N.KANNADASAN, J. - (1.) The appellant is the 1st opposite party and the 1st respondent is the complainant. The 2nd respondent is the 2nd opposite party.
(2.) The complaint is filed under the following circumstances: The complainant got himself insured with the 1st opposite party through the 2nd opposite party under Group Mediclaim Policy for the period from 1.10.1993 to 30.9.1994. Thereafter, the complainant has renewed the said policy every year alongwith other members of his family from the year 1994 onwards. On 23.9.01, the complainant has suffered severe breathlessness and was admitted in Goa Medical College Hospital immediately for treatment. After initial treatment, he was discharged from the said hospital and he continued his treatment in Breach Candy Hospital, Mumbai, with effect from 26.9.01, during which date he was admitted. He was under the treatment of Dr.Z.F. Udwadia, Consultant Chest Physician, who has diagnosed him to be suffering from Obstructive Sleep Apnea (herein after called as OSA in short). Subsequently, he was incidentally detected to be having Nephrotic Syndrome, which was linked to his diabetes. He was recommended to use Respironics Auto-CPAP machine, every night as a life saving measure. The complainant has made a preliminary claim for Rs.65,084/-, . Subsequently, he has also raised an additional claim for the purchase of CPAP machinery, which is worth about Rs.88000/-. According to the complainant, the 1st opposite party has arbitrarily repudiated the claim on the ground that the opposite partys panel doctor has given an opinion that nature of ailment for which he was hospitalized emerged from the pre-existing disease and there is an exclusion clause in the policy. Subsequently, the complainant has sought an opinion from the doctor doctor who gave treatment, who has immediately clarified to the effect that the decease is a new onset. Inspite of the said clarification, the 1st opposite party through the letter dt.27.1.01 expressed their inability to settle the claim and hence the complaint was preferred.
(3.) The 1st opposite party/ appellant herein resisted the complaint on the ground that this is the claim to the effect that the claim of the complainant on two grounds viz. claim for Rs.65084/- towards expenses incurred in the treatment and a further claim of Rs.88000/- being the cost of the machine, is liable to be rejected. According to them, the claim was rejected due to the pre-existing disease, which falls under exclusion clause as set out hereunder. 1. In respect of domiciliary hospitalization the company shall not cover (i) expenses for the pre and post hospital treatment and (ii) expenses incurred for any of the following diseases (a) asthma; (b) Bronchitis (c) chronic nephritis and Nephritic Syndrome 2. Besides the company shall not be liable for payment of claims arising out of (a) disease/injuries which are pre-existing when the cover incepted for the first time . It is further contended that in the light of the above exclusion clause and in view of the fact that the machine was purchased by the complainant for domiciliary treatment of Nephrotic Syndrome linked to his diabetes, the rejection of the complaint is justified and as such there is no deficiency in service.;