IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM

            DATED THIS THE  9TH  DAY OF September  2016

Present: -    Smt. G.Vasanthakumari, President

Sri.M.Praveen Kumar, Member

         CC.No.53/2014

1.Sasidharan  Nair                                    :                  Complainants

S/o Balakrishnan Nair

Thekkekkara  Puthen veedu

Kalanjoor P.O

Edathara Muri

Kalanjoor Village

Pathanamthitta (Dist)

2.Ranimole.S

W/o Shibukumar

Thekkekkara  Puthen veedu

Kalanjoor P.O

Edathara Muri

Kalanjoor Village

Pathanamthitta (Dist)

[By Adv.L.Rajesh, Punalur]

V/S

Associate Regional Manager           :        Opposite parties

(Partnership) Apollo Munich Health Insurance Co.Ltd

[By Adv.Saji Isaac.K.J, Kollam]

2.       Manju Kumari

          (Client Servicing Officer)

          Family Health Plan, T.P.A. Ltd

Muthoot Fincorp Ltd, Muthoot towers, Punnen Road, Thiruvananthapuram-695034.

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          3.       Branch Manager,

                   Muthoot Fincorp Ltd

                   Grace Complex,

                   Pathanapuram

                   [By Adv.Thomas John Morris, Kollam]

ORDER

Sri.M.Praveen Kumar, Member

Complainant’s case is that while 2nd complainant was working as Customer Service Executive (CSE) in the 3rd opposite party’s office, 3rd opposite party issued a one year health insurance  policy of the 1st opposite party company in the name of her mother one Mani .P. Nair covering an insured amount of one lakh rupees on 26/08/2013. During the subsistence of the said policy, on 27/10/2013 at about 6 pm her mother affected with Right Intra Prenchymal Hemorrhage admitted at Gokulam Medical College Hospital on the same day. Thereafter on 28/10/2013 she had underwent craniotomy surgery there. The patient was admitted there because the Gokulam Medical College Hospital is included in the test of cashless treatment availing hospital as per the policy details. But later opposite party 1 rejected the claim of payment of final bill of Rs.1,07,705/- even after submitting the treatment bills. As a result of this due the financial stringency the relatives of the patient forced to remove the patient from the said hospital to Medical College Hospital on 30/10/2013. On reaching the Medical College Hospital, Thiruvananthapuram , the patient breath her last. As per the policy condition if the death of the insured , the legal heirs got an additional 1 lakh rupees as Personal Accident Coverage               ( Muthoot Customers).

But opposite parties not given any amount as per policy condition and they rejected the claim and there is negligence, unfair trade practice and deficiency in

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service on the part of opposite parties. So complainants approached the Forum for relief.

Opposite party 1 filed version contending that the complainant’s no.1 wife and complainant’s no.2 mother had not disclosed the fact that she was having hypertension at the time of taking the policy any treatment related to any condition which existed prior to policy with the answering opposite party was to be covered only after completion of 48 months of the policy with answering opposite party in terms of Section 5 D of the Key Exclusions issued to the complainant’s no.1 wife.  As such the claim of the complainant was rejected under pre existing disease clause under section 5 d of the Key Exclusion clause in the policy certificate.

Thus the ailment of the complainant which existed before the inception of the policy as determined from the above preceding paragraphs falls under the category of pre-existing disease.  Hence the said claim of the complainant’s no.1 wife is liable to be rejected as per the terms and conditions of the said policy.  Hence the said complaint is liable to be dismissed on this ground alone.

On 28.10.2013, cashless request was received from the treating  hospital ie from Sree Gokulam Medical College Hospital, Kerala for insured (Mrs.Mani.P.Nair) who undergone treatment for c/o headache, vomiting and final diagnosis of Intra Parenchymal Hemorrhage –Cerebral right with mass midline shift with estimated cost ofRs.1,05,000/- and approximate stay of 3 days.

It is submitted that as per cashless request form, the treating doctor stated that complainant no.1 wife is having “Hypertension since 5 years”.  However, additional information was sought on 28.10.2013 from the treating hospital viz: “please furnish first consultation letter; all previous records and investigation report for the related ailment.2). Positive investigative reports supporting the diagnosis.”

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That the treating hospital submitted few documents, but did not provided the positive investigative reports supporting the diagnosis hence a letter dated 29.10.2013 was issued to provide the requisite documents.

That thereafter on received of the said documents, it established that the complainant’s wife not only had hypertension since 5 years but also under medication.ie. known case of hypertension on drugs and also had migraine. It is noteworthy further to submit that the CMO noted submitted established that complainant’s wife admission was not accident or trauma since in the said notes, time of accident was left blank and place of accident was also left blank rather mentioned as admission with c/o Headache vomiting and known case of hypertension on drugs.  Hence in the light of above findings, cashless request was denied as the “ present ailment of complainant’s wife was pre-existing disease.” That thereafter, the claim form dated 13.11.2013 was received along with documents for reimbursement of Rs.107705/- incurred upon the alleged treatment the wife of the complainant(herein after referred to as “insured”) from 28.10.2013 to 30.10.2013 for intracerebral hemorrhage with procedure done for “Decompressive craniotomy”. That upon review of the claim documents particularly discharge summary remarked that “Discharged Against Medical Advice”. It further stated that History of present illness is due to “known case of hypertension of Aten 50 mg for 5-6 years, known case of migraine on treatment, intubated in casualty.” That the complainant submitted the treating doctor certificate dated 26.11.2013 which also certified that the complainant’s wife was known case of hypertensive for 6 years and was on T.Aten 50 mg.  Further the history and physical examination particulars dated 27.10.2013 provided that the complainant’s wife also known case of migraine on drugs.  Therefore this amounts to non disclosure of vital facts hence the said claim was repudiated under the

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policy terms and conditions of the policy vide letter dated 07.01.2014. Hence the complaint is liable to be rejected forthwith along with cost.

Opposite party 2 set exparte.

Opposite party 3 filed versions contending that the complainant alleges to have obtained an Insurance Policy for her mother from Appolo Munich Health Insurance Company Ltd; which is an independent enterprise engaged in Insurance business.  The 3rd opposite party is engaged financial services and is not an Insurance Company.  The 3rd opposite party provides financial advisory services to its customer regarding investments, gold loan, money transfer, deposits etc; and is not at all involved in insurance business. The3rd  opposite party is not at a party to any products purchased or acquired by the customer from the concerned company and the agreement, terms and conditions, policy conditions etc are between the concerned parties and the 3rd opposite party cannot be dragged into such proceedings.

By obtaining an insurance policy, the complainant has agreed to abide by the terms and conditions of the policy documents and has agreed to disclose all the medical conditions of the policy holder.  Any violation of policy condition will not entitle the policy holder the benefits of the policy held by him/her.  The contract of insurance is solely between the Insurer and insured.  The 3rd opposite party is not an insurer to honour any commitments under the policy.  As a service advisor, the 3rd opposite party has corresponded with the insurance company regarding the policy and apart from this, the 3rd opposite party is absolutely not liable to honour any commitments entered into between the insurance company and the complainant.

The 3rd opposite party is not liable to compensate the complainant as alleged and the complaint is only liable to be dismissed with costs to the 3rd opposite party.

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The points that would arise for consideration are:-

(1). Whether there is any deficiency in service on the part of the opposite parties?

(2). Reliefs and costs?

The evidence in this case consists of the oral testimony of PW1 and DW1 and documentary evidence Exts P1 to P10, X1, and D1 to D3.

The Points :- In order to prove the case of the complainant , complainant filed a proof affidavit in lieu of his chief examination along with 10 documents. On the basis of the proof affidavit, she was examined as PW1 and documents produced were marked as Exts P1 to P10. Opposite party 1 sited one witness, Dr.Janardhanan Potty who treated the deceased at Gokulam Medical College Hospital and examined as DW1 and marked X1 and D1 to D3 documents.

          Here the crucial question which arises for consideration is whether the diseased/insured was having pre-existing disease there is any material suppression regarding that.

          Another question which arises for consideration is whether the applicant is eligible to get Rs.1 lakh as additional claim of death coverage.

                      Counsel for the 1st opposite party argued that the insured/diseased was  known hypertensive for 6 years and was on Aton 10 mg which is evidenced by Ext D1 certificate issued by treating doctor(Dw1), Ext D2 discharge summary, Ext X1 case sheet of the 1st complainant’s wife at Sree Gokulam Hospital.  And also argued that the physical symptom and sign of disease and also one of the cause of the disease is hypertension, which is a pre-existing disease which is excluded under the policy.  Hence the 1st opposite party rightly repudiated the claim on the ground that the patient had pre-existing disease.

          Counsel for the 3rd opposite party argued that 3rd opposite party has no relationship with the complainants as insurer or insured and they are not liable for

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the repudiation of the Insurance policy and also argued that the insured had not disclosed her pre-existing disease which is the cause for her ailment and consequent death.

Due to financial constrains, by standers are not willing to continue there and the patient was discharged against medical advice.

Learned Counsel for the opposite party 1 and 2 has argued and drawn our attention to the discharge summary of Sree Gokulam Medical College dated 28.10.2013 which marked as Ext P5 wherein it is recorded that complainant is a known case of hypertension on Aten 50 mg for 5-6 years, known case of migrane on treatment.  According to P5 document it is clear that petitioner was hypertensive can result into Intra Parenchymal Hemorrhage and putamen.  Learned counsel also argued that from the P5 document insured was suffering from hyper tension prior to the purchase of the insurance policy hence the company was justified in repudiating the insurance claim in view of the exclusion clause which excluded the expenses incurred on pre-existing disease.

Complainant examined as PW1 and produced 10 documents and marked as Ext P1 to P10.  Counsel for the complainant argued that the insured have n’t any pre-existing disease.  He points out the deposition of the treating doctor (DW1) that DW1 would swear before the Forum that acW-s¸-«p-t]mb aWn, 6 hÀj-ambn Hypertensive  BWv F¶v ImWn-bv¡p-¶-Xnt\m Aten 50mg  acp¶v Ign-bv¡p¶ hy-àn-bmWv F¶v ImWn-bv¡p¶ bmsXmcp tcJbpw  Rm³ I­n-«nÃ. casualty doctor BWv discharge summary bn ImWp¶ hnh-c-§Ä ]d-ªn-«p-s­-¦n  ]d-ªn-«p-ÅXv. aWn (patient)casualty doctor   HmSv t]mepw H¶pw ]d-bp-hm³ ]äm-¯-hn[w coma  stage   Bbn-cp¶p. At¶ Xob-Xn-bn  casualty  D­m-bn-cp¶  doctor t\mSv   Bcm-bn-cp¶p F¶v  case sheet  t\m¡n-bn«v a\-Ên-em-Ip-¶nÃ.

Counsel for the complainant vehemently argued that  DW1 ie treating doctor is not sure that present disease IPH and subsequent death is due to hypertension.

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DW1 is in box “ acW-s¸-«p-t]mb aWn¡v IPCH D­m-bXv hypertension sIm­v am{X-am-Wv F¶v F\n¡v A`n-{]m-b-an-Ã. v IPCH   F¶Xv Arterio  Venus Malformation(AVM),Anerysm, toumors XpS-§n-b-XvsIm­v D­m-Imw”.

On examination of documents produced and statement of witness, we are on the view that there is no piece of evidence produced by the opposite party that the insured have pre-existing disease. They rely upon P1 case sheet , which states that the patient have hypertensive for the last 6 years . But the treating doctor (DW1) deposed that he is not in a position  that who entered that history, he never seen any documents regarding the prior treatment and more over the patient was on coma stage while coming the hospital.

We have perused the Ext.P8 post mortum report and it states that the opinion as to cause of death is “death is due to head injury”. On perusal of the Ext P5(discharge summary) document, it is not seen that the insured disclosed any previous history of IPH. 

Therefore, the insurance claim submitted by the complainant or treatment of IPH cannot be termed as a claim in respect of a pre-existing disease.  Thus, repudiation of insurance claim by the opposite party is not justified.

          Learned counsel for the respondent has contended that it is established on record that the petitioner was having a previous history of hypertension, the opposite party was justified in repudiating the claim on the ground that the IPH suffered  by the insured was caused by pre-existing hypertension.

 There is no merit in this contention.  Hypertension is a common ailment and it can be controlled by medication and it is not necessary that a person suffering from hypertension always suffer IPH.  More over no expert adduced any evidence/or produced any documents regarding, hypertension has any direct nexus with IPH.  Therefore, the argument advanced by opposite parties 1 and 2 is

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farfetched and is liable to be rejected.  This view was taken on Satish Chander Madan Vs M/s Bajaj Allianz general Insurance Company dated 11-01-2016 by National Commission.

          At this juncture we are on the view that there is gross negligence, deficiency in service and unfair trade practice on the part of opposite parties 1 and 2 and the complainant is entitled to get relief.

In the result, complaint is allowed in part. Opposite parties 1and 2 are directed to give Rs.2 lakhs as the claim amount to the 2nd complainant with 9% interest from the date of filing the complaint ie 26/03/2014. Opposite parties 1 and 2 are further directed to pay Rs.25,000/- as compensation  to the 2nd  complainant  and Rs.5000/- as cost to the proceedings to the 2nd complainant. Order must be complied with within one month from the date of receipt of this order. Non compliance of this order the amount of Rs.2 lakhs will carry 12% interest per annum till realization.

Dated this the 9th day of September 2016.                                                                                                                             

  SMT.G.VASANTHAKUMARI:Sd/-

                                                                          SRI.M.PRAVEENKUMAR:Sd/-

                                                                     Forwarded/by Order

                                                                     Senior Superintendent

I N D E X

PW.1:-Ranimole

DW.1:-Dr.Janardhanan Potty

Ext.P.1:-Job ID card

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Ext.P.2:-Premium receipt dated 10/02/2015

Ext.P.3:-Policy certificate cum premium receipt

Ext.P.4:-Portion of personal accidental Death Coverage

Ext.P.5:-Discharge summary from Sree Gokulam Medical College , TVM

Ext.P.6:-Net work of hospital list booklet

Ext.P.7:-Bill

Ext.P.8:-Post Mortem certificate dated 31/10/2013

Ext.P.9:-Death certificate

Ext.P.10:-Email report

Ext.D.1:- Certificate from Sree Gokulam Medical College , TVM dated 26/11/13

Ext.D.2:- Discharge summary from Sree Gokulam Medical College

Ext.D.3:- Copy of claim form

Ext.X1:-In patient records from Sree Gokulam Medical College , TVM