Complaint filed on: 06-12-2022.

                                                      Disposed on: 16-08-2023

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, TUMAKURU

DATED THIS THE 16^th DAY OF AUGUST, 2023

PRESENT

SMT.G.T.VIJAYALAKSHMI, B.Com., LLM., PRESIDENT

SRI.KUMARA.N, B.Sc. (Agri), LLB., MBA., MEMBER

SMT.NIVEDITA RAVISH, B.A., LLB. (Spl)., LADY MEMBER

CC.No.183/2022

Sri. Madhu G.S. S/o Siddagangapp,

Aged about 37 years, Srinidhinilaya,

Medara Street, Kyathsandra, Tumkur-572 104

……………….Complainant/s

(By Sri. Himanand D.C., Adv.,)

                                                V/s

1.       The Branch Manager, Kotak Mahindra Bank,

          #91/A/10, Sampige Comforts Building,

          Near Town Hall, Mahaveer Road,

          Tumakuru – 572 102.

2.       The Regional Manager, Bank Assurance

          Kotak Mahindra Bank,

          #91/A/10, Sampige Comforts Building,

          Near Town Hall, Mahaveer Road,

          Tumakuru-572 102.

3.       Kotak Mahindra General Insurance  Company Limited,

          8^th Floor, Zone IV, Kotak Infinity, Building No.21,

          Infinity IT Park, Off Western Express Highway,

          General AK Vaidya Marg, Dindoshi Malad (E),

          Mumbai-400 097.

……………….Opposite Party/s

(OP Nos. 1 & 2 T.N.Ajay, Adv.,)

(OP No.3 N.V.Naveen Kumar, Adv.,)

:ORDER:

BY SRI.KUMARA.N., MEMBER

This complaint was filed by the complainant U/s 35 of Consumer Protection Act 2019 to direct the OPs to pay Rs.6,71,631/- which spent towards treatment, Rs.17,261/- which spent towards treatment Medicine purchase, Rs.50,000/- towards transacting with the OPs, Rs.5,00,000/- towards damage and deficiency in service, Rs.5,00,000/- towards mental agony and Rs.30,000/- towards legal expenses to the complainant.

2.       In this case the opposite parties were, the Branch Manager, Kotak Mahindra Bank, #91/A/10, Sampige Comforts Building, Near Town Hall, Mahaveer Road, Tumakuru – 572 102, The Regional Manager, Bank Assurance  Kotak Mahindra Bank, #91/A/10, Sampige Comforts Building, Near Town Hall, Mahaveer Road, Tumakuru-572 102, Kotak Mahindra General Insurance  Company Limited, 8^th Floor, Zone IV, Kotak Infinity, Building No.21, Infinity IT Park, Off Western Express Highway, General AK Vaidya Marg, Dindoshi Malad (E), Mumbai-400 097 (Hereinafter called as OP No 1, OP No 2 & OP No 3 respectively)

3. Its, a case of the complaint, that the complainant purchased the Kotak Group Smart Cash Policy bearing No.201120000159 from the OP No3, which valid from 20.11.2020 to 19.11.2021. Further, the said policy renewed (No.GI2021139939 (1909946000) Valid from 20.12.2021 to 19.12.2022.  The complainant due to his left hand shoulder pain approached the Columbia Asia Hospital and undergone ECO, ECG and coronary Angiogram, result was normal.  Further, on 30.04.2022 due to breathing problem, the complainant was taken treatment in Manipal Hospital and discharged on 1^st May 2022, where the Doctors have suggested the need of implantation of pacemaker, accordingly, the complainant on 13.05.2022 enquired about the Medi-claim for the same with the officials of OP No 1 & 2 (Smt.Reshma).  After the assurance, the complainant admitted to the Siddaganga Hospital, Tumkur and taken the treatment, pacemaker i.e. VVI-ICD implanted to the complainant and after the complete treatment, the complainant discharged on 18.05.2022.  It is submitted that the complainant on 17.05.2022 after calling the OP No 3, call center, in turn has advised by the OP No 3, call center and thereafter filled claim form along with necessary documents submitted to the OP No.3, through professional courier (docket No.TMR5665587.  Later, the complainant came to know from the OP No 3 that the OP No 3 is conducting 3^rd party investigation to settle the claim and the OP No 3 on 03.08.2022 advised the complainant to send some additional documents.  Accordingly, the complainant submitted the additional documents to OP No 3 through Professional Courier (Docket No.PMR5689928 and the same was informed by the complainant to the OP No 3 by ‘e’ mail.  The complainant surprised to receive the letter from the OP No 3, on 28^th September 2022 wherein it is stated that:

”the claim is pursued for treatment of Hypertrophic cardiomyopathy taken at Siddaganga Hospital on 13.05.2022 wherein Automatic implantable cardiomyopathy defibrillator was implanted on 15.05.2022 this ailment and the procedure is not within the scope of heart related critical illness covered under the policy”

, and hence the OP No3 repudiated the claim.The complainant in spite of repeated and sufficient contacts, the OP No 3 not settled the claim,hence, this complaint.

4.        After the complaint registered, commission notice served to the OP No 1,2 & 3,inturn the OP No.1, OP No  2 and  OP No 3 appeared through their counsels and filed separate versions. The OP Nos. 1 & 2 in their version has contended that the complaint filed against them is not maintainable either in law or on facts and hence liable to be dismissed in limine.  It is further contended that there is no cause of action against OP Nos. 1 & 2 and moreover the complainant is not a consumer of OP Nos.1 & 2.  It is further contended that the contract of insurance was executed between the complainant and the OP No.3 and premium was paid to the OP No.3.  Hence, any dispute pertaining to policy claim, the terms and conditions of the insurance policy, is a matter between the insurer and the insured respectively.  On these among other grounds, the OP Nos. 1 & 2 prays to dismiss the complaint by denying other averments in the complaint.  The OP No.3 in its version has contended that the complainant has made willful breach of the policy terms and conditions and also the principle of utmost good faith.  He has not disclosed the true facts at the time of availing policy and also his claim does not fall under the scope of policy.  The liability of the OP No 3 is strictly governed by the terms and conditions of the policy.  The complainant intimated the claim on 01-06-2022, related to the complainant diagnosed as, Hypertrophic Cardiomyopathy and admitted to Siddhaganga Hospital, Tumkur from 13.05.2022 to 18.05.2022 and claim number allotted was 20270009370, the OP No 3, appointed the investigator and the investigation after detailed verification of facts and on receipt of all the necessary documents, its, noted that the claim of the complainant is not within the scope of policy terms and conditions as automatic implantable cardioverter defibrillator was implanted on 14-05-2022. This ailment and procedure is not within the scope of heart related critical illness covered under the policy and the claim falls under an exclusion of Pre – existing disease, and the complainant had, hypertrophic Cardiomyopathy  (HCM) and hypertension, which, are pre existing prior to policy insurance date i.e. 20-12-2021, these are significant medical facts, which were not disclosed at the proposal stage and HCM, is not listed in 18 listed critical illness under policy terms and conditions, hence not covered, accordingly your claim not payable.

5.        The complainant has filed his affidavit evidence and marked the documents at Ex.P1 to P26.  Sri.Milind Myakal, Senior Vice President, Legal Claims, Mumbai (RW1) and Dr.C.H.Asrani, DNB, MBBS, Advanced diploma in Forensic Medicine and Toxicology and a Post Graduate Diploma in Medico Legal Systems (from Symbiosis Centre of Health Care) (RW2) has filed their respective affidavit evidence on behalf of OP No.3.  Sri. Rudresh .N has filed his affidavit evidence on behalf of OP Nos. 1 & 2.  The OP No.3 has marked the documents at Ex.R1 to R5.

6. .       We have heard the arguments of counsel for complainant and OP Nos.1 & 2 and 3 counsels. 

7.       The points that would arise for determination are as here under:

1. Whether the complainant proves the deficiency in service on the part of OP No 1, OP No 2 & OP No 3?

2. Is complainant entitled to the reliefs sought for?

8.       Our findings on the aforesaid points are as under:

                     Point No.1: Partly Affirmative

Point No.2: In the partly affirmative for the below

:R E A S O N S:

Point Nos.(1) & (2):

9.       The complainant counsel argued that the complainant informed the officials of the OP No 1 & 2, before admitting to the Siddaganga Hospital Tumkur, after the assurance by the OP NO 1 & 2 & OP No 3, the complainant admitted as a inpatient on 13-05-2022 and taken treatment and after the treatment the complainant discharged on 18-05-2022 and submitted all required original documents along with the filled claim form to the OP No 3 and initially, the OP No 3 assured to settle the claim, later, the OP No 3, seeks clarification and advised the complainant to submit additional documents, accordingly on 03-08-2022, the complainant submitted required additional documents, in spite of it, the OP No 3 on 28-09-2022 repudiated the claim intentionally by quoting claim falls under pre existing disease, hence not payable. The complainant’s counsel prays to allow the complaint since the complainant having valid policy i.e. Kotak group smart cash, valid from 20-12-2021 to 19-12-2022 and the complainant renewed the said policy by paying premium of Rs 10000.00 and the complainant taken treatment in siddaganga hospital Tumkur from 13-05-2022 to 18-05-2022, as advised and assured by the OP No 1, OP No 2 & OP No 3, the complainant after taking treatment submitted the claim along with documents , hence prayed to allow the complaint and award compensation. . The complainant’s counsel produced the documents, Ex P1, copy of complainant adhar, Ex P2, Ex P3 Ex P4 & Ex P5 copies of policy and policy wordings, Ex P 6, copy of certificate of insurance, Ex P7, copy of premium certificate, Ex P8, copy of Tax invoice, Ex P9, copy of OP questionnaire, Ex P10 copy of Claim form, Ex P11 to Ex P14, copy of email transactions, Ex P15 copy of courier receipts,  Ex P16, copy of email transaction related to critical illness claim, Ex P17, copy of Email by OP to complainant to send additional documents, Ex P18 copy of discharge summery, Ex P19, copy of siddaganga hospital letter to OPs, Ex P20, copy of implantable cardioverter defibrillator report, Ex P21 & 22, copy of tax invoice, Ex P23, copy of hospital tests report, Ex P24, copy of inpatient detailed Bill for Rs 671631.00, Ex P25 copy of cash receipts, and Ex P26, copy of OPs dated 28-09-2022 , claim not paying.

10.     The OP No 1 & 2 counsel argued that, the complainant has no relationship of customer of this OP no 1 & 2 and cause of action does not arises, and the complainant paid the premium of premium of Rs 10000.00 to the OP No 3, accordingly the OP No 3 issued policy, i.e. Kotak group smart cash, to the complainant, which valid from 20-12-2021 to 19-12-2022, hence prays to dismiss the case against them. The OP No 1 & 2 counsel not produced documents.

11. The OP No 3 counsel argued that, admitting the facts that, the complainant being a customer of OP no 3, having policy Kotak Group smart cash, which was valid from 20-12-2021 to 19-12-2022, the complainant submitted claim, that the complainant, diagnosed with Hypertrophic Cardiomyopathy and admitted to Siddaganga Hospital, Tumkur and taken treatment  from 13.05.2022 to 18.05.2022 The OP No 3 appointed the investigator and the investigation after detailed verification of facts and on receipt of all the necessary documents, its, noted that the claim of the complainant is not within the scope of policy terms and conditions as Automatic implantable cardioverter defibrillator was implanted on 14-05-2022. This ailment and procedure is not within the scope of heart related critical illness covered under the policy and the claim falls under an exclusion of Pre – existing disease, hence not covered, accordingly your claim not payable. The OP No 3 counsel prays to dismiss the complaint against them and produced documents, Ex R1 & R2, copy of OP letters and policy wordings, Ex R3, copy of progress report, Ex R4, OP letter dated 28-09-2022 (Repudiation), Ex R5, copy of Dr CH Asrani letter,

12.     Honorable Supreme court of India, the division bench of Justice Abhay S Oka and Justice Rajesh Bindal, in CIVIL APPEAL NOS. 2769-2770 OF 2023, in the case of Om Prakash Ahuja Vs Reliance General Insurance Co. Ltd, on July 04, 2023, held that, Medical Insurance - Once there is a valid insurance policy in favour of a person, the claim for reimbursement of the expenses incurred must be paid. Once the insurance company has accepted that concealment of a disease at the time of purchasing the policy was not material as it was not related to the disease that caused death, it cannot later refuse further claims or renewal of insurance policy on the same ground.

13. In this case, the complainant produced, Ex P 3 & EX.P6,which revels that, the complainant, obtained health insurance policy i.e. Kotak Group Smart cash,  bearing No, 201120000159&  GI20211399399 from the OP No 3, where in the complainant paid the premium of Rs 10000.00, regularly to the OP No 3, in turn the OP No 3 issued the said policy, wherein sum assured was (1) Basic Cover; Hospital daily Cash Benefits Rs 5000.00 per day for maximum of 30 days, (2) Optional (1) Critical illness Benefits INR 1000000.00  (2) Personal accident Benefit INR 1000000.00, which were valid for the period 20-11-2020 to 19-11-2021 &  20.12.2021 to 19.12.2022, respectively and insured person is Mr. Madhu G.S., complainant, who admitted to the Siddaganga Hospital Tumkur as a inpatient  for the period 13.05.2018 to  18.05.2022 to take treatment of disease Hypertrophic Cardiomyopathy and implanted, automatic implantable cardioverter defibrillator on 14-05-2022,which  are admitted facts, not disputed by the OP No3. The OP No 3,allegation in its, letter to the complainant dated 28-09-2022 (ExP26), stated, as critical illness benefit claim of, Madhu GS (Complainant) under policy No 1909946000, claim No 20270009370, in page No 2 of para 1, recorded as, further on verification, we have received an Angiography report, dated 04-11-2021, of Columbia Asia hospital, its noted that, you were diagnosed with hypertrophic Cardiomyopathy (HCM) as the indication of angiography and were admitted in Columbia Asia hospital. Further present policy is availed by you from 20-12-2021 to 19-12-2022, thus it’s concluded that, the present ailment / disease diagnosed is having sufficient nexus with the diagnosis made on 04-11-2021 and therefore, it’s concluded that your claim falls under exclusion of pre existing disease. Further it may be noted that as per policy issued to you, the pre existing disease are not covered, to prove this the OP No 3 not produced Angiography report, dated 04-11-2021, of Columbia Asia hospital and the complainant defence, is that the complainant, obtained the health insurance policy i.e. Kotak Group Smart cash, bearing No, 201120000159 &  GI20211399399 from the OP No 3, which were valid for the period 20-11-2020 to 19-11-2021 &  20.12.2021 to 19.12.2022, respectively and insured person is Mr. Madhu G.S.(Complainant). The complainant due to his left hand pain, visited Columbia Asia hospital, Bangalore on 04-11-2021, after the tests like ECG, ECO & CAG, the complainant discharged on same day stating that everything normal, same recorded in the complaint as well as at the time of arguments, the complainant counsel submitted that the complainant up to 30.04.2022 is not aware of any health problems or health issues,

14.     On persuaual of the Ex R2, policy wordings page, No 13, under heading, Critical illness,  in para 9, its reflected as, open heart replacement or repair of heart valves, open heart replacement considered when, heart valve disease, that is affecting heart's ability to pump blood. The purposes of repair of heart valves are, to keep blood flowing in the right direction, are gates at the chamber openings. It’s clear that, open heart replacement or repair of heart valves, considered only when there is an heart failure or heart disease, In this case the complainant, due to heart disease, the complainant taken the treatment of, implantable cardioverter defibrillator in Siddaganga Hospital Tumkur,  An implantable cardioverter-defibrillator (ICD) is a small battery-powered device placed in the chest. It detects and stops irregular heartbeats, also called arrhythmias. An ICD continuously checks the heartbeat. It delivers electric shocks, when needed, to restore a regular heart rhythm. An ICD constantly checks for irregular heartbeats and instantly tries to correct them. It helps when there is a sudden loss of all heart activity, a condition called cardiac arrest. An ICD is the main treatment for anyone who has survived cardiac arrest, mainly used in people at high risk of sudden cardiac arrest and lowers the risk of sudden death from cardiac arrest more than medicine alone.

 (https://www.mayoclinic.org)

The hypertrophic cardiomyopathy (HCM) is most often inherited and is the most common form of genetic heart disease. Hypertrophic cardiomyopathy (HCM) is a disease in which the heart muscle becomes thickened (hypertrophied). The thickened heart muscle can make it harder for the heart to pump blood. Hypertrophic cardiomyopathy (HCM) is a complex type of heart disease that affects heart muscle. It can cause:

• Thickening of heart muscle (especially the ventricles or lower heart chambers).
• Left ventricular stiffness.
• Mitral valve changes.
• Cellular, changes.

                                                              (www.mayoclinic.org )

Its , clear from the above explanation, that the implantable cardioverter defibrillator, done to treat heart disease or heart failure, as listed in Ex R2,of OP No 3, policy wordings page, No 13, under heading, Critical illness,  in para 9, its reflected as, open heart replacement or repair of heart valves, which were used to treat heart failure and heart disease, likewise, the implantable cardioverter defibrillator done to  treat heart failure and heart disease. Since the purpose of open heart replacement or repair of heart valves and implantable cardioverter defibrillator are the same, this commission is on the opinion of considering the implantable cardioverter defibrillator to address heart functioning, does not violated the policy terms and conditions of OP No 3.

15.     The object of seeking a health / medi-claim policy is to seek indemnification in respect of a sudden illness or sickness which is not expected or imminent and which may occur on any time or any stage. If the insured / complainant suffer a sudden sickness or ailment or disease, which is not expressly excluded under the policy, a duty is cast on the OPs to indemnify the complainant for the expenses incurred there under. If the insured / complainant, had no knowledge of any ailment or diseases, he or his dependents, had, obviously there could be no disclosure of any ailment or sickness or disease, which would require medical attention.

16.     In view of the above discussions, this commission relied on the Honorable Supreme court of India, judgment dated 04-07-2023 in the case of Om Prakash Ahuja Vs Reliance General Insurance Co. Ltd, while answering, the OP No 3 contention of, Pre existing disease by the complainant not reported, and the OP No 3 not produced believable evidence that the complainant had hypertrophic cardiomyopathy (HCM) disease prior to inception of the policy i.e. Kotak Group Smart Cash, this commission is opinioned that, repudiation of the, medical claim, bill of the complainant (Ex P17), by the OP No 3, is illegal and not in accordance with the law, since the complainant paid the premium of Rs 10000/- regularly to the OP No3, towards health insurance policy, i.e. Kotak Group Smart Cash, bearing No GI20211399399, wherein sum assured was (1) Basic Cover; Hospital daily Cash Benefits Rs 5000.00 per day for maximum of 30 days, (2) Optional (1) Critical illness Benefits INR 1000000.00, which valid for the period 20.12.2021 to 19.12.2022 (Ex P 6) and insured person was the complainant, who taken treatment in Siddaganga Hospital Tumkur as a inpatient from 13.05.2022 to 18.05.2022, after the discharge (Ex P18), the complainant submitted the medical claim bills to the OP No3 and the same informed by the complainant to the OP No3 (Ex P12, Ex P 10 & P11). The OP No3, on 13.07.2023 settled the Basic Cover; Hospital daily Cash Benefits of Rs 5000.00 per day for 5 days i.e. Rs 25000.00 (Ex P13 & Ex P14) by keeping, pending of critical illness benefits reimbursement, which proves that, the OP No 3, not disputed nor objection raised regarding treated hospital, i.e.  Siddaganga Hospital Tumkur.  The complainant not produced any evidence to prove the deficiency of services on the part of  OP No 1 & 2, accordingly the complaint, against the OP No 1 & 2 is liable to be dismissed. The complainant prays to award Rs.17,261/- which spent towards treatment of Medicine purchase, since its already included in the claim, hence it’s not considered, Rs.50,000/- towards transacting with the OPs, Rs.5,00,000/- towards damage and deficiency in service, Rs.5,00,000/- towards mental agony , Rs.30,000/- towards legal expenses claimed, as the complainant not produced supportive  documents, hence, the complainant not entitled.  In view of the above, this Commission is in the opinion of,  the OP No 3 is liable to reimburse the medical claim (Ex P24) of Rs.6,71,631/- to the complainant and compelled the complainant to approach this commission, by repudiating the said claim ((Ex P26), hence OP No 3, is liable to pay the litigation cost of Rs.10,000-00 and compensation of  Rs.10,000-00 to the complainant, accordingly we proceed to pass the order as;

:O R D E R:

Complaint filed by the complainant is allowed in part and the complaint against the OP No 1 & 2 dismissed without costs.

The OP No 3 is ordered to pay, Rs.6,71,631 (Rs.Six  lakhs seventy one thousand six hundred  thirty one  only) along with interest @ 8.00 % p.a from the date of this complaint i.e. 06-12-2022 to till realization to the complainant. It is further ordered that OP No 3 to pay Rs.10,000-00 towards litigation costs and Rs.10,000-00 towards compensation to the complainant.

The OP No 3 is further directed to comply the above order within 45 days from the date of receipt/knowledge of the order, otherwise, it carries fine of 150/- per day till realization.

Furnish the copy of order to the complainant and opposite party at free of cost.