CC No.122/2018                                     Date of filing:18.01.2018

                                                            Date of Disposal:09.01.2020

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICTCONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE  9^TH DAY OF JANUARY 2020

CONSUMER COMPLAINT No.122/2018

PRESENT:

Sri.   Venkatasudarshan  D.R.  B.Com,LL.M.,              …. PRESIDENT

Smt.  L.Mamatha, B.A., (Law), LL.B.                                      ….       MEMBER

COMPLAINANTS:

Gopalakrishna G. Hegde,

62 years, s/o late Gangadhar Hegde,

R/at Gokul 17/41/18, Purshottam Nagar,

Shirur park, 2^nd stage, Vidyanagar,

Hubli-580021.

 (Complainant by M/s Keystone partners, Advocates)          

V/s

OPPOSITE PARTIES:

Star Health and Allied Insurance Co. Ltd.,

A company incorporated under the Companies Act, 1956

Having its registered and corporate office

At Star Health and Allied Insurance Co. Ltd.,

No.1, New Tank street, Valluvarkottam High

Road, Nungambakkam, Chennai-600034.

Having its Branch office inter alia

At Vivekanand Corner, Desai cross,

Deshpande Nagar, Hubli-580029.

Having its Zonal office at Esteem tower

No.71, III floor, railway parallel road,

Kumara park west, Bengaluru-560020.

(Opposite party Sri. Y.P. Venkatapathi, advocate)

= = = = = = = = = = = =                              

Written by Sri Venkatasudarshan D.R., President

              ******

// ORDER ON MERITS//

This is a complaint filed under section 12 of the Consumer Protection Act 1986 by the complainant Sri. Gopalakrishna G. Hegde against Star Health and Allied Insurance Company Limited praying for a direction to the opposite party to pay a sum of Rs.2,99,740/- being the expenditure incurred towards medical treatment together with interest at 18% p.a. to be calculated form 17.02.2017 till the date of actual payment and also to pay Rs.1,00,000/- as compensation and Rs.30,000/- towards litigation expenses.

3. It is the case of the complainant that as desired by the opposite party he has furnished the medical records and medical history of himself and his family members.It has been specifically disclosed that the wife of the complainant was diagnosed with Endometrioid Adenocarcinoma of the endometrium and that she has undergone surgery for removal of uterus.The CT scan report was also attached.In the proposal form it is mentioned “Known operated case of CA Endometrium”.The complainant was not informed at the time of diagnosed, that the condition was an indication of existing cancer or possibilities of cancer in future.As a layman the complainant and his wife has no chance of understanding the medical reports and condition better than doctors.

4. It is the further case of the complainant that the opposite party has also submitted for the medical examination of the complainant’s wife on 29.11.2010 at Hubli Scan Centre.In the proposal form in the second column marked as “For Female Applicants Only” the medical examination report concludes that there is no disease of Uterus, cervix and ovaries.The post hysterectomy status was found to be normal.It was also entered on the policy that the policy is to have (‘no exclusion’).The opposite party has issued the insurance policy which commenced from 19.11.2010.Thus it is contended that there was no pre-existing condition extending either for the complainant, his wife or any member of his family.

5. It is the case of the complainant that the said policy was renewed year after yearfrom 2010 till date and the complainant has been paying premium regularly for insured persons without a single default the last paid premium was Rs.20,585/- for the year 2016.-17 for the policy No.P/141212/01/2017/002304 on 16.11.2016.

6. It is the case of the complainant that during February-2017 the complainant’s wife was diagnosed with Carcinoma Ovary and the doctors prescribed immediate hospitalization and a surgery to remove the ovarian cyst to contain the spread.The wife of the complainant was admitted to Apollo Hospital, Bannerghatta road, Bengaluru for treatment.

7. The claim was made to the opposite party by the complainant vide claim No.CLI/2017/141212/0417406 for pre-authorization of cashless treatment.When the complainant made claim with the opposite party the same was rejected on the ground that there was suppression of material fact by stating “No” next to the column cancer in the proposal submitted 7 years ago in the year 2010.It is the case of the complainant that his wife was neither diagnosed with cancer nor was she treated for cancer in the year 2010.Even the second report taken at Hubli Scan Centre and the other documents do not reveal the presence of cancer.

8. On the rejection of the claim made by the opposite party the complainant got his wife discharged by paying a sum of Rs.2,99,740/- and again madea claim for second time to the grievance cell of the opposite party on 02.03.2017 through e-mail to reimburse the said sum.That was also rejected vide letter dated 17.05.2017.The Grievance Department of the opposite party to whom the representation was given vide e-mail dated 03.06.2017 did not independently consider any of the material submitted and rejected the representation.Thus it is contended that the rejection of the claim was not proper.The complainant filed a complaint before the insurance Ombudsman (Karnataka) on 26.07.2017.That complaint was withdrawn later as there was a vacancy of the ombudsman post.Thus it is contended that the rejection of the claim by the opposite party amounts to deficiency in service.Hence, the present complaint is filed.

9. There is only one opposite party in this case.After admitting the complaint the notice was ordered to be issued to the opposite party.The opposite party entered appearance through an advocate and filed version.

10. In the version filed it has been contended that the complaint as brought is not maintainable.But the policy taken by the complainant has been admitted and stated that it is subject to terms and conditions mentioned therein.As per the terms and conditions the insurance company is not liable to pay in respect of any claim if there is any misrepresentation and nondisclosure of material fact by the insured to the insurer.The details of the claim as per the opposite party are;

(1) The claim is reported in the 7^th year of the policy.

The insured patient got admitted on 17.02.2017 in Apollo Hospital, Bangalore and discharged on 23.02.2017.

(3) Diagnosis- CA Ovary.

(4) The insured raised a pre-authorization request to avail cashless treatment.As per the medical records submitted, it is noticed that the insured patient has been suffering from CA ENDOMETRIUM SINCE 2010 and also operated even prior to the filling the proposal.Since there has been non-disclosure of material fact, the pre-authorization rejected and the same was communicated to the treating hospital on 17.02.2017.

(5) Subsequently, when the insured submitted a claim for reimbursement of medical expenses that was also rejected as per the medical opinion as the team of the members of the company is

1.  As per discharge summary of the above hospital and HPE report dated 06.03.2010 submitted in response to the query, the insured patient is diagnosed with differentiated Adenocarcinoma- Endometrium.
2.   As per the proposal form uterus surgery is disclosed but against the column “cancer” it is mentioned as “No”.

The above findings shows that the patient was suffering from CA Ovary even prior to the inception of medical insurance policy.It is stated that at the time of inception of the policy which is from 19.11.2010 to 18.11.2011 the insured have not disclosed the above mentioned medical history.This is the violation of condition No.8 and 15 of the policy terms and conditions.Therefore the policy was cancelled with effect from 06.06.2017 due to non-disclosure of pre-existing disease.It is stated that the policy covered the floater risk to the tune of Rs.2,00,000/- only against the coverage for all the four persons stated in the proposal.Thus it is contended even if it is presumed that the complainant acted honestly, then also the total risk covered under the policy shall be only to the tune of Rs.2,00,000/- and the award cannot exceed the said sum.Apart from these contentions, the opposite party has traversed the various paragraph in the complaint and contend there isno cause of action for the complaint to file this complaint.It is contended that the opposite party is not liable to pay any amount or interest or cost as claimed in the complaint and does not constitute a consumer dispute at all.Hence prays for dismissing the complaint.

11. When the case was set down for evidence.The complainant filed his affidavit evidence and also refered to certain documents about which the discussions will be made in the course of the order.

12. On behalf of the opposite party one person by name Pushpavathi S. Sattigoudra d/o Shekharagouda, a legal officer at Zonal office, Bangalore has filed her affidavit evidence.

13. The complainant has filed written arguments.The opposite party has not advanced any oral argument nor filed written argument.The opposite parties have filed Xerox copies of certain documents on 21.01.2019.

14.   The points that arise for our determination are:-

(1) Whether the complainant proves that there was deficiency in service on the part of the opposite party?

(2) Whether the complainant is entitled for the reliefs sought in the complaint?

Point No.1:- In the affirmative.

Point No.2:- Partly in the affirmative.

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

•  
•   This is a complaint filed under section 12 of the Consumer Protection Act 1986 by the complainant Sri. Gopalakrishna G. Hegde against Star Health and Allied Insurance Company Limited praying for a direction to the opposite party to pay a sum of Rs.2,99,740/- being the expenditure incurred towards medical treatment together with interest at 18% p.a. to be calculated form 17.02.2017 till the date of actual payment and also to pay Rs.1,00,000/- as compensation and Rs.30,000/- towards litigation expenses.

17. The complainant in order to support his case has placed before us affidavit as his evidence and also refered to certain documents.He has also filed an additional affidavit as further evidence.In the affidavitevidence so filed he has repeated all the complaint averments.As the averments in the complaint have already been narrated in the above paras, there is no need for us to discuss about the averments in the affidavit.

18. Likewise, the evidence affidavit of Pushvathi S Gowdra, Legal officer of the opposite party company also contains all the averments found in the version which needs no repetition.

19. The undisputed facts of this case are that the complainant holds the health insurance policy issued by the opposite party insurance company right from the year of 2010.Renewal of the same has been done from time to time annually and latest insurance policy is for the year 2016-17 bearing No.P/141212/01/2017/002304.It is also not disputed that the said insurance policy covers the health risk of not only the complainant but alsohis wife Mrs. Rohini G. Hegde, his daughter Ms. Manasa G. Hegde, his son Akshay G. Hegde.It is also not in dispute that the premium of Rs.20,585/- was paid towards the insurance policy which was for the year 2016-17.

20. The case of the complainant is that his wife was diagnosed during November 2017 with Carcinomaovary for which the doctors prescribes immediate hospitalization and a surgery to remove the ovarian cyst to contain spread.Accordingly the wife of the complainant was admitted to Apollo Hospital, Bannergatta road, Bangalore where she was operated and discharged.The period of hospitalization was from 17.02.2017 to 23.02.2017 as per the discharge summary issued by the Apollo Hospital which is document No.4 produced by the complainant.

21. When the complainant made the claim for pre-authorization of cashless treatment that claim was rejected by the opposite party insurance company for the reason that the insured patient had been suffering from CA Endometrium since 2010.The patient was operated already while accepting the proposal.Since there was no disclosure of the same in the proposal form the claim for pre-authorization cashless treatment was rejected vide document No.6 dated 17.02.2017.The complainant somehow got his wife discharged from the hospital after surgery and thereafter made claim for reimbursement of a sum of Rs.2,99,740/- incurred towards hospitalization expenses.The opposite party has rejected that claim also on the same reason vide document No.8 dated 17.05.2017.Now the question for our consideration is whether the repudiation of the claim made by the opposite party was proper. If so whether it amounts to deficiency in service.

22. According to the opposite party, the patient i.e., the wife of the complainant was suffering from Carcinoma endometrium, from prior to 2010 for which she was operated in the year 2010.This according to the opposite party is a pre-existing disease which the complainant has suppressed.This suppression of a material fact, is a pre-existing disease which is violation of the policy condition and therefore the claim was repudiated and the same was just and proper.The burden of proving that the patient who is also Complainant-insured was suffering from pre-existing is on the insurance company i.e., the opposite party.This principle has been laid down in the decision of the Hon’ble National Commission reported in 2019 part 4 CPR page 449 in HDFC Standard Life Insurance Company Limited V/s Vipal Nagar where in it is observed at paragraph No.7.

“Decision settled proposition of law that the burden of prove undeclared pre-existing disease is on the appellant and they are required to discharge this burden by producing cogent evidence on record”.

To substantiate the repudiation of the claim the opposite party has relied on two documents.One is the “History of the present illness of the patient” as noted in the Discharge Summary document No.4 pertaining to the patient Mrs. Rohini G. Hegde. Here it is noted as

“Patient is a known case of Carcinoma endometrium operated for the same in 2010.She was apparently well till 3 to 4 months back then developed pain in abdomen dull aching type, defuse morein the lower abdomen pain associated with dyspepsia, history of increased frequency of micturition.No history of other complaints”.  The other documents relied on by the opposite party perhaps is the CT scan report dated 26.08.2010 issued by the department of Radio-Diagnosis by Karnataka Institute of Medical Science hospital- a Government hospital Hubli wherein it is stated that the “impression” disclose non operated case of    CA endometrium shows minimum thickening of bilateral paramatrium.  Since the proposal for obtaining the health insurance policy was submitted by the complainant for himself, his wife, son and daughter on 18.11.2010 i.e., subsequent to above said CT scanning report, it is contended by the opposite party that in the proposal form it has not been disclosed that the patient Mrs. Rohini G. Hegde was the operated case of CA Endometrium.  This according to the opposite party amounts to suppression of pre-existing disease.

23. The copy of the proposal form has been produced by the complainant as document No.1 which has not been disputed.In this document so for as the health condition of Mrs. Rohini G. Hegde is concerned it is mentioned against the column meant for giving information about “any gynecological disorder such as DUB-fibroid, uterus, ovaries cyst”, it is mentioned as “OPERATED UETRUS”.No doubt in the column just above that where the proposer has to say whether the patient was suffering from any cancer malignancy that column is left blank.Taking advantage of this column being left blank the opposite party contends that though the patient was suffering from cancer for which she was operated in the year 2010 it has been suppressed.

24. The above said argument of the opposite party does not sound well.This is because as rightly submitted by the complainant the fact that the patient was operated uterus has been mentioned specifically in the column provided for in the proposal form.Whether it was a cancer or malignancy that will not be in the knowledge of the non-medical people like the complainant nor he knows medical terminologies.When the proposal form disclose that operated uterus in respect of the patientMrs. Rohini G. Hegde whose health risk is also covered nothing prevented the insurance company from collecting the medical records pertaining to that operation and know what it was all about.That has not been done.The insurance company knowingly well that the patient had undergone uterus operation at the time of submitting the proposal as disclosed in the proposal form did not try to bother what type of operation it was and whether it has anything to do with cancer and the nature of treatment taken.At that time the patient was also subjected to medical examination by the doctor who is in the panel of opposite party insurance company.If at all the complainant had suppressed any pre-existing disease that could have been identified by the panel doctor and brought it out on record. That has not been done.Sowhen the medically trained person himself who is appointed by the insurance company, could not diagnose how could we except a layman like the complainant who is a non-medical person could know whether uterus operation was because of the cancer or not.

25. It may not be out of place to mention that contract of insurance is a contract of good faith.Good faith does not mean that it should be one sided.The good faith should be exhibited by the insurance company also.If at all the insurance company was really interested, it could have go into the details of the said operated uterus verified all the medical records relating to the patient Mrs. Rohini G. Hegde in relation and taken a decision whether to give policy or not. That has not been done.Having accepted the proposal submitted in 2010, and allow the renewal of the same annually till 2016-17 by collecting premium it can be concluded the insurance company was satisfied with all the records that were made available by the complainant and issued the policy.When such being the situation it cannot turn round and say that claim is repudiated because of pre-existing disease.

26. Further the duty of the insurance company to collect the medical records in connection with the operation of uterus has disclosed in the proposal form of the year 2010 was necessary to ascertain whether it was an operation other than the one mentioned in the CT scan report or it was the same.That also has not been done.The interest shown by the insurance companies through its agents evince more interest in getting the polices with a view of increase their business and augment the resources.But when it comes to processing the claim on the basis of such policies, the insurance company perhaps will not evince to look in to the interest of the policy holder.They dig into all aspects to see how the claim could be repudiated for one or the other reason.This we are saying so because the same interest that the insurance company had evinced in collecting the CT scan report dated 26.08.2010 after the claim was submitted could have been shown before accepting the proposal form by collecting all the medical details including the CT scan report then itself and had an opportunity to reject the proposal, if found not worth.That has not been done.That too knowing fully well that the complainant has disclosed in the proposal form that the patient Mrs. Rohini G. Hegde had operated uterus.No document is produced by the opposite party to show that the medical history of the patient relating to operated uterus as disclosed in the proposal form is something which is different from what has been noted in the CT scan report dated 26.08.2010.The opposite party has not bothered to examine any doctor nor summoned any medical record pertaining to 2010 treatment (operation) to show that it was something different from what has been disclosed in the proposal form.All these aspect show that the opposite party has not proved that the patient had a pre-existing disease and that was suppressed.

27. One another important aspect to be noted is that it has been observed in the history of present illness of the patient Mrs. Rohini G. Hegde in the discharge summary that though she was operated for Carcinoma Endometriumin 2010 she was apparently well till 3 to 4 months back i.e., 3 to 4 months prior to 17.02.2017. That means to say that the patient had no past effect of that operation which took place in 2010 till the end of 2016 i.e., almost for more than 6 years.As rightly contended by the complainant when clause 3 of the policy clearly specified that the opposite party is not liable to make any payment in respect of any expenses that have been incurred on account of any pre-existing disease until 48 consecutive months of continuous coverage have elapsed, the right opened to the insurance company to withhold payment of any expense incurred on account of any pre-existing disease is only till the expiry of 48 consecutive months i.e., 4 years of the continuous coverage have elapsed.In this case the first policy was taken in the year 2010.Thereafter every year the policy is being continued covering the health risk of the complainant,patient Mrs. Rohini G. Hegde their daughter and a son till 2016.17.Even on this count also the insurance company cannot withhold the payment by repudiating the claim.

28. “Cancer” is a serious ailment.It is called a silent killer.It will not make its presence known to a person and as such he will be following his daily pursuits without being harmed in any manner.One unfortunate day when he goes to the hospital for treatment for some other ailment and lab test is conducted may be after few years or decades, he will be diagnosed with cancer.This is the hard reality which has to be kept in mind.Therefore the non-disclosure or non-mentioning of the word “cancer” in the proposal form by the complainant and the patient cannot be found fault with.It is more so when they are not medical persons or having any knowledge in the medical science nor they can expect to know the medical terminology.Whatever that was within their knowledge that the patient has undergone uterus operation is a disclosure of a pre-existing disease.Under these circumstances we are of the considered view that the repudiation of a claim by the opposite party is not proper and it is not legal therefore it cannot be justified.Accordingly, we answer point No.1 in the affirmative and in favour of the complainant.

30. The complainant has sought for a direction to the opposite party to pay a sum of Rs.2,99,740/- as reimbursement under the said health policy dated 16.11.2017 towards medical expenses incurred for the treatment of his wife.Though the complainant has sought for the reimbursement of Rs.2,99,740/- nowhere in the complaint he has given the details or breakup as to how he is claiming Rs.2,99,740/-.In so for the expenditure incurred towards hospital expenses is concerned, the complainant has produced the inpatient bill issued by the Apollo Hospital, which is at document No.5.As per this document the total amount paid is Rs.2,06,235/- only.This amount has been paid under deposit receipt No.4002712 dated 07.02.2017 Rs.10,000/-, receipt No.4006703 dated 18.02.2017 Rs.1,50,000/- and receipt No.4035288 dated 23.02.2017 for Rs.46235/- in all Rs.2,06,235/-.Apart from this he has not given the details of any other medical expenses incurred.As already stated above the break up for the total claim of Rs.2,99,740/- has not been given.The limit of coverage of the health insurance policy as per document No.3 which is for the period from 23.11.2016 to the mid night of 23.11.2017 is Rs.3,60,000/-.Taking all these aspects into consideration we hold that the complainant is entitle to receive Rs.2,06,235/- only from the insurance company towards medical expenses incurred.

31. The above said amount was in fact payable to the complainant by the opposite party when the claim was made after discharge from the hospital on 23.02.2017.But the opposite party has unjustly repudiated the claim for the reasons already discussed above.This has driven the complainant to file this complaint in the year 2018.Ever since February-2017 the money which was ought to have been paid was not paid by the opposite party and thereby the complainant has been put to financial loss.This has to be compensated by the opposite party by paying interest on the amount of Rs.2,06,235/- payable.In our considered view we deem it fit and proper to award interest at the rate of 8% p.a. to be calculated on the said sum of Rs.2,06,235/- from 23.02.2017 till the date of actual payment.

32. Apart from this the complainant has also claimed Rs.1,00,000/- as compensation for the harassment, mental agony and trauma. This need discussion.The health insurance policy is obtained by a person with a fond hope that in case of medical exigencies when he or his family members had to face a situation of hospitalization there should not be any financial problem. They hope that in such situation the insurance company which had issued a health policy will take the responsibility of providing cashless treatment.No one predicts as to when the health exigencies would come.The disease namely critically illness which needs immediate treatment and hospitalization do not attack a human being with any prior notice.They come all of a sudden putting a patient or his family members to a sort of depression and anxiety. More so when ready money not available.Under such circumstances, if the insurance company refuses to allow cashless treatment for one or the other reason without any proper basis, one can imagine the harassment, physical and mental strain that the patient attendants of the patient would undergo difficulties that they may have to undergo for making immediate financial arrangements, in addition to attending to the patient also.The mental agony that the insured undergoes causes immeasurable loss.It is the opposite party in this case who has driven the complainant and his family members to such a states of affairs.Therefore the opposite party has to compensate the complainant.Having regard to the facts and circumstances of the case we deem it fit and proper to direct the opposite party to pay a sum of Rs.50,000/- as compensation to the complainant for the mental agony undergone.

33. The repudiation of the claim made by the opposite parties both for cashless treatment and also when regular claim was made has driven the complainant to file this complaint before the Forum.He has engaged the service of an advocate and filed this complaint in the year 2018. He has to fight out this litigation in order to take the same to the logical end.Necessarily he must have incurred expenditure and spent his labour and time being of senior citizen.Therefore we award a sum of Rs.5,000/- towards cost of litigation.Accordingly we answer point No.2 partly in the affirmative and proceed to pass the following order.

-:ORDER:-

The complaint filed by the complainant Sri. Gopalakrishna G Hegde u/s 12 of the Consumer Protection Act is allowed in part as under;

The complainant is entitle to receive from the opposite party a sum of Rs.2,06,235/- (Two lakh six thousand two hundred and thirty five)  only together with interest 8% p.a. to be calculated on the said amount from 23.02.2017 up to the date of actual payment.

The complainant is also entitle to receive a sum of Rs.50,000/- (Fifty  Thousand)  only  from the opposite party as compensation towards mental agony undergone by him.

   The complainant is also entitle to receive a sum of Rs.5,000/-  (Five thousand) only  from the opposite party being the cost of  litigation. 

The opposite parties shall comply with the above direction within 30 days from the date of order.

  Supply free copy of this order to both the parties.

(Dictated to the Stenographer, typed by her, the open Forum on  9^th  day of January 2020)                                            

  (L.Mamatha)                             (D.R. Venkatasudarshan)     

     Member                                                President.  

 //ANNEXURE//

Witness examined for the complainant side:

Sri. Gopalakrishna G. Hegde, who being the complainant has filed his affidavit.

Witness examined on behalf of the Opposite Parties:

Miss. Pushpavathi S, legal officer at Zonal office of opposite party has filed her affidavit.

List of documents filed by the complainant:

1. True copy of proposal dated 18.11.2010 along with medical records submitted therewith.
2. True copy of medical examination report dated 29.11.2010 at Hubli Scan Centre.
3. True copy of the policy schedule with policy No.P/141212/01/2017/002304.
4. Hospital discharge summary dated 23.02.2017.
5. Hospital bills pertaining to treatment of the complainant’s wife.
6. True copy of the letter dated 17.02.2017 rejecting the claim for pre-authorization of cashless treatment issued by the opposite party.
7. Print of e-mail dated 02.03.2017 sent by the complainant to the Grievance cell of the opposite party.
8. True copy of the letter dated 17.05.2017 from the opposite party to the complainant.
9. Print of the e-mail sent by the Grievance Cell of the opposite party to the complainant.
10. Print of the e-mail dated 12.06.2017 from the Grievance Cell of the opposite party to the complainant.
11. Copy of the letter of withdrawal dated 12.01.2018 by the complainant to the office of the insurance Ombudsman.

List of documents filed by the opposite party No.2:

1. True copy of the claim form.
2. Ture copy of the claim form.
3. True copy of the repudiation claim.
4. True copy of the discharge summary.
5. True copy of the lab reports.
6. True copy of the terms and conditions.