O R D E R

Sri. George Baby (President):

This complaint is filed Under Section 12 of the Consumer Protection Act 1986 by the complainant for getting the reliefsfrom the opposite parties.

2. The case of the complainant in brief as follows:- The complainant had availed a family Medi-claim policy from the opposite party, United India Insurance Company from 06/02/2015 onwards on payment of premium of Rs. 16,508/- and the Policy No. was 1017002817 P 117364521.  The complainant and his wife are the insured persons and the coverage of the policy is Rs. 2 lakhs.  The complainant had paid the premium of the policy without any default from 06/02/2015 onwards.   The complainant wife Annamma John had underwent an operation at SP Fort Hospital, Thrivananthapuram on 04/05/2018 for “Osteo Arthritis” and she had discharged from the hospital on 12/05//2018.  The complainant had incurred an expense of Rs. 6,00,011/- for the treatment.  The complainant properly placed a claim before opposite parties for the cashless treatment facility, but on 03/05/2018 the opposite parties were rejected such facility to the complainant on the ground of exclusion clause noted in clause 4.1 of the policy.  Therefore the complainant had issued legal notice on 27/06/2018 to the opposite parties claiming the insurance cover of Rs. 2,00,000/-.  The opposite parties not paid the amount instead they sent a reply notice on 04/07/2018.  Accordingly to the complainant the non-payment of insured amount is clear deficiency in service and he is liable to realize Rs. 2,00,000/- from the opposite parties.  Hence this complaint.
3. The commission entertained the complainant and issued notice to the opposite parties for their appearance. All the opposite parties were appeared through their counsel and filed the version adopting the following contentions.  The complaint is not maintainable either in law or on facts.  The issuance of the policy its validity etc are admitted.  The admission of the complainant’s wife to SP Fort Hospital and subsequent claim of Rs. 2,00,000/- by the complainant is also admitted.  The opposite parties conducted that the claim was rejected on the ground that the insured has pre-existing disease while effecting the policy.  As per condition No. 4 and 4.1 of the policy.  “Any pre-existing condition (s) as defined in the policy until 48 months of continues coverage of such insured person have elapsed since inception of first policy as mentioned in the schedule attached to the policy have been excluded.  The disease of Osteo Arthritis will require surgery only after prolonged treatment.  Cashless treatment facility also denied on the ground of pre-existing disease of the insured.  The complainant is not entitled for the policy benefits.  The opposite parties have not committed any deficiency in service.  The opposite parties prayed for the dismissed of the complaint with their cost. 
4. We perused the complaint, version and framed the following issues for determination.

1. Whether the opposite parties had proved the pre-existing disease of the insured?   
2. Whether the opposite parties had committed any deficiency in service?
3. Whether the complainant is entitled to get any reliefs? If so at what quantum?

For evidence the complainant had filed his proof affidavit in lieu of his chief examination and examined him as PW1.  Exhibit A1 to A7 were marked through PW1.Ext. A1 is the true copy of policy documents valid from 05/03/2018 to 04/03/2019.  Ext. A2 is the receipts of the policy premium.  Ext. A3 is the copy of discharge summary. Ext. A4 is the copy of the bill. Ext. A5 is the authorization letter dated: 03/05/2018.  Ext. A6 is the copy of the notice sent to the opposite party through the lawyer. Ext. A7 is the true copy of the policy documents valid from 06/02/2015 to 05/02/2016. One Mr. Mahesh Jayan, Administrative Officer of the opposite parties was examined from the side of opposite parties as DW1.  Exhibit B1 to B4 were marked through him.  Ext. B1 is the policy document valid from 05/03/2018 to 04/03/2019.  Ext. B2 is the policy document valid from the 06/02/2016 to 05/02/2017.  Ext. B3 is the policy document valid from 07/02/2017 to 06/02/2018.  Ext. B4 is the policy document valid from the 06/02/2015 to 05/02/2016.  Certain portions in B1 has been respectively marked B1(a) and B1(b) through DW1.  After the closure of evidence we heard both sides. 

5. Point No. I and 2 :- For sake of convenience and brevity we would like to consider Point No. I and II together.  The specific case of the PW1 is that he had availed a Health Insurance Policy from the opposite parties from 2015 onwards on payment of premiums as directed by the opposite parties.  As per the policy the complainant’s wife also insured and the coverage of the policy is Rs. 2,00,000/-.  The policy in question was numbered 1017002817P 117364521 and the same is valid from 05/03/2018 to 04/03/2019.  These facts were not disputed.  The PW1’s further contention is that while the policy was in force his wife named Mrs. Annama John underwent surgery at SP Fort Hospital for Osteo Arthritis on 03/05/2018 and was discharged on 12/05/2018 PW1 had spent Rs. 6,00,011/- as the treatment expense.  The opposite parties were denied the cashless treatment facility to the complainant’s wife on the mentioned exclusionary clause described in condition 4 and 4.1 of the policy.  After the discharge the PW1 claimedRs. 2,00,000/- to the opposite parties, the amount which he entitled as the maximum expenses of treatment based on the policy.  The opposite parties were not paid the said amount to PW1 on the noted ground the complainant’s wife was suffering with Osteo Arthritis at the time of effecting the policy and hence the said disease is pre-existing one and the opposite parties are not liable to pay any amount based on Exhibit A1 policy.  At the same time PW1’s specific contention is that his wife was perfectly healthy in all means before surgery and she has not suffering from Osteo Arthritis as contended by the opposite parties.  In this context the learned counsel appearing for the complainant argued that in medi-claim policies the burden to prove the pre-existing disease must be heavily on the insurance company.  We are agreeing the said argument.  Here the opposite parties have not produced any cogent evidence to substantiate their contention that the complainant’s wife is suffering with pre-existing disease of ‘Osteo- Arthritis’.  The opposite parties have not produced any independent evidence to prove the existing disease.  Instead they are relying the history of the patient mentioned in Exhibit A3.  How the history of the patient is traced out is not clear from Exhibit A3.  Whether it is on the basis of conversation with the patient or on the basis of any previous treatment etc are not elicited through Exhibit A3.  Such history mentioned in Exhibit A3 that the patient had case of pain knee since 3 years is not sufficient enough to infer that the insured patient was suffering from Osteo-Arthritis.  The opposite parties had not leaded any evidence to prove that the PW1’s wife is suffering with Osteo-Arthritis at the time of effecting the Health Insurance Policy in the year 2015.  The onus is always on the insurer to prove that the policy holder had suppressed a fact which was material to disclose.  The opposite parties did not file any proposal form or any declaration statement to prove suppression of any pre-existing disease.  In the absence of specific evidence by the opposite parties to prove the pre-existing disease of the insured we cannot say that the opposite parties are succeeded their contention.  The opposite parties had not questioned Exhibit A4 bill.  Exhibit A4 is sufficient enough to prove that PW1 had spent Rs. 6,00,011/- for the treatment of insured Annamma John.  The treatment was within the policy period.  It is the duty of the insurance company to analyze a claimat the time of processing with its all vigor and facts.  The denial of claim must be on sound footings.  Here we can see that the opposite parties were rejected the claim of PW1 simply in casual manner and seeking the shelter under the cover of pre-existing disease of the insured.  The pre-existing disease of the insured has not been proved by the opposite parties and subsequent of claim on ground of pre-existing disease amounts to deficiency in service and in the said circumstances.  Point No. I and 2 found in favour of the complainant.
6. Point No. 3:- It is admitted fact that the complainant’s wife is insured under policy No. 1017002817 P 117364521 and her treatment was within the validity of Exhibit A1 Policy.  The claim of the complainant was rejected solely on the ground of pre-existing disease of the insured and that point we already found against the opposite parties.  Our considered view is that as a valid policy holder the complainant is entitled to the policy benefits and Point No.3 also found in favour of complainant. 
7. In the result the complaint is allowed and we pass the following order.

1. The opposite parties are directed to pay Rs. 2,00,000/- (Rupees Two Lakhs only) to the complainant within 30 days from the date of receipt of the order as the treatment expense of the insured Annamma John, of the opposite parties failed to comply the above within the time frame then the ordered amount of Rs. 2,00,000/- (Rupees Two Lakhs only) carry the interest of 10% per annum from the date of order 29/01/2021 onwards till its full realization.

2. The opposite parties are directed to pay an amount of Rs. 10,000/- (Rupees Ten Thousand only) as compensation and cost of Rs. 5,000/- (Rupees Five Thousand only) to the complainant within 30 days from the date of receipt of this order failing which both the amount carry the interest of 10% per annum from the date of order 29/01/2021 onwards till its full realization. 

Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 29^thday ofJanuary, 2021.  

                                                                              (Sd/-)

                                                                                George Baby, (President)

Smt. N. ShajithaBeevi (Member-I)    :  (Sd/-)

Sri.NishadThankappan (Member-II):  (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1:John Thomas

Exhibits marked on the side of the complainant:

A1: True copy of policy documents valid from 05/03/2018 to 04/03/2019.

A2: Receipts of the policy premium.

A3: copy of discharge summary.

A4: copy of the bill.

A5: authorization letter dated: 03/05/2018.

A6: copy of the notice sent to the opposite party through the lawyer.

A7: True copy of the policy documents valid from 06/02/2015 to 05/02/2016. 

Witness examined on the side of the opposite parties:

DW1:MaheshJayan

Exhibits marked on the side of the opposite parties:

B1:True copy of policy certificate valid from 05/03/2018 to 04/03/2019.

B2: True copy of policy certificate valid from  06/02/2016 to 05/02/2017.

B3: True copy of policy certificate valid from 07/02/2017 to 06/02/2018.

B4: True copy of policy certificate valid from 06/02/2015 to 05/02/2016. 

Copy to:- (1) John Thomas,

                  VadakkethundiyilVeedu, Elanthoor P.O.

2.           The Divisional Manager,

The United India Insurance Co. Ltd.,

Divisional Office, Pathanamthitta.

3.  The Divisional Manager,

The United India Insurance Co. Ltd.,

Divisional Office, Pathanamthitta.

4. The Branch Manager,

United India Insurance Co. Ltd.,

Kizhakkedathu Building,

Main Road, Pathanamthitta.

5. The Stock File.