Dt. of filing- 03/05/2018
Dt. of Judgement- 06/01/2020
Mrs. Sashi Kala Basu, Hon’ble President.
This consumer complaint is filed by the complainant namely Smt. Rekha Nandy under Section 12 of the Consumer Protection Act alleging deficiency in service on the part of the Opposite Parties namely (1) Life Insurance Corporation of India Limited, (2) General Manager, L.I.C. of India, (3) The Branch Manager, L.I.C. of India Kasba Branch, (4) The Branch Manager ( Health Insurance ), L.I.C. of India.
Case of the complainant in short is that complainant got herself insured with the Opposite Parties in L.I.C. Health Plus Plan being policy No. 5678961654 by paying premium of Rs.12,000/- as the 1st Premium and accordingly OPs issued the policy against such payment of premium. During the continuance of the policy , complainant fell ill and contacted the Gynaecologist on 15.07.2015, who after examining complainant diagnosed “Post-menopausal bleeding” for the last 5 months and advised for “Cendometrial Biopsy”. So as per the advice of the Doctor, Biopsy was done and it was diagnosed as “Moderately Differentiated Endometriod Adenocarcinoma”. She was advised by the Doctor for operation as “Adenocarcinoma” means cancer and the only course left is to operate to prevent the growth. So, complainant was immediately admitted at Ramkrishna Mission Seva Pratisthan and operation was performed on 04.082015. She was discharged on 18.08.2015. After recovery from the surgery she submitted a bill of Rs. 35,496/- to the OPs. But the OPs first reduced the claim amount of Rs.20,965/- and then repudiated the claim on the pretext that the complainant have suppressed the material facts during the inception of the policy. Being shocked, complainant met the authorities of Ramkrishna Mission Seva Pratisthan who also issued a certificate dated 09.11.2016 confirming that the disease of the complainant “Endometriod Adenocarcinoma” was detected on 27.07.2015 as she was suffering from ‘Post –menopausal bleeding by vagina for 4 / 5 months before the operation. But in spite of submitting the same before the OPs by the complainant, they paid no heed. Thus the present complaint has been filed by the complainant praying for directing the OPs to reimburse the amount payable to the complainant amounting to Rs. 35,496/- along with interest @12%, to pay compensation of Rs. 50,000/- and litigation cost of Rs.10,000/-
Complainant has annexed with the complaint, copy of the policy, copy of the prescription dated 15.07.2015, copy of the report of histopathological report, Copy of prescription dated 27.07.2015, discharge card of the Hospital and other related document including hospital treatment form, claim repudiation letter date d 09.05.2016 and the letters sent by the complainant to OPs and a certificate dated 09.11.2016 issued by the concerned hospital.
OP Nos.1, 3 and 4 have contested the case by filing W.V. contending specifically that the claim was rejected on the basis of the suppression of the material facts by the complainant. Claim was rejected under pre-existing suppression (HOI) Clause as per policy condition i.e. due to pre-existing disease of ‘Post infarct Leukomalacia since 10 years ”which was stated in the hospital treatment form by the said hospital. So, complainant was not entitled to the claim amount and thus the OPs have prayed for dismissal of the complaint. No step was taken by OP No.2 and thus the case has been heard exparte against OP No.2.
During the course of the trial, parties have filed their respective Affidavit in Chief followed by filing of questionnaire and reply thereto and ultimately arguments have been advanced by the parties. Both parties have also filed written notes of argument.
At the time of hearing of the argument, Ld. Advocate appearing for the complainant has cited three case laws – (1) Rabindra Singh Bindra – vs. - National Insurance Co. Ltd. & Ors. (2) Neelam Chapra –vs. - Life Insurance Corporation of India & Ors. (3) - Life Insurance Corporation of India & Anr. –vs. – Chawla Devi.
So, the following points require determination :-
- Whether there has been any unfair trade practice and deficiency in service on the part of the Opposite Parties ?
- Whether the complainant is entitled to the relief as prayed for ?
Decision with reason
Both the points are taken up together for a comprehensive discussions.
In this case, claim of the complainant that she had taken the health Plus Plan vide Policy No. 578961654 is not in dispute. Complainant has filed the copy of the policy wherefrom it appears that proposal was made on 18.08.2008 and policy commenced from 17.01.2009. As per the policy major surgical benefits sum assured was Rs.2,00,000/-. Complainant was admitted during the validity period of policy, at Ramakrishna Mission Seva Pratishtan on 27.08.2015 and underwent an operation on 04.08.2015 and thereafter was discharged from the hospital on 18.08.2015 is also not in dispute. Only contention which has been raised by the Opposite parties is that the OP repudiated the claim of the complainant due to suppression of material facts. It is contended by the OPs that the claim was rejected due to suppression of pre-existing ailment. According to OP, “Post Infarct Leukomalacia since 10 year” has been stated by the Ramkrishna Mission Hospital in hospital treatment form. So, on consideration of the said specific defence by the OP, the matter remains restricted only for discussion as to whether there was any suppression of material facts by the complainant at the time of inception of policy ?
Complainant has claimed that as she was having post menopause bleeding for 4/5 months, she consulted a Gynaecologist who after examining her, advised for “Cendometrial Biopsy”. After biopsy or histopathical report, as she was diagnosed that she was suffering from “Moderately Endometriod Carcinoma”, she was advised for operation. Complainant has filed these medical documents wherefrom it appears that she visited Dr.Manisha Bhattacharya on 15.07.2015 who advised for Biopsy. Doctor has also noted in the prescription dt. 15.07.2015 “Post Menopause Bleeding off and on for last 5 months. Menopause for 10 years”. As per biopsy report dated 22.07.2015, she was diagnosed “Moderately Differentiated Endometriod Adeno carcinoma” which is a type of cancer that begins in the uterus. So the complainant was admitted in Ramakrishna Hospital and surgery was conducted to prevent the growth.
However in the ‘Hospital treatment form, hospital had also mentioned in the column “History of past illness, diagnosis” “Post infarct Leukomalacia for 10 years”. So according to Opposite Parties, same was suppressed by the complainant. Opposite Parties have also stated that they had consulted the regular treating physician, who confirmed that the complainant was suffering from mental depression and was under his treatment for the last 10 years. But in this context it may be pertinent to point out that Opposite Parties have not filed any document to substantiate that the surgery of the complainant conducted on 04.08.2015, had any co-relation with the said depression. It has to be proved that the cancer for which complainant was operated resulted due to the mental depression of the complainant. There is absolutely no document filed before this Fora that the “Endometriod Carcinoma” which the complainant was suffering had any direct relation with the suffering of mental depression. Unless the same is established, contention of the OP that the claim of the complainant was repudiated due to alleged suppression of material facts, would be incorrect and unjustified.
In case of Hariom Agarwal –vs.- Orienal Insurance Co. Ltd. which is also relied upon by the Hon’ble NDCRD in case of Neelam Chopra –vs.-Life Insurance Corporation of India & others, Hon’ble Delhi High Court has held that
“Insurance - Mediclaim – Reimbursement- Present Petition filed for appropriate directions to respondent to reimburse expenses incurred by him for his medical treatment, in accordance with policy of insurance – Held, there is no dispute that diabetes was a condition at time of submission of proposal, so was hyper tension – Petitioner was advised to undergo ECG, which he did – Insurer accepted proposal and issued cover note – It is universally known that hypertension and diabetes can lead to a host of ailments such as stroke, cardiac disease, renal failure, liver complications depending upon varied factors – That implies that there is probability of such ailments, equally they can arise in non-diabetics or those without hypertension – It would be apparent t hat giving a textual effect to Clause 4.1 of policy would in most such cases render mediclaim cover meaningless – Policy would be reduced to a contract with no content, in event of happening of contingency – Therefore Clause 4.1 of policy cannot be allowed to override insurer’s primary liability –Main purpose rule would have to be pressed into service –Insurer renewed policy after petitioner underwent CABG procedure – Therefore refusal by insurer to process and reimburse petitioner’s claim is arbitrary and unreasonable – As a state agency it has to set standards of model behaviour; it attitude here has displayed a contrary tendency –Therefore direction issued to respondent to process petitioners claim, and ensure that he is reimbursed for procedure undergone by him according to claim lodged with it, within six weeks and petition allowed.”)
In this case in hand, complainant at the time of menopause which is a natural process in a woman when she reaches age of 45 or 50 years, had no reason to know that she would suffer from Endometriod carcinoma/cancer and so non-disclosure about menopause at the time of inception of policy, cannot be termed a suppression of fact.
So in view of the discussion as highlighted above, complainant is entitled to the medical expenses borne by her towards surgery and other charges. However, it may be pertinent to point out that the complainant has claimed Rs. 35,496/-but no medical bills has been filed by the complainant to prove payment of such an amount. On the other hand Opposite parties while denying or repudiating the claim, have stated in their letter dated 09.05.2016 about Rs.20,965/- suggesting complainant’s claim was assessed of Rs. 20,965/- only. So in the absence of medical bills, complainant is entitled to Rs.20,965/-. She is also entitled to compensation of Rs. 15,000/- for harassment and mental agony suffered by her. However, no order as to litigation cost is passed as the complainant has been provided legal aid.
These points are thus answered accordingly.
Hence,
Ordered
CC/225/2018 is allowed on contest against OP No. 1,3 & 4 and exparte against OP No.2. Opposite Parties are directed to reimburse an amount of Rs.20,965/- to the complainant and further pay an amount of Rs.15,000/- as compensation within sixty days from the date of this order in default the entire sum shall carry interest @ 9% p.a. till realisation.
