BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri.K.V.H. Prasad, B.A., LL.B President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Thursday the 25th day of September, 2008
C.C.No. 47/08
Between:
B. Eranna, S/o. Late Narasanna, Cashier in Corporation Bank,
Sadapuram (V), Adoni (M), Kurnool (DT).
… Complainant
Versus
- The Medical Director ,M/s. Medi Assistant India (P) Limited,
49, Shilpa Vidhya Building, 3rd Floor, J.P.Nagar, Bangalore.
2. The Divisional Manager,M/s. United India Insurance Company Limited,
Divisional Office - III, 1st Floor, Classic Building, Richmond Road, Bangalore - 560025.
3. The Branch Manager, M/s. United India Insurance Company Limited,
M.M.Road, Near Syndicate Bank, Adoni (V),Kurnool (District)
… Opposite parties
This complaint is coming on this day for orders in the presence of Sri. T. Eswar Babu Advocate, for the complainant, and Sri. K. Muralidhar, Advocate for opposite party No.2 and 3 and opposite party No.1 is called absent set exparte upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Sri. K.V.H.Prasad, President)
C.C.No.47/08
1. This case of the complainant is filed U/s 12 C.P.Act, 1986 seeking a direction on the opposite parties to pay to the complainant Rs.4 lakhs along with 24 % interest p.a from 24-12-2005 till realization and cost of the case, alleging that one Medi Policy for himself and one for his wife Padmavathi were obtained in the year 2005 by the complainant and they were renewed from time to time from 2005 for 2007 also and as his wife Padmavathi fell sick on 24-12-2005 she was taken to Padmavathi Maternity Home at Adoni and on advise took her to St. Mary’s Hospital , Bellary and after necessary treatment as advised for Biopsy report got Biopsy report from M/s. Balaji Diagnosis Centre, Bellary and on its basis the cancer to her was not only confirmed but also found in advance stage and even then inspite of continuance of treatment for Cervix Cancer she died on 12-1-2007 and complainant sustained expenditure of Rs.25,000/- towards transport , lodging and boarding charges and Rs.1.75 lakhs towards medical expenditure and Rs. 2 lakhs mental agony at the deficient conduct of the opposite party in repudiating the claim inspite of submitting all necessary original documents like doctors prescriptions , medical report bills and receipts etc., .
2. In pursuance of the receipt of the notice of this forum as to this case of the complainant while the opposite party No.1 remained ex-parte to the case proceedings , the opposite parties 2 and 3 contested the case through their counsel filling written version of opposite party No.3 and its adoption by opposite party No.2 denying their liability to the complainants claim alleging deficiency right from beginning with the complainant in furnishing relevant papers viz., medical receipts , bills etc., even to process the claim and complainant must have been suffering with cancer of cervix even prior to obtaining the policy as the cancer was to found at third stage and its with holding from being disclosed by insured with dishonest intention and so in violation of contract of insurance, the repudiation of claim was made in the circumstances. As the complainant ever cooperated in furnishing the required material to process and justifying the claim and so the case as vexatious , seeks dismissal of the case with exemplary cost.
3. In substantiation of the contentions while the complainant side has taken reliance on documentary record in Ex.A1 to A10 and the sworn affidavit of the complainant in reiteration of its case , the opposite party has side taken mere reliance on its sworn affidavit affidavit in reiteration of its defence.
4. Hence the point for consideration is whether any deficiency of service on the part of the opposite parties is made out by the complainant making them liable for complainants claim.
5. None of the parties to the case proceedings filed the policy of assurance nor its Xerox copy to acquaint with its date of commencement , assured sum and its policy number and as its issual by the opposite party but there being any dispute from the opposite party side as to the complaint averments to the said policy was obtained on 1-11-2005 there appears any dispute as to the said policy on which the claim was placed by the complainant and not settled by the opposite party .
6. The Ex.A1 is the Xerox of the terms and conditions governing the policies under the medi claim insurance , personal accident insurance , house holder insurance as per Can Comfort Scheme issued by United Insurance Company. It envisages as to domiciliary hospitalization benefit and the various deceases which are not covered under the said policy and deals in condition No.4 with exclusions of said policy . In 4.1 of it states that the company shall not be to make the payment under this policy all the illness / deceases / defects / injuries pre existing when the cover incepts for the first time or that are existing at the break period that was spent in between lapse and obtaining fresh policy .
7. The Ex.A2 is the Xerox of discharge summary of B.V.Padmavathi wife of complainant issued by Padmavathi Maternity Hospital, Adoni. It shows the period of treatment furnishing the particulars as to date of admission as 24-12-2005 and the date of discharge as 27-12-2005 and the complaint of severe bleeding in cervix, and diagnosed the complaint as Carcinoma cervix at the stage III and under Radiotherapy and Meta-Stasis .
8. The Ex.A3 is the Xerox of discharge summary issued by St.Mary’s Hospital Bellary pertaining to B.V Padmavathi wife of complainant showing the period of treatment from 24-1-2006 to 8-2-2006 and diagnosed the complaint as Carcinoma cervix stage III B . The Ex.A9 Xerox of Histophology report of Balaji Diagnosis Centre also gives Clinical Diagnosis as Ca-cervix ( carcinoma cervix) .
9. Even though the above said material envisages the treatment to said insured B. Padmavathi for carcinoma cervix at advance stage III , any cogent material such as the evidence of any medical expert nor the earlier prescriptions and treatment of said insured were placed to deem the said complaint of the insured B. Padmavathi as pre existing to the date of insured obtaining said policy that too in know of the insured the said as such decease which was diagnosed and mentioned in Ex.A2, A3, and A9. For finding the insured guilty of suppression or nor discloser of the pre-existing decease in its knowledge not to be worked on mere surmises but on concrete material as to its earlier treatment with reference to its prescriptions and examination of the doctor who treated the said insured at the relevant time . Therefore, in the absence of any such concrete material as to earlier prescriptions and treatment of the insured for the diagnosed complaint , there is any material to hold a to with holding of material as to pre-existing decease by insured and for attracting Sec.45 Insurance Act making the contract of insurance void abnitio and for justifying the alleged repudiation of insurance claim by the opposite parties .
10. In the decision of Hon’ble High court of Delhi in Hari om Agarwal Vs the Oriental Insurance Company Limited reported in AIR 2008 Delhi Pg.29 it is held that the exclusion Clause would not cover such unforeseen ailment . In the present case of the complainant, the deceased policy holder was not in know of the nature of her decease till she was taken to first treatment at Adoni and Bellary. Hence merely because the deceased policy holder was found of cancer to cervix at an advance stage of III when first taken for treatment it cannot be presumed that the deceased policy holder concealed her decease on the mere reason that the said state of ailment will not be possible all of a sudden as the existence of ailment is not the criteria but of its know to the deceased policy holder as said kind of such ailment at the time of obtaining the policy is the criteria that to be taken for consideration in assessing the real concealment of said ailment . Therefore the opposite party is not remaining justified in holding the deceased as with held her pre-existing ailment with its knowledge for justifying the repudiation of claim.
11. As the deceased policy holder is not in know of the nature of her ailment prior to obtaining the policy till was taken for treatment for first time at Adoni and Bellary there remains any fraudulent suppression on the part of the deceased policy holder and hence the decision of Hon’ble Supreme Court in Mithoolal Naik Vs LIC of India reported in AIR 1962 Supreme Court 814 and the decision of Hon'ble National Consumer Disputes Redressal Commission, New Delhi, in LIC of India and another Vs. Kusuma Latha in RP No. 234 /1992 are having any relevant application to the facts and circumstances of this case.
12. The decision of National Consumer Disputes Redressal Commission, New Delhi, in Senior Divisional Manager, LIC of India Vs Smt. Gangamma and another reported in 2002 ( 3) CPR 24 (NC) & III 2002 CPJ 156 (NC), in LIC of India Vs. Smt. Minu Kalita reported in III (2002) CPJ 10 (NC) , and of the decision of Hon’ble A.P. High Court in Seelam Ramanamma Vs. The Divisional Manager LIC of India , Machilipatnam reported in AIR 2000 AP 350 where in repudiation is justified on proof of deceased’s earlier suffering and obtaining treatment for florosis , and the decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in LIC of India Central Office Mumbai and others Vs. Smt. Vijaya Chopra reported in AIR 2008 (NOC) Pg.2059 ( NCC) holding justification for repudiation of claim when insured took insurance policy dispite of the fact that he was suffering from cancer and said fact supported by certificate of department of Radiotherapy , medical college and hospital authorities and holding justification in repudiation when suppression of material fact – deceased there in had malignancy and obtained treatment - proved by documents on record , does not appear to be having any relevant application to the facts and circumstances of this case for want of any such record showing the sufferance and treatment for cancer cervix by deceased policy holder prior to obtaining the policy.
13. The decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in LIC of India and another Vs Dr.P.S .Agarwal . Dist .Hardwar reported in 2005 (1) ALT Pg.22 (NC) (CPA) holds the burden to prove that there was material concealment of any decease which directly proves fatal was on the insurance company to repudiate the claim . In the present case the opposite parties has not taken any such effort to show the deceased policy holder was suffering with cancer cervix and obtained treatment prior to obtaining policy and the said fact was fraudulently concealed by the deceased policy holder . Hence the opposite party is not remaining discharging its liability to prove the same, is not remaining justified in repudiating the claim of the complainant .
14. The decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in Miss. Abitha Vs.M/s.LIC of India reported in 2003 (1) ALT Pg.23 (NC) (CPA) holds the repudiation of claim not justifiable when the symptoms of illness first observed and no basis for medical attendant noting “4 years old” . In the present case the ailment of cervix cancer to the deceased policy holder was found subsequent to obtaining policy and no material proof is made available by the opposite party as to the existence of said ailment in the knowledge of the deceased policy holder prior to obtaining the policy so the repudiation of claim by the opposite parties on the said score of concealment of pre-existing ailment remains totally unjustifiable .
15. The Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in its decision in LIC of India Vs. Smt. Promilla Malhotra reported in 2003 (2) ALT Pg.11 (NC) ( CPA) holds the onus of proving with LIC, when insured died two years after taking policy , as to the pre-existence of said ailment to the date of obtaining the policy and when any attempt made by LIC to ascertain whether the deceased was treated earlier the said onus not discharged . In the present case also there is any such endeavour on the part of the opposite parties to prove that the deceased policy holder suffered with said ailment and obtained treatment in the period earlier to obtaining the policy the said onus is not remaining discharged by the opposite party and so the opposite parties are not remaining justified in repudiating the claim on this score of suppression of material fact of pre-existing ailment by the deceased policy holder while obtaining the policy of insurance.
16. The Hon’ble Allahabad , High Court in Smt. Shanthi Devi Vs. Office of insurance ombudsman and other reported in AIR 2008 Allahabad Pg.72 – rejects the propriety in repudiation of the claim made on the ground the ailment of jaundice with which the policy holder suffered and obtained treatment was not disclosed while obtaining the policy and died on the following day , after revival of policy , with heart attack, on account of any nexus between the suppressed ailment and the cause of actual demise, further holding that the policy would not be effected by Sec.45 Insurance Act . In the present case there is any such substantiated material to feel the fraudulent and intentional concealment of any pre-existing decease in know of the policy holder while obtaining the policy, there remains any justification for the opposite party for repudiating the claim on the score of fraudulent concealment of pre-existing ailment by the deceased policy holder .
17. The Hon’ble High court of Gujarat in its decision in Taraben Mansukhlal Pala Vs. LIC of India reported in AIR 2007 (NOC) Pg.665 (Guj) holds the liability of corporation to pay the amount when the latter has repudiated the policy on the ground of intentional and fraudulent concealment of pre-existing ailment by policy holder while obtaining the policy , when miserably failed to prove any suffering of the policy holder with same kind of symptoms earlier to obtaining the policy , which were observed subsequent to obtaining policy. It also holds further that the non discloser of such illness not effecting the expectation of life and nexus to the actual cause of demise does not amount to suppression of material fact and so can not be a ground to repudiate the policy and so said repudiation as improper. In the present case also as the opposite parties did not place any such cogent material as to any suffering and treatment of the policy holder for the cervix cancer prior to obtaining the policy . Hence the repudiation of claim by the opposite parties is not remaining justifiable .
18. When the repudiation of insurance claim by the opposite parties is thus remaining totally unjustifiable the further point remaining for consideration is to what amount the complainant is entitled at the liability of the opposite parties .
19. The complainant claims an amount of Rs.25,000/- towards the transport charges boarding and lodging expenses. In the Ex.A1 the company ( ie., United Insurance Company Limited) undertakes to reimburse the incurred amount, not exceeding the sum insured in aggregate mentioned in the schedule in any one period of insurance , towards room charges as provided by the hospital /nursing home , nursing expenses , surgeon, anesthetic , medical practitioner , consultant, specialist fees , anaesthesisa , blood, oxygen, operation theatre charges, surgical appliances , medicines and drugs , diagnostic materials and x-ray , dialysis , chemotherapy , Radiotherapy , cost of pace maker , artificial limbs and cost of organs , cost of surgical aids and similar expenses. The above category of expenses which could be reimbursable by the company as per Ex.A1 as is not contemplating the transport charges boarding and lodging expenses there is any justifiability in the said claim of Rs.25,000/- sought by the complainant on the opposite parties. Hence the said claim is rejected as opposite parties do not hold any liability for its reimbursement.
20. The Ex.A4 is the reply dated 24-10-2007 of the opposite party to the legal notice of the complainant in Ex.A5 . In the Ex.A4 the opposite parties in reference to Ex.A2 and A3 allege the non discloser of insured’s pre-existing decease ( Ca – cervix ) which was 6 months old . But none of those documents envisages the age of said complainants diagnosed ailment as 6 months old . Hence there appears any justification for the opposite parties to hold as such especially when the Ex.A5 answers all the queries of the opposite party in reference to their alleged letter dated 18-9-2006, 15-7-1006, 11-7-2006 and 20-8-2006 .
21. The complaint and the sworn affidavit of the complainant alleges that the total amount he spent for treatment of his wife was Rs.1,75,000/- but where as vide Ex.A10 - a bundle of various papers including Xerox of some bills and prescriptions etc., - shows a claim of Rs.2,17,489.73 ps. , Rs.15,782 /- , Rs.19,141/- and Rs.27,849/- as incurred expenditures under first, second ,third and forth cycle of treatment . As these several cycles of treatment not averred in pleadings and their total expenditure is not agreeing to the incurred expenditure of Rs.1,75,000/- alleged in the complaint and sworn affidavit of the complainant the so called cycles of treatment which is alleged for first time filling the Ex.A10 bundle of papers without endeavour for its explaining in particular to each document contained therein , they bears any relevancy for adjudication in this case as claimed in Ex.A10.
22. The Ex.A7 is a letter dated 26-6-2006 of complainant addressed to opposite party No.1 as to submission of required bills of medical expenses and reports and as to treatment . There being any material from the opposite party side discrediting the factum mentioned there in the Ex.A7 , there is any scope for insisting for original bills of those incurred expenditure mentioned in Ex.A6 and A8 except appreciating those claims in the light of the relevant material if any found in the Ex.A10 bundle containing several papers some of them are duplicate the same bills .
23. The Ex.A6 and A8 were filled along with complaint as to incurred expenditure under several items totaling the said expenditure to Rs.23,723/- ( ie., Rs.9,575 + Rs.14,148 ) Any intelligible endeavour is made by the complainant side to substantiate the claim of Rs.1,75,000/- alleged towards incurred medical expenditure as the Ex.A10 is marked in vague and not in reference to each of them contained there in specifically in a manner to grasp them intelligibly in reference to each of them to the alleged expenditure in complaint or in Ex.A6 and A8 . But however the forum is taking pains to found out any substantiation of the particulars of the claim alleged in Ex.A6 and A8 in reference to the documents in Ex.A10.
24. The Ex.A6 and A8 are letters dated 11-1-2006 and 28-12-2007 addressed to the opposite party No.1 not only covering alleged incurred medical expenditure from 14-12-2005 to 27-12-2005 , 11-1-2006 and 6-12-2006 to 3-1-2007 but also says of what all documents that were submitted as regards the said claim . The claim of Rs.9,575/- was made under Ex.A6 enclosure and an amount of Rs.14,148/- was made under Ex.A8. Being said fact not rebutted by the opposite parties by any subsequent correspondence of it requiring the submission of any other material for settlement of claim and the submission of the required material for settlement of claim as alleged in Ex.A7, also the facts mentioned in said Ex.A6 and A8 remains worthy of consideration for its ordering subject to their proof in the material filed under Ex.A10.
25. As per the details mentioned in the said enclosure statement to Ex.A6 , the claims at Sl.Nos.1 and 15 for Rs.100/- each and that of the last but third item for Rs.150/- being without any details as to the nature of said expenditure and for want of their substantiating material in Ex.A10 , they are not remaining entitled to be ordered in favour the complainant at the liability of the opposite party . As the other items claimed in Ex.A6 enclosure were substantiated by the relevant Xerox documents in Ex.A10, the entitleness of the complainant under Ex.A6 is limited to Rs.9,225- (i.e,Rs.9575 – Rs.350) .
26. As per the details mentioned in Ex.A8 the claim for Rs.2,000/- as taxi rent on 6-12-2006 from house to Bellary , Rs.60/-, Rs.160/-, Rs.21/- and Rs.60/- claimed under dates 3-1-2007 as transport fares are not admissible to the complainant at the liability of the opposite party as reimbursement of said charges are not contemplated under Ex.A1 – terms and conditions of the insurance policy.
27. A claim of Rs.250/- is made under Ex.A8 as rent of room No.11 for one day i.e, 6-12-2006 . A claim of Rs.300/- was shown as expenditure for abdomen – prevails Ultrasound at Aparna Hospital, Bellary . A claim of Rs.200/- was shown an incurred expenditure towards doctor consultation fees on 6-12-2006. A claim of Rs.400/- was shown in Ex.A8 towards lab testing on 6-12-2006 . A claim of Rs.300/- was shown in Ex.A8 towards room rent from 7-12-2006 to 18-12-2006 at the rate of Rs.250/- per day . A claim of Rs.100/- , 90, 300/- , 130, 450.34 , 100, 650, 44, 98, 90, 350, 265, 750, 100, 63 ,300 and 410 were made vide particulars mentioned in Sl.Nos. 4 , 5, 7, 2, to 10 , 13 to 18 , 21 and 22 . But none of them were substantiated as no corresponding relevant document finds a place in Ex.A10 bundle of papers. From the claim made in Ex.A8 the claim of expenditure of Rs.132/- , 39, 21, 100, 610, of the first page of Ex.A8 and Rs.80/- , 4141 , 350, 800, 350 , and 136 only as been substantiated in the corresponding relevant material in Ex.A10 bundle of papers , the claim of the complainant under Ex.A8 is limited to the total of said substantiated i.e., Rs.6,759 out of claimed of Rs.14,148 /-.
28. Hence from appreciation of the substantiated material in ExA10 in reference to the incurred expenditure under Ex.A6 and A8 , vide discussion made in supra paras, the complainant is remaining entitled under Ex.A6 and A8 to an amount of Rs.9225/- and Rs.6759/- only respectively ( i.e, to a total of Rs. 15,984 )
29. A claim of Rs.2 lakhs is made in complaint by complainant towards mental agony . As the complainant could substantiate the quantum of incurred expenditure to a tune of Rs.15,984/- only and there by would have been entitled from the opposite party to the said extent only and on account of repudiation of the claim he is being deprived to the said amount only there appears every unreasonableness in the said claim of Rs.2 lakhs being it highly disproportionate to the deprived benefit on account of repudiation of the claim . Therefore an equal amount of said substantiated incurred medical expenditure of Rs. 15, 984/- making it a round figure of Rs.16,000/- appear to be a justifiable compensation for mental agony suffered by the complainant at the deprival of the said amount at the deficient conduct of the opposite party in the improper repudiation of the claim .
30. As the opposite parties by its improper repudiation of the complainants claim , not even taking into consideration to the entitled extent , driven the complainant to the forum for redressal of his grievances an amount of Rs.5,000/- appears to be justifying as costs to the complainant at the liability of the opposite parties.
31. Consequently, the case of the complainant is allowed accordingly directing the opposite parties jointly and severally to pay to the complainant Rs.15,984/- towards the incurred medical expenditure for the treatment of deceased policy holder , Rs.16,000/- as compensation for mental agony suffered by the complainant at the improper repudiation of the complainants claim and Rs.5,000/- as cost of this litigation , within a period of one month of the receipt of this order . In default the opposite parties are jointly and severally to pay the said award amount with 12% interest p.a from the date of default till realization.
Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 25th day of September, 2008.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant :Nil For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex.A1. Xerox copy of policy terms and conditions of medi
claim insurance.
Ex.A2. Xerox copy of discharge summary of B.V. Padmavathi,
Hospital, dated 24-12-2005.
Ex.A3. Xerox copy of discharge – summary issued by St. Mary’s
Hospital, Bellary, dated 8-2-2006.
Ex.A4. Xerox copy of letter , dated 13-12-2007 in reply to the notice dated 24-10-2007.
Ex.A5. Xerox copy of legal notice, dated 24-10-2007.
Ex.A6. Letter, dated 11-1-2006 to Senior Divisional Manager,
M/s. Medi Assistant –India (P) Limited, Bangalore by
Compliant along with courier receipts statement of medical expenses.
Ex.A7. Letter, dated 26-6-2006 of deceased B.V.Padmavathi to opposite party No.1.
Ex.A8. Letter, dated 28-12-2007 of the complaint to opposite
party No.1.
Ex.A9. Xerox copy of Biopsy report issued by Balaji Diagnostic Centre, Bellary.
Ex.A10. A bunch of Xerox receipts.
List of exhibits marked for the opposite parties: Nil
Sd/- Sd/-
MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
Copy was made ready on :
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