Date of Filing 10.04.2023

                                                                                                             Date of Disposal: 19.12.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                         …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL,                                                                                ……MEMBER-I

               THIRU.P.MURUGAN, M.Com.,(ICWA), BL.,                                                                    ……MEMBER-II

CC.No.30/2023

THIS TUESDAY, THE 19^th DAY OF DECEMBER 2023

Mr.R.Kannan,

No.1/219, Nehru Street,

Near Post Office,

Sholavaram, Chennai 600 067.                                                              ......Complainant.

                                                                              //Vs//

1.Star Health and Allied Insurance Company Limited,

   Corporate Grievance Department,

   Sri Balaji Complex,No.15,

   Whites Lane, Whites Road,

   Royapettah, Chennai 600 014.

2.Star Health and Allied Insurance Company Limited,

   Registered and Corporate Office,

   No.1, New Tank Street,

   Valluvar Kottam High Road,

   Nungambakkam, Chennai 600 034.

3.Mr.Vivin,

    Intermediary Person from Code No.OD700001,

   Telesales – Kodambakkam,

   No.47 and 49, VBC Solitaire Third Floor,

   Bazullah Road, T.Nagar, Chennai 600 017.

4.Mr.Anandkumar G S.

    Assistant Manager,

   Telesales – Kodambakkam,

   No.47 and 49, VBC Solitaire Third Floor,

   Bazullah Road, T.Nagar, Chennai 600 017.                                  ….opposite parties.

Counsel for the complainant                                              : M/s.S.Abirami, Advocate.

Counsel for the opposite parties 1 & 2                            : M/s.V.Alamelu, Advocate.

Counsel for the opposite parties 3 & 4                            : exparte.

This complaint coming before us on various dates and finally on 14.12.2023 in the presence of M/s.S.Abirami, counsel for the complainant and M/s.V.Alamelu, counsel for the opposite parties 1 & 2 and opposite parties 3 & 4 were set exparte for non appearance and upon perusing the documents and evidences of both sides this Commission delivered the following:

ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service in the matter of repudiation of medi claim/cash less treatment for the complainant’s treatment along with a prayer to pay a sum of Rs.4,00,000/- towards damages for the monetary loss, mental agony caused to the complainant, to direct the 2^nd opposite party to repay the entire premium paid by the complainant a sum of Rs.80,452/- along with interest and to pay the cost of the complaint.

Summary of facts culminating into complaint:-

2. It was the case of the complainant that he took a health insurance policy with opposite party under the scheme called SENIOR CITIZENS RED CARPET HEALTH INSURANCE POLICY on 27.06.2019 vide policy No.P/700001/01/2022/016051 for himself.  Complainant undergone eye surgery at Aravind Eye Hospital, Poonamallee, Chennai on 11.05.2022 and he claimed for cashless treatment under the Insurance Policy issued for the period starting from 28.06.2021 to 27.06.2022.  However, his claim for cashless treatment was rejected vide rejection letter dated 10.05.2022 by stating that he was suffering from Nephropathy, IHD not disclosed in the proposal form. On perusal of the proposal form itself it shows that the complainant had disclosed and admitted that the he had diabetes mellitus and its complications and hyper tension and its complications.  Admittedly, Nephropathy, IHD are complications resulting from the pre-existing disease which are disclosed.  Complainant approached the 2^nd opposite party to renew his existing policy through online, the same was agreed and approved by the 2^nd opposite party and 2^nd opposite party extended the policy by renewing the same from 28.06.2022 to 27.06.2023.  It was well settled that the insurer could not reject any insurance claim lamely by citing the pre-existing medical condition if the insured declares it at the time of buying the mediclaim policy or if one was found in the medical examination before issuing the policy. It was submitted that he clearly disclosed the pre-existing diseases diabetes mellitus and its complications and hyper tension and its complications in the proposal form and thus the act of the insurer in rejecting his claim by stating that the complainant had failed to disclose the pre-existing diseases Nephropathy, IHD is entirely devious and wrong. Thus aggrieved by the act of the opposite parties the present complaint was filed to direct the opposite parties to pay a sum of Rs.4,00,000/- towards damages for the monetary loss, mental agony caused to the complainant, to direct the 2^nd opposite party to repay the entire premium paid by the complainant a sum of Rs.80,452/- along with interest and to pay the cost of the complaint.

The crux of the defence put forth by the opposite parties 1 & 2:-

3. The opposite parties 1 & 2 filed version disputing the complaint allegations contending inter alia that the complainant had purchased Senior Citizen Red Carpet Health Insurance Policy with declared pre-existing disease diabetes mellitus and its complications, hypertension and its complications for the sum insured of Rs.10,00,000/- vide policy no.P.700001/01/2020/012556 for the period from 28.06.2019 to 27.06.2020 and the same was renewed vide policy no.P/700001/01/2021/012669 for the period from 28.06.2020 to 27.06.2021, Policy No.P/700001/01/2022/016051 for the period from 28.06.2021 to 27.06.2022. The terms and conditions of the policy were explained to the complainant at the time of proposing the policy and the same was served to the complainant along with the Policy Schedule. Complainant had accepted the policy agreeing and being fully aware of such terms and conditions and executed the Proposal Form. Co-payment was a cost-sharing requirement under a health insurance policy that provides that the insured would bear a specified percentage of the admissible claim amount.  The above mentioned policy was subject to co-payment as per coverage clause (K) of the policy that the insured would bear 50% of each and every admissible claim arising out of Pre-existing Diseases and 30% of each and every admissible claim for all other claims. Complainant admitted at Aravind Eye Hospital, Poonamallee High Road on 17.05.2022 and underwent the treatment of Proliferative Diabetic Retinopathy in Right Eye, Eriretinal Membrane Cystoids Macular Edema and Proliferative Diabetic Retinopathy in Left eye. Complainant initially raised pre authorization request with the opposite parties on 09.05.2022 to avail cashless treatment at Aravind Eye Hospital for defective version on right eye.  On scrutiny of the pre-authorisation request it was observed that the insured patient was having cardiac ailment and chronic kidney disease for the past 3 years.  Therefore the opposite parties requested the insured to furnish the past treatment records of CAD (Coronary Artery Disease) and CKD (Chronic Kidney Disease) vide letter dated 09.05.2022.  In response to the letter the insured had submitted a Discharge Summary of Apollo Hospital for the admission period from 13.06.2019 to 17.06.2019, where the insured was diagnosed for Ischemic Heart Disease, Renal calculi. It was confirmed that the insured patient was suffering from Ischemic Heart Disease and Nephropathy prior to the inception of the 1^st year policy.  Hence it is a pre-existing disease.  But the insured has failed to disclose these major diseases (IHD and Nephropathy) in the proposal form at the time of inception of the first policy which amounts to misrepresentation/non-disclosure of material facts.  Hence the cashless claim was denied on 10.05.2022 as per condition number 6 of the policy.  Although the present admission and treatment of the insured patient was not related to the non disclosed disease, the failure to disclose the same deprived the right of the insurer to evaluate the risk prior to accepting the proposal.  Had the insured disclosed the IHD and Nephropathy as pre existing disease/s in the Proposal Form the opposite parties would not have issued the policy. The maximum quantum of liability under the terms of the policy shall be Rs.27,000/-. Thus, the opposite parties 1 & 2 sought for the dismissal of the complaint.

4. On the side of complainant proof affidavit was filed and documents marked as Ex.A1 to Ex A17 were submitted. On the side of opposite parties 1 & 2 proof affidavit and documents marked as Ex.B1 to B11 were submitted.  Though notice was served to the opposite parties 3 & 4 they did not appear before this Commission to file any written version and hence they were called absent and set exparte on 22.11.2023 for non appearance and non filing of written version within the mandatory period as per the statute.

Points for consideration:-

1. Whether the repudiation of Mediclaim/Cashless treatment by the opposite parties for the complainant’s treatment amounts to deficiency in service?
2. It so to what reliefs the complainant is entitled to?

Point No.1:-

The following documents were filed on the side of complainant in support of their contentions;

1. Policy issued by the 2^nd opposite party and payment invoice dated 28.06.2021 was marked as Ex.A1;
2. Rejection letter by the 1^st opposite party dated 10.05.2022 was marked as Ex.A2;
3. Mail communication by the 1^st opposite party dated 11.05.2022 was marked as Ex.A3;
4. Main communication by the complainant dated 05.07.2022 was marked as Ex.A4;
5. Mail communication by the 1^st opposite party dated 18.07.2022 was marked as Ex.A5;
6. Medical claim rejected by the 1^st opposite party dated 25.07.2022 was marked as Ex.A6;
7. Renewal policy issued by the 2^nd opposite party and payment invoice dated 23.08.2022 was marked as Ex.A7;
8. Confirmation mail by 2^nd opposite party dated 23.08.2022 was marked as Ex.A8.
9. Policy cancellation endorsement and credit note invoice dated 06.09.2022 was marked as Ex.A9;
10. Mail communication regarding cancellation of policy by the 2^nd opposite party dated 06.09.2022 was marked as Ex.A10;
11. Aravind Hospital treatment records was marked as Ex.A11;
12. Ombudsman notice and acknowledgement card was marked as Ex.A12;
13. Aadhar card of the complainant was marked as Ex.A13;
14. WhatsApp conversation between the complainant and Mr.Vivin was marked as Ex.A14;
15. Complainant mail to grievances at Star health. In, Vijayalaishmi, Pandit @ starhealth.in was marked as Ex.A15;
16. Acknowledgement of complaints IRDA  complaints @ irdai.gov.in was marked as Ex.A16;
17. Money transfer details by transfer –UPI/CR/000621281129/ANAND KU/ICIC/anandgs 142/UPI was marked as Ex.A17;

The following documents were filed on the side of opposite parties 1 & 2 in support of their defence;

1. Proposal Form dated 27.06.2019 was marked as Ex.B1;
2. Policy terms and conditions dated 28.06.2021 was marked as Ex.B2;
3. Policy schedule dated 28.06.2021 was marked as Ex.B3;
4. Pre-authorization Request dated 07.09.2022 was marked as Ex.B4;
5. Query on Authorization for cashless treatment dated 09.05.2022 was marked as Ex.B5;
6. Apollo Hospital Discharge Summary dated 17.06.2019 was marked as Ex.B6;
7. Rejection of Authorization for cashless treatment dated 10.05.2022 was marked as Ex.B7;
8. Claim Form dated 20.07.2022 was marked as Ex.B8;
9. Medical Records – Discharge Summary dated 17.05.2022 was marked as Ex.B9;
10. Final Bill dated 17.05.2022 was marked as Ex.B10;
11. Reimbursement rejection letter dated 27.07.2022 was marked as Ex.B11;

5. Heard both learned counsels appearing for the complainant and the opposite parties 1 & 2 and perused the material evidences produced by them.

6. The main arguments adduced by the learned counsel appearing for the complaint is that he being a Senior Citizen had taken a policy only after disclosing the pre-existing illness of Diabetes Mellitus and Hyper Tension.  When he had not concealed the pre-existing diseases the repudiation by the opposite parties for cashless treatment is without basis. It is his argument that he had paid around Rs.80,452/- premium from 28.06.2019 to 27.06.2019.  It is submitted by him that the Insurance Company should prove that the defective vision suffered by the complainant was the outcome of CAD (Coronary Artery Disease) and CKD (Chronic Kidney Disease) which is pre-existing for repudiating the claim of the complainant. Thus he sought for the complaint to be allowed.

7. On the other hand the learned counsel for the opposite parties 1&2 argued that complainant had suppressed the pre-existing diseases of Ischemic Heart Disease and Nephropathy prior to the inception in the proposal form which amounts to misrepresentation/non-discloser of material facts.  Thus the contract of insurance based on Uberrime fidei could not be honoured due to non discloser of the material fact.  The learned counsel also cited the following decisions rendered by The Supreme Court of India in Hari Om Agarwal Vs Oriental Insurance Company Limited dated 17.09.2007, 2) United India Insurance Company Limited Vs M/s. Orient Treasures Private Limited in Civil Appeal No.2140/2007 dated 13.01.2016 & 3)  Manmohan Nanda Vs United India Assurance Company Limited & Anr in Civil Appeal No.8386/2015 dated 06.12.2021 in support of her arguments and sought for dismissal of the complaint.

8. It is seen that the policy issued by the opposite party was marked as Ex.A1 dated 28.06.2021 wherein it has been specifically mentioned under Pre-Existing Disease-Diabetes Mellitus and its complications and Hyper tension and its complications.  The payment of premium was also proved by the complainant.   However, as per Ex.A2 when the complainant sought for cashless treatment for Proliferative Diabetic Retinopathy the same was rejected by the opposite parties stating that the complainant has concealed Nephropathy, IHD (Ischemic Heart Disease) since 13.07.2019 and hence complainant sought for cancellation of the policy itself.

 It is found that the said rejection of the claim is not proper for the following reasons;

1. The policy taken was exclusively for the benefit of Senior Citizen and hence the opposite parties could not have rejected the claim for a disease which affects exclusively the senior citizens without assigning any proper reason.
2. The 2^nd opposite party had already paid a sum of Rs.25,000/- towards cataract operation of the complainant and hence had approved the claim of the complainant.  Thus now they are estopped from denying the subsequent claim of the complainant citing some irrelevant reasons.
3. It is sufficiently proved that the complainant had disclosed in the Proposal Form about the presence of Diabetes Mellitus and its complications and Hyper tension and its complications which finds mentioned in the policy document itself.  Thus Ischemic Heart Disease and Nephropathy could not be said to be a complication that arises apart from diabetes and his hyper tension or its complications.
4. It is also seen that the opposite party had renewed the policy vide dated 23.08.2022. When the earlier claim of the complainant was rejected for concealment of material facts stating that the insurance contract is a contract of good faith i.e., Uberrime fidei, what prompts the opposite parties for renewing the policy of the complainant. Thus the acts of the opposite parties appears to be contradictory to each other.

 Thus for the above reasons we found the rejection of claim of the complainant by the opposite parties is improper and liable to be set aside.  This point is answered accordingly in favour of the complainant.

Point No.2:-

9. It is seen that the complainant had claimed refund of premium amount and Rs.4,00,000/- as compensation.  However, considering the facts and circumstances the same could not be granted though the opposite parties’ rejection was found to be improper.  Thus we direct  both the opposite parties to pay the claim amount of Rs.27,000/- spent by the complainant for his treatment with Aravind Hospital vide Ex.A11.  For the mental agony and hardship caused to the complainant we direct a sum of Rs.10,000/- to be paid as compensation to the complainant along with cost of Rs.5,000/- towards litigation expenses.

In the result, the complaint is partly allowed against the opposite parties 1 to 4 directing them

a) To pay the claim amount of Rs.27,000/- (Rupees twenty seven thousand only) spent by the complainant for his treatment with 6% interest from the date of complaint till realization to the complainant within six weeks from the date of receipt of copy of this order;

b) To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for the mental agony and hardship caused to the complainant;

c) To pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant;

d) Amount in clause (a) if not paid within six weeks from the date of receipt of copy of this order, interest at the rate of 9% will be levied on the said amount from the date of complaint till realization.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 19^th day of December 2023.

        -Sd-                                              -Sd-                                                                 -Sd-                                                                                                                                                                                                                         

MEMBER-II                                    MEMBER-I                                                   PRESIDENT

List of document filed by the complainant:-

List of documents filed by the opposite parties 1 & 2:-

         -Sd-                                         -Sd-                                                                    -Sd-                                                                                                          

 MEMBER-II                               MEMBER-I                                                      PRESIDENT