PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
That initially in the year 1994, the Complainant obtained Mediclaim Policy from the Opposite Party and said insurance policy was renewed from time to time. It appears from the photo copies of mediclaim policy produced on record that first mediclaim policy taken by the Complainant from Opposite Party was for the period for 29/03/94 to 28/03/95. Sum assured under the policy for the Complainant was Rs.42,500/-. In the year 1997 sum assured was increased from 42,500/- to 1 Lac and in the year 1998 the sum assured increased was raised to Rs.3 Lacs and in 2000, it was increased to Rs.5 Lacs. According to the Complainant, until year 2001 he enjoyed good health. On/or about 01/08/2001, the Complainant’s wife was admitted to Breach Candy Hospital and was operated upon by Dr. Praful Desai for Malignancy of Tongue. During the period of hospitalization of his wife, the Complainant noticed an injury on his left toe which he attributed to a shoe bite. The Complainant being under tremendous mental stress due to his wife’s illness took his own injury lightly and applied on it Soframycin Ointment, but his injury did not heal fully. Then the Complainant took appointment of Dr. S.M. Sadikot, Consulting Physician-cum-family friend and attended his clinic on 12/11/01. Dr. Sadikot after examined of his injury took random stick-test and found that the Complainant’s blood sugar was high which was attributed by him to the extreme mental stress and trauma the Complainant was undergoing. Dr. Sadikot prescribed medical tablets for reducing the blood sugar, antibiotics for controlling further infections and pain killer. Inspite of taking aforesaid medicines, the Complainant’s toe did not heal. On 20/11/01, Dr. Sadikot again took a stick-test for random blood sugar and suggested medicines. On 08/12/01, Dr. Sadikot took a stick test and changed medicines. However, there was no much improvement and the wound had got infected with pus emanating therefore, the Complainant spoke to Dr. Sadikot who advised the Complainant to go to surgeon by name Dr. D.C. Patel.
2) On 10/12/01, the Complainant attended consulting room of Dr. D.C. Patel. After examining Complainant’s foot, Dr. Patel enquired whether the Complainant had undergone any pathological blood test. The Complainant told him that he had never undergone any such test. Dr. Patel insisted the Complainant to undergo a complete medical checkup and suggested an “Executive Panel Test”. For the first time on 15/12/01, the Complainant underwent complete checkup in Pathological Laboratory at Nariman Point. In the aforesaid Pathological Laboratory test, the Complainant’s fast blood sugar was very high. Dr. Patel recommended immediate hospitalization and accordingly the Complainant was admitted in Breach Candy Hospital on 17/12/01. In the Breach Candy Hospital number of medical test were carried out and Dr. Patel took decision to perform surgery and on 19/12/01 removed the left toe of the Complainant. The Complainant was operated for 2nd time on 27/12/01 as healing was not satisfactory even after second operation the Complainant was advised to undergo laser treatment in Jaslok Hospital. The Complainant was shifted to Jaslok Hospital and he remained in the Jaslok Hospital till 23/01/02.
3) The Complainant was still suffering tremendous pain so Dr. Ramchandra Naik was called Complainant’s residence on 24/01/02. Dr. Naik changed the treatment. The Complainant was under insulin for controlling of blood sugar since 17/12/01. on 21/02/02, the Complainant was operated in Breach Candy Hospital once again and at this time his left foot was amputated. The Complainant was discharge from the Breach Candy Hospital on 26/12/02. During the post-operative period the Complainant continued to pay regular visits to the Hospital and to the Surgeon till May, 2002 till artificial leg was attached to his amputated leg. After discharge from the hospital the Complainant requested his agent Shri. Vidyut Shah to fill-up two mediclaim forms. The said agent submitted the said claims to the Opposite Party as follows-
Claim No. I Rs.5,71,382/- for the period 17/12/2001 to 23/01/2002.
Claim No. II Rs.1,54,349/- for the period 22/04/2002 to 01/05/2002.
Alongwith claim form the Complainant submitted the original case papers and hospital bills to the Opposite Party.
4) The Complainant’s claim no. I was firstly rejected by Opposite Party vide their letter dtd.05/08/02. While rejecting the claim Opposite Party presumed that the Complainant was suffering form the Diabetes for the last 15 years. This presumption is totally wrong on the face of records as the Opposite Party ignored addendum certificate of Dr. Naik, wherein Dr. Naik stated that there was an error in his prescription and it should have been 15/12/01 instead of 15 years. It is submitted by the Complainant that presumption of the panel doctors of the Opposite Party that diabetic foot is a chronic ailment is also not correct. It is submitted by the Complainant that in the medical history case papers in the Breach Candy Hospital, Dr. Mitesh Ruparel has incorrectly recorded that the Complainant has told that he is having diabetes since 2 years instead of 2 days. Dr. Naik in his case history wrongly recorded that the Complainant is suffering from diabetes since last 15 years. When the Complainant brought to the notice of Dr. Naik about the said error, Dr. Naik reissued correction explaining his mistake vide his letter dtd.22/05/02. Since, there was no response from the Opposite Party. On the request of Complainant, Dr. Naik once again wrote to the Opposite Party in this connection. However, Opposite Party ignored the letter of Dr. Naik and rejected Complainant’s claim vide letter dtd.05/08/02.
5) The Complainant wrote the letter dtd.03/10/02, submitted to the Opposite Party duly notarized, copies of his own declaration and declaration of Dr. Naik dtd.02/10/02 which contained all above recent facts and requested Opposite Party to reconsider his claim. However, Opposite Party once again vide their letter dtd.28/03/03 repudiated claim of the Complainant. The Complainant once again requested Opposite Party to look into his matter and enclosed a letter from Dr. Sadikot. There was no response from the Opposite Party for couple of months. So once again the Complainant wrote to Opposite Party vide his letter dtd.03/07/03. The Complainant requested Opposite Party to send his claim to the Grievance Cell or to their Regional Office. Finally the Opposite Party vide their letter dtd.27/11/03 through their Head Office informed the Complainant that they have concurred with the decision of Divisional/Regional Office and accordingly claim of the Complainant is repudiated.
6) Thereafter as last resort, the Complainant made representation to the Insurance Ombudsman on 12/02/2004. The Hon’ble Insurance Ombudsman vide his order dtd.30/03/05 held that the Complainant’s claim in respect of hospitalization for diabetic foot is not sustainable and therefore, the Complainant has filed this complaint before this Forum. The Complainant has requested to set aside impugned order dtd.30/03/05 passed by the Insurance Ombudsman and to set aside repudiation order passed by the Opposite Parties. The Complainant has requested to direct Opposite Party to pay to the Complainant total sum of Rs.6,54,349/- towards medical expenses spread over from 31/03/01 to 30/03/02 and from 31/03/02 to 30/03/03. The Complainant has requested to direct Opposite Party to pay to the Complainant sum of Rs.74,000/- standing to his credit as “No Claim Bonus”.
7) The Complainant has further requested to direct Opposite Party to pay to the Complainant interest @ 15% p.a. on Rs.6,54,349/- + 74,000/-w.e.f. the date of filing of second claim i.e. 24/08/02 to 15/09/05 total aggregating to Rs.10,62,691/- and further interest @ 24% p.a. thereafter till realization of decreetal amount to the Complainant. The Complainant had prayed to direct Opposite Party to pay a sum of Rs.5 Lacs to the Complainant as and by way of damages for the mental torture and harassment and Rs.2 Lacs towards cost and legal fees.
8) Opposite Party has filed detail written statement and thereby resisted claim of the Complainant contending interalia that Complainant’s claim was repudiated on 05/08/02 and therefore, present complaint which is filed on 15/09/05 is barred by law of limitation. Compliant is also barred by principle of Res-Judicata. According to the Opposite Party, this Forum cannot act as a Court of Appeal over the decision given by the Insurance Ombudsman and therefore, complaint deserves to be dismissed with cost. The Opposite Party has admitted that for the first time in the year 1994 the Complainant obtained mediclaim policy from the Opposite Party for the period of one year. The policy was renewed form year to year. In the year 1997, sum assured increased form Rs.42,500/- to Rs.1 Lac, and in the year 1998 the sum assured increased was raised to Rs.3 Lacs and in 2000, it was raised to Rs.5 Lacs. Alongwith written statement the Opposite Party has produced copies of mediclaim policy obtained by the Complainant and policies given to the Complainant for the year 1994 to 31/03/2001. According to the Opposite Party at the time of making of the policy the Insured had declared in the proposal form that he was not suffering from any ailment. As per the Complainant, at the end of 2001 and early 2002, he had been admitted for diabetic foot at Breach Candy Hospital from 17/12/01 to 28/12/01 and at Jaslok Hospital from 28/12/01 to 23/01/02. A claim under the scheme for Rs.5,72,450/- for hospitalization expenses for treatment of diabetic foot was preferred by the Complainant. As per the standard practice, the Complainant was asked to submit all papers in original to the Opposite Party. The said medical papers were then scrutinized by the Officers of the Company. The said papers were sent to Dr. M.S. Kamath, Panel Doctor of the Company to scrutinize the same. Dr. Kamath called for indoor case papers from the hospital where patient was admitted. After perusal of indoor case papers, Dr. Kamath noted that Complainant had given a clear cut history of being known case of diabetes on medication for 2 years to the Doctors of Breach Candy Hospital. Prior to that the patient had given history of being diabetic for 15 years to Dr. R.G. Naik whose prescriptions and notes were submitted himself to the Opposite Party. The said diabetic was obviously proximate and clear cause which had caused diabetic foot. Even in the case papers of Jaslok Hospital it is noted that patient had diabetic for one month on 28/12/01. As per the medical advice received by the Opposite Party, “diabetic foot is well known and widely accepted complications arising out of diabetes as the policy clearly mentioned pre-existing ailment and their proximate causes were excluded from the cover of policy, therefore, Complainant claim was not payable”. It is alleged that the Complainant had deliberately concealed the fact that he was suffering from diabetes at the time of obtaining mediclaim policy form the Opposite Party. The pre-existence of diabetes and non-discloser of material facts vital to the policy clearly vitiated the claim beyond redemption. Therefore, by letter dtd.05/08/2002, Opposite Party repudiated the claim of the Complainant.
9) It is submitted that thereafter the Complainant wrote to the Senior Executive of the Company, asking them to reconsider his claim on the ground of diabetes was not detected prior to admission Complainant had enclosed letter of Dr. R.G. Naik. The contents of which were patently false then Opposite Party took fresh opinion from Dr. M.S. Kamath. In the matter copies of both initially and second by Dr. Kamath are enclosed alongwith written statement at Annexure ‘E’.
10) Opposite Party has denied allegations made in the complaint. It is contended that the Complainant has made several miss statement and false statement in the complaint and has relied upon false allegations. The Complainant’s claim was rejected on just and sound legal ground and therefore, present complaint which is based on false presumption deserves to be dismissed with cost.
11) In support of written statement Mr. P.P. Lakhani, Sr. Divisional Manager of Opposite Party had filed affidavit. Opposite Party had filed application for dismissal of complaint as complaint is barred by Res-Judicata. The Insurance Ombudsman has already rejected claim of the Complainant therefore, complaint is not maintainable before this Forum. The Opposite Party has filed another application to dismiss the complaint as it is barred by limitation. The Opposite Party has produced copies of the mediclaim policies, copies of medical case papers, opinion of their Panel Doctor, copies of medical literature, etc.
12) The Complainant had filed affidavit of evidence. Further he has filed reply to the aforesaid both applications filed by the Opposite Party. The Complainant has produced copies of bills of Breach Candy Hospital as well as Jaslok Hospital, copy of award dtd.30/03/05 passed by the Insurance Ombudsman, copy of letter of Dr. Sadikot, dtd.19/05/03, addressed to Sr. Divisional Manager of Opposite Party and copy of his own declaration and Dr. R.G. Naik made before Notary on 02/10/02. The Complainant has filed written argument. Opposite Party has also filed written argument. We heard oral submissions of Ld.Advocate Raksha Tanna for the Complainant and Ld.Advocate Mr. P. Bhagat for the Opposite Party and complaint closed for order.
13) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the complaint is barred by Res-Judicata ?
Findings : No
Point No.2 : Whether the complaint is barred by law of limitation ?
Findings : No
Point No.3 : Whether the Complainant has proved deficiency in service on the part of Opposite Party ?
Findings : Yes.
Point No.4 : Whether the Complainant is entitled to recover medical expenses of Rs.6,54,349/-, cumulative bonus, interest &
cost of proceeding from Opposite Party as prayed for ?
Findings : As per final order.
Reasons :-
Point No.1 :- In the written statement Opposite Party has raised contention that complaint is barred by principle of Res-Judicata. The Opposite Party has also filed separate application to dismiss the complaint as it is barred by law of limitation. According to the Opposite Party after Complainant’s claim repudiated by the Opposite Party, the Complainant had preferred claim before the Insurance Ombudsman and the Insurance Ombudsman after hearing both the parties has rejected claim of the Complainant. The Complainant himself has produced copy of award dtd.30/03/05, passed by the Insurance Ombudsman. Therefore, according to the Opposite Party, complaint is barred by principle of Res-Judicata. The Complainant has filed written reply to the aforesaid application made by the Opposite Party and thereby resisted prayer of Opposite Party to dismiss the complaint contending that the Insurance Ombudsman is not a Court as contemplated under Sec.11 of CPC.
It is true that present complaint is drafted by the Complainant as it is in appeal against the order passed by Insurance Ombudsman. The Consumer Forum is not appellate authority of the Insurance Ombudsman. The Insurance Ombudsman is not judicial or quasi judicial authority. However, the decision given by the Insurance Ombudsman is binding on the Insurance Company, decision of Insurance Ombudsman is not binding on the Insured and he can avail remedy available to him under any other law. As per the provisions of Sec.3 of the Consumer Protection Act, 1986, remedy provided under the Consumer Protection Act is additional remedy and not in derogation of provision of any other law for the time being in force. Hence, we do not find substance in the submissions advanced on behalf of Opposite Party that complaint is barred by principle of Res-Judicata. In the result we answer point no.1 in the negative.
Point No.2 :- It is submitted on behalf of the Opposite Party that Opposite Party has repudiated claim of the Complainant on 05/08/02 under clause 4.1 of the policy. Letter of repudiation was received by the Complainant. The Complainant wrote a letter asking for reconsider of his claim by letter dtd.28/03/03 Opposite Party reconfirmed the decision of repudiation of his claim. According to the Opposite Party, cause of action for this complaint arose on 05/08/02 when the Complainant’s claim was repudiated by the Opposite Party this complaint is not filed within 2 years from the date of repudiation and 13 months delay is caused in filing of this complaint. There is no application for condonation of delay. The Complainant has wrongly averred that cause of action continues due to the continued correspondence between the parties. If it is assumed that fresh cause of action took place when Opposite Party confirmed repudiation vide its letter dtd.28/03/03 even then the complaint is barred by limitation and therefore, compliant deserves to be dismissed as barred by law of limitation. On the contrary it is submitted on behalf of Complainant that the complaint is filed within prescribed period of limitation of 2 years from the date of cause of action. The Opposite Party vide its letter dtd.05/08/2002 rejected claim of the Complainant. Thereafter, the Complainant made representation. The Opposite Party considered representation made by the Complainant and finally Head Office of the Opposite Party rejected the claim of the Complainant on 27/11/03. Thereafter, the Complainant made representation before the Insurance Ombudsman on 12/02/04 which was rejected by the Insurance Ombudsman on 30/03/05. Present complaint then filed before this Forum on 15/09/05 is well within time of 2 years from the rejection of Complainant’s representation by Insurance Ombudsman.
It is matter of record that the Complainant’s claim was initially rejected by the Opposite Party by their letter dtd.05/08/02 then the Complainant vide his letter dtd.03/10/02 made request to reconsider his claim and alongwith said letter he has submitted copies of is own declaration and declaration of his Doctor. Finally the Opposite Party vide their letter dtd.27/11/03 through their Head Office repudiated claim of the Complainant contending that they have concurred “decision of Divisional and Regional Offices”. The Complainant has produced copy of the letter dtd.27/11/03 on record and it appears from the contents of said letter that Head Office of the Opposite Party considered set of papers relating to claim submitted by the Complainant and upheld decision of their Regional Office, Mumbai in repudiating claim so discloser final that Opposite Party repudiated the claim of the Complainant on 27/11/03. After final repudiation of the claim by Opposite Party on 27/11/03, the Complainant had filed Complaint No.GI-749 of 2003-2004 before the Insurance Ombudsman. The Insurance Ombudsman by his order dtd.30/03/05 has rejected claim of the Complainant. It is true that Insurance Ombudsman is not judicial or quasi- judicial authority at the same time Insurance Ombudsman’s order is binding on the Insurance Company. The Hon’ble State Commission in First Appeal No.A/09/1448, dtd.18/10/2010 has held that the proceeding pending before Insurance Ombudsman will extend period of limitation. Present complaint is filed before this Forum on 05/10/2005. So it is filed within prescribed period of limitation of 2 years. In the result we answer point no.2 in the negative.
Point No.3 :- It is admitted fact that initially the Complainant obtained Mediclaim Policy form the Opposite Party in the year 1994. The Opposite Party has produced copy of the said policy. The said policy for the period form 29/03/94 to 28/03/95. It is not in dispute, form time to time the Opposite Party renewed policy. Opposite Party in their written statement have stated that from the year 1997 sum assured was increased from Rs.42,500/- to 1 Lac. Then in the year 1998 the sum assured increased to Rs.3 Lacs and in 2000, it was increased to Rs.5 Lacs. In the policy issued for the period from 30/03/2000 to 31/03/01. Sum assured recorded against the name of the Complainant is Rs.5 Lacs and cumulative bonus is recorded in the policy is Rs.12,450/- + 35,000/- i.e. total Rs.47,450/-.
It is case of the Complainant on/or about 01/08/01 his wife was admitted in the Breach Candy Hospital and was operated upon for Malignancy of tongue and therefore, the Complainant was under tremendous mental stress. During that period the Complainant noticed injury on his left toe which he attributed to a shoe bite. He applied on it Soframycin Ointment on the said injury but it did not heal fully. So on 12/11/01 the Complainant went to Dr. S.M. Sadikot who inspected his injury and at that time took a random stick-test and found that the Complainant’s blood sugar was high which was attributed by him to the extreme mental stress and trauma suffered by the Complainant. Dr. Sadikot prescribed some medicines but toe did not heal and so Dr. Sadikot referred the Complainant to surgeon by name Dr. D.C. Patel, a Surgeon attached to Jaslok Hospital. Dr. Patel on 10/12/01, advised the Complainant to undergo ‘Executive Panel Test”. In the aforesaid test fasting blood sugar of the Complainant found very high. So, Dr. Patel recommended immediate hospitalization of the Complainant. Accordingly, the Complainant was admitted in Breach Candy Hospital on 17/12/01. In the Breach Candy Hospital several medical test were conducted and Dr. Patel performed surgery and removed the left toe of the Complainant. Due to the unsatisfactory healing of the toe the Complainant was operated for 2nd time on 27/12/01. However, healing of the toe was not satisfactory even after second operation. Therefore, Dr. Patel advised the Complainant to undergo laser treatment in Jaslok Hospital. The Complainant was shifted to Jaslok Hospital where the Complainant remained till 23/01/02. Even after discharge from Jaslok Hospital the Complainant suffering tremendous pain so he called Dr. Ramchandra Naik at his residence on 24/01/02. Dr. Naik changed the treatment. On 21/02/02, the Complainant was operated in Breach Candy Hospital and his left foot was amputated.
Thereafter, the Complainant through his agent Shri. Vidyut Shah, submitted two claim to the Opposite Party for reimbursement of the medical expenses as follows-
Claim No. I Rs.5,71,382/- for the period 17/12/2001 to 23/01/2002.
Claim No. II Rs.1,54,349/- for the period 22/04/2002 to 01/05/2002.
The Complainant’s first claim was repudiated by the Opposite Party vide their letter dtd.05/08/02. Thereafter the Complainant made representation. Head Office of the Opposite Party finally rejected the Complainant’s claim vide letter dtd.27/11/03. The Complainant made representation against repudiation of his claim to the Insurance Ombudsman. The Insurance Ombudsman after hearing both the parties have rejected the claim of the Complainant vides his order dtd.30/03/05. The Opposite Party vide their letter dtd.05/08/02 has rejected claim of the Complainant under exclusion clause 4.1 of the policy on the ground of pre-existing disease. The Opposite Party has produced copy of the aforesaid letter alongwith written statement at Annexure ‘D’. In the said letter it is stated that -
“We have review all the claim papers and the claim was referred to our Panel Doctor, who on perusal of medical papers have observed that you were suffering from “Diabetic Foot” which is a ‘Chronic Disease’ which is supported by medical papers. Dr. R. Naik, who is confirmed that you were suffering from “Diabetic mellitus” since, 15 years and whereon regular treatment for the same.
Even though you have submitted to us addendum certificate of Dr. Naik stated that you were suffering from diabetic since 15/12/01 only, the same does not seem to be giving a correct picture as according to our panel doctor as “Diabetic Foot” is a Chronic ailment.”
It is submitted on behalf of Complainant that Opposite Party has wrongly rejected claim of the Complainant on so called ground of pre-existing disease of “Diabetic mellitus” for last 15 years. It is submitted on behalf of the Complainant on 01/08/01 the Complainant’s wife was operated upon for malignancy of tongue in Breach Candy Hospital. The Complainant was under tremendous mental stress. So on 12/11/01, the Complainant went to Dr. Sadikot’s clinic at Bandra, where Dr. Sadikot after examining of injury took random stick-test and at that time the Complainant’s blood sugar was found high. According to the Complainant’s Advocate on 01/11/01, the Complainant came to know his blood sugar is high. Thereafter, he took treatment from Dr. Sadikot and Dr. Patel. As per the advised of Dr. Patel he undergone “Executive Panel Test” in which his fasting blood sugar was found very high. Thereafter the Complainant undergone surgery and in the month of February, 2002, Complainant’s left foot was amputated. It is vehemently submitted that prior to 21/11/01, the Complainant was not aware that he is suffering from diabetes. According to the Ld.Advocate for the Complainant, after Complainant was discharge from Breach Candy Hospital on 23/01/02, he was feeling tremendous pain so on 24/01/02, he called Dr. Naik to his residence for treatment. Dr. Naik examined and treated the Complainant. However, inadvertently in his prescription Dr. Naik noted that the Complainant is suffering from DM – 15 years on insulin + OHA. The aforesaid history written by Dr. Naik was incorrect. Opposite Party has produced xerox copy of case papers of Dr. Naik dtd.24/01/02. Opposite Party has mainly rejected claim of the Complainant on the basis of noting of medical history by Dr. R.G. Naik. Dr. R.G. Naik in his letter dtd.22/05/05 addressed to the Opposite Party has clearly stated that there was an error in prescription and it should have been 15 days instead of 15 years. He has rectified mistake and given re-written prescription. Inspite of aforesaid letter, Opposite Party has not reconsider claim of the Complainant. The Insurance Ombudsman has also wrongly relied upon earlier incorrect noting of Dr. R.G. Naik and rejected claim of the Complainant. It is submitted that the Complainant has produced declaration of Dr. Naik prepared before Notary on stamp paper in which he has clearly stated that early noting that DM 15 years is incorrect. Dr. Sadikot is a friend of the Complainant, has also found determination and stated that for the first time in the month of September, 2001 he noticed that blood sugar of Complainant is high. Dr. Sadikot is renowned Diabetologist attributed Complainant’s diabetes to the extreme mental stress and trauma, the Complainant was undergoing to serious illness of his wife. According to the Ld.Advocate for the Complainant, Opposite Party has relied upon opinion of their Doctor. Opposite Party has not filed affidavit of their panel doctor. Absolutely there is no medical evidence to show that prior to 2001, the Complainant was aware about Diabetic mellitus. There is no evidence prior to 2001, the Complainant had taken medical treatment for his diabetes and therefore, repudiation of complainant’s genuine claim by the Opposite Party is without any basis and illegal.
It is submitted on behalf of Opposite Party that contract of insurance is based on complete good faith. The Insured is under obligation to disclose all material facts relating to his health in the proposal form at the time of taking mediclaim policy in his proposal form. According to the Ld.Advocate of the Opposite Party, in this case Dr. Naik who examined the Complainant and to whom the Complainant had narrated history as specifically written in his prescription that Complainant is suffering from diabetes from 15 years. According to Ld.Advocate, in the year 1994 when the Complainant for the first time obtained mediclaim policy that time he was suffering from diabetes but he did not disclosed aforesaid material facts to the Opposite Party. Diabetic foot is Chronic Disease. In support of aforesaid contention, Ld.Advocate for the Opposite Party has referred the medical literature in which, complications of diabetes are stating as that his heart, disease diabetic foot, etc. The Complainant has regularly renewed mediclaim policy. At the time of renewal of mediclaim policy, he did not disclose that he is suffering from diabetes. However, while giving history he told Dr. R.G. Naik that he is suffering from diabetes for 15 years. In the indoor case paper of Jaslok Hospital, it is noted the patient has diabetes from 1 month on 28/12/01 in the indoor case of Breach Candy Hospital it is mentioned that ‘patient is suffering from diabetes’. It is alleged that the Complainant had knowingly, willfully concealed the material fact that he was suffering from diabetes from the Opposite Party at the time of making of this policy. Therefore, as per exclusion clause 4.1, Opposite Party has rejected claim of the Complainant. So there is no deficiency in service on the part of Opposite Party.
The Complainant had taken mediclaim policy from the Opposite Party in the year 1994. The Complainant renewed the said policy regularly and sum assured was increased to Rs.5 Lacs. According to the Complainant, for the first time in the month of November, 01, he came to know that he has high blood sugar when examined by Dr. Sadikot. Dr. Sadikot had written letter to the Opposite Party on 18/05/03, stating aforesaid fact. Dr. Sadikot is Consulting Physician and Endocrinologist. It appears that after discharge from Breach Candy Hospital on 24/01/2002, the Complainant had called Dr. Naik to his residence for treatment and that time Dr. Naik prepared prescription in which he has noted that DM 15 years. Subsequently said Dr. R.G. Naik wrote a letter to the Opposite Party in which he has stated that in his prescription there was an error and it should have been 15 day, 2001 instead of 15 years. The Complainant had produced copy of declaration of Dr. Naik made before Notary, in which he had stated that on 24/01/02, the Complainant consulted him when he asked the Complainant few questions to ascertain case history. The Complainant gave answer in Hindi. He had learnt that the Complainant was suffering from diabetes from 15/12/2001. However, as the Complainant foot was amputated, he thought that Complainant was suffering diabetes since last 15 years and accordingly he made noting. Later on he realized that he had totally miss understood the Complainant and then immediately issued corrigendum and thereby corrected his mistake. On the basis of earlier noting dtd.24/01/02 of Dr. Naik that the Complainant is suffering from DM for 15 years, panel advocate of Opposite Party Dr. Kamath has given is opinion. The Hon’ble National Commission in Life Insurance Corporation of India V/s. Badri Nagesvaromma, reported in II (2005) CPJ 9 (NC) has held Doctor’s Certificate without affidavit in support, no base for repudiating the claim. In the instance case Dr. R.G. Naik himself as stated that earlier noting in his prescription was incorrect. There is no evidence on record that prior to 2001, the Complainant had taken any medical treatment for diabetes or the Complainant was aware that he was suffering from diabetes. Merely because diabetic food is a chronic disease, it cannot be said that the Complainant was aware about diabetes prior to 2001. Considering evidence on record we hold that the Opposite Party has committed an error in repudiated the claim without sufficient ground and it amounts to deficiency in service on the part of Opposite Party. Hence, we answer point no.3 in the affirmative.
Point No.4 :- In this case the Complainant has claimed recovery of total amount of Rs.6,54,349/- towards medical expenses from the Opposite Party. The Complainant has produced copies of medical bills of the Breach Candy Hospital as well as Jaslok Hospital. The Opposite Party has not disputed medical bills. Opposite Party has produced copies of mediclaim policies alongwith written statement. As mentioned above in the policy which was for the period from 30/03/2000 to 30/03/2001 sum assured is Rs.5 Lacs and cumulative bonus is Rs.47,450/-. Therefore, the Complainant is entitled to recover at the most amount of Rs.5,47,450/- form the Opposite Party towards medical expenses.
The Complainant’s prayer for no claim bonus of Rs.74,000/- is incorrect. The Complainant has claimed interest initially @ 15% p.a. and subsequently he had claimed @ 24% p.a. The Complainant has claimed interest at exorbitant rate. Considering the facts of this case, we think it just to direct Opposite Party to pay to the Complainant interest @ 9% p.a. on Rs.5,47,450/- form 27/11/03 till realization of entire amount to the Complainant.
The Complainant’s claim for compensation for mental agony and harassment of Rs.5 Lacs and Rs.2 Lacs towards cost of this proceeding is exorbitant and highly exaggerated. The Complainant has not adduced any evidence to support his aforesaid claim. Considering the facts of this case, we think it just to direct Opposite Party to pay to the Complainant an amount of Rs.5,000/- as compensation for mental agony & harassment and Rs.3,000/- towards cost of this proceeding. Therefore, we answer point no.4 accordingly.
For the reasons discussed above, we partly allow the complaint and passed following order -
O R D E R
i.Complaint No.210/2005 is partly allowed.
ii.Opposite Party shall pay to the Complainant an amount of Rs.5,47,450/- (Rs. Five Lacs Forty Seven
Thousand Four Hundred Fifty Only) to the Complainant with interest @ 9% p.a. from 27/11/2003 till
realization of entire amount to the Complainant.
iii.Opposite Party shall pay Rs.5,000/- (Rs. Five Thousand Only) as compensation for mental agony and
harassment and Rs.3,000/- (Rs. Three Thousand Only) towards cost of this proceeding.
iv.Opposite Party shall comply with the order within period of one month from the date of receipt of this order.
v. Certified copies of this order be furnished to the parties.
