Tamil Nadu

StateCommission

FA/34/2018

C.N.Manoharam - Complainant(s)

Versus

Star Health and Allied Insurance Co Ltd., - Opp.Party(s)

K.Kumaran-Applt

11 Nov 2022

ORDER

 IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:   Hon’ble THIRU. JUSTICE R. SUBBIAH     :     PRESIDENT

                              THIRU R VENKATESAPERUMAL :      MEMBER

 

F.A. No. 34 of 2018

(Against the order passed in C.C. No.1 of 2016 dated 12.12.2017 on the file of the D.C.D.R.F., Chengalpattu.

 

Friday, the  11^th day of November 2022

 

C.N. Manoharan

No.15 B/1, Sheikpet Nadu Street

Kanchipuram – 631 501.                            .. Appellant/ Complainant

 

    

- Vs –

 

1. Star Health & Allied Insurance Co. Ltd.

    Rep. by the Manager

    Area Office at MKM Chambers

    1^st Floor, No.42,

    Kodambakkam High Road

    Nungambakkam,

    Chennai- 600 034.                                

 

2. Star Health & Allied Insurance Co.Ltd.

    Rep. by the Manager

    Branch Office at

    No.131/53, KBJ Geetha Towers

    Kamarajar Street

    Kanchipuram-631 501.                           ..  Respondents/

                                                                        Opposite Parties

 

Counsel for Appellant/ Complainant                     : M/s. K. Kumaran

 

Counsel for the Respondents/Opposite parties      : M/s.Vijayaraghavan

                                                                 

               

        This appeal has come before us for final hearing today, on 11.11.2022 and on hearing the arguments of the counsel for both the parties and on perusing the material records, this Commission made the following :-

 

O R D E R

 

R.SUBBIAH J., PRESIDENT  (Open Court)

                1.     This appeal has been filed under Section 15 of the Consumer Protection Act, 1986 as against the order passed in C.C. No.1 of 2016 dated 12.12.2017, by the District Consumer Disputes Redressal Forum, Chengalpattu, dismissing the complaint filed by the Appellant herein. 

 

                2.  The case of the complainant is that he is a mediclaim policy holder namely, Senior Citizens Red Carpet policy of the opposite party company continuously for 3 years, from 11.08.2012 to 10.08.2015.  The subject matter policy bearing No.P/111100/01/ 2015/002794 is for the period from 11.08.2014 to 10.08.2015, covering disease as well as injury.  Since he was suffering from high fever of more than 104 degrees and cough, the complainant was admitted in Sri Ramachandra Medical College, Chennai.  It was diagnosed that he is having community acquired pneumonia.  The complainant was given treatment in ICU for 5 days in Sri Ramachandra Medical College, Chennai.  Then the complainant was shifted to G.Kuppusamy Naidu Memorial Hospital, Coimbatore for logistical reasons.  Meanwhile the complainant had applied for cashless hospitalisation in both the hospitals, under Claim Nos. 0077972 and 0082027 respectively.  The complainant was a known Diabetic and Hypertensive and was under medication for the same and he had also mentioned about both these pre-existing diseases in his proposal form in the year 2012.  But, based upon the notes dated 27.02.2012, of the consultant Doctors in the records of G.Kuppusamy Naidu Memorial Hospital, which was not shown to the complainant and the discharge summary dated 02.07.2015 of GKNM Hospital, the medical team of the opposite parties had observed that the complainant was suffering from OSA (Obstructive Sleep Apnea) for 3 years and COPD (Chronic Obstructive Pulmonary Disease) for the past 20 years.  The complainant was accused for not having informed of these pre-existing diseases at the time of inception of his policy in the year 2012 and that it amounts to misrepresentation/non-disclosure of material facts.  On that reasoning the claims of the complainant were repudiated.  Further, the opposite parties cancelled and refused to renew the policy from 10.08.2015 and thereby the complainant had lost the continuity benefits, under the policy from the year 2012.  As per the policy conditions of the opposite parties, pre existing disease will be covered under the policy only after one year of inception of the policy.   In respect of other Insurance companies, the pre-existing diseases will be covered only from the 4^th year of inception of policy.  The complainant is aged about 65 years and hence the other insurance companies refused to issue or accept his proposal for new policy.  In fact, only when the complainant received queries from the opposite parties regarding his health status, the complainant came to know that he had been suffering from COPD.  The complainant was totally unaware of the said disease and he neither underwent any treatment nor had any complaints regarding the same.  Hence, when the opposite parties asked the complainant to furnish the details about the COPD problem and its first diagnosis, he could not furnish the same.  The Chest X-rays and CT Scans taken in Ramachandra Medical Centre were conclusive of community acquired pneumonia on the first diagnosis, which is an acute infection of the lungs and not due to COPD.   But his claim for cashless benefit at SRMC was denied stating that MRI scans showed signs of long standing respiratory disease and the duration of COPD could not be ascertained.  But, no MRI was taken for the complainant and only CT scan was taken which reports more in terms of acute pneumonia only.  The hospital Doctor who treated the complainant had also diagnosed as pneumonia and COPD was found only on additional diagnosis.  When the complainant was shifted to GKNM Hospital at Coimbatore for logistical reasons, he discussed about the denial of his cashless claim at the previous hospital.  During the course of such discussion, the hospital sources informed him that he had been already diagnosed that he was having COPD in the year 2012, when he visited the hospital for a health check up with Dr.Rajpaul, Cardiologist.  The Cardiologist then advised him to do routine blood tests, ECG, Echo, other tests and also asked him to consult a Pulmonologist.   The Pulmonologist asked the complainant to do a PFT Test which was done.  However, the complainant was neither informed about this CPOD nor was advised to take any treatment for the same.  Only in the hospital records it was recorded but the complainant was not informed of the same.  He was referred back to Dr.Rajpaul, who prescribed medicines for his Diabetes and hypertension.  After being admitted in GKNM Hospital, the complainant had asked his daughter to send a letter to the opposite parties, narrating the said facts and that if he was aware of the COPD problem, he would have certainly disclosed about CPOD also, as he mentioned about Diabetes and Hypertension, in his proposal form in the year 2012 and during the subsequent years 2013, 2014 and 2015.  On the basis of the letter sent by his daughter, his cashless claim was initially approved for a limit of Rs.10,000/- but subsequently it was withdrawn on the ground of non-disclosure of major ailment, when his final discharge summary and bills had been sent to the opposite parties.  In the claim rejection letters of the opposite parties it has been stated that in the Discharge summary of GKNM, it has been mentioned that COPD is present on the complainant for 20 years.  But, it is only a clerical mistake committed by a Junior Doctor and the same has been corrected by Dr.Sundarakumar, Pulmonologist as 3 years and in the Discharge summary issued to the complainant, it has been mentioned that COPD is present only for the past 3 years.  A letter has been given to that effect from the hospital duly signed by Dr.Sundarakumar, to the complainant.  The complainant had sent all Test reports and CT reports to the opposite parties.  A scanned copy of CT was also sent from GKNM Hospital when he applied for cashless claim.  In response to the query raised by the opposite parties as to when COPD was initially diagnosed, the complainant requested and obtained the hospital records showing the diagnosis of COPD from the Hospital and had submitted to them.  It proves that the complainant had no intention for deliberate non disclosure of material facts.  Though the complainant had duly complied with all the terms and conditions of the policy, the opposite parties have rejected the claim without any basis.  The burden lies on the part of the opposite parties to prove that the complainant had been suffering from COPD before inception of the policy.  The act of the opposite parties purely amounts to deficiency of service in terms of Section 2(1)(g) and unfair trade practice as contemplated under the provisions of the Consumer Protection Act, 1986.    Hence, he has come forward with the complaint, seeking the following directions to the opposite parties:

1. To pay the medical expenses of Rs.4,00,000/- with interest @ 18% p.a;
2. To revive/renew the policy for the period 10.08.2015 to 10.08.2016;
3.  To pay the damages to a tune of Rs.10,00,000/- to the complainant towards mental torture, harassment and mental strain;
4. To pay a sum Rs.50,000/- as cost of the complaint; and
5. To allow the claims of the complainant and further revoke the cancellation of the policy with all continuity benefits available.

                3.  Resisting the complaint, the 1^st Opposite party had filed a written version, which was adopted by the 2^nd opposite party stating that the complaint itself is an abuse of process of law.  The complainant had availed Senior Citizen Red Carpet Insurance Policy Nos. P/111100/01/2013/002873, P/111100/01/2014/003173 and P/111100/ 01/2015/002794 for the period 11.08.2012 to 10.08.2013, 11.08.2013 to 10.08.2014 and 11.08.2014 to 10.08.2015 respectively, for a sum assured of Rs.3,00,000/- with the opposite parties, for reimbursement of medical expenses.  The policy is contractual in nature and the claims arising therein are subject to the terms and conditions forming part of the policy.  The terms and conditions of the policy specifically states that the Insurance Company is not liable to pay in respect of a claim, if there is any misrepresentation and non disclosure of material fact by the insured to the insurer. The complainant had accepted the policy on executing the proposal form, being fully aware of such terms and conditions and by agreeing to the same. The complainant being an Advocate had suppressed the material facts and had filed the complaint.  The complainant was admitted in Sri Ramachandra Medical College on 23.06.2015 and was discharged on 27.06.2015.  The hospital authorities raised a request for cashless facility for treatment of Left LI Cap/ Respiratory Sepsis along with the past medical history of the complainant but the claim was denied, since the complainant had not disclosed the fact that he was diagnosed with OSA and COPD and that PFT was also done on 13.02.2012.  The complainant got admitted in G.Kuppuswamy Naidu Memorial Hospital on 28.06.2015 and was discharged on 02.07.2015.  The discharge summary dated 02.07.2015 of G.Kuppuswamy Naidu Memorial Hospital also revealed that the complainant is a known case of COPD for 20 years. Hence, the claim No.0077972 dated 27.06.2015 of the complainant for taking treatment in Sri Ramachandra Medical College Hospital and claim No.82027 for the treatment taken in G.Kuppuswamy Naidu Memorial Hospital were repudiated, for non-disclosure of the following material facts, at the time of inception of the policy.

1. As per the consultation paper dated 27.02.2012 of G.Kuppuswamy Naidu Memorial Hospital, the complainant was diagnosed with OSA and COPD prior to inception of the policy;
2.  The Pulmonary Function Test (PFT) taken by G.Kuppuswamy Naidu Memorial Hospital, on 13.02.2012 shows severe restrictive ventilatory defect; and
3. As per the Discharge summary dated 02.07.2015 of G.Kuppuswamy Naidu Memorial Hospital, the complainant is a known case of COPD for 20 years.

Policy condition No.7 clearly stipulates that, “If there is any misrepresentation/ non-disclosure of material fact, whether by the insured person or any other person acting on his behalf, the company is not liable to make any payment in respect of such claim.”   The medical records of the complainant narrates the pre-existing health condition, which the complainant is well aware but has not disclosed the same wantonly in his proposal form, which amounts to violation of the policy terms.  Therefore, the opposite parties were constrained to repudiate the claims of the complainant by letter dated 29.07.2015 and 19.08.2015 and thus the opposite parties have not committed any deficiency of service, as alleged by the complainant.  The complainant is guilty of suppression of material facts as he has not disclosed the previous medical history at the time of inception of the policy.  Further, the health insurance policy issued to the complainant enables to seek reimbursement of medical expenses, if eligible as per the terms and conditions of the policy.  The complainant has not disclosed that he is suffering from COPD at the time of taking the mediclaim policy, either initially or subsequently.  Based on such gross negligence, the opposite parties decided not to review/renew the policy of the complainant.  The alleged claim of Rs.10,00,000/- towards mental agony is nothing but fanciful. The claim of Rs.50,000/- towards the cost of the complaint is also huge. The opposite parties are not liable to pay any amount towards mental agony because the complaint itself is vexatious.  Even admitting without conceding that the opposite parties are liable to pay the claim in terms of the contract of Insurance issued to the complainant, the maximum quantum of liability under the terms of policy shall be Rs.63,648/- pertaining to Claim No.0077972 and Rs.21,211/- for Claim No.0082027.  The allegation of the complainant that he has been disturbed mentally and physically because of the deficiency of service and unfair trade practice of the opposite parties is baseless and mere exaggeration.  Thus sought for dismissal of the complaint.                                                                                                                   

 

             4.  To substantiate the claim made by them, the complainant has filed proof affidavit and marked 30 documents as Exs.A1 to A30.  The opposite parties have filed their proof affidavits and have marked 13 documents as Ex.B1 to Ex.B13.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

 

       

             5.  After analyzing the entire evidence available on record, the District Forum has come to the conclusion that there is no deficiency of service on the part of the opposite parties and thus dismissed the complaint.  Aggrieved over the same, the present appeal has been filed by the complainant.

       

              6.  Heard the submissions made by the counsel for both the parties. Keeping in mind the submissions made on either side, we have carefully gone through the entire material available on record and since we have discussed the facts in detail above, we refrain from reiterating the same any further in this appeal and only the facts which are germane are discussed hereunder. 

 

                 7.  When the matter was taken up for consideration, counsel for the appellant/ complainant submitted that the District Forum had failed to see that the disease for which the complainant had made a claim with the opposite parties is for the treatment of pneumonia, dengue, diabetes mellitus, mass lesion in lungs and it has nothing to do with the so called disease OSA and COPD, which the complainant was not even aware.  In fact, no treatment was taken for the same by the complainant.  Further, OSA and COPD is not a disease and it is due to obesity problem, whereas Pneumonia is an acute infection in the lungs caused by bacteria, which is not a pre-existing disease. Similarly, Dengue is caused due to mosquito bite which is also not a pre existing disease.  The complainant himself was not aware of the so called OSA and COPD and the same was not even informed to the complainant by the hospital and he was not advised to take any treatment for the same.  Infact the complainant had voluntarily disclosed that he was suffering from diabetes and hypertension in the proposal form submitted to the opposite parties, which shows the bonafide of the complainant.  As the complainant was not aware of the said OSA and COPD, he did not state the same in the proposal form of the opposite parties at the time of inception of the policy.  Therefore, there is absolutely no suppression of material facts and hence sought to set aside the order of the District Forum and allow the complaint. 

 

                8.  Per contra, learned counsel for the Respondents/ Opposite parties made his submissions, by supporting the order passed by the District Forum.

 

                9.  The sum and substance of the argument of the learned counsel for the complainant is that the complainant had made a claim with the opposite parties only for the treatment of pneumonia, dengue, diabetes mellitus, mass lesion in lungs and the same has nothing to do with the so called disease OSA and COPD.  Further, it is the assertive submission of the complainant that he had disclosed to the opposite parties in the proposal form about the Diabetes and Hypertension, which he was suffering at the time of taking the policy.  Thus, he forcibly contended that had his intention been to suppress his pre-existing diseases, he would not have disclosed any diseases in the proposal form.  Therefore, non-mentioning of COPD is not wanton or deliberate but due to unawareness of the said disease at the time of taking the policy.   Be that as it may, when the Insurance company had stated that there is suppression of material facts they ought to have filed the proposal form pertaining to the period 11.08.2014 to 10.08.2015, especially when the complainant says he had disclosed about the diseases Diabetes and Hypertension in the proposal form and he had no intention to suppress his pre-existing diseases.    In the instant case, the Insurance company have miserably failed to produce the proposal form.  The proposal form is a crucial document, which is the basis for deciding the issue involved in this case.  Therefore, for non-filing of the proposal form, the Insurance Company has to suffer.  Therefore, we are of the view that the complainant is entitled for the relief sought for.  Though the complainant had claimed a sum of Rs.4,00,000/- towards medical expenses, with interest at 18%, we find from the version that the maximum quantum of liability under the terms of policy is only Rs.63,648/- pertaining to Claim No.0077972 and Rs.21,211/- for Claim No.0082027.  Therefore, we are not willing to accept the claim made by the complainant.  In such circumstances, we are constrained to pass the following order.

               

             10.  In the result, the Appeal is allowed in part and the order passed by the District Consumer Disputes Redressal Forum, Chengalpattu in C.C. No.1 of 2016 dated 12.12.2017, is set aside.   The opposite parties, jointly and severally, are directed to pay Rs.63,648/- pertaining to Claim No.0077972 and Rs.21,211/- for Claim No.0082027, totalling a sum of Rs.84,859/- with interest at the rate of 7.5% from the date of claim and to pay a sum of Rs.10,000/- towards mental agony along with a sum of Rs.5000/- towards cost of the complaint.  The payments shall be made within a period of two months from the date of receipt of a copy of this order.

     

 

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                   

R  VENKATESAPERUMAL                                                                                                         R.SUBBIAH

         MEMBER                                                                                                                               PRESIDENT

 

Index :  Yes/ No

AVR/SCDRC/Chennai/Orders/November/2022