O R D E R
(By Sri. Ganesh Jadhav, President)
1. THIS IS A COMPLAINT FILED U/SEC.12 OF Consumer Protection ACT, 1986.
2. The facts set out in the complaint, in brief, are that the complainant is business man and permanent resident of Nizamabad. He took Individual Health Insurance Policy offered by opposite parties and paid premium of an amount of Rs. 7,829/- on 04-02-2009. In token of receipt of said amount by accepting the payment the Opposite Party No. 2 issued policy bearing No. 050700/48/08/97/00000989 in favour of the complainant, which covers the health of the complainant from 11-02-2009 to 10-02-2010. The complainant being healthy person not claimed any claim during the said period. In continuation of the said policy for the year 2010-11, the complainant paid an amount of Rs. 11,270/- on 08-02-2010 and in response to the said payment the Opposite Party No. 2 issued policy bearing No.050700/48/09/06/00000956 which covers the health of the complainant from 11-02-2010 to 10-02-2011. In that period also the complainant not claimed any claim as he has not felt any ill-health. Further to continue the said policy for the year 2011-12, the complainant paid an amount of Rs. 13,001/- on 07-02-2011 and in response to the said payment the Opposite Party No. 2 issued policy bearing No. 050700/48/10/06/00001057 which covers the health of the complainant from 11-02-2011 to 10-02-2012. That the Opposite Party No.1 is the Head of the United India Insurance Company Ltd., and the Opposite Party No.2 is the Divisional Office.
The complainant submits that in the month of July 2010, he felt some changes on his scalp, and he observed that tumour developed on the scalp for which he went to Sai Medical Centre, Hyderabed for treatment where Dr. V. Gowri, treated him and expressed doubt about the said tumour may be cancer and advised for biopsy. On that on 01-08-2011 the complainant, under intimation to the opposite party No.2, got admitted in the Apollo Hospitals, Apollo Health City Campus, Jubilee Hills, Hyderabad as inpatient No. IP53890 for treatment of recently developed tumour on his scalp. Dr. V. Sudhaker Prasad conducted plastic surgery to the tumour on pigmented lesion on the scalp. The complainant spent an amount of Rs. 60,000/- for the said treatment, diagnosis, medicines and consultation fees etc. Immediately after the recovery from the surgery, the complainant claimed the medical expenses from the Opposite Party No.2 in prescribed form along with all original bills and reports. But the Opposite Party No. 2 instead of paying the claim, repudiated the claim of the complainant under false, vague grounds without any legality. Complainant further submits that he has taken treatment for the disease which developed in the last nine months to the treatment and the said illness is not congenital disease. As such the repudiation of the claim of the complainant is clearly indicated the deficiency of services and unfair trade practice of the Opposite Parties. The complainant several times consulted the Opposite Parties, but they are not properly replied or gave response for which the complainant suffered physical and mental agony.
The complainant further submits that he got issued a notice on 28-11-2011 through his Advocate incorporating all the facts therein and demanding the Opposite Parties to pay Rs. 60,000/-( Expended amount for treatment, diagnosis, medicines and consultation fees) and Rs.1,00,000/- ( towards compensation for rendering deficiency of services and causing physical and mental agony ). The Opposite Parties received the notice but not gave any reply nor paid the claim of the complainant. The complainant also sent a copy of the notice to the Health Insurance Ombudsmen, Hyderabad, same is received by him who gave reply stating that the said office accepts complaints only from individuals who have grievance against the insurance company and on an insurance policy obtained on personal lines, complaints received from any advocate are not entertainable.
The complainant also submits that having accepted his application and received premium from him, the Opposite Parties repudiating his claim stating that the claim is being repudiated under congenital external clause which is totally incorrect, illegal and the opposite parties are liable to pay the sum demanded by him in his notice under the policy. As the Opposite Parties repudiated the claim without any valid reason, they are also liable to pay 18% interest per annum from the date of repudiation till realization of the amount. Further the act of Opposite Parties amounts to deficiency of services and unfair trade practice and they are liable to pay the damages for rendering deficiency of services and also causing physical and mental agony to the complainant. Hence the complainant filed this complaint praying this Forum to allow the complaint and direct the Opposite Parties to pay a sum of Rs. 60,000/- ( Rupees Sixty thousands only ) towards the claim under the policy with interest @ 18% per annum from the date of repudiation till realization. The complainant also prayed to direct the Opposite Parties to pay compensation of Rs.1,00,000/- on account of damages for rendering the deficiency of services and also causing physical and mental agony and to pay costs of the complaint and also to award any other relief or reliefs which the Forum deems fit and proper in the ends of justice and equity.
3. Opposite Party No.1 filed his counter and the same is adopted by the Opposite party No.2. It is stated in the counter that the complainant obtained FAMILY MEDICARE POLICY bearing No. 050700/48/10/06/00001057 valid from 11-2-2011 to 10-2-2012 covering himself, his wife ( Smt. Dhanpal Dhanalxmi) and his son ( Dhanpal Yogesh). He signed proposal for Mediclaim Insurance Policy for the first time on 7-2-2002 covering himself, his wife and his son and later policy is renewed from time to time. Overall sum insured under the policy is Rs. 4,00,000/-. In the proposal the complainant has not given any particulars regarding his health conditions and stated to have been in good health. In order to administration of claims under the policy, a Third Party Administrator( TPA); E MEDITEK ( TPA) Services Ltd, 45 Nathupura Road DLF Phase III, Gurgaon-122002 has been appointed and the same is mentioned in the policy. In respect of any claim, the insured persons bound to give intimation and shall send all material claim papers to the TPA as per terms and conditions of the policy. Under the Policy, it is the duty of TPA to process the claims and the Opposite parties act according to its recommendations. Therefore, the TPA is necessary and proper party to this case. As such, the complaint is bad for non-joinder of necessary parties.
Further it is stated that the liability of the Opposite Parties is to be strictly governed by the terms, conditions, exclusions and definitions under above policy and relevant law breach of which does not make the Opposite Parties liable for any compensation. The above said insurance policy covers risks arising out of diseases, illness or bodily injuries through accident that the insured person suffers during the policy period subject to terms, conditions, exclusions and definitions set out in the policy. Risks arising out of congenital external disease or defects or anomalies sterility, Venereal disease, intentional self injury and use of intoxication drugs/alcohol are expressly excluded under Exclusion No. 4.8 of the Policy. According to condition No. 5.3 upon the happening of any event which may give rise to a claim under the policy, notice with full particulars shall be sent to the TPA named in the schedule immediately and in case of emergency Hospitalization within 24 hours from the time of Hospitalization. According to condition No. 5.4, all supporting documents relating to the claim must be filed with TPA within 15 days from the date of discharge from the hospital. In case of post hospitalization, treatment ( limited to 60 days), all claim documents should be submitted within 7 days after completion of such treatment. According to condition No. 5.5 the Insured person shall furnish the TPA with all original bills, receipts and other documents upon which a claim is based and shall also give the company such additional information and assistance as the company may require in dealing with the claim. According to condition No. 5.7, the Opposite Parties shall not be liable to make any payment under the policy in respect of any claim if, such claim be in any manner fraudulent or supported by any fraudulent means or device whether by complainant or by any other person. According to condition No. 5.11, if the Opposite Parties disclaim their liability, a complaint or suit shall be filed within 12 months from the date of disclaimer (Repudiation).
Further it is stated in the counter that in this case, the discharge summery of Appollo Hospital dated 1-8-2011 reveals that there is a pigmented lesion since birth showing features of benign tumor. It is a congenital external disease excluded under Exclusion 4.8 of the policy. It seems that the complainant was treated in the Hospital for one day and he submitted the bill of charges to the extent of Rs. 49,618/- only and not for RS. 60,000/-. The genuineness of these bills is disputed by the Opposite Parties.
The Opposite Parties further stated that the complainant gave intimation regarding alleged surgery on 18-08-2011 and submitted material claim papers to the above referred TPA through his opposite party. The above after processing the material claim papers submitted by the complainant, the TPA recommended with opposite parties to repudiate the claim. Therefore, on recommendations of TPA, the opposite parties repudiated the claim of complainant, by addressing registered letter dt: 19-09-2011 to the complainant which was received by him on 1-10-2011. The complainant was suffering from congenital external disease since birth and has not disclosed this known fact to the opposite party No.1 at the time of obtaining policy. This amounts to suppression of material facts, as such, the Opposite Parties are not liable to pay any compensation/medical expenses.
It is further stated that Opposite parties have no intention to evade the liability and reasons given by them for repudiation are valid and legal. The documents submitted by the complainant itself show that the disease is congenital external disease and complainant had knowledge of it at the time of signing proposal and obtaining policy. But the complainant did not disclose this known fact to the Opposite Party at the time of obtaining Policy. The reasons for repudiation are based on concrete evidence submitted by the complainant himself.
It is further stated that the opposite parties issued Policy in favour of complainant in good faith believing that he was in good health. It is the complainant who suppressed his conditions of health and obtained policy. Therefore, repudiation of the claim of the complainant on the above said ground is correct and is as per terms and conditions of the policy. The complainant has no cause of action against the Opposite parties, therefore the complainant is not entitled to any relief claimed therein in the complaint and prayed to dismiss the complaint with cost.
4. During enquiry, the complainant Sri. Dhanpal Veerender field his evidence affidavit as PW1 deposing his case set out in the complaint and marked Ex. A1 to A18 documents. On behalf of the Opposite Parties 1 and 2 the Deputy Manager Nanchari Narsaiah, working in the office of Op No.1 has filed his evidence affidavit as RW1 deposing his defense set out in the counter and marked Ex. B1 to B13 documents.
5. Heard Arguments of both side counsels with reference to their respective contentions in detail. That apart counsel for the complainant filed written arguments which is made part of the records.
6. The points for consideration are:
1) Whether there is any deficiency of service on the part of Opposite Parties in repudiating the claim of complainant under the policy or not?
2) Whether the complainant is entitled for the relief as prayed for?
3) To what relief ?
7. POINT NO.1 to 3.
It is not in dispute that the complainant has first taken the Individual Health Insurance Policy Ex. A1 bearing No. 050700/48/08/97/00000989 for the period from 11-02-2009 to 10-02-2010 by paying premium amount of Rs. 7,829/- to Opposite Party No.2 on 04-02-2009. During the said period the complainant being healthy person has not claimed any claim. It is also not in dispute that in continuation of the said policy for the year 2010-11 the complainant has paid an amount of Rs. 11,270/- to Opposite Party No. 2 on 08-02-2010 and has taken the Family Medicare policy Ex.A2 bearing No. 050700/48/09/06/00000956 for a period from 11-02-2010 to 10-02-2011. In that period also the complainant not claimed any claim as he has not felt any ill-health. It is also not in dispute that in continuation of the said policy for the year 2011-12, the complainant has paid an amount of Rs. 13,001/- to Opposite Party No.2 on 07-02-2011 and has taken the Family Medicare Policy Ex.A3 bearing No. 050700/48/10/06/00001057 from the Opposite party for a period from 11-02-2011 to 10-02-2012.
The fact that “Tumour” developed on scalp of complainant and he got treatment in Appolo Hospital, Appolo Health City Campus , Jublilee Hills Hyderabad as inpatient No. IP53890 are not disputed by the Opposite Parties. The Opposite Parties disputed the claim of the complainant and repudiated it on the grounds that the disease suffered by the complainant is congenital external disease since birth and he has not disclose this known fact to the Opposite Parties at the time of obtaining the policy which amounts to suppression of material facts and therefore they are not liable to pay any claim. The Opposite Parties relied on the documents Ex.A4 i.e the Treatment Summary of Sai Medical Center dt: 19-10-2010 and Ex. A9 Discharge Summary of Appolo Hospital dt: 1-8-2011 and contended that the disease suffered by the complainant is a congenital external disease expressly excluded under exclusion clause 4.8 of the policy Ex.B1.
No doubt the Ex. A4 and Ex.A9 reveal that the disease suffered by the complainant is pigmented lesion since birth but the said documents did not disclose that it is an external disease . The Opposite Parties have not led any cogent and convincing evidence by examining the doctor on their behalf to prove their contention that the said disease suffered by the complainant is external disease and that it was knowingly suppressed by the complainant. The burden which lies on the Opposite Parties have not discharged. Hence we are of the considered opinion that there is a deficiency of service on the Opposite Parties in repudiating the claim of complainant under the policy.
The Opposite Parties have further contended that the complainant has not made Third Party Administrator (TPA) MEDITEK services Ltd as a party to this proceedings. In fact the Third Party Administrator was appointed by the Opposite Parties. Hence the act of the Third Party Administrator (TPA) is nothing but the act of the Opposite Parties under the policy. Therefore we are of the consider opinion that TPA is not the necessary party to the Proceedings and the contention raised by the Opposite Parties have no substance or stuff in the circumstances of the case.
Having considered the facts and circumstances of the case we are of the considered opinion that the Opposite parties are liable to pay the admissible claim of the complainant under the policy Ex.A3 (Ex. B1).
Admittedly the policy of the complainant in Ex.A3 (Ex. B1) is for Rs. 4,00,000/-. As per Ex.A8 corresponding to Ex.B11 the complainant had incurred an amount of Rs. 42,938/- besides Rs. 1,406/- towards Medicines as mentioned in Ex. B11. Further the complainant has also incurred an amount of Rs. 3,100/- towards pathological tests as per Ex.A5(Ex.B12) and Rs. 4000/- towards boarding charges which is admissible as 1% as per the value of the policy. Thus the total amount of Rs. 51,444/- is entitled by the complainant which is admissible one but not Rs.60,000/- as claimed by the complainant . The complainant is not entitled for any compensation in the circumstance of the case. However he is entitled interest at 9% per annum on admissible claim of Rs. 51,444/-along with costs of Rs. 2000/-. Accordingly issues 1 to 3 are answered in favour of the complainant.
In the result, the complaint is allowed partly as under.
1) The Opposite Parties 1 and 2 are directed to pay Rs. 51,444/-( Rupees Fifty One Thousand Four Hundred and Forty Four only) with 9% interest per annum from the date of repudiation i. e. 19-09-2011 till the date of realization to the complainant towards Mediclaim Policy Under Ex. A3 ( Ex B1).
2) The Opposite Parties 1 and 2 are also directed to pay Rs. 2,000/-( Rupees Two Thousand only) to the complainant towards costs of the complaint.
The Opposite Parties 1 and 2 are directed to comply the above 1 and 2 directions within one month from the date of receipt of this Order.
Dictated to Stenographer, corrected and pronounced by us in Open Forum on this the 3rd day of May 2013.
