IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated, the 31st day of May, 2023
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 95/2022 (Filed on 05-05-2022)
Petitioner : Boby Kuriakose,
S/o. Kuriakose,
Vazhayil House,
Nedukunnam P.O.
Kotayam.
Now residing at.
Vazhayil House,
Manarkad P.O.
Kottayam
(Adv. Sony K. Thomas)
Vs.
Opposite party : (1) Future Generali India Insurance
Co. Ltd. Off code 59,
2nd Floor, Urumbil Signature Towers
6/75 Kanjikuzhy, Kottayam – 686004
(Adv. M.C. Suresh and Adv. Shailja Singh)
O R D E R
Sri. Manulal V.S. President
Case of the complainant is that he is holding health insurance policy since 2018. He was a holder of the health insurance policy from Reliance health insurance Company for the period of 2018-2019 and from HDFC Ergo General Insurance company for the period 2019 to 2021. Due to the instigation of the agent of the opposite party he had ported his policy to the opposite party. It is averred in the complaint that at the time of porting the policy the second opposite party made him to believe that there the policy will be treated as a continuous one from the year 2019.
On 10-11-2021 the complainant underwent for Aortic Valve Replacement surgery at Caritas Hospital, Kottayam. The complainant had spent Rs.6,75,049/- for his treatment . The claim of the complainant was repudiated by the opposite party on 15-1-2022 stating that the ailment for which the complainant underwent for the treatment is pre-existing one. Thereafter the opposite party sent an email stating that they had canceled health insurance policy of the complainant. According to the complainant he had not any prior knowledge about the illness before which he underwent the treatment and he had not suppressed any material fact form the opposite party at the time of availing the policy. It is averred in the complaint that by repudiating the genuine claim of the complainant the opposite party had committed deficiency in service and unfair trade practice. So this complaint is filed for an order to direct the opposite party to pay Rs.3,00,000/- to the complainant along with a compensation of Rs.50,000/- and to direct the opposite party to revive the policy of the complainant.
Notice was duly served to the opposite party and the opposite party filed version contending as follows:
The complainant after understanding the terms and conditions of the policy named “Future Health Suraksha policy” had submitted the proposal form for himself and his family members including his spouse along with their two children. On the basis of the information furnished by the complainant, the opposite party issued the policy bearing no. FHR-59-7387236-00-000 with risk
commencement /effective date from 2-9-2021 valid upto 1-9-2022 the sum assured was Rs.3,00,000/- for each insured.
The opposite party received a claim intimation on 6-1-2022 for the complainant along with medical records to claim the sum insured under the policy post-treatment at Caritas Hospital due to alleged Valvular Heart Disease and in pursuance thereof was admitted at the hospital on 18-11-2021 and was discharged on 17-11-2021. On scrutiny of medical records the opposite party discovered that the complainant had already been suffering from complaint of severe aortic stenosis, AVN (AVascular Necrosis) operation in the year 2018, Appendicitis diagnosed in 1998, Hypertension for last 20 years and history of alcohol consumption. From this it is clear that the complainant has several medical conditions and underwent surgeries, still he chose to hide all of the details from the opposite party. The complainant in the proposal form under clumn-6 heading health questions , where he was required to disclose about his health at the time of taking the policy, blatantly misrepresented about his health by putting “NO’ to the questions. It is submitted in the version that the past medical history and surgeries are the crucial cause and early indication of his present illness and had the complainant revealed the same fact to the opposite party, there were high chances, the said policy might have never issued to the complainant or would have been issued with higher premium charges or some other kind of health policy covering his present illness.
The claim of the complainant is therefore based upon the non-disclosure of the pre-existing disease and surgeries he underwent in past. The complainant also breached clauses of guidelines and defrauded the opposite party by misrepresentation which has led to non-payment of claim. There is no deficiency in service or unfair trade practice on the part of the opposite party.
Complainant filed proof affidavit and exhibits a1 to A6 were marked from his side. No oral evidence from the side of the opposite party. Documents produced by the opposite party along with the version is marked as exhibit B1 to B6.
On evaluation of complaint, version and evidence on record we would 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.
There is no dispute on the fact that the complainant had had availed a “Future Health Suraksha policy” from the opposite party vide policy bearing no. FHR-59-7387236-00-000 with risk commencement /effective date from 2-9-2021 valid upto 1-9-2022.
On perusal of exhibit A1 policy we can see that the complainant, his wife Gisha Jose, and their children Daniel Stephen Kuriakose and Dennis Stephen Kuriakose were the insured persons and the sum assured was Rs.3,00,000/- for each insured.. It is proved by exhibit A3 that the complainant was treated at Caritas Hospital, the diagnosis was Bicuspid Aortic Valve, Severe Calcified aortic stenosis, mild to moderate AR and he underwent for Aortic valve replacement surgery on 10-11-2021. Exhibit A2 proves that the complainant was admitted at Caritas hospital on 8-11-2021 and discharged on 17-11-2021 and spent Rs.6,75,049/- for the treatment. The claim of the complaint was repudiated by the opposite party vide exhibit B6 on the ground that as per condition of the policy any pre-existing disease will be covered under the policy only after completion of 48 months continuous coverage.
The specific case of the complainant is that his policy is a ported policy and it has got a continuity right from 2019. In order to prove his case the complainant produced A6Health insurance policy Silver plan of HDFC Ergo General Insurance Company Policy certificate. On perusal of exhibit A6 we can see that the period of coverage of said policy was 2-9-2019 to 1-9-2020. It is further proved by exhibit A5that on 20-8-2021 the complainant had applied for the porting of the existing policy from the previous insurer to the opposite party.
AS per IRDA guidelines if a policyholder desirous of porting his/her policy to another insurance company shall apply to such insurance company to port the entire policy along with all the members of the family, if any, at least 45 days before, but not earlier than 60 days from the premium renewal date of his/ her existing policy. Here in case in hand it is evident that the complainant applied for
the porting of the policy only on 20-8-2021 ie not in accordance with the IRDA guidelines. Thus we are not inclined to accept the contention of the complainant that he had ported his existing policy to the opposite party and he had got a continuity right from 2019.
According to the opposite party the treatment for which the complainant undergone was a pre –existing disease. The opposite party relied on exhibit B4 which is the cardiology initial assessment record and treatment record from Caritas Hospital. On perusal of exhibit B3 we can see that it was recorded that the patient had a past history of AVN in 2018, appendicitis is diagnosed in 1998, hypertension 10 years. According to the opposite party as per terms and conditions of the policy the complainant is under bounden duty to disclose all preexisting disease/s, injury/disability before taking the policy.
The above referred records do not mention that the complainant disclosed any previous history of heart problem. Therefore, the only fact established by the
above records is that the petitioner prior to obtaining insurance policy was having history of AVN in 2018, appendicitis, hypertension. This, however, does not lead
to conclusion that complainant was also having previous history of heart problem.
Hon’ble National Commission in a case of M/s. Tata AIG General Insurance vs. Ms.Pooja Gupta decided on 19th January 2011 in para-7 wherein held as under:
7. ......
“The onus lies on the insurer to prove firstly that the insured knowingly concealed this material fact from the insurer and secondly that the pre-existing condition has nexus with the medical condition eventually suffered by the insured for which the claim has been raised”.
The Hon’ble Apex Court of India in Appeal (Civil) 4186-87/1988 in a Appeal No.963/2019 case of Life Insurance Corporation of India & Ors. Vs. Smt. Asha Goel & Anr. decided on 13th December 2000 wherein held on page- 5 (a) the statement must be on a material matter or must suppress facts which it was material to disclose; (b) the suppression must be fraudulently made by the policy holder; and (c) 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.
Thus from the above decisions of the Hon’ble Apex Court of India and Hon’ble National Commission, on facts of the case we are of the view that they are squarely applied to the case on hand considering policy terms and conditions coupled with evidence since opposite party failed to prove that the complainant / insured knowingly concealed the material facts from the insurer and that knowingly failed to disclose pre-existing condition has nexus with the medical condition eventually suffered by the insured for which the claim has been raised. In such view of the matter, we are of the view that the repudiation of the claim of complainant is not justified, in other words Commission or omissions on the part of opposite party amounts to deficiency of service A person cannot reasonably be expected to remember all ailments/treatments/investigation /medication etc. undertaken in his life and failure to mention them cannot be held to be a ground for the insurer to repudiate the contract at its discretion. Thus we are of the opinion that the opposite party has committed deficiency in service by repudiating the claim of the complainant stating that the treatment which was undertaken by the complainant few years back is a pre-existing disease.
So merely on the basis of past history mentioned in the discharge summary it cannot be said that the complainant was suffering from the same at the time of taking the policy and that he had intentionally concealed the said material fact. Similar view has also been taken in “United India Insurance Company Ltd” & Anr.Vs. S.K. Gandhi 2015 (2) CLT 71 NC”. It is proved by exhibit A2 that the complainant spent Rs.6,75,049/- for the treatment. However as per exhibit A1 policy the sum assured was Rs.3,00,000/- for each insured. Thus the opposite party is bound to indemnify the complainant for the tune of Rs.3,00,000/- only. Therefore we are of the opinion that the complainant had proved his case and the complaint is to be allowed. Hence the complaint is allowed and pass the following order.
- We hereby direct the opposite party to pay Rs.3,00,000/- (Rupees Three lakhs only) to the complainant along with the complaint 9% interest from 5-5-2022 ie. the date on which the complaint is filed till realization.
- We hereby direct the opposite party to pay Rs.25,000/- (Rupees Twenty file thousand only) as compensation to the complainant for the deficiency in service on the part of the second and third opposite parties .
- We hereby direct the opposite party to pay Rs.3000 (Rupees Three Thousand only) as cost of this litigation to the complainant.
Order shall be complied within 30 days from the date of receipt of the copy of this order, failing which the compensation amount will carry 9 % interest from the date of receipt of Order till the date of realization.
Pronounced in the Open Commission on this the 31st day of May, 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 complainant
A1 – Future Health Suraksha – Family Floater policy schedule
A2 – Discharge bill dtd.17-11-21 issued by Caritas Hospital
A3 – Treatment certificate dtd.24-11-21 by Dr. Rajesh Ramankutty, Caritas
Hospital
A4 – Claim repudiation letter dtd.04-03-22 issued by opposite party
A5- Copy of Portability application form Part – I
A6 – Copy of Health Suraksha policy – silver plan
Exhibits marked from the side of opposite party
B1 – Copy of welcome letter dtd.24-08-21 by opposite party to complainant
B2 – Copy of unfilled health insurance claim form issued by opposite party
B3 – Copy of proposal form singed by complainant issued by opposite party
B4 – Copy of cardiology id initial assessment record by Caritas hospital
B5- Copy of customer information sheet issued by opposite party
B6 – Copy of claim repudiation letter dtd.15-06-22 issued by opposite party
By Order
Assistant Registrar
