IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President <br /> <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> <br /> <br /> <br /> CC 296/08 DATED 01-12-2008<br /> <br /> ORDER<br /> <br /> Complainant N.D.Dhanapal, D.No.1117/8, D34/2, 1st Floor, NPD Complex, South Cross, No.5, Shivarampet, Mysore.<br /> (By Sri.Srivatsa D.Hardar, Advocate)<br /> <br /> Vs. <br /> Opposite Party The Manager, The New India Insurance Company Ltd., No.73, 1st Floor, Madhvesh Complex, Malai Mahadeswara Road, Nazarbad, Mysore-10.<br /> (By Sri.J.S.K Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 19.09.2008<br /> Date of appearance of O.P. : 23.10.2008<br /> Date of order : 01.12.2008<br /> Duration of Proceeding : 1 MONTH 8 DAYS<br /> <br /> <br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> <br /> <br /> <br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. Brief facts of the complaint filed by the complainant against the opposite party are that, he has taken a Health plus medical policy for himself and his wife by paying a premium of Rs.4,192/- from the opposite party, which is valid from 22.05.2007 to 21.05.2008. That before taking the policy as desired by the opposite party his wife underwent all the medical tests at a hospital. The opposite party after considering the medical report issued the policy. On 12.12.2007 his wife got injured on her right toe and she was admitted to Agadi Hospital, Bangalore on 01.12.2007 (here the complainant has given the injury date which appears to be wrongly. Then his wife was discharged on 12.12.2007 and he incurred expenditure Rs.44,322/-. Then he made a claim with the opposite party on 07.12.2008 for reimbursement of the said amount, but the opposite party turned down his claim on 18.02.2008 on the ground that his wife was suffering from diabetes mellitus, which was deleted under the scope of policy. That his wife again on 03.01.2008 admitted to B.M.Hospital was treated there and discharged on 14.01.2008 and incurred expenditure of Rs.18,148/-. That he considering the rejection of his claim for the earlier expenditure he did not make any claim with the opposite party for that amount and therefore claiming that he is in all entitled for Rs.62,480/- and claiming damages for sufferings has prayed for a direction to the opposite party to pay him Rs.1,22,480/-.<br /> 2. The opposite party has entered appearance through their advocate and filed version admitting issue of Health plus medical expenses policy covering the health of complainant and his wife and the validity of the insurance policy. It is further contended as the wife of the complainant was aged more than 50 years at the inception of the policy was asked to undergo medical examination before the policy was issued. That the complainant and his wife underwent medical tests at Gopal Nursing Home and as per the examination report, the wife of the complainant had type-2 diabetes mellitus and the complainant was aware of it. After taking the report of Gopal Nursing Home, they also took one more opinion from Dr.Ravishankar by producing the records of Gopal Nursing Home who has also given report stating that the wife of the complainant had diabetes mellitus recommended for exclusion of diabetes mellitus. Therefore, on the basis of these reports, they have excluded specifically diabetes mellitus in the policy and the same is endorsed in the policy. They have further stated that the wife of the complainant has taken treatment for an injury, which is related to diabetes mellitus and further referring to the opinion of Dr.Haridas Upadyaya have stated that as the diabetes mellitus was specifically excluded, the complainant is not entitled for reimbursement. It is further stated that the complainant has not made any claim with regard to the treatment he got to his wife in B.M.Hospital and that the complainant ahs not made clear the nature of disease, as such it is not possible for them to consider that claim and stated that the complainant cannot directly approach the Forum so far as that claim is concerned.<br /> 3. In the course of enquiry into the complaint, the complainant and the Assistant Manager of opposite party have filed their affidavit evidence reiterating what they have stated in their respective complaint and version. The complainant has produced a copy of the policy, medical records of Gopal Nursing Home, then medical records of Agadi Hospital, and copies of the medical bills in support of the claim. The opposite party has also produced medical records of Gopal Nursing Home, copy of the policy conditions, medical records of Agadi Nursing Home with opinion of Dr.Ravishankar and Dr.Haridas Upadyaya. Heard the counsel for both the parties and perused the records.<br /> 4. On the above contentions, following points for determination arise.<br /> 1. Whether the opposite party proves that the wife of the complainant had diabetes mellitus as a pre-existing disease and that is excluded from the policy benefits and therefore they are justified in repudiating the claim of the complainant?<br /> 2. Whether the complainant is entitled for reimbursement of the medical expenditure he incurred in B.M.Hospital, Mysore towards the treatment of his wife?<br /> 3. To what relief, the complainant is entitled to? <br /> 5. Our findings are as under:-<br /> Point no.1 : In the Negative.<br /> Point no.2 : In the Negative.<br /> Point no.3 : See the final order.<br /> <br /> REASONS<br /> <br /> 6. Points no. 1 and 2:- On consideration of the complaint allegations, the version of opposite party, affidavit evidence of both the parties and documents, it is manifest that the complainant is not either denying or disputing the fact that his wife Smt.Madanavalli was the patient of type-2 diabetes mellitus. The policy has come into effect from 22.05.2007 and was valid till 21.05.2008, considering the age of the complainant prior to the inception of the policy, the wife of the complainant was subjected to medical tests in Gopal Nursing Home, Mysore, where the doctor of that hospital diagnosed the wife of the complainant as a diabetic patient. Thereafter, it is contended by the opposite party they referred the case of the wife of the complainant for second opinion to one Dr.Ravishankar who offered his opinion on the basis of records of Gopal Nursing Home that the wife of the complainant has diabetes mellitus and recommended for exclusion of the diabetes mellitus. The opposite parties have further contended that it is on the opinion of the medical experts they issued a policy in the name of the wife of the complainant declaring that diabetes mellitus as a pre-existing disease of the wife of the complainant and excluded it from the scope of the policy. The opinion of Dr.Rajgopal of Gopal Nursing Home dated 03.05.2007 and Dr.Ravishankar are placed before us and it is further seen from the contents of the policy issued covering the health of the wife of the complainant in which following endorsement is made:-<br /> “It is hereby agreed and declared that H.S.Madanavalli is suffering from diabetes mellitus and the same has been treated as pre-existing disease and is excluded under the scope of the policy (as per the medical report and x-ray, ECG report)”.<br /> The complainant has not denied any of these material facts. He has also not disputed that the policy was issued covering the health of his wife by specifically making a declaration that the diabetes mellitus of his wife has been considered as a pre-existing disease and is excluded from the benefits of the policy. Since, this evidence and the documents produced by the opposite party are not disputed by the complainant, we are constrained to hold that the wife of the complainant had type-2 diabetes mellitus prior to the inception of the policy and that has been considered as a pre-existing disease.<br /> 7. The learned counsel appearing for the complainant argued that the injury that the wife of the complainant suffered to her right big toe and the treatment given to her at Agadi Hospital, Bangalore has nothing to do with each other and that there is no nexus between the injury and diabetes and submitted that the opposite party cannot repudiated the claim and in the course of his arguments relied upon a decision reported in 2005 (1) CPR page 254 of Delhi State Consumer Disputes Redressal Commission. So far as the arguments of the counsel for the complainant regarding injury to the right big toe of the wife of the complainant is concerned, the complainant ins the complaint besides giving wrong date and month of injury has not specified as how his wife suffered injury to her right leg big toe. The complainant should have been specific about the cause for the injury whether it was an external injury if so how it was caused and whether it was treated earlier elsewhere and the out come of that treatment. But, nothing is said is placed before us in this regard. The complainant keeping silent of this fact, has only contended that his wife got injured on 12.12.2007. We have already stated that date of injury is wrongly given by the complainant. The policy has commenced from 22.05.2007. The wife of the complainant when she got herself admitted to Agadi Hospital on 01.12.2007 has given the history of injury to her right toe one month back that means she had that injury some where in the first week of November 2007 or little earlier to that. Even in the hospital also when she gave the history she has not whispered about cause for the injury as how she suffered and whether she had got that injury treated or not. The history given by the wife of the complainant to Agadi Hospital disclose, as if the complainant after injury to toe had not got it treated anywhere, but for the first time got admitted to Agadi Hospital for treating that injury. The doctor who examined her in the Agadi Hospital observed swelling both the lower limbs that is right and left limbs and has also noted down that she is a known diabetic and hypertensive, and is on medication. In the discharge note of that hospital, the doctor has observed as under:<br /> “Patient has admitted with infection right foot. Abscess formation at the web space between right great toe and 2nd toe” rest is omitted as it is not relevant.<br /> Here we can see if there had been an external injury caused to the right big toe of the insured, the injury could have been at the tip of the big toe or in the surrounding area. But, abscess is noticed by the doctor at the web space between right great toe and 2nd toe, which can resistibly held was not an external injury, but abscess occurred because of uncontrolled diabetic mellitus. It could be further seen that swelling in both the limbs, which is undisputed could not have happened because of injury to big toe of the right leg. The swelling observed by the doctor in both the lower limbs of the insured was nothing but the resultant effect of uncontrolled diabetic mellitus. Even on perusal of the medical records including the prescriptions given at Agadi Hospital, the wife of the complainant has been treated for diabetic mellitus and that abscess has been controlled by controlling the high degree diabetic mellitus. Besides this, it could be gathered if the injury were to be not because of the diabetic mellitus it would not have warranted such a longer hospitalization, medicine and the expenses of Rs.44,000/- plus. Therefore on perusal of all these materials placed before us, we could conveniently hold that there is nexus between the injury and the diabetic mellitus that wife of the complainant suffered. The decision relied on by the learned counsel for the complainant referred to above has no application to the facts of this case. Because in that case under reference, the complainant was though suffering from hypertension and diabetic, but later on he underwent bypass surgery, as such the Hon’ble State Commission held that the diabetes and hypertension the complainant had no nexus with the bypass surgery that the consumer undergone and allowed the complaint. Therefore, admittedly, the bypass surgery warranted because of cardiac problem of the complainant and it has no direct effect of the diabetic mellitus. But, in the case on hand, we hold that the complainant has failed to prove that his wife had suffered external injury and that she was treated for injury exclusively on the contrary the case records reveal that abscess is the effect of the known diabetic mellitus. As such, that problem of the wife of the complainant since has been excluded from the policy at the time of inception itself by mutual agreement, the complainant in our view is not entitled for reimbursement of the medical expenditure. As such, the opposite party is in our view is justified in repudiating the claim and therefore we find no merits in the complaint of the complainant and thus we answer point no.1 and 2 in the negative.<br /> 8. The complainant in this complaint has also claimed reimbursement of medical expenditure of his wife for the treatment she underwent in B.M.Hospital between 03.01.2008 to 14.01.2008. Here as canvassed by the opposite party, the complainant ahs not made clear for what disease or ailment she was hospitalized and treated. The complainant thinking that the opposite party since has repudiated his claim for the earlier treatment and that may not conside that claim also without making a claim with insurance company has directly come to this Forum and sought for reimbursement, which cannot be done. Because, the complainant should make a claim as per the terms of the policy disclosing the nature of disease diagnosed, documents supporting to it and the bills so that the opposite party can examine the claim on its merits and take decision. But, that has not been followed by the complainant. As such, the complainant cannot say that the opposite party has refused to honour that claim. Therefore in the absence of refusal or repudiation no person can approach the Forum for redressal of their grievance. As the result, the complaint is liable to be dismissed and therefore we pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is dismissed.<br /> 2. Parties to bear their own costs.<br /> 3. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 1st December 2008)<br /> <br /> <br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> <br /> <br />