BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 10^TH DAY OF FEBRUARY 2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-
   1. Direct the OP to pay a sum of Rs.2,18,308/- the claim of the complainant towards the hospitalization charges with interest @ 24% p.a., from the date of payment of the complainant i.e., 20.05.2022.
   2. Direct the OP to pay a sum of Rs.64,190/- having collected from the complainant towards the premium of the insurance along with interest @ 24% p.a., from the date of collection i.e., from 28.08.2017
   3. Direct the OP to pay a sum of Rs.1,00,000/- towards the deficiency of service, damages, mental agony etc., along with interest @ 24% p.a., from the date of complaint till the realization of the said amount.
   4. Pay the cost incurred by the complainant to prosecute the above complaint.
   5. Pass such other reliefs.

2. The case set up by the complainant in brief is as under:-

The complainant has taken health insurance policy namely Suraksha policy.  The OP gave assurance in writing that the said policy is life time validity and also issued one health card to the complainant mentioning that the said card is valid for all subsequent renewals and as long as the complainant policy is active with the OP,  hence the complainant need not replace the health card every year by confirming the above policy in his favour on the basis of the information and declarations given by the complainant.

3. It is further contention taken by the complainant that before issuing the health policy in the name of the complainant the OP did some enquiry and collected some documents and information relating to the health condition of the complainant.  The OP after confirmation of all enquiry and after collecting the information and document relating to the earlier health condition of the complainant has issued the health policy.  As per the policy the complainant has paid the yearly premium.  The policy issued by the OP to the complainant covers a sum of Rs.3,00,000/-.

4. The complainant has admitted as inpatient for continuous treatment and observation in Manipal Hospital, Old airport road, Bangalore, for treatment of his Neuro Endocrine Tumor with liver metastasis status, post right hepatectomy admitted for TACE as inpatient from 18.05.2022 to 20.05.2022.  During his stay of three days and before the complainant admitted as an inpatient and underwent some tests on 05.05.2022 and 06.05.2022 and he has paid a sum of Rs.2,000/- for his creatinine-serum and his liver function test and a sum of Rs.900/- for his consultation gasto surgical test and the complainant had paid online payment of Rs.26,800/- on 06.05.2022 for his GA Dotanoc test and finally the complainant went for neuro endocrine tumer of liver post surgery and TACE for evaluation and recovered and he was discharged on 20.05.2022 by giving advise to diet.  The complainant has paid Rs.1,88,608/- to the hospital towards hospitalization charges.  

5. After discharge the complainant has made the claim for reimbursement of the said charges to the OP vide claim No.RC-HS22-12965930 with respect to the mediclaim policy issued by the OP.  The OP has issued letter for cancellation of the policy on the ground of non-disclosure of material facts which is not at all true.  At the time of entering the said policy the OP had obtained full information and also collected documents relating to the old health condition of the complainant and then finally the OP agreed to give the policy to the complainant.  The letter of cancellation of the policy issued by the OP is not correct and unfair trade practice adopted by the OP and utter deficiency of service to the complainant being the holder of valid insurance policy.  The OP in order to escape from his liability to payment issued the letter of cancellation which is incorrect.

6. The complainant has issued a legal notice on 31.05.2022 calling upon the OP to settle the claim of Rs.2,82,498/- as per the details mentioned in the complaint. The complainant has approached the OP on several occasions and demanded to consider his claim.  The OP has not offered any explanation and used to give evasive answers.  In view of this the complainant has suffered mental agony and distress and financial loss.  The OP neither complied with the demands nor they bother to reply to the said notice.  Hence the complainant has approached this commission and filed this complaint.

7. In response to the notice, OP appears and files version admitted about the policy issued in favour of the complainant for a sum insured amount Rs.3,00,000/- with a cumulative bonus of Rs.1,20,000/- with no history of pre-existing disease.

8. It is further contention taken by the OP that the first inception of the policy is on 28.08.2017.  The subject policy provides multiple coverages under different sum insured. The subject policy now stand cancelled effective from 28.08.2022.

9. It is further case of the OP that this policy is a contract of insurance issued by the company to the complainant to cover the persons named in the schedule i.e., the insured persons.  The policy is based on the statements and declaration provided at the time of proposal and is subjected to receipt of requisite premium.
10. OP has further admitted that the complainant has submitted a claim registered as a cashless claim with claim No.RC-HS22-12965930 for an alleged hospitalization and Manipal Hospital for one day on 18.05.2022 for neuro endocrine tumor.  On perusal of the discharge summary from the Manipal hospital, radiology department discloses that past history of right hepatectomy since August 2010.  The discharge summary is the final document given by the hospital and it become paramount importance in ascertaining the past ailments and current treatment taken.  

11. It is further case of the OP that post perusal of the claim documents it was observed that the complainant was a known case of neuro endocrine tumor and the complainant has not disclosed regarding the hepatectomy done in the year 2010 and due to that reason the cashless-pre authorization facility request was denied by the TPA on the ground of non disclosure of pre-existing diseases.

12. It is further contention taken by the OP that after rejection of the pre-authorisation request the complainant has option to file for the claim reimbursement and the OP shall process the same in accordance with policy terms and conditions and exclusions. The complainant has neither approached this OP nor submitted any reimbursement claim with this OP after rejection of cashless facility. As per the policy conditions the claimant shall within 30 days from the date of discharge shall submit the reimbursement claim to the insurance company along with necessary documents. Hence the present claim of the complaint filed before this commission is a premature complaint, wherein the complainant has never approached this OP and he has filed this complaint directly without there being any deficiency of service on the part of this OP.

13. It is further case of the OP that the medical documents submitted by the complainant clearly indicates that he was suffering from pre-existing condition which was not disclosed at the time of taking the insurance policy. The claim has been denied as per the policy conditions under non disclosure of material facts.  Repudiation of the claim after proper deliberation as the insured had failed to disclose about his medical condition. Hence the repudiation is valid and does not required any revisit.  The complainant has failed to make out the case of deficiency of service and unfair trade practice. Hence OP prayed for dismissal of the complaint with cost.

14. The complainant has filed his affidavit evidence and relies on 15 documents.  Affidavit evidence of OP has been filed and OP relies on 04 documents. 

15. Heard the arguments of advocate for the complainant and OP.  Perused the written arguments.

16. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

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

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

18. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version, evidence, written arguments and documents of both the parties.
19. It is undisputed fact that the OP has issued health suraksha policy bearing policy No.2952 2018 8569 5902 000/01 and it was valid for the period from 28.08.2021 to 27.08.2023 and the date of issuance of the policy is 21.08.2021 in the name of the complainant for self and the sum insured amount is Rs.3,00,000/- with a cumulative bonus of Rs.1,20,000/-. 
20. The first inception of the policy is dated 28.08.2017. The complainant has submitted a claim which was registered as a cashless claim for his alleged hospitalization at Manipal hospital for one day on 18.05.2022 for neuro endocrine tumor liver.
21. It is the case of the complainant that the OP at the time of issuing the health policy did some enquiry and collected some documents and information relating to his health condition and after confirmation of all enquiry after collecting the information and documents the OP has issued the health insurance policy.  The complainant has also paid the premium amount.  
22. The complainant was admitted as an inpatient at Manipal Hospital for continuous treatment and observation under the treatment of Dr.Nagaraj Palankar for his neuro endocrine tumor with liver metastasis post right hepatectomy admitted for TACE as inpatient from 18.05.2022 to 20.05.2022 where he underwent some test on 05.05.2022 and 06.05.2022.  He has paid Rs.2,000/- and also Rs.900/- towards lab test and also for his consultation and has paid an online payment of Rs.26,800/-.
23. The complainant underwent neuro endocrine tumor of liver post surgery and TACE for evaluation and he was recovered and discharged on 20.05.2022.  He has paid totally a sum of Rs.1,88,608/-.  
24. After discharge he has filed his claim for reimbursement of the said charges and the OP have issued a letter for cancellation of policy on the ground of non-disclosure of material facts.  The complainant has denied that he was a known case of neuro endocrine tumor and he has not disclosed regarding hepatectomy in the year 2010 and due to the said reason the OP has rejected the cashless facility on the ground of nondisclosure of preexisting disease.
25. In support of his contention complainant has relied on 1 to 15 documents. Document NO. 1 to 3 are the copies of the policies issued by the OP from 2017 to 2021. Document No.4 is the cancellation letter issued by the OP. Document No. 5 to 10 are the hospital records and bills and document No.11 is the copy of the legal notice.
26. On the other hand the VC of the OP company has filed his affidavit evidence and relied on 4 documents.  Document No.1 is the copy of the policy with his terms and conditions and it is an admitted document. Document No.2 is the claim form and document No.3 is the discharge summary and document No.4 is the cashless/pre authorization rejection letter.
27. It is clear from the evidence and documents placed by both the parties before this Commission that there is no dispute about the policy issued by the OP for covering the insurance claim for Rs.3,00,000/- with cumulative bonus of Rs.1,20,000/-.
28. The main dispute between the complainant and OP is that the complainant has suppressed his pre existing condition and the past history of right hepatectomy done in the year 2010. The OP has also seriously taken the contention that the complainant is a known case of neuro endocrine tumor and in view of this the cashless facility was rejected by them on the ground of non disclosure of preexisting disease.
29. On the other hand, the complainant has clearly stated that the OP have did some enquiry and collected some document and information relating to his health condition before issuing the policy.  The OP have issued the policy after confirmation of all enquiry and after collecting the information and document relating to his earlier health condition.
30. Even though the OP have taken a contention that the complainant has not mentioned about the surgery underwent in the year 2010 and also not mentioned about the fact that he was a known case neuro endocrine tumor and hence they have rejected his request for cashless facility. The OP have not at all produced any copy of the proposal form filled by the complainant at the time of issue of policy in the year 2017 at the time of first inception of the policy dated 28.08.2017.
31. The complainant admittedly underwent hepatectomy in the year 2010.  If really the complainant has not furnished the information in the proposal form the OP would have produced the copy of the proposal form.  It is also clear from the terms and conditions of the policy that the insurer has to give information about the surgery and hospitalization for a period of five years from the date of issue of the first policy.  Admittedly the complainant has underwent the hepatectomy in the year 2010 and he has taken the policy in the year 2017 and it was more than seven years and the complainant may not disclosed the same.  Nothing prevented the OP company from subjecting the complainant for thorough medical examination from their company doctors before issue of the policy. There is no document placed before this commission that the complainant was subjected to medical examination by the OP company doctors prior to issue of the policy in the year 2017. The OP company have enquired the complainant and also they have collected the documents about his pre-health condition before issuance of the policy. If the complainant was subjected to any medical examination the reports would have disclosed about the pre existing health condition of the complainant.
32. The complainant was admitted to the hospital after five years of taking of the policy on 18.05.2022 and he was underwent surgery during that period and he has claimed the medical expenses.  If the complainant was suffering from  the said disease he would have immediately admitted to the hospital after inception of the policy in the year 2017 itself and he need not have waited for five years for undergoing the surgery.
33. It is the duty of the OP company to follow all the norms prescribed in their policy before issuing the policy in favour of the insurer.  When the OP company have not at all conducted any enquiry about the pre-health condition of the insurer and not subjected him for any medical examination at the time of the issuance of the policy, the say of the OP that the complainant has suppressed the pre-existing health condition and obtained the policy after lapse of five years from the date of inception of the policy cannot be accepted.
34. The OP have rejected the claim made by the complainant when he has applied for cashless facility for the first time on 28.08.2022 and also cancelled the policy which is effective from 28.08.2022.  The complainant has not made any claim till the completion of five years from the date of inception of the policy.  Inspite of that the OP have rejected the cashless facility and also cancelled the policy on the ground of non disclosure of pre-existing disease even though the complainant has furnished all the details about his pre-health condition at the time of inception of the policy in the year 2017. Hence the complainant has clearly established the deficiency of service and unfair trade practice on the part of the OP, therefore the complainant is entitled for the relief claimed in the complaint.  Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.
35. Point No.3:- In view the discussion referred above the complaint is liable to be allowed in part. The OP is directed to pay Rs.2,18,308/- the claim made by the complainant towards hospitalization with 9% interest from the date of payment by the complainant i.e., 20.05.2022 and further directed to refund the premium amount of Rs.64,190/- collected from the complainant with interest @ 9% p.a., from the date of collection i.e., 28.08.2017 and further directed to pay compensation of Rs.1,00,000/- for the mental agony and financial loss and damages caused to the complainant with litigation expenses of Rs.10,000/- and we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is directed to pay Rs.2,18,308/- the claim made by the complainant towards hospitalization with 9% interest from the date of payment by the complainant i.e., 20.05.2022 till realization.
3. OP further directed to refund the premium amount of Rs.64,190/- collected from the complainant with interest @ 9% p.a., from the date of collection i.e., 28.08.2017 till realization.
4. OP further directed to pay compensation of Rs.1,00,000/- for the mental agony and financial loss and damages caused to the complainant with litigation expenses of Rs.10,000/- to the complainant.
5. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 8% p.a. after expiry of 60 days on Rs.2,18,308/- till final payment.
6. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 10^TH day of FEBRUARY, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;