BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 13^TH DAY OF DECEMBER 2022

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. Award the claim amount of Rs.94,000/- to be made good to the complainant with interest and cost and incidental costs by the respondent.
2. To direct the opponent to pay interest at 12% on the said claim amount of Rs.94,000/-.
3. To award compensation of Rs.1,00,000/- for mental agony and harassment meted out to the complainant by the opponent.
4. Pass other orders as it deems fit.

2. The case set up by the complainant in brief is as under:-

The complainant had taken mediclaim policy for his entire family consisting of his wife Ms. Vinoda M., his son Master Yatish H and his daughter Anusha H., a family group mediclaim insurance from Religare Health Insurance from 31.12.2013 to 30.12.2020 on year renewal basis.  

        3.     It is further case of the complainant that during the month of December 2020 the OP1 representative influenced the complainant to port the policy to the OP1 company for a sum assured of Rs.10,00,000/- for entire family with sum assured of Rs. 2,00,000/- each. Based on such representation for a better policy for a sum insured of Rs.10,00,000/- port the policy from Religare health insurance to the 1^st OP company for the period of 31^st December 2020 to 31^st December 2021, namely family health optima insurance policy plan was granted by the OP1.  

        4.     The complainant was almost insured continuously for a period of more than 7 years and hence he was insured “as he was” from the year 2013 and is covered for any disease that his family members contact after 2013 and the non disclosure clause cannot be applied afresh as he was covered continuously from the year 2013 thereof.  Further the complainant has not taken a new policy from 1^st OP from 31^st December 2020.  The complainant is not duty bound to disclose his fresh status of health of the entire family.

        5.     It is further case of the complainant that his wife Smt.Vinoda used to have menstrual irregular bleeding at the age of 40 years and she has consulted the gynecologist on 24.11.2020 and had taken some tablets on doctor’s advise.  And she was fine about a year and only on 27.12.2021 when she again consulted the doctor she was advised for surgery hysterectomy.  The ported policy was issued and it was effective from 21.11.2020 whereas the complainant’s wife first consultation though is on 24.11.2020 she had no knowledge of any disease as the bleeding was subsided by the medicines prescribed by the doctor and there was no serious complications in terms of medicine which ought to have been disclosed.

        6.     It is further case of the complainant that his wife underwent surgery hysterectomy at Rajmahal Vilas Hospital n 28.12.2021 as per the advise of the doctor and she was discharged on 31.12.2021 with certain medical prescription.  The complainant was billed for an amount of Rs.94,000/-.  He has submitted a claim form to the OP1 on 05.01.2022.  The claim was rejected by the OP1 on the ground of non disclosure of pre-existing disease.  The said rejection is not valid in the eye of law, as the complainant as no knowledge of any disease as to which she has contacted, it was irregular menstrual bleeding which is quite common for women at the age of 40.  Even otherwise since the insurance is covered from the year 2013 continuously without any break the OP bound to cover the insured.

        7.     It is further case of the complainant that aggrieved by the repudiation of his claim he has got issue a legal notice on 24.02.2022 challenging the said rejection of claim and the said notice was served on the OP1 and 2, but there was no reply. The OP1 has neither bother to reply to the legal notice nor complied the demand.  Hence the complaint.

8.       In response to the notice, OP appeared through their counsel but failed to file the version within 45 days.  Hence the application for permission to file the version along with the version was rejected by this commission on 06.10.2022.

9.       The complainant has filed his affidavit evidence and relies on 18 documents. 

10.     Heard the arguments of advocate for the complainant. Perused the written arguments.

11. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

12.   Our answers to the above points are as under:

       Point No.1:  Affirmative

      Point No.2: Affirmative in part

      Point No.3: As per final orders

REASONS

13.    Point No.1 AND 2: Perused the complaint, evidence of the complainant documents filed by the complainant and written arguments of the complainant.

14.     Even though the OP has appeared through their counsel have failed to file their version within 45 days and hence this Commission has rejected the version filed by the OP.  Hence the allegations made in the complaint and the evidence and documents filed by the complainant remained unchallenged.  

15.     It is clear from the allegations and documents filed by the complainant that he had taken a mediclaim policy for his entire family consisting of his wife Smt.Vinoda M., and his son Master Yathish and Daughter Anusha H, a family group mediclaim insurance from Relegire health insurance and it was in force from 31^st of December 2013 till 30^th December 2020, on an year renewal basis.  The complainant has produced the policies issued by the Religare medical health insurance company as Ex.P1 to P7 in support of his case.  

16.     The complainant on the influence of the OP1 representative port the policy to the first OP company for a sum assured of Rs.10,00,000/- for the entire family with sum assured of Rs.2,00,000/- each.  He has produced the copy of the communication letter issued by OP1 and also the policy as Ex.P8 and P9.

17.     It is further clear from the documents of the complainant that his wife Smt.Vinoda used to have menstrual irregular bleeding at the age of 40 years and she has consulted the gynecologist on 24.11.2020 and she has taken some tablets as per the advise of the doctor and the problem was subsided and she was not having any problem for about a year.  Again she consulted the doctor on 27.12.2021.  After consultation the doctor has advised her to go for surgery hysterectomy.  It is clear from the discharge summary issued by the doctor as per Ex.P12 that the wife of the complainant namely Vinoda M., has seen in Gynecology OPD on 24.11.2020 for having heavy menstrual bleeding, she has dysmenorrhoea since one year and irregular cycles since one year. She was evaluated with USG abdomen and pelvis which showed no significant abnormal, no ovarian. She was treated with medicines which gave brief relief and later she has irregular heavy bleeding. She again consulted gynecologist on 27.12.2021 with complaints of heavy menstrual bleeding since 12.12.2021. She was treated with medicines which did not give any relief and hence decided for surgery/removal of ultras’, P2-2 NVD she underwent lap sterilization 17 years ago, she had cataract removal. The mother of the complainant’s wife has hypertension and she had hysterectomy at 35 years of age, the father of the complainant’s wife died by liver cancer.   

18.     It is clear from the discharge summary that the wife of the complainant was not having any serious complications in terms of medicine, the wife of the complainant is only 40 years and she was suffering from irregular bleeding.  She was not having any significant abnormality or ovarian cyst. Hence the doctor has prescribed her medicine. When she was not responded for the medicine the doctors have advised her to go for surgery only on 27.12.2021.  It is clear from the policy that Ex.P9 that the ported policy was issued by the OP1 and it is effective from 21.11.2020.  The wife of the complainant has first consultation with the doctor on 24.11.2020 and she has no knowledge of the disease as the bleeding was subsided by the medicine prescribed by the doctor and she was not suffering from any serious complications as per history mentioned in the discharge summary Ex.P2.  

19.     The wife of the complainant underwent surgery at Rajmahal Vilas Hospital on 28.12.2021 and she was discharge on 31.12.2021 as per Ex.P12.  The complainant was build an amount of Rs.94,000/- as per Ex.P13.  The complainant has submitted the claim per as per Ex.P14 on 05.11.2022.  The OP has rejected the claim of the complainant on the ground of non disclosure of preexisting disease vide letter Ex.P15 dated 18.01.2022.  After that the complainant has got issued legal notice challenging the said rejection of the claim and the said notice was served on the OP.  The copy of the legal notice is produced as per Ex.P16 with RPAD and postal acknowledgement as per Ex.P17 and 18.  Inspite of service of notice, the OP have neither complied nor issued any reply.  

20.     Even though the OP has appeared before this Commission they have failed to file their version within 45 days and thereby they failed to contest the complaint filed by the complainant.  When the evidence of the complainant and the documents Ex.P1 to P18 are not at all disputed by the OP, there is no reason to disbelieve the evidence of the complainant and Ex.P1 to P18.  There is no dispute regarding the porting of the policy by the complainant to the first OP company and the date of issue of the policy Ex.P9.

21.     The only objection raised by the OP is that the complainant has not disclosed the pre-existing disease that his wife was suffering from abnormal bleeding at the time of the menstrual period in the proposal form.  On perusal of the medical records and the discharge summary it is clear that the wife of the complainant was not having any significant abnormality or ovarian cyst when she was examined by the doctor on 24.11.2020. The wife of the complainant was advised to go for surgery only after 27.12.2021 when the bleeding was not stopped and it was not responded for the medicine.  When the wife of the complainant was not at all suffering from any significant problem relating to the uterus she is not aware of any abnormality or problem in the uterus and she was also fine after taking medicine prescribed by the doctor for a period of one year and it was prior to the porting of the policy by the complainant to the OP1 company. Under these circumstances the say of the OP that the complainant is not entitle for the claim as he failed to disclose the pre-existing disease cannot be accepted.  Under these circumstances, the rejection of the claim made by the OP1 as per Ex.P15 has to be set aside.  

22.     Even though the wife of the complainant was not suffering from any significant abnormality or any other problem in the uterus at the time of submitting the proposal to the OP1 company and she has diagnosed and she was advised to go for surgery only after lapse of one year from the date of issue of the policy is highly illegal. When the policy is in force and the wife of the complainant was not suffering from any pre-existing disease as stated by the OP the complainant is entitle for the claim.

23.     In view of the rejection of the claim by the OP the complainant and his family members have underwent serious mental agony and also financial loss.  The complainant  has taken the policy in order to make the unfortunate incidents which may taken in case of medical emergency and he is having the medical policy from 2013 till 2020.  Only after December 2020 he has ported the policy to the first OP and taken their policy as Ex.P9. Under these circumstances the complainant is also entitle for the compensation and also legal expenses. Hence the complainant has clearly established the deficiency of service, unfair trade practice and negligence on the part of the OP.  Hence complaint is liable to allowed in part.  Hence we answer point No.1 in affirmative and Point No.2 partly in affirmative.

24.    Point No.3:- In view the discussion referred above, we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP is directed to refund Rs.94,000/- towards medical expenses with interest at 10% from the date of complaint till realization.
3. OP is further directed to pay compensation of Rs.50,000/- and litigation expenses of Rs.10,000/- to the complainant.
4. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 12% p.a. after expiry of 60 days on Rs.94,000/- till final payment.
5. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 13^th day of DECEMBER, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;

NIL