By. Sri. Jose. V. Thannikode, President:-
The complaint is filed under section 12 of the Consumer Protection Act against the opposite party to pay the medical claim and to pay cost and compensation due to the unfair trade practice and deficiency of service from the side of opposite party.
2. Brief of the complaint:- The complainant was the policy holder of Star Health and Allied Insurance from 07.10.2015 as per Policy No.P18314/01/2016/001951. The said policy was taken through an agent named Joseph. C. V.(Agent Code362798). The agent and opposite party offered that all the accidental claim is covered under this policy at the time of inception of policy. The prospectus was also given to the complainant.
3. The complainant registered in the IRDA as Registration No.129 on 04.08.2016 the complainant fall down from a chair from the house and broken the thigh bone and she was admitted to Alpha Hospital, Sulthan Bathery and treated under Dr. N. K. Hakkim and was treated from 04.08.2016 to 24.08.2016 and underwent surgery and the steel pate was also fixed and so the complainant lost somany days class and forced to take bed rest for somany days.
4. For the above treatment the complainant spend about one lakh rupees and the complainant remitted application before the opposite party with all bills and documents for claim but the opposite party has denied the insurance claim telling untenable contentions. The complainant further states that the above acts of the opposite party is a clear case of deficiency of service and unfair trade practice. The complainant produced bills worth Rs.96,001/- and prayed before the Forum to direct the opposite party to pay Rs.96,001/- and also to pay Rs.25,000/- as compensation and to pay cost of the proceedings.
5. Notices were served to opposite party but the actual opposite party not filed version but instead of opposite party, the Senior General manager of Star Health and Allied Insurance Company Limited filed version stating that the complaint is not maintainable either in law or on facts and hence liable to be dismissed. There is no deficiency in service on the part of the opposite parties and whatever acts of the opposite party has been done in compliance of conditions of the policy, which is a binding contract between the parties herein. The complaint has been filed by suppressing material facts and alleging false, hood. It is submitted that the complainant had availed Family Health Optima policy from the opposite party vide Policy No.P/181314/01/2016/001951 commencing from 07.10.2015 to 06.10.2016 covering four persons for a sum insured of Rs.3,00,000/-. At the time of availing 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. It is submitted that Proposal form is the basis of insurance contract, on that basis the policy is issued. In the proposal form, the proposer had specifically declared that the complainant was not suffering from any disease or ailment at the time of submitting the proposal form or any point of time earlier and that the 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. It is submitted that the complainant was admitted at Alfa Hospital, Kottakunnu, Wayanad on 04.08.2016 and diagnosed with Comminuted Fracture Proximal Femur with Lower Respiratory tract Infection and was discharged on 24.08.2016. After discharge, the complainant has submitted completed claim form with discharge summary, bills and lab reports. As per the submitted records, the complainant was admitted with history of self fall and injury to Rt Thigh associated with complaint of pain/past history of surgery 2 times. Thus the opposite party had conducted an investigation as part of claim processing protocol. On investigation, it was known that the complainant was earlier admitted at Vinayaka hospital, Wayanad on 29.06.2013 with ''history of fall associated with complaint of pain and deformity Lt Hip/pathological Fracture Lt Femur upper third Simple cyst". Also she was admitted at Leo Hospital, Wayanad on 30/04/2015 with diagnosis of Pathological Fracture Lt Femur-Subtrochanteric Aneurysmal Cyst. Follow up note on 01.05.2015 shows history of fracture at same site Lt Femur two years back secondary to Aneurysmal Bone Cyst. The policy commences from 07.10.2015. The opposite party had sought for an expert opinion and the expert had confirmed that this is a pathological fracture of sub trochanteric femur. The cause is Fibrous Dysplasia which is long standing from childhood. The proposer has not revealed that the patient had history of Pathological Subtrochantric (Lt) Femur second episode with past history of fracture at the same site (Lt) femur 2 years back.
6. It is submitted that from the medical documents collected by the opposite party, it is clear that the complainant was diagnosed for pathological fracture and a known case of Fibrous Dysplasia. Fibrous Dysplasia is a disorder where normal bone and marrow is replaced with fibrous tissue, resulting in formation of bone that is weak and prone to expansion. As a result, most complications result from fracture, deformity, functional impairment and pain. Hence it is a long standing condition. Whereas a disease is a pathophysiological response to internal or external factors and a disorder is a disruption to regular bodily structure and function. The proposer has not furnished any details regarding the health condition of the complainant in the proposal form. In the proposal form, there was specific question under health history column:- "2. Have you consulted /taken treatment/been admitted for any illness/diseases/injury. If yes, details." Moreover in question No.4, "Have you ever suffered or suffering from any of the following:-" and in column-4(f), there was specific question that "Any disease of bones/joints, slipped disc, spinal disorder, injury to Iigaments:-If yes, since when". The proposer in reply to both questions had answered as "negative". Hence it amounts to Suppression of Material Facts which makes the contract void ab initio. lt is submitted that insurance contracts are "contracts of uberime-fide". The opposite parties issued the aforesaid policy on good faith based on the declaration made by the proposer/insured in the proposal form. Proposal form is the basis of the contract of insurance. As per the contract of insurance the insured has to furnish true and correct facts in the proposal form for issuing the policy. Hence based on the available medical records, it is evident that the complainant had history of Pathological Subtrochantric (Lt) Femur before the inception of policy which was not revealed in the proposal form at the time of inception of policy. As the insured has willfully suppressed the pre-existing injury/condition and its treatment/medical advice in the proposal form, which the basis of the contract at the time of taking the policy, the company by registered AD letter dated 24.12.2016. If there is suppression/Non Disclosure/Misrepresentation as to material fact in proposal form by insured- in a contract of insurance, any fact which would influence of the mind of a prudent insurer in deciding whether to accept and not to accept the risk is a material fact. If the proposer has knowledge of such fact, he is obliged to disclose it to insurer and failure to disclose such fact will entitle the insurer to repudiate its liability under the policy. The said position of law is held by the Hon'ble Supreme Court in a decision Satwant Kaur sandhu vs. New India Assurance Co Ltd, reported in 2009 KHC 4898. The answers given by the insured in fraudulent manner amounts to suppression of material fact, which were within knowledge of insured resulted into vitiating contract of insurance. The said position was already decided by Hon'ble National consumer Redressal Commission in ManjinderKaur vs. Life Insurance Corporation and Anr. Moreover as per condition no: 15 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, sending the insured 30 days notice by registered letter at the insured person's last known address." As per condition no. 15, the opposite party had issued a notice dated 30/12/2016 to the insured's last known address informing him about the cancellation of policy in respect of the complainant with effect from 08.02.2017.Thus the renewed policy No. P/181314/01/2017/002180 in respect of the complainant, Avanika, was canceled with effect from 03/02/2017 due to the non disclosure of PED-PATHOLOGICAL FRACTURE, ANEURYSMAL BONE CYST and had refunded the premium amounting to Rs.1,535/- vide DD No.961652 dated 07/02/2017. The policy is issued strictly according to the terms and conditions only and it is a settled law that the parties to the insurance contract are bound by the terms and conditions of the policy issued. In this case also, the complainant has admitted the terms, conditions and exclusions set in the policy. The allegations contained in the complaint have already been explained supra and the remaining is denied.
7. The complainant is not entitled to any of the reliefs prayed for a Health Insurance Policy is issued in good faith after assessing the health condition of a proposer based on the health related facts stated in the proposal form. Obtaining a policy without disclosing the full facts on health of a person would make the insurance policy void ab initio. The complainant has filed this complaint vexatiously and frivolously for the sole purpose of harassing the opposite party with the intention for getting unlawful enrichment from the opposite parties who are dealing with public money and functioning under the guidelines of IRDA controlled by the Government of India. As public money is held in trust, the company must exercise abundant caution in dealing with the claims by applying all conditions correctly. 1t is humbly submitted from the above facts and submission that there is no deficiency of service on the part of the opposite party. The opposite party is entitled to get compensatory cost from the complainant for the reason that (1) the complainant had a disease which is within the knowledge of the proposer prior to the commencement of the policy, (2) the complainant had suppressed the past history of Pathological Subtrocantric (Lt) Femur in the proposal form for obtaining policy, (3) moreover the complainant dragged the opposite party in to an unnecessary litigation. Therefore compensator cost may- be allowed . Therefore it is most humbly prayed that this Honorable Forum may be pleased to accept this version and dismiss the complaint with compensatory cost to the opposite parties.
8. Complainant filed proof affidavit and stated as stated in the complaint and she is examined as PW1 and Ext.A1 to A6 documents were marked. Ext.A1 is the Customer ID Card of the injured issued by the opposite party. It is valid from 07.10.2015. Ext.A2 is the Conditions of the policy, wherein it is stated that all type of treatment expenses. Ext.A3 is the Discharge Card dated 24.05.2016, where the complainant's name is written, diagnosis is written as comminuted fracture proximal femur with Lower Respiratory tract infection. Presenting complaints:- C/o.Self fall and injury to (L) thigh at around 8 am on 04.08.2016 at her residence C/o. Pain (L) thigh. Ext.A4(1) is the Claim Form Part A. Ext.A4(2) is the Claim Form Part B, wherein the diagnosis is comminuted fracture proximal femur (L), Lower respiratory tract infection. Ext.A5 is the details of Bills claimed and the total bill amount is shown as Rs.96,001/-.
9. The actual opposite party in the complainant not filed version, but the Senior General Manager of the opposite party company's head office, Trivandrum filed version without seeking permission from the Forum to file version. This opposite party not disputed this Policy also. The opposite party not tendered evidence but from the side of opposite party a witness is examined who is the Legal Advisor of the company. They have marked Ext.B1 to B6 documents. Ext.B1 is the Copy of Policy Schedule. Ext.B2 is the copy of Claim form submitted. Ext.B3 is the copy of Discharge summary from Alpha Hospital, Sulthan Bathery. Ext.B4 is the Copy of Claim Repudiation Letter.
10. On considering the complaint, version and documents the Forum raised the following points for consideration:-
1. Whether there is any deficiency of service from the part of opposite parties?
2. Relief and Cost.
11. Point No.1:- The case of the complainant is that he is the valid policy holder of opposite party and she fall down from a chair and injury caused to right thigh and altogether Rs.96,001/- is incurred for the treatment expenses. The opposite party has denied the claim stating that same type injury is caused to the complainant two time before on a history of fall associated with diagnosis of pathological fracture LT femur Subtrochanteric Aneurysmal cyst and the proposer has not revealed the history of disease at the time of filing the proposal form.
12. On perusal of Ext.A3 in the column Presenting complaints:- C/o self fall and injury to left thigh at around 8 am on 04.08.2016 at her residence and case of pain left thigh. Hence we opine that this injury is caused due to fall on 04.08.2016 and it cannot be considered as pre-existing disease. Hence the denial of insurance claim in this case is clear case of deficiency of service.
13. Hence we found that the repudiation of the claim is the arbitrary act of the opposite party and repudiation of the claim in the case is a clear case of deficiency of service and we are of the opinion that the complainant is entitled for the insurance claim. Hence Point No.1 is found accordingly.
14. Point No.2:- Since the Point No.1 is found against the opposite party, opposite party is liable to pay the claim amount with cost and compensation and the complainant is entitled for the same. Point No.2 is decided accordingly.
In the result, the complaint is partly allowed and the opposite party is directed to pay Rs.96,001/- (Rupees Ninety Six Thousand and One) with 12% interest from the date of complaint ie from 09.02.2017 and also directed to pay Rs.3,000/- (Rupees Three Thousand) as compensation and Rs.2,000/- (Rupees Two Thousand) as cost of the proceedings to the complainant within one month from the date of receipt of this Order. Failing which the complainant is entitled for an interest at the rate of 12% for the whole amount till realization.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 29th day of January 2018.
Date of Filing: 09.02.2017.
PRESIDENT :Sd/-
MEMBER :Dissented.
MEMBER :Dissented.
DISSENTING ORDER
Dated this the 29th day of January 2018.
By. Sri. Chandran Alachery, Member:
The complaint is filed under section 12 of the Consumer Protection Act for an Order directing the opposite party to pay Rs.96,001/- towards treatment expenses met by the complainant, to pay Rs.25,000/- as compensation and cost of the proceedings.
2. Brief of the complaint:- The complainant availed a medi-claim policy from the opposite party on 07.10.2015. On 04.08.2016 the complainant had fallen down from a chair from her house and sustained injury. Her left thigh bone was broken and was admitted in Alpha Hospital, Sulthan Bathery on 04.08.2016. She had undergone surgery and a sted plate was fixed in the broken area. She was discharged on 24.08.2016. The complainant spend more than 1 lakh for treatment. The complainant submitted claim form with necessary bills and documents to the opposite party. But the opposite party repudiated the claim stating untenable reasons. The act of opposite party is clear deficiency of service from their part. Aggrieved by this, the complaint is filed.
3. On receipt of complaint, notice was issued to the opposite party and opposite party appeared before the Forum and filed version. In the version, the opposite party admitted the policy commencing from 07.10.2015 to 06.10.2016 for a sum of Rs.3 Lakhs. The opposite party contented that the complainant is bound by the terms and conditions of the policy. Opposite party contented that the Proposal form is the integral part of policy and the complainant not disclosed the existing diseases in the policy. As per hospital records, the complainant was admitted with history of self fall and injury twice prior to the incident. As per records, on 29.06.2013, the complainant was earlier admitted at Vinayaka Hospital, Wayanad with history of fall associated with complaint of pain and deformity Lt hip/pathological fracture LT Femur upper third simple cyst. Follow up note on 01.05.2015 shows history of fracture at same site lt Femur two years back secondary to Aneurysmal Bone cyst. This disorder is a disruption to regular bodily structure and function. The proposer not furnished anything about this in the proposal form. Hence it is a pre-exisitng non-disclosed disease which vitiates the policy.
4. On perusal of complaint and version, the Forum raised the following points for consideration:-
1. Whether there is any deficiency of service from the part of opposite party?
2. Relief and Cost.
5. Point No.1:- The complaint filed proof affidavit and the complaint is examined as PW1 and Ext.A1 to A5 documents were marked. The complainant's witness is examined as PW2. Opposite party filed proof affidavit and the opposite party is examined as OPW1 and Ext.B1 to B7 documents were marked. On perusal of Ext.B1 Proposal Form, it is seen that the complainant not stated any pre-existing diseases in it. In the health history column, the health condition is stated as good and no previous consultation, treatment, illness, diseases, injury or surgery is stated. Admittedly the period of policy is from 07.10.2015 to 06.10.2016. The injury sustained to the complainant was on 04.08.2016 and she was admitted and treated upto 24.08.2016. As per Ext.B5 Hospital Records from Leo Hospital, Kalpetta, it is seen that the complainant was admitted in Leo Hospital, Kalpetta on 30.04.2015 with a complaint of pathological fracture Lt Femur. As per diagnosis, it is noted that there is pathological Subtrochanteric (Lt) Femur Second episode with H/o fracture at same site (Lt) Femur 2 years back secondary to Aneurysmal Bone cyst. It is seen that on 04.08.2016, there was a self fall and injury and fracture to (Lt) thigh again at the same site. So it is crystal clear that the complainant had pre-existing disease of Aneurysmal Bone cyst which resulted the fracture on 04.08.2016. This previous illness and treatment is suppressed by the complainant in the proposal form which is against the policy terms and conditions. Contract of insurance is a contract of utmost good faith. In a ruling by Hon'ble NCDRC reported in CPR 2016 May part 5 page 510, the Hon'ble NCDRC ruled out that the suppression of pre-existing disease may vitiate the insurance cover. In the light of the above ruling and on perusal of evidence and documents, we are of the opinion that the repudiation of claim by the opposite party is legal and not arbitrary. We did not find any deficiency of service from the part of opposite party. Point No.1 is found accordingly.
6. Point No.2:- Since the Point No.1 is found against the complainant, the complainant is not entitled for any relief, cost and compensation. Point No.2 is decided accordingly.
In the result, the complaint is dismissed.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 29th day of January 2018.
Date of Filing: 09.02.2017.
PRESIDENT :Different opinion.
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Since No Majority in the first Order the majority opinion Order will prevail.
Sd/-
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:-
PW1. Sujan. A. S. Agriculture.
PW2. Joseph. T. V. LIC Agent.
Witness for the Opposite Party:-
OPW1. Balu. Executive, Legal, Star Health.
Exhibits for the complainant:
A1. Copy of Customer Identity Card.
A2. Copy of Prospectus.
A3. Copy of Discharge Card issued from Alfa Hospital, Sulthan Bathery.
A4(1). Copy of Claim Form Part A.
A4(2). Copy of Claim Form Part B.
A5. Copy of Details of Bills Claimed.
Exhibits for the opposite party:-
B1. Copy of Proposal Form.
B2. Copy of Policy Schedule.
B3. Copy of Claim Form.
B4. Copy of Discharge Card issued from Alfa Hospital, Sulthan Bathery.
B5. Copy of Hospital Records.
B6. Copy of Repudiation Letter. Dt:24.12.2016.
B7. Authorization Letter. Dt:11.08.2017.
Sd/-
PRESIDENT, CDRF, WAYANAD.
a/-
