BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 31st day of August 2017
Filed on : 30-01-2014
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.54/2014
Between
1. M.V. Antony, : Complainant
S/o. Vacko, House No. 16/2126, (By Adv. Jimmy George.
Madamakkal house, Kazhuthumutt, 2nd floor, Edassery Building,
Thoppumpaddy P.O., Banerji road, Ernakulam,
Cochin-682 005. Pin-682 031)
And
1. Star Health and Allied Insurance : Opposite parties
Company Ltd., 219, (By Adv. Arun Raj. S.,
2nd floor, Penta Towers, P.C. Chambers, Ashirbhavan
Kaloor, Cochin - 682 017, Road, Kacheripady, Ernakulam)
rep. by its Manager. Cochin-682 018)
2. Star Health and Allied Insurance
Company Ltd., New tank Street,
Vallure, Kottom High Road,
Numkampakkam.
Chennai-600 034,
Taml Nadu.
O R D E R
Cherian K. Kuriakose, President.
1. Complainant's case
2. The complainant took a medi-claim policy under the caption 'Senior Citizens Red Carpet Insurance Policy' schemed by the opposite party. The policy commenced from 22-03-2012 . That policy was thereafter renewed on instruction from the opposite party on11-03-2013 which was to expire on 21-03-2014. The sum insured was Rs. 2,00,000/- and the complainant paid a premium of Rs. 9,500/- for the year. The complainant was admitted as an inpatient at medical trust hospital, Ernakulam from 12-08-2013 till 13-09-2013. He was diagnosed for having S/T PPI (Medtronic) for Significant Sinus Pauses, Systemic Hypertension Grade II, Hypertensive Retinopathy, Diabetic Nephropathy and Chronic Kidney Diseases. The complainant incurred medical expenses to the tune of Rs. 3,61,142/- for the inpatient treatment at Medical Trust Hospital, Ernakulam. In addition to that he had spent Rs. 41,230/- towards purchase of medicines from outside and towards expenses of medical lab examination. The complainant requested the opposite parties to settle the claim by way of reimbursement. They had summarily rejected the claim of the complainant alleging suppression of material fact . It was alleged that the complainant was suffered from T2DM, SHTN and CKD of conservative management since 2 years. The said allegations are false and unsustainable. The complainant had never ever suppressed any material facts to the opposite parties at any point of time . The hospitalization of the complainant was all on a sudden and no ailment were noted or treated by the complainant before. The opposite party has no right to reject the claim. The complainant is legally entitled to get reimbursed all the medical expenses incurred by him. The complainant is a consumer and he is limiting the claim for Rs. 2,00,000/- with interest and costs to be paid by the opposite parties.
3. The opposite parties 1 and 2 appeared and resisted the claim by filing a version contending inter-alia as follows:
4. The complaint is not maintainable. Insurance contract is governed by the policy conditions . The complainant is an insured holding the Senior Citizens Red Carpet Insurance Policy. The insured was mandatory required to furnish and disclose his medical history including whether the proposed person suffered from any disease or illness irrespective of whether hospitalization or not. The complainant has not disclosed of having suffered from any disease as on date of submission of proposal. In the additional questionnaire annexed to the proposal form specific diseases like cancer, chronic kidney disease (CKD) , CVA /Brain stroke, Alzheimers disease and Parkinson disease required an open disclosure. The complainant had answered the query as "no" to the diseases mentioned in the additional questionnaire. On the basis of the disclosures in the proposal form and in the questionnaire, the opposite party had issued a policy to the complainant on 22-03-2012 along with terms and conditions with a coverage of Rs. 2,00,000/-. On 11-03-2013 the said policy was renewed on the same terms and conditions. The claim of the complainant having number 91359 pertaining to reimbursement of the hospitalization of the complainant was received . He was admitted with a case of back pain and high creatinine level and he was diagnosed for Significant Sinus Pauses systematic Hypertension, Grade II Hypertensive Retinopathy, Diabetic Nephrology and Chronic Kidney disease. The opposite party received the claim form on 25-09-2013 along with the discharge summary issued by Medical Trust Hospital, Ernakulam. As per the discharge summary the complainant was admitted with Chronic Kidney disease and was on conservative treatment Nephrology department. The complainant was suffering from Chronic Kidney disease, hypertension and diabetics since the last two years. The complainant suppressed his past medical history in the proposal form and in the questionnaire. There was willful suppression of material facts and therefore the 1st opposite party had repudiated the claim for reimbursement. In his letter dated 11-12-2013 the complainant himself had admitted that he has not disclosed his health conditions at the time of taking the policy due to his ignorance. The opposite party did not conduct any medical examination at the time of taking the policy. The repudiation of the claim therefore was on justifiable grounds . The complainant had approached the Forum with unclean hands and without bonafides. There was no deficiency in service on the part of the opposite parties and therefore the complaint is liable to be dismissed.
5. On the above pleadings the following issues were settled for consideration.
i. Whether the complainant had proved that the opposite party insurance company had committed deficiency in service as alleged?
ii. If so the complainant is entitled compensation as prayed for?
iii. Reliefs and costs.
6. The evidence in this case consists of the documents Exbts. A1 to A5 on the side of the complainant and the oral evidence of PW1 were marked. The opposite party marked Exbts. B1 to B8 documents and the oral evidence of DW1. Exbt. X1 medical records were also called for and marked.
7. Issue No. i. According to the opposite party the complaint is not maintainable, the complainant did not disclose his previous illness prior to taking up the policy. In the proposal form mandatory details of the insured are sought for. The complainant has not disclosed for having suffered from any disease. In the additional questionnaire annexed to the proposal form specific diseases such as Chronic Kidney disease (CKD) (Brain Strok) etc. were required an open disclosure. The complainant not only failed to disclose his medical history but he answered 'no' to the specific diseases mentioned in the additional questionnaire. It is seen from Exbt. A5 discharge summary that the complainant was admitted with CKD (Chronic Kidney diseases and was on conservative treatment under Nephrology Department. The complainant had already been suffering from CKD, type II DM and systematic Hypertension at the time of taking the insurance policy and had willfully withheld the health condition from the opposite party. It was therefore the opposite party had issued the repudiation letter dated 22-11-2013 (Exbt. B6). In Exbt. B7, letter issued by the complainant, we admitted that he has not disclosed his health conditions at the time of taking the policy due to his ignorance. He also admitted that he did not undergo any medical examination at the time of taking the policy. As the insurance policy was ab initio void due to suppression of material facts of previous disease suffered by the complainant. The opposite party justified the repudiation. There is no dispute to the fact the complainant had taken a senior citizens Red Capet Insurance Policy of the opposite party. In the rewed policy it was stated that there was no pre-existing disease as on the date of commencement of first year policy which was taken one year ago. The opposite party did not produce any medical record to prove that the complainant had suffered any CKD prior to his joining the insurance policy, issued to him originally. Exbt. B4, is the claim form for medical insurance. In Exbt. B4 in column No. 7 of the medical certificate filled by the treated doctor, it is seen stated against the past history that there was complaint of type II DM systemic Hypertension and CKD on conservative management ( 2 years) . It is this entry prepared by Dr. M.M. Hussan the authorized medical attendant attached to medical trust hospital Kochi, which has been relied on by the opposite party to repudiate the claim of insurance against the complainant. It is seen from column No. 3 in page number 4 of Exbt. B4 that the complainant was treated by Dr. Mammen M. John and Dr. Manu R. Varma during his admission between 12-08-2013 and 13-09-2013 . The mere writing by Dr. MM Hussan, MBBS of the Hospital that the complainant suffered from Type II DM, CKD, systemic H hypertension etc. for 2 years will not help the opposite party in proving that the complainant had suppressed material facts. The period of 2 years mentioned by the said Doctor in Exbt. B4 is not supported by any of the medical documents, showing that the complainant had occasion to treat those ailments conservatively as alleged. The opposite party did not examine the doctor Shri. M.M Hussan, who prepared such a certificate in the claim form to prove that the filling up of the columns by him were based on clear medical records available in the hospital. It is pertinent to note that there was no claim on the part of the complainant during the 1st year of the policy. Therefore it can be safely inferred that the complainant was healthy without any previous episodes of CKD, Type II DM, and systemic Hipertension, to his knowledge. In 2009 8 S.C.C. 316 (Satwant Kaur Sandhu Vs. New India Assurance Company Ltd.) the Hon'ble Supreme Court held as follows:
"A mediclaim policy is a non-life insurance policy meant to assure the policy holder in respect of certain expenses pertaining to injury, accidents or hospitalizations. Nonetheless, it is a contract of insurance falling in the category of contract uberrimae fidei, meanings a contract of utmost good faith on the part of the assured. Thus, when an information on a specific aspect is asked for in the proposal form, an assured is under a solemn obligation to make a true and full disclosure of the information on the subject which is within his knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. Of course, the obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. The obligation to disclose necessarily depends upon the knowledge one possesses. His opinion of the materiality of that knowledge is of no moment.
8. In this case there is absolutely no evidence to show that the complainant was aware that he was suffering from type 2 DM,. CKD or from Systemic hypertension at any time prior to his signing the proposal form. The opposite party bound to produce reliable materials to prove that despite knowledge of having such diseases the complainant had suppressed material facts regarding his illness in the proposal form and in the questionaire annexed there to. Without proving that the complainant had the requisite knowledge of any such illness we find that the opposite party insurance company was not justified in law in repudiating the claim of the complainant. In the discussion column of Exbt. B5, of course there is a mentioning that the complainant had chronic kidney diseases and was on conservative treatment. That does not mean that the origination of CKD was prior to the sighing of the insurance contract for the 1st time. It could as well be originated during the 1st year of policy period. We have gone through Exbt. X1 case sheet and records pertaining to the complainant kept in the hospital concerned. We are not able to find anything in Exbt. X1 to come to a conclusion that the complainant was suffering from type 2 DM systemic HTN and CKD prior to his entering into the insurance contract with the opposite parties.
10. Considering the materials brought in evidence as above we find that the complainant had proved his case of deficiency in service on the part of the opposite parties. We therefore find the issue in favour of the complainant.
11. Issue No. ii. In the result, we allow the complaint by passing the following directions to the opposite party.
i. The opposite party is directed to reprocess the claim of the complainant and to pay Rs. 2,00,000/-( the maximum sum limit of sum insured) with interest @ of 12% p.a. by way of reimbursement of the medical claim from 30-01-2014 the date of filing this complaint till the date of realization.
ii. The complainant is found entitled to realize costs of this proceedings which we estimate at Rs. 10,000/-, from the opposite parties and the opposite parties are directed to pay the same within one month from the date of receipt of this order and if not paid within the stipulated time, the amount will carry 12% interest till the date of realization.
Pronounced in the open Forum on this the 31st day of August 2017
Sd/-
Cherian K. Kuriakose, President.
Sd/-
Sheen Jose, Member.
Sd/-
Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent
Appendix
Complainant's Exhibits:
Exbt. A1 : Senior Citizens red carpet
insurance Policy – Schedule
A2 : Discharge summary
dt. 13-08-2013
A3 : Repudiation of claim
dt. 22-11-2013
A4 : Copy of regd. Letter
dt. 11-01-2014
A5 : Details of treatment expenditure
X1 : Medical record of Mr. Antony M.V.
Of Medical trust hospital
Opposite party's Exhibits :
Exbt. B1 : Copy of star senior citizens' red
carpet insurance proposal
B2 : Copy of Senior Citizens red carpet
insurance policy – schedule
B3 : Senior citizens red carpet
insurance policy – schedule
B4 : Claim form for medical insurance
B5 : True copy of discharge
summary dt. 13-09-2013
B6 : True copy of repudiation of
claim dt. 22-11-2013
B7 : Copy of letter dt. 11-12-2013
B8 : True copy of repudiation
dt. 11-01-2014
Deposition:
DW1 : Manu Mohan
