Date of Filing: 17-08-2012
Date of Disposal: 04-09-2014
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANANTHAPURAMU
PRESENT: - Sri S.Niranjan Babu, B.A., B.L., President (FAC).
Smt.M.Sreelatha, B.A., B.L., Lady Member.
Thursday, the 4th day of September, 2014
C.C.NO.45/2012
Between:
C.Prabhakar Reddy,
S/o C.Narayana Reddy
D.No.6-2-806, Ramnagar
Ananthapuramu. …. Complainant
Vs.
- The Authorized Signatory,
Star Health Allied Insurance
Company Limited, K.R.M.Centre,
6th floor, No.2, Harrington Road,
Checkpet
Chennai.
- The Manager,
Star Health Allied Insurance Company Ltd.,
-
Saptagiri Circle
Ananthapuramu. … Opposite Parties
This case coming on this day for final hearing before us in the presence of Sri P.Krishna Swamy Kumar & Sri B.Nagalingam, advocates for the complainant and Sri A.G.Neelakanta Reddy, Advocate for the Opposite parties 1 & 2 and after perusing the material papers on record and after hearing the arguments on both sides, the Forum delivered the following:
O R D E R
Sri S.Niranjan Babu, President (FAC) : - This complaint has been filed by the complainant under section 12 of Consumer Protection Act, 1986 against the opposite parties 1 & 2 claiming a sum of Rs.2,15,700/- towards Family Health Optima Insurance Policy and interest @ 18% p.a. from 16-03-2012 till the date of realization, Rs.10,000/- towards mental agony and Rs.10,000/- towards legal expenses.
2. The brief facts of the case are that :- The complainant is a permanent resident of D.No.6-2-806, Ramnagar, Ananthapuramu and he is working as Senior Manager, Andhra Pragathi Grameena Bank, Regional Office, Ananthapuramu. The complainant had obtained Insurance Policy No.P/141122/01/2012/001025 for Rs.3,00,000/- under Family Health Optima Insurance Policy. The said policy is in force from 14-02-2012 to 13-02-2013. As per the terms and conditions of the policy, the complainant and his wife are entitled to get compensation from the opposite parties. The opposite parties issued the policy in favour of the complainant after taking necessary and required medical tests by the concerned doctors of the opposite parties.
3. Subsequently, the complainant got admitted in Divya Sree Hospital, Ananthapuramu and on the advice of the doctors of the said hospital, the complainant got admitted in B.G.S.Global Hospital, Bangalore as the complainant suffered with heart problem. The complainant had never suffered with any type of disease earlier to the taking of the policy and the complainant has not suppressed any details before obtaining the policy from the opposite parties. The complainant had undergone operation in B.G.S.Hospital, Bangalore on 13-03-2012. After the operation, the concerned hospital authorities issued bills to the opposite parties with a request to pay the amounts covered under the bills as the policy issued by the opposite parties was in force as on the date of the treatment. As per the terms and conditions of the policy, the opposite parties have to reimburse the amount of Rs.2,15,700/-. To the surprise of the complainant, the opposite parties refused to pay the amount on flimsy grounds. Then the complainant has paid a sum of Rs.2,15,700/- to the B.G.S. Global Hospital, Bangalore towards treatment taken by him.
4. Later the complainant approached the opposite parties number of times with a request to pay an amount of Rs.2,15,700/- to him, which was paid by him to the B.G.S.Global Hospital, Bangalore. Though the opposite parties promised to pay the said amount, they went on postponing the same on one pretext or the other. Then the complainant got issued a legal notice to the opposite parties on 30-03-2012 and the said notice was served on the opposite parties. Due to careless and negligent attitude of the opposite parties, the complainant suffered mentally and financially. Hence the complainant filed this complaint claiming a sum of Rs.2,15,700/- towards amount paid by the complainant for medical treatment and interest @ 18% p.a. from 16-03-2012 till the date of realization, Rs.10,000/- towards mental agony and Rs.10,000/- towards legal expenses.
5. The complainant filed a rejoinder stating that the complainant had never suppressed the material facts of his disease knowingly at the time of obtaining policy. He has furnished all the material particulars to the best of his knowledge as required by the opposite parties. Further the complainant submitted that pre-existing disease if any unknown to the insured person are not excluded by the policy. There is no pre-existing disease to the knowledge of the complainant and thus he cannot be disentitled for the benefits of the policy. The treatment rendered to the complainant was not for any pre-existing disease to the knowledge of the complainant.
6. Further the complainant submitted that having issued the policy with effect from 14-02-2012 the opposite party cannot contend that they are not liable for any disease during the 1st 30 days of the period of the policy. Such exclusion is a clear ambiguity. It is a known fact that in case of any ambiguity, the benefit of interpretation should go to the insured and not to the insurer.
7. Further the complainant submitted that there is no proof that the complainant had pre-existing disease, except the self-serving affidavit of RW2 i.e. Dr.T.S.Rekha, their Manager (Medical Claims), who also described herself as Medical Officer/Claims Expert Doctor and in case of any claim of more than Rs.20,000/- it is mandatory for any insurer to obtain a report from the independent surveyor. Hence the self-serving affidavit of RW2 has no evidentiary value. Hence the opposite parties are liable to pay to the complainant as claimed above.
8. The 2nd opposite party filed a counter stating that the complainant has obtained the said Family Health Optima Insurance Policy by suppressing the material fact of the diseases of which he has been suffering at the time of obtaining the said Family Health Optima Insurance Policy, hence the opposite party is not liable to pay any amount of compensation under the said contract of insurance. The 2nd opposite party submits that as per the medical record, the complainant was hospitalized from 13-03-2012 to 16-03-2012 in B.G.S. Hospital, Bangalore for the treatment of Coronary Artery Disease severe double vessel disease and that the said disease for which treatment is received was pre-existing at the time of taking the said policy for the first time and all the pre-existing diseases are excluded as per the exclusion clauses of the said policy. Hence, the 2nd opposite party is not liable to pay any amount of compensation.
9. Further, the opposite party submits that the said pre-existing disease for which treatment was received developed over a period of time and that the complainant has been suffering from the said disease long prior to the date of inception of the said policy. Hence the 2nd opposite party is not liable to pay compensation. Further the 2nd opposite party submits that the present hospitalization of the complainant is for the treatment of Coronary Artery Disease – Severe Double Vessel Disease, which is related to a pre-existing condition long prior to the inception of the said policy and that the complainant has violated terms and conditions of the said policy by suppressing the material fact of pre-existing disease at the time of obtaining policy. Hence the claim of the complainant has been rightly repudiated by the opposite party.
10. Further the 2nd opposite party submits that most of the material facts which are available with the complainant are not made available to the opposite party and that the insurance is based on utmost good faith and that the complainant has a duty to be transparent and truthful. Further the 2nd opposite party submits that as the claim of the complainant was on the 29th day of taking insurance policy the exclusion clause No.2 of the said Family Health Optima Insurance policy is applicable, which clearly states that “ the company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by the insured person in connection with or in respect of any disease contracted by the insured person during the first 30 days from the date of commencement of the policy. This exclusion shall not apply in case of the insured person having covered under any Health Insurance Policy (Individual or Group Insurance Policy) with any of the Indian Insurance Companies for a continuous period of preceding 12 months without a break . However sum insured for such portability shall be limited to the sum insured under a previous policy. “
11. The 2nd opposite party submits that at the time of proposing for insurance, the complainant has specifically stated under column details of other/previous insurance, the complainant has stated the answer as “ No “. Hence this is a fresh cover and that the insurance policy commenced with the 2nd opposite party from 14-02-2012 and the complainant got admitted on 13-03-2012 in the said B.G.S. Hospital, Bangalore. Therefore, it is clear that the complainant got admitted in the said hospital on 29th day of commencement of cover and as such the claim is not payable under the 30 days of waiting period. Hence the 2nd opposite party is not liable to pay any compensation to the complainant. Further the 2nd opposite party submits that the allegations of the complaint that the complainant unexpectedly suffered with heart problem and that he never suffered with any type of disease earlier to the Insurance Policy and that the complainant has not at all suppressed any details before obtaining the policy from the opposite parties. The allegation that the opposite parties have refused to pay the amount to the complainant but postponed the same on one pretext or the other is not correct. Further allegation that due to carelessness and negligent attitude of the opposite party, the complainant had mentally suffered and thereby caused deficiency of service is only invented for wrongful gain by the complainant. Hence the opposite parties are not liable to pay any compensation to the complainant as claimed.
12. The 1st opposite party filed a memo adopting the counter of the opposite party No.2
13. Basing on the above pleadings, the points that arise for consideration are:-
1. Whether there is deficiency of service on the part of the opposite parties
1 & 2?
2. To what relief?
14. In order to prove the case of the complainant, the complainant has filed evidence on affidavit on his behalf and marked Ex.A1 to A7 documents. On behalf of the opposite parties, evidence on affidavit of the 2nd opposite party has been filed and marked Ex.B1 to B4 documents.
15. Heard on both sides.
16. POINT NO.1 – The counsel for the complainant argued that the complainant has taken Family Health Optima Insurance Policy from the opposite parties and the said policy is in force from 14-02-2012 to 13-02-2013. The maximum sum payable under the policy is Rs.3,00,000/- and as per the terms and conditions of the policy, the complainant and his wife are entitled to claim compensation from the opposite parties. The counsel for the complainant submitted that after conducting necessary and required medical tests by the concerned doctors of the opposite parties, the said policy was issued. The counsel for the complainant submitted that later the complainant was admitted in Divya Sri Hospital due to sudden heart problem and on the advice of the doctors of the said hospital, the complainant was shifted to BGS Global Hospital, Bangalore. The complainant was operated in the BGS Global Hospital on 13-03-2012 and a bill was raised to a sum of Rs.2,15,700/- and the same was sent to the opposite parties for payment. But to the surprise of the complainant the same was refused on flimsy grounds. Hence, the complainant was forced to pay the said amount of Rs.2,15,700/-.
17. The counsel for the complainant submitted that later the complainant number of times approached the opposite parties with a request to pay an amount of Rs.2,15,700/- which was paid by him to the BGS Global Hospital, Bangalore for which the opposite parties though promised to pay the said amount, they went on postponing the same on one pretext or the other. Vexed with the attitude of the opposite parties the complainant got issued a legal notice on 30-03-2012 which was served on them and as there was no proper action for the said notice, the complainant filed this complaint against the opposite parties claiming the amounts spent by the complainant and also for which negligent and carelessness attitude of the opposite parties, the complainant had suffered mentally and financially.
18. The counsel for the opposite parties 1 & 2 submitted that it is true that the policy was issued in favour of the complainant under Family Health Optima Insurance Policy and the same was in force from 14-02-2012 to 13-02-2013. The counsel for the opposite parties argued that the complainant after taking the policy had some heart problem and due to it he was admitted in Divya Sri Hospital, Ananthapuramu and on the advice of the doctors of Divya Sri Hospital, the complainant was shifted to BGS Global Hospital, Bangalore on 13-03-2012 and he was discharged on 16-03-2012. The counsel for the opposite parties argued that the complainant has not filed any document to show that he was admitted in Divya Sri Hospital and for what purpose he was admitted at Divya Sree Hospital, Ananthapuramu and what is the advice given by the doctors of the said Divya Sree Hospital. Further the counsel for the opposite parties argued that the complainant has made a claim for Rs.2,15,700/- after taking treatment at BGS Global Hospital, Bangalore and further argued that within 30 days i.e. on the 29th day after taking policy the complainant was admitted in BGS Global Hospital for some heart problem. The counsel for the opposite parties argued that as per the documents submitted by the complainant, the treatment was for Coronary Artery Disease – Severe Double Vessel Disease and the said disease is pre-existing disease, which the complainant had suppressed the material fact that he had the said disease prior to taking the policy. The counsel for the opposite party argued that the Health Insurance Policy is a policy given basing on the declaration of the complainant with utmost faith. Further the counsel for the opposite parties submitted that as per the terms and conditions of the policy, exclusion clause No.2 of the said Family Health Optima Insurance Policy is applicable, which clearly states that “ The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by the Insured person in connection with or in respect of :
Any disease contracted by the insured person during the first 30 days from the date of commencement of the policy. This exclusion shall not apply in case of the insured person having been covered under any health insurance policy (individual or Group Insurance Policy) with any of the Indian Insurance Companies for a continuous period of preceding 12 months without a break. However sum insured for such portability shall be limited to the sum insured under a previous policy. “ Further counsel argued that at the time of proposing for insurance, the complainant has specifically stated under column details of others/previous insurance, the complainant has stated answer as ‘No ‘ . Hence it is a fresh coverage and that the insurance policy annexed with the 2nd opposite party company from 14-02-2012 and that the complainant got admitted on 13-03-2012 in BGS Global Hospital, Bangalore i.e. within 30 days from the date of issuance of policy. Hence the 2nd opposite party is not liable to pay compensation under the said policy.
19. After hearing the arguments of both sides and perusing the documents, it is an admitted fact that the complainant has taken policy from the opposite parties and there is no dispute with regard to it. The contention of the complainant’s counsel that as the complainant was hale and healthy at the time of taking the policy and he has disclosed whatever he knew with regard to his health condition and subsequently the complainant got some heart problem and he was admitted in the Divya Sree Hospital and on the advice of the doctors, he was admitted in BGS Global Hospital, Bangalore for further treatment. In support of his contention, the complainant relied upon the citation 2010(2) C.P.R. 375 it was noted that Insurance Company cannot take advantage of its act of omission and commission as it is under obligation to ensure before issuing Medi-Claim Policy whether a person is fit to be insured or not. It appears that Insurance Company do not discharge this obligation as half of the population is suffering from such malaises and they would be left with no or very little business. Thus any attempt on the part of the insurer to repudiate the claim for such non-disclosure is not permissible nor is exclusion clause invokable.
20. The arguments of the opposite party is that the complainant has taken Medi-claim policy knowing well that he was suffering from the said heart problem and this is the first policy taken by the complainant for first time and as per the terms & conditions of the policy, which was issued on 14-02-2012. It is very clear that the said Coronary Artery Disease – Severe Double Vessel Disease, which is related to a pre-existing condition long prior to the inception of the said Family Health Optima Insurance Policy. The contention of the opposite party is that as per exclusion clause No.2, which clearly reveals that the company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by the insured person in connection with or in respect of any disease contracted by the insured person during the first 30 days from the date of commencement of the policy. This exclusion shall not apply in case of the insured person having been covered under any health Insurance Policy (Individual or Group Insurance Policy) with any of the Indian Insurance Companies for a continuous period of preceding 12 months without a break. However sum insured for such portability shall be limited to the sum insured under a previous policy. This contention of the opposite party’s counsel cannot be considered as the coverage of insurance starts from the date of issuing the policy and ends on the previous day of the issuing date of the next year. In such circumstances, the opposite party cannot take such a plea that insured person cannot claim any amount within the first 30 days after issuing policy. The opposite party has relied upon the decision reported in CPJ 2012(4) page 148 N.C. is pertaining to theft case. Hence the said decision does not suit to the present case. Another citation 2012 (1) CPJ 488 NC is also pertaining to train robbery case. Hence the same also does not suit to the facts of this case and another citation 2009(1) CPJ 6 S.C. also does not suit as it is concerned with insurance with regard to fire accident. Another citation 2009(2) CPJ 55 of A.P.State Commission where insured having diabetes and angina and he has taken ECG 7 days prior to submission of proposal form and the said fact was suppressed, hence the said judgment also does not suit to the facts of the present case.
21. The citation 2009(3) CPR 50 NC wherein it was observed that it is a settled law that whenever there is an ambiguity in terms of insurance policy benefit of interpretation should go to insured and not to insurer. Considering the above citation wherein the facts of the case are similar to that of the present case. We are convinced that there is ambiguity in exclusion clause as contended by the counsel for the complainant. Further the opposite party has not filed any documentary evidence to show that the complainant has pre-existing disease and the complainant has knowingly suppressed the same prior to taking the policy. In the above circumstances, we are of the view that the opposite party has wrongly repudiated the claim of the complainant and caused deficiency of service.
22. POINT NO.2 - In the result, the complaint is partly allowed by directing the opposite parties 1 & 2 to pay to the complainant a sum of Rs.2,15,700/- with interest @ 9% p.a. from the date of complaint till the date of realization within one month from the date of this order. However no amount is awarded towards mental agony and legal expenses.
Dictated to Steno, transcribed by him, corrected and pronounced by us in open Forum this the 4th day of September, 2014.
Sd/- Sd/-
LADY MEMBER, PRESIDENT (FAC),
DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM,
ANANTHAPURAMU ANANTHAPURAM
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
ON BEHALF OF THE COMPLAINANT: ON BEHALF OF THE OPPOSITE PARTIES
-NIL- -NIL-
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
Ex.A1 - Family Health Optima Insurance Policy bearing No.P/141122/01/2012/001025
Issued by the opposite parties to the complainant.
Ex.A2 - Rejection letter dt.15-03-2012 issued by the opposite parties.
Ex.A3 - Inpatient Bill dt.16-03-2012 relating to the complainant issued by BGS Global
Hospital, Bangalore.
Ex.A4 - Office copy of legal notice dt.30-03-2012 got issued by the complainant to the
Opposite parties 1 & 2.
Ex.A5 - Original postal receipts for sending legal notices to the opposite parties.
Ex.A6 - Postal acknowledgments signed by the opposite parties 1 & 2.
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTIES
Ex.B1 - Proposal form submitted by the complainant to the opposite parties.
Ex.B2 - Family Health Optima Insurance Policy bearing
No.P/141122/01/2012/001025 issued by the opposite parties to the
complainant.
Ex.B3 - Coronary Angiogram Report issued by BGS Global Hospital, Bangalore.
Ex.B4 - Rejection letter dt.15-03-2012 issued by the opposite parties.
Sd/- Sd/-
LADY MEMBER, PRESIDENT(FAC),
DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM,
ANANTHAPURAMU ANANTHAPURAM
Typed JPNN
