KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM

FIRST APPEAL 357/2011

JUDGMENT DATED: 24..7..2012

PRESENT

SRI.S.CHANDRADAS NADAR                 : JUDICIAL MEMBER

K.L.Rajendran,                                            :APPELLANT

s/o K.Lakshmana Reddiar,

Managing Partner,

M/s Parthas Textiles,

M.G.Road, Kochi-31, Rep.by its Manager.

(By Adv.Varma and Krishnan)

          Vs

1. ICICI Lombard General                           : RESPONDENTS

    Insurance, Kannankeri Estate,

    3^rd Floor, Marine Drive,

    Shanmugham Road Kochi-31

    Rep.by its Manager.

(By Adv.Prasannakumar Nair)

2.  TTK Health Care Services Pvt.Ltd.,

     1400 B, Ravipuram, Ernakulam,

     Kochi -16, rep. by its Manager.

JUDGMENT

SRI.S.CHANDRADAS NADAR        : JUDICIAL MEMBER

          The appellant was the complainant  in CC.234/08 in the CDRF Ernakulam.  It is alleged that he had availed insurance coverage under the group  health insurance policy from the 1^st opposite party, No.4016/002363.  The period of coverage was from 20.7.07 to 19.7.08 and the sum assured was Rs.1,00,000/- each.  The complainant had diarrhoea and intestinal problems in the month of July 2007.  He was treated for the illness at Well Care Hospital, Ernakulam.  But the problem aggravated ultimately resulting in renal failure.  The complainant was thereupon admitted in the Amrita Institute of Medical Sciences, Ernakulam on 25.7.07 and was discharged from there after treatment on 23.8.07.  The complainant had incurred an expenditure of Rs.1,59,518/- for his treatment.  He made claim for the amount to the opposite party.  The 2^nd opposite party processed the claim. As per letter dated 6.10.07 they informed the complainant that the claim was inadmissible for the reason that the complainant had a renal failure in the year 2005.  The complainant sent reply to the same explaining the real position. Thereafter there was no reply from the opposite parties. Hence the complainant sought direction from the CDRF, Ernakulam against the opposite parties to pay to the complainant an amount of Rs.1,59,518/- with interest at the rate of 9% per annum and costs of the complaint.

          2. The 1^st opposite party alone contested the claim.  The 1^st opposite party contended that in the case of the complainant the policy itself had been rendered void ab-initio due to suppression /non disclosure of material facts.  No right would flow from the policy as the claim ceased to be payable due to application of the exclusion clauses in the policy. Pursuant to the  communication from the complainant the case was re examined in detail and it was found that policy had become null and void due to non disclosure/  suppression of material facts.  He was  hospitalized in July 2007 for haemodialysis necessitated due to Rhabdomyolisis.  In January 2005 he had been admitted at the  Amrita Institute of Medical Sciences, Ernakulam with acute renal failure due to Rhabdomyolisis.  These facts were not disclosed to the 1^st opposite party at the time of submitting proposal. Besides the complainant had illnesses such as type II diabetes Mellitus  and systemic hypertension for the last 8 years and psoriasis since 26 years and had been on topical steroids and BPH.  He had undergone  several surgeries such as Trans Urethral Resection on Prostate in the years 1998 and 2003 and anal fistullectomy in the year 2003.  Then he had acute renal failure due to rhabdomyolysis in the year 2005.  None of these facts were declared by the complainant  to the opposite party while  sending proposal for the insurance.  Besides the complainant had history of fever and chills 3 weeks prior to the hospitalization on 25..7..07 associated with myalgia, arthralgia, vomiting and loose stools which had got aggravated resulting in hospitalisation.  The insurance cover started on 20..7..07.    Thus due to non disclosure of pre
pre existing illnesses, the claim of the complainant had become inadmissible and was rightly rejected. Hence 1^st opposite party prayed for dismissal of the complaint.

          3. Before the CDRF, Ernakulam the complainant gave evidence as PW1, Exts.A1 to A7 were marked on his side.  The 1^st opposite party adduced no oral evidence.  Exts.B1 to B4 were marked on their side.  The Forum on a consideration of the evidence available and the arguments of the parties upheld the contention of the 1^st opposite party that there was suppression of pre existing illness by the complainant while sending proposal for the insurance and accordingly dismissed the complaint.  Hence the appeal by the complainant..

          4. The only question that arises for consideration in this appeal is whether the Forum rightly came to the conclusion that there was suppression of pre existing illness by the complainant while sending proposal for the insurance policy issued by the 1^st opposite party.  It appears that the complainant was the Managing Partner of M/s Parthas Textiles M.G. road, Kochin. Application was filed from the textiles under the group health (floater)insurance policy for taking insurance to 17 employees from the 1^st opposite party.  The application of the complainant is one under the said policy Ext.B3 discharge summary issued from the Amrita Institute of Medical Sciences and Researh Centre shows that the complainant had history of having type II diabetes  mellitus and systemic hypertension since 8 years.  He had psoriasis since 26 years and had been on topical steroids. He had benign prostatic hypertrophy and underwent transurethral resection of prostate in 1998 and 2003.  He had history of anal fistullectomy in 2003.  In January 2005, he was admitted in the Amrita Institute with acute renal failure due to rhabdomylosis, which was detected when he presented with abdominal cramps and diarrhea and was treated conservatively.  He was admitted there on 25.7.07.  At that time he presented with history of fever and chills 3 weeks back associated with myalgia, arhtralgia, vomiting and loose stools.  He was on Atorvastatin prior to that admission.  Apart from pre existing disease he was diagnosed for irritable bowel syndrome , rhabdomyolysis and acute renal failure.  He was initiated  on hemodialysis through a  right femoral catheter on 25.7.07.  He received 5 sessions of hemodialysis. Subsequently his urine output and renal functions showed improvement.  Finally after treatment he was discharged in a stable condition.

          5. As seen already 1^st opposite party rejected the claim of the complainant relying on the exclusion clause found in the policy. It reads “the company shall not be liable or make any payment for any claim directly or indirectly caused by, based on arising out of or how so ever attributable  to any of the following 1) pre existing illness/conditions such conditions which have been in existence at the time of proposing this insurance. Pre existing condition means, any injury which existed prior to the effective date of this insurance.  Pre existence condition also means any sickness or its symptoms which existed prior to the effective date of this insurance whether or not the insured person had knowledge that the symptoms were relating to the sickness.  Complications arising from pre existing disease shall be considered part of that pre existing condition. Provided however that if the policy is extended to cover pre existing conditions the waiver of this  exclusion shall not apply to those conditions which occur prior to the effective date of cover for that insured person under this scheme with any other Indian insurance companies”.(vide Ext.A7)

          6. Admittedly no extra premium was paid by the complainant or his employer to cover pre existing illnesses.  As PW1 the complainant admitted that he was suffering from all the illnesses as narrated in the history portion of Ext.B3.  The Forum in its order has also mentioned that the complainant had deposed that he had not mentioned the above ailments in the proposal form submitted before the 1^st opposite party for issuing insurance policy.  But this observation is not exactly correct.  The complainant only pleaded ignorance as to whether his pre existing illnesses were stated in the proposal form.  There appears to be reason for that. For the purpose of taking group insurance scheme the proposal was really submitted by some other employee of Parthas Textiles.  During arguments the learned counsel for the complainant/appellant submitted the photocopy of the proposal form to contend that actually the complainant had subscribed his signature only and the agent had promised to include all the preexisting illness disclosed by the complainant in the proposal form.  But this would also show that pre existing illnesses were actually not disclosed to the 1^st opposite party and during examination complainant had no case that in fact the pre existing illnesses were stated in the proposal form.  So the finding of the Forum below that there was no non disclosure of the preexisting illnesses  by the complainant is to be  sustained.

          7. The complainant has produced Ext.A6 issued by Dr.V.N.Unni working in the nephrology division of the Amrita Institute of Medical Sciences which gives the opinion that at the time of issuing A6 on 19.11.08 the  Kidney functions of the complainant were normal. Hence acute renal failure cannot be termed as a pre existing disease. It refers to the prior episodes of renal failure and every time the function of the kidney became normal. The opinion is given in that context.  But what was suppressed was not only the renal failure, but also the other diseases referred to earlier.  As rightly contended by the learned counsel for the respondents had those diseases been disclosed additional premiums would have been realized for covering those illnesses.  This was obviously not done due to non disclosure of preexisting illnesses which makes the policy invalid in view of the exclusion clause referred to. In short  the CDRF, Ernakulam rightly dismissed the complaint and there is no merit in the appeal. 

          In the result the appeal is dismissed but considering the facts and circumstances  of the case   without costs.

          SRI.S.CHANDRADAS NADAR                 : JUDICIAL MEMBER

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