Kerala

Idukki

CC/142/2019

Sence Kurian - Complainant(s)

Versus

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

Avd: Shiji Joseph

30 Mar 2023

ORDER

 

DATE OF FILING : 26/07/2019

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 30^th day of March 2023

Present :

              SRI.C.SURESHKUMAR                                               PRESIDENT

              SMT.ASAMOL P.                                                          MEMBER

              SRI.AMPADY K.S.                                                        MEMBER

CC NO.142/2019

Between

Complainant                          :  Sence Kurian,

                                                  Orappankal House,

                                                  Kattappana P.O., Kattappana.

                                                  (By Adv.Shiji Joseph)

                                                           And

Opposite Party                 :   1 . Star Health and Allied Insurance Co.Ltd.,  

                                                  No.15, Sri.Balaji Complex, 1^st Floor,

                                                  Whites Lane, Royapettah, Chennai – 600 014,

                                                  Represented by its Managing Director..

                                             2 .  Star Health and Allied Insurance Co.Ltd.,                                

                                                   Puliyanmala Road,

                                                   Kattappana P.O., Kattappana,

                                                   Represented by its Branch Manager.

                                                    (Both by Adv.K. Pradeepkumar)

 

O R D E R

SRI.AMPADY K.S., MEMBER

 

Complainant filed this complaint raising the following allegations against opposite parties and prayed for the reliefs hereinafter mentioned.

1 . The  complainant  had health insurance with New India Insurance Co. Ltd., The policy was transferred in the year 2018 to the opposite parties.

(Cont....2)

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 The policy No.P/181219/01/2019/008586 and the premium amount is Rs.22,598/- and the sum assured is Rs.5 lakhs.  The policy was renewed in the year 2019 and the period of insurance is 02/02/2019 to 01/02/2020.

2 . As per the policy, the opposite party assured the complainant that they would meet the hospitalization expenses.  The complainant, for the joint pain was admitted to Sree Sudheendra Medical Mission, Chittoor Road, Ernakulam from 07/05/2019 to 12/05/2019.  The disease was diagnosed as Synovitis on Left Knee.  Complainant has paid Rs.63,255/- for the treatment.

3 . Complainant claimed the amount vide claim No.0080076 dated 29/05/2019.  However the opposite parties have repudiated the claim for the reason of suppression of material fact. In the notice the opposite parties warned that they would cancel the policy.  Since the complainant transferred the policy form New India Assurance Company, the contention of the opposite parties are not tenable and the complainant is entitled for the policy benefits.

4 . The complainant from the year 2010 onwards has been taking the health insurance policy from New India Insurance Company, Kattappana and the opposite parties agent canvassed the policy and transferred the same to the Star Health.  Hence the contention of the opposite parties that the complainant suppressed the material facts is not true.

5 . The cause of action for this complaint arose on 10/07/2019, on that day the claim was repudiated and continuously thereafter in Kattappana Kara

 

(Cont....3)

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in Idukki District within the jurisdiction of this Hon’ble Court.

Hence complainant prayed for the following reliefs.

 

1 . The opposite parties may be ordered to pay Rs.63,255/- as the claim.

2 . The opposite parties may be asked to continue the policy with all benefits to the complainant.

3 .  The opposite parties may be asked to pay Rs.5,000/- as cost of the complaint.

4 . Such other reliefs that deemed just and equitable also may be granted.

Opposite parties jointly filed written version in the following lines.

 

1 . The opposite parties hereby denies all the averments and allegations made in the complaint except those facts which are specifically admitted hereunder.

2 . The complaint is not maintainable either in law or in facts.  There is no cause of action for the complaint.  So this case is not maintainable before the Forum.

3 . The complainant had availed the policy from the Ernakulam Branch office of the Star Health & Allied Insurance Company.  The claim processing and decision was taken in the claim at Thiruvananthapuram District.  No cause of action has taken place within the jurisdiction of this Hon’ble Forum at Idukki.  In the decision of Sony Surgical Vs. National Insurance Co.(2009 KHC 5136) it was held by the Hon’ble Supreme Court that the branch office

(Cont....4)

-4-

 

means the branch office where the cause of action has arisen.  No cause of action either in whole or part has taken place at Idukki.  Simply because the complainant resides in the Idukki District that will not confer any jurisdiction to this Hon’ble Forum.  Therefore this Hon’ble Forum may be pleased to hear the maintainability of this complaint before the trial and the complaint may be dismissed in –limine.

4 . The complainant has no bona fides in instituting the complaint and the same has been done with the ulterior motive of making illegal gains.

5 . The complainant took a Star Comprehensive Health Insurance Policy from the opposite parties for the period commencing from 02/02/2018 to 01/02/2019 and the same has been renewed upto 01/02/2020 vide policy No.P/181219/01/2019/008586 covering complainant and his wife and three children.  At the time of issuing the policy the complainant was supplied with the terms and conditions of the policy.  The terms and conditions of the policy were explained to the complainant at the time of proposing policy and the same was served to the complainant along with the policy schedule.  Moreover it is clearly stated in the policy schedule.  “THE INSURANCE UNDER THIS POLICY IS SUBJECT TO CONDITIONS, CLAUSES, WARRANTIES, EXCLUSIONS ETC, ATTACHED”.

6 . Proposal form is the basis of insurance contract, on that basis the policy is issued.  In the proposal form, the complainant has specifically

 

(Cont....5)

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declared that he was not suffering from any disease or ailment at the time of submitting the proposal form or any point of time earlier and that his health condition was good in all respects.  In the proposal form, the complainant further declared that if after the insurance policy is effected, any particulars stated in the proposal form are found incorrect, the insurance company would incur ‘no liability’ under the policy.

7 . Acceptance of proposal is based on the information/details given by the proposer.  Acceptance of risk is to be decided by the insurance company.  If the health status of the proposer is found satisfactory based on the facts in the proposal, the insurer would accept the risk and issue policy.  If the health status is not satisfactory, the insurer would decline the risk.

8 . In claim number CLI/2020/181219/0080076, the complainant was admitted on 07/05/2019 at Sree Sudheendra Medical Mission, Kochi for the treatment of Synovitis- Left Knee and underwent Arthroscopic Joint debridement and synovial biopsy Right Knee and after the treatment he was discharged on 12/05/2019 and later submitted the claim form with discharge summary, lab reports and bills.

9 . It is submitted that the discharge summary issued by the Sree Sudheendra Medical Mission, Kochi clearly reveals that the complainant had past history of Right Knee pain since 5 years & Sero negative Arthritis.

10 . As part of the claim processing protocol, the company conducted investigation and collected the hospital records from Sree Sudheendra Medical Mission, Kochi.

(Cont....6)

-6-

11 . The Hospital records dated 25/04/2019 from Sree Sudheendra Medical Mission, clearly reveals that the complainant was diagnosed to have Sero Negative Arthritis and was treated with T.Methotrexate, T. Folvite, T.Medrol and T.Sazo till 2007.  In 2007, the complainant took Ayurveda and Homeo treatment.  Not much relief and again he continued the same medications till 2009.  In 2013, the complainant was consulted with Dr.Joe in Lordes Hospital and the illness was diagnosed as Spondyloarthropathy with OA Knees and was given medicines such as Saaz, Defza and continued medication till this date.

12 . It is submitted that the treating doctor clearly noted in the Internal Referral records dated 09/05/2019 that the complainant was suffering from Seronegative Spondyloarthropathy persistent Synovitis (Lt) Knee since 3 years.

13 . Based on the available medical records, it is evident that the complainant was suffering from Sero Negative Arthritis & Spondyloarthropathy persistent Synovitis (Lt) Knee and was on regular medications before the inception of policy and was not revealed in the proposal form at the time of inception of policy.  As the insured has wilfully suppressed the pre-existing disease in the proposal form, which is the basis of contract at the time of taking the policy,  thereby he intentionally suppressed those facts in the proposal form despite there is specific question in the health history column 2 that:-

 

(Cont....7)

-7-

 Have you consulted/taken treatment/been admitted for any illness/Diseases/injury/surgery details?  - The complainant has answered ‘No’ to this specific question.

 In column No.4 mentioned in the proposal form ‘Have you ever suffered or suffering from any of the following’:-

(f) Disease of Bones/Joints, Slipped Disc, Spinal Disorder, Injury to Ligaments:- The complainant has answered ‘No’ to this specific question.

(i)  Any other problems (Please specify)- the complainant has answered ‘No’ to this specific question.

 In column No.5 mentioned in the proposal form ‘Have any of the persons proposed for insurance’.

1 . Undergone any medical test? – The complainant has answered ‘No’.

2 . Prescribed any medicines – The complainant has answered ‘No’.

i . Name of the illness for which medicines have been prescribed :- The complainant has answered  ‘No’.

ii. Details of Drugs and medicines prescribed :- The complainant has answered ‘No’.

iii. Period from which these drugs are taken :-  The complainant has answered ‘No’.

14 . As per condition No.9 of the policy, the company shall not be 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 or such claim is in any manner fraudulent or supported by any fraudulent

(Cont....8)

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means or device, misrepresentation whether by the insured person or by any other person acting on his behalf and hence the opposite parties had rejected the claim and the same was communicated vide letter dated 10/07/2019.

15 . As per condition No.14 of the policy, “The company may cancel the policy on grounds of non disclosure of material facts or non –co-operation by the insured person, by sending the insured 30 days notice by registered letter at the  insured person’s last known address”.  A notice was issued by the company to the insured in the last known address.  Thus the policy No.P/181219/01/2019/008586 in respect of Mr.Sence Kurian was cancelled due to the non disclosure of pre existing disease.

16 . In Satwant Kaur Sandhu v.New India Assurance Co.Ltd., (2009) 8 SCC 316, the  Hon’ble Supreme Court has held that ‘Material Fact’ is to be understood to mean as any fact which influence the judgment of prudent insurer, in deciding whether to accept the risk or not.  If the proposer has the knowledge of such fact, he is obliged to disclose it particularly while answering questions in the proposal form.  Any incorrect answer will entitle the insurer to repudiate their liability because there is a clear presumption that any information sought for in the proposal form is material of the purpose of entering into a contract of insurance, which is based on the principle of utmost good faith, Uberrimae Fides.

17 . The Hon’ble Supreme Court in Reliance Life Insurance Co.Ltd. & Anr v.Rekhaben Nareshbhai Rathod (Civil Appeal No.4261 of 2019 dated 24/04/2019 observed that a contract of insurance is contract uberrimae

(Cont....9)

-9-

fides and there must be complete good faith on the part of the assured.  The assured is thus under a solemn obligation to make full disclosure of material facts which may be relevant for the insurer to take into account while deciding whether the proposal should be accepted or not.    While making a disclosure of the relevant facts, the duty of the insured to state them correctly cannot be diluted.  It is standard practice for the insurer to set out in the application a series of specific questions regarding the applicant’s health history and other matters relevant to insurability.  The object of the proposal form is to gather information about a potential client, allowing the insurer to get all information which is material to the insurer to know in order to assess the risk and fix the premium for each potential client.  Proposal forms are a significant part of the disclosure procedure and warrant accuracy of statements.  Utmost care must be exercised in filling the proposal form.  In a proposal form the applicant declares that she/he warrants truth.  The contractual duty so imposed is such that any suppression, untruth or inaccuracy in the statement in the proposal form will be considered as a breach of the duty of good faith and will render the policy voidable by the insurer, it has been held that all-important element in such a declaration is the phrase which makes the declaration the “basis of contract”.  These words alone show that the proposer is warranting the truth of his statements, so that in the event of a breach this warranty, the insurer can repudiate the liability on the policy irrespective of issues of materiality.  It is sufficient for this court to hold in the present facts that the information which was sought by

(Cont....10)

-10-

the insurer was indeed material to its decision as to whether or not to undertake a risk.  The proposer was aware of the fact, while making a declaration that if any statements were untrue or inaccurate or if any matter material to the proposal was not disclosed, the insurer may cancel the contract and forfeit the premium.

18 . The allegations in the complaint are admitted only to the extent stated supra and the remaining is denied.

19 . The allegation of the complainant in para No.5 of the complaint that the complainant from the year 2010 onwards has been taking the health insurance policy from New India Insurance Company and the opposite parties agent canvassed the policy and transferred the same to the Star Health, hence the contention of the opposite parties that the complainant suppressed the material facts is not true are totally false and hence denied.   It is submitted that the complainant took Star Comprehensive  Health Insurance Policy from the opposite parties only on 02/02/2018 and at the time of taking the policy, the complainant has not furnished any health related condition in the proposal form except previous insurance details (New India Assurance Policy period from 14/01/2016 to 13/01/2017 & 02/02/2017 to 01/02/2018).  Moreover, the policy schedule issued by the New India Assurance clearly noted that the date of inception of the policy was 07/01/2016.  Based on the declaration of the complainant in the proposal form, the opposite parties issued the policy as per terms and conditions of the policy.  Moreover the complainant has not at any point of time revealed about his previous policy

(Cont....11)

-11-

with New India Assurance since 2010.  Eventhough the complainant revealed two years policy with New India Assurance but the complainant had filed to reveal treatment details of Osteo Arthritis Knee, Sero Negative Arthritis & Spondyloarthropathy persistent  Synovitis (Lt) Knee since 2007 in the proposal form which amounts to suppression.  The opposite parties had rightfully repudiated the claim of the complainant as per the declaration in the proposal form.  The repudiation made by the opposite party was as per the terms and conditions of the policy and there is no deficiency of service or negligence on the part of the opposite parties.

20 . The opposite party acted in good faith and issued the policy based on the proposal form.  No cause of action has been raised on the dates as alleged by the complainant in the complaint since the complainant suppressed material facts at the time of taking policy and not revealed in the proposal form.

21 . The complainant is not entitled for any reliefs as claimed in the complaint.  It is the opposite party who is entitled for cost and compensatory cost from the complainant for having lodged such false and frivolous complaint.

22 . The complainant has filed this complaint frivolously  for the sole purpose of harassing the respondent with intention for getting unlawful enrichment from the respondent who are dealing with public money and functioning under the guideline of IRDA controlled by the government of India.  As public money is held in trust, the company must exercise abundant

(Cont....12)

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caution in dealing with claims by applying all conditions correctly.

23 . It is submitted that the opposite parties are entitled to get compensatory cost from the complainant for the reason that (1) the complainant had diseases prior to the commencement of the policy.  (2)  the  complainant had suppressed his existing disease in the proposal form for obtaining policy.  Therefore compensatory cost may be allowed.

Evidence in this case includes pleadings of both sides, documents marked on the side of both and oral testimony of complainant as PW1 and opposite parties witness as RW1.  Copies of 7 documents were marked as Exts.P1 to P7 on the side of complainant and 9 documents produced by opposite parties were marked as Exts.R1 to R9 respectively.  These are as follows.

1 . Ext.P1 –Policy schedule issued by 1^st opposite party in respect of policy No.P/181219/01/2019/008586 with  renewal endorsement for one year from 02/02/2019 to 01/02/2020 with a premium of Rs.22598/- with sum assured Rs.5 Lakhs and with accident death and permanent total disablement cover for Rs.5 Lakhs.  Bonus given is shown as Rs.2,50,000/-.

Ext.P2 – Claim form dated 29/05/2019 filed by complainant with opposite parties.

Ext.P3 – Details of bills claimed for Rs.63,255/-

Ext.P4(series) – 9 in numbers including final bill.

Ext.P5 – Discharge summary dated 12/05/2019.

(Cont....13)

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Ext.P6 – Repudiation of claim letter dated 10/07/2019

Ext.P7 – Notice dated 01/07/2019 stating cancellation of coverage in respect of insured  for non-disclosure of  material fact in the proposal form. (all are copies).

Documents from the side of opposite parties.

1 . Ext.R1 – Previous policy schedule issued by opposite party for the period from 02/02/2018 to 01/02/2019 containing 5 sheets showing details of coverage.

2 . Ext.R2 – Renewed policy for the period from 02/02/2019 to 01/02/2020 containing 3 sheets.  (1^st sheet of Ext.R2 and P1 are same).

3 . Ext.R3 – Policy details containing terms and conditions.

4 . Ext.R4 – Original Proposal form dated 15/01/2018 filed by complainant.

5 . Ext.R5 – Portability form dated 12/01/2018 filed by complainant

6 . Ext.R6 – Discharge summary dated 12/05/2019.(both this and Ext.P5 are same).

7 . Ext.R7 – Internal referral form with progress notes and Doctors order sheets etc.,

8 . Ext.R8 – Repudiation of claim letter dated 10/07/2019(Both this and Ext.P6 are same).

9 . Ext.R9 - Notice regarding non-disclosure of pre-existing disease and proposal for cancellation of coverage to complainant (This and Ext.P7 are same).

(Cont....14)

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We have examined the contentions and perused records.  On a careful analysis of the same, following points arise for consideration.

1 . Whether the complaint is maintainable before this Commission due to  inherent lack of jurisdiction?

2 . Whether there is any deficiency in service on the part of opposite parties?

3 . Whether the complainant is entitled to the reliefs prayed for?

4 . Order to be passed?

Point No.1

Contention of the opposite parties regarding inherent lack of jurisdiction is not sustainable.  The branch office of the 1^st opposite party is situated at Kattappana and the notice issued from this Commission was served on it.  As per S.11(2), a complaint can be instituted within the local limits of Commission, where a branch office of the opposite party  is situated.  Hence this Commission has jurisdiction to try the complaint.  So, contention of opposite parties on this score is overruled.  Therefore, point No.1 is answered as above.

Point Nos.2 and 3 are considered together

 

Allegation regarding deficiency in service is to be proved by the complainant.  Here, this point is to be considered along with the contention of opposite parties regarding suppression of material facts and also the clause

 

(Cont....15)

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excluding the eligibility for reimbursement of medical expenses for certain periods.  Complainant averred that he had been taking health insurance policy from New India Assurance Company from 2010 onwards.  But no evidence to prove this contention is produced by the complainant.  In the portability  form (Ext.R1) complainant has stated that number of years of continuous coverage as 2 years while this form was filled on 12/01/2018.  So he cannot deviate from this documentary evidence in the absence of any valid evidence to prove that insurance coverage had been there for previous years also.  As per clause (1) of S.3 exclusions (Ext.R3 policy document), it is stated that company shall not be liable to make any payment under this policy in respect of any expenses what so ever incurred by the insured person in connection with or in respect of pre-existing disease as defined in the policy until 48 consecutive months of continuous coverage has elapsed since inception of the 1^st policy with any Indian insurer.  In the light of Ext.R5, 48 consecutive months have not elapsed from the inception of 1^st policy while taking medical treatment in question.  A contract of insurance is concluded if no objections to the conditions prescribed were not raised within the prescribed period.  An insured is at liberty to withdraw from the insurance policy taken, if he is not satisfied with the conditions.  Complainant has no case that he had  raised any objection with regard to the terms and conditions of the policy in time.  As  such he is bound to obey the terms and conditions of the policy.  In the light of above exclusion clause complainant cannot claim reimbursement of the

 

(Cont....16)

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medical expenses incurred by him for the treatment in question. 

The contention of the opposite parties regarding suppression of material facts (ie, pre-existing disease) is also having force.   In the proposal form (Ext.R4), complainant had stated under the head health history clause (2)  that:- has the person proposed for insurance consulted/taken treatment- been admitted for any illness/disease/injury/surgery? If yes, details.  He has answered as “No” other questions were also shown in the proposal form for which complainant has answered as  “No”.   With  regard to issuance of policy, proposal form is the basic data on which insurer relies.  Fixation of premium and decision  whether to accept or reject the proposal etc., are based on this form.  The  concept of “Uderrimae Fidei” is applicable not only to the insured but to the insurer also.  Contract of insurance is a speculative one.  In Ext.R6 discharge summary, treated doctor stated that right knee pain since 5 years, insidious onset and gradually progressive.  It is also stated in this document regarding past history that K/C/O Seronegative Arthritis.  From this document it is clear that he was having the particular health problem for the past 5 years.  We cannot disbelieve the findings of doctor who treated the disease.  No evidence to rebut the findings of doctor were produced by the complainant.  In Ext.R7 (Internal referral form) also it is stated that knee pain since 5 years.  But 3 sheets were attached to Ext.R7 wherein certain treatments in other hospitals from 2011 is not having any signature of the concerned doctors of the hospitals.   Concerned doctors were not examined also.  So it cannot be relied on.  As the complainant has suppressed material

                                                                                               (Cont....17)

-17-

 

facts he is not entitled to claim any benefit for the treatment in question.  Other contentions of the opposite parties are not sustainable for the reason that those were not proved.  Complainant has miserably failed to establish his contention.  So, he is not entitled to any reliefs prayed for. Hence Point Nos.2 and 3  are answered accordingly.

Point No.4

In the light of our findings on point Nos. 2 and 3, we are of the considered view that this complaint is not sustainable.  Hence it is dismissed without any order as to costs.

Complainant shall take back extra copies filed without delay.

Pronounced by this Commission on this the 30^th  day of March 2023.

                                                                                              

                                                                            SRI.AMPADY K.S., MEMBER

 

                                                                                                                                                                

                                                                 SRI.C.SURESHKUMAR, PRESIDENT

 

                                                                                           

                                                                        SMT.ASAMOL P., MEMBER

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1- Sence Kurian

On the side of the Opposite Party :

RW1 – Manu Mohan

 

 

                                                                                               (Cont....18)

-18-

Exhibits :

On the side of the Complainant :

Ext.P1 –Policy schedule issued by 1^st opposite party in respect of policy

               No.P/181219/01/2019/008586 with  renewal endorsement for one

               year from 02/02/2019 to 01/02/2020 with a premium of Rs.22598/-

               with sum assured Rs.5 Lakhs and with accident death and

               permanent total disablement cover for Rs.5 Lakhs.  Bonus given is

               shown as Rs.2,50,000/-.

Ext.P2 – Claim form dated 29/05/2019 filed by complainant with opposite

               parties.

Ext.P3 – Details of bills claimed for Rs.63,255/-

Ext.P4(series) – 9 in numbers including final bill.

Ext.P5 – Discharge summary dated 12/05/2019.

Ext.P6 – Repudiation of claim letter dated 10/07/2019

Ext.P7 – Notice dated 01/07/2019 stating cancellation of coverage in respect

               of insured  for non-disclosure of  material fact in the proposal form.  

               (all are copies).

On the side of the Opposite Party :

 

Ext.R1 – Previous policy schedule issued by opposite party for the period

               from 02/02/2018 to 01/02/2019 containing 5 sheets showing details

               of coverage.

Ext.R2 – Renewed policy for the period from 02/02/2019 to 01/02/2020

               containing 3 sheets.  (1^st sheet of Ext.R2 and P1 are same).

Ext.R3 – Policy details containing terms and conditions.

Ext.R4 – Original Proposal form dated 15/01/2018 filed by complainant.

Ext.R5 – Portability form dated 12/01/2018 filed by complainant

Ext.R6 – Discharge summary dated 12/05/2019.

               (both this and Ext.P5 are same).

Ext.R7 – Internal referral form with progress notes and Doctors order

                sheets etc.,

Ext.R8 – Repudiation of claim letter dated 10/07/2019(Both this and

                 Ext.P6 are same).

Ext.R9 - Notice regarding non-disclosure of pre-existing disease and proposal

               for cancellation of coverage to complainant

               (This and Ext.P7 are same).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                                                                                  Forwarded by Order  

 

 

                                                                                          ASSISTANT REGISTRAR