COMPLAINT FILED ON: 07/09/2021

DISPOSED ON: 20/03/2023

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHITRADURGA.

CC.NO:73/2021

DATED: 20^th March 2023

PRESENT: Kum. H.N. MEENA, B.A., LL.B., PRESIDENT

                  Smt. B.H. YASHODA, B.A., LL.B., LADY MEMBER                        

                  Sri. H.JANARDHAN, B.A.L., LL.B., MEMBER

:: ORDER ::

By Sri. B.H.YASHODA, B.A., LL.B., LADY MEMBER.

       The above complaint has been filed by the complainant U/s 35 of consumer protection Act 2019 for seeking the reliefs of to directing the opposite parties to pay a sum of Rs.1,38,000/- being the cost of operation charges for having undergone cardio Vascular operation dated 12/12/2019 together with interest at 12% per annum and Rs.1,05,000/- being the operation charges for having undergone for his right eye cataract operation on 19/03/2020, in total a sum of Rs.2,42,000/- together with interest at 12% per annum and for mental agony from the date of amount due and litigation charges of Rs.10,000/- and to direct the opposite parties to pay the cost of Rs.10,000/- to the complainant and to grant such other relief/s as this Hon'ble Commission deems fit in the circumstances of the case.

2. The Brief facts of the complaint:-

        It is stated by the complainant that he had become the policy holder bearing member ID NO: EAC0956739 from 19/12/2017 through Canara Bank customer’s scheme at Challakere Town, Chitradurga District.  At the time of becoming policy holder with the 1^st OP insurance company, the complainant had been thoroughly medically examined at the instance of the 1^st OP insurance company by their own medical officers and also taken reports from the complainant about his health condition and issued the Policy Bond Vide No:PE01266663 dated:20/12/2017.  The Policy of the complainant being renewed from time to time and still complainant having valid policy.

3. It is stated by the complainant that on 11/02/2019, the complainant got admitted to Jayadava Institute of Cardiovascular Section and Research Hospital at Bangaluru and got operated for Coronary Angioplasty and after operation he was discharged on 14/12/2019.  Towards the operation of Coronary Angio Plasty the complainant paid a sum of Rs.1,38,000/- (Rupees one Lakh Thirty Eight Thousand only).

4. Further, it is stated by the complainant that on 12/02/2020, the complainant made E-mail, Message furnishing all the details about Coronary Angio Plasty and the discharge summary and bill for the operation of Angio Plasty seeking for reimbursement of the amount from the 1^st OP.  After receipt of the complainants E-mail dated: 11/02/2020 the 1^st OP sought details about the psoriasis treatment.  The Complainant Complied the clarification sought by the 1^st OP about treatment taken for psoriasis and obtained letter from the Hospital where he was treated for psoriasis dated: 04/03/2020.  The claim of the complainant rejected by the 1^st through its letter dated: 28/02/2020 on the ground that the complainant suppressed the fact the taking treatment for psoriasis before he becoming the member of the 1^st OP company.  Further, the complainant states that the investigation reports issued by the Appollo Hospital of the above investigation, Chest x-ray, Exercise stress test report dated: 18/05/2018 are submitted to the 1^st OP agent.  After being satisfied with the health condition of the complainant, the 1^st OP extended the insurance policy of the complainant.  The insurance policy issued by the 1^st OP is valid from 19/12/2017 to 18/12/2018 and subsequently on renewal, the 1^st OP after verifying the entire medical investigation reports about the health condition of the complainant dated: 03/09/2019 renewed the policy.  Thus from 09/12/2017, the complainant become a policy holder bearing membership ID NO: EA009567 and the policy commences from 09/12/2017 to 08/12/2018 subsequently the policy is renewed from 08/12/2018 to 2019 and 2019 to 2020.

5. The complainant states that on 19/03/2020, the complainant got operated at Narayana Nethralaya Right Eye cataract operation at cost of Rs.1,05,000/- ( Rupees one Lakh and Five thousand only) before cataract operation the complainant made attempt to seek claim for medical insurance for the Cataract operation at  Narayana Nethralaya about the denial of cashless service issued by the HDFC, thus the 1^st OP after called as HDFC insurance policy dated: 17/03/2020 same was not extended by the 1^st OP.  Left with no other alternative the complainant issued legal notice calling upon the opponents to reimburse the claim of the complainant dated: 10/07/2020.  After receipt of the legal notice of the complainant, the OP referred the matter to the Insurance ombudsman (Karnataka).   The insurance ombudsman caused notice dated:15/07/2020 and directed the Complainant to produce all the mediclaim policy, Hospital bills, investigation reports, claim  form, case paper and hospitalization discharge, summary.  The complainant complied the details sought by the insurance ombudsman and after hearing the complainant, disallowed the claim of the complainant and further stated by the complainant that the insurance ombudsman ought not to have rejected the claim of complainant since the complainant before the becoming the policy holder, the OP made thoroughly medical investigation about the PED (pre-Existing Decease) and also ignored the letter given by the Bangalore Baptist Hospital about the existence of Psoriasis about 30 years back, on this ground alone the claim of the complainant cannot rejected.  Hence filed this complaint.

6. After registering the complaint on 14/09/2021 and the Commission has issued the notice to the OPs, and the same has been duly served on 09/10/2021, accordingly the OP No.1 and 2 have appeared through their counsel K.E Mallikarjuna and OP No.3 counsel appeared of this commission and not filed the version.  The OP No.1 and 2 counsel appeared before this Commission and stated in their version that the complaint filed by the complainant Under Section 12 of Consumer Protection Act subsequently is wholly false, frivolous, vexatious and hence liable to be dismissed in limine.

7. Further, it is stated by the opponent that they issued a Group Health Insurance policy vide No: 2811203851213600000 with validity of 19/12/2019 to 18/12/2020 and inception date of the policy is 19/12/2017, the liability under the said policy is subject to terms and conditions and not absolute in nature. 

8. Further, stated by the OP that on 11/12/2019 the insured got admitted in Jayadava Cardio Vascular Institute Hospital for Coronary Angio Plasty.  Subsequently approached us on 22/06/2020 for reimbursement of medical expenses and submitted the claim form which we registered as RR-HS9910953009 to verify the admissibility of the claim.  After securitizing medical records they understood that claimant was suffering from Psoriasis which is not disclosed to them during the issuance of the policy.  Thus the claim became ineligible under the ground of Non-Disclosure of Material facts.  Therefore we repudiated the claim for the same reasons. Earlier the complainant approached them for cashless service for his cataract Eye operation in Narayana Nethralaya Hospital on 19/03/2020.  The claim is rejected for same grounds.  After which the complainant preferred complaint before insurance ombudsman Karnataka vide No.BNG-H-0258-2020-21 which was dismissed on 18^th January 2021.

9. The OPs admitted that the complainant had become the policy holder bearing membership ID NO:EA00956739 from 19/12/2017 through Canara Bank customer scheme at Challakere Town, Chitradurga District.  It is denied as false that at the time of becoming policy holder with the 1^st OP insurance company, the complainant had been thoroughly medically examined at the instance of the 1^st OP insurance company by their own Medical Officers and also taken reports from the complainant about his health condition and issued the Policy Bond vide No:PEO1266663, dated:20/12/2017.

10. Further, OPs states that it is not within the knowledge of them on 11/02/2019, the complainant got admitted to Jayadava Institute of Cardiovascular Section and Research Hospital at Bangaluru and got operated for coronary Angioplasty and after operation he was discharged on 14/12/2019.  It is not within the knowledge of these opposite party that towards the operation Coronary Angio Plasty complainant paid a sum of Rs.1,38,000/- (Rupees one Lakh thirty eight thousand only).

11. Further, it is stated by OPs that on 12/02/2020 the complainant made E-mail, Message furnishing all the details about Coronary Angioplasty and the discharge summary and bill for the operation of Angioplasty seeking for reimbursement of the amount from the 1^st OP it is true that after receipt of the complainants e-mail dated:11/02/2020 the 1^st OP sought details about the Psoriasis treatment.  It is true that the complainant complied the clarification sought by the 1^st OP about treatment taken for Psoriasis and obtained letter from the Hospital where he was treated for Psoriasis dated:04/03/2020.  It is true that the claim of the complainant rejected by the 1^st OP through its letter dated:28/02/2020 on the ground that the complainant suppressed the fact of taking treatment for Psoriasis before he became the member of the 1^st OP company.  For this, the OP has denied that after being satisfied with the health condition of the complainant.  The 1^st OP extended the insurance policy of the complainant.  It is true that the complainant became a policy holder bearing membership ID NO:EA009567 and the policy commences from 09/12/2017 to 08/12/2018 subsequently the policy is renewed from 08/12/2018 to 2019 and 2019 to 2020.

12. Further, OP  No.1 and 2 stated that it is not within the knowledge of these OP  that on 19/03/2020, the complainant got operated to Narayana Nethralaya Right Eye cataract operation at cost of Rs.1,05,000/-(Rupees one Lakhs and five thousand only) Further, it is denied by the OPs that before cataract operation, the complainant made attempt to seek claim for medical insurance for the cataract operation at Narayana Nethralaya about the denied of cashless service issued by the HDFC, thus the 1^st OP letter called as HDFC insurance policy dated:17/03/2020 same was not extended by the 1^st OP.  It is true that the complainant issued legal notice calling upon the OPs to reimburse the claim of the complainant dated:10/07/2020.  It is true that after receipt of the legal notice of the complaint, the OP referred the matter to the insurance ombudsman (Karnataka).  It is true that the insurance ombudsman caused notice dated:15/07/2020 and directed the complainant to produce all the medi-claim policy, Hospital Bills investigation Reports, claim form case paper and Hospitalization discharge summary.  It is that false to state that the insurance ombudsman ought not to have rejected the claim of the complainant, since the complainant before he becoming policy holder, the 1^st OP made thoroughly medical investigation about the PED (Preexisting Disease) and also ignored the letter given by the Bangaluru Baptist Hospital about the existence of Psoriasis about 30 years back.

(i). It is submitted that the complainant is totally misunderstood the terms and conditions of the policy and filed the above complaint and hence the complaint is not maintainable and liable to be dismissed with costs.

(ii). It is submitted that insurance contracts are special contracts based on the general principles of full disclosure in as much as a person seeking insurance is bound to disclose all material facts relating to the risk involved.  Law demands a higher standard of good faith in matters of insurance contracts which is expressed in the legal mariam uberrimae fidei since the complaint miserably failed to disclose pre-existing disease and hence amounts to misrepresentation and non-disclosure of material facts in the proposal form by the complainant insured.

(iii) It is submitted that had the complainant disclosed that he was suffering from Psoriasis since 30 years as on the date of the making of the proposal, the insurer may not have issued the mediclaim policy to him and hence the repudiation is in accordance with settled principles of law, therefore, the complaint is deserves to be dismiss with costs.

(iv). it is submitted that a proposer is under a duty to disclose to the insurer all material facts as are within his knowledge.  Since the complaint has been continuously taking treatment for Psoriasis since 30 years still the said facts had not been disclosed at the time of taking policy was a clear suppression of material facts relating to health of the insured and that therefore, the OP 1 & 2 was fully justified in repudiating the insurance contract and hence, the complaint is liable to be dismiss in Limine.

 (v). It is submitted that as per the certificate issued by Bangaluru Baptist Hospital dated:04/03/2020 the complainant has been treating in Bangaluru for Psoriasis since 23/02/2019 and he is having Psoriasis for 30 years, if the said fact is disclosed certainly the opposite parties would not issue policy and hence the opposite parties are rightly repudiated the claim of the complainant and hence there is no deficiency of service on the part of OPs.

13. The OP No.1 & 2 further submitted that immediately upon receipt of the claim forms and legal notice the opposite parties submitted the dispute for adjudication before the insurance ombudsman, the present complaint is totally false, frivolous, vexatious and is wholly misconceived groundless and unsustainable either in law or on facts and the same has been filed with the malafide intention to harass the opposite parties and hence, the same is liable to be dismiss in limine.  The competent authority rightly disallowed the complaint dispute and hence there is no deficiency of service on the part of the OPs. Accordingly OPs pray for dismiss the complaint and grant such other and further reliefs as are just and necessary in the interest of justice and equity.

14. The complainant and OP No.1 & 2 have filed the Chief Affidavit and the Written Arguments and same were heard.  The OP No.3 after receiving of the notice of this Commission has appeared through their caused and filed Vakalath, but not filed any documents and version, Written Arguments to defend their case. After perusal of the complainant and OP No.1 & 2 evidence and all documents.

15. Now the points that arise for our consideration for decision of above complaint are that:

1. Whether the complainant proves that the OPs have committed deficiency of service in not settling the claims of the complaint?
2. Whether the complainant is entitled to get any reimbursement claim of the policy Holder to an extent of Rs.2,42,000/- with interest from the OPs?
3. What order?

        16. Our findings on the above are as follows:

Point No.1: Negative

    Point No.2: Negative

    Point No.3: As per final Order

:: REASONS ::

     17. POINT NO.1 & 2: It is not in dispute that the complainant as a consumer of opponents.  That the complainant became a policy holder bearing membership ID No.EA00956739 and the policy commences from 9/12/2017 to 08/12/2018 subsequently the policy is renewed from 08/12/2018 to 2019 and 2019 to 2020. That on 11/02/2019, the complainant got admitted to Jayadava Institute of Cardiovascular Section and Research Hospital at Bangaluru and got operated for coronary Angio Plasty and after operation   he   was   discharged   on 14/12/2019.        Towards the operation of coronary Angio Plasty the complainant paid a sum of Rs.1,38,000/-(Rupees one lakhs thirty Eight Thousand only) on 12/02/2020, made E-mail, Message furnishing all the details about coronary Angio Plasty and the discharge summary and bill for the operation of Angio Plasty seeking for reimbursement of the amount from the 1^st opposite party.  After receipt of the complainants E-mail dated:11/02/2020 the 1^st opposite party sought details about the Psoriasis treatment.  The complainant complied the clarification sought by the 1^st opposite party about treatment taken for Psoriasis and obtained letter from the Hospital where he was treated earlier for Psoriasis dated:04/03/2020.  The claim of the complainant rejected by the 1^st opposite party through its letter dated:28/02/2020 I,e., Ex.A-9, on the ground that the complainant suppressed the fact of taking treatment for Psoriasis before he becoming the member of the 1^st OP company.

        18. Further, that on 19/03/2020, the complainant got operated at Naranayana Nethralaya for Right eye cataract operation at cost of Rs.1,05,000/-(Rupees one lakh and five thousand only). Before cataract operation the complainant made attempt to seek claim for medical insurance for the cataract operation at Naranayana Nethralaya, but, the denial of cashless service issued by the HDFC, thus the 1^st OP after called as HDFC.  Insurance policy dated:17/03/2020 as per Ex. A-19 same was not extended by the 1^st opposite party.  Left with no other alternative the complainant issued legal notice calling upon the opponents to reimburse the claim of the complainant dated:10/07/2020.  After receipt of the legal notice of the complainant, the OP referred the matter to the insurance ombudsman (Karnataka).  The insurance ombudsman caused notice dated:15/07/2020 and directed the complainant to produce all the mediclaim policy, Hospital bills.  Investigation reports, claim form, case paper and Hospitalization discharge summary.  The complainant complied the details sought by the insurance ombudsman and after hearing the complainant, the ombudsman perused all the documents of medical claim.  As per Ex. B-7, the complainant is suffering from Psoriasis disease from 30 years, but the complainant has not disclosed the same (PED) at the time of making Health Insurance policy from the company. 

         By relying the landmark Judgment passed on 24^th April 2019 in an Appeal in case titled…… Reliance Life Insurance Co. Ltd And Anr V/s Rekhaben Nareshbai Rathod (Civil Appeal No:4261 of 2019).  The Supreme Court has upheld that the insured is bound to disclose the material information in the proposal form and further the insured cannot evade the consequences of non disclosure alleging that the he merely signed the proposal form but details were filled by the Agent. The SC has held that while filling proposal form the agent ceases to be the agent of the insurer and becomes the agent of the insured.

         Also relied the decision in the case of satwant Kaur Sandhu V/S the New India Assurance Company Limited IV (2009 CPJ 8 (S.C).

         Based on the above citations, the ombudsman Forum has rejected the medical claim of the complainant on 18/01/2021 i.e., Ex. B-11.

        The Hon'ble Commission observed the following citations.

1. LIC V/S Manish Gupta by Supreme Court in Civil Appeal No:3944 of 2019 @ SLP (C) No:5001/2019……

That the Hon'ble Apex Court observed that the ground for repudiation was in terms of the exclusion contained in the policy.  The onus was on the insured to provide particulars of his health since no medical examination was mandated.  The documentary evidence indicates that there was a clear failure on his part to disclose that he had suffered from rheumatic heart disease since childhood.  It therefore held that the failure of the insured to disclose the past history of disease was a valid ground for repudiation and the consumer flora have made a fundamental error in allowing the claim consequently, it set aside the order of NCDRC and dismissed the complaint.

ii). C.N.Mohanraj V/s New India Assurance company Ltd of NCDRC, Revision Petition-2314/2012 Head Notes:-Suppression of material facts in respect of preexisting disease Mediclaim insurance policy Held: Relying heavily on the Hon'ble Supreme Court Judgment in satwant Kaur Sandhu V/s New India Assurance co, Ltd., the principle Viz duty of disclosure on the part of the life to be assured was emphasized. 

19. The mediclaim policy is a non-life insurance policy which is also based on the concept of uberrimae fidei.  Any fact which would influence the mind of prudent insurer in deciding whether to accept or not to accept the risk is "material fact" in a contract of insurance.  Suppression of pre-existing mental illness was deliberate in this case.  In the present complaint also clearly shows that as per Ex. A-21, the complainant is suffering from Psoriasis disease since 30 years, as the complainant has not disclosed this material fact (pre-Existing Disease) before making the Health Insurance policy.

20. On perusal of the complaint and documents and version, chief Affidavits and written arguments submitted by both the parties, it shows that the complainant was suffering from Psoriasis disease since 30 years, but the complainant has not disclosed the same at the time of making the policy.  As such, the complaint filed by the complainant before this Hon'ble Commission is not maintainable and there is no deficiency in service on the part of opponents.  Hence, the point No.1 and 2 taken into consideration as negative.

21. Point No: 3: As discussed on the above points and for the reasons stated therein we pass the following.  

 :: ORDER ::

           The present complaint filed by the complainant U/s 35 of Consumer Protection Act 2019 is hereby dismissed.

        Communicate the order to parties.

(Dictated to the Stenographer, typed by him, the transcript corrected, revised and then pronounced in the open commission by us on 20^th March 2023.)

LADY MEMBER                  MEMBER               PRESIDENT

-:ANNEXURES:-

Witness examined on behalf of Complainant:

PW-1: Sri P.Thipperudrappa S/o Late, P.Boranayaka by way of affidavit evidence.

Witness examined on behalf of opponent No.1 & 2:

DW-1: Sri Chetan S/o Shravanakumar wadavadagi by way of affidavit evidence

Witness examined on behalf of opponent No.3:

Nil

Documents marked on behalf of Complainant:

Documents marked on behalf of opponent No.1 & 2:

Documents marked on behalf of opponent No.3

Nil

LADY MEMBER                  MEMBER               PRESIDENT