BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 13^TH DAY OF JANUARY 2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. To pay the expenditure incurred by the complainant of Rs.3,49,527/- along with interest @ 18% p.a.,
2. To pay compensation of towards mental trauma and agony of Rs.5,00,000/-.
3. Pass such other direction that this Hon’ble Commission deems fit to grant in the interest of justice and equity.

2. The case set up by the complainant in brief is as under:-

The complainants have purchased mediclaim policy No.OG-17-1000-6021-00023104 for their mother Smt.Yashodhamma with a coverage for cashless Rs.5,00,000/- extendable with a top up of an extra Rs.5,00,000/- subject to payment of premium Rs.4,862/- and it was issued on 24.02.2017 and which was valid for a year from 24.02.2017 to 23.02.2018.  The said policy was issued only after completing all telephonic verification formalities.  

3.       The mother of the complainant complained of abdominal pain and she was hospitalized at Acharya Tulasi Jain Hospital, Yeshwanthpur, Bangalore, since the hospital was not under the network of the OP insurance in the list of hospitals and it did not have higher medical facilities.  It was suggested shift the mother of the complainant to Columbia Asia Referral Hospital, Yeshwanthapur. After advance test and citi scan at Columbia Asia Hospital it was suspected that the complainant mother had cancer(Malignate) tumer in the pancreas.  Therefore a USG guided biopsy was conducted on 13.10.2017.  Since the hospital was covered under the insurance of the OP company all documents relating to health and also aadhar card were submitted to the hospital for cashless claim. The complainant has also provided all the information and documents sought for. The hospital raised a bill of  Rs.90,518/- which was reimbursed by the OP.

4.       The biopsy report confirmed careinoma of the pancreas and metastasis of liver.  Nine cycles of chemotherapy was suggested with each cycle consisting of three sittings and immediately the first session was started on 18.10.2017.  In the mean time the OP has raised query on a certain minor surgery on the right shoulder of the patient and the complainant had clarified to the company that it was a minor surgery benigh “Recurrent Lipoma” on the right shoulder conducted on 30.12.2010. The OP has denied the cashless facility stating the general denial clause 3 of the policy. Therefore the complainant had to pay for the medical charges and get his mother discharged on 21.10.2017.

5.       Subsequently the mother of the complainant was again admitted on 24.10.2017, 01.11.2017, 07.11.2017, 14.11.2017, 21.11.2017, 28.11.2017 and 05.12.2017 for chemotherapy and general checkups.  None of the claims were given by the OP for the above sessions and therefore the complainant had to made payments and seek reimbursement for the above admissions.

6.       In the mean time the OP themselves had agreed and renewed the policy on 04.12.2017 for the period 24.02.2018 to 23.02.2019 much before its expiry on the 23.02.2018.

7.       The mother of the complainant again admitted on 14.12.2017, 19.12.2017, 26.12.2017, 02.01.2018, 09.01.2018, 06.01.2018, 24.01.2018, 27.01.2018, 02.02.2018, 06.02.2018, 13.02.2018, 15.02.2018, 17.02.2018, 23.02.2018, 01.03.2018 and 05.03.2018.  The OP have honored the cashless claims for the above treatments.

8.       Inspite of chemo therapy sessions, the cancer started spreading to the lungs leading to the complications.  The patient was again admitted 08.03.2018, 15.03.2018, 22.03.2018, 24.03.2018, 27.03.2018, 03.04.2018, 10.04.2018, 03.05.2018, 21.05.2018, 31.05.2018, 05.06.2018, 18.06.2018, 26.06.2018, 28.06.2018, 03.07.2018, 10.07.2018, 26.07.2018, 06.08.2018, 08.08.2018 and 13.08.2018 and she was given treatment for higher level chemotherapy.  However the mother of the complainant expired on 14.08.2018 in the hospital. The hospital authorities have raised the bill for the chemotherapy, treatment, medicine and other related charges of Rs.3,49,527/-, which was not reimbursed by the OP.  The OP instead of paying the amount has send a letter to the complainant stating that the policy had been cancelled for non disclosure while proposing for insurance/lodging fraudulent claim.

9.       Even though there was no violation of the terms and conditions of the insurance policy by the complainant the OP have come with a devious contention of non disclosure by the complainant.

10.     The complainant has also sent a legal notice 13.09.2019 and inspite of service, the OP has not sent any reply nor complied the request.  Hence the complainant has filed this complaint.  

11.     In response to the notice, OP appears and files version.

12.     OP has admitted about the policy issued by them and the sum assured and the validity period.  It is the case of the OP that after going through the medical records it was revealed that the insured undergone recurrent lipoma operation much earlier to the issuance of the policy and the same was not disclosed by the insured at the time of obtaining the policy.  As per the terms and conditions of clause 16 of the policy it is mandatory duty on the part of the insured to disclose all the material facts before obtaining the policy. The insured has given a false declaration in the policy proposal form and had committed breach of terms and conditions of the policy.  Hence this OP can cancel the policy under clause 9 (VII) of the terms and conditions of the policy for non disclosure of material facts.  This OP have not committed any deficiency of service in cancelling the policy.  They have acted as per the terms and conditions of the policy. Therefore the OP prays for dismissal of the complaint.

13.     The complainant No.1 has filed his affidavit evidence and relies on 07 documents.  Affidavit evidence of official of OP has been filed and OP relies on 02 documents.

14.     Heard the arguments of advocate for the complainant only.  No oral argument is advanced on behalf of OP.  Perused the written arguments filed by both the parties.

15.     The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

16.   Our answers to the above points are as under:

       Point No.1:  Affirmative

      Point No.2: Affirmative in part

      Point No.3: As per final orders

REASONS

17.    Point No.1 AND 2: Perused the complaint, version, evidence, written arguments and documents and citations of both the parties.

18.     The first complainant has filed his affidavit evidence, reiterated all the allegations made in the complaint and relied on seven documents. Ex.P1 is the policy document.  Ex.P2 is the Renewal policy, Ex.P3 is the invoice, Ex.P4 is the death certificate of the insured, Ex.P5 is the policy cancellation letter sent by the OP, Ex.P6 is the email correspondences and Ex.P7 is the legal notice issued to the OP.

19.     On the other hand, the OP company official has filed affidavit evidence and relied on two documents. Ex.B1 is the policy copy and Ex.B2 is the terms and conditions of the policy.  

20.     There is no dispute that the complainants have purchased policy and it was valid during the treatment period and the complainant have claimed the medi claim after the death of their mother the insured Rs.3,49,527/-.  

21.     It is clear from the medical records that the insured was suffering from pancreas careinoma and she died of the same on 14.08.2018 as per Ex.P2.

22.     The only dispute raised by the OP is that the complainant i.e., the insured has not disclosed the material information at the time of submitting the proposal.  The insured has suppressed the facts that she has underwent recurrent lipoma surgery which was conducted on 30.12.2010.  On this ground they have rejected the claim of the complainant’s insure.  

23.     It is also clear from evidence, affidavit and the reply submitted by the OP for the interrogatories raised by the complainant for the questions 1, 2, 3, 4 and 5that the insured has not signed the proposal form and the medi claim policy was issued online without conducting any medical examination to the diseased. The OP have not even raised any specific questions to the insured to disclose any surgery and if the insured had undergone any surgery within what period before issuing the policy.  The OP have also given their reply stating that they have not asked any questions to the insured as they have produced only online proposal form.  They have also clearly stated for the question No.5 in the interrogatories that as this is a medi claim policy against the loan and issued online, hence no medical telephonic interview done.

24.     It is clear from the above that no interview was done before issuing the policy and no questions have been asked to the insured Smt.Yashodhamma. Hence there is nondisclosure and suppression of facts by the insured do not arise.

25.     It is pertinent to note here that the cause of death of the insured is cancer. The OP have paid the claims pertaining to cancer already but policy was cancelled under non disclosure of material facts. i.e., lipoma recurrent right shoulder and underwent surgical excision under general anesthesia, admitted in Acharya Tulasi Jain Hospital, on 30. 12.2010 and discharged on 31.12.2010 under doctor Willium Joshi.

26.     It is clear from the medical records available on file and also Ex.P5 the death of the insured is not due to lipoma.  The doctor Nilesh Reddy has clearly opined that the lipoma in 2010 is benign and careinoma of pancreas in the year 2017 are not related. The OP have also not produced any documents or opinion of the doctor how the surgery related to lipoma connected with carcinoma of pancreas.  

The Hon’ble Supreme Court in CIVIL APPEAL NO.8245 of 2015 (Arising out of S.L.P.(C) No.13589 of 2015), Sulbha Prakash Motegaonkar vs Life Insurance Corporation of |India has held that(annexed herewith)

It is not the case of the Insurance Company that the ailment that the deceased was suffering from was a life threatening disease which could or did cause the death of the insured.  In fact, the clear case is that the deceased died due to ischemic heart disease and also because of myocardial infarction.  The concealment of lumbar spondilitis with PID with sciatica persuaded the respondent not to grant the insurance claim. “

27.     It is not the case of the OP that the ailment that the diseased was suffering from was a life threatening disease which could or did cause the death of the insured. It is a clear case that the diseased died due to carcinoma of pancreas.  Even if presuming there was concealment of multiple lipoma the concealment of the same could not have persuaded the OP not to grant the insurance claim. The OP have not at all disputed about the medical bills and medical reports relied on by the complainant. When the policy was in force and the complainant had paid the premium the OP has rejected the claim of the complainant only on the ground that the insured has suppressed the material facts even though it is not at all related to the carcinoma of pancreas suffered by the diseased. Hence the OP have committed deficiency of service and they have also caused mental agony and harassment to the complainant without paying the amount. Therefore the complainant is entitled for the relief claimed in this complaint and complaint is liable to be allowed in part.  Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.

28.    Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. The OP is directed to pay Rs.3,49,527/- with interest @ 10% p.a., from the date of repudiation of the claim i.e., 13.03.2018 till realization.
3. The complainant is entitled for compensation of Rs.1,00,000/-.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 12% p.a. after expiry of 60 days on Rs.3,49,527/- till final payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 13^TH day of JANUARY, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;