The Appellant as complainant filed a complaint before the District Forum against the opposite parties praying a direction to the opposite parties to pay a sum of Rs.97504/- with 12% interest, alongwith compensation of Rs.25000/- and cost of Rs.5000/-. The District Forum dismissed the complaint. Against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.04.02.2010 in CC.No.8/2003.This petition coming before us for hearing finally on 06.09.2011. Upon hearing the arguments of the counsel on both sides, perusing the documents, lower court records, and the order passed by the District Forum, this commission made the following order:
M. THANIKACHALAM J, PRESIDENT
1. The unsuccessful complainant, is the appellant.
2. The facts necessary for the disposal of the case are:
The complainant had taken mediclaim policy, from the opposite party not only for himself, but also for his family members, covering the period 2.11.2001 to 1.11.2002, assuring for each member Rs.1 lakh. In the month of March 2002, the complainant felt giddiness, for which he had consulted the doctor at Vijay Hospital, who advised him to admit as inpatient, where after examination angiogram was done, including angioplasty, incurring a sum of Rs.97504/-. Based upon the policy, the complainant lodged a claim, which was repudiated, as if the claim of the complainant comes under Clause 4.1, which is incorrect. The complainant had no pre-existing disease, and the problem occurred, just one month, prior to the date of taking the treatment, which was not properly considered by the opposite party, should be construed as negligence, as well as deficiency, causing mental agony also. Hence the complaint.
3. The opposite party, admitting the policy, questioning the jurisdiction of the Forum, resisted the case, interalia contending, that as per the opinion of the doctors, the complainant had pre-existing disease, at the time of inception of the policy, and therefore repudiation was done justifiably, which cannot be termed as negligence, or deficiency in service, thereby praying for the dismissal of the complaint.
4. The District Forum, while assessing the pleadings, affidavits and documents, felt that the opposite party had proved that the complainant was having pre-existing disease prior to the date of insurance, which is excluded, and therefore the repudiation will not come, within the meaning of deficiency in service. In this view, the complaint was dismissed, directing the parties to bear their respective cost, on 4.2.2010, which is impugned in this appeal, seeking the same relief, as prayed for in the complaint.
5. As evidenced by Ex.A1, the complainant had taken mediclaim policy, not only for himself, but also for his wife, covering the period 2.11.2001 to 1.11.2002. Under the policy, the sum assured for each is Rs.1 lakh. Admittedly, under the exclusion clause 4.1 âall diseases/ injuries, which are pre-existing, when the cover incepts for the first timeâ, excluded thereby patently indicating if the insured had taken any treatment for the pre-existing/ existing disease, on the date of inception of the policy, the company is not liable to pay the amount, or in other words, the company is not entitled to reimburse the mediclaim. As far as this position is concerned, we do not find much controversy.
6. The complainant, as seen from Ex.A6, elsewhere in the month of April 2002, had some heart problem. Therefore, he was admitted in the Vijaya Heart Foundtion Hospital on 18.4.2002, wherein he has undergone angiogram, followed by consequential corrections by stunting of left renal artery. According to complainant, he had spent the sum of Rs.97,504/-. Claiming that amount, when he lodged a claim, a insurance company informed that the disease was a pre-existing disease, at the time of making insurance proposal, and therefore not liable to be reimbursed, under exclusion No.4.1. Thus unable to get the medical bill reimbursed, though he was having a valid mediclaim policy, the complainant came to the consumer forum, failed, resulting this appeal.
7. In view of the fact, the policy was accepted, enforceability was expected, the complainant had taken treatment, not challenged. So it is for the opposite party to prove the pre-existing disease, only for that disease, the complainant had taken treatment, and therefore they are entitled to invoke clause 4.1 of the policy. If they have failed to prove, by adducing substantial evidence, then as of right, the policy holder viz. the complainant is entitled to be reimbursed, since the claim is less than the amount assured under the policy, as said above. Unfortunately, the District Forum failed to analyse the document, further failed to apply the mind regarding the burden of proof also, landing in an erroneous view, thereby compelling us to interfere with the findings unavoidably.
8. The opposite party, realizing their responsibility to prove the pre-existing disease, based upon the records submitted by the complainant, sought the opinion from its panel doctor, as seen from the communicationdt.21.5.2002, Ex.B2, which elicited a reply Ex.B3. Based upon this document alone, Ex.B4 repudiation emanated. If Ex.B3, and the case sheet relied on by the complainant under Ex.A6, failed to prove the pre-existing, then it should be construed, that the opposite party failed in their attempt to prove the pre-existing disease. It is the usual practice of the medical practitioner, when a patient goes to the hospital, enquire about the history record the same. Accordingly, as seen from Ex.A6 recording would go to show, that the complainant was suffering from hyper tension, since one month, and he came to the hospital for further evaluation and management. The doctor has also recorded, when there was no dispute between the parties, at the earliest point of time âno history of chest pain, breathlessness, palpitation, syncope hematuria or swelling of foot. He is not a known patient of diabetes, APD or asthma. No significant personal or family historyâ. Therefore, this record will not prove the pre-existing disease. It is also not the case of the opposite party, that the discharge summary was concocted or fabricated, to enable the insured to lay a false claim. Infact based upon this discharge summary alone, the panel doctor appears to have given the opinion, wherein also we find no specific finding, regarding the pre-existing disease. The doctor who has issued the certificate viz. Ex.B3, has also not filed any affidavit, as seen from the records. In the certificate also, he has not stated that he has perused the records, the treatment given or the procedure followed, which certainly would suggest, based upon any literature that the complainant should have suffered with pre-existing disease, on the date of inception of the policy. For better appreciation, we will reproduce Ex.B3.9. Ex.B3 reads âThe insured might be aware of the pre-existence of the disease â possible. ; Renal artery stenosis is a disease that develops slowly over a period of years, but it can manifest suddenly.â From the above reading, it is seen the doctor, who opined was not certain, that the insured should have had knowledge about the pre-existing disease at the time of inception of the policy. Similarly, the doctor has opined the possibility of developing the renal artery stenosis, may be over a period of time, as well it can manifest suddenly also, thereby justifying the case of the complainant, which is in accordance with the history recorded, by the doctor concerned at the time of giving treatment, which we find in the history, as indicated. Therefore, we are of the considered opinion, the opposite party miserably failed to prove the pre-existing disease, which they are bound to prove, and we find no reason to discard the case of the complainant, viz. that only prior to one month, he had this problem, for that he had taken treatment, which is not per se, excluded from the claim, as seen from the clauses available in the policy itself. Unfortunately, the District Forum, not properly analyzing Ex.B3, not properly understanding the pre-existing disease, has committed an error in depriving the right of the complainant, which was unjustifiably repudiated by the insurance company, which we are willing to rectify, and in this view, the appeal is meritorious, liable to be accepted.
10. In the result, the appeal is allowed, setting aside the order of the District Forum in CC.No.8/2003 dt.4.2.2010, and the complaint is allowed, directing the opposite parties to pay a sum of Rs.97,504/-, with interest thereon at 9% p.a., from the date of repudiation viz. 3.7.2002 (Ex.B4), till payment. Since we are awarding interest reasonably, we decline to grant compensation, allowing the cost of Rs.2000/-. There will be no order as to cost in this appeal.