Karnataka

Bangalore 4th Additional

CC/3023/2017

Preetham R, - Complainant(s)

Versus

M/s Star Health and Allied Insurance Company Limited, - Opp.Party(s)

20 Feb 2020

ORDER

Complaint Filed on:20.11.2017

Disposed On:20.02.2020

                                                                              

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.

 

 

 

 

 

20^thDAY OF FEBRUARY 2020

 

PRESENT

SMT.PRATHIBHA. R.K., BAL, LLM - PRESIDENT

SMT.N.R.ROOPA, B.A., LLB, MEMBER

 

 

COMPLAINT No.3023/2017

 

 

COMPLAINANT	Sri.Preetham R, No.160, Akshaya, 5th Cross, BHCS Layout, Uttarahalli, Bengaluru – 560061.   Advocate – Smt.Mamatha D.N.       V/s
OPPOSITE PARTies	1) M/s.Star Health And Allied Insurance Company Ltd., Rep. by its Directors, No.1, New Tank Street, Nungumbakkam, Chennai – 600034.   2) M/s. Star Health And Allied Insurance Company Ltd., Rep. by its Branch Manager, Branch Office at Rajajinagar II, No.81, Indira Arcade, I Floor, Dr.Rajkumar Road, Prakashnagar, 3rd Stage, Rajajinagar, Bengaluru – 560021.   Advocate – Sri.Y.PVenkatapathi

 

ORDER

 

SMT.PRATHIBHA. R.K., PRESIDENT

 

The complainant has filed this complaintU/s.12 of the Consumer Protection Act, 1986against Opposite Parties (herein after referred as OPs) with a prayer to direct OPs to pay an amount of Rs.35,000/- with interest @ 12% p.a from the date of payment of hospital expenses till disposal of case, to pay Rs.25,000/- towards litigation cost, inconvenience caused, mental trauma and grant such other reliefs.

 

2. The brief allegations made in the complaint are as under:

 

 

Complainant submitted that the agent of OP insurance company approached complainant to take individual health insurance.  The complainant agreed and took an individual health insurance policy with OP vide policy No.P/141131/04/2017/000044 with customer code AA0002423617.  The date of inception of the policy was 12.01.2015.  Complainant renewed the policy for the next years i.e., 2016-2017 and 2017-2018 and he is covered under the policy till 12.01.2018.

 

Complainant further submitted that he underwent an operation of Left Forearm during the year 2014 at Maharaja Agrasena Hospital, Padmanabhanagar, Bengaluru.  That on 17.05.2017 when the complainant visited the doctor for check-up, the doctor advised the complainant to schedule the surgery on 26.05.2017 for removal of implant which was inserted in the complainant’s left forearm during the year 2014 itself and the complainant was advised to get admitted to said hospital for the same.  That as the complainant was covered under health insurance policy of OP Company with the said policy number for getting the implant removed in his left forearm, the complainant has applied for a cashless claim at the Maharaja Agrasena Hospital, Padmanabhanagar, Bengaluru by providing the required documents to the hospital, the hospital authorities has applied for cashless claim on behalf of the complainant through online claim registration of OP Company for cashless treatment approval.  The hospital authorities have uploaded the policy of the complainant, prescription of the doctor prescribed to the complainant, aadhar card of the complainant and registered an online claim.

 

Complainant further submitted that the complainant was shocked and surprised to note that the OP Company had rejected the complainant’s claim for cashless treatment at the hospital for his surgery by forwarding an e-mail to the hospital stating that the claim of the complainant sent through hospital authorities was rejected and the reason stated by the OP Company was the insurance that the complainant had taken from OP Company has not been covered as the pre-existing injury was not disclosed in the policy by the complainant.  As the OP Company rejected the claim for cashless treatment, without any other go, the complainant with great hardship arranged for money for his surgery and the complainant got operated on 26.05.2017 and paid the hospital expenses on his own up to Rs.40,000/-.

 

Complainant further submitted that the OP Company has just blindly rejected the claim made by the complainant and has devoid the complainant of the rights to claim for the hospitalization expenses.  The complainant has not made any claim since the inception of the policy and this was the first claim made by him since 2015.  The reason for rejection of claim given the OP Company is not valid and the OP Company is bound to reimburse the hospitalization expenses of the complainant of the surgery that took place on 26.05.2017.

 

Complainant further submitted that during the application for the policy the agents of the company, just informed him that he has to disclose any previous prolonged diseases only.  He was made to sign in a hurry as there is always a competition among the insurance agents to close the application and issue the policy.  The complainant thought that he did not have any prolonged diseases and there was no such issue with him and under that impression he did not mention the injury he had previously undergone during 2014 and the complainant did not consider that injury as prolonged diseases hence he did not mention the surgery he had previously went through in his left forearm in 2014 to the OP.  Complainant sent legal notice through his counsel requesting the OP Insurance Company to reimburse the claim made by for his hospitalization charges of the surgery held on 26.05.2017, during the period under which the complainant was covered under the health insurance.  Complainant further submitted that as the OP Company refused to pay the hospital expenses great hardship was caused as he was financially not stable at the time of his surgery.  Hence complainant filed this complaint.

 

3. In response to the notice issued, OPs appeared through their advocate and filed their version contending in brief, as under:

 

OPs submitted that the complaint is not maintainable either in law or on facts and hence is liable to be dismissed in limine.  Without prejudice that complainant has taken the alleged policies for the period subject to the terms and conditions stated therein to the respective policy.  The policy covered the risk of the complainant, as shown in the policy to the extent of the amount stated in the policy subject to terms and conditions and exclusions and mutual obligations mentioned therein.  The complainant has not produced the full text of the policy and has been attempting to mislead this Forum in seeking the claimed relief for which he is not entitled from the OPs.

 

OPs further submitted that, the complainant had obtained the policy by suppressing his past medical history, by withholding it while executing the proposal form for obtaining the first policy and subsequently also.  The complaint is filed for claiming the expenses that have been alleged as spent for removal of implants which were adopted to his hand as early as in the year 2014 as per para 5 of the complaint also for the consequent reliefs as claimed in the prayer.  He has taken the first policy with effect from 12.01.2015 and has renewed it for the subsequent periods from 2016-22017 and 12.01.2014 – 11.01.2018.  Complainant has claimed that he got admitted to the hospital on 29.05.2017 for removal of implants.  Complainant had not stated in the proposal form, though it is his obligation to state in the proposal form about the past medical history of suffering the fracture of the hand and fixing of the implants and their in situ.  Hence the claim has been rejected for and he has obtained the policy by suppressing past history and the pre-existing medical problem and also the need for further treatment for the same.

 

OPs further submitted that he stating in the proposal form that he has no pre-existing ailments or non-disclosing of the past history pertaining to his health and the treatment already taken and seeking to issue the policy is nothing but misrepresentation and withholding of the particulars that are required to be stated in the proposal form.  That to enable the insurer to either to accept or to reject the proposal or, if to be accepted, to accept with what conditions, it is necessary to state past history also in the proposal form.  Hence, the non-stating of the facts is non-disclosure of facts.  He has committed act of misrepresentation and has not disclosed the material facts, while obtaining the policy.  Hence the cashless facility and also the claim have been rejected by the OP as per the policy terms and conditions, while acting as juristic person, under statutory obligations and rights.

 

OPs further submitted that as per condition No.7 of the policy, which reads as under:

 

“If there is any misrepresentation/non-disclosure of material facts whether by the insured person or any other person acting on his behalf, the company is not liable to make any payment in respect of any claim”. 

 

Hence claim is not payable as per condition No.7 of the policy and hence rejected.

 

OPs further submitted that, as per the discharge summary issued by M/s.MaharajaAgrasena Hospital on 29.05.2017 the complainant has undergone removal of implants adopted to radius.  The same was not disclosed while taking the policy.  Hence OPs are not bound to pay the amount as per policy.  There is no deficiency of service rendered by the OPs as to invoke the provisions of Consumer Protection Act.  The claim of the complainant has been repudiated after due application of mind and following the due procedures as per the Contract of insurance, immediately and that too within short span after getting the copies of the documents and the claim being made by the complainant.  The facts and circumstances of the transaction does not attract the jurisdiction of this Forum, for adjudication, for want of deficiency of service.  The transaction is purely contractual and the deciding of the facts will be only within the agreed scope of the contract, no independent or sympathetic farfetched view of the contract can be taken, contrary to the agreed terms and conditions and the Rules, Regulations and procedures enshrined in the Insurance Laws.  Hence on this ground also the complaint is not maintainable.  The repudiation of the claim does not amount to deficiency of service, when the same is made after due scrutiny of the claim and due application of mind in accordance with the contract.  The terms and conditions of the policy were served along with the policy schedule to the complainant.  That the Company’s liability in respect of all claims admitted during the period of insurance shall not exceed the sum insured mentioned in the schedule.  The liability/obligation of the OP shall not exceed the sum insured, under any circumstances, all claims put together during the period insurance.Rest of the allegations made by the complainant is denied by OPs.  Hence OPs prayed for dismissal of the complaint.

 

4. In the course of enquiry into the complaint, the complainant and the OPs have filed their affidavit reproducing what they have stated in their respective complaint and objections.  Complainant and OPshave produced certain documents.  Complainant has produced written arguments.  We have heard the arguments of complainant and OPs and we have gone through the oral and documentary evidence of both parties scrupulously and posted the case for order.

 

5. Based on the above materials, the following points arise for our consideration;

 

 

1. Whether the complainant has proved that there is deficiency in service on the part of the OPs, if so, whether complainant is entitled for the relief sought for?

 

 

2.  What order?

 

6. Our findings on the above points are as under:

 

Point No.1:  Negative

Point No.2:  As per the order below

 

REASONS

 

 

7.Point No.1:-On perusal of the pleadings, documents by both the parties, it is an admitted fact that the complainant availed health insurance policy with the OP on 12.01.2015vide policy bearing No.P/141131/04/2017/000044.  The said policy was renewed for the next two years i.e., 2016-2017 and 2017-2018.  The complainant submitted that the complainant underwent an operation of left forearm in the year 2014 at Maharaja Agrasena Hospital, Bangalore.  On 17.05.2017 the complainant visited for check-up the doctor advised the complainant for removal of implant.  As per the advise of the doctor the complainant undergone surgery on 26.05.2017 for removal of implant in his left forearm.  Then the complainant approached the OP for reimbursement of amount of Rs.40,000/- which he has spent for surgery.The OPs have rejected the claim of the complainant on the ground that the said injury is pre-existing injury.  The complainant alleges that the complainant has not made any claim since inception of the policy and this was the first claim made by since 2015.  Further the complainant did not considered the injury as prolonged disease hence he did not mentioned about the surgery in the proposal form.

 

8. Per contra OPs submitted that the complainant did not mention about the past medical historyin the proposal form.  But the complainant has stated in the proposal form that he has not having any pre-existing ailment.  The non-disclosing of past history pertaining to his health and the treatment already taken and seeking to issue the policy is nothing but misrepresentation and withholding of the particulars in the proposal form it amounts to violation of the policy terms and conditions.  Hence the cashless facility and claim has been rejected by the OPs as per the terms and conditions of the policy.

 

9. On perusal of the documents produced before us it is clear that the complainant has not disclosed the material facts at the time inception of the policy.  Admittedly the complainant has undergone the surgery of hisleft forearm in the year 2014.  The said fact was not disclosed by the complainant at the time of obtaining the above said policy.  Hence the complainant violated the terms and condition No.7 of the policy and thereby the OPs have rightly repudiated the claim of the complainant.  Further the complainant has produced citation of Hon’ble State Consumer Disputes Redressal Commission, Chandigarh in First Appeal No.86/2011 in a case between Star Health and Allied Insurance Co. Ltd., and Anr. V/s. Sanjeev Kumar Saini to strengthen his case.  The citation produced by the complainant is not applicable to the case on hand as the citation produced by the complainant is different one.  Accordingly we answer the point No.1 in negative.

 

10. Point No.2: In the result, for the foregoing reasons, we proceed to pass the following order:    

 

 

O R D E R

 

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is dismissed.  Parties to bear their own costs.

 

Supply free copy of this order to both the parties.

 

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this20^thday of February 2020)

 

 

 

 

(ROOPA N.R)                                             (PRATHIBHA R.K)

   MEMBER                                                     PRESIDENT

 

Witnesses examined on behalf of the complainant by way of affidavit:

 

Sri.Priyanka R, who being the GPA holder of complainant.

 

 

 

Copies of documents produced on behalf of complainant:

 

Ex-A1	Copy ofinsurance policy.
Ex-A2	Copy of prescription dated 17.05.2017.
Ex-A3	Copy of rejection letter dated 20.05.2017.
Ex-A4	Copy of discharge summary.
Ex-A5	Copy of hospital bill dated 26.05.2017 (Maharaja Agrasen Hospital)
Ex-A6	Copy of hospital bills
Ex-A7	Copy of legal notice dated 23.10.2017.
Ex-A8	Copy of postal receipt.
Ex-A9	Postal acknowledgment.
Ex-A10 & 11	Copy of email correspondence dated 22.10.2017 & 23.10.2017
Ex-A12	Copy of reply of OP dated 04.11.2017 to the legal notice.
1)	Copy of authority (Appeal No.86/201)

 

 

Witnesses examined on behalf of the OPs.1 & 2 by way of affidavit:

 

Pushpa

 

Copies of documents produced on behalf of Opposite Party:

 

Ex-B1	Copy of policy schedule
Ex-B2	Copy of proposal form.
Ex-B3	Copy of discharge summary.

 

 

 

 

(ROOPA N.R)                                             (PRATHIBHA R.K)

   MEMBER                                                     PRESIDENT