SHRI A.P.MUND, PRESIDENT: Complainant Mst Rita Pansari has filed this case against the O.P. alleging deficiency in service. Case of the complainant in brief is that originally Late Ramesh Kumar Pansari, husband of the complainant had taken one Individual Health Insurance Policy (Hospitalisation and Domicilary Hospitalisation Benefit Policy) from the O.P.Insurance Company. This policy included his mother Smt. Shanti Devi Pansari (hereinafter known as deceased patient). The policy was for a sum assured of Rs.,2,25,000/- and valid from dt.24.3.2013 to 23.3.2014. Premium amount of Rs.11,945/- was paid . The original policy holder Ramesh Kumar Pansari and the mother Smt. Shanti Devi Pansari died on dt.19.2.2014 and 6.4.2014 respectively.
2. The complainant has filed this case as legal heir of the insured basing on the legal heir certificate issued by the Tahasildar, Sambalpur. Deceased Shanti Devi Pansari was admitted in Appllo Hospital, Bhubaneswar on dt.20.12/2-13 and was discharged on dt.13.1.2014. She was issued with a bill for Rs.4,04,854.10 paise. The promised assure sum for the deceased mother was Rs.2,25,000/-. The matter was intimated to the O.P. and T.P.A. Heritage Health Services Pvt. Ltd. along with bills and other documents.
3. Deceased insured Shanti Devi Pansari had fracture in the 3rd distal of femur for which she was admitted to the hospital during the validity period of the above policy. Earlier in the year, 2005 she had a fracture in the neck of the femur for which she was admitted to Chandak Nursing Home of Nagpur. According to the complainant both the fractures are independent and separate and of different portion of the femur having no relation to each other. First fracture was in the year 2005 and second fracture was in the late part of the year 2013. There was a gap of around eight years to both the fractures and the deceased patient was shaving no complaint during the intervening period.
4. The complainant has filed one X-ray photograph of the deceased patient as Annexure-XIV, which shows that the fractures are separate and different. There is no relation to each other. The T.P.A. had first allowed the claim and paid Rs.1,05,000/- directly to the hospital. Shyam Sundar Pansari, son the deceased patient protested to this settlement on dt.16.1.2014. In the protest petition he had reserved the right to claim balance amount of Rs.1,20,000/-.
5. One Birupakhya Patra sent an e-mail to the effect that pre and post part payment settlement amount of Rs.45,000/- and date of settlement was 22.2.2014 with a caption that as per the anesthetic record dt.30.12.2013 right femur eight years back(Department of Appollo Hospital). On the above basis complainant has alleged that O.P. has not applied its mind and blindly placed reliance on the T.P.A. and under-indemnify the complainant. Hence complainant has filed this case with prayer to award Rs.75,000/- the differential amount , unpaid portion of the promised sum assured @ 18% interest from the date of promise i.e. 13.1.2014 till the actual date of payment , compensation for mental agony and cost of the proceeding. In support of his case complainant filed Xerox copies of documents from Annexures-I to XV, which are Policy, Appollo Hospital discharge report etc.
6. O.P. appeared and filed its written version. At the initial stage it has claimed that it is not a consumer dispute and there was no deficiency in rendering service by the O.P. As the claim has been fully settled, the consumer dispute does not survive and the present case is not maintainable.
7. However, O.P.s has admitted regarding the policy for sum assured of Rs.2,25,000/-and deceased patient was covered under the policy as a senior citizen. The settlement of claim by T.P.A. of the insured was received during the validity of the policy and sum paid was Rs.45,000/- was towards full and final settlement of the claim.
8. In the written version O.P. avers that “the bald statement that the patient had no incident of hospitalization between 2005 till the fracture injury shall not establish in one way that the patient was symptom free of the disease”. As the documentary evidence of fracture of Femur in 2005 and subsequent fracture was caused without any accident/trauma, the Third Party Administrator (TPA) found it logical to restrict the sum insured at Rs.1,50,000/- instead of Rs.2,25,000/- with full knowledge of health status of the patient.
9. On the basis of the above,. O.P. claims that it is not liable to pay Rs.75,000/- more towards the claim as alleged by the complainant in this case. Besides this is a personal injury case lodged by the insured for her mother-in-law. The case abated on the date of the deceased patient. Law is well settled that all personal injury cases abated automatically on the death of the patient. Hence the dispute raised by the complainant cannot be a consumer dispute and the present case is not maintainable and liable to be dismissed with cost. O.P. has filed Xerox copies of document from Annexure-A to Annexure-D, which contains the Policy, hospital report etc.
10. Later on complainant has filed one legal heir certificate, one authorization letter and copy of order of the Hon’ble Odisha State C.D.R. Commission passed in First appeal No.787 of 2008.
11. O.P. has filed its written argument along with a decision of the Hon’ble Supreme Court of India in Civil Appeal No.91 of 1972.
11. Heard the arguments advanced by learned counsels for both the parties and perused the complaint petition, written version, written argument and documents and decisions filed by the parties. After careful consideration of the facts and circumstances of the case submission of both the parties, we find only one issue involved here for disposal of the case i.e. whether the complainant is entitled to get the balance assured amount of Rs.75,000/-as claimed.
12. Complainant has filed a copy of order passed by the Hon’ble Odisha State Commission in First Appeal No.787 of 2008(Shanti Devi Pansari & Another Vrs. United India Insurance Company Ltd., Sambalpur) wherein the Honble State Commission has referred to a decision of the Honble Nation Commission in the case of (New India Assurance Co.Ltd. Vrs. Vasant Rao) NC 2006(2) CPC-59.In the reported case the Hon’ble National Commission has held: A disease which existed but subsequently cured cannot be termed as pre-existing disease.
In the same decision it has been referred that the O.P. has invoked the exclusion clause-4.1 of the Insurance Policy which reads as follows:
All diseases/injuries which are pre-existing when the cover incepts for the first time and denied the claim of the complainant
13. Basing on the decision of the Hon’ble National Commission referred to above, the Hon’ble Odisha State Commission has held that the burden lies with the Insurance Company to prove that the appellant was having pre-existing disease, but it utterly failed to discharge it. Accordingly, the appeal was allowed against the Insurance Company.
14. The O.P. along with its written argument filed a decision of the Honble Supreme Court in Civil Appeal No.91 of 1972. This is a case on Section-306 of the Indian Succession Act, 1925. The facts and circumstances were not applicable to the present case. That is a case which covers action for defalcation, assault or other personal injury. Hence it appears that this decision has no bearing in this case.
15. The other point of argument which the O.P. banks on as per written argument is that The patient was suffering from severe Osteoporosis and the current fracture for which the claim arose was due to her continuing state of Osteoporosis, and was not related to trauma. The bald statement that the patient had no incident of hospitalization between 2005 till the fracture injury shall not establish in any way that the patient was symptom free of the disease. As the documentary evidence of fracture of Femur in 2005 and subsequent fracture was caused without any accident/trauma the Third Party administrator (TPA) found it logical to restrict the sum insured at Rs.1,50,000/- instead of Rs.2,25,000/- with full knowledge of heal status of the patient.
16. According to us this is a vague and negative argument on the part of the O.P. It has to prove its case that there is relation between the two injuries sustained by the deceased patient, but it failed to do so.
17. We are guided by the decision of the Hon’ble State Commission referred to above that the Insurance Company has to prove that appellant was having pre-existing disease, but the O.P. has utterly failed to discharge its burden.
18. In the present case, the O.P.has not satisfies this Forum with positive evidence regarding the continuation of the disease with the deceased patient. Hence the contention of the O.P fails.
19. In view of the facts and circumstances discussed above and applying the principles laid down by the Hon’ble Odisha State Commission in the case referred to above to the present case, we accept the contention of the complainant that she is entitled to get the balance amount of Rs. 75,000/-. Accordingly, we allow the case against the O.P. on contest and direct the O.P. to pay to the complainant Rs.75,000/-(Rupees Seventy-five thousand) with interest @ 6 (Six) per cent per annum from the date of filing of this consumer complaint i.e. 30.5.2014 till the date of payment . O.P. is further directed to pay to the complainant Rs.3,000/-(Rupees Three thousand) towards cost of the proceeding. O.P. has to comply this order within one month from the date of order, failing which complainant to take steps for execution of the order as per law.