ORDER

(Per: Mrs. Veena Sharma, Member):

The complainant has filed this consumer complaint before this Commission under Section 12 read with Section 18 of the Consumer Protection Act, 1986, against the opposite parties for compensation of Rs. 56,97,500/- on the basis of deficiency in service on the part of opposite parties in repudiating the insurance claim submitted by the complainant.  

2.       The facts of the case are that the complainant-Sh. Veerendra Nath Mittal S/o Late Sh. T.N. Mittal R/o 674 Indira Nagar, Dehradun had taken an Overseas Mediclaim Insurance Policy No. 2012/461000/48/12/0570000018 from the opposite party No. 1 for the period from 16.11.2012 to 31.2.2013. The policy was purchased for a coverage of treatment of illness upto the extent of USD 50,000/- (at the relevant time 1 USD meant Rs. 53.95).  The complainant had duly paid the premium as per the terms agreed for purchase of the said policy.  The said policy was required to be purchased since the complainant and his wife regularly visit their son, who is residing in Singapore and before every visit the complainant and his wife obtain such policy and duly pay the premium.  However, before the policy in question, the complainant never had to use the previous insurance covers.   The complainant and his wife had duly got their tests done and also the policy is issued only after the opposite parties are satisfied that there are no past history of illness.  For the policy in question also the complainant had undergone the tests and his ECG was normal and a mild hypertension was diagnosed, which by no means was any past illness.  At the age of complainant, a mild hypertension is a normal symptom particularly when the tests etc. are carried out.  The complainant regularly took medicine for the same.  Mild hypertension is not an illness, it is merely a condition which is easily controllable by medication. The complainant after purchasing the policy went to Singapore on 16.11.2012 itself and on 28.12.2012, he caught dengue and remained hospitalized for three days from 02.01.2013 to 05.01.2013.  The complainant was issued health bill on 14.01.2013 after fully recovered. On 14.01.2013 itself the complainant suffered heart attack and was admitted to Changi General Hospital and a balloon angioplasty on the right coronary artery was conducted on him. The complainant was further advised to undergo    by-pass surgery to avoid any future risk of heart attack. The complainant obeying the advice of the doctors underwent a by-pass surgery at the National Heart Centre, Singapore General Hospital on 05.02.2013.  The surgery left the complainant with an irregular heart rhythm on account of Atrio Ventricular Node which did not regain normalcy leading to life threat of the complainant as such the complainant had to get installed a permanent pace maker and thereafter he was discharged from the hospital on 06.03.2013. The complainant hence after lodged his claim since he had already incurred expenses of more than USD 50,000 alongwith all the medical bills and relevant documents with the opposite parties. That on 11.03.2013, the complainant was shocked to receive a communication that his claim has been rejected on account of false accusation that there was any past medical history of hypertension.  It is rather unfortunate that the opposite parties attributed the illness of the complainant to the “mild hypertension”.  It is relevant to point out here that at the time when the policy was purchased, an endorsement of mild hypertension was there, but at no point of time any communication was made to the complainant that his mild hypertension would disallow illness cover in question.  The premium was duly received by the opposite parties.  It is relevant to mention here that the insurance policy particularly mediclaim policy by a senior citizen, as the case of complainant, is obtained keeping in mind the unforeseen health contingencies and it was the case of the complainant that unforeseen contingencies arose and he had to undergo his treatments spreading over a period of time.  At the time when the policy was purchased, the complainant was even assured that in case he invokes the policy he will not have to pay any amount because it being cashless and all the bills will be settled by the opposite parties. The complainant, however, not only suffered on account of the illness and financial gravity, but also on account of the callous attitude of the opposite parties that amounts to deficiency in service provided to the senior citizen.  The opposite parties have committed deficiency in service by denying the agreed claim to the complainant, who has duly paid the premiums after purchase of the policy from the opposite parties. The complainant who has already suffered a lot on account of his illness has further suffered financial loss on account of the deficiency in service by the opposite parties and also suffered mental pain and agony on account of rejection of claim, which has further aggravated the loss and legal injury to the complainant.  Due to deficiency in service on the part of the opposite parties, the complainant has filed the consumer complaint before this Commission for a sum of Rs. 56,97,500/-

3.       The opposite parties have filed the written statement as well as preliminary objections.  The opposite parties have stated that the consumer complaint filed by the complainant is not legally maintainable and is liable to be rejected.  The claim of the complainant was repudiated by the Heritage Health TPA Pvt. Ltd. vide letter dated 11.03.2013, as the medical report opened that the complainant had past medical history of hypertension and had been treated for Acute Myocardial Infraction and since the policy carried specific exclusion of all medical expenses incurred directly due to past history ailments and any consequences attributable accelerated by or accuring therefrom as per medical history, the claim was not payable.  From the documents submitted by the complainant, it was revealed that the complainant had a past medical history of hypertension, which accelerated the heart ailment and which was excluded from the risks covered in the policy.  The policy clearly stipulates that the claim is payble subject to specific exclusion of all medical expenses incurred directly due to, AS PER MEDICAL REPORTS, any consequences attributable to accelerated by or arising therefrom as per the medical history stated in the proposal form and/or medical reports attained therefrom.  The policy further states:-

Important:-

Notwithstanding anything stated in the policy, it is hereby declared and agreed that all claims, occasioned by, happening through or in consequence of any disease which is existing on the date of commencement of risk whether specifically alleged or not, in the personal form completed by the insured, is excluded from the scope of the policy.” 

It has been stated that the insured should fully understand the policy before travel.  The terms and conditions were clearly stated in the policy and the proposal form.  A sum of USD 3500 was paid directly by the TPA to the Raffles Hospital towards settlement of the expenses incurred by the insured for his treatment of Dengue, but the other medical expenses were turned down because the policy contained a specific clause of exclusion of all medical expenses incurred directly due to post history ailment and all consequences attributable to or accelerated by or arising therefrom, as per the medical history.  The clinical summary of the insured states that the insured CABG complicated by complete heart block requiring PPM insertion and post OP AKI upon discharge.  Complete heart blockage does not occur in a short period of time.  The insured was aware of the condition of his heart at the time of taking the policy.  It is a settled legal proposition that while constructing the terms of a contract of insurance, the words used therein must be given paramount importance.  The terms of the policy have to be strictly construed in order to determine the extent of the liability of the insurer. 

4.       We have heard learned counsel for the parties and perused the material placed on record in light of the facts of the case.

5.       The complainant has filed an affidavit in which he has stated that at the time when the policy was purchased an endorsement of mild hypertension was there, but at no point of time any communication was made to the complainant that his mild hypertension would disallow illness cover in question, even while the premium was received by the opposite parties.  Neither the term mild hypertension was explained nor its consequences were explained to the insurer by the insurance company.  The insurance policy particularly mediclaim policy by a senior citizen is obtained keeping in mind the unforeseen health continegncies and it was the case of insurer that the unforeseen contingency arose and he had to undergo his treatments.  At the time when the policy was purchased the complainant was even assured that in case he invokes the policy he will not have to pay any amount, as it was cashless policy. The opposite parties have against their own observations held the mild hypertension is a past disease.  Particularly the opposite party No. 2 in paper No. 29 has clearly observed that there was no past disease and thereafter the claim has been repudiated vide letter dated 11.03.2013. It is incorrect to say that the illness of the complainant is covered under the exclusion clause of the policy.   It is incorrect to say that the complainant had past medical history of hypertension.  Facts are that the complainant had been in condition of mild hypertension, which is common but the opposite parties are trying to confuse it with “the hypertension” conveniently forgetting the adjective “MILD”.  The complainant was not suffering from any alleged heart disease, as is evident from the examining doctor, who has given a clean bill of health prior to the purchase of the insurance policy in question.  The complainant filled the insurance form, proposal form with full understanding, but the opposite parties are interpreting their own observations malafidely and with an aim to deprive the deponent of his lawful entitlement.

6.       On the contrary the opposite parties have filed the affidavit of   Sh. Arun Agarwal, Divisional Manager of National Insurance Company, in which he submitted that the insured had past history of heart ailment.  A sum of USD 3500 was paid directly by the TPA to the Raffles Hospital towards settlement of the expenses incurred by the insured for his treatment of dengue.  But the rest of the claim was not payable as per the terms and conditions of the policy.  It has been stated in the proposal form that the insured should fully understand the policy before travel.  The terms and condtions are an integral part of the contract and clearly stated in the policy and the proposal form.  It is reiterated that the clinical summary of the insured states that the insured CABG complicated by complete heart block requiring PPM insertion and post OP AKI upon discharge.  Complete heart blockage does not occur in a short period of time.  The insured was aware of his heart condition.  The opposite parties filed a document in support of their written statement discharge summary of National Heart Centre, in which diagnosis; principal-Ischaemic heart disease; Secondary-hypertension. In proposal form “mild htn” is mentioned at the coloumn-a.  In coloumn-b. “Any past history of disease, operation, accidents, investigation etc.- Yes, for Hip Bone” is indicated. Inpatient discharge summary is filed at paper No. 82.  The patient’s Name - Mittal Veerendra Nath; Admission Date - 04-Feb-2013; Clinical Discharge Date – 16-Feb-2013 is filled by the National Heart Centre. 

7.       The complainant in his written arguments submitted that he and his wife being regular visitors to Singapore and and and as and when have visited their son, they have been obtaining mediclaim insurance policy and likewise when they visited their son in 2012-13 they obtained Overseas Mediclaim Insurance Policy No. 2012/461000/48/12/0570000018 from the opposite party No. 1 for the period from 16.11.2012 to 31.02.2013 after having duly paid the premium for the policy.  The policy was for coverage of treatment expenses upto the extent of USD 50,000.  As precondition the complainant and his wife got themselves medically tested by the doctors of opposite party No. 1 before filing their respective proposal forms for their medical policies.  A bare reading of proposal form shows that there is no past history of illness nor any such aspect was found by the doctor of the opposite party No. 1.  The complainant had declared that he gets little tensed at times and the words mentioned to describe the said situation are “mild hypertension”, which prevalent and does not lead to the consequences of heart disease. After being fully satisfied by the good medical condition of the complainant and his wife, the respective policies were issued by the opposite party No. 1.  A perusal of proposal form clearly shows that no stress test was recommended.  In case there was any likelihood of the medical condition on account of the “mild hypertension” then the opposite party’s doctor would have recommended the stress test.  On 4.01.2013 the complainant suffered heart attack and was admitted to Changi General Hospital as is evident from paper No. 31 and a balloon Angioplasto was conducted followed by the by-pass surgery at the National Heart Centre, Singapore General Hospital on 05.02.2013 and the complainant was installed with permanent pace maker, as adviced before getting discharged from the hospital on 06.03.2013.  Paper No. 28 shows that on 14.01.2013, the complainant was admitted to another hospital with chest pain and no past history of the complainant is mentioned and at paper No. 29, there is clear mention that the patient did not suffer any similar complaints in the past.   To further elaborate it is necessary to point out that at paper No. 43 principal diagnose is Ischaemic heart disease and the secondary diagnose is hypertension. Dictionary meaning of Ischaemic heart disease is the disease of heart on account of reduced blood supply and hypertension means high blood pressure.  High blood pressure is merely a condition and it may be a direct result of anxiousness. The complainant was not a heart patient either at the time of purchase of the mediclaim policy nor prior to it.  The opposite parties in order to deny the lawful mediclaim forgetting that the contract of insurance is of utmost good faith. After the mediclaim was rejected the complainant got issued a notice dated 21.03.2013 to respondent calling upon them to honour the mediclaim policy.  The opposite parties also filed its written arguments in which they accepted that the complainant had obtained an Overseas Mediclaim Insurance Policy No. 2012/461000/48/12/0570000018 from the National Insurance Company for medical coverage upto USD 50,000.  The complainant went to Singapore on 16.11.2012 and while he was there, he contacted Dengue for which he had to be hospitalized for three days.  He suffered a heart attack on 04.02.2013 and was admitted in Changi General Hospital and thereafter he he underwent by-ass surgery at National Heart Centre, Singapore General Hospital and a pace maker was also installed.  The insured presented his claim of indemnity with the opposite parties on the receipt of which the case was forwarded to the Heritage Health TPA Pvt. Ltd.  The claim of the insured was found to be not payable and was repudiated vide letter dated 11.03.2013. It was found by the TPA that the claim was not payable because the policy carried a specific exclusion clause of all medical expenses incurred directly due to past history ailments and any consequences attributable to accelerated by or arising therefrom as per the medical history.  In the proposal form for Overseas Mediclaim Policy, which was filled and submitted by the insured, the attesting doctor Dr. Ashutosh Mathur did not endorse in coloumn 4, whether the proposer was fit to travel anywhere abroad…. condition ?  Therefore, it is clear from the proposal form that there was no consent given to the insured for travelling abroad.  A letter of Dr. P.R. Purandara dated 06.03.2013 clearly mentions in his opinion:- “Present claim is for IHD (First of PCI and then for CABG) HTN is pre-existing.  Hence the claim cannot be allowed as it falls under exclusion of Heart and Circulatory disorders.”

8.       Learned counsel for the opposite parties Mrs. Anjali Gosain argued that the insurance company rightly rejected the complainant’s claim because under the terms and condtions of the policy, the claim cannot be sanctioned/approved that the disease is pre-existing.  In the present case, the insured was suffered from mild hypertension before taking the policy in question.  In the proposal form, which was filled and submitted by the complainant, the attesting doctor Dr. Ashutosh Mathur did not endorse whether the proposer was fit to travel anywhere abroad. 

9.       Learned counsel for the complainant Ms. Anupama Gautam while replying the contention made on behalf of the opposite parties stated that it was incorrect to say that the insured had taken the policy by concealing the fact about his health.  The complainant was not recommended for any stress test by insurance company’s doctor          Dr. Ashutosh Mathur, (M.D.). 

10.     Learned counsel for the opposite parties relied upon the judgment of the Hon’ble Supreme Court in the case of Expert Credit Guarantee Corpn. of India Ltd. vs. Garg Sons International; 2013 (2) SCCD 671 (SC).  In this case, the buyer committed default in making payments towards policy.  With due respect, it is not a case of default in making the payment towards policy.  The said decision does not provide any help to the opposite party-insurance company.  

11.     Learned counsel for the complainant has cited a decision of Rajasthan State Consumer Disputes Redressal Commission, Jaipur in the case of National Insurance Co. Ltd. vs. Smt. Swaraj Jain; 2009 (1) CPR 135.  In this case, the mediclaim policy was taken on 02.04.1996 and was got renewed every year.  Insured was got admitted in hospital with chest pain and was diagnosed suffering from heart diseased. The discharge ticket mentioned that disease was suffering from hypertension, diabetes with coronary artery disease for last ten years and by-pass surgery was conducted.  No evidence or material that insured had ever taken any treatment for heart problem prior to taking medi-claim policy-suppression of fact must be conscious. In the present case, the insured had not suppressed any material fact about his mild hypertension.  Learned counsel also cited a decision of Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram in the case of N.C. Thomas vs. United India Insurance Company Ltd. & Anr.; 2008 (3) CPR 268. In this case, the mediclaim policy was taken by the complainant while travelling abroad.  While in Germany with his son, the complainant suffered heart attack and was operated for by-pass surgery in hospital in Germany.  The claim was repudiated on the ground that the complainant suppressed material fact of the suffering from hypertension for preceding 4 years. Evidence and medical record showed that by-pass surgery done was not because of reason of B.P. that existed previously.  No evidence to show that B.P. was sole reason for myocardial infarction.  Onus probandi in such cases rested heavily on party alleging suppression.  No case of opposite party that the complainant was treated for any cardial disease prior to taking the policy. Repudiation of the claim was deficiency in service. The complainant held entitled to hospital bills reimbursement.  In the present case no evidence was filed by the opposite parties that the insurer was

treated or any medicine was taken by the complainant for prior heart disease.  Mild hypertension was diagnosed by opposite parties’ doctor for which he prescribed some medicine, despite this the insured was given mediclaim policy.  Therefore, this case is not much variance from the above case.  Repudiation of the claim was deficiency in service. The complainant held entitled to hospital bills reimbursement

12.     We considered the submissions raised by the learned counsel for the parties, there is no dispute between regarding mediclaim policy for the period from 16.11.2012 to 31.02.2013, it is also not disputed that the insured had undergone by-pass surgery at National Heart Centre at Singapore.  The only dispute is in respect of the refusal of the insurance company to pay the said claim amount as it was pre-existing disease of mild hypertension. If mild hypertension caused/causes heart attack/problem, the opposite party should not issued the mediclaim policy to the complainant.  The ECG got conducted by the doctor of the insurance company clearly shows no blockage and no abnormality of heart.  Dr. Ashutosh Mathur (M.D.) refused for any stress test of the complainant.  It is clearly mentioned in the proposal form that the complainant was suggested some medicines for mild hypertension by the opposite parties’ doctor.  Despite of all enquiries, the opposite parties issued the Overseas Mediclaim Insurance Policy to the complainant.  The complainant did not hide any fact about his health.  After perusal of the record of the National Heart Centre, it is mentioned that diagnosis; principal-Ischaemic heart disease; Secondary-hypertension.

13.     By the perusal of the documents filed by both the parties, it is clearly shows that the proposal form was filled up with the consent of both the parties.  In the proposal form, it is shows that the opposite parties’ doctor Dr. Ashutosh Mathur (M.D.) has examined the insurer and prescribed medicine for mild hypertension.  From the perusal of the documents of National Heart Hospital, it is mentioned diagnosis; principal-Ischaemic heart disease; Secondary-hypertension. Except hypertension no other pre-existing disease was found.  So in our view, mild hypertension was not a critical disease, in Dr. Ashutosh Mathur’s opinion, which causes heart disease, if so, then at the time of issuing the policy, the insurance company’s doctor can deny to issue the said policy, as mild hypertension could be dangerous for health. 

14.     The above mentioned reports of the National Heart Centre also shows that the insured was unaware of any servious heart disease prior to take the policy.  Therefore, the opposite parties have wrongly inferred out that the insured had pre-existing ailment and it was in his knowledge and despite this, he had concealed this material information about his health at the time of purchasing the mediclaim policy.  On the contrary, while the opposite parties were aware that the complainant was suffering from mild hypertension, despite it the opposite parties allowed the complainant for mediclaim policy.  So it cannot take advantage merely stating that the complainant was suffering pre-existing disease to refuse the claim. 

15.     For these reasons, we are of the view that the opposite parties-insurance company had not justified in rejecting the complainant’s claim in regard to pre-existing heart disease of the complainant.

16.     On the basis of evidences filed by the parties, the complainant has proved his case against the opposite parties.  The opposite parties have caused deficiency on their part.  Therefore, this consumer complaint is liable to be allowed.  The opposite parties have already paid the claim amount of USD 3,500 (Rs. 1,88,825/-) to the complainant on accout of treatment for Dengue. The complainant is insured by the opposite parties for USD 50,000 on account of illness.  Therefore, USD 50,000-3,500= 46,500 (Rs. 26,97,500-1,88,825=Rs. 25,08,675/-) is to be paid by the insurance company to the complainant. So far the damages for mental pain and agony is concerned, we are of the view that the complainant is getting the insured amount by way of this order, therefore, no relief can be given regarding the mental pain and agony. 

17.     The consumer complaint is allowed against the opposite paties-insurance company.  The opposite parties are directed to pay an amount of Rs. 25,08,675/- to the complainant within two month from the date of this order, failing which the opposite parties shall pay this amount to the complainant alongwith interest @ 6% per annum from the date of filing the consumer complaint till the date of actual payment.  No order as to costs.