Karnataka

Bangalore 4th Additional

CC/13/1423

Mr. Jayashekar S.I Son Of Mr. Javare Gowda. - Complainant(s)

Versus

The Oriental Insurance Company Limited - Opp.Party(s)

16 Apr 2018

ORDER

Complaint filed on: 02.08.2013

                                                      Disposed on: 16.04.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.1423/2013

DATED THIS THE 16^th APRIL OF 2018

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

Mr.Jayashekar.S.I,

S/o Mr.Javare Gowda,

Aged about 26 years,

R/at no.5/2, 1^st Main,

6^th cross, Shrinivagilu, Viveknagar Post,

Bengaluru-47.

 

By Adv.Sri.G.T.Rudramurthy     

 

V/s

Opposite party/s

Respondent/s:-

 

1. The Oriental Insurance co., ltd., No.663, 1^st floor, 1^st Main, Defence Colony, 100 feet road, Indiranagar, 1^st stage, Bengaluru-38.

Rep. by its Manager and Authorized Signatory

 

By Adv.

Sri.H.C.Vrushabhendraiah

 

2. M/s.Raksha TPA Pvt. ltd.,

#25, Ashirwad, 1^st floor,

29^th main, 4^th B block,

2^nd stage, BTM Layout, Bengaluru-76.

Rep. by its Manager and Authorized Signatory

 

Ex-parte

 

 

PRESIDENT: SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainant against the Opposite party no.1 & 2 (herein after referred as Op.no.1 & 2 or Ops) seeking issuance of direction to reimburse a sum of Rs.1,70,000/- towards damages, mental agony. Further direct them to pay Rs.1,50,000/- with interest as compensation and to grant such other reliefs deem fit for which the Complainant is entitled to.

 

          2. The brief facts of the case of the Complainant are that, he is working for a company by name M/s.Outsource 4 Value Com Pvt. ltd., Indiranagar, Bengaluru and the said company provided insurance facility under Group health policies scheme on individual basis which covers their health problem also. Accordingly the employer i.e. the company provided the insurance facility to its employees vide policy no.423100/48/2013/103 (hereinafter referred as the said policy) for the duration of 17.04.12 to 16.04.13 issued by Op.no.1 in coordination with Op.no.2. The sum assured on this policy is Rs.1 lakh. In fact, this policy issued in continuation of the previous policy and which was in force. Accordingly, an Identity card also issued by Op.no.2 in favour of the Complainant. This policy is purchased in continuation of the previous policy, not for the first time by the employer of the Complainant. The Complainant further submits that, their employer company obtained Individual Mediclaim policy issued in favour of the Complainant who is one among them. The policy was in force for the duration of 17.04.12 to 16.04.13 for a sum of assured of Rs.1 lakh and the required receipt is issued by the Op.no.1 in co-ordination with Op.no.2 on every year basis premium since Complainant’s company provided this facility to accomplish with medical insurance in emergency. The Complainant further submits that, on 22.10.12 he was admitted to Hosmat hospital for a sudden intense back pain, hands pain and legs pain since it was heavy and could not be tolerated by the Complainant. After detail checkup, the doctors of Hosmat hospital, it is observed that the pain at right hip joint. Accordingly, Op.no.2 rejected the cashless facility to cover the medical benefit and hence the Complainant paid a sum of Rs.1,70,000/- approx. towards medical bills. After detailed check up by the doctors of Hosmat hospital the Complainant was discharged on 26.10.12 stating that patient is suffering from the said severe pain although it is reduced, with other observations. So far, the Complainant altogether has spent about a sum of Rs.1,70,000/- towards medical bills including incidental expenses and not even a single pie is covered by the insurance policy. The Complainant further submits that, based on the advice of Op.no.2, Complainant immediately applied for insurance claims by way of reimbursement from the office of Ops a sum of Rs.1,70,000/-. Accordingly, on 30.10.12, the Complainant has submitted his insurance claim form along with all the necessary medical bills in original to the office of Op.no.2 at Bengaluru and waiting for his claim settlement from them. After various telephone calls, personal visits to the office of Op.no2 pursuing the insurance claim for Rs.1,70,000/- to his shock and surprise his claim was rejected/repudiated by Op.no.2 stating a reason that “This treatment is not payable by insurance company, hence claim rejected. C/O pain RT hit joint since 3 months, insidious in onset and gradually progressive. AVN B/L femoral head for core decompression with stem cell injection. No other history given.” The Complainant further submits that, he is a regular customer and was paying regular premium every year and the policy covers his medical charges. Even at the time of admitting also he clarified with the concerned persons of Ops, thereafter they declined to provide the insured amount. Ops purposefully knowing well given insurance policy to the Complainant and finally failed to reimburse the claims. The Ops have only collected the premiums, but not ready to settle any claims. In fact, the Ops have issued the said insurance policy for the period from 17.04.13 to 16.04.14 with receipt. Under such circumstances, Ops jointly and severally failed to come forward to settle the insurance claims of the Complainant though the policy was in force. Hence prays to allow the complaint

 

3. Inspite of notice served on Op.no.2, it did not appear, hence placed exparte. On receipt of the notice, Op.no.1 did appear and filed version denying the contents of the complaint except admitting that, it had issued the said policy to the Complainant and the liability is subject to terms & conditions of the policy. And also admitted in respect of availing the treatment by the Complainant in the Hosmat hospital and submitted the claim form for reimbursement of the amount spent towards the medical expenses incurred by him with all relevant documents. The Op further submits that, it has repudiated the claim of the complaint vide letter dt.17.11.12 on the following grounds: C/O pain right hip joint since 3 months, insidious in onset and gradually progressive AVN B/L Femoral head for core decompression with stem cell injection, no other history given, as per exclusion clause 4.15, genetic disorder and stem cell implantation/surgery is not payable. This Op has rightly repudiated the claim of the Complainant, as such there is no deficiency of service to the Complainant by this Op, under these circumstances the complaint deserves to be dismissed. The Op further submits that, as per exclusion clause no.4.15 Complainant is not entitled to get any re-imbursement/compensation from this Op.no. The exclusion clause 4.15 reads as follows: General disorders and stem cell implantation/surgery, as such the complaint is ought to be dismissed. Hence on these grounds and other grounds prays for dismissal of the complaint.

         

          4. The Complainant to substantiate his case filed affidavit evidence and produced 7 documents. The Divisional Manager of Op.no.1 filed affidavit evidence and got marked the documents as Ex-B1 & B2. Both filed written arguments. Heard both side.

  

5. The points that arise for our consideration are:

1. Whether is there any deficiency of service on the part of Ops, if so, whether the Complainant entitled for the relief sought for ?  
2. What order ?

                   

           

 

6.  Our answers to the above points are as under:

 

Point no.1: In the Affirmative.  

Point no.2: As per the final order for the following

 

REASONS

 

          7. Point no.1:  Before embarking on the facts of the case, we would like to place reliance on the following decisions, on which we have disposed the similar type of cases, in respect of, how the claims are repudiated without application of mind.

1. Hon’ble Supreme Court, MANU/SC/0804/ 2000, AIR 2001 SC page 549, in the case of LIC of India & ors., v. Smt.Asha Goel and Anr, wherein at para 16 it is held that: In course of time the corporation has grown in size and at present it is one of the largest public sector financial undertakings. The public in general and crores of policy-holders in particular look forward to prompt and efficient service from the corporation. Therefore the authorities in-charge of management of the affair of the corporation should bear in mind that is credibility and reputation depend on its prompt and efficient service. Therefore, the approach of the corporation in the matter of repudiation of a policy admittedly issued by it should be one of extreme care and caution. It should not be dealt with in a mechanical and routine manner.
2. Hon’ble National Commission,1 (2008) CPJ 501 NC, in the case of National Insurance company ltd., v. Raj Narain, dtd.15.01.2008, wherein at para 7 it is held that: In Revision Petition no.1696/2005, Praveen Datnani v. Oriental Insurance co. ltd., IV (2006) CPJ 189 (NC) this commission has held that:

The District forum also relied on clause 4.1 of the policy which states that it is not material whether the insured had knowledge of disease or not, and even existence of symptoms of the disease prior to effective date of insurance enables the insurance company to disown the liability.

If this interpretation is upheld, the insurance company is not liable to pay any claim, whatsoever, because every person suffers from symptoms of any disease without the knowledge of the same. This policy is not a policy at all, as it is just a contract entered only for the purpose of accepting the premium without the bonafide intention of giving any benefit to the insured under the garb of pre-existing disease. Most of the people are totally unaware of the symptoms of the disease that they suffer and hence they cannot be made liable to suffer because the insurance company relies on their clause 4.1 of the policy in a malafide manner to repudiate all the claims. No claim is payable under the mediclaim policy as every human being is born to die and diseases are perhaps pre-existing in the system totally unknown to him which he is genuinely unaware of them. Hindsight everyone relies much later that he should have known from some symptom. If this is so every person should do medical studies and further not take any insurance policy. Even on the facts on record, there is no material to show that the petitioner had any symptoms like chest pain, etc., prior to 11.08.2000. Since, there were no symptoms, the question of linking up the symptoms with a disease does not arise. In any case, it is the contention of the Complainant that he was thoroughly checked up by the doctors who were nominated by the insurance company and at that time he was found hale and hearty. In such set of circumstances, it would be difficult to arrive at the conclusion that the insured had suppressed the pre-existing disease.

In view of the above discussions and from the records available before us, in our opinion, the Complainant has proved that he was unaware of the disease at the time of taking the policy and hence the complaint is allowed.

3. Hon’ble National Commission (Circuit Bench at Hyderabad) Decision reported in II (2005) CPJ 9 (NC), in the case of Life Insurance Corporation of India Vs. Badri Nageswaramma (deceased) & Ors, where in it is held that: Consumer Protection Act 1986 – Section 21 – Life insurance – Repudiation of claim – Deceased an old T.B patient, having diabetes, not known on date of proposal – burden to prove false representations and suppression of facts on insurer – Doctor’s certificate without affidavit in support no basis for repudiating the claim – No conclusive evidence produced to suggest suppression on part of deceased – company liable under policy.

 

     8. In the light of the decision cited supra, now we proceed to discuss the evidence on record, as to know whether, the Complainant has taken treatment for the “Genetic Disorder and Stem Cell Implantation/Surgery” which is incorporated in the exclusion clause 4.15 of the medical insurance policy issued by Op.no.1. In this context, we placed reliance on the contents of discharge summary issued by Hosmat Hospital on 26.10.12 which is the document no.4, inkpage no.22, wherein the relevant portion reads thus:

Discharge summary

Name:Jayashekar, Age: 26 years, Hosp.No.320855, Ip.no.66742 Date of Admission: 22.10.12, Date of discharge: 26.10.12, Consultant: Dr.Pradeep Kumar

Diagnosis: AVN Bilateral femoral head

Procedure: Coredecompression with stem cell injection on 23.10.12

History: Patient complains of pain right hip joint since 3 months, insidious onset and gradually progressive. Unable to walk for long distance. Also complains mild pain left hip recently.

On examination: Moderately built and nourished, vitals stable, Systemic Examination

Local examination: Tenderness over both hip joints

ROM painful and restricted.

Investigations: Reports enclosed

Hospital Course: Patient got admitted, underwent the above mentioned pre and post-operative stay was uneventful. Discharged with following advice.

Treatment given: procedure as mentioned, appropriate medications, adequate dressing and physiotherapy.

 

9. If the above contents of discharge summary are strictly construed, one thing is clear that, the claim repudiated by Ops by invoking clause no.4.15 of the terms & conditions of the policy marked as Ex-B2 is not acceptable. The Complainant in his complaint, nowhere stated that he has taken the treatment in respect of “Genetic Disorder and Stem Cell Implantation/Surgery”. The treatment taken by the Complainant is with regard to his intense back pain, hands pain and legs pain since it was heavy and could not be tolerated.  To prove with regard to the taking treatment in respect of “Genetic Disorder and Stem Cell Implantation/Surgery” is concerned, no attempt has been made by examining the concerned doctor. It appears that bald allegations have been taken by Op.no.1, just to repudiate the claim of the Complainant by applying dubious methods. In this context, Hon’ble National Commission and Hon’ble Supreme Court repeatedly ruled that, the genuine claims cannot be repudiated by the insurance companies within a mechanical and routine manner. The case on hand is in respect of repudiating the medical claim of the Complainant by non-application of mind by Ops. When such being the fact, in the light of the decisions cited supra, we come to the conclusion that, the claim repudiated by the Ops is illegal as against the settled principle of law laid down by the Hon’ble National Commission as well as Hon’ble Supreme Court. Hence, there is deficiency of service on the part of Ops.

 

10. Op.no.1 has placed reliance on the two decisions which are:

1) I (2014) CPJ 341 (NC) in the case of National Insurance co., ltd., vs. Vinod Puri and another

2) 2005 (9) S.C.C page 174 in the case of Polymat India (p) ltd., and another vs. National Insurance co., ltd.,

 

We place reliance on these 2 decisions. With due regard, the said decisions are not applicable to the present facts and circumstances of the case, since this forum did not touches the Insurance contractual liability and did not interpret the documents of contract. In the instant case, the terms & conditions incorporated under the policy are not disputed by the parties to the lis. If the pre-existing disease has been suppressed and which has been specifically proved by Ops, then the terms & conditions as stated by the Ops are strictly applicable. In the instant case, the reasons assigned by the Ops in repudiating the claim are not inconsonance of the terms & conditions, but it has denied only on imaginary ground that, the Complainant has taken the treatment in respect of “Genetic Disorder and Stem Cell Implantation/Surgery”, but he has taken treatment only for back pain, hand pain and leg pain. When such being the fact, violation of terms & conditions does not arise.

 

          11. Now, the question that crops up for consideration is, to consider the claim of the Complainant. The Complainant in his complaint has stated that, he has paid an amount of Rs.1,70,000/- towards medical bills, which has been admitted by Op.no.1 at para 3 of its version, which reads thus:

 

3. This Op.no.1 submits that, the Complainant was admitted to Hosmat hospital on 22.10.12 c/o pain in right hip joints since 3 months Avascular necrosis of bilateral Femoral head and underwent core decompression with stem cell injection for that he has incurred Rs.1,70,000/- towards medical expenses and incidental expenses he was discharged on 26.10.12. The Complainant has submitted the claim form on 30.12.12 for re-imbursement of the amount spent towards the medical expenses incurred by him and submitted all the relevant documents.

 

12. Since the claim amount of Rs.1,70,000/- being paid by the Complainant, in this context, he has produced relevant documents with medical bills as per document no.3. Hence, we constrained to accept the contention taken by the Complainant for reimbursement of the said amount, as the policy was in force at the time of taking the treatment. With regard to the damages of Rs.1,50,000/- is concerned, we declined to grant that much of amount, but we confined it to only Rs.10,000/- which is to be paid by Ops by way of compensation. With regard to the cost of litigation is concerned, we fix it to Rs.1,000/-. Accordingly we answered the point no.1 in the affirmative.

 

       13. Point no.2: In the result, we passed the following:

 

ORDER

 

          The complaint filed by the Complainant is hereby allowed.  

 

2. Ops are directed to reimburse the medical claim amount of Rs.1,70,000/- and compensation of Rs.10,000/- to the Complainant within six weeks from the date of receipt of this order, failing which, the said amounts carry interest at the rate of 6% p.a. from the date of repudiation till the date of realization.

         

3. Ops are also directed to pay Rs.1,000/- being the cost of litigation to the Complainant.

 

          Supply free copy of this order to both the parties.

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 16^th April 2018).

 

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Sri.Jayashekar.S.I, who being the complainant was examined. 

Copies of Documents produced on behalf of Complainant/s:

 

Doc.no.1	Insurance policy
Doc.no.2	Identity card
Doc.no.3	Medical bills
Doc.no.4	Discharge summary
Doc.no.5	Submission of claims/checklist dtd.30.10.12
Doc.no.6	Repudiation letter dtd.17.11.12
Doc.no.7	Mediclaim policy dtd.16.04.13
Doc.no.8	Receipt dtd.16.04.13

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Sri.N.R.Lakshminarayana, who being the Divisional Manager of Op.no.1 was examined.

 

Copies of Documents produced on behalf of Opposite party no.1

 

Ex-B1	Individual mediclaim policy schedule
Ex-B2	Terms & conditions

 

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT