BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE: 30^th day of May 2014         

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member

Complaint No.:17/2014  

Complainant/s:

Satyanarayan B.Gaur, Age: 61 years, Occ: Business, R/o.Sana Building, Behind Raghavendra Math, Township, Dandeli 581 235, Dist.North Canara.

(By Sri.B.S.Hoskeri, Adv.)

v/s

Respondent/s:

The Manager, Star Health & Allied Insurance Co. Ltd., 2^nd floor, Vivekanand Corner, Desai Cross, Deshapande Nagar, Hubli 580029.

(By Sri.V.A.Byatanal, Adv.)

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.     The complainant has filed this complaint claiming for a direction to the respondents to pay Rs.45677/- with interest @ 12% PA towards medical charges under the policy, Rs.20,000/- towards compensation, for loss and mental agony, to order for cost of the proceedings and to grant such other reliefs

Brief facts of the case are as under:

2.     The case of the complainant in brief is that, complainant is a retired employee of M/s.West Coast Paper Mills Ltd., Dandeli. On 09.09.2011 the complainant and his wife insured their life with the respondent after medical check up and obtained Medi Classic Health Insurance (individual) policy. But due to some problem the complainant could not able to pay the premium of the next year immediate premiums and renewed the policy in the month of September 2012. However after contact the respondent through customer care on the advise of respondent staff the complainant by paying renewal fee renewed the policy without medical check up and was in force from 27.02.2013 to 26.02.2014. During the currency of the risk coverage period on 14.03.2013 the complainant experienced urinary problem and hence approached one Dr.G.V.Bhat. On the advise of said doctor the complainant got admitted for treatment on 19.03.2013 at Vivekanand Hospital for treatment. After preliminary examination viz., scan etc., Dr.Gavi Raikar advised surgery. Accordingly surgery was carried out on 21.03.2013. Thereafter on post operatively treatment the complainant was discharged on 26.03.2013. In all the complainant spent Rs.45,677/- under receipt for treatment. Thereafter the complainant along with all supporting documents submit claim on 30.03.2013. On taking sufficient time the complainant was informed by the respondent, his claim has been repudiated on the grounds of pre existing disease and suppression of facts, taking grounds that the retention of urine for the first 2 months which is prior to inception of medical insurance policy on 27.02.2013, as the said policy is a fresh medical insurance policy the ailment of the insured patient is due to BHP and therefore a pre existing disease saying that as per exclusion clause.1 the respondent company is not liable to make any payment in respect of the pre existing disease until 48 months of continuous coverage has elapsed, since inception of the first policy with the company. The respondents have repudiated the same without applying their judicious mind with erroneous conclusion. Hence the repudiation is illegal and amounts to a deficiency in service. Hence the instant complaint praying for the relief as sought.

3.     In pursuance to the notice issued by this forum the respondent appeared and filed detailed written version taking contention that the complaint is not tenable either in law or on facts and pray for dismissal of the complaint by putting the complainant to strict proof of the complaint averments and allegations. While respondent admits the issuance of the policy, coverage of the risk and period of coverage. Further the respondent took contention that the policy issued for the first time was lapsed and the present policy obtained after lapse of 171 days by renewing the first policy. Hence the 2^nd policy is considered to be a fresh policy issued on 27.02.2013. Among such other admissions and denials went on narrating the procedural facts and strict obeyance of the terms and conditions by the parties to the contract. Further the respondent took contention that the company shall not be liable to make any payment in respect of the pre existing disease until 48 months of continuous coverage has elapsed since inception of the 1^st policy with the company. Further the respondent also denied, it is not proper to allege that for the 1^st time the complainant got urinary trouble on 14.03.2013 and approached the doctor and as per the advise of the doctor surgery was carried out on 21.03.2013 and got discharged and also denied with regard to the expenditure made towards the treatment. Since the complainant comes within the purview of exclusion clause and the claim is within stipulated period of 48 months, complainant is not entitled for the amount and pray for dismissal of the complaint.

4.     On the said pleadings the following points have arisen for consideration:

1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?

Both have admits sworn to evidence affidavit and also one additional evidence of witnesses, relied on documents.  Heard. Perused the records.

Finding on points is as under.

1. Affirmatively
2. Accordingly  
3. As per order

Reasons

Points 1 and 2

5.     On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact that, the complainant had obtained Medi Classic Health Insurance (Individual) policy with the respondent.

6.     Now the question to be determined is, whether as per the terms and conditions of the policy complainant is entitled for reimbursement of the medical bills and non settlement of the same amounts to a deficiency in service, if so, for what relief the complainant is entitled.

7.     On the pleadings and evidence it comes out, the claim of the complainant is based on the coverage of the risk of the policy renewed by the complainant of his inception policy as per document C.1. The C.1 document reveals the coverage of the risk from 27.02.2013 to mid night 26.02.2014. It is the case of the complainant that, during the currency of the policy in force for the first time on 14.03.2013 the complainant experienced urinary trouble, as such he got checked by Dr.G.V.Bhat. Thereafter the said doctor referred the complainant to Dr.Ravi Raikar, so, the complainant by admitting himself on 19.03.2013 underwent for surgery, after scan on 21.03.2013 on post operative he was discharged on 26.03.2013 and had spent Rs.45,677/- towards the medical expenses. Thereafter the complainant lodged claim with the respondent, the respondent repudiated the claim taking contention that the complainant suppressed the fact of disease for which the complainant went under surgery is pre existing disease and as the policy was revived on 27.02.2013 taken after 5 months after lapse of the earlier policy claim cannot be settled.

8.     The disease, underwent surgery, medical expenses incurred by the complainant were not in dispute. Now the disputed fact is only, the disease for which the complainant obtained disease is a pre existing disease and also which has been existed 48 months to the first inception policy and prior to 30 days of the revival of the said policy. On bare glance over the document C.1 it reveals it is a yearly policy. While it is the case of the respondent that the said policy will be issued for a period of 3 years yearly renewal with an exclusive clause and if any pre existing disease prior to the 48 months to insured person’s first policy with any indian insurer, in such an event insured is not entitled for reliefs.

9.     The inception policy is a medical policy and is obtained after the proposer/insured subjected to medical checkup. Perusal of the proposal form at document R.1 at the time of proposal one Dr.Gajanan V.Bhat  examined the proposer and he certifies, the complainant is not having pre existing disease. The respondent also has produced detailed medical check up documents. On perusal of those document, nowhere it is mentioned pre existing disease or any abnormalities (sugar, BP and lipid test).

10.   While it is the case of the respondent that in the instant claim is pertaining to revived policy & as per clause. 3 (3 [a,b,c,d,e,f]) as such terms and conditions are not applicable for subsequent renewals. As per this proviso the complainant being taken treatment within the span of 30 days of revival the complainant is not eligible for the claim. Further also taken contention by arguing that, even the policy is taken and considered as inception policy the illness suffering from the complainant is one pre existing and knowingly well of the fact the complainant by suppressing the fact revived the policy.

11.   For this contention of the respondent, the learned counsel for complainant strongly opposed submitting that it is the respondent only revived the policy by obtaining the premiums and additional charges without medical check up. Once the policy is revived it will go date back to the inception date of policy, in such circumstances the respondent cannot take undue advantage of revival and take the shelter of exclusive clause.3 of the policy condition as mentioned supra.

12.   Even otherwise according to contract of insurance it is the bounden duty of the respondent while reviving the policy subject the insured for medical checkup. In the instant case the respondent by obtaining due premium with additional charges revived the policy without medical checkup. In such circumstances the respondent cannot take plea contending that there was pre existing disease and the complainant had underwent surgery prior to 48 months from the date of inception of the policy.

13.   The respondent except making oral submission did not produced any substance/relevance with regard to the policy in question is a package will be issued for 3 consecutive years with yearly renewal. Under those circumstances the plea/contention of the respondent that the terms and conditions 48 months has not been expired cannot be acceptable that too when the complainant was aged at 59 years on the date of proposal could any one expect good health or non appearance of illnesses within and between the duration of 48 months watching period, if so, what is the purpose and intention of obtaining the policy.

14.   Even otherwise why the respondent has to issue the policies to the aged persons, is not ultravires the scheme and theme of insurance, why should the IRDA cannot check those policies, why the IRDA is allowing insurer to release such policies, it is nothing less to say it is another way of misguiding the public which amounting to practice of unfair trade.

15.   Apart from it, at the time of argument the learned counsel for complainant drawn the attention to the document at C.5. On looking into the said document and contents of the said document it will amounts to a discrimination among the insured persons. Could the respondent being a public sector can discriminate as they discriminates as per document C.5. If the respondent company is so interested or they are very much particular with regard to business oriented, they can attract the customers by giving exemption in payment of premiums or other concession but it is not proper to discriminate the insured persons while settling the claims, it will amounts to breach of contract and against to the Articles of the Indian Constitution.

16.   Since the respondent failed to establish basic structure/nature of the issuance of the policy in question and taking into consideration of yearly policy the exclusion clause condition incorporated in the policy pre existing disease within 48 months prior to insured persons first policy with any Indian insurer is not statutorily acceptable, based on that contention without producing basic documents of the policy in question. Repudiation of the claim is not proper, is amounts to a deficiency in service and if the exclusion clause as contended by the respondent is proper as interpreted by the learned counsel for respondent it amounts to nothing but a unfair trade practice.

17.   Apart from all these discussions even look into the proposal form and doctor certificate at the time of the proposal and also the certificate at C.2 dtd.19.03.2013 and discharge card dtd.26.03.2013 pertaining to the complainant produced and relied by the respondent do not disclose anything with regard to pre existing of disease in the complainant. Further for the reason the respondent failed to establish the complainant was suffering from the illness which is in question prior to the proposal date or to the date of revival the complainant successfully established his case of deficiency in service by the respondent in repudiating the claim. There is no dispute with regard to the amount incurred by the complainant towards the medical expenses. Hence the complainant is entitled for the refund of medical expenses as claimed.

18.  In view of the above discussions we have arrived and proceed to held issue.1 in affirmative and 2 accordingly.

19.   Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

Order

The complaint is partly allowed. The respondent is directed to pay Rs.45,677/- to the complainant towards the medical expenses incurred by the complainant along with Rs.2,000/- as compensation towards the mental agony and Rs.1,000/- towards the cost of the proceedings within 30 days from the date of receipt of copy of this order. Failing to comply the same, the said amount shall carry interest @9% P.A. from thereon till realization. 

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 30^th day of May 2014)

(Smt.M.Vijayalaxmi)                                  (Shri.B.H.Shreeharsha)

Member                                                  President

Dist.Consumer Forum                                 Dist.Consumer Forum

MSR