1) In brief consumer dispute is as under –

   That the deceased Complainant had taken Mediclaim Policy from the Opposite Party No.1 in 1993. Thereafter the Complainant regularly renewed the said policy without any break on payment of necessary premium. Alongwith the complaint the Complainant has produced photo copy of mediclaim policy issued by the Opposite Party No.1 from 15/02/1993to 14/02/1994 and subsequent renewed mediclaim policies till 14/02/2006. Opposite Party No.2 is the T.P.A. of the Opposite Party No.1.
 

2) It is submitted that the Complainant had no health problem till the year 2001. For the first time in 2001 Complainant developed health problem and he was required hospitalization due to kidney malfunctioning. The Complainant was admitted in the H.N. Hospital from 20/03/2001 to 29/03/2001 for treatment. After discharge from the hospital the Complainant lodged his claim with Opposite Party No.1 for reimbursement of the hospital expenses of Rs.29,621/-. On 08/06/2001 Opposite Party No.1 paid aforesaid claim amount to the Complainant. In the year 2002 and about beginning of 2003, the Complainant was again hospitalized for his kidney ailments and after discharge from the hospital he lodged claim to O.P.No.1 for Rs.35,977/- and Rs.75,345/-. After processing aforesaid claims, the Opposite Party paid to the Complainant Rs.35,877/- on 15/02/2003 and Rs.73,098/- on 08/12/2003.
 

3) It is submitted that Opposite Party No.1 became aware about Complainants ailments in the year 2001 even then the Opposite Party renewed mediclaim policy of the Complainant from time to time.
 

4) It is the case of the Complainant that during subsistence of his mediclaim policy produced at Exhibit-“A”, the Complainant was required to go for dialysis and other treatment for kidney ailment in Sanjeevani Hospital from 31/12/2004 to 04/01/2005. During aforesaid period the Complainant incurred expenses for hospitalization of Rs.26,156/-. On 02/05/2005 the Complainant lodged his claim with Opposite Party for reimbursement of aforesaid amount and submitted necessary case papers and medical bills. The Complainant has produced report of Histopathology Department of the Bombay Hospital and photo copy of the claim form submitted to Opposite Party. However, the Opposite Party No.2, vide their letter dtd.23/05/2005 rejected claim of the Complainant on false and flimsy ground stating that said claim falls under the pre-existing condition. The Complainant produced xerox copy of repudiation letter dtd.23/05/2005 along with complaint at page no 24.
 

5) It is the case of the Complainant that from 31/12/2004 to 04/01/2005 he was required to be admitted for polycystic kidney ailment in Bombay Hospital. During aforesaid period he incurred expenses for hospitalization of sum of Rs.26,156/-. His claim for reimbursement of the aforesaid amount was erroneously and illegally repudiated by the Opposite Party on false and flimsy ground without application of mind and it amounts to deficiency of service on the part of Opposite Parties. He has further alleged that Opposite Parties have committed unfair trade practice and rejected his genuine claim therefore, he has filed this complaint before this Forum.
 

6) The Complainant has requested to direct Opposite Parties to pay sum of Rs.26,156/- with interest @ 12 % from the date of claim till realization. He has also claimed Rs.25,000/- as compensation for mental agony and harassment and Rs.25,000/- towards cost of this complaint from the Opposite Party.
 

7) Opposite Party No.1 has filed written statement and thereby resisted claim of the Complainant contending interalia that allegations made in the complaint are false. The Complainant has suppressed material facts from the Opposite Party and therefore, complaint deserves to be dismissed with cost.
 

8) Opposite Party No.1 has admitted that the Complainant Kamlesh Patel had obtained mediclaim policy from the Opposite Party No.1 for the first time on 15/02/1993 and said policy was for one year and further it was renewed from time to time. At the time of taking of the policy the Complainant had declared that he was not suffering from any ailment.
 

9) It is say of Opposite Party No.1 that Insured was reportedly admitted at Sanjeevani Hospital on 31/12/2004 to 04/01/205 for Acute Renal Failure due to Adult Type Polycystic Kidney Disease (ADPKD) and incurred expenses of Rs.26,156/-. The Complainant submitted claim of Rs.26,156/- to the Opposite Party alongwith medical papers. After receipt of claim papers from the Complainant the Opposite Party sent medical case papers it to the Panel doctor of TPA for opinion on medical aspect of the claim. After perusal of the said papers, Panel doctor noticed that the Complainant had given a clear-cut history of being a case of ADPKD since 1992 from the history papers of the Bombay Hospital in a previous admission. The said ailment was absolutely pre-existing and led to kidney failure. The Complainant had taken medical treatment in Bombay Hospital for pre-existing disease and therefore, as per the exclusion clause no.4.1 of the policy Opposite Party have rejected claim of the Complainant. It is further alleged that at the time of inception of the policy, the Complainant did not disclose the fact that it is clear from the history written in the discharge summary of the Bombay Hospital that the Complainant was suffering from ADPKD since 1992. However, at the inception of the mediclaim policy the Complainant did not disclose real fact regarding his health to the Opposite Party therefore, on the ground of non-disclosure of the fact the Opposite Party had rejected the claim of the Complainant. So it cannot be said that there is deficiency in service on the part of Opposite Party. It is submitted that the allegations made in the complaint are false and therefore, complaint deserves to be dismissed with cost.
 

10) It is submitted that mediclaim policy issued to the Complainant excludes all the ailments arising out of disease which are pre-existing, therefore, the Complainants’ claim was repudiated. It is alleged that the Complainant never disclosed the fact of his previous ailment in the Proposal Form, which in effect meant non-disclosure of material facts, a further cause to repudiate the claim.
 

11) Opposite Party No.1 has denied all the allegations made in the complaint and submitted that Discharge Card of Bombay Hospital clearly states that the Complainant had ADPKD since 1992. The facts that Complainant claim was paid in 2002 and 2003 does not derogates from the fact that the ailment was pre-existing.
 

12) It is submitted by Opposite Party that mediclaim policy of the Complainant was renewed on the basis of knowledge as and then available. The incidence of fraud was discovered only during processing of subsequent claim. There is no substance in the allegations made in the complaint that claim was repudiated in contravention of the terms and conditions of the policies. There is no deficiency in service on the part of Opposite Party and therefore complaint deserves to be dismissed with cost.
 

13) It appears from the Rojnama that Opposite Party No.1& 2 was duly served with the notice but Opposite Party No.2 has not appeared before this Forum and has not filed written statement.
 

14) Alongwith the complaint the Complainant has produced documents as per list of document. Opposite Party has filed affidavit of Vijay R.Bhaillume, Sr. Manager in support of the contention of written statement and have produced Standard Form of Mediclaim Insurance Policy. Photo copy of the discharge summery of Bombay Hospital dtd.27/07/07, photo copy of the claims form, medical literature regarding Chronic Renal failure, etc.
 

15) During pendency of this complaint the original Complainant Mr.Kamlesh Patel expired on 21/01/2008. Thereafter heirs of deceased Complainant were brought on the record. Heirs of the deceased Complainant whose names are brought on the record have filed claim affidavit.
 

 

17) Following points arises for our consideration and our findings thereon are as under –
 

Point No.1 :- It is admitted fact that deceased Complainant Mr.Kamlesh Patel had taken Mediclaim Policy from Opposite Party No.1 on 15/02/93 and the said policy was for 1 year. It is not dispute that thereafter from time to time after payment of premium Opposite Party No.1 renewed mediclaim policy of the Complainant till 14/02/06.
 

           It is the case of the Complainant that even though he had taken mediclaim from Opposite Party No.1 in the year 1993, he had no health problem till 2001. As such, he had never claimed any amount from the Opposite Party No.1 under any Mediclaim Policy till 2001. As per the Complainant, in the year 2001 due to malfunctioning of Kidney he was admitted in the H.N.Hospital from 20/03/2001 to 29/03/2001 for treatment. After discharge from the hospital he had preferred claim with Opposite Party No.1 for reimbursement of the hospital expenses of Rs.29,621/- and the Opposite Party No.1 has paid the said amount to him on 08/06/01. Subsequently in the year 2003 and about beginning of 2003 the Complainant was again hospitalized for kidney ailment and then he lodged complaint against Opposite Party No.1 for Rs.35,977/- and for Rs.75,345/-. Opposite Party after processing his claim paid him Rs.35,877/- and Rs.75,345/- on 08/12/03. Aforesaid fact of settlement of Complainants claim is admitted by Opposite Party No.1.
 

            According to the Complainant, even though Opposite Party No.1 became aware about the Complainant’s ailment in the year 2001 Opposite Party No.1 renewed his mediclaim policy from time to time.
 

            As per the Complainant, during subsistence of his mediclaim policy issued by Opposite Party No.1 from 10/04/2005 to 14/04/2005 the Complainant was admitted in Sanjeevani Hospital for kidney ailment. During aforesaid period the Complainant incurred expenses of Rs.26,156/- for hospitalization in Sanjeevani Hospital. On 02/05/2005 he submitted his claim alongwith necessary medical papers and bills to the Opposite Party No.2. However, Opposite Party No.2 vide their letters dtd.23/05/2005 wrongly and illegally repudiated his claim on the alleged ground that the claim falls under pre-existing condition and the claim was rejected as per the exclusion clause no.4.1 of the said policy.
 

            As mentioned above, according to the Complainant till 2001 he was not suffering from any health problem and for the first time in the year 2001 he suffered from kidney ailment. On the contrary according to the Opposite Party No.1, the Complainant was suffering from kidney ailment since 1992. Ld.Advocate Mr.Manoj Mhatre had submitted that even though the Complainant was suffering from kidney ailment from 1992 at the time of taking of mediclaim policy, deceased Complainant did not disclose to the Opposite Party about his ailment. The deceased Complainant suppressed the material facts from the Opposite Party and fraudulently obtained the mediclaim policy. On good faith Opposite Party No.1 renewed the said policy from time to time. For the first time when the Complainant submitted his claim form alongwith the necessary case papers and bills for reimbursement of hospitalization charges of Rs.26,156/-, the said medical case papers were sent by the Panel doctor of Opposite Party No.2 for scrutiny. After scrutiny of case papers panel doctor noticed that in the discharge form of Bombay Hospital, it is noted that the Complainant is suffering from ADPKD from 1992. In this case Opposite Party had not produced opinion of the aforesaid panel doctor. The Ld.Advocate for the Opposite Party No.1 to support his contention that the Complainant was suffering from ADPKD from 1992 has relied only upon medical history written in the discharge summery of the Bombay Hospital. Photocopy of discharge summary of the Bombay Hospital is produced on record by the Opposite Party No.1. 
 

             Absolutely there is no evidence on record to show that prior to inception of the mediclaim policy i.e. prior to 15/02/1993 the Complainant was aware about kidney ailment. Further there is no evidence on record to show that prior to the inception of mediclaim policy the Complainant had taken any medical treatment for alleged kidney ailment. As mentioned above, the Opposite Party No.1 came to know about aforesaid alleged pre-existing disease after receipt of opinion of Panel Doctor. In the matter of New India Assurance Co.Ltd. V/s. Mohinder Kaur reported in 2008 CTJ 780 (CP) (SCDRC) State Consumer Dispute Redressal Commission, Punjab, Chandigarh – it is held that “A mere history given in the hospital ipso facto is of no consequence as history alone cannot be treated as valid ground to repudiate a claim, while it is a settled law that in case of fraudulent suppression of material information onus heavily rests on the party alleging fraud”.
 

          In the instance case besides photo copy of the discharge summery of Bombay Hospital the Opposite Party No.1 has not adduced any evidence to prove the allegations that the Complainant was suffering from kidney ailment prior to inception of mediclaim policy in 1993 and the Complainant has suppressed material fact regarding his health from Opposite Party No.1. In aforesaid judgement it is clearly led down that mere history given in the hospital ipso facto is of no consequence as history alone cannot be treated as valid ground to repudiate a claim. Therefore, it appears that the Opposite Parties have repudiated claim of the Complainant without any reliable evidence and therefore, repudiation of claim amounts to deficiency in service on the part of Opposite Parties. Therefore, we answer point no.1 in the affirmative.
 

 

           As discussed above the Opposite Party has erroneously rejected aforesaid claim of the Complainant on the ground of alleged pre-existing disease. Sum assured in each renewed mediclaim policy is Rs.1,20,000/- + 1,30,000/- i.e. Rs.2,50,000/-. Considering aforesaid fact and circumstances of the case we think it just to direct Opposite Parties to pay Rs.26,156/- to the Complainant.
 

           The Complainant has claimed interest @ 12 % p.a. on aforesaid amount of Rs.26,156/- from the date of claim till payment of entire amount. The Complainant has claimed interest at rather excessive rate. Considering the fact of the case, we think it just to direct Opposite Parties to pay interest @ 9 % p.m. on Rs.26,156/- from 23/05/05 till realization of the entire amount to the Complainant.
 

           The Complainant has claimed Rs.25,000/- for mental agony and harassment and Rs.25,000/- towards cost of this complaint. Opposite Party has denied aforesaid claim of the Complainant. As discussed above, the Opposite Party has wrongly rejected Complainant’s claim for reimbursement to the aforesaid amount. Considering the facts and circumstances of the case, we think it just to direct Opposite Party to pay Rs.3,000/- as compensation for mental agony & harassment and Rs.1,000/- as cost of proceeding to the Complainant. Hence, we answer point no.2 accordingly.

 

For the reasons discussed above, we partly allowed the complaint and pass following order -
 

O R D E R
 

i. Complaint No.256/2006 is partly allowed.
 

   Complainant with interest @ 9 % p.a. on aforesaid amount from 23/05/2005 till realization of entire amount to the Complainant.
 

    harassment and Rs.1,000/- (Rs.One Thousand Only) as cost of proceeding to the Complainant.
 

iv.Opposite Parties Nos.1 & 2 shall comply with the order within period of 1 month from the date of receipt of this order.