State Consumer Disputes Redressal Commission
S. Naganathan Old No.5/1, New No.11 Dr. ... vs The Manager Oriental Insurance Co. ... on 20 January, 2012
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE : Honble Thiru Justice M.THANIKACHALAM PRESIDENT Thiru A.K. ANNAMALAI, M.A.,M.L., M.Phil MEMBER (JUDICIAL) Thiru. S. SAMBANDAM MEMBERF.A.NO.397/2011
(Against order in C.C.NO.147/2008 on the file of the DCDRF, Chennai (North) DATED THIS THE 20th DAY OF JANUARY 2012 S. Naganathan Old No.5/1, New No.11 Dr. T.V.Road, Chetpet Chennai-
600 031 Appellant/Complainant Vs.
1. The Manager Oriental Insurance Co. Ltd., Divisional Office X Dwaraka II Floor New No.79, Uttamar Gandhi Salai Chennai- 600 034
2. The Manager Medicare TPA Services Pvt Ltd., No.1, Circular Road, United India Colony Kodambakkam, Chennai- 600 026 Respondent/ Opposite parties The Appellant as Complainant filed a complaint before the District Forum against the opposite parties, praying for a direction to reimburse the sum of Rs.35,973.42/- spent by him towards hospitalization charges, alongwith compensation of Rs.1 lakh and cost of Rs.10000/-. 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.23.11.2010 in CC.No.147/2008.
This petition coming before us for hearing finally on 11.01.2012. Upon hearing the arguments of the counsel on both sides, perusing the material papers on record, lower court records, as well as the order passed by the District Forum, this commission made the following order:
Counsel for the Appellant/Complainant: M/s. K. Vasuvenkat Counsel for the 1st Respondent/ Opposite party: M/s. S.K.Krishnamurthy Counsel for the 2nd Respondent/ Opposite party: M/s. Elveera Ravindran M. THANIKACHALAM J, PRESIDENT
1. The complainant having failed before the District Forum, in claiming medical reimbursement, based upon mediclaim policy, has come before this commission, as appellant.
2. The complainant /appellant, disclosing his pre-existing disease of diabetes, had taken a mediclaim policy, for a sum of Rs.1 lakh, for the period from 19.3.2005 to 18.3.2006, and so far no claim was made. The complainant was hospitalized for treatment of non-healing ulcer second toe, and osteomylitis of second toe, from 25.1.2006 to 29.1.2006, incurring a total expenses of Rs.31,639.40/- and later incurring an expenses of RS.4334/- towards dressing and medicine. Thus, in all, a sum of Rs.35,973.42/-.
3. Based upon the mediclaim policy, when the complainant lodged a claim, it was rejected/repudiated, on the ground that the treatment given to the complainant was for diabetes, which was a pre-existing disease, erroneously, forgetting the fact, that the complainant has not taken treatment for diabetes, which was also endorsed by Insurance Ombudsman, when appealed, thereby all of them committed deficiency in service. Despite notice, since the amount not settled, the complainant is constrained to file the case, for reimbursement of the medical expenses, in addition to the compensation of Rs.1 lakh, for mental agony.
4. The opposite party, questioning the averments in the complaint, resisted the case contending that the complainant being a known diabetic, had taken treatment for the ulcer, which was not cured due to diabetic related complications, which should come within the exclusion clause viz. 4.0 & 4.1 of the policy, and on that basis alone, the claim was rejected/ repudiated, cannot be brought under the umbrella of deficiency in service, seeking dismissal of the complaint.
5. The District Forum evaluating the materials, going through the discharge summary, as well as a medical certificate, issued by the opposite party viz.
Ex.B2, came to the conclusion, that the non-healing of ulcer is due to diabetic related complication, which is called diabetic foot, should come within the meaning of exclusion clause of the policy, and therefore the repudiation cannot be faulted, labeling the act of the opposite parties, as negligence or deficiency. In this view, the complaint came to be dismissed, without cost, as per order dt.23.11.2010, which is impugned in this appeal.
6. The complainant had taken periodically, mediclaim insurance policy, and the policy, which we are concerned is Ex.B4, as well as the terms and conditions, available in Ex.B5. The complainant being a known diabetic, disclosing the same, had taken mediclaim policy, not in dispute, and therefore he is not entitled to claim any medical expenses, if incurred for that disease alone, being pre-existing, notified, which was excluded under the policy. On the other hand, if the complainant had taken treatment for any ailment, other than diabetic, the opposite party is bound to reimburse the claim, unless they prove the disease, for which the complainant had taken treatment was in existence, coming within the meaning of pre-existing on the date of proposal or on the date of issuance of the policy.
7. The terms and conditions of the policy viz. clause 4, deals exclusion, which reads (4) The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of:
(4.1) All diseases / injuries which ar pre-existing when the cover incepts for the first time. For the purpose of applying this condition, the date of inception of the initial mediclaim policy taken from any of the Indian insurance companies shall be taken, provided the renewals have been continuous and without any break.
From the reading of the above clauses, it is seen all diseases/ injuries, which are pre-existing, when the coverage incepts alone are excluded, and there is no specific clause, that any complication, caused by the existing disease is also excluded, though the word used in connection with. When there is an ambiguity about the exclusion, we feel, the clause should be interpreted in favour of the insured. Therefore, we are of the view, when the exclusion clause does not contemplate, the related treatment for the existing disease also is excluded, if the insured had taken the treatment, not for the pre-existing disease, then that cannot be totally rejected, as complication of the pre-existing disease, and if that should be adopted, then it should be made out unquestionably by medical evidence, that the complication or the consequential treatment or in connection with, was taken, only due to pre-existing disease, and otherwise it would not have had happened at all. Therefore, having these principle in mind, we have to approach this case.
8. It is not in dispute, that the complainant had an ulcer, for which he had taken treatment as inpatient in Zubeda Hospitals, as disclosed by Ex.A2, discharge summary. In this the history of a present illness is stated as follows: Pt admitted with H/o. non healing ulcer left 2nd toe for the past 2 months. C/o. pain and swelling over left foot for the past 2 months, pt developed osteo mylitis of 2nd toe, so he came here for further treatment and management. Pt a known case of DM on regular treatment. Pt. known case of HT on No H/o. PT/BA/ALLERGY, wherein we find on indication that the osteomylitis left foot, non-healing ulcer was due to diabetes.
In this context, we have to see the meaning of osteomylitis, that means inflammation of bone, caused by biogenic organism (producing puss), which may cause due to diabetes or anyother disease also, not necessarily by diabetic alone.
When the treating doctor has not stated, that the osteomylitis of second toe occurred or unable to be cured, resulting amputation, because of diabetic it is not possible to say positively, that the complainant had taken treatment for diabetic.
9. The lower court relying upon a certificate, has reached the conclusion, that as per the certificate given by the panel of doctors of the opposite party, the non-healing ulcer was due to diabetic, seeking aid from Ex.B2. Admittedly, the doctor who has issued Ex.B2 has not examined the patient, and it is not the case in Ex.B2 also, that he has perused the case records of the complainant. Therefore, it is not known, how this doctor has given a certificate, that the non-healing ulcer was due to diabetic alone, though in some cases, it may be the other cause, as per the general belief that the ulcer will not be easily cured for a diabetic patient. He has not stated, but for diabetic, the complainant would not have suffered this kind of problem. In support of the certificate, proof affidavit of the doctor was also not filed, and therefore it has no evidentiary value.
10. Andhrapradesh State Commission, had an occasion to consider this kind of case in IV 2008 CPJ 473 in New India Assurance Company Vs. D. Usha Rani (dead) Rep. by her husband, wherein it is held, that insured must have presumed diabetic complication, and if that is so, ought not to have renewed the policy, but renewing the policy, or giving policy, repudiation of the claim is unjust, which finding we respectfully agree. Therefore, in the absence of any positive evidence, we conclude that the opposite party had failed to discharge their burden, but unfortunately the District Forum, based upon general presumption alone, that if ulcer comes to a diabetic patient, especially in the foot, that will not be cured, naming as a diabetic foot, has affixed the seal of pre-existing, which finding we are unable to endorse, that too considering the fact, the complainant had disclosed the disease viz. diabetic.
11. The opposite party, knowing fully well that the complainant is a diabetic patient, has given the mediclaim policy. Therefore, unless the related complicated problems are also excluded specifically, then proceed so, we feel the repudiation should be construed, as deficiency in service. Certainly, a diabetic patient will have many complications, if it is uncontrolled. That is known to the insurance company also, who has given the mediclaim policy, and therefore we feel unless the treatment is directly related to diabetic, they are answerable to the medical expenses also, for related disease if any, as in this case, even admitting Ex.B2. If the complainant had claimed the medical expenses, for direct treatment of diabetic, such as for the purpose of purchasing insulin or hospitalizing himself, to control the diabetic, reaching hypoglycemia, or low sugar, etc. then it can be stated, that he had taken treatment for pre-existing disease, since it was declared and this is not the case here, whereas for ulcer alone he had taken treatment. In the absence of specific proof, when there is a doubt, the osteomyllitis might have occurred due to other reasons also, rejecting the claim may not be proper, and the insured must be favourably considered, which we are willing to do in this case. As far as the quantum is concerned, there is no dispute. The District Forum, instead of thinking differently, when there is a possibility of ulcer, being not cured for other reasons also, proceeded on the basis of presumption, not favouring the consumer, in which finding we differ, concluding that the complainant has not taken treatment, for pre-existing disease, and even assuming it is the complication of the diabetic, since that is not specifically excluded, we are inclined, to allow the claim of the complainant, concluding the opposite party had committed deficiency in service.
12. Considering the peculiar circumstances of the case, though we are willing to grant the medical expenses, we decline the compensation claimed.
13. In the result, the appeal is allowed, setting aside the order of the District Forum in CC.No.147/2008 dt.23.11.2010, and the complaint is allowed in part, directing the opposite party to pay a sum of Rs.35,973/- (rounded of) with cost of Rs.1000/-, dismissing the rest of the claim, within a period of two months, from the date of receipt of copy of this order, failing which this amount shall carry interest @ 12% p.a., from the date of default, till payment. No order as to cost in this appeal.
S. SAMBANDAM A.K. ANNAMALAI M. THANIKACHALAM MEMBER II JUDICIAL MEMBER PRESIDENT INDEX : YES / NO Rsh/d/mtj/FB/ Insurance