IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 24th day of November, 2023
Present: Sri.Manulal.V.S, President
Smt.Bindhu.R, Member
Sri.K.M.Anto, Member
CC No.235/2022 (Filed on 04/11/2022)
Complainant : Anil V.M S/o Madhavan,
Vettukelpurathu House,
Thidanadu P.O,
Kottayam – 686 123.
(By Adv: C.S. Bissimon)
Vs.
Opposite party : Cholamandalam MS General Insurance
Company Ltd.,
Regd. Office, 2nd Floor,
Bare House, 2 NSE Bose Road,
Chennai,
Represented by its Branch Manager,
Cholamandalam MS General Insurance
Company Ltd.,
2nd Floor, ACEL Estate No.40/856,
Iyattil Junction, Chittoor Road,
Ernakulam P.O.
(By Adv: Agi Joseph)
O R D E R
Sri.Manulal.V.S, President
The complaint is filed under Section 35 of the Consumer Protection Act 2019.
The crux of the complaint is as follows:
On 1/11/2021 the complainant took an Accident and Health Insurance policy from the opposite party. In the year 2018 complainant took Health Insurance policy from the Star Health Insurance Company Limited. In 2020 the respondent company authorities canvassed the complainant and ported him from star health insurance to opposite party company. In the year of 2021 the complainant renewed his health insurance policy from 1/11/2021 to 31/10/2022. The complainant applied policy for an amount of Rs.5 lakhs only, but the opposite party company issued policy for sum assured of Rs.7,50,000/-. The additional Rs.2,50,000/- included in the policy is the no claim bonus accrued from 2018 to 2021. The complainant was diagnosed with Prostatitis from Mar Seelva Medicity, Palai on 2/05/2022 and admitted in that hospital on 2/05/2022 and discharged on 6/05/2022.
As the condition of the complainant got severe, a referral was made to Lourdes Hospital Post Graduate Institute of Medical Science & Research, Ernakulam and he got admitted there on 20/05/2022. After medical examination surgery was carried out. The complainant was treated there as an inpatient till 31/05/2022. For his treatment complainant remitted Rs.14,878/- in Mar Sleeva Hospital and Rs.69,923/- in Lourdes Hospital. In addition to that the complainant had spent Rs.50,000/- as other expenses including bystander expenses. The complainant lodged a claim for the expenses incurred by him but the opposite party repudiated the claim. It is averred in the complaint that no specific exclusion clause is included in the policy document. The opposite party in their repudiation letter stated that complainant’s treatment is excluded in the policy for 24 months from the policy inception. According to the complainant he was a policy holder of star health insurance from 2018 to 2020 and from 2020 to 2022. Thus for the last 48 months complainant has been a health insurance policy holder. It is further alleged in the complaint that the reason stated in the rejection letter is not mentioned in the policy certificate and the complainant submitted that the conditions that are not specifically printed on the policy certificate cannot be raised subsequently by an insurance company for the repudiation. It is alleged in the complaint that the deliberate denial of the policy coverage to a set of diseases which were not expressly excluded under the policy amounts to unfair contracts and unfair trade practice. Hence this complaint is filed by the complainant praying for an order to direct the opposite party to pay Rs.84,801/- and to pay an amount of Rs.1,00,000/- as compensation along with Rs.20,000/- as cost of the litigation.
Upon notice from this Commission opposite party appeared before the Commission and filed version contending as follows:
The opposite party and Star Health insurance company are two different entities and the contract between the complainant and Star Health insurance company are not bound to the opposite party. The policy availed from the Star Health Insurance company cannot be treated as continuing policy.
The complainant availed the policy on 1/10/2020 for the period from 1/10/2020 to 30/09/2021. The policy is renewed for the period from 1/11/2021 to 31/10/2022 for floater sum insured of Rs.7,50,000/-. There is no continuation of policy for the petitioner even in opposite party company. For getting the benefit of the continuing policy, policy taken from opposite party can only be considered. The no claim bonus for the second year was given in consideration of the no claim of the policy availed by the complainant from opposite party with effect from 1/10/2020 and not from the policy availed by the complainant from star health insurance company.
Complainant availed treatment for acute Prostatitis. He was allegedly diagnosed with bladder neck obstruction and underwent cystoscopy for hard mass from prostate in Lourdes Hospital. The said treatment is excluded for the first 24 months of continuous coverage after the date of inception of the first policy with opposite party. Hence the claim is inadmissible as per waiting period clause 5a.ii(a) of the wording of the policy.
The complainant has not spent Rs.14,878/- in Mar Sleeva Hospital and Rs.69,923/- in Lourdes hospital as alleged in the complaint. It is specifically stated in the policy condition that 24 months exclusion for the listed diseases from the date of inception of the first policy with opposite party. There is no deficiency in service on the part of the opposite party.
Complainant filed proof affidavit in lieu of chief examination and marked Exhibits A1 to A4. Manjusha.V, Deputy Manager(Claims) of the opposite party filed proof affidavit in lieu of chief examination and marked Exhibits B1 to B4.
On evaluation of complaint, version and evidence on record we would like to consider the following points :
(1) Whether there is any deficiency in service for unfair trade practice on the part of the opposite party?
(2) If so, what are the reliefs and cost?
For the sake of convenience we would like to consider Point Nos.1 and 2 together.
POINTS 1 & 2 :-
The complainant had availed flexi health insurance policy from the opposite party vide policy No.2890/00031310/000/01 for the period of 1/10/2020 to 30/09/2021. The opposite party produced policy along with policy documents and the same is marked as Ext.B1. The said policy was renewed by the complainant for the period from 1/11/2021 to 31/10/2022 vide Exhibit B2 policy. Ext.A4(series) proves that the complainant had availed a family health optima insurance policy from Star Health and Allied Insurance Company Limited from 4/10/2018 to 3/10/2020. The complainant and his family members were the insured persons under Exts.B1 and B2 policies.
Ext.A1 discharge summary proves that the complainant was diagnosed with Prostatitis at Mar Sleeva Medicity Hospital, Palai on 02/05/2022 and admitted to the hospital on 2/05/2022, and discharged on 6/05/2022. Thereafter, the complainant was treated at Lourdes Hospital, Post Graduate Institute of Medical Science & Research in Ernakulam, where he was admitted on 20/05/2022. Exhibit A2 proves that he was diagnosed with bladder neck obstruction and underwent Cystoscopy+BNR+truct biopsy for hard mass from prostrate under SA on 23/05/2022 and discharged on 31/05/2022.
According to the complainant, for the treatment he paid Rs.14,878/- at Mar Sleeva Hospital and Rs.69,923/- at Lourdes Hospital and incurred Rs.50,000/- as other expenses, including bystander expenses. Despite lodging a claim for these expenses, the opposite party repudiated the claim vide Exhibit A3.
On perusal of Ext.A3 we can see that it is the present treatment bladder neck obstruction, benign prostrate hypertrophy is extruded in the policy for 24 months from the policy inception hence the claim is inadmissible as per the specific waiting period clause 5.a.ii.(i).
The complainant deposed in the affidavit that he had ported the policy from the Star Health Insurance Company to the opposite party on believing the representation made by the officials of the opposite party that they will issue the policy in continuation of the policy which he had with the Star Health Insurance Company. On the other hand the opposite party contented that the policy is not a continuous policy. The guidelines of the IRDA dated 09/09/2011 is a detailed portability guideline. According to this guideline, “portability means the right accorded to an individual health insurance policy holder (including family cover) to transfer the credit gained by the insured for pre-existing conditions and time bound exclusions if the policy holder chooses to switch from one insurer to another insurer or from one plan to another plan of the same insurer, provided the previous policy has been maintained without any break”. As per Clause 3 of the IRDA guidelines, the policy holder should apply to the new insurance company at least 45 days before the premium renewal date of existing policy for porting the policy. The Clause 5 of the guidelines says that the policy holder should fill the portability form along with the proposal form and submit the same to the insurance company. Though the complainant deposed in the affidavit that he had availed the insurance policy from transferring his existing policy, he neither produced the portability form nor deposed in the affidavit that he had submitted the portability form along with the proposal form. It is stated in the Clause 3 (1) of the IRDA guidelines that the insurer may not be liable to offer the portability of the policy, if the policy holder fails to approach the new insurer at least 45 days before the date of renewal of the existing policy. Therefore, we can consider the policy availed by the complainant from the opposite party as a fresh policy.
As per the clause 5.a.ii.(i) of terms and conditions of the policy which is Ext.B3, the expense for the treatment of the expenses listed conditions, surgeries/treatments shall be excluded until the expiry of first 24 months of continuous coverage after the date of inception of the first policy with the company. On going through the list of specific diseases we can see that Benign Prostatic Hypertrophy is included as item number d. The opposite party vehemently contended that the ailment acute Prostatitis and the blander neck obstruction is the same element benign prostatic hypertrophy which is included in the specific list.
On going through the 19th edition of Harrisons principles of internal medicine we can see that benign prosthetic hypertrophy is a pathological process that contributes to the development of lower urinary tract symptoms in men. Such symptoms arising from lower urinary tract dysfunction are further subdivided into obstructive symptoms (urinary hesitancy, straining weak stream, terminal dribbling, prolonged voiding, incomplete emptying) and irritative symptoms( Urinary frequency, urgency, nocturia, urge incontinence, small voided volumes). Lower urinary tract symptoms and other sequelae of BPH are not just due to mass effect, but are also likely due to a combination of the prosthetic enlargement and age-related detrusor dysfunction.
In the same journal the prosthetics is stated as includes both infectious and non-infectious abnormalities of the prostrate gland, infection can be acute or chronic are almost always bacterial in nature and are far less common than the non- infectious entity chronic pelvic pain syndrome.
Hence while BPH is a common cause of bladder neck obstruction, not all cases of BPH lead to bladder neck obstruction. Also, bladder neck obstruction can be caused by factors other than an enlarged prostate. Both conditions can cause urinary difficulties, and sometimes the symptoms overlap. However, they are not identical, as bladder neck obstruction can have causes other than prostate enlargement.
Therefore we are of the opinion that the exclusion clause of the terms and conditions of the policy which is relied by the opposite party to repudiate the claim of the complainant is not applicable in this case.
In the case of Manmohan Nanda versus United India Insurance Company Limited and another, the Hon’ble Supreme Court of India has held that the object of seeking medicine policy is to seek indemnification in respect of a sudden illness or sickness which is not expected or imminent and which may occur overseas. If the insured suffers a sudden sickness or ailment which is not explicitly excluded under the policy a duty is cast on the insurer to indemnify the appellant for the expenses incurred there under.
In Omprakash Ahuja Vs Reliance General Insurance Company Ltd(2023(5) KLT S N 24) Hon’ble Court has held that once there is a valid insurance policy available in favour of the claimant the claim made by him for reimbursement of the expenses incurred is justifiable and deserves to be paid to him.
Based on the above discussions we are of the opinion that by repudiating the claim of the complainant contrary to the terms and conditions of the policy opposite party has committed deficiency in service. Though the complainant claimed an amount of Rs.84,801/- from the opposite party towards the total treatment expenses he did not adduce any evidence to support his claim. Therefore we are not able to quantify the expense incurred by the complainant for his treatment. No doubt the complainant had incurred some expenses for his treatment at two different hospitals for the ailments suffered by him. Under the contract of insurance the opposite party is bound to indemnify the complainant for the expenses incurred by him. Due to the act of the deficiency in service on the part of the opposite party the complainant had suffered much sufferings.
Considering the nature and circumstances of the case we allow this complaint in part and pass the following order.
We hereby direct the opposite party to process the claim of the complainant as per the terms and conditions of the policy and to reimburse the admissible treatment expenses to the complainant within 30 days from the date of receipt of copy of this order.
We hereby direct the opposite party to pay Rs.25,000/- (Rupees Twenty Five Thousand only) as compensation to the complainant for the deficiency in service on the part of the opposite party.
We hereby direct the opposite party to pay Rs.3,500/-(Rupees Three Thousand and Five Hundred only) as the cost of this litigation.
The order shall be complied within 30 days from the date of receipt of copy of this order failing which the compensation amount shall carry 9% interest per annum from the date of this order till the date of realisation.
Pronounced in the Open Commission on this the 24th day of November, 2023
Sri.Manulal.V.S, President Sd/-
Smt.Bindhu.R, Member Sd/-
Sri.K.M.Anto, Member Sd/-
APPENDIX :
Exhibits from the side of the Complainant :
A1 - Copy of Discharge Summary dated 06/05/2022 issued
from Mar Sleeva Medicity, Palai
A2 - Copy of Discharge Summary dated 31/05/2022 issued
from Lourdes Hospital, Ernakulam
A3 - Copy of Repudiation letter dated 30/07/2022 issued by the
opposite party
A4 - Copy of Policy No.P/181113/01/2019/004331 for the period
from 04/10/2018 to 03/10/2019 issued by Star Health &
Allied Insurance Company Limited
A4(a) - Copy of renewed Policy No.P/181113/01/2019/004331 for the
period from 04/10/2019 to 03/10/2020 issued by Star Health &
Allied Insurance Company Limited
Exhibits from the side of Opposite party :
B1 - Copy of Policy No.2890/00031310/000/00 for the period
1/10/2020 to 30/09/2021
B2 - Copy of Renewed Policy No.2890/00031310/000/01 for the
period 1/11/2021 to 31/10/2022
B3 - Copy of Flexi Health policy wordings
B4 - Copy of Repudiation letter dated 30/07/2022 issued by the
opposite party
By Order,
Sd/-
Assistant Registrar
