SMT. RAVI SUSHA: PRESIDENT
Complainant has filed this complaint under Consumer Protection Act 2019, for getting an order directing opposite parties to pay Rs.1,61,679.82 being the medical expenses of the complainant together with Rs.1,00,000/- towards compensation and cost of the proceedings of the case.
The facts of the case according to the complainant that the 1st OP is a managing director Appolo Munich health insurance Co.Ltd. and 2nd OP is a Manager of Canara Bank Pannor branch. The complainant is an account holder of 2nd OP . The 2nd OP is conducting insurance policy under the name and style Appolo Munich Health Insurance Co. Ltd. The 2nd OP advised the complainant to take said Insurance policy. As per compulsion of the 2nd OP the complainant had paid Rs.4,813/- and took policy of Appolo Munich Health Insurance on 15/03/2018. The complainant’s Insurance policy No. is 12010012586/2018/A007873/PE 00911511 Policy covered from 15/03/2018 to 14/03/2019. As per the terms and conditions of the insurance policy the OPs are liable to pay medical expenses of the complainant during this period up to Rs.2,00,000/-. The complainant was admitted to Lekeshore hospital- Kochi due to liver disease from 20/02/2019 to 25/2/2019 and spent Rs.1,61,679.82/- for medical treatment. The complainant submitted medical claim through 2nd OP. But the OPs did not pay the medical claim. The complainant sent lawyer notice to the 2nd OP on 09/01/2020 claiming medical expenses from the OPs. The 2nd OP received notice on 10/01/2020. The 2nd OP sent reply notice with false contentions. The complainant is denying all the false allegations in reply notice. The complainant submits that now the OPs alleges that the complainant had liver disease before taking insurance policy. This allegation is false and made only to escape from liability. There is deficiency and negligent service on the part of OPs. The OPs are liable to pay medical expenses of Rs.1,61,679.82/- to the complainant with compensation. Hence this complaint.
OPs 1 and 2 denied the contentions of the complainant and stated by OP No.1 that Appolo Munich Health Insurance Co. Ltd. had been renamed as HDFC Ergo Heath Insurance Ltd with effect from January 9th 2020.The complainant submitted his duly filled and submitted the Enrolment from bearing No.CB20156969 dated 15/03/2018 proposing the issuance of an “Group Health Assurance Plan” policy which has been specially customized for the customers of Canara Bank from Appolo Munich Health Insurance Co. Ltd. proposing to insure himself with a sum assured of Rs.2,00,000/-. The complainant had submitted the Enrolment Form after going through the terms and conditions of the policy. The details of the policy we also explained to him by the insurance agent/ sales representative. It is pertinent to mention herein that the complainant /insured had full knowledge of the terms and conditions of the policy and only after going through the application for insurance, thoroughly and properly had submitted the Enrolment Form. Believing the above said declaration, information and details provided including the medical history by the Petitioner/Proposer in the Enrolment form to be true, correct and complete in all respect, giving due credence to the under writing norms of company, a Policy No.120100/12586/2019/A012950/PE01424109 was issued to the complainant/insured for a period commencing form 15/03/2018 till 14/03/2019. The said policy was further renewed on a yearly basis till 14/03/2020. That it is further submitted that the policy Kit containing all relevant documents along with the enrolment form were duly received by the complainant /insured there by giving an opportunity to complainant to verify and examine the benefits, terms and conditions of the policy taken by him. It is pertinent to submit that the complainant/insured never approached the company stating that any information given in the documents in the policy Kit was incorrect or any term and condition therein is not understandable or acceptable to her from the receipt of the policy document. As no objection was received from the petitioner, the complainant is strictly bound by the terms and conditions of the policy. That during the continuation of the policy period, the complainant approached the answering OP to avail cashless claim vide claim ID :558042 for an estimate amount of Rs.2,00,000/- for the planned hospitalization of the complainant on 20/02/2019 at Lakeshore hospital and research center Ltd. for 7 days. The complainant was admitted with complaints of with history of bleeding per rectum and constipation for 2 weeks. Colonoscopy was done and showed polyp in transverse colon which was removed and biopsy was done. It was reported tubular adenoma with low grade dysplasia of transverse colon. USG done showed cirrhosis of liver with space occupying lesion? Hepatocellular carcinoma (HCC) surgical management done and underwent laparoscopic guided radio frequency ablation. The complainant was diagnosed with Cirrhosis of liver. Post scrutiny of claim documents the Answering OP issued its query letter dated 16/02/2019 to the complainant for providing following documents :- 1)Treating doctors certificate for past h/o duration of presenting complaint .2) Kindly provide the 1st and Previous consultation letter in related to presenting compaltit.3) All past treatment records prior to hospitalization. 4) Kindly provide treating doctors certificate for Aetiology of the presenting ailment. It is submitted that complainant failed to provide the required documents and the claim of the complainant was rejected for non-submission of the required documents and the same was intimated to the complainant vide claim rejection letter dated 19/02/2019. That post rejection of the cashless claim the complainant sent its reconsideration request with the required documents. On perusal of the documents it was observed that the complainant had a past history of liver disease since 2014 ie prior to the policy inception. 1) As per the treating doctor certificate dated 20/02/2019, the complainant’s non-alcoholic Fatty liver could be the reason for the present condition ailment ie Hepatocellular Carcinoma. 2) As per the OP history and examination dated 20/01/2014, and OPD visit record 06/01/2014, the complainant was suffering from liver disease, changes in liver found during Ultrasound as liver Hyperecogenicity. That in the reason of non-disclosure of liver disease since 2014 ie prior to the policy inception, the claim of the complainant was rejected and the same was intimated to the complainant vide rejection letter dated 20/02/2019. On perusal of the Discharge summary dated 25/02/2019, it was again noted that the complainant was a known case of Cirrhosis of liver. It is submitted that if the complainant herein would have disclosed about his correct medical history at the time of policy issuance, then the answering OP would not have issued the policy to the complainant. There has been no deficiency in service on the part of the answering OP. Hence prayed for the dismissal of complaint.
2nd OP submitted that the complainant is an account holder of Canara bank Panoor Branch and he had taken a health policy of Apollo Munich Health Insurance Co. Ltd. and paid a sum of Rs.4,813/- only, towards insurance premium for a period from 15/03/2018 to 14/03/2019. Since the canara Bank being the group policy holder of Apollo Munich Health Insurance Co. Ltd, he paid much lesser premium amount than its market rate. It is submitted that the complainant was fully aware of the terms and condition of the health insurance and there was no compulsion on the part OP No.2 for purchasing the health insurance. The certificate of insurance was issued by Apollo Munich Health Insurance Co. Ltd and OP No.2 has never entered into any agreement with the complainant at any point of time. This OP NO.2 as an intermediary forwarded all the medical bills and other documents of the complainant entrusted with OP NO.2 to Apollo Munich Health Insurance co. Ltd and therefore there was no deficiency in service on the part of OP No.2. The OP No.2 is only the branch manager of the canara Bank, if complainant has any grievance, he could have taken appropriate actions as mentioned in section 10 of terms and conditions issued to complainant by the Apollo Munich Health insurance along with the certificate of Insurance.
OP no.2 is not liable to pay any compensation demanded in the complaint and there was no negligence or deficiency in service on the part of OP No.2.
In order to prove the averments in the complaint, complainant has filed his proof affidavit and documents. He has been examined as Pw1 and marked the documents as Ext.A1 to A7. Pw1 has been cross-examined for OPs. On the side of OPs, 1st OP submitted documents marked as Ext.B1 to B4. The case record from Lakeshore Hospital, Kochi summonsed from the side of OP No.1 was marked as Ext.X1.
After that the learned counsels of both parties (complainant and OP No.1) filed their written argument notes
We have carefully perused the documentary evidence produced from the side of complainant and OP No.1 and the case records from Lakeshore hospital.
In the instant case there is no dispute that the complainant is an account holder of 2nd OP Canara bank and took Health insurance policy of 1st OP after paid Rs.4813/- as premium. It has also come on record that complainant had taken treatment from Lakshore Hospital, Kochi due to lever disease from 20/02/2019 to 25/02/2019 during the policy period and had submitted claim to OP No.1 through 2nd OP for reimbursement of Rs.1,61,679.82/- amount spent for treatment expense by the complainant. It is also an undisputed fact that OP 1 had not paid the claim amount to complainant. The OP 1 has stated the reason of non-disclosure of material facts at the time of policy inception, about the chronic liver disease since 2014 ie prior to the policy inception, the claim application of the complainant was rejected and intimated to the complainant through letter dated 12/03/2019.
Now question arises whether there was material suppression of facts in the proposal form happened on the side of complainant?
Complainant submitted that he has not suffered lever disease before taking insurance policy. Further submitted that he was admitted to Lakeshore Hospital, Kochi due to liver disease from 20/02/2019 to 25/02/2019. It is submitted that the contention of OPs that complainant has liver disease before the year 2014 and he had taken treatment for the said disease from 2014 from lake Shore hospital is not correct. For proving the contention of complainant, complainant submitted certificate issued by Dr. H Remesh, who treated the complainant at Lake shore Hospital on 20/02/2019 at the customer service Department, Appollo Munich Health Insurance (OP No.1 herein). The certificate is marked as Ext.A3. In Ext.A3, Dr. H Remesh certified that as carful perusals of the records do not reveal any such observation ie presence of chronic Liver disease from the year 2014. Further certified that in fact, the diagnosis of chronic liver disease is a recent phenomenon namely 7th January 2019. Complainant has submitted Discharge summary from Lakeshore Hospital dated 25/02/2019 Ext. A4. In the history and examination portion, it is seen written that Mr. Hameed (Complainant ) presented with history of bleeding per sectum and constipation of 2nd weeks duration. There was no history of abdominal pain, perianal pain and fever. Ultra sound scan of the abdomen showed cirrhosis of the liver with a space occupying lesion in the liver? Hepato cellular carcinoma (HCC). On perusal of discharge summary, no where stated that complainant had suffered chronic liver cirrhosis since 2014 and availed treatment from 2014.
OP contended on perusal of the documents, it was observed that the complainant had a past history of liver disease since 2014 prior to the policy inception, ie as per the treating doctor certificate dated 20/02/2019, the complainant’s non-alcoholic fatty liver could be the reason for the present condition ailment ie hepatocellular carcinoma. Further submitted that in Ext.X1 the complainant was suffering from liver disease, changes in liver found during ultra sound as liver Hepercogencity.
In Ext.X1 it is stated that visit date 06/01/2014. Follow up : USG-Fatty liver, Rute out chronic liver disease.
Thus in Ext.X1,it is clearly stated that he has not complaint of chronic liver disease on 06/01/2014. Only complaint of fatty liver.
As per Ext.A2 the diagnosis of chronic liver disease is a recent phenomenon namely 7th January 2019. The Hon’ble High court of Kerala in w.P(c) No.5208/2013, it is held that a disease can be said to be contracted for the purpose of Insurance claim, only when after diagnosis it is clinically found by a competent physician 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.
Here it is stated that fatty liver identified on USG. Chronic liver disease may have many symptoms and mere fatty liver cannot invariably means that the patient is suffering from chronic liver cirrhosis. 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 by a competent physician and confirmed.
Here in Ext.A3, the competent surgeon certified that the diagnosis of chronic liver disease is a recent phenomenon namely 7the January 2019.
The learned counsel of OP No.1 submitted a number of citations of Hon’ble apex court relating to the non-disclosure of material information in the proposal form.
In the instant case, from the case records it is evident that complainant might have knowledge about the complaint fatty liver at the time of inception of policy. There is no evidence that he has been availed treatment for fatty liver within 2014 to 2019. Normally while filling up an insurance proposal form, it is not expected that the insured has also to state all incidents of infection from which he may have suffered since complaint of fatty liver is a common complaint and curable. We are therefore of the view that not revealing information about this curable complaint did not amount to suppression of any material fact. Hence repudiation of complainant’s claim, even after receiving Ext.3 certificate from the treating doctor of the complainant, is not justified and therefore there is deficiency in service on the part of OP No.1. Since OP No.2 has no role in repudiating the claim application and as they have sent all the relevant documents submitted before them by the complainant, to the insurance company without delay, there is no deficiency in service on the part of 2nd OP bank.
Hence after considering the submissions of both parties and also the evidence on record, allowed the complaint by stating that the insured did not suppress any material information by not mentioning the chronic liver disease in the proposal form because, there is no evidence that complainant has availed treatment for chronic liver disease prior to inception of policy. Here OP could have examined Dr. H Ramesh Director, department of surgical Gastro enterology and Liver transplantation, working at Lakeshore Hospital, Kochi, who had treated he complainant and issued Ext.A3, to prove the contention of OPs.
On considering the facts and circumstances of this case, OP No.1 will have to reimburse the treatment expense to the complainant with compensation. Ext.A2 shows that the net amount paid by the complainant for his treatment was Rs.1,61,679.82/- ie rounded to 1,61,680/-.
In the result complaint is allowed in part. Opposite party No.1 is directed to pay Rs.1,61,680/- to complainant together with Rs.25,000/- towards compensation. Opposite party No.1 is also directed to pay Rs.5,000/- towards cost of the proceedings of the case. OP No.1 shall comply the order within one month from the date of receipt of this order failing which the amount Rs.1,61,680/- carries interest @ 7% per annum from the date of order till realization. Complainant is at liberty to execute the order by filing execution application against 1st opposite party now known as HDFC Ergo General Insurance company Ltd. as per provisions in Consumer Protection Act 2019.
Exts.
A1- Policy
A2- Medical bills
A3-Certificate issued by Lekshore hospital
A4-Discharge summary
A5-Copy of advertisement of oP2 bank
A6-Lawyer notice
A7-Reply notice
Pw1-Complainant
B2-Enrolment form
B3-Letter issued by OP1 to complainant dated 20/02/2019
B4-Letter issued by OP1 to complainant dated 17/04/2019
X1-Case record of Lakeshor Hospital, Kochi
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
