BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 21st day of March 2017
Filed on : 23-07-2014
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.562/2014
Between
Reji Paul, : Complainant
S/o. Paulose, Olangattu house, (By Adv.Biju Abraham,
Vadavucode P.O., Ernakulam, Carmel Centre, Banerji road,
res. at Olangattu house, Cochin-18)
Erumely Kara,
Kumarapuram P.O.,
Pin -683 565.
And
1. Max Bupa Health Insurance : Opposite parties
Company Ltd., 1, B-1/1-2, (1st O.P. By Adv. Saji Isaac K.J.
Mohan Co-operative Industrial 311, HB Flats, Panampilly Nagar,
Estate, Mathura road, Kochi-682 036)
New Delhi-110 044.
2. The Branch Manager,
Max Bupa Health Insurance
Company Ltd., Door No.
CC 39/3633/D1, Third floor
Landmark Enclave, S.A. Road,
Kochi-682 016.
O R D E R
Cherian K. Kuriakose, President.
1. Complainant's case
2. The complainant Shri. Reji paul had purchased three insurance polices from the 1st opposite party M/s. Max Bupa Health Insurance Company Ltd. They were 1. critical illness policy, 2. Health companion Silver Policy and 3. Personal accident policy. All the 3 polices were taken on 20-07-2012 and 21-07-2012. On 01-08-2013 the complainant went for routine health check up Lakeshore Hospital, Cochin. During examination a renal mass was detected on his right kidney . He was advised to consult Dr. George P Abraham of the same hospital and on taking the CT Scan and other check ups it was confirmed that the complainant was suffering from cancer. He was advised by the doctor to undergo a partial nephrectomy surgery at PVS Hospital, Cochin . Accordingly on 10-08-2013 the biopsy test was conducted and it was confirmed that the mass found was due to renal cell Carcinoma. The complainant was discharged from the hospital after the surgery on 17-08-2013 and the total hospital bill came to Rs. 2,29,579/-. Thereafter, the complainant preferred a claim with the opposite parties as per claim No. 51437under the Health companion Silver Policy. That claim was denied by the opposite parties on the ground that the claim should have been made under the “critical illness policy”. Therefore, the complainant had lodged another claim having number 58258 under the Critical Illness Policy . The opposite parties had denied that claim as well. On 26-12-2013 on the ground that the claim would fall within condition number 2.2.6 of the policy. But the claim put forward by the complainant did not come within 2.2.6 as the condition 2.2.6 is relating to kidney failure. Despite repeated communications, the opposite parties did not respond properly. The complainant had ultimately sent a registered notice on 05-03-2014 pointing out the falsity of the reason for the repudiation. The opposite parties thereafter came up with an explanation that the disease of the complainant was not cancer but “Carcinoma in situ”, which according to them was only a local phenomenon which was not critical. Therefore according to the opposite parties the complainant's claim will not come under 2.2.1 based on the exclusion clauses. The genuine claim of the complainant was unreasonably denied by the opposite parties even after accepting a huge amount of Rs. 30,000/- towards installment of premium. The disease of the complainant will not come under the exclusion list mentioned in 2.2.1 of the policy. Therefore there is deficiency in service on the part of the opposite parties and the complainant is entitled to get reimbursement of Rs. 2,29,579/- from the opposite parties. The complainant therefore seeks a direction from the opposites parties to reimburse the medical bill as aforesaid and to pay compensation of Rs. 75,000/- towards mental agony and Rs. 25,000/- towards costs of the proceedings.
3. Notices were issued to the opposite parties and opposite parties filed a joined version contending inter-alia as follows:
4. Contract of insurance is a contract based on terms and conditions of the policy, and the policy conditions are to be strictly construed. According to the critical illness cover of the policy taken by the complainant under clause 2.2.1, cancer means” a malignant tumor characterized by uncontrolled growth of malignant cells with invasion and destruction of normal tissues”. The carcinoma of the complainant was no invasive as is evident from the pathology report, which states that the cancer has not spread to any other organs and sections from other areas of kidney show normal histology. Therefore the mass detected was carcinoma in situ which is not a cancer but rather a pre-cancerus stage and hence the complainant does not covered under the policy as per the terms and conditions. As there was no kidney failure the benefit of clause 2.6.6 also could not be given to the complainant. There was no cause of action to file the complaint and there was no monetary loss as alleged. The complaint is therefore to be dismissed.
5. The evidence in this case consists of the oral evidence of PWs1 and 2 and marked Exbts. A1 to A6 on the side of the complainant. The opposite parties did not adduce any oral evidence but Exbts. B1 to B7 were marked. Heard both sides.
Following issues were settled for consideration
i. Whether the complainant had proved that there was any
deficiency in service on the part of the opposite parties, in
denying the claim of the complainant?
ii. Is the complainant entitled for compensation as prayed for?
iii. Reliefs and costs.
7. Issue Nos. i & ii. There is no dispute to the fact that the complainant had purchased insurance policies from the opposite parties. Exbt. A1 is the welcome letter issued by the opposite parties expressing their concern with regard to the health of the complainant and giving him assurance that they would provide the complainant with World Class Health Insurance Solutions, packed by highest standard of service. There is also no dispute to the fact that the complainant and his wife were covered under those policies at the time of detection of illness of the complainant. The complainant had produced copies of terms and conditions of the policy documents and repudiation letter Exbt. A2. Exbt. A3 is the notice issued by the complainant to the opposite party's grievance redressal officer requesting him to reconsider his claim . As per Exbt. A4 the opposite parties had stood firm on their stand that the illness of the complainant will not come within the meaning of cancer as a malignant tumor characterized by uncontrolled growth and spread of malignant cells with invasion and destruction of normal tissues were not found in this case. As per Exbt. A5 letter the complainant had addressed the opposite parties stating that such a conclusion made by the opposite parties were incorrect and that what he suffered was cancer. To support the contention, the complainant produced Exbt. A6 certificate, certifying that the complainant had mass lesions on the right kidney and that he had undergone laproscopic partial nephrectomy on the right kidney as he had kidney tumor and that the biopsy report had proved that it was kidney cancer. Throught Exbt. A6 was specifically certified by Dr. George P. Abraham who treated the complainant that “Carcinoma in-situ” is a condition seen only in urinary bladder and not in kidney.
8. The opposite parties had marked written letter as Exbt. B1. Exbt. B2 is the claim form submitted by the complainant in Exbt. B2. The complainant had selected from the many diseases printed in it that he had the critical illness of cancer of specified severity. Exbt. B2 was his first claim form with number 51437. Exbt. B2 was received by the opposite parties on 20-10-2013. On 22-03-2013 the complainant had written to the opposite parties that the medical claim which he made two months back did not contained the biopsy report as it was not available at that time and that he is claiming afresh with the biopsy report. Earlier of 19-09-2013 the complainant had written a reminder to sanction his claim as early as possible as he was suffering a lot of financial liability due to the illness. There is no case for the opposite parties that the complainant had suppressed any pre-existing disease. The letter issued to the opposite parties on 5-12-2013 by the treating doctor had categorically stated that the complainant did not have any similar episodes in the past. Exbt. B5 CT Scan report was suggestive of renal cell carcinoma.
9. The only question is considered in this case as to whether the opposite parties had proved that the complainant is not entitled to get the medical insurance claim on the ground that his illness would come within the excluded diseases. Exbt. B1 is the welcome letter along with premium receipt and a policy conditions. On going through the policy conditions it is clear that cancer is a malignant tumor characterized by the uncontrolled growth and spread of malignant cells with invasion and destruction of normal tissues. This diagnosis must be supported by histological evidence of malignancy and confirmed by a pathologist. The term cancer includes leukemia, lymphoma and sarcoma. The items excluded from the list of cancer were also enumerated below it under 2.2.1 . The medical case of the complainant would not fit in, in any of those exclusions. The complainant is seen to have suffered an illness which would squarely come within the ambit of “cancer”, in the absence of anything in the exclusion clause. The complainant had a malignant tumor with uncontrolled growth and spread of malignant sense with invasion and destruction of normal tissues within the kidney itself. The argument of the learned counsel for the opposite parties that the invasion and destruction of normal tissues in other organs did not happen in this case can not be entertained for the very reason that the cancerous mass had proved to have invaded the normal tissues in the kidney and if it were not to be removed in time, it would have affected the entire tissues in the kidney causing death of the complainant. We therefore find that the denial of the insurance claim by the opposite parties on flimsy ground by misinterpreting the clauses in the terms and conditions of the policy would amount to unfair trade practice and denial of service let alone deficiency in service. The evidence of PW2, the doctor who proved Exbt. A6 would falsify the contentions taken by the opposite parties in denying the claim. We therefore find that the complainant is not only entitled for the reimbursement of the amount spent by him in the hospital as per the terms and conditions of the policy, but also entitled for a substantial compensation considering the fact that the complainant was unnecessarily dragged up to this stage for filing a complaint before this Forum to get redressal of his genuine grievance and also for the mental agony made to suffer by him over and above the normal agony due to his lethal illness. Issues are found in favour of the complainant.
10. Issue No. iii. Having found issue numbers 1 and 2 in favour of the complainant we pass the following directions to the opposite parties
i. The opposite parties are directed to settle the claim of the complainant within a period of one month from the date of receipt of a copy of this order treating that the illness of the complainant would cover up the policy as reimbursable.
ii. The opposites parties are directed to pay Rs. 2,00,000/- to the complainant by way of compensation for the unfair trade practice committed against the complainant and also towards the mental agony suffered by the complainant due to the wrongful act of the opposite parties.
iii. The opposite parties shall also pay Rs. 10,000/- towards costs of the proceedings.
It is made clear that delayed payment made after one month from the date of receipt of a copy of this order would entail the complainant to claim interest @ 18% p.a. on all the categories of payment referred to above as i to iii.
Pronounced in the open Forum on this the 21st day of March 2017
Sd/-
Cherian K. Kuriakose, President.
Sd/-
Sheen Jose, Member.
Sd/-
Beena Kumari V.K., Member.
Forwarded/ByOrder,
Senior Superintendent.
APPENDIX
Complainants Exhibits
Exbt. A1 : True copy of welcome Letter (series )
A2 : True copy of communication
dt. 26-12-2013
A3 : True copy of letter dt. 05-03-2014
A4 : True copy of E-mail communications
dt. 04-04-2014
A5 : True copy of E-mail communication
dt. 21-05-2014
A6 : True copy of medical certificate of Dr.
George P. Abraham dt. 28-04-2014.
Opposite party's Exhibits:
Exbt. B1 : Welcome letter dt. 23-07-2012
B2 : Fixed benefits claim form
B3 : Copy of multicipy cheque
B4 : Exclusion clauses
B5 : Plain and Contrast CT Scan of
Whole Abdomen
B6 : Copy of certificate dt. 19-12-2013
B7 : Payment details
Depositions:
PW1 : Shri. Reji Paul
PW2 : Dr. George P. Abraham
Copy of order despatched on:
By Post: By Hand:
