BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052           

C.C.No.1742/2011

DATED THIS THE 22^nd MARCH 2013

PRESENT

SRI.J.N.HAVANUR, PRESIDENT

SRI.H.M.SHIVALINGAPPA, MEMBER

Complainants: -                                                           

Sri.Ramachandra Rao.V,

S/o. Sri.Venkoba Rao,

Aged 55 years,

R/at No.1412, 1^st Floor,

24^th Cross, H.S.R. Layout,

Sector-2, Bangalore-02                                                           

V/s

Opposite parties: -                 

1.     M/s. Apollo Munich Health

Insurance Company Limited,

10^th Floor, Tower “B” Building

No.10, DLF Cyber City,

DLF City Phase – II

Gurgaon – 122 002,

Haryana

2.     M/s. Apollo Munich Health

Insurance Company Limited,

No.11, 2^nd Floor, E Block,

Nitzqn Palace road,

Bangalore-52  

ORDER

SRI.J.N.HAVANUR, PRESIDENT

        This is a complaint filed by the complainant against the OPs, under section 12 of the Consumer Protection Act, 1986, praying to pass an order, directing the OPs to pay a sum of Rs.23,470=00, and to award Rs.2.00 lakhs as compensation and cost of litigation in the interest of justice and equity.

2. The brief facts of the complaint can be stated as under.

The complainant is a resident of HSR layout. The agent of the OPs approached the complainant and elucidated that the OPs is a reputed insurance company and also stated that the claim in the said insurance policy is easy when compared to other insurance policies and that apart the said insurance company is a trust worthy company. Based on the representation so made by the agent of the OPs, the complainant agreed to take the said policy for his entire family. Upon the expression so made by the complainant and his family members to go for a health check up through their doctors, accordingly, the complainant and his wife had undergone various tests and thereafter upon coming to know that, the complainant is not suffering from any diseases as on the date of obtaining the policy and thereafter the OPs had issued the policy to the complainant. Upon obtaining the medical report, the OPs collected huge amount of Rs.14,547=00 being the insurance amount and thereafter issued welcome letter, certificate and the insurance policy. Alongwith the welcome letter, the OPs had also issued identity card vide policy no.120100/11051/1000184577 valid from 20-3-2011 to 19-3-2012 and the membership ID of the complainant was 10001774056. On cursory perusal of the above said documents, it is clear that, the OPs after confirming the fact that, the complainant is medically fit and is not at all suffering from any pre-diseases have issued the policy. So such being factual position, the complainant suffered from ill health on 25-3-2011 and on getting admitted as out patient in Manipal Hospital, after clinical diagnosis, for the first time, the complainant learnt that, he is suffering form hypertension with end stage of renal disease on maintenance heamodialysis thrice a week. Thereafter, Dr.S.Vishwanath, consultant Nephrologist of Manipal hospital issued a certificate on 26-4-2011 stating that, the complainant is on end stage Kidney failure and he is on maintenance heamodialysis and also gave approximate cost for renal transplantation amounting to Rs.5,60,000=00. The complainant had incurred a sum of Rs.23,470=00 being pre-hospitalization expenses and accordingly as he was having valid insurance policy in order to claim refund of the said amount by enclosing all necessary bills had submitted easy health claim form to the OPs on 3-6-2011. Upon receipt of the claim form, though the OPs are duty bound to pay the expenses incurred by the complainant towards hospitalization expenses as per the terms of the policy to the utter shock and surprise the complainant received cheque for a sum of Rs.14,547=00 vide cheque no.153026 dated 22-6-2011 drawn on HDFC bank Ltd, Delhi thereby rejecting the claim and also the policy of the complainant without any reasons. Pursuant to receipt of the cheque when the same was questioned the OP elucidated the fact of they having cancelled the policy of the complainant, that too when the complainant is suffering from end stage kidney failure with an intention to cause wrongful loss to the complainant, by virtue of which the complainant had suffered seriously both financial, mentally and physically. The OPs have failed to keep up the terms of the policy and have acted detrimentally pursuant to issuing the policy. Since the insurance policy was in force as on the date of the complainant having come to know that the complainant is suffering from end stage kidney failure and that he had incurred a sum of Rs.23,470=00 have pre hospitalization expenses and instructions of the OP itself by incurring huge expenditure, by virtue of the OPs having delivered the cheque being refund the policy amount have caused breach of trust and played the fraud. Due to the arbitrary unjust and illegal acts, commissions and omissions of the OPs, the complainant has to suffer hardship. The complainant suffered financially apart from suffering both mentally and physically resulting in much loss and damage which is estimated at a moderate estimate of damages to be compensated at Rs.2.00 lakhs which the OPs are liable to pay to the complainant. The complainant is a consumer as defined under the act and there is deficiency of service on the part of the OPs. Hence the present complaint is filed.

3. After service of the notice, the OPs have appeared through their counsel and filed version, contending interalia as under:

The present complaint is false, frivolous, vexatious and devoid of merits and it is liable to be dismissed. The complainant has not approached this forum with clean hands. The complainant has suppressed various material facts in the present complaint. The OP no.1 had already terminated the policy ab-initio issued to the complainant vide its letter dated 20-6-2011 on the ground of deliberate and fraudulent suppression of material facts and more specifically, the prescription dated 29-1-2007 clearly shows that, the complainant has been continuously undergoing treatment of hypertension for last two years and has also chronic renal failure. The OP no.1 has already refunded the entire premium amount through cheque bearing no.153026 dated 22-6-2011 for Rs.14,547=00 in favour of the complainant drawn on HDFC bank Ltd, KG Marg, New Delhi. The complainant has voluntarily received the said cheque and hence he is not at all entitled for any benefit under the above policy. The medical history observed and noted by treating doctor at the time of taking the alleged treatment by the complainant, clearly shows that he is a known case of chronic kidney disease prior to taking policy with OP no.1 and more specifically, the prescription dated 29-1-2007 clearly shows that, he has been continuously undergoing treatment of hypertension for last two years and also for chronic renal failure. So, it is clearly established that the complainant breached the fundamental principles of utmost good faith, in the present case and is guilty of deliberate and fraudulent suppression of material facts. On the basis of declaration made by the complainant in the proposal form and believing the same to be true, the OP no.1 issued an easy health floater standard policy to him vide policy no.120100/11051/1000184577 thereby accepting risk commencing from 20-3-2011 to 19-3-2012, however subject to certain conditions and exclusions. The complainant sent a pre authorization request for cashless facility on 12-5-2011 to the third party administrator through Manipal Hospital, HAL road, Bangalore for the treatment of end stage renal disease. Upon thorough scrutiny and careful evaluation of the above pre authorization request for cashless facility, the TPA observed that the complainant is a known case of chronic kidney disease in terms of prescription dated 29-1-2007. The first inception date in the policy issued to the complainant is 20-3-2011. Since the pre existing disease cannot be definitely ruled out in the case of complainant. Hence, the TPA denied for above pre authorization request for cashless facility vide its denial of cashless service letter dated 12-5-2011 and communicated the same to the complainant through hospital. The complainant submitted his alleged claim on 10-6-2011 alongwith clinical reports and medical bills for reimbursement of Rs.23,470=00 incurred for the treatment of multiple sessions of maintenance heamodialysis undergoing during his hospitalization at Manipal Hospital, HAL Airport Road, Bangalore and he submitted bills from 25-4-2011 to 10-5-2011. However, a bare perusal of complaint clearly show that the complainant did not place on record the discharge summary pertaining to the alleged treatment in the present complaint for the reason best known to him. It is apparent on the face of clinical reports prepared by the treating doctor that, the complainant is very well aware about his past medical conditions prior to taking the present policy from OP no.1. Hence, it is clearly established that, the complainant breached the fundamental principles of utmost good faith in the present case and is guilty of deliberate and fraudulent suppression of material facts.  The complainant is a diagnosed case of chronic kidney disease as per clinical document dated 24-3-2011 and he was already advised renal transplantation. However, the complainant had deliberately and fraudulently suppressed the above material facts in the proposal form. Hence, the TPA constrained to repudiate the alleged claim of the complainant under 6 (d) vide its letter dated 16-6-2011. On the basis of clinical report submitted by the TPA that he deliberately and fraudulently failed to act in utmost good faith in the present case and is guilty of deliberate and fraudulent suppression of material facts. The complainant failed to make out a case of any nature under the CP Act, and the complainant is no more consumer of OP no.1 after termination of policy, hence it is prayed to dismiss the complaint of the complainant alongwith heavy cost.

4. So from the averments of the complaint of complainant and objection of the OPs, the following points arise for our consideration.

1.                           Whether the complainant proves that, the OPs are negligent and there is deficiency of service on the part of the OPs in not settling his pre-hospitalization charges and other charges?

2.                            If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?

3.                           What order?

5. Our findings on the above points are;

          Point no.1:  In the Negative

Point no.2:  In view of the negative findings on the

Point no.1, the complainant is not entitled to any relief as prayed in the complaint

          Point no.3:  For the following order

REASONS

          6. So as to prove the case, the complainant has filed his affidavit by way of evidence and produced document no.I to VIII and also produced hospital bills worth of Rs.50,060=00 alongwith memo dated 23-2-2012. On the other hand, one Dr.Sriharsha A.Achar, Chief People Officer working in the OP office has filed his affidavit on behalf of the OP no.1 and produced documents at annexure-A to K alongwith index dated 28-10-2011. We have heard the arguments of both parties, and we have gone through the oral and documentary evidence of both sides scrupulously.

7. One Ramachandra Rao.V, who being the complainant has stated in his affidavit filed by way of evidence that, based on the representation so made by the agent of the OPs, he agreed to take the said policy for his entire family, and himself and his wife had undergone various tests and thereafter upon coming to know that, he is not suffering from any diseases as on the date of obtaining the policy and thereafter the OPs had issued the policy to him. Upon obtaining the medical report, the OPs have collected huge amount of Rs.14,547=00 as insurance amount and thereafter issued welcome letter, certificate and the insurance policy was taken easy health floater standard. Alongwith the welcome letter, the OPs had issued identity card vide policy no.120100/11051/1000184577 valid from 20-3-2011 to 19-3-2012 and his membership ID was 10001774056. On cursory perusal of the documents, it is clear that, the OPs after confirming the fact that, he is medically fit and he is not at all suffering from any pre-diseases have issued the policy. So such being factual position, he suffered from ill health on 25-3-2011 and on getting admitted as out patient in Manipal Hospital, after clinical diagnosis, he learnt that, he is suffering from hypertension with end stage of renal disease on maintenance heamodialysis thrice a week. Thereafter, Dr.S.Vishwanath, consultant Nephrologist of Manipal hospital issued a certificate on 26-4-2011 stating that, he is on end stage and also gave approximate cost for renal transplantation amounting to Rs.5,60,000=00. He had incurred a sum of Rs.23,470=00 being pre-hospitalization expenses and accordingly as he was having valid insurance policy in order to claim refund of the said amount by enclosing all necessary bills had submitted easy health claim form to the OPs on 3-6-2011. Though the OPs are duty bound to pay the expenses incurred by him towards hospitalization expenses as per the terms of the policy to his utter shock and surprise, he received a cheque for a sum of Rs.14,547=00 vide cheque no.153026 dated 22-6-2011 drawn on HDFC bank Ltd, Delhi thereby rejecting his claim and also the policy without any reasons. Pursuant to receipt of the cheque when the same was questioned the OP elucidated the fact of they having cancelled his policy, and the act of the OPs in cancelling the policy that too when he is suffering from end stage i.e. kidney failure with an intention to cause wrongful loss to him, and due to that, he had suffered seriously both financial, mentally and physically. The OPs have failed to keep up the terms of the policy and have acted detrimentally pursuant to issuing the policy. By virtue of the OPs having delivered the cheque being refund the policy amount have caused breach of trust and played the fraud, and he has to suffer hardship and due to their such acts he suffered financially, mentally and physically resulting into damage which is estimated at a moderate estimate of damages to be compensated at Rs.2.00 lakhs. He is a consumer as defined under the act and the OPs are liable for the reliefs claimed in the complaint. Due to the false promises and the deficiency of services of the OPs, he has suffered heavy loss both physically and mentally. The false promises made by the OPs attract penal actions under the IPC. This forum has jurisdiction to entertain the complaint. Hence, the present complaint be allowed, and pass order as prayed in the complaint.

8. By a careful reading of the complaint and evidence of complainant as mentioned above, it is made unambiguously clear that, the complainant has tendered his evidence in accordance with the averments of the complaint. Let us have a look at the relevant documents of the complainant, so as to know whether the oral testimony of the complainant stands corroborated by documentary evidence or not. Document no.I of the complainant is the copy of welcome letter of OPs dated 25-3-2011 for having taken Apollo Munich Health Family Coverage policy.  Document no.II is the copy of certificate issued by OPs for the purpose of deduction under section 80 D of Income Tax Act. Document no.III is the copy of policy schedule issued by the OP, wherein it is stated that, the complainant and his wife have taken the police of the OPs for a sum of Rs.4.00 lakhs and period of the policy was 20-3-2011 to 19-3-2012 and he has paid Rs.14,547.47 towards premium of the policy. Document no.IV is the copy of Identity card of the policy issued by OP. Document no.V is the copy of letter of Manipal Hospital, Bangalore dated 23-4-2011 in the name of the complainant stating that, the complainant is having Hypertension with end stage renal disease on maintenance heamodialysis thrice a week in their centre since 25-3-2011, and the said letter was issued by Dr.S.Kishore Babu. Document no.6 is the copy of certificate issued by the Manipal Hospital dated 26-4-2011 in the name of the complainant stating that the complainant has end stage kidney failure and is on maintenance heamodialysis and he is planned for renal transplantation and the approximate cost of the procedure is Rs.5,60,000=00. Document no.VII is the copy of printed proforma of OP in part-A and B duly filled by the complainant and concerned doctor dated 3-6-2011 and submitted to the OP for claiming pre-hospitalization expenses of Rs.23,470=00, and in the part-B proforma, the doctor has stated in printed diagnosed column as End stage  renal disease on maintenance heamodialysis. Document-VIII is the copy HDFC bank cheque dated 22-6-2011 sent by OP in the name of the complainant for having refunded premium policy amount of Rs.14,547=00 through HDFC bank.

9. At this stage, it is relevant to have a look at the material evidence of OP no.1. One Dr.Sriharsha.A.Achar, who being the Chief People Officer working in the OP insurance company has stated in his affidavit that, the complainant has not approached this forum with clean hands and he has hided the material facts and the complainant is having hypertension and end stage renal disease prior to taking the policy and he has not revealed this fact in the printed proforma submitted to the OP at the time of taking the policy in his favour, so the complaint of the complainant is not maintainable. The OPs have acted in terms and conditions of the policy, and there is no negligence and deficiency of service on the part of the OPs, so the complaint be dismissed with heavy costs.

10. Annexure-A of the 1^st OP is the copy of resolution for having delegated powers to chief executive officer to conduct the case on behalf of the OP before the consumer forum, and accordingly Dr.Sriharsha.A.Achar is authorized to conduct the case in consumer forum. Annexure-B is the copy of out patient record and new registrations of the complainant issued by the Manipal Hospital and as per the these records, it is made clear that, the complainant got registered his name in Manipal Hospital, Bangalore as out patient on 29-1-2007 through his brother and out patient record disclosed that, on 29-1-2007 he was examined and he is having hypertension since last two years and he has chronic renal failure as on 29-1-2007 i.e. prior to taking the policy from OP. Annexure-C is the copy of cheque details sent by the OP in the name of complainant for Rs.14,547=00 being premium amount collected from the complainant. Annexure-D is the copy of printed proposal form given by the complainant dated 16-3-2011 and in the said form, in the column of Hypertension and renal failure, it is stated as “”N” given no meaning at all. By seeing the said proposal form given by the complainant, it is made manifest that, the complainant has not disclosed his health problem of Hypertension and renal failure, even though, he was suffering from 2007 as per the hospital records. Annexure-E is the copy of policy schedule issued in the name of the complainant for a period from 20-3-2011 to 19-3-2012 by collecting premium amount of Rs.14,547.47 in the name of the complainant and his wife, and alongwith schedule the terms and conditions of policy are annexed. Annexure-F is the copy of details of complainant given by Manipal hospital wherein it is stated that, the complainant is suffering due to end stage of renal disease. Annexure-G is the copy of letter of OP issued to the Manipal hospital stating that cashless facility is denied, as the present ailment is a pre-existing disease. Annexure-H is the copy of claim form of the complainant submitted to the OP alongwith filled up form of claim for Rs.23,470=00 being pre-hospitalization expenses alongwith hospital bill.

11. So looking to the material evidence of both parties, it is made unambiguously clear that, the complainant was having hypertension and end stage of renal failure problem before taking the policy from the OP, and he has not disclosed the same in the proposal form purposefully. Annexure-B produced by the OP being out patient record and new registration certificate go to demonstrate in all probability that, the complainant is having hypertension and chronic renal failure problem since 29-1-2007 i.e. prior to taking health insurance policy from the OP and this fact has been concealed by the complainant, for the reasons best known to him. So on account of hiding the said disease, the complainant has violated the terms and conditions of the health insurance policy taken from the OP, and accordingly, the OP has refunded the premium amount to the complainant by sending a cheque and his claim for reimbursement of pre-hospitalization claim has been rejected rightly by OP, as per the terms and conditions of the policy. The Oral testimony of the OP that, the complainant is having pre-existing disease prior to taking policy, and he has not approached this forum with clean is corroborated by believable documentary evidence. Viewing the case of the complainant, on the back ground of material evidence of the parties, we are of the view that, the OPs are not negligent and there is no deficiency of service on the part of the OPs in not making settlement of health insurance claim of the complainant as the OPs have acted strictly in terms and conditions of the policy. On the other hand, the complainant is negligent in not disclosing his health problem of hypertension and end stage of renal failure disease in his proposal form and taken the policy hiding pre-existing disease and the complainant has acted quite contrary to the terms and conditions of the policy. The oral evidence of the complainant that, the OPs are negligent and there is deficiency of service on the part of the OP is not corroborated by any clear and tangible documentary evidence, and accordingly, we hold that, the complainant has failed to prove this point by placing convincing material evidence, and accordingly, we answer this point in a negative.

          12. In view of our negative findings on the point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

(Vide separate order dated 22-03-2013)

          The complaint of the complainant is hereby dismissed. So, under the circumstance, both parties shall bear their own cost.

          Supply free copy of this order to both parties. 

          Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this the 22^nd day of February 2013.

MEMBER                                 PRESIDENT