District Consumer Disputes Redressal Commission, Hooghly
PETITIONER
VS.
OPPOSITE PARTY
Complaint Case No.CC/44/2019
(Date of Filing:-01.04.2019)
- Sri Prosenjit Bhattacharya
75, J.K. Street, P.O. and P.S. Uttarpara
Dist. Hooghly, Pin:-…..Complainant
- Star Health & Allied Insurance Company Ltd.
Represented by the Director,
Balaji Complex, 1st floor,
Whites Lane, Royapettah, Chennai, Pin:- 600014
- The Branch Manager,
Star Health & Allied Insurance Co. Ltd.
Serampore Branch
153/F/3, N. S. Avenue, P.O. & P.S. Serampore,
District:- Hooghly, Pin:- 712101
…..Opposite parties
Before:-
Mr. Debasish Bandyopadhyay, President
Mr. Debasis Bhattacharya, Member
Mrs. Babita Chaudhuri, Member.
-
Final Order/Judgment
DEBASIS BHATTACHARYA:- PRESIDING MEMBER
Being aggrieved by and dissatisfied with the service extended by Star Health & Allied Insurance Company Ltd. (hereinafter referred to as OP) of the address as mentioned above, in the matter of lodging of a claim for reimbursement of medical expenses related to the medical treatment and surgery of his wife, refusal of corresponding cashless treatment and subsequent repudiation of the said claim for reimbursement of the medical expenses by the insurance company, the instant case has been filed by the complainant, u/s 12 of the Consumer Protection Act 1986.
The fact of the case is as follows.
The complainant, primarily being a holder of the medical Insurance Policy under the name ‘Happy family floater policy’ of Oriental Insurance Company, effective from 31.10.2014 to 30.10.2016, with an expectation for better benefits and facilities, shifted his policy from aforementioned Insurance Company to Star Health & Allied Insurance Company Ltd. (the OP in the instant case) under the portability scheme with effect from 31.10.2016. The insurance scheme in this case was under the name ‘Family Health Optima Insurance Revised Policy’.
The Complainant claims to have paid premiums against the said policy on regular basis. The said medical Insurance scheme covered the Complainant, his wife and his son. The Complainant here points out that though the shifted policy was effective from 31.10.2016, yet the policy was a continuous one as the policy was transferred from another insurance Company uninterruptedly.
In the month of January 2017, the Complainant’s wife fell indisposed and was compelled to take admission into a hospital of Uttarpara, Hooghly pursuant to the advice of the concerned medical practitioner.
Initially, she was diagnosed as a patient of anemia but eventually she had to undergo a major surgery called HISTERECTOMY as she was actually suffering from ‘UTERINE FIBROID with MENORRHAGIA’ and also anemia.
However, subsequent to the refusal of the cashless treatment, the Complainant lodged a claim for reimbursement of the medical expenses of his wife’s treatment amounting to Rs.1,02,176/- with the OP Insurance Company.
The OP Insurance Company in turn, repudiated the claim and the same was communicated to the complainant by their letters dtd. 25. 01.17 and 18.05.17.
The repudiation on the ground of misrepresentation/ non-disclosure of material facts, in the Complainant’s opinion was baseless, arbitrary and whimsical.
The Complainant’s further approach to the grievance redressal wing of the OP Insurance Company and later to the Insurance Ombudsman for reconsideration of his claim were futile exercises.
However, as on the date of filing the instant petition replies from both the OP and the Insurance Ombudsman were awaited.
The Complainant here points out that he had no prior knowledge of any pre-existing disease of his wife.
The Complainant refers to the guidelines of the Insurance Regularity and Development Authority (IRDA) where it is reportedly stated that in case of continuing policy in different insurance companies under portability the waiting period is restricted for new insurers only. In the instant case the Complainant was far from being a new one.
The complainant claims to have suffered immense mental agony and being a middleclass person he had to arrange the required finance to meet the medical expenses by some other difficult means.
Considering the stance taken by the OP, as deficiency of service and unfair trade practice, the complainant submits a prayer before this Commission to impose direction upon the OP to reimburse the claim to the extent of Rs.1,02,176/- i.e the medical expenses involved, Rs.50,000/- as compensation for sufferings and mental agony, cost of the case and to pass any other order or orders as the Commission may deem fit and necessary to meet the ends of justice.
The Complainant along with the Complaint petition has annexed photocopies of certain corroborating documents viz. 1) primary Insurance policy of Oriental Insurance Company, 2) insurance policy ported to Star Health and Insurance Company Ltd., 3) Bank statement, 4) Medical documents and the corresponding medical bills, 5) Communications received from the OP Insurance Company, 6) Letters and mails sent to the OP Insurance Company and & 7) Communications made to and received from office of the Insurance Ombudsman.
In view of the above discussion and on examination of available records it transpires that the complainant is a consumer as far as the provisions laid down under Section 2(1)(d)(ii) of the Consumer Protection Act 1986 are concerned.
Both the complainant and the opposite party 2 are resident/having their office address within the district of Hooghly.
The claim preferred by the complainant does not exceed the limit of Rs.20,00,000/-Thus, this Commission has territorial as well as pecuniary jurisdiction to proceed in the instant case.
The issues related to the questions whether there was any deficiency of service and whether the complainant is entitled to get any relief, being mutually inter-related, will be taken together for convenient disposal.
The OPs belonging to the same organisation have contested the case by filing written version, evidence on affidavit and brief note of argument.
Materials on records are perused.
The policy being a floater one, covered the entire family of the complainant consisting of his wife, his son and he himself. The policy was valid during the material period.
Now the OP in their written version, evidence on affidavit and brief notes of argument repeatedly refers to clause 4.3 of the terms and conditions annexed to the policy documents. The OP claims that the particular medical treatment i.e. treatment for uterine fibroid for which reimbursement expenses has been claimed is excluded under clause 4.3 of the policy.
In fact the OP claims that there was non-disclosure/misrepresentation of material facts during the porting of the policy, on the Complainant’s part and the petitioner had a mala fide intention to realize undue mediclaim benefit from the OP insurance Company. The OP further puts stress on the issue that so far as the terms and conditions of the policy are concerned (Point No.3 Exclusion clause No.12), the Company shall not be liable to make any payment under the policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of ‘Uterine Fibroid Embolisation’
However on scrutiny of the communication of the OP Insurance Company dtd.18.05.17 repudiating the claim it transpires that the they were of the view that the insured patient was symptomatic of the particular disease i.e. mennorhagia prior to the porting of the policy and thus the admission and treatment of the insured person was for ‘non-disclosed’ disease.
Apart from the above, the OP Insurance Company raised the allegation that at the time of porting of the policy the Complainant insured did not disclose the medical history/health details of the insured person in the proposal form and other documents submitted to the OP insurance Company which amounted to misrepresentation/non-disclosure of material facts.
OP Insurance Company in this connection has referred to certain judicial pronouncements but those being not in respect of ported policies, cannot be applicable here.
Decision with reason
It is apparent from the records and particularly from the communication made by the OP that the only reason assigned to the repudiation of the claim of the Complainant was misrepresentation/non-disclosure of facts.
Opposite parties pointed out that they repudiated the claim of the complainant on the ground of non-disclosure of facts at the time of porting of the policy and as per clause No.3 of exclusion of insurance policy. As per clause No.3 she was not entitled for any reimbursement about the expenses on treatment of hysterectomy and for menorrhagia during first two years. In the present case the policy after porting was effective from 31.10.2016, while the patient was admitted to the hospital on 22.01.2017 i.e. within very first year.
As per discharge summary she was suffering from Fibroid uterus with severe anemia.
As per this clause it is clear that during the first two years of continuous operation of this insurance cover the expenses on treatment of fibroid uterus with severe anemia will not be reimbursed, but it is the duty of the insurance company to prove that these terms and conditions were explained to the insured when the policy was ported.
Section 45 of Insurance Act, 1938 provides two year limitation for questioning the policy on the ground of suppression/ non-disclosure/misrepresentation of the fact at the time of obtaining policy. The appellant issued ported mediclaim insurance policy on 31.10.2016 in continuation of Mediclaim Insurance Policy issued by OIC in the year2014.
Now, as the insurance policy was ported, it is to be construed that the policy was a continued one and not a new one. The insured persons opted for porting of the policy simply for greater benefits.
In the policy schedule a ‘Previous Policy No.’ is also mentioned. This clearly indicates that this is a continued policy with a changed issuing Company only.
The policy when incepted in the OP Insurance Company was already two years old policy.
In the policy schedule, 30 days waiting period and first two year exclusion were also waived.
It appears that IRDA issue a detailed portability guideline on 09.09.2011. According to this guideline, “Portability means the right accorded to an individual health insurance policyholder (including family cover) to transfer the credit gained by the insured for pre-existing conditions and time bound exclusions if the policyholder chooses to switch from one insurer to another insurer or from one plan to another plan of the same insurer, provided the previous policy has been maintained without break”.
On 31.10.2014 at the time of first inception of the ‘Happy Family Floater Policy’ with the former insurance Company the insured lady was not supposed to anticipate that she would suffer from anemia or Mennorrhagia or she would have to undergo hysterectomy.
Besides, so far as the physiological process of female anatomy is concerned, Menorrahagia is a common phenomenon like hypertension, blood sugar and many other routine physical irregularities.
If this amounts to non-disclosure/misrepresentation of facts, then almost 90% claims lodged with different medical Insurance Companies each day, are to be repudiated for non-disclosure/misrepresentation of facts. Then the question remains that are these companies meant for realizations of premiums only and to do brisk business.
Hence question of non-disclosure/misrepresentation of facts in the instant case does not arise.
Common men in our country approach to these insurance companies to get relief from shouldering the burden of huge medical expenses. So far as the documentary evidences filed by the complainant are concerned, the genuineness of the complaint does not appear to be questionable. But the manner in which the complainant’s case has been treated by the OP is thoroughly disappointing. In a desperate attempt to get out of the burden of reimbursement, they have taken shelter under the roof of so-called ‘non-disclosure’ and ‘exclusion’.
In the instant case, the opposite parties have failed to produce credible evidence to establish that prior to the date of first inception of the policy or even prior to the date of porting of the policy the insured was suffering from Menorrahgia and was getting any treatment and that fact was within her knowledge and she deliberately concealed the same.
On meticulous scrutiny of all the aspects of the case, this Commission is of the view that there was gross deficiency of service and unfair attitude on the OP’s part.
Hence it is
ORDERED
that the complainant case no.44/2019 be and the same succeeds on contest but in part.
The opposite party 1 and 2 who belonging to the same organisation are directed to reimburse the treatment expenses as claimed, to the extent of Rs.1,02,176/- with interest @9% for the period from the date of lodging the claim for the first time to the date of payment of the principal amount.
Besides, a further amount of Rs. 20,000/- will have to be paid by the OP to the complainant as compensation for his mental agony and harassment.
In the event of failure to comply with this order, the opposite parties will be jointly liable to pay a cost of Rs.30,000/- by depositing the same 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 and necessary action.
The final order will be available in the website www.confonet.nic.in.
