BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

C.C. No. 223/2013 Filed on 10/06/2013

ORDER DATED:  10/10/2022

ORDER

SRI. VIJU V.R : MEMBER

1. The complainant has presented this complaint before this Commission under Section 12 of the Consumer Protection Act 1986.  The brief facts of the case is that, the complainant took a CAN medi claim insurance policy bearing registration No.101400/48/11/41/00002718 issued by the 1^st & 2^nd opposite parties where in the policy was administrated by the 3^rd opposite party.  Policy has been effected from 14/07/2011 in the name of the complainant, her husband, father, two children and her mother.  The policy is valid for the period from 14/07/2011 to 13/12/2012.  After filing the complaint the complainant filed an impleading petition to implead her mother as 2^nd additional complainant.  The IA was allowed and the mother of 1^st complainant was impleaded as the 2^nd additional complainant.  Herein after the 2^nd additional complainant will be referred as 2^nd complainant.  As per the terms and conditions of the policy the opposite parties are bound to indemnify the complainant to the extent of Rs.4,02,000/- for Medical expenses insured for the treatment of illness or accidental bodily injury sustained or contracted by them during the validity period of the policy including ambulance expenses and expenses for medical check up.  The 2^nd complainant one of the insured under this policy never had any sort of heart diseases till 28/08/2012.  Due to the sudden chest discomfort in the morning of 28/08/2012 the 1^st complainant’s mother was taken to S.K. Hospital, Thiruvananthapuram.  After necessary check up in the hospital it is found that she is having a heart disease namely double vessel Disease (LAD & RCA).  The Doctors recommended coronary Angioplasty after conducting Angiogram test.  As per the doctor’s advice the patient had undergone coronary angioplasty on 31/08/2012 and she incurred an expense of Rs.2,00,941/- as Hospital bill for the treatment.  Thereafter as required by the 2^nd opposite party the complainant submitted duly filled claim form and submitted the same to the 2^nd opposite party on 07/09/2012 along with originals of the relevant documents for processing the claim.  But to the utmost surprise of the 1^st complainant she received a letter dated 17/12/2012 from the 1^st opposite party rejecting the claim on the ground that the ailment was pre-existing and duration of ailment is 13 years.  It is reiterated that till the commencement of the policy or up to 28/08/2012 the 1^st complainant has no sort of heart ailment or any sort of Cardiac problem.  Since the claim of the 1^st complainant was turned down by the 3^rd opposite party, the administrators of the 1^st opposite party, without any basis.  The complainant is entitled to get interest on the insured amount of Rs.2,00,000/- + Rs.2,000 from the date of rejection of claim till payment.  The rejection of the claim of the 1^st complainant by the opposite parties 1 to 3 amounts to deficiency in service. 
2. Even though the Opposite parties 1 to 3 received notice, 3^rd opposite party did not appear before this commission and 3^rd opposite party was set ex parte.
3. Opposite parties 1 & 2 appeared and filed version.  Opposite parties 1 & 2 has averred that the complaint is not maintainable either in law or on facts.  It is admitted by opposite parties 1 & 2 that they have issued the policy. The opposite parties contention is that the complainant’s mother Smt.Ambika Devi had pre-existing disease and the same was concealed and policy was obtained.  There is both material suppression of facts and pre-existing illness.  Both these aspects come outside the recitals of policy and hence the claim was repudiated.  The 1^st complainant’s mother had hypertension since 13 years and the present heart disease is a complication of the same.         Medical records of the treating hospital shows 13 years of hypertension.  Moreover the current policy is renewed with a break and the same can be considered only as a fresh policy.  The same comes into force only from 03/12/2010.  With the history of hypertension for 13 years, ailment can be considered only as pre-existing and same is not payable under clause 4.1 of the policy.  Hence the claim was repudiated.  The 3^rd respondent had informed these opposite parties 1 and 2 of all these medical aspects and the claim had to be repudiated.  There is no deficiency of service or unfair trade practice on the part of opposite parties 1 & 2.   Hence complaint may be dismissed with cost.

                        Issues to be ascertained:

1. Whether there is any unfair trade practice or deficiency in service from the side of opposite parties 1 to 3?
2. Whether the complainant is entitled to get the reliefs?

4. Issues (i) & (ii):- Both these issues are considered together for the sake of convenience.  The complainant has filed affidavit in-lieu of chief examination and has produced 12 documents which were marked as Exts.P1 to P 12(series).  Complainant was examined as PW1 & was cross-examined by opposite parties 1 &2.  Even though opposite parties filed affidavit in-lieu of chief examination they have not taken any steps to give oral or documentary evidence before this commission.  The complainant filed Argument Note.  The policy issued to the 1^st complainant was admitted by the opposite parties 1 &2.  The opposite parties 1 & 2 has rejected the claim raising the contention that the 2^nd complainant was having hypertension for the last 13 years before taking the policy in the year 2010 & the present illness was due to this hypertension.  So the ailment was considered as a pre-existing disease.  The 1^st & 2^nd opposite parties have only relied on the pre authorisation request provided by the TPA stating that duration of ailment is 13 years as per medical records. Even though opposite parties 1&2 has took the contention of pre-existing disease they have not produced any tangible evidence to prove that the deceased was having pre-existing disease.  So it is clear that the complainant was not having any past history of illness & also there is no whisper in Ext.P7 regarding that the 2^nd complainant was having the history of hypertension.
5. The denial of medical expenses reimbursement is utterly arbitrary on the ground that disease in question was pre-existing disease.  It is mere an excuse to escape liability and is not bona fide intention of the insurance company.  Fairness and non-arbitrariness are considered as two immutable pillars supporting the equity principle, an unshakable threshold of State and public behaviour. Any policy in the realm of insurance company should be informed, fair and non-arbitrary.  When the insurance policy has exclusions/conditions to repudiate the claim or limit the liability, the same must be specifically brought to the notice of the insured and are required to be got signed to show that such exclusions and conditions have been brought to his/her notice.
6. Malaise of hypertension, diabetes, occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in and out of the house and are controllable on day to day basis by standard medication and cannot be used as concealment of pre-existing disease for repudiation of the insurance claim unless an insured in the near proximity of taking of the policy is hospitalized or operated upon for the treatment of these diseases or any other disease.
7.  If insured had been even otherwise living normal and healthy life and attending to his duties and daily chores like any other person and is not declared as a diseased person as referred above he cannot be held guilty for concealment of any disease, the medical terminology of which is even not known to an educated person unless he is hospitalized and operated upon for a particular disease in the near proximity of date of insurance policy say few days or months.
8.  Disease that can be easily detected by subjecting the insured to basic tests like blood test, ECG etc. the insured is not supposed to disclose such disease because of otherwise leading a normal and healthy life and cannot be branded as diseased person.
9.  Insurance Company cannot take advantage of its act of omission and commission as it is under obligation to ensure before issuing medi-claim policy whether a person is fit to be insured or not.  It appears that insurance Companies don’t discharge this obligation as half of the population is suffering from such malaises and they would be left with no or very little business.  Thus any attempt on the part of the insurer to repudiate the claim for such non-disclosure is not permissible, nor is exclusion clause invokable.
10. Opposite party 3 being a service provider of opposite parties 1 &2 since there is no allegation against 3^rd opposite party in the complaint 3^rd opposite party is exonerated.
11. Hence we find that the claim was wrongly and illegally repudiated by the opposite parties 1 & 2 and there is deficiency in service from the side of opposite parties 1 &2.   The opposite parties 1 &2 are liable to compensate the complainant.

In the result, the complaint is partly allowed.  Opposite party No.1&2 are jointly & severally  directed to pay Rs.2,00,941/- (Rupees Two lakh Nine Hundred and Forty One Only) with 6% interest from 17/12/2012 to the 1^st complainant along with  Rs.25,000/- (Rupees Twenty Five Thousand Only) as compensation to the 1^st complainant for the mental agony suffered by the complainant’s 1 & 2 and Rs 2,500/- (Rupees Two Thousand Five Hundred Only) to the 1^st complainant towards the cost of the proceedings within one month from the date of receipt of this order failing which the entire amount except cost carries interest @ 9% per annum from the date of filing this petition i.e.10.06.2013.

     A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Commission, this the 10^th day of October 2022.

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P.V.JAYARAJAN                 : PRESIDENT 

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PREETHA G. NAIR              : MEMBER    

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                                                                 VIJU V.R                          : MEMBER

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 C.C. No. 223/2013

APPENDIX

  I         COMPLAINANT’S WITNESS:

II          COMPLAINANT’S DOCUMENTS:

III         OPPOSITE PARTY’S WITNESS:

IV        OPPOSITE PARTY’S DOCUMENTS:

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PRESIDENT

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