DATE OF FILING: 15.10.2015
DATE OF DISPOSAL: 21.06.2017
Dr. N.Tuna Sahu, Presiding Member:
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act, 1986 alleging deficiency in insurance service against the Opposite Parties (in short the O.Ps) and for redressal of his grievance before this Forum.
2. Briefly stated the case of the complainant is that he procured a Health Plus insurance policy bearing No.572174473 from the O.Ps for himself, his wife and son on payment of Rs.20,000/- towards yearly premium. The total sum assured under the policy is Rs.2,00,000/- for each with profit and initial daily hospital cash benefit of Rs.1,000/- for him (as principal insured), his wife and children. The policy commenced on 3.6.2008 and to be expired on 3.6.2033. Due to his illness he was taken to S.C.B. Medical College, Cuttack on 11.7.2012 and was referred to the Cardiology Department of the said hospital. The staff who admitted the complainant informed the doctor that the complainant was suffering from hypertension since last five year. On the basis of the information he was diagnosed that he was suffered from ‘syncope’ and post PPI and was provided treatment as an indoor patient from 11.07.2012 to 18.07.2012 and the complainant had spend a total sum of Rs.3,01,462/- after discharge from hospital, the complainant submitted a claim of Rs.3,01,462/- before the O.Ps for reimbursement of expenses incurred in his treatment. But the O.Ps rejected his claim on the ground of suppression of pre-existing disease prior to taking of the policy. The complainant made a number of correspondences with the Ops, but the O.Ps did not give any heed to his grievances. Again he was admitted at CMC Vellore for treatment from 14.05.2013 to 29.05.2013 and he spent a sum of Rs.3,49,123/- and submitted the claim before the O.Ps. The second claim of the complainant was also repudiated by the O.Ps on the same ground. He has also mentioned in his complaint that he was not having any pre-existing hypertension disease prior to taking the insurance policy and the doctor collected wrong data from his colleagues at the time of admission and it is contended that as per the certificate of Dr. T.K. Mishra, Head of the Department and Professor of Cardiology, S.C.B. Medical College & Hospital, Cuttack and despite submission of all records and clarifications by the treating doctor, the O.Ps repudiated the genuine claim of the complainant on the ground of pre-existing disease and repudiated the claim with the advice if aggrieved can file an appeal before the Manager (HI), LIC of India, Divisional Office, Khodasingi, Berhampur, Ganjam, Odisha 760010 i.e. O.P.No.2 in this case. Being aggrieved, the complainant also preferred an appeal before the Manager (Health insurance) but without appreciating the facts and documents submitted and the clarification rendered by the treating doctor, he upheld the rejection on the ground of pre-existing disease in his letter dated 28.09.2013. The complainant being dissatisfied with the decision of O.Ps also redressed his grievances by filing a complaint before the insurance Ombudsman but the same was also dismissed on 4.3.2015 due to devoid of any merit. When the complainant failed to get his medical claim reimbursed from the O.Ps, he has filed this complaint before this Forum with the prayer to direct the O.Ps to pay a sum of Rs.6,50,585/- to the complainant towards the medical expenses along with interests @18% per annum from the date of rejection till realization and to pass further order for mental agony and cost of litigation in the interest of justice.
3. On notice, the O.Ps appeared in this Forum on 10.12.2015 through learned counsel Sri Fakir Mohan Pattnaik, Advocate, Berhampur, and filed his written version on 16.2.2016 and written argument on 22.03.2016. In his written version/written argument he contended that the complainant has filed the complaint with all false and frivolous allegations. The O.Ps denied all vague and concocted allegations and the complainant shall put to strict proof of the allegations those are not specifically admitted and the allegations those are not traversed herein may be deemed to have been denied. It is admitted that the date of commencement of the policy is 3.6.2008 on the life of the complainant, his wife and son. The Health Plus policy covers benefits like hospital cash benefit, domiciliary treatment benefit and major surgical benefit and the sum assured is Rs.2,00,000/- each person under the said policy. It is further averred that the records of treatment produced by the complainant himself proves that he was suffering from hypertension since five years and prior to the date of treatment i.e. 11.7.2012 and his policy was commenced 4 years one month preceding to the same date. As such, his disease of hypertension was pre-existing on the date of commencement of his aforesaid policy on 3.6.2008. So, he has violated the agreed conditions No.6 of the policy. It is also informed that the clause-6 of the policy conditions deals with exclusions applicable to Hospital cash benefit and major surgical benefits in case of pre-existing conditions. Accordingly, as per the said clause, no benefits are available and no payment will be made by the Corporation for hospital cash benefit and major surgical benefits under the policy if pre-existing conditions suppressed by the insured. When the facts and circumstance of the case in hand is considered in the light of the aforesaid exclusion clause of the policy condition, it is found that it very well comes within the folds of pre-existing conditions. Thus, his claim was rightly repudiated and his both claims were intimated dated 17.09.2012 and 29.9.2013 respectively. It is further averred that the complainant’s assertion that while taking the policy he was disclosed the real status of health and there was no pre-existing disease is false, vague and vexatious. On Third Party Administrator (TPA) enquiring the O.Ps could ascertained that the complainant was admitted at the causality Department of S.C.B. Medical College & Hospital, Cuttack on 11.7.2012 and then he was treated as indoor patient for the period 11.07.2012 to 18.07.2012 for cardiology problems. He was in conscious states at the time of consultation and he had given this statement in his conscious state of mind before the doctors on duty that he was suffering from hypertension since last 5 years which was recorded in his bed head tickets. Hence, the alleged certificate of treatment dated 14.1.2013 of Dr. T.K. Mishra is not genuine and a subsequent creation for the purpose of the case. It is not true that the complainant had spent a total sum of Rs.3,01,462/- and Rs.3,49,123/- by him respectively for his medical expenses. Hence, after due enquiring by TPA, the claim of the complainant was repudiated on the ground of pre-existing disease vide their letter No. LIC/TPA dated 31.08.2012. Subsequently, while considering his application dated 16.1.2013 supported with clarification certified by Dr. T.K. Mishra, medical report from the Divisional Medical referred, Berhampur was called for and who after due consideration of facts and circumstances as well as examination of medical documents, discarded the explanation given by said Dr. T.K. Mishra and repudiated the claim adducing sufficient medical grounds which was just and proper. After that the complainant challenging the repudiation also filed a complaint bearing No.BHUL-029-314-1992 & 2038 before the Insurance Ombudsman, Odisha, Bhubaneswar, which was heard and dismissed on 04.03.2015 due to devoid of any merit. Besides, the learned counsel for the O.Ps has also contended that this Hon’ble Forum has got no jurisdiction to deal with the present dispute, the complaint is barred by limitation and the complainant has no good and reasonable cause to file the complaint. Therefore, it is humbly prayed by the O.Ps that the Hon’ble Forum may be pleased to dismiss the complaint with cost in the interest of justice.
4. On the date of final hearing of the consumer dispute we heard the learned counsel for the complainant as well as for the O.Ps. We have also gone through the complaint and written arguments and other material documents like policy document, claim papers and correspondences filed by the complainant placed on the case record. We have perused and verified the medical papers submitted by both parties. We have also carefully considered the submissions made by the learned counsel for the complainant as well as for the O.Ps in the light of peculiar facts and circumstances of this case.
5. On perusal of the case record and as submitted by the learned counsel for the complainant as well as for the O.Ps, it appears that it is not in dispute that the complainant obtained the insurance policy bearing No.572174473 on 23.05.2008 which was commenced on 3.6.2008 on payment of annual premium of Rs.20,000/- and the installment premium is due in June every year. Under the said policy, a total of 3 persons are insured, including the complainant himself, his wife and son for an assured sum of Rs.2,00,000/- for each person and the policy is to be expired on 3.6.2033. According to the policy document the age of all insured persons are admitted by the insurer and the policy offers benefits like initial daily hospital cash benefit and major surgical benefits to the insured persons of the family of the complainant. Due to ill health of the complainant he had undergone treatment for his cardiology problem from 11.7.2012 to 18.7.2012 for treatment of syncope and the PPI was done on 12.7.2012. Accordingly, the complainant claimed the expenses of his treatment of Rs.3,01,462/- before O.Ps but the O.Ps repudiated the claim of the complainant on 31.08.2012 on the ground of suppression of pre-existing disease of hypertension which was suffering by the complainant for the last 5 years. Similarly, the complainant again got admitted in CMC, Vellore and was under treatment from 14.5.2013 to 29.05.2013 where it was diagnosed as post pace maker implantation pocket infection (Pseudomonas) and incurred an expenditure of Rs.3,49,123/- towards hospitalization and treatment. The complainant also claimed for the treatment expenses of Rs.3,49,123/- but the O.Ps again repudiated the claim on 29.6.2013 on the ground of pre-existing illness of hypertension which is one of the co-factors for surgery, hence the claim of the complainant was rejected with an advice to redress his grievances before the Manager (Health Insurance) in the office of O.P.No.2. However, the Manager (Health Insurance) in his letter No.BDO/HI/CLAIM dated 28/09/2013 upheld the rejection of the claim and also clarified that even the claim for hospitalization period 14.05.2013 to 29.05.2013 is not payable due to pre-existing disease clause. The complainant being dissatisfied by the decision of O.Ps preferred a complaint bearing No.BHU-L-029-1314-1992&2038 before the Insurance Ombudsman and the learned Ombudsman passed his order on 04.03.2015 by dismissing the complaint due to devoid of any merit. On the above context, the Forum is to decide the points in dispute whether there was suppression of pre-existing disease by the complainant while procuring the policy from O.Ps? Whether the O.Ps are justified by repudiating the claim of the complainant?
6. With regard to suppression of pre-existing disease, on perusal of the medical treatment papers, it reveals that the complainant was undergoing treatment in the Department of Cardiology at S.C.B. Medical College and Hospital, Cuttack from 11.07.2012 to 18.07.2012 for treatment of Post PPI as is evident from the discharge ticket placed in the case record submitted by the complainant. On further examination of the treatment papers filed by the learned counsel for the O.Ps it also discloses that the complainant was undergoing treatment for cardiology problem and was given treatment for Post PPI (DDDR) on 12.07.2012. During the consultation and as per the diagnosis of disease, the consulting doctor noted that it was due to hypertension for the last five years. Similarly, on perusal of the document of discharge summary of Christian Medical College, Vellore, Department of Cardiology Unit-II where he was undergoing treatment from 14.05.2013 to 29.05.2013 and in the history of disease, the consultant doctors have noted that the complainant was a known patient of hypertensive and was diagnosed to have Pacemaker Pocket Infection. However, the Certificate of Treatment issued on 14.01.2013 by Dr. T.K. Mishra, Prof. & HOD of Cardiology, Institute of Cardiovascular Sciences, S.C.B. Medical College and Hospital, Cuttack mentions that at the time of admission in Casuality of S.C.B. Medical he was not in conscious stage and his junior Dr. Bose has wrongly recorded the statement that he was suffering from hypertension as per the statement of persons of his office who are ignore about his health condition and also wrongly recorded the age of the complainant as 40 years. He has also stated to have observed from the report of Dr. Santosh Kumar Panda, M.S., H.O.D. Capital Hospital that the hypertension of Mr. Sudhir Kanta Panda (the complainant) was occurred on 25.06.2012 and he referred the complainant to the Department of Cardiology, S.C.B. Medical College & Hospital on 11.07.2012 and he has also mentioned that his date of birth is 20.02.1968 in his certificate of treatment. In view of the above and in the foregoing circumstances, in our considered view we would like to say that the complainant has filed contradictory and controverted documents in support of his case. That apart there is nothing placed on record to prove that the hypertension of the complainant was occurred on 25.06.2012 as there is no documentary proof placed on record from Dr. Santosh Kumar Panda, M.S., H.O.D. Capital Hospital, Bhubaneswar to prove the same. We feel that the complainant has procured the certificate of treatment from Prof T. K. Mishra, Prof. and HOD of Cardiology, S.C.B. Medical College, Cuttack as a result of afterthought since the original treatment papers and discharge ticket of Department of Cardiology, S.C.B. Medical College & Hospital and Discharge Summary of Christian Medical College, Vellore, Cardiology Unit-II discloses that the complainant was suffering from hypertension prior to his treatment at S.C.B. Medical College & Hospital and at Christian Medical College, Vellore respectively. It is a fact that the policy in question commenced on 03.06.2008 and the treatment papers of Department of Cardiology vide emergent indent of medicines and cardiology consultation documents of SCB Medical College & Hospital, Cuttack dated 11.07.2011 of the complainant discloses that he was suffering from hypertension for the last five years. Hence, there is no doubt or dispute that the complainant had suppressed his hypertension disease while taking the policy from the O.Ps. It has been held in a number of judgments that the contract of insurance is based on good faith and it is the life assured who can give the correct information with respect to his health which in the instant case the life assured had not given. This, being so, the complainant is not entitled to get the claim as per the policy conditions since the complainant has violated the policy conditions in the instant case. The fundamental principle of insurance law is that utmost good faith must be observed by the contracting parties and good faith forbids either party from non-disclosure of the facts which the parties known and the insured has a duty to disclose. In this case when the complainant has suppressed his disease during procurement of the policy in dispute, the O.Ps are justified in repudiating the claim of the complainant.
7. In this case, the learned counsel for the complainant has submitted four number of citations in support of his case decided by the Hon’ble National Commission such as in the case of National Insurance Company Ltd Vs. Raj Narain reported in (2008) NCJ 559 (NC), LIC of India Vs. Smt. Chandra Baghrecha reported in IV (2003) CPJ 16 (NC), Surinder Kaur & Others Vs. LIC of India & Ors reported in II (2005) CPJ 32(NC) and in the case of Smt. Alia Begum Vs.LIC of India reported in (1997) CPJ 106 (NC) respectively. We have carefully gone through the citations and found that in the case of National Insurance Company Ltd Vs. Raj Narain the heart disease prior to taking the policy was not proved as alleged whereas in the instant case the disease of hypertension prior to taking of the policy in dispute is proved on record. Similarly, in the case of LIC of India Vs. Smt. Chandra Baghrecha with regard to the contention of material fact regarding illness before taking policy was not proved since in that case before taking that policy the doctors of insurance company had thoroughly examined the insured whereas in the instant case the complainant has not taken such a contention that the insurer had issued the policy after thoroughly checked insured by the Doctors of O.Ps, thus, due to factual difference of both cases, the said citation is also not applicable in this case. With regard to the citation in the case of Surinder Kaur & Others Vs. LIC of India & Ors, we would like to view that in that case the contention of suppression of material facts by the O.Ps was not proved since no record was produced by the insurer in support of their contention but in the instant case it is proved on record that the complainant had suppressed his hypertension disease prior to taking the insurance policy in dispute as is evident from the medical treatment papers. Therefore, the said citation is not acceptable due to distinguishable facts of both cases. In the case of Smt. Alia Begum Vs. LIC of India we would like to view that the point of law that was discussed in the said citation is on onus probandi in case of allegation of suppression of material facts which rests heavily on the party alleging suppression of material fact i.e. on the insurer. Burden is cast on the insurer to show that the statement was on a material or facts have been suppressed which it was material for the policy holder to disclose and accordingly in the said case it was not proved by the insurer. But in this case, the allegation made by the O.Ps regarding suppression of the disease of hypertension by the complainant is proved on record through verification of medical treatment papers submitted by the O.P. insurance company. The said citation is also not applicable to the instant case due to factual differences of the cases. We have perused all the four decisions. Facts of four citations discussed above are very different from the facts in the case before us. Therefore, the case of the complainant can derive no support from any decision cited on behalf of the complainant. We are, therefore, not inclined to accept all the aforesaid citations due to distinguishable factual differences of all the cases discussed above. In the light of foregoing discussion, all the citations filed by the learned counsel for the complainant are not applicable at all and those citations are rejected due to distinguishable factual differences.
8. In a sequel to the foregoing discussion and considering the fact and circumstances of the case, we dismissed the case of the complainant against O.Ps due to devoid of any merit. The case of the complainant is disposed of accordingly. However, there is no order as to cost or compensation.
9. The order is pronounced on this day of 21th June 2017 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of
