THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.
C.C.395/2013
Dated this the 21st day of August, 2019
(Smt. Rose Jose, B.Sc, LLB. : President)
Sri. Joseph Mathew, M.A., L.L.B. : Member
ORDER
Present: Hon’ble Smt. Rose Jose, President:
This petition is filed by the petitioners under Section 12 of Consumer Protection Act, 1986 for an order directing the opposite party to allow their medi-claim and to reimburse a sum of Rs.54,439/- towards the hospital and medical expenses incurred in connection with the surgery of the 2nd petitioner, to pay Rs.50,000/- with interest as compensation for the mental agony, financial loss and other hardships suffered due to repudiation of their legitimate claim without any proper ground, to direct the opposite parties to renew the policy after collecting the requisite premium amounts or to repay the remitted amount towards the policy and also cost of the proceedings.
Petitioners are husband and wife. Their case is that, in the year 2008 the 1st petitioner had taken a Family Health Optima Insurance Policy of the opposite party having policy No. P/181300/01/2013/001887 at the instance of the marketing person of the opposite party that the said policy offers cashless medical treatment for himself and his family members etc. While so on 19/04/2013 due to irregular menstrual periods he had taken his wife, the 2nd petitioner to Dr. Rajani, Consultant Gynecologist. Since the disease was diagnosed as MENORRHAGIA, the doctor advised them to go for surgery as a permanent solution. So they decided to undergo surgery at Malabar Hospital and Urology Centre, Eranhipalam, considering their convenience and proximity. Dr. Rajani also told them to get admitted in the hospital after getting an outpatient ticket from the Resident Medical Officer (RMO) attached to that hospital, since she was not attached to that hospital. As such on 11/05/2013 the 2nd petitioner got admitted there and the RMO who was not a Malayalee, had noticed down what he understand in the prescription for admission in the hospital.
The petitioner stated that after the admission in the hospital, he informed the opposite party about the admission and treatment. The hospital authorities also contacted the opposite party for the cashless treatment of the 2nd petitioner. On 12/05/2013 the 2nd petitioner underwent surgery and they have not spent any amount till the date of discharge on 16/05/2013. On 13/05/2013 the opposite party approved and sanctioned a preliminary amount of Rs.35,000/- in this regard. But at the time of discharge, the hospital authorities demanded payment of the bill amount of Rs.51,733/- stating that on 14/05/2013 the opposite party informed them that they had withdrawed the authorization given on 13/05/2013 due to suppression of material facts based on the prescription of the RMO given at the time of admission that 2nd petitioner was suffering from bleeding p/v for 8 years and so they came to the conclusion that the disease was pre-existing.
The petitioners further stated that the bleeding p/v is not at all an indication of a requirement for operation or surgery. It is seen in many women and can be controlled by medicines also. The 2nd petitioner’s problem started only four months back which needed operation due to patient’s deteriorating health. Here the RMO was not a Malayalee and due to communication gap he had noted wrongly what had stated by the 2nd petitioner. The actual fact is that she was pregnant 8 years back and her son is now 8 years old. This was the information given to the RMO but that was wrongly translated by him in the prescription. On finding the mistake, the hospital authorities issued a clarification letter to the opposite party stating that the USG done on 01/08/2011 was for irregular periods and discharge p/v and not for any menorrhagia. But that was not admissible to them. Due to the rejection of the claim at the last minute he has to run pillar to post to source the money for settling the hospital bills. Anyhow he had borrowed some money from his friends and relatives and the rest from private financer at a high interest rate and all these made him feel desperate, cheated and insulted.
It is also stated that after rejection of the claim by the opposite party he lodged a complaint before the IRDA on 13/07/2013 but on 16/07/2013 he received a reply from the grievance cell of the opposite party stating that the claim cannot be admitted under the policy unless 48 months of continuous cover with the company has lapsed. The opposite party also stated that the claim was lodged in the 3rd year of the policy and according to them the policy commences from 09/07/2010. Since he was frustrated and disgusted with the unlawful and irresponsible activities of the opposite party he has not renewed the policy from 12/07/2013 onwards and now the policy is lapsed. Due to the closure of the policy they also lost the future benefit and bonus of the policy which would have got in the future. The denial of their legitimate claim without any sufficient reason or proper ground is unfair and also deficiency in service on the part of the opposite parties which caused much mental agony, financial loss and such other untold sufferings to them for which the opposite party is liable to compensate them. Hence this petition seeking reliefs.
The opposite party in their version denied all the allegations of the petitioners as false, frivolous and filed only for getting unlawful enrichment from them. It is contended that this petition is not maintainable either in law or on facts of the case. It is admitted that the petitioners are holding Family Health Optima Insurance Policy of them having Policy No. P/18/300/01/2013/001887 and the policy was valid from 13/07/2012 to 12/07/2013. The said policy was renewing from 09/07/2010 onwards. Though the petitioners had joined the policy in the year 2008 they continued it till 2010 only and the same had lapsed in June 2010 as it was not renewed in time. So the policy availed by the petitioners on 09/07/2010 was a new policy.
It is contended that the 2nd petitioner was admitted in the Malabar Hospital on 11/05/2013 with complaints of bleeding p/v irregular 8 years Menorrhagia and Dysmenorrhea. The hysterectomy surgery was carried out on 12/05/2013. On admission of the 2nd petitioner the 1st petitioner approached them through the hospital authorities for availing cashless treatment. Since the request was found prima-facie correct, they approved the preauthorization and sanctioned a preliminary amount of Rs.35,000/- to the hospital towards the treatment expenses of the 2nd petitioner. But on 14/05/2013 when their officer visited the hospital to verify the hospital records in connection with the treatment of the 2nd petitioner it was found that as per the case sheet, the 2nd petitioner was suffering from bleeding p/v irregular for more than 8 years. Since the operation was done for the said illness she was not eligible for reimbursement of the treatment expenses as per Clause (1) of the exclusion in the policy conditions. Hence they issued a letter to the hospital on 14/05/2013 withdrawing the authorization for cashless service issued on 13/05/2013. If the withdrawal of authorization was kept away from the knowledge of the petitioners, the hospital authorities alone are to be blamed for the same. In the case of the 2nd petitioner, she was suffering from bleeding p/v and was also Menorrhagia and Dysmenorrhea and it was un controllable with medicines and that is why the doctor opted for hysterectomy. As per the policy conditions they are not liable to make any payments for the treatment of a pre-existing diseases.
The allegation of the petitioners that the RMO attached to the hospital was not a consultant doctor was denied as not true and stated that the discharge summary issued from the hospital shows that Dr. Manjunath (RMO) is a consultant in the hospital. The clarification letter issued by the RMO dated 16/05/2013 is not admissible to them since the letter doesn’t mention anything with regard to the wrong entry about the duration of the illness in the history of illness while admitting the 2nd petitioner in the hospital. The allegation that the bleeding p/v is not at all connected with the surgery and the same was started only four months back is not admitted and was denied also.
The opposite party also submitted that the petitioner had filed a complaint against them before the Hon’ble Insurance Ombudsman, Kochi regarding the repudiation of the claim. The Hon’ble Ombudsman accepted the complaint and called for their explanation and they had filed their statement also. This matter is pending disposal before the Hon’ble Ombudsman and so this petition is not maintainable also. A Health Insurance Policy is issuing in good faith after assessing the health condition of a proposer based on the health related facts stated in the proposal form. Obtaining a policy without disclosing the full facts of the health condition of the proposer would make policy void-ab-initio. They have rightly repudiated the claim as per the terms and conditions of the policy and so there is no unfair trade practice or any deficiency in service on their side as alleged. No loss or injury or any mental agony has been occurred to the petitioners due to any of their acts. The terms and conditions of the policy is applicable to both the insurer and insured. All other allegations of the petitioners were denied as false and baseless. Since the non-renewal of the policy was due to the fault and negligence on the part of the petitioners, they have no legal right to demand renewal of the policy with retrospective effect and since the opposite party have covered the risk of the policy while the policy was in force, the premium collected is not refundable after the lapse of the policy. Hence prayed to dismiss the petition with their cost.
The matters for determinations are:
- Whether there is any unfair trade practice or any deficiency in service on the part of the opposite party?
- Reliefs and costs if any?
Evidence consists of the affidavit filed by the petitioner, the opposite party, Ext. A1 to A20, B1 to B7 and depositions of PW1, PW2 and RW1.
Point No. 1: The opposite party is having a case that a case is pending before the Hon’ble Insurance Ombudsman for the same cause of action and so the petition is not maintainable before this Forum, but as per Ext. A19 produced by the petitioner, the case was seen withdrawed from there. So the said contention of opposite party is not sustainable. Admittedly the petitioner is the holder of Family Health Optima Insurance Policy of the opposite party and his wife Smt. Meera, the 2nd petitioner in this case and their two children are also insured under this policy. The opposite party also admitted that though the policy was not a continuing policy it was valid at the time of treatment. The sole reason for the repudiation of the petitioner’s claim is as per Ext. A15 repudiation letter dated 12/07/2013 there is suppression of material facts ie. pre-existing disease. According to the opposite party the 2nd petitioner, the patient was suffering from ‘bleeding p/v irregular since 8 years as per the case history of the 2nd petitioner Ext. A7. In Ext. A7 it is written – “bleeding pv irregular 8 years”. It is stated that this material fact was not disclosed by the petitioner in the proposal form. As per Clause (1) of Exclusions in Ext. B2 policy conditions “Pre-existing diseases as defined in the policy until 48 consecutive months of continuous coverage has elapsed, since inception of the first policy with any Indian Insurance”. According to the opposite party 1st policy taken by the petitioners in the year 2008 was lapsed in June 2010 due to non-renewal of the policy within time so the present policy availed by the petitioner on 09/07/2010 is a new policy and hence the petitioners cannot claim any exemption for her pre-existing disease under the present policy. So they have rightly repudiated the claim.
But according to the 1st petitioner the finding of the opposite party is not true or correct. The 2nd petitioner is having no pre-existing disease at the time of taking policy as alleged. The entry in Ext. A7 is happened due to mistake committed by the RMO due to communication gap. It is stated that the 2nd petitioner was pregnant 8 years back and her son is now 8 years old. This was the information given by the 2nd petitioner to the RMO at the time of admission in that hospital but it was wrongly translated by the RMO in his prescription, due to communication gap, since the RMO was not a Malayalee. On knowing the mistake the RMO Dr. Manjunath issued Ext. A10 clarification letter to the opposite party stating the real fact that the USG done on 01/08/2011 was for irregular periods and discharge p/v and not for any Menorrhagia. But that was not admissible to the opposite party. In Ext. A10 it is clearly written that “The problem of bleeding is of four months duration only”. According to the petitioner though Menorrhagia developed only four months back the surgery was done due to the patient’s deteriorating health.
Now the only question to be answered is whether bleeding p/v irregular is a disease or not? Here the 2nd petitioner underwent surgery for Menorrhagia and Dysmenorrhea. Dr. Vijayaram, MBBS, DGO an expert doctor in Gynecology was examined as PW2. In chief examination he would say that the term Menorrhagia is connected with Gynecology. To a question whether it is a condition or disease? The answer is “This is not a disease but a symptom”. He also deposed that for considering bleeding as Menorrhagia, the quantity of blood outgoing should be 80 ml or above. This may happen many times in the life of a woman due to many reasons. This is not a pre-existing disease. To a specific question “is there any chance of occurrence of this condition continuously for 8 years? The answer is “Never. In such cases there is rare chance of a patient to be alive.” PW2 also stated that he is in the profession for the last 20 years and was conducting surgery for Gynecology also. In cross examination, to a specific question “A doctor’s notes in the case sheet after examining the patient is having much importance, the answer is “that depends on the qualification and experience of the doctor”. Here the contention of the petitioner is that the 2nd petitioner was having no pre-existing disease and the prescription in Ext. A7 patient’s history is a mistake committed by the RMO due to communication gap for which the RMO had given Ext. A10 clarification also. The deposition of the expert doctor PW2 also seems justifying the said contention of the petitioner.
As per Ext. A7 the 2nd petitioner was suffering from bleeding p/v irregular for 8 years. But as per the deposition of PW2, this is not a disease but only a condition which may happen many times in the lifetime of a woman. Only when bleeding developed into Menorrhagia – for which the 2nd petitioner had undergone surgery it is considered as a disease which needs surgery.
Ext. B8 is the claim form for the Medical Insurance. The reverse side of Ext. B6 is the Medical Certificate of the patient Smt. Meera filled by the treating doctor. Wherein the name of the surgeon who had conducted the surgery is given as Dr. Rajani. The date of first consultation of the doctor is given as 19/04/2013. In Ext. B6 Medical Certificate it is also written that previous consultation before hospitalization “Nil”. Moreover in Ext. B6 it is also written that the patient was suffering from the said complaint only from “four months” and it is not due to a complication of pre-existing disease.
It is true that as per Ext. A1 to A5 policy schedules, the present policy of the petitioner is not a continuing policy as stated by the opposite party. But the deposition of PW2, the expert doctor made it clear that the bleeding p/v irregular is not a disease and only when it develops into Menorrhagia it is considered as a disease. Here the petitioner underwent surgery for Menorrhagia and as per Ext. B6, the duration of the said disease was only four months also. So we are of the view that even if the 2nd petitioner was suffering from bleeding p/v irregular for 8 years, since it is not a disease, this will not come under the definition of pre-existing disease as envisaged under Clause (1) of Exclusion in the Policy Condition so as to repudiate the claim. Moreover Sri. Balu M., Executive Officer (Legal) of the opposite party was examined as RW1. Though he had deposed that, they are allowing or rejecting each and every claim based on the report of their expert panel of doctors, the opposite party has not produced any medical evidence or doctors’ opinion to prove that bleeding p/v irregular is a disease.
So from the evidence on record and relying on the deposition of PW2, the expert doctor it is found that the repudiation of the claim based only on the prescription in Ext. A7 without any proper medical analysis of the patient’s condition and proper medical ground is deficiency in service on the part of the opposite party. Point No. 1 found accordingly.
Point No: 2: In view of the finding in Point No. 1 we are of the view that this petition is to be allowed and the petitioners are entitled to get the reliefs sought for in the petition.
In the result, the petition is allowed and the following order is passed.
The opposite party is ordered to reimburse the hospital and treatment expenses to the petitioner as per terms and conditions of the policy along with 9% interest from 11/05/2013 (date of admission) till payment and Rs.5,000/- (Rupees five thousand only) as cost of the proceedings, within 60 days from the date of receipt of this order.
Dated this the 21st day of August, 2019
Date of filing: 07/09/2013
SD/-PRESIDENT SD/-MEMBER
APPENDIX
Documents exhibited for the complainant:
A1. Copy of policy schedule issued by the opposite party
A2. Copy of policy schedule issued by the opposite party
A3. Copy of policy schedule issued by the opposite party
A4. Copy of policy schedule issued by the opposite party
A5. Copy of policy schedule issued by the opposite party
A6. Copy of Medical prescription
A7. Copy of case history
A8. Copy of authorization for cashless treatment of the insured-patient
A9. Copy of withdrawal of authorization letter
A10. Clarification letter
A11. Copy of Claim Form for medical insurance
A11(a) Copy of medical certificate
A12. Copy of cash bill issued by Aswini Poly Clinic
A12(a) copy of bill issued by Aswini Diagnostic Services
A13. Copy of bill issued by Malabar Hospitals
A14. Details of bills
A15. Copy of repudiation letter
A16. Copy of letter from IRDA
A17. Copy of letter from the grievance cell of the opposite party
A18. Letter from Insurance Ombudsman
A19. Copy of letter to the Insurance Ombudsman
A20. Copy of birth certificate
Documents exhibited for the opposite party:
B1. Copy of policy schedule
B2. Copy of Family Health Optima Insurance Plan
B3. Copy of discharge summary
B4. Copy of authorization for cashless treatment of the insured-patient
B5. Copy of withdrawal of authorization letter
B6. Copy of Claim Form for medical insurance
B7. Copy of repudiation letter
Witness examined for the complainant:
PW1. Manoj P. (Complainant)
PW2. Dr. Vijayaram, Rajendra Hospital, Calicut
Witness examined for the opposite party:
RW1. Balu M., Zonal Office, Star Health & Allied Insurance, Trivandrum
Sd/-President
//True copy//
(Forwarded/By Order)
SENIOR SUPERINTENDENT
