IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated, the 30th day of March, 2023
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 311/2021 (Filed on 31-12-2021)
Petitioner : Mayadevi K.
Sundaresan A.N.
Dwaraka, Poonjar P.O
Kottayam – 686 581
(Adv.K.K. Venugopakumar)
Vs.
Opposite parties : Future General India Insurance
Solutions, 6th Floor Tower-3,
India… Finance Centre,
Senapati Hapat Marg,
Elphinstone Road, Mumbai,
Maharashtra state,
Rep. by its authorized officer
Pin – 400013.
(Adv. M.C. Suresh)
O R D E R
Sri. Manulal V.S. President
The case is filed under Section 35 of Consumer Protection Act, 2019
Crux of the complaint is as follows:
The complainant availed Corona Rakshak health insurance policy from the opposite party. The prospectus of the opposite party insurer describes the said policy as a single premium fixed benefit policy and offered lump sum benefit equal to 100 % of the sum assured is Rs.2,50,000/- if the insured person is diagnosed covid positive . On 5-5-2021 the complainant was diagnosed as covid positive. She was admitted at Mar Sleeva Medicity Hospital, Pala from 5-5-2021 to 18-5-2021. The complainant had spent Rs.52,785/- for the treatment. The opposite party repudiated the claim of the complainant stating that “the complainant was diabetic patient”. The opposite party illegally repudiated the genuine claim of the complainant. According to the complainant the act of the opposite party amounts to unfair trade practice and deficiency in service and she had suffered huge mental agony and hardship and financial loss due to the actions of the opposite party. Hence this complainant is filed by the complainant praying for an order to direct the opposite party to pay Rs.52,785/- and to direct the opposite party to pay compensation of Rs.25,000/ and Rs.10,000 s coat of this litigation.
Upon notice opposite party appeared before the commission and filed separate version.
Version of the first opposite party is as follows:
On receipt of proposal form and premium the opposite party issued the policy to the complainant vide policy number CRP-10-20-77022058-00-000 for a period from 18-8-2020 to 15-5-2021. The opposite party received a claim informing the insured was hospitalized from 8-5-2021 to 18-5-2021 for the treatment of Covid 19. As per discharge summary the complainant has pre-existing disease of Diabetics Type II. The complainant willfully concealed her medical history at the time of purchasing the policy. As per corona Raksak Policy guidelines the opposite party is liable to pay the sum assured to the complainant subject to the terms and conditions of the policy contract. According to the opposite party there was no deficiency in service or unfair trade practice on their side.
Complainant filed proof affidavit in lieu of chief examination and marked exhibit A1 to A4. Nithin Tawre who is the senior executive -legal of the opposite party filed proof affidavit and exhibit B1 to B6 marked from the side of the opposite party.
On evaluation of complaint, version and evidence on record we wold like to consider the following points.
- Whether there is any deficiency in service or unfair trade practice on the part of the opposite party?
- If so what are the reliefs and costs?
For the sake of convenience we would like to consider the point number 1 and 2 together.
Point No.1 and 2
There is no dispute on the facts that the complainant had availed a Corona Rakshak health insurance policy from the opposite party vide policy number CRP-10-20-77022058-00-000 for a period from 18-8-2020 to 15-5-2021 . On perusal of exhibit A1 policy we can see that the complainant, her husband and daughter were the insured persons and the sum assured for each persons were Rs.2,50,000/-. It is proved by Exhibit A3 discharge summary issued by Mar Sleeva Medicty pala that the complainantnt was admitted in the said hospital on 8-5-2021 when it was diagnosed that the complainant was Covid positive and discharged on 18-5-2021 when she became covid negative. On perusal of Exhibit A4which is the discharge bill issued on 18-5-2021 that the complainant had spent Rs.52,785/- for the treatment at hospital.
Complaint was resisted by the opposite party, stating that the complainant has pre-existing disease of Diabetics Type II and complainant willfully concealed her medical history at the time of purchasing the policy. On perusal of exhibit B5 repudiation letter we can see that the claim of the complainant was repudiated by the opposite party for the reason there was misrepresentation and non-disclosure of material facts.
On perusal of exhibit A3 we can see that final diagnoses was Covid pneumonia category c and Type II diabetics mellitus. It is further recorded in exhibit A3 that the complainant was a known case of type II diabetes.
The opposite party vide exhibit B5 repudiation letter relied on clause 3.5 of exhibit B6 policy wordings of the policy, which is reproduced hereunder ,
“3.5 disclosure to information norm: the policy shall be void and all premium paid thereon shall be forfeited to the company in the event of misrepresentation, mis-description or non -disclosure of any material fact by the policy holder”
The Hon'ble National Commission while dealing with a similar set of facts, in Sunil Kumar Sharma Vs. TATA AIG Life Insurance Company and Ors. bearing case no. RP no. 3557/2013 decided on 01.03.2021 held as under:-
14. Moreover the claim had been repudiated only on the ground that the insured was suffering from diabetes for a long time. So far as life style diseases like diabetes and high blood pressure are concerned, Hon'ble High Court of Delhi in Hari Om Agarwal Vs. Oriental Insurance Co. Ltd., W.P.(C) No. 656 of 2007, decided on 17.09.2007 held as under:
"Insurance-Mediclaim-Reimbursement-Present Petition filed for appropriate directions to respondent to reimburse expenses incurred by him for his medical treatment, in accordance with policy of insurance-Held, there is no dispute that diabetes was a condition at time of submission of proposal, so was hyper tension-
Petitioner was advised to undergo ECG, which he did-Insurer accepted proposal and issued cover note-It is universally known that hypertension and diabetes can lead to a host of ailments, such as stroke, cardiac disease, renal failure, liver complications depending upon varied factors-That implies that there is probability of such ailments, equally they can arise in non-diabetics or those without hypertension-It would be apparent that giving a textual effect to Clause 4.1 of policy would in most such cases render mediclaim cover meaningless-Policy would be reduced to a contract with no content, in event of happening of contingency-Therefore Clause 4.1 of policy cannot be allowed to override insurer's primary liability-Main purpose rule would have to be pressed into service-Insurer renewed policy after petitioner underwent CABG procedure-
Therefore refusal by insurer to process and reimburse petitioner's claim is arbitrary and unreasonable-As a state agency, it has to set standards of model behavior; its attitude here has displayed a contrary tendency-Therefore direction issued to respondent to process petitioner's claim, and ensure that he is reimbursed for procedure undergone by him according to claim lodged with it, within six weeks and petition allowed."
The onus of proving the fact that the insured had prior knowledge that he was suffering from fatal diseases and as such he deliberately suppressed these material facts at the time of filling up the proposal form was on the insurance company. Further, it was noted that, there was no evidence on record to show that the insured had knowledge that he was suffering from fatal diseases prior to taking the policy and there was inadequate evidence to support that he had deliberately suppressed his medical condition
On perusal of exhibit A3 which is the discharge summary issued by the duty medical officer on 29-9-2022 we can see that the complainant was treated there with oral medications.
On perusal of operative clause of B6 policy wordings we can see that, If during the policy period the Insured Person is diagnosed with COVID and hospitalized for more than seventy-two hours following Medical Advice of a duly qualified Medical Practitioner as per the norms specified by Ministry of Health and Family Welfare, Government of India, the Company shall pay the agreed sum insured towards the Coverage mentioned in the policy schedule. . On perusal of exhibits A3, we cannot see that the admission of the complainant was only for the purpose of investigation and for the evaluation of the ailment which he had. It is argued by the counsel for the complainant that he was treated as per the guidelines issued by the Ministry of Health and Family Welfare, Government of India, and Govt of Kerala at that time. It is pertinent to note that the opposite party has not produced any evidence to prove that the complainant has not treated with the guidelines and protocol which was issued by the Ministry of Health and Family Welfare, Government of India and government of Kerala at that time.
As per Clause 4.1 of the terms conditions of the policy COVID Cover is a Lump sum benefit equal to 100% of the Sum Insured shall be payable on positive diagnosis of COVID, requiring hospitalization for a minimum continuous period of 72 hours. The positive diagnosis of COVID shall be from a government authorized diagnostic centre. The payment will be made only on Hospitalization for a minimum continuous period of 72 hours following positive diagnosis for COVID.
Under such circumstance, we have to keep in mind very sound and salutary principle of "better protection of the right of the consumer" which is clearly stated in the preamble of Consumer Protection Act, 2019, and even if it is believed for the sake of argument that there was some inconsistency in reports, however, looking to the aforesaid hospital papers as we discussed, we are of the considered opinion that complainant was suffering from Covid-19 positive, hence repudiation is not sustainable.
Therefore, we hold that letter of repudiation dt.17-7-2021was passed against the principles of natural justice and fair play and very niggardly and hyper technical approach has been taken, with a myopic view of the opposite party in denying the claim amount. Therefore, we do not accept the ground stated in the letter of repudiations accordingly it cannot be acted upon. Thus, we are of the opinion that the said act of the opposite party amounts to deficiency in service and unfair trade practice.
In the result following final order is passed.
- The complainant is entitled to recover the amount of Rs.52,785/-from the opposite party with the interest at the rate of 9% p.a. from the date of the filing of this complaint till realization..
- The complainant is entitled to recover the amount of Rs.25,000/- (Rupees Twenty Five Thousand Only) under the head of mental pain and suffering from the opposite party
- The complainant is entitled to recover Rs.5,000/- from the opposite party as cost of this litigation.
Aforesaid all amount to be paid to the complainant within 30 (thirty) days from the date of receiving the copy of the order , in default the compensation amount will carry further 9% interest from the date of this order till realization.
Pronounced in the Open Commission on this the 30th day of March, 2023
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of opposite party
A1 – Copy of letter dtd.03-08-2020 issued by opposite party to complainant
A2 – Copy of discharge bill dtd.18-05-2021 by Mar Sleeva Medicity, Palai
A3 – Copy of discharge summary dtd.18-05-2021 by Mar Sleeva Medicity,
Palai
A4 – Copy of discharge bill dtd.18-05-2021 by Mar Sleeva Medicity, Palai
Exhibits marked from the side of opposite party
B1 – Copy of policy schedule
B2 – Copy of claim intimation form
B3 – Copy of proposal form
B4 – Copy of discharge summary and medical records
B5 - Claim repudiation letter dtd.17-07-2021
B6 – Copy of policy guidelines (Annexure OP 6)
By Order
Sd/-
Assistant Registrar
