IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 15th day of September, 2022
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 217/2019 (filed on 27-11-2019)
Petitioners : (1) Shinu P. Thomas,
S/o. P.C. Thomas,
Pallithekkethil,
Eruvichira P.O.
Thottakkadu, Kottayam.
(2) Remya Paul,
W/o. Shinu P. Thomas,
Pallithekkethil,
Eruvichira P.O.
Thottakkadu, Kottayam.
(Adv. Chandramohan V.
and Adv. K. Reshmi K.M.)
Vs.
Opposite Parties : (1) Divisional Manager,
National Insurance Co. Ltd.
Parekadavil Complex,
Opp. No.1 Bus Stand,
Palace Road,
Changanacherry, Kottayam.
(2) Administrator,
Hosmat Hospital Pvt, Ltd,
45, Magrath Road of
Richmad Road – 560025.
(Adv. Muhammad Sharief)
O R D E R
Sri. Manulal V.S. President
The case is filed under Section 35 of Consumer Protection Act, 2019.
Case of the complainant as follows:
Complainants are husband and wife. The complainants took a mediclaim policy with first opposite party from 28-1-2015 onwards. The policy was duly renewed in every year till 3-10-2018. Initially the insured sum was 1, 00,000-/ each for the both the complainants and Rs.50,000/- each for their two children. On 27-11-2017 the insured sum was enhanced to Rs.2,00,000 each and Rs.1,00,000 each for themselves and their children respectively, The policy was again renewed on 3-10-2018 for one year from 19-12-2018 to 18-12-2019.
The second complainant had caused dislocation of her right shoulder continuously. Since conservative lines failed to achieve a stable joint, the doctor advised the second complainant to undergo arthroscopic ban Karts repair and remplissage plus inferior capsular shift. The complainants contacted the second opposite party and an approximate amount for surgery was informed by him to the complainants, complainants showed the medi claim policy to the hospital authorities and they sent the details to the first opposite party in advance and on getting their assurance the date of surgery was fixed .
The second complainant got admitted in the hospital on 27-5-2019 and underwent surgery on 28-5-2019. The second complainant was discharged from the hospital on 29-5-2019. At the time of discharge the second opposite party informed to the complainants that the total bill was for Rs.1,85,500/- and the first opposite party approved Rs.1,05,000/- only. The second opposite party insisted for the balance payment immediately. It is averred in the complainant that the complainants took the policy from the first opposite party on the assurance given by them that full insured amount will be released as and when required. But the first opposite party failed to fulfill their promised and thereby committed deficiency in service. Hence this complaint is filed by the complainants praying for an order allowing the complainants to realize Rs.80,500/- with interest and compensation of Rs.50,000/- from the first opposite party.
Upon notice opposite parties appeared before the Commission and filed separate version.
Version of the first opposite party is as follows:
The second complainant had the problem of dislocation of right shoulder from May, 2017 onwards. The second complainant was under the treatment of Dr. Rajeev P.B. of Caritas Hospital and also under the treatment of the first complainant who is a physiotherapist by profession. The complainant had purposefully not disclosed these facts neither in the proposal form for the enhancement of insured sum nor in the complaint. Since the second complainant had ailments from May 2017 onwards, the third party administrator sanctioned the eligible amount of Rs.1,05,000/- including the cumulative bonus as she is not entitled to get the enhanced insurance amount as per clause 5.17 of the policy conditions.
The complainants have taken the policy for the first time on 28-11-2015 for Rs.1,00.000/- Since there was no claim during the policy period they are entitled to 5% cumulative bonus of the insured amount as per clause 2.4.1 of the policy. The policy was again renewed for the same amount for the period of 28-11-2016 to 27-11-2017 and during the period second complainant underwent treatment for the ailment in May 2017 at Caritas hospital. Thereafter they enhanced the insurance amount to Rs.2,00,000/- from the period 29-11-2017 to 28-11-2018 then renewed for the period from 19-12-2018 to 18-12-2019 without disclosing the fact of treatment for shoulder dislocation since May 2017. Therefore the exclusion 5.17 of the policy conditions came in operation with respect to the enhanced portion of insured amount. There is no deficiency in service from the part of the first opposite party.
Second opposite party filed version contending as follows:
The second complainant had dislocation of her right shoulder and since conservative lines failed to achieve a stable joint, she was to undergo arthroscopic ban karts repair and remplissage plus inferior capsular shift. For conducting the
surgery , the complainants contacted the second respondent. Approximate amount for surgery was informed to her and the complainants showed the medicaim policy to the hospital.
On getting the assurance from the first opposite party the date of surgery was fixed as 28-5-2019. The second complainant got admitted in the hospital on 27-5-2019 . Second complainant underwent surgery on 28-5-2019 and discharged
on 29-5-2019. At the time of discharge the total bill was Rs.1,85,500/- and the first respondent had approved only Rs.1,05,000 and the complainants remitted balance amount of Rs.80,500/-, There was no deficiency in service either by the treating doctors or he hospital management.
Second complainant filed proof affidavit in lieu of chief examination and marked exhibit a1 to A7. Mahesh K Rajan who is the administrator officer of the first opposite party filed proof affidavit in lieu of chief examination and marked
exhibits B1 and B2 from the side of the first opposite party.
The second opposite party did not adduce any evidence.
On evaluation of complaint, version and evidence on record we would like to consider the following points
1. Whether there is any deficiency is service on the part of the opposite parties?
2. If so what are the reliefs and cost?
Point number 1 and 2
Before dealing with the rival submissions and contentions advanced by the learned advocate appearing for complainant as well as opposite parties, it will be pertinent to point out certain undisputed facts. There is no dispute that the complainant had taken Individual Health Insurance policy for the period from 28-11-2015 and the same was also duly renewed and was enhanced upto Rs.2 lakhs. There is also no dispute that the second complainant was diagnosed dislocation of her right shoulder continuously and had underwent arthroscopic ban Karts repair and remplissage plus inferior capsular shift on 28/05/2019.
The first opposite party had taken a plea that the expenses incurred by the complainant were not at all payable under the policy in view of the terms mentioned in clause 5.17 of the insurance policy, which stated that “sum insured under the policy can be enhanced only at the time of the renewal. Sum insured can be enhanced up to Rs.5,00.000/- subject to discretion of the company. The waiting period and conditions as mentioned under exclusions 4.1.,4.2 and 4.3. will apply to incremental portion of the sum assureds”.
The first complainant had obtained the Medi-claim policy No.570602/48/16/8500000483 for the period from 28-11-2016 to 27-11-2017 vide exhibit A3. On perusal of exhibit A3 we can see that Shinu P.Thomas and Remya Paul who are the first and second complainants herein along with their two children, are the insured persons. The sum assured for the first and second complainant was Rupees One lakh each and Rs.50,000/- each for the children. Admittedly same was renewed, for the period from 27-11-2017 to 28-11-2018 for a sum insured of Rs.2, 00,000/-, for first and second complainants and Rs.1,00,00/- each for the children .It was further renewed, vide exhibit A1 for the period from 19-12-2018 to 18-12-2019 for enhanced sum insured. Second Complainant was admitted in second opposite party’s Hospital on 27-5-2019 due to dislocation of right shoulder continuously. On 28-5-2019 she underwent arthroscopic ban karts repair and remplissage plus inferior capsular shift and discharged on 29-05-2019. It is proved by Exhibit A4 bills that the total expenses incurred for the treatment was Rs.1, 85,500/-.
The strict and actual interpretation of Clause 4 reflects that the Insurance Company is permitted to exclude the expenses borne in case the insured person is suffering from any kind of Pre-existing disease(s) until the insured person is continuously covered under the policy for a minimum period of 48 months. What constitutes Pre-existing disease has been provided in the Insurance Policy itself, which reads as follows:-
“Pre-existing disease definition- any condition, ailment, or injury or related condition(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 issued by the company”
The aforesaid definition clause makes it abundantly clear that in order for a disease to be categorized as pre-existing disease, the Insured must have received medical advice/treatment 48 months prior to purchasing the policy for that particular disease.
Apart from this, we would also like to deal with the evidence brought on record by the first opposite party to give strength to their assertion. Exhibit B1 is the certificate issued by Dr. Rajeev P. B. Who is working at Caritas hospital which certifies that the second complainant is suffering from recurrent dislocation of right shoulder for last two years. On the basis of exhibit B1 first opposite party had concluded that the second complainant had pre-existing disease. As per Ext.B2 Clause 4.1 Pre-existing diseases is defined as:
“All pre-existing diseases when the cover incepts for the first time until 48 months of continuous coverage has elapsed. Any complication arising from pre-existing ailment/disease/ injuries will be considered as a part of the pre-existing health condition.
To illustrate if a person is suffering from either hypertension or diabetes or both at the time of taking the policy, then the policy shall be subject to following exclusions
Diabetes Hypertension Diabetes and Hypertension
Diabetic Retinopathy Coronary Artery Disease Diabetic Retinopathy
Diabetic Nephropathy Cerebro Vascular Accident Diabetic Nephropathy
Diabetic Foot/wound Hypertensive Nephropathy Diabetic Foot/wound
Diabetic Angiopathy Internal Bleeding/ Diabetic Angiopathy
Haemorrhage
Diabetic Neuropathy Diabetic Neuropathy
Hyper/Hypoglycemic Hyper/Hypoglycemic
shock shock
Coronary Artery Disease Coronary Artery Disease
Cerebro Vascular Accident
Hypertensive Nephropathy
Internal Bleeding/
Haemorrhage
4.2 First 30 (thirty) days waiting period. Any disease contracted by the insured person during the first 30 (thirty) days.
This shall not apply in case the insured person is hospitalised for injuries, suffered in an accident which occurred after inception of the first policy.
4.3 Specific waiting period Following diseases/treatments are subject to a waiting period mentioned below.
i. One year waiting period
a. Benign ENT disorders
b.Tonsillectomy/Adenoidectomy/Mastoidectomy/Tympanoplasty
ii. Two years waiting period
a. Cataract
b. Benign prostatic hypertrophy
c. Hernia
d. Hydrocele
e. Congenital internal disease
f. Fissure/Fistula in anus
g. Piles (Haemorrhoids)
h. Sinusitis and related disorders
i. Polycystic ovarian disease
j. Non-infective arthritis
k. Pilonidal sinus
l. Gout and Rheumatism
m. Hypertension and related complications as mentioned in 4.1
n. Diabetes and related complications as mentioned in 4.1
o. Calculus diseases
p. Surgery of gall bladder and bile duct excluding malignancy
q. Surgery of genito-urinary system excluding malignancy
r. Surgery for prolapsed intervertebral disc unless arising from accident
s. Surgery of varicose vein
t. Hysterectomy
iii. Four years waiting period:
a. Treatment for joint replacement due to degenerative conditions
b. Age related osteoarthritis and osteoporosis
From bare perusal and interpretation of above exclusion clauses 4.1, 4.2 and 4.3 are clearly applicable in the instant case as these clauses specifically state that for the purpose of applying the pre-existing health condition, the date of inception of the first indemnity based health policy shall be considered provided the renewals have been continuous and without any break in period. Since the first policy was taken for the period from 28-11-2015 and was renewed, vide police no No.570602/48/16/8500000483 for the period from 28-11-2016 to 27-11-2017 vide exhibit A3. It was further renewed for the period from 27-11-2017 to 28-11-2018 for a sum insured of Rs.2,00,000/-, for first and second complainants and Rs.1,00,000/- each for the children. It was further renewed, vide exhibit A1 for the period from 19-12-2018 to 18-12-2019 for enhanced sum insured-. The sum insured, when the cover was incepted for the first time was Rs.1,00,000/-. Subsequently it was enhanced to Rs.2,00,000/- in the third year of the policy and the treatment was taken on 28-5-2019 that is within 48 months from the date of enhancement.
Hence, as per exclusion clause 4.1, 4.2 and 4.3 of the insurance policy the sum insured payable by the insurance company is to be taken as Rs.1,00,000/- only along with cumulative bonus if any.
Sequel to the above discussion, we are of the opinion that the complainants failed to prove any deficiency in service on the part of the opposite parties.
The Hon’ble Supreme Court in a recent Judgment dtd.6th October 2021 i.e. in “SGS India Limited v/s Dolphin International Limited”, categorically held that the onus of proof that there was deficiency in service is on the complainant.
Here in this case as discussed above we are of the opinion that the complainant has failed to prove any deficiency in service on the part of the opposite party. Thus the complaint is dismissed
Pronounced in the Open Commission on this the 15th day of September, 2022
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1- Policy certificate No.570602501810000457
A2 – Policy certificate No.570602501710000057
A3 – Policy certificate No.570602/48/16/8500000483
A4 – Copy of hospital bills issued by 2nd opposite party
A5 – Copy of lawyers notice dtd.21-08-2019
A6- Postal receipts (2 nos.)
A7- Postal AD cards
Exhibits marked from the side of opposite party
B1 – Copy of certificate dtd.24-05-2019 issued by Dr. Rajeev P.B.
B2 – Copy of policy issued by opposite party
By Order
SD/-
Assistant Registrar
