Tamil Nadu

StateCommission

A/55/2016

R. Krishnakumar - Complainant(s)

Versus

M/s. National Insurance Company, The Branch Manager - Opp.Party(s)

V. Balaji

31 May 2022

ORDER

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present: Hon’ble Thiru Justice R.SUBBIAH       ... PRESIDENT

             Thiru.R.VENKATESAPERUMAL      … MEMBER

 

F.A. No.55 of 2016

(Against the Order, dated 11.02.2016, in C.C. No.283/14, on the file of the DCDRF, Chennai-South)

 

                               Orders pronounced on:   31.05.2022

R.Krishnakumar,

S/o.R.Narayanaswamy,

27/3, I Cross East Street,

Shenoy Nagar, Chennai 600 030. ... Appellant/Complainant

 

vs.

 

The Branch Manager,

National Insurance Company Ltd.,

II Floor, Khivraj Mansion,

738, Anna Salai,

Chennai 600 002.                          … Respondent/O.P.

 

             For Appellant                   :  M/s.V.Balaji

             For Opp. Party                :  M/s.K.Kumudha

 

This Complaint came up for final hearing on 18.04.2022 and, after hearing the arguments of the counsels for the parties and perusing the materials on record and having stood over for consideration till this day, this Commission passes the following:-

 

O R D E R

 

R.Subbiah, J. – President.

 

             The appellant herein challenges the order, dated 11.02.2016, passed by the DCDRF, Chennai-South, in C.C. No.283 of 2014, whereby, the complaint filed by him was dismissed by the District Forum holding that he is not entitled for any relief sought for against the Opposite Party-respondent herein/Insurance Company.

 

             2. For the sake of convenience, the parties are referred to in this order, as per their respective rankings before the District Forum.

              In brief, the case of the complainant, as projected in the complaint filed by him before the District Forum, is as follows:-

               The complainant holds a Mediclaim Policy from the year 2000 issued by the  OP vide No.500401/48/12/850004093, covering the family members including his mother-Yasodhammal, and it has been renewed periodically without any interruption. He paid 6% additional premium, as required by the OP, to avail cashless treatment in the network Hospitals which include M/s.Billroth Hospitals, ShenoyNagar, Chennai-600030. As such, in case of  any treatment required in the Network Hospitals, the OP shall arrange to pay the entire sum charged directly to the Hospital and,` for such purpose, the mother of the complainant was issued with the TPA (Third Party Administrator/Agency) Card bearing No.HHS70110072418. 

             While so, on 28.02.2014, Yasodhammal suffered chest pain and she was admitted in Billroth Hospital, where, she was diagnosed to have blockage in the heart.  Immediately, the complainant informed the Insurance Agent for payment of hospital charges, but, the said agent, who is duty bound to make payment, failed to do so and, in view of the fact that his mother required immediate medical attention for heart ailment, the complainant paid the hospital charges out of his pocket, despite having cashless facility, for which, the enhanced premium of 6% was collected by the OP.

             Having received treatment for 5 days between 28.02.2014 and 04.03.2014, the mother of the complainant was discharged on 04.03.2014, however, on the very next date, ie., on 05.03.2014, she had the same complications, for which, she was again admitted in Billroth Hospitals on the same date for implanting pace-maker and she received treatment as inpatient from 05.03.2014 to 10.03.2014.  This time also, despite due information to the Insurance Agent, no payment was made to the Hospital by the OP and the complainant had to spend from his own source.

             In respect of the above said two payments for Rs.94,492/- and Rs.1,78,734/- under Bill Nos.11402379 & 11402380 respectively of the Billroth Hospital, paid by the complainant, when he approached the OP for reimbursement of the same, only a sum of Rs.52,435/- was reimbursed against the claim for Rs.94,492/- and Rs.54,985/- against Rs.1,78,732/-.  The said reimbursement was made directly into the bank account of the complainant, without any prior notice and there was also no reason ever given as to why the remaining part of the claim was not honoured.  Further, there was also no reference to the TPA appointed at the instance of the OP for the purpose of processing the claims raised by the insured.   For the notice issued by the complainant on 25.04.2014, the OP sent a reply on 12.05.2014 with absolutely untenable allegations.  In the said reply, a reference was made to condition 1.0 of the Policy, which is a recital clause.  There was no specific averment as to how the said clause operated against the claim made by the complainant. In the reply, further reference was made to condition Nos.4.1 to 4.3 of the schedule attached to the Policy under the caption “FOR INCREASING SUM INSURED THE WAITING PERIODS AS IN EXCLUSION UNDER 4.1, 4.2, 4.3”.  The said clause relates to waiting period for any undisclosed disease, at the time of taking policy.  But, the said condition Nos.4.1 to 4.3, read together, would not unsuit the claim of the complainant.  For the purpose of tracing pre-existing disease against the claim of the complainant, the OP relied upon the above clauses that stipulate 4 year waiting period and also the discharge summary, dated 21.03.2014 issued by Billroth Hospitals, which had a reference that the complainant’s mother had hypertension and diabetes mellitus since 2010.  But, the heart ailment suffered by the complainant’s mother cannot be linked to diabetes mellitus or hypertension.  Thus, the reference to the Discharge Summary to trace pre-existing disease from 2010, prior to the period of payment of enhanced premium, to reject the claim partially, is ex-facie illegal.  The reason added by the OP to the effect that 6% enhanced premium is not for cashless facility but it is only for availing services of the TPA by the complainant is a clear act of cheating, since as per 3.13 of the Policy Conditions, the ID card issued by the TPA is meant for cashless facility in the Network Hospital.  The conduct of the OP is a clear abuse of insurance policy and deficiency in service, thereby, the complainant, as a lawful claimant, suffered mental agony and damages. Hence, he sought the District Forum to direct the OP to pay him the claims-cum-damages calculated by him under various heads that come to a total sum of Rs.16,65,804/-, besides the costs of the complaint.

            

             3. The case of the complainant was resisted by the OP by filing a written version, wherein, among other things, it is stated thus:-

 

             It is true that the complainant availed the Mediclaim Policy with the OP covering himself, wife, two children and mother, since 2000 onwards and the same has been renewed periodically.         Initially, it was insured for a sum of Rs.1 lakh and the OP issued the policy for the enhanced sum insured, subject to the applicable terms & conditions, in particular, the clause in the Schedule attached to the Policy that clearly states, for increasing SI (sum insured) the waiting period as in exclusion clauses 4.1/4.2/4.3 of the Policy shall apply on the enhanced sum insured as if it is a new policy and that the benefit shall accrue for PED (preexisting diseases) or waiting period diseases once the policy with enhanced SI completes waiting period noted in the policy for these diseases.

             In respect of the two claims in question raised by the complainant, on scrutiny of the claim papers, in particular, the certificate, dated 21.03.2014, issued by the complainant’s Doctor-U.Ilayaraja, stated that Yasodhammal is a known case of hypertension and diabetes mellitus since 2010, thus, the claims could not be admitted as it was in respect of pre-existing disease.  The exclusion clauses under 4.1 to 4.3 of the Policy shall apply on the enhanced sum insured as if it is a new policy and hence, the benefit of existing disease shall accrue only on completion of waiting period, as stated in the policy.  As far as the claim is concerned, the patient was found suffering from diabetes mellitus since 2010 and the said disease was treated as pre-existing only to the extent of “increasing sum assured” and the claim was settled on the basis of Rs.1 Lakh sum insured under the Policy for the period 21.03.2010 to 20.03.2011 for Rs.52,435/- and Rs.54,985/- in accordance with the policy terms and conditions and the complainant also received the same in full and final satisfaction as against the claims lodged by him for Rs.94,492/- and Rs.1,78,734/- respectively.   Even though the claim was during the period 21.03.2013 to 20.03.2014, the enhanced sum insured would not apply since the claim was in respect of pre-existing disease.  Hence, by virtue of 4 year waiting period as stated in clause 4.1 of the policy which states the company shall not be liable in respect of any expenses incurred in connection with or in respect of all pre-existing disease when the cover incepts for the first time until 48 months of continuous coverage has lapsed and that any complication arising from pre-existing ailment/diseases/injuries will be considered as part of pre-existing health condition or disease, the policy period from 21.03.2010 to 20.03.2011 was applied, during which, the complainant’s mother was entitled to a sum of Rs.1 lakh and Rs.10,000/- as cumulative bonus and the same is arrived on the basis of sum insured as it existed 4 years earlier and any enhanced sum insured would be applied only after expiry of 4 year waiting period.  In terms of the limits and, by taking note of the cumulative bonus, the two claims were settled for Rs.52,435/- and Rs.54,985/- respectively and the said settlement was accepted by the complainant.   The averment made by the complainant that 6% enhanced premium was paid for cashless service is false.  The enhanced premium was paid by the complainant only for availing the services of the TPA and the rates of availing TPA services are fixed by the Insurance Regulatory and Development Authority and it was not meant for cashless service as contended by the complainant.  As far as the claims, the TPA decided not to offer the cashless facility because the medical records revealed that the patient was a known case of DB and Hypertension, since 2010. Hence, the claim was treated as pre-existing disease to the extent of enhanced sum insured and settlements were made on reimbursement basis to the extent payable under the Policy.  Thus, there being no scope to allege any deficiency in service against the OP, the complaint is liable to be dismissed with exemplary costs.

 

      4. To substantiate the claim and counter claim, both sides filed their respective proof affidavits.  On the side of the complainant, 10 documents were marked as Exs.A1 to A10 while the OPs filed 9 documents as Exs.B1 to B9.  The District Forum, after considering the materials placed, found that there was no deficiency in service on the part of the OP and dismissed the complaint by holding that the complainant is not entitled to the relief sought for and aggrieved thereby, he has come up with the present appeal.

 

        5. Learned counsel for the complainant submits that, at the time of taking the policy in the year 2000, the complainant’s mother was not suffering from any disease and that the OP cannot deny the claims by citing condition No.1 that deals with pre-existing diseases which include Diabetes & Hypertension and stipulates that, in those cases, a period of 48 months (4 years) shall be the mandatory waiting period.  According to him, nowhere, in the remaining clauses, it is mentioned as if the waiting period for the above diseases will be applicable for the enhanced sum insured.   According to him, the inception of the first policy being 2000, the waiting period shall be reckoned only from 2000 particularly when the policy has been periodically renewed without any interruption.  In that regard, learned counsel would rely upon a decision, dated 10.03.2016, of the National Commission rendered in Revision Petition No.1416 of 2012 (Dr.Ashish Sharma v. United Indian Insurance Co Ltd. & Another), wherein, the Commission highlighted the point that the date of inception is not the inception of current policy rather it should be taken as first date of coverage under medicalim by any Indian Insurance Company, provided the renewals have been continuous and without any break.  In the present case also, there was no break or interruption in the policy and, by taking note of the same and also the inception of the policy from 2000, the District Forum ought to have granted the relief, but, it failed to appreciate and consider those vital aspects.  Learned counsel vehemently contends that, without any solid back records of any evidentiary value issued either by the same Hospital or by some other hospital to strongly suggest existence of pre-existing disease/DB & Hypertension from 2010, mere reference by the OP to a statement of the Doctor in  Ex.B7 certificate, which is only persuasive in nature, to the effect that the patient was having history of hypertension and diabetes since 2010, for rejecting the legitimate claim of the complainant, cannot be legally endorsed. In this regard, learned counsel has relied upon a decision, dated 07.01.2020, of the Punjab & Haryana High Court, rendered in CWP No.107 of 2020, wherein, the High Court rejected a similar plea of the Insurance Company by referring to/endorsing the following observation made by the permanent Lok Adalat:-

         “The only question to be decided as to whether the insured can be compelled to wait for the period of 24 5 of 6 months from the starting of the policy to lodge any claim. After going through the nature of the policy this clause does not appear to be justified in any manner for the reason that duration of the sold policy itself if for one year the person purchases. In case that the policy is for the minimum period for 3 years or more than such the condition that any claim will not be entertained before completion of the period of 24 month could be justified. If in a medical claim policy for one year it is stipulated that any claim which is lodged before 24 months of the policy shall not be entertained then, the very purpose of purchasing the policy for one year shall become redundant. Since the company itself is issuing policies for the tenure of 1 year then the company cannot claim that the company shall not pay any claim before the period of 2 years. There is no explanation as to how this clause justifies the issuance of policy for one year.”

At any rate, partial sanction of the claims despite collection of additional premium  by the OP coupled with their unfair conduct of  misinterpretation of policy conditions ex facie amounts to gross deficiency in service, however, such vital aspects have not been properly considered by the District Forum, hence, by setting aside the impugned order, the relief sought for may have to be granted by this Commission, he pleaded.

            

           6. Per contra, learned counsel for the OP would submit that the Certificate under Ex.B7 issued by the Doctor working at Billroth Hospital, where admittedly, the patient took treatment and the statement made by him cannot be said to be of mere persuasive value, rather, it is a solid medical evidence that clearly states that the patient has been suffering from Diabetes and Hypertension from the year 2010.  The complainant cannot dispute or question the said report emanated from the Doctor who assessed the clinical condition of the patient and, as such, he cannot advance his case any further in the light of the said report standing against the claim and the said aspect has been well considered by the District Forum.  In good faith, the complainant ought to have disclosed that his mother was already suffering from Diabetes and Hypertension, however, he failed to do so at the time of renewing the policy.   According to the learned counsel, in the absence of such disclosure, the complainant is not entitled to the benefit of enhanced sum and it follows that, as specified in the Schedule attached to the Policy clearly stating,  for increasing the sum insured the waiting period as in exclusion clauses 4.1, 4.2, 4.3 of the Policy shall apply on enhanced sum insured as if it is a new policy, the waiting period shall squarely apply as if it is a new policy.   That is why, although the claim was pertaining to the period between 21.03.2013 to 20.03.2014, the enhanced sum assured was not made applicable for the clear reason that the claim was in respect of pre-existing disease, as evident from the certificate of the Doctor belonging to the Hospital where the patient took the treatment.  Since, during the relevant policy period, the complainant was entitled to a sum of Rs.1 lakh with cumulative bonus of Rs.10,000/-, applying the same, rightly, he was settled Rs.52,435/- and Rs.54,985/- in full quit, thus, from the point of processing upto the end of settlement, there was no service deficiency on the part of the OP.  The case laws relied on by the complainant’s side are distinguishable on facts and hence, the same cannot be applied to the present instance. The District Forum broadly considered the entire facts and assigned logical reasoning for  negativing the claim of the complainant and hence, the well considered order passed by the said Forum does not call for any interference by this Commission, he pleaded.

 

     7. In the light of the rival submissions advanced on either side, the only question that needs to be answered is,

              “ as to whether, for the purpose of assessing the two claims raised by the complainant, the policy relevant to be taken into account is the one for the period ‘21.03.2010 to 20.03.2011 - without enhanced sum insured’ or the subsequent policy ‘with enhanced sum insured for the period 21.03.2013 to 20.03.2014” and as to whether, on the face of the exclusionary clause-4.1 in the insurance policy, the OP has discharged the burden by satisfactorily establishing that the exclusion is attracted vis a vis the contention of the complainant  that his mother did not suffer from diabetic mellitus & hypertension during 2000, thereby, according to him, there was no scope at all for operation of the exclusionary clause-4.1 in the Policy relating to pre-existing disease that provides for 4 year waiting period in that case?”

 

             8. Since the factual details and the points of arguments have been broadly elaborated hereinabove, there is no need to re-state or go into the same except those aspects that are relevant for discussing and answering the above question.

                  While it is the case of the complainant that both the claims relate to the policy period – 21.03.13 to 20.03.2014 where the insured sum was for Rs.1,50,000/- plus additional enhancement of Rs.50,000/- with cumulative bonus of Rs.25,000/- plus Rs.5,000/- and as such, the entire sum under the two claims ought to have been released on the basis of the enhanced sum insured, according to the OP, the policy for the period “21.03.2013 to 20.03.2014” with enhanced sum insured could not be applied owing to pre-existing disease and, in terms of clause 4.1 of the Policy, the relevant policy period being “21.03.2010 to 20.03.2011”  with the insured sum only for Rs.1 lakh that was without any enhancement option, the eligible sum was accordingly disbursed duly to the complainant, thus, there is scope to allege any deficiency in service.

            

        9. In between these two ends, while examining the issue, it is but apt to advert to the settled rule of interpretation that when the words of a document of contract are clear, plain and unambiguous that reasonably susceptible to only one meaning, the courts are bound to give effect to that meaning irrespective of consequences. Similarly, where there is an exclusionary clause in the insurance policy, the burden lies on the part of the insurer to establish that the exclusion is attracted. 

 

             10. In that perspective, let us first refer to clause 4.1 of the policy which says that the company shall not be liable to make any payment under the policy in respect of any expenses incurred in connection with or in respect of all pre-existing diseases when the cover incepts for the first time until 48 months of continuous coverage has lapsed and any complication arising from pre-existing ailment/disease/injuries will be considered as a part of the pre-existing health condition or disease. Further, the Schedule attached to the policy states that, for increasing the sum insured, the waiting period as in exclusion clauses 4.1 to 4.3 of the policy shall apply on the enhanced sum insured as if it is a new policy.  A plain reading of the above two clauses together would connote that, even if the sum insured has been increased and the policy also continues without any break or interruption, for any pre-existing disease, the current Policy with enhanced sum insured would only be reckoned as if it is a new policy and the added liability on the part of the OP, in that case, would arise only after a lapse of 48 months of continuous coverage.   In other words, the benefit shall accrue for pre-existing diseases once the policy with enhanced sum insured completes the waiting period, which according to clause 4.1 is 48 months/4 years – that means, in the present instance, the added benefit shall accrue only after completion of the waiting period as stated above.   That is why, when the claim was made in terms of the additional enhancement covered by the policy period “21.03.2013 to 20.03.2014”, by taking note of the fact that the claim was in respect of pre-existing disease, the 4 year waiting period as stipulated in clause 4.1 of the policy was applied and thereby, pre-enhancement policy period “21.03.2010 to 20.03.2011” was applied.  Further, as already pointed out, when clause 4.1 further specifies that “any complication arising from pre-existing ailment/diseases/injuries will be considered as part of pre-existing health condition or disease”, the argument of the complainant that the heart ailment cannot be linked to Hypertension and Diabetes would be of no avail, for, it is common knowledge that the said two complications are vital factors that contribute much for heart ailments.  In such circumstances, in view of the clear clauses in the policy, the action of the OP in considering the claim on the basis of the sum insured as it existed four years earlier and in holding that any enhanced sum insured would be applied only after the expiry of 4 year waiting period and consequently, sanctioning the claims on the basis of the pre-enhanced policy period “21.03.2010 to 20.03.2011” cannot be found fault with.  In our view, any interpretation of the clauses of the policy contract otherwise would run contrary to the very scheme provided therein on the basis of pre-existing diseases and the waiting period made applicable there-for. One another aspect is, having taken a stand that the patient never suffered diabetes or hypertension during 2000, to substantiate the same; no clinical evidence was adduced by the complainant.  On the contrary, the OP, to discharge the burden saddled on them for establishing that the exclusionary clause under 4.1 is attracted, adduced Ex.B7 Certificate issued by the complainant’s Doctor at Billroth Hospital where the patient underwent treatment twice, clearly stating that she has been suffering from diabetes and hypertension from 2010.  That means, the complainant had suppressed the details of pre-existing diseases.  It must be pointed out here that every insurance contract revolves around the principle of utmost good faith/uberimma fides and hence, the parties to such contracts are mandated to be fair and open with each other to establish and maintain mutual trust between them. In line with the principle of fairness and doctrine of good faith, every material fact is required to be disclosed by the person seeking to be insured, enabling the insurer to arrive at a considered decision based on relevant actuarial risk. Any suppression of material details by the insured will render the policy voidable by the insurer.  In the present instance, on the face of Ex.B7 pressed into service by the OP, we are of the view that they have clearly established the factum of pre-existing disease suffered by the patient during 2010, thereby, the exclusionary clause under 4.1 in the policy got clearly attracted; as such, we hardly see any veracity in the claim of the complainant that his mother did not suffer from any such ailment at any point of time during 2010, thus, it is explicit, he failed to disclose the details of the pre-existing diseases to the insurer.   At best, the complainant could have taken a policy to claim reimbursement for pre-existing diseases of the age-old mother, but, that has not been done.  At any rate, in the absence of such disclosure as stated above, the complainant is not entitled to the benefit of enhanced sum insured due to currency of 4 year waiting period over pre-existing disease that is evidenced by Ex.B7.  Thus, the case laws cited on the side of the complainant would be of no avail, since they are distinguishable on facts.  One of the alternative points taken by the complainant is that 6% enhanced premium is meant for “cashless service” and in that regard, we once again perused the policy in which clause 5.5.2 under the caption “procedure for cashless claims’ says inter alia that in case of denial of cashless access, the insured person may obtain the treatment as per treating doctor’s advice and submit the claim documents to the TPA for endorsement.   It further says that the treatment taken in the network hospital is subject to pre-authorization by the TPA and that the TPA reserves the right to deny pre-authorization in case the insured person is unable to provide the relevant medical details.  Conveniently, the complainant has not whispered or averred anything in the complaint about the process or procedure undertaken by him for availing the cashless claim with the TPA.  Thus, we hold that the OP is perfectly justified in taking the relevant policy period as “21.03.2010 to 20.03.2011”, in applying the 4 year waiting period as stated in clause 4.1 of the policy and also in placing reliance upon Ex.B7 Medical Certificate, which according to us, is not a persuasive material, rather, a solid piece of medical evidence. By so holding and answering the question against the complainant, we see no error or infirmity to interfere with the conclusion arrived at by the District Forum and hence, the appeal is liable to be dismissed.

 

             11. In the result, the appeal is dismissed, by confirming the order, dated 11.02.2016, passed by the DCDRF, Chennai-South, in C.C. No.283 of 2014.  No costs.

 

R.VENKATESAPERUMAL                                           R.SUBBIAH, J.

MEMBER                                                                             PRESIDENT.

 

ISM/TNSCDRC/Chennai/Orders/May/2022.