SMT. RAVI SUSHA : PRESIDENT
This complaint has been filed by the original complainant U/S 35 of Consumer Protection Act 2019,for getting an order directing opposite parties to pay the claim and release the actual eligible amount as per the insurance policy with 12% interest from the date of claim till the date of realization, to the complainant, together with Rs.10,000/- towards cost of this litigation.
The complainant’s case in brief , is that the complainant had taken an insurance policy from 1st OP on 30/4/2018 and first premium amount was paid. The complainant states that she had some pain in the abdomen in the year 2018 and consulted with a doctor nearby and the doctor prescribed some medicine for relief of pain and as such it was not effective, the complainant consulted with doctor and thereafter she was referred to Pariyaram Medical college and had undergone USG. It was detected as Multiple calculi and they concluded with gall bladder tones which are advised to be removed immediately. To avoid travelling she later consulted a Homeo doctor but there was no considerable improvement. Thereafter a Urologist was consulted with and again ultra sound was taken. There also she was advised for the removal of Gall bladder stone and incidentally detected disseminated malignancy was also detected. After biopsy it was confirmed and the treatment was started for cancer. The complainant further states that in the meanwhile the policy was lapsed for a period of 50 days from 30/4/2021 to 18/6/2021 as there was some delay in the agent to collect the premium amount. The complainant had filed her claims along with all the original documents on 4//9/2021 and it took almost 6 months for the OPs to revert back stating that the claim is repudiated by the OPs on 16/2/2022. The denial of legitimate claim by the OPs are clearly an unfair trade practice and deficiency in service. Hence the complaint.
The OPs contested the case by filing written version denying all the material allegations of the complainant. The contentions of the OPs are that the ICICI pru. Heart, cancer protect policy was availed by the complainant with effect 30/4/2018 . The tenure of the policy is 10 years and payment of premium was on yearly basis. The complainant failed to remit premium which was due on 29/4/2021 and the policy got lapsed. The revival of the policy is subject to the condition that the insured is not entitled to any benefit during the period for which the policy is inactive. The policy lapse is for the period from 30/4/2021 to 18//6/2021. OPs further submitted that the complainant had consulted Dr.Sreebhavan Unni with pain on the right side of stomach which is a symptom of Gall bladder cancer on 17/6/2021, one day before the policy was revived by payment of overdue premium on 18/6/2021. Which was a symptom of the disease. Sine symptoms occurred during the period when the policy was inactive for want of revival, the OPs are not liable to pay any amount according to the terms and conditions of the policy. That the complainant has not acted in good faith with respect to subject to this complaint and have approached the commission with unclean hands. It is submitted that an insurance policy is a legal contract between the policy holder and the insurance company and both the parties are strictly bound by the terms and conditions of the same. Further submitted that the policy also had a free look provision, whereby the complainant if she was not satisfied with the conditions of the policy, could have returned the policy. However, the complainant did not raise any request for cancellation of the policy. OPs submitted that the policy was in lapsed status from 30/4/2021 to 18/6/2021 .OPs stating that claim has been rejected as per clause 5- revival of the terms and condition of the subject policy as no benefit is payable for an event which occurred or symptoms of which first occurred or were first diagnosed during the period when policy was in lapsed condition. The fact that the complainant faced the symptoms of cancer. The complainant had a past medical history of DM and HTN and was being treated for the same. The OPs are not liable to pay the complainant for exclusions in the policy and she is not entitled to any of the reliefs claimed the complaint. Hence prayed for the dismissal of the complaint.
While pending of this case the original complainant expired and her legal heirs were impleaded as additional complainants as per the Interim application dtd.22/7/2022.
At the evidence stage, son of original complainant Mr.Sachin Surendran has filed his chief affidavit and has been examined as PW1 and marked Exts.A1 to A15. OPs have relied upon documents Exts.B1 to B3. The case records produced from Kozhikode Dhirubai Ambani Hospital were marked as Exts.X1 series to X3 series. Original case records of the patient from Malabar Hospital and also from Aster Mims Hospital, Kozhikode were also produced as per the petition of OPs.
After that the learned counsel of complainant and OPs filed written argument notes. We have carefully gone through the policy terms and conditions, medical records of the original complainant available before us and the submissions of learned counsels.
The only question to be decided in this case is whether complainant is entitled to get the policy claim as mentioned in the policy certificate?
The submission of learned counsel for OPs, that the complainant has not acted in good faith with respect to the subject of this complaint, and she has approached the commission with unclean hands. According to OPs, the complainant cannot demand any relief which is beyond the policy terms and conditions. Further submitted that the policy also had a free look provision, whereby the complainant if she was not satisfied with the conditions of the policy, could have returned the policy. But the complainant did not raise any request for cancellation of the policy. Further stated that the complainant failed to remit the premium for a period from 30/4/2021 to 18/6/2021 despite repeated reminders by OPs and after a lapse of around 50 days, insured paid the due premium , policy was reinstated on 18/6/2021. OPs submitted that so the policy was in lapsed status from 30/4/2021 to 18/6/2021 and as per the revival terms and condition, no benefit is payable to insured for an event which occurred or symptoms of which first occurred or were first diagnosed during the period when policy was in lapsed condition. OPs claims that since the complainant faced the symptoms of severe pain in the right side of the abdomen and also had gall bladder stones which are nothing but signs and symptoms of gall bladder cancer, decided to revive the policy and started taking tests to diagnose cancer. Hence as per condition- clause 5- of policy the claim of the complainant was rejected.
We have considered the submission put forward on behalf of the OPs and have gone through the materials on record including medical records. Here there is no dispute that the deceased insured had taken a policy from OPs on 30/4/2018 for 10 years ie the maturity date 30/4/2028 after remitting 1st premium of Rs.8185 having coverage option heart and cancer, and sum assured for cancer Rs.10,00,000/- and for Heart Rs.5,00,000/-. Further both parties admitted that the policy became lapsed on 30/4/2021 by non remittance of premium and it was revived on 18/6/2021 by remitting full premium amount by the insured subject to a condition “No benefit is payable for an event which occurred or symptoms of which first occurred or were first diagnosed during the period when policy was in lapsed condition".
With regard to the disease of the life insured, the averments in the complaint are that the original complainant Anitha Surendran had some pain in her abdomen in the year 2018 and thereafter she was referred to Pariyaram Medical college and had undergone USG. It was detected as Multiple calculi and they concluded with gall bladder stones which are advised to be removed immediately. To avoid travelling she later consulted a Homeo doctor but there was no considerable improvement. Thereafter a Urologist was consulted with and again ultra sound was taken. There also she was advised for the removal of Gall bladder stone and incidentally detected disseminated malignancy was also detected. After biopsy it was confirmed and the treatment was started for cancer. The complainant further states that in the meanwhile the policy was lapsed for a period of 50 days from 30/4/2021 to 18/6/2021. So it is evident that the complainant had no malafide intention in not renewing the policy and when the lapse was indentified immediately she preferred to renew the policy. The complainant had filed her claims along with all the original documents on 4/9/2021 and it took almost 6 months for the OPs to revert back stating that the claim is repudiated by the OPs on 16/2/2022. Stating the reason that the policy which has lapsed for nonpayment of premium within the days of grace may be revived subject to the following conditions. “No benefit is payable for an event which occurred or symptoms of which first occurred or were first diagnosed during the period when policy was in lapsed condition”. The denial of legitimate claim by the OPs is clearly an unfair trade practice and deficiency in service.
According to complainant, her claim is a genuine one, the denial of the legitimate claim by the OP is an unfair trade practice and deficiency in service towards an insured. Complainant pleaded that the medical records produced here clearly shows that during the treatment and during the claim application, the policy was valid.
The Hon’ble High Court of Kerala in a latest judgment reported as Star health and Allied Insurance Company Ltd vs. V.P.Satheesh Menon 2020(1)KLJ71, considered the same legal point as Rejection of medical insurance claim for the reason that insure contracted disease within 30 days of commencement of policy. The Hon’ble High Court observed as ”A disease can be said to be contracted for the purpose of insurance claim, only when after diagnosis it is clinically found that the patient is suffering from the disease. The symptoms related to the disease may be in existence for long periods prior to the diagnosis and the symptoms may be within the knowledge of the patient. For the purpose of an insurance claim, a disease can be said to be contracted only when it is diagnosed by a competent physicians and confirmed.”
Here the medical records submitted by the parties clearly indicate that in Ext.A3 USG abdomen dtd.30/ 8/:2018 Gall bladder-wall thickness appears normal. No wall discontinuity CBD is normal in diameter”. In Ext.A5 USG of abdomen dtd.21/6/2021, Gall-Bladder:- contracted. Shows a calculus 13.8mm. Further in Ext.A9 Diagnosis: Carcinomastectomy on 7/7/2021-. In Ext.A7 Discharge summary “ Diagnosis- Incidentally detected disseminated malignancy primary-?. Ca Gall bladder-HPR awaited. Procedure Done- Laparoscopic cholecystectomy on 7/7/2021. In history portion:- patient had complaints of right side upper abdomen vague pain on and off for past 2weeks. No h/o loss of weight and appetile. Thus the carcinoma was diagnosed by a competent physician and confirmed was on 7/7/2021.
From the medical records, the complainant was treated for carcinoma after obtaining the result of USG report dtd.7/7/2021. During that period the insurance was active. Thus there was no suppression of fact at the instance of the complainant and not get revive the policy after knowing the affected disease as cancer and in this regard the deceased life assured is entitled to get policy claim benefits. Past history of Hypertension and diabetes mellitus need not be considered in the present case because the coverage option in the present policy is for “cancer.”
Next point to be considered is what is the amount eligible for the life assured. As per policy clause No.2 in Ext.A1:- Lump sum pay out 25% of sum assured on minor condition, 100% of sum assured on major condition less earlier Minor condition claim pay out, if any. In this case Ext.X1 series clearly shows that Diagnosis- Advanced gall bladder carcinoma. Hence in the complainant’s case, the condition of the disease is on major condition. Further, there is no case that complainant received any amount in earlier minor condition. So complainant is eligible to receive 100% of sum assured ie, Rs.10,00,000/-(Sum assured for cancer). Hence, there is deficiency in service on the part of OPs in repudiating a genuine claim submitted by the complainant before them.
In the result complaint is allowed. Opposite parties are directed to pay Rs.10,00,000/- with interest @4% per annum from the date of complaint till realization to the legal heirs of the complainant, Additional complainants as impleaded in this case . Opposite parties are further directed to pay Rs.10,000/- towards the cost of this litigation. The awarded amount shall be paid by the opposite parties within one month from the date of receipt of this order, failing which the interest rate will enhance from 4% to 12% per annum to Rs.10,00,000/- from the date of complaint till realization. Complainants can realize the awarded amount by filing execution application against opposite parties as per provisions in Consumer Protection Act 2019.
Exts:
A1- Copy of insurance policy
A2-copy of claim intimation letter
A3-Scan report
A4-Treatment summary for Malabar hospital
A5- Ultra sound report from Thalassery co-op hoslital
A6-Prescription of Thalassery co-op hoslital
A7-Disharge summary, MIMS Hospital Calicut
A8-CT-study report –do-
A9&A10-Treatment details dtd.28/7/21, 4/8/21
A11-copy of USG report
A12- Spiral CT scan report
A13-Copy of Discharge summary
A14-Case history
A15 Copy of letter issued by Dr.Sewanti Limaye dtd.6/12/21.
B1- Application and customer declaration form
B2-SMS sent to the complainant along with certificate
B3-Medical documents submitted by complainant
X1 series- original Case records from Kokilaben Dhirubhai ambani Hospital
X2 series-Original case records from Malabar Hospital
X3 series-Original case records from Aster Mims Hospital
PW1-Sachin Surendran- complainant’s son
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
eva
/Forwarded by Order/
ASSISTANTREGISTRAR
