CC No.532.2016

Filed on 02.04.2016

Disposed on.26.03.2018

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE 26^th DAY OF MARCH 2018

CONSUMER COMPLAINT NO.532/2016

PRESENT:

Sri.  H.S.RAMAKRISHNA B.Sc., LL.B.

        PRESIDENT

             Smt.L.MAMATHA, B.A., (Law), LL.B.

                      MEMBER

                                       V/S

ORDER

BY SRI.H.S.RAMAKRISHNA, PRESIDENT

1. This Complaint was filed by the Complainant on 02.04.2016 U/s 12 of the Consumer Protection Act, 1986 and praying to pass an Order directing the Opposite Part to pay a sum of Rs.4,40,000/- to the Complainant for treatment, to pay sum of Rs.3,50,000/- towards the mental agony, harassment and inconvenience caused to the Complainant and other reliefs. 

2. The brief facts of the complaint can be stated as under:

In the Complaint, the Complainant alleges that the Complainant had subscribed to ICICI Lombard Health Insurance in the Year 2010 and continued with the said insurance upto 2012.  In the Year 2012, the Opposite Party vigorously followed up with the Complainant to subscribe to its insurance policy and assured him of various excellent services.  Believing the assurances made by the Opposite Party, the Complainant subscribed to the Apollo Munich Health Insurance bearing No.1000314833-01.  He had paid premium for the Years 2012-13 and thereafter, continued with the same policy and paid premium for the period 25.08.2014 to 24.08.2016.   At the time of subscribing to the insurance of Opposite Party, the Complainant neither had diabetes nor hypertension.  During August, 2014, the Complainant complained of mucus per rectum.  Thereafter, he visited his doctor and was treated as an out-patient from 21.08.2014 to 06.09.2014.  As prescribed, the Complainant took few tests and the results shows that he was suffering from Rectum Carcinoma.  The Complainant was shocked to know about the said disease and thus got admitted in Columbia Asia Hospital, Bangalore where he was treated for the said disease as an in-patient from 07.09.2014 to 25.09.2014.  The Complainant was under treatment for 19 days as an in-patient.  As per advice, he underwent surgery on 08.09.2014.  The surgery was successful and later he underwent Post-Operative Care.  On 25.09.2014, as per the doctor’s advice, the Complainant was discharged from the hospital.  The total expenditure towards his treatment came up to Rs.7,20,000/-.  The Complainant had availed ‘cashless service’ at the very beginning of his treatment, from the Opposite Party.  However, the said claim was rejected vide Opposite Party’s letter dt.07.09.2014 on the frivolous ground that the Complainant had allegedly suppressed material facts that were observed in the documents provided during his hospitalization.  However, the Opposite Party informed to the Complainant in the said letter that cashless denial does not mean denial of claim and requested the Complainant to submit his claim documents after completion of treatment for review of admissibility.  The Complainant was shocked and disappointed to learn about the said rejection.  The Complainant had not suppressed any material facts at the time of availing the benefits from the Opposite Party.   The Complainant was not diabetic either at the time of subscribing to the insurance policy offered by the Opposite Party or when he was undergoing treatment.  He has hypertension only from past one year.  Based on the assurance given by the Opposite Party in its letter dt.07.09.2014, the Complainant submitted his claim.  However, the said claim was also rejected on the same ground, vide letter dt.10.09.2014.  It was further wrongly mentioned in the said letter dt.10.09.2014 that the Complainant suffered from Diabetes and hypertension from past ten years.  This is a totally baseless allegation.  In order to clarify the allegation levelled against the Complainant by the Opposite Party, the Complainant got a certification from Dr.Vasudeva Pai, Senior Surgical Gastroenterologist, HPB and advanced laparoscopic surgeon at Columbia Asia Hospital, the primary consultant in charge of the Complainant during his hospitalization at Columbia Asia Hospital, that the Complainant was not diabetic and had hypertension that too from past one year only and that this claim for insurance cannot be rejected on such a fallacious ground.  The Complainant even met the concerned staff of the Opposite Party personally.    During the said meeting, the Complainant was asked to get a note from the cardiologist certifying that he does not suffer from hypertension or diabetes.  Therefore, he got a letter from the Cardiologist also stating that the Complainant does not have diabetes and is suffering from hypertension only from the past year.  On the strength of the said certificates, the Complainant approached the Opposite Party for reimbursement of his claim amount.  Surprisingly, the said claim was also rejected on the same ground.  The Opposite Party rejected the claim made by the Complainant without any base or evidence.  The Complainant had subscribed to the Health Insurance of Opposite Party in the Year-2012 itself.  At the time, the Complainant did not suffer from hypertension or diabetes.  The Complainant is entitled to receive complete reimbursement for all the treatments and tests that he underwent as he is covered under the insurance provided by the Opposite Party.  The Opposite Party is bound to provide the necessary financial assistance to the Complainant in respect of the valid claim made by him.  However, the Opposite Party deliberately and miserably failed to honour the agreement.  The Complainant got issued Legal Notice dt.02.12.2015 calling upon Opposite Party to reimburse Rs.4,40,000/-to the Complainant for the treatment.  The Complainant got issued a Legal Notice on the Opposite Party through his Counsel on 02.12.2015 calling upon the Opposite Party to reimburse Rs.4,40,000/- to the Complainant for the treatment he underwent in Columbia Asia Hospital, Bangalore from 07.09.2014 to 25.09.2014, which is covered under the insurance policy that the Complainant has subscribed to from the Opposite Party.  Further, the Opposite Party was called upon to pay Rs.3,50,000/-towards the mental agony, harassment and inconvenience caused to the Complainant within 15 days from the date of receipt of this notice.  The said notice was served on the Opposite Party on 04.12.2015.  However, the Opposite Party neither replied nor complied with the terms of the notice dt.02.12.2015.    Hence this complaint.

3. In response to the notice, the Opposite Part put their appearance through their counsel and filed their version.  The Opposite Parties in their version pleaded that the complaint is not maintainable for the reasons as defined under section 2(g) of the Consumer Protection Act, 1986, has no application in the facts and circumstances of the present case.  The Complainant having not revealed the materials facts in the Proposal Form at ‘Column 6. Medical and Life style Information Section B’, which is crucial and relevant as far as underwriting the policy and assuming the risk is barred from filing the present complaint alleging deficiency of service against the Opposite Parties on this count the complaint does not stand the test of law.  The Complainant approached the Opposite Party Company for availing an Insurance Policy.  As per the process involved, Insured submitted Proposal Form bearing No.1101645718 dt.30.07.2012 for issuance of an health insurance policy namely Easy Health Policy so as to provide an insurance cover to himself, wife and his two children.  The Proposal Form is the basis of the insurance contact.  The decision of the Insurance Company whether to grant insurance cover to the proposer solely depends upon the various facts, disclosure, information, statements and declarations made by the applicant in the Proposal Form.   Further the various terms of the insurance contract/cover including the premium amount, maturity amount etc. depends solely upon the said facts, disclosure, information, statements and declarations in the Proposal Form.  One great principle of Insurance Law is that a contract of insurance is based upon utmost good faith, Uberrima fides.  Therefore, the principle underlying the doctrine of disclosure and the rule of good faith oblige the proposer to answer every question put to him with complete honesty; and Honesty implies Truthfulness.  The first paragraph of the proposal form it is clearly mention that the proposer/Complainant was duly informed about the terms and conditions of the policy and only after being satisfied by the terms mentioned in the policy the proposer/Complainant signed and submitted the proposal form.  That believing the above said declaration, information and details provided by the Proposer including the medical history in the Proposal Form to be true, correct and complete in all respect, giving due credence to the under writing norms of Opposite Party Company, a Policy No.110101/11111/1000314833 was issued for sum assured opted as per Proposal Form, to the Proposer for the period 25.08.2012 to 24.08.2014 and renewed the same from 25.08.2014 to 24.08.2016.   On 05.09.2014 cashless was received from Columbia Asia Hospital for patient K.Arun Kumar who got admitted with c/o Mencus per rectum and probable diagnosis of Carcinoma Rectum with Date of Admission on 04.09.2014 and estimated duration of stay of 3 days and estimated cost of Rs.2,93,000/-.   Post reviewing the documents query was raised.   After scrutinizing the reply it was noted that there is a discrepancy and non-disclosure of HTN since 10 years and DM since 3-4 years.  So the cashless was rejected stating “cashless facility cannot be granted due to non-disclosure of material facts which are observed in the documents provided during current hospitalization.  However member can go for reimbursement with all previous insurance and medical records.  It can be processed as per merits of the case’.  In view on the concealment of material facts by the Complainant, the Opposite Party on 10.09.2014 sent a Termination notice under Section 7(s) of the policy terms and conditions, to the insured stating, the reason that Mr.K.Arun Kumar as a known case of Diabetes since 3-4 years and Hypertension, the Complainant did not disclose the facts about the health condition at the time of application for health insurance coverage.   Hence in view of the suppression of material facts, termination notice of 30 days was served to the Complainant, which expressly meant that he and other members insured are no more for any benefit under the policy.  On 13 October 2014 the same claim was submitted by the Complainant into reimbursement with DOA 07^th Sep 2014 and DOD 25^th Sep 2014 with final claimed amount Rs.757158.  Then post reviewing the documents it was noted that the patient was admitted for the management of Carcinoma Rectum with Cholelithiasis and DM, HTN.  For this he was taken up Anterior Resection of Rectum with Lap Cholecystectomy. Post procedure the patient discharged with advice.  On 07.11.2014, a cancellation notice was sent to the Complainant stating that, your policy has been cancelled abinitio/from the date of renewal in view of non-disclosure for Mr.K.Arun Kumar.  Hence prays to dismiss the complaint.

4.   The Complainant, Mr.K.Arun Kumar filed his affidavit by way of evidence and closed his side. 

5.      The points that arise for consideration are:-

1. Whether the Complainant has proved the alleged deficiency in service by the Opposite Party ?
2. If so, to what relief the Complainant is entitled ?

6.     Our findings on the above points are:-

                POINT (1):-  Affirmative

POINT (2):-  As per the final Order

REASONS

7. POINT NO.1:-.   As looking into the allegations made in the complaint and also the version filed by the Opposite Party, it is not in dispute that the Complainant subscribed to the Apollo Munich Health Insurance Policy bearing No.1000314833-01 and paid premium for the Years 2012-13 and thereafter, continued with the same policy and paid premium for the period 25.08.2014 to 24.08.2016.   Further to substantiate this fact, the Complainant in his sworn testimony, he has reiterated the same and produced the copy of the Apollo Munich Health Insurance Policy.  By looking into this document, it clear that the Complainant K.Arun Kumar subscribed to the Apollo Munich Health Insurance bearing No.1000314833-01 for the period 25.08.2014 to 24.08.2016 covering for himself, his wife Chandrakala, his daughter A Aishwarya, A.Srinidhi and his son A.Akilesh Gowda and total sum assured is Rs.4,00,000/-.  This evidence of the Complainant is not been denied or disputed by the Opposite Party.  Hence, it is proper to accept the contention of the Complainant that the Complainant has subscribed to the Apollo Munich Health Insurance Policy bearing No.1000314833-01 from 25.08.2014 and renewed the same upto 24.08.2016.
8. During August, 2014, the Complainant complained of mucus per rectum.  Thereafter, he visited his doctor and was treated as an out-patient from 21.08.2014 to 06.09.2014.  As prescribed, the Complainant took few tests and the results shows that he was suffering from Rectum Carcinoma.  The Complainant got admitted in Columbia Asia Hospital, Bangalore where he was treated for the said disease as an in-patient from 07.09.2014 to 25.09.2014.  The Complainant was under treatment for 19 days as an in-patient.  As per the Doctor advice, he underwent surgery on 08.09.2014.  The surgery was successful and later he underwent Post-Operative Care.  On 25.09.2014, as per the doctor’s advice, the Complainant was discharged from the hospital.  The total expenditure towards his treatment came up to Rs.7,20,000/-.  The Complainant had availed ‘cashless service’ at the very beginning of his treatment from the Opposite Party.  However, the said claim was rejected vide Opposite Party’s letter dt.07.09.2014 on the frivolous ground that the Complainant had allegedly suppressed material facts.  However, the Opposite Party informed to the Complainant in the said letter that cashless denial does not mean denial of claim and requested the Complainant to submit his claim documents after completion of treatment for review of admissibility. The Complainant was not diabetic either at the time of subscribing to the insurance policy offered by the Opposite Party or when he was undergoing treatment.  He has hypertension only from past one year.  Based on the assurance given by the Opposite Party in its letter dt.07.09.2014, the Complainant has submitted his claim.  However, the said claim was also rejected on the same ground, vide letter dt.10.09.2014.  It was further wrongly mentioned in the said letter dt.10.09.2014 that the Complainant suffered from Diabetes and hypertension from past ten years.  This is a totally baseless allegation.  In order to clarify the allegation levelled against the Complainant by the Opposite Party, the Complainant got a certification from Dr.Vasudeva Pai, Senior Surgical Gastroenterologist, HPB and advanced laparoscopic surgeon at Columbia Asia Hospital, the primary consultant in charge of the Complainant during his hospitalization at Columbia Asia Hospital, that the Complainant was not diabetic and had hypertension that too from past one year only and that this claim for insurance cannot be rejected on such a fallacious ground.   The Complainant even met the concerned staff of the Opposite Party personally.  During the said meeting, the Complainant was asked to get a note from the cardiologist certifying that he does not suffer from hypertension or diabetes.  Therefore, he got a letter from the Cardiologist also stating that the Complainant does not have diabetes and is suffering from hypertension only from the past one year.  On the strength of the said certificates, the Complainant approached the Opposite Party for reimbursement of his claim amount.  Surprisingly, the said claim was also rejected on the same ground.  In order to substantiate this fact, the Complainant in his sworn testimony, he has reiterated the same and produced the Discharge Summary issued by the Columbia Asia Hospital.  By looking into this Discharge Summary, it is very clear that the Complainant taken a treatment as an inpatient in Columbia Asia Hospital from 07.09.2014 to 25.09.2014 for Carcinoma of Midrectum and the Complainant for taking treatment incurred a sum of Rs.6,00,000/-.  It is clear from the official receipt issued by the Columbia Asia Hospital, while the Complainant taking treatment as an inpatient he requested for cashless service, but the Opposite Party deny the cashless service by addressing a letter dt.07.09.2014.  On the ground that the cashless facility cannot be granted due to non-disclosure of material facts.  This evidence of the Complainant has not been denied or disputed by the Opposite Party.  On the other hand, the Opposite Party have also admitted these facts.  Therefore, it is proper to accept the contention of the Complainant that the Complainant had taken treatment as an inpatient in Columbia Asia Hospital from 07.09.2014 to 25.09.2014 for Carcinoma of Midrectum and for taking treatment the Complainant spent a sum of Rs.6,00,000/-.  While taking treatment the Complainant requested for cashless benefit, but the Opposite Party denied the cashless facility. 

9. The Complainant was discharged on 25.09.2014, after his discharge submit his claim documents after completion of treatment for review of admissibility.  The said claim was also rejected on the same ground vide letter dt.10.09.2014.  In support of this, the Complainant in his sworn testimony, he has reiterated the same and produced the letter dt.10.09.2014 addressed by the Opposite Party to the Complainant rejecting the claim of the Complainant.  On the ground that the Complainant as a known case of Diabetes since 3-4 years and Hypertension since 10 years.  This letter is dt.10.09.2014 but the Complainant is not a diabetic.  On the other hand, he had hypertension since one year.  In support of this contention, the Complainant has produced the letter issued by Dr.Vasudeva Pai H it is dt.21.11.2014, in his letter clearly mentioned that the Primary consultant in charge of Sri.K.Arun Kumar and being the primary consultant who performed the surgery and certified that he is not a diabetic nor on any antidiabetic medications and that he is a hypertensive only since the last one year.   So from this evidence, it is very clear that the Complainant is not a diabetic.  On the other hand, he had only hypertension since one year prior, but the Opposite Party have rejected the claim of the Complainant.  On the ground that the Complainant is a diabetic since 3 to 4 years and hypertension since 10 years.  On the other hand, the Opposite Party have not examined Dr.Vasudeva Pai. H or in support of their defence, they have not placed any evidence to show that the Complainant is suffering from Diabetic since 3 to 4 years and hypertension since last 10 years.   Thereby, the rejection of the claim of the Complainant by the Opposite Party is not proper and in accordance with the procedure.   On the other hand, the Opposite Party have rejected the claim of the Complainant on flimsy ground. 
10. The Opposite Party in their version taken a defence that the claim of the Complainant was rejected.  On the ground that the Complainant as a known case of Diabetic patient since 3 to 4 years and Hypertension since 10 years.    But in support of this defence, the Opposite Party have not led evidence.  Thereby, it is not proper to accept the defence taken by the Opposite Party.  On the other hand, as the evidence placed by the Complainant clearly goes to show that the Complainant is not a diabetic patient nor hypertension as alleged by the Opposite Party while rejecting the claim of the Complainant.  Thereby, the rejection of the claim of the Complainant is uncalled for and not in accordance with the procedure.  Even though the policy is inforce.  During the policy is inforce, the Complainant hospitalized and taken a treatment as an inpatient from 07.09.2014 to 25.09.2014 instead of honouring the claim. The Opposite Party rejected the claim of the Complainant without any valid reason.  Thereby, the Opposite Party is adopting unfair trade practice and also it amounts to deficiency of service.    Hence, we answer point No.1 in Affirmative. 

11. POINT NO.2:-  As looking into the policy, the sum insured is only Rs.4,00,000/-.  Even though the Complainant spent more than Rs.4,00,000/- but he has not entitled to claim more than sum assured amount of Rs.4,00,000/-.  On the other hand, the Complainant is entitled for reimbursement of his medical expenses to an extent sum assured amount of Rs.4,00,000/-.  Hence, we answer point No.2 in Accordingly.  In the result, for the foregoing reasons, we proceed to pass the following order:

ORDER

The complaint is partly allowed holding that there is deficiency in service by the Opposite Party No.1 & 2.

The Opposite Party No.1 & 2 are to reimburse the medical expenses of Rs.4,00,000/-to the Complainant.

The Opposite Party No.1 & 2 are further directed to pay sum of Rs.5,000/- as compensation for causing mental agony to the Complainant.

The Opposite Party No.1 & 2 are also liable to pay sum of Rs.5,000/- as cost to the Complainant.

The Opposite Party No.1 & 2 are directed to pay the aforesaid amount within 45 days from the date of receipt of this Order. Failing which the aforesaid amount will carry interest at 12% p.a. from the date of order, till the date of payment. 

Supply free copy of this order to both the parties. 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, 26^th day of March 2018).

MEMBER                                            PRESIDENT

LIST OF WITNESSES AND DOCUMENTS

 Witness examined on behalf of the Complainant:

1. Mr.K.Arun Kumar, who being the Complainant has filed his affidavit.

 List of documents filed by the Complainant:

1.  Copy of the Apollo Munich Health Insurance Policy subscribed to by the Complainant.
2. Copy of the cheque dt.29.07.2012 for Rs.23,280/- issued by the Complainant to the Opposite Party while subscribing to the insurance policy
3. Copy of the details of the insurance policy provided by the Opposite Party.
4. Copy of the extension of health insurance provided by the Opposite Party.
5. Discharge Summary issued by Columbia Asia Hospital to the Complainant.
6. Receipts pertaining to the Medical Bills issued by Columbia Asia Hospital to the Complainant.
7. Copy of the letter dt.07.09.2014 written by the Opposite Party to the Complainant
8. Copy of the letter dt.10.09.2014 written by the Opposite Party to the Complainant
9. Letter dt.01.10.2014 written by the Complainant to the Opposite Party along with annexures.
10. Letter issued by Dr.Vasudeva Pai. H dt.21.11.2014.
11. Copy of the Legal Notice dt.02.12.2015 issued on the Opposite Party.
12. Copy of the postal acknowledgment card evidencing service of notice dt.02.12.2015 on the Opposite Party.

Witness examined on behalf of the Opposite Parties:

                                      -NIL-

List of documents filed by the Opposite Party:

1. Proposal Form dt.30.07.2012. 
2. Copy of the policy schedule and copy of the Terms and conditions/Policy wordings.
3. Copy of the Cashless request dt.05.09.2014.
4. Medical documents of the Complainant.
5. Additional Information Letter.
6. Copy of the cashless denial letter.
7. Copy of the termination Notice.
8. Copy of the Cancellation Letter.

MEMBER                                                                 PRESIDENT