PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding the deficiency in service and unfair trade practices adopted by the Opposite Parties as they have repudiated the insurance claim of the Complainant on the ground of not disclosing the disease.
The facts of the case as alleged by the Complainant are that, the Opposite Party No.1 is the Insurance Company and Opposite Party No.2 is the T.P.A. (Claim Settler). The Complainant and his wife was insured under the Hospitalisation and Domiciliary Hospitalisation Benefit Policy with Opposite Party No.1 under Policy No.250400/48/03/8503651 which was valid form 22/03/04 to 21/03/05. The insured amount was Rs.2 Lac. It is also submitted by the Complainant that he was a regular subscriber of this mediclaim policy (Hospitalisation and Domiciliary Hospitalisation Benefit Policy) from the year 1989-90. However, he has submitted the copy of the insurance policy for the year 2004-2005 only (valid from 22/03/04 to 21/03/05).
2) The Complainant has further stated that he had an heart problem on 25/08/04. The Doctor advised him to get admitted in Bhatia Hospital on 25/08/05. He was treated in the said hospital for 6 days for his heart ailment. Meanwhile, the Agent Mr.Biyani had informed about the hospitalization of the Complainant to the Opposite Party NO.1. The Complainant also submitted the claim form, policy document and necessary medical papers to the Opposite Party No.2 vide his letter dtd.20/09/04. The Complainant requested the Opposite Party No.2 for the claim of Rs.54,340.42. Meanwhile he was also advised to do angiography.
3) On 25/09/04, the Complainant was again hospitalized in Breach Candy Hospital for angiography at 7.00 a.m. and was discharged on the same day in the evening. The Complainant submitted a claim of Rs.81,071/- (previous claim dtd. 20/09/04 of Rs.54,340.52 + claim of Breach Candy Hospital, hospitalization on 25/09/04 Rs.26,730.55 = 81.071.07 Rs.) vide letter dtd.04/10/04. Thereafter Opposite Party No.2 raised some queries and asked for certain documents. The Complainant complied with the said queries of the Opposite Party No.2 but Opposite Party No.2 vide its letter dtd.24/11/05 informed the Complainant that Opposite Party No.1’s record shows that the Complainant had taken the mediclaim policy from 1999 only and not from 1989.90.
4) The Complainant has also mentioned about the letter of one Agent Shri.Arunkumar Biyani dd.02/12/05 addressed to the Opposite Party confirming the policy period commencing from 1989-1990 but actually this letter is not on record produced by the Complainant.
5) The Complainant further submitted that the Opposite Party No.2 has finally repudiated the mediclaim of the Complainant vide its letter dtd.09/03/06 after 18 months from the date of the submission of the claim to the Opposite Party by the Complainant. Further the Complainant also stated in the same paragraph No.K page 9 that Opposite Party rejected the claim on account of Exclusion Clause No.4.1 which states that “the insurers are not liable to pay the expenses, incurred by an insured person for the treatment of diseases which are pre-exist when the policy incepts (commences) for the first time.” Whereas it is the contention of the Complainant that the said policy was in existence since 1989-90 and the Complainant has been renewing the said policy since then and therefore there is no issue of non disclosure of the hypertension as contended by the Opposite Party. It was also submitted by the Complainant that he had not suppressed any material fact in 1989-1990 or he was suffering from hypertension at that time. It was contended by the Complainant that the onus of proving the exclusion clause of the policy is on the Opposite Parties.
6) The Complainant has further averred that the acts & omissions of the Opposite Parties have caused physical inconvenience, mental agony and harassment to the Complainant. Therefore, the Complainant has prayed that the Opposite Parties be directed to pray the Complainant Rs.81,071/- with interest @ 21% p.a., Rs.5 Lacs compensation and Rs.20,000/- towards incidental expenses, etc.
7) The Complainant has attached the xerox copies of the mediclaim policy of the year 2004-2005 and other relevant documents in support of his complaint.
8) The complaint was admitted and notices were issued to the Opposite Parties. Opposite Party No.1 appeared through its Ld.Advocate. Opposite Party No.2 remain absent inspite of service of the notice on it. An ex-parte order has been passed against Opposite Party No.2 vide Roznama dtd.19/01/09. The Opposite Party No.1 filed its written statement wherein it admitted that the Complainant had taken the mediclaim policy issued by it since 22/03/97 only and the policy was renewed thereafter regularly.
9) The Opposite Party has stated that, the insured had declared at the time of taking the policy that he was not suffering from any ailment.
10) On 25/08/04, the Complainant was admitted in Bhatia Hospital for ischemic Heart Disease (IHD), following Angiography which proved that the patient had severe IHD. Again on 25/09/04, the Complainant was hospitalized at Breach Candy Hospital and a claim of Rs.81,071/- was preferred by the Complainant. All the medical documents were scrutinized by the Opposite Parties. During the scrutiny, it was found that the Complainant had given a history of being known case of hypertension for 12 years. The policy clearly mentioned that pre-existing ailments and their proximate causes were excluded from the cover of the policy. Therefore, the claim was not payable. This ailment of Hypertension was not disclosed by the insured at the time of 1st inception of the policy. The pre-existence of Hypertension and non disclosure of this material fact vitiated the claim. Hence, a letter dtd.09/03/06 was sent to the Complainant mentioning the reasons for repudiation.
11) The Opposite Party has pointed out that the Complainant had admitted in his letter dtd.15/04/05 that he was suffering from Hypertension from 12 years. Opposite Party stated that the Complainant had a mediclaim policy issued by the Opposite Party from 1997 only and not from 1989. The Opposite Party has also explained that the relationship between Hypertension and I.H.D. is internationally recognized by medical journals. Opposite Party No.1 has attached the Medical Text book references pertaining to the said conclusion. Finally the Opposite Party has prayed for the dismissal of the complaint with exemplary cost. The Opposite Party has attached the xerox copies of the terms and conditions of the mediclaim policy issued by the National Insurance Company Ltd., proposal form filled up by the Complainant on 11/03/03. Discharge card of Bhatia Hospital, API Text book of medicine 6th edition 1999 regarding Ischemic Heart Disease.
12) The Complainant also submitted an affidavit of evidence alongwith an xerox copies of Agent bill (March, 90) Bank Statement of Union Bank of India. Computation of income Tax (1990-91)(1991-92)(1992-93) xerox copies of some handwritten calculation purportedly of 1991, as claimed by the Complainant. In this affidavit, the Complainant denied the averments made in the written statement of the Opposite Party and reiterated the facts mentioned in his complaint.
13) During the pleading of the case the Complainant filed an application for production of certain documents by the Opposite Party such as, original mediclaim policies from the year 1989-90 bearing No.00737, details of premium received by the Opposite Party from 1990and basis of working out cumulative bonus of Rs.68,000/- and its yearwise breakup. To this application, the Opposite Party No.1 has given written reply stating that the Complainant had taken mediclaim policy from the year 1997 and not from 1989. And as per their procedure they dispose off the old recod. The Opposite Party No.1 denied that they had issued any Mediclaim Policy No.00737 which was valid upto March, 1990.
14) Both the parties submitted their written arguments wherein they reiterated the facts mentioned in their respective complaints and written statements.
We heard the Ld.Advocates for both the parties and our findings are as follows
The Complainant had obtained a Mediclaim PolicyNo.250400/481/03/8503651 valid from 22/03/04 to 21/03/05. During the validity of this policy, the Complainant was hospitalized in Bhatia Hospital for the period from 25/08/04 to 30/08/04 for Retrosternal chest pain c profuse sweating. The diagnosis of the ailment was “Inferior Posterial & lateral wall myocardial infarction”. He was again hospitalized on 25/09/04 in Breach Candy Hospital for Angiography. The Complainant had submitted two mediclaims i.e. one of Rs.54,340.52 on 20/09/04 and 2nd claim of Rs.26,730.55 on 04/10/04. The total claim being of Rs.81,071.07 was submitted by the Complainant alongwith the letter dtd.04/10/2004.
15) The Opposite Party has repudiated the claim vide it letter dtd.09/03/06 on the ground of breach of condition 4.1 i.e. pre-existing disease. It is the contention of the Opposite Party that, the perusal of the Bhatia Hospital indoor papers of the Complainant revealed that the Complainant was suffering from Hypertension since 12 years. Thus, the Hypertension was the pre-existing disease which is excluded from the cover of the mediclaim policy. However, when the papers were carefully scrutinized, it is found in discharge certificate of Bhatia Hospital that the Complainant was admitted for Inferior posterial & lateral wall Myocardial Infarct and not for hypertension. In the Breach Candy Hospital, the Complainant was admitted, (as per discharge certificate), for Coronary Artery disease and not for Hypertension. The Opposite Party has itself submitted the extract of journal enlightening on the Heart disease and Hypertension. In this extract the relevant paragraph enlights on the myocardial infarction for which the Complainant was admitted in Bhatia Hospital. It says “Myocardial Infarction results when a vessel gets totally occluded. In 85% of cases, occlusion is due to thrombus plaque rupture with subintimal Hemorrhage leads to thrombosis and total occlusion of the vessel, myocardial necrosis follows.
Table 7.37 Risk factors for coronary artery disease.
1)Hypercholesterolemia, 2) Tobacco Smoking, 3) Hypertension, 4) Lack of Physical activities, 5) Obesity, 6) Diet, 7) Trace Minerals, 8) Hypocalcaemia, 9) Hard water, 10) Family history and family aggregation psychical and behavioral factors, 11) Stress and Occupation, 12) Type A personality, 13) Glucose intolerance, 14) Alcohol, 15) Estrogen and gender, 16) Vasectomy, 17) Coffee, 18) Cardiac transplantation.
These are the risk factor and not the diseases. Risk factor does not mean causation of disease. Hypertension is one of the risk factor of the coronary artery disease for which the Complainant was admitted.
16) It is also the contention of the of the Opposite Party itself that this policy was incepted in the year 1997 (though it is the contention of the Complainant that it incepted in 1989-90) without going to this controversy, the Opposite Party has failed to produce the proposal form of 1997 when this policy incepted according to the Opposite Party itself. This proposal form was submitted by the insured before issuance of the policy. It is the document of the Opposite Party. The agent of the Opposite Party generally does not give copy of this form to the insured. Under such situation, it was the Opposite Party who should have produced this document and proved that the Complainant has not mentioned the hypertension as pre-existing disease and thus, suppressed this disease from the Opposite Party. The terms Hypertension is defined in this journal as “It is usually taken as the level of B.P. beyond which there is increase vascular risk, Blood Pressure Factual. In simple words the Hypertension is an irregularity in Blood Pressure. In this context if we peruse the indoor papers of Bhatia Hospital Ex.C3 produced by the Opposite Party. It shows B.P. as 120/80 which is most normal range stated in the medical field and this reading was taken on 25/08/04 when he was admitted in that hospital. Inspite of such normal blood pressure, indicating no hypertension, he was admitted for inferior posterial & lateral wall myocardial infarct. Therefore, in our considered opinion, it is clear that the Complainant was suffering from inferior posterior & lateral wall myocardial infarct which is not an hypertension. The disease for which the Complainant was hospitalized was not excluded in clause 4.1. By not producing the proposal form of the year when the insurance policy incepted, the Opposite Party has failed to establish that the Complainant has suppressed the fact of hypertension at the time of inception of the insurance policy.
17) The Opposite Party repudiated the claim under clause 4.1 of the policy. This clause runs as follows –
“Company shall not be liable to make payment under this policy in respect of any expenses whatsoever incurred by any insured person, in connection with or in respect of, all diseases injuries which are pre-existing when the cover incepts for the first time.” In the instant case, the Complainant was hospitalized for “Inferior, posterior & lateral wall myocardial infarct” (in simple words, chest pain and profuse sweating as per symptoms) and this disease was not a pre-existing disease at the inception of this policy. Therefore, the repudiating of the mediclaim of the Complainant on the above said ground amounts to deficiency in service on the part of Opposite Parties.
Similarly, the Complainant had submitted the claims on 20/09/04 and 04/10/04. However, the Opposite Party took almost more than 16 months to decide over the issue and thus, it indicates inefficiency on the part of Opposite Parties. However, the compensation sought by the Complainant is exorbitant and without any basis. We therefore, pass the following order -
O R D E R
i. Complaint No.429/2006 is partly allowed.
ii The Opposite Parties No.1 & 2 are directed to pay jointly and/or severally Rs.81,071.07 (Rs.Eighty One Thousand
Seventy One and Seven Paise Only) to the Complainant as medical expenses incurred by him for hospitalization
alongwith 9% interest p.a. from 04/11/2004 till realization of the entire amount.
iii.Opposite Parties No.1 & 2 are also directed to pay jointly and/or severally Rs.10,000/- (Rs.Ten Thousand Only)
to the Complainant towards compensation for mental agony and harassment caused to the Complainant.
iv.Opposite Parties No.1 & 2 are also directed to pay jointly and/or severally Rs.5,000/-(Rs.Five Thousand Only) to
the Complainant for the expenses of this complaint.
v. Opposite Parties No.1 & 2 are also directed to comply with jointly and/or severally the above said order within
30 days from the date of receipt of this order.
vii. Certified copies of this order be furnished to the parties.
