West Bengal

South 24 Parganas

CC/123/2015

Sri Ritwik Kumar Banerjee, S/O Late Chitta Prasanna Banerjee - Complainant(s)

Versus

TATA AIG LIFE INSURANCE CO. LTD. - Opp.Party(s)

Smt. Rita Mondal

28 Jun 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _123_ OF ___2015_

 

DATE OF FILING : 10.3.2015                       DATE OF PASSING JUDGEMENT:  28.06.2016

 

Present                         :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :     Sharmi Basu &  Subrata Sarkar

                                                                             

COMPLAINANT        :     Ritwik Kumar Banerjee,s/o late Chitta Prasanna Banerjee of 1/51, Netaji Nagar, P.S. Netaji Nagar, Kolkata – 92.

 

-VERSUS  -

 

O.P/O.Ps                            :     Tata AIG General Insurance Co. Ltd. registered office at  Peninsula Business Park, Tower A, 15^th Floor, Ganpatrao  Kadam Marg. Lower Parel, Mumbai – 400013.

                                                Represented by their authorized agent Sri Premasis Banerjee, at 11, U.N. Brahmachary Road, Kolkata – 71 and residing at 76/5, Baksara Road, Howrah-711104.

_______________________________________________________________________

                                                            J  U  D  G  E  M  E  N  T

Udayan Mukhopadhyay, President

It is the short case of the complainant that  he is a policy holder with Tata AIG General Insurance Co. Ltd. being policy no. 0200442400  and complainant was regularly paying his premium since more or less 1 year. It has been admitted by the complainant that he is a known patient of right heart failure and cor pulmonale and also suffering with lower respiratory track infection ,for which he was under the treatment of Raja Dhar of Fortis Hospital   and was admitted there on 10.2.2015 with the complaints of shortness of breathe, chest tightness, cough with scanty expectoration and was treated with diuretics, antibiotics and was treated there as an indoor patient. The Xerox copy of discharge summary is annexed. It has further stated that the complainant having incurred medical charge of the said hospital to the tune of Rs.1,31,319/- for the admission, treatment, testing etc. and after payment of the same he was discharged from the said hospital. It has further claimed that while complainant was admitted patient of the said hospital applied to the office of the O.P with his all documents for medical coverage and claimed the amount of Rs.1,31,319.00 for his treatment. But the O.P terminated his policy with a ground that the purpose of the admission which is laid down in the documents is not in the coverage of the said policy. But it appears from the Policy Wordings Medi Prime of the policy of the O.P except two matters, other cause of the admission in the said Fortis Hospital is under the coverage of the said policy. It has claimed that the O.P is a well known company and this fraudulent practice is not expected from the O.P . It is unfortunate that  knowing all these things the office of the O.P terminated the policy of the complainant which is beyond the Law. It has claimed that due to harassment of the O.P physical condition of the complainant is being deteriorated day by day, for which ,being a true policy holder he is entitled to get mediclaim and hence he has filed this case for a declaration that the policy in the name of the complainant is a valid and the claim of the complainant is under the coverage of the policy,   for payment of Rs.1,31,319.00 with interest and cost of Rs.20,000/-.

The O.P is contesting the case by filing written version and has denied all the allegations leveled against them. It has been claimed by the O.P that this complaint ought to be adjudicated upon by competent Civil Court requiring voluminous evidence and is not maintainable and liable to be dismissed. It is the further contention of the O.P that O.P provided insurance policy ( Med prime) in the name of the complainant for the period from 4.7.2014 to 3.7.2015 subject to specific terms and conditions as stipulated in the policy , which governs the instant claim and the same is marked Exhibit 1 and 2. It has further stated that the proposal form submitted by the complainant is filed herewith ,which is marked as Exhibit 3. It has claimed that as per standard medical tests before issuing such policy in favour of the complainant, the complainant has concealed his previous illness in the proposal Forum and O.P did not have any opportunity to conduct medical test on that line. A copy of standard medical test is annexed and marked Exhibit 4.  It has further submitted that as and when cashless request was received from Fortis Hospital on 12.2.2015 for medical management of Lower respiratory tract infection  complaints of shortness of breath on exertion and cough, at that time hospital was requested to provide  consultation papers of the complainant and past treatment records and on the basis of the said documents it was observed that complainant was a known patient of chronic obstructive pulmonary disease (COPD)  and diagnosed two months back and Obstructive sleep apnea (OSA) since 4-5 years and benign prostatic hypertrophy (BPH) and Ischemic heart disease. It has further stated that insured has submitted sleep Apnea Study reports done in 2010  during his hospitalization at Fortis Hospital , Kolkata, wherein, he had diagnosed as a severe case of Obstructive Sleep Apnea. So, it is the claim fo the O.P that the aid pre-existing ailment and diagnosis was not disclosed by the insured in the Proposal Forum at the time of policy inception. Moreover, during the PPHC done to have no disclosure in this regard. It has strongly claimed that discharge certificate issued by the Apollo Gleneagles Hospital, Kolkata dated 10.9.2010  and discharge summary issued by the Fortis Hospital dated 29.8.2010 are exhibited 5 and 6. It has further claimed that in terms of the policy pre-existing conditions will not be covered until 48 months of continuous coverage have elapsed . So, Section 3 d. of the policy stands deleted and shall be replaced entirely with the following  i.e.

1. The  waiting period for all pre-existing conditions shall be reduced by the number of continuous preceding years of coverage of the insured person under the previous health insurance policy.
2. If the proposed sum insured for a proposed insured person is more than the sum insured applicable under the previous health insurance policy (other than as a result of the application of Benefit 2a) then the reduced waiting period shall only apply to the extent of the sum insured under the previous health insurance policy.

So, complaint is not tenable under the policy exclusion clause. . It has further stated that the principle of insurance namely UTMOST GOOD FAITH has already been broken down by the act of the complainant and complainant is not coming before the Forum with clean hand ,on the contrary sole intention of the complainant is for gaining unlawful money. So, there is no deficiency in service and negligence. Accordingly, O.P prays for dismissal of the complaint treating the same as a frivolous and any order in favour of the complainant will lead to miscarriage of justice.

            Points for decision in this case is whether there is any deficiency in service or unfair trade practice on the part of the O.P by not settling the dues as claimed by the complainant, or not.

                                                            Decision with reasons

            At the very outset it must be stated that at the time of filing BNA by the O.P it has detected that in this BNA no exhibits filed as claimed by the O.P except judgment of Hon’ble Supreme Court.

            Be that as it may, a point is required to be decided in this case is whether complainant disclosed all his diseases before taking the policy with the O.P.  We turn our eyes in the policy application from ,wherefrom we find that all queries regarding medical ailments were marked in the negative side. Thus from the totality of the proposed form we find that there was no disease before taking the policy. Now, we find  the Policy no. 0200442400 ,the period commencing from 4.7.2024 to 3.7.2015.Thus , it is clear that there was no ailment as disclosed in the proposed policy form by the complainant on or before 4.7.2014, i.e. complainant and his family since this type of policy is a family floater policy.

            Now, we turn our eyes on the discharge summary of Fortis Hospital, wherein, complainant was admitted on 10.2.2015 and discharged on 16.2.2015 under Dr. Raja Dhar, the Consultant Pulmologist and Critical Care. It appears that progressive shortness of breath worsened since last five days and post medical history  shows chronic obstructive pulmonary disease.

            Now we find out whether the post medical history of the complainant is after 4.7.2014 or prior to that.

            From the record we find that this complainant was admitted in the Fortis Hospital on 29.8.2010 and discharged on 3.9.2010 with the  history of increased frequency and urgency as well as history of sleep Apnoea. It further appears from the discharge summary of Apollo Gleneagles Hospitals that complainant was admitted on  9.9.2010 and discharged on 10.9.2010 with a history of progressive drowsiness –likely obstructive sleep apnoea. Thus, we find that complainant at the time of taking policy on 4.7.2014 had post medical history and admitted both in Apollo Gleneagles Hospital and Fortis Hospital but the same was not disclosed at the time of taking policy. Now. We turn our eyes on the questionnaire put by the O.P to the complainant, wherefrom we find that according to the question no.2 “Do you are a known case of chronic obstructive pulmonary disease (COPD) diagnosed two months back and obstructive sleep apnea (OSA) since four years and Benign P4rostatic Hypertrophy (BPH) and Ischemic Heart Disease(IHD)?

            The complainant has given answer that , from where O.P came to learn regarding COPD and complainant was not admitted to the concerned Fortis Hospital with COPD. This is really interesting and no proper answer was given to the question no.2 thrown by the O.P. This answer clearly suggest that complainant knowing fully well wanted to suppress even he was caught by the O.P through the documentary evidence which has been filed by the O.P in this case and this answer and other answers given by the complainant clearly show that needle of suspicious activity of the complainant goes to suppression of material facts and complainant is not in clean hand.

            The main point that insured was admitted at Fortis Hospital and Apollo Gleneagles Hospital for the selfsame disease but the same was not disclosed prior to obtaining the insurance policy. Even then at the time of judicial proceedings in view of Sub Section 5 of Section 13 of the C.P Act 1986  , the complainant is still denying the same at the time of reply to the questionnaire. This is really unfortunate and in order to grab the money the instant case gave birth.

            It is well known to us that great principle of Insurance Law is that a contract of insurance is based upon utmost good faith and in fact it is the fundamental basis upon which all contract of insurance are made.

            Here, in the instant case we are sorry to say that the said utmost good faith has irritably broken down by the act of the complainant by suppressing the pre-existing disease at the time of filling up the proposed Form. We are aware that well settled Law in the field of insurance is that the contracts of insurance including the contract of life insurance  are contracts uberrima fide and every fact of material must be disclosed, otherwise there is good ground for rescission of the contract. The duty to disclose material facts continues right up to the conclusion of the contract and also implied any material alternation in the character of the risk which may take place between the proposal and its acceptance.

            Here in the instant case complainant has miserably withheld the same, that is why, the fundamental principle of insurance i.e. utmost good faith has go bye. It is interesting to point out that the complainant has somehow obtained one certificate from the Department of Pulmology on 27.8.2015 with an explanation from Dr. Raja Dhar that complainant was admitted under his care from 10.2.2015 to 16.2.2015 due to exacerbation of COPD which was in no way related to this obstructive sleep apnoea.

            This explanation is not accepted because we are doubtful about the signature of Dr. Raja Dhar. Moreover, can it be possible for a doctor who has treated the complainant on and from 10.2.2015 to 16.2.2015 and thereafter after lapse of six months this type of certificate has no leg to stand and it is clear that the same is an afterthought. We respectfully disagree with the certificated dated 27.8.2015  that obstructive sleep apnoea is no way related to COPD because patient has been suffering from obstructive sleep apnoea since 2010 which has a nexus with the COPD  and not all the time but in several cases we have noticed that. Thus procuring certificate from Raja Dhar ,although the signature is doubtful  ,particularly when the said doctor is reluctant to sign in the discharge certificate and instead of that one T. Kulkarni put his signature in the discharge summary.

            Considering all pros and cons we find that repudiation of claim as well as termination of the policy is undoubtedly justified since there is a lot of suppression of pre-existing disease which has a direct or indirect nexus with the present disease.

            Hence,

                                                                        Ordered

That the complaint case is dismissed on contest but we restrain ourselves from considering the case under section 26 of the C.P Act, 1986.

                                                               

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.

 

Member                                                      Member                                                                President

Dictated and corrected by me

                               

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgment in separate sheet is ready and is delivered in open Forum. As it is ,

 

                                                Ordered

That the complaint case is dismissed on contest but we restrain ourselves from considering the case under section 26 of the C.P Act, 1986.

                                                              

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.

 

Member                                                      Member                                                                President