IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Thursday the 23rd day of September, 2021.
Filed on 27-04-2018
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. P.R Sholy, B.A.L,LLB (Member)
In
CC/No.109/2018
between
Complainant:- Opposite parties:-
Sri.Varghese Mathew 1. Cigna TTK Health Insurance Co.Ltd.
Ettuparayil Kallelil Veedu Branch Office, 7th Floor,
Idanadu P.O. Mathewsons Centre Point
Puthenkavu, Chengannur- 689123 Mamangalam, Cochin-682025
(Adv. Sri. Koshi Thomas) (Adv. Sri. Saji Isaac.K.J)
2. Dr.Anand
Junior Consultant
KIMS Healthcare Management Ltd. P.B.No.1, Anayara P.O.
Trivandrum -695029 (Adv. Sri. Suresh Kumar)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
Material averments briefly stated are as follows:-
On 12.06.15 complainant availed an insurance policy from the first opposite party M/s Cigna TTK Health Insurance Company Ltd. as policy No.PROHLT 150003256. During the 1st year he paid an
amount of Rs.1,10,007.62/- (91673+ 18334.62) and Rs.89753.55/- each during the 2 consecutive years. Complainant had a medical examination in the hospital directed by the 1st opposite party and it was found that he is having benign prostatic hyperplasia and blood pressure. So he was directed to pay Rs.18,334.62/- as extra premium for the 1st year and it was paid.
2. On 31.01.2018 complainant was admitted at KIMS hospital and on 01.02.2018 undergone a surgery for benign prostatic hyperplasia and was discharged on 06.02.18. Complainant filed a claim petition along with necessary documents for Rs.118767/- and it was denied. The denial and cancellation of policy was on the basis of medical certificate issued by a junior doctor. Complainant had no previous illness and is visiting the hospital for the 1st time. Though there was no previous records false information was given to the insurance company. Thereafter senior doctor issued a certificate stating that the junior doctor made a mistake in issuing the certificate. On the basis of the letter issued by the 2nd opposite party the claim of the complainant was repudiated. 2nd opposite party issued a certificate to help a 1st opposite party. Hence there was deficiency of service from the part of 1st opposite party and so the legally entitled mediclaim may be allowed and the cancelled policy may be restored.
3. 1st opposite party filed a version mainly contenting as follows:-
The complaint is not maintainable and it is an abuse of process of law. The averment that complainant had incurred an expense of 1,18,767/- towards medical expense is false. The averment that complainant was not suffering from any pre-existing disease is false and hence denied. The averment that complainant had forwarded a letter from a senior doctor to the 1st opposite party is false.
4. The complainant had availed the Cigna TTK Pro Health Preferred Insurance Policy from 1st opposite party and had willfully withheld material information at the time of taking the policy. The policy had coverage up to 05.09.18. The insured was a known case of diabetes mellitus since 10 years, hyper tension and benign prostatic hyperplasia. While submitting the proposal form, the complainant had willfully suppressed the fact that he had been suffering from diabetes mellitus since the last 10 years and was under regular medication in order to obtain the policy. The pre-authorization form of the insured also states the fact that the insured had pre-existing ailments of diabetes mellitus, hypertension and benign prostatic hyperplasia.
5. In the discharge summary it is clearly mentioned that in the discharge diagnosis- BPH, diabetes mellitus and hypertension. The discharge summary also mentions that the complainant should continue medication for diabetes and hypertension as earlier. This proves that complainant was suffering from diabetes mellitus and hypertension and did not disclose the said ailments at the time of procuring the policy.
6. The policy was issued to the complainant based on the proposal form. The proposer had declared and warranted that the individuals proposed to be insured had not been suffering from diabetes or any pre-diabetic condition. The complainant had suppressed material facts and had also made declarations and hence the policy had become void ab initio. The complainant had suppressed material information which was vital in assessing the undertaking of risk by the 1st opposite party.
7. As per the conditions of the policy it shall be null and void and no benefit shall be payable in the event of untrue or incorrect statements, misrepresentation, misdescription or non disclosure of any material particulars in the proposal form, personal statement, declaration, claim form declaration, medical history on the claim form and connected documents, or any material information having been withheld by the insured. The insured further understands and agreed that the 1st opposite party may at its sole discretion cancel the policy and the premium shall be forfeited to the 1st opposite party. The complainant had willfully withheld material information pertaining to his pre existing medical condition and the company had rejected the claim under clause VIII 1. The complainant is not entitled for any amount and there is no deficiency of service and unfair trade practice on the part of this opposite party. Hence the complaint may be dismissed with cost.
8. 2nd opposite party filed a version mainly contenting as follows:-
This opposite party is doing 2nd year DNB in Urology from KIMS hospital and is not a junior consultant. Complainant was admitted under the care of Dr.Vikraman, senior consultant urology department on 31.01.2018. The complainant had presented with obstructive voiding symptoms of seven months duration and was diagnosed case of benign prostatic hyperplasia on medical management. The patient did not have relief in symptoms and advised TURP. On admission while the history of the patient was recorded, he mentioned about having diabetes and also mentioned about being treated for the same from a different doctor.
9. The patient had insurance from cigna TTK, Cochin. After admission a form was required to be filled before the surgery with a specific column for the duration of diabetic mellitus. Patient told that he was diabetic since 10 years which was mentioned in the insurance form. The anesthesiologist in their chart had also mentioned about the same. The onus of proving the duration of diabetics lies on the patient as he mentioned about 3 different terms to 3 different doctors. 2nd opposite party filed an additional version more or less with similar contentions. He contended that he has not rendered any services to the complainant and he has not committed any deficiency in such service.
10. On the above pleadings following points were raised for consideration :-
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether there was suppression of material fact at the time of availing the medi claim policy from the part of complainant?
- Whether the complainant is entitled to realize an amount of Rs. 1,18,767/- being the insurance claim as prayed for?
- Whether the complainant is entitled to get an order to restore the cancelled mediclaim policy?
- Reliefs and costs?
11. Evidence in this case consists of the oral evidence of PW1 and PW2 and Exts.A1 to A6 from the side of the complainant. Opposite parties have not adduced any evidence. Ext.B1 to B3 were marked from the side of 1st opposite party. X1 to X3 and X1a treatment records were also marked.
12. Point Nos.1 to 4:-
For the sake of convenience these points are considered together. PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A6.
13. PW2 is working at KIMS hospital as head of the department of urology from 2002 onwards. On 01.02.2018 he examined Varghese Mathew aged 65 (PW1) and advised surgery. On 06.02.18 he issued Ext.A2 certificate Dr.Anand Dilip Vakade (OP2) was working there as junior doctor and he had also examined the patient. As per Ext.A3 patient had diabetes for the last 2 years. As per Ext.A3 insurance claim of PW1 cannot be rejected. Certificate was not issued by Dr.Anand for helping the insurance company.
14. On 12/6/2015 PW1, the complainant along with wife availed a mediclaim policy (ProHealth-Preferred) from the 1st opposite party. Initially it was for a period of one year and the same was extended for another year. Again the same was extended for the 3rd year. From Ext.A1 and Ext.B3 which are the policy document it is seen that Rs. 87,349.50ps/- (wrongly shown as Rs.89,753.55ps/- in the complaint as well as in the chief affidavit) was paid as premium. The policy was valid from 6/9/2017 to 5/9/2018. The first two years were uneventful and during the 3rd year PW1 had to undergo a surgery for the prostate. On 31/1/2018 he was admitted as KIMS hospital, Trivandrum, on 1/2/2018 the surgery (TURP) was conducted and on 6/2/2018 he was discharged. He filed a claim petition before the 1st opposite party for Rs.1,18,767/- being the bill amount of M/s KIMS Hospital. However the claim was repudiated on a contention that PW1 had certain previous illness and suppressing the same the mediclaim was taken and hence he is not entitled for the benefit. The policy was also cancelled by the 1st opposite party. Dissatisfied with the conduct of 1st opposite party this complaint is filed claiming the amount and for giving a direction to restore the policy which was cancelled. 1st opposite party filed a version admitting the policy. However according to them the insured was a known case of diabetes mellitus since 10 years, hypertension and benign prostatic hyperplasia. While submitting the proposal form, the complainant had willfully suppressed the fact that he had been suffering from diabetes mellitus since the last 10 years and was under regular medication in order to obtain the policy. Since the complainant had suppressed material information which was vital assessing the undertaking of risk by the 1st opposite party, they are entitled to repudiate the claim under Clause VIII 1. General Terms and Conditions.
15. 2nd opposite party who was working as a doctor attached M/s KIMS Hospital filed a version contenting that he had written in the chart that the patient is suffering from Diabetes Mellitus on the basis of information furnished by him. He was conducting DNB in Urology at M/s KIMS Hospital. According to him the Anesthesiologist also mentioned the same and there was no mistake from his part and so he pleaded to remove from the party array. He filed an additional version contenting that complainant is not a customer of 2nd opposite party and so he is to be struck down from the party array. Complainant got examined as PW1 and Ext.A1 to A6 were marked. During his cross examination Ext.X1 to X3 and Ext.X1 (a) treatment records of M/s KIMS Hospital and Ext.B1 to B3 policy documents were marked. Head of the Department of Urology M/s KIMS Hospital was examined as PW2. 1st opposite party did not adduced any oral evidence except marking Ext.B1 to B3. 2nd opposite party though filed a version and additional version was not available during trial. Registered notice returned with report that he has left.
16. The fact that PW1 along with his wife had availed a mediclaim policy issued by the 1st opposite party is not in dispute. According to complainant initially the policy was taken on 12/6/2015 for a period of one year. During the 1st year he paid Rs.1,10,007.62ps/-.The premium for the 1st year was Rs.91,673/-. However as per the direction of the 1st opposite party he had undergone a medical examination and Ext.B1 is the Medical Examination Report Form dated.21/8/2015. It was noticed that PW1 is having hypertension and that he is under medication of Tab. Lozar 50 mg daily. Considering the said fact he was asked to pay an additional premium of Rs.18,334.62ps/-. The policy was renewed for the 2nd year and for the 3rd year ie, from 6/9/2017 to 5/9/2018. The case of PW1 is that on 31/1/2018 he got admitted at M/s KIMS Hospital, Trivandrum and on 1/2/2018 had under gone a surgery for Benign Prostatic Hyperplasia (TURP) and was discharged on 6/2/2018. The bill amount of M/s KIMS Hospital was Rs.1,18,767/- and his claim was repudiated mainly contenting that the policy was taken concealing material facts of the disease of Diabetes Mellitus(DM). Complainant filed proof affidavit on 19/3/2021 in which Ext.A2 to A11 was marked. However it is noticed that only Ext.A1 to A6 were produced by the complainant. It is noticed that the vital document ie, repudiation letter which is marked as Ext.A8 in the affidavit was not produced. Similarly Ext.A2 is the details of bank account of M/s KIMS Hospital. It is not relevant in this case. So vital documents are not produced whereas irrelevant documents are marked. Since 1st opposite party admitted that they repudiated the claim the non production of repudiation letter is of no consequence.
17. The contention taken by 1st opposite party in repudiating the claim is that the patient had DM(Diabetes Mellitus) and it was suppressed at the time of taking policy. The learned counsel appearing for 1st opposite party relied upon Ext.X1 series to X3 series the treatment records of M/s KIMS Hospital, Trivandrum and Ext.X1(a) to prove the suppression. Ext.X1(a) is the Pre anesthesia evaluation of PW1. In Ext.X1 (a) it is written that DM(Diabetes Mellitus) 12 years – on OHD. Similarly in Parge Nos. 1, 14, 17, 24, 31 and 34 of Ext.X3 it is written as CO-MORBIDITIES ‘HTN’(Hyper Tension) and DM (Diabetes Mellitus). Hence according to the learned counsel appearing for the 1st opposite party the insurance company was justified in repudiating the claim. Per contra the learned counsel appearing for the complainant relied upon the oral evidence of PW2 and Ext.A3 certificate issued by PW2 and pointed out that the patient was suffering from diabetes only for the last 2 years. The policy was taken as early on 12/6/2015 and Ext.A3 certificate is dated 6/2/2018. So PW1 was not aware regarding the disease of Diabetes Mellitus at the time of availing the policy. It was contented that since PW1 was suffering from Hypertension which is seen from Ext. B1 examination report, additional amount of Rs. 18,334.62ps/- was collected from him. PW2 is the Head of the Department of Urology of M/s KIMS Hospital, Trivandrum. He admitted PW1 and treated him. Ext.A3 is the certificate issued by PW2 with reads as follows:- “ This is for your kind information that Mr. Varghese Mathew, 65 years old male is a diabetic and hypertensive since two years only. There was a communication error previously.” It is seen that Dr. Anand Dilip Vakade who is the 2nd opposite party in this case was doing DNB in the same department. While writing the history he had written that patient is suffering from DM(Diabetes Mellitus) for the last 10 years. During cross examination PW2 stated that the information given in Ext.A3 certificate is gathered from the patient. According to learned counsel appearing for complainant since at the time taking insurance policy during 2015 PW1 was not having diabetes mellitus which is also confirmed from Ext.A3 certificate repudiation of policy is not justified.
18. Ext.B1 is the Medical Examination Report Form of PW1 issued on 21/8/2015 while availing the policy for the 1st time. It was disclosed that he is suffering from hypertension. The name of tablet Lozar 50 mg daily is also mentioned in Ext.B1. The name of tablet can be disclosed only by PW1. So it can be seen that at the time of examination PW1 deposed that he was having hypertension and paid extra premium of Rs. 18,334.62Ps./-. If he had diabetes mellitus at the time of Ext.B1 definitely he would disclose the same. Ext.X1(a) is relied by the learned counsel appearing for the 1st opposite party to show that it is written by for the last 12 years PW1 had DM(Diabetes Melliuts). But it is noticed that in Ext.X1(a) at the column of current medication only Lozar 50 is shown. If PW1 is suffering from diabetes mellitus for the last 12 years definitely he will be under medication and the name of medicine will find a place at the column of current medication. It is to be remembered that Ext.X1 (a) is a Pre Anesthesia Evaluation and definitely the name of medicine used by PW1 will find a place in Ext.X1 (a). Since it is conspicuously absent it appears that the contention of PW1 that he was not having diabetes mellitus at the time of availing the policy is more probable. As discussed earlier in Ext.X3 series in several pages it is written as CO-MORBIDITIES, HTN, DM. But it is to be noted that it is from 1/2/2018 to 5/2/2018. PW1 took the policy for the 1st time on 12/6/2015. So mentioning of HTN and DM on 1/2/2018 to 5/2/2018 is of no consequences since it is after 2 years.
19. While canvassing dismissal of the complainant learned counsel appearing for the 1st opposite party relied upon the Ruling of the Hon’ble Supreme Court reported in Satwant Kaur Sandhu Vs. New India Assurance Company Ltd ( 2009 KHC 4898), Export Credit Guarantee Corporation of India Ltd. Vs. M/s Garg Sons International (2013 KHC 4040), Reliance Life Insurance Co. Ltd and Another Vs. Rekhaben Nareshbhai (2019 KHC 6482) and Branch Manager, Bajaj Allianz Life Insurance Company Ltd and others Vs. Dalbir Kaur (2020 SCC online SC 848). We have no quarrel on these propositions since it is the law of the land.
In 2009 KHC 4898 it was observed
“Health Insurance – information on a specific aspect is asked for in the proposal form – Assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge.”
In 2013 KHC 4040 it was held
“Insurance claims - Rule of strict interpretation - Held, terms of insurance policy have to be strictly construed in order to determine the extent of the liability of the insurer – It is not permissible for the Court to substitute terms of the contract itself, under the garb of construing terms incorporated in the agreement of insurance”.
In 2019 KHC 6482 it was held
“The expression “material” in the context of an insurance policy can be defined as any contingency or event that may have an impact upon the risk appetite or willingness of the insurer to provide insurance cover.”
20. However on reading of the rulings referred above relied upon by the learned counsel appearing for the 1st opposite party it is seen that the facts in this case are different. It was held by the Hon’ble Supreme Court in 2007 (4) KLT SN 33 (C. No.34) SC [Sumathibhai Vs. Paras Finance Co.]
“Precedents – A decision is only an authority for what it actually decides – A little difference in facts or additional facts may make a lot of difference in precedential value of a decision.”
21 Here the allegation of 1st opposite party is that the fact that PW1 is having diabetes mellitus was not disclosed in the proposal form and so there was suppression of material facts. In the case considered by the Hon’ble Supreme Court in 2020 SCC online SC 848, the deceased was suffering from Hepatitis C and was undergoing medication for the same. It was observed by the Supreme Court
“ The medical records which have been obtained during the course of the investigation clearly indicated that the deceased was suffering from a serious pre-existing medical condition which was not disclosed to the insurer. In fact, the deceased was hospitalized to undergo treatment for such condition in proximity to the date of his death, which was also not disclosed in spite of the specific queries relating to any ailment, hospitalization or treatment under gone by the proposer in Column 22 of the policy proposal form.”
22. Here in this case the facts are different. PW1 and his wife took the policy on 12/6/2015 and the amount collected from him is Rs.1,10,007.62ps/- from the 1st year and Rs. 87,349.50ps/- each for the next 2 years. On the basis of Ext.B1 Medical Examination Report Form he was asked to pay Rs. 18,334.62ps/- additionally since he was having hyper tension and was under medication. However regarding diabetes mellitus there was no mention. It came out from the certificate issued by 2nd opposite party. In the version 2nd opposite party contented that it was disclosed by the complainant which was denied by him.
23. Admittedly from Ext.X1 series, X2 series, X3 series records and the oral evidence of Pw2 it can be seen that PW1 was examined and the surgery was conducted by PW2 Dr. K.R.Vikraman. Ext.A3 is the certificate issued by PW2 on 6/2/2018 stating that PW1 is diabetic and hypertensive since 2 years only. It is to be remembered that the policy was 1st taken on 12/6/2015 and Ext.A3 is dated 6/2/2018 ie, after 3 years. So at the time of taking medi claim during 2015 PW1 was not having Diabetes Mellitus which is supported by Ext.A3 certificate. As discussed earlier Ext.X3 series are for the period from 1/2/2018 to 6/2/2018 in which CO-MORBIDITIES is shown as HTN, and DM. Since the policy was taken during 2015 it is not possible for PW1 to disclose the same. However in Ext.X1 (a) Pre Anesthesia Evaluation though it is stated that PW1 is having Diabetes Mellitus for 12 years, the type of medicine which is used is not mentioned. This is to be read along with the fact that ‘Lozar 50’ which is used for hypertension is shown in current medication column. In other words the medicine used for Diabetes Mellitus is conspicuously absent in the column “current medication” in Ext.X1 (a). It is also an indication that at the time of availing mediclaim policy PW1 was not having Diabetes Mellitus and it was a later development. If PW1 is not aware regarding the disease he cannot be blamed for not disclosing the same. In said circumstances we are of the opinion that there is no suppression of fact at the time of availing mediclaim policy as contended by 1st opposite party and so PW1 is entitled to claim the amount and the 1st opposite party had no authority to repudiate the claim.
24. Since the claim was repudiated without sufficient reason there is deficiency of service from the part of 1st opposite party. Complainant has not claimed any compensation in the complaint. It is noticed that the complaint was filed directly and the legal assistance was obtained later. Though the complaint was amended once relief of compensation for deficiency of service is not seen incorporated. However considering the entire circumstances of the case we are of the opinion that complainant is entitled to realize an amount of Rs.20,000/- as compensation for deficiency of service, mental agony etc.. Though complainant has sought to restore the cancelled policy from the evidence on record it is seen that the policy expired on 5/9/2018 and so there is no question of ordering restoration of the policy. These points are found infavour of the complainant.
25. Point No.5:-
In the result complaint is allowed in part.
A) Complainant is allowed to realize an amount of Rs.1,18,767/-(Rupees One lakh eighteen thousand seven hundred and sixty seven only) along with interest at the rate of 9% from the date of complaint ie, on 27/4/2018 till realization from the 1st opposite party.
B) Complainant is allowed to realize an amount of Rs.20,000/-(Rupees Twenty thousand only) as compensation for deficiency of service from the 1st opposite party.
C) Complainant is allowed to realize an amount of Rs.3000/- (Rupees Three thousand only) as cost from the 1st opposite party.
The order shall be complied within one month from the date of receipt of the copy of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 23rd day of September, 2021.
Sd/- Sri.S.Santhosh Kumar(President)
Sd/-Smt. Sholy.P.R(Member)
Appendix:-Evidence of the complainant:-
PW1 - Varghese Mathew(Complainant)
PW2 - Dr. K.R.Vikraman(Witness)
Ext.A1 - Cigna TTK Health Insurance Policy
Ext.A2 - M/s KIMS Hospital Bank Account Details
Ext.A3 - Certificate issued by PW2
Ext.A4 - Discharge Summary
Ext.A5 - Laboratory Reports from Dept. of Laboratory
Ext.A6 - Biopsy Report
Ext.X1series - Treatment Records
Ext.X1 (a) - Pre Anesthesia Evaluation Report
Ext.X2 series - Laboratory Reports from Dept. of Laboratory
Ext.X3 series - KIMS Hospital Records
Evidence of the opposite parties:-
Ext.B1 - Copy of Medical Examination Report
Ext.B2 - Pro Health Insurance Proposal Form
Ext.B3 - Copy of Cigna TTK Health Insurance Policy
//True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
