Date of Filing:15.07.2009<br /> Date of Order: 12.07.2010<br /> <br /> 2<br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 12TH DAY OF JULY 2010<br /> <br /> PRESENT<br /> <br /> <br /> <br /> Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> COMPLAINT NO: 1656 OF 2009<br /> <br /> M. Ashok<br /> S/o. Late D. Murthyvelu<br /> R/at S3344, Golden Wood Apartments<br /> 1st Main, 1st Cross, Behind Basavnagar<br /> Bus Stand, Talakaveri Nagar<br /> Vibuthipura, Bangalore 37 Complainant<br /> <br /> V/S<br /> <br /> 1. The Head Customer Care<br /> ICICI Lombard General Insurance Co. Ltd.<br /> 2nd Floor, Zenith House<br /> Keshav Rao Khadye Marg, Mahalaxmi<br /> Mumbai 400034<br /> <br /> 2. The Head Customer Care<br /> TTK Health Care Service Pvt. Ltd.<br /> 7, Jeevan Bhima Nagar Main Road<br /> HAL III Stage, Bangalore 75 Opposite Party<br /> <br /> ORDER<br /> By the President Sri S.S. Nagarale<br /> <br /> This is a complaint filed under section 12 of the Consumer Protection Act.<br /> The facts of the case are that complainant availed Health Insurance Policy from opposite party No. 1. He was suffering from end stage renal disease and had to under go kidney transplant after obtaining necessary approval from the concerned authorities at Manipal Hospital. The opposite party No.1 had issued cashless health card. The hospitalisation expenses were to be borne by opposite party No. 1 up to Rs. 3,00,000/-. However, inspite of cashless card, the complainant had to incurr the pre-hospitalisation expenses himself, with the assurance of opposite party that same would be reimbursed later. Complainant submitted form along with documents to opposite party. To his shock and horror, opposite party No. 2 acing on behalf of opposite party No. 1 denied genuine claim of complainant under the policy on a frivolous, unjust and baseless ground stating that ailment occurred due to DM which was pre-existing to the inception of policy. The disease which the complainant was suffering can recur any moment without any prior symptoms. Ailment was detected much after the inception of policy. Even a perfectly healthy person can suffer kidney failure all of a sudden. The reasons assigned by opposite parties is arbitrary, unjust and illegal. It is not the case of the opposite parties that claimant has concealed any information. The act of the opposite parties amounts to unfair trade practice. Complainant has been put to great loss and hardship. He had to borrow money from his relatives and friends for his treatment. Rs. 41,015/- spent towards 30 days pre-hospitalisation expenses and Rs. 2,30,624/- is spent towards operation and hospitalisation expenses and Rs. 73,651/- was spent towards post hospitalisation charges by the complainant. As policy covers Rs. 3,00,000/- complainant is entitled to receive the said amount from the opposite parties complainant had issued notice to the opposite parties to settle the claim. Hence, the complaint.<br /> 2. The opposite parties filed version stating that it is true that complainant had obtained Individual Mediclaim Policy for the first time from the opposite party No. 1. The policy was valid for the period from 27.03.2008 to 26.03.2009. Policy was issued subject to various terms and conditions. The cashless hospitalisation facilities have to be approved by the claim settling agent based on the documents and information. Cashless facilities and rejection does not bar the complainant from making a claim seeking reimbursement of medical expenses by submitting relevant documents. Complainant can lodge claim towards medical reimbursement with opposite party No. 2. The claim of the complainant has rightly repudiated by the claim settling agent considering the documents and information furnished by the complainant. There is no deficiency in service on the part of opposite parties. Complainant is not entitled for compensation. Complaint is not maintainable. Claim of the complainant is false under the exclusion clause 3.1 and 3.3 of the policy. Therefore, the opposite party requested to dismiss the complaint.<br /> 3. Both the parties filed affidavit evidence and documents.<br /> 4. Arguments are heard.<br /> 5. I have gone through the pleadings of parties, documents and affidavit evidence.<br /> 6. The points for consideration are:<br /> 1. Whether the complainant has proved deficiency of service on the part of opposite parties?<br /> 2. Whether the repudiation of the mediclaim is justified?<br /> 3. Whether the complainant is entitled for reimbursement of medical expenses from the opposite parties?<br /> 7. It is an admitted case that the complainant has taken health insurance policy from opposite party No. 1. The period of insurance was from 27.03.2008 to 26.03.2009. The sum insured is Rs. 3,00,000/- for self. The complainant has paid total premium amount of Rs. 14,713/-. Policy is produced. The complainant has produced repudiation letter of opposite party No. 2. In that letter it is stated “present ailment is accelerated and attributable to DM which is pre-existing to the inception of the policy hence denied as per the policy exclusion clause 3.1”. Though cashless health card was issued to complainant cashless facilities was not given to the complainant and the opposite party No. 2 rejected the claim stating that exclusion clause has reason for rejection. Therefore, the complainant has to pay the entire medical expenses. The complainant submitted that he incurred Rs. 41,015/- as pre-hospitalisation charges and he has paid Rs. 2,30,624/- to the hospital towards operation and hospitalisation expenses and he has spent Rs. 73,651/- towards post-hospitalisation charges. The complainant has produced Manipal Health Systems Pvt. Ltd. bill details. As per this document total amount spent by the complainant is Rs. 3,47,998/-. This bill has been certified by the accounts department, Manipal Hospital, Airport Road, Bangalore. The only condition or clause relied upon by the opposite party so as to repudiate the claim is the exclusion clause 3.1. As per this clause claim arising on account of or connection with any pre-existing illness shall be excluded from the scope of cover for the policy. It is the case of the opposite party that the ailment of the complainant accelerated and attributable to Diabetes Mellitus is preexisting to the inception of policy. Hence, the claim for reimbursement of the medical expenses put up by the complainant had been denied relying on exclusion clause 3.1. of health policy conditions. Now the only point for consideration is whether the opposite parties are justified in repudiating or rejecting the claim based on clause 3.1 exclusion clause. The complainant has produced discharge summary of Manipal Hospital. As per the discharge summary he has under gone S/P renal transplant. In the past history column it is stated that complainant was suffering from Type 2 DM since 24 years. No doubt as per the discharge summary of Manipal hospital it is clear that complainant was suffering from type 2 diabetes Mellitus. Whether the said DM can be taken as pre-existing disease so as to excluded from the scope of cover under policy. The Hon’ble Punjab State Consumer Disputes Redressal Forum in Life Insurance Corporation of India Vs. Sushma Sharma reported in II (2008) CPJ 213 it has been held “Hypertension and diabetes not material diseases – These diseases if had been material, insured would not have survived for 10 years – Complaint allowed by Forum – Payment of insurance amount with interest directed – Appeal against order dismissed.” In para 18 of the judgement the Hon’ble Punjab Commission has held as under:<br /> “So far as hypertension is concerned, No doubt it is a disease but it is not a material disease. In these days of fast life, majority of the people suffer from hypertension. It may be only the labour class who work manually and take the food without caring for its calories that they do not suffer from hypertension or diabetes. Out of the literate and educated people particularly who have the white collar jobs, majority of them suffer from hypertension or diabetes or both. If the life Insurance Companies are so sensitive that they consider hypertension and diabetes as material disease then they should wind up their business and stop accepting premium. If these diseases had been material Nand Lal insured would not have survived for 10 years after he started suffering from these medical problems. Like hypetension, diabetes has also infected a majority of the Indian population but the people who suffer from diabetes and continue managing it under the medical advice, they survive for number of years and none of these disease is fatal and as discussed above, if these diseases had been material diseased Nand Lal insured would not have survived for 10 years.”<br /> <br /> 8. In another decision the Hon’ble Punjab State Commission in Oriental Insurance Co. Ltd. Vs Rajinder Singh reported in I (2008) CPJ 258 has held as under:<br /> “Consumer Protection Act, 1986 – Section 2(1)(g) - Insurance – Medi-claim policy – complainant fell ill – admitted in hospital – Claim towards medial treatment and medicines repudiated – contention, complainant suffering from hypertension and renal problems not disclosed – contention not acceptable – Insured not known hypertension / renal failure patient, as per discharge summary issued by hospital – Insured had knowledge of disease / taken treatment prior to taking of policy, not proved – Complaint allowed by Forum – Order upheld in appeal.”<br /> <br /> 9. In the said judgement Hon’ble Commission has referred and extracted the observation of Hon’ble National Commission at para 5 which is as under:<br /> “18. The district Forum also relied on Clause 4.1 of the policy which states that it is not material whether the insured had knowledge of the disease or not, and even existence of symptoms of the disease prior to effective date of insurance enables the Insurance Company to disown the liability.<br /> 19. If this interpretation is upheld, the Insurance Company is not liable to pay any claim, whatsoever, because every person suffers from symptoms of any disease without the knowledge of the same. This 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 thy suffer and hence, they cannot be made liable to suffer because the Insurance Company relies on their Clause 4.1 of the policy in a mala fide manner to repudiate all the claims. No claim is payable under the mediclaim policy as every human being is bon to die and diseases are perhaps pre-existing in the system totally unknown to him which he is genuinely unaware of them. Hindsight every one relies much later that he should have known from some symptom. If this is so every person should do medical studies and further not take nay insurance policy. Even on the facts on record there is no material to show that the petitioner had any symptoms like chest pain, etc. prior to 11.08.2000. Since there were no symptoms, the question of linking up the symptoms with a disease does not arise. In any case, it is the contention of the complainant that he was thoroughly checked up by the Doctors who were nominated by the Insurance Company and at that time he was found hale and hearty. In such set of circumstances, it would be different to arrive at the conclusion that the insured had suppressed the pre-existing disease.<br /> 20. In view of the above discussion and from the records available before us, in our opinion, the complainant has proved that he was unaware of the disease at the time of taking the policy and hence the complaint is allowed.”<br /> <br /> 10. As per the discharge summary of the hospital final diagnosis was shown S/p renal transplant. In the past history it has written type 2 DM – 24 yrs, HTN – 1 yr, RTA (R) hip and (R) ribs fracture 2003 Chronic NSAID abuse, Allergic to pencillin and sulpha drugs. In the discharge summary it has been mentioned that the complainant was suffering from renal ailments or problems. Therefore, the complainant was not aware of his kidney problem before taking mediclaim policy. No records have been produced by the opposite party to show that infact the complainant was under treatment for kidney problem in any of the hospital. No doubt a person suffering from diabetes will have chance of kidney problem but that is not the sole and only reason to suffer from kidney ailments. Therefore, repudiation of the claim of the complainant only on the ground that the complainant was suffering from Diabetes Mellitus for the last 24 years is not justified. The opposite parties could have reimbursed the medical expenses, but, unfortunately the claim has been repudiated. Since, the cashless facilities has been denied by opposite party No. 2 by clearly stating that the ailment was attributable to DM which is pre-existing to the inception of the policy and the claim was denied under exclusion clause 3.1. Therefore, the complainant though fit to file complaint before this forum for direction to the opposite parties to reimburse the medical expenses. The complaint cannot be dismissed on the technical ground that complainant has not put up his claim before opposite party No. 1 before approaching this forum. The opposite parties have been given opportunity to contest the matter and both the parties have filed defense version and argued the matter on merits. Therefore, it makes no difference whether the claim is put up before opposite party No. 1 earlier to this complaint or not. Taking into consideration of all the facts and circumstances of the case and the policy terms and conditions it is a fit case to grant relief to the complainant. The insured amount is Rs. 3,00,000/-. The complainant is entitled to the extent of that amount though not the entire amount spent by him for the treatment. Consumer Protection Act is a social and benevolent legislation intended to protect better interests of the consumers. The complainant herein being a ‘Consumer’ under the Act his interests requires to be protected by granting relief to him. The insurance companies cannot be allowed to reject or repudiate the claim on technical grounds. In the result I proceed to pass the following:<br /> ORDER<br /> 11. The complaint is allowed. The opposite party No. 1 is directed to pay Rs. 3,00,000/- to the complainant within 60 days from the date of this order. In the event of non-compliance of the order within 60 days the above amount carries interest at 6% p.a. from the date of order till payment / realisation.<br /> 12. Send the copy of this Order to both the parties free of costs immediately. <br /> 13. Pronounced in the Open Forum on this 12TH DAY OF JULY 2010. <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings.<br /> <br /> MEMBER MEMBER<br />