Andhra Pradesh

Chittoor-II at triputi

CC/20/2017

Bandaru Rajasekhar Reddy, S/o Chinna Reddy, aged 61 years. - Complainant(s)

Versus

HDFC ERGO General Insurance Co. Ltd., Authorised Signatory, - Opp.Party(s)

G.Guru Prasad

21 Apr 2018

ORDER

 

 

                                                                                                Filing Date:- 17-05-2017                                                                                                              Order Date:- 21-04-2018

 

      BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI.

Present: - Sri. M. Ramakrishnaiah, President

                                                    Smt. T. Anitha, Member

 

SATURDAY, THE TWENTY FIRST DAY OF APRIL, TWO THOUSAND AND EIGHTEEN

C.C.No.20/2017

 

Between

1. Bandaru Rajasekhar Reddy,

S/o. Chinna Reddy,

Hindu, aged 61 years,

 

2. Usha Rani. B,

W/o. Bandaru Rajasekhar Reddy,

Hindu, aged about 47 years,

Both are residing at Flat No. 201, 2^nd Floor,

Priya Residency,Padmavathi Puram,

Tiruchanoor Road, Tirupati.                                          …. Complainants

 

And

1. Authorized Signatory,

     HDFC ERGO General Insurance Co., Ltd.,

     10-14-575/2, 1^st Floor, PMR Plaza,

     V.V.Mahal Road, Tirupati.

     

2. Authorized Signatory,

     HDFC ERGO General Insurance Co., Ltd.,

     5^th Floor, Tower 1 Steller IT Park,

    C-25 Sector 62, Noida – 201301.                                         …. Opposite parties

 

         This complaint coming on before us for final hearing on 06.04.2018 and upon perusing the complaint, written versions, written arguments of the complainant and opposite parties and other relevant material papers on record and on hearing of              Sri. G. Guru Prasad, counsel for the complainant and Sri. S.M.Jhan, counsel for the opposite parties 1 and 2, having stood over till this day for consideration, the Forum made the following.

ORDER

DELIVERED BY SMT. T. ANITHA, MEMBER

ON BEHALF OF THE BENCH

        This complaint is filed by the complainant under Sections-12 and 14 of the Consumer Protection Act 1986, complaining the deficiency in service on part of the opposite parties, as the opposite parties illegally repudiated the claim of the complainant and the complainant prayed this forum to direct the opposite parties pay Rs.1,60,235/- which was incurred by the complainant No.1 for the hospitalization of complainant No.2 with interest @ 18% p.a. and award a compensation of Rs.75,000/- for causing mental agony and deficiency in service and to pay Rs.5,000/- towards litigation expenses.

        2.The brief facts of the case are:  the complainant No.1 who is the husband of the complainant No.2 took a health policy for both of them bearing No. 2952200834910400000 from the opposite party for the period of 2years, starts from 25.08.2014 to 24.08.2016 covered under the policy Silver Plan for a sum of Rs.5,00,000/- which is cashless benefit of treatment and paid premium of Rs.36,268/- for the first two years. The complainant further submits that ,the said policy was renewed under the policy No.2952200834910401000 and paid a premium of Rs.44,545/- the policy period tarts from 25.08.2016 to 24.08.2018 and the opposite party issued health card to avail cashless claim service on network hospitals and need to present the health card at the time of hospitalization. The complainant further submits that the opposite party No.1 at the time of taking policy represented that the policy is comprehensive health insurance policy which covers medical expenses incurred due to hospitalization and also covers pre and post hospitalization expenses, daycare procedure, domiciling treatment, organ donor expenses, emergency ambulance expenses. The complainant further submits that on 26.12.2015 the complainant No.2 got a pain at her left shoulder when she was about to fall at home and she consulted at Obulam Hospital in Tirupati and she has taken treatment as outpatient and underwent Physiotherapy for one month and followed manipulation by  Dr. O. Sathyanarayana, Orthopedic and Neuro Surgeon but the pain was persistent.

  3.The complainant further submits that due to shortness of breath and discomfort of chest pain in left shoulder the second complainant consulted SVIMS Hospital, Tirupati on 15.09.2016. For better treatment, she got admitted Apollo Hospital, Hyderabad on 18.09.2016 as inpatient and she was undergone Coronary Angiogram treated by  Dr.P. Seshagiri Rao, Cardiologist and she was discharged on 21.09.2016 and her I.P. Number is IP215242. Prior to the treatment she made pre-authorization to the opposite party for cashless treatment but her claim was illegally rejected by the opposite parties on the ground that she had a history of asthma prior to taking of the policy. However, she discharged from the hospital by paying hospitalization expenses of Rs.80,995/- by the complainant No.1. While she was suffering with left shoulder pain at Apollo Hospital, Hyderabad she was advised to manipulation on later date.

         Hence she consulted Continental Hospital, Hyderabad on 22.09.2016 for second opinion. Again she went to Apollo Spectra Hospital, Chennai and she got admitted on 04.11.2016 and Dr. Dorai Kumar done a surgery on 04.11.2016 for her left shoulder arthroscopic adhesive capsular release was done and discharged on 05.11.2016.  At the time of admission in the Apollo Spectra Hospital she made a request for pre-authorization for cashless treatment to the opposite parties, it was rejected illegally on the ground that the patient is a known case of asthma before inception of policy as she suppressed the said ailment. However she made a payment of Rs.78,000/- for medical expenses in the Apollo Hospital, Chennai and got discharged from the hospital. The complainant No.1 further submits that he issued letter to the opposite party on 07.11.2016 through courier calling upon them to pay medical expenses incurred by him for the complainant No.2 and made several approaches by way of E-Mails, but after receipt of the same the opposite parties repudiated the legitimate claim of the complainant which is nothing but deficiency in service on part of the opposite parties and unfair trade practice. Hence the complainants filed the present complainant.

        4.The opposite parties came in to appearance and filed their written version by denying the allegations made in the complaint and further stated that the complainant made a policy with this opposite parties on 25.08.2014, during the tele-proposal the complainants did not disclose the ailments as the complainant no.2  was an  asthma patient for the last four years prior to the inception of the policy and she did not disclosed her real health condition that she had ailments with this opposite party, based on the declaration made in the tele-proposal, the company has issued the policy by capturing the Pre-existing disease as “No” and the same was accepted by the complainants without any  objection.  During the process of the claim, it is revealed that both the complainants were not followed the terms and conditions of the policy and suppressed the material facts and hence the claim of the complainant was rightly repudiated by them as per Sec.10 r( ii) of terms and conditions of the Policy, for which she has admitted for the treatment of Coronary Artery disease on 18.09.2016 in respect of the first claim made by the complainant.

       The opposite parties further submits that the complainant has admitted on 04.11.2016 for her left shoulder adhesive capsulitis treatment and was treated for the same and that the patient case is Known case of Asthma before the inception of policy dt: 25.08.2014 itself,  as the patient/complainant had history of asthma for the last four years and she has not disclosed the material facts as per the conditions laid down in the policy and the second claim of the complainant was rightly repudiated Under Sec.10 r (ii) of policy terms and conditions.  Hence as the complainants suppressed the previous ailments at the time of taking of the policy, her claim was repudiated and there is no deficiency in service on part of them. The opposite parties further contended that in case of  “Non-disclosure” irrespective of the fact whether the ailment/condition/co-morbidity in question is related to the ailment or not, still the policy issuance by itself would have been made on the faith that insured had disclosed all details material to the policy. If the same was disclosed by the insured at the time of taking a policy, the respondent would not issued the policy to the insured. The well-settled law in the field of insurance is that contracts of insurance are contracts uberrimafides and every fact of materiality must be disclosed at the time of taking policies. The term uberrimafides is expressed by saying that it is a contract of the utmost good faith that as the underwriter knows nothing and the man comes to him to ask him to insure knows everything it is the duty of the assured, the man who desires to have a policy, to make a full disclosure to the underwriter without being asked of all the material circumstances, because the underwriter knows nothing and the assured knows everything. Hence the opposite parties further submits that the complainant has not shown any real facts and have not supplied the supported by detailed documentary proof at the time of inception of the policy made with this opposite party. Hence the opposite party has not rendered any deficiency in service in process of above claim of the complainants, as the claim of the complainants are not fall under the terms and conditions of the policy with this opposite parties and thus the complainants are not entitled for the relief prayed for. Hence this complaint is liable to be dismiss as there is no deficiency in service on part of them.

                                 5. The complainant No.1 filed his chief affidavit along with adoption memo of the complainant No.2 and got marked Ex:A1 to A14. On behalf of the opposite parties one Sanjay Kumar, S/o. S.A.Shanmugham, Manager-Legal working under the opposite parties company filed his evidence on affidavit and Ex:B1 to  B5 were marked. Both the complainants and opposite parties filed their written arguments and oral arguments were heard.

       6. Now the points for consideration are: -

          (i) Whether there is any deficiency in service on part of the opposite parties

                towards the complainant?           

          (ii)  Whether the complainant is entitled to the reliefs as prayed for?        

         (iii)  To what Relief?

                    7.Point No (i):-  the main case of the complainants are , they took health policy from the opposite parties for the period of 2years which starts from 25.08.2014 to 24.08.2016, covered under Health Suraksha Policy for a sum of Rs. 5,00,000/- which is cashless benefit of treatment and  paid premium of Rs.36,268/- for the first two years and the same was renewed for the period from 25.08.2016 to 24.08.2018 and paid premium of Rs. 44,545/-. The counsel for the complainants further stated that the complainant No.2 got a pain in left shoulder when she was about to self fall at home and she took treatment at Obulam Hospital, Tirupati as outpatient and she has taken Physiotherapy treatment for one month and allowed manipulation by Dr. O. Sathyanarayana, Orthopedic and Neuro Surgeon, but the pain was persistent.

                        The complainant further stated that she consulted SVIMS Hospital on 15.09.2016 as she felt shortness of breath and discomfort of chest and pain in left shoulder. For the treatment she got admitted in Apollo Hospital, Hyderabad on 18.09.2016 and she was undergone Coronary Angiogram and discharged on 21.09.2016, prior to admission in Apollo Hospital she made pre-authorization for cashless treatment to the opposite parties but her claim was rejected on the ground that she has a history of asthma since last four years. However she discharged from hospital on payment of Rs.80,995/- towards hospitalization expenses. While she was suffering with left shoulder pain in Apollo Hospital, Hyderabad , she was advised to manipulation later date.

                   8. The complainant No.1 further stated that as the complainant No.2 suffering with pain in left shoulder they consulted continental Hospital, Hyderabad on 22.09.2016 for treatment . Again she consulted Apollo Spectra Hospital, Chennai and she got admitted on 04.11.2016 and she undergone surgery of orthoscopic adhesive capsular release and discharged on 05.11.2016. At the time of admission she made a request for pre-authorization for cashless treatment and it was rejected by the opposite parties as she is a known case of asthma before the inception of policy and she paid Rs.78,000/- for the treatment in Apollo Hospital, Chennai. The counsel for the complainant further stated that the complainants issued a letter to the opposite parties on 07.11.2016 under Ex:A14 to consider their claim but same was received by the opposite parties but failed to consider the same even after several remainders issued by the complainant which is nothing but deficiency in service on part of the opposite parties.

                       The counsel for the opposite parties stated that the complainant has made policy with this opposite parties dt: 25.08.2014 for the period of two years but she did not disclose the ailments , as she was an asthma patient for four years prior to inception of the policy. And she did not disclose the real health condition, that she had an ailments with this opposite parties. Based on the declaration made in the tele-proposal, the company has issued the policy by capturing the pre-existing disease as on the date was accepted by the complainants without any objection. The counsel for the opposite parties further contended that during the process of claim it is revealed that the complainants have violated the terms and conditions of the policy for non-disclosure of material facts and the claim of the complainant was rightly repudiated as per Section 10.r.(ii) of the policy terms and conditions. Hence the opposite parties has rightly processed the claim and repudiated the claim as the complainants have suppressed the facts and violated the terms and conditions and hence they are not entitled for the above claim.

                    9.  The counsel for the opposite parties further stated that the policy was issued on the faith of the insured as disclose of all details and materials to the policy. If the same was disclosed by the insured at the time of taking the policy the opposite parties would not issue the policy to the insured and it is the well-settled law in the field of insurance is that “materiality must be disclosed at the time of taking of the policy the term ubermafides is expressed by saying that it is a contract of good faith that as the underwriter knows nothing and the man comes to him to ask him to insure knows everything. It is the duty of the assured the man who desires to have policy to make a full and detailed disclosure to the underwriter without being asked of all the material circumstances, because the underwriter knows nothing and the assured knows everything”. As in the present case also the complainants have not disclosed the real facts about the health condition as on the date of inception of the policy and violated the terms and conditions of the policy and thus they are not entitled for the claim. The repudiation is just and proper hence the complaint is liable to be dismissed.

                    After perusing the evidence placed by both the parties there is no dispute regarding the policy taken by the complainants from the opposite parties on 25.08.2014 to 24.08.2016 for two years by paying subscription amount of Rs.36,268/- and also there is no dispute regarding the renewal of policy for further two years on 25.08.2014 to 24.08.2018 by paying subscription of  Rs. 44,545/- because same was admitted by the opposite parties. The main case of the complainants are, the opposite parties repudiated the claim of the complainant with a ground of suppression of previous health by the complainant, at the time of taking of the policy. The counsel or the opposite parties stated that, as the complainant suffered with  asthma for four years prior to inception of the policy and the opposite parties relied upon Ex:B1 the copy of the policy terms and conditions and also they relied upon Sec. 10.r.(ii)  read as follows: we may terminate this policy on grounds of mis-representation, fraud, non-disclosure of facts and non-co-operation by you or any insured person or any one acting your behalf or on behalf of insured person. Such termination of policy shall be from the inception date or renewal date (as the case may be) upon 30 days notice and by sending an endorsement in this regard at your address show in the schedule without refund of any premium.

                         Hence the counsel for the opposite parties stated that the claim has been rejected only on the ground of material concealment of previous ailment. Further the precaution in proposal forms are required to be checked. The question in the proposal form (relevant extract) as under  

      The opposite parties clearly stated that they issued the policy by taking the declaration of the complainant by way of proposal through telephone under Ex:B2. CD of telephonic conversation and said conversation was transcribed in Ex:B1 page No.4 in transcript column in section .

     D. Pre-Existing Declaration:-

                                              Question                                                                  Answer

        1. Whether the given insured is suffering from diabetis/hyper tension?    -     No

        2.Whether the given is suffering from hypertension? –                                     No.

        10.  In the present case the complainant at the time of  taking the policy to fill column as enquired for. Therefore in the present case they ask the questions about the existence of disease whether she is suffering from diabeties or suffering from hypertension. Therefore the complainant was suffering does not co-relate the columns given in the proposal form. Therefore which were not enquired in the proposal form, therefore no case of material concealment is made out. Hence we are of the opinion that, there is no concealment in accordance with the information sort for by the opposite parties in the proposal form. It has been generally seen when opposite parties are to sell the policy they do not check anything. Even in the present case the policy has been renewed for other two years. When the insured comes to get the claim they dig out one reason or the other to reject the claim.

        And also the counsel for the opposite parties further stated that the claim under Ex:B5 in the repudiation letter they have stated that as per the documents submitted by the complainant when she was admitted on 04.11.2016 for the treatment of left shoulder adhesive captularities and it was clearly mentioned that  the patient is a known case of asthma before first inception of the policy dt:25.08.2014 there is a history of asthma for the last four years. The opposite parties stated that only as per the documents submitted by the complainant they came to the conclusion that the complainant is a known case of asthma for four years prior to taking of the policy. But no evidence of treating doctor has been filed by the opposite parties to substantiate the contention. Hence in the absence of any affidavit of the treating doctor we cannot not come to conclusion that the complainant No.2 suffered with asthma prior to taking of the policy. Hence it cannot be considered. Hence by the above discussions we came to conclusion that the opposite parties committed deficiency in service by repudiating the claim of the complainant. Hence this point is answered in favour of the complainant as against the opposite parties.

                   11.Point No(ii):-  as already point No.1 discussed against the opposite parties that there is deficiency in service on part of opposite parties towards  the complainant. The complainant filed medical bills i.e. Ex:A9 for the treatment taken in Apollo Hospital, Hyderabad for Rs.80,995/- and also for the treatment of Coronary Angiogram, Cordiology Department and also the complainant filed Ex:A11 medical bills issued by Apollo Spectra Hospital, Chennai for the treatment of left shoulder Orthoscopic and she paid Rs.78,000/- hence in total(80,995+78,000) she paid Rs.1,58,995/- towards medical expenses . Hence the complainant is entitled of @ 9% p.a. for the amount which was paid by her towards hospitalization expenses and also the complainant is also entitled of Rs.10,000/- towards compensation for deficiency in service and mental agony suffered by the complainant and also she is entitled of Rs.2,000/- towards costs of the complaint.

                    12.Point No(iii):-   In view of our discussions on points 1 and 2, we are of the opinion that there is deficiency in service on part of the opposite parties, hence the complaint is allowed.

            In the result, the complaint is allowed in part, directing the opposite parties           1 and 2 jointly and severally to pay Rs. 1,58,995/- (Rupees one lakh fifty eight thousand nine hundred and ninety five only) to the complainant No.2 which was incurred by her towards medical expenses for treatment with interest at  9% percent per annum from the date of the complaint till realization. The opposite parties 1 and 2 also directed to pay Rs.10,000/- (Rupees ten thousand only) towards compensation for mental agony suffered by the complainant and deficiency in service on part the opposite parties and to pay Rs.2,000/- (Rupees two thousand only) towards litigation expenses. The opposite parties 1 and 2 also further directed to comply with the order within six (6) weeks from the date of receipt of copy of this order failing which, the compensation amount of Rs. 10,000/- (Rupees ten thousand only) also shall carry interest at 9 percent per annum from the date of this order till realization.

        Dictated to the stenographer, transcribed and typed by her, corrected and pronounced by me in the Open Forum this the 21^st day of April, 2018.

              Sd/-                                                                                                       Sd/-                     

      Lady Member                                                                                          President

 

APPENDIX OF EVIDENCE

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1: Bandaru Rajasekhar Reddy (Chief Affidavit filed).

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: S. Sanjay Kumar (Chief Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	True copy of Health Suraksha Policy of HDFC ERGO General Insurance Company Limited Policy bearing No.2952 2008 3491 0400 000/1 valid from 25.08.2014 to 24.08.2016.
	True copy of Health Suraksha Policy of HDFC ERGO General Insurance Company Limited Policy bearing No.2952 2008 3491 0401 000/1 valid from 25.08.2016 to 24.08.2018.
	Photo copy of E-mail by the OPs stating request for cashless authorization regarding hospitalization of the complainants. Dt: 07.03.2017.
	Photo copy of E-mail by the OPs stating unable to sanction the cashless benefit of Apollo Hospitals. Dt: 07.03.2017.
	Photo copy of E-mail by the complainant No.1 to the OP. Dt: 18.10.2016.
	Photo copy of E-mail by the OP stating that the claim of the complainant was repudiated regarding to Apollo Hospital, Hyderabad.  Dt: 24.10.2016.
	Photo copy of E-mail by the OPs receiving hospitalization claim request (Apollo Spectra Hospitals) of the complainants.  Dt: 07.03.2017.
	Photo copy of E-mail by the OPs to the complainant stating the repudiation of the claim regarding to Apollo Spectra Hospital, Chennai. Dt: 09.02.2017.
	Original copy of Medical bills 7 in Number issued by the Apollo Hospital, Hyderabad in favour of complainant No.2.
	Original copy of Discharge summary issued by the Apollo Hospital, Hyderabad in favour of complainant No.2. Date of Discharge: 21.09.2016.
	Original copy of Medical bills issued by the Apollo Spectra, Chennai in favour of complainant No.2. (Duplicate Copy). Dt: 05.11.2016.
	Original copy of Discharge summary of complainant No.2 issued by Apollo Spectra, Chennai. Date of Discharge: 05.11.2016.
	Photo copy of Medical bill issued by the SVIMS Hospital, Tirupati. Dt: 15.09.2016. OPD Bill & Cash Receipt bearing No.OP-91479/201617.
	Letter dated 07.11.2016 issued by the complainant No.1to the Opposite Party.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

Exhibits (Ex.B)	Description of Documents
	Certified True copy of policy terms and conditions.
	Tele-proposal call recording in the way of  C.D. in Original.
	Photo copy of Reply to the query by treating doctor about history of asthma from Apollo Hospital. Dt: 20.09.2016.
	True copy of Cash less denial letter. Dt: 21.09.2016.
	True copy of Repudiation Letters. Dt: 12.01.2017 and 10.10.2016.

 

 

                                  Sd/-

                                                                                                         President

// TRUE COPY //

// BY ORDER //

 

 

Head Clerk/Sheristadar,

            Dist. Consumer Forum-II, Tirupati.

 

Copies to:  1) The Complainants, 

                  2) The Opposite parties 1 and 2.