The Head Claims, Medi Assist India Private Ltd., V/S V. Ellangovan S/o. Vallikannu - Consumer Court Case

Karnataka

Raichur

DCFR 98/06

V. Ellangovan S/o. Vallikannu - Complainant(s)

Versus

The Head Claims, Medi Assist India Private Ltd., - Opp.Party(s)

T.M. Swamy

26 Jul 2007

ORDER

DIST. CONSUMER DISPUTES REDRESSAL FORUM
DIST. CONSUMER DISPUTES REDRESSAL FORUM,DC Office Compound, Sath Kacheri
consumer case(CC) No. DCFR 98/06

V. Ellangovan S/o. Vallikannu						...........Appellant(s)
Vs.
The Head Claims, Medi Assist India Private Ltd., The Branch Manager, The oriental Insurance Co. Ltd.,						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

JUDGEMENT This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant V. Ellangovan against Respondents- Head Claims, Medi Assist India Private Ltd., for direction to pay Rs. 35,910/- towards medi-claim policy with compensation of Rs. 25,000/- and cost. The Respondent NO-1 & 2 have denied the claim of the complainant by filing written version. 2. During the course of enquiry the complainant has filed his sworn-affidavit by way of examination-in-chief and has got marked in all (54) documents at Ex.P-1 to P-54. The Respondents in-rebuttal have filed sworn affidavit of Respondent No-2 by way of examination-in-chief and got marked in all (9) documents at Ex.R-1 to R-9. 3. Heard the arguments of both sides and perused the records. The following points arise for our consideration and determination: 1. Whether the Respondents prove suppression of material facts by the complainant, as alleged.? 2. Whether the complainant proves deficiency in service by the Respondent Insurance Company in not settling his medi- claim, as alleged.? 3. Whether the complainant is entitled for the reliefs sought for? 4. Our finding on the above points are as under:- 1. In the Negative. 2. In the Affirmative. 3. As per final order for the following. REASONS POINT NO.1 & 2:- 5. We shall discuss these two points together as they are inter-related. From a careful reading of complaint and written version we find that there is no dispute that the complainant-Ellagovan had taken medi-claim policy for the year 2003-04, 2004-05 & 2005-06 and that the second and third policies are renewed after expiry of first and second policy period respectively. It is the case of the complainant that on 05-10-05 he was admitted to Christian Medical Hospital College at Vellore as he was suffering operated Hernioplasty on 07-10-05 and were discharged from hospital on 13-10-05. Afterwards there was Post Hospitalization Treatment upto 07-12-05. He incurred expenditure of Rs. 35,166/- for operation and hospitalization charges and Rs. 744/- for post hospitalization treatment. He submitted his claim for the same by producing original medical bills on 24-10-05 and post hospitalization expenses were also submitted on 13-12-05. Respondent NO-1 through letter dt. 07-11-05 stated their in-ability to accept his claim on the ground of existence of Scars of surgery prior to the inception of policy. However he once-again requested the Respondent through letter dt. 13-12-05 for settlement of his claim and there were many further correspondence between them and finally on 24-04-06 he submitted all the detailed documents and clarification certificate of Dr. Aravindan Nair of CMC Hospital of Vellore. But Respondent NO-1 turned down/repudiated his claim on 02-05-06 on flimsy grounds. It is the specific case of the complainant that in the Proposal Form for the first policy No. 422901/2004/654 dt. 07-04-03 he had mentioned about his having had undergone Laprotamy operation in the month of August 2002 and subsequently the claims of complainant were entertained in the year 2004-05 through vouchers dt. 14-08-04/28-08-04/24-11-04 by TTK Health Care Services Private Limited and through DD Nos. 005826 dt. 26-07-05 for Rs. 18,386/- by Respondent No-1 concerning third policy and presently Respondents are denying his claim on flimsy grounds which are not tenable. 6. The Respondents in their written version have contended that the revised diagnosis to the complainant was incisional Hernia. As per the complaint the complainant was suffering from PARA RECTAL ABSCESS HIGH FISTULA IN ANO UNDER WENT SURGERY i.e, Laprotomy in August-2002. So the proximate cause of incisional Hernia is the earlier operation, the complainant under went in 2002. The Hernia need not be exactly at the same spot. But distention of the intestine has been caused due to rupture adjacent to the site were the Laprotomy had been conducted due to weakening abdominal wall caused by incision done for Laprotomy. Hence proximate cause of incisional Hernia is the Laprotomy done in August 2002 which was earlier to the first Insurance policy effected on 07-03-03. Though the Hernia was diagnosed in May-2003 it is arising out of a surgery undergone about (8) months before so his claim is not payable. It is also contended by the Respondents that after detailed correspondence between the complainant and Respondents ultimately Dr. Aravindan Nair who had treated the complainant has clarified to Respondent NO-1 that it is incisional Hernia. So this clarification of Dr. Aravindan Nair has cleared all the confuse arose to the complainant. 7. In this back-ground it is material to consider the Proposal Form for the (first) policy at Ex.P-54 filed by the complainant and the Clarification Letter of Dr. Aravindan Nair produced by the Respondents at Ex.R-7 & Ex.R-8 and Medical Literature about Incisional Hernia and Ventral Hernia along with photography at Ex.R-9. 8. Ex.R-54 is the proposal form for medi-claim. Para-15 of this form meant for giving particulars of any other illness or disease or accident or operation sustained by the proposer in the past. This Para-15 in the shape of table reads as under: Nature of the disease Unit first treated Name of attending medical Whether fully Injury and treatment practitioner, surgeon with cured Received his address and telephone Number 1. PARA RECTAL ABSCESS- 11-08-02 Dr. George Mathew M.S.M.D Health is under 2. HIGH FISTULA IN ANO Professor & Head Christian progress. 3. Medical College, Vellore 4. 9. Ex.R-7 is the letter dt. 15-06-06 by the Respondent- (Mr. M.V.Raju) Head-Claims addressed to Dr. Aravindan Nair M.S, MNAMS Professor and Head General Surgery Unit VI Christian College Vellore. This letter being a short one reads as under: Dear Sir, Re: Our claim CCN No: 54072/64173, IP.No: 179872, DOA:05/10/2005 a/c Mr. Ellangovan We thank you for the letter of 25/05/06 clarifying on the discharge summary in the above connection. We would request your clarification on the following issue in respect of Incisional Hernia. The terminology Incisional Hernia as we understand signifies having arising at the site of previous surgery, the previous surgery being the direct cause of hernia. We would request you to confirm whether the proximate cause of Incisional Hernia (diagnosed in May 03) the patient had was the laporotomy done in August 02. We shall be highly grateful to you for your early reply. Thanking you, Yours faithfully, Sd/- M.V. RAJU HEAD-CLAIMS 10. Ex.R-8 is the letter of Dr. Aravindan Nair dt. 21-07-06 addressed to M.V. Raju Head-Claims Medi Assist India Private Ltd., Bangalore which is short reads as under: Dear Sir, Ref: Your letter dated 15-06-2006, your ref: CCN No. 54072/64173, IP.No. 1798720, regarding Mr. Ellangovan, CMC Hospital number 179872-C ***** Greetings from Christian Medical College, Vellore. This is to certify that the incisional hernia Mr. Ellangovan, CMC Hospital number 179872 got could be following the first operation in August 2002. Will be happy to clarify any further queries. With best wishes, Yours sincerely, Sd/- Dr. Aravindan Nair, M.S. MNMAN Professor & Head. In this letter Dr. Aravindan Nair has clarified that incisional Hernia suffered by Ellangovan/complainant could be following the first operation in August-2002. The Respondents have also produced Medical Literature regarding clarification about incisional Hernia and Ventral Hernia along with photography at Ex.R-9. We have sincerely gone through this literature. The opening para of this literature which is short one and giving required meaning reads as under: INCISIONAL or Ventral Hernias may occur in the area of any prior surgical incision, and can very in size from very small, to very large and complex. They develop as the result of disruption along or adjacent to the area of abdominal wall suturing, often subsequent TENSION placed on the tissue or other inhibition to adequate healing (infection, poor nutrition, obesity of metabolic diseases). 11. In the repudiation leter dt. 07-11-05 at Ex.P-12 it is observed that this claim pertains to Hernia repair of recurrent incisional Hernia as many surgeries have been performed around the same area prior to the inception of the policy. So the claims stands Repudiated under clause-4.1 (Pre-existing weak scars of earlier surgeries). So it is evident that the Respondents have repudiated the claim on the ground of pre-existing weak scars of earlier surgery. As stated earlier in the Proposal Form Ex.P-54 the complainant in para-15 of the table has fairly disclosed by mentioning his earlier operation of PARA RACTAL ABSCESS HIGH FISTULA IN ANO on 11-08-02, operation done by George Mathew Professor of Head Christian Medical College, Vellore. Further Dr. Aravindan Nair in his clarification letter at Ex.R-8 with reference to Respondents letter dt. 15-06-06 at Ex.R-7, seeking clarification, has clarified that incisional Hernia of Mr. Ellangovan got could be following the first operation in August 2002. So from the Proposal Form Ex.P-54 [which is showing the earlier operation in August 2002], in the light of clarification letter of Dr. Aravindan Nair Ex.R-8, coupled with the medical literature regarding Incisional Hernia, it cannot be said that complainant has suppressed of material facts since in the proposal form Ex.P-54, it is clearly mentioned of his having under-went operation for PARA RACTAL ABSCESS HIGH FISTULA IN ANO on 11-08-02 in the Christian Medical College at Vellore. Admittedly this proposal was accepted by the Respondent Corporation by issuing the first medi-claim policy which was subsequently renewed by the second and third policy. During this third policy period the complainant suffered swelling in his anterior abdominal wall for which he was operated on 07-10-05 in the Christian Medical College Hospital, Vellore and for medi-claim of which the Respondents repudiated his claim. So when the Respondent Insurance Company by accepting the proposal form have issued the first policy and which was renewed twice for subsequent two years, now they are estopped from contending pre-existence of surgery scar of earlier surgery. This our view is supported by the decision of Honble National Commission cited by the learned counsel for the complainant, reported in S.C. & N.C. Consumer Law Cases ( 1996-2005) in Revision Petition No. 1880/2000 dt. 10-09-01 United India Insurance Company Ltd., V/s. Dalbirsingh, Head Note which reads as under: Insurance Claim__ Policy of medi-claim Repudiation__On the ground of non disclosure. Respondent clearly mentioning the facts of having undergone by pass surgery__ Inspite of this disclosure the insurance cover was issued__ Held that having issued the insurance policy the insurance company cannot escape their liability on the plea of non-disclosure__ (Para-3). 12. So viewed from any angle when the Respondents have accepted the Proposal Form of the complainant who had disclosed his earlier operation, in the year 2002 and when the Respondents issued medi-claim policy to the complainant which was renewed twice by issuing two policies subsequently now the Respondents are estopped from contending suppression of material facts so the repudiation of his claim on this score is not tenable. This act of repudiation by the Respondent amounts to deficiency in service. Hence we hold that the complainant has proved deficiency in service by the Respondents therefore Point No-1 is answered in the negative against the Respondents and Point NO-2 is answered in the affirmative in favour of the complainant. POINT NO.3:- 13. The complainant has sought for the payment of Rs. 35,166/- towards hospitalization charges and Rs. 744/- towards post hospitalization bill and for Rs. 25,000/- towards damages. In all he has claimed Rs. 60,910/-. The complainant through his letters dt. 13-12-05 at Ex.P-7, 26-12-05 at Ex.P-8, 21-02-06 at Ex.P-9, 24-04-06 at Ex.P-10 made correspondence and reminders for settlement of medi-claim No. 54072 for Rs. 35,166/- towards Hernia surgery. In-view of our discussions and finding on Point No- 1 & 2 we hold that the complainant is entitled for Rs. 35,166/- claimed by him under claim No. 54072 and Rs. 744/- towards post hospitalization bills submitted by him totaling to Rs. 35,910/-. In so far as his claim for awarding Rs. 25,000/- towards mental agony and damages, having regard to the facts and circumstances of the case, we feel it just and proper to award a global compensation of Rs. 5,000/- 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 Respondents shall pay hospitalization charges of Rs. 35,910/- including OPD claim of Rs. 744/-, to the complainant along with global compensation of Rs. 5,000/- including cost of litigation. The Respondents shall comply this order within six 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 26-07-07) Sd/- Sri. N.H. Savalagi President Dist.Consumer Forum-Raichur. Sd/- Sri. Vishwanath Yekkelli, Member. Dist.Consumer Forum-Raichur.

JUDGEMENT This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant V. Ellangovan against Respondents- Head Claims, Medi Assist India Private Ltd., for direction to pay Rs. 35,910/- towards medi-claim policy with compensation of Rs. 25,000/- and cost. The Respondent NO-1 & 2 have denied the claim of the complainant by filing written version. 2. During the course of enquiry the complainant has filed his sworn-affidavit by way of examination-in-chief and has got marked in all (54) documents at Ex.P-1 to P-54. The Respondents in-rebuttal have filed sworn affidavit of Respondent No-2 by way of examination-in-chief and got marked in all (9) documents at Ex.R-1 to R-9. 3. Heard the arguments of both sides and perused the records. The following points arise for our consideration and determination: 1. Whether the Respondents prove suppression of material facts by the complainant, as alleged.? 2. Whether the complainant proves deficiency in service by the Respondent Insurance Company in not settling his medi- claim, as alleged.? 3. Whether the complainant is entitled for the reliefs sought for? 4. Our finding on the above points are as under:- 1. In the Negative. 2. In the Affirmative. 3. As per final order for the following. REASONS POINT NO.1 & 2:- 5. We shall discuss these two points together as they are inter-related. From a careful reading of complaint and written version we find that there is no dispute that the complainant-Ellagovan had taken medi-claim policy for the year 2003-04, 2004-05 & 2005-06 and that the second and third policies are renewed after expiry of first and second policy period respectively. It is the case of the complainant that on 05-10-05 he was admitted to Christian Medical Hospital College at Vellore as he was suffering operated Hernioplasty on 07-10-05 and were discharged from hospital on 13-10-05. Afterwards there was Post Hospitalization Treatment upto 07-12-05. He incurred expenditure of Rs. 35,166/- for operation and hospitalization charges and Rs. 744/- for post hospitalization treatment. He submitted his claim for the same by producing original medical bills on 24-10-05 and post hospitalization expenses were also submitted on 13-12-05. Respondent NO-1 through letter dt. 07-11-05 stated their in-ability to accept his claim on the ground of existence of Scars of surgery prior to the inception of policy. However he once-again requested the Respondent through letter dt. 13-12-05 for settlement of his claim and there were many further correspondence between them and finally on 24-04-06 he submitted all the detailed documents and clarification certificate of Dr. Aravindan Nair of CMC Hospital of Vellore. But Respondent NO-1 turned down/repudiated his claim on 02-05-06 on flimsy grounds. It is the specific case of the complainant that in the Proposal Form for the first policy No. 422901/2004/654 dt. 07-04-03 he had mentioned about his having had undergone Laprotamy operation in the month of August 2002 and subsequently the claims of complainant were entertained in the year 2004-05 through vouchers dt. 14-08-04/28-08-04/24-11-04 by TTK Health Care Services Private Limited and through DD Nos. 005826 dt. 26-07-05 for Rs. 18,386/- by Respondent No-1 concerning third policy and presently Respondents are denying his claim on flimsy grounds which are not tenable. 6. The Respondents in their written version have contended that the revised diagnosis to the complainant was incisional Hernia. As per the complaint the complainant was suffering from PARA RECTAL ABSCESS HIGH FISTULA IN ANO UNDER WENT SURGERY i.e, Laprotomy in August-2002. So the proximate cause of incisional Hernia is the earlier operation, the complainant under went in 2002. The Hernia need not be exactly at the same spot. But distention of the intestine has been caused due to rupture adjacent to the site were the Laprotomy had been conducted due to weakening abdominal wall caused by incision done for Laprotomy. Hence proximate cause of incisional Hernia is the Laprotomy done in August 2002 which was earlier to the first Insurance policy effected on 07-03-03. Though the Hernia was diagnosed in May-2003 it is arising out of a surgery undergone about (8) months before so his claim is not payable. It is also contended by the Respondents that after detailed correspondence between the complainant and Respondents ultimately Dr. Aravindan Nair who had treated the complainant has clarified to Respondent NO-1 that it is incisional Hernia. So this clarification of Dr. Aravindan Nair has cleared all the confuse arose to the complainant. 7. In this back-ground it is material to consider the Proposal Form for the (first) policy at Ex.P-54 filed by the complainant and the Clarification Letter of Dr. Aravindan Nair produced by the Respondents at Ex.R-7 & Ex.R-8 and Medical Literature about Incisional Hernia and Ventral Hernia along with photography at Ex.R-9. 8. Ex.R-54 is the proposal form for medi-claim. Para-15 of this form meant for giving particulars of any other illness or disease or accident or operation sustained by the proposer in the past. This Para-15 in the shape of table reads as under: Nature of the disease Unit first treated Name of attending medical Whether fully Injury and treatment practitioner, surgeon with cured Received his address and telephone Number 1. PARA RECTAL ABSCESS- 11-08-02 Dr. George Mathew M.S.M.D Health is under 2. HIGH FISTULA IN ANO Professor & Head Christian progress. 3. Medical College, Vellore 4. 9. Ex.R-7 is the letter dt. 15-06-06 by the Respondent- (Mr. M.V.Raju) Head-Claims addressed to Dr. Aravindan Nair M.S, MNAMS Professor and Head General Surgery Unit VI Christian College Vellore. This letter being a short one reads as under: Dear Sir, Re: Our claim CCN No: 54072/64173, IP.No: 179872, DOA:05/10/2005 a/c Mr. Ellangovan We thank you for the letter of 25/05/06 clarifying on the discharge summary in the above connection. We would request your clarification on the following issue in respect of Incisional Hernia. The terminology Incisional Hernia as we understand signifies having arising at the site of previous surgery, the previous surgery being the direct cause of hernia. We would request you to confirm whether the proximate cause of Incisional Hernia (diagnosed in May 03) the patient had was the laporotomy done in August 02. We shall be highly grateful to you for your early reply. Thanking you, Yours faithfully, Sd/- M.V. RAJU HEAD-CLAIMS 10. Ex.R-8 is the letter of Dr. Aravindan Nair dt. 21-07-06 addressed to M.V. Raju Head-Claims Medi Assist India Private Ltd., Bangalore which is short reads as under: Dear Sir, Ref: Your letter dated 15-06-2006, your ref: CCN No. 54072/64173, IP.No. 1798720, regarding Mr. Ellangovan, CMC Hospital number 179872-C ***** Greetings from Christian Medical College, Vellore. This is to certify that the incisional hernia Mr. Ellangovan, CMC Hospital number 179872 got could be following the first operation in August 2002. Will be happy to clarify any further queries. With best wishes, Yours sincerely, Sd/- Dr. Aravindan Nair, M.S. MNMAN Professor & Head. In this letter Dr. Aravindan Nair has clarified that incisional Hernia suffered by Ellangovan/complainant could be following the first operation in August-2002. The Respondents have also produced Medical Literature regarding clarification about incisional Hernia and Ventral Hernia along with photography at Ex.R-9. We have sincerely gone through this literature. The opening para of this literature which is short one and giving required meaning reads as under: INCISIONAL or Ventral Hernias may occur in the area of any prior surgical incision, and can very in size from very small, to very large and complex. They develop as the result of disruption along or adjacent to the area of abdominal wall suturing, often subsequent TENSION placed on the tissue or other inhibition to adequate healing (infection, poor nutrition, obesity of metabolic diseases). 11. In the repudiation leter dt. 07-11-05 at Ex.P-12 it is observed that this claim pertains to Hernia repair of recurrent incisional Hernia as many surgeries have been performed around the same area prior to the inception of the policy. So the claims stands Repudiated under clause-4.1 (Pre-existing weak scars of earlier surgeries). So it is evident that the Respondents have repudiated the claim on the ground of pre-existing weak scars of earlier surgery. As stated earlier in the Proposal Form Ex.P-54 the complainant in para-15 of the table has fairly disclosed by mentioning his earlier operation of PARA RACTAL ABSCESS HIGH FISTULA IN ANO on 11-08-02, operation done by George Mathew Professor of Head Christian Medical College, Vellore. Further Dr. Aravindan Nair in his clarification letter at Ex.R-8 with reference to Respondents letter dt. 15-06-06 at Ex.R-7, seeking clarification, has clarified that incisional Hernia of Mr. Ellangovan got could be following the first operation in August 2002. So from the Proposal Form Ex.P-54 [which is showing the earlier operation in August 2002], in the light of clarification letter of Dr. Aravindan Nair Ex.R-8, coupled with the medical literature regarding Incisional Hernia, it cannot be said that complainant has suppressed of material facts since in the proposal form Ex.P-54, it is clearly mentioned of his having under-went operation for PARA RACTAL ABSCESS HIGH FISTULA IN ANO on 11-08-02 in the Christian Medical College at Vellore. Admittedly this proposal was accepted by the Respondent Corporation by issuing the first medi-claim policy which was subsequently renewed by the second and third policy. During this third policy period the complainant suffered swelling in his anterior abdominal wall for which he was operated on 07-10-05 in the Christian Medical College Hospital, Vellore and for medi-claim of which the Respondents repudiated his claim. So when the Respondent Insurance Company by accepting the proposal form have issued the first policy and which was renewed twice for subsequent two years, now they are estopped from contending pre-existence of surgery scar of earlier surgery. This our view is supported by the decision of Honble National Commission cited by the learned counsel for the complainant, reported in S.C. & N.C. Consumer Law Cases ( 1996-2005) in Revision Petition No. 1880/2000 dt. 10-09-01 United India Insurance Company Ltd., V/s. Dalbirsingh, Head Note which reads as under: Insurance Claim__ Policy of medi-claim Repudiation__On the ground of non disclosure. Respondent clearly mentioning the facts of having undergone by pass surgery__ Inspite of this disclosure the insurance cover was issued__ Held that having issued the insurance policy the insurance company cannot escape their liability on the plea of non-disclosure__ (Para-3). 12. So viewed from any angle when the Respondents have accepted the Proposal Form of the complainant who had disclosed his earlier operation, in the year 2002 and when the Respondents issued medi-claim policy to the complainant which was renewed twice by issuing two policies subsequently now the Respondents are estopped from contending suppression of material facts so the repudiation of his claim on this score is not tenable. This act of repudiation by the Respondent amounts to deficiency in service. Hence we hold that the complainant has proved deficiency in service by the Respondents therefore Point No-1 is answered in the negative against the Respondents and Point NO-2 is answered in the affirmative in favour of the complainant. POINT NO.3:- 13. The complainant has sought for the payment of Rs. 35,166/- towards hospitalization charges and Rs. 744/- towards post hospitalization bill and for Rs. 25,000/- towards damages. In all he has claimed Rs. 60,910/-. The complainant through his letters dt. 13-12-05 at Ex.P-7, 26-12-05 at Ex.P-8, 21-02-06 at Ex.P-9, 24-04-06 at Ex.P-10 made correspondence and reminders for settlement of medi-claim No. 54072 for Rs. 35,166/- towards Hernia surgery. In-view of our discussions and finding on Point No- 1 & 2 we hold that the complainant is entitled for Rs. 35,166/- claimed by him under claim No. 54072 and Rs. 744/- towards post hospitalization bills submitted by him totaling to Rs. 35,910/-. In so far as his claim for awarding Rs. 25,000/- towards mental agony and damages, having regard to the facts and circumstances of the case, we feel it just and proper to award a global compensation of Rs. 5,000/- 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 Respondents shall pay hospitalization charges of Rs. 35,910/- including OPD claim of Rs. 744/-, to the complainant along with global compensation of Rs. 5,000/- including cost of litigation. The Respondents shall comply this order within six 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 26-07-07) Sd/- Sri. N.H. Savalagi President Dist.Consumer Forum-Raichur. Sd/- Sri. Vishwanath Yekkelli, Member. Dist.Consumer Forum-Raichur.