O R D E R
By Sri.C.T.Sabu, President
A brief description of the case is that complainant had taken a Family Health Optima Insurance policy from the opposite party on 21/6/2012 and stands renewed continuously for three years further. On 30/6/2015 complainant was admitted with complaints of severe pain at knee (left) before the Daya General Hospital specialty surgical centre. As advised a surgery was done on 1/7/2015 and on 3/7/15 she was discharged. A medi claim was lodged with opposite party for hospitalization expenses to an extent of Rs.1,80,732/- with required documents. After a long delay on 5/5/2015 the claim was repudiated on flimsy grounds as follows: 1) Preexisting disease 2) Suppression of material facts. Complainant states that only in the first week of June 2015 only the doctor found out and advised for a surgery. Complainant was not at all aware of any such facts and never concealed anything material as falsely sated by the opposite party in the repudiate letter. As per the brochure published by the opposite party knee replacement and such other surgical process is excluded in the first two years. In the instant case the policy is renewed for three years continuously by which the complainant is entitled to get the claim as per the policy as well as per law. On repudiation as advised the matter was taken before the grievance cell and thereafter before Insurance Ombudsman. They were not bothered to consider and appreciate the genuineness of the claim and favoured with the opposite party. In the circumstances, complainant has no other alternative but to seek remedy before this Forum since there is serious lapses on the part of opposite party which amount to deficiency in service and therefore prays that complaint may be allowed granting Rs.1,80,732/- with 12% interest from 5/10/2015 besides Rs.5,00,000/- towards compensation and Rs.10,000/- towards costs.
2. Admitted the case. Notice was ordered. Opposite party appeared through counsel and filed objection as follows:
Not maintainable either in law or on facts. Constructive resjudicata is applicable. Policy admitted from 21/6/2012 to 20/6/2016. Medical records reveal that the patient had history of surgery for CSF Rhinorrhea Dyslipidemia and OA Knee on 16/6/2012. Complainant had obtained the policy without disclosing the full facts on health of a person which make the insurance policy null and void abinitio. The case filed before the insurance ombudsman had also been dismissed in favour of the opposite party. Policyholder suppressed the material facts and obtained the policy. Therefore the repudiation of claim is justified as per the terms and conditions of the policy. There is no deficiency in service on the part of the opposite party as the repudiation of the claim on the basis of exclusion clause is justified. Complaint may therefore be dismissed with cost.
3. Then the case posted for evidence. The following points are considered for its final disposal.
1)Is there any deficiency in service on the part of opposite party?
2)If yes what are the reliefs and costs?
4. Both parties filed proof affidavits and documents. Complainant’s documents are marked as Exts.P1 to P4. Ext.P1 –Policy with terms and conditions, Ext.P2 – Repudiation letter dt.5/10/2015, Ext.P3 – Brochure, Ext.P4 series– Prescription of medicines. Opposite party produced 7 documents and marked as Exts.R1 to R7. Ext.R1 – Policy with terms and conditions, Ext.R2 – Proposal form, Ext.R3 – claim form, Ext.R4 – discharge summary, Ext.R5 – case records, Ext.R6 – repudiation letter, Ext.R7 – Award of the Insurance Ombudsman. There is no oral evidence tendered by parties.
5.Appreciation of Evidence : We have examined proof affidavits, documents and argument notes filed by both parties. Exts.P1, P3 and R1 would clear show that the amount claimed for hospitalization expenses towards treatment of Osteoarthritis is not payable if the same is incurred within the first two years of the policy. In the instant case, as admitted by the opposite party in an unambiguous terminology the policy was renewed up to 20/6/2016. The claim was well within the policy period and no exclusion is applicable in this case. Construction of the policy document which is the basis of contract of insurance is a question of Law and its true and correct interpretation would give jurisdiction to the Forum to pronounce up on the deficiency in service. It is true that the proposer need not worry about the facts which are material or not. The particular policy was taken by the complainant to cover the risk knowing fully well that pre-existing illness such as knee pain and related repair treatments are covered if the policy is continuously covering the risk for more than two years. Even if he discloses with regard to the pre-existing illness the policy in dispute cannot be denied because the policy is devised to cover such risk where only the condition was that honoring the claim can be possible only in such cases where there are continuous renewal for more than two years. A prudent insurer can act only as explained by the Forum. All other interpretation is against the spirit of the well-defined insurance law and practice. On interpretation, in case any doubt, then also, a favourable decision needs to be taken in favour of the complainant/insured as per contra proferdum rule. Filling up of the proposal form and also the entries in the case sheets are subject to proof by the opposite party. Opposite party has not succeeded to prove that there is willful and fraudulent suppression of fact which was within the knowledge of the insured and she was not entitled to get an insurance protection through the policy in dispute.
6. Without any further elaboration this Forum is convinced that the repudiation of the claim is nothing but deficiency in service. Ext.R7 also would show that the policy has been issued with no exclusions for pre-existing diseases (under para 6). If it is correctly interpreted the claim cannot be repudiated after elapse of two years. Complainant had also submitted through a solemn statement that the entire medical records to prove the quantum of hospitalization expenses are with the opposite party. Therefore, opposite party can assess the amount and they have no case also about non-receipt of the same.
7. Reliefs and costs: Having found that there is deficiency in service on the part of opposite party, we direct the opposite party to settle the claim with 12% interest from the date of claim as per her entitlement under the policy. Order has to be complied within 30 days of the receipt of the order. Complaint allowed accordingly.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Commission this the 30th day of June 2021.
Sd/- Sd/-
Sreeja.S C.T.Sabu
Member President
Appendix
Complainant’s Exhibits
Ext.P1 –Policy with terms and conditions, Ext.P2 – Repudiation letter dt.5/10/2015, Ext.P3 – Brochure, Ext.P4 series– Prescription of medicines
Opposite Party’s Exhibits
Ext.R1 – Policy with terms and conditions, Ext.R2 – Proposal form, Ext.R3 – claim form, Ext.R4 – discharge summary, Ext.R5 – case records, Ext.R6 – repudiation letter, Ext.R7 – Award of the Insurance Ombudsman
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President
