ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in repudiating the health insurance claim of Rs.1,10,000/- which is spent for his treatment for heart ailment, and for refund of the same along with interest at 18% p.a., and for Rs.8,00,000/- for damages along with interest at 18% and for other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that;

The complainant along with his wife and daughter obtained health insurance from OP1, by paying Rs.16,327/- covering for the period 1.6.2018 ending on 31.05.2019 bearing policy No.11186433.  The sum assured for each of the family persons is Rs.5,00,000/-.  Earlier the policy was taken in the name of the complainant on 1.4.2017 and renewed from time to time.

3.     On 30.6.2018 all of a sudden, the complainant developed chest pain and was admitted to Jayadeva Institute of Cardio Vascular sciences and Research Institute, Bannerghatta Road, Bangalore, and angiogram was taken and found that there was some blockage and diagnosed as primary PTCA and not a known case of COPD, asthma, drug allergy and was discharged after fixing of the stent.  He had to pay Rs.1,09,000/- towards the medical expenses of the hospital and Rs.3,981.26 ps., towards medicine expenses.  He submitted a claim form to OP.  OP informed the complainant to provide some more documents and wanted a clarification from treating doctor regarding smoking status as smoking is encircled in the inpatient case paper.  The treated doctor gave a clarification to the OP that “the complainant had quit smoking and was smoking at the age of 22 to 25 years. Alcohol consumption is less and complainant was not on medication. No hyper tension, no diabetes.”  Inspite of it, on 20.08.2018 OP1 rejected the claim of the complainant on the ground that smoking is under permanent exclusion for the claim.  He had to issue a legal notice which was replied contending the same by quoting clause No.3.4d of the insurance policy.  The act of OP in rejecting the claim amounts to deficiency in service and hence the complaint.

4.      OP1 is the company represented by OP2, the authorized signatory, represented by the advocate upon the service of notice of the complaint. In the version filed, OP has denied the allegations made against it. It has further contended that the complaint is devoid of merits and there is no basis for the complainant to file the complaint and there is no valid cause of action and the same is liable to be dismissed u/s 26 of the Consumer Protection Act.  Complaint is not maintainable either in law or on facts.  Complainant has filed this complaint only on mere surmises and conjectures.  OP is following the directions of the IRDAI and as per the guidelines given, it has formed the rules and regulations for issuing the mediclaim health insurance policy.  It has admitted the complainant purchasing the insurance policy on 01.04.2017 and its renewal as and when it became due.  It also received the claim from the complainant regarding undergoing angiogram and treatment in Jayadeva Institute of Cardio Vascular sciences and Research Institute.

5.      OP came to know that the complainant was having the habit of smoking and the same was the route cause for getting the treatment in the said hospital. Hence it repudiated the claim of the complainant as in the policy condition the smoking comes under permanent exclusion. Under clause 4.2 the act of self-destruction or self-implicated injury, attempted suicide or suicide while sane or insane or illness or injury attributable consumption use, misuse or abuse of tobacco are intoxicating drugs or alcohol or hallucinogens.  Smoking is an independent and significant risk factor of coronary artery disease.  Patients’ acute coronary syndrome and anterior wall myocardial infraction and subsequent PTCA is attributable to his smoking. Hence under the said exclusion clause, it has repudiated the claim of the complainant regarding reimbursement of the medical expenses spent in Jayadeva Institute of Cardio Vascular sciences and Research Institute, Bangalore and the same do not amounts to deficiency in service and hence prayed the forum to dismiss the complaint.

6.      In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

7.     Our answers to the above points are:-

POINT NO.1 & 2:             In the Affirmative

                                                For the following.

REASONS

8.     POINT No.1:-

   Perused the complaint, version, affidavit evidence and the documents produced by respective parties.  It is not in dispute that the complainant was admitted to the health insurance policy along with his spouse and daughter, by paying a sum of Rs.16,327/-.  It is not in dispute that the complainant underwent angiogram and stent was fixed and he claimed for reimbursement of Rs.1,10,000/- in respect of the amount spent for his treatment.  It is also not in dispute that the OP rejected and repudiated the claim of the complainant on the ground that he was a smoker.

        9.     Earlier to rejecting the claim of the complainant, OP has sought the explanation of the doctor who treated the complainant.  The same is available before this forum, wherein the doctor has clearly mentioned in the said clarificatory letter that the complainant was hospitalized on an emergency basis.  Before OPD to know the history of the patient he was asked about smoking and drinking habits.  He has quit smoking and was smoking at the age of 20-25 years. Alcohol consumption is less and he is a social drinker and we have asked him to quit drinking………….”  In the OPD letter it is mentioned as a “reformed smoker”. 

10.   When this is taken into consideration, it becomes clear that the complainant was a smoker when he was 22-25 years of age and now he is 45 years and became a reformed smoker as per the mention made in the letter issued by the treating doctor.  The policy condition as mentioned by the OP, do not find a place in the policy document produced by OP himself. In clause No.4.2(23) “the act of self-destruction or self-implicated injury, attempted suicide or suicide while sane or insane or illness or injury attributable consumption use, misuse or abuse of intoxicating drugs or alcohol or hallucinogens” is taken into consideration.  There is no mention of use or abuse or misuse of tobacco.  No material placed by OP to show that the complainant was always under intoxication of drugs or alcohol.  Except the mention of reformed smoker in the OPD sheet and in the explanation given by the treated doctor that he was a smoker at the age of 25 years and has left smoking, if taken inconsideration, no other materials have been placed by the OP to show that the complainant was a habitual smoker which has resulted in the blockage of the arteries for which he has undergone implantation of the stent.

11.   In view of not mentioning in the exclusion clause regarding the use of tobacco or cigarette smoking the repudiation on that ground is not proper.  It may not be necessary that smoking alone constitutes blockage of the arteries and/or veins.  For the same there may be so many reasons.  Hence the same cannot be considered as the sole reason for the blockage.  Further OP has not at all produced the proposal form to make the facts clear that whether the complainant has declared as a smoker or a non-smoker in the proposal form at the time of obtaining the health insurance policy. 

12.   The OP cannot deny insurance even if the complainant is a smoker.  Only thing is that the premium in respect of smoker and non-smoker varies.  In respect of the smoker the premium would be high and for non-smoker it will be little less.  Another factor to be considered is that the complainant obtained the insurance on 1.4.2017 and renewed afterwards.  Only on 30.8.2018 i.e., after 1 year 4 months the complainant has developed problem in his heart for which he took treatment with the Jayadeva Institute of Cardio Vascular sciences and Research Institute, Bangalore, which pre supposes that heart ailment is not due to smoking only.

13.   When this is taken into consideration, smoking was not at all the only reason for blockage of artery and veins.  Hence the clause invoked by the OP for repudiation of the claim is not just and proper.  Hence we hold the same as deficiency in service in rejecting the claim of the complainant. Hence we answer point No.1 in the affirmative.

14.   POINT NO.2:

In the result the complainant is entitle for reimbursement of Rs.1,12,981.26 which is the amount spent by him for taking the treatment with the said hospital along with medicine.  Complainant is also entitled for interest at 12% on the said sum till the payment of the entire amount from the date of claim i.e., 09.07.2018.  Further the repudiation of the claim by the OP made the complainant to approach this forum by spending time, money and energy and also by engaging professional advocate to file the complaint and also to conduct the case.  In view of this we are of the opinion that a sum of Rs.10,000/- towards litigation expenses and Rs.25,000/- towards damages for causing mental agony and strain if awarded would be just, proper and reasonable under the circumstances.  In the result we answer Point NO.2 partly in the affirmative and pass the following;

ORDER

1. Complaint is allowed in part with cost.
2. OPs are directed to pay Rs.1,12,981.26 towards the medical expenses incurred by the complainant with interest at 12% pa., from 09.07.2018 till the payment of entire amount.
3. OPs are also directed to pay a sum of Rs.10,000/- towards litigation expenses and Rs.25,000/- towards damages for causing mental agony and strain to the complainant.
4. The OPs are further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 8^th Day of OCTOBER 2020)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Premium paid acknowledge

Ex P2: Policy certificate

Ex. P3: Health Insurance card

Ex P4: Terms and conditions of Policy

Ex P5: OPD sheet issued by Jayadeva Hospital along with lab report

Es P6: Discharge summary

Ex P7: Clarification given by doctor

Ex P8: Claim denial Letter

Ex P9: Legal notice issued by me

Ex P10: Reply given by OP.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

NIL

Copies of Documents produced on behalf of Opposite Party/s

NIL

MEMBER                                PRESIDENT