SMT. RAVI SUSHA : PRESIDENT
The complainant has filed this complaint under sec.35 of the Consumer Protection Act 2019 seeking to get an order directing opposite parties to pay the health insurance claim of Rs.210068/- with interest @12% per annum, to pay Rs.1,00,000/- towards compensation for the mental and physical sufferings, to pay Rs.1,00,000/- for the unfair trade practice of OPs and to pay cost of the proceedings to the complainant.
Briefly stated, the facts of the case are that the complainant and his wife availed health insurance policy from the OP and he paid Rs.49,369/- as premium and the sum assured was Rs.10,00,000/- and the covering period was 27/11/2011 to 26/11/2022. The complainant was having the complaint of hernia , he met with a doctor and the doctor advised for surgery. On 26/9/2022 complainant admitted Aster DM Health care ltd, Kochin for laparoscopic surgery for Right inguinal hernia and incisional hernia and discharged on 29/9/2022, the complainant spent Rs.2,10,068/- as the hospital expenses for the surgery and other incidental expenses . The complainant duly made health insurance claim with OPs in time, but the OPs declined to pay the hospital charges and made a reply stating that claim is not payable as per terms and conditions. The denial of claim is on the ground that the complainant has not disclosed about his previous history of RCC and surgery. Further stated that the present surgery is not at all related to the earlier surgery and disease. The non-disclosure of the previous surgery is not at all related to the present surgery. The procedure done by the doctors for the present disease was Laparoscopic right inguinal hernia repair+ Incisional hernia repair under GA on 27/9/2022. The act of OPs are not justifiable and it is against the principles of natural justice. The unreasonable denial is the deficiency in service on the part of OPs. Hence this complaint.
The insurance company filed version admitted that the complainant had availed health insurance policy from the OPs. It is pleaded that the complainant was having history of Nephrectomy for renal cell carcinoma 6 years back which is prior to policy start date. In spite of having undergone nephrectomy for renal cell carcinoma, the complainant had suppressed material facts. The complainant had suppressed material information which was vital in assessing the undertaking of risk by the OPs. The non disclosure of facts relating to pre-existing medical condition of the insured pertaining to Renal cell carcinoma 6 years back is a material fact that had direct bearing on the underwriting of risk by the OPs. Contract of insurance is a contract based on the terms and conditions of the policy and the OPs are liable only according to the conditions of the policy. There has been suppression of material fact which is in the exclusive knowledge of the complainant. It is submitted that the complainant furnished correct details pertaining to his pre-existing medical ailments, the OPs would have reconsidered the underwriting of risk or decided not to issue any policy to the complainant. The insured had not disclosed true, complete and all correct facts in relation to the policy and had acted in a dishonest and fraudulent manner in relation to the policy and hence the complainant is not entitled to any amount under the policy . There is no deficiency in service or unfair trade practice on the part of OPs, hence prayed for the dismissal of the complaint.
At the time of evidence complainant has filed his chief affidavit and document, photocopy of IP bill issued from Aster Medicity. Complainant was examined as PW1, the document got marked as Ext.A1. For proving the case, complainant has taken steps to produce original medical records of the complainant from Aster Medicity, Kochi, from where he availed treatment connected with this case. The said document is marked as Ext.X1 . On the side of OP, no oral evidence was submitted. Exts.B1 to B3 were marked. After that the learned counsels of both parties filed argument notes and decisions of Appellate commission.
The question for consideration is whether the repudiation by the Insurance corporation on the ground as stated in this complaint is justified?
The undisputed facts in this case are that the complainant had availed a health insurance policy from OPs and policy period was from 27/11/2021 to 26/11/2022 with a sum insured of Rs.10,00,000/-. Further the complainant has availed treatment for hernia for a period from 26/9/2022 to 29/9/2022 from Aster Medicity, Kochi. Further it is a fact that policy was in force while the complainant availed treatment. Further it is admitted that the complainant has submitted health insurance claim with OPs in time but the OPs rejected the claim by stating that the complainant has not disclosed about his previous history of RCC and surgery in the proposal form.
The medical record of Aster Medicity has been placed a record (Ext.X1) which goes to show that the insured Sri.Ismail.P.P was admitted in this hospital on 26/9/2022 for Right inguinal hernia and incisional hernia. Laparoscopic right inguinal hernia repair and Incisional hernia repair under GA on 27/9/2022. In Ext.X1, summary portion, it is stated that the complainant presented with complaint of swelling in right lower abdomen at port site. There was no history of constipation , vomiting or abdominal distension. He had undergone laparoscopic nephrectomy 6 years back for RCC. There is no record of subsequent period has been produced to show that he had taken further treatment for kidney disease and therefore we can presume that the patient must have been cured fully. The next question for consideration is whether this was a material fact which was required of the insured to have disclosed in the proposal form. In Satwant Kaur Sandha vs New Indian Assurance Co.Ltd. IV (2009) CPJ 8, Hon’ble Supreme Court has held that the fact is not defined in the Act and therefore it has been understood in general terms to mean as any fact which would of a prudent insurer in fixing the premium or determining whether he would like to accept the risk. In this case, the insured had been treated for renal stone and was discharged from the hospital on 13/12/2002. The policies were obtained in the years 2006 and 2007. Long period had passed after insured was cured. Withholding of such information will not deprive the complainant from receiving the payment of insured amount.
The learned counsel for the complainant submitted that the proposal was filled by the agent and complainant has informed about all facts to the agent. In such a situation we are of the view that the allegation of non-disclosure of the existence of the pre-existing disease is baseless. In fact, from the entire facts and circumstances of this case, the agent of OP was quite in the know of all the aspects in regard to the insured and it is he who should have recorded the requisite information already available with them.
For the forgoing reasons, we are of the view that there is deficiency in service on the part of OPs and hence the complainant is entitled to get policy benefit ie, treatment expense incurred to the complainant. As per Ext.A1, the inpatient bill shows , he had given Rs.2,10,068/- to Aster Medicity for the treatment in dispute.
In the result, complaint is allowed in part. Opposite parties are directed to pay Rs.2,10,068/- with compensation Rs.10,000/- to the complainant. Opposite parties are further directed to pay Rs.5000/- towards cost of the proceedings. Opposite parties shall comply the order within one month from the date of receipt of the certified copy of this order. Failing which Rs.210,068/- +10,000/- carries interest @9% per annum from the date of order till realization. Complainant can execute the order as per the provision in Consumer Protection Act 2019.
Ext-A1- Photocopy of IP bill
X1- Medical record of Aster Medicity
B1- letter issued by OP to PW1
B2- Copy of discharge summary of Aster Medicity
PW1-Ismail
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
eva
/Forwarded by Order/
ASSISTANT REGISTRAR
