Complaint filed on: 18-10-2016 Disposed on: 02-11-2017
BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM
OLD DC OFFICE COMPOUND, TUMAKURU-572 101
CC.No.139/2016
DATED THIS THE 2nd DAY OF NOVEMBER 2017
PRESENT
SMT.PRATHIBHA. R.K. BAL, LLM, PRESIDENT
SMT.GIRIJA, B.A., LADY MEMBER
Complainant: -
H.Madhusudan
S/o.Late Hanumantharayappa,
Aged about 50 years,
R/o. Beside Gundanjaneya Swamy
Temple, Koratagere taluk,
Tumakuru district
(By Advocate Sri.K.C.Nagaraj)
V/s
Opposite parties:-
- The authorized office,
Grievance Department, Star
Health and Allied Insurance
Company Ltd, No.1, New Tank
Road, Nangambakkam,
Chennai-34
- Area Officer, Star Health & Allied
Insurance Company Ltd.
Unit No.4, Royal Park,
No.34/3, Part Road,
Taskar Town, Behind
Ramada Hotel, Bengaluru
- Branch Manager, Star Health & Allied Insurance Co. Ltd, No.48/1, 1st Floor, 26th Cross,
SIT Main Road, Tumakuru-02
(OP No.1 to 3-By Advocate Sri.H.M.Nagabhushan)
ORDER
SMT.PRATHIBHA. R.K. PRESIDENT
This complaint is filed by the complainant against the OP No.1 to 3, under Section 12 of the Consumer Protection Act. The complainant prays to direct the OPs to pay medical expenses of Rs.4,50,000=00 with costs and to grant such other relief as deemed fit, in the interest of justice and equity.
2. The brief facts of the complaint is as under.
The complainant had obtained a policy bearing No.P/141100/2015/006186 (present policy No.P/141100/01/ 2016/007482) from OPs by paying premium amount of Rs.11,593=00, which was commencing from 5-3-20016 to midnight of 4-3-2017.
The complainant submitted that, the complainant has admitted for treatment on 14-3-2016 at Apollo’s Hospital, Bengaluru for acute pulmonary. The said hospital has treated the complainant and charged an amount of Rs.4,50,000=00 for medical expenses in all and issued medical bills.
The complainant further submitted that, the complainant submitted the claim form along with medical bills to the OP. Thereafter, the OP has repudiated the claim of the complainant and sent a letter to the complainant on 23-4-2016, wherein the OP specifically stated, the complainant is not entitled to claim the medial expenses as per the provisions of conditions No.9 and 14 of the policy.
The complainant further submitted that, the complainant had never taken any treatment before obtaining the policy and he had never suffered any chest pain before the issue of the policy. Hence, the complainant has not mis-represented/non-disclosed of material facts at the time of inspection of the policy. But the OP has falsely made out the observations in their letter dated 23-4-2016 and repudiated the claim. The present policy issued by the OP is in continuation of the previous of policy and hence, the observation made by the OP is only an attempt to escape from his liability of paying the medical expenses claimed by the complainant which amounts to “deficiency of sercvie” on the part of the OP.
The complainant further submitted that, on 6-5-2016 the complainant has issued a legal notice to the OP and the said notice was duly served on the OP, but the OP has issued a vague reply to the complainant. Hence the complainant has come up with the present complaint.
3. After service of the notice, the OP Nos.1 to 3 have appeared through their counsel and filed common written version contending interalia as under:
The complainant is not maintainable either in law or on facts and it is liable to be dismissed in limine. The complainant is based on self-serving and misleading allegations without proper disclosure of facts.
The OPs further submitted that, the complainant has availed Start Comprehensive Insurance Policy (Individual) bearing No.P/141100/01/2016/007482 for sum insured Rs.7,50,000=00 with the OPs for the period from 5-3-2016 to 4-3-2017. The policy is contractual in nature and the claims arising therein are subject to the terms and conditions and exclusion forming part of the policy. The terms and conditions of the policy specifically states that, the insurance company is not liable to pay in respect of any claim, if there is any misrepresentation and non-disclosure of material fact by the insured to the insurer. The complainant is being fully aware of such terms and conditions and executed the proposal form and accepted the policy.
The OPs further submitted that, the complainant made a claim for reimbursement of hospitalization at Apollo Hospital, Bengaluru from 14-3-2016 to 16-3-2016. The complainant alleged to have incurred Rs.4,39,792=00 towards his medical treatment and hospitalization for Ishaemic Heart Disease, Infarction, Acute Pulmonary Edema, Hypertension and Chronic Kidney Disease. The OP on receipt of claim papers for “Cash Less” facility raised certain queries. From the “Patient History and Physical Record” submitted by the Hospital, it was observed that, the complainant is a known case of Chronic Kidney Disease underwent dialysis three times in 2014 which is prior to the policy inception which is a pre-existing disease (PED) and disclosed at the time of inception of policy. Hence, the cash less facility was rejected.
The OPs further submitted that, the complainant submitted a claim form for reimbursement of medical expenses incurred. It is observed from the discharge summary, the patient was diagnosed for Ishemic Heart Disease Acute Coronary Syndrome and Acute Pulmonary Edema and Chronic Kidney Disease. The medical diagnosis of the complainant narrated above relates to his pre-existing health conditions which are material facts. The complainant is having knowledge and it is bound to disclose these pre-existing diseases in the proposal form, while availing the policy. But the complainant has not disclosed the said vital material facts to the insurer which amounts to violation of policy condition. The OPs were therefore constrained to repudiate the claim of the complainant by letter dated 23-4-2016. The repudiation of claim is proper and based on policy terms and the OPs have not committed any deficiency any deficiency in service.
The OPs further submitted that, at the time of soliciting the Insurance Policy, the complainant submitted a proposal form, it is clearly asked in the proposal form to fill in the respective column for each of the person proposed to be covered under column.
“3 (i). Have you ever suffered or suffering from any of the following – Disease of stomach, intestine, liver, gall bladder/pancreas, Kidney, Urinary bladder, Urinary Tract Diseases- If yes, since when – “No”
Insured answered – “No” for the above question, which is clear non-disclosure of material fact.
Heath History: Please provide answer in detail. A mere dash is not sufficient.
Have you consulted/taken treatment/been admitted for any illness/disease/injury – If yes, since when – “No”.
Insured answered – “No” for the above question, which is clear Non-disclosure of material fact.
The policy condition No.9 clearly stipulates as follows:
“If there is any misrepresentation/non disclosure of material fact whether by the insured person or any other person acting on his behalf, the company is not liable to make any payment in respect of such claims”.
The OPs further submitted that, the contract of insurance is based on utmost good faith. Both parties are bound by the terms and conditions of the insurance policy. The liability of the insurer would be within the ambit of the contract of insurance alone. Viewed thus, both factually and legally the claims are settled in accordance with policy terms conditions and exclusions and the insurer cannot be held liable and compelled to indemnify the insurer when a claim is not payable under the contract of insurance and which is fit to be repudiated.
The OPs further submitted that, the policy condition no.14 clearly stipulates as follows:
“The company may cancel this policy on grounds of misrepresentation, fraud, moral hazard, non disclosure of material fact or non-co-operation of the insured person”.
Hence, the policy was cancelled with effect from 7-6-2016 due to non disclosure of PED-CKD stage –IV and the premium amount of Rs.11,593=00 was refunded and the same was communicated to the insured vide letter dated 3-5-2016. Other allegations made in the complaint are all denied as false and the complainant is put to strict proof of the same. Therefore, there is no deficiency in service on the part of the OP and there is no cause of action to file the complaint. Hence, it is prayed to dismiss the complaint with costs, in the interest of justice and equity.
4. In the course of enquiry in to the complaint, the complainant and OPs have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant has produced documents which were marked as Ex-C1 to C6 and the OPs have produced documents which were marked as Ex-R1 to R6. We have heard the arguments of both parties and perused the documents and then posted the case for orders.
5. Based on the above materials, the following points will arise for our consideration.
1. Whether the complainant has proved the deficiency in service on the part of the OPs?
2. What Order?
6. Our findings on the above points are;
Point no.1: In the negative
Point no.2: As per the final order below.
REASONS
7. On perusal of the pleadings of the complaint, objection of the OPs and affidavit evidence of both parties, it is an admitted fact that, the complainant had obtained a policy bearing No.P/141100/2015/006186 (present policy No.P/141100/01/ 2016/007482) from OPs by paying premium amount of Rs.11,593=00 and it was valid from 5-3-20016 to midnight of 4-3-2017. It is also an admitted fact that, on 14-3-2016 the complainant has admitted for treatment at Apollo’s Hospital, Bengaluru for acute pulmonary and charged an amount of Rs.4,50,000=00 for medical expenses. The complainant submitted the claim form along with medical bills to the OPs. The OPs have repudiated the claim of the complainant. On the ground that the complainant suppression of material fact.
8. The learned counsel appearing for the OPs submits that as per the terms and conditions of the policy, the insurance company is not liable to pay in respect of any claim, if there is any misrepresentation and non-disclosure of material fact by the insured to the insurer. The complainant made a claim for reimbursement of hospital bill for the period from 14-3-2016 to 16-3-2017 amount of Rs.4,39,792=00 towards the treatment of Ishaemic Heart Disease, Infarction, Acute Pulmonary Edema, Hypertension and Chronic Kidney Disease. Patient History and Physical Record submitted by the Hospital, it was observed that, the complainant is a known case of Chronic Kidney Disease underwent dialysis three times in 2014 which is prior to the inception of the policy and the same was not disclosed by the complainant. Hence, it is against the terms and conditions of the policy.
9. On perusal of the document submitted by both the parties, it is observed in the discharge summary, the patient was diagnosed for “Ishemic Heart Disease Acute Coronary Syndrome and Acute Pulmonary Edema and Chronic Kidney Disease”. On perusal of the Adult In-patient history and physical record/Ex-R3 issued by the Apollo Hospital, Bengaluru, wherein it is stated in the History of Presenting Illness and past medical history Column it is stated that “CKD-IV dialysis 3 times in the past”.
10. The medical diagnosis of the complainant narrated above relates to his pre-existing health condition which are material facts and the complainant has having knowledge about the diseases. The complainant is bound to disclose these pre-existing diseases in the proposal form, while availing the policy as per the terms and conditions of the policy. But the complainant has not disclosed the said vital material facts to the insurer which amounts to violation of policy condition as per Ex-R5. The proposal form/Ex-R5 of the complainant, wherein it is stated in column 3 (i) Have you ever suffered or suffering from any of the following – Disease of stomach, intestine, liver, gall bladder/pancreas, Kidney, Urinary bladder, Urinary Tract Diseases- If yes, since when. The complainant answered – “No”.
11. As per the terms and conditions of the policy wherein under condition No.9, it is stated as under: “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 means or device, misrepresentation whether by the insured person or by any other person acting on his behalf”. And condition no.13, it is stated as under: “The Company may cancel this policy on grounds of misrepresentation, fraud, moral hazard, non disclosure of material fact as declared in the proposal form and/or claim form at the time of claim or non cooperation of the insured person, by sending the insured 30 days notice by registered letter at the insured person’s last known address and no refund of premium will be made. The insured may at any time cancel this policy and in such event the company shall allow refund of premium will be made. The insured may at any time cancel this policy and in such event the company shall allow refund after retaining premium at company’s short period rate only provided no claim has occurred up to the date of cancellation”.
12. The complainant has been suffering from Chronic Kidney Disease (CKD) and he underwent dialysis three times in 2014 which is prior to the policy inception which is a pre-existing disease (PED) and the same was not disclosed at the time of inception of policy. Hence, the OPs have rejected the claim of the complainant as per clause 9 and 13 of the terms and conditions of the policy. In fact, the OPs have acted strictly in accordance with the terms and conditions of the policy issued to the complainant. Therefore, there is no negligence or deficiency of service on the part of the OPs in rejecting the claim of the complainant. As such we are of the view that, the oral and documentary evidence of OPs placed before the forum are more believable trustworthy and acted upon than the oral and material evidence of complainant. So from the material evidence placed by both parties, we are of the considered opinion that, the complainant has failed to prove his case with clear and tangible evidence that, the OPs are negligent and there is deficiency of service on the part of the OPs in rejecting the medical claim. Accordingly we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
The complaint filed by the complainant is hereby dismissed. No costs.
Supply free copy of this order to both parties.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this, the 2nd day of November 2017)
LADY MEMBER PRESIDENT
