COMPLAINT FILED ON: 30.05.2009<br /> DISPOSED ON: 27.10.2010 <br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 27TH OCTOBER 2010<br /> <br /> <br /> PRESENT:- SRI. B.S. REDDY PRESIDENT<br /> <br /> SMT. M. YASHODHAMMA MEMBER <br /> <br /> SRI. A. MUNIYAPPA MEMBER <br /> <br /> COMPLAINT NO.1252/2009<br /> <br /> <br /> COMPLAINANT S. Shankarnarayan,<br /> S/o Sri Subba Shastry,<br /> Major,<br /> R/at No.1499, 17th Main,<br /> II Phase, J.P. Nagar,<br /> Bangalore – 560 078. <br /> <br /> Advocate: Sri. R. Sreedhar <br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTIES 1. The Customer Service Desk,<br /> ICICI Prudential Life Insurance <br /> Company Limited,<br /> Vinod Mills Compound,<br /> Chakravarthy Ashoka Road,<br /> Ashika Nagar, Kandivili (E),<br /> Mumbai – 400 101.<br /> <br /> 2. ICICI Prudential Life<br /> Insurance Company Limited,<br /> ICICI Prulife Towers,<br /> 1089, AppasahebMarathaMarg,<br /> Prabhadevi,<br /> Mumbai – 400 013.<br /> Communication Address at:<br /> Trade Point,<br /> Kamala Mills Compound,<br /> Lower Parel (West),<br /> Mumbai – 400 013.<br /> <br /> Advocate: Ms. Shanta Kumari<br /> <br /> 3. TTK Health Care Services<br /> Private Limited,<br /> No.7, Jeevan Bheemanagar<br /> Main Road,<br /> HAL IIIrd Stage,<br /> Bangalore – 560 075.<br /> <br /> Ex-Parte <br /> <br /> O R D E R<br /> <br /> SRI. B.S. REDDY, PRESIDENT<br /> <br /> <br /> The complainant filed this complaint U/s. 12 of the Consumer Protection Act of 1986, seeking direction against the Opposite Parties (herein after called as O.Ps) to pay an amount of Rs.75,000/- with interest at 18% p.a. and to impose penalty on OPs for non-payment of the said amount and award costs; on the allegations of deficiency in service on the part of the OPs. <br /> <br /> 2. The case of the complainant is to be stated in brief is that:<br /> <br /> The complainant has taken ‘Hospital Care Policy on Life’ bearing No.05606769 from OPs. At the time of undertaking policy in terms of the scheme provided specifically mentioned that he is suffering from ‘Hyper Tension’, the ailment which stood diagnosed. It was mentioned to the complainant that in the event of paying additional premium in addition to the usual premium for hospital care, he will become entitled for all benefits and additional premium that would be paid for securing the policy, the pre-existing ailment of Hyper Tension will be excluded and the benefits would be given in the form submitted to secure the policy. The complainant disclosed all these material facts and also produced the documents. A panel Doctor appointed by OPs conducted medical examination in all terms and satisfactory report was given recommending for issuing of Hospital Care Policy. <br /> <br /> The complainant was admitted to the Manipal Hospital, Airport Road, Bangalore for treatment as inpatient on 06.01.2009 and was required to be admitted to the hospital for 3 to 4 days in relation to the treatment that was required pertaining to prostrate. The complainant put forth his claim application and claimed an amount of Rs.75,000/-. OPs instead of making payment repudiated the claim without assigning any reason. The complainant specifically submits that the policy was also renewed upon receipt of extra premium, but the payment towards hospital charges was not made. The repudiation made by OPs was challenged by issuance of notice. The reason assigned for repudiation by OPs are not forthcoming. That apart, the ailment Hyper Tension was pre-existing as stood disclosed by the complainant on additional premium having been paid by him. Thereby, the policy covers all risks for recovery of hospital charges which cannot be refused by OPs. Thus the complainant felt deficiency in service on the part of the OPs in repudiating the claim as such the complaint is seeking the reliefs stated above. <br /> <br /> 3. On appearance, OPs 1 and 2 filed version contending that this Forum has no jurisdiction to entertain the complaint. The insurance contract, which culminated into a policy forming subject matter of the complaint, is invalid, void-ab-initio, inoperative and unenforceable. The complainant has concealed material facts regarding his health from the OPs and from the medical examiner at the time of taking the insurance policy and thereby rendered the contract of insurance void-ab-initio and inoperative. The complainant intentionally and deliberately concealed at the time of submitting for insurance in June – 2007 that he was a known case of chronic kidney disease stage IV since November – 2006, had an episode of gout in August – 2006 and he had undergone cholecystectomy in April – 2007, history of acute pancreatitis in October – 2006 and January – 2007, history of sclerititis in 2004 and complaint of eye irritation on and off and pain in left eye in July – 2006 and under treatment for the same. The complainant did not disclose the above medical history either in reply to the specific questions in the proposal for insurance or while replying to the medical examiner at the time of his medical examination, which vitiated policy and thus no benefit can be claimed by the complainant. The claim of the complainant was rightly rejected by OPs as it stood excluded by clause 5(b)(i) of the terms and conditions of policy issued to the complainant. In accordance with clause 6(2) of Insurance Regulatory and Development Authority (Protection of Policyholder’s interests) Regulations 2002, every policy document sent by the company to the policyholder accompanied by forwarding letter mentions that in case policyholder is not satisfied with the features or the terms and conditions of the policy withdraw / return the policy within 15 days of the receipt of the policy documents. The complainant did not return the policy documents for cancellation during the “Free Look Period” thereby implying that he had agreed to all the policy terms and conditions stipulated in the policy. OPs received a pre authorization request note and medical record, informing that the complainant was diagnosed of “Acute Gastroenteritis, Hypertension and End Stage Renal Disease on Maintenance Heamodialysis” and that the complainant was hospitalized on 08.11.2008. Subsequently OPs received another pre authorization request wherein it was found that the complainant was scheduled to undergo “Transurethral Resection of Prostate” on 06.01.2009 for recurrent urinary tract infection and prostrate abscess. From the records obtained during the claim processing; it was revealed that the complainant was suffering from the above mentioned diseases even before he submitted the proposal for insurance. Had the complainant disclosed the above mentioned diseases and that he was diagnosed of chronic kidney disease, gout etc., OP would have rejected the proposal of the complainant. After considering all the facts and medical records and other documents procured during the claim processing, OPs were satisfied that the complainant had mislead the company to issue the policy and it was constrained to declare the policy null and void which was conveyed to the complainant, vide letter dated 30.01.2009. The legal notice of the complainant was duly replied. Para wise reply is also given in the version. The complainant is not entitled for any of the reliefs. Hence it is prayed to dismiss the complaint with exemplary costs. <br /> <br /> OP-3 remained ex-parte.<br /> <br /> 4. In order to substantiate the complaint averments, the complainant filed affidavit evidence and produced documents. The Senior Manager / Legal of OP filed affidavit evidence and produced documents in support of the defence version. <br /> 5. The complainant filed written arguments and additional written arguments, on both sides heard. Points for consideration are: <br /> <br /> Point No.1:- Whether the complainant proved<br /> deficiency in service on the part of <br /> the OPs? <br /> <br /> Point No.2:- Whether the complainant is entitled for<br /> the relief’s now claimed?<br /> <br /> Point No.3:- To what Order?<br /> <br /> 6. We have gone through the pleadings, affidavit evidence and documentary evidence, written arguments of the complainant. We record our findings on the above points: <br /> <br /> Point No.1:- Negative.<br /> <br /> Point No.2:- Negative. <br /> <br /> Point No.3:- As per final Order. <br /> <br /> R E A S O N S<br /> <br /> 7. At the out set it is not at dispute that the complainant had taken ‘Hospital Care Plan-A Policy on Life’ bearing No.05606769 from OP-2 for the period from 13.08.2007 to 13.08.2027 on monthly premium payable at Rs.1,094/-. The proposal for the policy was submitted on 25.06.2007, sum assured (life time limit) Rs.20,00,000/-. The complainant was admitted to Manipal Hospital, Bangalore and hospitalized for a period of 4 days from 06.01.2009 to 10.01.2009. The pre authorization request form was filed with the OP which disclosed, sum of Rs.75,000/- as expected cost of hospitalization. OP by its letter dated 30.01.2009 declined to settle the claim on the ground that the complainant had not disclosed the material facts relating to his health while submitting the proposal form for obtaining the policy. The complainant has produced the original policy, letter dated 31.07.2007 issued by OP, discharge summary, pre authorization request form; the letter dated 30.01.2009 issued by OP, copy of notice and reply. As per discharge summary final diagnosis – ESRD and MHD, Hypertension, Prostatic abscess, S/P cystoscopy and TURP + BNI. The history of present illness is shown as a case of end stage renal disease on maintenance hemodialysis, Hypertension and recent UTI due to prostatic abscess treated with Carpapenem for past one week, had been admitted for cystoscopy and TURP. The past history is shown as:<br /> <br /> Hypertension since 15 years<br /> ESRD on MHD since December – 2007<br /> NKD – biopsy proven CGN January – 2004<br /> S/P cholecystectomy (07.06.2007)<br /> CAD – s/p CAG on 04.04.2008 (Medical management)<br /> Gout<br /> Evaluated for renal transplant recipient surgery<br /> <br /> The course of treatment in the hospital is shown as the complainant under went cystoscopy and TURP + BNI on 07.01.2009. <br /> <br /> OP in the letter dated 31.01.2009 intimated the complainant that the complainant is known case of chronic kidney disease stage IV since November – 2006, he had episode of gout in August – 2006 and under went cholecystectomy in April – 2007, further he had history of acute pancreatitis in October – 2006 and January – 2007. He had also history of scleritis in 2004 and had complaints of eye irritation on and off and pain in left eye in July – 2006 and were on the treatment for the same. The complainant has not disclosed this medical history in the proposal for insurance. The answers to question No.21(a), 22(b), 22(e) and 22(g) (iii), (viii), (xii), (xiii) as mentioned have been found to be false. Had the above medical history disclosed, the company would not have issued the policy. The company has been induced to issue the policy by suppressing material facts. Therefore company is constrained to cancel the policy from inception and said policy is declared null and void and all monies that have been paid there under belong to company. The company is not at risk under the policy and all liabilities there under stand fully discharged from the date of this letter.<br /> <br /> For the legal notice dated 22.01.2009 got issued by the complainant; OP replied stating that the repudiation of the liability under the policy is justified, the company is not liable for any payments under the policy. <br /> <br /> 8. OP produced documents with memo dated 06.08.2009 marked as Annexure A to R. Annexure D to J are the Xerox copies of the out patient records of Manipal Hospital relating to previous medical treatment of the complainant in the said hospital, Annexure K to M are the discharge summary copies of the said hospital and Annexure N is the letter issued by Consultant Nephrologist Dr. H.S. Ballal of Manipal Hospital stating that the complainant is a case of hypertension since 15 years and end stage renal disease on maintenance hemodialysis since December – 2007. He is continuing his regular maintenance hemodialysis thrice a week. From the out patient’s record copies of the Manipal Hospital collected by OP, it becomes clear that the complainant was a known case of chronic kidney disease stage IV since November – 2006; had under gone cholecystectomy in April – 2007, history of acute pancreatitis in October and January – 2007, history of scleritis in 2004 and complaints of eye irritation on and off and pain in left eye in July – 2006 and was under treatment for the same. The complainant while submitting the proposal form has not disclosed all these previous medical treatment he has under gone in this Manipal Hospital and also ailments which he was suffering. The complainant had in the proposal form for insurance replied to the relevant questions as follows: <br /> <br /> Question No. Question Answer<br /> 21 (a) Are you presently in good health?<br /> <br /> Please submit Previous Medical reports (if any) as receipt helps us in faster assessment of the health of the life to be assured Yes<br /> 22 (b) Have you ever consulted any doctor or are you currently undergoing / have undergone any tests, investigations, awaiting results of any tests or investigations or have ever been advised to undergo any tests, investigations or surgery or been hospitalized for general check up, observation treatment or surgery? No<br /> 22 (e) Did you have any ailment/injury/accident requiring treatment/medication for more than a week? No<br /> 22 (g) Have you ever suffered or are you suffering from any of the following:<br /> <br /> (iii) Disorder of Eye, Ear, Nose and Throat including defective sight or hearing and discharge from ears?<br /> (viii) Anemia, blood or blood related disorders, musculoskeletal disorder such as arthritis, recurrent back pain, slipped disc or any other disorder of spine, joints or limbs or leprosy.<br /> <br /> (xii) Symptoms/ailment relating to kidney, prostate, hydrocele, urinary system.<br /> <br /> (xiii) Gastritis, Stomach or duodenal ulcer, hernia, jaundice, hepatitis, fistula, piles or any disease or disorders of the gastro-intestinal system. <br /> <br /> <br /> <br /> No<br /> <br /> <br /> <br /> No<br /> <br /> <br /> <br /> <br /> No<br /> <br /> <br /> <br /> No<br /> <br /> Thus it becomes clear that the complainant deliberately and intentionally failed to disclose the status of his health and the medical treatment taken for the ailments before submission of the proposal form clause 5(b)(i) of the terms and conditions of the policy issued to the complainant provides that:<br /> <br /> ‘Exclusion’:<br /> (b) No benefits shall be paid for the following services, products and conditions:<br /> (i) Pre-existing conditions unless stated in the proposal form and specifically accepted by the company and endorsed thereon.<br /> <br /> The complainant concealed the material facts of his health at the time of submitting the proposal of insurance. In view of the same; OP is justified in repudiating the claim on the ground of suppression of material facts. The complainant produced two letters addressed by OP with IA dated 17.12.2009. In the first letter it is stated that the complainant has disclosed that he was a patient who had history of hypertension. As per the second letter OP has informed the complainant that “the insurance company considers the probabilities of all long term risks assisted with the health status of the life to be assured and charges an appropriate amount to cover these risks. <br /> <br /> The initial premium estimate given to you was based on the age and on the assumption of a normal health status to be assured. Based on our medical assessment of the case, we have revised the premium offer as mentioned in the covering letter”. <br /> <br /> The learned counsel for the complainant contended that as per the above two letters it becomes clear that the complainant has disclosed history of hypertension and related ailments. Based on that disclosure of the complainant, OP required complainant to under go another medical investigation at the Sagar Hospital, Bangalore (in addition to the earlier examination at Manipal Hospital). In the said medical examination, very detailed and comprehensive tests were carried out and reports were sent directly to OP. Based on these medical tests conducted by the OPs doctors and their reports, OP decided to admit the complainant to the said policy at an additional premium, over and above the normal premium. The revised premium was fixed at Rs.1,094/-, instead of the normal premium of Rs.811/-. Thus it is contended that the policy was not issued only on the basis of the answers contained in proposal form submitted, the complainant has not suppressed any material facts. <br /> <br /> In our view the two letters addressed as confidential to the complainant by OP reveals that the complainant has disclosed history of hypertension and he was required to under go medical test ECG. There is no material to hold that the complainant has disclosed the medical history of all the ailments which he was suffering and medical treatment which he had taken in the Manipal Hospital. The routine medical check up conducted in Sagar Hospital by the medical officer of the OP was not able to find out all these previous ailments of the complainant. Therefore we are unable to accept that the complainant has not suppressed any pre existing diseases while submitting the proposal form for issuance of the policy. Even after receipt of the policy and copy of the proposal form, the complainant has not disclosed the previous history of medical treatment of the ailments which he had under gone. Had the complainant disclosed the pre existing diseases OP company would not have accepted the proposal and issued the policy. <br /> <br /> 9. The learned counsel for the complainant contended that the complainant has claimed expenses in respect of prostrate surgery and it was not pre existing un disclosed ailment. As per item Nos.96 and 97 in the list of surgeries in grade 1 Annexure 1 to the policy, surgery as prostrate gland is listed, for which the complainant is entitled, OP is not justified in repudiating the claim. We are of the view that the complainant was admitted to the hospital not only for the treatment of prostrate, but the provisional diagnosis revealed ESRD (End Renal Disease) or MHD (Maintenance Haemodialysis) Hypertension and recurrent UTI (Urinary Tract Infection) with prostrate abscess; as per the pre authorization request received from OP-3 dated 06.01.2009. The discharge summary issued reveals the past history of the complainant as under: <br /> <br /> Hypertension since 15 years<br /> ESRD on MHD since December – 2007<br /> NKD – biopsy proven CGN (January – 2004)<br /> S/P cholecystectomy (07.06.2007)<br /> CAD – s/p CAG on 04.04.2008 (Medical management)<br /> Gout<br /> Evaluated for renal transplant recipient surgery<br /> <br /> Thus it becomes clear that the discharge summary clearly disclose the previous ailments for which the complainant had taken medical treatment in the hospital. Prostrate surgery relates to pre existing ailments. Pre authorization request was denied by OP as per letter dated 30.01.2009 stating that the medical history which was prior to the proposal was not disclosed in the proposal for insurance. It is also clearly mentioned that the answers to question No.22(a), 22(b), 22(e) and 22(g) (iii), (viii), (xii), (xiii) of proposal for insurance were found to be false. OP cancelled the policy from inception declaring the policy as null and void. It is well settled that the persons seeking insurance cover is legally bound to disclose all the facts known to him about his health at the time of filling of proposal form as the fundamental principle of insurance law is that utmost good faith must be observed. As the complainant deliberately and intentionally not disclosed the pre existing ailments and the medical treatment for the same; prior to the submitting of the proposal for insurance; OP was justified in canceling the policy declaring the same as null and void since its inception. Under these circumstances we are of the view that the complainant failed to prove deficiency in service on the part of the OPs as such he is not entitled for the reliefs claimed. Accordingly we proceed to pass the following:<br /> <br /> <br /> O R D E R<br /> <br /> The complaint filed by the complainant is dismissed. Considering the nature of dispute no order as to costs. <br /> <br /> Send the copy of this order to both the parties free of cost.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 27th day of October 2010.) <br /> <br /> <br /> PRESIDENT<br /> <br /> MEMBER MEMBER <br /> <br /> Snm:<br />