IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.M.G.Hiremath<br /> B.Sc., L.L.B (Spl.)- President<br /> <br /> <br /> 2. G.V.Balasubramanya<br /> B.E., LL.M - Member<br /> <br /> CC 171/06 DATED 26-10-2006<br /> <br /> Complainants 1. P.Sanjay, S/o P.Kumar<br /> 2. Smt.Rashmi Sanjay, W/o P.Sanjay, M/s Sharada Cycle and Watch Stores, Silver Jubilee Clock Tower Square, Mysore.<br /> (By O.S.B, Advocate)<br /> Vs. <br /> Opposite Parties 1. United India Insurance Co., Ltd., City Branch Office, Door No.442/3/4, 2nd Floor, Chamaraja Double Road, Near Ramaswamy Circle, Mysore-570024. Rep. by it’s Branch Manager.<br /> 2. Medsave Health Care Limited, No.413-414, Auto Tower, No.9, J.C.Road, Bangalore.<br /> (By B.K.Lakshmi Devi, Advocate for O.P.1 and O.P.2 - Exparte)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 22-06-2006<br /> Date of appearance of O.P. : 18-07-2006<br /> Date of order : 26-10-2006<br /> Duration of Proceeding : 3 ½ MONTHS<br /> <br /> <br /> <br /> <br /> <br /> PRESIDENT MEMBER<br /> <br /> <br /> Sri.G.V.Balasubramanya,<br /> Member,<br /> <br /> 1. The complainant along with their 2 daughters have a mediclaim insurance policy issued by the 1st Opposite party. It is valid from 27.03.06 to 26.03.07.<br /> 2. The 2nd complainant underwent TAH + umbilical Hernia Mesh Repair surgery on 06.04.06 at Sagar Apollo Hospital, Bangalore. The hospital charged Rs.58,533/-. The complainants lodged a claim with the Opposite parties for reimbursement. The Opposite parties reimbursed only Rs.28,469/- without assigning any reason for such part reimbursement. The complainants wrote a letter to the Opposite parties requesting them to furnish the details. Thereafter the Opposite parties furnished the deduction memo from which the complainants learnt that they had allowed only 50% for the surgery treating it as a pre-existing condition on account of a previous LSCS surgery undergone by the 2nd complainant.<br /> 3. The complainants have averred that the LSCS surgery has nothing to do with the hernia problem and the previous surgery was done more than 8 years back. The complainants have also contested the disallowing of Rs.1,100/- on account of histopathology test. Thus the complainants have claimed reimbursement of their entire claim and damages of Rs.50,000/- totaling to Rs.1,08,533/- and interest thereon. <br /> 4. Version has been filed only by the 1st Opposite party, though the 2nd Opposite party has also received the notice. The only defence of the 1st Opposite party is that the complainants have suppressed true facts to make illegal gain and as such, they are not entitled to the claim made by them.<br /> 5. From the above rival contentions, the following points arise for our consideration:<br /> a) Whether the complainants prove that the Opposite parties have rendered deficient service by settling the claim in part?<br /> b) Whether the opposite parties proves that the complainants have suppressed the material facts?<br /> c) What relief or order? <br /> <br /> 6. We have answered the above points as under:<br /> <br /> Point 5(a): In the affirmative<br /> <br /> Point 5(b): In the Negative.<br /> <br /> Point 5(c): As per final order<br /> <br /> <br /> REASONS<br /> <br /> 7. Points 5(a) & 5(b):- The fact that the complainants had a valid mediclaim policy when the 2nd complainant underwent surgery is not in dispute. From the policy schedule it is seen that both the complainants and their daughters were covered upto Rs.1,25,000 each. No exclusions have been shown in the schedule which means that the complainants had declared themselves to be healthy.<br /> 8. The 1st Opposite party has filed the proposal form filled in by the 1st complainant. Under serial no.12 the proposer has to give the medical history by answering certain questions which gives the Opposite party a fair idea about the health of the proposer. There is no question pertaining to the pregnancy of the proposer. The allegation of the Opposite party is that the 2nd complainant had a caesarian delivery prior to taking the mediclaim policy which resulted in hernia and the policy has been taken suppressing it. Further, they have also, relied on clauses 4.3 and 4.12 under the heading “exclusions” contained in the terms and conditions of mediclaim policy which says that “during the first year of the operation of the policy, the expenses on treatment of diseases such as cataract -------- hernia ------ and related disorders are not payable. If these diseases (other than congenital internal disease) are pre-existing at the time of proposal they will not be covered even during subsequent period of renewal. If the insured is aware of the existence of congenital internal disease before inception of policy, the same will be treated as pre-existing. Also, treatment arising from or traceable to pregnancy (including voluntary termination of pregnancy) and child birth (including caesarean section) is excluded”. Clearly, the Opposite party is trying to link hernia to the previous caesarean section undergone by the 2nd complainant. <br /> 9. The Opposite party issued interrogatories on the complainants to extract information on the caesarean section. In their reply the complainants have maintained that they have filled in all the details in the proposal form as sought therein. They have stated that the proposal form does not contain any specific question pertaining to child delivery by caesarean section. They have, also, averred that the 2nd complainant has not undergone any surgery for hernia and hence it can neither be treated as a pre-existing condition nor suppression of material fact. They, also, say that it is not their first year of mediclaim policy. In support of their contentions the complainants have produced a letter of Dr.Aashish R.Shah, Bangalore which states that the umbilical hernia is not a consequence of previous caesarean section. The discharge summary of Sagar Apollo Hospital reveals that the 2nd complainant presented with history of swelling from the umbilicus since 3 months. Further, the complainants have emphatically stated that the caesarean section was performed almost 8 years back and that they do not come under the exclusion clause given at 4.3 of terms and conditions, as this is a renewal policy the first mediclaim having been taken in 2000. In any case, the only ground for repudiation is that hernia is due to previous caesarean section satisfactory. No presumption can be drawn that every caesarean section results in hernia. Under such circumstances, it has to be concluded that repudiation of part of the claim is improper.<br /> 10. Claim of Rs.1,100/- has been disallowed by the Opposite party on the ground that it is not supported by a bill. But the complainant says that he had filed the histopathology report. He has produced it before the Forum and the report is from the same Sagar Apollo Hospital where the 2nd Complainant underwent hernia repair. In view of these facts we answer point 5(a) in the affirmative and 5(b) in the negative.<br /> 11. In the past, the Hon’ble National Commission and several State Commissions have come down heavily on reckless repudiation of insurance claims. Even in this case, if the Opposite parties thought that the complainant’s condition was pre-existing or it was traceable to caesarean section, they should have repudiated the entire claim. If there is a suppression of material fact there is no question of allowing any reimbursement. However, the claimant is entitled to know how the insurance company has come to the conclusion that hernia is traceable to caesarean section performed 8 years back when the hospital has recorded that the complainant visited with a history of swelling for 3 months. The purpose of taking of Mediclaim should always be borne in mind while processing claims. Hence, this is a fit case to award damages in addition to interest on the repudiated amount. <br /> 12. Lastly, we have observed that though the complainants have prayed for reimbursement of Rs.58,533/- in the complaint, in their reply to the interrogatory as to whether they have received the cheque for Rs.28,469/- they have merely stated “Absolutely”. Hence, presuming that they have received the cheque for Rs.28,469/- we are passing order in respect of the balance. In any case the Opposite parties have no objection for paying this amount. With these observations, we proceed to pass the following order:- <br /> <br /> ORDER<br /> <br /> A. Complaint is allowed. <br /> <br /> B. The Opposite parties are directed to pay the complainants Rs.29,569/- with interest at 8% p.a. from 9-6-2006 till the date of payment, within 2 months from the date of this order failing which the principle and interest will carry future interest at 12% p.a. thereafter until the date of payment.<br /> <br /> C. The Opposite parties are directed to pay the complainants damages of Rs.2,000/- within 2 months from the date of this order failing which such amount will carry interest at 10% p.a. thereafter until the date of payment.<br /> <br /> D. The Opposite parties shall pay the complainants cost of Rs.600/-<br /> <br /> E. Give a copy of this order to both parties according to Rules. <br /> <br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 26th October 2006)<br /> <br /> <br /> <br /> <br /> <br /> (M.G.Hiremath) (G.V.Balasubramanya)<br /> President Member<br /> <br /> <br /> <br /> <br /> <br />