Tamil Nadu

South Chennai

CC/223/2015

S.Kathiresan - Complainant(s)

Versus

ICICI Lombord General Insurance Company Ltd - Opp.Party(s)

M/s.K.P.Kiran Rao

14 Mar 2019

ORDER

                                                                        Date of Filing  : 19.05.2015

                                                                          Date of Order : 14.03.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP. : MEMBER

 

C.C. No.223/2015

DATED THIS THURSDAY THE 14^TH DAY OF MARCH 2019

                                 

S. Kathiresan,

Arunachala Nest, S1, No.12B,

First Cross Street,

First Main Road,

Natesa Nagar,

Virugambakkam,

Chennai – 600 092.                                                     .. Complainant.                                                           ..Versus..

 

1. ICICI Lombard General Insurance Company Ltd.,

Represented by its Divisional Manager,

2^nd Floor, No.140, Chotabhai Center,

Nungambakkam,

Chennai – 600 034.       

 

2. PRIMEX SCANS AND LABS -

Primex Healthcare and Research Pvt. Ltd.,

Represented by its Director,

No.30/1, Bazullah Road,

T. Nagar,

Chennai – 600 017.                                              ..  Opposite parties.

          

Counsel for the complainant          : M/s. K.P. Kiran Rao

Counsel for the 1^st opposite party : Mrs. Elveera Ravindran & another

Counsel for the 2^nd opposite party : M/s. Naresh Vassudhev

 

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties 1 & 2 under section 12 of the Consumer Protection Act, 1986 prays to pay a sum of Rs.20,000/- being the expenses incurred by the complainant for repeated medical tests, travelling and legal notice and to pay a sum of Rs.2,00,000/- towards compensation for mental agony, inconvenience and hardship with cost to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that on 23.05.2014, the 1^st opposite party, insurance company representatives visited the complainant’s house and appraised the importance of Health Insurance Policy covering medical expenses in the case of sickness, emergency like accidents etc.  The complainant submits that he decided to avail the policy and paid a sum of Rs.54,407/- vide HDFC Bank cheque No.121910 dated:23.05.2014 for two years premium along with the duly filled up the proposal form No.1213397027 to the representative of the 1^st opposite party on 23.05.2014.  The complainant submits that on 27.05.2014, the 1^st opposite party sent an authorization e-mail for authorising the 2^nd opposite party to undergo the mandatory tests for issuing such Health Insurance Policy.  Thereby, the complainant had undergone various tests on 29.05.2014 in his house by the technician of the 2^nd opposite party.   The complainant submits that the technician of the 2^nd opposite party collected the blood and urine samples and conducted ECG test.  After 13 days, the technician declared that the test was completed.   Thereafter on 30.05.2014 in the afternoon, the complainant received a call from the 2^nd opposite party stating that the ECG test report is faulty due to the equipment malfunction and requested to visit the 2^nd opposite party’s centre for another ECG test.  The complainant submits that he refused the same and sent an email dated:30.05.2014 to the 1^st opposite party.  Thereafter, the 2^nd opposite party sent another technician to the complainant’s house and took ECG test on 30.05.2014 within 15 minutes and declared that the test was successful. 

2.     The complainant submits that the 2^nd opposite party issued report positive stating that the heart condition is abnormal.   The complainant submits that on 30.04.2014, the complainant undergone routine health check up including Echo cardiogram which shows normal.  On 04.06.2014, the complainant collected the ECG report from the 2^nd opposite party for second opinion.  The report shows ‘DEXTROCARDIA’ which means rare congenital (by birth) heart disease which caused terrible shock and mental agony.  The complainant has obtained 2^nd opinion on 05.06.2014 from prominent cardiologist Dr. M. Jayarajah, Former Professor of Cardiology at Shri Ramachandra University and a Consultant in Apollo Hospital and Sooriya Hospital, Chennai who observed that ECG test was wrongly conducted with the electrode leads reversed and observed as ‘Normal’.  Thereafter, the complainant requested the 1^st opposite party to review the order of rejecting the policy.  Hence, the 1^st opposite party sent an email dated:18.06.2014 directed the complainant to submit an ECG report with another Lab, AARTHI SCANS, Vadapalani.  Accordingly, the test was conducted and the report found normal was sent to the 1^st opposite party.   Even repeated emails, the 1^st opposite party sent no response.   The complainant submit that the 1^st opposite party informed that the team refused to review the case caused great mental agony.   Hence, the complaint is filed.

3.      The brief averments in the written version filed by 1^st opposite party is as follows:

The 1^st opposite party specifically denies each and every allegation made in the complaint and puts the complainant to strict proof of the same.    The 1^st opposite party states that the policy of insurance is a subject matter of solicitation.  On the proposal made by the complainant, the 1^st opposite party initiated the process of issuing policy subject to the terms and conditions that the complainant should undergo mandatory medical check-up.   On confirmation of the results and reports, the Health Insurance policy will be issued.  On 27.05.2014, due intimation given to the complainant to take mandatory medical tests namely; Complete Blood Count and Peripheral Smear, Urine routine SGPT/ALT, Serum Creatinine, ECG, Serum Cholesterol, Fasting Blood Sugar, MER Form etc.    The tests were conducted by the 2^nd opposite party and submitted a report.  On the basis of the medical report and the documents submitted by the complainant, his medical proposal has been rejected on account of abnormal ECG.   The 1^st opposite party submits that only to maintain cordial customer relationship, they had intimated the complainant to take ECG at Aarthi scans.    The 1^st opposite party states that IRDA (Protection of Policy holders’ interest) Regulations 2002, ‘an insurance company reserves the right to accept or reject proposal from as per its underwriting guidelines’ which reads as follows:

2 (1) “In these regulations, unless the context otherwise requires

   (d) ‘Proposal Form’ means a form to be filled in by the proposer for insurance, for furnishing all material information required by the insurer in respect of a risk, in order to enable the insurer to decide whether to accept or decline, to undertake the risk and in the event of acceptance of the risk to determine the rates, terms and conditions of a cover to be granted”.

4.     The 1^st opposite party states that the contract of insurance is a contract of Uberrimae Fidei and utmost good faith and both the contracting parties are bound by the terms and conditions of the policy.  The 1^st opposite party states that as per the IRDA guidelines, this opposite party had diligently discharged their duties and the lapse was only on the 2^nd opposite party, hence, there is no liability on the part of the complainant.  The 1^st opposite party states that the compensation claimed is exorbitant and imaginary.  Therefore, there is no deficiency in service on the part of the 1^st opposite party and hence, the complaint is liable to be dismissed.

5.      The brief averments in the written version filed by 2^nd opposite party is as follows:

The 2^nd opposite party specifically denies each and every allegation made in the complaint and puts the complainant to strict proof of the same.    The 2^nd opposite party states that the complainant  is a Consumer as defined under section 2 (1)(d)(i).  The 2^nd opposite party states that immediately after brought to the knowledge of the 2^nd opposite party regarding deficiency in report, the 2^nd opposite party sent a letter to the 1^st opposite party for conducting fresh tests and report in order to afford the health Insurance Policy. The 2^nd opposite party states that in the process of trying to correct the malfunctioning of the ECG equipment he could have committed an error in placing the electrodes thereby, resulting in the diagnosis of “Dextrocardia”.  The 2^nd opposite party states that in order to prove the medical negligence, the complainant shall satisfy certain conditions namely; the act of omission or commission breach of duty, which must cause harm to the injured person.  The 2^nd opposite party states that the compensation claimed is exorbitant and imaginary.   Therefore, there is no deficiency in service on the part of the 2^nd opposite party and hence, the complaint is liable to be dismissed.

6.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A36 are marked.  Proof affidavit of the 2^nd opposite party is filed and documents Ex.B1 to Ex.B7 are marked on the side of the 2^nd opposite party.   Proof affidavit of the 1^st opposite party is filed and documents Ex.B8 & Ex.B9 are marked on the side of the 1^st opposite party. 

7.      The points for consideration is:-

1. Whether the complainant is entitled to a sum of Rs.20,000/- towards the expenses incurred for repeated medical tests, travelling and issue of legal notices etc as prayed for?
2. Whether the complainant is entitled to a sum of Rs.2,00,000/- towards compensation for mental agony and hardship with cost as prayed for?

8.      On point:-

Both parties filed their respective written arguments.  Heard the Counsels also.   Perused the records namely the complaint, written version, proof affidavits and documents.  The complainant pleaded and contended that on 23.05.2014, the 1^st opposite party, insurance company representatives visited the complainant’s house and appraised the importance of Health Insurance Policy covering medical expenses in the case of sickness, emergency like accidents etc.  Believing their representations, the complainant decided to avail the policy and paid a sum of Rs.54,407/- for two years premium along with the duly filled up the proposal form No.1213397027 to the representative of the 1^st opposite party on 23.05.2014 as per Ex.A1 & Ex.A2.  Further the complainant contended that on 27.05.2014, the 1^st opposite party sent an authorization mail as per Ex.A3 for authorising the 2^nd opposite party to undergo the mandatory tests for issuing such Health Insurance Policy.  Thereby, the complainant had undergone various tests on 29.05.2014 in his house by the technician of the 2^nd opposite party.  Ex.A4 is the copy of Primex Scans & Lab test results. Further the contention of the complainant is that the technician of the 2^nd opposite party collected the blood and urine samples and conducted ECG test.  After 13 days, the technician declared that the test was completed.  Thereafter on 30.05.2014 in the afternoon, the complainant received a call from the 2^nd opposite party stating  that the ECG test report is faulty due to the equipment malfunction and requested to visit the 2^nd opposite party’s centre for another ECG test which was refused by the complainant and sent an email dated:30.05.2014 to the 1^st opposite party as per Ex.A5.  Thereafter, the 2^nd opposite party sent another technician to the complainant’s house and took ECG test on 30.05.2014 within 15 minutes and declared that the test was successful.   But to shock and surprise, the 2^nd opposite party issued report positive stating that the heart condition is abnormal as per Ex.A6 & Ex.A7. 

9.     Further the contention of the complainant is that on 30.04.2014, the complainant undergone routine health check up including Echo cardiogram which shows normal as per Ex.A12.  On 04.06.2014, the complainant collected the ECG report from the 2^nd opposite party for second opinion.  The report shows ‘DEXTROCARDIA’ as per Ex.A8 which means a rare congenital (by birth) heart disease which caused terrible shock and mental agony.  The complainant has obtained 2^nd opinion on 05.06.2014 from prominent cardiologist Dr. M. Jayarajah, Former Professor of Cardiology at Shri Ramachandra University and a Consultant in Apollo Hospital and Sooriya Hospital, Chennai who observed that ECG test was wrongly conducted with the electrode leads reversed and observed ‘Normal’ as per Ex.A10 & Ex.A11.   Thereafter, the complainant requested the 1^st opposite party to review the order rejecting the policy as per Ex.A13.  Hence, the 1^st opposite party sent an email dated:18.06.2014 as per Ex.A16 directed the complainant to submit an ECG report with another Lab, AARTHI SCANS, Vadapalani.  Accordingly, the test was conducted and the report found normal was sent to the 1^st opposite party as per Ex.A17.   Even repeated emails, the 1^st opposite party sent no response.   At long last as per Ex.A24, the 1^st opposite party informed that the team refused to review the case which amounts to unfair trade practice and deficiency in service.   The complainant is claiming a sum of Rs.20,000/- towards the expenditure incurred for undergoing different tests with different labs and the notices issued to the opposite parties on various days.  But on a careful perusal of entire records, the complainant has produced receipts only for a sum of Rs.1,050/- as per bills dated: 05.06.2014 & 08.07.2014 vide Ex.A9 & Ex.A27 respectively. The complainant is also claiming a sum of Rs.2,00,000/- towards compensation for mental agony due to the wrong report stating that ‘DEXTROCARDIA’.

10.    The learned Counsel for the 1^st opposite party would contend that  the policy of insurance is a subject matter of solicitation.  On the proposal made by the complainant, the 1^st opposite party initiated the process of issuing policy subject to the terms and conditions that the complainant should undergo mandatory medical check-up.  On confirmation of the results and reports, the Health Insurance policy will be issued.  On 27.05.2014, due intimation given to the complainant to take mandatory medical tests namely; Complete Blood Count and Peripheral Smear, Urine routine SGPT/ALT, Serum Creatinine, ECG, Serum Cholesterol, Fasting Blood Sugar, MER Form etc.    The tests were conducted by the 2^nd opposite party and submitted a report.  On the basis of the medical report and the documents submitted by the complainant, his medical proposal has been rejected on account of abnormal ECG.   The 1^st opposite party submits that only to maintain cordial customer relationship, they had intimated the complainant to take ECG at Aarthi scans.   But the team rejected the medical proposal as the ECG changes were not acceptable as per the ‘Underwriting Guidelines’.  Further the contention of the 1^st opposite party is that IRDA (Protection of Policy holders’ interest) Regulations 2002, ‘an insurance company reserves the right to accept or reject proposal from as per its underwriting guidelines’ which reads as follows:

2 (1) “In these regulations, unless the context otherwise requires

   (d) ‘Proposal Form’ means a form to be filled in by the proposer for insurance, for furnishing all material information required by the insurer in respect of a risk, in order to enable the insurer to decide whether to accept or decline, to undertake the risk and in the event of acceptance of the risk to determine the rates, terms and conditions of a cover to be granted”.

11.    Further the contention of the 1^st opposite party is that the contract of insurance is a contract of Uberrimae Fidei and utmost good faith and both the contracting parties are bound by the terms and conditions of the policy.  But in this case, it very clear from the report of the 2^nd opposite party that the tests conducted is improper and incorrect and thereby, the alleged report ‘DEXTROCARDIA’ was given.  On the other hand, the other laboratory like Aarthi Scan report and the Cardiologist Dr. M Jayarajah has observed that the complainant have no heart disease proves the rejection of the proposal for medical health insurance amounts to deficiency in service.   Since, the medical health insurance is a benefit extended by the Government through the insurance companies for the welfare of the society. 

12.    The learned Counsel for the 2^nd opposite party would contend that the complainant  is a Consumer as defined under section 2 (1)(d)(i).  But is not denied that the 1^st & 2^nd opposite parties are the service providers for availing medical insurance.   Further the contention of the 2^nd opposite party is that immediately after brought to the knowledge of the 2^nd opposite party regarding deficiency in report, the 2^nd opposite party sent a letter to the 1^st opposite party for conducting fresh tests and report in order to afford the health Insurance Policy.  There is no deficiency on the part of the 2^nd opposite party.  But on a careful perusal of reports issued by the 2^nd opposite party as per Ex.B4 & Ex.B5, test reports, it is very clear that test was not conducted in a proper manner.  Further the contention of the 2^nd opposite party is that in order to prove the medical negligence, the complainant shall satisfy certain conditions namely; the act of omission or commission breach of duty, which must cause harm to the injured person.  The liability of a doctor arises when the injury results due to the conduct of the Doctor.   In this case, the report of the 2^nd opposite party on the basis of technician’s application shall be duly assessed by a competent Doctor proves the diagnostics which amounts to deficiency in service.  Further the contention of the opposite parties 1 & 2 the compensation claimed is exorbitant and imaginary.  Considering the facts and circumstances of the case, this Forum is of the considered view that the opposite parties 1 & 2 shall pay a sum of Rs.1,250/- towards the expenditure incurred by the complainant for undergoing medical test and a sum of Rs.10,000/- towards compensation for mental agony with cost of Rs.10,000/- to the complainant.

In the result, this complaint is allowed in part.  The opposite parties 1 & 2 are jointly and severally liable to pay a sum of Rs.1,250/- (Rupees One thousand two hundred and fifty only) being expenditure incurred by the complainant for undergoing medical test and to pay a sum of Rs.10,000/- (Rupees Ten thousand only) towards compensation for mental agony with cost of Rs.10,000/-  (Rupees Ten thousand only) to the complainant.

The aboveamounts shall be payablewithin six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 14^th day of March 2019. 

 

MEMBER                                                                  PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	23.05.2014	Copy of proposal form
Ex.A2	23.05.2014	Copy of bank statement for payment of premium
Ex.A3	27.05.2014	Copy of email from the 1st opposite party
Ex.A4	29.05.2014	Copy of Primex Scans & Labs Test results
Ex.A5	30.05.2014	Copy of the complainant’s email to the 1st opposite party
Ex.A6	30.05.2014	Copy of ECG Report issued by the 2nd opposite party
Ex.A7	03.06.2014	Copy of email from the 1st opposite party to complainant
Ex.A8		Copy of Literature on Dextrocardia & Lead Reversal
Ex.A9	05.06.2014	Copy of bill issued by Sooriya Hospital
Ex.A10	05.06.2014	Copy of Sooriya Hospital, Dr. Jayarajah’s Report
Ex.A11	05.06.2014	Copy of ECG Report of Sooriya Hospital
Ex.A12	30.06.2014	Copy of Normal Echocardiography Report, Sooriya Hospital – Routine Check up
Ex.A13	09.06.2014	Copy of the complainant’s email to the 1st opposite party
Ex.A14	09.06.2014	Copy of the 1st opposite party’s email to complainant
Ex.A15	16.06.2014	Copy of the complainant’s email to the 1st opposite party
Ex.A16	18.06.2014	Copy of the 1st opposite party’s email to complainant
Ex.A17	19.06.2014	Copy of Scan Report issued by Aarthi Scans
Ex.A18	19.06.2014	Copy of the complainant’s email to the 1st opposite party
Ex.A19	19.06.2014	Copy of the 1st opposite party’s email to complainant
Ex.A20	26.06.2014	Copy of the complainant’s email to the 1st opposite party & reply
Ex.A21	29.06.2014	Copy of the complainant’s email to the 1st opposite party
Ex.A22	02.07.2014	Copy of the complainant’s email to the 1st opposite party
Ex.A23	02.07.2014	Copy of the email from the 1st opposite party to complainant
Ex.A24	04.07.2014	Copy of the email from the 1st opposite party to complainant
Ex.A25	06.07.2014	Copy of Premier Scans & Lab bills
Ex.A26	06.07.2014	Copy of Premier Scans & Lab ECG
Ex.A27	08.07.2014	Copy of bill issued by Premier Scans & labs
Ex.A28	08.07.2014	Copy of letter from Premier Scans & Labs to the 1st opposite party
Ex.A29	08.07.2014	Copy of the complainant’s email to the 1st opposite party
Ex.A30	08.07.2014	Copy of reply email from the 1st opposite party
Ex.A31	08.07.2014	Copy of the complainant’s email to the 2nd opposite party & reply
Ex.A32	08.07.2014	Copy of the complainant’s email to the 2nd opposite party
Ex.A33	14.07.2014	Copy of the email from the 2nd opposite party to 1st opposite party
Ex.A34	14.07.2014	Copy of the complainant’s email to 1st opposite party
Ex.A35	15.07.2014	Copy of email from the 1st opposite party rejecting the complainant’s proposal
Ex.A36	03.09.2014	Copy of the notice of the complainant’s Counsel to the opposite parties & Acknowledgment cards

2^ND OPPOSITE PARTY SIDE DOCUMENTS:-

Ex.B1		Copy of Primex Health Care and Research Pvt. Ltd., Certificate of Incorporation
Ex.B2	15.06.2012	Copies of Certificates of skill and conduct of ECG Technician
Ex.B3	27.05.2014	Copy of MOU with ICICI Lombard
Ex.B4		Copy of ICICI Lombard – Appointment mail for Shri. S. Kathiresan
Ex.B5	29.06.2014& 30.05.2014	Copy of Lab Test and ECG Reports from Primex Health Care and Research Pvt. Ltd. Dated:29.05.2014 & 30.05.2014 respectively
Ex.B6	06.07.2014	Copy of ECG report
Ex.B7		Medical Literature on ‘Dextrocardia’

 

1^ST OPPOSITE PARTY SIDE DOCUMENTS:-

Ex.B8		Copy of Underwriting Guidelines – ICICI Lombard Complete Health Insurance
Ex.B9		Copy of details of refund of premium

 

 

 

MEMBER                                                                  PRESIDENT