<br /> <br /> By SRI.K. VIJAYAKUMARAN ACHARY, PRESIDENT.<br /> <br /> The complainant is a retired Civil Surgeon. The complainant had taken a Mediclaim Insurance Policy from the opp.party under which the opp.party was liable for reimbursement of the complainant’s hospitalization/domiciliary expenses during the policy period. The policy was originally taken 7.8.2003 which was renewed the policy for the period commencing from 7.8.2004 to the midnight of 6.8.2005 on paying a premium of Rs.4239/-. The said policy was to cover the insured and the members of his family . At the time of joining the insurance the present and past medical history of the insured family were disclosed. On 9.2004 the wife of the complainant was admitted in the Sankers Hospital, Kollam with history of recurrent abdominal pain and swelling. On examination it was found that she had incisional hernia recurrent obstruction and she was advised surgery. After surgery she was discharged on 17.9.2004. They claim for reimbursement or medical expenses and hospitalization charges was filed before the opp.party by the complainant which was rejected on the grounds that they were pre-existing disease which were not disclude. According to the opp.party opp. party incisional hernia is a complication of previous abdominal surgery ie. Hysterectomy done 5 years back. Incisional Hernia can develop in persons undergoing laporatomy and in person undergoing caesarian section in later stages either due to weakness of abdominal wall where the incision was put or due to any causes of increase in intra abdominal pressure or due to weight gaining. The Complainant’s wife did not have any existing ailment at the time of taking the mediclaim policy. The fact that a hysterectomy surgery was done on Complainant’s wife was also informed to the opp.party when the mediclaim policy was applied for originally. The fact that the complainant had hernia was know to her only when she was seen by the Surgeon of the Sankers Hospital, Kollam. Therefore it cannot be said that she was having a pre existing illness. Moreover as per clause 4.3 of the terms of the policy it is evident that expenses on treatment of diseases such as Hysterectomy for Menorrhagia and hernia are to be excluded only during the first year of the operation.. The policy was taken in this case on August 2003 whereas the surgery for hernia was conducted on September 2004. Since there was no claim during the 1st year of operation of the policy a no claim bonus of Rs.5,000/- was also deducted by the opp.party. Thus it is evident that the stand taken by the opp.party is incorrect and their attempt is only to deny the lawful claim of the complainant.. The aforesaid acts of the complainant would amount to deficiency in service. Hence the complaint.<br /> <br /> <br /> The opp.party filed version contending inter alias, that the complainant is not maintainable either in law or on facts. The complainant has not impleaded his wife against whom the claim is preferred as a party to this complaint. The complainant has approached the Forum with unclean hands by suppressing the material facts regarding the case. The definition of complaint , Complainant, Consumer Dispute service as defined in section 2[1] of the Consumer Protection Act do not cover the claim made out in the complaint. The opp.party had issued a mediclaim Insurance Policy to the complainant and his wife wherein the risk of his wife is covered to a sum of Rs.1,05,000/- for a period from 7.8.2004 to 6.8.2005. The above policy was renewal policy it was satisfied in the policy itself that the playability of a claim is specifically mentioned in the policy that is pay ability of any claim arising out of the said claim will be decided by Family Health Plan Ltd, Cochin. If the instant case the claim was repudiated its verifying the genuiness of the claim submitted by the complainant and as such the repudiating authority is also a necessary party to the complaint.. Therefore the complaint is bad for non-jointer of the necessary party. The complainant’s wife had undergone hysterectomy five years back as per the discharge summary issued by the Doctor who treated as the incisional hernia sustained to the complainant’s wife is a complication resulted from the previous abdominal surgery which had considerably weakened the muscular power at the abdominal area. The said complication due to the hysterectomy done to the complainant’s wife was existing even during the inception of the initial medi claim policy and as such the said pre-existing disease is not covered as per exclusion clause 4 [1] of the insurance policy. The incisional hernia cannot happen in a person who was never undergone a surgery Hence the complication referred to above file within the pre existing the exclusion in clause 4 [1] . Therefore the repudiation of the claim is justifiable. As per the exclusion clause 4 [3] of the policy expenses or treatment of diseases such as cataract, benign, prostatic, hypertrophy, hysterectomy for menorrahgia , hernia, hydrocel etc. will not be covered during the 1st year of the operation of the operation of the policy. In the instant case as per the medical report and discharge summary of the treated doctor complainant’s wife suffering from the desease for 6 months duration at the time of her 1st admission at S.S.M. Hospital on 6.9.2004 She deliberately opted to surgical correction only after renewal of the 1st insurance policy that too in the 2nd month itself of the renewal policy period, in order to escape from the exclusion clause 4 [3] of the Insurance policy. The complainant willfully suppressed the existence of the above disease at the time of renewal of the insurance policy . Though the complainant’s wife was suffered in the above disease during the operation period of the 1st policy itself, he purposefully avoided surgical correction of the disease with a malafide intention to bypass the exclusion clause 4[3] of the insurance policy. The insured being a Retired Civil Surgeon who was well aware of the necessity of a further surgery and treatment, had deliberately postponed the surgical correction and treatment, so as to overcome the exclusion period of one year. The exclusion clause No.4.1 of Insurance policy the company shall not be liable to make any payment under the policy in respect of any expenses incurred by the insured which have to be expenses at the time of proposing the insurance. The pre -existing means any injury which existed prior to date of insurance and true existing condition conditions means any sickness or its symptoms as per the exclusion clause the complication from pre-existing condition. There is no deficiency in service on the part of the opp.party. The compensation claimed as against the basic provisions of law. The complainant has no cause of action against this opp.party there is no deficiency in service on the part of the opp.party Hence the opp.party prays to dismiss the complaint .<br /> <br /> Points that would arise for consideration are:<br /> <br /> <br /> [1] Whether there is deficiency in service on the part of the opp.parties<br /> [2] Reliefs and costs.<br /> <br /> For the complainant PW.1 is examined. Ext. P1 to P3 are marked.<br /> <br /> For the opp.party DW.1 is examined. Ext. D1 to D5 are marked.<br /> <br /> <br /> <br /> <br /> Points 1 & 2<br /> <br /> There is no serious dispute that the complainant’s wife had undergone surgery for incisional hernia and the cause for such incisional hernia is the hysterectomy she had undergone 5years back. Exts. D2 the certificate issued by the doctor who treated her and Ext.D3 discharge summary would show that the complainant’s wife was suffering from incisional hernia for six months back to the date of surgery ie. On 6.9.04 and this was revealed to the doctor by the patient herself.<br /> <br /> According to the complainant he become aware of the illness of his wife only when they met the doctor who issued Ext.D2 and that his wife had no illness during the year of operator of the policy. It is contended that the 1st policy was taken in August, 2003 and the surgery was performed in September 2004 and under clause 4[3] of the policy the expenses on treatment of diseases like hysterectomy for Menorrhagia and hernia are to be excluded only during the 1st year of the operation of the policy and therefore the repudiation of claim as per Ext.D5 is lnot proper.<br /> <br /> The learned counsel for the opp.party would argue that the surgery for incisional hernia is an electric surgery and the patient can manage the illness for some time by using special type abdominal bell etc. and the complainant’s wife though suffering from the illness 5 months prior to the expiry of the 1st policy and opted the surgery within one month after the renewal of the policy and accounting to him this will show that the complainant’s wife had illness during the coverage period of the 1st policy and the surgery was opted after renewal of the policy to circumvent policy condition NO.4[3] . there is force in that contention. PW.1 is a retired civil surgeon. It cannot be believed when he says that he became aware of his wife’s illness only when they met the surgeon at the Sankers Hospital. If his wife was suffering from recurring abdominal pain and swelling six months prior to her admission for surgery it cannot be believed that PW.1 who was a civil surgeon was not aware of the nature of her illness. If PW.1 was a layman his argument that he became aware of the illness of his wife only when they met the surgeon would have been believed. It is obvious that PW.1 a civil surgeon was quite aware of the illness and the policy conditions and as argued by the learned counsel for opp.party the complainant had deliberately prolonged the surgery with the intention of realizing the treatment expenses. On a careful consideration of the entire evidence we are of the view that the complainants wife developed illness of the incisional hernia during the operation of the 1st year of the policy and under clause 4 [3] of the policy the complainant is not entitled to get the expenses for treatment under the policy and as such the repudiation as Ext. D5 is only proper. Point found accordingly.<br /> <br /> In the result the complaint is dismissed. No costs.<br /> <br /> Dated this the 31st day of March, 2008<br /> <br /> <br /> I N D E X<br /> <br /> List of witnesses for the complainant<br /> PW.1. – C.P. Gopalakrishnan.<br /> <br /> List of documents for the complainant<br /> P1. – Policy issued by opp.party.<br /> P2. – Treatment records and Bills<br /> P3. – Claim repudiation letter.<br /> <br /> List of witnesses for the Opp.party<br /> DW.1. – G. Leela.<br /> <br /> List of documents for the opp.party <br /> D.1. – Medi claim policy and conditions <br /> D2. - Treatment certificate<br /> D3. – Discharge summary<br /> D4. – Discharge card<br /> D5. – Claim repudiation letter.<br />