PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding, deficiency in service on the part of the Opposite Parties as they repudiated the mediclaim of the Complainants on the ground of pre-existing disease.
2) The Complainants had taken the mediclaim policy from the Opposite Party No.1 since 31/03/1999 and renewed it from time to time on yearly basis. The Complainants Mediclaim Policy No.111300/48/02/0802 was in force from 31/03/2003 to 30/03/2004. During this period, Complainant No.2 who was duly insured under this policy, underwent left eye cataract operation on 17/10/2003. The Complainant submitted the mediclaim of Rs.35,908/- to the Opposite Parties alongwith a letter dtd.05/11/2003, post operative report and post operative certificate, medical bills, etc. but the Opposite Parties did not respond to the Complainant. The Complainant sent reminders to the Opposite Parties but the Opposite Parties kept silent and only on 15/03/2005 Complainant received a letter from Opposite Party No.2 dtd.13/02/2005 informing the Complainant as follows -
“According the D.O. clarification and Policy copy eye operation in exclusion. Now patient was hospitalized for Left eye cataract. So this comes under pre-existing disease. Therefore, as per the terms and conditions for the mediclaim policy, this case is non payable under Exclusion Clause No.4.1, which states all diseases/injuries, which are pre-existing when the cover incepts for the first time.”
The Complainant further clarified that the medical policy issued by the Opposite Party No.1 clearly endorsed “Eye Operation in March 18, 1998”. It means an eye operation which was done in March 18, 1998 was excluded from the policy and it was the pre-existing disease. In March, 1998 the Complainant had undergone an operation of right eye. For this contention he has produced the Discharge Certificate by Dr.B.B.Bafna, who had performed the operation on his right eye for cataract (Exhibit-‘B’ is the discharge certificate issued by Dr.Bafna). Opposite Party No.2 has admitted in its letter dtd.13/02/2005 that the Complainant was hospitalized for Left eye cataract. Therefore, it is clarified by the Complainant that the right eye cataract was pre-existing disease and not the Left eye cataract. On 17/10/2003, Complainant No.2 underwent cataract operation on her left eye which was not a pre-existing disease. Therefore, the Complainants are entitled for the reimbursement of the expenditure incurred by them for the above said hospitalization.
3) The Complainant also raised an objection regarding the interference of the Opposite Party No.2 by taking decision of repudiation of the mediclaim as it has no locus stands in taking the decision because the contract of insurance was between the Complainant and the Opposite Party No.1 only. Finally the Complainant has alleged the deficiency in service of the Opposite Parties as they failed and neglected to perform their contractual and legal obligation by repudiating the bonafide mediclaim of the Complainant.
4) The Complainant prayed for the reimbursement of the expenditure of Rs.35,908/- with interest @ 21 % p.a. on this amount from 01/12/2003, compensation of Rs.50,000/- for mental & physical harassment and cost of this complaint.
5) The Complainant has attached the xerox copies of the following documents alongwith the complaint -
a) Policy No.111300/48/02/0802 for the period from 31/03/03 to 30/03/04.
b) A certificate from Dr.B.B.Bafna, dtd.17/03/1998.
c) Letter from S.J. Jain to the Opposite Party No.1, dtd.02/12/2004.
d) Final notice of Advocate- S.J. Jain & Co. to Opposite Party, dtd.24/01/2005.
e) Letter from Opposite Party No.2 to the Complainant No.1, dtd.13/02/2005.
f) Letter from Opposite Party No.1 to Policy Holder (in general), dtd.18/12/02.
g) Letter from Advocate-S.J. Jain to the Opposite Party No.2, dtd.16/04/2005.
h) Letter from the Opposite Party No.1 to Complainant, dtd.23/01/2006.
i) Notice from Adv.- Shri.P.B.Dave to Opposite Party Nos.1 & 2, dtd.22/01/05.
6) The complaint was admitted and the Opposite Parties were served with the notice. The Opposite Parties appeared through their advocate and submitted their written statement wherein they admitted having issued the mediclaim policy for the relevant period when the Complainant underwent on left eye cataract operation. They also came to know that there was cataract operation on left eye of the Complainant NO.2 on 17/10/2003 by Dr.Rashmi Kant Patel. The mediclaim was submitted by the Complainant on 17/11/2003.
7) It was further averred by the Opposite Parties that eye operation is excluded from the cover of the policy. The Complainant had undergone a cataract operation on the right eye in March, 1998 i.e. before the inception of the policy. In October, 2003 the Complainant again underwent a cataract operation on left eye and preferred a mediclaim. The said claim was rejected by the Opposite Parties under clause 4.1 of the policy as the pre-existing disease, under exclusion clause of the policy. The Opposite Parties stated that the claim was not tenable as the policy excludes all eye operations.
8) The Opposite Parties further clarified that they are not responsible for the false claim or for the disease which was existing before taking the policy. They also denied the deficiency in their service. The Opposite Parties have not filed any document in support of their written statement.
9) The Complainant then filed rejoinder in reply to the written statement of the Opposite Parties, affidavit of evidence and written argument. Opposite Parties also filed written argument wherein both the parties reiterated the facts mentioned in the complaint and written statement respectively.
10) We heard the Ld.Advocate for the Complainant, read the written argument, written statement of the Opposite Parties and rejoinder and written argument of the Complainant. We also perused the documents submitted by the Complainants alongwith their complaint and our findings are as follows –
11) As per Exhibit –‘A’ to the complaint, the Complainant No.2 was a mediclaim policy holder for hospitalization, since 1999 till 30/04/2004. The sum assured in 2002 -2004 was Rs.1,50,000/- subject to the exclusion of fibro gland NOV90 3) Eye operation March 18, 1998. This has not been denied by the Opposite Parties. On the contrary this has been admitted in their written statement and written argument. The mediclaim policy incepted in March, 99 and the insured Complainant had undergone eye operation of right eye on 18th March, 1998. The medical papers from Dr.B.B.Bafna show that she had undergone right eye operation for cataract. Thus, cataract of the right was pre-existing on 31/03/1999 and the same was excluded from the policy.
12) On 17/10/2003 the same insured Complainant underwent on cataract operation on Left eye. Surely, cataract disease of left eye was not existing on 31/03/1999. Therefore, this disease cannot be said to be pre-existing as contemplated in clause 4.1 of the policy. The Opposite Parties have clearly twisted the wording of the exclusion in their written statement as “The policy excluded Eye operation from scope of cover.” However, the wording of the exclusion clause of policy clearly state that “subject to the exclusion of – EYE OPERATION MARCH 18, 1998 meaning, the disease related to or attributed to or accelerated thereby or arising from this disease (cataract of right eye) will be excluded. In this case disease of the left eyes was not existing on or before 31/03/1999. Therefore, we do not find any substance in the averment of the Opposite Parties and conclude that the disease cataract of Left eye was not pre-existing and the Complainant is entitled for her mediclaim of Rs.35,908/-. The Opposite Parties are deficient in their service by repudiating the mediclaim of the Complainant No.2 by twisting the wording of the exclusion clause of their own policy and thereby caused mental agony to the Complainant for which both the Opposite Parties are liable jointly and severally. Therefore, we pass the order as follows -
O R D E R
i. Complaint No.58/2007 is partly allowed.
ii. Opposite Party Nos.1 & 2 shall jointly and/or severally pay an amount of Rs.35,908/- (Rs.Thirty Five
Thousand Nine Hundred Eight Only) to the Complainant alongwith interest @ 9 % p.a. on aforesaid amount
from 01/12/2003 till realization of the entire amount.
iii.Opposite Party Nos.1 & 2 shall jointly and/or severally pay an amount of Rs.5,000/-(Rs.Five Thousand Only)
to the Complainant towards compensation for mental agony caused to the Complainant.
iv.Opposite Party Nos.1 & 2 shall jointly and/or severally pay an amount of Rs.3,000/- (Rs.Three Thousand
Only) to the Complainant towards the cost of this complaint.
v.Opposite Party Nos.1 & 2 are directed to comply with the above order within 30 days from the date of
receipt of this order.
vi.Certified copies of this order be furnished to the parties.
