This complaint coming up before us for final hearing on                      24-08-11 in the presence of Sri K.Haranadha Raju, advocate for complainant and of Sri K.Srinivasa Rao, advocate for OP1, Sri M.V.Subba Rao, advocate for OP2, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following:

O R D E R

PER SMT.T.SUNEETHA, LADY MEMBER: 

                This complaint is filed under section 12 of the Consumer Protection Act, 1986 by the complainants seeking directions on opposite parties to pay Rs.32,755/- covered under medical bills along with interest @ 18% p.a. and to pay Rs.25,000/- towards compensation, mental agony and costs.

2.      The brief facts of complaint are as follows:

                The 1^st complainant is having an account in the 2^nd opposite party bank.  The complainant is insured under Group Mediclaim Insurance Policy with 1^st opposite party through 2^nd opposite party vide policy No.05040048/04/003d50 bearing F.No.371200 and the policy is in force upto 10-06-2010.  The facility of insurance covers the complainants and their son G.Mallikharjuna Rao. The 1^st complainant paid the premium on 10-06-06 at Bapatla Branch of 2^nd opposite party.

                The complainants 1 and 2 have taken treatment at M/s.Lalitha Super Specialty Hospital, Guntur from 11-07-06 to           17-07-06 on payment of treatment charges amounting to Rs.32,755/-.  The bills were sent to the office of 1^st opposite party by the hospital authorities for payment.  But the opposite parties failed to settle the claim.  The complainant filed case against the opposite parties under CC No.82/07 in Consumer Forum, Guntur and it was disposed by the Forum on 05-08-09 with a direction on the complainants and M/s.Lalitha Super Specialty Hospital to submit the claim forms and bills pertaining to the treatment of the complainants during relevant period to the 1^st opposite party as per the procedure and the 1^st opposite party shall make endeavor to process the same and settle the claim. Basing on the directions, complainant submitted the claim forms to the 1^st opposite party who repudiated the claim through a letter                dt.06-10-10 under clause 4(1) of the policy i.e., pre-existing disease.  The repudiation by the 1^st opposite party is unjustified. Therefore there is deficiency of service on the part of opposite parties and they are liable to compensate the complainant.      

3.      The 1^st opposite party filed its version, which is in brief as follows:

                On scrutiny of claim papers submitted by the complainants, it is observed by the doctors of TPA M/s. Family Health Plan that -

G.Dattatreyulu

                The patient was admitted with complaints of chest pain, Palpitations, Dyspnoea and Recurrent Angina.  This patient underwent CAG, revealed as Tripple Vessel Disease and as per the discharge summary the patient is a known case of “POST CABG”.

                As per discharge summary the patient was diagnosed as a case of “IHD, TVD, POST CABG”. The patient had these diseases prior to inception of policy and hence, the claim is repudiated under clause 4.1 of policy, as per which preexisting diseases not covered under this policy.  The same was informed to this opposite party by the Family Health Plan (TPA) Ltd. through a letter dt.05-01-10.

G.Subbamma

                The patient was admitted with complaints of Head ache, Cervical pain, LBA Right Upper Limb & Lower Limb pains Hypoglycemia on 13-07-06. The patient was treated conservatively, Neuro and Cardiac supportive care given.

                The patient had similar complaints since one year K/C/O, DM & HTN since 10 years.  The policy is from 10-06-06 to 09-06-07, which is fresh policy.  Hence, the claim is repudiated under the clause 4.1 of the policy i.e., preexisting.  This opposite party prays the Hon’ble Forum to dismiss the complaint with costs as there is no deficiency of service on the part of 1^st opposite party.

4.      The 2^nd opposite party filed its version, which is in brief as follows:

                This opposite party marketed a policy of United India Insurance and full details and eligibility of the claim is written on the application and the complainants are well aware about the said conditions.  When the complainants deviate the said conditions, they are not entitled to claim.  The relief or grievance if any to the complainants can be agitated before the 1^st opposite party or while filing the complaint, the complainants ought to have impleaded the 1^st opposite party alone.

                In respect of CC 82/07 filed by the complainants against this opposite party and United India Insurance Company Ltd., the matter was heard and decided on merits by the Hon’ble Forum on         05-08-09 and it was made clear in the operative portion of the order that there is no liability to this opposite party.  Knowing the said fact, the complainants have un-necessarily impleaded this opposite party and has created vexatious litigation.  Therefore, the complaint may be dismissed against this opposite party.

5.             The complainant and as well as opposite parties have filed this respective affidavits. Ex.A1 to A10 are marked on behalf of complainant and Ex.B1 to B12 on behalf of 1^st opposite party were marked.

6.      Now the points for consideration are

1. Whether there is any deficiency of service on the part of opposite parties?

1. To what relief the complainant is entitled to?

7.      POINTS 1 & 2

                The 1^st opposite party repudiated the claim of 1^st & 2^nd complainants i.e., Mr.Dattatreyulu & Mrs.Subbayamma on the ground that the complainants are having pre-existing diseases and not disclosed by them while taking the policy which is contrary to the exclusion condition laid down under clause No.4.1 of terms & conditions of policy Ex-B11 which is as below:   

Exclusions

                   The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of:

4.1:   All diseases/injuries which are pre-existing when the cover incepts for the first time. For the purpose of applying this condition, the date of inception of the initial mediclaim policy taken from any of the Indian Insurance Companies shall be taken, provided the renewals have been continuous and without any break.  However, this exclusion will be deleted after 3 consecutive continuous claim free policy years, provided, there was no hospitalization of the pre-existing ailment during these 3 years of insurance. 

8.      1^st Complainant Mr.G.Dattatreyulu. 

                The complainant obtained the policy AB Arogyadaan Group Mediclaim Insurance Policy, which is in force from 10-06-06 to              10-06-07.  The 1^st complainant admitted in the hospital for treatment on 11-07-06 and got discharged on 16-07-06, which is within the policy period and it is not disputed.

9.             Ex.B2 discharge summary revealed that the complainant/ patient is 62 years old male Non-Hypertensive, Non-Diabetic, Post-CABG, came with  chest pain, Dyspnoea, palpitations, and ECG shows Inferior + Anterior wall Ischaemia. He has undergone Coronary Angiogram, which revealed Triple Vessel Disease Grafts: SVGto RCA patent, LIMA and LAD  patent, distal diffuse disease.  He is advised medical management.

10.           It is clear by the above summary that 1^st complainant is a post CABG patient which is nothing but, he underwent Coronary Artery By-pass Grant surgery. This fact was not disclosed by him while filling up the proposal form Ex.B1

9. Details of persons to be covered

                The complainant while answering point No.9 in the proposal form he did not disclose the treatment details.

12.    2^nd complainant G.Subbayamma

                The 2^nd complainant is one of the insured members of AB Arogyadaan Group Mediclaim Insurance Policy, which is in force from 10-06-06 to 10-06-07 along with her husband (1^st complainant) and son G.Mallikharjuna Rao.  The 2^nd complainant admitted in the hospital for treatment on 14-07-06 and got discharged on 17-07-06, which is within the policy period and it is not disputed. 

13.           The treatment summary revealed that the 2^nd complainant is treated for HT & DM along with other ailments. 

14.    In Ex.B7 discharge summary of 2^nd complainant

          Past history   -   Same complaints since 1 year

                                       HTN, DM since 10 years     

                From the above column it is clear that the patient is having HTN and DM since 10 years. Whereas the complainant in the policy did not disclose the fact that she is having HTN and DN at the time of policy as seen from point No.9 of proposal form Ex.B1.

15.           The non-disclosure about the complainants pre-existing diseases at the time of policy, which is contrary to the condition laid down in clause No.4.1 of the terms and conditions of policy would curtail the complainants to avail the benefits of the policy. In view of the above discussion, the Forum cannot find fault with the opposite parties.  There is no deficiency of service on the part of opposite parties. 

16.           It is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and if the declaration made is found to be false to the knowledge of the declarant then the insurance company is entitled to repudiate the claim.  In Satwant Kaur Sandhu Vs. New India Assurance Company Ltd., VI (2009) SLT 338 wherein the Supreme Court observed that “the term ‘material fact’ is not defined in the Act and, therefore, it has been understood and explained by the courts in general terms to mean as any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether he would like to accept the risk.  Any fact which goes to the root of the contract of insurance and has a bearing on the risk involved would be ‘material’.”                  

17.           In a decision reported in I (2011) CPJ 83 (NC) between LIC of India Vs. Dalbir Kaur, the National Commission held that if “any untrue averment be contained therein the said contracts shall be absolutely null and void and all moneys which shall have been paid in respect therefore shall stand forfeited to the corporation.”

18.           In the present case, the 1^st complainant did not disclose the fact that he underwent CABG and the 2^nd complainant did not disclose that she is hypertensive and diabetic for the last 10 years prior to taking policy, which clearly amounts to suppression of material facts. Therefore, the repudiation by 1^st opposite party is justified.  Thus, there is no deficiency of service on the part of opposite parties and hence no need to compensate the complainant.   

                In the result, the complaint is dismissed without costs.

Typed to my dictation by the Junior Steno, corrected by me and pronounced in the open Forum, this the 3^rd day of September, 2011.    

MEMBER                         MEMBER                          PRESIDENT

APPENDIX OF EVIDENCE

                                        DOCUMENTS MARKED

For Complainant:         

For 1^st opposite party:

                                                                                              PRESIDENT