ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Parties (herein referred to as OPs) under section 12 of the Consumer Protection Act, 1986 in respect of the deficiency of service in repudiating the insurance policy in respect of the reimbursement of hospital charges incurred for the father of the complainant and for payment of Rs.1,53,685/- being the said amount and Rs.15,364/- being the cost incurred for hospitalization which was not included in the original claim, for Rs.50,000/- for the pain and suffering since OP denied to release the cashless benefits and subsequently not settling the claim even after waiting for four long months, and to pay the said amount along with interest 18% per annum from 29.03.2019 till the payment of the entire amount and such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are: that the complainant obtained HAPPY FAMILY FLOATER-2015 policy from OP No.1. OP No.2 is the 3^rd party administrator of OP.No.1 in respect of the claims. The policy was obtained for herself for her father Mr. Metty K Grace, for her mother Lissy K Grace and for her brother Robin M John. The validity period of the said insurance was from 21.07.2018 to 20.07.2019.

3.     It is contended that on 20.03.2019 her father Metty Grace aged about 58 years depending on her, was hospitalized at St. Philomina Hospital, Campbell Road, Vivek Nagar, Bangalore, wherein he underwent ‘Angioplasty and Stenting. The admission report, the medical other report and pathological and clinical report, and discharge summary was submitted along with the bills claiming the hospitalization charges and other related charges with OP.No.2.  The claim was registered by OPs and SMS was also sent in that respect. Totally Rs.1,69,049.89 was spent for the treatment of her father. On 03.04.2019 OP confirmed having received the claim and informed that it is under process.  On 08.04.2019 OP informed that as per “policy sub-limits, treatment charges related to his ailments is only covered after four continuous renewal of the policy Clause No.4.1” and rejected the claim.  The note of OP.No.2 is unethical and the denial of the insurance claim by OP.No.1 and 2 amounts to unfair trade practice without following the due process of statutory provision and a deliberate attempt to defraud the complainant by rejecting her claim.

4.     There is deficiency in service on the part of OP firstly, in not extending the cash less facility for admission and secondly, rejecting the claim of the reimbursement of the hospitalization charges without due process of the statutory provision.  Complainant was taken aback to receive the letter rejecting her claim.  She has been subjected to unfair trade practice, breach of trust and negligence. Hence a legal notice was issued on 08.05.2019 demanding to pay the claim.  The same was served on 09.05.2019.  None of them sent a reply nor complied with the demand.  Hence there is deficiency in service, negligence on the part of OPs and also unfair trade practice on them and hence the complaint.

5.     Upon the service of notice OP.No.1 and 2 appeared through their counsel filed version separately.

6.     In the version filed by OP.No.1, who is the insurance company, has contended that the complaint is not liable to be admitted, there is no cause of action and hence liable to be dismissed.  It has admitted that the complainant obtained insurance for herself, for her father, mother and brother and the period of insurance was from 21.07.2017 to 20.07.2019 and later the claim was made after one year eight months two days from the date of commencement of the first policy. In the discharge summary issued by the St Philomena hospital, in respect of the father of the complainant, it is diagnosed as: “ACS-NSTEMI, Type 2 diabetes, Mellitus, Significant past medical and surgical history, if any is shown as known case of type 2 diabetes on treatment the patient was advised PCI LAD PTCA +stenting done with LAD with good results” and the patient was advised to take medicines on discharge.

7.     It is contended that from the above discharge summary, complainant’s father was a known patient of type 2 diabetes and was taking treatment and was also asked to continue the treatment for diabetes apart from following the diet for the same.  Though it has received the claim for the hospitalization charges and acknowledged the same by sending SMS, it does not amount to having accepted the claim and liable to pay the same.  It was informed to the complainant that the claim was under process and not an admission of the claim. 

8.      OP No.2 is the Third Party Administrator licensed by IRDA appointed by OP.No.1.  The processing of the claim by OP.No.2 in respect of policy holder is in accordance with the terms and conditions laid down in the policy. Complainant obtained Happy Family Floater Policy 2015 and on 21.07.2017 renewed up to 21.07.2018. The Clause 4.1 of the terms and conditions provides  :

“4.1. All Pre-existing Disease (whether treated/untreated declared or not declared in the proposal form), which are excluded up to 48 months of the policy being in force. Pre-existing diseases shall be covered only after the policy has been continuously in force for 48 months. For the purpose of applying this condition, the date of inception of the first indemnity based health policy taken shall be considered, provided the renewals have been continuous and without any break in period, subject to portability condition.

This exclusion shall also apply to any complication(s) arising from preexisting diseases. Such complications will be considered as part of the Pre-existing health condition or Disease.”

9.     When this is taken into consideration and also the contents of the discharge summary, the complainant father was suffering from type 2 diabetes and was on treatment and hence the same is not liable to be reimbursed since 48 months / 4 years not elapsed to cover the claim from the date of issue of the insurance policy and the same was communicated to the complainant. There is no deficiency or breach of trust or negligence or unfair trade practice on their part and they have acted in accordance with the terms and conditions of the policy and hence prayed to dismiss the complaint.

10.   OP.No.2 also filed its version and contended that the complaint is not maintainable against it, it is only a Third Party Administrator and obliged to process to claim as per the terms and conditions of the policy as per the mutual agreement and memorandum of understanding signed by it with OP.No.1.

11.   The policy was running for the 2^nd year from the date of inception and the claim was made for the treatment taken between 23.03.2019 to 25.03.2019 with St. Philomena hospital, Bangalore and they recommended the repudiation of the insurance policy as per clause 4.1 of the policy.  Hence they are not necessary party to the proceedings and their name is liable to be deleted from the complaint and prayed accordingly. 

12.   In order to prove the case, both parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

13.   Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly In The Affirmative.

                                For the following.

REASONS

POINT No.1:-

14.   Upon perusing the entire documents, version and the complaint, it becomes clear that the complainant obtained insurance under Happy Family Floater 2015 for herself, for her father, for mother, for her brother by paying a premium of Rs.22,664/- on 21.07.2017 and renewed up to 20.07.2019.  The sum insured under the policy is for Rs.4,00,000/-.  The said fact of obtaining insurance by the complainant has been admitted by the OP No.1.  It is also not in dispute that as per the discharge summary and the relevant documents produced as per Ex. P4, the father of the complainant was admitted to St. Philomena hospital on 23.03.2019 and diagnosed as ACS-NSTEMI and Type 2 diabetes mellitus.  The final diagnosis at the time of discharge was “ACS-NSTEMI, S/P CAG-DVD, S/P PTCA + STENTING TO LAD, TYPE 2 DIABETES MELLITUS.  Complainant complained of heaviness over the chest, chest pain since 3 days DEO +. No complaint of excessive sweating and palpitation. Known case of type 2 diabetes on treatment”. 

15.   The complainant has also submitted the claim form along with medical report and medical bills to the extent of Rs.1,69,050.30.  The filing of the claim application has been admitted by TPA i.e OP.No.2 and also by OP.No.1. OP No.2 has recommended to OP.No.1 that since 48 months have not elapsed from the date of obtaining the policy, complainant is not entitle for reimbursement of the medical claim as per Clause 4.1 of the terms and conditions of the policy and hence recommended to OP.No.1 to reject the claim which OP.No.1 did and rejected the claim. 

16.   No independent evidence and medical documents have been produced by OP No.1 to show that the complainant’s father was having pre-existing diseases or medical conditions earlier to issuing the insurance.  Further the pre-existing diseases shall be covered only after the policy has been continuously in force for 48 months. For the purpose of applying condition, the date of inception of the first indemnity based health policy taken shall be considered, provided the renewals have been continuous and without any break in period, subject to portability condition.  The exclusions shall also apply to any complications arising from pre-existing diseases such complications will be considered as part of the pre-existing health condition or disease.  At the cost of the repetition, it is to be stated that no documentary proof has been produced by the OP.No.1 to show that the complainant’s father was having diabetes mellitus prior to the purchase of the insurance policy as a pre-existing disease.

17.   Further there is no evidence of an expert doctor to show that the father of the complainant who has undergone the treatment as mentioned in the discharge summary, is the complication that has arisen due to the pre-existing disease i.e. diabetes mellitus. It has been stated in various medical journals that diabetes mellitus for a long time may cause the heart problem, but OP.No.1 has not placed any materials in this respect to show that the diabetes mellitus suffered by the complainant’s father is a the cause for him to suffer the heart blockage for which he has undergone surgery in the hospital. There are number of decisions to the effect that the OP.No.1 who relies on the condition of Clause 4.1 to prove that the patient was having pre-existing medical condition, independent of the documents filed by the complainant. 

18.   In view of this, repudiation of the claim by OP No.1 on the recommendation of OP.No.2 is entirely wrong unjustifiable and not sustainable and it amounts to deficiency in service and also amounts to unfair trade practice.  In I (2016) CPJ 613 NC in Satish Chander Madan Versus Bajaj Allianz General Insurance Co. Ltd.read as under:-

“Consumer Protection Act, 1986- Section 2(1)(g), 21(b) – Insurance- Bypass surgery – Concealment of Pre-existing disease alleged – claim repudiated – alleged deficiency in service – District Forum allowed complaint- State Commission allowed appeal – Hence revision – Petitioner prior to obtaining  Insurance policy was having history of hypertension – Hypertension is a common ailment and it can be controlled by medication and it is ot necessary that person suffering from hypertension would always suffer a heart attack – Treatment for heart problem cannot be termed as claim in respect of pre-existing disease- Repudiation not justified.”

Hypertension and diabetes are common and can be controlled by medication and it is not necessary that person suffering from hypertension and diabetes would always suffer heart attack or the blockages in the arteries and veins leading to heart attack. Hence we answer POINT NO.1 IN THE AFFIRMATIVE and complainant is entitle for reimbursement of the entire hospital charges of Rs.1,69,050.30 along with interest  at 12% per annum from 29.03.2019 the day on which claim was lodged with OP.No.1 along with Rs.25,000/- as damages for causing mental agony, physical and financial hardship together with Rs.10,000/- as litigation expenses as OP.No.1 and unjustifiable once rejection of the claim according to us is illegal, unfair and unethical. It is to be observed here that the insurance company are a very to receive the premium with both hands whereas they make out unreasonable reasons and petty deviation of the complainants/ claimants as a big mistake in repudiating their claim.  Their attitude towards policy holder is like rejection/repudiation of claim is a rule and allowing the same is an exeption. Hence we answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and pass the following:-

ORDER

1.  The complaint is allowed in part with cost against OP No.1 only. Complaint against OP.No.2 is hereby dismissed as it is only Third Party Administrator of the insurance claim.
2. OP.No.1 is hereby directed to pay a sum of Rs.1,69,050.30 along with interest at 12% p. a from 29.03.2019 till the payment of entire amount to the complainant
3. Further OP No.1 is hereby directed to pay Rs.25,000/- towards damages and Rs.10,000/- cost of litigation expenses to the complainant.
4. OP No.1 is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this Commission within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this day the 29^th day of March 2021)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Insurance Policy

Ex P2: Copy of the Receipt for having paid the premium

Ex. P3: Copy of the Medical report in respect of complainant’s father.

Ex P4: Copy of the Discharge Summary.

Ex P5: Copy of the claim form.

Ex P6. Screen  shot issued by third party.

Ex P7: Copy of the email Correspondences.

Ex P8: Copy of the Repudiation letter.

Ex P9: Copy of the legal notice.

Ex P10: Copy of the postal track record.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri Pradeep. R, officer of OP.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: The Discharge summary pertaining to the father of the complainant.

Ex R2: Copy of the claim  form.

Ex R3: Policy terms and conditions along with schedule.

MEMBER                                PRESIDENT

RAK*