A. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD
FA 809/2013 against CC 513/2010 on the file of the District Consumer Forum II, Hyderabad.
Between :
01. United India Insurance Company Ltd
6-2-976, 402, 4th floor, Pavani Estates,
Opp. Telegraph office,
Khairatabad,
Hyderabad rep. by its Branch Manager
02. The Claim Manager,
Med-seva health Care (IPA) Ltd
3rd floor, Flat no. 311, Diamond Towers
Besides Taj Hotel, Sarojini Devi Road,
Secunderabad ..
Rep. by the competent authority to prefer petition
The Deputy Manager, United India Insurance Co. Ltd
Div. officeNo. 5, Vengal Rao Nagar,
Hyderabad ..Appellants/opposite parties
And
01. M. Seetharamaphani, S/o M. Neelakantam,
Aged 30 years, Flat no. 41013, Janapriya Utopia,
IV Block, Wing-B, Hyderguda, Rajendranagar,
Hyderabad – 500 048 (died )
02. M. Neelakantam, S/o Seetarama Murthy
Aged 61 years,R/o Flat no. 41013,
Janapriya Utopia, IV Block, Wing-B,
Hyderguda, Rajendranagar,
Hyderabad .. Respondent/complainant
Counsel for the Appellants : Mr. K. N. V. Radhakrishna
Counsel for the Respondents : M/s. Gogineni Krupa chand
Coram ;
Sri R. Lakshminarasimha Rao… Hon’ble Member
And
Sri T. Ashok Kumar .. Hon’ble Member
Friday, the Eleventh Day of October
Two Thousand Thirteen
Oral Order : ( As per Sri T. Ashok Kumar , Hon’ble Member )
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1.This is an appeal preferred by the opposite parties as against the orders dated 02.09.2011 in CC 513/2010on the file of the District Consumer Forum II, Hyderabad. For convenience sake, the parties as arrayed in the complaint are referred to as under :
2.The brief facts of the complaint are that the father of the complainant took medi-claim policy to his family on 10-7-2006 till mid night of 09.07.2007 and later it was renewed by the complainant from time to time and it was in force till 11.07.2010. While the policy was enforce, the complainant was admitted into the hospital on 26-6-2009 and after thorough medical examination, it was found that both kidneys of the complainant were failed and requires dialysis twice in a week. The complainant paid all the bills raised by the hospital and spent amount towards medicines. The bills issued by the hospital were sent to the opposite party No.2 along with medi-claim form on 30-6-2009 for a sum of Rs.24,459/- for re-imbursement. After receipt of the claim, the opposite parties have neither replied nor paid any amount. That as per the advice of the Doctor, the complainant underwent dialysis twice in a week and the amount spent for the treatment is given below in detail :-
Claim Date Amount
1st 30-06-2009 24,459=00
2nd 24-07-2009 7,042=00
3rd 31-07-2009 4,100=00
4th 19-08-2009 3,600=00
5th 09-09-2009 3,800=00
6th 14-09-2009 3,552=00
7th 23-09-2009 3,800=00
8th 05-10-2009 1,750=00
9th 28-10-2009 5,935=00
10th 04-12-2009 3,623=00
11th 08-01-2010 8,924=00
12th 11-02-2010 6,115=00
13th 11-03-2010 5,442=50
Total :: 91,236=50
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The complainant and his father met the opposite parties a number of times but they used to say that their claim is under process and will be settled in due course. Vexed with the attitude of the opposite parties, the complainant got issued a legal notice dated 11-3-2010 to settle the claim but there was no response from them. The second complainant is a retired employ and borrowed the amount from private financiers on huge interest and spent the amount for the above said treatment. The acts of the opposite parties amount to deficiency in service and thus filed the complaint to direct the opposite parties to reimburse an amount of Rs.1,66,507/- towards treatment, medicines, mental agony, interest and travel expenses.
3..OPs filed counter opposing the claim of the complainant and denying the allegations made in the complaint and the brief facts of the counter are as under :
The 1st complainant (deceased) got included his name in the medi-claim policy taken by the 2nd complainant, who is father of the 1st complainant valid from 10-7-2006 to 9-7-2007. In the proposal form the complainants signed that the first complainant is not suffering from any ailment. Subsequently, the deceased complainant had taken individual mediclaim policy for the period from 12-7-07 to 11-7-2008. Even thereafter also the first complainant did not reveal his ill health when the policy was renewed from time to time. The complainant No.1 (deceased) made his 1st claim dated 30-3-2009 along with the medical certificate and it was received by opposite party No.2 on 14-7-09 and the said certificate discloses that the patient is suffering with chromic kidney disease (stage-V) requiring Haemo-dialysis which is connected to “Proteinuria” and swelling of feet. Thus the patient is having the history of swelling of feet, vomiting and chest deformity since childhood. The patient is aware of the said disease from February, 2008. The panel Doctor opined that “ as the patient is suffering from chronic kidney disease stage-V means, as the said disease is progressive one does not occur suddenly, he should be suffering with same for a long period and also opined that stage-V is severe/serious condition with poor life expectancy”. . With regard to the first claim, the 1st complainant had submitted 14 claims, which were enquired into by referring the documents to its panel Doctor and obtained information only on 12-11-09. All the medical bills are not supported by prescription of the Doctor even the medical certificate produced for each claim is only a Xerox copy of the medical certificate issued for the first time. In spite of the oral intimation of the rejection, the complainant No.1 had given consolidated representation for 11 claims to opposite party No.2 on 11-3-2010 and that the said representation is not at all received by the 1st opposite party. Based on the said representation, the second opposite party submitted all records to the 1st opposite party to issue appropriate rejection order. There is no deficiency in service on their part. The first complainant is not entitled for reimbursement of medical bills as he has suppressed pre-existing disease and hence rejected his claim and thus prayed to dismiss the complaint.
4.Both sides filed evidence affidavit reiterating their respective pleadings and Ex. A-1 to A 14 were marked on behalf of the complainant and Ex. B -1 to B 25were marked for the OP.
5. Having heard both sides and considering the evidence on record, the District Forum allowed the complaint in part and directed the opposite parties jointly and severally to pay a sum of Rs. 91,236.50/- (Rupees ninety one thousand two hundred and thirty six and fifty paisa only) with interest at 9% p.a. from 29-6-2009 till realization and also pay Rs.20,000/- towards mental agony and costs at Rs.5,000/- (rupees five thousand only) within two months from the date of receipt of this order.
6. Feeling aggrieved with the said order the opposite parties filed this appeal on several grounds and mainly contended that the District Forum failed to see that the 1st complainant suppressed his pre-existing disease and also suffered chest deformity since childhood at the time of taking of the medi-claim policy and thereafter also when the said policy was renewed from time to time and that there is no expert’s opinion in this connection and that the District Forum failed to understand the medical opinion contained in Ex B20 given by the doctor wherein it is held that the patient is suffering from Chronic Kidney disease ( stage V ) requiring Haemo-dialysis which is connected to “Proteinuria” and swelling of feet and that the patient is having the history of swelling of feet, vomiting and chest deformity since childhood and the 1st complainant is aware of the said disease from February, 2008 and that the insurance policies are contracts between the parties based on the principle of Ubberimma fides and that the medical bills are not supported by prescription of the doctor and that the original medical certificates are not filed and thus prayed to allow the appeal and set aside the impugned order.
7. Heard both sides with reference to their respective contentions in detail.
8. Now the point for consideration is whether the order of the District
Forum is sustainable ?
9. There is no dispute that the deceased first complainant got his name included in the Medi claim policy taken by his father ie the second complainant which was in force from 10.07.2006 to 09.07.2007 and that the proposal form was signed by both the complainants. It is also not in dispute that the first complainant did not mention in the proposal form that he was suffering from any ailment. It is also an admitted fact that the deceased complainant had taken individual medi claim policy for the period from 12.7.2007 to 11.7./2008 and in the said policy also he did not report that about his ailment. The said first complainant got renewed his medic claim policy for the period covering from 12.7.2008 to 11.07.2009 and from 12.7.2009 to 11.7.2010 and in the said policy also he did not disclose any ailment. The contention of the complainants is that the first complainant had no knowledge about the alleged kidney disease when he had taken policy and hence he did not suppress any material aspect to the OP in the said context and that the District Forum rightly discussed the case and allowed the claim. Whereas the contention of the OP is that even though the 1st complainant was suffering from severe kidney problem much prior to taking of the policies and also joining in the medi claim policy taken by his father in the month of July, 2006 deliberately the complainant suppressed the kidney ailment of the first complainant and obtained the policies and therefore the Ops rightly repudiated the claims put forth by the complainants and that the district Forum did not consider the case in a correct manner and wrongly allowed the claim and as such the same is liable to be set aside. It is true that Insurance policies are contracts between the parties and they are based on the principle of Ubrimafides and the decision reported in AIR 1962 SC 814 between Mithulal Naik Vs LIC of India it was held that an Insurance policy is an agreement in most good faith between the insurer and the insured and any breach of the said agreement by suppressing material facts on the part of insured would result in repudiation of the claim by the insurer. It is also not in dispute that polices amount to contracts and the conditions thereof are binding on both the parties and that they are bound by the contract. The deceased first complainant made his first claim dat. 30.03.2009 enclosing medical certificates and it was received by the second OP on 14.7.2009 and the said certificate discloses that the deceased first complainant was suffering from chronic kidney disease Stage V and that he requires Haemo dialysis and that the said disease connected to “Proteinuria “ and swelling of feet. The OPs contend that patient is having history of swelling of feet, vomiting and chest deformity since childhood and that he is aware of the said disease but suppressed the said ailment.
10. It has to be seen in this case as to whether the complainants suppressed previous ailment of the first complainant deliberately for wrongful gain at the time of taking the policies in question.
11. According to the opposite parties on receiving of the first claim on medical certificate Ex. B … the same were forwarded to the panel doctor of the Ops and he opined vide Ex B1 that as the patient suffering from chronic kidney disease stage V it means that the said disease is progressive one does not occur suddenly and that he should; be suffering from the same for a long period and that stage V is severe and serious condition with poor life expectancy. Basing on the said opinion the claim of the first complainant was repudiated by the Ops.
12. The Ops mostly rely upon Ex B1 in support of their contention. Admittedly, the person who gave Ex B1 has not been examined on behalf of the OPs nor his evidence affidavit is filed in support of the contents of the document. Had it been so done, the complainants would have chance to cross examine the witness and impeach credit of his evidence. Since it was not so done the complainants were deprived of such a chance and therefore Ex B1 has no value in this case. Admittedly he is a panel doctor and therefore his obliging the OPs in giving such a certificate cannot be ruled out. The Ops did not place any material on record to prove that the deceased complainant was suffering from such a disease since 2006 or he was under treatment for any ailment between 2006 to 2009,. The interpretation of the author of Ex B1 for the words ‘chronic stage V’ cannot be understood that it was in existence since a long time i.e. prior to taking the policy. In a book named as “Kidney Care” Telugu version written by Dr. C.L. Venkata Ra, MS. FRCS ( UK ) , in page 14, he has written that “in some of the patients no symptoms are visible till the kidneys are totally damaged and therefore there is acceptable force in the contention of the complainant’s counsel that the ailment was not known to the first complainant till he approached the doctor in the year 2009. No medical literature has been filed by the OPs contra to the said version of Dr. C.L. Venkata Rao. The law requires the proof that the deceased first complainant was aware of the disease prior to his taking or joining in the policy and that deliberately he suppressed the same and obtained the policies. There is no dependable evidence from the side of the Ops in the said context. So also there is no evidence from the side of the OPs that the alleged disease was a genetic one. In Ex. A 20 discharge summary also it is shown that the disease is chronic stage V and more than that there is no other description to say that since how long the disease could have been in existence that apart in the said document discloses that the deceased first complainant noticed the swelling in feet in February, 2008 and the said aspects also defeats the case of the opposite parties. The District Forum discussed the case in a right manner and allowed the claim of Rs.91,236.50 with interest @ 9% PA from 29.6.2009 till realization and when such claim was allowed with interest in the circumstances of the case awarding Rs.20,000/- compensation could not be appreciated and therefore, the compensation part has to be set aside. However, costs fo Rs.5,000/- remains unchanged. Thus the order of the District Forum is liable to be modified.
13. In the result, the appeal is disposed of modifying the order of the District
Forum directing the opposite parties 1 and 2 jointly and severally to pay a sum of Rs.81,236.50 together with interest @ 9% pa from 29.6.2009 till realization and also costs of Rs.5000/- to the second complainant and the direction to the opposite parties to pay compensation of Rs.20,000/- . to the complainants is set aside. Parties shall bear their own costs of the appeal. Time for compliance is four weeks from the date of receipt of the order.
MEMBER MEMBER
DATED : 11.10.2013.
