BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 30^thDAY OF NOVEMBER 2024

ORDER

SMT. K. ANITA SHIVKUMAR, MEMBER

1. Complaint filed under section 35 of Consumer Protection Act 2019, seeking direction to OP to refund the entire amount of Rs.2,33,844/- as a compensationfor mental agony, deficiency of service by OP, cost of litigation and such other relieves.

2. Brief facts of this case are as follows:-

Complainant is resident of Bangalore, has purchased the Health Insurance Policy from SBI General Insurance Company ltd., registered at Mumbai.One of the officials of SBI branch Vidhana Soudha, explained about the salient features of Arogya Sanjeevini policy of SBI General Insurance. As the complainant found that above said policy met all the requirements, has decided to obtain the policy. Hence complainant has taken the aforesaid SBI General Insurance policy from 29/12/2020 to 28/12/2021 for sum of Rs5,00,000/-, covering the complainant and his wife.

The said policy was renewed for the forthcoming years of 2021 to 2022 and 2022 to 2023.Before issuing the policy, officials of OP Company called him and his wife over a phone, sought the details of present health condition and health history of both the policy holders.After obtaining the entire health history and condition of present health, OP Company has issued the policy.

3. Complainant stated that on 26/12/2020, wife of complainant went for health check-up, as she felt there was a tiny lump in her left breast. The doctor advised her to go for the USG and mammography tests. Accordingly both tests were taken from Raghav Diagnostic centre and obtained report. As per the USG report, there was the small fibro adenoma which is benign in nature and in the mammogram the result was negative. After going through the test reports, doctor told that there is a very mildbenign lump but doesn’t require any medication or treatment as the same will disappear on its own. Doctor also told that this is very common to many ladies, will have the issuepost menopause period and not to worry about the same.

4. During March 2021, complainant’s wife again went for check-up as she found that there was some disturbing pain in her left breast and on a clinical test for Histopathology. It was found out to be breast cancer. Doctor then decided the pattern of treatment and advised her to go for a few cycles of chemotherapy, Radiotherapy, surgery and post-surgery again a few cycles of chemotherapy. Accordingly she took chemotherapy and Radiotherapy in Shankar Hospital. Surgery was carried out in HCG Hospital Bangalore.The Hospital bill for the above treatment was approved and informed to the respective hospitals directly by the TPA under the corporate policy cashless system. Complainant further stated that after the surgery his wife again had to undergo chemotherapy treatment. She accordingly took chemotherapy for few cycles in Shankar Hospital incurring an amount of Rs.2,33,844/-. As the sum insured in corporate policy had exhausted by then, she preferred the above claim with the SBI General Insurance for reimbursement for the claim, as they didn’t consider cashless claim. TPA insurer rejected the claim stating that complainant’s wife had preexisting disease which was not disclosed at the time of taking the policy. Complainant submitted the representation to the grievance cell of insurance company, was not considered and rejected the claim as well.Complainant stated there was no symptom of any health issues when she went for checkup in the year 2020 and also had any Iota of doubt of inherent risk of any health issue, present or future. Therefore, doctor not prescribed for medicines or treatment. In case of any serious health issue doctor would have prescribe for further treatments and medication. He also would have taken health insurance policy for bigger sum then the present sum insured of Rs.5,00,000/-. At the time of taking the policy complainant’s wife has good health, no health issues with regard to the treatment. He further stated that the benign lump in all cases need not turn into cancer as per doctors opinion. Doctor opined in the beginning that it is a very common in ladies without the medication and treatment, the lump will disappear on its own.Complainant alleged that the OP has rejected the claim on suppression of material facts while obtaining the insurance policy in the year 2020 which is unreasonable, rejected the claim caused mental agony. Hence this complaint.

5. OP appear through its counsel and filed their statement of objections. OP denied the averments made in the complaint, in their version. At the same time, OP admitted issuance of the policy from 2020 and its validity at the time of claim. OP even admitted the claim of the complainant for Rs.2,33,844/-, which was repudiated by well-reasoned claim denial letter. After scrutinizing the claim documents, according to the radiation treatment summary from Shri Shankara Cancer hospital dated 16/10/2021 and prescription given by Dr. Soumya Holla (Holla Breast Centre) dated 30/03/2021. The Insured was assessed for lump in the left breast in December 2020 itself. The Ultrasonography report dated 26/12/2020 revealed a well-defined hypo echoic ovoid solid intraglandular lesion before the policy inception. OP admitted that the first policy inception dated 29/12/2020. Hence the above condition is pre-existing disease within the meaning of above policy.The definition of “Pre-existing Disease” under the policy include any condition, ailment or disease its complication /extension of an already diagnosed. As per terms and conditions of the policy, expenses related to the treatment of a pre-existing Disease (PED) and its direct complications shall be excluded until the expiry of 48 months of continuous coverage after the date of inception of the first policy.

6. OP stated that insured has not disclosed the facts about past history of a left breast lesion. As per the terms and conditions of the policy, in such non-disclosure of a material facts, policy shall be void and premium paid shall be forfeited to insurer in the event of misrepresentation. Hence the claim of the complainant was repudiated on well-reasoned denial letter. For the sake of reconsideration of a claim, complainant has filed this complaint before this commission, is liable to be dismissed with cost.

7. At this stage complainant adduced affidavit evidence by filing affidavit. In support to that complainant filed 10 documentary evidence along with certificate under section 65 (b) of Indian Evidence Act, which are marked as Ex.P.1 to Ex.P.10.One HaleshC, is authorized to lead evidence on behalf of OP. Hence the affidavit filed by the authorized person of OP Company has taken on record. In support to the evidence OP filed 6 copies of documents which marked as Ex.R.1 to R.6. Both the parties filed their written evidence. Heard the complainant and perused the materials on record.

8. On the basis of above pleadings for our consideration are as follows:-

i) Whether the complainant has proved the deficiency of service on the part of OP?

ii) Whether complainant is entitled for the relief?

iii) What order?

9. Our answers to the above points are as follows:-

                        Point No.1:- Affirmative.

                        Point No.2:- Partly Affirmative.

                        Point No.3:- As per the final order.

REASONS

10. Point No.1 and 2: These points are inter-connected to each other and for the sake of convenience, to avoid repetition of facts, these points are taken up together for common discussion.

11. After perusal of pleadings and materials on record, it is undisputed that complainant has obtained health insurance policy from OP bearing policy No.0000000020645142-02. Complainant and his wife are insured for Rs.5,00,000/- each from 29/12/2022 to 28/12/2023 which is at Ex.R.3.Complainant has paid premium of Rs.29,807/- to obtain the said policy. As complainant stated that he has taken insurance in the year 2020 and it is renewed for the year 2021 to 2022 and 2022 to 2023.Here we can observe that OP has not taken contention against the existence of the policy and the coverage. Here the dispute arised only with regard to the honor of claim of the complainant when the complainant’s wife was underwent the treatment surgery for the breast cancer.OP has repudiated the claim on the reason that the complainant has not disclosed the past history of the health of both insured especially complainant’s wife. As complainant stated in his complaint that his wife got examined on 26/12/2020 when she felt tiny lump in her left breast. Doctor advised her to go for ESG and momography test.The report obtained after testing at Raghav’s Diagnostic centre which is at Ex.P.2 dated:26/12/2020. After obtaining the report, complainant and his wife taken doctor’sadvise. They told that there is very mild benign lump, doesn’t require any medication or treatment as the same will disappear on its own. He also told, it is common to many ladies. After getting such advise from doctor concerned, complainant’s wife got some disturbing pain in her left breast in March 2021. Thereafter, doctor advised her clinic test for histopathology, which found out to be breast cancer. At the same time doctor decided the pattern of treatment and advised her to go for few cycles of chemotherapy, radiotherapy, surgery and few cycles of chemotherapy in the post-surgery stage.Accordingly complainant’s wife started taking chemotherapy on 02/12/2021, 23/12/2021, 13/01/2022, 03/02/2022, 24/02/2022, 17/03/2022, 07/04/2022 at Shankar Cancer Hospital and
Research centre, which are at Ex.P.3 to Ex.P.9.after the treatment and surgery, complainant has submitted his proposal form before OP company for reimbursement of a bill amount of Rs.2,33,844/-. OP did not take any action to reimbursement claim of the complainant even after several email communications. Which are at Ex.P.1.Whenever complainant asked to settled claim, OP used to send message that complainant has to produce some relevant documents for settling it but even after sending the documents as sought by OP.OP did not reimburse the amount. Per contra OP repudiated the claim on the ground of complainant has not disclosed the relevant facts before obtaining the insurance policy dated:31/03/2023, which is at Ex.R.6.

12. In our considered view, the policy has issued by OP was supposed to obtain medical examination report prior to issuance of the policy. Since it is a health insurance policy, the medical report or medical history of the insured is very essential to obtainfrom OP side. Moreover, complainant and his wife are above the age of 60 during the purchase of an insurance policy. OP was very cautious to get their medical report before issuance. It is the mistake committed by OP,is evident that OP has avoided deliberately to take their medical report before issuance of a policy only with an intention to reject the claim if any time comes before them. It is very easier to reject the claim on such silly technical reason to honour the claim. If OP has obtained such medical report earlier this situation will not arise. At this stage OP is shifting their liability on the shoulder of complainant. Therefore, OP has to reconsider the claim of the complainant, is objective of this complaint.

13. As complainant stated the earlier stage of checkup sometimes will not give accurate result or accurate findings when the complainant’s wife has visited. When OP has not disputed about the existence of policy that too since 2020, complainant has renewed for 3 years by paying appropriate premium towards the health coverage.In general, Health Insurance policy having an objective of covering forthcoming health risks for insured. With that intention complainant has taken the policy and claimed for reimbursement of bill amount which is reputed by OP, is unjust and unfair. Hence complaiantn is entitled for reimbursement, for the deficiency of the service in not obtaining medical report at the age of 60 and also not honouring the claim of the complainant on silly grounds, for which OP is held responsible, not complainant. Onus on OP to get previous medical history of Insured person before entering into an agreement, is held liable to honour the claim of the complainant in this present case.On this above reason, complainant has proved the deficiency of service by OP and is entitled for reimbursement of Rs.2,33,844/- and compensation of Rs.30,000/- and litigation cost of Rs.5,000/-. Hence we answered for Point No.1 & 2 affirmative and partly affirmative respectively.

Point No.3: In view of the discussion referred above, we proceed to pass the following:-

:ORDER:

1. Complaint filed by the complainant under section 35 of the Consumer Protection Act 2019, is allowed in part.
2. OP is directed to reimburse Rs.2,33,844/- to the complainant with interest at the rate of 8% per annum from the date of claim till realization.
3. OP is further directed to pay Rs.30,000/- towards compensation and Rs.5,000/- towards cost of litigation within 30 days from the date of order, failing which OP shall pay interest at the rate of 10% per annum on above award amount from the date of order till realization.
4. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 30^THday of NOVEMBER 2024)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;