Kerala High Court

Anil N.Menon vs The Insurance Ombudsman on 5 November, 2021

                 IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
               THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN
     FRIDAY, THE 5TH DAY OF NOVEMBER 2021 / 14TH KARTHIKA, 1943
                         W.P.(C) NO.3695 OF 2021
PETITIONER:

              ANIL N.MENON,
              AGED 50 YEARS, S/O. NARAYANANKUTTY MENON,
              MANGATTIL HOUSE,
              MANGATTIL ROAD, THIRUVANKULAM, IRUPANAM P.O.,
              CHITRAPUZHA, ERNAKULAM-682 309.

              BY ADVS.
              ANIL GEORGE
              SRI.JOBY JACOB PULICKEKUDY
              SHRI.DAJISH JOHN
              SHRI.HARIKRISHNAN P.


RESPONDENTS:

     1        THE INSURANCE OMBUDSMAN,
              KOCHI, PULINAT BUILDINGS,
              2ND FLOOR, M.G.ROAD, KOCHI-682 015.

     2        THE ORIENTAL INSURANCE COMPANY LIMITED,
              REGIONAL OFFICE, METRO PALACE,
              OPP. NORTH RAILWAY STATION, ERNAKULAM-682 011
              REPRESENTED BY ITS REGIONAL MANAGER

              BY ADVS.
              SRI.GEORGE A.CHERIAN
              SRI.ALEXY AUGUSTINE

         R1   SMT.K.S.SANTHI, STANDING COUNSEL

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
05.11.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) NO.3695 OF 2021
                                 -2-

                     P.V.KUNHIKRISHNAN, J.
         ----------------------------------------------------
                    W.P.(C) No.3695 of 2021
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           Dated this the 5th day of November, 2021
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                            JUDGMENT

The petitioner is an autorickshaw driver. The petitioner

availed an insurance policy from the 2 nd respondent, as evident by

Ext.P1. The petitioner was admitted at Medical Trust Hospital for

the treatment of liver disease from 12.11.2019 to 18.11.2019.

Thereafter, the petitioner claimed for the expenses of Rs.68,733/-

incurred for treatment with claim No.KOC-1119-CL-0005153 to

the 2nd respondent. It is the case of the petitioner that he availed

the policy for more than 10 years and was paying the premium

annually without default for renewal each year. According to the

petitioner, this was the first time the petitioner made a claim

before the 2nd respondent and the claim has been rejected

arbitrarily by the 2nd respondent alleging that the ailment was

caused due to consumption of alcohol. The true copy of the

rejection letter sent by the Branch Manager of the Insurance

Company is Ext.P2. It is stated in Ext.P2 that "from the given W.P.(C) NO.3695 OF 2021

particulars of treatment and course of treatment adopted as per

medical records, it is found that the hospitalisation is due to an

ailment caused due to consumption of alcohol. Ailment/injury

attributed to alcoholism is not payable, as per clause 4.8 of the

policy." According to the petitioner, the above finding is

unsustainable. The hospitalisation of the petitioner was not due to

alcoholic liver disease. It is the case of the petitioner that the

medical practitioner who consulted the petitioner in the said

hospital has given a medical certificate as evident by Ext.P3, in

which it is stated that the amount of alcohol consumed as testified

by the patient, seems to be inadequate to produce chronic liver

disease. The particulars of the treatment and the course of

treatment adopted as per the medical records shows that the

hospitalisation was true. It is the case of the petitioner that the

hospitalisation was not due to any alcoholic related disease as

alleged by the 2nd respondent in Ext.P2. Exts.P4 and P5 are the

discharge summary and the inpatient bill. The petitioner sent

lawyer notice as evident by Ext.P6. Even then, there is no

response and hence the petitioner submitted a complaint before

the 1st respondent. Ext.P7 is the complaint. The petitioner W.P.(C) NO.3695 OF 2021

produced documents to substantiate his case. The 1 st respondent

considered the complaint and granted 50% of the admissible

amount on non-standard basis. Aggrieved by the same, this writ

petition is filed.

2. Heard the counsel for the petitioner and the Standing

Counsel for the 1st respondent.

3. The counsel for the petitioner reiterated his contention.

The counsel submitted that after finding that the petitioner was

treated not for disease related to alcoholism, the 1 st respondent

erred in rejecting the entire claim of the petitioner. It is also the

case of the petitioner that the claim of the petitioner was for

Rs.68,733/- and in Ext.P8, it is stated that 50% of the admissible

amount is Rs.46,261/-. The counsel submitted that the petitioner

is aggrieved by the same.

4. On the other hand, the Standing Counsel who appeared

for the 1st respondent submitted that there is nothing to interfere

with Ext.P8 order. The Standing Counsel submitted that the 1 st

respondent already allowed 50% of the admissible amount of

Rs.46,261/-. The counsel submitted that a perusal of the

documents will show that the petitioner is alcoholic. In such W.P.(C) NO.3695 OF 2021

situation, the counsel submitted that there is nothing to interfere

with Ext.P8 order.

5. I considered the contention of the petitioner and the 1 st

respondent and also perused Ext.P8 order. It will be better to

extract the relevant portion of Ext.P8 order:

"3. I heard the Complainant and the Respondent Insurer. The Complainant submitted that he was admitted in Medical Trust Hospital for treatment and he submitted bills to the Ins. Co. but they did not settle his claim. The complainant stated that he is an auto driver and working since early morning till night. His illness is due to untimely food and DM. The Respondent Insurer submitted that the TPA sought etiology of CLD and the Doctor stated that the complainant is an occasional alcoholic and so the claim was repudiated as per clause 4.8 of the policy.

4. I have heard both the sides and perused the documents. The complainant was provisionally diagnosed for upper GI bleed and ultrasound of abdomen showed features of Chronic Liver Disease. On enquiry of etiology of CLD by the respondent insurer, the Doctor issued a Certificate stating that the complainant is a k/c/o DM, admitted with CLD, that he is an occasional alcoholic and that amount of alcohol consumed as testified by the patient seems to be W.P.(C) NO.3695 OF 2021

inadequate to produce DLC. The words occasional and alcoholic do not go together. It is observed that the Discharge Summary has no mention of alcoholism/ alcohol consumption. I am of the opinion that the claim can be settled on non-standard basis at 50% of the admissible amount of Rs.46,261/-.

In the result, an award is passed, directing the Respondent Insurer to pay an amount of Rs.23,130/-, within the period mentioned hereunder. No cost. As prescribed in Rule 17(6) of Insurance Ombudsman Rules, 2017, the Insurer shall comply with the award within 30 days of receipt of the award and intimate compliance of the same to the Ombudsman."

It is clear from Ext.P8 that the 1st respondent already found that

the petitioner is an occasional alcoholic and the amount of alcohol

consumed as testified by the patient seems to be inadequate to

produce CLD. According to the Ombudsman, the words occasional

and alcoholic do not go together. It is also observed by the

learned Ombudsman, that the discharge summary has no mention

of alcoholism/alcohol consumption. Thereafter, the learned

Ombudsman observed that "I am of the opinion that the claim can

be settled on non-standard basis at 50% of the admissible

amount of Rs.46,261/-." I specifically asked the Standing Counsel W.P.(C) NO.3695 OF 2021

for the 1st respondent whether there is any such Clause in the

insurance policy. But the counsel submitted that there is no such

Clause in the insurance policy. I also asked the counsel for the

petitioner and the Standing Counsel to verify whether there is

such power to the Ombudsman to disburse the amount on

non-standard basis. Both sides submitted that there is no such

power in the Ombudsman Rules but the Standing Counsel for the

1st respondent submitted that the Ombudsman has done justice to

both parties and passed this order. I think the stand of the

Ombudsman cannot be accepted. Once it is found that the

discharge summary has no mention of alcoholism/alcohol

consumption and it is also found that the words occasional and

alcoholic do not go together, the Ombudsman erred in denying

the entire claim of the petitioner. The petitioner has got a case

that the admissible amount fixed by the Ombudsman is

Rs.46,261/- instead of Rs.68,733/-. I think this is a matter to be

looked into by the Ombudsman and the matter can be remanded

back to the 1st respondent for fresh consideration, in the light of

the observations in this judgment. Therefore, this writ petition is

allowed in the following manner:

W.P.(C) NO.3695 OF 2021

i) Ext.P8 order is set aside.

ii) The 1st respondent is directed to reconsider the claim No. KOC-1119-CL-0005153 afresh and pass appropriate orders, after giving an opportunity of hearing to the petitioner and the 2nd respondent, as expeditiously as possible, at any rate, within a period of two months from the date of receipt of a copy of this judgment.

Sd/-

P.V.KUNHIKRISHNAN JUDGE

bpr W.P.(C) NO.3695 OF 2021

APPENDIX

PETITIONER'S EXHIBITS

EXHIBIT P1 THE TRUE PHOTOCOPY OF THE MEDICLAIM INSURANCE POLICY SCHEDULE.

EXHIBIT P2 CLAIM REJECTION LETTER DATED 30.02.2019.

EXHIBIT P3 THE TRUE PHOTOCOPY OF THE MEDICAL CERTIFICATE DATED 04.01.2020.

EXHIBIT P4 TRUE COPY OF DISCHARGE SUMMARY.

EXHIBIT P5 TRUE COPY OF INPATIENT BILL DATED 21.11.2019.

EXHIBIT P6 OFFICE OF LAWYER NOTICE SENT TO THE 2ND RESPONDENT DATED 25.02.2020.

EXHIBIT P7 THE TRUE PHOTOCOPY OF COMPLAINT SENT BY THE PETITIONER VIA EMAIL TO THE 1ST RESPONDENT ON 07.06.2020.