complainant had taken family health option insurance policy for himself and his wife Lelavathi from the 1st opposite party on 19-09-08 for Rs.50,000/- covering the period from 19-09-08 to 18-09-09. There were no claims during that period. Subsequently, the complainant took policy for Rs.2,00,000/- for himself and his wife covering the period from 19-09-09 to 18-09-10. During that period the opposite parties settled the claim of the complainant for Rs.35,236/-. Again the complainant took policy bearing No.P/131214/01/2011/000453 for Rs.2,00,000/- covering the period from 19-09-10 to 18-09-11. As per the said policy the complainant and his spouse are eligible upto Rs.2,00,000/-. Subsequently, the complainant’s wife under went treatment for breast cancer in M/s Omega Hospitals and incurred Rs.2,50,098/-. The opposite parties have not chosen to pay the said amount inspite of repeated demands. On 01-07-11 the 1st opposite party informed the complainant that his wife was diagnosed with tumor in her breast on 16-08-10 and restricted the claim upto Rs.50,000/- contending that the patient might have known the problem on account of disturbance in physical condition. M/s Omega Hospitals confirmed the tumor on the complainant’s wife as carcinoma on 10-11-10 only. The conduct of the company in restricting the claim upto Rs.50,000/- and rejecting the rest of the claim amounted to deficiency of service. Due to non payment of amount the complainant suffered a lot mentally and financially and claimed Rs.50,000/- as damages. The complaint therefore be allowed.
3. The opposite parties 1 and 2 filed memo adopting the version of the 3rd opposite party and their contention in brief is hereunder:
The 3rd opposite party issued medi-classic individual policy for a sum of Rs.50,000/- each in favour of the complainant and his wife covering the period from 19-09-08 to 18-09-09. In the subsequent year the complainant obtained family health optima insurance policy increasing the sum assured to Rs.2,00,000/- covering the period from 19-09-09 to 18-09-10. In the subsequent year the petitioner obtained similar policy for the period 19-09-10 to 18-09-11 for Rs.2,00,000/-. The insurance policies were issued subject to the terms and conditions of the policy. Benefits will not be available (mistakenly typed as avoidable) for pre-existing diseases. The complainant submitted two claims during the period 19-09-09 to 18-09-10 in respect of breast tumor of his wife Leelavathi. The opposite parties settled the two claims preferred by the complainant on 12-08-10 and 04-09-10 for Rs.50,000/-. During the policy period 19-09-10 to 18-09-11 the complainant made 15 claims from 24-09-10 till 15-02-11. Out of them the opposite party settled three claims bearing No.65571, 71562 and 73760 for Rs.9,424/-, Rs.19,132/- and Rs.15,007/- respectively. The certificate dated 10-11-10 issued by M/s Omega Hospital revealed that the complainant’s wife Leelavathi having right breast cancer was confirmed by core biopsy report and she consulted the doctor in the second week of August, 2010. That was the reason for the claims made on 12-08-10 and 04-09-10. When such consultation was made the problem of disturbance of the physical condition is known to the patient being an external noticeable/recognizable condition. Since the sum insured originally intended covering Rs.50,000/- and the symptom and condition was known to the patient during the by The weDownload Manager">currency
of the 1st policy itself, the opposite parties settled the claim No.57632 for Rs.6,437/- and sent DD bearing No.49613 date 29-06-11 for that amount totaling to Rs.50,000/-. The opposite parties therefore are not liable to pay any amount to the complainant. The complaint therefore may be dismissed.
4. Exs.A-1 to A-8 and Exs.B-1 and B-2 on behalf of the complainant and opposite parties were marked respectively.
5. Now the points that arose for consideration in this complaint are:
1. Whether the opposite parties committed deficiency of service by restricting the claim of the complainant to Rs.50,000/- though the policy was Rs.2,00,000/-?
2. Whether the complainant is entitled to compensation as claimed?
3. To what relief?
6. Admitted facts in this case are these:
- The complainant took Medi-classic individual policy for himself and his wife for Rs.50,000/- each, covering the period from 19-09-08 to 18-09-09 (Ex.A-1).
- There were no claims during the period covered by Ex.A-1.
- The complainant took family health optima insurance policy for himself and his wife covering the period from 19-09-09 to 18-09-10 (Ex.A-2) for the floater sum of Rs.2,00,000/-.
- The opposite parties settled the claim of the complainant for Rs.35,326/- against the sum claimed for Rs.37,133/- during the period covered by Ex.A-2(=Ex.B-1).
- The complainant took family health optima insurance policy for himself and his wife covering the period from 19-09-10 to 18-09-11 (Ex.A-3) for the floater sum of Rs.2,00,000/-.
- The opposite parties gave a reply on 01-07-11 for the claim made by the complainant (Ex.A-5).
- The complainant thereafter got issued notice to the opposite parties on 19-07-11 (Exs.A-6 to A-8).
- The opposite parties paid Rs.9,424/-, Rs.19,132/- and Rs.15,007/- and a cheque for Rs.6,437/- (rejected by the complainant) (Ex.B-1).
7. POINT No.1:- An insurance policy is a contractual one subject to terms and conditions of the policy and they are binding on the insured and insurer as rightly contended by the opposite parties. In Exs.A-1 to Ex.A-3 at the column of pre-existing disease “disease over company first year renewal policy from medi-classic to family health optima”. In Exs.A-1 to A-3 itself the definition of pre-existing diseases and its exclusion were mentioned and they are reproduced infra for better appreciation:
“1.The definition of ‘pre-existing disease’ stands amended as follows:
Any condition ailment or injury or related condition(s) for which the insured person had signs or symptoms and/or was diagnosed and/or received medical advice/treatment, within 48 months prior to the first policy with the company.
- The exclusion No.1 stands amended as follows:
Benefits pre-existing diseases will not be available for any condition(s) as defined in the policy until 48 months of continuous coverage have elapsed since the inception of the first policy with the company”.
8. The claim made by the complainant was regarding the treatment of his wife for carcinoma. The opposite parties restricted the claim of the complainant to Rs.50,000/- contending as mentioned infra:
“The diagnosis made for the claims is Tumor in Breast T4BN2 MX and treatment of carcinoma for petitioner’s wife. As per the doctor’s certificate dt.10-11-10, she consulted the doctor in second week of August, 2010. She has therefore preferred her first claim on 12-08-10 and subsequent claim made on 04-09-10 during the period of First Year Renewal of original policy. Thus the petitioner and his wife knew about the problem of Right Breast cancer and the physical condition of the petitioner’s wife Leelavathi. This is an external noticeable/recognizable condition. In terms of the policy, in respect of disease/sickness/illness for which claims have been made, the sum assured will have to be restricted to the first policy sum assured Rs.50,000/-, since the sum insured originally intended for coverage is specific for Rs.50,000/- and the symptom and condition was known to the patient during the currency of first policy itself”.
9. That is also the contention of the opposite parties as seen from Ex.A-5. In a way the opposite parties are contending that the complainant’s wife is aware of presence of tumor on her breast being physiological in nature and suppressed it. Burden is on the opposite parties to prove that the complainant’s wife was aware of pre-existing disease at the time of taking Exs.A-1 to A-3 policies.
10. The contention of the complainant is that neither himself nor his wife is aware of the nature of tumor and never took treatment for carcinoma earlier to taking of Exs.-1 to A-3 policies and M/s Omega Hospitals diagnosed the tumor as carcinoma on 10-11-10 only. Both parties in support of their contention relied on the letter issued by M/s Omega Hospitals dated 10-11-10 (Ex.A-4) in support of their contentions and it reads as follows:
“To whom so ever it may concern
This is to certify that Mrs Leelavathi with M.R.No.2084 at Omega Hospitals was diagnosed as a case of Ca.Right Breast (clinically T4b, N2 lesion). The core biopsy report of 16-08-10 confirmed it to be invasive duct cell carcinoma. Therefore, the date of first diagnosis is 16-08-10. She first consulted us in the second week of August, 2010 for Right breast lump which ultimately turned out to be breast cancer after appropriate investigations”.
11. A tumor is an abnormal growth of body tissue. Tumors can be cancerous (malignant) or non cancerous (benign). A tumor is commonly used as a synonym for a neoplasm filled that appears enlarged in size. Tumor is not synonymous with cancer while cancer is by definition malignant. A tumor can be benign, pre-malignant or malignant or can represent a lesion without any cancerous potential whatsoever.
12. Ex.A-4 revealed that the complainant’s wife consulted M/s Omega hospitals i.e., on 16-08-10 for right breast lump. Ex.A-4 further revealed that the said hospital authorities confirmed the said lump to be of breast cancer on 10-11-10 after appropriate investigations only. Under those circumstances it cannot be said that the complainant’s wife had knowledge of suffering from carcinoma being medically illiterate.
13. It is the contention of the opposite parties that they settled the claim of the complainant for Rs.35,326/- as against claim of Rs.37,133/- during the policy period covered by Ex.A-2. The medical prescriptions, bills, lab reports of the patient are available with the opposite parties as they settled the claim during the period covered by Ex.A-2. The opposite parties for the reasons best known to them did not file them before this Forum in support of their contention of pre-existing disease i.e., the purpose for which the patient took treatment earlier. The opposite parties have not disputed the amount claimed by the complainant. Therefore, we opine that the rejection of the claim by the opposite parties for the remaining amount is unreasonable and in our considered opinion amounted to deficiency of service. We therefore answer this point in favour of the complainant.
14. POINT No.2:- The complainant claimed Rs.50,000/- as damages towards mental agony. The opposite parties rejected the remaining claim on 01-07-11. No doubt the rejection of claim might have caused some agony to the complainant. Under those circumstances, awarding Rs.5,000/- as damages will meet ends of justice. We therefore answer this point accordingly in favour of the complainant.
15. POINT No.3:- In view of above findings, in the result the complaint is partly allowed as indicated below:
1. The opposite parties are directed to pay Rs.1,56,437/- (Rupees one lakh, fifty six thousand four hundred and thirty seven only) together with interest @9% p.a., from 03-10-11 till realisation.
2. The opposite parties are directed to pay Rs.5,000/- (Rupees five thousand only) towards compensation.
3. The opposite parties are directed to pay Rs.2,000/- (Rupees two thousand only) towards costs.
4. The above ordered amounts shall be paid within a period of six weeks from the date of receipt of the copy of the order.
Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 28th day of March, 2012.
MEMBER MEMBER PRESIDENT
APPENDIX OF EVIDENCE
DOCUMENTS MARKED
For Complainant:
Ex.Nos. | DATE | DESCRIPTION OF DOCUMENTS |
A1 | 19-09-08 | Policy bearing No. P/131214/01/2009/000632 |
A2 | 19-09-09 | Policy bearing No. P/131214/01/2010/000280 |
A3 | 19-09-10 | Policy bearing No. P/131214/01/2011/000453 |
A4 | 10-11-10 | Copy of letter of diagnosis issued by Omega Hospitals |
A5 | 01-07-11 | Copy of letter addressed by 1st opposite party to complainant |
A-6 | 19-07-11 | Office copy of legal notice got issued by complainant to opposite parties along with postal receipts |
A-7 | 21-07-11 | Postal acknowledgment |
A-8 | 21-07-11 | Postal acknowledgment |
For opposite parties :
Ex.Nos. | DATE | DESCRIPTION OF DOCUMENTS |
B1 | - | Certified Copy of policy conditions |
B2 | - | Copy of statement of details of claims settled |
PRESIDENT
