BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. P. SUDHIR                                       :  PRESIDENT

SMT. R. SATHI                                         :  MEMBER

C.C. No. 63/2012 Filed on 25.02.2012

ORDER DATED: 29.07.2016

Complainant:

Khuraisha Beevi, Kurumath Veedu, Pothencode, Kalloor, Thiruvananthapuram.

    (By Adv. Cherunniyoor P. Sasidharan Nair)

Opposite parties:

1. The Manager, Apollo Health Insurance, Floor No. 3, Uthradom, Manorama Road, Panavila, Thiruvananthapuram.
2. The Branch Manager, Apollo Munich Health Insurance Company Ltd., Branch Office, Old No. 55, New No. 83, 10^th Avenue, Ashok Nagar, Chennai-83.
3. The Apollo Munich Health Insurance Company Ltd., 10^th Floor, Tower B, Building No. 10, DLF Cyber City, DLF City Phase-II, Gurgaon, Haryana-122 002.

(By Adv. Josh Rajan)

This case having been heard on 13.07.2016, the Forum on 29.07.2016 delivered the following:

ORDER

SRI. P. SUDHIR:  PRESIDENT

Case of the complainant is that complainant is the holder of Apollo Munich Health Insurance policy subscribed from the opposite parties.  The policy No. 140300/11030/5000001505 covering complainant and her husband E. Abdul Hameed.  Sri. Abdul Hameed due to an accident sustained serious injuries over his left leg and his bone was seen projecting out.  He was admitted in the Medical College Hospital, Thiruvananthapuram and later succumbed to death.  On 28.03.2011 the complainant’s husband was admitted in the hospital and discharged on 02.06.2011.  The complainant has incurred medical expenses, room rent expenses, bystander expenses and other miscellaneous expenses amounting to Rs. 2,04,000/-.  Complainant produced all the relevant documents such as claim form, medical records, medical bills, equipments bill, investigation bill, room rent bills etc. to the opposite parties for an amount of Rs. 2,04,000/-.  But the complainant’s claims were disallowed by the opposite parties on the ground that complainant’s husband was suffering from diabetes for the past 5 years, no intimation of hospitalization and delayed submission of document.  It is clear from the policy record that before admitting into the policy the insurance company had arrayed a thorough medical checkup and convinced that the complainant’s husband was having no disease disentitling the claim.  It has been noted in the policy records also.  But contrary to the policy condition the complainant’s claim is repudiated by the opposite parties on erroneous findings.  Besides, the doctor did not either examine the complainant’s husband or verified any document in the presence of complainant’s husband to arrive at an adverse report leading to denial of the legitimate claim and genuine claim of the complainant.  All the documents of the complainant is in the custody of the opposite parties.  The rejection of the claim letter by the opposite parties is not based on facts or materials sufficient to prove, the pre-existence forming a medical opinion without examining the concerned person amounts to unfair trade practice and is against medical ethics.  Complainant availed opposite parties’ insurance policy covering both sickness and accidental benefits also but opposite parties violated terms and conditions of the policy.  The complainant’s husband is not having any pre-existing disease and the opposite parties repudiated the insurance policy amounts to deficiency in service and unfair trade practice under the Consumer Protection Act 1986.  The opposite parties rejected the claim without clearly verifying the documents and on wrong interpretation of the policy conditions.  Rejection of complainant’s claim amounts to breach of terms contained in the certificate of insurance.  The claim is to be allowed and accidental benefits are also covered as per Sec. 1(b) of the terms and conditions of the policy issued by the opposite parties.  This aspect is not considered by the opposite parties and it is mentioned in the hospital summary sheet records also produced by the complainant before the opposite parties along with claim form.  The repudiation of the insurance policy amounts to deficiency in service and unfair trade practice under the Consumer Protection Act, 1986 and complainant approached this Forum to get a total claim amount of Rs. 2,04,000/- with interest from the date of repudiation and compensation Rs. 1,00,000/- for mental agony and cost of the proceedings. 

Notice sent to opposite parties and opposite parties filed version and contested the case. 

The contention of the opposite parties is that at the time of proposal of the insurance policy the complainant suppressed material facts that he is suffering from diabetes meningitis and cardiac problem for the last five years.  The second contention is that he has to inform about the hospitalization within 7 days from the date of accident and the third contention is that he had failed to produce the documents in time.  The complainant being a doctor suppressed the material fact that Mr. E. Abdul Hameed i.e 2^nd insurer has the history of diabetes mellitus from past 5 years and he was on OHA’s and on under drugs of Digoxin, Aldactone for congestive cardiac failure.  The said diseases were pre-existed and knowingly same was not revealed either in the proposal form nor in the claim form hence they have violated norms elucidated in the contract of insurance.  In the said proposal form the complainant were to furnish some relevant details about the proposed insured and was also required to fill in a medical questionnaire at point 5, an extract of which is reproduced below: “Have any of the person(s) proposed to be insured in the last 5 years suffered from/currently suffering from/or been investigated for any diseases, ailments, medical conditions, or illness, accident, injury?”.  The above question was specifically answered “No” for both herself and the proposed insured No.2, i.e her husband.  The complainant was admitted to the hospital on 28.03.2011 and discharged on 02.06.2011 but the complainant has not bothered to intimate to the opposite parties within 7 days of hospitalization being very well aware of the clauses as she herself is a doctor and knows the medical rules (Sec. 3 “general conditions” clause “C” notification of claims point (i) hence it is clear condition violation of the complainant.  The general conditions as mentioned under Sec. 3 more specifically at clause (c) for the policy provides that even if any treatment for which claim may be taken, requires hospitalization, the opposite parties shall be informed immediately and in no case later than 7 days from the date of hospitalization.  Further clause (d) requisites the insured to submit the opposite parties any documentation or information related to the treatment within 15 days from the discharge of the patient.  On the contrary to the above conditions the complainant in utter breach to the aforesaid terms of the policy specifically section 3, clause c and d has not informed the opposite parties in stipulated time.  The opposite parties submits that entire case sheet, claim forms and all documents provided by the complainant was properly verified and came to the conclusion that there was non-disclosure of the material fact that the insured No.2 in the policy was having history of diabetes and was undergoing treatment for congestive cardiac failure also there was material breach of obligation to inform about admission and provide document in stipulated time as such claim of the complainant is not a fit claim to be consider under the insurance policy.  Hence the opposite parties were pleased to reject the claim of the complainant and issue the rejection letter dated 09.09.2011. 

Issues:

1. Whether there is deficiency of service on the part of opposite parties?
2. Whether the opposite parties have considered the accidental benefit mentioned in the policy?
3. What is the order as to cost?

Issues (i) to (iii):- Complainant filed chief examination affidavit and Exts. P1 to P5 marked and opposite parties filed chief examination affidavit and Exts. D1 to D8 marked.  Either party not cross examined.  Opposite parties filed argument note highlighting the 3 points.  (1) Non disclosure of materialistic facts section 3 “General conditions” clause k ‘fraud’ (As per the summary sheet collected from the medical college hospital during verification you are found to be known case of diabetes from past 5 years and CCF from past 4 years which was not declare in the proposal form)  (2) No intimation within 7 days of hospitalization (Section 3 “general conditions” clause ‘C’ notification of claims point (i) (3) Delayed submission of documents (Section 3 “general conditions” clause “D” supporting documentation and examination and they emphasize that there is no deficiency of service or unfair trade practice on their part in repudiating the claim and they rely upon our Hon’ble apex court’s decision in Satwant Kaur  Sandhlu Vs. New India Assurance Co. Ltd. 2009 8 SCC 315 the ratio devidendi that “One cannot claim the benefit of insurance if the ‘material facts’ are concealed from the insurance company”. 

In the evidence and argument of opposite party they remain dark on the aspect of accidental benefit mentioned in policy clause Sec. 1(b) Ext. P3. 

Complainant’s argument is mainly on that the policy availed by the complainant from the opposite parties covers sickness and accidental benefits also.  Opposite parties have not examined the deceased E. Abdul Hameed, but only rely on the case records and came to a conclusion.  Complainant relied on the decision of National Commission in Life Insurance Corporation Vs. Laxman 2013(1) CPR 264 NC.  National Commission held that mere production of admission file is not an adequate proof.  The reported case and the present case has much similarity in facts.  Relying on the decision of the National Commission we are of the opinion that opposite parties failed to prove that the insured was having pre-existing disease.  Production of case sheet to this effect does not amount to proving the same and mere production of case sheet whose authenticity has not been verified/confirmed is not adequate proof of any pre-existing disease.  So we are forced to believe the version of the complainant and opposite parties are directed to pay Rs. 2,04,000/- spent by the complainant towards medical expenses incurred with interest at the rate of 9% per annum from the date of repudiation i.e; 09.09.2011 till realization and Rs. 25,000/- as compensation for the mental agony suffered by the complainant and Rs. 5,000/- towards the costs of this proceedings. 

In the result, complaint is allowed.  Opposite parties are directed to pay Rs. 2,04,000/- towards the medical expenses incurred with 9% interest from the date of repudiation i.e; 09.09.2011 till realization and Rs. 25,000/- as compensation for the mental agony suffered by the complainant and Rs. 5,000/- towards the cost of the proceedings within two months from the date of receipt of this order failing which the compensation amount also carries interest @ 9% per annum till realization.    

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. 

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 29^th day of July 2016.

       Sd/- 

P.SUDHIR                             : PRESIDENT

       Sd/- 

R. SATHI                               : MEMBER

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C.C. No. 63/2012

APPENDIX

  I      COMPLAINANT’S WITNESS:

                             NIL

 II      COMPLAINANT’S DOCUMENTS:

P1     - Copy of claim form

P2     - Policy schedule of opposite party dated 28.11.2011

P3     - Customer information sheet of opposite party

P4     - Rejection letter of opposite party dated 09.09.2011

P5     - Advocate notice dated 28.12.2011

III      OPPOSITE PARTY’S WITNESS:

                             NIL

 IV     OPPOSITE PARTY’S DOCUMENTS:

D1     - Copy of proposal form

D2     - Copy of policy schedule dated 29.12.2010

D3     - Copy of policy wording of opposite party

D4     - Copy of claim form of opposite party

D5     - Copy of discharge card of DME dated 02.06.2011

D6     - Copy of O.P record of Medical College Hospital

D7     - Copy of hospital cash benefit claim investigation dated 29.08.2011

D8     - Copy of rejection letter to customer dated 09.09.2011

                                                                                                      Sd/-

PRESIDENT

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