BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri K.V.H. Prasad, B.A., LL.B., President
Smt C.Preethi, M.A., LL.B., Member
Sri R.Ramachandra Reddy, B. Com., LL.B., Member
Tuesday the 18th day of April, 2006.
C.D. No.100/2005
Dr.C.Bala Ranga Rao,
H.No.11-67, Krishna Nagar,
Kurnool. . . . Complainant
-Vs-
1.The Senior Divisional Manager,
United India Insurance Company Ltd.,
Divisional Office, 206 and 207,
2nd Floor, Saptagiri Towers,
Begumpet, Hyderabad.
2.The Divisional Manager,
United India Insurance Company Ltd.,
Ravi Prakash Buildings,
Near SBI Main Branch,
Kurnool. . . . Opposite parties
This complaint coming on this day for Orders in the presence of Sri M.Sivaji Rao, Advocate, Kurnool for complainant and Smt.C.M.K. Ranjani, Advocate, Kurnool for opposite parties No.1 and 2, and stood over for consideration, till this day, the Forum made the following.
O R D E R
(As per Sri.K.V.H.Prasad, Hon’ble President)
1. This case of the complainant is filed under Section 11 and 12 of C.P. Act, 1986 seeking direction on the opposite parties to pay him policy amount of Rs.1,50,000/- with 24% interest from the date of renal transplantation i.e. 22-10-2003, Rs.25,000/- as compensation for suffered mental agony and Rs.10,000/- towards costs alleging that the complainant as Professor of Kurnool Medical College is a member of Indian Medical Association which to safeguard the interest of its members and to meat the medical expenditure of them insured with United India Insurance Company and the complainant as beneficiary of Indian Medical Association obtained a Medi claim policy in the month of August 2002 from the opposite party under Special Trailor Made Group for an assured sum of Rs.1,50,000/- per year for a period of 5 years i.e. from 21-8-2002 to 30-6-2007 vide policy No.052000/48/02/00065 and the certificate No.2977 covering the risk of various diseases including Kidney failure and Renal Transplantation and reimbursement of medical expenditure incurred to the extent of Rs.1.5 lakhs and in October 2003 he suddenly fallen sick and on 22-2-2003 underwent renal transplantation in Mahaveer Hospital and Research Centre, Hyderabad expending 2,54,032/- and preferred a claim on 24-12-2003 for assured amount and it was repudiated by the opposite party No.1 vide its letter dated 6-2-2004 without any justifiable cause and did not respond to the legal notice dated 3-2-2005 of the complainant and the conduct of the opposite party is amounting to deficiency in service on its part towards the complainant.
2. In pursuance of the receipt of the notice of this Forum as to this case of the complainant the opposite party No.1 and 2 caused their appearance to their counsel and filed their written version denying their liability to the claim of the complainant to seeking dismissal of the complainant’s case with costs.
3. The opposite party No.1 in its written version, even though admit the complainant has policy holder and submission of claim by the complainant for the incurred expenditure for having treatment in undergoing renal transplantation on 22-10-2003 but allege as the claim was within 12 months of obtained policy one S.B.Venkatachary was appointed as investigator and later has submitted its report on 5-1-2004
and basing on said report as the present treatment of the complainant as was felt as a sequal of his ailments of diabetes myllitus since last 20 years and hyper tension since last 5 years and on regular follow up of End Stage Renal Disease (ESRD) since June 2003 and the complainants admission as in patient in Nizams Institute of Medical Science on 26-9-2003 on worsening symptoms of Urema and long history of renal failure and on meditation since past 6 months for hyper tension and the case sheet No.14414 with registration No.6316 takes mention of diabetic neuropathy and diabetic myllitus since last 20 years and on regular Hemo dialysis since one month and the deliberate suppression of with the long standing diseases in the proposal and the time of obtaining the policy with an intention to defraud the insurance company and this case of the complainant falls under exclusion clauses No.4, 4.0, 4.1 and 5.8 and they do not cover the expenditure incurred by the complainant and repudiation of claim made on 6-2-2004 on the base of report of the investigator and two medical experts opinion, was proper and such a conduct of the opposite party doesn’t amount to any deficiency in service and the claim is misconceived being in suppression of the material as to be pre existing disease of the complainant and in utter breach of “ Uberrima Fides” and the terms and conditions of the policy have to be given strict interpretation for deciding the liability of the insurer.
4. The written version of the opposite party No.2 seeks dismissal of the complaint with costs as the policy in question was neither issued by it nor any basis was mentioned in complaint to infead this opposite party nor any cause of action or deficiency in service was alleged against this opposite party.
5. In substantiation of the contentions while the complaints side has taken reliance on documentary record in Ex.A1 to A7 besides to the sworn affidavit of the compliant and third party and replies to interrogatories caused, the opposite party side has taken reliance on documentary record in Ex.B1 to B8 and sworn affidavit of the opposite party No.1 and 2 and interrogatories of replies and Commissioner’s report and the evidence of RW1 recorded by said Commissioner.
6. Hence the point for consideration whether the complainant has made out in it deficiency of service on the part of the opposite parties and there by their liability to may good of the claim of the complainant.
7. As the opposite parties admits the complainant has policy holder and his setting of the claim for treatment undergone at Mahgaveer Hospital and its repudiation on 6-2-2004, the Ex.A1 to A3 – attested copy of the certificate of insurance policy, attested copy of discharge summary of Mahaveer hospital and repudiation letter dated 6-2-2004- does need any further appreciation than what they stand for. In the same way there being no denial by the opposite parties as to the legal notice dated 3-2-2005 and its receipt by them, the Ex.A4 to A6 – the said legal notice and its acknowledgement receipts by opposite party – does need any further appreciation than what they stand for. There being no denial from the opposite party side and in the complainant’s under going treatment at Mahaveer hospital, Hyderabad the Ex.A7 – bunch of 50 medical bills does need any further appreciation than what they stand for.
8. Now coming to the documentary record in Ex.B1. It is concerning to the terms and conditions of the policy which the complainant has obtained. The terms and condition No.4 of Ex.B1 deals with the exclusions wherein the company shall not be liable to make any payment under this policy in respect of expenses of what so ever incurred by any insured person in connection with or in respect of such disease which is existing at the time of proposing this insurance and the complications arising from pre existing disease irrespective of the fact of its knowledge or not to the insured.
9. The record in Ex.B3 is the investigation report of S.B.Venkatachary investigator of insurance company. It not only says of the treatment of the complainant undergone in Nizam Institute of Medical Sciences on admission on 26-9-2003 with worsening symptoms of Uremia and history of renal failure and End Stage Renal Disease (ESRD) in June 2003 and regular follow up, but also the extract of renal transplant record of complainant at Mahaveer hospital, Masab tank road, Hyderabad wherein the history of diabetes of last 12 years and hyper tension since 5 years was taken mention and a diagnosis of diabetes nephropathy – End stage renal disease and under going regular hymo dialysis since September 2003 and patient having azotemic symptoms. As per the Ex.B4 issued by Dr. B.Sudhakar M.D., B.N.B (Neph) consultant Nephrologists of Yasoda Super Specialty Hospital, Hyderabad, the diabetic nephropathy is a complication of diabetes mellitus and the complainant is a known case of diabetic for last 20 years and this complication as result of said long standing diabetes. The report of Dr.M.Sreedhar in Ex.B5 also says the complainant has known case of diabetes myllitus since last 20 years and on treatment and the renal transplantation was taken up due to diabetic nephropathy – a disease of the kidney due to diabetics a pre existing disease. The evidence of Dr.Saharia (RW1) examined on commission says the complainant as a known diabetic myllitus since last 20 years and the end stage renal disease was due to diabetic nephropathy and his evidence is consistent to Ex.B8 and B6. Nothing much to discredit the material in Ex.B4 and B5 and the evidence of said Dr.Saharia comes forth from the complainant side except a mere hypothical and generalize suggestion to the said doctor that all diabetics do not develop kidney failure, which doesn’t come to the rescue of the complainant in the light of the ample evidence of said doctor and findings of Ex.B4 and B5 which are crystal clear to the long standing suffering of the complainant if the diabetes myllitus which leads to diabetic nephropathy and ultimately to end stage of renal disease.
10. The perusal of Ex.B2 - the proposal of the complainant while applying for the said special trailor made health care policy for doctors of Indian Medial Association of A.P. State Unit – indicates that the complainant has not disclosed of any of his pre existing diseases none the less of the diabetes in the said declaration signed on 7-8-2002 by answering in negative as to his any disease or illness with which he suffered. In the absence of any cogent or reliable text book authority to the effect that the kind of the complication the complainant suffered and underwent treatment, will develop all of a sudden without any adverse antecedents medical background just as cold, virus fever or allergy, the conduct of the complainant in not disclosing in Ex.B2 proposal as to his existing diabetes certainly amounts to the suppression of the relevant material as to his health and existing disease. In the light of the above circumstances which are envisaging the complainants long standing suffering with diabetes by the time of said declaration and its suppression by the complainant in answer to the relevant question put in Sl.No.6 of the Ex.B2 in answering negatively to that the complainant is remaining guilty of suppression of his past medical history as to the diseases or illness with which he was suffering and there by breaching the principle of “Uberrimma Fides” which obligates disclosing of every fact of materiality on which this contract of insurance arises covering the risk of the insured. The case of the complaint is falling with the scope of exclusions mentioned in Sl.No.4 of the terms and conditions of said policy mentioned in Ex.B1.
11. The opposite party No.1 as has repudiated the claim of the complainant basing on the cogent material the Ex.B3 to B8 are providing as to the long stand diabetic myllitus and diabetic nephropathy of the complainant leaving to end stage renal disease – there appears any error or improperness amounting to defiance in service on the part of the opposite party in such repudiation as the deficiency in service cannot be alleged without attributing fault imperfection, short coming or inadequacy in quality nature and manner of performance which is required to be performed by the person in pursuance of a contract or otherwise in relation to any service and so the burden of proving the said deficiency in service is upon the person who alleges it and in this case the complainant utterly failed in discharging of said burden.
12. In the absence of any deficiency in service the aggrieved person may have a remedy under common law to file a suit for damages but cannot insist for grant of relief under C.P. Act, for the alleged acts of commission and omission attributed to the respondent which otherwise do not amount to deficiency in service.
13. Further from the material in Ex.B3 to B8 and the evidence of Dr.Saharia and the replies of the opposite party No.1, its investigator, Dr.B.Sudhakar and Dr.M.Sashidar to the interrogatories of the complainant and from the conduct of the opposite party in taking into them into consideration for repudiating the claim of the complainant - the opposite party insurance company appears to have taken all precautions in consideration of all relevant factors and so its decision in repudiation appears in all circumstances as one in good faith and hence the opposite party No.1 cannot be said as committed any deficiency in service to the complainant in repudiating the said claim of the complainant.
14. As no deficiency in service on the part of the opposite party No.1 is made out for the complainant in said repudiation of the claim of the complainant there appears any liability of the opposite party No.1 to the claim of the complainant.
15. There being any cogent material constituting any cause of action against the opposite party No.2 are its liability to the claim of the complainant no case survives on the opposite party No.1.
16. Consequently, the case of the complainant against opposite parties No.1 and 2 being devoid of merit and force is dismissed with costs.
Dictated to the Stenographer, transcriber by him corrected and pronounced by us in the open Forum, this the 18th day of April, 2006.
PRESIDENT
MEMBER MEMBER
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant: Nil For the opposite parties:
RW1- Dr.Saharia
Exhibits Marked for the complainant:
Ex.A1 Attested copy of Certificate of Insurance policy.
Ex.A2 Attested copy of Discharge Summary of Mahaveer Hospital.
Ex.A3 Repudiation letter, Dt.6-2-2004 by opposite party No.1 to complainant
Ex.A4 Legal notice, Dt.3-2-2005 of complainant counsel to opposite parties No.1
and No.2.
Ex.A5 Postal Acknowledgement
Ex.A6 Postal Acknowledgement
Ex.A7 Attested medical bills (Bunch in number 50)
Exhibits Marked for the opposite parties:
Ex.B1 Xerox copy of policy terms and conditions (policy
No.052000/48/02/00065 policy period 01-7-2002 to 30-6-2007)
Ex.B2 Proposal for Special Trailor Made Health Care policy for Doctors of I.M.A –
A.P. State Unit.
Ex.B3 Investigation Report.
Ex.B4 Certificate by Dr.B.Sudhakar, M.D.,D.N.B (Neph) Consultant
Nephrologists.
Ex.B5 Certificate by Dr.M.Shashidar, M.B.B.S.
Ex.B6 Receipt Record (1 to 14 pages) of S.B.Venkatachary, Investigator
Ex.B7 Inpatient Record of Nizam’s Institute of Medical Sciences, Hyderabad (1 to
38 pages)
Ex.B8 Renal Transplant Record & Receipt Record.
PRESIDENT
MEMBER MEMBER
Copy to:-
1. Sri. M.Sivaji Rao, Advocate, Kurnool
2. Smt.C.M.K.Ranjani, Advocate, Kurnool
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties:
