Date of Filing:14/07/2021 Date of Order:27/07/2022 BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SHANTHINAGAR BANGALORE - 27. Dated: 27TH DAY OF JULY 2022 PRESENT SRI.H.R. SRINIVAS, B.Sc., LL.B. Retd. Prl. District & Sessions Judge And PRESIDENT SRI.Y.S. THAMMANNA, B.Sc, LL.B., MEMBER MRS.SHARAVATHI S.M., B.A., LL.B., MEMBER COMPLAINT NO.323/2021 COMPLAINANT : | | SMT. RATHNA BAI K Aged about 62 years D/o Late Shri Krishnaji Rao R/at No.8, Jaypee Legacy Flat No.201, 1st Main Road, Vaylikava, Bengaluru 560 003 Mob: +9193530 11895 (Smt. Ayantika Mondal Adv. for Complainant) | | Vs | OPPOSITE PARTIES: | 1 | M/S CARE HEALTH INSURANCE PRIVATE LIMITED (Formerly known at M/s Religare Health Insurance Company Limited) Corporate Identity No.U66000DL2007PLC161503 No.19, 5th Floor, Chawla House, Nehru Place, New Delhi, South Delhi 110 019. | | 2 | M/S CARE HEALTH INSURANCE PRIVATE LIMITED (Formerly known at M/s Religare Health Insurance Company Limited) Having its Bangalore Branch Office at: M/s Religare Health Insurance Company Limited, 1st Main Road, 80 feet road, ST Bed Area, Koramangala, Bengaluru 560 034 Represented by – Mr Anju Gulati, Managing Director & CEO | | 3 | SPARSH SUPER SPECIALITY HOSPITAL, No.146, Infantry Road, Vasanth Nagar Bengaluru, Karnataka 560 001 (Sri Mohan Malge, Adv. for OP-1 and 2) (OP-3 : Exparte) |
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ORDER
BY SRI.H.R.SRINIVAS, PRESIDENT.
1. This is the complaint filed by the Complainant U/S Section 35 of the Consumer protection Act 2019, against the opposite parties (herein referred to short as OPs) alleging the deficiency in service in not honouring her medical bills by repudiating the insurance claim and for a direction to OP to pay Rs.11 lakhs along with interest at 24% per annum from the date of payment of same to the hospital till realization and Rs.2,00,000/- as compensation from OP for causing mental harassment, expenses and for such other reliefs as the Hon’ble commission deems fit and under circumstances.
2. The brief facts of the case are that:- the complainant purchased insurance policy “Care Plan Health Insurance” from OP on 16.08.2014 for the sum assured of Rs.5,00,000/- with no claim benefits and got it renewed till 22.12.2018 by paying the premiums. She was covered for an amount of Rs.11,00,000/-. For the reasons best known to OP a sum of Rs.17,936/- was returned. OP had knowledge of the complainant having hypertension, Cerebral Vascular Accident (CVA) with left Hemiparesis, and bariatric, and laparoscopic hernia surgery in 2013 and was hospitalized and discharged from Columbia Asia hospital, Hebbal on 31.05.2016 and the said hospital has clearly mentioned her medical history. In respect of said hospitalization, OP has settled the claim for Rs.3,07,108/-. She was having discomfort in her hip right knee, and consulted Sparsh hospital, Infantry road Bangalore. She was intimated that she should get herself admitted to hospital for right knee surgery and also replacement of left hip which in the surgery not properly conducted by Columbi Asia hospital. When the complainant wrote about the amount involved in respect of the surgery to the OP as she was having insurance, OP assured through email to go ahead with the surgery. She got admitted to the hospital and underwent surgery and discharged on 13.04.2017 by paying a bill of Rs.9,26,000/- which she claimed with OP in respect of the insurance policy. The same was rejected on 25.05.2017 arbitrarily with the reason that obstructive sleep apnea before policy inception was not disclosed, hospitalization in 2013 non-disclosed for obesity/OSA and non-disclosure of material facts of pre-existing elements at the time of the proposal. Earlier claim has been settled by OP, and now, the same has been rejected on the ground that she was having medical conditions prior to getting the insurance policy which was not disclosed she was not at all having any history of obstructive sleep apnea.
3. She was also issued a notice of cancellation of the policy on 24.08.2017 and requested her to reply within 15 days and the same was replied and the Sparsha hospital also clarified the said mistake of fact vide letter dated 26.09.2017. Again she went to Sakra hospital for left knee replacement for osteoarthritis wherein, she incurred an expenses Rs.3,07,288/-. When she raised the claim, the same was rejected stating that, “We have received claim of K Rathnabai hospitalization from 01.11.2017 to 08.11.2017 as a case of osteoarthritis left knee as per the policy number covered under policy from 11.08.2014 to 17.08.2015 and from 13.09.2015 to 24.12.2016 the same policy has been cancelled and on scrutiny of the claim documents patient not covered under policy during hospitalization and hence the same was rejected.”
4. Again she was required to undergo emergency hospitalization on 20.11.2017 with Viktram hospital for sepsis and op consented for treatment. Accordingly, she obtained the treatment and on 08.12.2017 she got discharged by paying sum of Rs.9,86,082/-. When she made the claim, the same was rejected on the ground that she was having hypertension and CVA and the policy has been cancelled. Though she incurred hospitalization charges of Rs.19,61,288/-, she wants to restrict her claim for Rs.11,00,000/-. Aggrieved by the rejection of her claim, she had to issue a legal notice on 16.02.2019 which was replied on 12.03.2019 with unjustifiable reasons did not settle the claim.
5. Further the cause of action arose on 12.03.2019 when she made a legal notice to the OP demanding the claim and according to Section 69 of Consumer Protection Act, she ought to have filed the complaint on or before 12.03.2021 but due to COVID situation in the country and the state wise lockdown, and in view of suomoto writ petition No.3/2020 by this Hon’ble Supreme Court of India extending the limit for 365 days to be excluded in computing the limitation period, hence there is no delay and prayed to condone the delay if any and allow the complaint.
6. Notice sent to OP-3 served remained absent hence placed exparte. OP.1 and 2 appeared before the commission through their advocate and filed their version.
7. OP.1 and 2 in their version contended that, the complaint is not maintainable either in law or on facts. There is no unfair trade practice or deficiency in service on their part in rejecting the claim of the complainant. The relationship between the complainant and OP is a contractual in nature and hence Consumer Protection Act is not applicable. Complainant had lodged a private complaint against OP in the criminal court and hence not entitle for pursuing this complaint before this commission. Her request before the insurance ombudsman was also rejected and inspite of it, she has filed this complaint for the second time before this commission. It has admitted having issued health insurance policy from 17.08.2014 and the same was being renewed till December 2017 and she was paying the insurance premium and she was subjected to pre-policy medical examination.
8. During April 2015, complaint made a reimbursement claim for the treatment she obtained with Sakra hospital, Bangalore. The said claim was rejected on the ground that she was having hypertension 10 years prior to obtaining the insurance policy. Post rejection claim was sent and the same was also rejected. Since the above policy expired on 16.08.2015 she got renewed again, and requested for endorsing pre-existing disease for hypertension and they endorsed the same and applied waiting period on the said policy. Bariatric surgery was also mentioned by the complainant but hypertension was only considered. Again she got admitted to the hospital at Columbia Asia Hospital for a fracture of left femur bone and request was approved for Rs.2,67,519/- as it was not related to hypertension by paying Rs.17,936/- as premium with an endorsement of pre-existing disease of hypertension her insurance policy was again renewed from 24.12.2016 to 23.12.2017.
9. She approached for reimbursement of claim in respect of her hospitalization at Sparsha Hospital for advanced surgery of total knee replacement and hip replacement from March 21 2017 till April 31, 2017 and the said claim was received on 29.4.2017 whereas, the same was rejected for nondisclosure of material information regarding cardio vascular ailment since 8 years and was case of obstructive sleep apnea since 2013, which was not at all disclosed at the time of filing proposal nor at the time of renewal of the policies. She was having a CVA from two years and hence the concerned show cause notice was sent but no reply was received. Again a reply was sent from her on 20.06.2017 stating that the condition of Bariatric Surgery was within the knowledge of the company. It was mentioned by the company that the previous insurance claim was inadvertently approved by the company and wanted to recover the said amount. In the light of non-disclosure of the previous preexisting ailment, they cancelled the insurance intimating and terminating the policy.
10. Complainant filed another claim in respect of septic shock and claimed Rs.9.5 lakhs as reimbursement on 20.12.2017 which was also rejected offline with Max Bupa insurance company which was later taken to ombudsman who also dismissed the claim of the complainant. She also filed application under Section 91 of the IPC and complaint was also lodged before the CMM court. The complainant has suppressed material facts preexisting ailments, and obtained the policy by misguiding the insurance company. The burden of proving the deficiency in service lie on the complainant which she had failed to discharge and hence prayed this commission to dismiss the complaint.
11. In order to substantiate the case of the parties, both parties filed their affidavit evidence and also documents produced. Heard the arguments. The following points will arise for our consideration are:-
- Whether the complaint filed is within two years from the repudiation of the insurance claim as contemplated under Section 69 of the Consumer Protection Act?
- Whether the complainant has proved negligence and unfair trade practice in rejecting the insurance claim?
- Whether the complainant is entitled to the relief prayed for in the complaint?
12. Our answers to the above points are:-
POINT NO 1: IN THE NEGATIVE.
POINT NO 2 & 3: DO NOT SURVIVE FOR
OUR CONSIDERATION
For the following.
REASONS
POINT NO 1 :-
13. On perusal of the pleadings of the parties, it is not in dispute that the complainant obtained insurance from the OP from 2014 till 2018. It is her specific case that she got admitted to Sparsha Hospital for knee replacement and hip replacement and after surgery, paid a sum of Rs.9,86,082/- and also to Vikram Hospital by paying Rs.7,28,000/ and her claim in respect of payment of the hospital charges on all the occasion were rejected by OP on 08.12.2017 and communication through email dated 22.12.2017.
14. When the claim of the complainant has been without any ambiguity has been rejected by OP, on 22.12.2017 and even her claim before the ombudsman was also rejected, the cause of action for the complainant to file the complaint actually started on 22.12.2017 and she ought to have filed this complaint before this commission on or before 22.12.2019. During that time there was no COVID pandemic nation and there was no lockdown . There are umpteen number of decisions passed by the Hon’ble Supreme Court of India and also Hon’ble National Consumer Dispute Redressal Commission that issuing of legal notice do not give raise to a fresh cause of action and when once the cause of action starts running, it cannot be stop and it do not stops.
15. Further the complainant wants invoke the decision of the Hon’ble Supreme Court of India in Suomoto Writ Petition(Civil)No.03/2020 wherein it has extended limitation from 15.03.2020 to 14.03.2021 by directing all the Courts, Tribunals, Forums to allow the applications which had become time barred during the said period. In this case as pointed out above, the cause of action has arisen on 22.012.2017 and complainant ought to have filed the complaint on or before 22.12.2019. Since there was no pandemic on that day of the last day of limitation, the Hon’ble Supreme Court judgment relied is not applicable to the facts and circumstances. Hence we are of the opinion that this complaint filed is barred by limitation as per Section 69 of the Consumer Protection Act, 2019 and hence this complaint is not maintainable and liable to be dismissed and hence we answer POINT NO.1 IN THE NEGATIVE.
POINT NO. 2 & 3 :-
16. In the result, there is no necessity for us to discuss the evidence in respect of deficiency in service or unfair trade practice on the part of OPs and hence we answer POINT NO.2 AND 3 AS THE SAME DO NOT SURVIVE FOR OUR CONSIDERATION and hence the pass the following:
ORDER
- The complaint is hereby dismissed. Parties to bear their own costs.
- 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 failing which the same will be weeded out/destroyed.
(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 27TH DAY OF JULY 2022)
MEMBER MEMBER PRESIDENT
ANNEXURES
- Witness examined on behalf of the Complainant/s by way of affidavit:
CW-1 | Smt. Ratna Bai - Complainant |
Copies of Documents produced on behalf of Complainant/s:
Ex P1: Copy of the policy certificate.
Ex P2: Copy of the statement of OP
Ex. P3: Copy of the discharge summary of Columbia Asia hospital.
Ex P4: Copy of the discharge summary Sparsh hospital
Ex P5: Copy of consolidated bill of sparsh hospital
Ex P6: Copy of the claim rejection letter.
Ex P7: Copy of the notice for cancellation of policy
Ex P8: Copy of the letter from Sparsh Hospital
Ex P9: Copy of the discharge summary Sakra Hospital.
Ex P10: Copy of the consolidated bill of Sakra Hospital.
Ex p11: Copy of the discharge summary Vikaram Hospital.
Ex P12: Copy of the consolidated bill of Vikaram Hospital.
Ex P13: Copy of the claim rejection letter.
Ex P14: Copy of the email correspondence with Op.
Ex P15: Copy of the contribution letter.
Ex P16: Copy of the reply to the legal notice dated 12.03.2019.
Ex P17: Certificate u/s 65B of the Indian Evidence Act .
2. Witness examined on behalf of the Opposite party/s by way of affidavit:
RW-1: Sri. Harish N, Branch Operations of OP.
Copies of Documents produced on behalf of Opposite Party/s
Ex R1: Copy of the proposal form with terms and conditions.
Ex R2: Copy of the medical examination report.
Ex R3: Copy of the claim documents.
Ex R4: Copy of reply.
Ex R5: Copy of email correspondences.
Ex R6: Copy of Pre-authorization form.
Ex R7: Copy of the claim form.
Ex R8: Copy of the Vikram hospital documents.
Ex R9: Copy of the grievance letter.
Ex R10: Copies of recovery notice.
Ex R11: Copy of Policy cancellation letter.
Ex R12: Copy of the claim form and rejection letter.
Ex R13: Copy of the rejection letter.
Ex R14: Copies of the order passed by the ombudsmen.
MEMBER MEMBER PRESIDENT
RAK*
