DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the 9^th  day of April, 2024

Present     :   Sri. Vinay Menon V., President

                   :  Smt. Vidya A., Member                                                 Date of Filing: 17/01/2023    

              CC/22/2023

Shajith Ali

S/o Musthafa Haji,

Chathakulam House,

Near K.V. R. High School,

Shornur, Palakkad – 679 121.                                                -           Complainant

(By Authorised agent Innocent V.C.)

(Permission granted as per Order dated 20/11/2023)

                                                                                                  Vs

The Director,

Operation and Customer Service,

Niva Bupa Health Insurance  Co. Ltd.

1^st Floor, N.T. Complex, College Road,

Tharekkad, Palakkad – 678 001.                                              -          Opposite party

(OP by Adv. Saji Issac K.J.)        

O R D E R

By Sri. Vinay Menon V., President

1. Shorn off chaff, complaint pleadings illustrate repudiation of complainant’s claim for treatment underwent by the complainant’s daughter on the ground of non-disclosure of pre-existing disease. Complainant had informed the O.P.s that the condition suffered by the child was not the same as the one suffered by the child in its infancy. Yet, the O.P.s did not honour the claim of the complainant. Aggrieved thereby, this complaint is filed.
2. O.P. filed version stating that the complainant’s child was suffering from seizures from a very early stage. This matter was not disclosed in the proposal form. Since the child was suffering from seizures their claim was repudiated as there was non-disclosure of material facts. They sought for dismissal of the complaint.
3. The following issues arise for consideration:

1. Whether the complainant has failed to disclose material facts at the time of preparing the proposal form?
2. Whether such non-disclosure is vital so as to repudiate the claim of the complainant?
3. Whether there is any deficiency in service on the part of opposite party?
4. Whether the complainant is entitled to the reliefs claimed?
5. Any other reliefs?

4.          (i)      Evidence of complainant  comprised of proof affidavit and Exhibits A1 to A6.  

(ii)  OP did not file proof affidavit even after granting ample time or mark any documents.  

            Issue Nos.1 & 2

5.         It is the undisputed case of both the parties that the daughter of the complainant suffered from fits and was admitted in P.K. Das hospital. Claim for the expenses incurred amount expended are not indemnified as the OP was of the adamant stand that the child suffered pre-existing disease which was not disclosed in the proposal form.

6.         In view of the contention raised by the OP that the complainant had failed to provide details of pre-existing disease, as the burden of proof was on the O.P. to prove the contention of non-disclosure and that such non-disclosure was a willful act,  OP was directed to file the proposal form by an order of this Commission on 16/5/2023. But the OP had failed to produce this document till the date of final hearing. Further OP was directed to file proof affidavit on 20/12/2023. Until 4/3/2024 the OP had not filed their proof affidavit. Hence the matter was taken up for argument notes and hearing. The OP had promptly filed an argument note basing their case and arguments on the weakness and loopholes in the pleadings and evidence of the complainant rather than building a case on the strength of their case.

7.         Per O.P., complainant has stated that he had informed the opposite party that the condition suffered by the complainant’s child was not the disease suffered by the child during its infancy. In order to substantiate this contention, they had marked Ext.A4 communication issued by one Dr. R.A. Shajahan of Department of pediatrics in P.K. Das Institute of Medical Sciences.  This communication shows that the child was suffering from a fast attack of seizure disorder without history of fever which did not have any relation with her previous history. In the pleading also the complainant had stated that the child was suffering from some pre-existing diseases. It is this admission that the OP is relying on to discredit the veracity and bonafides of the complainant’s case.

8.         Ext.A1 contains a premium receipt in page 4 of the said Exhibit. There are details of insured persons in Ext.A1. In the said details, which are tabulated,  in the column ear-marked for pre-existing disease, the condition is shown as ‘none’ for Ms. Fathima Sanha, the younger daughter of the complainant who underwent the episode of seizure. Beneath the schedule, it is stated that “pre-existing disease as disclosed by your / insured person or discovered by us during medical underwriting”. In the column relating to the complaint, one pre-existing disease is mentioned.

9.         OP’s case could have been finalized in their favour, had they produced proposal form as per order dated 16/5/2023 or when opportunity was granted to tile proof affidavit. The OP has failed to adduce any evidence. If we resort to a conclusion that the complainant had failed to mention the pre-existing disease based merely on the contents in the aforesaid schedule in Ext.A1, we will be relying on a presumption rather than a fact supported by evidence.  Without the proposal form we cannot rule out a chance whereby the complainant had mention the pre-existing disease, by the O.P. had failed to take note of the same while issuing the policy.

It is also relevant to note that the statement of the complainant cannot be resorted to as a clear admission as the complainant is a party-in-person assisted by another person, ignorant of the intricacies of drafting and their pleadings cannot be equated to be at par with that of a lawyer who has professional training in drafting. Pleadings in memorandum of complaint merely discloses that the complainant had informed the opposite party that the conditions suffered by the child did not have any connection with the previous history of the child. It does not disclose any admission of any pre-existing disease that was vital and material to be disclosed.

10.       Taking the above facts and circumstances into consideration, we are coming to a conclusion that non-production of the proposal form by the OP despite clear directions dated 16/5/2023 and non-adducing of evidence when opportunity was granted are fatal to their case.  The only direction to which the favour of this Commission can tilt is that of the complainant.

             Issue Nos. 3 to 5

11.       Based on the observations and findings in issue Nos.1 & 2 we hold that there is deficiency in service on the part of opposite party.   

12.       The complainant had sought for a combined order of Rs.1,20,000/- from the opposite party. As per complaint, he had incurred an amount of Rs.16,445/- towards hospital expenses. We find that the claim of the complainant is reasonable. The complainant is entitled to the reliefs sought for.

 13.      We allow the complaint on the following terms and conditions.

            1. Complainant is entitled to receive Rs.16,445/- towards hospitalization expenses.

            2. Complainant is entitled to interest on the above amount from 26/8/2022 (date of  

    discharge) till the date of payment of the entire amounts allowed in this part of this   

     order.

            3. The complainant is entitled to a compensation of Rs.80,000/-.

            4. The complainant is entitled to a cost of Rs.20,000/-.

            5. The OP shall comply with the aforesaid direction within 45 days from the date of

     receipt of a copy of this order failing which they shall pay a solatium of Rs.500/- per

     month or part thereof from the date of this order till the date of payment of the

     aforesaid amounts.

                        Pronounced in open court on this the 9^th  day of April,  2024.

                                                                                         Sd/-                                                                                      

                                                                                             Vinay Menon V

                                                        President

                                                            Sd/-    

   Vidya.A

                       Member        

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1   -  Copy of welcome letter along with premium receipt.

Ext.A2  –  Copy of insurance certificate

Ext.A3 -   Copy of discharge summary dated 26/8/2022

Ext.A4  -   Copy of certificate dated 30/8/2022

Ext.A5  –  Copy of email communication dated 20/10/2022

Ext.A6(a)   – Copy of communication dated 7/12/2022

Ext.A6(b) – Copy of communication dated 25/8/2022

Ext.A6(c) – Copy of communication dated 26/8/2022

Ext.A6(d) – Copy of communication dated 24/8/2022 at 7.40pm

Ext.A6(b) – Copy of communication dated 24/8/2022 at 7.48 pm

Exhibits marked on the side of the opposite party: Nil

Court Exhibit:  Nil

Third party documents:  Nil

 Witness examined on the side of the complainant: Nil

Witness examined on the side of the opposite party:   Nil   

Court Witness: Nil

NB : Parties are directed to take back all extra set of  documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.