SMT. RAVI SUSHA  : PRESIDENT

  The complainant  has filed this consumer complaint U/S  35 of the Consumer Protection Act 2019  seeking to get an  order directing  opposite party to pay Rs.2,00,000/-  to the complainant along with  12%interest  together with cost of the case.

    The brief  facts of the case are that the complainant  is a  Family health insurance policy holder   bearing No.P181322/01/2021/006581 from OP, for a period  from 29/11/2018 to 28/11/2019 and the  same has been renewed upto 28/11/2021.  The sum assured amount was Rs.10,00,000/- covering the  complainant, his wife and daughter.  The limit of coverage was Rs.1225,000/-.  For taking the policy the total premium of Rs.34095/- was paid by the complainant.  During the  first week of April 2021 the complainant  effected by Urinary infection  as such complainant approached  Aster Mims Hospital Kannur , after detailed checkup it was noticed that a calculus  measuring size of 4.5x3mm in the  right proximal urethra with milled obstructive  prominence  of right renal pelvis and calyces.  On 6/4/2021, the  complainant was admitted at Aster Mims Hospital for Right URS Laser Lithoteripsy due to Right Upper Ureteric stone and was discharged  on 9/4/2021, for the treatment  Rs.80864/- spend .    After discharge  complainant approached  the OP for re-imbursement of the same by submitting all treatment  records.  It is  further submitted that  though the OP rejected the  claim stating that the patient had history  low grade Myxoid Liposarcoma back of lower  right leg since 2011 . It is submitted that  the  complainant  was effected  by  low grade Myxoid Lip sarcoma back of lower  tight right  in the year since 2011  accordingly  clinical findings was the swelling  was having no  associated pain.  The marginal excision along pseudo capsule was done on 26/3/2011.  From 2012 onwards the complainant was a healthy person having no symptoms of any ailment, even at the time of joining the policy in the year 2018 .  It is submitted that the complainant  of kidney stone was no way connected to Low Grade Myxoid Liposarcoma back of lower  right leg. As such the finding of the OP regarding the repudiation of the claim is not maintainable on facts and against the insurance  law.  The act of OP is  deficiency in service and unfair trade practice.  Hence  the complaint.

      After receiving notice OP entered appearance through counsel and filed written version stating that  complainant had taken Family health Optima insurance policy from them, for a period  from 29/11/2018 to 28/11/2019 and the  same has been renewed upto 28/11/2021 for the sum insured of Rs.10,00,000/- covering the  complainant, his wife and daughter. At the time of issuing the policy it is clearly stated that the insurance under this policy is subject to conditions, clauses, warranties, exclusions etc . In the proposal  form, the complainant has  specifically declared that he was not suffering from any disease or ailment at the time of submitting the proposal form. OP submitted that  he had received a request for cashless hospitalization and pre anesthesia Evaluation reports from Aster Mims Hospital, Kannur  stating that the complainant was admitted on 6/4/21 and was provisionally diagnosed  with calculi . In the pre anesthesia Evaluation reports it was noted that the complainant had past history of surgery for right knee-5-8 years back, diabetic mellitus and hypertension.  Discharge summary issued by SUT Hospital, Trivandrum  reveals that the complainant was diagnosed with  low grade Myxoid Liposarcoma back of lower thigh right.  Based on the available medical records, it is clearly evident that the complainant had history of Myxoid Liposarcoma since 2011 which is prior to the inception of  first policy and it was not revealed in the proposal form at the time of inception of policy.  As the complainant had willfully suppressed the disease in the proposal form, which is the basis of contract at the time of taking the policy, it amounts to suppression of material facts. The complainant has intentionally suppressed the existing disease in the proposal form despite  there is specific question in the health history  column.  As per condition No.5(6) of the policy, the company shall not be liable to make any payment under the policy in respect of any misrepresentation, misdescription or non disclosure of any material fact by the  policy holder.  As the complainant has wilfully suppressed the above disease in the proposal form, which is the basis of contract at the time of taking the policy, the OP had rejected the authorization  for cashless treatment and the same was communicated to the hospital and the complainant  vide letter dtd.9/4/2021.  Hence as per condition No.5(10) the OP had cancelled the policy and the same was informed to the complainant  as per letter dtd.13/4/21.  Subsequently the complainant approached the  Insurance Ombudsman for the entire facts, the petition dismissed   that  the company had repudiated  and cancelled the policy as per terms and  conditions.  The OP has not committed unfair trade practice or deficiency of service.  Hence prayed for the dismissal of the complaint.  

     At the evidence stage, complainant has filed his chief affidavit and documents.  He was examined as PW1 and the documents were marked as Exts.A1 to A7.  On the side of OP, Asst. Manager,Legal filed his  chief affidavit and documents.  He was examined as DW1 and the documents were marked as Exts.B1 to B9.  After that the learned counsel of OP made oral argument and  submitted judgment of Hon’ble High Court of Kerala.

   The undisputed facts in this case are that the complainant had taken Family health Optima insurance policy from OP, for a period  from 29/11/2018 to 28/11/2019 and the  same has been renewed upto 28/11/2021.  The sum assured amount was Rs.10,00,000/- covering the  complainant, his wife and daughter.  The limit of coverage was Rs.1225,000/-.  For taking the policy the total premium of Rs.34095/- was paid by the complainant.  Further admitted  fact that on 6/4/2021, the  complainant was admitted at Aster Mims Hospital for Right URS Laser Lithoteripsy due to Right Upper Ureteric stone and was discharged  on 9/4/2021.  The net bill amount for the treatment amounts to Rs.80864/-.  Further the request for  cash less treatment from the hospital was denied  by OP due to concealment of material fact ie, the insured has failed to disclose his pre-existing disease  ie, he has been suffering from  myxoid Liposarcoma in 2011 , in the proposal form at the time of inception of the first policy.  According to OP this amounts to concealment of material fact  and hence the policy issued is void ab initio.  So the treatment expense was paid  by the  complainant  and after  discharged from the hospital, he had filed  claim  application for reimbursement of  medical bill.  The OP repudiated  the claim application on the ground of suppression of material facts.

      Now the question  for consideration  is whether the repudiation by the insurance company on the aforesaid grounds was justified?

      Discharge summary of SUT Group of  Hospitals, Trivandrum(Ext.B6) placed on record which goes to show that the insured complainant Mr.Jacob was admitted in this  hospital on 25/3/2011 for the treatment of swelling right lower thigh x 3 months, Increased in size 2-3 weeks, No associated pain. Diagnosed as “ Low grade Myxoid Liposarcoma back of lower thigh right”.  Marginal Excision along pseudocapsule done- No adjuvant treatment  required.  The insured was discharged from the hospital on  30/3/2011.  No record of subsequent  period has been placed on record, which indicates that the insured must have been cured fully.  It can be seen in  Ext. B2 policy terms and conditions, Exclusions  clause 3(1)” Pre- existing disease(A) “ expenses related to the treatment of a pre-existing disease 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”.  Here the pre-existing disease has been occurred on 2011.  The waiting period as per condition  clause 3(1)(A) is 48 months  ie 4 years.  When the  policy was obtained  by the insured, the waiting  period of 48 months has expired ie policy was started on 2018.  Moreover the present illness is not a complication of the pre-existing  disease.  As stated above that no record  of subsequent  period  has been produced and therefore we can presume that the patient must have been  cured fully.   The next question for consideration is whether this was a material fact which was  required of the insured to have  disclosed in the proposal forms. In Satwant  Kaur Sandhu vs. New India Assurance Co.Ltd IV (2009) CPJ 8, Hon’ble Supreme Court  has held that  fact is not defined in the Act and  therefore  it has been understood in general terms to mean as any fact  which would  of a prudent  insurer  in fixing  the premium or determining whether he would like to  accept the risk.  In this judgment, Regulation 2(1)(d) of the Insurance Regulatory  and Development Authority Regulation , 2002 has been referred which  defines the word material to mean and include all important , essential and  relevant information in the context of guiding the insurer to decide whether to undertake the risk or not.  In this  case, the insured(complainant) had been treated for Low Grade Myxoid Liposorcoma back of  lower thigh Right and was discharged from the hospital on 30//3/2011.  The policy is obtained in the year 2018 and continued till 2021.  Long period has passed after insured was cured.  Withholding of such information  will not deprive the complainant  from receiving the payment  of insured  amount.  From the record, it is evident that the present  ailment is “Right  upper Ureteric stone”(Ext.A4.  History shows  patient presented  with left sided colic for 1 day duration, multiple episodes of vomiting(+).  Here we can see that though the patient submitted the treatment record and discharge summary from  SUT Hospital Trivandrum, there is no mention in Ext.A4 that the disputed disease is a complication or after  effect  of the  disease occurred in 2011.  We can also see that the present disease has no  relation with the prior disease(pre-existing disease).  Hence the contention raised by OP that there was material suppression from the side of insured while  filling proposal form for the inception of policy cannot be entertained.  Considering the view taken by the Hon’ble Apex court , about suppression  of material  facts as stated above, the judgments submitted by the learned counsel of OP, passed by Hon’ble High Court of Kerala and Insurance Ombudsman, cannot be taken into consideration .

   For the forgoing  reasons , we are of the considered view that, there is deficiency of service on the part of OP Insurance company in repudiating the genuine claim of the complainant.  We are of the view that repudiation of the complainant’s  insurance claim application is  unjustifiable.

         In the result  complaint is allowed in part .The opposite party Insurance company is directed to pay Rs.80864/-(Patient’s  net bill amount issued by  Aster MIMS ,Kannur for the  treatment) to the complainant .  The opposite party is further directed to pay Rs.20,000/- towards  compensation for the mental agony caused to the complainant due to the deficiency in service of  opposite party  together with Rs.5000/- as cost of  litigation.  Opposite party shall  comply  the order  within one month  from the  date of receipt of  the certified copy of this order.  Failing which Rs.80864+20,000/- carries interest @9% per annum from the  date of order till realization .  Complainant can execute the order as per the provisions in Consumer Protection Act 2019.

Exts:

A1- Copy of Aadharcard

A2- Medical discharge bill and  medical re-imbursement  application

A3- Application filed by complainant to OP

A4- Claim repudiation form

A5- policy cancellation letter

A6- Discharge summary issued by SUT hospital TVM

A7- Renewal policy

A1-Copy of RC

B1-Proposal form

B2- copy of policy schedule and condition

B3- copy of pre-authorization request

B4- copy of pre-anesthesia evaluation

B5-copy of query letter dtd.8/4/21

B6-copy of discharge summary dtd.30/3/2011

B7- copy of rejection  of authorization for cashless treatment dtd.9/4/21

B8- copy of discharge summary

B9- original award issued by  Insurance Ombudsman dtd.14/2/2022.

PW1- Jacob.K.J- complainant

DW1 –Balu.M-  OP

Sd/                                                                   Sd/                                                     Sd/

PRESIDENT                                             MEMBER                                         MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR