PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) In brief consumer dispute is as under –
This is the complaint regarding deficiency on the part of Opposite Parties (Opponents) as they repudiated the mediclaim of the Complainant on the grounds of ‘pre-existing disease’ which is not correct as per the Complainant.
2) In this case, the Complainant was a holder of valid mediclaim policy bearing no.020900/48/03/01091 having validity from 26/06/03 to 25/06/04 for Rs.5 Lakhs and a requisite premium was paid to the Opposite Party No.1 who is the Insurance Company. Opposite Party No.2 is the Third Party Administrator (TPA of Opposite Party No.1).
3) During the validity of the above said policy the Complainant was hospitalized for Osteoarthritis (R) Knee and Total Knee Replacement.
4) The Complainant submitted his mediclaim of Rs.4,30,890/- to Opposite Party No.2 but Opposite Party No.2 vide its letter dtd.03/08/04 repudiated the said claim on the ground of pre-existing disease.
5) The Complainant further prayed for reimbursement of his medical expenses, etc.
6) The complaint was admitted. The Opposite Party No.1 appeared through its Advocate. It appears from the record that Opposite Party No.2 has not been served with the notice. Opposite Party No.1 filed its written statement-cum-affidavit wherein it justified the repudiation of the claim of the Complainant and clarified that the mediclaim policy as alleged by the Complainant was issued to the Complainant by Opposite Party No.1. Before issuing the mediclaim policy the discharge card of Bhatia General Hospital (D.O.A. 05/05/2002 & D.O.D.21/05/2002) of Complainant was considered and opinion of Dr.Sunawala was obtained wherein she opined to accept the proposal of mediclaim of Complainant with exclusion of interstitial lung disease with hypertension, D.M., with a vascular neurosis of left hip secondary to Osteoarthritis and left total hip replacement undergone. Policy was issued subject to terms, conditions, exclusions and exceptions stated therein as well as proposal form and report of panel Doctor (Exhibit-‘B’ to written statement).
7) The Complainant was hospitalized and treated for Osteoarthritis Right Knee Replacement (Exhibit-‘C’ to written statement).
8) The Complainant further clarified that the claim of the Complainant was repudiated as per the exclusion clause 4-1 of the mediclaim policy. The Opposite Party No.1 further stated that the repudiation of the claim was also upheld by the Insurance Ombudsman.
9) The Opposite Party No.1 asserted that the Policy was obtained by the Complainant with the knowledge of pre-existence of Osteoarthritis Right Knee which caused operation of Total Knee Replacement. In support of this contention the Opposite Party has produced a discharge card of Bhatia Hospital where it is mentioned that the Complainant was known case of ILD (Interstitial Lung Disorder) with Hyper Tension (HTN) with Diabetes Millitus (DM), with AVN (Vascular neurosis of Lt. hip with secondary Osteoarthritis. Therefore, the above ailments were pre-existing with the Complainant before its taking the mediclaim policy.
10) Opposite Party No.1 also pointed out the report of its panel doctor Smt.Sunawala in the above said discharge card excluding the above said ailment.
11) Opposite Party No.1 indicated that in the discharge card pertaining to period from 11/03/04 to 05/04/04 it was mentioned that the Complainant was operated for L. THR 2 years back. H/O of clicking – clinical sign of Osteoarthritis. It is at Exhibit –‘C’ with written statement.
12) The Opposite Party No.1 has explained in para (b) that writing of ‘None’ in column –“Subject to the exclusion “ does not mean that the diseases/ illness are covered under the policy.
13) The complainant further stated that the Complainant is not entitled to any relief and the complaint be dismissed with cost, etc.
14) The Complainant also filed the affidavit in evidence as well as written argument wherein they reiterated the above facts and circumstance. Opposite Party No.1 also filed its written argument. The Complainant filed the copies of following documents in support of his complaint –
a) Mediclaim Policy for the year 2002-2003.
b) Mediclaim Policy for the year 2003-2004.
c) Letter of Opposite Party No.2 dtd.03/08/2004 repudiating the mediclaim.
d) Award No.10/Mum/A/2351200512006 dtd.07/12/05 Policy No.20900/48/03/01091.
15) The Opposite Party No.1 also submitted the copies of the following documents in support of their written statement.
a) Proposal Form alongwith discharge card of Bhatia Hospital for period from 05/05/02 to 21/05/02 of the Complainant.
b)Terms and conditions of the policy given to the Complainant with policy.
c)Discharged card of Bhatia Hospital for treatment taken by the Complainant from 11/03/04 to 05/04/04.
d)Claim intimation and claim form submitted by the Complainant to O.P.No.2.
e)Repudiation letter of Opposite Party No.2 to Complainant dtd.26/07/2004.
f)Award of Insurance Ombudsman dtd.01/12/2005.
g)Dr.Patrawala’s letter to Dr.Vengsarkar without any date.
h)Certificate issued by Dr.Vengsarkar dtd.03/03/2004.
16) During the pendency of this complaint, the Complainant Mr.Jawaharlal Kapoor expired on 22/11/2006. Therefore, the present Complainants applied for the replacement of their names in place of the deceased Complainant Shri.Jawahar Kapoor. The heirs mentioned in the title were taken on record as the legal representatives of the deceased Complainant vide Roznama dtd.09/06/2009.
17) We heard the Ld.Advocate for the Complainant and the Ld.Advocate for the Opposite Party No.1. Perused all the above mentioned documents submitted by both the parties and our findings are as follows –
18) The Complainant and his wife, present Complainant No.1 had taken Mediclaim Policy No.020900/04/03/01091 for the period 26/06/2003 to 25/06/2004. During the validity of this period the Complainant was hospitalized in Bhatia Hospital from 11/03/04 to 05/04/04 and incurred an expenses of Rs.4,30,890/- for operation of (R) Knee Replacement. The sum assured was Rs.5 Lakhs. The important point is that the mediclaim was repudiated on the ground of pre-existing disease/ailment. The Opposite Party No.1 has taken a stand that the Complainant Shri.Jawaharlal Kapoor had a pre-existing disease, Osteoarthritis before 26/05/2002 as he had been operated for total hip replacement on 06/05/02 as mentioned in discharge certificate issued by Bhatia General Hospital annexed to Exhibit-‘A’ to the written statement of Opposite Party No.1. At this time the diagnosis of the ailment was “KIC/O LO C H T NC DM C AVN (L) hip c Secondary Osteoarthritis. This discharge card was attached to the proposal form by the Complainant himself and disclosed to the insurer (Opposite Party No.1) that he had been operated for the above said ailment.
19) It is pertinent that the panel Doctor of Opposite Party No.1 has put a remark on this discharge card as follows –
“Exclude Intestinal Lung disease c Hypertension X Diabetes c Avascular Neorosis of Lt hip Secondary Osteoarthritis Lt total hip replacement undergone. Before issuing an insurance policy the proposal form is filled up by the insured and is submitted to the insurer (Opposite Party No.1). Insurer scrutinised the information given in the form, obtains an expert opinion as mentioned above from their Panel Doctors and then finally issued the policy documents to the insured (complainant). In this case Dr.Sunawala, the Panel Doctor of Opposite Party No.1 had given the expert opinion as to which ailment/disease were to be excluded from the Insurance cover issued to the Complainant but the insurer (Opposite Party No.1) issued the mediclaim policy No.020900/48/03/01091 in the name of Jawaharlal Kapoor and Kusum Kapoor for 5 Lakhs each with premium of Rs.9,970/- each subject to the exclusion of “None”. These details are on the face page of the policy document under which there is a signature of the insured (Opposite Party No.1). This clearly shows that, the insured (Opposite Party No.1) specifically has not excluded any disease/ailment from the insurance cover. In other words and in a simple language, not a single disease/ailment was excluded from the insurance medical policy. Affirmatively all the diseases/ailment were covered by the mediclaim policy.
20) We have also considered the provisions of general clauses 4.1 of the terms and conditions of mediclaim policy (Exhibit-‘B’ attached to the written statement of Opposite Party No.1). Particularly Terms 4.0 & 4.1 wherein “All the disease /injuries which are pre-existing when the cover incepts for the 1st time, are excluded.” Inspite of this general provision in clause 4.0 and 4.1, the insurer has issued the above said policy to the insured (Complainant) specifically mentioning in this column “subject to the exclusion of “ ….None. It means there are contradictory provisions in the same mediclaim policy i.e. the general clause excludes the pre-existing disease while the main policy document front page covers each and every disease i.e. no disease was excluded from insurance cover. Under this situation when there are two contradicting provisions, the provision on the front page of the main document specifically incorporated in the policy alongwith the details of insurer, period of the policy, sum assured premium particulars etc., will prevail over the general clause 4.0 and 4.1 of the policy. By entering the words “subject to the exclusion of none” the Opposite Party No.1 itself has made a provision in favour of the Complainant (insured) covering his all disease/ailments causing him hospitalization, over riding clause 4.0 & 4.1 of the policy. Had Opposite Party No.1 incorporated the disease mentioned by its doctor panel in the column “subject to the exclusion, then, it could have been right in repudiating the Complainant’s mediclaim. However, in this case in hand, inspite of the expert opinion, the Opposite Party No.1 has specifically incorporated the words “subject to the exclusion of none” and thereby allowing the Complainant to claim his hospitalization expenses for all disease/ailments. Thus, the policy documents itself has spelt out that none of the disease/ailments of the insured (complaint) were excluded from the insurance cover and the insured (Complainant) is entitled to the reimbursement of the expenses incurred by him while he was hospitalized in Bhatia Hospital from 11/03/04 to 05/04/04 for Osteoarthritis Rt. Knee (Replacement of his Rt. Knee).
21) The Opposite Party No.1 has mentioned only clause 4.0 and 4.1 for its own benefit and forgot the specific provisions on the front page of the policy which was specifically entered alongwith the relevant details such as, the period of policy, sum insured, premium amount, and which diseases are excluded from the cover.
22) The Opposite Party No.1 repudiated the mediclaim without any substantial and justifiable ground which caused mental agony to the present Complainants as such, they deserve some compensation for their mental agony.
23) We are of the opinion that by not sanctioning mediclaim of the Complainants the Opposite Party No.1 is deficient in service which caused mental agony to the Complainants.
24) In view of the above facts and circumstances, the Forum passes the following order –
O R D E R
i. Complaint No.439/2006 is partly allowed against Opposite Party No.1.
ii. Opposite Party No.1 is directed to reimburse to the present Complainants the expenses of Rs.4,30,890/-(Rs.Four Lakh Thirty Thousand Eight Hundred
Ninety Only) alongwith interest @ 9 % p.a. from 01/06/2004 till the date of payment.
iii .Opposite Party No.1 is also directed to pay Rs.10,000/-(Rs.Ten Thousand Only) to the present Complainants, towards the mental agony caused to the
Complainants as the Opposite Party No.1 has repudiated their claim without any justifiable ground.
iv.Opposite Party No.1 is also directed to pay Rs.5,000/-(Rs.Five Thousand Only) to the present Complainants towards the cost of this complaint.
v.Complaint is dismissed with no order as to cost against Opposite Party No.2.
vi.Opposite Party No.1 shall comply with the above order within 30 days form the receipt of this order.
