State Consumer Disputes Redressal Commission
N.C.Thomas vs United India Insurance Company Ltd on 25 March, 2008
The witness has further deposed that the patient who was havin
KERALA
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD,
THIRUVANANTHAPURAM
OP:37/2000
JUDGMENT DATED.25.03.08
PRESENT:-
SMT.VALSALA
SARANGADHARAN : MEMBER
SRI.
S.CHANDRA MOHAN NAIR : MEMBER
N.C.Thomas,
Nedumkariyil
House,
Kuttikadu.P.O.,
: Complainant
Chalakkudy,
Trichur.
(By
Adv.Electron.A)
Vs
1.United
India Insurance Company Ltd.,
Divisional
Office No.1,
Vettukattil
Buildings,
Beach
Road, Ernakulam,
Cochin
- 16.
(By
Adv.M.Nizamudeen)
2. Mercury
International : Opposite
Parties
Assistance
and Claims Ltd.
P.O.
Box No.673, Hove,
Sussex,
B.N.35 JL,
England.
JUDGMENT
SHRI.
S. CHANDRAMOHAN NAIR : MEMBER This complaint is filed consequent to the repudiation of a claim under Mediclaim insurance policy issued by the opposite parties to the complainant.
2.The grievances voiced bereft of unnecessary details in the complaint are as follows:-
3.The complainant is a social worker and in connection with an overseas travel to meet his son at Munichen, Europe, he took a Videshayathra Mithra Policy vide policy No:757947/1999 from the 1st opposite party which was valid from 8..6..1999 to 21..8..1999. At the time of taking the policy, the complainant was 54 years of age and was of sound health. The complainant reached Germany on
9..6..1999 where he met his son who was working there and stayed with him. On 9..8..99, quite unexpectedly the complainant suffered a heart attack and was admitted at Louis Perlast Hospital. On investigation it was found that the complainant had a block in the coronary artery and as an emergency operation was suggested, he was referred to Bogan house Hospital where a bypass surgery was conducted. After the surgery and post operative care he was again taken back to Louis Perlast Hospital and was treated till 9..9..1999. The complainant was served with 3 bills for a total sum of DM-40169.49 (German Mark) and since he was not fully recovered he was taken back to India on 25..9..1999 accompanied by his daughter-in-law and a small baby for which another sum of 1949 DM was also expended in connection with the return journey.
4.On reaching back India, the complainant preferred a claim before the 2nd OP for the payment 46854.73 DM being the total expenses incurred by him including boarding, lodging, transportation and telephone charges. On a letter dated:23..11..99 issued by the 2nd OP, the complainant sent all the bills and connected documents as required by the 2nd opposite party. However, the complainant alleges that the 2nd OP instead of allowing the claim, repudiated the claim of the complainant stating that the policy would not provide cover for a medical condition known or treated before 12 months of the issuance of policy and also the policy was not designed to provide and indemnify in respect of medical services, the need for which arises out of the one existing conditions. It is aggrieved by the said repudiation that the present complaint is filed for getting directions to the 1st opposite party who is the insurer to pay Rs.10,30,805/- (equivalent to 46854.72 DM) being the medical expenses met by the complainant with 18% interest along with compensation of Rs.50,000/- for the mental agony, tension and hardships and costs of the proceedings.
5.Though notices were issued to both opposite parties, only the 1st opposite party entered appearance and contested the matter. The 2nd opposite party could not be served with the notice even after repeated steps being taken by the complainant and a petition was filed for removing the 2nd opposite party from the party array which was allowed.
6.The 1st opposite party filed a detailed version wherein it is contended that the complaint is not maintainable and that the policy is intended only to indemnify the expenses incurred for unforeseen, unexpected, sudden happenings and not for certainties and complications which could arise due to pre-existing diseases and conditions of the injured. It is further submitted that as the complainant was below 60 years of age the policy was issued without insisting for medical report and the complainant had taken the policy giving false declaration to the effect that he was in good health and free from medical and physical diseases, that he had not suffered any illness or disease in the 12 months preceding the first day of insurance. The opposite party also contended that in the proposal the complainant had suppressed many material facts which the complainant was aware of and if the complainant had revealed such facts, the opposite party would have insisted for ECG and other test reports before issuing the policy.
7.The opposite party also relied on a medical certificate by Dr.C.M.Peter issued after the alleged occurrence of the heart attack and treatment in Germany, wherein it is certified that the complainant was under treatment for hyper tension for the preceding 4 years and that might have been a reason for the heart attack and the complainant had purposefully suppressed the treatment for hyper tension from the opposite party. The opposite party contend that if such disease was disclosed, the opposite party would have insisted for a Cardiologist's report also and the complainant having suppressed the material facts, the opposite parties are not liable to indemnify the complainant and as such there was no deficiency on their part in repudiating the claim. They also prayed for dismissal of the complaint with cost.
8.The complainant filed petition to amend certain portions of the complaint which was vehemently objected by the opposite party and finding that the amendments would materially affect the original pleadings in the complaint, the same was not allowed.
9. The points that arise for our consideration are:-
(i) Whether the complainant is a consumer?
(ii) Whether there is any deficiency of service on the part of the opposite parties?
(iii) Reliefs and costs?
10. Evidence consists of the oral testimony of the expert witness by name Dr.D.Kannan, consultant Cardiologist of Sree Narayana Medical Mission Hospital, Kollam as PW1 and the complainant as PW2. Documents A1 to A19 were marked on the side of the complainant. The Assistant Manager of the 1st opposite party was examined as RW1 and documents B1 and B2 were marked.
11. Point No.(i) The complainant has taken the policy from the opposite party by paying consideration and by the provisions of the CP Act he claims to be a consumer under 2 (1) d
(ii). The opposite party has also no serious case that the complainant is not a consumer and as such the complainant is a consumer and this Commission have the jurisdiction to try and dispose of the matter involved in the complaint.
12. Point No.(ii):- The complainant has given evidence in terms with the averments contained the complaint. He has stated that he had no diseases at the time of taking the A1 policy and it was quite unexpected that he suffered chest pain on
9..8..1999 and was taken to the Louis Perlast Hospital. Even at that time his BP was normal and as advised by the doctors of the Louis Perlast Hospital he underwent Bypass surgery at Bogan house hospital and was under treatment till 9..9..1999. The copy of bills towards the treatment were produced under Ext.A3 to prove the claim that was made before the opposite party. He has also incurred expenses in connection with his return journey to India accompanied by his daughter in law and grand daughter. It is his specific case that the insurance policy covered the reimbursement to the limit of 50,000 US Dollars and his claim is well within the limit and that the opposite party is liable to pay the claim made by him.
13. The complainant had examined PW1, Dr.D.Kannan to substantiate his case that he had no hyper tension as contended by the opposite party. The witness (PW1) has stated that the heart rate and rhythm of the patient at the time of admission as per case records (A2) is HF 60/m and RR-120/80. It is deposed by him that the complainant had a stable BP even at the time of taking him to the hospital. He has also deposed that mio cardial infraction was not due to the exclusive result of any high BP of the complainant. Based on A2 records, the witness further states that there was no organ damage due to BP to the complainant and it is his opinion that if there was hyper tension it would have a baring on the organ damage which in the instant case the complainant did not have. To a question put to him he has answered that if a patient was having alarming high BP there should have been evidence of organ damage. The witness has further deposed that a person who is having mild or moderate BP may also be subjected to myo-cardial infarction for some other known or hidden reasons. In the instant case it is the opinion of the witness that on perusal of the medical records he does not think that myo cardial infarction of the complainant requiring bypass surgery was not due to the exclusive result of any high BP.
14. The complainant has given evidence to the effect that he was quite healthy at the time of taking the policy. He had no diseases and even the medical certificate produced as Ext.A12 does not show any symptoms of myo cardial infarction or other serious symptoms. It is his case that the bypass surgery that was required while he was abroad was unexpected and that he had no other alternative but to get it done in order to save his life. The policy was taken to safeguard him from the expenditure that would be faced from unexpected illness and sudden happening which in the instant case had happened. Hence it is his specific case that the opposite party ought to have allowed his claim on the ground that there was no suppression of any material facts and that the opposite party has committed deficiency in service in disallowing the claim of the complainant.
15. On the other hand, the opposite party took the consistent view that the complainant had suppressed the material fact relating to his illness at the time of taking the policy and relying on Ext.A12/B1 they pleaded for the dismissal of the complaint. The opposite party submitted that Ext.A12/B1 is a substantive piece of evidence for justifying the repudiation of the claim made by the complainant. It is argued that as per Ext.A12/B1 it is clear that the complainant was suffering from hyper tension for the last 4 years and that fact was not disclosed by the complainant and in such a circumstance the surgery that was necessitated was the out come of the hyper tension that the complainant had for the last 4 years and in such a situation the repudiation should be justified and the complaint is to be dismissed with costs.
16. Ext.A3 contains the medical bills showing that the complainant had undergone the bypass surgery at Bogan house hospital in Germany and after the surgery he was treated in Louis Perlast Hospital till 9.9.99. On a perusal of Ext.A12/B1 it is observed that this certificate is dated 19.9.99 and not in the letter head of the doctor who issued the same. The complainant has stated that that certificate was obtained by his relatives from Dr.C.M.Peter of IVGM Hospital, Chalakudy as per request from the opposite party to honour the claim of the complainant. But it is to be noted that though the Doctor had stated that the complainant was suffering from hyper tension for the last 4 years, the doctor was not examined to prove such a case. The opposite party has very much relied on Ext.A12/B1 in repudiating the claim. The opposite party would argue that the copy of the certificate was produced by the complainant also and hence there was no need to examine the Doctor who issued the certificate. It is to be noted that Ext.A12/B1 was issued by the Doctor without examining the patient and was given in his absence on 19.9.99. It can be seen that the complainant was not in India on 19.9.99. It is further to be noted that the expert witness has deposed to the effect that hyper tension for a long period need not be the reason for heart attack. The only contention of the opposite party is that there was suppression of the BP status of the complainant. The learned counsel for the complainant invited our attention to the fact that if the certificate is not proved by examining the person who issued it then that certificate can not be relied upon and in the instant case also the certificate Ext.A12/B1 is not proved by examining the doctor who issued the same. He has also taken us to the decision of the Hon.National Commission in LIC Vs Badri Nageswaramma & Other (2005 (1) CPR 104 NC) wherein it is held that a certificate of treatment simplicitor can not be made the basis of repudiation of claim and the opposite party has committed deficiency of service as alleged in the complaint.
17. It is the admitted case of both the parties that the complainant had taken the policy which was valid from 8.6.99 to 21.8.99. It was on 9.8.99 that the complainant suffered the heart attack and was admitted and subsequently the bypass surgery was undergone. The opposite party has no case that the complainant did not undergo any such surgery. Their only contention is that the complainant had withheld the information of the fact of BP while taking the policy. It is argued by the learned counsel for the complainant that the complainant was quite healthy and did not have any symptoms of heart disease before taking the policy and going to Germany. He has also argued that bypass surgery is very costly in Germany compared to Indian hospitals. Moreover, it is his case that he did not have any alarming BP resulting in the heart disease and warranting the operation. It is also argued that apart from the bare statement that there is suppression of fact regarding BP no other cogent reasons have been stated by the opposite party for repudiating the claim of the complainant.
18. On a careful examination of the evidence we find that the bypass surgery done on the complainant was not because of the reason of BP that existed previously. The opposite party has also not given any evidence to show that BP was the sole reason for the mio cardial infraction and the resultant bypass surgery undergone by the complainant. Ext.A14 is the copy of the proposal form produced by the complainant In page 2 under the MEDICAL HISTORY, only the general question like:
1) Are you in good health and free from physical and mental disease or infirmity?
Have you ever suffered from any illness or disease up to the date of making this proposal?
3) Do you have any physical defect or deformity?
4)Have you ever been admitted to any hospital/Nursing Home/Clinic for treatment or observation?
5) Have you suffered from any illness disease or had an accident in the 12 months proceeding 1st day of insurance?
It is noted that the complainant has answered 'YES' to the first question and answered 'No' to the remaining four questions. The complainant has vehemently argued that he did not have any illness and he did not suppress any material information from the opposite party
19. It is also to be noted that there are very large number of persons who have hyper tension without even knowing it and it is only a common condition. The learned counsel for the complainant has relied on the 6th report of the Joint National Committee on Prevention, Detection, Evaluation and Treatment of High Blood Pressure. (Volume I) and argued that systolic value below 130 and diastolic value below 85 are normal and only if it comes above 140 and 90 respectively one is said to be having hyper tension. Hence it can be seen that the non disclosure of the fact of BP by the complainant before taking the policy does not tantamount to suppression of material fact as the complainant was having a systolic value of 120 and diastolic value of 80 even at the time of taking him to the hospital as per Ext.A2 case records.
20. It is true that Section 45 of the Insurance Act is the fundamental provision governing the repudiation of a claim on the ground of suppression. But the 'onus probandi' in such cases rests heavily on the party alleging suppression, namely, the insurer. In the instant case though the opposite party has contended that the claim was repudiated on the ground that there was suppression of the fact that the complainant was having BP for the last four years, no effective steps was taken by them to prove it. There is also no evidence, as noted earlier, to show that BP was the reason for the heart attack to the complainant and hence the argument of the opposite party that myo cardial infarction and the surgery were consequent to the BP, bolds no ground. Moreover there is also no case for the opposite party that the complainant was treated for any cardiac diseases and in the aforesaid circumstances we are of the view that the opposite party had committed deficiency in service in repudiating the claim of the complainant raising filmsy grounds.
21. Points No.(iii) Reliefs and Costs:- There is no dispute with regard to the treatment and surgery undergone by the complainant by virtue of Ext.A9 claim form. The complainant has claimed a total sum of Rs.46,854 DM (German Mark) towards reimbursement of medical expanses which include hospital bills and the expanses incurred by the complainant for his journey back to India accompanied by his daughter in law and grand daughter. The complainant has also claimed interest at the rate of 18% on the above amounts and Rs.50,000/- as compensation for the mental agony, tension and hardships endured by him. On a perusal of Exts.A1, A3, A4, A9 and B2 we see that the hospital bills alone are liable for the reimbursement and the other expanses met by him can not be included for the reimbursement. Hence the hospital bills coming to Rs.40,169.49 DM would alone need be paid by the opposite party and the above amount can be paid in Indian currency which would come to Rs.22/- per DM at the time of making the complaint in May 2000. The complainant is also entitled to get compensation which can be in the form of interest and we order 6% interest on the above said sum from the date of complaint till the date of realization by the complainant.
In the result the complaint is allowed and the first opposite party is directed to pay to the complainant a sum of 40,169.49 DM (German Mark) in the value of Indian Rupees at the rate of Rs.22/- per DM with 6% interest from the date of complaint till realization. The complainant has also entitled to get the cost of Rs.2500/- to be paid by the opposite party.
SRI.S.CHANDRA MOHAN NAIR : MEMBER SMT.VALSALA SARANGADHARAN : MEMBER Appendix:-
On the side of the complainant:-
PW1: Dr.Kannan, Consultant and Cardiologist, Sree Naraya Trust Medical Hospital, Kollam.
PW2: Complainant Documents Ext.A1 to A19:-
Ext.A1: Copy of Videsh Yatra Mitra Policy (Overseas Mediclaim Policy) Ext.A2: Copy of Medical Certificate issued by the Boganhause Hospital Ext.A3: Copy of the bills issued by the hospital Ext.A4: Confirmation Letter sent by M/s.Mercury International Ext.A5: The letter dated 10.5.2000 and bill sent to the sponsor by the Munich Hospital.
Ext.A6: The letters and bills issued by the Lawyer firm of the hospital to the Sponsor of complainant at Germany.
Ext.A7: The documentary evidence towards the availing of the bank loan by Complainant's sponsor.
Ext.A8: Letter dated 23.11.1999 sent by M/s.Mercury International to the Complainant.
Ext.A9: Copy of the Letter dated 18.1.2000 sent by complainant to Mercury International along with claim form, bills and Physician's report Ext.A10: Repudiation letter issued by M/s.Mercury International Ext.A11:Medical Certificate issued by Dr.Chandran dated 10.9.1999 Ext.A12: Medical certificate dated 19.9.1999 issued by Dr.C.M.Peter, IVGM Hospital, Chalakudy.
Ext.A13: Copy of Cardiac Catheterization Report dt 13.08.1999 Ext.A14: Proposal form submitted by complainant Ext.A15: The copy of the legal notice dated 18.4.2000 sent for and on behalf of complainant Ext.A16: Copy of Reply Notice Ext.A17: True translation of medical certificates by Dr.K.N.S.Kamath -
Dept of German, University of Kerala.
Ext.A18: Attested copy of the passport of the complainant Ext.A19: Certificate dated 29.09.2003 issued by The South Indian Bank, Kumarakam Branch, showing currency exchange rate.
Opposite Party:
RW1: The Asst Administrative Officer of M/s.United India Insurance Co, Divisional Office, Thiruvananthapuram.
Ext.R1: The original medical certificate dated 19.09.1999 issued by Dr.C.M.Peter Ext.R2: The copy of Overseas Mediclaim policy issued by the opposite party.
in favour of the complainant.
SRI.S.CHANDRA MOHAN NAIR : MEMBER SMT.VALSALA SARANGADHARAN : MEMBER R.AV