Kerala

Idukki

CC/226/2019

Arya Regu - Complainant(s)

Versus

Star health and allied Insurance Co ltd - Opp.Party(s)

25 Oct 2022

ORDER

DATE OF FILING : 16.12.2019

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the   25^th   day of  October,  2022

Present :

SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                               MEMBER

SRI. AMPADY K.S.                            MEMBER

CC NO.226/2019

Between

Complainants                                           :  1.  Arya Raghu, C/o. Sajan Philip,

                                                                      Thottipparambil House,

                                                                      Thodupuzha East P.O.

       2.Sajan Philip,

                                                                      Thottipparambil House,

                                                                      Thodupuzha East P.O.

(Both by Adv: K.M. Sanu)

And

Opposite Parties                                       :  1.  The Manager,

                                                                        Star Health and Allied Insurance Co. Ltd.,

                                                                        Pulimoottil Plaza,

                                                                        Pala Road, Thodupuzha,

            Thodupuzha P.O.

        2.The Manager,

                                                                        Star Health and Allied InsuranceCo. Ltd.,

                                                                        1^st Floor, Ammu Arcade,

                                                                        Civil Lane Road, Padivattom P.O.,

                                                                        Kochi – 682 024.

  (Both by Adv: K. Pradeepkumar)

                                                                                3.  Sebastian K.V.,

                                                                        Vaithala House,

                                                                        Perumpillichira P.O.,

                                                                        Thodupuzha.

O R D E R

SRI. C. SURESHKUMAR, PRESIDENT

 

          This is a complaint filed under Section 12 of the Consumer Protection Act of 1986 (the Act, for short).  Complaint averments are briefly discussed here under :             

                                                                                                                        (cont....2)

• 2  -

          First complainant is wife of 2^nd complainant.  1^st opposite party is Manager of Star Health and Allied Insurance Co. Ltd., Thodupuzha, 2^nd opposite party is Manager of the same insurance company having its office in Padivattom, Kochi and 3^rd opposite party is one Sebastian K.V.  Upon repeated requests by 3^rd opposite party, 1^st complainant had taken a medical insurance policy, for coverage of herself, 2^nd complainant and their child Ayana Sajan and paid a premium of Rs.19,658/-.  Sum assured was Rs.7,50,000/-.  Apart from usual coverage, there was accident death and permanent disability coverage for Rs.7.5 lakhs for 2^nd complainant.  Policy was proposed for and obtained by 2^nd complainant for and on behalf of 1^st complainant.  Policy period was from 20.2.2019 till 19.2.2020.  During the policy period, Ayana Sajan fell ill and was admitted in St. Mary’s Hospital at Thodupuzha, for treatment from 6.11.2019 till 11.11.2019.  Medical expenses covered by bills came to Rs.8,000/-.  Though complainants had applied for cashless facility, this was not granted.  Therefore a claim was submitted through 3^rd opposite party, for getting coverage of medical expenses.  To the surprise of complainants, claim was repudiated on the premises that Ayana Sajan, who was born on 24.4.2018 was a premature baby and this fact was not revealed by complainants.  Both complainants submit that, they had informed  3^rd opposite party that child was premature at birth while taking the policy.  Till date, complainants have not claimed any amount towards medical expenses.  The baby is only born premature, she is not an ill or disease affected person.  Such a baby  also is an ordinary child.  At the time of taking policy, the child was 10 months old.  She was healthy for her age.  Except the present illness for which medical expenses are claimed, the child had not suffered any other illness or ailments.  Complainants submitted that claim raised by them was dismissed without any reason.  Intention of opposite parties is to avoid payment under false pretexts.  This amounts to deficiency in service and therefore complainants pray for reimbursement of Rs.8,000/- towards treatment expenses, Rs.50,000/- compensation for deficiency in service and also for a direction to keep the policy live till date of its expiry and not to cancel the same as threatened by opposite parties.  They also pray for grant of Rs.5000/- as litigation costs.

 

          2.  Opposite  parties 1 to 3 have appeared and filed a joint written version.  Their contentions are briefly discussed here under :

 

          According to opposite parties, complaint is filed with the ulterior motive of making  illegal gains.  They admit that complainant had taken out a Star Comprehensive Health Insurance policy with sum assured of Rs.7,50,000/- from them, for the period from 20.2.2019 till 19.2.2020, vide policy No.P/181215/01/2019/005630.  Complainants were given a copy of terms and conditions of policy when the policy was issued to them.  Those were explained to them also.  In the proposal form submitted by complainant, it was specifically declared that insured were not suffering from any disease or ailment at                                                                                                       (cont.....3)

• 3  -

the time of submission of proposal form or at any point of time earlier.  In the proposal, 2^nd complainant had, in answer to a query, whether any complications were there, following birth, answered that, there were no such complications.  However, upon enquiry with MOSC Medical College Hospital, Kolenchery in Ernakulam District, opposite parties were in receipt of a discharge summary issued from the said hospital dated 24.4.2018, of Ayana Sajan, daughter of complainants.  As per this record, Ayana Sajan was treated for preterm delivery by 25 weeks,  her birth weight was 630 mg., apnoea of prematurity, congenital hypothyroidism, and acute kidney injury.  In this, the doctor who had treated has clearly noted that child had received ventilator support since her date of birth to 30 days.  Complainants were quite aware of these conditions.  Yet they had given a false answer to the query relating to health history as mentioned above.  A claim was received by opposite parties as No.CLI/2020/181215/0617153 from St. Mary’s Hospital, Thodupuzha, for cashless treatment of Ayana Sajan, who was admitted on 6.11.2019, for treatment of Lower Respiratory Tract Infection and had undergone medical management.  After receiving pre authorisation form, insurer had initially processed payment of Rs.2,000/- on 6.11.2019.  This was before  investigation had revealed that the child had congenital ailments following preterm birth by 25 weeks.  As per condition 9 of policy, opposite parties are not liable to make any payment under the policy in respect of any claim, if information furnished at the time of proposal is found to be incorrect or false.  Therefore, request for cashless facility was rejected and initial authorisation given for Rs.2000/- was withdrawn.  Matter was communicated to hospital and complainant as per letter dated 11.11.2019.  As per condition No.14 of policy, company also had a discretion to cancel the policy on ground of non-disclosure of material facts, by sending 30 days notice by registered letter to the insured.  In accordance with the condition, a notice was issued to the insured in her last known address, on 18.11.2019.  Policy No.P/181215/01/2019/005630, in respect of Ayana Sajan was cancelled with effect from 28.12.2019, due to non-disclosure of pre-existing disease.  Besides complainants have not approached opposite parties for reimbursement of claim with original bills and documents.  As per condition Nos.3 & 4 of the policy, claim must be filed within 15 days from the date of discharge from hospital and this claim must be accompanied by original bills and other documents, upon which the same is found.  Complainants have not submitted claim in time along with original documents.  2 decisions of Supreme Court are also referred to in the written version, which obviously do not form part of pleadings and therefore we are not reproducing the quotes given in written version, from these decisions.  This being the facts, opposite parties pray for dismissal of complaint with compensatory costs.

 

          3.  After filing of written version, case was posted for steps and then for evidence.  Despite availing repeated opportunities, complainant has not given evidence by filing proof  affidavit  or  otherwise.   On 15.7.2021,  when  the  case  was  taken  up  for                                                                                                                    (cont.....4)

-  4  -

complainant’s evidence, none of the complainants were present.  Letter sent by opposite parties for cancellation of policy and original policy documents produced by complainants were earlier admitted without formal proof, as Exts.P1 and P2 respectively.  Though again an opportunity was given for evidence to opposite parties, they have not turned up to give evidence on oath or had produced any documents as such.  Finally on 22.9.2022, when case it was found that no documents were submitted by opposite parties, we had taken the same for orders denying another  request for further time, made by learned counsel for opposite parties.

 

          We notice that an application to reopen evidence was filed by learned counsel for opposite parties on 26/09/20.  Along with it, a proof affidavit and 9 documents were also filed.  There was no posting of the case on 26.9.2022.  Case was  taken by us for orders  on 22.9.2022 itself.  Surprisingly, application to reopen evidence is a half page application filed by the counsel.  There is no supporting affidavit.  Opposite parties have not filed any application to reopen evidence.  Since the application filed by counsel cannot be considered as an application as such and further since there are no reasons either for reopening evidence, we are not inclined to allow the same.  At the same time, we find that document No.3 produced counsel for opposite parties is the original proposal form submitted by 2^nd complainant, consideration of which is pivotal in this case,along with the copy of terms and conditions of policy produced as document No.2.  Hence we have considered those also in the light of contentions taken in the written version.  After closure of evidence on 22.9.2022, we have heard the learned counsel for complainants.  Now the points which arise for consideration are :

1)  Whether there was any deficiency in service or unfair trade practice on the part of opposite parties ?

2)  Whether complainants are entitled to get reimbursement of treatment expenses and prohibitory direction prayed for against the opposite parties along with compensation and costs ?

3)  Final Order and costs ?

 

4. Point Nos.1 and 2 are considered together :

 

          Main objection taken for repudiating the claim and cancellation of policy as such is violation of condition No.9 of terms and  conditions of the policy.  It is contended in the written version that material facts with regard to health history of the child Ayana Sajan were suppressed by complainants.  In this connection, opposite parties  have stated that Ayana Sajan was a preterm baby who was given birth to 25 weeks prior to the expected date of delivery.  In otherwords,  1^st complainant was quick with the child by 5 months and 1 week.  Normal gestation period of a child will be near 10 months.  In document No.2 produced, which is filled up and signed by 2^nd complainant, it is seen                                                                                                        (cont....5)

• 5  -

that 2^nd complainant had answered in the negative while responding to a query with regard to health history regarding complications during birth.  He had answered ‘no’  in the column given for answering the query regarding birth complications.  Complainants do not have a case in the complaint that the proposal form was filled and signed by somebody else.  Though it is pleaded in the complaint that all information including premature birth of Ayana Sajan was given to 3^rd opposite party, both the complainants have not appeared even to depose in terms of the pleadings addressed above.  What remains is proposal wherein a negative answer is given to the query relating to complications in birth, which would be relating to child of complainants.  It is mentioned in the complaint itself that the child was only 10 months old when the policy was taken by complainants.  That being so, we are of the view that the fact of child being a preterm baby was a material one, which ought to have been disclosed by complainants.  It is a known fact that such babies may face infirmities and ailments relating to congenital health problems caused due to quick birth.  As this fact was not revealed, opposite parties had repudiated the claim for cashless facility.  Apparently, they have not honoured the claim for reimbursement of medical expenses only on the same premises.  The fact that Ayana Sajan was a preterm baby was material in this case and complainants had the duty to disclose this fact to opposite parties in the proposal form, which they have not done.  Their case that it was disclosed to 3^rd opposite party is not supported by any evidence. Therefore, going by clause 9 of the policy, opposite parties have the right to repudiate the claim and further to cancel the policy also with regard to Ayana Sajan.  We also note that policy of the child alone was cancelled, going by the pleadings addressed in the written statement.  Therefore, repudiation of claim and cancellation of policy which as per written version was in fact from 28.12.2019, as per Ext.P1 letter appears to be proper and legally correct.  We notice that in the Interim Application filed seeking interim orders by complainants, along with the complaint, this Commission has granted a Prohibitory Order on 16.12.2019, against cancellation of policy of complainants.  Cancellation was done as per Ext.P1, much earlier the direction given in Interim Application.  With regard to both complainants, there was no cancellation of policy as such.  There is no violation of the Interim Order given by this Commission.  Reverting back to the facts, we are of the view that repudiation and cancellation of policy in the name of Ayana Sajan was proper.  There is no deficiency in service or unfair trade practice.  Therefore, complainants are not entitled for the reliefs claimed in the complaint.  Point Nos.1 and 2 are answered accordingly. 

 

 

                                                                                                              (cont....6)

 

 

 

 

- 6  -

5.  Point No.3 :

 

          In the result, this complaint is dismissed, considering the circumstances, without costs.  Parties shall take back all copies submitted, after expiry of appeal time. 

 

                          Pronounced by this Commission on this   25^th   day of October, 2022

 

                                                                                            Sd/-

     SRI. C. SURESHKUMAR, PRESIDENT

                              Sd/-

    SMT. ASAMOL P., MEMBER

                        Sd/-

  SRI. AMPADY K.S., MEMBER

 

 

APPENDIX

 

Depositions :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1     -  policy cancellation letter.

Ext.P2     - comprehensive insurance policy schedule.

On the side of the Opposite Party :

Nil.

 

 

                                                                                          Forwarded by Order,

 

 

                                                                                     ASSISTANT REGISTRAR