SMT. RAVI SUSHA: PRESIDENT

This complaint has been filed by the complainant U/s 12 of Consumer Protection Act 1986 for getting an order directing the opposite parties to pay Rs.1,65,000/- to the complainant together with cost of the complaint.

            The case of the complainant in brief is that the complainant took Medi-claim policy from the OPs with policy No.571100/48/09/850001678 dated 14/01/2010 for the policy period from 14/01/2010 to 13/01/2011 and thereafter the policies were renewed.  While so the complainant felt right knee pain and was taken to Malabar Institute of Medical Science LTD, Kozhikode on 20/11/2015 and he was admitted there till 14/12/2015, there the complainant met with the medical expense of more than 1,15,000/- and therefore the complainant made claim for 1,15,000/- to the OPs but  repudiated on the following  reasons. a) The claim is not payable under 4.1 clause b) Policy was taken only from 2012 onwards, c) there is break of policy for 26 days, d) the complainant had similar complaint in 2009.

It is submitted that there is no merit in the reasons adopted to repudiate the policy and such conditions are not seen enumerated in policy agreement.  So the repudiation is illegal.

The policy is in force from 14/01/2010 onwards and it was not commenced in the year 2012 as alleged.  There is no clause in 4.1 to repudiate the claim for the reasons alleged.  The delay caused in renewing the policy is not a ground to repudiate policy.  In fact the premium was collected by the agent of the OP within time before 5 days from its expiry and it may not be paid by the agent within time and for which the complainant is not responsible and in fact the OPs and their agent alone are responsible.  There is deficiency of service on the part of the OPs.  The OPs are liable to pay claim made by the complainant and they have no right to repudiate it.  Hence the complaint.

            After service of notice, OPs appeared through their counsel and filed version contending that the complaint is not maintainable either under law or facts and hence the same is liable to be dismissed.  It is submitted that  the complainant took a Medi claim insurance policy from the OPs’ insurance company covering the risk of the complainant and his family for the following period 1)571100/48/09/8500001678 dated 14/01/2010 to 13/01/2011, 2)571100/48/10/8500001647 dated 14/01/2011 to 13/01/2012, 3) 571100/48/11/8500001685(policy was lapsed) dated 08/02/2012 to 07/02/2013, 4) 571100/48/12/8500001593 dated 08/02/2013 to 07/02/2014, 5) 571100/48/13/8500001490 dated 08/02/2014 to 07/02/2015, 6) 57110048/14/8500001153 dated 08/02/2015 to 07/02/2016, 7) 57110048/15/850000993 dated 08/02/2016 to 07/02/2017.

            The OPs specifically deny their liability to pay the claim amount to the applicant, since as per the discharge summery issued from the MIMS Hospital Kozhikode, it is understood that the complainant has put forward the claim for the treatment of mediodosis right knee in the year 2015, for which he had previously undergone the treatment in the year 2009, which is prior to the inception of the insurance policy for the 1^st time and the insurance policy was taken by the complainant for the 1^st time, by willfully and fraudulently suppressing the fact that he was suffering from the disease prior to the very inception of the policy.  Hence as per condition No.5 of the insurance policy the OP is not liable to pay for the treatment expense to the complainant since the policy is void as per the said condition.

This OP is not liable to reimburse the medical expenses of the complainant as per the exclusion NO.4.1 of the insurance policy, since the treatment, expenses incurred by the complainant during the period of policy from 08/02/2014 to 07/02/2015 is for the pre-existing disease of the year 2009 to the complainant.  This OPs are not liable to pay any amount to the complainant as per exclusion No.4.1 of the insurance policy since the continuity of the policy was broken on 13/01/2012 ie the date of its expiry and a new policy was taken after 26 days and the new policy was issued with effect 08/02/2012 to 07/02/2013.  Hence the continuity of the policy was broken.  Therefore the complainant is not entitled to claim for the reimbursement of the insurance amount as per the terms and conditions of the insurance policy.  The allegation in the complaint that the OPs have committed deficiency of service and unfair trade practice by repudiating the claim of the complainant is not correct.  Hence prayed for the dismissal of complaint. 

            In order to substantiate the complainant averments, complainant filed the affidavit in evidence and produced some documents.  Complainant was examined as Pw1 and the documents were marked s Ext.A1 to A6.  OPs have also filed affidavit evidence and produced some documents.  He was examined as Dw1 and the documents were marked as ext.B1 to B11.

            After that the learned counsels of complainant and OPs filed their written argument notes.

            The admitted fact is complainant took medi-claim policy from OPs with policy No.571100/48/09/8500001678 dated 14/01/2010 for the policy period from 14/01/2010 to 13/01/2021 and thereafter the policy was renewed form14/01/2011 to 13/01/2012, then from 08/02/2012 to 07/02/2013 and from 08/02/2013 to 07/02/2014 till 07/02/2017.  Further complainant was admitted at Malabar Institute of Medical science Ltd. Kozhikode on 20/11/2015 for the treatment of right knee pain till 14/12/2015.  Further for the treatment expense complainant has spent Rs.1,15,000/- and the complainant made a claim for  Rs.1,15,000/- to the OPs.  Further the said claim was repudiated by OPs through Ext.A3 with reason that “As per discharge summary, patient is having similar complaint in 2009.  But the policy since 2012 only.  Hence the claim is not payable under 4.1 clause as per the policy terms, conditions and exclusions”.

            Complainant alleged that the repudiation of the claim made  by the OPs is illegal.  Because policy was in force from 14/01/2010 onwards and it was not commenced in the year 2012 as alleged by the OPs.  Further the reasons alleged by OPs as per clause 4.1 of policy condition is not correct.  Complainant stated the premium was collected by the agent of the OP within time before 5 days from its expiry and it may not be paid by the  agent within time and for which the complainant is not responsible.  Complainant contended that OPs are liable to pay his claim amount made to them.

            On the other hand OPs contended that the complainant had previously undergone the treatment for the same disease mediodosis right knee in the year 2009 which is prior to the inception of the insurance policy for the 1^st time.  OPs further contended that complainant had willfully suppressing the fact that he was suffering from the decease prior to the very inception of the policy and hence as per condition No.5 of the insurance policy, the policy is void and OP is not liable to pay for the treatment expense.  Further contended that since the decease is a pre-existing disease of the year 2009 to the complainant as per exclusion clause No.4.1 of the policy OPs is not liable to reimburse the medical expenses to the complainant since the policy was broken on 13/01/2012 and a new policy was taken by the complainant after 26  days ie with effect from 08/02/2012 to 07/02/2013.  According to OP, as per the relevant policy for the period the grace period is only 15 days and not 30 days.  OPs have stated that the contention of the complainant that the grace period is 30 days for renewal from the date of expiry is not correct and based on the said condition complainant is not entitled to get relief from OP.

            Here both parties produced policy terms and conditions (Ext.A2 and Ext.B1).  On analyzing the policy terms and conditions.  Sec.5(1) states: Disclosure  to information norm:- The policy shall be void and all premium paid hereon shall be forfeited to the company, in the event  of misrepresentation, mis-description or non-disclosure of any material a fact.  Further clause 3.4.  Break in policy occurs at the end of the existing policy period when the premium due on a given policy is not paid on or before the renewal date or within 30 days of grace period.  Further clause 3.34 waiting period means a period from  the inception of the 1^st Policy during which specified diseases/ treatment is not covered. On completion of the period diseases/ treatment will be covered provided ‘the policy has been continuously renewed, without any break’.  Clause 5.16 Renewal of policy:  The policy may be renewed by mutual consent.  The company is not bound to give notice that it is due for renewal. In the event of break in the policy a grace period of 30 days is allowed.  Further exclusion clause 4.1:- pre-existing diseases:- All pre-existing diseases when the cover incepts for the first time until 48  months of continuous coverage (4 years) has elapsed. The above said conditions are the important conditions with regard to this case.

            1^st point to be decided is whether as per clause 5 of the insurance policy (Ext.A2, B1) the policy shall be void? According to OPs there is a material suppression made by the complainant at the time of inception of the policy.  OPs contended that as per the discharge summary issued by MIMS Hospital (Ext.B8) from where the complainant had undergone treatment in question, History of Mediodosis (2009).  Hence from Ext.B8, it is a fact has a history of mediodiosis during 2009 ie before inception of 1^st policy ie the complainant has pre-existing disease.  Here OPs does not have case that except non-disclosure of           pre-existing disease in the proposal form no other misrepresentation or misdescription have been made by the insured.  With regard to the said point, our considered view is that the non-disclosure of pre-existing disease in the proposal form, the policy cannot be declared as void, because, there is a provision in the particular policy clause 4.1 states that even though the insured has pre-existing disease, if the said disease occurs after the waiting period of 48 months of continuous coverage, the insured will become eligible for claim benefit ie treatment expenses.  Hence our view is that the policy shall not be void.

            Here it is real fact that the complainant availed the treatment for meliodosis right knee joint from MIMS Hospital on 20/11/205 ie after 4 years from the inception of policy.  Further it is a fact that the 3^rd policy was renewed on 07/02/2012 after submitting new proposal and declaration instead of 14/01/2012 ie there is a delay of 26 days.  OPs vehemently contended that as per the policy there is a grace period of only 15 days from the date of the lapsing of the same and the same was not renewed within the grace period.  Hence a fresh insurance policy was issued to the complainant from 08/02/2012 to 07/02/2013.   Here as per Ext.B1 and Ext. A2 medi-claim policy taken by the complainant for himself and for his wife, as per clause 3.10 grace period clearly states that 30 days immediately following the premium due date.  There is no dispute that the policy terms and conditions supplied by the OP to the complainant along with the policy certificate is Ext.A2.  Hence insured is bound by the terms and conditions of the insurance policy supplied to him.  It is seen that complainant had joined the policy with OP again on 07/02/2012 within the grace period.

            Hence from the aforesaid facts, the repudiation of the claim application of the complainant by OP through Ext.B9 letter is not justifiable.  Hence there is deficiency in service on the part of OP.  It is also a fact that this is the 1^st claim application of the complainant after taking the present medi-claim policy.  Considering the facts a stated above, complainant is entitled to get the meidiclaim policy benefit ie treatment expense incurred to him for availing the treatment mentioned in this compliant based on the policy.

            It is pertinent to be noted that the sum assured as per the policy is Rs.1,00,000/-.  Ext. A6 the discharge bill shows that the total bill amount of the treatment  was 1,42,602.17.  Since the sum assured is Rs.1,00,000/-, the complainant is entitled to get only Rs.1,00,000/-.

            In the result complaint is allowed in part.  Opposite parties are directed to pay Rs.1,00,000/- to complainant as policy benefit claim for the treatment available by complainant, together with Rs.10,000/- towards cost of the proceedings of the case, within one month from the date of receipt of this order.  Failing which Rs.1,00,000/- carries interest @ 9% per annum from the date of this order till realization.  Complainant is at liberty to file execution application against the Opposite parties for the realization of the awarded amount as per provisions stated in Consumer Protection Act 2019.

Exts.

A1- copy of insurance policy (7 in numbers)

A2-Policy terms and conditions

A3&A4-Repudiation claim

A5-Letter issued byOP

A6(series)-Discharge bill from MIMS,Calicut(3 in numbers

B1- Policy terms and conditions

B2&B3- copy of policy

B4&B5-Duplicate schedule

B6&7- Duplicate schedule

B8- Discharge summary of MIMS

B9-Letter issued by OP2 to complainant

B10-mediclaim individual

B11-Regulatory changes in health insurance of OP

Pw1-Complainant

      Sd/                                                                          Sd/                                                     Sd/

PRESIDENT                                                                   MEMBER                                                   MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

/Forward by order/

Assistant Registrar