BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 25/08/2014

Date of Order : 31/10/2014

Present :-

Shri. A. Rajesh, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beena Kumari, Member.

C.C. No. 628/2014

Between

And

O R D E R

A. Rajesh, President.

1. The case of the complainant is as follows :-

The complainant availed a Health Insurance Policy from the opposite parties on 01-01-2013 for an insured amount of Rs. 5 lakhs. The said policy was renewed on 27-12-2013. The complainant was admitted in Sree Sudheendra Mission Hospital on 03-01-2014 due to heavy bleeding. After verifying the ultra sound scan and MRI scan of pelvis, the doctor referred the complainant to an Onco Gynaec Surgeon in the Lakeshore Hospital. She was admitted to the hospital on 17-01-2014. On 18-01-2014, the doctor confirmed of vault of vaginal cancer. The complainant was referred to Regional Cancer Centre (RCC), Thiruvananthapuram. The complainant had to undergo chemotherapy and radiation therapy. Neither the opposite parties did pay the insurance claim of the complainant nor did they reject the insurance claim for their own reasons. At that juncture, the complainant caused to issue a lawyer notice to the opposite parties and received a reply from the opposite parties stating that the complainant had cancerous symptoms seven years back, when the complainant underwent a hysterectomy surgery in Sunrise Hospital, Kakkanadu. The opposite parties accused the complainant of suppressing the above fact. Thus, the complainant is before us seeking direction against the opposite parties to pay the insurance claims of the complainant and the expenses incured for the bystander together with a compensation of Rs. 12 lakhs and Rs. 2 lakhs towards costs of the proceedings. This complaint hence.

2. The version of the opposite parties is as follows :-

The complainant is an insured holding the Medi-Classic Insurance Policy (Individual) of the opposite parties for a further period from 03-01-2013 to 02-01-2014. The policy was renewed for the period from 03-01-2014 to 02-01-2015. The complainant had intimated 6 claims to the opposite parties. As the complainant suppressed the past history of disease and the treatment taken by her in the proposal form, the opposite parties vide its letter dated 08-02-2014 rejected the claim inter alia on the ground that the treatment records of the complainant revealed that she had history of hysterectomy done 7 years back and the present illness is a complication of previous surgery and it falls under exclusion clause No.1 of the policy. The complainant had suppressed her health history, while taking the policy, and therefore, the insurance company is not liable under the policy. The complaint is liable to be dismissed.

3. No oral evidence was adduced by the parties. Exts. A1 to A11 and Exts. B1 to B15 were marked on the part of the complainant and the opposite parties respectively. Heard the complainant who appeared in person and the learned counsel for the opposite parties.

4. The points that came up for consideration are as follows :-

1. Whether the complainant is entitled to get the insurance claims from the opposite parties?

2. Whether the complainant is entitled to get the bystander expense reimbursed from the opposite parties?

3. Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainant?

5. Point No. i. :- It is not in dispute that the complainant was holding Medi-classic Insurance Policy (Individual) issued by the opposite parties for the period from 03-01-2013 to 02-01-2014 with sum insured of Rs. 5,00,000/-, and thereafter, renewed the policy from 03-01-2014 to 02-01-2015. It is also not in dispute that during the currency of the insurance policy, the complainant had undergone treatment at Sudheendra Medical Mission Hospital, Ernakulam Lakeshore Hospital, Ernakulam and Regional Cancer Centre, Thiruvananthapuram. The opposite parties repudiated the 1^st insurance claim of the complainant in respect of her treatment at Sree Sudheendra Medical Mission Hospital, Ernakulam vide Ext. B5 letter dated 08-02-2014, which reads as follows :-

“We have perused the claim records relating to the above insured patient sent to us seeking reimbursement of hospitalization expenses for treatment of above said diagnosis.

1. Hospitalization not required :- On a perusal of hospital records including discharge summary, our medical team is of the opinion that the health condition of the above insured patient and the nature of treatment given would have necessitated an out patient treatment only and hospitalization was not absolutely necessary.

2. Complication of Pre-existing disease :- The treatment records clearly reveal that the patient had history of hysterectomy 7 years back. The policy commences from 03-01-2013. Since the present illness is a complication of previous surgery, it falls under Exclusion Clause No.1 of the policy. ie; pre-existing disease.

3. Suppression of Material Facts :- The treatment records clearly reveal that the patient had history of hysterectomy 7 years back. Existing illness Suppressed while taking policy. In the proposal form, you have not revealed the previous health related complaints. A health insurance policy is issued 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 on health of a person would make the insurance policy void ab-initio.

We therefore regret our inability to admit your claim under the above policy and we hereby repudiate your claim.”

The subsequent insurance claims in respect of the treatment of the complainant at Lakeshore Hospital, Ernakulam, and Regional Cancer Centre, Thiruvananthapuram met the very same fate.

6. The primary ground for repudiation of the insurance claim is not sustainable in law, for the simple reason that the doctor who treated the patient is to decide whether inpatient treatment is necessary or not. It is the prerogative of the treating doctor to determine the mode of treatment he has to follow in a given case, provided it does not deviate from the normal rules of medical practice. The observation made by the Hon'ble State Consumer Disputes Redressal Commission, Chattishgarh in Oriental Insurance Company Ltd. Vs. Shankarlal R. Patnani (III (2005) CPJ 204), underlines the above proportion of law, which reads as follows:

“Every medical treatment is always preceded by clinical or other examination of the patient and the discretion as to nature and the manner of such tests lies with the doctor.”

7. A similar view has been taken by the Hon'ble Madhya Pradesh State Consumer Disputes Redressal Commission in New India Assurance Co. Ltd. Vs. Anand Gourana 2010 CTJ 77 (CP).

8. In view of the opposite party submitting no convincing evidence to the contrary, we follow the above rule of medical practice and our considered view is that the repudiation of the claim by the opposite party on the above ground tantamount to deficiency in service.

9. Secondly, the opposite parties contended that the present ailment is a complication of previous surgery, which the complainant had undergone 7 years back. Ext. A1 certificate issued from Sunrise Hospital, Ernakulam dated 13-02-2014 goes to show that the complainant had undergone “vaginal hysterectomy” in 2007 for Fibroid Uterus. The present ailment of the complainant was diagnosed as “carcinoma vault of vagina evident from Ext. A4. Neither medical literature nor opinion of doctor is before us to show the relationship between the previous ailment and the present ailment. Moreover, the opposite parties defined pre-existing disease in Ext. A5 insurance policy schedule which reads as follows :-

“Pre-existing disease means, any condition, ailment or injury or related condition(s) for which the insured person had sings or symptoms and/or was diagnosed and/or received medical advice/treatment within 48 months prior to insured persons first policy with any Indian Insurer.” (emphasis supplied).

In the case at hand, admittedly, the complainant had subjected to hysterectomy 7 years prior to the inception of the policy.

10. The Hon'ble National Consumer Disputes Redressal Commission in National Insurance Company Ltd. & Anr. Vs. Gisin R. Shah III (2012) CPJ 322 (NC), held that “Insurance company was liable in spite of suppression of pre-existing disease as insurance company failed to establish link between pre-existing disease and the abscess for which insured has operated on.” In the instant case at hand, the opposite parties could not place on record any material to show that 'vaginal hysterectomy' had any nexus with 'carcinoma vault of vagina' and in such circumstances, the repudiation of the insurance claims on this ground as well amounts to deficiency in service on the part of the opposite parties.

11. Thirdly, the opposite parties argued that the treatment records clearly reveal that the patient had history of hysterectomy 7 years back and the complainant failed to state the same in the proposal form. The learned counsel for the opposite parties vehemently and vigorously contended that the opposite parties are not liable to pay the insurance claims to the complainant in view of the celebrated decision rendered by the Law of the Land in Satwant Kaur Sandhu Vs. New India Assurance Co. Ltd. (2009) 8 SCC 316.

12. Evidently, the complainant had not stated her previous treatment and operation in Ext. B1 proposal form. However, right from the beginning, the case of the complainant is that she had submitted Ext. A1 before the opposite parties along with Ext. B1 proposal form, which goes to show that she had no intention to suppress her previous ailment and she voluntarily disclosed her previous ailment at the time of inception of the insurance policy. The opposite parties have not disputed the same either in their version or during the proceedings. The Hon'ble Apex Court in P.C. Chacko and Another Vs. Chairman, L.I.C. observed that, “misstatement by itself is not material for repudiation of the policy, unless the same is material in nature. But a deliberate wrong answer which has a great bearing on the contract of insurance, if discovered may lead to the policy being vitiated in law. The purpose for taking a policy of insurance is not very material. It may serve the purpose of social security, but then the same should not be obtained with a fraudulent act by the insured. Proposal can be repudiated if a fraudulent act is discovered.”

13. In view of the above, we are of the considered opinion that there is no suppression of any material fact or a fraudulent suppression on the part of the complainant at the time of availing the insurance policy. Therefore, the judgment of the Hon'ble Supreme Court in Satwant Kaur's case (Supra) is not applicable to this case.

14. In short, the repudiation of the insurance claims of the complainant amounts to sheer deficiency in service on the part of the opposite parties. Thereby, the complainant is entitled to get the insurance claims from the opposite parties with interest for her treatment at Sree Sudheendra Medical Mission Hospital, Ernakulam, Lakeshore Hospital, Ernakulam and Regional Cancer Centre, Thiruvananthapuram.

15. Point No. ii. :- The complainant has claimed the bystander expenses incurred by her during the treatment at various hospitals. We are at a loss to consider the same for the simple reason that the same does not find a place in the terms and conditions of the insurance policy.

16. Point No. iii. :- According to the complainant, she had to undergo harassment and humiliation at the hands of the opposite parties during her stay at Regional Cancer Centre, Thiruvananthapuram and she had to send a complaint to the local police station evidenced by Ext. A11 complaint and acknowledgment. No plausible explanation is forthcoming on the part of the opposite parties as the said allegations.

17. Though compensation in terms of money cannot be taken as panacea, but it does mitigate the mental agony or sufferings of the complainant. The compensation talked in Section 14 of the Consumer Protection Act is not only confined to the award of monitory compensation for loss and/or injury suffered by a consumer, but it has many other elements as has been held by the Hon'ble Apex Court in the case of Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65, wherein the Hon'ble Supreme Court has held as under :

“The word 'compensation' is again of very wide connotation. It has not been defined in the Act. According to dictionary, it means 'compensating or being compensated : thing given as recompense. In legal sense it may constitute actual loss or expected loss and may extend to physical, mental or even emotional suffering, insult or injury or loss. Therefore, when the Commission has been rested with the jurisdiction to award value of goods or service and compensation it has to be construed widely enabling the Commission to determine compensation for any loss or damage suffered by a consumer which in law is otherwise included in wide meaning of compensation. The provision in our opinion enables a consumer to claim and empowers the Commission to redress any injustice done to him. The Commission or the Forum in the Act is thus entitled to award not only value of the goods or services but also compensate a consumer for injustice suffered by him.”

18. In view of the above, we think that a lumpsum compensation of Rs. 50,000/- is enough to abate the agony of the complainant in addition to the treatment expenses incurred by her.

19. In the result, we partly allow the complaint and direct as follows :-

1. The opposite parties shall jointly and severally pay the insurance claims of the complainant in respect of her treatment at Sree Sudheendra Medical Mission Hospital, Ernakulam, Lakeshore Hospital, Ernakulam and Regional Cancer Centre, Thiruvananthapuram with interest @ 12% p.a. from the date of this complaint till realisation.

2. The opposite parties shall jointly and severally also pay Rs. 50,000/- (Rupees Fifty thousand only) to the complainant towards compensation for the reasons stated above.

The order shall be complied with, within a period of thirty days from the date of receipt of a copy of this order failing which the compensation amount would carry interest @ .12% p.a. till realisation

Pronounced in the open Forum on this the 31^st day of October 2014.

Sd/- A. Rajesh, President.

Sd/- Sheen Jose, Member.

Sd/- V.K. Beena Kumari, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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