BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI. A : MEMBER SMT. S.K. SREELA : MEMBER
O.P.No: 390/2002 Filed on 16.09.2002
Dated: 15..07..2009
Complainants: Mytheen Kannu Salim, T.C.35/8, Maliyekal House, Vallakkadavu – P.O., Thiruvananthapuram. Mohammed Beevi ..do.. ..do.. M. Shahul Hameed ..do.. ..do.. (By Adv.Anwar Hussain. I)
Opposite parties: 1.The New India Assurance Company Ltd., Regd. & Head Office, New India Assurance Buildings, 87, M.G.Road, Fort, Mumbai – 400 001.
2.The Manager, The New India Assurance Company Ltd., Divisional Office, II, K.N. Mathew Buildings, S.A Coil Road, Thiruvananthapuram – 695 001.
(By Adv. M. Nizamudeen)
This O.P having been heard on 30..05.2009, the Forum on 15..07..2009 delivered the following:
ORDER
SMT. S.K. SREELA, MEMBER: In short, the facts giving rise to this complaint are the following: The 1st complainant had taken an insurance policy from the 2nd opposite party under 'Pravasi Suraksha Kudumba Arogya Scheme' and the certificate of insurance was issued on 24/1/2000 and the policy expires on 23/1/2005. On 31/3/2002 the 2nd complainant was taken to the G.G. Hospital, Thiruvananthapuram for the discomforts and the illness which she had never experienced previously in her life time and there she was treated firstly as out patient. The test done revealed that the pain and discomforts are due to the presence of 'Right lower ureteric calculus and right renal calculus'. Such discomforts and pain were not experienced ever before by the 2nd complainant in her life time and the presence of the said calculus had come to the knowledge of the 2nd complainant only on the discovery of it on diagnosis which was done on 31/3/2002. Since the abdominal pain and discomforts are due to the presence of the calculus, the consulted urologist of the G.G. Hospital, Dr. N.P. Sasikumar advised surgery for removing the said calculus for proper cure and remedy. Accordingly as per the advice of the doctor, the 2nd complainant was admitted in the said hospital on 7/5/2002 and her surgery was done by the doctor on 11/5/2002. After the treatment she was discharged from the hospital on 12/5/2002 under the advice of consulting the doctor for post operational check ups after a week and a discharge summary was also issued. For the treatment and surgery of the 2nd complainant, they had to incur a total sum of Rs.20,195.68. Accordingly the 3rd complainant on 20/5/2002 submitted the claim form with all details and documents and the details of expenditure incurred for the treatment with the required Medical Certificate from the doctor who attended and treated the 2nd complainant. But the opposite parties rejected the claim of the complainant stating that the disease is pre-existing which is an exclusion under the policy terms and conditions. Hence this complaint has been necessitated.
2. The opposite parties have filed their version. It has been contended that the claim submitted by the 1st complainant could not be honoured, as from the records submitted and the investigation conducted by the Private Investigating Agency deputed by the opposite parties, it was found that the disease of the 2nd complainant was pre-existing prior to the issuance of the policy and that the 2nd complainant was suffering from abdomen and kidney problems from 1999 onwards whereas the insurance policy was taken from 24/1/2000 onwards and as per the exclusion under the terms and conditions of the policy all pre-existing diseases are excluded. The opposite parties have not committed any deficiency in service or unfair trade practice and hence prays for dismissal of the complaint. 3. The 3rd complainant has filed affidavit and marked Exts. P1 to P8. DW1 & DW2 were examined on behalf of the opposite parties and marked Exts.D1 to D6.
4. From the contentions raised the following issues arise for consideration:
Whether the act of the opposite parties in repudiating the claim justifiable and whether there is deficiency in service on the part of the opposite parties? Whether the complainant is entitled for the reliefs claimed for?
5. Points (i) & (ii): The policy is admitted and there is no dispute with regard to the validity of the same also. The main contention of the opposite parties in repudiating the claim of the complainant is that, the disease of the complainant was in existence prior to the taking of the policy and hence his claim has been rejected as it comes under the exclusion clause. Hence the point for consideration is whether the alleged disease of the complainant is pre-existing which is an exclusion under the policy terms and conditions.
6. As per Ext.P5 discharge summary, it has been diagnosed as 'lower uretric calculus, renal calculus and bronchytal asthma'. The marking of the document has been objected by the opposite parties but DW1, Dr. Sasi Kumar, has admitted that it is the copy of discharge summary issued from their hospital and hence the objection cannot be sustained.
7. DW1, is the Chief of Urology in G.G. Hospital. He has deposed that 'Ext.P7 is the photocopy of the medical certificate issued by me and the signature is mine'. The doctor has further deposed that 'Only after the investigation done by me, stone was diagnosed, she has not produced any certificate of previous treatment done by her for the same disease'. During chief examination DW1 deposed that 'She approached me with a pain in the abdomin due to acid peptic disease for 3 years bronchial asthma for 25 years, on physical examination I have found that pain of the right side, which was suggestive of stone disease, acid peptic disease has no connection with the stone disease'. During cross examination, DW1 has clarified that 'At that time she was suffering from pain due to stone for the past 3 weeks, acid peptic disease for 3 years'. As per above, the entries in Ext.P7 and D3 are to be looked into. There is no over writing in Ext.P7 (photocopy), but in Ext.D3 which is also a photocopy, towards the entry No.9. 'How long has the patient been suffering from this disease as on the date of first consultation' a correction has been made and instead of 'as on' it has been corrected as 'before' and the answer for the same has been written in blue ink in D3 which is a photocopy. From the above, there is no hesitation to conclude that the said entries have been made after taking the photocopy. DW1 was deposed that 'Normally when I issue a certificate, it is given in original. But here it is a portion written in photostat. About the signature there, I am not 100% sure'. At this juncture, the burden is heavily on the side of the opposite parties to prove that Ext.D3 is not a corrected or fabricated one. The learned counsel for the the complainant had filed a petition for direction to the opposite parties to produce the original documents of the Attending Doctor's report and the claim form submitted by the 3rd complainant. But the opposite parties have failed to produce the original of the Attending Doctor's report. If the original of Ext.D3 had been produced, we could ascertain the veracity of the entries additionally written in Ext.D3. In the absence of the same inspite of specific direction, the only option left open is to take adverse inference.
8. Furthermore, Ext.D1 which is the case record, is only a photocopy and the marking of the same was objected by the complainants' counsel on the said ground itself. The opposite parties have not produced the original so far. As per Ext.D1 page 3, there is a mentioning of history of abdominal pain off and on since 3 years. But Ext.D1 is only a photocopy and since the original has not been produced as directed, we are unable to consider the same.
9. The opposite parties have contended that they have come to the conclusion that the disease of the 2nd complainant was pre-existing prior to the issuance of the policy, on the basis of the records submitted and the investigation conducted by the Private Investigating Agency deputed by the opposite parties. Here an important aspect to be considered is the veracity of the report of the private investigation agency. Here the opposite parties have produced Ext.D5, the report of such an agency. There is nothing on record to prove that the said investigation agency was a licensed one. In such a circumstance, as the opposite parties have failed to prove Ext.P5, that report cannot be relied on as there was nothing to show that the said agency was licensed.
10. The burden of proving that the insured had made false representation and suppressed material facts with regard to the pre-existence of the disease, was undoubtedly on the opposite parties – the Insurance Company. Before us, there has not been any reliable evidence led by the opposite parties to prove that the complainants' case fell under the exclusion clause. We find that the deposition of DW1, Ext.P7 and the non-production of the original of Ext.D3 contradict the strand of the opposite parties. In the above circumstance we find no justifiable ground for repudiation of the claim by the opposite parties since the opposite parties have failed to prove and establish the grounds of repudiation.
11. From the above discussions we find that the repudiation of the claim of the complainants by the opposite parties are arbitrary and not justifiable and the complainants have to be compensated for the deficiency of service of the opposite parties. The complainants have succeeded in establishing their complaint and hence the complainants are found entitled for refund of Rs. 20,196/- with 18% interest from 20/5/2002 till realization along with a cost of Rs. 2,000/-. There is no separate order for compensation since interest has been awarded.
In the result, complaint is allowed. The opposite parties shall pay an amount of Rs.20,196/- with 18% interest from 20/5/2002 till realization, to the complainants along with a cost of Rs.2,000/-.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15th day of July, 2009.
S.K. SREELA, MEMBER.
G. SIVAPRASAD, PRESIDENT.
BEENA KUMARI.A, MEMBER.
ad.
O.P.No.390/2002 APPENDIX
I. Complainants' witness : NIL II. Complainants' documents: P1 : Photocopy of certificate of Insurance dated 24/1/2000 in favour of 1st complainant issued by the 2nd opp. party. P2 : Photocopy of receipt voucher dated 24/1/2000 for a sum of Rs.6,150/- issued by the 2nd opp. Party. P3 : Photocopy of receipt voucher dated 24/1/2000 for a sum of Rs.200/- issued by the 2nd opp. Party. P4 : Photocopy of pamphlet issued along with the certificate of policy P5 : Photocopy of discharge summary of the treatment of the 2nd complainant. P6 : Photocopy of claim form submitted by the 3rd complainant P7 : Photocopy of medical certificate showing the history, diagnosis and discovery of the disease and treatment issued by Dr.N.P. Sasikumar in the prescribed form. P8 : Photocopy of letter dated 17/7/2002 sent by the 2nd opp. Party.
III. Opposite parties witness:
DW1 Dr. Sasikumar DW2 Joy Joseph
IV. Opposite parties' documents:
D1 : Photocopy of case record of Reg.No.46910 D2 : Photocopy of certificate of Insurance dated 24/1/2000
D3 : Photocopy of medical certificate (Attending Doctor's report) issued by Dr.N.P Sasikumar
D4 : Original claim form dated 20/5/2002 D5 : Copy of letter dated 2/7/2002 issued to opp. Parties D6 : Copy of letter dated 17/7/2002 issued by opp. Party.
PRESIDENT.
ad.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT:
SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI. A : MEMBER SMT. S.K. SREELA : MEMBER
O.P.No: 390/2002 Filed on 16.09.2002
Dated: 15..07..2009
Complainants: Mytheen Kannu Salim, T.C.35/8, Maliyekal House, Vallakkadavu – P.O., Thiruvananthapuram. Mohammed Beevi ..do.. ..do.. M. Shahul Hameed ..do.. ..do.. (By Adv.Anwar Hussain. I)
Opposite parties: 1.The New India Assurance Company Ltd., Regd. & Head Office, New India Assurance Buildings, 87, M.G.Road, Fort, Mumbai – 400 001.
2.The Manager, The New India Assurance Company Ltd., Divisional Office, II, K.N. Mathew Buildings, S.A Coil Road, Thiruvananthapuram – 695 001.
(By Adv. M. Nizamudeen)
This O.P having been heard on 30..05.2009, the Forum on 15..07..2009 delivered the following:
ORDER
SMT. S.K. SREELA, MEMBER: In short, the facts giving rise to this complaint are the following: The 1st complainant had taken an insurance policy from the 2nd opposite party under 'Pravasi Suraksha Kudumba Arogya Scheme' and the certificate of insurance was issued on 24/1/2000 and the policy expires on 23/1/2005. On 31/3/2002 the 2nd complainant was taken to the G.G. Hospital, Thiruvananthapuram for the discomforts and the illness which she had never experienced previously in her life time and there she was treated firstly as out patient. The test done revealed that the pain and discomforts are due to the presence of 'Right lower ureteric calculus and right renal calculus'. Such discomforts and pain were not experienced ever before by the 2nd complainant in her life time and the presence of the said calculus had come to the knowledge of the 2nd complainant only on the discovery of it on diagnosis which was done on 31/3/2002. Since the abdominal pain and discomforts are due to the presence of the calculus, the consulted urologist of the G.G. Hospital, Dr. N.P. Sasikumar advised surgery for removing the said calculus for proper cure and remedy. Accordingly as per the advice of the doctor, the 2nd complainant was admitted in the said hospital on 7/5/2002 and her surgery was done by the doctor on 11/5/2002. After the treatment she was discharged from the hospital on 12/5/2002 under the advice of consulting the doctor for post operational check ups after a week and a discharge summary was also issued. For the treatment and surgery of the 2nd complainant, they had to incur a total sum of Rs.20,195.68. Accordingly the 3rd complainant on 20/5/2002 submitted the claim form with all details and documents and the details of expenditure incurred for the treatment with the required Medical Certificate from the doctor who attended and treated the 2nd complainant. But the opposite parties rejected the claim of the complainant stating that the disease is pre-existing which is an exclusion under the policy terms and conditions. Hence this complaint has been necessitated.
2. The opposite parties have filed their version. It has been contended that the claim submitted by the 1st complainant could not be honoured, as from the records submitted and the investigation conducted by the Private Investigating Agency deputed by the opposite parties, it was found that the disease of the 2nd complainant was pre-existing prior to the issuance of the policy and that the 2nd complainant was suffering from abdomen and kidney problems from 1999 onwards whereas the insurance policy was taken from 24/1/2000 onwards and as per the exclusion under the terms and conditions of the policy all pre-existing diseases are excluded. The opposite parties have not committed any deficiency in service or unfair trade practice and hence prays for dismissal of the complaint. 3. The 3rd complainant has filed affidavit and marked Exts. P1 to P8. DW1 & DW2 were examined on behalf of the opposite parties and marked Exts.D1 to D6.
4. From the contentions raised the following issues arise for consideration:
Whether the act of the opposite parties in repudiating the claim justifiable and whether there is deficiency in service on the part of the opposite parties? Whether the complainant is entitled for the reliefs claimed for?
5. Points (i) & (ii): The policy is admitted and there is no dispute with regard to the validity of the same also. The main contention of the opposite parties in repudiating the claim of the complainant is that, the disease of the complainant was in existence prior to the taking of the policy and hence his claim has been rejected as it comes under the exclusion clause. Hence the point for consideration is whether the alleged disease of the complainant is pre-existing which is an exclusion under the policy terms and conditions.
6. As per Ext.P5 discharge summary, it has been diagnosed as 'lower uretric calculus, renal calculus and bronchytal asthma'. The marking of the document has been objected by the opposite parties but DW1, Dr. Sasi Kumar, has admitted that it is the copy of discharge summary issued from their hospital and hence the objection cannot be sustained.
7. DW1, is the Chief of Urology in G.G. Hospital. He has deposed that 'Ext.P7 is the photocopy of the medical certificate issued by me and the signature is mine'. The doctor has further deposed that 'Only after the investigation done by me, stone was diagnosed, she has not produced any certificate of previous treatment done by her for the same disease'. During chief examination DW1 deposed that 'She approached me with a pain in the abdomin due to acid peptic disease for 3 years bronchial asthma for 25 years, on physical examination I have found that pain of the right side, which was suggestive of stone disease, acid peptic disease has no connection with the stone disease'. During cross examination, DW1 has clarified that 'At that time she was suffering from pain due to stone for the past 3 weeks, acid peptic disease for 3 years'. As per above, the entries in Ext.P7 and D3 are to be looked into. There is no over writing in Ext.P7 (photocopy), but in Ext.D3 which is also a photocopy, towards the entry No.9. 'How long has the patient been suffering from this disease as on the date of first consultation' a correction has been made and instead of 'as on' it has been corrected as 'before' and the answer for the same has been written in blue ink in D3 which is a photocopy. From the above, there is no hesitation to conclude that the said entries have been made after taking the photocopy. DW1 was deposed that 'Normally when I issue a certificate, it is given in original. But here it is a portion written in photostat. About the signature there, I am not 100% sure'. At this juncture, the burden is heavily on the side of the opposite parties to prove that Ext.D3 is not a corrected or fabricated one. The learned counsel for the the complainant had filed a petition for direction to the opposite parties to produce the original documents of the Attending Doctor's report and the claim form submitted by the 3rd complainant. But the opposite parties have failed to produce the original of the Attending Doctor's report. If the original of Ext.D3 had been produced, we could ascertain the veracity of the entries additionally written in Ext.D3. In the absence of the same inspite of specific direction, the only option left open is to take adverse inference.
8. Furthermore, Ext.D1 which is the case record, is only a photocopy and the marking of the same was objected by the complainants' counsel on the said ground itself. The opposite parties have not produced the original so far. As per Ext.D1 page 3, there is a mentioning of history of abdominal pain off and on since 3 years. But Ext.D1 is only a photocopy and since the original has not been produced as directed, we are unable to consider the same.
9. The opposite parties have contended that they have come to the conclusion that the disease of the 2nd complainant was pre-existing prior to the issuance of the policy, on the basis of the records submitted and the investigation conducted by the Private Investigating Agency deputed by the opposite parties. Here an important aspect to be considered is the veracity of the report of the private investigation agency. Here the opposite parties have produced Ext.D5, the report of such an agency. There is nothing on record to prove that the said investigation agency was a licensed one. In such a circumstance, as the opposite parties have failed to prove Ext.P5, that report cannot be relied on as there was nothing to show that the said agency was licensed.
10. The burden of proving that the insured had made false representation and suppressed material facts with regard to the pre-existence of the disease, was undoubtedly on the opposite parties – the Insurance Company. Before us, there has not been any reliable evidence led by the opposite parties to prove that the complainants' case fell under the exclusion clause. We find that the deposition of DW1, Ext.P7 and the non-production of the original of Ext.D3 contradict the strand of the opposite parties. In the above circumstance we find no justifiable ground for repudiation of the claim by the opposite parties since the opposite parties have failed to prove and establish the grounds of repudiation.
11. From the above discussions we find that the repudiation of the claim of the complainants by the opposite parties are arbitrary and not justifiable and the complainants have to be compensated for the deficiency of service of the opposite parties. The complainants have succeeded in establishing their complaint and hence the complainants are found entitled for refund of Rs. 20,196/- with 18% interest from 20/5/2002 till realization along with a cost of Rs. 2,000/-. There is no separate order for compensation since interest has been awarded.
In the result, complaint is allowed. The opposite parties shall pay an amount of Rs.20,196/- with 18% interest from 20/5/2002 till realization, to the complainants along with a cost of Rs.2,000/-.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15th day of July, 2009.
S.K. SREELA, MEMBER.
G. SIVAPRASAD, PRESIDENT.
BEENA KUMARI.A, MEMBER.
ad.
O.P.No.390/2002 APPENDIX
I. Complainants' witness : NIL II. Complainants' documents: P1 : Photocopy of certificate of Insurance dated 24/1/2000 in favour of 1st complainant issued by the 2nd opp. party. P2 : Photocopy of receipt voucher dated 24/1/2000 for a sum of Rs.6,150/- issued by the 2nd opp. Party. P3 : Photocopy of receipt voucher dated 24/1/2000 for a sum of Rs.200/- issued by the 2nd opp. Party. P4 : Photocopy of pamphlet issued along with the certificate of policy P5 : Photocopy of discharge summary of the treatment of the 2nd complainant. P6 : Photocopy of claim form submitted by the 3rd complainant P7 : Photocopy of medical certificate showing the history, diagnosis and discovery of the disease and treatment issued by Dr.N.P. Sasikumar in the prescribed form. P8 : Photocopy of letter dated 17/7/2002 sent by the 2nd opp. Party.
III. Opposite parties witness:
DW1 Dr. Sasikumar DW2 Joy Joseph
IV. Opposite parties' documents:
D1 : Photocopy of case record of Reg.No.46910 D2 : Photocopy of certificate of Insurance dated 24/1/2000
D3 : Photocopy of medical certificate (Attending Doctor's report) issued by Dr.N.P Sasikumar
D4 : Original claim form dated 20/5/2002 D5 : Copy of letter dated 2/7/2002 issued to opp. Parties D6 : Copy of letter dated 17/7/2002 issued by opp. Party.
PRESIDENT.
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | | 
