By Smt. Beena. M, Member:-

            This is a complaint filed under section 35 of the Consumer Protection Act 2019.

2.  Facts of the case in brief:-  On 29.01.2018, the Complainant had taken Family Health Optima Insurance Plan from the Opposite Parties, covering himself and his wife and the policy was renewed without fail till 08.02.2021. The last renewed policy number was P/181315/01/2021/007378 for the period of 08.02.2021 to 07.02.2022.  During the validity of the said policy, the Complainant’s wife was admitted in Ganga Medical Centre and Hospitals Pvt. Ltd at Coimbatore. On 12.12.2021, due to severe shoulder pain she had undergone a major surgery for arthroscopic rotator cuff repair and discharged was on 15.12.2021. The Complainant had paid an amount of Rs.2,34,126/– towards hospital expenses.  Then the Complainant submitted the claim application to the Opposite Parties for getting reimbursement of hospital expenses, but the Opposite Party repudiated the claim stating that the patient had history of pain and difficulty in moving right shoulder since 6 years.  It is submitted that the Complainant or his wife has not intentionally concealed any material facts about the health condition of the insured from the Opposite Parties at the inception of the policy.  The repudiation of claim on illegal ground amounts to deficiency in service on the part of Opposite Parties. The acts of the Opposite Party caused great inconvenience and hardships to the Complainant.  The Opposite Parties are legally liable to pay the hospital expenses and compensation to the Complainant.  Hence, this complaint.

3.  On receiving notice from the Commission, both the Opposite Parties appeared and filed version.                                                                                                                                                                                                                                                                                                                                                                                                                                                         

4.  It is submitted that the 1^st Opposite Party is not a necessary party to this proceedings. The Complainant had taken the policy from the branch office of the Company situated in Sulthan Bathery.  Hence the branch office, Sulthan Bathery has to be impleaded as the Opposite Party.  It is submitted that the Complainant had taken a Family Health Optima Insurance Plan on 29/01/2018 covering himself and his wife and the same had been renewed up to 07/02/2022 for a Sum Insured of Rs.4,00,000/-.  During the aforesaid policy period, the wife of the Complainant was admitted at Ganga Medical Centre and Hospitals Pvt. Ltd Coimbatore on 12/12/2021 and was diagnosed with Thickness Chronic Supra Spinatus + Infra spinatus And Subscapularis Tear With Retraction + Biceps Subluxation (Medial) + Arthritic Changes + Impingement Right Shoulder.  Thereafter she was discharged on 15/12/2021.  After being discharged from hospital, the Complainant had submitted claim form along with discharge summary and bills.  It is submitted that as per the discharge summary, the patient had complaints of pain and difficulty in moving right shoulder since 6 years. Hence it is confirmed that the illness/condition exists prior to the commencement of policy and it falls under pre-existing disease.   Present admission and treatment of the insured patient is for the pre-existing disease. Since the ailment is pre-existing, the Opposite Parties had repudiated the claim based on Exclusion No: 3(1)(A) of the policy i.e., pre exiting disease. As per the policy, “The Company shall not be liable to make any payments under this policy in respect of any expenses what so ever incurred by the insured person in connection with or in respect of; 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 with insurer”. Moreover it is elaborately explained in the Definition clause of the policy that “Pre- Existing Disease means any condition, ailment, injury or disease (i) That is/are diagnosed by a physician within 48 months prior to the effective date of the policy issued by the insurer or (ii) For which medical advice or treatment was recommended by, or received from, a physician within 48 months prior to the effective date of the policy or its reinstatement”. Hence the Opposite Parties had repudiated the claim and the same was informed to the Complainant on 14/02/2022.

5.   After the repudiation of the claim, the Complainant had submitted a representation to reconsider the claim. Along with the representation, the Complainant had also submitted a certificate dated 15/12/2021 issued by Dr.Shanmughanathan stating that the patient was having complaints of shoulder pain since 6 years but had complaint of increased shoulder pain since 6 months. From this certificate it is clear that the patient has been suffering from pain and difficulty in moving right shoulder since 6 years which is prior to the inception of the policy and hence comes under pre-existing disease. Hence the request was repudiated and the same was informed to the Complainant vide email dated 06.05.2022.

6.  Thereafter, the Complainant has submitted a request before the Sulthan Bathery branch office for returning the original documents submitted by him. Based on the request, the Opposite Parties had returned the following documents vide letter dated 11/05/2022.  i. Original discharge summary.  ii. Original final/main bill.  iii. All other original bills.  iv. Original MRI scan report.  v. Original X-ray films (4 no’s) vi. Original ECG.  It is submitted that the Complainant had taken the policy from the branch office of the company situated in Sulthan Bathery and not from the 1^st Opposite Party as alleged by the Complainant.  The statement in the complaint that the Complainant or his wife have not intentionally concealed any material facts about the health condition of the insured from the Opposite Parties at the time of inception of the policy is false and hence denied. From the discharge summary it is clear that the wife of the Complainant was suffering from pain and difficulty in moving right shoulder since 6 years. This was also clarified by the treating doctor.  It is submitted that the repudiation of the claim was on legal and valid grounds. The Opposite Parties have acted only in accordance with the terms and conditions of the policy and have not committed any deficiency in service to the Complainant. The Opposite Parties have not caused any inconvenience or hardships to the Complainants.   Hence the Opposite Parties are not legally liable to pay the hospital expenses or compensation to the Complainant.  There has been no deficiency of service or unfair trade practice from the part of the Opposite Parties. The Opposite Parties had acted only as per terms and conditions of the policy.  The Opposite Party prays to dismiss the complaint with costs to them.

7.  The Complainant filed proof affidavit and the documents produced were marked as Ext.A1 to A5. No oral evidence was adduced by the Opposite Parties but the document produced by them was marked as Ext B1.

8.  Points for consideration are as follows:-

1. Whether there is any deficiency in service on the part of the Opposite Parties?

2. Whether the Complainant is entitled to get relief as prayed for?

9.  From the materials on record, it is clear that the insured had taken Family Health Insurance Plan from the Opposite Parties on 08.02.2021.  The main issue for consideration in the matter is whether there has been any concealment of material facts on the part of the insured from the insurance company.  The basic issue for consideration is whether at the time of submitting the proposal form, the insured was aware that he was suffering from pain and difficulty in moving right shoulder.  In the absence of any evidence to the contrary, it cannot be stated that there was deliberate non-disclosure of information on this issue on the part of the insured.  From the facts and circumstances of the case, it is, therefore, evident that the allegation of concealment of material information about the health condition on the part of the insured is not established from record.  The Opposite Party failed to prove the fact that the Complainant at the time of obtaining the policy was suffering from the problem of pain and difficulty in moving right shoulder since, 6 years, as the Opposite Party failed to place on record any cogent evidence or medical record for showing the treatment availed by the Complainant for problem of pain and difficulty in moving right shoulder before the issuance of the policy.  Moreover, the Opposite Party have not placed on record the affidavit of the doctor, who had issued the discharge summary. The Opposite Parties were required to examine the doctor, who prepared the discharge summary for proving the history of the disease since, 6 years and that he was taking the medicines regularly for the same was disclosed to him by the Complainant himself.  Therefore, the Opposite Parties failed to prove that the Complainant was suffering from pre-existing disease.  By relying upon the above discussion, we are of the opinion that the Opposite Parties failed to prove that the Complainant had concealed the pre-existing disease of the Complainant. 

In the result the complaint is partly allowed and the Opposite Parties are jointly and severally directed to pay Rs.2,34,126/- (Rupees Two Lakh Thirty Four Thousand One Hundred and Twenty Six Only) to the Complainant.  The Opposite Parties are also directed to pay Compensation of Rs.30,000/- (Rupees Thirty Thousand Only) and Rs.8,000/- (Rupees Eight Thousand Only) as cost to the Complainant. 

The above order shall comply within 30 days from the date of the receipt of this order, failing which the Complainant is entitled to get 9% interest for the above amount. 

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 18^th day of September 2024.

Date of Filing:-29.11.2022.

PRESIDENT   : Sd/-

MEMBER       : Sd/-

APPENDIX.

Witness for the Complainant:-

PW1.              Damodaran.                                                            Agriculture.

Witness for the Opposite Parties:-

                        Nil.     

Exhibits for the Complainant:

A1.                  Family Health Optima Insurance Plan for the period of 29.01.2018

to 28.01.2019.

A2.                  Family Health Optima Insurance Plan for the period of 08.02.2021

to 07.02.2022.

A3(Series).   Bills (17 Numbers).

A4.                  Copy of Certificate.                                                Dt:15.12.2021.

A5.                  Copy of Repudiation Letter.                                Dt:14.02.2022.

Exhibits for the Opposite Parties:-

B1.                  Copy of Policy Schedule and Conditions.

PRESIDENT   :Sd/-

MEMBER       :Sd/-

/True Copy/

Sd/-

                                                                                             ASSISTANT REGISTRAR

                                                                                                  CDRC, WAYANAD.

Kv/-