Order-18.
Date-25/08/2015.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that in the last week of May, 2013 complainant intended to purchase a mediclaim policy through OP2 and prior to acceptance of that policy OP conducted a thorough health check up of the complainant through their empanelled doctor, namely Dr. Partha Pratim Roy, and for such testing OPs charged Rs.1,130/- and in terms of authorization letter issued by the OPs the concerned doctor conducted a total health check up of the complainant including FMR, ECG, Cholesterol and other vital tests for ascertaining the present health status of the complainant and in the report submitted by doctor along with various test reports, the doctor submitted that the complainant was a diabetic taking tablets for 1st two years and he wears spectacles having power and after being satisfied with the existing health condition of the complainant, OP accepted the policy proposal and accordingly issued a policy on 11-06-2013 for one year commencing from 06-06-2013 to 05-06-2013(midnight) having Policy No.OC-14-2401-8408-00000088 having scrutiny no.26331229, the policy cover was for Rs.3 lakh and the complainant paid a premium of Rs.21,006/- which added with service tax and surcharge amounted to Rs.23,603/-. Policy document depicted an exclusion clause for any disease, disability and treatment attributable to diabetes and/or any other ailment existing on or before the commencing of policy. It has been also stated that the caption ‘Special Condition’ appearing in the policy bond that from 2nd year onwards the maximum liability of the above mentioned ailments and its complication/disorder would be 50 percent of the indemnity per policy period. It is further stated in Clause C-1, that the OPs would not pay for claim arising out of or connected with any pre-existing ailment and/or complication until 12 consecutive months have elapsed after the date of inception of the first policy and that this exclusion shall cease to apply if this policy is renewed without break, for a continuous period of one year and shall also not apply on subsequent renewals.
The said Silver Health Senior Citizen Mediclaim Policy was further renewed from 06-06-2014 to 05-06-2015 and renewed policy was issued having being No.OG-14-2401-8408-00000048 and renewal also made on the same terms and condition.
On 21-06-2014 complainant suffered severe headache and vertigo and was subsequently admitted into Belle Vue Clinic on 30-06-2014 where he was diagnosed with heart block by the treating doctor Dr. S.K. Biswas, pursuant, whereof, a pacemaker was implanted and the treatment cost was Rs.2,90,815/-0 including cost of pacemaker of Rs.2,02,662/- and the complainant was discharged on 03-07-2014 from the said Clinic and the entire payment was paid by the complainant. after that complainant submitted his claim under the Mediclaim Policy with the OP on 01-08-2014 and furnished the duly filled up claim form, discharge certificate, relevant prescriptions, bills etc and the claim for was also endorsed by the Belle Vue Clinic and OP were asked to settle the claim. Complainant stated further that he admitted in the BM Birla Heart Research Care for heart ailment on 02-05-2013 and discharged from there on 04-05-2013, however, since at that time one year had not elapsed since the commencement of mediclaim policy, the complainant had not lodged any claim at that time and bore the entire expenses himself.
Claim of the complainant was assigned claim no.OC-15-1002-8408-000000402, however, on 07-08-2014 OP asked the complainant to furnish medical certificate form treating doctor mentioning the duration of CA Bladder with previous consultation papers for the same. Accordingly, complainant supplied the original certificate regarding treatment of CA Bladder given by Dr. B.K. Kundu dated 08-08-2014 along with Xerox copy of prescriptions and report but complainant did not receive the claim amount regarding settlement of the claim, a reminder dated 05-09-2014 was also sent to the OP and on or about 07-09-2014 complainant received a letter of repudiation dated 02-09-2014 from the OP12 wherein OP repudiated the claim by observing that verification of the claim document reveals that the claimant who was hospitalized for treatment of heart block is a patient of post PTCA status, Diabetes Mellitus, Chronic Kidney Disease, Carcinoma Bladder and Hypertension. The claimant is known to be suffering from hypertension and chronic kidney disease for last 3 years, CA Bladder since May, 2010 which is pre-existing to the policy and has not been disclosed on the proposal form. The claim stands repudiate as the policy does not extend coverage for any expenses incurred on treatment of illness which is pre-existing to the policy.
But complainant has alleged that he has duly disclosed the ailment of diabetes from which he is suffering from and it was known to him at the time of applying for the mediclaim policy and apart from that he was not suffering from any other ailment, nor was it appearing in the health check up conducted by the OP’s doctor and OP’s doctor failed to trace any kidney problem or carcinoma bladder and/or hypertension.
Complainant is a non-medical person and it is totally unexpected that the complainant would know by himself any existence of any other disease himself, even the doctor of the OPs, who had conducted a thorough health check up of the complainant could not find and did not report existence of the hypertension or kidney problem.
Complainant no doubt lodged the claim against the OPs pertains to heart problem which is communicated with the heart block even at the time of conducting ECG and other tests, OP’s doctor did not find anything wrong with the complainant’s heart so the repudiation as made by the OP is arbitrary even as per policy condition they could not repudiated the claim but even then they arbitrarily repudiate the claim for which for negligent and deficient manner of service and as per terms and condition of the policy complainant is prayed for a relief and redressal.
On the other hand, OPs1 and 2 by filing written statement has submitted that no doubt complainant purchased the policy. This is a special type of policy designated only for the senior citizens and under such policy only those diseases/ailments which are not pre-existing at the time of issuance of such policy is covered and for such disclosure and/or detection of pre-existing disease, a proposal form is always obtained from the concerned proposer being duly signed and filled up by the concerned proposer. Here in the instant case too, one proposal form was obtained from the complainant in which he stated about his health condition at that point of time and also answered different queries as per his own sweet will. On the basis of such proposal form and relying upon the principle of uberrima fide, the OPs issued the concerned policy of insurance in favour of the complainant and further mentioned that in the said proposal form is the basis of the present insurance contract between the complainant and the OPs, the complainant did not disclose about existence of his different disease and/or ailments including existence about diabetes mellitus and hypertension etc. In the present case complainant submitted that he has admitted to B.M. Birla Heart Research Centre for the relevant period in respect of expenses incurred for which the concerned claim was lodged. But from the discharge certificate it is found that the case of the complainant is a known case of CAD with LVSDF and he went there for PTCA and from the past medical history part it is also revealed that the complainant had history of Diabetes Mellitus for 30 years, Hypertension, CKD for 3 years, History of CA Bladder. In spite of such knowledge of the diseases of the complainant, complainant did not disclose the same in the proposal form and as such relying upon the disclosure to Information Norm of terms and conditions of the policy the claim was bonafidely repudiated by the OP. There is absolutely no deficiency on the part of the OP and such complainant is not entitled to get any relief as prayed for.
Anyhow, complainant has tried to make different case that prior to issuance of the policy OP conducted the medical check up through their empanelled doctor and only after being satisfied concerned policy was issued but firstly the medical check-up cannot reveal all the pre-existing disease and the complainant was also under solemn obligation to disclose to all his pre-existing diseases but that was not at all disclosed in the column of the form. So, for non-disclosure of the vital pre-existing disease automatically the insurance policy has become a void by the OPs, as such the case is not entertainable and liable to be dismissed.
Decision with Reasons
On hearing the complainant himself and Ld. Lawyer for the OP and further considering the copy of policy Silver Health, Individual Health Insurance for Senior Citizen it is clear that complainant purchased the said policy being No.OG-14-2401-8408-00000088 at the age of 69 and the said policy was valid from 06-06-2013 to 05-06-2014 which was issued on 11-06-2013 in the name of the present complainant along with conditions attached with that which has been filed by the complainant himself and as per said policy condition with certain Exclusion Clause such as “This Policy excludes for Prabhat Saraf, any claim in respect of any disorder, injury and disease, disability or treatment whether directly or indirectly caused by or attributable to diabetes, all local and systematic complications related to diabetes including but not limited. To infections, metabolic, vascular etc., its complications and related ailments, any other ailment existing on or before the commencement date of the policy from second year onwards the maximum liability for the above mentioned ailment its complications/disorders would be 50 percent of Limit of Indemnity per policy period. In the case of break in the renewal the break in clause would be still applicable”.
Considering the clause attached with the certificate-cum-policy schedule issued in favour of the complainant it is found that Exclusion Clause in respect of this complainant Prabhat Saraf is applicable for the policy period from 06-06-2013 to 05-06-2014.
In the present case complainant filed this compliant on the ground that complainant claimed that complainant suffered headache, suffered vertigo on 21-06-2014 and was admitted to Belle Vue Clinic on 30-06-2014 where he was diagnosed with heart block by the treating doctor, Dr. S.K. Biswas, and a pacemaker was implanted and treatment cost was Rs.2,90,815/- which includes cost of the pacemaker a sum of Rs.2,02,662/- and complainant was discharged on 03-07-2014 from the said Belle Vue Clinic and the entire payment was paid by the complainant from his own pocket and thereafter, the complainant submitted the claim under mediclaim policy to the OP on 08-01-2014 by filling proper claim form along with documents related to treatment, discharge, relevant prescription issued by the Belle Vue Clinic along with details of bill. Thereafter on 07-08-2014 OP2 asked the complainant to furnish the medical certificate from treating doctor mentioning the duration of CA bladder with previous consultation papers for the same and complainant supplied the original certificate regarding treatment of CA Bladder given by Dr. B.K. Kundu on 08-08-2014 along with all papers. But even after that complainant did not receive the claim amount or any communication regarding settlement of claim when complainant reminded the OP by a letter dated 05-02-2014 against that complainant received a letter of repudiation on 02-09-2014 from OP1 where OP repudiated the complainant’s claim by observing that verification of the claim reveals that complainant who was hospitalized for the treatment of heart block is a patient of PTCA status, diabetes mellitus, chronic kidney disease, carcinoma bladder and hypertension and complainant has been suffering from hypertension and chronic disease for last 3 years, CA bladder since May, 2010 which is pre-existing to the policy and not disclosed on the proposal form. So, the complainant’s claim was repudiated. Against that repudiation complainant’s version is that he is not a medical person and it is totally unexpected that he would know by himself, any existence of any other disease of himself and even the doctor of the OPs who had conducted a thorough health check up of the complainant could not find any disease or did not report any existence of hypertension or kidney problem but when complainant became ill and suffered from headache and vertigo he was admitted to Belle Vue Clinic on 30-06-2014 when after conducting ECG etc. doctor had found something wrong with the complainant’s heart. Pacemaker was highly required because the doctor diagnosed that his heart was blocked. So, it cannot be a pre-existing disease.
Further complainant himself submitted that even at the time of health check up by the OP’s doctor ECG was done and doctor did not find anything wrong with the complainant’s heart. So, the repudiation of the claim of the OP is arbitrary, illegal and mala fide.
On the contrary, OP’s Ld. Lawyer submitted it is a special type of policy designed only for the Senior Citizen and under such policy only those diseases or ailments which are not pre-existing at the time of issuance of such policy is covered and for the purpose of this policy a proposal form is always obtained from the proposer being duly signed and filed by the concerned proposer and this proposal form is the basis of the present insurance contract between the parties and in fact complainant did not disclose about his existence of different diseases, ailment, treatment including his diabetes mellitus, hypertension etc. Further from the discharge certificate it is clear that the complainant was a known case of CAD with LVSDF and he went there for PTCA and past medical history of the complainant is diabetes mellitus for 30 years, hypertension, CKD-3 Years, history of CA Bladder and on perusal of the documents it is clear that complainant suppressed all the pre-existing disease at the time of filing the proposal form and the question and answers as made in the said form and for non-disclosure of the pre-existing disease by the complainant, complainant has violated the terms and condition of the policy. So, for non-disclosure of the pre-existing disease complainant is not entitled to any claim for which it was repudiated. On proper assessment of the materials particularly the policy it is clear that the complainant submitted himself being a Lawyer, the application form including the queries, personal history and complainant noted down its answer always negative and particularly against systematic information complainant answered always negative. But he admitted that he has been suffering from diabetes for preceding 2 years prior to filing of the application for purchasing the policy and he was under medication which is noted by complainant himself and that application was filed on 31-05-2013 and he always stated that he has never from any respiratory trouble or nervous system or urinary problem but in respect of diabetes matter he disclosed that he has been suffering from diabetes for preceding two years. So, admitted fact is that the complainant at the time of purchasing the policy was suffering from diabetes and he was under medication but did not disclose other matters. On the other hand, he stated that his health condition was very good. No doubt doctor signed against such declaration made by the complainant and fact remains general health check up was done.
Peculiar factor is that as per general clause applicable to the present complainant as evident from the policy it is found that complainant Prabhat Saraf is excluded from claim in respect of diabetes and diabetes related disease.
In this regard no doubt complainant is not entitled to claim any compensation in respect of any diabetes related complications. Before entering into that we have found from the discharge summary issued by B.M. Birla Heart Research Institute dated 04-05-2013 and from that discharge summary it is found that this complainant was admitted to B.M. Birla Heart Research Institute on 02-05-2013 and was discharged on 04-05-2013 and from that report it is clear that he was suffering from diabetes mellitus for 30 years, hypertension and CKD for 3 years and there is history of CA bladder and he was a known case of CAD with LVSDF and went there for PTCA and from that report of discharge summary it is clear that PTCA was done on distal LCX on 02-05-2013 and on diagnosis there was coronary artery disease, diabetes mellitus, hypertension, CKD and CA Bladder old. Further from that report it is clear that complainant was advised to consult with Nephrologist to see the angioplasty for discharge medication and was advised to continue medications and that discharge report of B.M. Birla Heart Research Institute was of date 04-05-2013 that means on 04-05-2013 he was discharged and prior to that on 02-05-2013 PTCA done on distal LCX.
To clear the abbreviation of PTCA we have consulted the medical dictionary and we have found that PTCA means Percutaneous Transluminal Coronary Angioplasty is a minimal invasive procedure to open up blocked coronary arteries allowing blood to circulate unobstructed to the heart disease and CAD means the coronary artery disease and CKD means Coronary Kidney Disease also known as Coronary Renal Disease which is progressive loss of renal function over a period of months and years and it causes damage of kidney function and some other problem and it causes due to blood pressure and diabetes. So, we are confirmed that complainant was wel-known about the fact that he was admitted to B.M. Birla Heart Research Institute on 02-05-2013 and was discharged on 04-05-2013 and at that time several diseases were found which were pre-existing that is high blood pressure, diabetes, coronary artery disease, CA bladder (old), CKD etc. for which PTCA was done on distal LCX and it was within the note on the date of getting discharge summary that is on 14-05-2013 but most surprising factor is that this complainant as a Lawyer at the time of filing the personal history against question put by the doctor answered in such a manner stating that he was not suffering from anything except blood sugar preceding for 2 years and he was under medication and that application was filed on 31-05-2013 and complainant signed it as insured but already it is proved that on 02-05-2013 PTCS was already done on distal LCX and he was suffering from diabetes mellitus for 30 years, hypertension, CKD for 3 years, and history of CA Bladder is also found. So, it was within his knowledge that he was suffering from various pre-existing disease for which PTCA was done on LCX. It is within the knowledge but when doctor of the OP put questions he answered always in negative only in one case he expressed that he is under medication because he has been suffering from diabetes for two years whereas the B.M. Birla Heart Research Institute discharge summary confirmed that he is a known case of CAD with LVSDC and went to the hospital for PTCA that means he had been suffering from different types of heart ailment that is related to cardio vascular and circulatory system when that question was put he answered in negative but truth is that this complainant being an Advocate after taking such treatment and PTCA was done on distal LCX on 02-05-2013 at B.M. Birla Heart Research Institute had been disclosed that that was done. It was also proved that he has been suffering from blood sugar for 30 years and also he was suffering from CKD for 3 years, hypertension for 3 years that that was confirmed by the B.M. Birla Heart Research Institute on several clinical examination, diagnosis etc. and that was confirmed on 04-05-2013 and that paper was within the custody of the complainant, complainant did not submit it before the doctor of the OP invariably complainant was aware of the fact that further operation is required in future as he was under medication after such PTCA was done on distal LCX so, on 31-05-2013 that is after 26 days complainant prayed for purchasing this policy and gave such details about such health condition. Invariably as a Lawyer complainant ought to have disclose the truth before the doctor for the OP but that was not disclosed. For the sake of the argument it is found that after such operation he became satisfied that he is OK for which he stated so, but in that case it was the duty of the complainant to submit such medical report to verify by the doctor of the OP but that scope was not given with a hope that if further operation is required he will further claim when OP’s doctor signed in the form. So, considering all the materials it is clear that complainant had his pre-existing disease that is blood sugar for 30 years, blood pressure for 3 years, CKD, old CA Bladder and from the complainant’s own document it is also proved that PTCA was done on LCX just prior to opening this policy then it is clear that he had his several pre-existing diseases and practically B.M. Birla Heart Research Institute has confirmed that he is a known case of CAD with LVSDF and went to the said research centre for PTCA. Now, the question is whether complainant shall have to get any protection only for the signature of the doctor in the said application form, in this regard, already Supreme Court has observed that it is a contract in between the parties insured and insurer particularly this policy is a policy for Senior Citizen and in the Exclusion Clause particularly the name of the complainant is noted against the Exclusion Clause where it is found that particularly he shall not get any claim in respect of any pre-existing disease related to hypertension or blood sugar or for any respiratory trouble related to blood etc. that is specifically mentioned and language is already noted in the early paras that THIS POLICY EXCLUDES FOR PRABHAT SARAF and as because he has stated that he has been suffering from blood sugar on medication he was excluded from claiming any claim related to any disease caused due to diabetes etc. Similarly, he is also excluded from getting any claim in respect of any disease, disparity or treatment directly or indirectly caused by or attributed to diabetes or any vascular treatment obligation related to ailment. So, as per policy condition complainant is not entitled to get any relief but the complainant’s claim is that it is not possible for a person to predict at the time of filing any application for purchasing any policy actually from what type of disease he had been suffering but in the present case that question does not arise. The fellow complainant was admitted to B.M. Birla Heart Research Institute with all diseases that was diagnosed that was detected. Thereafter, PTCA with LCX was done or it was not done etc. on complainant’s body which was within his knowledge on 04-05-2013 but on 31-05-2013 when complainant filled up the application form there was questions and that was put by the OP’s doctor but all the answers were given in negative in respect of these then it is clear that complainant as a Lawyer gave false answers against the queries made by the doctor that is the position of the insured then question is whether this complainant shall have to get any benefit in this regard. Supreme Court has already observed a mediclaim policy is a non-life insurance policy meant to assure the policy holder in respect of certain expenses pertaining to hospitalization etc. Nonetheless it is a contract of insurance falling in the category of the assured. thus, it needs little emphasis that when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. But if we consider the findings and decision of the Hon’ble Supreme Court we are convinced that it is the obligation of the insured to give proper answer against the queries as made in the application if it is put by the doctor also but that has not been done in this case. So, there is no hesitation to come to a conclusion that the statement made by the insured in the proposal form as to the state of affairs of his health is palpably false, untrue though it is within the knowledge of complainant along with documents and this is a clear suppression of material fact in regard to the health of the insured and therefore OP insurer was legally justifed in repudiating the claim on the ground of Exclusion Clause as noted in the said policy is applicable in respect of the complainant because complainant name is also noted against Exclusion Clause when truth is that complainant is a known patient of hypertension, blood sugar, CA Bladder, CAD also suffered from different type of vascular diseases, PTCA was done prior to filing of this policy. So, in view of the suppression of the material facts the insurance company was justified to repudiate the claim of the appellant.
Moreover, considering the judgment of the Hon’ble Supreme Court reported in (2009) 3 WBLR (SC) 577 we have no hesitation to hold that the statement made in the proposal form as to the state of health was false with his full knowledge and there was clear suppression. So, invariably for justified ground it was rightly repudiated. Another factor is that he expressed before the doctor one item about his health that he suffered from diabetes for preceding two years and he admitted that he was under medication but what is the necessity to suppress the fact when he was admittedly a critical diabetic patient for last 30 years, PTCA has been done just prior to opening this policy. He is a known case of CKD and CA bladder and also hypertension then it is clear that in earlier occasion when he was admitted for PTCA operation he did not get benefit and he was well aware of the fact that in future further operation was required because the discharge summary issued by the B.M. Birla Heart Research Centre simply proves that further operation required for which he was under medication that means he was taking such policy suppressing his ailment. So, such an insured shall not get any benefit from any Forum or any judicial authority because complainant as a Lawyer did all the affairs purposely made false disclose in the proposal form.
In view of the above findings we are of the view that there is no infirmity or illegality in repudiating the claim of the complainant when the complainant intentionally only for the purpose of getting the benefit of mediclaim in future suppressed the material fact with regard to his pre-existing disease at the time of taking the policy.
Accordingly, for filing such a false complaint before this Forum complainant has no doubt harass the OP and this complainant is not a general public having no knowledge but present complainant is a practitioner Lawyer who must have to teach other to tell truth but in lieu of that the preceptor of legal system has adopted unfair practice, concealed the truth knowing fully well about his pre-existing disease along with all documents in his custody.
Thus, this complaint fails.
Hence,
Ordered
That the case be and the same is dismissed on contest with a penal cost on the ground that this complaint is filed not by general public but a legal practitioner who suppressed the truth before this Forum for which he shall pay penal cost Rs.10,000/- which shall be deposited to this Forum failing which 9 percent per month penal interest shall be charged till full satisfaction of the decree and if it is not paid penal action shall be started against the complainant.
