THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.
C.C.192/2010
Dated this the 1st day of April, 2017
(Smt. Rose Jose, B.Sc, LLB. : President)
Smt.Beena Joseph, M.A : Member
Sri. Joseph Mathew, M.A., L.L.B. : Member
ORDER
Present: Joseph Mathew, Member:
This petition is filed under Section 12 of Consumer Protection Act, 1986.
The petitioner had taken a Hospitalization and Domiciliary Hospitalization Benefit Policy (Individual Medi Claim Policy) of the 2nd opposite party on 09/01/2006 having Policy No. 760603/48/05/75406. His case is that, as he experienced chest pain and breathlessness, he was hospitalized on 03/03/2006 and underwent coronary angiogram at Fathima Hospital, Calicut. He was advised to undergo early coronary angioplasty/PTCA to LAD and RCA. He is having no family history of cardiac problems. He was admitted at that hospital as an inpatient from 03/03/2006 to 13/03/2006. As the hospitalization and treatment expenses at the hospital was covered under the said policy, he had submitted a claim before the 2nd opposite party for Rs.1,47,707/- with all the relevant documents. The 1st opposite party had confirmed the receipt of the claim through their communication dated 06/04/2006 and 05/05/2006.
After two months of the submission of claim, the 1st opposite party as per their communication dated 06/06/2006 repudiated his claim on the alleged ground that under Exclusion Clause 4.2 of the Policy Conditions the disease for which the petitioner had undergone treatment was contracted by him during the 1st 30 days from the commencement date of the policy and hence excluded. It is alleged by the petitioner that no such Exclusion Clause was ever brought into his notice while taking the policy or later. The allegation made in the repudiation letter was not true or correct. It is stated that it was after thorough medical checkup and investigation including ECG and blood tests before the medical practitioners of the 2nd opposite party and after finding that he was perfectly alright and having no serious diseases, the policy was issued to him by the opposite party. At the time of making proposal for insurance or at the time of taking policy he was not aware of any heart ailment or of any other serious disease or having any symptoms of any ailments.
It is further stated that, for the first time he came o know that he was suffering from a serious ailment only after taking the policy and that too when he was diagnosed at the hospital and admitted there for undergoing treatment on 03/03/2006. The opposite party has not given any opportunity to him to state the true facts before taking decision of repudiation and the rejection in such a casual, indifferent and negligent manner is not correct and proper.
Thereupon he had issued a registered notice dated 25/08/2006 to the opposite parties requesting to reconsider their decision of repudiation and to settle the claim, but they have not taken any steps to settle his claim or even cared to send a reply to that notice. The repudiation of his legitimate claim on flimsy reasons is deficiency in service on the part of the opposite parties and that caused much financial loss, injury and other hardships to him. Hence this petition is filed to direct the opposite parties to settle his mediclaim by re-imbursing the treatment and hospitalization expenses incurred by him and to pay Rs.2,00,000/- as compensation for his sufferings and also cost of the proceedings.
The 1st opposite party in their version contended that being only an agent of the 2nd opposite party, they are bound by all the decisions taken by the 2nd opposite party with regard to claims subject to the terms and conditions of the policy. It is admitted that the petitioner is covered under the mediclaim policy with the 2nd opposite party under policy No. 760603/48/05/75406 since 09/01/2006 onwards but contended that he was not covered under any other policy prior to the present policy. On receipt of the claim form, they requested the petitioner to submit Indoor case paper, past history of the presenting complains and proposal form from the insurance company. A perusal of the certificate from the treating doctor with regard to the first consultation undergone by the petitioner, it is found that the first consultation was on 01/02/2006 and the duration of the present ailment was two weeks to the 1st consultation ie, the ailment contracted by the petitioner was in the 1st month of the policy. The period of hospitalization of the petitioner at Fathima Heart Foundation Hospital Kozhikode was from 03/03/2006 to 13/03/2006. He was admitted and treated for CAD, DVD, PTCA/Stent to LAD/RCA. The date of inception of the Policy was 09/01/2006. So in the light of the date of inception of the policy, 1st consultation and duration of the ailment, it is found that the admission and treatment in the hospital was for the ailment contracted in the first month of the policy.
As per the policy term 4.2 “Any disease other than those stated in Clause 4.3 below, contracted by the insured person during 1st 30 days from the commencement date of the policy is excluded. This exclusion will not apply if the policy renewed with the company without any break…………..”. So the claim of the petitioner falls under the Exclusion Clause of 4.2 of the policy and hence they are not liable to settle the claim for an ailment contracted within 30 days from the date of inception of the policy. It is further submitted that as per Clause 5.11 of policy condition “If the company shall disclaim liability to the insured for any claim hereunder and if the insured shall not within 12 calendar months from the date of receipt of the notice of such disclaimer notify the company in writing that he does not accept such disclaimer and intends to recover his claim from the company, then the claim shall for all purposes be deemed to have been abandoned and shall not thereafter be recoverable hereunder.” The matter of repudiation of the claim and its reasons was intimated to the petitioner vide their letter dated 06/06/2006. So it is contended that they have repudiated the claim as per the policy terms stated and due to the reason that the petitioner had taken the plea to recover the said claim after a delay of more than two years which is in breach of Clause 5.11 of the policy terms. Moreover the petitioner is not covered under any other policy with any other insurance company prior to this present policy also in order to exempt him from the Exclusion Clause 4.2 of the policy terms. Hence there is no deficiency in service on their part in repudiating the claim and hence prayed to dismiss the petition.
The 2nd opposite party filed version with more or less the same contentions raised by the 1st opposite party in repudiating the claim. As they have acted as per the policy conditions clause 4.2 and 5.11, there is no deficiency in service on their side as alleged and hence prayed to dismiss the petition with cost to them.
The points for determination are:
Whether there is any deficiency in service on the part of the opposite parties?
Reliefs and cost if any?
Evidence consists of the affidavit filed by the petitioner and the 2nd opposite party, Ext.s A1 to A6, B1, B2 and deposition of PW1, PW2 and RW1.
Point No. 1: According to the opposite parties they have repudiated the claim based on the policy Exclusion Clause 4.2 and 5.11. They produced the copy of Mediclaim Insurance Policy Condition and was marked as Ext. B1. In Ext. B1, Exclusion Clause 4.2 reads “Any disease other than those stated in Clause 4.3 contracted by the insured person during the 1st 30 days from the commencement date of the policy.” They also produced the copy of attending doctors report of the petitioner in support of their contention and this document was marked as Ext. B2. The opposite parties argued that as per Ext. B2, the 1st consultation of the petitioner with the doctor was on 01/02/2006 and the duration of the present ailment was two weeks prior to the 1st consultation ie. the ailment contracted was in the 1st month of the policy. The petitioner was diagnosed as CAD Double Vessel Disease (LAD+RCA) on 01/02/2006 as per Ext. B2 report. This contention was denied by the petitioner as false and baseless. He produced the copy of Medical Certificate issued by Dr. Ashokan dated 20/06/2006 to whom he had firstly consulted and who had also treated him later at the Fathima Hospital, in support of his averments and this document was marked as Ext. A4. In Ext. A4 it is clearly stated by the doctor that “The decision regarding the modality of treatment is taken only after the coronary angiogram done on 03/03/2006 and patient was advised to undergo early coronary angioplasty/PTCA to LAD and RCA. Coronary angiogram was not done earlier hence the decision regarding angioplasty is taken only on 03/03/2006 and not prior to this date.” The said doctor was examined as PW2 on 07/01/2015 to speak about the nature and duration of the illness contracted with the petitioner. In cross-examination, the doctor clearly stated that “The symptoms were sudden occurred on 03/03/2006, he undergone coronary angiogram. Before the angiogram neither the patient nor the doctor or anybody else would have known the existence of the disease or any symptoms or complaint necessitating angioplasty.” (Page 2-PW2). He further deposed that “In column No. 7 there is a reference to date 01/02/2006. That does not have any relation to the angiogram or angioplasty done later.” (page 3-PW2). The said deposition of the consultant doctor regarding the illness of the petitioner rebutted the contentions of the opposite parties that the illness contracted by the petitioner as per Ext. B2 report is within 30 days from the date of inception of the policy on 09/01/2006. Moreover the petitioner averred that he had no knowledge regarding any pre-existing disease at the time of making proposal for insurance or taking the policy. The deposition of the doctor-PW2 quoted above is clearly supporting the statement of the petitioner also. It is to be noted that, there is an exemption in the Exclusion Clause 4.2 in Ext. B1 policy condition that “This exclusion shall not however apply, if in the opinion of panel of medical practitioners consulted by the company for the purpose, the insured person could not have known of the existence of the disease or any symptoms or complaints thereof at the time of making the proposal for insurance to the company.” The deposition of PW2 clarified this matter in the cross examination. We didn’t see any reason to discard the statements of PW2, Dr. Ashokan. In the light of the facts stated, it is found that exclusion of 30 days in allowing a claim as per Ext. B2 is not applicable in this case. Ext. A5 is the copy of letter dated 25/08/2006 issued by the petitioner to the opposite parties requesting to reconsider the decision of repudiation of the claim and to settled the claim at the earliest by paying the claim amount. As the petitioner had taken such a step against the repudiation of the claim Clause 5.11 of the policy condition lost its relevancy in this case.
Considering the facts of the case and documents on record we are of the opinion that the repudiation of the claim merely based on the policy Exclusion Clause 4.2 without any other evidence is deficiency in service on the part of the opposite parties. Point No. 1 found accordingly.
Point No. 2: In view of the finding in Point No. 1, this petition is to be allowed and the petitioner is entitled to get reasonable reliefs.
In the result, the following order is passed.
The opposite party No. 2 is ordered to allow the claim of the petitioner and to pay the assured sum along with Rs.5,000/- (Rupees five thousand only) as cost of the proceedings to the petitioner within 30 days from the date of receipt of this order.
Dated this the 1st day of April, 2017
Date of filing: 23/10/2008
SD/-MEMBER SD/-PRESIDENT SD/-MEMBER
APPENDIX
Documents exhibited for the complainant:
A1. Letter issued by the 1st opposite party
A2. Letter issued by the 1st opposite party
A3. Repudiation letter
A4. Certificate issued by Dr. Asokan
A5. Copy of registered noticed sent to opposite parties
A6. Copy of postal receipts and acknowledgment card
Documents exhibited for the opposite party:
B1. Mediclaim Insurance Policy
B2.Attending doctors report
Witness examined for the complainant:
PW1. Joseph P.C. (Complainant)
PW2. Dr. P.K. Asokan, Anagha, West Nadakkavu, Calicut
Witness examined for the opposite party:
RW1. Mala Raghuraman ( Assistant Manager of Opposite party)
Sd/-President
//True copy//
(Forwarded/By Order)
SENIOR SUPERINTENDENT
