IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM

DATED THIS THE 30^thDAY OF DECEMBER 2021

Present: -      Sri.E.M.Muhammed Ibrahim, B.A, LLM. President

         Smt.S.Sandhya   Rani. Bsc, LLB ,Member

         Sri.Stanly Harold, B.A.LLB, Member

CC.No.109/2018

K.K.Thomas, aged 68 years,

S/o K.Koruthu, Kattuvila, Bharath Nagar-24,

Ramankulangara, Kollam-12.                                                     :           Complainant

(By Adv.PanayilK.ChandrasekharanPillai)

V/S

1.    M/s.United India Insurance Company Ltd.,

           Rep.by its authorized Officer

         Bank Assurance Division,

       D/O.IV, 7^th Floor, United India Towers,

       BasheerBagh, Hyderabad-500 029.

(By Adv.S.Subhash Chandra Babu)                                            :          Opposite parties

2.    United India Insurance Company (Grievance)

3-5-817 & 818, 4^th Floor, United India Towers,

BasheerBagh, Hyderabad

(By Adv.S.Subhash Chandra Babu)       

3.    Andhra Bank,

   Beach Road, Kollam, Kerala

   Rep.by its Manager

(By Adv.K.RaghuVarma)

ORDER

Sri.E.M.Muhammed Ibrahim, B.A, LLM. President

This is acase based on a consumer complaint filed under section 12 of the Consumer Protection Act 1986.

Averments in the complaint in short are as follows.

The complainant is a Senior Citizen having 68 years is a retired Engineer from Kerala Minerals and Metals Ltd., Kollam.  The complainant took Health Insurance Policy or enrolled as a Member of Good Health Insurance TPA Limited under Andhra Bank Arogyadaan Group Health Insurance Policy vide policy No.0504002817P104314692 as GHID N:GHUIQAB 02296994 for himself and his wife namely Aleamma Thomas for Rs.5,00,000/-.  The 1^st opposite party company issued a ‘Certificate of Insurance’ dated 09.06.2017 for the period commencing from 09.06.2017 till 08.06.2018 by receiving Rs.7,414 from the complainant.  The complainant paid the premium through the 3^rdopposite party which is authorized collecting agent of the 1^st opposite party insurance company. 

On 11.10.2017 the complainant was admitted at KIMS Hospital at Thiruvananthapuram for the treatment of urinary track blockage and on 13.10.2017 the complainant had undergone LEFT PCNL and Stones removed and again on 09.11.2017 the complainant was readmitted on 10.11.2017 Left DJ stent removed and stone was basketed out.  The KIMS Hospital at Thiruvananthapuram is one of the panelled Hospital of the 1^st opposite party for ‘cash less treatment policy’.  The complainant submitted bills and details to the 1^st opposite party through the 3^rd opposite party.  As the 1^stopposite party did not paid the bill to the hospital under their scheme of ‘Cash less treatment’ the complainant was constrained to pay the hospital bill of Rs.1,24,413/- on 19.10.2017 and Rs.37,062/- on 11.11.2017 and thereby the complainant paid a total amount of Rs.1,61,475/- at the KIMS hospital, Thiruvananthapuram.  Though the complainant on 06.02.2018 issued a letter to the 1^st opposite party for settling the claim they rejected the same by raising untenable contentions, ie the petitioner on 2015 undergone Right PCNL which is not sustainable either in law or on facts.  Only on 13.10.2017 the complainant underwent the treatment for his Left Kidney.  The complainant approached the 2^nd opposite party which is Grievances Department of the 1^st opposite party.  But the 2^nd opposite party also rejected the claim of the complainant by stating untenable contentions.  Hence the act of the opposite parties amounts to unfair trade practice and deficiency in service.  According to the complainant the above act of the opposite parties has caused much mental agony apart from irreparable loss to the complainant.  Hence the complainant filed the present complaint claiming the opposite parties to pay Rs.1,61,475/- along with 18% interest per annum from 09.11.2017 till realization and compensation to the tune of Rs.1,00,000/- and costs of the proceedings.

In response the notice opposite parties 1 to 3 entered appearance and resisted the complaint by filing joint version by opposite parties 1 and 2 and independent version by 3^rd opposite party.  The main contention in the two set of version are more over same which in short are as follows.  The complaint is not maintainable either on law or on facts.  The complainant has been filed without any bonafides and as an experimental basis to extract unlawful gain from the opposite parties 1 and 2.  However the following

are the admitted facts by the opposite parties.  The 1^st opposite party insurance company issued a Tailor made Group Health policy bearing policy No.0504002817P104314692 in favour of the 3^rd opposite party Andhra Bank the insured for a period of one year starts from 09.06.2017 to 08.06.2018.  The complainant and his wife Eliamma Thomas are the beneficiaries of the policy along with other members in the group.  The 3^rd opposite party was the authorized bank to collect the premium from the beneficiaries of the policy.  Prior to this policy the complainant was beneficiary of policy No.0504002816P103666002.  The period of the prior policy was from 09.06.2016 to 08.06.2017.  The first date of inception of the policy for the complainant is 16.06.2016 as the policy starts from the date of debit of premium till the expiry date of 08.06.2017.  Though there is admission of policy from 16.06.2016 the opposite parties 1 and 2 have no liability to make any payment in respect of treatment expenses incurred by insured/complainant on 19.10.2017 and 11.11.2017 under the exclusion clauses 6.1 of the policy conditions because there is grave violation of policy conditions.  The complainant had pre-existing disease as defined in the policy i.e. renal calculi disease and he underwent Rt PCNL in the year 2015 from the same on earlier occasion.  But the complainant suppressed these facts in the proposal form for issuing the policy.  As per the exclusion clause the insurance company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by the insured in connection with or in respect of any pre-existing conditions as defined in the policy until 36 months of continuous coverage of such insured person have elapsed since inception of his first policy with the company.  The opposite parties 1 and 2 further admit that the complainant produced medical bills of KIMS hospital, Thiruvananthapuram to the tune of Rs.1,61,475/-.  But the treatment records issued from the said hospital and previous consultation paper dated 09.04.2015 of the complainant shows that he was reported with right stag horn calculai and left renal calculai.  The history of the present illness shows that the disease was diagnosed three years back.  The present treatments are the continuation of earlier treatment done in the year 2015 for Bilateral renal calculai same type of disease and therefore the expense incurred for the treatment period fall under exclusion clause 6.1 of the policy conditions and therefore the 1^st opposite party has rightly rejected the claim.  The complainant having full knowledge of his pre-existing disease deliberately took the policy with a view to get the medical expense that may be

necessitated shortly after the commencement of the policy by suppressing the material facts.  There is no wilful latches deficiency in service or unfair trade practice on the part of the opposite parties.  The complainant is not entitled to get any of the relief sought for.

 The 3^rd opposite party has raised the following additional contentions.  The 3^rd opposite party is not a necessary party in this proceeding.  The opposite parties No. 1 and 2 have rejected the claim of the complainant on valid grounds.  The complainant has no cause of action against the 3^rd opposite party and the cause of action alleged is not sustainable.

            In view of the above pleadings the points that arise for consideration are:-

1. Whether the rejection of the claim by the opposite parties No. 1 and 2 is legally sustainable?
2. Whether the complainant is having any pre-existing disease so as to disentitle him in claiming the medical expenses?
3. Whether there is a deficiency in service or any unfair trade practice on the part of opposite parties 1 to 3?
4. Whether the complainant is entitled to get the relief sought for the complaint?
5. Reliefs and Costs?

Evidence on the side of the complainant consists of the oral evidence of PW1 and Exts.P1 to P8documents. After recording the evidence of PW1 neither the complainant nor the learned counsel for the complainant has turned up or adduced any further evidence. Divisional Manager of the 1^st opposite party Sri.Ramachandran filed chief affidavit in lieu of chief affidavit for opposite parties 1 and 2  got marked Exts.four documents of Ext.D1 to D4.  Though several opportunity was grant to the complainant the learned counsel for the complainant has not turned up and cross examined the witness who filed chief affidavit on behalf of the opposite parties 1 and 2.  The learned counsel for the complainant has neither filed any notes of argument nor advanced any oral argument.  The learned counsel appearing for opposite parties 1 and 2 have filed notes of argument and also advanced oral argument.

Point No.1 to 3

            The following are the admitted facts in the case.  The complainant who is a retired Engineer from KMML took Health Insurance Policy, enrolled as Member of Good

Health Insurance TPA Ltd under the Andhra Bank Arogyam Group Health Insurance Policy in tie-up with the 1^st and 2^nd opposite parties the United India Insurance Co.Ltd. for himself and for his wife namely Aleamma Thomas for Rs.5,00,000/-.  The complainant paid the premium amount through the 3^rd opposite party the authorised bank for collecting the premium.  The insurance company issued certificate of insurance dated 09.06.2017 for a period commencing from 09.06.2017 to 08.06.2018 by receiving Rs.7,414/- from the complainant.  On 11.10.2017 the complainant was admitted at KIMS hospital at Thiruvananthapuram for the treatment of urinary track block and on 13.10.2017 the complainant had been undergone Left PCNL and stones removed.  Again the complainant was on 09.11.2017 for removing the stent which was done on 10.11.2017 and discharged on 11.11.2017.  The complainant submitted hospital bills and details to the 1^st opposite party through the 3^rd opposite party to the tune of Rs.1,24,413/- on 19.10.2017 and another bill to the tune of Rs.37,062/- on 11.11.2017.  Thus the total bill amount for the treatment at KIMS hospital is for Rs.1,61,475/-.  After discharging from the hospital the complainant has submitted claim form claiming total amount of Rs.1,61,475/- through 3^rd opposite party bank who forwarded to same the 1^st opposite party for reimbursement.  But the 1^st opposite party repudiated the claim by sending Ext.P7 repudiation letter by alleging that the complainant underwent treatment for Bilateral renal calculi and underwent Right PCNL in the year 2015.  As the complainant having pre-existing disease the claim is not payable as per exclusion clause no.6.1.    According to the complainant the above reason stated in the repudiation letter is against real facts and evidence.  However the complainant would admit that he had undergone a procedure for removing stone kidney in the year 2015 and even at the time of said surgery in the year 2015 no doctor told the complainant that he was suffering from urinary track blockage left side kidney and that he had not undergone any treatment or any procedure on the left kidney.  As per Ext.P8 original haematology report dated 05.01.2017 his kidney function was normal in the year 2017 and creatin level was 1.33 mg/dl only. 

The learned counsel for the opposite parties 1 and 2 have argued that  a single lab report is not a confirmatory test regarding the complications of bilateral renal calculi disease diagnosed and operation done only at the right side 3 years back.  On perusal of Ext.P1 proposal form  it is seen that there is no disclosure of past illness and surgical treatment undergone by the complainant prior to the date  of signing the proposal.  As per the averments in the complaint and also as per the declaration stated in Ext.P1 proposal form the complainant is a pucca medically fit person as on the date of filling of P1.  But the materials available on record would clearly indicate that the complainant has concealed materials facts by filling up proposal form and obtained P2/D1 policy.It is clear from the available materials that the complainant having any pre-existing disease while taking the first policy in the year 2016.  The learned counsel for the opposite party has argued that as per exclusion clause 6.1 of the Ext.D1 series policy conditions the insurance company shall not be liable to make any payment under Ext.P2 policy in respect of the expenses whatsoever incurred by the insured person as he was having pre-existing disease as on the date of joining the policy.  It is clear from the policy conditions that in connection with or in respect of any pre-existing conditions as defined in the policy until 36 months of continuous coverage of such insured person have elapsed since inception of his first policy in the condition.  However it is brought out in evidence that in the year 2015 the complainant had underwent treatment for renal calculi disease and he underwent right PCNL for the same which is a pre-existing condition prior to the lapse of 36 months continuous coverage of such insured person of his first policy with the insurance company.  According to the opposite parties 1 and 2 the treatment record issued from the hospital and previous medical consultation paper dated 09.04.2015 of the claimant  shows that he was reported with right stag horn calculi and left renal calculi.  The history of the present illness dated 09.04.2015 shows that the disease was diagnosed three years back. It is clear from the available evidence that the present treatments are the continuation of earlier treatment done in the year 2015 for Bilateral renal calculi same type of disease .  In view of the materials discussed above it is clear that the complainant was having renal calculi disease to both kidneys prior to the date of inception of the first policy and undergone treatment for the right kidney and this fact was suppressed in the proposal form filled by the complainant.  Therefore we are of the view that there are sufficient ground to repudiated claim by the opposite parties.  In the circumstances this commission cannot find any deficiency in service or any unfair trade practice on the part of opposite parties who had acted in terms of the exclusion clause of P2 policy. 

On evaluating the entire materials available on record we find no merit in the complaint and the complainant is not entitled to get any of the reliefs sought for in the complaint.  The points answered accordingly.

In the result the complaint stands dismissed.  The parties are directed to suffer the respective costs.

Dictated to the Confidential Assistant  Smt. Minimol S. transcribed and typed by her corrected by me and pronounced in the  Open Commission this the 30^th  day of  December 2021.

E.M .MUHAMMED IBRAHIM:Sd/-

S.SANDHYA RANI:Sd/-

STANLY HAROLD:Sd/-

Forwarded/by Order

Senior superintendent

INDEX

Witnesses Examined for the Complainant:-

PW1                : K.K.Thomas

Documents marked for the  complainant

Ext.P1             : Proposal form

Ext.P2             : Insurance certificate dated 09.06.2018

Ext.P3             : Discharge summary dated 13.10.2017

Ext.P4             : Bill summary dated 19.10.2017

Ext.P5             : Discharge summary dated 11.11.2017

Ext.P6             : Bill summary dated 11.11.2017

Ext.P7             :  Registered post ACK Due dated 03.01.2018

Ext.P8             : Lab report dated 05.01.2017

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:-

Ext.D1 series   : Policy conditions of insurance company

Ext.D2                        : History of present illness

Ext.D3                        : Proposal form

Ext.D4                        :Registered post ACK Due dated 21.02 .2018