BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE
Dated this the 14th August 2009
COMPLAINT NO.53/2009
(Admitted on 5.3.2009)
PRESENT: 1. Smt. Asha Shetty, B.A. L.L.B., President
2.Sri. K. Ramachandra, Member
BETWEEN:
Smt.Alimamma,
Wo Abdul Ali,
Aged about 48, years,
Ra. D.No.19 89 53 24,
K.S.R.Nagar, Mulki,
Mangalore 574 154. …….. COMPLAINANT
(Advocate for Complainant: Sri.K.B.Arasa)
VERSUS
The Senior Divisional Manager,
The National Insurance Co. Ltd.,
Rasik Chambers,
Opp. Central Market,
Mangalore 575 001. ……. OPPOSITE PARTY
(Advocate for Opposite Party:Sri.P.Janakiram.)
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY,:
1. The facts of the complaint in brief are as follows:
This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite Party claiming certain reliefs.
The Complainant is covered under the Universal Health Insurance Policy bearing No.604300/48/07/8500001975 for a sum of Rs.30,000/- the said policy is valid from 19/02/2008 to 18/02/2009.
It is submitted that on 2.4.2008, the Complainant was admitted at Mulki Nursing Home with a complaint of fever, Gastritis and chest pain. The doctor who treated the Complainant has asked her to admit as inpatient, the Complainant was admitted on 2.4.2008 and was discharged on 3.4.2008. The Complainant submits that she has spent a sum of Rs.2,375/- for the treatment, thereafter she has submitted the claim form with the original bills and the medical certificates. The Opposite Party vide their letter dated 10.6.2008 repudiated the claim on the ground that the viral fever, acute gastritis and IHD are pre-existing diseases. It is submitted that the repudiation of the Opposite Party is not legal and hence it is contended that the service rendered by the Opposite Party amounts to deficiency and hence the Complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Parties to pay a sum of Rs.2,375/- with interest at 12% per annum from 3.4.2008 and further claimed compensation and cost of the proceedings.
2. Version notice served to the Opposite Parties by RPAD. Opposite Party company appeared through their counsel filed version admitted the policy and it is contended that on a scrutiny of papers and the medical certificate given by the attending doctor it was revealed that the Complainant has been treated for viral fever, acute gastritis and IHD. It is submitted that the above disease is a common knowledge that Ischemic Heart disease (IHD) is chronic condition of the heart disease which cannot develop over 1½ months. The medi-claim policy incepts from 18.2.2008 and the Complainant admitted on 2.4.2008 within 1½ months, the Complainant had pre-existing disease but she had not disclosed in the schedule submitted to the Opposite Party and hence it is contended that the claim of the Complainant is excluded under clause No.4.1 of the Mediclaim Insurance Policy and also denied the expenditure spent by the Complainant and submitted that the alleged treatment was for less than 24 hours. The said treatment could have been taken on OPD basis and hospitalization was not required and contended that the Complainant is not a consumer and there is no consumer dispute and there is no deficiency 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 Party has committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint Smt.Alimamma (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex.C1 to C9 were marked for the Complainant as listed in the annexure. One Smt.Shyamala Bhat, Administrative officer (RW-1) filed counter affidavit and answered the interrogatories served on him. Ex R1 to R11 were marked for the Opposite Party as listed in the annexure. Both the parties have filed Written Notes of arguments.
We have heard arguments, perused the pleadings, documents and evidence placed on record. We answer the points are as follows:
Point No.(i): Affirmative
Point No.(ii) & (iii): As per the final order.
REASONS
5. Points No. (i) to (iii):
In the present case, the facts which are not in dispute are that, the Complainant is covered under Universal Health Insurance Policy bearing Policy No.604300/48/07/8500001925, the said policy is valid from 19.2.2008 to 18.2.2009. The total sum insured is Rs.30,000/-.
Now the case of the Complainant is that, on 2.4.2008, the Complainant was admitted at Mulki Nursing Home with a complaint on fever, gastritis and chest pain. The doctor who treated the complainant had asked to admit as inpatient and treated for the fever, gastritis and discharged on 3.4.2008. The Complainant contended that she has spent Rs.2,375/- but the Opposite Party company repudiated the claim on the ground of viral fever, acute gastritis and IHD (Ischemic Heart disease) are pre-existing. It is contended that, the Complainant has not taken any special treatment for the above disease and submitted that the repudiation is not just and valid.
On the contrary, the Opposite Party taken a defence that the Complainant was hospitalized and treated for viral fever, acute gastritis and IHD (Ischemic Heart disease). The Ischemic Heart disease is chronic condition of the heart disease which cannot develop over 1½ months. The medi-claim policy incepts from 18.2.2008 and the insured has been admitted in Mulki Nursing Home for IHD on 2.4.2008 within 1½ months of the commencement of the policy which was pre-existing disease which she had not disclosed in the schedule submitted to the Opposite Party at the time of taking the policy. Hence it is contended that the company is not liable.
Now the point for consideration is that, before discussing the point on merits it is worthwhile to reproduce the exclusion clause i.e. 4.1 under the Medi Claim Insurance Policy which reads thus:
“The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any person in connection with or in respect of all diseases/injuries which are pre-existing when the cover incepts for the first time”.
From the above clause it is very clear that if the Opposite Party Company proves that the claim of the Complainant falls within the purview of the above exclusion clause then definitely the Complainant is not entitled for any claim under the policy.
In order to substantiate the case of the Opposite Party, the Opposite Party filed affidavit and produced Ex R1 to R11.
In our opinion, no doubt the non disclosure of the fact that the diseased was suffering from fever or diabetes, blood pleasure, we can say the simple disease like curing within short period is not material matter. As laid down by the Hon’ble Supreme Court, it is not suppression of the fact which is sufficient to attract 2nd para of Section 45 of the Insurance Act but what is requires is that such suppression should be fraudulently made by the policy holder. The expression ‘fraudulently’ connotes deliberate and intentional falsehood or suppression. Some strong material is required before concluding that the policy holder had played a fraud on the Company. The terms of the policy makes it clear that the averments made as to the state of health of the insured in the proposal form and the personal statement were the basis of the contract between the parties. In the given case undisputedly the Complainant admitted to the hospital for treatment at Mulki Nursing Home on 2.4.2008. However, we have gone through the discharge summary i.e. Ex.R8 and other documents produced by the Opposite Party as well as the Complainant. The history of the patient discloses that Complainant came with the H/o chest pain, fever and vomiting it has been diagnosed as viral fever, acute gastritis and IHD. There is no record/evidence to show that the Complainant undergone treatment for the above disease before obtaining the policy, in other words there is no evidence on record to show that the Complainant had ever taken any treatment for the alleged disease prior to her examination in Mulki Nursing Home. A person might be suffering a disease but he/she may not take care of that and go to a doctor. Quite often a person, who might be having some problem with the heart may not be knowing about it and may not go to a doctor. The question always which has to be determined, is, was the pre-existing disease to the knowledge of the insured. This knowledge can be attributed if the person takes some or the other treatment from a doctor/hospital. A person might be having heart problem may not be knowing about it till he gets it tested. There is no evidence that the Complainant knew about the disease at the time of taking of the insurance policy. In the present case, admittedly the Complainant suffered fever and acute gastritis and IHD. The Opposite Party Company could have examined the treated doctor where she has undergone the treatment for the above disease, because the treated doctor is the best witness to say whether she had pre-existing disease or not. In the instant case, the Complainant never been treated, hospitalized, under gone treatment for any disease nor she had taken treatment for IHD. The consumer being a layman, not supposed to know medical terminology of disease for which he/she has never been treated, hospitalized, undergone operation. The day to day problem which are normal wear and tear of human life, not diseases, not required to be referred in proposal form. Even in the given case, the disease treated by the doctor to the Complainant is not proved to be a pre-existing disease and the Opposite Party failed to prove that the such disease should not only be existing at the time of taking the policy and also should have existed in the near proximity. If the insured had been hospitalized or treated upon for the said disease in the near past, say, six months or a year he/she is supposed to disclose the said facts. But in the given case it is not such type of case the Opposite Party Company miserably failed to prove the exclusion clause and also failed to show before the Fora that the claim of the Complainant is falls within the purview of exclusion clause.
The discharge summary produced by the parties shows that the Complainant admitted on 2.4.2008 and discharged on 3.4.2008 hence the contention that the treatment was for less than 24 hours is not accepted.
In this connection we would refer the judgment rendered by Delhi State Consumer Disputes Rdressal Commission, New Delhi: III (2005) CPJ 205; in Tirath Dass versus New India Assurance Company Ltd., dealing with the similar contention. The Hon’ble State Commission held that –
Consumer Protection Act, 1986 – Section 2(1)(g) – Insurance – Mediclaim policy – Repudiation of claim – contention, insured suffering from ailment for last two years – complaint dismissed by Forum – Hence appeal – Disease involved gradual de-generating process and was continuing for about two years prior to actual admission in hospital – Process was so slow and gradual that no ordinary person was supposed or expected to know about the nature of disease – Complainant was not supposed to disclose such problem for which he never hospitalized or operated upon – Opposite Party also negligent in not getting medical check up of insured before issuing policy, liable under policy – Order of Forum set aside.
[Paras 6, 7 and 9]
In another case the Delhi State Consumer Disputes Redressal Commission, New Delhi: III (2009) CPJ 51; in Life Insurance Corporation of India and Another versus Arati Chatterjee held that –
(i) Consumer Protection Act, 1986 – Section 15 – Life Insurance – Suppression of material facts – Death due to cardiac arrest – Claim repudiated – Contention, deceased suffering from diabetes mellitus at time of taking of policy, not disclosed – Contention not acceptable – Unless a person hospitalized/ undergone operation/admitted for treatment for particular disease in rear proximity of obtaining policy, not supposed to disclose about day-to-day problem – Complaint allowed by Forum – Order upheld in appeal.
[Paras 4, 5 and 6]
Further in a case National Consumer Disputes Redressal Commission, New Delhi: III (2009) CPJ 6 (NC); in New India Assurance Company Limited versus Arun Krishan Puri held that:
Consumer Protection Act, 1986 – Section 2(1)(g) and 14(1)(d) – Insurance – Mediclaim policy – Insured operated for coronary heart by-pass surgery – Reimbursement claim denied by insurer – Contention, pre-existing disease suppressed by insured – Onus to prove pre-existing disease at time of taking of policy lies on insurer – Except investigator’s report, no evidence produced in support of concealment of pre-existing disease – Complaint allowed by Forum – Order upheld in appeal – Hence revision - In absence of verification of discharge summary by doctor who treated/issued discharge summary, no reliance can be placed on it – Orders of lower Fora upheld.
[Paras 4, 5]
Similarly, in the present case there is no evidence produced in support that the Complainant knew about the disease at the time of obtaining the policy.
In view of the above discussion we are of the considered opinion that the Opposite Party Company has no justification to say the disease suffered by the insured pre-existed prior to commencement of the policy. Therefore the repudiation made by the National Insurance Company amounts to arbitrary and not justifiable.
The compensation is concerned, it is pertinent to note that the claim of the Complainant is only Rs.2,373/- for the so meager amount the National Insurance Company repudiated the claim that itself shows the officials concerned are not bothered to consider the claim positively. By considering the above facts and circumstances of the case, we hereby direct the Opposite Party Company to pay Rs.2,375/- and also pay Rs.5,000/- as compensation for inconvenience and harassment and further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. The Opposite Party Company is hereby directed to pay a sum of Rs.2,375/- (Rupees Two thousand three hundred seventy five only) to the Complainant and further Rs.5,000/-(Rupees Five thousand only) as compensation and Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
(Dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 14th day of August 2009.)
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SRI. K.RAMACHANDRA)
APPENDIX
Witnesses examined on behalf of the Complainant:
CW1 – Smt.Alimamma.
Documents marked on behalf of the Complainant:
Doc.No.1 – 3.4.2008: Copy of the Discharge Summary.
Doc.No.2 – 3.4.2008: Copy of the details of medicine.
Doc.No.3 – 3.4.2008: Copy of the details of investigation.
Doc.No.4 – 3.4.2008: Copy of the Certificate.
Doc.No.5 – 3.4.2008: Copy of the Bill for Rs.2,375/-
Doc.No.6 – Copy of the Claim Intimation Form.
Doc.No.7 – 10.6.2008: Copy of the Reply.
Doc.No.8 – 20.8.2008: Office copy of the Lawyer’s Notice.
Doc.No.9 – 22.8.2008: Postal Acknowledgement.
Witnesses examined on behalf of the Opposite Party:
RW-1: Smt.Shyamala Bhat, Administrative officer.
Documents marked on behalf of the Opposite Party:
Ex R1 – 19.2.2008 : Insurance policy with terms and
conditions bearing No.604300/48/07/8500001925
effective for the period 19.2.2008 to 18.2.2009 in
favour of Mrs. Zarina.
Ex R2 – 18.2.2008 : Proposal Form.
Ex R3 – Claim Intimation Form.
Ex R4 – 30.4.2008 : Insurance Claim Form.
Ex R5 – 3.4.2008 :Cash bill for Rs.2,375/- from Mulki N.H.
Ex R6 – 3.4.2008 : Receipt of Dr.M.A.R.Kudva.
Ex R7 – 3.4.2008 : Receipt of Dr.Sunil Kumar.
Ex R8 – 3.4.2008 : Discharge Summary.
Ex R9 – 3.4.2009 : Details of medicine for Rs.845/-.
Ex R10 – 3.4.2008 : Details of investigation for Rs.830/-
Ex R11 – 3.4.2008 : Certificate of Dr.M.A.R.Kudva.
Dated: 14/8/2009 PRESIDENT
