SMT. RAVI SUSHA: PRESIDENT
Complainant filed this complaint U/s 35 of Consumer Protection Act 2019, seeking to get an order directing opposite parties to pay the entire sum assured amount with associated loan account No.1807675100001342. Also to direct opposite parties to refund premium paid amount Rs.2,27,410.
Brief facts of the complaint that complainant’s son Late Mr. Kausal B Nambiar had taken loan from IDBI bank Payyannur Branch Kannur District, Kerala. Loan amount Rs.70,00,000/- with loan interest rate 8.9%. On the basis of instigation from bank, complainant’s son had taken Health Plus Insurance policy from OP No.1. Total sum assured Rs.70,00,000/- against the loan account No.1807675100001342 with effect from 17th September 2020 and cover expiry date 16th September 2025. Master policy holder IDBI bank Ltd. Insured Member Mr. Kausal B Nambiar, Death sum assured Rs.70,00,000, cover term 5 years, Premium payment term single. Total premium paid 2,27,410/-, complainant is the nominee. Insured member expired on 17/07/2021 due to cardiac arrest. Copy of death summary issued by Aster Mims Kannur. A letter dated 24th December 2021 received by complainant from OP 1 to requirement of documents for processing the claim of Mr. Kusal B Nambiar. Same day another letter from Ageas federal insurance company addressed to his daughter in law Srerekha regarding requirement of documents for processing the claim of Mr. Mr. Kausal B Nambiar against policy No.4000447041, 4000219669 and 4000190227 for outstanding loan schedule as on date of death. Insurance authority collected documents from house by relatives. On 15/11/2021 again received letter from OP No.1 repudiation of death claim of late Mr. Kausal B Nambiar under policy No.122000325797 (Master policy No.50040700201900. It is stating that Medical records of Sreechand Specialty Hospital Kannur confirm that life assured was diagnosed Cirrhosis liver and portal hyper tension is prior to insurance to this policy. Medical records of Dhanalakshmi Hospitals, Kannur also confirm that life assure was suffering from Chronic Liver disease and Hypertension prior to issuance of policy. Complainant entirely denying all your findings to declined death claim. It is submitted that in the customer declaration form dated 19/09/2021 question (s) in part V and Vi complainant’s son answered correct n my knowledge and believes. Because at that time he was in good health conditions. Complainant states that insured has no ailment prior to this insurance policy,. Also insurance company must carried out medical investigation of the insured before issuing of policy or certificate of insurance. Medical expenses also collected from insured person with premium. As per Certificate of Insurance OP 1 is liable for repayment of balance loan amount as early and release documents from OP No.2. Insured has no ailment prior to this insurance policy. Also insurance company must carried out medical investigation of the insured before issuing of policy or certificate of insurance. Medical expenses also collected from insured person with premium. Medical expenses means medical investigation charge carrying by insurance company before issuing policy or COI. Also it is submitted that in recent judgment by Hon’ble supreme court that “once the policy has been issued after assessing the medical condition of the insured, the insurer cannot repudiate the claim by citing an existing medical condition, which was disclosed by the insured in the proposal form and which condition has led to a particular risk in respect of which the claim has been made by the insured.” OPs show unfair trade practice and deficiency in service against policy terms and conditions. Hence this complaint.
The contention of the complainant were denied by the opposite parties.
After receiving notices OP No.1 filed its version stating that
OP No.1 Insurance Company has stated that the complainant’s son was a member of Health Plus insurance policy of the 1st OP of which the group master policy holder is IDBI Bank Ltd. The policy incepted on 17/09/2020 and expires on 16/09/2025. The benefit structure of the policy issued to the complainant’s son included only critical illness cover and Accidental Cover. The policy was issued to the insured on the basis disclosure to information norm, including the information provided by you in respect of the insured person/s in the proposal form and accompanying documentation.” As admitted by the complainant, the complainants’ son, had IMP ICTRES + Jaundice on 21/07/2020. It is further stated by the complainant that in the discharge summary dated 09/03/2021, it is stated “Patient is diagnosed CLD, Cirrhosis, Portal HTN –SP EVL marked since 8 months and history hypertensie treatment since 10 years.” The allegation in the complaint that the said noting is either assume of Doctor or clerical mistake of clerk at Dhanalakshmi Hospital is false and hence denied. Had the insured disclosed the fat relating to diagnosis and treatement for jaundice, the policy would not have been issued to the insured by this OP. Insured had suppressed material facts, inspite of a specific question in the enrolment form. It is submitted the the insured was suffering from chronic liver disease at the inception of the policy. The assured died on 17/07/2021, ie. within 10 months of inception of the policy due to decompensate chronic liver disease and hence this OP is not liable to compensate the complainant. The allegation in the complaint that there is unfair trade practice and deficiency in service against policy terms and conditions is false and hence denied and prayed for the dismissal of complaint.
OP No.2 is the bank, master policy holder, filed their version stating that OP2 submits that the complainant’s son the deceased Kausal B Nambiar had availed a loan of Rs.70,00,000/- with loan interest at the rate of 8.9% against loan account No.1807675100001342 on 19/09/2020. The master policy holder is the IDBI Bank Ltd. and the insured member was Mr. Kausal B Nambiar and the death sum assured was Rs.70,00,000 which cover for a term of 5 years till 16/09/2025 under the premium plan named IDBI Federal life insurance group loan secure plan with OP No.1. The single term premium of Rs.2,27,410. It is submitted that OP2 does not know the exact reason of death and the health condition of the insured during the relevant period of policy and the subsequent details furnished by the nominees and other legal heirs the OP No.1, the insurer. Therefore, prayed that OP2 is to be exonerating from the liability.
While pendency of this case OP NO.1 has taken steps to produce originals of the treatment records form Sreechand Hospital and from Dhanalakshmi Hospital. As per the said petition, original case records were produced. After that the complainant filed a petition to give directions to OP No.1 to produce certain documents. As per the petition OP 1 has not submitted all the documents as stated in the petition.
At the evidence stage, complainant has field her chief affidavit and documents. She was examined as Pw1 and the documents were marked as ext.A1 to A12. She was subjected to cross-examination for the opposite parties 1 and 2 marked as Ext.B1 and X1 case record from Dhanalakshmi Hospital, Kannur. On the side of Manager operations of Mr. Deepak R Menon, Sreechand Hospital was examined as Dw1. Marked Ext.X2 case record from Sreechand Hospital. Another witness Dr. Nidhin G J RMO, Sreechand hospital was examined as Dw2. Dw1 and Dw2 were cross examined by the complainant.
The learned counsel of OP No.1 stated that based on the information provided into the proposal form given by the insured OP No.1 issued the disputed policy dated 23/09/2020 to the Insured person Mr. Kousal B Nambiar. Further submitted that since the death of the Insured was within three years (death was on 17/07/2021), the claim falls under the category of early claims and hence the OP carefully evaluated the claim and conducted an independent investigation to ascertain the genuines of the claim. It is submitted that on investigation, it was observed that he was suffering from stomach pain in July 2020 and was on medication, Later in September 2020 he was diagnosed as a case of Chronic Liver Disease, Since then he was on regular medical attention from Dhanalakshmi Hospital, Kannur. His ultrasonogram report dated 21/07/2020 states Cirrhosis of Liver, Mild Spenomegaly, Moderate Ascites, Perishplenic collaterals and Portal Hyper Tension. His Oesophago-Gastro-Duodenoscopy copy dated 08/09/2020 mentioned indication of CLD with Grade III, II Esophageal Varicies, Mild PHG, EVL done, Six Bands deployed. The discharge summary of Dhanalakshmi Hospital dated 06/03/2021 to 09/03/2021 states that the Life Assured was known hypertensive, on treatment since 10 years and diagnosed of decompensate CLD, Cirrhosis, Portal HTN-S/PEVL Therapeutic Ascetic fluid tapping done. A letter of Dhanalakshmi hospital dated 07/08/2021 states that the Life assured was suffering from Decompensate CLD, Cirrhosis with portal Hyper tension and being worked up for liver transplantation.
It is submitted that these facts were not disclosed at the stage of proposal for the policy and on the basis of these findings; OP No.1 has rightfully repudiated the said death claim of the complainant and informed the same to the complainant vide its repudiation letter dated 15/11/2022.
The medical evidence is the medical record from Sreechand specialty Hospital Kannur and Dhanalakshmi Hospital Kannur. On a careful perusal of documents and note, that on 21/07/2020 for general weakness he went to Sreechand Hospital. The case record from Sreechand Hospital was marked as Ext.X2.
The prescription from Sreechand Hospital dated 21/07/2020 issued by Dr. Nidhin was marked as Ext.X2(a). On perusal of Ext.X2(a) the name of treated doctor mentioned is Dr. Anand M P. In the complaint also, complainant has stated that on 21/07/2020 complainant along with son Kaushal Nambiar went to Sreechand Hospital and consulted Dr. Anand due to generalized weakness and night rise of temperature. He advised to do some test and refereed to gastronologist. OP No.1 in their version submitted that on 21/07/2020, the complainant had IMP ICTRES + Jaundice). On 24/02/2021, consulted Gastro entologist Dr. Kavitha at her clinic, on 06/03/2021, again consulted Dr. Kavita and admitted in the hospital, Dhanalakshmi for CLD and discharged on 09/03/2021. In the said medical record, there is an endorsement that Diagnosed. CLD since 8 months and HP since 10 Years. After that on 16/06/2021 and on 21/06/2021 he availed treatment. On 17/07/2021, the Life Assured died. In death Summary, issued from Aster Mims shows cause of death as Decompensate CLD, Diagnosis- Pre-Hospital Cardiac Arrest.
Here, complainant denied the endorsement in the Medical record of Dhanalakshmi Hospital dated 06/03/2021 that the patient a diagnosed CLD, Cirrhosis, portal HTN, on treatment since 8 months.
It is contended on behalf of the Insurance company that the death of the life assured caused within 9 months and 24 months from the issuance of policy in question ie. Within 3 year, the claim of complainant falls under the category of early claims and hence OP carefully evaluated the claim.
It is an admitted fact that the disputed policy was issued on 17/09/2020 and Expiry date 16/09/2025.
It is also admitted fact that premium mode is single and Insurance company received premium Rs. 1,92,720+ IGST Rs.40933 ie total Rs.2,27,410 from the Life Assured Kausal B Nambiar.
In a Judgment in Life Insurance corporation of India v Sign Yadav IV(2011)CPJ130. The Hon’ble State Consumer Disputes Redressal Commission Jaipur, held that Accepting the Premium and entering into agreement, Insurance company cannot wriggle out of liability merely by saying the contract was made by misrepresentation and concealment. Insurance policies should not be issued and repudiated in such casual and mechanical manner.
It is also observed by the Appellate commission that with the fast growing business competition among the Insurance companies unhealthy practices develop to get minimum benefits and profits. The banks are also becoming part of the same trend where insurance policies are automatically attached to the bank account as an incentive to the customer.
In the instant case also IDBI Bank from where Life Assure d had taken a loan of Rs.70,00,000 with loan interest rate 8.9% and while taking the said loan, due to the interference of bank, the complainant’s son had taken Insurance from Niva Bupa Health Insurance Co. Ltd.
As per the observation of Appellate Commission in the above stated case, here also after receiving a huge amount Rs.16,30,989.66 from the Life Assured as premium after verifying the Medical reports of the Insured, repudiating the claim, by saying Suppression of Pre-existing disease in a casual manner is not a fair practice.
Here the point to be considered whether OP No.1 had proved the presence of pre-existing disease of the Life Assured undoubtedly and whether Insurance company was justified in repudiating the claim on the basis of suppression of material facts?
Complainants submission is that her son Life Assured had not concealed any illness or disease as alleged by 1st OP. It is submitted that complainant’s son Kausal B Nambiar was under treatment for liver disease prior to the policy is not correct. Complainant denied the statement of diagnosis CLD Prior to the date of issuance of policy in Medical records.
OP No.1 has taken steps to produce original case records of the Life Assured treated in the said hospital. The case records were submitted and marked as ext.X1, Ext.X2. Further OP No.1 has taken steps to summon Dr. Nidhin from Sreechand Hospital to give evidence with regard toExt.X2 (a). Dr. Nidhin was examined as Dw2. Dw2 deposed that Emergency card ൽ കാണുന്ന signature ഉം ലെറ്റർ റൈറ്റിങ്ങും നിങ്ങളുടെതാണ്? അതെ. marked as X2(a). Further Koushal Nambiar െൻറ scan report െൻറ അടിസ്ഥാനത്തിലാണ് ഇത്രയും വിവരങ്ങൾ രേഖപ്പെടുത്തിയത്? Dr. Anand ആണ് patient നെ പരിശോധിച്ചത്. File work ചെയ്തത് ഞാനാണ്. Dr. Anand െൻറ നിർദ്ദേശ പ്രകാരമാണ്. നിങ്ങൾ hospital-ലെ RMO ആണ്? ആണ്. നിങ്ങൾ specialist അല്ല? അല്ല. Impression detailed study യുടെ അല്ല? അല്ല. 1st impression ആണ്. detailed study യ്ക്ക് വെണ്ടിയാണ് higher centre ലേക്ക് refer ചെയ്തത്? അതെ. Patient, രേഖ പ്രകാരം generalized body weak ആയിട്ടാണ് Dr.Anand നെ കാണാൻ വന്നത്? അതെ. ഈ രേഖ പ്രകാരം jaundice patient ന് ഉള്ളതായി കാണില്ല? ഇല്ല. അത് ഇല്ലാത്തതുകൊണ്ടാണ്Jaundice തടഞ്ഞത് ? അതെ Cirhosis of liver and portal hypertension. അത് final ആകണമെങ്കിൽ X2(a) ൽ പറഞ്ഞ investigation test ഉം gastro endologist െൻറ opinion ഉം കിട്ടിയാൽ മാത്രമേ patient ന് cirrhosis of lever ഉം portal hyper tension ഉം ഉണ്ടോ എന്ന് പറയാൻ പറ്റുകയുള്ളൂ? അതെ. ഇപ്രകാരമുള്ള ടെസ്റ്റുകൾ നടത്തിയതായി നിങ്ങൾ കണ്ടിട്ടുണ്ടോ? ഇല്ല. Dr. Anand അപ്രകാരം കണ്ടതായി ഒരു final report ലോ നിങ്ങളോട് പറയുകയോ ചെയ്തിട്ടില്ല? ഇല്ല. unsigned report reliable അല്ല? അല്ല. From the evidence of Dw2, we cannot come to a finding that complainant was consulted Dr. Anand at Sreechand Hosptial for the complaint of Jaundice. Here OP No.1 did not examine the treated doctor of the patient from Sreecahand Hospital.
We have given thoughtful consideration to the rival contention. We have carefully gone through the documents available before us. It is seen that in Ext. X1 P.30 patient was admitted in Dhanalakshmi Hospital, on 06/03/2021 and discharged on 09/03/2021. In the discharge summary not signed by Medical officer, stated that Diagnosis Decompensate CLD, Cirrhosis, Portal HTN, Therapeutic Ascetic fluid Tappin Done; on treatment since 8 months now admitted with increased abdominal distension with ascites and A Pedal edema. No abdominal pain or vomiting. H/o Acute Gastro enteritis, treated 1 week ago. He is a known hypertensive on treatment since 10 years.
Further Dr. Kavitha MD, DM (Gastro) issued a certificate “this is to inform you that Mr.Kausal B Nambiar, 47 years, resident of Kusumam, Kappad (PO), Kannur -670006 is a diagnosed case of Decompensate chronic Liver Disease, Cirrhosis with portal Hypertension (NASH related ) with Refractory Ascites requiring recurrent Ascitic fluid Paracentesis. He was being worked up for Liver transplantation. He expired on 17/07/2021 due to cardiac arrest.
In which it is mentioned that the Life Assured expired due to cardiac arrest.
In Ext.X2 Investigation report dated 21/07/2020, produced. But it not signed by the Biochemist. So it cannot be taken into evidence.
We have considered the Medical records (Ext.X1) goes to show that he was admitted in Gastroenterology Department from 06/03/2021 to 09/03/2021. In the certificate issued by Dr. Kavaitha , gastrologist, it has been shown as death due to cardiac arrest. In the Death Summary issued from Aster Mims Hospital Kannur, it has been mentioned that cause of death Decompensate CLD. Diagnosis: Pre Hospital Cardiac Arrest.
These two certificates indicate two different opinions. Though these two certificate indicate that the Life Assured was a diagnosed case of Decompensate. Chronic liver Disease, these certificate do not indicate that he was admitted in Hospital and treated for Liver disease.
The insurance company should have taken steps to produce the original treatment records from the concerned hospital and examine the treated doctor and proved undoubtedly that he patient (Life Assured) had been suffering from CLD and diagnosed it by a competent Medical practitioner, prior to the issuance of policy in dispute. The Hon’ble High court of Kerala in a judgment in Star Health and Allied Insurance Company Ltd vs. V.P.Santhosh Menon 2020(1)KLJ 71 “ Redressal of Public Grievances Rules ,1998-Rules 14(2)- Rejection of medical insurance claim for the reason that insure contracted disease within 30 days of commencement of policy- A disease can be said to be contracted for the purpose of insurance claim, only when after diagnosis it is clinically found that the patient is suffering from the disease. The symptoms related to the disease may be in existence for long periods prior to the diagnosis and the symptoms may be within the knowledge of the patient. For the purpose of an insurance claim, a disease can be said to be contracted only when it is diagnosed by a competent physicians and confirmed”
The learned counsel of complainant submitted that as they objected the investigation report, the contentions of the document has to be proved by examining any of the authorized person of those agency. The learned counsel submitted two judgment of Hon’ble High court of Kerala. KT 2013 Vol 1 page 293. The OP ought to have examined the concerned person who had filed the Ext.B10 document (Annexure G (Colly) as mentioned in the written version of OP) Moreover as per the decision reported in 1999 KHC 1091, if the OP is not adducing any oral evidence in tune with their document and the complainant is not getting an opportunity to confront the contents of the documents, and in that circumstances there is no evidentiary value for those documents. This fact has been upheld by the above decision.
Hence as stated in the judgment mentioned above, accepting the premium and intending into agreement, Insurance company cannot wriggle out of liability merely by saying the contract was made by misrepresentation and concealment. Insurance policies should not be issued and repudiated in such casual and mechanical manner. The Appellate commission found that it is further exploitation of customer and more or less fraud on public.
In the instant case, though in Ext.A1 Insurance certificate, OP No.1 company issue a letter specifically stated that this cover has been issued on the basis of the medical statement, habits, and lifestyle details confirmed by you in the member enrolment from Declaration of good health and the reports, of our medical tests undertaken of the cover, as applicable”, OP No.1 could not repudiate the claim on the basis of investigation report and past history statement. Before issuing these type of policies of high amount, after receiving huge amount of premium from the customers, the OP company should have taken medical examination and past history of them.
The learned counsel of OP No.1 has submitted a number of citations of appellate commission. But in this case our view is that as the life assured amount is huge, OP company ought to have examine the insured medically and check his past history.
Hence from the facts and circumstances of this case, complainant is entitled to get relief from the Insurance Company OP No.1. As far as OP NO.2 bank is concerned, though Bank (OP No.2) insisted the Life Assure to take policy and became Master policy holder, we can see that there is no deficiency in service on the part of OP No.2. They had complied their part by sending the documents and premium amount of complainant’s son to the insurance company without any delay.
In the result complaint is allowed in part. Opposite party No.1 is directed to pay the entire Death Sum assured amount Rs. 70,00,000 to the complainant and opposite party No.2. Opposite party No.1 shall pay the existing due amount as per the loan statement pertaining to the loan amount of Rs.70,00,000 taken by the loanee Mr. Kausal B Nambiar against loan account No.1807675100001342 on 23/09/2020 to opposite party No.2. The balance amount shall be paid by opposite party No.1 to the complainant (co-borrower). Opposite party No.1 is also directed to pay Rs.1,00,000/- towards compensation and Rs.10,000/- towards cost of the proceedings of this case to the complainant. Opposite party No.1 shall comply the order within one month from the date of receipt of the certified copy of this order. Failing which the awarded amount Rs.70,00,000+1,00,000 will carry inters @4% per annum from the date to order till realization. Complainant can execute the order as per provision in Consumer Protection Act 2019.
Exts.
A1-Copy of Insurance certificate
A2-Copy of death certificate issued by Aster Mims
A3- Death certificate issued by Chembilode Gramapanchayat
A4- Repudiation letter
A5-Copy of letter sent by complainant to OP
A6- Postal receipt
A7- Copy of e-mail sent by complainant to OP
A8- Copy of e-mail sent by OP to complainant
A9- Copy of e-mail sent by OP to complainant
A10-Letter issued by IDBI to complainant
A11- Insurance policy application
A12-Insurance certificate
B1 - Proposal form
X1-Case records from Dhanalakshmi hospital Kannur
Pw1-Suma B N- Complainant
Dw1-Deepak R Menon-Witness of OP
Dw2-Dr.Nidhin G J-Witness of OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forwarded by order/
Assistant Registrar
