Samaresh Kumar Mitra, Presiding Member.
This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant that the complainant insured himself and his wife, son and two daughters in a mediclaim insurance policy namely, “Family Health Optima Insurance Plan” issued by the opposite party and he continued the said policy without any default. In the year 2018 he renewed the above policy for the period from 30.6.2017 to 29.6.2018 by paying premium amount of Rs.9741/- and the sum insured total Rs.2,30,000/-. Thereafter he renewed the said policy on 18.6.2018 for the period from 30.6.2018 to midnight 29.6.2019 by paying premium amounting to Rs.13,640/-. During the period of two policies the wife of the complainant namely, Sahahzadi Darakshan fall ill and detected that she was suffering from Carpal Tunnel Syndrome in her hand and she was treated by local doctor namely, Debal Laha and thereafter came in touch with Dr. Siddhartha Bose attached with Appollo, Chennai. As per instruction of the said doctor she was admitted to Appollo, Chennai on 30.6.2018 where surgery had been done by hospital authority under the leadership of Dr. Sidhartha Ghosh and estimated a sum of Rs.1,22,781/- for the treatment. After the said surgery the complainant applied for disbursing the total sum of Rs. 1,22,781/- towards cashless facility but the opposite party insurer only provided a sum of Rs. 50,000/- towards cashless facility as full and final settlement in respect of aforesaid medical policies. As a result the complainant had to pay rest sum of Rs.72,781/- by cash including pre and post hospitalization for the treatment of his wife. The wife of the complainant admitted on 30.6.2018 and released on 2.7.2018. Subsequently the complainant lodged his claim for reimbursement of the amount of Rs. 72,781/- to the extent of the amount spent by the complainant for his ailing wife. Complainant submitted all relevant documents/ papers to the opposite party for processing the claim but opposite party whimsically settled Rs.39,553/- to the hospital towards hospitalization expenses (cashless) toward full and final settlement but actually disbursed a sum of Rs. 50,000/- claim made by the complainant. As a result, complainant had to bear a further cost of Rs.72,781/- for the said treatment of his wife. During the period of settling claim the opposite party did not bother to explain any cogent ground as to why the entire claim of the complainant had not been considered which is absolutely illegal and suppression of disclosing the actual fact of deduction is the best example of illegal trade practice on the part of the opposite party, Insurance Company. Thereafter the complainant approached the opposite party for getting his claim but his all efforts came in vain. Getting no other alternative the complainant filed the instant complaint petition praying directions as incorporated in the prayer portion of the complaint petition.
The opposite party, Insurance Company contested the case by filing written version denying inter-alia all the material allegations as leveled against him. This opposite party submits that the insured patient Mrs. Sahahzadi Darakshan was hospitalized in Apollo hospitals, Chennai on 28.6.2018 and discharged on 2.7.2018. She was diagnosed with Bilateral Carpal Tunnel Syndrome L5-S1 prolapsed intervertebral disease, L5-S1 Grade I spondylolisthesis was operated on 30.6.2018 for right carpal tunnel. The insured sought for a request for free authorization for cashless treatment on 29.6.2018 and the same was approved for a sum of Rs. 50,000/-. Later the approval enhancement request was rejected vide letter dt. 2.7.2018 and the sum of Rs.39,553/- was settled to the treating hospital vide NEFT transaction dt. 16.07.2018. As per discharge summary of the treating hospital the insured underwent only right carpal tunnel, released on 30.6.2018 and not bilateral carpal procedure. Subsequently, the insured submitted a claim for reimbursement of medical expenses Rs.1,22,781/- for above referred treatment and the same was registered by the answering respondent. That on medical scrutiny it has been revealed that the already paid sum of Rs. 36,553/- to the treating hospital though NEFT. The maximum payable amount for right carpal tunnel released as per term of the governing policy hence the claim was repudiated and the same was communicated to the insured.
The opposite party further averred that the adjudication of a claim depends upon the merits of the claim and is done strictly in accordance to the governing policy terms and conditions. The policy is contractual in nature and the claims arising therein a subject to the terms and conditions forming part of the policy. The main spirit and object of insurance is to meet the risk of uncertainty of the insured by the insurer during the terms of the policy. It is the statutory duty of the proposal under the contract of insurance to disclose all material facts pertaining to status of his/ her health including pre existing disease, if any for the purpose of evaluating underwriting risk by the insurer at the time of submitting the proposal form as required under regulation 2 (1) (d) of the Insurance Regulatory And Development Authority Regulations, 2002.
The answering opposite party further submits that the policy issued to the complainant under which the dispute has been raised is governed by limits of liability as per various clauses and the rights and the liabilities of both insured and insurer are strictly governed by policy of insurance. No exception or relaxation can be made on ground of equity. According to this opposite party there is no deficiency on the part of them so the complaint petition is liable to be rejected.
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.
The answering opposite parties filed evidence on affidavit which transpires the averments of the written version so it is needless to discuss.
Complainant and opposite parties filed written notes of argument. The evidence on affidavit and written notes of argument of both sides are taken into consideration for passing final order.
Argument as advanced by the agents of the complainant and the opposite parties heard in full.
From the discussion herein above, we find the following issues/points for consideration.
Issues/points for consideration
- Whether the complainant is the consumer of the opposite party or not?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
- Whether there is any deficiency of service on the part of the opposite party?
- Whether the complainant is entitled to get relief or not?
DECISIONS WITH REASONS
All the points are taken together for easiness of the discussions of this case.
1). In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986, the complainant here in is a consumer of the opposite party.
2). Both the complainant and the opposite party are residents/having their office addresses within the district of Hooghly. Considering the claim amount of complainant as per prayer of the petition of complainant it appears that those are not exceeding the limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
3).The opposite party being the largest Insurance Company of the Nation associated with the insurance of a lot of people of throughout the whole nation since a long back with self generated assets i.e. goodwill of the business. So, the credibility of the opposite party Insurance Company is unquestionable and that is why the husband of the complainant insured their life before the said company without any doubt. It is well settled proposition of law that a contract of insurance is based on the principles of utmost good faith-uberrimae fidei applicable to both the parties. The rule of nondisclosure of material facts vitiating a policy still holds the field. The bargaining position of the parties in a contract of insurance is unequal. The insured knows all the facts, the insurer is unaware of anything which may be material to the risk. Very often, it is the insured who is the sole person who has this knowledge. The insurer may not even have the means to find out facts which would materially affect the risk. The law, therefore, enjoins on the insured an absolute duty to disclose correctly all material facts which is within his/her personal knowledge or which he ought to have known had he made reasonable inquiries. A contract of insurance, therefore, can be repudiated for non disclosure of material facts.
The expression “material fact” is not defined in the Insurance Act,1938 and therefore, as observed by the Supreme Court in Satwant Kaur Sandhu -vs- New India Assurance Company Ltd. 2013 (3) CPR 644 (sc),it has to be understood in general terms to mean as any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would like to accept the risk. Any fact, which goes to the root of the contract of insurance and has a bearing on the risk involved, would be “material” and if the proposer has knowledge of such fact, he is obliged to disclose it, particularly while answering questions in the proposal form. Any inaccurate answer will entitle the insurer to repudiate their liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance.
That the observation of the Apex court in Satwant Kaur’s case as :-
“thus it needs little emphasis that when an information on specific aspect is asked for in the proposal form, an assured is under solemn obligation to make a true and full disclosure of the information on the subject which is within his /her 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, 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.”
The complainant in his argument averred that insured himself and his wife, son and two daughters insured in a mediclaim insurance policy namely, “Family Health Optima Insurance Plan” issued by the opposite party and he continued the said policy without any default. In the year 2018 he renewed the above policy for the period from 30.6.2017 to 29.6.2018 by paying premium amount of Rs.9741/- and the sum insured is total Rs.2,30,000/-. Thereafter he renewed the said policy by paying premium amounting to Rs.13,640/-. During the period of two policies the wife of the complainant namely, Sahahzadi Darakshan fall ill and detected that she was suffering from Carpal Tunnel Syndrome in her hand and she was treated by local doctor namely, Debal Laha and thereafter came in contact with Dr. Siddhartha Bose attached to Appollo, Chennai. As per instruction of the said doctor she was admitted to Appollo, Chennai on 30.6.2018 where surgery had been done by hospital authority under the leadership of Dr. Sidhartha Ghosh and estimated cost Rs.1,22,781/- for the said treatment. After the said surgery the complainant applied for disbursing the total sum of Rs.1,22,781/- towards cashless facility but the opposite party insurer only provided a sum of Rs.50,000/- towards cashless facility as full and final settlement in respect of aforesaid medical policy. As a result the complainant had to pay rest sum of Rs.72,781/- by cash including pre and post hospitalization for the treatment of his wife. Subsequently the complainant lodged his claim for reimbursement of the amount of Rs.72,781/- to the extent of the amount spent by the complainant for his ailing wife. Complainant submitted all relevant documents/ papers to the opposite party for processing the claim but opposite party whimsically settled Rs.39,553/- to the hospital towards hospitalization expenses (cashless) toward full and final settlement but actually disbursed a sum of Rs.50,000/- claim made by the complainant. As a result, complainant had to bear a further cost of Rs.72,781/- for the said treatment of his wife. Thereafter the complainant approached the opposite party for getting his claim but his all efforts comes into all in vain. Getting no alternative he preferred the recourse of law before appropriate Forum.
The opposite party, Insurance Company in his argument states that the insured patient Mrs. Sahahzadi Darakshan was hospitalized in Apollo hospitals, Chennai on 28.6.2018 and discharged on 2.7.2018. She was diagnosed with Bilateral Carpal Tunnel Syndrome L5-S1 prolapsed intervertebral disease, L5-S1 Grade I Spondylolisthesis was operated on 30.6.2018 for right Carpal Tunnel. The insured sought for a request for free authorization for cashless treatment on 29.6.2018 and the same was approved for a sum of Rs.50,000/-. Later the approval enhancement request was rejected vide letter dt. 2.7.2018 and the sum of Rs.39,553/- was settled to the treating hospital vide NEFT transaction dt. 16.07.2018. As per discharge summary of the treating hospital the insured underwent only right carpal tunnel, released on 30.6.2018 and not bilateral carpal procedure. Subsequently, the insured submitted a claim for reimbursement of medical expenses Rs.1,22,781/- for above referred treatment and the same was registered by the answering respondent. That on medical scrutiny it has been revealed that the already paid sum of Rs. 39,553/- to the treating hospital though NEFT. The maximum payable amount for right carpal tunnel released as per term of the governing policy hence the claim was repudiated and the same was communicated to the insured.
The answering opposite party further submits that the policy issued to the complainant under which the dispute has been raised is governed by limits of liability as per various clauses and the rights and the liabilities of both insured and insurer are strictly governed by policy of insurance. No exception or relaxation can be made on the ground of equity. According to the opposite party there is no deficiency on the part of them so the complaint petition is liable to be rejected.
Upon hearing the argument and perusing the case record it is to be decided whether the opposite party committed any deficiency of service or unfair trade practice by repudiating the further claim of the complainant. The complainant for getting remaining amounting to Rs.122,751/- approached the opposite party on several occasions but his all efforts came in vain. So getting no alternative he preferred the recourse of this commission praying directions as incorporated in the prayer portion of the
It appears from the photocopy of Family Health Optima Insurance Plan of opposite party Star Health and Allied insurance Company Ltd. that the complainant along with his wife and three children took medical insurance by paying premiums regularly. The wife of the complainant being an insured availed of treatment from the Apollo Hospitals at Chennai as she was diagnosed Carpal Tunnel Release and operated at the above noted hospital. The complainant availed of Cashless Treatment and authorized by the opposite party Insurance Company vide letter dated 29.06.2018. which speaks that based on the details documents submitted by the above hospital they approved provisional cashless for the treatment of the above insured patient for the given diagnosis namely CARPAL TUNNEL RELEASE Surgical amounting to Rs.50000/-. It is clearly stated in the note that the Maximum payable Rs.1 L to Rs.1.2L. the letter dated 02.07.2018 of the opposite party speaks that they earlier approved Rs.50,000/- on 29.06.2018 for the treatment and the amount already approved is the maximum amount payable for the treatment of the diagnosed disease. They further regret to inform that further enhancement of amount is not possible. But no document adduced as to why the claim of the complainant has been reduced to Rs.50000/-. There is no iota of evidence from which we can infer that the claim of the complainant is not cogent but exorbitant. So it is palpably clear that the further claim of the complainant has been repudiated without any basis but whimsically. There is no scope to disbelieve the cost of treatment filed by the complainant. As such this Commission is in the opinion that the repudiation of further claim of the complainant tantamount to deficiency of service on the part of the opposite party.
The bill assessment sheet – hospital payment of opposite party, Insurance Company clearly speaks that claimed amount of hospital expenses is 1,72,781/- and the approved amount of hospital expenses is Rs.1,72,781/-. The inpatient bill of Apollo Hospital, Chennai dt. 2.7.2018 speaks that total expenditure goes to Rs. 1,72,781/- out of that authorization amount of Star Health and Allied Insurance Company Ltd. is Rs. 50,000/- so the complainant is under liability to pay Rs. 1,22,781/-. The bills on different heads filed by the complainant corroborates the cost of treatment of Rs. 1,72,781/-. The complainant approached the opposite party several times for getting the remaining cost amount of Rs. 1,22,781/- from the opposite party but his efforts came into all in vain. The letter dt. 27.12.2018 of opposite party, Insurance Company speaks that they acknowledge the receipt of the claim form dt. NIL seeking reimbursement of Rs. 1,22,781/- towards the expenses incurred for the above treatment. They have already settled Rs.39,553/- to the hospital towards hospitalization expenses for the above treatment. Lastly they assailed that they have settled the maximum amount after deducting non payable/ non medical items. Hence they are unable to consider any additional amount for the above referred claim. So the opposite party by repudiating the claim of the complainant is deficient in service towards its consumer.
After perusing the treatment summary, bills of Apollo Hospital, Chennai and letters of opposite party, Insurance Company this Commission find no cogent ground to deduct the expenses incurred for the treatment of the wife of the complainant by the opposite party insurance company. Hence we are in the opinion to allow the prayer of the complainant.
Upon consideration of the evidence adduced by the parties, this Forum observed that the Insurance Company had failed to bring on record any proof in support of their plea.
4). The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant is able to prove his case and the Opposite Party is liable to pay the ordered amount.
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Hence, it is ordered that the complaint case being no.67 of 2019 be and the same is allowed on contest against the Opposite party with a litigation cost of Rs.10,000/-.
The whole gamut of the facts and circumstances leans in favour of the complainant. We, therefore, allow the complaint and Opposite Party is directed to pay the remaining amount expensed for the treatment of the wife of the complainant amounting to Rs.122,781/- to this complainant within 45 days from the date of order.
The opposite party is also directed to pay a sum of Rs.30,000/- as compensation to this complainant for mental pain, agony and harassment.
At the event of failure to comply with the orderthe Opposite Partyshall pay cost @ Rs.100/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.
Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.
