Karnataka

Bangalore 4th Additional

CC/15/1009

M.K. Anthony - Complainant(s)

Versus

Max Bupa Health Insurance Co. Ltd - Opp.Party(s)

CV Georgekutty

11 Oct 2018

ORDER

Complaint filed on: 27.05.2015

                                                      Disposed on: 11.10.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027        

 

CC.No.1009/2015

DATED THIS THE 11^th OCTOBER OF 2018

 

PRESENT

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

	Complainant/s	V/s	Opposite party/s
	M.K.Anthony, S/o Late Joseph, Aged about 59 years, #93 Ejipura Main Road, Viveknagar Post, Bangalore-47   By.Adv.C.V.Georgekutty		Max Bupa Health Insurance Co.Ltd., Branch Office at: 1st Floor, Vaishnavi Silicon Terrace, 30/1, Hosur Main Road, Adugodi, Opp.Prestige, Bangalore-560 095. Also at No.B-1/1-2, Mohan Cooperative Industrial Estate, Mathura Road, New Delhi-110 044.   By.Adv.H.N.Keshava Prashanth

 

PRESIDENT: SRI.S.L.PATIL

 

1.       The Complainant has filed this complaint as against the Opposite Party directing to pay Rs.58,788/- with interest at 18% p.a. being the amount incurred by them towards hospitalization expenses, to pay Rs.15,000/- as compensation for deficiency of service and for mental agony, inconvenience, hardship and difficulties caused and to grant such consequential reliefs.

 

2.       The brief facts of the case of the complainant are that the complainant and his wife Smt.Jositta Jolly, obtained heartbeat health insurance policy from the OP for a sum assured of Rs.3,00,000/-.The policy was obtained for the period between 2.1.2014 to 1.1.2015 vide policy bearing No.30069274201402, by remitting premium of Rs.22,376/-. The complainant submits that the complainant had taken the OP’s heartbeat health insurance policy for the previous years also i.e. from 2.1.2012 onwards. The policy bearing No.30069274201200 for the period of 2.1.12 to 1.1.13 making gross premium for Rs.19,575/- and the policy bearing No.30069274201301 for the period of 2.1.13 to 1.1.14 paying gross premium of Rs.21,235/-. As per the heartbeat health insurance policy, any of the insured person/s, during the valid period of the policy was covered for inpatient treatment, like medical expenses for doctor’s fees, diagnostic procedures, medicines drugs and consumables, operation theatre charges, intensive care unit, intravenous fluids, blood transfusion, injection etc., and hospital accommodation charges, pre & post hospitalization medical expenses, day care procedures, health checkup etc., the amount of such expenses as cashless basis, incurred in respect by or on behalf of such insured persons up to the limits indicated but not exceeding the sum insured. The complainant submits that due to a small would on the toe the complainant had visited and admitted in St.Philomenas Hospital, Bangalore twice on 26.12.2013 to 11.1.2014 and second time on 23.1.2014 till 24.1.2014. Doctors conducted various tests on complainant and under gone medication and treatment and discharged, the complainant from hospital incurring an amount of Rs.58,788/-. Dr.Abraham Y.P., MBBS, F.R.C.S & Dr.Raghu was taken care of the complainant. The complainant further submits he was incurred hospital expenses of Rs.58,788/-. Initially the complainant informed the OP about the hospitalization and they sent an authorization letter to the hospital regarding the bill payment to the hospital in view of the fact that the policy had cashless facility. But later on 1.1.2014, the OP has sent a letter to the hospital denying the authorization of the payment of medical expenses of the complainant. Immediately, the complainant has contacted the OP and they have disclosed that complainant has suppressed the previous disease at the time of obtaining the policy. As such, right away contacted the medical officer regarding the report sent to the OP, consequently the medical officer found and realized the clerical mistake in the report and same is intimated the OP forthwith. The reason for the denial was the non-disclosure of material facts-Hypertension since 2 years. Later the complainant has paid all the expenses incurred, to the tune of Rs.58,788/- to the hospital and made a claim for the said amount with the OP. However, vide letter dt.17.4.2014, the OP repudiated the claim of the complainant on the ground that “the patient having K/C/O of DM since 3 months on a treatment and also hypertension since 2 years”.  The contention of the OP, that the non-disclosure of illness is wrong. The complainant was hale and healthy at the time of taking the policy and there was no suppression of facts. The complainant has taken the policy for the last number of years. The OP has committed a serious error in repudiating the claim on the ground of non-disclosure of illness, the OP is not justified in repudiating the claim. The complainant had made hectic steps to release the amount by making representation but all were in vain. The complainant submits that he is a consumer and there is deficiency of service on the part of the OP. The action of the OP constitutes grave negligence and deficiency in service and unjust enrichment and has caused immense mental agony to the complainant and put into serious financial loss and the OP is liable to compensate them. Hence, the complainant submits to allow the complaint.  

 

3.       After the issuance of the notice, OP did appear and filed the version denying the claim of the complainant. The OP submits that the complaint filed by the complainant is devoid of merits and liable to be dismissed since the complainant has suppressed the pre-existing disease.  The OP further submits that the claim repudiated by it is due to non-disclsoure of the material facts/hyper tension since 2 years. Further submits that an investigation was conducted by the person authorized by it to ascertain the facts. During the course of the investigation, it was revealed that the said patient/insured person who is the complainant herein had undergone treatment for diabetic left foot, but during the hospitalization doctor has mentioned that patient/insured person is “K/C/O OF DM SINCE 3 MONTHS/HYPERTENSION SINCE 2 YEARS ON TREATMENT”. Further submits that the complainant was suffering from pre-existing disease before policy inception which can be seen ongoing through discharge summary. The claim has been repudiated placed reliance on the relevant clause of the policy proposal form which reads thus:

“Your are obliged to make full and frank disclosure of all facts material to the assumption of risk in relation to you and every person proposed to be insured that would influence our decision to issue policy or terms on which it is issued and you must not misrepresent any information to us”

The complainant at the time of availing the policy has suppressed the material facts in respect of the pre-existing disease. Hence, the claim is not sustainable, hence repudiated. In this context, the OP has placed reliance in its version in the matter of LIC v/s Kuldeep Singh dt.3.6.2015 and Satwant Kaur Sandhu V/s New India Assurance Company Ltd., (2009) 8 SCC 316. Further, the OP also placed reliance on the decision in the matter of United India Insurance Co. Ltd., V/s Harchand Rai Chandan Lal in Civil Appeal No.6277 of 2004.  With regard to this, no relief can be given unless the complainant’s case is covered by the terms of the policy. Further submits that the complainant has not come to the Forum with clean hands. Hence, his claim cannot be considered in the light of the decisions in the matter of Jaspreet Singh V/s ICICI Home Finance Co. Ltd., Jalandhar and ICICI Home Finance Co. Ltd., Mumbai in R.P.No.113 of 2013. On these grounds and other grounds prayed for dismissal of the complaint. 

 

4. The Complainant to substantiate his case, filed his affidavit evidence and got marked as Ex-A1 to A21. The OP has filed his affidavit evidence and got marked as Ex-B1 to B7. The Complainant has filed written arguments. Heard.                                                                                                                                                                                                                                                                                                                                                                                              

 

5. The points that arise for our consideration are:

1) Whether the Complainant proves the deficiency in service

    On the part of the OPs, if so, whether he is entitled for

    the relief sought for?

          3) What Order?

                  

 

6.  Our answers to the above points are as under:

 

Point No.1: Affirmative

Point No.2: As per the final order for the following

REASONS

 

7. POINT NO.1 :   We have briefly stated the contents of the complaint as well as the version of the Opposite Parties. It is not in dispute that the complainant has availed the policy from the OP and the said policy was in force as on the date of taking the treatment by the complainant in St.Philomena’s Hospital twice from 26.12.2013 to 11.1.2014 and second time on 23.1.2014 till 24.1.2014. Doctors of the said hospital conducted various tests on the complainant and undergone medication, treatment and discharged the complainant from hospital incurring an amount of Rs.58,788/- Dr.Abraham V.P., and Dr.Raghu were taken care of the complainant. The copy of the discharge summary is produced by the complainant with bills found at Annexure 4 and 5 marked as Ex-A10 and A11 respectively. Under Ex-A4, it is stated that provisional diagnosis is at the time of admission:

Diabetic foot-Left

Type 2 diabetes mellitus

Essential Hyper Tension

 

          8.       It is the case of the complainant that he has incurred hospital expenses of Rs.58,788/-, initially the complainant informed the OP about the hospitalization and they sent an authorization letter to the hospital regarding the bill payment to the hospital in view of the fact that the policy had cashless facility. Later on 1.1.2014, the OP has sent a letter to the hospital denying the authorization of the payment of medical expenses of the complainant. Immediately the complainant has contacted the OP who disclosed that complainant has suppressed the previous disease at the time of obtaining the policy.   As such, right away contacted the medical officer regarding the report sent to the OP, consequently the medical officer found and realized the clerical mistake in the report and same is intimated the OP. In this context, the complainant has placed reliance on Anx-6 to 8 which are marked as Ex-A12 to 16. The reason for the denial was the non-disclosure of the material facts/hypertension since 2 years. Later the complainant had paid all the expenses incurred, to the tune of Rs.58,788/- to the hospital and made a claim for the said amount with the OP. However, vide letter dt.17.4.2014, the OP repudiated the claim of the complainant on the ground that “the patient having K/C/O of DM since 3 months on a treatment and also hypertension since 2 years”. The repudiation letter is dt.17.4.2014. The complainant submits that he was hale and healthy at the time of taking the policy and there was no suppression of facts. Now, we place the contents of the documents on which the complainant has relied to substantiate his claim. To prove that he has no any pre-existing disease at the time of availing the policy, the complainant has placed reliance on the certificate issued by the doctor marked as Ex-A16 and typed copy thereof which read thus:

TO WHOM SO EVER IT MAY CONCERN

Here is a patient by name M.K.Anthony, who is admitted for debridement left foot wound. I know this patient from past 6 months. This patient was recently detected to have hypertension and diabetes mellitus from past 8 months, which was in the main case sheet ( enclosed along with this for your reference)

By mistake (clerical) in the summary it was typed as 2 yrs. Condition was not related to the hypertension.

Kindly do the needful

 

We have placed reliance on the contents of the said Ex-A16 with reference to the case sheet wherein at ink page No.109 in the documents produced the by OP marked as Ex-B5 wherein on 26.12.2013 at 5.30 pm medical resident stated as known case of “diabetes since 3 months, hypertension since 3 months” so known hypertension since 2 years has no legs to stand as the typographical error has been rectified by the concerned doctor by way of issuing clarification letter marked as Ex-A16 stating that by mistake (clerical) in the summary it was typed as 2 yrs and condition was not related to the hypertension. The Op has repudiated the claim on the ground that the complainant has suppressed the alleged pre-existing disease of hypertension at the time of availing the policy. But as per the letter issued by the said doctor, the diabetes as well as hypertension was since 3 months as on the date of treatment, but not at the time of availing the insurance policy. The burden of proof of the pre-existing disease is on the OP. With reference to the diabetes and hypertension are concerned, which are not at all a kind of disease. Further, which are to be proved by the OP in the light of the decision reported in:

1.  III (2014) CPJ 340 (NC): Op did not produce any evidence to prove that which medication and how long the Complainant was taking for diabetes/hypertension- held – concealment not established – repudiation not justified.

2. Punjab SCDRC, Chandigarh decision reported in I (2001) CPJ 53 in the case of LIC of India Vs. Charanjit Kaur, wherein it is held that: Consumer Protection Act, 1986 – Section 15 – Appeal – Life insurance – repudiation of claim – suppression of material facts – onus of proving that deceased made false statement lies on insurance company – death due to hypertension and abdomen pain not proved – Complainant entitled to get policy amount along with interest.
3. (1). 2008 CTJ 396 (CP) (SCDRC) in the case of LIC of India and Anr., v. Sukhpal Kaur, wherein it is held that:

2. Insurance – deficiency of service – Consumer Protection Act, 1986 -  Section 2(1)(g) –section 2(1)(o) – Insured died leaving behind a life policy of an amount of Rs.5 lakhs – repudiation of the claim lodged by his wife taking a plea that he died of kidney failure within 2 years and 5 months of taking the policy, was a chronic alcoholic and suffered from hypertension for the last 10 years – District Forum allowed her complaint directing for payment of the claim amount of Rs.5 lakhs with 6% interest – appeal – only the suppression of material facts could entitle the appellants to repudiate the claim – hypertension cannot be termed a material disease – held, consumption of liquor and hypertension could not be termed as material facts leading to the repudiation of the claim – appeal dismissed.

In the said decision at para 6 to 9 it is held that:

(6) Dhum Singh was admitted in V.K.Neurocare hospital, Chambal Hospital road, Hissar and he was discharged on the same date. As per this certification, the information was given by the respondent who was the wife of Dhum Singh. As per this certificate Dhum Singh was suffering from hypertension for the last 10 years. Hypertension cannot be termed as a material disease. If it had been a disease, he would not have survived for 10 years. It was held by the Hon’ble Supreme Court in the judgment reported in “BimanKrishna Bose vs. United India Insurance co., ltd., and Anr., 2001 CTJ 716 (SC) (CP) = 111 (2001) CPJ 10 (SC)” that insurance companies should not act arbitrarily. The Hon’ble Supreme Court was pleased to observe as under:

3. “where an insurance company under the provisions of the Act having assumed monopoly in the business of general insurance in the country and thus acquired the trappings of the ‘State’ being other authorities under Article 12 of the Constitution, it requires to satisfy the requirement of reasonableness and fairness while dealing with the customers. Even in an area of contractual relations, the State and its instrumentalities are enjoined with the obligations to act with fairness and, in doing so, can take in to consideration only the relevant materials. They must not take any irrelevant and extraneous consideration while arriving to a decision. Arbitrariness should not appear in their actions or decisions”.

(7) It was also mentioned that the deceased was alcoholic for the last 6 years and he used to consume half bottle of liquor daily. This information was given by the wife of Dhum Singh, deceased. The consumption of liquor is also not a disease. Society as a whole with few exceptions has become accustomed to take liquor. Consumption of liquor to the extent of half bottle a day appears to be exaggeration. This information was allegedly told to the hospital authorities by the respondent. If this had been a reality, Dhum Singh could have been consumed by the liquor itself sooner than 6 years. It appears to be only a vague allegation that half bottle of liquor was consumed by the deceased everyday for the last 6 years. No record has been produced to that effect nor it can be believed if the wife was certain about this factual position. It was held by this Commission in First Appeal no.1585/2006 titled as “Branch Manager, LIC, unit no.2, Hall Bazar, Amritsar and another v. Rahul Sehgal” decided on 20.12.07 as under:-

“11. The learned counsel for the appellants submit that this medical record has proved that Rohit Sehgal was alcoholic for the last 15 years, and therefore, this habit of the insured led to the disease and had become a cause of his death.”

“12.This submission has been considered. It is a farfetched argument. Taking liquor is not a material fct. Moreover, taking liquor is not a disease. Almost everybody takes liquor, with few exceptions. Again, it varies whether one takes liquor in larger quantity or takes only small dose like medicine; whether one takes regularly or occasionally. This report does not clarify these details. If consumption of liquor was a disease, the insured would not have survived for 15 years. He would have died even prior to filling of revival form. Therefore, taking alcohol was not a material fact, the suppression of which can entitle the appellants to repudiate the claim.

8. No-doubt the settled law is that the insured is bound to disclose the material facts to the insurance company at the time of filling up the proposal form and the insurance companies are entitled to take the benefit of Secion 45 of the Insurance Act. In this case, the proposal form was filled on 04.10.01 while the insured had died on 18.01.04 i.e. more than 2 years after the filling of the proposal form. In such circumstances, as per the law laid down by the Hon’ble Supreme Court in the judgment reported as “MithoolalNyayak vs. LIC of India AIR 1962 Supreme Court 814” only the suppression of material facts can entitle the appellants to repudiate the claim. The consumption of liquor by Dhum Singh and his disease of hypertension are not material facts, the suppression of which will entitle the appellants to repudiate the claim.

9. In view of discussion held above, we find no merit in the present appeal and the same is dismissed. However, there will be no order as to costs.

 

In the light of the above decisions cited supra, we come to the conclusion that the claim repudiated by the OP on the unsustainable ground is not just and proper which is against the settled principle of law as per the decision cited supra.  Hence, we come to the conclusion that the complainant is entitled for the refund of the hospitalization expenses of Rs.58,788/- which has already paid in the hospital. We direct the OP to process the refund of the said amount to the complainant. Looking to the circumstances of the case, we do not propose to pay any compensation, but anyhow the OP is directed to pay an amount of Rs.3,000/- being cost of litigation.   Accordingly, we answered the Point No.1 in the affirmative.

 

9.       POINT NO.2: In the result, we pass the following:

ORDER

 

The complaint filed by the Complainant is hereby allowed. The OP is directed to pay an amount of Rs.58,788/- to the complainant towards hospitalization expenses. Further, the OP is directed to pay Rs.3,000/- being cost of litigation.

The OP is directed to comply this order within 6 weeks from the receipt of this Order. Failing which, the Complainant is at liberty to take proper steps as per law.

Supply free copy of this order to both the parties.

           (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the open Forum on 11^th October 2018).

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL)     PRESIDENT

 

 

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

M.K.Anthony., who being Complainant was examined. 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Insurance certificate policy for the period from 2.1.12 to 1.1.13
Ex-A2-3	Premium receipt dt.2.1.2012 & covering letter
Ex-A4	Insurance certificate for period of 2.1.13 to 1.1.14
Ex-A5-6	Premium receipt dt.4.1.2013 & covering letter
Ex-A7	Insurance certificate for period of 2.1.14 to 1.1.15
Ex-A8-9	Premium receipt dt.30.12.2013 & covering letter
Ex-A10	Discharge summary
Ex-A11	Hospital bill
Ex-A12	Discharge summary
Ex-A13	Hospital Bill
Ex-A14	Letter of authorization dt.26.12.13
Ex-A15	Letter of denial by the OP dt.1.1.14
Ex-A16	Certificate issued by the doctor
Ex-A17	Repudiation letter
Ex-A18	Legal notice
Ex-A19	Postal receipt
Ex-A20	Postal acknowledgement
Ex-A21	Insurance policy

 

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Sinu Joseph., who being OP was examined.

 

Ex-B1	Authority letter dt.4.1.2016
Ex-B2	Copy of policy booklet for policy
Ex-B3	Claim form received by OP
Ex-B4	Pre authorization denial letter
Ex-B5	Investigation report/ICP
Ex-B6	Discharge summary
Ex-B7	Claim denial letter

 

 

 

(ROOPA.N.R)       MEMBER

(S.L.PATIL)    PRESIDENT