IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 14th day of December, 2023
Present: Sri.Manulal.V.S, President
Smt.Bindhu.R, Member
Sri.K.M.Anto, Member
CC No.69/2022 (Filed on 30/03/2022)
Complainants : (1) Cherian Mathew,
Nellivelil House,
Madukkummood P.O,
Changanacherry - 686 104.
(2) Rosamma Cherian,
W/o Cherian Mathew,
Nellivelil House,
Madukkummood P.O,
Changanacherry - 686 104.
(Both by Adv: Thomas Antony) Vs.
Opposite parties : (1) Manipal Cigna Health Insurance Company
Limited,
Ist Floor, Mathew & Sons Centre Point,
Mamangalam,
Near Kotak Mahindra Bank,
Ernakulam – 682 025,
401/402, 4th Floor,
Raheja Titanium,
Off. Western Express Highway,
Goregaon (East), Mumbai - 400 063.
(By Advs: Nithin Sunny Alex & Saji Issac K.J)
(2) Lisie Hospital, P.B No.3053,
Kochi – 682 018.
(3) Dr.Mathew Philip MD, DNB, DM, PNB,
Reg. No.11731,
Lisie Hospital,
P.B No.3053,
Kochi – 682 018.
(Both by Advs: Jimmy John Vellanikaren &
Joseph Thomas)
O R D E R
Sri.Manulal.V.S, President
The complaint is filed under Section 35 of the Consumer Protection Act 2019.
The complainants were health insurance policy holders of Oriental Insurance Company since October 2007 and they transferred their insurance policy from Oriental Insurance Company to the first opposite party company in October 2018 believing the words of the employees of the 1st opposite party that the insurance services provided by the first opposite party were better than other insurance companies for obtaining cashless insurance facility. On 11th November 2021, the 1st complainant got admitted to the 2nd opposite party institution related to kidney stone and submitted claim form for cashless benefit. But the 1st opposite party on 12-12-2021 cancelled the policy of the complainants alleging that the third opposite party had given a certificate that the petitioner had a cerebral vascular accident for five years and that it was concealed from the policy.
Then the first complainant approached the second opposite party hospital and enquired the facts. Then a new medical certificate has been issued to the first petitioner on 21-02-2021 pointing out mistakes in the certificates issued by the third opposite party on 15-11-2021. Therefore, the opposite parties are jointly liable to take necessary steps to compensate the loss caused to the complainants due to the fault of the second and third opposite parties in the certificate dated 15-11-2021 which led to the termination of the policy of the complainants. The first opposite party is not ready to renew the policy of the complainants. The policy has been terminated by the opposite parties without any allegation against the second complainant. By terminating the policy of the petitioners without any basis, the opposite parties have committed unfair trade practice and service deficiency. Hence this complaint is filed by the complainants praying for an order to cancel the order of the first opposite party to terminate the health insurance policy of the complainants and to direct the first opposite party to pay Rs.53,273/- to the complainants which is the amount incurred by the complainants for the treatment at Lisie Hospital, Ernakulam. The complainants have also sought an order that Rs.1,00,000/- be paid from each of the opposite parties as compensation for the deficiency of service on the part of the opposite parties and Rs.10,000/- as the cost of this litigation.
Upon notice from this Commission opposite parties appeared before the Commission and filed separate versions.
Version of the first opposite party is as follows:
The allegation in the complaint that the policy of the complainant was transferred from Oriental Insurance Company is false. The complainant had submitted a proposal form for the insurance of Manipal Cigna Prohealth Select policy from the first opposite party. The policy was issued to the complainant based on the proposal form and the disclosures made in the proposal form. Despite a specific question in the proposal form regarding medical information, the complainant had answered in negative and had given a good health declaration. The discharge summary issued from the St. Thomas Hospital, Chethipuzha shows that the complainant was treated in the hospital from 28-02-2018 to 2-03-2018 with sudden onset of double vision. The discharge diagnosis of the complainant at St. Thomas Hospital states that the diagnosis of Posterior Circulation of CVA, Right Pontine Lacunar Infarct. Thus it is evident that the complainant was having CVA from 28-02-2018 itself. Lisie Hospital, Ernakulam also had issued a medical certificate dated 15-11-2021 where it is stated that the complainant is a known case of DM (8 years) old CVA (5 years)?, CCP, Pleomorphic adenoma (3months) is under treatment from Lisie Institute of Gastroenterology. The discharge summary issued from the Lisie Hospital also states that the complainant is a known case of NAFLD /CCP/DM. Based on the medical details of the complainant obtained from the Lisie Hospital the first opposite party repudiated the claim of the complainant on 22-12-2021. The contract of insurance is a contract based on the policy and the 1st opposite party is liable to compensate the complainant only according to the terms, conditions, exclusions and limitations of the policy. According to the policy condition under the head of duty of disclosure the policy shall be void and all premium paid thereon shall be forfeited to the company in the event of misrepresentation, misdescription or non-disclosure of any material facts by the policy holder. The insured had not disclosed true, complete and all correct facts in relation to the policy and had acted in dishonest and fraudulent manner in relation to the policy and hence the complainant is not entitled to any amount under the policy. The complainant as the policy holder had suppressed material information which was vital in assessing the undertaking of the risk by the first opposite party. There is no deficiency in service or unfair trade practice on the part of the first opposite party.
The second and third opposite parties filed a joint version contending as follows:
The first complainant attended the second respondent hospital on 18-08-2021. He presented to the hospital not for issues related to CVA and he did not give any history related to CVA on that day. On 12-11-2021 the first complainant came to the hospital with abdominal pain and discomfort. He was diagnosed (Rt) ureteric calculi. On 17-11-2021 DJ stenting was done and he was discharged on 18-11-2021. Hence the third opposite party issued the certificate dated 15-11-2021 noting that first complainant is a known case of CVA for 5 years and is under treatment from Lisie Institute of Gastroenterology and it has been diagnosed to have right VUJ calculi. In fact on 19-01-2022 the first complainant reported the second opposite party for removal of DJ stent. At that time also the first complainant said that he had a history of CVA. On 21-02-2022 the relatives of the first complainant produced two certificates dated 5-02-2022 and 7-02-2022 from St.Thomas Hospital, Chethipuzha stating that the first complainant had no CVA. The relatives of the first complainant based on the above certificates requested the third opposite party to give a certificate that the first complainant had no CVA. They came to the hospital during the OPD peak hours of the third opposite party when the third opposite party was quite busy with patients and insisted for the certificate that they would lose the opportunity for reimbursement of their claim if the certificate was not issued immediately. Thus the request and pressure of relatives of the first complainant and the production of the certificates dated 5-02-2022 and 7-02-2022 from St.Thomas Hospital, Chethippuzha has led to the issue of certificate dated 21-02-2022. Even now it is not clear whether the first complainant had CVA or not. The third opposite party has not treated the first complainant for CVA. The first opposite party ought to have obtained explanation from the complainants and the second and third opposite parties before termination of the policy. Had this been done the facts would have been clear. If the policy is terminated without proper enquiry the insurance company alone is responsible for the same. In the facts and circumstances detailed above the petitioners may be given the benefits of the policy. From the policy itself it is seen that the period of the policy is from 26-10-2019 to 25-10-2020 and the policy is terminated only from 11-12-2021. There is no deficiency of service for unfair trade practice on the part of the 2nd and third opposite parties.
Evidence part of this case consists of deposition of PW1, PW2 and Exhibits A1 to A10 from the side of the complainants. Shweta Nair who is the Manager (Legal) of the first opposite party filed proof affidavit in lieu of chief examination and marked Exhibits B1 to B5 from the side of the first opposite party. There is no documentary or oral evidence on the part of the second and third opposite parties. Treatment records from St.Thomas Hospital and Lisie Hospital are marked as X1 and X2.
On evaluation of complaint, version and evidence on record we would like to consider the following points:
(1)Whether the complainant had succeeded to prove deficiency in service or unfair trade practice on the part of the opposite parties?
(2)If so, what are the reliefs and cost?
For the sake of convenience we would like to consider the Point Nos.1 and 2 together.
POINT Nos. 1 & 2 :-
Specific case of the complainants is that the complainants had been holding health insurance policy with Oriental Insurance Company since October 2007. In October 2018, they decided to transfer their insurance policy from Oriental Insurance Company to the first opposite party based on the representations made by the employees of the first opposite party that the insurance services offered by the first opposite party were superior to those of other insurance companies, especially in obtaining cashless insurance facilities.
On 11th November, 2021, the first complainant was admitted to the second opposite party due to kidney stones. However, on 12th December, 2021, the first opposite party abruptly cancelled the complainants’ policy. They alleged that the third opposite party had provided a certificate stating that the complainant had suffered a cerebral vascular accident five years prior, which had been concealed from the policy.
Or Perusal of Exhibit A1 policy which was issued by the first opposite party we can see that the complainants were the insured under the policy for a period from 26-10-2019 to 25-10-2020. The sum insured was Rs.3 lakhs. It is further recorded in Exhibit A1 policy under the head of previous insurance details that the date of first enrolment as 26-10-2007, previous insurer as Oriental Insurance Company Limited and total ported sum insured as Rs.1,00,000/- and breakup of ported sum insured as Rs.1,00,000/- and waiting period waived off two years.
Admittedly the first complainant was admitted in the second opposite party hospital on 12-11-2021 for treatment of kidney stone. It is proved by page number 64 of Exhibit X2 which is the treatment records from the second opposite party hospital that right lower ureteric stone was diagnosed at the second opposite party hospital and the DJ stenting was done on 17-11-2021. Exhibit A8 discharge bill proves that the complainant had spent Rs.53,273/- at Lisie Hospital for his treatment.
The main objection of the first opposite party for non-settlement of the claim is that the complainant No.1 has suppressed earlier treatments and repudiated the claim on 22-12-2021 which is marked as Ex.B5 stating that as per the available documents patient had history of diabetes Mellitus since 8 years and CVA since 5 years which is material to policy decision and was not disclosed in the proposal form at the time of policy inception hence the claim stands repudiated under clause V111. 1 duty of disclosure.
The counsel for the insurer relying upon judgments of Supreme Court in Life Insurance Corporation of India Vs. Asha Goel, (2001) 2 SCC 160, Satwant Kumar Sandhu Vs. New India Assurance Company Ltd., (2009) 8 SCC 316 and Life Insurance Corporation Vs. Kuldeep Singh, Manmohan Nanda Vs. United Assurance Company Limited submitted that it has been consistently held that suppression/non- disclosure/misrepresentation as to material fact in proposal form of the insured, vitiate the policy and enable the insurer to repudiate the claim.
Exhibit A6 is the discharge summary issued from the St.Thomas Hospital, Chethippuzha. On perusal of Exhibit A6 we can see that the complainant was treated there from 28-02-2018 to 2-03-2018 with sudden onset of double vision. The discharge diagnosis of the complainant at the St.Thomas Hospital was Posterior Circulation CVA, Right Pontine Lacunar Infarct. PW2 who is the doctor issued Exhibit A6 discharge summary deposed before the Commission that he had issued Exhibit A6 after examining all the records in the hospital. He further deposed that any disease affecting the nerve can cause double vision due to CVA and local nerve circulation problem. The Exhibit A3 certificate may be issued at the request of the patient or relatives. The PW2 has testified that he had issued the A3 certificate based on the neurologist certificates which were shown to him. Exhibit A7 is the medical certificate issued by Dr.Reji Thomas who is the Professor of Pushpagiri Medical College Hospital. In Exhibit A7 it is stated that the first complainant had consulted him on 24-02-2018 with complaints of double vision and was noted to have mild lateral rectus palsy on the right side. It is further certified in Exhibit A7 that the cause of double vision and lateral rectus palsy was due to diabetes.
This Commission has gone through records filed by the opposite parties along with Exhibit B1 proposal form. As per the terms and conditions of the Exhibit B2 policy the word portable incorporated at Clause No.F.1,11:
The insured person will have the option to port the policy to other insurers by applying to such insurer to port the entire policy along with all the members of the family, if any, at least 45 days before, but not earlier than 60 days from the policy renewal date as per IRDAI guidelines related to Portability. If such person is presently covered and has been continuously covered without any lapses under any health insurance policy with an Indian General/Health insurer, the proposed insured person will get the accrued continuity benefits in waiting periods as per IRDAI guidelines on portability.
Clause E.1.1(c) of terms and conditions of Exhibit B2 policy states the standard exclusions regarding the pre-existing diseases is reproduced hereunder as :
“ if the insured person is continuously covered without any break as defined under the portability norms of the extant IRDAI (Health insurance) Regulations, then waiting period for the same would be reduced to the extent of prior coverage”.
The relevant excerpt from the aforesaid circular ARDA (IRDA/HLT/ MISC./CIR/209/09/2011)” is reproduced herein below :
1.1 Portability means the right accorded to an individual health insurance policy holder to transfer the credit gained by the insured for pre-existing conditions and time bound exclusions if the policy holder chooses to switch from one insurer to another insurer or from one plan to another of the same insurer, provided the previous policy has been maintained without break……
In terms of the IRDAI Circular dated 09-09-2011, in case the policy holder chooses to switch from one insurer to another, he is entitled to get all accrued benefits of the previous policy, including the benefit gained by the insured for pre-existing conditions.
In this case, the medi-claim policy was acquired by the complainants for the first time in the year 2007 from Oriental India Insurance Company Limited. Thus, going by the terms and conditions of the said policy, no claim, irrespective of whether the same was having any nexus with previous medical conditions, i.e., diabetes Mellitus since 8 years and CVA since 5 years could be turned down post 2008 and in this case, the claim was lodged in the year 2021. Needless to say, the first opposite party had no legal authority to repudiate the subject claim and to cancel the subject policy.
Furthermore, the treating doctor i.e. the third opposite party submitted in the version that he had not treated the first complainant for CVA. No counter expert opinion is advanced from the side of the respondent to negate such opinion of the specialist doctor. Accordingly, we cannot treat such non-disclosure of past medical condition of the first complainant as material suppression of fact.
We have also noted from the aforesaid IRDAI Circular that, within 7 days of receipt of the portability form, the incumbent Insurance Company is required to address the existing Insurance Company seeking details of medical history and claim history of the concerned policy holder. There is no clarity as to why the first opposite party did not follow this. It becomes absolutely clear, therefore, that the first opposite party itself was at fault.
In the version the second and third opposite parties admitted that they had not treated the complainant for the CVA. They further admitted in the version that Exhibit A4 certificate issued on the information given by the complainant that he had a history of CVA for 5 years. The second and third opposite parties further admitted in the version that even now the third opposite party is not clear whether the first complainant had CVA or not. We are of the opinion that by issuing two different medical certificates without ascertaining whether complainant has the disease or not, the third opposite party has committed a very serious breach of duty as a doctor.
Indian Medical Council (Professional Conduct Etiquette and Ethics) Regulation, 2002, (published in Gazette of India dated 06.04.2002) provides mandatory provision for the hospitals/doctors to record/maintain Case Summary and Discharge Summary. Neither in Case Summary nor in Discharge Summary of second opposite party Hospital, this fact was noted that the patient had CVA, for last 5 years. The Exhibit A4 letter dated 15-11-2021 was contrary to the hospital record. Dr.Mathew Philip who issued Exhibits A4 and A1 was arrayed as opposite party 3 in the complaint. He did not dare to file his affidavit of evidence, admitting execution of this letter and explaining the circumstance, under which he had written this letter, contrary to the hospital record, maintained in discharge of mandatory provision of law. In the absence of personal affidavit of Dr. Mathew Philip, no reliance can be placed on the letter dated 15-11-2021 and 21-02-2022, in preference of the hospital records, which are maintained in discharge of mandatory provisions of law. As such, it is not proved that the deceased insured had concealed about his disease, in the proposal form.
Section 45 of Insurance Act, 1938 provides two year limitation for questioning the policy on the ground of suppression/non-disclosure/ misrepresentation of the fact at the time of obtaining policy. The first opposite party issued Ported Medi-claim Insurance Policy on 26-10-2019, in continuation of Medi-claim Insurance Policy issued by Oriental Insurance company Limited in the year 2007. Even from 26-10-2021, the period of two years had expired. The policy was questioned for the first time in Exhibit A5 letter dated 12-12-2021.
Based on the evidence adduced by both the parties, this Commission in considered view that, the action of the first opposite party for repudiation of the claim amount of complainants and cancellation of the policy is illegal and arbitrary and is liable to set aside and the first opposite party is liable to refund the claim amount of Rs.53,237/- to the complainants. By issuing medical certificate without verifying the treatment records and examining the complainant the third opposite party has committed deficiency in service and thereby caused much mental agony and hardship to the complainants.
In the result, the complaint is allowed and pass the following order :
1. We hereby direct the first opposite party to refund the claim amount of Rs,53,237- along with interest @ 9% p.a., from the date of repudiation i.e.,11/12/2021 till realisation.
2. We hereby direct the first opposite party to reinstate the policy of the complainants with effect from 11-12-2021 with all benefits of the policy accrued thereon.
3. We hereby direct the first opposite party to pay Rs.10,000/- (Rupees Ten Thousand only) as compensation to the complainants for the deficiency in service on the part of the first opposite party.
4. We hereby direct the third opposite party to pay Rs.30,000/- (Rupees Thirty Thousand only) as compensation to the complainants for the deficiency in service on the part of the third opposite party.
The order shall be complied within 30 days from the date of receipt of copy of this order failing which the compensation amounts shall carry 9% interest per annum from the date of this order till realisation.
Pronounced in the Open Commission on this the 14th day of December, 2023
Sri.Manulal.V.S, President Sd/-
Smt.Bindhu.R, Member Sd/-
Sri.K.M.Anto, Member Sd/-
APPENDIX :
Witnesses from the side of the complainanats :
PW1 - Cherian Mathew
PW2 - Dr. Thomas Sebastian
Witnesses from the side of the Opposite parties :
Nil
Exhibits from the side of the Complainants :
A1 - Copy of Medical Certificate dated 21/02/2022 issued
by the 3rd opposite party
A2 - Copy of Policy Certificate issued by the Ist opposite party
A3 - Copy of Medical Certificate dated 07/02/2022 issued
by PW2
A4 - Copy of Medical Certificate dated 15/11/2021 issued
by the 3rd opposite party
A5 - Copy of policy termination letter dated 12/12/2021
issued by the Ist opposite party
A6 - Copy of Discharge Summary dated 02/03/2018 issued
from St. Thomas Hospital, Chethipuzha
A7 - Copy of Medical Certificate dated 05/02/2022 issued
by Dr.Reji Thomas, Pushpagiri Medical College
Hospital, Thiruvalla
A8 - Copy of Discharge Bill dated 18/11/2021 issued by
the 2nd opposite party hospital
A9 - Copy of policy renewal receipt dated 24/10/2021
issued by the Ist opposite party
A10 - Copy of MRI scanning report dated 01/03/2018
issued
X1 - Treatment Record from St. Thomas Hospital, Chethipuzha
X2 - Treatment Record from Lisie Hospital, Ernakulam
Exhibits from the side of Opposite parties :
B1 - Copy of Proposal Form
B2 - Copy of Policy
B3 - Copy of Discharge Summary dated 02/03/2018 issued
from St. Thomas Hospital, Chethipuzha
B4 - Copy of Medical Certificate dated 15/11/2021 issued
by the 3rd opposite party
B5 - Copy of Repudiation letter dated 22/12/2021
By Order,
Sd/-
Assistant Registrar
