IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 24th day of August, 2020
Present: Sri. Manulal V.S. President
Sri. K.M. Anto, Member
C C No. 326/16 (filed on 21/11/2016)
Petitioner : Rema Devi,
W/o. Muraleedharan,
Kandathil House,
Arunootimkanglam P.O.
Kaduthuruthy,
Vaikom – 686 604.
(Adv. T.R. Sathian)
Vs.
Opposite Parties : 1) M/s. Cholamandalam
Ms General Insurance Company Ltd.
No.319, (old No.154)
Shaw Wallace Building,
2nd Floor, Thampuchetty street
Party’s corner, Chennai – 60001.
(Adv. Agi Joseph)
2) M/s. T.V. Sundaram Ayangar
And Sons, Near Union Club,
Kottayam – 686 001.
Rep. by the Branch Manager.
3) M/s. Carithas Hospital,
Thellakom P.O.
Kottayam – 686 630.
(2nd and 3rd op deleted as per 158/17)
O R D E R
Sri. Manulal V.S. President
The case of the complainant is as follows:
The petitioner who is a house wife had purchased BOLERO MAHINDRA JEEP for her livelihood, by availing loan from M/s T.V. Sundaram Iyenkar & Sons. As per the policy matter the manufacturer of the vehicle, free insurance coverage was offered to the purchasers of the vehicle. Accordingly, the manufacturer of the said vehicle, it was validly been insured with the first opposite party under their plan Health Care- VFD vide certificate no. 2842/00/124987/000/00. The type of the policy was individual and the total sum insured was Rs. One lakh the said policy is valid from 15-4-2016 to 14-4-2017. It is specified in the certificate of insurance that the persons are covered under the group health master policy insured in the name of M/s Indus Ind Bnk. The insurance premium was collected from the complainant along with the price of the vehicle. Being so the complainant had some physical discomfort and had approached the third opposite party hospital and undergone the treatment as an inpatient at the department of cardiology from 21-7-2016 to 3-8-2016 and was under the management of Dr. Deepak Davidson. After the due diagnosis it was advised for an Angiography to the petitioner and on 21-7-2016 CAD was detected to the petitioner. Though the details of the treatments and expenses thereon etc were communicated to the first opposite party they repudiated the claim on the ground that, the hypertension of the petitioner, which was found earlier to the angiography , is the primary cause of the heart problem.
The complainant produced all the documents which are demanded by the first opposite party. The certificate issued by the Dr. Deepak Davidson dated 6-8-2016 clearly and conclusively specified that the coronary artery disease of the petitioner in not due to the hypertension.
Neither the first and second opposite parties, the manufacturer of the vehicle nor the dealer of the vehicle of the said company, advised or insisted for any medical checkup or medical certificate from the petitioner, to avail the benefit of the Health Care VFD of the first opposite party . The complainant
further alleges that she had never demanded for any insurance coverage from the manufacturer, financier, dealer or from first opposite party. The issuance of the insurance certificate and the offer to get the insurance benefit thereon during the valid period of insurance, the collection of the required premium for the same etc was a voluntary act of the manufacturer, dealer and the first opposite party. She further alleges that the entire purchasers of the new vehicle are automatically getting the said insurance disregarding their age, gender, or physical impairments if any, including any disease, since it is an offer to promote the sale of the said vehicle. Due to the repudiation of the claim the complainant is constrained to pay Rs. 1,71,241/- to the third opposite party and the complainant lost the monetary benefits that would have been availed to her from the Government under the Karunya Benevolent Scheme, since the claim ought to have been agitated, before the authority. The first opposite party has committed deficiency in service by repudiating the insurance claim of the complainant. Hence this complaint
Upon notice from this Commission opposite parties appeared. The second and third opposite parties are deleted from the party array vide order in 158 of 2017. The first opposite party filed their version as follows:
The complaint is not maintainable on the ground that the complainant is not a consumer. A policy certificate was issued to the petitioner vide no. 2842/00/124987/000/00 under the Health master Policy issued in the name of the M/S. Indus Ind Bank. The period of policy starts from 15-4-2016 to 14-4-2017. Maximum coverage under the policy is Rs. 1,00,000/. In the discharge summary dated 3-8-2016 issued from Caritas hospital specifically stated that petitioner is hypertensive and dyslipidemic. She has history of angina as exertion. Angina means chest pain or disc comfort caused when heart muscle does not get oxygen due to block in the heart. It is symptom of an under lying heart problem usually coronary heart disease. In the pre operative assessment record complainant has hypertension for the last 10 years. These clinical history shows that petitioner had been suffering heart ailment at the time of inception of the policy cover. As per the terms and conditions of the policy no indemnity is available or payable for the claims directly or indirectly caused by arising out of or connected to any pre-existing condition. Further any illness diagnosed or diagnosable within 30 days of the effective date of the policy period if this is
the first health policy taken by the policyholder with the insurer.
In both above cases insurance company is not liable to pay any amount to the petitioner. On the basis of conditions the first opposite party legally and validly repudiated the claim of the complainant. Karunya Medical Aid is a benevolent scheme for the poor from the government and not a concern of the first opposite party. It is an internationally accepted principle in insurance that there is no need of any check up before taking the policy. The treatment expenses stated in claim is not correct.
There is no deficiency in service from the side of the opposite party.
Complainant filed proof affidavit and exhibit A1 to A4 were marked. One Manjusha who is the Manager, Claims of the opposite party filed proof affidavit on behalf of the opposite party and exhibit B1 to B6 were marked.
On evaluation of complaint, version and evidence on record we would like to consider the following points.
1. Whether, the complaint is maintainable or not?
2. Whether there is any deficiency in service from the side of the opposite
party?
3. Reliefs and costs
For the sake of convenience, we would like to consider the point
number 1 to 3 together.
Point No. 1, 2 and 3.
It is an undisputed fact that the complainant has availed the service of the opposite party by getting an insurance policy under the plan Health Care- VFD vide certificate no.2842/00/124987/000/00 while purchasing a BOLERO MAHINDRA JEEP. The opposite party contended that the complainant had purchased the vehicle bearing registration number KL-36C-9513 for commercial purpose as she is operating the same with the help of a paid taxi driver. Section 2 (1)(d)(ii) of the consumer protection Act 1986 defines consumer as :
“hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose”.
The complainant had specifically pleaded in the complaint as well as in affidavit that she had purchased the said vehicle for earning her livelihood. Exhibit A1is the certificate of insurance issued by the opposite party to the complainant. We are of the opinion that the complainant has availed the service of the opposite party and the complainant is a consumer of the opposite party. Therefore, issue number1 is answered in favour of the complainant.
Due, to some physical discomfort the complainant had undergone the treatment as an inpatient at the department of cardiology of the Carithas Hospital from 21-7-2016 to 3-8-2016 and was under the management of Dr. Deepak Davidson. After due diagnosis, it was advised for an Angiography to the petitioner and on 21-7-2016 CAD was detected to the complainant. Exhibit B3 proves that the complainant had undergone Coronary Artery Bypass Graph in Caritas hospital for her ailment. ExhibitA2 is the discharge bill issued by the Carithas hospital to the complainant for Rs. 1, 72,741.00.According to the complainant the opposite party repudiated her claim for the insurance benefit on the ground that, the hypertension of the petitioner, which was found earlier to the angiography , is the primary cause of the heart problem. Further the opposite party contended that as per the terms and conditions of the policy no indemnity is available or payable for the claims directly or indirectly caused by arising out of or connected to any pre-existing condition. They further stated that any illness diagnosed or diagnosable within 30 days of the effective date of the policy period if this is the first health policy taken by the policyholder with the insurer. On perusal of Exhibit B3 we can see that it is recorded that the complainant is a hypertensive and dyslipidemic and has a history of angina on exersion.
In Tarlok Chand Khanna vs United India Insurance co NCDRCI(2012) CPJ 84 (NC) has held that “Further, it is settled law that the onus to prove that the insured had a pre-existing disease was on the Respondent which as stated above, it has failed to do. On the other hand, Petitioner has cited a ruling of this Commission in National Insurance Co.Ltd. (supra) which we feel has relevance to this case.”
Pradeep Kumar Garge vs National Insurance co. STATE COMMISSION DELHI( [III (2008) CPJ 423) has held
“ On the concept, meaning and impart of word disease, pre-existing disease in reference to medical insurance policies, we have drawn following 10 conclusions in highly extensive, dissective manner. These are as under:-
(i) Disease means a serious derangement of health or chronic deep-seated disease frequently one that is ultimately fatal for which an insured must have been hospitalized or operated upon in the near proximity of obtaining the mediclaim policy.
(ii) Such a disease should not only be existing at the time of taking the policy but also should have existed in the near proximity. If the insured had been hospitalized or operated upon for the said disease in the near past, say, six months or a year he is supposed to disclose the said fact to rule out the failure of his claim on the ground of concealment of information as to pre-existing disease.
(iii) Malaise of hypertension, diabetes, occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in and out of the house and are controllable on day to day basis by standard medication and cannot be used as
concealment of pre-existing disease for repudiation of the insurance claim unless an insured in the near proximity of taking of the policy is hospitalized or operated upon for the treatment of these diseases or any other disease.
(iv) If insured had been even otherwise living normal and healthy life and attending to his duties and daily chores like any other person and is not declared as a diseased person as referred above he cannot be held guilty for concealment of any disease, the medical terminology of which is even not known to an
educated person unless he is hospitalized and operated upon for a particular disease in the near proximity of date of insurance policy say few days or months.
(v) Disease that can be easily detected by subjecting the insured to basic tests like blood test, ECG etc. the insured is not supposed to disclose such disease because of otherwise leading a normal and healthy life and cannot be branded as diseased person.
(vi) Insurance Company cannot take advantage of its act of omission and commission as it is under obligation to ensure before issuing medi-claim policy whether a person is fit to be insured or not. It appears that insurance Companies don’t discharge this obligation as half of the population is suffering from such malaises and they would be left with no or very little business.
Thus any attempt on the part of the insurer to repudiate the claim for such non-disclosure is not permissible, nor is exclusion clause invokable.
(vii) Claim of any insured should not be and cannot be repudiated by taking a clue or remote reference to any so-called disease from the discharge summary of the insured by invoking the exclusion clause or non-disclosure of pre-existing disease unless the insured had concealed his hospitalization or operationfor the said disease undertaken in the reasonable near proximity
as referred above.
(viii) Day to day history or history of several years of some or the other physical problem one may face occasionally without having landed for hospitalization or operation for the disease cannot be used for repudiating the claim. For instance an insured had suffered from a particular disease for which he was hospitalized or operated upon 5, 10 to 20 years ago and since then had been living healthy and normal life cannot be accused of concealment of pre-existing disease while taking mediclaim policy as after being cured of the disease, he does not suffer from any disease much less the pre-existing disease.
(ix) For instance, to say that insured has concealed the fact that he was having pain in the chest off and on for years but has never been diagnosed or operated upon for heart disease but suddenly lands up in the hospital for the said purpose and therefore is disentitled for claim bares dubious design of the
insurer to defeat the rightful claim of the insured on flimsy ground. Instances are not rare where people suffer a massiveattack without having even been hospitalised or operated upon at any age say for 20 years or so.
(x) Non-disclosure of hospitalization/or operation for disease that too in the reasonable proximity of the date of mediclaim policy is the only ground on which insured claim can be repudiated and on no other ground.
6. We have taken a view that unless and until a person is hospitalized or undergoes operation for a particular disease in the near proximity of obtaining insurance policy or any disease for which he has never been hospitalised or undergone operation is not a pre-existing disease. If a person conceals the factum of his hospitalization of a particular disease or operation undergone
by him in the near proximity of obtaining the insurance policy say a year or two, only then it can be termed as concealment of factum of disease and doctrine of good faith u/s 45 of the Insurance Act may be pressed in by Insurance Company and not otherwise. Doctrine of good faith is two-way traffic and not a one-way traffic. If the Insurance Companies take benefit of doctrine of good faith then they have to accept whatever the insured declares and should not subject the insured to medical test and get certificate from the Doctor on the panel that the insured possesses sound and good health and is entitled to mediclaim insurance policy. Such a certificate will be meaningless and of no relevance as to the state of health of a person.”
In case in hand though the opposite party pleaded that the complainant has hypertension for the last 10 years , on perusal of exhibit B4 we can see that she was not on drugs for two years for the hypertension. Exhibit A4 is the certificate issued by Dr.Deepak Davidson proves that the coronary artery disease of
the complainant is not due to hypertension. Thus we are of the opinion that thr principle laid down in Pradeep Kumar Garge vs National Insurance co is squarely applicable to this case. Another contention put forward by the opposite party is that any illness diagnosed or diagnosable within 30 days of the effective
date of the policy period if this is the first health policy taken by the policyholder with the insurer. Exhibit A1 proves that the period of insurance is from 15-4-2016 to 14-4-2017 and maximum coverage under the policy is Rs. 1,00,000/. On perusal of exhibit A2 we can see that the date of admission of
the complainant in the hospital was on 21-07-2016 and on 3-8-2016 she was discharged after the treatment. It is proved by exhibit B6 that the coronary artillery disease of the complainant was detected on 21-7-2016, which is more than one month after the inception of the policy. Accordingly, we have reached at the conclusion that the claim of the complainant was wrongly, illegally, and arbitrarily repudiated by opposite party.
However, the complainant pleaded for an order directing the opposite party to pay Rs.3,70,000/ which is the medial expenses incurred by her and the compensation , on perusal of the exhibits we can see that as per exhibit A1 policy certificate the sum assured is only one lakh. As such, the complainant is
entitled to the amount spent by him on his treatment to the extent of the sum assured under the policy, in question, along with interest and compensation..
As discussed earlier the opposite party has committed deficiency in service by repudiating the medical insurance claim of the complainant without any legal and valid reason No doubt the complainant has suffered much sufferings and loss due to the act of deficiency by the opposite party and the opposite party is
liable to compensate for the same. In the circumstances we allow the complaint and pass the following order.
- We hereby direct the opposite party to pay Rs. 1,00,000/ (Rupees One lakh only) which is the sum assured by the opposite party vide exhibit A1 insurance certificate to the complainant.
- We hereby direct the opposite party to pay Rs. 10,000/ (Rupees Ten thousand only) to the complainant as compensation for mental agony and sufferings due the act of deficiency in service by the opposite party.
- We herby direct the opposite party to pay Rs. 2500/- (Rupees Two thousand and five hundred only)as cost of this litigation.
Order shall be complied with within a period of 30 days from the date of receipt of Order. If not complied as directed, the award amount will carry 9% interest from the date of Order till realization.
Pronounced in the Open Commission on this the 24th day of August, 2020
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked on the side of the complainant
A1 : Copy of insurance certificate no.2842/00124987/0050/000/00
A2 : Copy of discharge bill dtd.03/08/16 by Caritas Hospital
A3 : Notice dtd.05/10/16
A4 : Certificate dtd.16/08/16 by Dr.Deepak Davidson
Exhibits marked on the side of opposite party
B1 : Copy of insurance certificate no. 2842/00124987/0050/000/00
B2 : Copy of letter dtd.28/09/2016
B3 : Copy of discharge card dtd.03/08/16 issued by Caritas Hospital.
B4 : Copy of pre-operative assessment of petitioner issued by Caritas Hospital
B5 : Copy of investigation report issued by VR Assurance Medial Database Management Pvt. Ltd.
B6 : Certificate dtd.16/09/16 issued by Caritas Hospital
By Order
Senior Superintendent
