This complaint has been filed U/S 35 of Consumer Protection Act 2019 for getting an order directing the opposite parties to release Rs.10,00,000/-with interest and cost of the proceedings.
The case of the complainant is that the complainant’s deceased husband Mr.Sreenivasan P.N had taken a cancer cover policy No.314604050 from the OP on 14/8/2018 and the plan was for a period upto 14/8/2037 for a sum of insured value of Rs.10 lakhs, and the 1st premium Rs.7466/- was paid on the same day and subsequently the policy certificate was issued by OPs to the insured. The complainant’s deceased husband had undergone a routine health checkup at Kottiyoor family health centre during the last week of January 2019 and everything was normal except a minor back pain for which an ointment was prescribed for external application. As the back pain for Sreenivasan was not subsiding after the application of the ointment a USG Abdomen test was taken at Reshmi Hospital Peravoor as advised by Dr.Sruthi on 5/2/2019 and as per the scanning result, it was found as Mild fatty charges in the hypo echoic area seen in the pancreatic body and also a CT abdomen test conducted on 6/2/2019 at Shaji’s MRI centre, Kannur, as per the scan report a possibility of Lymphoma/ primary stomach malignancy. On the next day itself insured was taken to Lake Shore Hospital at Ernakulam and consulted with the senior doctor Gangadharan on 8/2/2019. Dr.Gangadharan advised for a provisional biopsy test of OGD scopy biopsy CT Chest. Even though no specific medicine was prescribed they advised the complainant and her deceased husband to come back after a week by the time the test result of OGD scopy will be ready. As advised by the doctor, the complainant reached Ernakulam with her deceased husband on 14/2/2019 at Lakeshore Hospital and consulted Dr.Gangadharan and it was confirmed that the diagnosis result as cancer at 4th stage which has already spread to lungs, liver,Lymph nodes ,gastro esophageal junction etc. Further doctor said that since it has spread to many parts of the body immediate surgery may not be possible and advised to start chemo therapy and a circle of chemo was conducted. Even though the deceased husband was found recovering from the illness slowly, he fell ill again during the month of September and finally he passed away on 24/11/2019. Therefore the complainant made the claim under the said cancer cover policy through the complainant’s letter dtd.2/1/2020. But the OP has sent a letter dtd.19/8/2020 stating that the claim is inadmissible for the reason cancer detected within 180 days. Since the first diagnosis as well as the final diagnosis falls on the same ie 14/2/2019 which is beyond 180 days of taking the policy, the complainant is entitled for the benefit. The denial of legitimate claim by OP is clearly an unfair trade practice and exploitation of the consumer within the meaning of the C.P.Act also such action of denial of legitimate claim is baseless and improper and hence bad in law. Hence filed this complaint.
The OPs, Life Insurance Corporation of India filed version pleaded that the complaint is not maintainable either in law or on facts. OPs denied the entire allegations of the complainant and submitted that they had issued a policy No.314604050 for a sum assured Rs.10 lakhs in the name of Sreenivasan P.N under cancer cover No.905 which is a non linked, non medical regular premium payment health insurance plan which provides fixed benefit in case the assured diagnosis with any of the specified early and / or major stage cancer during the policy term ,subject to certain terms and conditions. The date of policy is 14/8/2018 under half yearly mode and premium Rs.7466/- and maturity date is 14/8/2037 . This is a non medical insurance plan and LIC is not insisting for medical check up of the life to the insured before entering into contract. The cancer cover policy taken by late Mr.Sreenivasan.P.N , husband of complainant has that a waiting period of 180 days will apply from the date of issuance of policy or date of revival of risk cover whichever is later. If the first diagnosis of any stage cancer. Any stage cancer means all stages of cancer that occur during the waiting period. This would mean that nothing shall be paid under the policy and the policy shall be terminated if any stage of cancer occur. (1) At any time on or after the date of issuance of the policy but before the expiry of 180 days reckoned from that date(or) (2) before the expiry of 180 days from the date of revival. The date of issuance of the policy is 14/8/2018 plan & terms 905-19 under half yearly mode and half yearly premiumRs.7466/-. It is stated that the medical checkup held at Resmi Hospital and the CT abdomen test conducted on 6/2/2019 at Shaji MR’s centre, Kannur doctors had diagnosed lymphoma primary stock malignancy to the life assured. Further in the test conducted on 8/2/2019 at Lakeshore Hospital Kochi cancer was diagnosed and confirmed. The statement on 14/2/2019 at Lake shore hospital cancer diagnosis was confirmed is totally false and denied. OP further submitted that as per the discharge summary dtd.15/2/2019 Lakeshore Hospital Kochi submitted to LIC for preferring a cancer cover claim, Mr.Sreenivasan had complaint of back pain for 10-15 days along with lower abdominal pain and dysphagia to solid food since 2 months. As per the same discharge summary Mr.Sreenivasan had history of belching and weight loss, 8.Kg in one year. He is a diabetic on diet. OGD scopy was done at Lake shore Hospital which revealed carcinoma Ge Junction. As per the treating doctor certificate in form No.905/A3, the treating doctor Dr.V.P.Gangadharan,HOD,Medical Ongology, tests done and results of the same for confirming the diagnosis is OGD scopy+biopsy+CT chest and the date applicable is 8/2/2019. On receipt of the claim forms along with discharge summary, treating doctor certificate, the OP had called for all previous treatment details. A vague hypo echoic area seen close to the pancreatic body in the medical checkup held on 2/2/2019 at Resmi Hospital and possibility of lymphoma is detected in the CT abdomen test conducted on 6/2/2019 at Shaji’s MRI centre, Kannur. Thereafter on 8/2/2019 through OGD scopy at Lakeshore Hospital, Carcinoma GE junction confirmed. The biopsy report dtd.13/2/2019 has further confirmed the cancer as moderately differentiated adenocarcinoma. The claim assessment report given by DMR also shows that the date of final confirmatory test was on 8/2/2019 and the diagnosis is Carcinoma GE junction. The date of issuance of policy is 14/8/2019 and cancer is diagnosed in the medical checkup held at Resmi Hospital and the CT abdomen test conducted on 6/2/2019 at Shaji’s MRI centre, Kannur and finally in the OGD scopy conducted at Lakeshore Hospital,Kochi. The form No.905/A3 given by the treating doctor and DMR has confirmed this. So the diagnosis is before 180 days from the date of issuance of policy. It is pleaded that as per policy conditions of cancer cover policy a waiting period of 180 days will apply from date of issuance of policy or date of revival whichever is later to the date of first diagnosis of any stage cancer. This would mean that nothing shall be paid under the policy and policy shall be terminated if any stage cancer occur at any time on or after the date of issuance of the policy or date of revival but before the expiry of 180 days from that date. OP further submitted that the complainant contents that the policy holder was hale and healthy and no pre-existing disease was noted. But Dr.Sruthi who directed the deceased life assured to Lakehsore has mentioned in her letter that LA is a known case of diabetes for 2 years with complaints of back ache. Moreover in the discharge summary dtd.15/2/2019 of Lakeshore cover history and examination, it is mentioned that LA had history of belching and weight loss of 8kg in one year. Though there is a specific question in the proposal form that in the past six months has your weight reduced by 5kgs or more other than due to diet control exercise or post pregnancy. LA has given the answer as NO which is a clear case of suppression of existing illness. It is submitted that rejection has been done strictly in accordance with the policy conditions which are binding to the complainant. Therefore there is no deficiency in service or unfair trade practice on the part of OP and as such there is no bonafides or merit in the complaint and the complainant is not entitled to any compensation or cost hence prayed for the dismissal of the complaint.
The question for consideration is whether the Insurance Corporation was justified in repudiating the claim on the basis that the claim occurred during waiting period(clause part C of 8(G) of the policy conditions?
On the side of complainant she was examined as PW1 and Exts.A1 to A16 had been marked. On behalf of OP Dr.C.G.Rajeev,MD,DNB,DM,Phd, working as Divisional Medical Reference of LIC of India Kozhikode was examined as DW1 and DMR assessment report given by DW1 had been marked as Ext.B2. PW1 was subjected to cross-examine for OP and marked proposal form for the policy given by deceased Sreenivasan as Ext.B1. Insurance policy with terms and conditions was produced from the side of complainant and marked as Ext.A1. After the evidence, both learned counsels of the parties filed their written argument notes. We have gone through the oral and documentary evidence available before us and considered the rival contentions of the parties.
The undisputed facts in the instant case are that complainants husband Mr.Sreenivasan P.N had obtained a policy having No.314604050 for an assured sum of Rs.10 lakhs, under cancer cover plan No.905 from the OPs. The date of issuance of policy was on 14/8/2018 and date of maturity as 14/8/2037. Further the premium amount as Rs.7466/- and mode of payment of premium half yearly premium. It is also an admitted fact that the insured had given 1st premium amount Rs.7466/- on 14/8/2018. Further in Ext.A1 policy clause part C of 8(G) states that waiting period: A waiting period of 180 days will apply from the date of issuance of policy or date of revival of risk cover whichever is later. If the first diagnosis of “any stage” cancer. This would mean that the benefit covered under this policy is not applicable and the policy shall terminate if any stage of cancer occur.
(1) At any time on or after the date of issuance of the policy but before the expiry of 180 days reckoned from that date(or) (2) before the expiry of 180 days from the date of revival.
Further it is admitted fact that the insured Mr.Sreenivasan P.N expired on 24/11/2019 at Lakeshore Hospital and the cause of death was carcinoma gastro esophageal junction stage 4 with lung, liver and nodal metastasis. Further after the death of the insured ,complainant had given claim application on 2/1/2020 to OP and the said claim application was repudiated on 19/8/2020 by the OP through Ext.A8 letter. The reason for repudiation stated by OP was that”on scrutiny of the evidences submitted, in support of your claim, we find that the cancer was diagnosed on 8/2/2019. The said illness under the policy has arisen during the waiting period as per policy condition of part c of 8(G)”. It is also an admitted fact that the waiting period ends on 10//2/2019.
From the side of complainant, all the treatment records with CT images, laboratory reports, Histopathology report all test report and copy of discharge summary had been produced.
OPs main contention, in CT abdomen of the insured taken on 6/2/2019 at Dr.Shajis,MRI Centre showing focal wall thickening in stomach with extensive nodal enlargement suspect Lymphoma/primary stomach malignancy with suspicious 4MM module in left lobe of liver. For expert management OGDscopy was done on 8/2/2019 at Lakeshore Kochi which revealed carcinoma GE junction. Further biopsy from ulceroproliferative growth GE junction was also done on 8/2/2019 which diagnosed moderately differentiated adenocarcinoma. According to OPs as per the CT abdomen test conducted on 6/2/2019 at Shaji’s MRI centre, Kannur, possibility of lymphoma detected and as per the OGD scopy conducted at Lakeshore Hospital, Carcinoma GE junction was confirmed on 8/2/2018. The OPs contended that available medical records and other documents emphatically shows that cancer was detected within the waiting period of 180 days ie the day of issuance of policy is 14/8/2018.
For clarifying the contentions, OP has examined Dr.C.G.Sajeev, the Divisional Medical Reference of OP as DW2, who has given Ext.B2 DMR Assessment report, recommended rejection of claim application of the Life Assured due to the reasons within waiting period?”. On verifying the Ext.B2 report it is seen that the reason specified by DW2 is not a confirmed opinion . Further in Ext.B2 report he has mentioned that (1) Date of diagnosis of cancer as per claimant as 14/2/2019 (2) Name of the confirmatory test performed: Biopsy, CT chest on 8/2/2019. Diagnosis as per confirmatory test: Carcinoma GE junction. Further the answer given by DW2 in the Ext.B2 report that (3) From the Medical documents submitted, do you suspect any undisclosed cancerous condition at the time of issuance of the policy? Answer given as “NO” and (4th) question Is this the first incidence of cancer diagnosis in the life time of the life assured? Answer ”Yes”. For question No.13. Is there any exclusion application? Answer ” No” and concluded diagnosed the disease, “suspecting within the waiting period”?. In the chief-affidavit of DW1, it is stated that on verifying the medical records in connection with the treatment undergone by the insured, he had noted that Sreenivasan P.N was a cancer patient and his illness was diagnosed after medical test as carcinoma GE Junction on 8/2/2019, CT abdomen contra study at Sahijis MRI Centre, Kannur on 6/2/2019 and OGD scopy on 8/2/2019 at Lakeshore Hospital Kochi and OGD scopy conducted, it is diagnosed that the patient was having carcinoma GE Junction. Biopsy from Ulceroproliferative growth GE Junction was also done on 8/2/2019 from Lakeshore centre, which showed moderately differentiated adenocarcinoma. So carcinoma GE Junction was detected on 8/2/2019. During cross examination for the complainant DW1 has admitted that he is not an Oncologist. Further in page No.2. The treatment of a patient will be commenced only after the diagnosis is completed? (Q): Ans: Yes. If in any of the diagnosis report it is stated that “ possibility of Malignancy, treatment will not be commenced there that, report is not conclusive ?(Q) (Ans:) Yes. Based on Ext.A15 report it is stated that “ possibility of disease as stated in Ext.A15, no medical practitioner will start treatment? (Ans): yes. Further to the next question – among the given reports which is the conclusive one by which malignancy is conclusive? (Ans:) In Ext.A13 dated 8/2/2019.
On perusal of Ext.A13, and other medical report of the deceased, Ext.A13 revealed that the procedure performed was OGD on 8/2/2019 and the Endoscopic diagnosis as “Carcinoma GE Junction. Further it is seen that RUT taken –positive/Negative-Biopsy taken for diagnosis. Ext.A5 Histopathology Report dtd.13/2/2019 showed that (1) History: C/o Dysphagia, CT Scan-mass in fundus of stomach with liver mets (2) clinical Imp.”? Carcinoma GE Junction” Specimen: Biopsy from GE Junction Ulcer proliferative growth. Diagnosis: Biopsy from Ulcer proliferative growth GE Junction showing –moderately differentiated adenocarcinoma. This report was issued by Dr.Sreelath.K.N, MD Pathologist on 13/2/2019. After that CT thorax was done on 14/2/2019. There is no dispute that 1st cycle of chemotherapy was given on the patient on 15/2/2019. Ext.A6, the discharge summary from Lakeshore Hospital Kochi, shows that Dr.Gangadharan, Medical Oncologist treated the patient at Lake shore Hospital from 15/2/2019 onwards and done chemotherapy on the deceased on 15/2/2019.
Here it is to be noted that OP did not have dispute to any of the Medical records of the deceased submitted from the side of complainant.
In the instant case, the crucial question to be decided is , on which date the disease in dispute was detected on the insured person?
With respect to said point Hon’ble High Court of Kerala in WP(C) No.5208 of 2013(2020(1)KLJ 71 Star Health and allied Insurance Company Limited vs. V.P. Satheesh Menon. Equivalent citations : 2019(4) KLT 785, 2019(5)KHC 695, AIR 2020 Ker148) . The grievance in the said case was Rejection of Medical Insurance claim for the reason that insure contracted disease within 30 days of commencement of policy, in which Hon’ble High Court of Kerala held that “ 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 physician and “confirmed”.
In the instant case Ext.A13 Endoscopy report shows endoscopic Diagnosis carcinoma GE Junction on 8/2/2019, RUT taken–positive/negative Biopsy taken. Further in Ext.A5 Histopathology report , it is stated that clinical Imp: Carcinoma GE Junction? and Specimen: Biopsy from GE Junction Ulceroproliferative growth. Diagnosis: Biopsy from Ulcer proliferative growth GE Junction showing –moderately differentiated adenocarcinoma. The report date of Ext.A5 was on 13/2/2019. In additional to that in Ext.A6, the discharge summary issued from Lakeshore Hospital Kochi, from where the insured availed treatment for Carcinoma, approved by Dr.Gangadharan.V.P,M.D ,M.D(Radio therapy )DM,DHA, Oncologist ,explains the history and examination that USG abdomen taken on 5/2/2019 showed mild fatty changes. Vague hypo echoic area seen close to pancreatic body-CT abdomen contrast done on 6/2/2019 showed focal wall thickening in body of stomach measuring upto 2.4cm. Further OGD Scopy done on 8/2/2019 which revealed carcinoma GE Junction. Biopsy report on 13/2/2019 suggestive of moderately differentiated adenocarcinoma.
We have considered this Discharge summary Ext.A6 along with Biopsy report dated 13/2/2019 Ext.A5 issued by the concerned doctor Dr.Gangadharan. The discharge summary is signed by Dr.Gangadharan Oncologist Lakeshore Hospital goes to show that the Biopsy report on 13/2/2019 suggestive of moderately differentiated adenocarcinoma was diagnosis by a competent physician and confirmed. In the discharge summary, it has been mentioned that low back ache for 10-15 days along with lower abdominal pain and dysphasia to solid food since 2 months and history of belching and weight loss( 8kg in the year). In the death summary issued by Doctor, the cause of death has been shown as Carcinoma gastroesophagead junction stage 4 with lung, liver and nodal metastasis . In Ext.A5 Histopathology report dtd 13/2/2019 the clinical findings did not confirmed carcinoma GE Junction( It has been noted as “?Carcinoma GE Junction”). Hence specimen- sent for biopsy and report of biopsy received on 13/2/2019. In Ext.A15 CT scan of Abdomen- taken at Dr.Shaji’s MRI centre dtd.6/2/2019- Impression noted as possibilities- Lymphoma/primary stomach malignancy –Biopsy correlation suggested. Suspicious 4MM nodule in left lob of liver-Follow up suggested. Moreover the treatment for disease carcinoma has been started only on 15/2/2019 ie after diagnosis of the disease after obtaining report CT thorax done on 14/2/2019. (Ext.A3). Even in endoscopy report dtd.8/2/2019 shows endoscopic diagnosis carcinoma GE Junction, the clinical impression is suspecting carcinoma GE Junction(Ext.A5) and diagnosed by competent physician(Oncologist) and confirmed as adenocarcinoma was on 13/2/2019. Biopsy taken and sent for report does not mean that on that day, disease was confirmed.
From the judgment of Hon’ble High Court of Kerala as stated above, clearly hold the view that 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. For the purpose of an insurance claim, a disease can be said to be contracted only when it is diagnosed by a competent physician and confirmed. Here diagnosis of the disease of the insured happened only on 13/2/2019, which is beyond the waiting period of 180 days.
At this point it is the duty of OP to examine the doctor oncologist Dr.Gangadharan.V.P who had treated the insured person at Lake shore Hospital Kochi to clarify the contention raised by OPs that OGD scopy report dtd 8/2/2019 revealed carcinoma is the confirmed diagnosis of carcinoma on the patient. Here there is no such evidence available before us. On the other hand from the side of OPs the doctor who issued DMR assessment report(Ext.B2) was examined(DW1). In his Ext.B2 report also we can reveal that the reasons stated is “within waiting period?” which means he did have a conclusive opinion that the disease was diagnosed within the waiting period of 180 days.
Hence from the medical records and investigation reports it is evident without any doubt that the Ulcer proliferative growth at the GE Junction found in OGD procedure performed on 8/2/2019 on the life assured Mr.Sreenivasan.P.N was diagnosed and confirmed through biopsy as “Moderately differentiated adenocarcinoma” by a competent physician was on 13/2/2019 for which he was covered under the insurance policy. It is also evident that from the side of LA, there was no suppression of any material facts in the proposal form. It is seen that the claim of complainant was rejected only due to the reason that “ the claim occurred during waiting period”.
For the forgoing reasons and from the finding of Hon’ble High Court of Kerala in WP(C)No.5208 of 2013, judgment dated 29/10/2019, we are of the view that repudiation of the complainant made by opposite party is unjustifiable . Hence there is deficiency in service on the part of opposite parties. So complainant is entitled to get the sum assured of the policy(Ext.A1) with cost of the proceedings of the case.
Hence complaint is allowed in part. Opposite parties are directed to pay Rs.10,00,000/-(sum assured as per Ext.A1 policy) together with Rs.10,000/- as cost to the proceedings to the complainant within 30 days from the date of receipt of the order. Failing which the sum assured Rs.10,00,000/- carries interest @7% per annum from the date of order till realization. Complainant is at liberty to file execution application against opposite parties for realization of awarded amount as per provisions in Consumer Protection Act 2019.
Exts:
A1-Insurance policy
A2-Details of diagnosis filled by Doctor, form 905/A3
A3- Plain and contrast CT images dtd.14/2/2019A4- Lab reports 6 in Nos.
A5- Histopathology report dtd13/2/2019
A6- copy of discharge summary
A7-Premium paid certificate for the year 2018-19.
A8-letter of rejection dtd.19/8/2020
A9-copy of notice dtd.3/10/2020
A10-postal acknowledgment
A11-Reply dtd.16/10/2020
A12-patient profile and case diary detailing the treatment and tests conducted
A13-OGD scopy report dtd.8/12/19
A14- Test report Reshmi hospital dtd.5/2/2019
A15-Test report Dr.Shaji’s 6/2/2019
A16- Death summary dtd.24/11/2019.
B1-proposal form
B2-DMR assessment report
PW1-Bindu.A.P- complainant
DW1-Dr.Sajeev.C.G- witness of OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew. Sajeesh K.P
eva
/forwarded by Order/
ASSISTANT REGISTRAR
