Complaint presented on  :     15.03.2013

                                                               Order pronounced on     :     29.01.2015

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI(NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,         :      PRESIDENT

                    TMT.T.KALAIYARASI, B.A.B.L.,                   :       MEMBER II

THURSDAY THE 29^th DAY OF JANUARY  2015

C.C.NO.66/2013

Mrs.K.Shanthi

No:32/57 “Kassal Apartment”  2^nd floor

Nallanna Mudali Street

Royapettah Chennai – 14.

                                                                                    ...  Complainant

..Vs..

Date of complaint         :        15.03.2013

For Complainant               :         Mrs.K.Shanthi (Party in Person)   

For Opposite party           :        Mrs.Elveera Ravindran

O R D E R

THIRU.K.JAYABALAN, PRESIDENT               

Complaint filed  under section 12 of the Consumer Protection Act 1986 for a direction to the opposite party to refund  a sum of Rs.2,17,218/- incurred for hospitalization and treatment as per policy with interest @ 24% from 19.08.2012 onwards till repayment and to pay a sum of Rs.5,00,000/ as damages for the  deficiency of service and to pay a sum of Rs.10,00,000/- for the resultant mental agony and pain and to pay a sum of Rs.15,000/- as cost of the complaint. 

1.Complaint in Brief :

  The complainant was a  mediclaim policy holder with Royal Sundaram from 30.09.2005 onwards for 6 years renewing it  annually and the policy was ended on 29.09.2011. At this juncture the opposite party Unit Manager Rajavelu visited the complainant’s house and spoken about  various aspects of their medical insurance policy and assured to the complainant that portability of new policy  will be given to the complainant with an earlier policy of Rayal Sundaram ended on 29.02.2011. The luring words of  Rajavelu overawed  the  complainant  and he took medical policy  issued by the opposite party for the period 16.08.2011 to 15.08.2013  for a sum assured Rs.3,00,000/-.  The complainant was admitted on 19.08.2012 and a surgery was conducted on her 21.08.2012 removing remnant of Gall bladder and she was discharged on 24.08.2012. The complainant made a claim for a sum of Rs.2,17,218/- on 04.09.2012 said to have been incurred for hospitalization and for the treatment as per policy. However the opposite party terminated the policy by its letter dated 09.11.2012 to the complainant. The complainant enquired with the opposite party agents and also sent emails dated 18.08.2012, 03.11.2012 and 15.11.2012 the reason for terminating her policy.  The opposite party responded through its reply dated 23.11.2012 and such a reply shocked the complainant.  Hence the complainant sent a notice dated 10.12.2012 to the opposite party seeking payment of claim amount.   Though the opposite party received the notice failed to reply for the same. The refusal to pay the claim made  by the complainant caused mental agony to the complainant and the opposite party also committed deficiency in service.  Hence the complainant filed the complaint praying to refund a sum of Rs.2,17,218/- which was incurred by her for the treatment with 24% interest from 19.08.2012 and also claimed a sum of Rupees Rs.5,00,000/-as damages for terminating the mediclaim policy and a sum of Rs.10 lakhs damages for mental agony caused to her and with the cost of Rs.15,000/- and render justice.

2. Written Version in Brief:

This opposite party received a proposal form duly filled and signed by the complainant on 16.08.2011 for availing health insurance policy to cover her.  As the object of insurance is to meet the risk of uncertainty of insured person during the term of the policy, it is the statutory duty of the insured person to disclose all the material facts pertaining to her status of health including pre existing disease in order to enable  the insurer to decide whether to accept or decline the proposal form. However the complainant  have not furnished the details properly and she furnished the details of in respect of  previous diseases was struck off with remark ‘N/A’  in the proposal form implying there by that she did not want to  continuity benefits.   Further the complainant suppressed the material fact about her past history of uterine fibroid, Grade II reflux oesophagitis with Baretts changes, Renal calculi and mild proctitis diseases in her proposal form dated 16.08.2011.  Further a pre policy check up was conducted on 24.08.2011 and there also she had not disclosed about her  medical condition. A policy  dated 26.08.2011 for the period 16.08.2011 to 15.08.2012 issued to the complainant and subsequently the said policy was renewed for the period 16.08.2012 to 15.08.2013.  The complainant was admitted in the Apollo Hospital and pre-authorization form was received on 16.08.2012 for the treatment of the complainant for remnant Choleithiasis for Rs.1,00,000/-. Since the treatment  of the complainant  for Remnant Cholelithiasis was covered under the policy with waiting period of 2 years whereas complainant  was in her first year of policy only as such request for cashless facility was refused.  Thereafter the  claim along with document was received on 05.09.2012 for the sum of Rs.2,17,280/- for the admission period 19.08.2012 to 24.08.2012. Upon reviewing the claim documents it was observed that the complainant  had a past history of laproscopic cholecystectomy in 2006  and the  present complication is related to the same treatment as at the time  full gall bladder was  not removed leading to GP remnant calculus and thus the complainant suffering from  the said condition before issuance of  the first policy on 16.08.2011. The pre existing  condition/disease which was disclosed by her proposal form.  Further, the medical documents submitted by the complainant vide email dated 03.11.2012 which brought out the past history of the complainant and the same was concealed by her in the proposal form. The following are the findings that were withheld from the opposite party:

a) Ultrasound dt11/5/06-Choleithiasis (gall bladder stone) and fundal fibroid

b) Endoscopy  dt 12/5/06-Grade III reflux oesophagitis with Barretts changes

c) Cholecystectomy (Gall bladder removal  surgery) done on 15/5/2006

d) Ultrasound dt 2/10/08-Right renal calculus and Uterine fibroid

e) Colonscoy dt 11/10/08-Mild  procitis

f) Endoscopy dt 11/10/08 –Grade III reflux oesophagitis with barretts changes

    and Hiatus hernia

g) Ultrasound dt 5/12/09-Fibroid uterus

Since the complainant  had not disclosed the  above stated material medical facts to the opposite party a non disclosure notice for termination dated 09.11.2012 was served on the complainant followed by a cancellation letter dated 25.04.2013.  The complainant  misled the opposite party and obtained the insurance policy. Therefore the above circumstances the complainant  is not entitled for reimbursement of medical expenses of Rs.2,17,218/- with interest and compensation as claimed by him and hence complaint is liable to be dismissed.

3.       The Complainant had filed his proof affidavit and documents Ex.A1 to Ex.A35 were marked on the side of the complainant and Ex.B1 to B15 were marked on the side of the opposite parties.

4. The points that arises for consideration are as follows:-

1)  Whether  the opposite party committed  deficiency in service?

2)   To what relief the complainant is entitled?

5. POINT NO : 1

The admitted facts are that the complainant Mrs.K.Shanthi was a holder of mediclaim policy with Royal Sundaram from 30.09.2005 on wards and the said policy expired on 29.09.2011 and the  complainant become a holder of a mediclaim policy issued by the opposite party for the first time on payment of Rs.8,223/- for the period 16.08.2011 to 15.08.2012  and subsequently the said policy was renewed for the period 16.08.2012 to 15.08.2013 and the said policies are marked as Ex.A1 and A2 and subsequently the complainant was admitted in the Apollo Hospital on 19.08.2012 and discharged on 24.08.2012 and thereafter the complainant made a claim as per mediclaim policy on 04.09.2012 for a sum of Rs.2,17,218/- and the said  claim was  repudiated by the opposite party that the complainant suppressed the material facts in respect of her  ailments in Ex.B1 proposal form.

6.       The complainant contended that she was holding mediclaim policy for the period 19.09.2005 to  29.09.2011 with Royal Sundaram under Ex.A34 and at that time  the opposite party men one Rajavelu approached the complainant assuring her that she will be given portability, if she takes policy with the opposite party and believing his words the complainant paid a sum of  Rs.8,223/- as premium and she was issued with Ex.A1 insurance policy and subsequently the said mediclaim policy was also renewed under Ex.A2  for the period 16.08.2012 to 15.08.2013 and further the opposite party issued Ex.A34 portability with Apollo Munich Health Insurance from Royal Sundaram Health Insurance and thereafter  complainant was admitted  on 19.08.2012  in the Apollo hospital and surgery was conducted for removing remnant of gall bladder on 21.08.2012 and discharged on  24.08.2012 and for the said treatment the complainant incurred an expenditure of Rs.2,17,218/- and the said amount was claimed by the complainant with details on 04.9.2012 and the same was denied by the opposite party and also  terminated the policy   of the complainant without any further notice and therefore refusing to pay the claim made by the complainant is a deficiency in service on the part of the opposite party  and therefore prays to pass  an award as prayed in the complaint.

7.        The opposite party would contend that the policy was taken in the joint name of the complainant and her husband and whereas with the opposite party the complainant alone took the policy and the  amount also insured differs  and in the proposal form Ex.B2 the complainant suppressed the material facts with regard to diseases which she was suffering prior to taking Ex.A1 policy further she had not mentioned the surgery in respect of removal of gall bladder earlier as per Ex.B4  pre existing disease the opposite party is not liable  and therefore the policy taken with this opposite party is not a continuous policy with that of  the policy issued by Royal Sundaram and therefore the opposite party prays to dismiss the complaint.

8.       Ex.B34 series  is the policy  taken by the complainant  for the period 13.09.2005 to 29.09.2011 with Royal Sundaram Alliance Insurance Company Limited. Ex.A1 is the Mediclaim policy issued by the opposite party to the complainant for the period 16.0.2011 to  15.08.2012 and Ex.A2 for the period 16.8.2011 to 15.08.2013. Ex.B1 is the proposal form handed over by the complainant to the opposite party for taking mediclaim policy with them.  Ex.B2 & B3 is the mediclaim policy of the complainant which is equivalent to Ex.A1 & A2.  Ex.A4 is the terms and conditions of the policy  of the opposite party.

9.       The complainant  was admitted in the Apollo  Hospital on 19.08.2012  and  the remnant of the gal bladder was removed  through surgery on 21.08.2012  and she was discharged on 24.08.2012. The discharge summary of the complainant issued by the Apollo Hospital  is marked as Ex.A23 & Ex.B10. The above surgery conducted during the  during mediclaim policy was in force of the  opposite party.

10. According to the complainant he incurred an expenses of Rs.2,17,218/- for hospitalization and  treatment. To prove the above expenses the complainant  marked  various documents on his side.   The complainant sent  Ex.A10  letter  dated 04.09.2012 enclosing opposite party insurance claim form claiming the  above medical expenses. The opposite party issued Ex.A3 termination letter dated 09.11.2012  to the complainant that they reviewed all medical documents submitted by her  and she had  not disclosed with regard to her  health condition i.e., past history of Uterine Fibroid, Grade III reflux oesophagitis with Barretts changes, Renal Calculi and Mild proctitis.  Later the opposite party sent a rejection letter Ex.A7 dated 23.11.2012  to the complainant that  the claim of the complainant would remain rejected for the reason  non-disclosure of material facts with regard to her diseases mentioned in  Ex.A3.

11.     The opposite party contended that since the complainant suppressed material facts with regard to  her health condition  that she undergone gal bladder surgery in the year 2006 and   she had not disclosed the diseases in column no.6 of  Ex.B1 proposal form for taking policy and hence   she is not entitled for  the mediclaim  as per the policy taken with the opposite party and therefore Ex.A3 rejection of claim of the complainant has to be accepted.  It is not in dispute that the complainant undergone gal bladder surgery in the year 2006 and subsequently after taking policy with the opposite party she was admitted in the Apollo Hospital and surgery was conducted removing the remnant of the gal bladder.  No doubt  in column 6 of the proposal form the complainant has to furnish the diseases which  she was suffering at the time taking the policy.  The complainant filled the column no.6 as “NO” as if she was not suffering with any diseases. The complainant would contend that the entire proposal form was filled by the agent of the opposite party and she has signed the form only as required by the agent and she has no knowledge about  the facts filled in the proposal form.  The proposal form was received by the opposite party on 16.08.2011. The complainant would content that the agent of the opposite party told that she would be given portability in continuation of the earlier policy taken by her with Royal Sundaram Insurance and because of that assurance only she had taken policy with the opposite party.  Ex.B35 is the letter  dated  16.08.2011 given by the opposite party in which it is categorically stated that a sum of Rs.8,223/- received towards portability fees with Apollo Munich Health Insurance from Royal Sundaram Health Insurance, Royapettah, Chennai- 14. The opposite party received the proposal form on 16.08.2011 and on the same day the Ex.B35 portability letter was also issued to the complainant.  Therefore on the date of issuing the portability letter, the opposite party was  well aware that the particulars stated in column no.6 of the proposal form.  Once the opposite party agreed to give the portability to the complainant after receiving the proposal form on the same day now they cannot contend that merely because she had said about ‘NO’ with regard to her pre diseases in column 6 of the proposal form, she is not entitled for mediclaim is not acceptable and on the other hand she is entitled for mediclaim  by virtue of portability Ex.A35 issued by the opposite party. 

12.     The opposite party counsel contended that the policy issued by the opposite party is not a continuous policy with that of Royal Sundaram, it is a fresh policy  and the insurance amount also differs  and therefore the complaint has to be dismissed. Once the opposite party had  given the portability in continuance of the  policy issued by the Royal Sundaram now they cannot contend that it is not a continuous policy, fresh policy and the premium  amount differs and such a contention is rejected. Having, the opposite party agreed for the portability and failed to honour the claim made by the complainant and rejected the same is amounts to deficiency in service on the part of the opposite party.

13. POINT NO:2

The opposite party counsel contended that the complainant is not entitled for mediclaim because of the suppression of the material facts with regard to her            pre-diseases and in case if the forum come to a conclusion that she is entitled for mediclaim, she can be awarded a claim of Rs.1 lakh only as per the 1^st policy taken with the Royal Sundaram.  As per the policy issued by the Royal Sundaram Ex.A34 the complainant insured for  a sum of Rs.1lakh only.  As per Ex.A1 & Ex2 policy issued by the opposite party the sum insured was Rs.3 lakhs.  It is held above that the complainant is entitled for portability.   As the complainant is entitled for portability as contended by the opposite party that she is entitled for refund of Rs.1lakh only is acceptable.   The outright rejection of the claim of the complainant  caused mental agony and pain to the complainant is acceptable and for such a mental agony it would be appropriate to order a compensation of Rs.25,000/- would be sufficient besides a sum of Rs.3,000/- as cost of the complaint.

          In the result the complaint is allowed in part.  The opposite party is directed to refund a sum of Rs. 1,00,000/- (Rs. One lakh only)   towards medical expenses  and a sum of Rs. 25,000/- (Rs. Twenty five thousand only) as compensation for mental agony  besides  a sum of Rs.3,000/-(Rs. Three thousand only)  as cost of  the complaint.  The opposite party is directed to pay the above amounts  within 6 weeks from the date of receipt of copy of the order, failing which the above  amount’s shall carry with interest at the rate of 9%  per annum  till the date of payment.

Dictated to the steno-typist transcribed and typed by her corrected and pronounced by us on this 29^th day of January 2015.

             MEMBER-II                                                          PRESIDENT

COMPLAINANT SIDE DOCUMENTS:

OPPOSITE PARTY SIDE DOCUMENT:

             MEMBER-II                                                    PRESIDENT