BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 14th of December 2010
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.19/2010
(Admitted on 08.01.2010)
Mrs. Savitha Umesh,
Wo. Umesh Poojary,
Aged about 33 years,
Flat No.205, Veera Residency,
Kodial Guthu, 6 Cross Road,
Mangalore 575 002. …….. COMPLAINANT
(Advocate for the Complainant: Smt. Manjula N.A.)
VERSUS
1. The New India Assurance Co. Ltd.,
Essel Chamber, III Floor,
Karangalpady, Kodialbail Post,
Mangalore 575 003.
Rep. by its Branch Manager.
2. T.T.K. Health Care TPA Pvt. Ltd.,
No.201, 202, 203, II Floor,
City Plaza, Shedigudda,
Mangalore – 575 003.
Rep. by its Branch Manager. ……. OPPOSITE PARTIES
(Advocate for the Opposite Parties: Smt.Suma R. Nayak).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant submits that, her husband Umesh Poojary had obtained Hospitalization Benefit Policy/Janata Mediclaim Policy bearing No.670805/34/08/14/0017 valid from 03.04.2008 to midnight of 02.04.2009 insuring himself and his family members which includes the Complainant who is his wife. It is stated that, during the subsistence of the said insurance policy, in the month of October 2008, Complainant had a problem of hearing in her left ear and got admitted to KMC Hospital on 13.10.2008, as per the advice, she had undergone left Tympanoplasty Type I operation and discharged on 16.10.2008. It is stated that, during the hospitalization, Complainant had incurred medical expenses to the tune of Rs.29,000/- which was paid by the Opposite Party.
It is further submitted that, after discharge from the hospital, Complainant again developed some complications in the left ear which was operated during the previous hospitalization, Complainant was frequently visiting the doctor who has treated her as post operation recovery was not successful and she developed Tubo Tympanic disease and as per the advice of the doctor, Complainant once again admitted to same hospital on 19.12.2008. After admission, Complainant had again undergone clinical examination and subjected to Myringoplasty on her left ear on 19.12.2008 and Complainant was discharged from the hospital on 20.12.2008. During the said hospitalization, Complainant had incurred further expenses of Rs.16,956/-. After the discharge, Complainant had lodged a claim with the Opposite Parties and complied with the necessary requirements in the month of January 2009 but the Opposite Party repudiated the claim of the Complainant without assigning lawful reason. Their appreciation of clause 2.5 and 3.5 is not correct. The 2nd surgery is unavoidable as her post operation is not successful. And hence the Complainant issued a legal notice calling upon the Opposite Party to pay the amount but the Opposite Party failed to comply the demand made therein and hence it is contended that, the service rendered by the Opposite Parties amounts to deficiency, therefore, the above complaint filed under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to pay a sum of Rs.16,956/- along with interest at 18% p.a. and Rs.51,000/- claimed as compensation and cost of the proceedings.
2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed version, admitted the policy, but is contended that as per policy Clause No.3.5 “any one illness will be deemed to mean continuous period of the illness for which treatment is undergone and includes relapse within 45 days from the date of last consultation with the hospital/nursing homes where treatment was taken. Occurrence of same illness after a lapse of 45 days as stated above will be considered as fresh illness”. The Complainant has taken treatment for the relapse and complication in the left ear which was already operated on 13.10.2008 during previous hospitalization. The Opposite Parties have rightly repudiated the claim raised by the Complainant for subsequent hospitalization. It is further stated that, the claim under the policy Clause No.2.5, “post hospitalization medical charges upto 60 days period immediately after the insured’s discharge from the hospital for that illness or injury is not entertainable”. The hospitalization once again took place on 19.12.2008 which is beyond the period mentioned in the clause No.2.5 and contended that the repudiation made by the Opposite Parties are just and valid and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Mrs.Savitha Umesh (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on her. One Dr.Kishore Chandra Prasad (CW2) – Summoned witness of the Complainant was examined and cross-examined by the learned counsel for the parties. Ex C1 to C10 were marked for the Complainant as listed in the annexure. One Sri.A.M. Belma (RW1), Senior Branch Manager of the Opposite Party Company filed counter affidavit and answered the interrogatories served on him. Ex R1 and R2 were marked for the Opposite Party as listed in the annexure. Both parties produced notes of arguments along with citations.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
Reasons
5. Point No. (i) to (iii):
The facts which are not in dispute is that, the Complainant is one of the beneficiary under the Hospitalization Benefit Policy/Janata Mediclaim Policy bearing No.670805/34/08/14/0017 issued by the Opposite Party and the same was valid from 03.04.2008 to midnight of 02.04.2009 (as per Ex C1). It is also admitted that, the Complainant was admitted to the K.M.C. hospital Mangalore on 13.10.2008 and undergone on the left ear with left Tympanoplasty Type I operation and was discharged on 16.10.2008. The above said operation was conducted by Dr.Kishore Chandra Prasad, who is ENT, Head and Neck Surgeon i.e., CW2 who has examined as a witness in this case. It is further not disputed that, the Complainant post operation was not successful and again she had admitted on 19.12.2008 and subjected to Myringoplasty i.e., correctional surgery and discharged on 20.12.2008. For the first hospitalization the Complainant had incurred medical expenses to the tune of Rs.29,000/- which was paid by the Opposite Party.
Now the point in dispute between the parties before this Forum is that, the Complainant undergone left ear with left Tympanoplasty Type I operation and discharged on 16.10.2008. On 24.10.2008 i.e., after discharge, she approached the surgeon for removal of suture, at that time, surgeon found that her ear was discharging and not dry, prescribed certain medicines to avoid further problem. But inspite of taking medicine it was not healed, the doctor advised the Complainant for correctional surgery and immediately the Complainant subjected to 2nd operation on 19.12.2008 i.e., within two months from the date of suture removal i.e., 24.10.2008 and contended that exclusion clause of the policy is not applicable and she is entitled for the 2nd hospitalization expenses of Rs.16,956/- and came up with this complaint.
The Opposite Party on the other hand, contended that, the 2nd hospitalization expenses of Rs.16,956/- excluded under the exclusion Clause 2.5 and 3.5 of the policy and contended that they are not liable.
The Complainant filed oral evidence by way of affidavit and examined one witness i.e., ENT, Head and Neck Surgeon Dr.Kishore Chandra Prasad as CW2 and produced Ex C1 to C10. Opposite Party also filed oral evidence by way of affidavit and produced Ex R1 and R2.
On scrutiny of the oral as well as documentary evidence, we find that, there is no dispute with regard to the policy issued by the Opposite Party and the Complainant is one of the beneficiary under the policy. Now the point for consideration in this case is that, whether the claim of the Complainant falls within the purview of exclusion Clause of the policy? When the Opposite Party raising a contention that the claim is falls within the purview of exclusion Clause, the entire burden lies upon the Opposite Party Company to establish the same. However, the Opposite Party produced the terms and conditions of the policy i.e., Ex R1, wherein, the exclusion Clause 2.5 and 3.5 reads thus:
1.0:- This policy witnesses that subject to the terms, conditions, exclusions and definitions contained herein or endorsed or otherwise expressed hereon, the Company undertakes that if during the period stated in the Schedule any insured person shall contact any disease or suffer from any illness (herein after called disease) or sustain any bodily injury through accident and if such disease or injury shall require any such insured person, upon the advice of a duly qualified physician/medical surgeon to incur hospitalization expenses for medical/surgical treatment at nursing home/hospital in India as herein defined as an inpatient, the Company/Third Party Administrator will pay to the hospital/nursing home/day care centre or reimburse the insured person the following expenses that are necessarily incurred in the treatment of such disease or injury.
2.5: Post hospitalization medical charges upto 60 days period immediately after the Insured’s discharge from the hospital for that illness or injury.
3.5: Any one illness will be deemed to mean continuous period of the illness for which treatment for which treatment is undergone and includes relapse within 45 days from the date of last consultation with the hospital/nursing home where treatment was taken. Occurrence of same illness after a lapse of 45 days as stated above will be considered as fresh illness.
From the above exclusion clauses, it is very clear that, the New India Assurance Company undertakes that, any insured person shall contract any disease or suffer illness or sustain any bodily injury through accident and if such disease or injury shall require any such insured person, upon the advice of a duly qualified physician/medical specialist/medical surgeon to incur hospitalization expenses for medical/surgical treatment at nursing home/hospital in India as an inpatient, the Company will pay to the hospital/nursing home/day-care centre or reimbursed the insured person even the post hospitalization medical charges upto 60 days period immediately after the insured’s discharge from the hospital for that illness or injury. Further, it is made us very clear that, any one illness deemed to mean continuous period of illness for which treatment is undergone and includes relapse within 45 days from the date of last consultation with the hospital/nursing homes where treatment was taken. Occurrence of same illness after a lapse of 45 days will be considered as fresh illness. But in the instant case, we have observed in the discharge summary i.e., Ex C3, admittedly, the Complainant was operated on the left ear with left Tympanoplasty Type I operation on 13.10.2008 and she was discharged on 16.10.2008 from the K.M.C. hospital, Mangalore. We have further observed that, at the time of discharge, she was advised to come for review and suture removal on 24.10.2008. The above advice was made by the surgeon Dr.Kishore Chandra Prasad in connection with the surgery conducted on 13.10.2008. Accordingly, the Complainant consulted the surgeon on 24.10.2008. According to the surgeon i.e., CW2 deposed before this FORA that, on 24.10.2008 the Complainant consulted the surgeon for removal of the suture, at that time found that the ear was discharging and it was not dry, thereby, the doctor prescribed medicines on 24.10.2008 and also on 04.11.2008 to the Complainant to heal the same. In order to support the above statement, the Complainant produced prescription issued by the surgeon Dr.Kishore Chandra Prasad dated 24.10.2008 and 4.11.2008 i.e., Ex C10 (undisputed document) which clearly reveals that, the Complainant consulted Dr.Kishore Chandra Prasad who conducted the surgery to the Complainant for removal of the suture on 24.10.2008, at that time, the CW2 found that the ear was not dry in other words the ear was found discharging, he prescribed certain medicines as per Ex C10 as stated supra.
We have observed that, since the first surgery was not successful that means the ear was not dry and it was discharging at the time of review, surgeon who conducted the surgery prescribed certain medicines, even though the same was not healed and thereafter left with no other option advised to undergo 2nd correctional surgery to the Complainant on 19.12.2008. The above line of treatment as well as the 2nd surgery undergone by the Complainant is for the same illness and not fresh illness. Because the materials on record reveals that, though the Complainant discharged on 16.10.2008 her treatment was not end on the date of discharge, the same was continued as the doctor advised the Complainant to review and come for suture removal of the 1st surgery conducted in the above said hospital. The evidence of the CW1 coupled with CW2 proved beyond doubt that, the Complainant consulted the surgeon on 24.10.2008 after the discharge as stated supra to remove the suture, the doctor found that the wound was not healed and found discharge in the ear, he advised certain medicines as per the prescriptions dated 24.10.2008 and 04.11.2008, despite of that, year was not dry, the CW2 with no other option advised the Complainant to undergo correctional operation on 19.12.2008 i.e., within two months from the date of suture removal/review i.e., 24.10.2008. Under that circumstances, the Opposite Party Company cannot treat the above illness as fresh illness. The Complainant was continuously under treatment right from the date of admission i.e., 13.10.2008 till she undergone the 2nd surgery i.e., 19.12.2008.
In the instant case, we observed that, the Opposite Party Company by taking the date of discharge i.e., 16.10.2008 cannot repudiate the claim by considering the correctional surgery as a fresh illness. No doubt, constitution of policy bond, which is the basis of contract of insurance, but its true and correct interpretation would give justification to the insured to get benefit. The purpose behind issuing the policy should be taken into consideration. The policy is obtained for the benefit of the insured and not to the insurer. Wherever the policy condition is not clear and capable of more than one interpretation, the interpretation which is beneficial to the consumer should be adopted. But in the instant case, the Opposite Party Company interpreting the terms and conditions according to their convenient which cannot be accepted. The insurance policy is always beneficial to the insured and not to the Insurance Company as stated supra, hence the Insurance Company cannot avoid liability merely on technical grounds of its conditions. 2.5 and 3.5 being a part of the policy, can be read along with other portions of the policy to find out the meaning of the words in the policy as to decide whether claim is accepted or not. A decision has to be taken whether the Complainant was continuously treated under the same disease. If on facts, it is found that the second surgery undergone by the Complainant after three or four months or we could say one year or two years having no nexus with the earlier surgery and it would be allowed to avoid its liability. In the instant case, the 2nd surgery found to have been taken place because of the non-healing of the 1st surgery i.e., within two months from the last consultation with surgeon who conducted the surgery. The correctional surgery was taken place within 60 days from the date of last seen by the surgeon. According to the CW2, the patient was last seen on 24.10.2008 and subsequently on 04.11.2008 i.e., within the time stipulated under the policy and hence the exclusion clause 2.5 and 3.5 is not applicable.
In view of the above discussion, we are of the considered opinion that, the repudiation made by the Opposite Party No.1 is not justifiable which amounts to deficiency in service. Therefore, we hold that, the Opposite Party No.1 i.e., New India Assurance Company Limited represented by its Divisional Manager is hereby directed to pay Rs.16,956/- to the Complainant towards the medical expenses incurred by the Complainant. We further direct the Opposite Party No.1 to pay Rs.5,000/- as compensation for the inconvenience and harassment caused to the Complainant. Rs.1,000/- awarded as cost of litigation expenses. Payment shall be made within 30 days from the date of this order.
There is no contractual relationship between the Complainant and Opposite Party No.2, hence complaint against Opposite Party No.2 is hereby dismissed.
6. In the result, we pass the following:
ORDER
The complaint is partly allowed. Opposite Party No.1 i.e., New India Assurance Company Limited represented by its Divisional Manager is hereby directed to pay Rs.16,956/- (Rupees sixteen thousand nine hundred and fifty six only) to the Complainant and further directed to pay Rs.5,000/- (Rupees five thousand only) as compensation. Rs.1,000/- (Rupees one thousand only) awarded as cost of litigation expenses. Payment shall be made within 30 days from the date of this order.
On failure to pay the aforementioned amount within the stipulated time as mentioned above the Opposite Party No.1 is hereby directed to pay interest at the rate of 10% p.a. on the total amount from the date of failure till the date of payment.
Complaint against Opposite Party No.2 is hereby dismissed.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 13 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 14th day of December 2010.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mrs.Savitha Umesh – Complainant.
CW2 – Dr.Kishore Chandra Prasad – Summoned witness of the Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – : Xerox copy of the Hospitalization and Domiciliary Hospitalization Benefit Policy bearing No.670805/34/08/14/00000017.
Ex C2 – 09.01.2009: Xerox copy of the Medical Certificate issued by Dr.H.Kishore Chandra Prasad.
Ex C3 – 16.10.2008: Discharge Summary issued by KMC Hospital.
Ex C4 – 20.12.2008: Discharge Summary issued by KMC Hospital.
Ex C5 – 12.01.2009: Letter issued by the Complainant to the Opposite Party No.2.
Ex C6 – 23.02.2009: Repudiation letter issued by Opposite Party No.2 to the Opposite Party No.1 and copy to the Complainant.
Ex C7 – 09.03.2009: Letter issued by the Complainant to the Opposite Party No.1.
Ex C8 – 01.12.2009: Copy of the Lawyer’s notice.
Ex C9 - : Postal acknowledgement.
Ex C10 – 24.10.2008: Prescription issued by Dr.Kishore Chandra Prasad.
Witnesses examined on behalf of the Opposite Parties:
RW1 – Sri.A.M. Belma, Senior Branch Manager of the Opposite Party Company.
Documents produced on behalf of the Opposite Parties:
Ex R1 – : Hospitalization Benefit Policy along with terms and conditions.
Ex R2 – 05.03.2010: Fax copy of rejection letter.
Dated:14.12.2010 PRESIDENT
