ORDER
(Passed on 25/03/2021)
PER SMT.KALPANA JANGDE (KUTE), HON’BLE MEMBER.
The complainant has filed this complaint U/s 12 of the Consumer Protection Act,1986 against repudiation of his insurance claim under PNB Metlife health insurance scheme claiming reimbursement of Rs.3,46,600/- towards expenses incurred for his medical treatment along with compensation for mental agony of Rs.50,000/- besides Rs.25,000/- towards deficiency in service & Rs.25,000/- towards cost of proceeding.
2. The facts in nutshell giving rise to this complaint are that the complainant has a S/b account with OP No.2 Bank since last 20 years and he was convinced by the branch Manager of OP No.2 to take PNB Metlife Health Insurance Policy. For the sake of Obtaining the policy, Mr.Sawarkar who is an authorized Agent of the OP Insurance Company at Chandrapur, collected necessary documents from the complainant and thereafter the complainant was subjected to undergo various medical tests at the instance of authorized medical officer of the OP Insurance Company. Only after getting itself satisfied about the health conditions of the complainant, the OP insurance company issued Metlife health insurance policy bearing No.21939856 covering risk for the period 30/6/2016 to 29/6/2017 for an assured sum of Rs.10 lac. The OP No.2 Bank deducted premium amount of the policy from his S/b account and remitted it to the OP No.1. As such he is Consumer of OP Nos.1 & 2.
3. Thereafter, the complainant decided to get himself for his family members checked up under the scheme floated by Indus Health and deposited Rs.36,998/- on 21st January,2017. He himself underwent some medical tests on 8th May,2017 whereupon, for the first time, he confronted with the fact that he is suffering from heart ailment and diabetes. Hence, on 29/6/2017, he was taken to Dr.Bisne, at Nagpur. Upon checkup, on the advise of Dr.Bisne, he got admitted at Meditrina Institute of Medical Science, Nagpur on the same day. On the same day, an angiography was conducted on him which diagnosed blockages in his heart and he was advised to undergo CABG (Coronary Artery Bypass Grafting).
4. Accordingly, the complainant got himself admitted at Apollo Hospital, Hyderabad on 5/7/2017 where he underwent an open heart surgery. He was discharged from the hospital on 14/7/2017 and he had to bear expenditure of Rs.3,46,600/- towards the treatment.
5. Thereafter, the complainant lodged his claim alongwith requisite documents with the Insurance Company through its agent Mr.Sawarkar and time to time complied the requirement of documents, as directed by the Insurance Company. However, his claim was repudiated by the OP Insurance company under the garb of suppression of material facts relating to his alleged preexisting disease namely Hypertension and Diabetes. They alleged that during scrutiny of his medical documents, history of these disease was noticed, whereas he, has answered to the queries in the proposal form, in this regard, in negative. The OP insurance company claimed that had the complainant disclosed these facts, the insurance company would not have issued the policy. The OP insurance company alleged it to be breach of policy conditions and repudiated the claim though the complainant was not having any preexisting disease at the time of filling the proposal form for insurance. Claiming it to be deficiency in service and unfair trade practice on the part of OP Insurance company, the complainant has prayed for allowing the complaint and for granting the reliefs mentioned supra.
6. The complain is admitted and notices were served on the OP Nos.1 & 2. The OP Nos.1 & 2 filed their joint reply and thereby denied allegations, but admitted the issuance of health insurance policy in question and accrual of medical exigency during the period wherein the policy was in force. However, their defense rests on the sole ground that the repudiation of claim by them is justified as the contract of insurance is vitiated by the suppression of material facts by the complainant as he concealed information about his sufferance from preexisting diseases namely hypertension and diabetes.
7. The OP insurance company claimed that upon receipt of claim from the complainant, the same was referred to the Chief Medical officer, CMO of the OP Insurance company for his expert opinion. They alleged that during scrutiny of medical documents submitted by the complainant himself, the CMO, noticed history of hypertension and diabetes specifically mentioned in the discharge summary/prescription dated 29/6/2017 ( Document No.3)issued by Dr.Bisne, Meditrina Hospital. Hence the CMO pointed out at this misrepresentation/suppression and submitted its opinion to the OP insurance company that the complainant was suffering from preexisting diseases namely “H/o HTN, DM 5 Yrs. IHD and CAD ON CTCAG” whereas he, has answered to the queries in the proposal form, in this regard, in negative. The OP has filed the said opinion offered by its CMO at (Exh.4 Document No.4). It is alleged by the OP that had the complainant disclosed these facts in the proposal form, the insurance company would not have issued the policy. The OP insurance company alleged it to be breach of policy conditions and repudiated the claim. Hence the OP Nos.1 & 2 submitted that repudiation of complainants claim is justified and as such the complaint deserves to be dismissed with cost. For supporting its pleadings, the Ops have relied upon an array of authorities.
8. We have gone through the complaint, joint written version filed by OP Nos.1 & 2 and affidavit, documents filed by the parties. The Complaint adv. Heard. The op filed WNA and also filed pursis to the effect that their respective stands in the written version may be treated as their oral arguments. On careful consideration of rival pleadings following points arises for our consideration against which findings are being recorded as follows.,
Points Finding
1. Whether the complainant is a Consumer of OP Nos.1&2? Yes
2. Whether there is deficiency in service on the No.
part of OP No.2 Bank?
3. Whether there is deficiency in service on the Yes.
part of OP No.1 Insurance company ?
4. What order ? As per final order..
As to issue No.1
9. Admittedly, the complainant has a S/b account with the OP No.2 bank and he has obtained insurance policy from OP No.1 by paying premium. Hence the complainant is a Consumer of OP Nos.1 & 2 within the meaning of Section 2(1)(d) of the Consumer Protection Act,1986. Hence the issue has been decided accordingly.
As to issue No.2
10. The instant complainant has alleged repudiation of his insurance claim on flimsy grounds. Adverting to the nature of allegations made in the complaint we see no nexus between the complainant and the OP No.2 bank, who is a completely different and independent entity than the OP No.1 Insurance Company. Except deducting premium from the account of the complainant and remitting the same to the OP No.1 there is no other role played by the OP No.2 Bank in the instant matter. There is neither pleading of the complainant nor any evidence is filed by him to substantiate any negligence or deficiency in service on the part of OP No.2. Hence, the OP No.2 Bank, being a formal party, needs to be exonerated from any liability arising out of the dispute in between complainant and the OP insurance company. Hence the issue is decided in the negative.
As to issue No. 3
11. The OP has repudiated the claim of the complainant on the alleged report of his Chief Medical Officer (CMO) who he claims to have scrutinized the medical documents furnished by the complainant alongwith the insurance claim and upon scrutiny he is claimed to have arrived at a finding that the complainant has suppressed material information about his preexisting ailment of Diabetes Mellitus since last 5 years alongwith Hypertension and Ischemic Heart Disease. The OP has claimed that the said CMO has relied upon the prescription dated 29/6/2017 of Dr.Bisne, Bisne Heart Hospital, Nagpur wherein Dr. Vikas Bisne, alleged to have mentioned the existence of ailments as mentioned supra. The OP has filed a document at Annex.4 which is claims to be the report/opinion submitted by its medical expert CMO. However, the said document does not bear any signature neither it mentions the name & designation of the medical expert who alleged to have authored the said document. The onus to prove the allegation lies on the party who asserts. However, the OP failed to file on record the duly signed and stamped report/opinion of his CMO. Further the OP even did not file the affidavit of said CMO to support its claim about preexisting disease. In this regard, it is pertinent to note that the mediclaim policy in question seems to be non NMG category policy wherein medical examination of the insurance aspirant is mandated prior to issuance of policy. In the case in hand too, the OP has issued the insurance policy in question to the complainant only after conducting medical examinations of the insured to its satisfaction and as such, the onus to prove the suppression of material facts about preexisting disease prior to obtaining the policy, lies on the shoulder of the OP insurance company. As such the document which the OP has filed at Annexure/Doc.No.4 has no authenticity as it neither bears the name & designation of the author nor his signature. So this document is just a piece of paper and as such, does not come to the rescue of OP with regard to its claim about alleged preexisting ailment of the insured. The OP, relying on this document, attracted our attention to the prescription dated 29/6/2017 issued by Dr.Bisne. When we adverted to the said prescription document, there is a mention of,
“H/o HTN, DM 5 Yrs., IHD, CAD ON CTCAG “
12. The counsel for the OP attracted our attention to the fact that the policy in question was obtained for the period 30/6/2016 to 29/6/2017, however, the said prescription dated 29/6/2017 issued by Dr.Bisne clearly mentions the history of an array of ailments i.e. Diabetes Mellitus since last 5 years along with Hypertension and Ischemic Heart Disease. He further mentioned that if counted roughly, the complainant is suffering from these diseases since 2012 i.e.prior to inciation date of the policy. However, he did not disclose these facts, on the contrary willfully suppressed about the preexisting diseases and as such, he claimed that there is clear and unequivocal suppression of material fact. As the contract of insurance is based on “uberrimaefidei” i.e. utmost good faith, it was obligatory on the part of complainant to disclose existence of these diseases in the proposal form. However, the complainant willfully and with a malafied intention, answered the specific queries in this regard in the negative and as such the contract of insurance is vitiated. On these grounds, the counsel for OP insurance company vehemently attempted to defend the repudiation of insurance claim by the OP insurance company.
13. In this regard, at the outset, it needs to be taken into consideration that prior to taking the policy, the complainant was made to undergo various medical tests at the instance of the OP Insurance company, and the OP insurance company, only upon getting itself adequately satisfied with the medical conditions of the complainant has issued the health insurance policy in question.
14. Secondly, on careful perusal of the entries in the prescription of Dr.Bisne dated 29/6/2017, we find that there is a mention of “H/o HTN, DM for 5 yrs, IHD and CAD ON CTCAG”. However, it mentions the period of only one disease i.e. Diabetese Mellitus as 5 years. It is pertinent to note that there is no specific time period of accrual of rest of the diseases i.e. Hyper Tension and Ischemic Heart Disease (HTN, IHD and CAD ON CTCAG ) are mentioned therein, neither any other evidence to substantiate the allegation of preexistence of these decease is produced by the OP insurance company. Hence it cannot be gathered, as to since when the complainant is suffering from these diseases and, as such, both these diseases cannot be categorically stated to be preexisting on the date of obtaining the policy i.e.30/6/2016. Hence we have come to the considered opinion that, the Ops have failed to prove, by bringing on record any cogent/tangible evidence, that the complainant was suffering from a preexisting Hypertension and Ischemic Heart Disease and that he has knowingly, deliberately and with a malafide intent concealed this information while filing the proposal form. Hon’ble Apex court in the landmark judgment dated 15th January,1962 in the matter in between Mithoolal Nayak V/s LIC of India in CA No.224 of 1959 has laid down the touchstone for applicability of second part of Section 45 of the Insurance Act,1938 which deals with material suppression of fact with regard to preexisting ailment. Hon’ble SC has ruled that, for application of exclusion clause U/Section 45(2) of the Insurance Act, 1938 the alleged suppression of information must fulfill the following three conditions.
“ a) The statement must be on a material matter or must suppress the facts
which it was material to disclose;
- The suppression must be fraudulently made by the policy holder and
- The policy holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose.”
15. As there is no iota of evidence produced by the OP insurance company with regard to the date of occurrence of alleged preexisting diseases named Hypertension and Ischemic Heart Disease, the claim fails measurably to comply with the conditions as determined by Hon’ble Supreme Court in the Mithoolal case Supra.
16. It is pertinent to note that in the same Dr.Bisne’s prescription dated 29/6/2017, after conducting various clinical tests, Dr.Bisne has advised the complainant to undergo CABG procedure which is also called as aortocoronary bypass and Coronary Artery Bypass Grafting [CABG] wherein healthy blood vessel is taken from another part of the body of the patient and is used to make a new path for blood around a blocked artery leading to the heart. In short, it is a treatment of disease involving blockage of artery.
17. Now, even if it is assumed [ though not admitting, because, barring said entry in Dr.Bisne’s prescription dated 29/6/2017, there is no other concrete medical evidence filed on record to prove any such history of the said disease.] that the complainant had a known history of 5 years of Diabetese Mellitus, it is of immense importance to see as to whether there is any nexus between the alleged but not established preexisting Diabetes Mellitus and the coronary artery disease. In this regard, the precedent laid down by Division Bench of Hon’ble Madras High Court, Madurai Bench in W.A.(MD) No.956 of 2011 Manivasagam Vs.The Br.Manager, National Insurance Co.& Anr. squarely applies. In the said Appeal filed under clause 15 of the Letters Patent, against order dated 1/8/2011 passed in W.P.(MD) No.5254 of 2008, the similar facts were involved as in the case in hand. In the matter before, Hon’ble Madras High Court supra, the claim for reimbursement of medical expenses under the mediclaim policy was repudiated under the pretext of sufferance of the insured by preexisting Hypertension and diabetes. In that matter, it was the admitted case of the appellant/insured that he is, and even prior to obtaining the policy was suffering from hypertension and diabetes, and, as such, as per clause 4.1 of the terms and conditions of the policy, any treatment pertaining to these diseases would be covered under the exclusion clause being preexisting diseases. However, in the report, he was diagnosed to be having coronary Artery Disease, and for the same, Open heart Surgery was prescribed and ultimately got performed. Hon’ble High Court (DB) observed that “the claim apparently came to be rejected by the Hon’ble High Court on the misconception that Coronary Artery Disease was preexisting at the time when the policy in question was issued, though, in fact, it was not. It went on to observe that, If the treatment to the appellant/writ petitioner is relating to diabetes or hypertension, then it is a preexisting disease and he is not entitled to reimbursement in terms of the Mediclaim policy. Since the nature of the treatment is for Coronary Artery Disease, which is not a pre-existing disease even as per the records, the Insurance Company can not dispute the claim by giving another interpretation on the nature of the disease. It further observed that “the authority cannot read something more into the terms and conditions of the policy and come to the inference that one disease is relatable to other disease and, therefore, mediclaim is rejected.” It also observed that “under the terms of the Medi claim Policy, interpretation of a particular disease is not permissible. No addition or deletion by way of interpretation can be done, which is what has happened in the present case”. Observing so, the Hon’ble Madras High Court went on to direct the Respondent Insurance Company to honour the policy and accordingly, directed the Insurance Company to pay the amount due to the appellant/Writ Petitioner under the above said Medical Claim Policy as per law.”
18. To sum up, the allegation of the Insurance Company that the complainant was suffering from Hypertension and Ischemic heart disease prior to obtaining the policy measurably fails, as it could not produce any clinching evidence to prove its accrual prior to taking the policy. Now, as regards the alleged suppression of 5 years history of Diabetese Mellitus as appearing in the prescription dated 29/6/2017 issued by Dr.Bisne is concerned, there is no other medical document to prove any such history of the said disease. Even if, for the sake of argument, it is assumed that the insured/complainant failed to disclose the existence of said ailment while filling the proposal for insurance, we don’t see it as a ground for the OP to repudiate the insurance claim in hand as it relates to treatment of coronary artery disease which has no direct bearing with the ailment Diabetes Mellitus and the law laid down by Hon’ble Madras High Court in the matter supra makes it crystal clear that the reimbursement claim of the complainant came to be repudiated by the OP Insurance company on flimsy grounds and preexisting diabetes has no bearing or nexus with Coronary Artery Disease for which the complainant underwent CABG (coronary artery bypass grafting) treatment. Further, Hon’ble Apex Court, in Civil Appeal No.8245/2015 (Arising out of SLP ©13589/2015) in the matter of Sulbha Prakash Motegaonkar And ors. Vs. LIC of India held that non-disclosure of ailment of Lumbar Spondylitis with PID with sciatica at the time of filing up of the proposal form would not be a ground available for repudiation of insurance claim arising out of death of the insured due to Ischemic Heart Disease. The Hon’ble Supreme Court observed that it is not the case of the insurance company that the ailment, that the deceased was suffering from, was a life threatening disease which could or did cause the death of the insured. In the matter in hand, too, it is not the case of the OP insurance company that the alleged Diabetes Mellitus, the preexistence of which is allegedly suppressed by the complainant, has a direct nexus with his Coronary Artery Disease for which the complainant had to undergo CABG (coronary artery bypass grafting) treatment. From the above facts of the case, we have come to the conclusion that the OP No.1 insurance company indulged into Unfair Trade Practice as it has repudiated the claim of the complainant on flimsy grounds and misconception and as such also has rendered deficient service to the complainant. The complainant has suffered monetary loss and also mental harrassment due to the wrongful repudiation of his claim by OP No.1 for which the complainant is entitled to be adequately compensated.
19. The complainant has claimed reimbursement of Rs.3,46,600/- towards medical expenses incurred by him. However, when we adverted to the Bill dated 14/7/2017 issued by the Appollo Hospital Hyderabad, we noticed that an amount of Rs.3,46,600/-was deposited by the complainant as advance with the hospital, however, a bill of Rs.2,92,666/- was charged by the said hospital towards the treatment and the balance Rs.53,934/- are shown as amount to be refunded. As such the complainant is entitled for reimbursement of his medical expenses to the extent of Rs.2,92,666/- under his health insurance claim which the OP No.1 is liable to pay to the complainant. Further, the complainant has suffered mental and physical harrassment on which count, the complainant is entitled to get compensation which we quantify at Rs.10,000/-. He also has to incur cost of litigation for which the complainant is entitled to get Rs.10,000/-.
As to issue No.4
20. In view of our observation to the issue No.1 to 3, we pass the following
Final order
1. The Complaint No.57/2019 is partly allowed as against OP No.1 Insurance Company.
2. The complaint as against OP No.2 Bank stands dismissed.
3. The OP No.1 is directed to pay to the complainant an amount of Rs.2,92,666/- towards reimbursement of his medical expenses under the health insurance policy claim.
4. The OP No.1 is further directed to pay to the complainant an amount of Rs.10,000/- towards compensation for mental harassment and further Rs.10,000/- towards cost of litigation.
5. Copy of the order be furnished to both the parties free of cost.
(Smt.Kalpana Jangade (Kute) (Smt.Kirti Vaidya (Gadgil) (Shri.Atul D.Alsi)
Member Member President
