BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

03^rd DAY OF JANUARY 2017

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OPs) with a prayer to direct the OPs to pay him a sum of Rs.1,00,000/- together with interest @ 18% p.a from 23.07.2014 till the date of realization, compensation of Rs.50,000/- together with cost of the litigation, alleging deficiency of service.

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

That the complainant had taken Health Insurance Policy (Medical) from OPs bearing policy No.P/141126/01/2015/000510 and the policy was for the period from 29.04.2014 to 28.04.2015.  That the OP had collected a premium amount of Rs.5,000/- from the complainant and the sum assured for the benefit/hospitalization in a sum of Rs.1,00,000/-.  That on 19.07.2014 due to 8 to 10 episodes of loose stool followed by blood the complainant admitted to Suguna Hospital from 19.07.2014 and upon diagnosed by the Doctor that he is suffering from Anemia, deranged Coagulation profile and after treatment he was discharged on 24.07.2014.  That during the hospitalization the complainant incurred medical expenses of more than Rs.1,00,000/-.  The complainant was refused cashless facility when requested while under treatment and was advised to submit the claim after discharge from hospital.

That on 06.08.2014 the complainant submitted his claim form along with supporting documents.  That OP failed to reimburse the amount and on repeated requests made by the complainant, OP by its letter dated 30.08.2014 repudiated the claim on the ground of concealing pre-existing disease.  That the complainant never concealed any pre-existing disease.  That the complainant without any alternative got issued a legal notice dated 14.10.2014 to OP calling upon them to pay him sum of Rs.1,00,000/- together with interest at 18% p.a.  That OP despite receipt of notice, failed to comply the demand made therein and sent an untenable reply dated 18.10.2014.  That from the discharge summary maintained by hospital there was no significant of past history that the ailment mentioned have been recently detected.  That OPs deliberately and intentionally rejected the claim of the complainant.  That the conduct of OPs in repudiating the claim amounts to deficiency of service.  Therefore, the complainant has approached the Forum for redressal.

3. In response to the notice issued OPs entered their appearance through their advocate and filed their version.  The sum and substance of the version are as under:

That the complainant has obtained policy as mentioned in the complaint for the period from 29.04.2014 to 28.04.2015.  That the said policy was obtained by the complainant for the first time.  That a pre-existing disease means:

“Any condition ailment or injury or related conditions(s) for which the insured person had signs or symptoms and / or was diagnosed and / or received medical advice/treatment, within 48  months prior to the first policy with the Company.”

That the benefits or coverage for pre-existing diseases will not be available for any conditions as defined in the policy until 48 months of continuous coverage have elapsed since the inception of first policy with the company.  That the case sheet of the Suguna Hospital discloses that, the complainant has the history of epitasis for the past three months prior to 19.07.2014.  That the USG abdomen dated 21.07.2014 shows features of cirrhosis of liver with portal hypertension and endoscopy shows 3 columns of grade 2 esophageal varices with features of coagulpathy, hypoalbuinemia, pancytopenia.  It was the opinion of the medical team of the doctors of the company that all these features take longer duration of 3 to 4 years to develop and the insured complainant should have been symptomatic prior to the inception of the medical insurance policy taken with the company on 29.04.2015.  That the complainant has not disclosed the above mentioned ailment/symptoms while executing proposal form for obtaining the policy.

As per Exclusion, “The Company shall not be liable to make any payments under this policy in respect of any expenses what so ever incurred by any insured person in connection with or in respect of Pre-existing diseases as defined in the policy until 48 months of continuous coverage have elapsed, since inception of the first policy with the Company”.

That the onset of symptoms and disease is prior to the inception of the policy and therefore the claim is inadmissible under exclusion terms of the policy.  That there is no deficiency of service on the part of OPs as alleged in the complaint.  That OPs are justified in repudiating the claim on the ground of pre-existing disease.  For the above, amongst other grounds, the OPs pray for dismissal of the complaint.  

4. The points that arise for our determination in this case are as under:

        5. The complainant as well as OPs tendered their evidence by way of affidavit reiterating the respective pleadings.  Both parties have produced certain documents in support of their pleadings.  Written arguments have been submitted by both sides.  We have also heard the oral arguments.

6. Our answer to the above issues are as under:

REASONS

7.  Admittedly the complainant had a health insurance policy (Medical) at the time when he was admitted to Suguna Hospital as in patient on 19.07.2014.  The complainant who got admitted to hospital on 19.07.2014 was diagnosed by the doctors as having Anemia, deranged coagulation profile and after treatment the complainant has been discharged on 24.07.2014 and during the hospitalization the complainant claims that, he incurred expenses of more than Rs.1,00,000/-.

8. On the receipt of the claim form, from complainant the OPs by their letter dated 30.08.2014 cancelled the policy issued in favour of complainant with effect from 08.10.2014.  The relevant portion of the said letter reads as under:

“We refer the letter dt.06/08/2014 from our Claims Department.  We wish to bring your kind attention that during the scrutiny of the above claim papers, we observe that you have NOT declared the details; “CIRRHOSIS OF LIVER – INFERENTIAL PED”, which were found to be existing at the time of taking the policy for the first time during the 29/04/2014 TO 28/04/2015.  This amounts to non disclosure of material facts.

We draw your attention to condition no.11 in the Policy clause which reads as follows.

The Company may cancel this policy on grounds of misrepresentation, fraud, non disclosure of material fact or non-co-operation by the insured person, by sending the insured 30 days notice by registered letter at the insured person’s last known address”.

9. It is contended by the OPs that, at the time of obtaining policy the complainant did not declare that he is suffering from Cirrhosis of Liver – Inferential Ped which were found existing by the doctors during his treatment at Suguna Hospital.  OPs contend that this amounts to non disclosure of material facts.  The learned advocate for OPs citing exclusion clause in the policy argued that, the OPs are not liable to make any payment under the policy in respect of any expenses incurred by an insured person in connection with or in respect of pre-existing disease as defined in the policy until 48 months of continuous coverage have elapsed, since inception of the first policy.  Admittedly the complainant has obtained the said policy for the first time and within four months from the date of obtaining policy he was admitted to hospital as stated above, for certain treatment.  Therefore, it is contended by OPs that in pursuance of the exclusion clause the complainant is not entitled for reimbursement of the expenses incurred by him for the alleged illness.

10. Advocate for OPs further contended that, the complainant intentionally and deliberately suppressed pre-existing disease i.e., Cirrhosis of Liver – Inferential Ped at the time of obtaining policy.  Therefore, on this ground also he is not entitled for any claim.  The complainant has produced the discharge summary issued by the Suguna Hospital.  In the column Diagnosis it has been stated as;

DIAGNOSIS

IDIOPATHIC CIRRHOSIS OF LIVER WITH PORTAL HTN
         BLEEDING OESOPHAGEAL VARICES

POST BANDING (ENDOSCOPIC VARICES LIGATION)

11. According to the past history mentioned in the discharge summary complainant is “Not a known case of DM Type II/HTN/BA/IHD/Seizures Disorders”.  The complainant went to the hospital as he had 8 to 10 episode of loose stool followed by blood with stool for the last 1 day and 2 to 3 episodes of hematemesis.  Admittedly the complainant did not declare at the time of obtaining policy that he has been suffering with Cirrhosis of Liver or had any symptoms of the said disease prior to obtaining the policy.  It is argued on behalf of the complainant that, the complainant was not at all aware of Cirrhosis of Liver as on the date of either obtaining the policy in question or at the time of admitting himself to the hospital.  It is also further argued that, the complainant even did not had any symptoms of Cirrhosis of Liver either on the date of obtaining policy or prior to that date.  It is further submitted that, it is for the first time the complainant became aware of certain ailment pertaining to his liver during the course of treatment at Suguna Hospital.  Therefore, there was no any reason for him to suppress Cirrhosis of Liver at the time of obtaining policy.  In the discharge summary it is not mentioned by the doctors since how long the complainant is suffering with Cirrhosis of Liver.  It is also not mentioned as to whether the complainant is undergoing any treatment for Cirrhosis of Liver in the past.  Admittedly the complainant did not get himself admitted to Suguna Hospital with complaint of Cirrhosis of Liver.  OPs claim that their medical team were of the opinion that, the features as mentioned in the discharge summary take longer duration of 4 to 5 years to develop, however they did not produce such opinion expressed by their doctors.  When the OPs claim that the complainant had Cirrhosis of Liver – Inferential Ped prior to obtaining the policy, it is for them to prove by adducing either credible oral or documentary evidence.  However OP did not adduce any such evidence to substantiate their contention that the complainant either on the date of obtaining policy or prior, either had symptoms or suffering with Cirrhosis of Liver.  When the complainant himself was not aware that he is suffering from Cirrhosis of Liver and when he had no any symptoms, there is no question of his declaring any such ailment at the time of obtaining policy.  Absolutely there is no material on record to believe that, the complainant was aware of any such ailment prior to the same being detected by the doctors at Suguna Hospital, during the said treatment.

12. The learned advocate for the complainant placed reliance on the ratio laid down in a case between New India Assurance Company Ltd., Vs. Rakesh Kumar reported in III (2014) CPJ 340 (NC), wherein the Hon’ble National Consumer Disputes Redressal Comission, New Delhi, has opined that, the Insurance Company cannot apply hard and fast rule to presume that complainant was suffering with particular ailment for long duration i.e., before taking the policy.  People can live for months, even years, without knowing that they have the disease and it’s often discovered accidentally after routine medical check-ups.  With the said opinion the Hon’ble Apex Court held that, there was no concealment on the part of the complainant in the said case.  Complainant further placed reliance on a ratio laid down by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in a case between United India Insurance Co. Ltd., Vs. Krishna Prakash Dubey reported in IV (2011) CPJ 142 (NC) wherein it has been held that, burden to prove that complainant had any prior knowledge about his medical problem is on insurance company.  In the instant case on hand, the OPs have failed to prove that the complainant had any prior knowledge about the Cirrhosis of Liver at the time of obtaining the policy.

13. In a case reported in IV (2011) CPJ 373 (NC) the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, while dealing with issue like the one on hand has held;

“Pre-existing disease – suppression of material facts – claim repudiated – Forum allowed complaint – State Commission dismissed appeal – Hence revision – contention, deceased suppressed material facts that he was suffering from diabetic mellitus and was chronic alcoholic – not accepted – Insurance Company not able to prove allegations of fraudulent concealment pertaining to health of deceased – No case for interference with the concurrent orders of Fora below – cost imposed”.

14. In the instant case also, OPs have failed to place any credible material on record to believe that, the complainant was suffering with Cirrhosis of Liver prior to obtaining the policy in question, and he deliberately and intentionally suppressed the same.

15. In view of the principles laid down in the above cited authorities and in view of the facts and circumstances of the case, we are of the clear opinion that, OPs are not at all justified in repudiating claim or cancelling the policy of the complainant on the ground that, he deliberately and intentionally suppressed a pre-existing disease while obtaining the policy.  The conduct of OPs in repudiating the claim and cancelling the policy of complainant certainly amounts to grave deficiency of service.  The complainant must have been put to great inconvenience and mental agony due to deficiency of service on the part of OPs.  The medical bills produced by the complainant discloses that, he has incurred expenses of more than Rs.73,000/- for the treatment of the ailment for which he was admitted to Suguna Hospital.  As per the terms and conditions of the policy issued by the OPs they are liable to reimburse the expenses incurred by the complainant for the treatment.  Apart from reimbursing the expenses incurred the OPs are also liable to pay compensation of Rs.20,000/- for deficiency of service resulting in great inconvenience and mental agony to complainant.  Accordingly point Nos.1 & 2 have been answered.

16. The order could not be passed within the stipulated time due to heavy pendency.   

17. In view of the discussions made above, we proceed to pass the following:   

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is allowed in part.  OPs are directed to pay a sum of Rs.73,203/- (Rupees Seventy Three Thousand Two Hundred and Three only) to the complainant towards the medical expenses incurred by him and shall pay compensation of Rs.20,000/- together with litigation cost of Rs.10,000/-.

OPs shall comply the said order within four weeks from the date of communication.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 03^rd day of January 2017)

MEMBER                          MEMBER                      PRESIDENT

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Witnesses examined on behalf of the complainant dated 01.08.2015.

1. Sri. Babu Rao

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite party/s dated 26.10.2015.

1. Sri.John Noronha.    

Document produced by the Opposite party/s:

   MEMBER                         MEMBER                       PRESIDENT

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