Sri Shyamal Gupta, Member.

Appeals Nos. A/642/2019 and A/723/2019 borne out of the Complaint Case No. 233 of 2018 which has been allowed by the Ld. DCDRC, Kolkata Unit—II  vide its order dated 12.07.2019. The facts and circumstances of both these appeals since been identical, though the prayers are different, the same are disposed of through this common order.

The case of the Complainant is that Complainant no. 1 opted a mediclaim insurance policy on payment of premium of Rs. 13,116/-, where complainant-2 is also covered by the said mediclaim policy. Prior to issue of the policy the complainants duly filled up the proposal form and underwent a medical test at Suraksha diagnostic, Kasba as nominated by the O.P. Thereafter, O.P sent an undated letter mentioning the policy number, sum insured and the validity from 11/12/2017 to 10/12/2018. On 13/03/2018 complainant-2 got admitted with Ruby General Hospital, E.M. Bypass, Kolkata with a complain of severe weakness, increased anxiety and dyspepsia and discharged on 16.03.2018. Complainant-1 applied for cashless on 16.03.2018 by e-mail. Complainants had to incurred medical expenses of Rs. 30,375/-. Suddenly, on 26.03.2018 complainant-2 fall on road and causing injury on her right elbow and admitted to Ruby General Hospital and she was advised for open reduction and internal fixation. Complainant-1 requested for cashless facility but he was informed that O.P. refused to extend cashless facility on the ground non-disclosure of hospitalization for Rectal Ulcer Symptom and colonic Polyp with dysplasia by e-mail dated 28.03.2018. Complainant-2 was discharged from hospital on 01/04/2018. Complainant-1 paid Rs. 1,96,250/- to the hospital for treatment. On 13/04/2018 complainant-2 lodged his claims vide claim ID No.0651964 for Rs.30,375/- for her treatment from 13/03/2018 to 16/03/2018 and claim ID No. CLI/2018/19116/0672968 for Rs. 1,97,531 for her treatment from 26/03/2018 to 01/04/2018. O.P repudiated the claim of Rs. 30,375/- by its letter dated 02/05/2018 on the ground of non-disclosure of her colonic adenomatous polyp by violation of clause-7 of the policy. Moreover, O.P. has also repudiated the claim of Rs.1,97,531/- vide their letter dated 11/05/2018 on the ground of colonic adenomatous polyp prior to date of commencement of the policy violating the Clause-7 of the policy condition.

Star Health & Allied Insurance Co. Ltd., OP has stated in their W.V. that they issued the mediclaim insurance policy covering complainant-2 based on the declaration made in the proposal form. It is not true that they did send terms and conditions of the policy in question. It is stated that the pre-mediclaim examination is only a preliminary examination of the health of the insured but the insured bound to disclose the medical history at the time of inception of the policy. In their covering letter they clearly mentioned that they enclosed the policy along with terms and conditions and the policy has been prepared based on the details furnished by the complainant. There was a free look period for 15 days from the date of receipt of the subject policy. He was advised to review the terms and conditions and if not satisfied they may cancel the policy. On receipt of pre-authorization request for cashless facility from Ruby General Hospital, treatment of megaloblastic anaemia, they made scrutiny of medical documents submitted by the treating hospital, it is observed from the documents of CMC, Vellore dated 27/10/2017, the complainant-2 had colonic adenomatous polyp and dysplasia along with rectal ulcer which was not disclosed at the time of inception of the policy. As such, they denied cashless authorization. It is also stated in the W.V. that in the case of distal radius fracture of the insured they asked for prior consultation papers and treatment records from treating hospital and on receipt of such documents it was found that the patient had past history of hospitalization for Rectal Ulcer Syndrome, Colonic Polyp with Dyspepsia prior to the policy which was a major non disclosure while taking the policy. Further case of the O.P. is that the 1^st claim was lodged in the 3^rd month of the policy and there was a clear past history of the insured and in the 2^nd claim, in response to the query raised during cashless processing it reveals that the insured is diagnosed Colonic Adenomatous Polyp which is prior to the date of commencement of the policy. Thus, the answering O.P. rightly repudiated both the claims as per violation of the terms and conditions of the policy and there is no deficiency in serviced on their part.

After hearing both sides Ld. DCDRC passed the following order dated 12.07.2019:-

1. The Visiting Consultant of Ruby General Hospital Dr. Asis Mitra (Registration No. 54054 of WBMC) certified that “Sima Patra was suffering from anemia due to blood loss for which she was given blood transfusion. Anemia is not related with colonic adenotous polyp.” But O.P. rejected the first claim of cashless facility on the ground of non-disclosure of hospitalization for said treatment. In our considered opinion, such rejection is not justified.
2. It is admitted that the terms and conditions of the policy was not supplied to the complainants. Therefore, the ground of repudiation is not justified.
3. Moreover, non-servicing of terms and conditions of the policy, disapproval of cashless facility and repudiation of the legitimate claim by the O.P. tantamount to deficiency in service and indulge practicing unfair trade too.
4. Therefore, the complainants are entitled to get Rs. 2,26,609/- in total towards medical expenses.

Along with litigation cost of Rs. 5,000/- and compensation of Rs.10,000/.

Being aggrieved with that order, the Complainant filed Appeal No. A/642/2019 with a prayer for enhancement of litigation cost and compensation amount. On the other hand OP Star Health & Allied Insurance Co. Ltd. filed Appeal No. A/723/2019 with a prayer to set aside the impugned order dated 02/07/2019.

Parties were heard at length and documents on record gone though rigorously.

The core issue to be decided whether repudiation was justified by O.P on the ground of “non-disclosure of pre-existing disease” or not.

Before I dwell on the issue, let me first put in place some of the relevant facts here under:-

As per page 4 of the order dated 12.07.2019

1. “Ld. Advocate for the Complainants has also argued that complainant-2 appeared for medical test at Suraksha Diagnostic prior to obtain Mediclaim Policy along with all treatment papers accompanied by her husband Sailendra Nath Patra. The husband of complainant-2 filed an affidavit in which he supported the version of complainant-2 to the effect he had accompanied his wife to Suraksha Diagnostics for medical test and also produced all the previous treatment papers to the doctor who examined complainant-2.”

The same is not rebutted by the O.P/Insurance Company.

Apart from that Hon’ble Apex Court observed as follows:-

1. Dr. Srinivas—Vs—SBI Life Insurance Co. Ltd. & Ors 2019 (1) CPR 16 (SC)

“When the precondition of medical examination of the insured before accepting of the premium is not adhered to, it may be inferred to have been waived”

It be stated further regarding suppression of material facts as observed by Hon’ble Apex Court in

2. LIC of India—Vs—Asha Goel (2001) 2 SCC 160

“For determination of the question whether there has been suppression of any material facts it may be necessary to also examine whether the suppression relates to a fact which is in the exclusive knowledge of the person intending to take the policy and it could not be ascertained by reasonable enquiry by a prudent person.”

Hence, suppression of material facts does not stand here.

2. Regarding non-servicing of terms and conditions of the policy as raised by Ld. Advocate of the Complainant O.P/Insurance Company flatly denied the same in W.V but no such attempt is made from their sides to rebut the said allegation. Over this matter, Hon’ble Apex Court observed as follows:-

3. M/S Modern Industries Ltd.—Vs—Oriental Insurance Co. Ltd. 1 (2000) CPJ 1 (SC)

“Insurance company must prove that the copy of terms and conditions were duly supplied to the insured.”

3. Regarding the claim of further compensation, by the complainant, the Hon’ble Apex Court’s observation explained in

4. Charan Singh—Vs—Healing Touch Hospital & Ors. (2000) 7 SCC 68

“It is for the Consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards.”

In such premises A/642/2019 is allowed in part. The order dated 12/07/2019 of Ld. DCDRC in CC No. 233 of 2018 is hereby affirmed except an enhancement of compensation amount to the tune of Rs.25,000/- instead of Rs. 10,000/-. Consequently the appeal A/723/2019 is dismissed.

Let the original copy of this order be kept in the case record of A/642/2019 and a photocopy of thereof in A/723/2019.