This C.C. is coming on before this Forum for final hearing in the presence of Sri.K.Satyanarayana, Advocate for complainant and of Sri.G.Sita Rama Rao, Advocate for opposite party; upon perusing the material papers on record; upon hearing the arguments, and having stood over for consideration, till this day, this Forum passed the following:-
ORDER
(Per Sri.Vijay Kumar, President)
1. This complaint is filed u/s.12-A of Consumer Protection Act, 1986. The averments made in the complaint are that the complainant is a medical practitioner having clinic at Nelakondapalli village for the last 35 years and he is member of Indian Medical Association, State Branch, Hyderabad. The opposite party offered a Special Tailor made Group Medical Policy for the members of Indian Medical Association, A.P.State. Accordingly, I.M.A., A.P. State and opposite party have entered into a contract of Group Insurance covering the health risk members of I.M.A. The complainant paid premium covering the sum assured of Rs.1,50,000/- for five years and the opposite party had issued a certificate insurance policy bearing No.052000/48/02/00065 vide certificate No.19 in the name of Indian Medical Association with State Branch. This policy covers the indemnity for a period of 5 years commencing from 1-7-2002 to 30-6-2007. After becoming member of this policy, the complainant was hale and healthy for three years. On 1-3-2006 he undergone investigations with quest diagnostic center wherein it was found that he is having Hyper Glycimia (diabetic) and this diagnosis was made in a routine manner. Subsequently he has taken necessary treatment for stabilization and subsequent to this diagnostic report of Medinova Diagnostic Centre, Khammam and Sri Vigneswara Diagnostic Center, Nelakondapalli Mandal discloses that the Plasma Glucose of fasting and Post Prendial are outside normal range. When he underwent diabetic checkup with MV diagnostic center at Hyderabad, it was detected that through the diabetis was under control type-2 diabetic retinopathy was identified (PDR) and this report is dt.12-3-2006 and this report was based on the advise of Dr.Manoj Kumar Dash. That thereupon the complainant had attended the LV Prasad, Eye institute, Hyderabad wherein it was diagnosed that the complainant is suffering with diabetic retinopathi for which a laser treatment was given. That on 27-12-2006 he had undergone operation to his right eye wherein silicone oil was placed inside the right eye and subsequently again eye operation was performed on 23-3-2007 for removing of silicone oil, as there was some complications in the operation, he remained in the hospital till 27-3-2007. During this period, he was administered with good number of medicines. Due to administering of medicines he experienced complications with functioning of kidney, which was later on diagnosed as acute kidney failure, which is resultant of using combiflam tablets and gentamycine and cafazalion injunctions and other powerful antibiotic drugs. He was admitted in KIMS hospital for acute renal failure on H.D. and was discharged on 11-4-2007. He was put on regular hemodialysis through right IJV. Even after discharge, was advised to undergo hemodialysis thrice in a week as per schedule and advised to consume medicines. In fact he was not having any history of kidney problem prior to the right eye operation. In all he spent an amount of Rs.1,00,000/- during the course of entire treatment right from 2-4-2007 to 25-4-2007 and also post operative expenditure. He made a claim before the opposite party for the amount spent by him for the treatment. The opposite party refused to pay the claim on the ground that he has suppressed the material facts. In fact the renal failure of kidney is a fresh disease, which resulted factor of using high dose antibiotic drugs at the time of eye operation. Repudiation of claim by the opposite party is unjust. In fact the renal failure is covered under the policy. Hence, the complaint.
2. Apart from the complaint, the complainant also filed affidavit reiterating the contents of the complaint.
3. On receipt of the notice, the opposite party filed its counter by denying all the averments made in the complaint in toto. It is further stated that Diabetic Nephrosclerosis is a direct result of long standing diabetis. This Histopathology report confirms the diagnosis as Diabetic Nephrosclerosis. Since Diabetis exists much before the policy inception date, the same is pre-existing as per the definition of pre-existing diseases (exclusion No.4(1)) of the policy, the claim was repudiated. This claim was not payable because there was a breach of cardinal principle of insurance viz., utmost good faith. Any breach of express or implied condition renders the contract of insurance as void abinitio. There is serious suppression of material facts while submitting the proposal form seeking insurance coverage. The complainant was suffering with diabetic mellitus much before taking the insurance coverage. Therefore, the claim was rightly repudiated and prayed to dismiss the complaint.
4. On behalf of the complainant, chief-affidavit is filed and Exs.A.1 to A.17 are filed and marked.
5. On behalf of the opposite party, the following documents have been filed and marked as Exs.B.1 to B.4.
Ex.B.1 - Copy of policy
Ex.B.2 - Proposal form
Ex.B.3 - certificate issued by B.Sudhakar
Ex.B.4 - Copy of Pathological report issued by
KIMS hospital.
6. Both the parties filed written arguments.
7. Perused the oral and documentary evidence. Upon which the points that arose for consideration are,
1. Whether the complainant is entitled to the amount
covered under the policy?
2. To what relief?
Point No.1:
8. It is not in dispute that the complainant is a medical practitioner and a member of Indian Medical Association, A.P.State. It is also not in dispute that IMA A.P.state and opposite party have entered into contract of Group Insurance covering the health risk of members of I.M.A. covering all the diseases including necrosis of lever and renal kidney failure. It is also not is dispute that the complainant paid a premium covering the sum assured of Rs.1,50,000/- for five years. After he became member of this policy, the complainant was hale and healthy for three years and thereafter he had undergone investigations and found that he is having diabetic. While undergoing diabetic check up, it was detected that though the diabetis is under control, Type II diabetis retinopathi was identified and accordingly he underwent operation to his right eye. During that period, he was administered with good number of medicines including combiflam tablets and gentamycine and Cafazalion injunctions. Due to taking of these medicines, the functioning of kidney was little bit damaged, later it was diagnosed as acute kidney failure. The complainant was admitted in KIMS hospital for acute renal failure and was discharged on 11-4-2004. The complainant was put to renal hemodialysis thrice in a week. The complainant was not having any history of kidney problem prior to the eye operation. This complication was developed because of taking toxicity of drugs. He spent an amount of Rs.1,00,000/- during the course of entire treatment. When he made the claim before the opposite party, the claim was repudiated on the ground that he suppressed the material facts as he succumbed to diabetis at the time of taking policy.
9. On the other hand the case of the opposite party is that Diabetic Nephrosclerosis is a direct result of long standing diabetis. This Histopathology report confirms the diagnosis as Diabetic Nephrosclerosis. Since Diabetis exists much before the policy inception date, the same is pre-existing as per the definition of pre-existing diseases (exclusion No.4(1)) of the policy. Therefore, the claim was repudiated. This claim was not payable because there was a breack of cardinal principle of insurance viz., utmost good faith. There is serious suppression of material facts while submitting the proposal form seeking insurance coverage. The complainant was suffering with diabetis mellitus much before taking the insurance coverage. The said fact was suppressed.
10. On this aspect of the case, the opposite party refers to a number of documents filed by the complainant himself. From the discharge summary of KIMS hospital, the complainant was diagnosed for Diabetic Nephrosclerosis. The important piece of evidence is MV diabetic clinic Assessment Report, dt.12-3-2006, wherein the complainant suffers from the diabetis mellitus from the last 20 years. Apart from this, the opposite party refers to another document issued by Medinova diagnostic Services, Khammam, dt.7-5-2006 wherein Dr.Vijay Shekar Reddy opined that the complainant is a diabetic mellitus patient from the last 20 years. Apart from this, the opposite party refers to another medical report, dt.6-6-2006 wherein Dr.Vijaya Sekhara Reddy opined that as per the investigations conducted on the complainant, the finding of diabetic indicates in normal range.
11. These are the documents, which are filed by the complainant himself clinchingly go to show that the complainant was a diabetic patient for the last 20 years. The learned counsel for opposite party refers to certificate issued by Dr.B.Sudhakar, Yashoda Hospital. In his letter, Dr.B.Sudhakar has clearly informed to the opposite party that the renal failure is revealed to longstanding type and the complainant is suffering from diabetis since 20 to 25 years. Due to which he was diagnose as acute on chronic kidney disease. He also refers to another document issued by KIMS hospital, wherein the doctors opined that features of complainant are consistent with diabetic nephrosclerosis. The problem of kidney is due to renal vascular disease.
12. On the basis of these documents, the opposite party has substantially proved that the complainant was suffering with diabetis even prior to filing of proposal form for taking the policy.
13. Moreover the complainant himself is a doctor. There is no reason as to why he himself is not aware of suffering with diabetis. The complainant being a doctor is well aware of suffering with diabetis, even though he could not submit the same at the time of taking the policy. The complainant ought to have disclosed the fact of suffering with diabetis at the time of taking the policy. But the suppression of the same is vital. Nondisclosure of the fact of suffering with diabetic amounts to nondisclosure of pre-existing disease by the complainant. The complainant has taken insurance policy by suppressing the fact that he was suffering with diabetis and he could not have taken the specific insurance policy for covering hospitilsation. It is clear case of suppression of material fact. Therefore, the opposite party company has rightly repudiated the claim of the complainant.
14. In view of the aforesaid reasons, we are of the opinion that the complainant being a doctor is well aware of diabetic symptoms, yet he suppressed the said facts at the time of taking policy. All the documents filed by him clinchingly go to show that he is a diabetic from the last 20 to 25 years, yet he has taken the policy by suppressing the fact. This act on the part of complaint amounts to suppression of real facts at the time of taking policy and in contravention of Section 4(1) of preexisting disease of the policy and moreover in the proposal form the complainant submitted that he is not suffering with any disease or illness. Since diabetis is a complication, which has been present for 25 years by the date of taking the policy, this is a preexisting disease. Therefore, the claim is not tenable. The opposite party rightly repudiated the claim. In the light of the aforesaid reasons, the complaint is liable to be dismissed.
15. In the result, the complaint is dismissed.
Dictated to the steno, transcribed by her, corrected and pronounced by us in the open forum on this the 27th day of April, 2010.
PRESIDENT MEMBER MEMBER
DISTRICT CONSUMERS FORUM, KHAMMAM
APPENDIX OF EVIDENCE
Witnesses examined for complainant:
-None-
Witnesses examined for opposite party:
-None-
Exhibits marked for complainant:
Ex.A.1 - Discharge summary issued by KIMS hospital, Hyderabad.
Ex.A.2 - Receipt No.950251, for Rs.7,038-86ps. Issued by KIMS
hospital, Hyderabad.
Ex.A.3 - IP detailed bill No.26972, for Rs.12,038-86ps.
Issued by KIMS
Ex.A.4 - Check out slip UMR No.97709
Ex.A.5 - Discharge summary issued by KIMS hospital, Hyderabad
Ex.A.6 - Statement of bill for Rs.84,324-59 ps.
Ex.A.7 - Statement of bill for Rs.8,630-59ps.
Ex.A.8 - Reply notice issued by opposite party
Ex.A.9 - Medical report issued by LV Prasad,
Eye Institute, Hyderabad.
Ex.A.10 - Operation Note discharge summary issued by LV Prasad
Hospital, Hyderabad.
Ex.A.11 - Policy instructions of opposite party
Ex.A.12 - Assessment report issued by MV Diabetis clinic, Hyderabad
Ex.A.13 - Report of fitness certificate issued by LV Prasad Hospital,
Hyderabad.
Ex.A.14 - Insurance policy certificate issued by United India Insurance
Company Ltd., Hyderabad for a period of 1-7-2002 to 30-6-
2007 in two pages.
Ex.A.15 - Lab tests reports issue by Medinova
Ex.A.16 - Medical report issued by Medinova
Ex.A.17 - Medical report issued by Medinova.
Exhibits marked for opposite party:
Ex.B.1 - Copy of policy
Ex.B.2 - Proposal form
Ex.B.3 - certificate issued by B.Sudhakar
Ex.B.4 - Copy of Pathological report issued by
KIMS hospital.
PRESIDENT MEMBER MEMBER
DISTRICT CONSUMERS FORUM, KHAMMAM
