IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Dated this the 28th day of February, 2023
Present: Sri.Manulal.V.S, President
Smt.Bindhu.R, Member
Sri.K.M. Anto, Member
CC No. 121/2020 (Filed on 26/08/2020)
Complainant : Viswanathan K.N
Kadalikattumaliyil House
Kumarakom P.O, Kottayam
(By Adv.Avaneesh V.N)
Vs
Opposite parties : 1. Bajaj Allianz General Insurance Company,
rep by Manager, YMCA Road, Kottayam-1
(By Adv.Sreenath D)
2. Canara Bank, rep by Branch Manager
Velloor Branch, Velloor P.O
Kottayam.
(By Adv. A.J.Dominic)
O R D E R
Sri.Manulal.V.S, President
The complaint is filed under section 35 of the Consumer Protection Act 2019.
Crux of the complaint is as follows: The complainant who is a senior citizen having S.B account with the second opposite party and at the time of taking the account, it was told that they will provide group hospital cash policy with the first opposite party. The executive of the first opposite party contacted K.V. Premjimon who is the son of the complainant and sent the conditions through whats app. Accordingly the complainant has chosen the plan Group Hospital Cash of Canara bank and remitted premium amount of Rs.12,889/- through the second opposite party. First opposite party issued policy vide no. OG-20-1606-6405-00000712 for the period from 31-08-2019 to 30-08-2020. The first opposite party intimated that as per policy conditions, the complainant is entitled for the policy amount for a total sum of Rs.3,00,000/-. Thus the petitioner is entitled for Rs.10,000/- each for each day of hospitalization, irrespective of the hospital bill and other expenses. According to the policy conditions after hospitalization the complainant should submit the claim of Rs.10,000/- each for each day of hospitalization directly or through mobile app.
The complainant was admitted in Medical Centre Hospital, twice and submitted the claim for Rs. 30,000 and 40,000 respectively. Those claims were allowed by the first opposite party. Again on 26-5-20 complainant was admitted in the General Surgery Department of Medical Centre Hospital and diagnosed with Cellulites (LT) foot and leg Abscess (L) Sole/below 2nd toe, Wt Gangrene (L) 2nd Toe, DM Type 2/HTN/Hypothyroidism. Subsequently he was treated there and discharged on 10-06-2020. Though the son of the complainant lodged a claim for Rs.1,50,000/- there was no timely response from the first opposite party.
On 11-08-2020 when the son of the complainant directly approached the first opposite party it was informed that the claim was repudiated. The claim was repudiated stating the reason that complainant is a K/C/O diabetes mellitus since 34 years. Hypertension since 32 years, hypothyroidism since 8 years, chronic kidney disease since 2 years which is a pre existing disease and has not been disclosed in the proposal form. It is averred in the complaint that the complainant is not a chronic kidney disease patient. The complainant disclosed about the pre exiting disease such as diabetics, hypertension and hyperthyroidism at the time of taking the policy. According to the complainant the first opposite party purposefully repudiated the claim of the complainant. It is averred in the complaint that being the agent of the first opposite party, the second opposite party is also liable for the repudiation. The act of the opposite parties amounts to deficiency in service and unfair trade practice and the complainant suffered so much mental agony and pain due to the deficiency in service and unfair trade practice of the opposite parties. Hence this complaint is filed by the complainant praying for an order to direct the first opposite party to pay an amount of Rs.1,50,000/- with interest and to direct the opposite parties to pay Rs.20,000/- and Rs.7,000/- as cost of litigation.
Upon notice the opposite parties filed separate version.
Version of the first opposite party is as follows: At the time of taking the policy the executive has explained all the terms and conditions of the policy and also said to the complainant that he should disclose the pre existing disease in the proposal form. On 26-05-2020 the complainant got admitted in the general surgery department of medical centre hospital. On verification of claim documents reveals that the complainant was hospitalized for the treatment of Cellulites (LT) foot and leg Abscess (L) Sole/below 2nd toe, Wt Gangrene (L) 2nd Toe , DM Type 2 /HTN/ Hypothyroidism. The policy incepts on 31-01-2019, the complainant is a K/C/O diabetics mellitus since 34 years. Hypertension since 32 years , hypothyroidism since 8 years, chronic Kidney disease since 2 years which is a pre- existing disease and has not been disclosed in the proposal form. So the claim is repudiated as the policy does not extend for any illness which is pre-existing to the policy and is not disclosed on the proposal form.
As per the policy terms and conditions the first opposite party will not be liable to make any payment for any claim for daily allowance to any pre existing condition, ailment or injury in respect of insured until 48 months of continuous coverage has elapsed after the date of inception of cover. There is no deficiency in service or unfair trade practice on the part of the first opposite party.
Version of the second opposite party is as follows:
Complainant has been maintaining SB account with Veloor branch of Canara Bank the second opposite party. The second opposite party did not make any undertaking for providing the complainant Group hospital Cash Policy with the first opposite party. The complainant took the policy under the scheme of health insurance promulgated by the first opposite party on his own accord, on the basis of offer and presentation made by the first opposite party. The second opposite party does not have any responsibility or liability with respect to the group hospital policy taken by the complainant from the first opposite party. First opposite party promulgated and promoted as part of its businesses a scheme of health insurance for the customers of second opposite party under name and style Group hospital cash for Canara bank with the consent of Canara Bank. As the said scheme was for the benefit of the customers of the bank, the second opposite party gave consent to the scheme. Canara bank is not an agent of the first opposite party with respect to the said health insurance. The money transactions between the insurer and the insured have been routed through the accounts of the said parties in the branches of Canara Bank and it is in accordance with the rules of banking business. The second opposite party does not have any knowledge and information with respect to the terms and condition under the policy and claim of the complainant as insured. The settlement of the claim of the insured was the responsibility and liability of the first opposite party and the second opposite party was not in any way connected to it. There is no deficiency in service or unfair trade practice on the part of the second opposite party.
Complainant filed proof affidavit and Ext.A1 to A5 documents were marked. Reshma A who is the Senior Executive, Legal of the first opposite first party filed proof affidavit and marked Exhibit B1 to B3. Bibin raj who is the manager of the second opposite party filed proof affidavit in lieu of chief examination. No documentary evidence from the side of the second opposite party.
On considering the complaint, version, documents and evidences, the commission raised the following points for consideration:-
- Whether there is any deficiency of service or unfair trade practice from the part of opposite parties?
- Relief and Cost.
Point number 1 and 2.
There is no dispute on the fact that the complainant had availed plan Group Hospital Cash Policy from the first opposite party vide policy no. OG-20-1606-6405-00000712 for the period from 31-08-2019 to 30-08-2020. Exhibit A1 is the policy schedule. On perusal of Exhibit A1 policy we can see that the first opposite party assured the complainant a daily allowance upto to Rs.10,000/- for a maximum period of 30 days. It is also admitted by the first opposite party that on 26-05-2020 the complainant got admitted in the general surgery department of medical centre hospital, for the treatment of Cellulites (LT) foot and leg Abscess(L)Sole/below 2nd toe, Wt Gangrene (L) 2nd Toe, DM Type 2 /HTN/Hypothyroidism. It is proved by exhibit A3 that treatment undergone by the complainant is I & D, Distraction (L) 2nd Toe and secondary suturing. The complainant was discharged from the hospital on 26-05-2020. Exhibit A4 proves that the complainant had spent Rs.45,000/- towards the hospital expenses. The claim of the complainant was repudiated by the opposite party stating the reason that the ailment which the complainant had was a preexisting disease and the complainant was a chronic kidney patient since 2 years. First opposite party relied on clause 4 of the B1 policy wordings. Clause 4 of B1 is reproduced hereunder. “In consideration of payment of additional premium by the proposer/insured person, to the company and realization thereof by the company, it is hereby agreed and declared that group hospital cash policy is extended to reduce waiting period mentioned in section C1.(1), and (2) ie pre-existing and disease specific waiting period up to the option opted by the insured beneficiary”. Special conditions applicable to pre-existing disease in Exhibit B1 is reproduced hereunder.
“Special conditions applicable to Pre-Existing Disease and Specific Disease waiting period Cover:
- When Pre-Existing Disease and Specific Disease waiting period Cover is opted for in the Certificate of Insurance, Exclusion, <> shall be reduced by the number of years as per the option opted. AND
- The waiting periods specified in the Section << Section C I. Waiting Period Sub clause 2>> shall be reduced by the number of years as per the option opted.
Options available to Waiver of Pre-Existing and Disease Specific Waiting Period:
1. Option 1: No waiting period
2. Option 2: waiting period of 12 months
3. Option 3: waiting period of 24 months
4. Option 4: waiting period of 36 months”
According to the opposite party the complainant has not opted for any option under policy to reduce waiting period with respect to the per-existing diseases.
It is evident from Exhibit A3 that the complainant had a past history of DM /HTN/DLP/Hypothyroidism.
The Hon'ble National Commission while dealing with a similar set of facts, in Sunil Kumar Sharma Vs. TATA AIG Life Insurance Company and Ors. bearing case no. RP no. 3557/2013 decided on 01.03.2021 held as under:-
Moreover the claim had been repudiated only on the ground that the insured was suffering from diabetes for a long time. So far as life style diseases like diabetes and high blood pressure are concerned, Hon'ble High Court of Delhi in Hari Om Agarwal Vs. Oriental Insurance Co. Ltd., W.P.(C) No. 656 of 2007, decided on 17.09.2007 held as under: "Insurance-Mediclaim-Reimbursement-Present Petition filed for appropriate directions to respondent to reimburse expenses incurred by him for his medical treatment, in accordance with policy of insurance-held, there is no dispute that diabetes was a condition at time of submission of proposal, so was hypertension.
Petitioner was advised to undergo ECG, which he did-insurer accepted proposal and issued cover note. It is universally known that hypertension and diabetes can lead to a host of ailments, such as stroke, cardiac disease, renal failure, liver complications depending upon varied factors-That implies that there is probability of such ailments, equally they can arise in non-diabetics or those without hypertension-It would be apparent that giving a textual effect to Clause 4.1 of policy would in most such cases render mediclaim cover meaningless. Policy would be reduced to a contract with no content, in the event of happening of contingency. Therefore Clause 4.1 of policy cannot be allowed to override insurer's primary liability. Main purpose rule would have to be pressed into service. Insurer renewed policy after petitioner underwent CABG procedure.
Therefore refusal by insurer to process and reimburse petitioner's claim is arbitrary and unreasonable. As a state agency, it has to set standards of model behaviour; its attitude here has displayed a contrary tendency. Therefore direction issued to respondent to process petitioner's claim, and ensure that he is reimbursed for procedure undergone by him according to claim lodged with it, within six weeks and petition allowed."
Though the first opposite party contended that the complainant is a known case of diabetes mellitus since 34 years. Hypertension since 32 years, hypothyroidism since 8 years, and chronic Kidney disease since 2 years which is a pre- existing disease they did not produce any previous medical history of the complainant to prove their case. The onus of proving the fact that the insured had prior knowledge that he was suffering from fatal diseases and as such he deliberately suppressed these material facts at the time of filling up of the proposal form was on the insurance company.
Further, it was noted that, there was no evidence on record to show that the insured had knowledge that he was suffering from fatal diseases prior to taking the policy and there was inadequate evidence to support that he had deliberately suppressed his medical condition.
In the light of above discussed evidence we are of the opinion that the first opposite party had committed deficiency in service by repudiating the claim of the complainant. No doubt the act of the first opposite party caused much mental agony had hardship to the complainant. As discussed earlier first opposite party undertook that they would pay a daily allowance upto to Rs.10,000/- for a maximum period of 30 days to the complainant in case of hospitalization. As discussed earlier it is proved by Exhibit A3 that the complainant was admitted in the hospital for 15 days for the treatment from 26-05-2020 to 10-06-2020. Thus the first opposite party is bound to pay Rs.1,50,000/- to the complainant. In these circumstances we allow the complaint against the first opposite party and pass the following order.
We hereby direct the first opposite party to pay Rs.1,50,000/- to the complainant along with 9% interest from 26-08-2020 ie the date on which the complaint is filed till realization.
We hereby direct the first opposite party to pay Rs.20,000/- as compensation to the complainant for the deficiency in service on the part of the first opposite party .
We hereby direct the first opposite party to pay Rs.3,000/- as cost of this litigation to the complainant.
Order shall be complied within 30 days from the date of receipt of the copy of this order, failing which the compensation amount will carry 9% interest till the date of realization.
Pronounced in the Open Commission on this the 28th day of February, 2023.
Sri.Manulal.V.S, President sd/-
Smt.Bindhu.R, Member sd/-
Sri. K.M. Anto, Member sd/-
Appendix
Exhibits marked from the side of complainant.
A1- Copy of group hospital cash policy schedule.
A2- Copy of repudiation letter dated 11.08.2020.
A3- Copy of general surgery discharge summary dated 10.06.2020 of S.H Medical Centre, Nagampadom.
A4- Copy of discharge bill dated 10.06.2020 of S.H Medical Centre Nagampadom, Kottayam.
A5- Copy of the Group Hospital Cash Policy (for Canara Bank customers) of Bajaj Allianz.
Exhibits marked from the side of opposite party
B1- Copy of group hospital cash policy schedule of Bajaj Allianz General Insurance Company Limited.
B2- Copy of Group Hospital Cash policy proposal form of Bajaj Allianz General Insurance Company Limited.
B3- Copy of repudiation letter dated 11.08.2020.
By order
sd/-
Assistant Registrar
