Sri Kamal De, President
The present case arises over repudiation of Complainant’s mediclaim by the OPs.
The Complainant’s case, in short, is that he took a mediclaim policy, namely, “Jeevan Arogya” from the OP Insurer being Policy No. 499534560 on 24-10-2011. The validity period of said mediclaim policy in respect of the Principal Insured, i.e., Complainant was from 24-10-2011 to 24-10-2042. The Complainant had to undergo treatment at CMC, Vellore for his atherosclerotic peripheral vascular disease during the period from 26-09-2012 to 18-07-2014 in different phases incurring an expenditure of Rs. 1,76,930/-. Complainant demanded reimbursement of such expenditure from the OPs submitting necessary documents for this purpose. However, the OPs repudiated his claim vide its letter dated 24-06-2013. His plea for review of such decision too did not yield any positive result. Hence, this case.
Case of the OPs, on the other hand, is that it rightly repudiated Complainant’s claim for concealing material fact about his pre-existing disease. It revealed from the discharge summary of CMC, Vellore dated 27-09-2012 and also dated 01-10-2012 that the Complainant had pre-existing disease which is described by the hospital as under:
“Sri Sudhangshu Maity, 51 years old gentleman, a chronic smoker, Hypertensive and non-diabetic, presented with complaints of claudicatory pain in left leg for past 2 years”.
From the above diagnosis of the hospital, it is absolutely clear that the insured person has been suffering from the above disease since 2010, prior to opt for the mediclaim policy in question on 24-10-2011. The initial applicable daily benefit in respect of the policy of the Complainant was Rs. 1,000/-. As such, as per the terms and conditions of the policy, sum assured for each Insured/ear stands at Rs. 1,000 x 100 = Rs. 1,00,000/-. It is also contended by the OP Insurer that as per relevant terms of the mediclaim policy, for every hospitalization that extends for a continuous period of less than 7 days, no hospital cash benefit is payable for first 24 hours (one day) of hospitalization, regardless of whether the Insured was admitted in a general or special ward or in an intensive care unit. Accordingly, amount permissible for payment for the first hospitalization from 26-09-2012 to 28-09-2012, i.e., for two days comes to Rs. 1,000/- only. Since the operation underwent by the Complainant during the period from 30-09-2012 to 02-10-2012 falls under the category of major operation, he is entitled to get 40% of the total sum assured or Rs. 40,000/- and cash benefit to the tune of Rs. 1,000/- for his stay at the hospital during the aforesaid period. According to the OP Insurer, amount permissible for payment for peripheral angiogram done on 24-04-2013 is Rs. 1,050 x 5 = Rs. 5,250/- (day care benefit). The Complainant, however, is not entitled to any insurance benefit for undergoing repeat surgery in the same site during his stay at the said hospital during the period from 10-09-2013 to 11-09-2013 since under major surgical benefit limits condition it has been clearly stipulated that, “Major surgical benefit for any surgery cannot be claimed and shall not be payable more than once for the same surgery during the term of the policy”. The OP further sought to shrug off any liability towards the Complainant for undergoing routine check up on 18-07-2014. Thus, the OP Insurer calculated its liability to the tune of Rs. 1,000 + Rs. 40,000/- + Rs. 1,000 + Rs. 5,250/-, i.e., Rs. 47,250/- in total.
Points for consideration
On the basis of averments being put forth by the parties and upon thoughtful consideration of the materials on record, we frame the following points to arrive at a decision.
- Whether the repudiation of Complainant’s claim by the OP Insurer stands to reason/justified?
- Whether the extent of financial liability being calculated by the OP Insurer vis-à-vis Complainant’s claim conforms to policy conditions?
- Whether there is any deficiency in service on the part of the OPs?
- Whether the Complainant is entitled to the claims sought for by him or any part thereof?
Decision with reasons
Point Nos. 1 to 4:
All these points are taken up collectively for the purpose of brevity of discussion, more so, they are connected to each other.
It appears from the letter dated 24-09-2014, issued by M/s Medicare TPA Services (I) Pvt. Ltd. to the Complainant that it repudiated Complainant’s claim on the ostensible ground of pre-existing illness.
It is contended by the Ld. Lawyer for the OP Insurer that the Complainant took the mediclaim policy suppressing his past ailments. The discharge summary of CMC, Vellore bears testimony of the fact that the Complainant was suffering from claudicatory pain in left lower limb since 2 years, prior to opting for the mediclaim policy in question. However, he did not make any whisper in this regard anywhere in the proposal form and thus his claim is hit by Clause 7(i) of policy schedule which stipulates in unequivocal terms that no benefit is payable for any pre-existing condition unless disclosed to or accepted by the Insurer prior to the date of commencement of the policy. Therefore, Complainant’s claim was rightly repudiated by the OP Insurer/TPA. In support of his contention, Ld. Lawyer has cited some decisions of the Hon’ble National Commission reported in 2014 (2) CPR 127 (NC), 2014 (4) CPR 148 (NC), 2014 (4) CPR 729 (NC), 2015 (1) CPR 280 (NC), and 2015 (1) CPR 421 (NC).
Moreover, the complainant took the mediclaim policy way back on 24-10-2011 and it is expected fulfilling all criteria and medical checkup and OP cannot refute the policy after long lapse of time.
Notwithstanding we are on the same page with the contention of OP Insurer that a proposer should act bona fide while filling up the proposal form, we, however, find that the OP has not placed on record the copy of proposal form to buttress its averment that the Complainant indeed refrained from disclosing his past ailments. In any case, even if for the sake of argument, we accept the contention of Ld. Lawyer of the OP Insurer at its face value, it is worth noting that the present dispute is not related to Complainant’s treatment for claudicatory pain in left lower limb. Therefore, in our considered opinion, such alleged non-disclosure cannot be treated as a material breach of policy conditions.
Now, coming to the issue of Complainant’s alleged sufferings from hypertension, there is nothing on record to suggest that the Complainant was ever treated at any hospital/health care facility or visited the chamber of private medical practitioner for such ailment. As we know, hypertension is a life style disease which is manageable with conservative medication. Therefore, mere hypertension ideally should not negate a claim. Although the OP Insurer has sought to pass the buck unto the Complainant alleging non-disclosure of such fact in the proposal form, we are of view that the OP Insurer cannot get away doing so given the fact that a person is subjected to routine medical check-ups by the panel doctor of Insurer. In this regard, Ld. Lawyer for the Complainant has referred a decision of Hon’ble National Commission reported in 2014 (3) CPR 178 (NC), two decisions of Hon’ble Punjab State Commission reported in 2009 (4) CPR 423,and 2014 (3) CPR 50 (Punj.), a decision of Hon’ble State Commission, Delhi reported in 2010 (2) CPR 350. While the unanimous view of Hon’ble Commissions is that hypertension cannot be said to be a material disease and Insurance Company would not be justified in repudiation of claim on ground of suppression of the fact, it may not be out of the place to quote the relevant observation of Hon’ble State Commission, Delhi in the afore-mentioned decision for better illustration of the issue at stake and as such, the same is appended below.
“Every beneficial policy or contract of insurance has to be interpreted and given a beneficial meaning. Contracts of insurance are always for the benefit of the insured and any other approach, which is not in consonance with the beneficial interpretation or ingredient, is bad in law.
On the concept, import and meaning of the word diseases and pre-existing diseases based upon the dictionary meaning as well as medical literature, particularly in reference to the policies of mediclaim, we have in great extenso and highly dissective manner culled out certain criteria for adjudicating such claims which are as under:-
- Disease means a serious derangement of health or chronic deep-seated disease frequently one that is ultimately fatal for which an insured must have been hospitalized or operated upon in the near proximity of obtaining the mediclaim policy
- Such a disease should not only be existing at the time of taking the policy but also should have existed in the near proximity. If the insured had been hospitalized or operated upon for the said disease in the near past, say, six months or a year he is supposed to disclose the said fact to rule out the failure of his claim on the ground of concealment of information as to pre-existing disease.
- Malaise of hypertension, diabetes, occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in and out of the house and are controllable on day to day basis by standard medication and cannot be used as concealment of pre-existing disease for repudiation of the insurance claim unless an insured in the near proximity of taking of the policy is hospitalized or operated upon for the treatment of these diseases or any other disease.
- If insured had been even otherwise living normal and healthy life and attending to his duties and daily chores like any other person and is not declared as a diseased person as referred above he cannot be held guilty for concealment of any disease, the medical terminology of which is even not known to an educated person unless he is hospitalized and operated upon for a particular disease in the near proximity of date of insurance policy say few days or months.
- Disease that can be easily detected by subjecting the insured to basic tests like blood test, ECG etc. the insured is not supposed to disclose such disease because of otherwise leading a normal and healthy life and cannot be branded as diseased person.
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 Companies dont 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.
- Claim of any insured should not be and cannot be repudiated by taking a clue or remote reference to any so-called disease from the discharge summary of the insured by invoking the exclusion clause or non-disclosure of pre-existing disease unless the insured had concealed his hospitalization or operation for the said disease undertaken in the reasonable near proximity as referred above.
- Day to day history or history of several years of some or the other physical problem one may face occasionally without having landed for hospitalization or operation for the disease cannot be used for repudiating the claim. For instance an insured had suffered from a particular disease for which he was hospitalised or operated upon 5, 10 to 20 years ago and since then had been living healthy and normal life cannot be accused of concealment of pre-existing disease while taking mediclaim policy as after being cured of the disease, he does not suffer from any disease much less the pre-existing disease.
- For instance, to say that insured has concealed the fact that he was having pain in the chest off and on for years but has never been diagnosed or operated upon for heart disease but suddenly lands up in the hospital for the said purpose and therefore is disentitled for claim bares dubious design of the insurer to defeat the rightful claim of the insured on flimsy ground. Instances are not rare where people suffer a massive attack without having even been hospitalised or operated upon at any age say for 20 years or so.
- Non-disclosure of hospitalization/or operation for disease that too in the reasonable proximity of the date of mediclaim policy is the only ground on which insured claim can be repudiated and on no other ground.
……….
Doctrine of good faith being often resorted to by the insurance companies cannot be used in such a manner so as to jeopardize the interests of the insured. This doctrine can be applied only if the insured is found to have concealed the factum of having been hospitalized or undergone treatment for such a disease in the near proximity of obtaining the policy.
If the doctrine of good faith is to be given such wide amplitude then the insurance companies should stop the practice of subjecting the insured to basic medical tests, to ensure that the person is of sound health and is entitled for mediclaim policy or not, and should blindly act upon what the
insured, being a layman, declares.”
Thus, it can logically be inferred that the impugned claim of the Complainant was most unjustifiably and arbitrarily repudiated by the OP. Needless to say, such act on the part of the OP is a clearly manifestation of gross deficiency in service on its part.
Next, we shift our focus to decide the extent of insurance benefit Complainant is entitled to get.
It appears, the Complainant underwent treatment at CMC, Vellore five times – (1) from 26-09-2012 to 28-09-2012, (2) from 30-09-2012 to 02-10-2012, (3) on 24-04-2013, (4) from 10-09-2013 to 11-09-2013 and (5) on 18-07-2014.
(1)Period : From 26-09-2012 to 28-09-2012
Procedure: Coronary & Peripheral Angiography
Referring to terms and conditions of the mediclaim policy in question, it is asserted by the OP Insurer that for every hospitalization that extends for a continuous period of less than 7 days, no hospital cash benefit is payable for the first 24 hours (one day) of hospitalization, regardless of whether the Insured was admitted in a general or special word or in an intensive care unit. Accordingly, it calculated its liability for the treatment of Complainant to Rs. 1,000/-.
On careful scrutiny of the list of day care procedure benefit annexure, however, we find that Coronary Angiography is eligible for day care benefit. So, we are of view that in terms of Clause No. 2(III) of the mediclaim policy, the Complainant is eligible to get Rs. 1,000 x 5 = Rs. 5,000/- as insurance benefit.
(2) Period : from 30-09-2012 to 02-10-2012
Procedure: PTA Stenting of left Post Tibial Artery + POBA to left Anterior Tibial Artery
OP Insurer has calculated its liability for this treatment at Rs. 40,000/- + Rs. 1,000/- being major surgical benefit and hospital cash benefit, respectively, i.e., Rs. 41,000/- in total.
We find that this procedure falls under category III of the Major Surgical benefit annexure which entitles the Complainant to get reimbursement of 40% of sum assured, or, 40% of Rs. 1,00,000 = Rs. 40,000/- .
Apart from this, in terms of Clause 2(I) of the mediclaim policy in question the one is entitled to hospital cash benefit as per applicable day benefit for each continuous period of 24 hours and part thereof (after having completed the 24 hours as above provided any such part stay exceeds a continuous period of 4 hours of hospitalization). However, at the same time, one is not entitled to get hospital cash benefit for the first 24 hours of hospitalization if one stays at the hospital less than 7 days. Insofar as the Complainant stayed at the hospital less than 7 days, he is entitled to get hospital cash benefit to the tune of Rs. 1,000 x 2, i.e., Rs. 2,000/-.
(3)Period: 24-04-2013
Procedure: Peripheral Angiogram
As per the OP Insurer amount permissible for payment for this procedure is Rs. 1,050 x 5 = Rs. 5,250/-. We do not find anything wrong with such calculation.
(4)Period: 10-09-2013 to 11-09-2013
Procedure: Drug eluting balloon to instent restenosis of DES in the left posterior tibial artery
OP Insurer has put its foot down to reimburse any expenditure for this procedure on the ground that in terms of the mediclaim policy, major surgical benefit for any surgery cannot be claimed and is not payable more than once for the same surgery during the term of the policy.
On a reference to the annexure of major surgical benefit, we find that Coronary Angioplasty with stent implantation would be treated as a major surgical procedure provided two or more coronary arteries are stented which is not the case here. Accordingly, in our considered opinion, it would be a fit case to come under the day care procedure benefit which entitles him to get Rs. 1,050 x 5 = Rs. 5,250/-.
(5)Period: 18-07-2014
Procedure: ECG, Xray, routine pathological tests
In terms of Clause No. 7 of the mediclaim policy, no benefit is payable for medical expenses relating to any treatment primarily for diagnostic, x-ray or laboratory examinations. So, we are at one with the view of the OP Insurer that the Complainant is not entitled to reimbursement of cost for undergoing concerned tests on that day.
Accordingly, we find that the Complainant is eligible to get Rs. 5,000/- + Rs. 42,000/- + Rs. 5,250/- + Rs. 5,250/- = Rs. 57,500/- in total as against his claim for a sum of Rs. 2,76,931/-.
On the face of the amount claimed by the Complainant vis-à-vis the monetary benefit he is entitled to get pursuant to policy conditions may appear a pittance. However, a Court of Law cannot dole out charity travelling beyond the terms and conditions of a policy. As we know, it is not open for the Court of Law to add, delete or substitute any word of the insurance contract. On the contrary, it is obligatory on its part to interpret words in which the contract is expressed by the parties.
Since terms and conditions of an insurance policy is unilaterally penciled by the Insurer over which a consumer has got no say, in one’s own interest, it is always advisable on the part of a prospective consumer to have a fair idea about the governing terms and conditions of an insurance policy. Nothing fits better here than the adage, “look before you leap” when it comes to choosing an insurance policy to fulfill one’s insurance need. As an abundant caution, it is always desirable on the part of an Insuree to go through policy documents meticulously which we often tend to discard. Having said that it is also important to keep in mind that the conduct of an Insurer should always remain above board. The Insurer cannot shy away from disclosing the salient features of an insurance product to a beneficiary.
It is claimed by the OP Insurer that the feature of free look period was mentioned in the policy schedule which the Complainant did not opt for after receiving the policy document. Therefore, he cannot cry foul at this stage. In this regard, it bears mentioning that as per Insurance Regulatory and Development Authority (Protection of Policyholders’ Interests) Regulations, 2002, it is obligatory on the part of an Insurer, while acting under regulation 6(1) in forwarding the policy to the insured, to inform by the letter forwarding the policy that he has a period of 15 days from the date of receipt of the policy document to review the terms and conditions of the policy and where the insured disagrees to any of those terms or conditions, he has the option to return the policy stating the reasons for his objection, when he shall be entitled to a refund of the premium paid, subject only to a deduction of a proportionate risk premium for the period on cover and the expenses incurred by the insurer on medical examination of the proposer and stamp duty charges. The OP Insurer has not placed on record copy of any such forwarding letter to show that it complied with such regulatory directive. In fact, no such averment has been made from the side of the OP Insurer in this regard. There is no denying the fact that since policy schedule is printed in extremely small fonts and spreads over several pages, it is indeed a tough ask for a beneficiary to read between the lines and take due notice of each and every aspect of a policy schedule, whereas, contents of a forwarding letter being precise, it is invariably more consumer friendly. Above all, due compliance of regulatory directive is a must do for any Insurer, which the OPs have brazenly defied.
All these points, thus, are answered in favour of the Complainant.
Resultantly, the complaint case is allowed in part to the extent that the OPs would pay Rs. 57,500/- to the Complainant towards settlement of the claim of the latter together with compensation and litigation cost.
Hence, it is
ORDERED
that the C. C. No. 71/2015 be and the same is allowed on contest against the OPs. OPs are directed to reimburse Rs. 57,500/- to the Complainant as insurance benefit within 40 days from the date of this order along with compensation and litigation cost to the tune of Rs. 15,000/- and Rs. 5,000/-, respectively, i.d., Complainant is at liberty to execute this order in accordance with law in which case, OPs shall be jointly and severally liable to pay interest @ 9% p.a. over Rs. 57,500/- from this day till full and final payment is made.
