By Sri. MOHANDASAN.K, PRESIDENT
The case of complaint in short is as follows: -
1. The complainants are the husband and wife. The first complainant took policy for Mediclaim from the first opposite party and the said policy was renewed many times. The current policy number allotted to the complainant is P/181312/01/2018/005917. The representation of opposite party was that they will look after the medical expenses if any incurred during the pendency of policy. As per advice of the first opposite party Mediclaim policy was taken. The complainant was not having any ailments at the time of availing policy and continued renewal of the policy up to 4 years and during the period no claim was made.
2. The second complainant experienced difficulty in defecation, sudden discharge of urine and stress. She consulted Dr.Lisie Varghese, who is working in Malabar Hospital Pvt Ltd., Manjeri. Doctor detected bulky uterus in second complainant and she was advised to undergo surgery to remove uterus. The opposite parties had been promised cashless hospitalization and so the first opposite party and officials were contacted. The first opposite party stated that the company will reimburse the surgery expenses fully. So, the complainants borrowed amounts from dear and near and friends to do the surgery.
3. Second complainant admitted in Malabar Hospital Pvt. Ltd Manjeri on 12/12/2018 and Hysterectomy was done. She was discharged after 8 days with an advice of regular check-up. The surgically removed uterus was sent for testing and the report was normal. After the treatment, complainant contacted the first opposite party and submitted all details and bills of the treatment. The second complainant was not having any treatment earlier and she was never admitted for any treatment any way.
4. The complainant submitted the claim form, bills, clarification letter to reimbursement as directed by the opposite parties. The first opposite party informed the complainant that the amount will be sanctioned within one month but the opposite party denied the claim stating that the complainants not given the details of the cancer ailments to the stomach. The second complainant was not having any cancer ailments to stomach and she had not under gone any such treatment also. The information was a baseless one and so, the complainant contacted first opposite party and they stated that they made enquiry and found that the second complaint was having CA stomach and she had under gone treatment earlier. The complainant requested to give details of the earlier alleged treatment and nothing was given to her. The second complaint asserted that she had not undergone any treatment as alleged. The treated doctor was consulted and it was informed that some mistake occurred in the discharge summary which was prepared and given by them. The said fact was informed to the opposite party but they did not consider the fact. The opposite party repudiated the claim without any basis, not made proper enquiry. The complainants are indebted to many and they suffered a huge financial loss and hardship. The second complainant was not having any disease when the policy was taken and nothing was concealed by the complainant. The agent of the opposite party took the signature of the complainant and prepared the records. The complainant submitted that the first opposite party denied the claim stating the complainant was having pre-existing disease. Complainant stated that she was not having any such disease when the policy was taken. The repudiation letter states that a letter was issued to the complainant on 09/02/2019 but that letter was not received by the complainant. The complainant alleges the act of the opposite party is cheating and deficiency in service. The complainant claims 59,800/- rupees from the opposite parties towards treatment expense and compensation of Rs.1,00,000/- along with cost.
5. On admission of the complaint notice was issued to the opposite party and on receipt of notice the opposite party entered appearance, filed version in detail denying the entire averments and allegations in the complaint.
6. The opposite party submitted that the complaint took family health optima insurance policy from the company for a sum of RS. 3,00,000/-, commencing from 01/11/2014 to 31/10/2015 and the same was renewed up to 30/01/2019 vide policy No. P/181312/01/2018/005917 covering with first and second complainants and two children. At the time of issuing the policy the complainant was supplied with the terms conditions of the policy. The terms and conditions of the policy were explained to the complainant at the time of proposing policy and the same was served to the complainant along with the policy schedule. The policy schedule has clearly stated that “the insurance under the policy is subject to conditions, clauses, warranties, and exclusions etc, attached.” The opposite party submitted that the proposal form is the basis of the insurance contact and on that basis the policy is issued. In the proposal form, the complainant has specifically declared that the complainant was not suffering from any disease or ailment at the time of submitting the proposal form or any point of time earlier and that health condition was good in all respects. It was stated in the proposal form that any particulars stated in the proposal form are found incorrect, the insurance company would incur “no liability under the policy “. Acceptance of proposal is based on the information/details given by the proposer.
7. The claim number of the complainant is CLI /2019 /181312/0527929. The opposite parties received pre- authorization request for cashless treatment from Malabar Hospital Malappuram, which stated that the second complainant was admitted at the hospital on 12/12/2018 and previously diagnosed with fibroid uterus and underwent TAH + BSO. The same was signed by the treating doctor and complainant also. On receipt of pre-authorization request the opposite parties had issued a query letter dated 12/12/2018 to the hospital requesting to forward the documents regarding copy of first consultation details with exact duration of symptoms when fibroid uterus was diagnosed and case sheets with investigation report, surgery and anaesthesia notes. In reply to the query the hospital authority had forwarded the initial assessment report and other medical records of the Malabar hospital. As per the initial assessment report the treated doctor mentioned that second complainant had history of radiotherapy for CA stomach (Carcinoma Stomach). Then the opposite party had again sent a letter on 14/12/2018 requesting certain further details. The request was to provide letter from the treating doctor with seal and sign regarding when CA stomach was diagnosed and radiotherapy, discharge summary and all past treatment records of CA stomach. The letter, it was specifically requested that even though the details are not related to present claim details are mandatory for further processing the claim. In respond to the query the hospital authority forwarded certificates from the treating doctor Dr. Lisie Varghese, M.B.B.S, D.G.O dated 15/12/2018, which states that the patient Mrs. Nisha P, the second compliant was a CA patient but it has no relation with the present ailment. The doctor also reported that the second complainant was under her treatment for case of stress incontinence and urges incontinence and retroverted bulky uterus 2nd degree uterine prolapsed with urethrocele. It is also reported that previous case sheets are not available in their hand. The hospital authority had no other medical records to decide the cashless facility and the same was informed to the hospital authority and the complainant on 18/12/2019.
8. The complainant submitted claim form along with discharge summary, bills and reports as part of the claim to the opposite party. The discharge summary dated 12/12/2018 from Malabar Hospital revealed that complainant had past history of Carcinoma Stomach, radiotherapy done but details not available. On receipt of the claim along with documents the opposite party forwarded a query letter dated 09/02/2019 to the complainant requesting first consultation details when CA stomach was diagnosed and the previous discharge summary of that time. The complainant submitted letter to the opposite party on 11/02/2019 stating that she had not taken any treatment for CA and no documents are available with the complainants.
9. The opposite party submitted that from the medical reports the second complainant was a CA patient and she had history of Carcinoma Stomach and the radiotherapy had done but the complaint mentioned in the letter that she has not under gone any treatment for the said illness. The opposite party submitted that the submission of the complainant is misrepresentation and as per condition 6 of the policy, the company shall not be liable to make any payment under the policy in respect of any claim, if information furnished at the time of proposal is found to be incorrect or false or such claim is in any manner fraudulent or supported any fraudulently means or device misrepresentation whether by the insured person or by any other person acting on behalf. The submission of the opposite party is that the records of Malabar Hospital clearly reveal that second complainant had history of Carcinoma Stomach and radiotherapy done, but the complainant has not provided the details of the previous treatment papers. The opposite party also submitted that as per condition 5 (3) of the policy, the insured person shall obtain and furnish the company with all original bills, receipts and other documents upon which a claim is based also should give the company such additional information and assistance as the company may require in dealing with the claim. Based on the policy condition the opposite party repudiated the claim and the decision was communicated to the complainant by the letter dated 28/03/2019.
10. The opposite party denied the contention that the second complainant was not having any treatment earlier and she was never admitted for any treatment any were, she was not having any CA stomach and she had not undergone for any such treatment are being totally false. It is submitted that the discharge summary, hospital records of the Malabar hospital, Malappuram and certificate from the treated doctor Lisie Varghese dated 15/12/2018 has noted that the second complaint is a CA patient and had history of Carcinoma Stomach, radiotherapy done. The opposite party also denied the contention of complainant that the treated doctor was informed that some mistake occurred in the discharge summary which was prepared and given by them are totally false. It is submitted that the complainant misrepresented the real fact of the case and all are cooked up stories for getting the claim unlawfully.
11. The opposite party denied the allegation of deficiency in service and unfair trade practice, any type of cheating and mental tension on the part of opposite parties. The opposite party submitted that the complaint is guilty of misrepresentation of the real material facts and not submitted proper documents to decide the admissibility of the claim and the opposite parties acted only as per terms and conditions of the policy. The opposite party alleges the complaint filed this complaint frivolously for the sole purpose of harassing the respondent with the intention of getting unlawful enrichment from the respondent who are dealing with public money and functioning under the guide line of IRDA controlled by the government of India. It is submitted that being public money is held in trust the company must exercise abundant caution in dealing with claims by applying all conditions correctly. Hence the submission of the opposite party is that they acted only as per the terms and conditions of the policy and they are not liable to pay any compensation to the complainant and the complainants are not entitled to get any relief as per the complaint, the complaint is liable to be dismissed with the cost of opposite parties.
12. Complainant and opposite parties filed affidavit and documents. Documents on the side of complainant marked as Ext.A1 series. The documents on the side of opposite party marked as Ext. B1 to B12. Ext. A1 is repudiation letter, two pages dated 28/03/2019. Ext. B1 is copy of family health optima insurance policy schedule 11 pages. Ext. B2 is copy of proposal form 4 pages dated 01/11/2014. Ext. B3 is copy of request for cashless hospitalization for medical insurance policy claim No.0527929. Ext. B4 is query pre-authorization dated 12/12/2018. Ext. B5 is photo copy of request for cross consultation 6 pages. Ext. B6 query on pre authorization dated 14/12/2018. Ext. B7 is letter by Dr.Lisie Varghese to the Star Health and allied insurance service. Ext. B8 is copy of denial of pre authorization request for cashless treatment dated 18/12/2018. Ext. B9 is Photo copy of discharge summary IP No.218/005562/1 dated 12/12/2018- two pages, Ext. B10 is letter from opposite parties to the complainant dated 09/02/2019. Ext. B11 is copy of letter issued by complainant to the opposite party dated 11/02/2019. Ext. B12 is the copy of letter from the opposite party to the complainant dated 28/03/2019- two pages. Ext. C1 series is details of claim form along with documents submitted by the complainant before the opposite party 37 pages
13. Perused affidavit, documents and notes of argument of parties. Now the following points arise for consideration: -
- Whether there was suppression of facts while incepting insurance policy?
- Whether there was deficiency in service on the part of opposite party?
- Relief and cost?
14. Point NO.1
The case of the complainant is that the first complainant availed Mediclaim policy from the opposite party and he is renewing the policy continuously for the last 4 years. As per the Ext. B2, the proposal form submitted on 01/11/2014. The present policy number is P/181312/01/2018/005917. The Second complainant experienced difficulty in defecation, sudden discharge of urine and stress. She was consulted by Dr.Lisie Varghese who is working in Malabar hospital Pvt. Ltd Manjeri. On examination it was found bulky uterus and surgery is required to remove uterus. The complainant contacted the opposite party for cashless treatment but the opposite party stated that the company will reimburse surgery expenses. The second complainant got admitted in Malabar hospital on 12/12/2018 and Hysterectomy was done and she was discharged after 8 days with an advice of the regular check-up. The removed uterus was sent for pathological examination and there was nothing noted abnormal. Thereafter the complainant approached the opposite party and submitted claim form along with bills, clarification letter to reimbursement as directed by the opposite party. But the opposite party denied the claim stating the complainant not given the details of the CA stomach. But the second complainant submit that she was not having CA stomach and she had not undergone any such treatment. Now the issue is that whether the second complainant was having history of CA stomach or not.
15. The complainant consistently contended that she had no history of CA stomach and no treatment was under gone for the same. But on the other hand, the opposite party contended that they made enquiry and found that the second complainant was having CA stomach and she had under gone treatment earlier. The question is whether the second complainant was having CA stomach prior to the inception of insurance policy and whether the second complainant having CA stomach at present. The document Ext. B5, there is noted initial assessment of IP, that suspected radiotherapy for CA stomach and on that basis the opposite party issued Ext. B6 query on pre authorization dated 14/12/2018. As per Ext. B6 document, it is noted the request as initial assessment sheet that patient is a k/c/o ca stomach and under gone radiotherapy for the same, kindly provide letter from the treating doctor with seal and sign regarding when was CA stomach first time diagnosed and also requested for radiotherapy discharge summary and all past treatment records of CA stomach. Ext. B7 is a letter to the opposite party by the treated doctor that the second complainant was a CA patient but it is not related to the present ailment. The Doctor has stated that the second complainant was under her treatment for case of stress, incontinence and urge incontinence and retroverting, bulky uterus second degree uterine prolapsed with urethrocele. The doctor has reported that previous case sheet is not available with the complainants. In the light of above facts, the opposite party directed the complainant to produce details of consultations of first time when CA stomach was diagnosed and also previous discharge summary as per Ext. B10. Ext. B11 is the reply submitted by the complainant dated 11/02/2019 that she never undergone treatment as stated in the letter and she is not having the treatment records also. So, complainant requested to allow insurance claim.
16. The question is whether the second complainant was having CA and who is responsible to establish the same. The complainant throughout contended she was not having cancer ailment and no history of the same. But the opposite party contended the second complainant was having history of CA and had undergone radiotherapy for the scheme. Ext. B5, B6, B7, B9, B10 and B11 are documents mentioning about the alleged treatment history. Ext. B5 is a request for cross consultation dated 12/12/2018 which has noted history of suspected radiotherapy for CA and all other subsequent documents are originated from thereon. A suspected history has to be ruled out with substantial procedures. In this complaint except the suspected history of radiotherapy for CA cannot be taken as a piece of evidence for concluding the patient was having ailment of Carcinoma. No document is established the second complainant was having ailment of CA. The Dr.Lisie Varghese treated the second complainant only for case of stress, incontinence and urge incontinence and retroverting, bulky uterus second degree uterine prolapsed with urethrocele. She has stated that previous case sheet is not available also. She has not treated the second complainant for Carcinoma, not conducted any investigation to find out the same. So the documents issued by the Dr.Lisie Varghese from Malabar Hospital Pvt. Ltd Is not sufficient to establish the complainant was having ailment of CA. So, it is not proper to direct the complainants to produce documents which they do not have. The opposite party insurance company insisting for production of documents which they do not have. The opposite party has not taken steps to establish the contention regarding cancer ailment to the second complainant. Hence, we find that there is no document to show the second complainant was having history of cancer ailment as contended the opposite party. As per documents produced by the opposite party itself it can be seen that the complainant submitted proposal form in the year 2014. The complainant submitted that during pendency of this policy no other insurance claim was put forwarded by the complainant. Considering the fact brought out by the documents, we cannot hold that the complainant suppressed any material facts while submitting the proposal form.
17. Point No.2
The complainant took Mediclaim policy in the year 2014 and continued renewal process till the present policy. The complainant subscribed the Mediclaim policy for ensuring treatment expenses like present situation. But when the second complainant, the wife of the first complainant met with ailment and got admitted in the hospital the opposite party repudiated the claim without sufficient reason. The act of the opposite party, that the repudiation of claim without sufficient reason amount to deficiency in service. In this complaint the complainant was suffering from stress, incontinence and urge incontinence and retroverting, bulky uterus second degree uterine prolapsed with urethrocele. The complainant undergone surgical treatment. She submitted medical bills of the treatment worth Rs.56,559/-. But the opposite party repudiated the claim contending suppression of material facts of pre-existing decease. The perusal of document, it was found that there was no suppression of material evidence. Hence the act of the opposite party amounts deficiency in service.
18. The opposite party produced decision of Hon’ble Supreme Court of India i.e. Reliance Life Insurance company Limited and other VS Rekhaben Naresh Bai Rathod, which discussed in detail about the consequences of suppression of material fact while incepting insurance policy. It was held that the insurance is governed by the doctorin of uberrimafide . This postulates that there must be complete good faith on the part of the insured. The relation between the insurer and the insured is recognised as one were mutual obligations of trust and good faith are paramount. It was also held that any suppression, untruth or inaccuracy in the statement in the proposal form will be considered as a breach of the duty of good faith and will render the policy voidable by the insurer.
19. But it can be seen that in this case the opposite party failed to establish that the complainant suppressed material facts from the opposite party, which was known to the complainant at the time of inception of the policy and thereafter. So, the decision is not applicable in this complaint since the opposite party could not establish suppression of material fact and there is no satisfactory reason for repudiating the insurance claim. The complainant produced decisions of National Commission on the point of repudiation of claim due to non-disclosure of material fact at the time of inception of insurance policy. It is the duty of the insurance company to establish that the policy holder suppressed material fact at the time of inception of policy. This aspect is covered by the decisions cited by the complainant. The complainant cited 2020NCJ 260(NC), 2018NCJ 698(NC), 2016NCJ 135(NC), 2015NCJ 473 (NC), 2012NCJ 589(NC), 2009NCJ 558(NC), 1999 NCJ 314(NC) . In this complaint the opposite party has not taken any steps to establish that the complainant was having pre-existing decease either by producing documents or citing the treated doctor as witness .So we find the complainant is entitled for the insured amount.
20. Point No.3
The complainant due to ailment admitted in to hospital on 12/12/2018 and she underwent treatment for 8 days she was discharged with advice for regular check-up. Complainant spend an amount of Rs.54,585/- towards treatment the complainant submitted medical records and treatment bills before the opposite party. Ext. C1 series is the document submitted by complainant before the opposite party regarding treatment. The total expense she has described as 56,559/- which includes discharge bill of Rs.36,910/- so the commission finds that complainant is entitled for the treatment expenses of Rs.56,559/-. The complainant undergone treatment during the period of 2018 December. So the complainant is entitled for reasonable interest also. Since there is deficiency in service on the part of opposite parties. The complainant had suffered mental agony inconvenience hardship and financial loss. So we allow Rs.25,000/- as compensation on account of deficiency in service. The opposite party is also directed to pay cost of Rs.10,000/- .
In the light of above fact and circumstances we allow this complaint as follows:-
- The opposite party is directed to pay Rs.56,550/-(Rupees fifty six thousand five hundred and fifty only) to the complainant towards the treatment expenses .
- The opposite party is directed to pay Rs.25,000/- ( Rupees Twenty five thousand only) towards the compensation on account of deficiency in service and thereby caused hardship inconvenience mental agony and financial loss to the complainant .
- The opposite party is directed to pay Rs.10,000/- (Rupees Ten thousand only )as cost of the proceedings.
The opposite party shall comply this order within one month from the date of receipt of copy of this order, failing which the opposite party is bound to pay 12% interest on the above said entire amount from the date of order till realization.
Dated this 15th day of June, 2022.
Mohandasan . K, President
PreethiSivaraman.C, Member
Mohamed Ismayil.C.V, Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 (Series)
Ext.A1: is Repudiation letter, two pages dated 28/03/2019.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1 to B12
Ext.B1: Copy of family health optima insurance policy schedule 11 pages.
Ext.B2: Copy of proposal form 4 pages dated 01/11/2014.
Ext.B3: Copy of request for cashless hospitalization for medical insurance policy claim
No.0527929.
Ext.B4: Query pre-authorization dated 12/12/2018.
Ext.B5: Photo copy of request for cross consultation 6 pages
Ext.B6:. Query on pre authorization dated 14/12/2018
Ext.B7: Letter by Dr.Lisie Varghese to the Star Health and allied insurance service.
Ext.B8: Copy of denial of pre authorization request for cashless treatment dated
18/12/2018.
Ext.B9: Photo copy of discharge summary IP No.218/005562/1 dated 12/12/2018- two
pages,
Ext.B10: Letter from opposite parties to the complainant dated 09/02/2019.
Ext.B11: Copy of letter issued by complainant to the opposite party dated 11/02/2019.
Ext.B12: Copy of letter from the opposite party to the complainant dated 28/03/2019-
two pages.
Ext. C1: Series is details of claim form along with documents submitted by the
complainant before the opposite party 37 pages
Mohandasan . K, President
PreethiSivaraman.C, Member
VPH Mohamed Ismayil.C.V, Membe
