PER SHRI. S. G. CHABUKSWAR – HON’BLE  MEMBER

1)        This is a complaint for the reliefs of reimbursement of mediclaim Rs.1,51,880/- with interest from the date of filing claim suffered by the Insured Shri. Pradeep S. Warankar, Rs.20,000/- compensation for mental harassment and Rs.10,000/- cost of the complaint.

2)        The case of the Complainants in short is as under –

           Complainant Nos.1 is registered Consumer Welfare Association and it is entitled to file complaint on behalf of Complainant No.2 under Sec.12(1)(b) of the Consumer Protection Act, 1986.  Complainant No.2 is the joint holder of mediclaim policy alongwith his four family members including his late father Shri. Pradeep P. Warankar who was insured since 2008.  Opposite Party No.1 is the insurer.  Opposite Party No.1 had accepted proposal of Complainant No.2 after receiving health check-up medical examination report dtd.05/06/2008 issued by medical consultancy an agency appointed by Opposite Party No.1. Opposite Party No.1 issued to Complainant No.2 and his four family members policy bearing No.111300/34/10/11/00002429 for the period 09/07/2010 to 08/07/2011.

3)        The further case of the Complainants is that, Shri. Pradeep Warankar father of Complainant No.2 suffered abdominal pain diagnosed as peptic duodenal ulcer for which he was admitted in the hospital on 09/08/2010 and he was operated on 10/08/2010.  Shri. Pradeep Warankar expired on 12/08/2010.  The cost of treatment, surgery and medicines was total Rs.1,51,880/-. Complainant No.2 had submitted claim with Opposite Party No.2 of Rs.1,51,880/-. The Complainants have also submitted Discharge card of Shri. Pradeep alongwith claim on 04/09/2010.  However, Opposite Parties have summarily repudiated the claim on the ground that the patient is treated for duodenal perforation which is a complication of chronic alcoholism which is not covered under the policy as per exclusion clause 4.4.6 of the policy.  The Complainants have protested the repudiation by sending letter to Opposite Party No.2 on 09/09/2010.  Dr. Adwait A. Patil who confirmed and certified that cause for duodenal ulcer need not be alcoholic.  The copy of said letter dtd.09/09/2010 was submitted with Opposite Party No.2.

4)        The further case of the Complainants is that they fallowed up by the letters to Opposite Party No.1 dtd.29/10/2010. On 23/12/2010, D.N. Mahajan, Manager reaffirmed the earlier ground of chronic alcoholic as cause for repudiation of claim.  Complainant No.2 had approached to voluntary organization Mumbai Grahak Panchayat who requested Opposite Party No.2 to settle the claim by the letter dated 25/01/2012. Opposite Party No.1 replied the said letter on 02/03/2012.  Complainant No.2 also confirmed from internet literature site UK/Health/Duodenal, ulcer.ntm that the cause of duodenal ulcer is mainly due to infection by bacteria helicobacter pylori or use of ant-inflammatory medicines including aspirin while smoking, stress, and drinking heavily may possibly increase the risk of having a duodenal ulcer.  The Opposite Parties repudiated the claim of Complainant No.2 on unproved and untested ground.  The Opposite Parties have adopted unfair trade practice and rendered deficiency in service and caused mental harassment to Complainant No.2.  Hence, this complaint for the reliefs as mentioned in above para No.1. 

5)        Opposite Parties have resisted the claim by filing written statement. The Opposite Parties have admitted that Complainant No.2 had taken mediclaim policy namely the Hospitalization & Domiciliary Hospitalization Benefit Policy bearing No.111300/34/10/11/00002439 for the period 09/07/2010 to 08/07/2011 for himself, his wife, daughter, father and mother.  Opposite Parties have also admitted that, father of Complainant No.2 was admitted at Punamiya Hospital for abdominal pain on 09/08/2010 and he was operated on 10/08/2010 and died on 12/08/2010 for which claim for Rs.1,51,880/- was lodged with Opposite Party No.2 for cost of treatment, surgery and medicines.  The contention of Opposite Parties is that Opposite Party No.2 after scrutinizing the claim found that the claim is not admissible as it falls within the exclusion clause No.4.4.6 specified in the mediclaim policy.  Opposite Party No.2 further found that patient was treated for duodenal perforation which is a complication of chronic alcoholism which is not covered under policy.  Hence, Opposite Party No.2 rightly repudiated the claim.

6)        The further contention of Opposite Parties is that as per discharge/death summary issued by Punamiya Hospital father of Complainant No.2 was patient of K/C/O diabetic and also a chronic alcoholic.  As per medical literature alcoholic abuse is a common cause for duodenal ulcers and perforation.  The letter of Dr. Adwait A. Patil certifying that cause for duodenal perforation need not be alcoholic cannot be considered as it is after thought on 06/09/2010.  The terms and conditions of the policy are the part and parcel of the contract of insurance and are always attached with the policy at the time of issue or at the time of renewal of policy.  The policy has not assured or promised to pay any invalid claim or any amount claimed.  The Opposite Parties have denied all rival contentions of the Complainants and prayed for dismissal of complaint with cost.  

7)        Complainant No.2 Shri. Prashant has submitted his affidavit of evidence.  The Opposite Parties have submitted affidavit of evidence of Shri. D.M. Mahajan, Manager.  Both the parties has submitted their respective written notes of arguments.  We perused the documents produced on record.  We heard Shri. A.M. Mascarenhas, Secretary, Consumer Welfare Association for Complainants and Smt. Kalpana Trivedi, Ld.Advocate for Opposite Parties.  

8)        Admittedly Opposite Party No.1 issued policy in question to the Complainant No.2, his wife, daughter, mother and father for the period 09/07/2010 to 08/07/2011.  The father of Complainant No.2 was admitted in Punamiya Hospital, Dadar (West), Mumbai on 09/08/2010, operated on 10/08/2010 and died on 12/08/2010. The Complainants have produced alongwith complaint at Exh.B (page no.34) discharge summary/death summary issued by Punamiya Hospital. It has been mentioned therein that complaint of patient on admission was of abdominal pain and in diagnosis found failure of multi organ, septicemia, duodenal perforation. The medical summary says that patient is K/C/O diabetic and also a chronic alcoholic.  Patient was examined and investigated CT abdominal showed duodenal perforation.  The fact mentioned in the medical summary shows that father of Complainant No.2 was admitted in the hospital as he was chronic alcoholic patient. 

9)        Opposite Party No.2 has repudiated the claim of Complainant No.2 on the ground of exclusion clause no.4.4.6 of the policy in question.  The Complainants have produced copy of policy in question and its terms & conditions at page nos.15 to 33.  Clause no.4.4 of said policy is in respect of permanent exclusions.  The clause no.4.4.6 of said policy runs as under –

         “Convalescence, general debility, ‘Run-down’ condition or rest cure, obesity treatment and its complications, congenital external disease/defects or anomalies, treatment relating to all psychiatric and psychosomatic disorders, infertility, sterility, use of intoxicating drugs/alcohol, use of tobacco leading to cancer.” 

10)      The father of Complainant No.2 was suffering from K/C/O diabetic and also chronic alcoholic therefore, the case of the Complainants comes under the exclusion clause no.4.4.6 of the policy in question.  Opposite Party No.2 has rightly repudiated the claim of Complainant No.2. 

11)      Shri. A.M. Mascarenhas, representative of Complainants has argued that Duodenal Perforation which is a complication of chronic alcoholism is not covered under policy.  The representative of Complainants in support of his argument relied on the judgement reported in III (2007) CPJ 320 (SC), New India Assurance Co. Ltd. & Ors. V/s. Rajkumar Chuchra.  In the said case the Complainant had developed heart problem and ultimately he underwent CABG on 10/02/2003.  Though he had incurred expenses of Rs.2,35,000/- on treatment but amount of Rs.1,50,000/- being amount of policy, only was claimed. The claim was repudiated by the Opposite Party on the ground that Complainant was suffering from long standing diabetes mellitus which he did not disclose at the time of purchase of policy.  It was not in dispute that no evidence was adduced by the Opposite Party in regard to Complainant having received treatment for diabetes mellitus or he being aware of suffering from that disease before purchase of medical policy.  In this background and evidence the Forum had passed the award.

            In the present case there is sufficient evidence on record to show that father of Complainant No.2 was suffering from abdominal pain and was patient of K/C/O diabetic and also a chronic alcoholic.  In the above cited case there was no evidence about diabetic mellitus of Complainant hence, the citation relied by the Complainants is not helpful to them.

12)      Shri. A.M. Mascarenhas, representative of the Complainants has also relied on the judgment delivered by the Hon’ble State Commission, Maharashtra, Mumbai in First Appeal No.A/11/415 Mr. Suresh Chunnilal Jani V/s. National Insurance Co. Ltd., decided on 21/11/2011.  In the said case Complainant was admitted in Hinduja Hospital and he was diagnosed with chronic liver disease. The Opposite Party had repudiated the claim of Complainant under the provisions of clause no.4.8 of the policy.  The complaint of said Complainant was dismissed by the District Forum.  The Complainant had approached to the Hon’ble State Commission by filing appeal.  The Hon’ble State Commission observed therein that –

            “It is neither established nor proved by the insurance company that consumption of alcohol is the sole cause of developing ‘cirrhosis of liver’ resulting into  developing ‘congenital external disease’ and thus, action on the part of the insurance company  in  taking  recourse  to  Clause No.4.8  of  the  policy  in  repudiating the claim of the Complainant was arbitrary”      

            In the said case insurance company had not produced any material to establish that the consumption of alcohol was the sole cause of developing cirrhosis of liver resulting into developing ‘congenital external disease’. In the present case Complainants themselves have produced discharge summary/death summary issued by Punamiya Hospital, Dadar (W), Mumbai at Exh.B, Page No.34 which shows consumption of alcohol is the sole cause of duodenal perforation and due to which multi organ of father of Complainant No.2 becomes failure.  Hence, the citation relied by the Complainants is not helpful to them.

13)      The Complainants have submitted a certificate at Exh.D page no.41 issued by Dr. Adwait A. Patil, on 06/09/2010.  Dr. Adwait A. Patil has mentioned in the said certificate that Pradeep S. Wanrankar was admitted under his care in Punamiya Hospital and expired on 12/08/2010.  Mr. Pradeep was suffering from acute sepsis following duodenal perforation. Though he was intervening heartly taking alcoholic drink.  The cause of duodenal ulcer need not be alcoholic drink.  Dr. Adwait A. Patil has issued certificate Exh.D to the contrary of discharge summary/death summary Exh.B issued by Punamiya Hospital. Under these circumstances it was necessary on the part of Complainants to submit affidavit of evidence of Dr. Adwait A. Patil. The Complainants have not submitted affidavit of evidence of Dr. Adwait A. Patil in support of the contention of certificate Exh.D.  It appears Dr. Adwait A. Patil has issued certificate Exh.D after thought and after death of Pradeep S. Warankar. The certificate Exh.D produced by the Complainants cannot be relied for the above reasons.

14)      Complainant No.2 has deposed in his affidavit of evidence that he downloaded from internet the medical literature. As per literature UK/health/duodenal ulcer.htm the cause of duodenal ulcer is mainly due to Infection by bacteria Helicobacter pylori or use of ant inflammatory medicines including aspirin while ‘smoking, stress and drinking heavily may possibly increase the risk of having a duodenal ulcer’.  As per the discharge/death summary Exh.B issued by Punamiya Hospital and the certificate issued by Dr. Adwait A. Patil Exh.D, deceased Pradeep S. Warankar was suffering from duodenal perforation and not from duodenal ulcer therefore, medical literature relied by the Complainants cannot be accepted. The certificate issued by Punamiya Hospital clearly goes to show that Mr. Pradeep S. Warankar was suffering from duodenal perforation and he was patient of K/C/O diabetic and also a chronic alcoholic. Hence the case of the Complainants comes under the exclusion clause no.4.4.6 of the policy in question.  The evidence available on record does not prove that Opposite Parties have adopted unfair trade practice and rendered deficiency in service to the Complainants, therefore, the Complainants are not entitled to the reliefs claimed by them. 

            In the result complaint deserves to be dismissed.  Considering the nature of complaint both parties have to bear their own cost.  In the result we proceeds to pass following order –

O R D E R

i.        Complaint No.112/2012 is dismissed.

            ii.        Both parties shall bear their own cost.

           iii.        Certified copies of this order be furnished to the parties.