Date of filing: 07.11.2020

                                                               Date of Disposal:20.12.2022

 BEFORE THE III ADDITIONAL BANGALORE URBAN

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

                               BENGALURU – 560 027.

DATED THIS THE 20^th DAY OF DECEMBER, 2022

CONSUMER COMPLAINT NO.925/2020

PRESENT:

SRI.RAJU K.S,

SMT.REKHA SAYANNAVAR,:MEMBER

Mrs.Usha w/o Umesh,

Aged about 53 years,

R/at No.157/1, Shamana Gowda Layout,

Bangalore-560 008. ……COMPLAINANT

Rep by Sri.Syed Jaffer Mohiyuddin, Advocate

HDFC Ergo General Insurance Company Limited,

Through its Managing Directors/Manager,

No.25/1, 2^nd Floor, Building No.2,

Shankarnarayana Building,

M.G.Road, Bangalore-560 001.……     OPPOSITE PARTY

Rep by Sri.Prashant T.Pandit, advocate

//JUDGEMENT//

BY SRI.SHIVARAMA K, PRESIDENT

The complainant has filed this complaint under Section-35 of Consumer Protection Act, 2019 seeking for a direction to the opposite party to pay a sum of Rs.1,80,000/- with interest from 15.06.2018 till the time of disposal of the complaint and a sum of Rs.13,20,000/- towards damages and such other reliefs as this commission deems fit in the circumstances of the case.

2. When the case was set down for arguments, on 22.07.2022 counsel for the complainant had filed memo for retirement signed by the complainant and thumb impression affixed by the power of attorney holder of the complainant.  On the basis of the memo for retirement, this commission permitted the counsel to retire from the case. 

3. It is not in dispute that the opposite party had issued Health Insurance Policy No.2864-1002-6740-0600-000 for the period from 14.01.2018 till 13.01.2019.  Further, it is not in dispute that the complainant got admitted to Kidwai Memorial Hospital of Oncology located on Dr.M.H.Marigowda Road, Bangalore.  The complainant was admitted on 05.06.2018  and discharged on 15.06.2018 and had spent for treatment in HCG Hospital on Kalinga Rao Road, Bangalore a sum of Rs.60,000/- and a sum of Rs.1,20,000/- at Kidwai Memorial Hospital of Oncology.  Further, it is not in dispute that the opposite party had repudiated the claim on the ground that the complainant had suppressed the pre-existing disease.

4. To prove the case, the GPA holder of the complainant (PW1) has filed affidavit in the form of his evidence in chief and got marked EX.P1 to P13 documents. The GPA holder is the son of the complainant.  The Executive Legal Officer of opposite party had filed affidavit in the form of his evidence in chief and got marked Ex.R1 to R5 documents.

5. Counsel for the opposite party had filed written arguments with citations.

         6. The points that would arise for consideration are as under:

i) Whether the complainant proves the deficiency of service on the part of the opposite party ?

    ii) Whether the complainant is entitled for the 

    compensation as sought ?

     iii) What order ?

   7.   Our findings on the aforesaid points are as follows:

Point No.1 :  In affirmative

Point No.2 :  Partly in affirmative

Point No.3 :  As per the final order for the following;

REASONS

8.POINT NO.1:- The GPA holder of the complainant(PW1) and Executive Legal Officer of opposite party (RW1) have reiterated the fact stated in their respective pleadings, in the affidavits filed in the form of their evidence in chief.  In support of the oral evidence that the opposite party had issued the policy, the complainant has produced EX.P1 xerox copy of the policy.  The policy is for the period from 14.01.2018 to 13.01.2019.  Further, the complainant has produced xerox copy of the documents issued by the hospital for having taken treatment.  Further, the complainant has undergone a medical examination in Apoorva Diagnostic and Health Care in the 2^nd week of December-2017.  To evidence the said fact, PW1 has produced EX.P9 in respect of the tests undergone by the complainant on 28.12.2017.  Further, the complainant was healthy and was not suffering from any life threatening illness while she was issued the medical insurance policy by the opposite party.   Further, after the complainant had obtained the insurance policy from the opposite party, in the following months she had developed severe stomach-ache and she had gone to HCG Hospital for check-up on 21.05.2018 and it was found that she was suffering from ovarian and thereafter she took treatment for cancer at Kidwai Memorial Hospital of Oncology and she was prescribed a treatment for surgery along with six cycles of Chemotherapy.  Further, she was admitted to Kidwai Memorial Hospital of Oncology on 05.06.2018 and discharged on 15.06.2018. 

9. The reason for repudiation of claim of medical expenses by the opposite party is that the insured was admitted on 31.12.2017 with the diagnosis of Chronic Liver Diseases with Portal Hypertension and underwent liver transplantation surgery.  On verification, it was found that the patient had developed liver disease secondary to Alcohol abuse.  The claim is being repudiated under Section-2V of the policy terms and conditions, as per EX.R2.  On perusal of the same, it appears that the patient name is shown as Sreeram Paliath.  Hence, I feel the said document does not relate to the claimant herein. 

10. In the case on hand, the claimant was one Mrs.Usha.  According to PW1, the opposite party had repudiated the claim on the ground that the complainant did not disclose the pre-existing disease.  EX.P13 dt.29.10.2018 is the repudiation email sent by the opposite party to the complainant.  In which it is stated that as per the submitted documents, the patient was admitted on 05.06.2018 with the diagnosis of CA Ovary and was treated for same.  As the date of inception of policy is 14.01.2018 and duration of the pain abdomen is 6 months which was prior to policy inception.  The ailment was                   pre-existing in nature.  Hence, the claim was repudiated under Section 9(a)(iii) of policy terms and conditions. 

11. It is the contention of the learned counsel for the opposite party that in the document produced by the complainant itself in EX.P2 and in another document, the treating doctor has recorded that the complainant was admitted to the hospital with the history of complaint of abdomen pain since 5 to 6 months.  The admission to the hospital was on 05.06.2018.  Admittedly, the policy commenced from 14.01.2018.  Other than the test, the complainant has undergone treatment at Apoorva Diagnostic and Health Care Centre on 28.12.2017.  No documents are forthcoming and produced by the opposite party that the complainant had taken treatment for problem in the ovary.  No symptom of cancer was found at the time of test at Apoorva Diagnostic Centre on 28.12.2017.

12.  In support of the contention that the record by the treating doctor itself is sufficient with regard to the admission by the complainant, counsel for the opposite party relies the judgment rendered by the Hon’ble Apex Court reported in III (2019) CPJ 31 SC in between Life Insurance Corporation of India V/s Manish Gupta. In the said judgment, the facts of the case is that the doctor who had treated the patient had recorded in the column titled “the past history that the patient was suffering from fever and joint pain since  childhood and the past history was recorded as a “known case of rheumatic heart disease since childhood” and the said record had not been disputed and the patient was operated for MVR.  The nature of diagnosis has been reflected as rheumatic heart disease and the hospital treatment form was along the same lines.  Hence, the Hon’ble Apex Court had observed that the documentary material indicates that there was a clear failure on the part of opposite party to disclose that he had suffered from rheumatic heart disease since childhood.  Further, the counsel has also relied the judgment reported in 2020(3) CPR 131 (NC), New Delhi in between Vinita Sethi V/s ICICI Prudential Life Insurance Company Limited and another.  In the said case, the insured was hospitalized from 06.10.2011 to 12.10.2011 for complaints of Upper GI bleed and the insured died on 11.12.2014.  The claim was repudiated on the ground of non-disclosure of medical history of the insured.  The ground taken by the complainant was that the complainant had signed the blank proposal form and later on the insurance agent filled it.  Nothing was shown in the proposal form with regard to the previous ill-health and treatment undergone.  Hence, the insurance company had repudiated the claim. 

13. In the case on hand, other than the say of the insured that she had abdomen pain since 6 to 5 months as on 15.06.2018, the opposite party did not produce any documents to prove that the insured had obtained treatment for cancer and it was detected prior to the inception of the policy.    Since, the policy was taken on 14.01.2018, it could be inferred that there was no pain as such on the date of taking the policy.  Further, it appears that ovarian cancer often goes un-ill-health and only it has spread within the pelvis and stomach and it has no symptoms in the early stage.  Hence, I feel the question of disclosing about the ovarian cancer at the time of taking the policy does not arise.  Further, as stated above while the insured had undergone a medical examination in the 2^nd week of December-2017, no symptoms were found. Hence, the fact of the cited judgment is different from the facts of the case on hand.  Therefore, the same is not applicable to the case on hand.  I feel even though the complainant had issued notice to the opposite party as per EX.P10 dt.10.12.2019, the opposite party did not reimburse the claim.  Hence, there is deficiency of service on the part of the opposite party.  Accordingly, I answer this point in affirmative.

14.POINT No.2:- According to PW1, she has spent Rs.60,000/- towards her treatment in HCG hospital and Rs.1,20,000/- towards treatment in Kidwai Memorial Hospital of Oncology.  According to RW1 with regard to the medical treatment and expenses the complainant has to prove the same.  Therefore, it is the burden on the complainant to prove the medical expenses spent by producing documents.  PW1 has produced EX.P3 medical bill dt.30.05.2018, in which it is shown as estimated amount of Rs.18,090/- and for other things approximately cost for treatment will be Rs.1,94,910/-.  The estimation cannot be taken as the complainant has paid this amount of Rs.18,090/- as shown in EX.P3.  It is stated about the particulars of medicine taken in it.  Further, the complainant has produced particulars of treatment taken at Kidwai Memorial Institute of Oncology, Bangalore vide EX.P2, prescription issued by one dermatologist vide EX.P5 and P6, prescription issued by Chinmaya Mission Hospital vide EX.P7 & P8, tests done at Apoorva Diagnostic and Health Centre vide EX.P9.  EX.P9 also indicates that on 28.12.2017 the bill for a sum of Rs.1,200/- raised has been borne by HDFC Ergo.  Hence, the complainant is not entitled for the said bill.  Further, the complainant has produced documents with regard to the amounts spent towards medical expenses to Apollo Hospital, Kanva Diagnostic Services Private Limited, HCG hospital and Kidwai Memorial Institute of Oncology as asserted in the complaint.  The complainant has produced the total calculation of the bill, which comes to Rs.96,000/.  Therefore, I feel the complainant is entitled for the medical expenses of Rs.96,000/-.  The opposite party ought to have entertained the said bill, instead it has repudiated the claim, on the ground that the complainant had concealed the pre-existing disease.  I feel there is no merit in the repudiation.  Hence, the complainant is entitled for interest for the said amount from the date of repudiation i.e., 29.10.2018 as appears in EX.P13.   Further, since because of the repudiation, the complainant has undergone medical agony.  Hence, the complainant is entitled for a sum of Rs.20,000/- towards mental agony and a sum of Rs.10,000/- towards litigation cost. Accordingly, I answer this point partly in affirmative.

15.POINT NO.3:- In view of the discussion made above, I  proceed to pass the following;

The complaint is allowed in part.

The opposite party is directed to pay a sum of Rs.96,000/- with interest at the rate of 9% p.a. from 29.10.2018 till realization. 

Further, the opposite party is directed to pay a sum of Rs.20,000/- towards mental agony and a sum of Rs.10,000/- towards litigation cost.  

The opposite party shall comply the order within 30 days. In case, the opposite party fails to comply the order within the said period, the above said amount of Rs.30,000/- carries interest at the rate of 9% p.a. from the date of order till realization.

Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.

Applications pending, if any, stand disposed of in terms of the aforesaid judgment.

  (Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced in the open Commission on 20^th day of December, 2022)                                            

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•  

Witness examined for the complainants side:

Sri.Shivarama Krishnan, GPA holder of the complainant has filed his affidavit.

Documents marked for the complainant side:

1. Copy of the policy bearing no.2864 1002 6740 0600 000.
2. 2.Copy of the discharge summary dt.15.06.2018.
3. Copy of the estimation dt.30.05.2018.
4. Copy of the reference letter Dr.C.M.Ravi dt.23.05.2018.
5. Copy of the another reference letter dt.21.05.2018 Dr.C.M.Ravi.
6. Copy of the another reference letter dt.22.05.2018 Dr.C.M.Ravi.
7. Prescription of Chinmaya Hospital dt.20.03.2018.
8. Copy of the Laboratory report dt.21.03.2018.
9. Copy of the report of Apoorva diagnostic and health care (eight sheets) dt.28.12.2017.
10. Copy of the legal notice dt.10.12.2019.
11. Original postal receipts.
12. Original postal acknowledgement.
13. Copy of the original GPA dt.04.12.2020.
14. Certificate u/s 65B of Evidence act.
15. Copy of the Email communication between complainant and the opposite party dt.14.01.2018, 29.10.2018, 31.08.2018, 14.12.2018 & 11.01.2019.

Witness examined for the opposite party side: 

Sri.Naresh Babu, Executive Legal Officer of opposite party has filed his affidavit.

Documents marked for the Opposite Party side:

1. Copy of policy.

2. Copy of the repudiation letter dt.03.08.2018.

3. Copy of the claim form.

4. Copy of the operation record and discharge summaries.

5. Copy of the histopathology report.

• REKHA SAYANNAVAR)    (RAJU K.S)         (SHIVARAMA. K)    
•