Kerala

Idukki

CC/9/2020

Thankachen A K - Complainant(s)

Versus

Indian overseas bank - Opp.Party(s)

Adv: km Sanu

26 Oct 2023

ORDER

DATE OF FILING :09/01/2020

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  26^th day of October 2023

Present :

              SRI.C.SURESHKUMAR                                               PRESIDENT

              SMT.ASAMOL P.                                                          MEMBER

              SRI.AMPADY K.S.                                                        MEMBER

CC NO.09/2020

Between

Complainant                       : Thankachan P.K.,

                                              Paimpillil House,

                                              Karimkunnam P.O., Thoduuzha.

                                                        (By Adv.K.M.Sanu)

                                                           And

Opposite Parties                 :  1 . The Manager,

                                                    Indian Overseas Bank,  

                                                    Thodupuzha Branch, Thodupuzha P.O.

                                                     (By Adv.Thomas Sebastian)

                                              2 . The Manger, 

                                                    Universal Sompo General Insurance Co.Ltd.,

                                                    Extension Counter, Indian Overseas Bank,

                                                    Thodupuzha Branch, Thodupuzha P.O.

                                              3 . The Manager,

                                                   Universal Sompo General Insurance Co.Ltd.,

                                                   Unit 401, 4^th Floor, Sangam Complex,

                                                   Anderi East, Mumbai 400 059.

                                                   (For OPs 2&3 by Adv.Saji Isaac K.J.)

                                                         

O R D E R

SMT.ASAMOL P., MEMBER

 

Complainant filed this complaint under Sec.12 of Consumer Protection Act 1986.  Brief facts of this complaint are discussed hereunder:- 

 

1 . Complainant had been taking Mediclaim policy of United India Insurance Company for the last 20 years without any interruption.  He is also an account holder in 1^st opposite party.  Opposite parties have implemented a mediclaim policy such as IOB – Health care plus policy and they induced  complainant and his wife to join this policy.  Opposite parties have assured that cashless facility will be given for treatment.  Believing it, during the validity period of United India Insurance Policy, this mediclaim policy was subsequently taken from opposite parties in the name of complainant’s wife in 2015.  This policy was renewed for premium of Rs.5214/- during the period from 04/10/2018 to 03/10/2019 for the coverage of Rs.2 Lakhs.  As per this policy, complainant, his wife and 2 children should get the insurance coverage.  Complainant is a beneficiary of this policy and thus he is a consumer.  Being over 60 years old, he has taken this mediclaim policy in the name of his wife.  But, the premium was paid by the complainant.

 

Complainant informed opposite parties about the policy of United India Insurance which he had renewed without any interruption and he demanded that the benefits should be given as a continuous policy.  Opposite parties have accepted these demand and true facts were informed to opposite parties for filing up of proposal form.  This proposal form was filled up by opposite parties.

 

During the validity period of this policy, since complainant suffered high cough and cold, he went to Muthalakkudam Holy Family Hospital and he was admitted there from 02/09/2019 to 07/09/2019, Rs.9,881/- was incurred for such treatment.  Thereafter, complainant applied for claim along with necessary documents to opposite parties.  But, they repudiated the claim with the reasons showing that complainant took this policy without disclosing the true facts.  But, this is not a proper reason to repudiate the claim.  Complainant joined the subsequent policy by believing the words of opposite parties that the benefits would be given as continuously of earlier policy.  Opposite parties have repudiated his claims with the reasons showing that it is a fresh policy.  This amounts to service deficiency on their part.

 

In case of claim in the same policy earlier, opposite parties had repudiated it for the same reason.  So, complainant had filed CC No.16/2019 case before this Commission and this was allowed and received the amount as per the order of this Commission.   The repudiation of claim on the basis of unreasonable grounds is a service deficiency.  Complainant is entitled to get compensation for service deficiency and claim amount along with 18% interest from opposite parties.  Hence, complainant has prayed for the following reliefs.

 

a  .  Opposite parties may be directed to pay Rs.9,881/- as hospital expenses along with 18% interest to complainant.

b . Opposite parties may be directed to pay Rs.25,000/- as compensation and Rs.5,000/- as cost of litigation to complainant.

 

Upon notice from this Commission, opposite parties have appeared and filed detailed written version.  Their contentions are briefly discussed hereunder.

 

Contentions of 1^st opposite party.

 

1 . All the averments in the complaint except those that are specifically admitted hereunder are false and hence denied by this opposite party.

 

2 . Complaint is not maintainable either in law or on facts of the case.  1^st opposite party has not issued any mediclaim policy to the complainant.  It was issued by the 3^rd opposite party.  The 1^st opposite party has no insurance contract with the complainant.  Hence the 1^st opposite party is a misjoinder to the complaint.

 

3 . This opposite party has not collected any amount from the complainant towards the premium of mediclaim policy issued by the 3^rd opposite party.  So, the complainant is not a consumer of the 1^st opposite party under section 2(D) of the consumer Protection Act.  So, the complaint is not maintainable against this opposite party.

 

4 . The complainant is an account holder of the 1^st opposite party.  3^rd opposite party made an offer to the savings bank account holders of the 1^st opposite party to provide mediclaim policy at low premium.  1^st opposite party has only facilitated the complainant to avail mediclaim policy from the 3^rd opposite party.  1^st opposite party has not issued mediclaim insurance policy to the complainant.  3^rd opposite party has issued mediclaim policies to the complainant.  As per mediclaim policy, there is only insurance contract between the 3^rd opposite party and the complainant to indemnify the medical expense of the complainant.  1^st opposite party is not a party to the insurance contract.  By the said mediclaim policy, 3^rd opposite party alone is liable to reimburse the claim of the insured.  As there is no contract between the complainant and the 1^st opposite party, this opposite party is not liable to reimburse the medical expenses incurred by the complainant.  Complainant has not submitted and claim regarding mediclaim to this opposite party.  This opposite party is not aware of the repudiation of the claim of the complainant.  Since there is no insurance contract between complainant and 1^st opposite party, there is no unfair trade practice and deficiency in service in repudiating the claim of complainant.  There is no deficiency in service on the part of 1^st opposite party in settling the claim.

 

5 . The allegations of deficiency in service are wholly misconceived, groundless, false, untenable in law besides being irrelevant having regard to the facts and circumstances.  The complaint itself, frivolous and vexatious and filed only to cause hardship to the 1^st opposite party and it is an abuse of process of court.  The claim of the complainant is repudiated by the 3^rd opposite party.  So, there is no deficiency in service from the part of 1^st opposite party.  Therefore, the complainant is not entitled to get Rs.9,881/-, the medical expenses incurred by the complainant, Rs.25,000/- towards compensation for deficiency in service and Rs.5,000 towards  cost of this complaint from the 1^st opposite party.  Hence, complaint may be dismissed with cost of this opposite party.

 

 

Contentions of 2^nd and 3^rd opposite parties.

 

1 . Complaint is not maintainable either in law or on facts.

 

2 . The allegation in page 1 of the complaint that the complainant had taken a policy with United India Insurance Co.Ltd., for the last 20 years without any break is not known to these opposite parties and is hence denied.  The further allegation that these opposite parties had induced the complainant to join the IOB Health Care Plus Policy is false and hence denied.  The further allegation that it was informed that cashless benefit will be given for treatment and the policy was taken in 2015 is false and hence denied.

 

3 . The allegation in the page 2 of the complaint that the complainant had informed about the policy with United India Insurance Co.Ltd. is false and hence denied.  The allegation in page 2 that it was informed that the benefits under the policy with United India Insurance Co.Ltd was continued is false and hence denied.  The further allegation that it was also informed and that the opposite party had agreed that the benefits of the policy without break should be given is also false and hence denied.

 

4 . Complainant had submitted proposal for IOB Health Care Plus Policy from these opposite parties and the policy was issued to the complainant based on the proposal form submitted by the complainant.  The policy issued to the complainant was not ported from any earlier policy.  The complainant had not submitted details for portability from any other policy.  The policy was issued to the complainant for the period from 04/10/2017 to 03/10/2018.  The policy was renewed from 04/10/2018 to 03/10/2019.

 

5 . Complainant had answered in the negative to the specific questions in the proposal form regarding “Are you suffering from any disease or physical infirmity, High blood pressure, heart disease including ischaemic heart disease, other  circulatory disease, any complaint or accidental injury which may require specialist’s consultation or surgical or hospital treatment or investigation in the next one year.”  Complainant had also declared that the statements made were true and complete in all respects.  The averments made as to the state of health of the insured in the proposal form and the personal statement were the basis of the contract and the complainant had obtained the policy by falsifying and suppressing material facts.  Complainant was aware and had declared in the application form that the declarations made in the application form was the basis of the policy.

 

6 . Complainant was having history of diabetes mellitus since 15 years.  The allegation in page 2 of the complaint that true facts were disclosed at the time of signing the proposal form is false and hence denied.  Complainant had not disclosed in the proposal form the fact that he was suffering from diabetes mellitus and hypertension.  The suppression of pre-existing diseases at the time of submitting the proposal was a material fact.

 

7 . Contract of insurance is a contract based on the terms and conditions of the policy and is binding on the parties.

8 . According to the conditions of the policy, the policy shall be void and premium paid shall be forfeited in the event of misrepresentation, mis-description or non –disclosure of any material facts.  Non-disclosure shall include non-intimation of any circumstances which may affect the insurance cover granted.

 

9 . According to the conditions of the policy, all benefit under the policy shall be treated as void in case of any fraudulent claims or if any fraudulent means are used by the complainant or anyone acting on the complainant’s behalf to obtain any benefit under the policy.

 

10 . The complainant had suppressed material facts that affected the insurance cover granted and hence policy had become void.

 

11 . Pre-existing Diseases means any condition, ailment or injury or related conditions(s) for which you had signs or symptoms, and /or were diagnosed, and / or received medical advice/treatment within 48 months to prior to the 1^st policy issued by the insurer.

 

12 . Contract of insurance is a contract uberimmaefidei and the parties are bound to observe utmost good faith.  The complainant had while submitting the application form suppressed the material fact that he was having hyper tension and diabetes mellitus.  When information on a specific aspect is asked for in the proposal form, an assured is under an obligation to make a true and full disclosure of the information on the subject which is within his knowledge.

 

13 . Good faith forbids a party from non-disclosure of the facts which the party privately knows, to draw the other into a bargain from his ignorance of that fact and his believing to the contrary.  The fact that the complainant was suffering from diabetes mellitus and hypertension for long years prior to the taking of the policy was a material fact which had a bearing on the risk involved and which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would like to accept the risk.

 

14 . In a contract of insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not to accept the risk a “material fact”.  If the proposer has knowledge of such fact, he is obliged to disclose it particularly while answering questions in the proposal form.  Any inaccurate answer will insurer to repudiate his liability because there is clear presumption that any information sought for in the proposal for is material for the purpose of entering into a contract of insurance.  The burden cannot be cast upon the insurer to follow up on an inadequate disclosure by conducting a line of enquiry.  It was the plain duty of the complainant while making the proposal to make a clear and specific disclosure.

 

15 . 2^nd and 3^rd opposite parties evaluates each individual’s medical history and takes a decision whether to accept a risk or to apply exclusion based on the declaration of the medical history by the proposer.  The policy would not have been issued in cases of an unacceptable risk that presents a significant risk at the time of underwriting.  Non disclosure of material facts in the proposal form leads to alteration in the contract.

 

16 . The allegation in page 2 of the complaint that the complainant had given true facts is false and hence denied.  As admitted by the complainant he  got the proposal filled up by the 1^st opposite party.  The Hon’ble Supreme Court has held that the insured by signing that proposal adopts those answers and makes them his own and that would clearly be so, whether the insured signed the proposal without reading or understanding it, it being irrelevant to consider  how the inaccuracy arose if he has contracted, his written answers shall be accurate.  A person who affixes his signature to a proposal which contains a statement which is not true, cannot ordinarily escape from the consequence arising there from by pleading that he chose to sign the proposal containing such statement without either reading or understanding it.  In filing up the proposal form, the agent normally, ceases to act as agent of the insurer but becomes the agent of the insured and no agent can be assumed to have authority from the insurer to write the answers in the proposal form.  If an agent nevertheless does that, he becomes merely the amanuensis of the insured, and his knowledge of the untruth or inaccuracy of any statement contained in the form of proposal does not become the knowledge of the insurer.

 

17 .  This Hon’ble Forum had in CC No.16 of 2019 directed this opposite party to pay the amount on the reasoning that the complainant had only affixed his signature on the proposal form.  The decision of the Hon’ble Supreme Court is binding and is a precedent on this point.  The complainant having affixed his signature is bound by the answers given in the proposal form.

 

18 . The allegation in the complaint that there is deficiency in service on the part of these opposite parties is false and hence denied.  There has been no deficiency in service or unfair trade practice on the part of these opposite parties.

 

19 . There is no cause of action for the alleged complaint.  The complainant is not entitled to any of the reliefs claimed in the complaint.  The complainant is not entitled to the hospital expenses or for compensation or litigation expenses or for interest.

 

20 . Even assuming without admitting liability, the liability of these opposite parties is limited to the terms, conditions and limitations of the policy.  These opposite parties are not liable to pay any interest, compensation and cost to the complainant.  Hence complaint may be dismissed with cost.

 

After filing written version, case was posted for evidence.  Complainant has not adduced oral evidence.  He had produced 5 documents and these were marked as Exts.P1 to P5.  Opposite parties have also not adduced oral evidence.  2^nd and 3^rd opposite parties had produced 4 documents and these were marked as Exts.R1 to R4 on the part of evidence of them.  There was no documents produced by 1^st opposite party.  Hence, evidence closed.

 

Heard the counsels for both sides, thereafter, it was taken for order.   Now the points which arise for consideration are:-

 

1 . Whether there was any deficiency in service on the part of opposite parties?

2 . If so, for what reliefs the complainant is entitled to?

 

Points are considered together

We have gone through complaint and marked documents.  As per Ext.P1 ie, IOB Health Care plus policy schedule cum tax invoice, it is seen that complainant is an insured person under this medicalim policy of universal Sompo General Insurance Company Ltd for the period from 04/10/2018 to 30/10/2018 with coverage of 2 Lakhs Rupees and an amount of Rs.5,214 was paid as the insurance premium.  The previous policy details are discussed in this P1 document.  This previous policy was started on 04/10/2017.  Ext.P2 is Health service card, Ext.P3 is copy of discharge summary, Ext.P4 is copy of impatient invoice summary issued from Holy Family Hospital and Ext.P5 is claim repudiation letter.  Complainant states that during the policy from United India Insurance, he had joined this present medicalim policy since 2015.  Later, this policy was renewed for further periods.  But, it is proved that the present policy had started only on 04/10/2017 under Ext.P1.  There is no other documents produced to prove that complainant had joined to mediclaim policy in the year 2015.  Also, it is not proved that this policy was ported from any earlier policy.  No evidence adduced to prove the portability of this policy.  Moreover, complainant states that there was a case before this Commission as CC No.16/2019 and it was allowed directing opposite parties to pay the claim amount and as per this order, opposite parties have given such claim amount to him.  Copy of order is not produced.  There is no material before us regarding the circumstance and evidence in that case on the basis of which claim had survived.  No oral or documentary evidence was adduced in this regard.

 

Exts.R1 to R4 were marked.  R1 is copy of proposal form, R2 is policy schedule cum tax invoice, R3 is copy of discharge summary issued from MCSC Hospital, Kolenchery, Ernakulam District, and R4 is copy of claim repudiation letter.  Ext.R1, ie copy of proposal form is not readable; hence, it cannot be considered on the part of evidence.  2^nd and 3^rd opposite parties have contended that complainant was having history of diabetes mellitus since 15 years and he had not disclosed it in the proposal form.  Since Ext.R1 is not a readable copy, it cannot be seen that whether pre-existing diseases of complainant were disclosed or not.  However, as per Ext.R3, we find that complainant was admitted on 22/11/2018 and was discharged on 23/11/2018 in MCSC Medical College Hospital, Kolenchery and he was diagnosed proteinnuria under evaluation, Type 2 Diabetes Mellitus, Hypertension, EARLY NPDR, Fatty liver and Renal biopsy was done also.  It is reported in this R3 document that complainant was having a history of diabetes mellitus since 10 years and hypertension since 20 years and on evaluation, he was found to have early NPDR and ANA positive with proteinuria.  Against this document, complainant has not either objected or adduced any evidence favourable to him. Under Ext.R2, pre-existing diseases will not be covered until 48 months of continuous coverage have elapsed, since inception of the first policy with opposite parties, but, if  insured presently covered have been continuously covered without any break under an individual health insurance plan with an Indian insurer for the reimbursement of medical costs for inpatient treatment in a hospital, then pre-existing diseases exclusion of the policy status is deleted and shall be replaced entirely and the waiting period for all pre-existing diseases shall be reduced by the number of continuous preceding years of coverage under the previous health insurance policy.  In this case, it is evident that complainant has joined this policy for the period from 04/10/2017 to 03/10/2018 and later, it was renewed from 04/10/2018 to 03/10/2019.  Before 04/10/2017, complainant had taken mediclim policy is not proved.  Therefore, the benefit of continuous health insurance policy will not be getting into complainant’s present policy issued from opposite parties.  Complainant’s claim was repudiated under Ext.R4 due to the reason that non-disclosed material fact such as pre-existing disease of complainant which was suffering from DM and on treatment since 15 years.  This is proved under Ext.R3.  As per this policy, if there is any pre-existing disease, it will be covered only after 48 months of continuous coverage.  Here, complainant had applied claim towards the treatment from 02/09/2019 to 07/09/2019.  On the basis of evidence, 1^st policy taken on 04/10/2017.  Therefore, as per the policy terms and conditions regarding the pre-existing disease, complainant’s claim will not be covered, because, 48 months of continuous coverage is not completed.  Therefore, repudiation of claim to this policy cannot be considered as a service deficiency of opposite parties.  Hence, reliefs prayed in this complaint cannot be granted.  Under these circumstances, complaint is dismissed without costs.

       Parties shall take back extra copies without delay.

       Pronounced by this Commission on this the   26^th day of October 2023.                                                                                                                                                                                                                            

                                                                                              Sd/-                                                        

                                                                         SMT.ASAMOL P., MEMBER

                                                                                              Sd/-

                                                                   SRI.C.SURESHKUMAR, PRESIDENT

                                                                                              Sd/-

                                                                           SRI.AMPADY K.S., MEMBER

APPENDIX

Depositions :

On the side of the Complainant :

Nil

On the side of the Opposite Party :

Nil

Exhibits :

On the side of the Complainant :

Ext.P1   -  IOB Health Care plus policy schedule cum tax invoice

Ext.P2   - Health service card

Ext.P3  -  Copy of discharge summary

Ext.P4  -  Copy of impatient invoice summary issued from

                Holy Family Hospital

Ext.P5 - Claim repudiation letter

On the side of the Opposite Party :

Ext.R1 - Copy of proposal form

Ext.R2 - Policy schedule cum tax invoice

Ext.R3 -  Copy of discharge summary issued from MCSC Hospital, Kolenchery, Ernakulam District

Ext.R4 - Copy of claim repudiation letter.           

                                                                                                  Forwarded by Order

 

                                                                                  ASSISTANT REGISTRAR