ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not allowing cashless entry to hospital treatment, not reimbursing the medical expenses which he has incurred for his treatment even though he had insurance cover with OP and for reimbursement of Rs.2,00,000/- along with interest at 2% p.m., from the date of claim and for Rs.2,00,000/- as damages for causing mental tension, agony, inconvince and for cost and for other reliefs as the Commission deems fit.

2.      The brief facts of the complaint are that;

The complainant obtained a health insurance policy from OP1 by paying a sum of Rs.9,978/- in all which includes SGST and CGST on 26.02.2018 for which OP issued the insurance policy bearing No.P141137/01/2018/002728 covering for the period 26.02.2018 till 25.02.2019.  He was also assured that he would get cashless entry to the hospital and also will be reimbursed the medical expenses incurred to the extent of Rs.2,00,000/-. 

3.      It is contended that during June 2018, his brother diagnosed having prostrate cancer through PSA test.  Fearing that he may also have the same he got tested at Sahuradaya Hospital, Alappuzha, Kerala, on 29.07.2018.  The said hospital authorities issued the lab report and the same was taken to St.Johns Hospital Doctor, at Bangalore for consultation who advised him to undergo biopsy test and after the same it was detected that he is having prostrate cancer.   Having come to know that he is suffering from prostrate cancer, he wanted to take second opinion in Kidwai Cancer Institute, Bangalore, by taking the slides of the biopsy test.  After receiving confirmed report regarding prostrate cancer from the Kidwai Hospital, he approached Health Care Global Enterprises Limited Hospital, (HCG) and consulted Dr.Raghunath, who is a surgical oncology specialist.  After going through the entire reports, he was advised by the doctor to undergo surgery for prostrate cancer and accordingly, he underwent the surgery by admitting himself on 03.10.2018 and discharged on 05.10.2018 by HCG hospital.  Earlier to it he submitted all his medical report and documents to OP for cashless admission to the hospital which was rejected on 30.09.2018.  Again he submitted the relevant documents on 1.10.2018 to OP who did not look into the same.  After the surgery he made a claim for reimbursement of the amount spent by him ie., Rs.4,60,000/- by providing all the medical bills, receipts and vouchers.  Inspite of it OP failed to consider the same and has denied the proceeds of the insurance.  Hence he had to issue legal notice to OPs which was served on them.  Inspite of the same as they did not comply the demand, has filed this complaint.

4.      Upon the service of notice, OP1 appeared before the Commission through one Janardhana Reddy Advocate who filed the version. The said advocate also filed Memo of appearance on behalf of OP2, 3and 4.  In the version filed by OP1, it is contended that the complaint is not maintainable either in law or on facts, it is vexatious, baseless, just filed for unlawful gain.  It is based on erroneous, assumption of facts and law.  The medical health insurance policy issued to the complainant is subject to various terms and conditions, exceptions and limitations and also subject to the clauses, conditions and warrantees.

5.      It has admitted the issue of mediclaim policy to the complainant and also the claim made by the complainant in respect of hospitalization and undergoing surgery for “adenocarcinoma prostrate”, and also admitted complainant having made request for pre-authorization for cashless facility and the same was denied.  Afterwards, claim was also made for reimbursement of the amount paid, which was rejected by them on the ground that the complainant has suppressed the material information. 

6.      Further it is contended that the prescription dated 7.9.2018 by the treating hospital has mentioned that the patient has history of bronchial asthma with wheezing since childhood and obstructive sleep apnea(OSA) on over night CPAP and also in the discharge summary at the time of admission to St.Johns medical hospital, it was also mentioned on 22.08.2018 that the complainant has urinary track symptoms for the last seven months and further the inception of the insurance policy was on 26.02.2018 to 25.02.2019 and he has not disclosed the above mentioned medical history /health in the proposal form which amounts to misrepresentation and non disclosure of material facts, which is violative of the terms and conditions No.6 and 12 of the policy which empowers the insurance company not to repsect the claim and to cancel the policy.  By denying all the allegations made against it, and further contending that issue of insurance is under the mutual good faith, prayed the forum to dismiss the complaint.

7.      In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

8.     Our answers to the above points are:-

POINT NO.1:            In the Affirmative

POINT NO.2:            Partly in the affirmative.

                                For the following.

REASONS

9.     POINT No.1:-

   Perused the complaint, version, affidavit evidence and the documents produced by respective parties.  It is not in dispute that OP is doing business in insurance and the complainant purchased insurance policy for the period 26.02.2018 to 25.02.2019 by paying the requisite insurance premium amount which OP has admitted.  

10.   It is the specific case of the OP that the complainant has suppressed the material facts regarding he having bronchial asthma and wheezing from childhood and also he was having sleep apnea and further the discharge summary issued by the St.Johns medical hospital discloses that he was having urinary track infection seven months prior to getting consultation with the hospital i.e., during September 2018 and the insurance was taken during February 2018 and hence the complainant was knowing that he was having some urinary problem and hence same was not disclosed in the proposal form and the material information was withheld which is detrimental to his claim and as per the terms and conditions, they are empowered to deny the risk and also have right to cancel the policy.  

11.   In the proposal form produced, it is mentioned at column 4(e) that he had not suffered or suffering from asthma or respiratory infection and at 4(j) disease of prostrate /fistula/piles /genital diseases and at 4(l) no other medical problems.  This proposal form marked as Ex.R1 is dated  17.02.2018. 

12.   Except the mentions made in the case summary /discharge record issued by St.Johns College hospital on 22.08.2018 that the complainant was having obstructive sleep apnea that too when he had gone for investigation no material has been placed independent of the said document to show that the complainant was actually and really suffering from bronchial asthma, sleep apnea and having urinary track infection prior to taking the mediclaim insurance policy from OP.  

13.   The decisions of the Hon’ble National Commission and the Supreme Court are to the effect that the insurance company has to prove on its own the complainant or the person who purchases the insurance policy was having medical problems which he has purposefully and wantonly suppressed at the time of obtaining the insurance.  It should be material suppression or withholding his medical conditions.

14.   Nowadays wheezing or bronchial asthma has become common due to the pollution from the factories from the smoke emanated from the vehicles.  It is very hard to get fresh air to breath in the cities.  Further non disposing of the waste also adds to the pollution and people will not get good air and fresh air to breath.  Further though there is no documents placed before us regarding the complainant having bronchial asthama the same has nothing to do with the complainant’s prostrate cancer which the complainant had and got it operated surgically.  Further even assuming for the movement that he was having sleep apnea that is also nothing to do with the prostrate cancer which the complainant was suffering.  There are no materials placed by the OP to show that the complainant was suffering from urinary track infection and having prostrate enlargement.  No documents worth believing has been placed on record to show that the complainant was having the above medical problems which he purposefully suppressed at the time of obtaining the insurance policy.  At the time of obtaining insurance policy he might not be having any urinary track infection.  When the doctor enquired about as to how long he is suffering from the infection he might have told about six to eight months. That itself cannot be taken as a gospel truth to come to the conclusion that the complainant was having urinary track infection and problem relating urine prior to obtaining the insuance policy.  The urinary track infection may occur at any time if a male person has sex with his partner and also due to various reasons and also his living habits.  In view of this the repudiation of the claim made by the complainant in respect of reimbursement of the medical expenses and also denial of cashless entry to the hospital for treatment amounts to deficiency in service.

15.   The said medical problems even assuming for the movement the complainant was having and not disclosed is not a material nondisclosure and has no relevancy to the prostrate cancer which the complainant suffered.  Hence we answer point No.1 in the affirmative holding that there is deficiency in service.

16.   POINT NO. 2:

Upon going through the medical bills produced by the complainant, he has spent and paid Rs.4,36,392/- towards the surgery which he had undergone for prostrate cancer.  Upon perusing the insurance document, the sum insured is only Rs.2,00,000/- and the liability of the insurance company is only to that extent and not liable to pay the entire cost incurred by the complainant. Hence it is just, proper and reasonable to direct OP to pay Rs.2,00,000/- towards the claim of the complainant along with interest at 12% on the said amount from the date of claim till payment of the entire amount.  Further the repudiation of reimbursement of the hospital expenses and the denial of permission for cashless admission to the hospital has really caused mental worry and agony to the complainant who is a senior citizen aged about 61 years at the time of taking the treatment.  Considering the gamut of the suffering and agony undergone by the complainant, we are of the opinion that if a sum of Rs.25,000/- is awarded towards damages and Rs.5,000/- towards litigation expenses would meet the ends of justice.  Hence we answer point No.2 partly in the affirmative and pass the following;

ORDER

1. Complaint is allowed in part with cost.
2. OP is directed to pay Rs.2,00,000/- towards the claim of the complainant along with interest at 12% p.a., from the date of claim till payment of the entire amount.
3.  OP is further directed to pay a sum of Rs.25,000/- towards damages and Rs.5,000/- towards litigation expenses to the complainant.
4. The OP is further directed comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this Commission within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 20^th Day of OCTOBER 2020)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Star Health and Allied Insurance Policy

Ex P2: Copy of the endorsement for having received the claim petition and medical documents

Ex. P3: Copies of the medical test reports

Ex P4: Copy of the Discharge summary

Ex P5: Copy of the denial letter of preauthorization request for cashless treatment dt. 30.09.2019

Es P6: Copies of Bill pertaining to the amount paid for surgery to HCG Hospital

Ex P7: Copy of the details of treatment given by the treating physician

Ex P8: Copy of the denial letter of pre-authorisation request for cash less treatment dt.01.10.2019

Ex P9: Copy of the legal notice

Ex P10: Copy of the Postal acknowledgement

Ex P11: Copy of the reply from the OP insurance company

Ex P12: Copy of the repudiation letter

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri.G.Mahadevan

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the proposal form

Ex R2: Copy of the Insurance Policy along with conditions

Ex R3: Copy of the request by OP for cashless hospitalization

Ex R4: Copy of the Denial Letter

Ex R5: Copy of the endorsement given by us to the complainant to approach ombudsman in case they are not agreeable for repudiation

Ex R6: Copy of the claim form

Ex R7: Copy of the discharge summary and medical examination records of HCG, St.John’s Medical College, Baptist Hospital, New Med Diagnostics, Kidvai Institute of Onchology,

Ex R8: Copy of the directing to complainant to produce additional documents

Ex R9: Copy of the Repudiation letter dated 13.12.2018

Ex R10: Copy of the letter received from the complainant.

MEMBER                                PRESIDENT