Date of filing: 06-04-2011
Date of Disposal: 07.01.2015
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ANANTAPUR.
PRESENT: - Kumari Y.H.Prameela Reddy, M.L., LL.B., President
Sri S.Niranjan Babu, B.A., B.L., Male Member
Smt. M.Sreelatha, B.A., B.L., Lady Member
Wednesday, the 07th day of January, 2015
C.C.No.91/2011
Between:
K.Aswarthanarayana
S/o Late K.Ramappa
D.No.7/344-B,
Malleswari Road, Court Road
Anantapur. … Complainant.
Vs.
1. The Manager,
ICICI Prudential Life Insurance Company Limited
Adimurthy Nagar,
Anantapur.
2. The Authorized Signatory,
ICICI Prudential Life Insurance Company Limited,
Vinod Silk Mills Compound,
Chakravarthy Ashok Road,
Ashok Nagar,
Mumbai – 400 101. …. Opposite Parties
This case coming on this day for final hearing before us in the presence of Sri G.Nagaraja Babu, Advocate for the complainant and Sri M. Murali Mohan, Advocate for the opposite parties 1 & 2 and after perusing the material papers on record and after hearing the arguments of both sides, the Forum delivered the following:
O R D E R
Sri S.Niranjan Babu, Male Member: - This complaint has been filed by the complainant under section 12 of Consumer Protection Act, 1986 against the opposite parties 1 & 2 claiming a sum of Rs.10,18,273/- towards operations charges and Chemo and Radiation therapies and Rs.2,00,000/- towards mental agony.
2. The brief facts of the complaint are that: -The complainant is the husband of late P.Pushpalatha, who has taken ICICI Prudential Hospital Care Policy during her life time. The complainant is the nominee of late P.Pushpalatha, who was working as English Lecturer in Govt. Junior College for Boys, Anantapur. The wife of the complainant has taken the Hospital Care Plan-A Policy No.08552528 dt.11-04-2008 for a period of 10 years from the opposite party No.1 Branch by paying a premium of Rs.9,536/- as yearly premium and the last date of premium payable is 11-04-2017 and termination of the policy is on 11-04-2018.
3. Subsequently the wife of the complainant was diagnosed on 21-11-2008 that her right breast had been swelling for the last 2months prior to the date of diagnosis, which was painless and progressively increasing in size. After thorough investigation she was found to have Carcinoma for which she was advised surgery. The assured underwent surgery on 05-12-2008 in Yashoda Hospital, Secunderabad. The assured had underwent Chemo Therapy for number of times besides radiation therapy. After that the assured made a claim on 31-12-2008 for a sum of Rs.63,559/-, 20-01-2009 for Rs.12,719/-, 27-02-2009 and 17-03-2009 for Rs.87,036/- and again through reminder dt.13-07-2009 for Rs.1,03,154/- and another reminder dt.04-06-2009 for Rs.1,21,030/- and another reminder dt.19-11-2009 for Rs.1,76,794/- as the assured had underwent for Chemo and Radiation therapies intermittently hence the claim has been increasing.
4. The opposite parties considered the same and accepted the claim of the assured and settled the claim vide 2nd opposite parties letter dt.24-03-2009 for Rs.83,000/- and paid the same through cheque bearing No.136566 dt.23-03-2009 drawn on ICICI Bank towards the 1st operation and for undergoing chemo and radiation therapies. The opposite parties remitted the said amount of Rs.83,000/- upon forcing the assured to sign on the discharge voucher dt.24-03-2009 as the opposite parties imposed to do so as other-wise it is mentioned that the amount would not be remitted unless the assured signed on the discharge voucher. Hence the assured had no option except to sign on the discharge voucher so as to enable her for her regular Chemo and Radiation therapies. As per the claim made by the assured, the opposite parties fell due by a sum of Rs.93,794/- towards the 1st operation.
5. Subsequently the assured was once again suggested by the doctors to undergo for second operation and she was admitted in the Yashoda Hospital and got operated from 19-02-2010 to 23-02-2010. The assured incurred an amount of Rs.83,059/- towards hospitalization from 19-02-2010 to 23-02-2010, an amount of Rs.51,834.91 towards 1st Chemo therapy from 11-03-2010 to 13-03-2010, an amount of Rs.55,125.60 towards 2nd Chemo therapy from 13-04-2010 to 15-04-2010, an amount of Rs.53,722/- towards 3rd Chemo therapy from 06-05-2010 to 16-05-2010 5, an amount of Rs.1,22,197.18 towards 4th Chemo therapy from 16-06-2010 to 18-06-2010, an amount of Rs.1,17,159.73 towards 5th Chemo therapy and an amount of Rs.1,29,654.86 towards 6th Chemo therapy and Rs.44,258.92 towards Pulmonary treatment in September, 2010 and Rs.1,41,506.10 towards Pulmonary treatment again in the same month, Rs.1,25,960/- towards Pulmonary treatment in October, 2010, which comes to Rs.9,24,479/-.
6. The assured wrote a letter dt.19-04-2010 claiming Rs.2,25,465/- for the second operation and Chemo Therapy besides mentioning that she had to undergo for further Chemo Therapy and required Rs.75,000/- approximately and furnished all the medical bills concerned. The assured once again wrote a letter dt.07-05-2010 claiming Rs.53,722/- in addition to the 1st claim dt.19-04-2010 alongwith bills. The assured once again reminded the 2nd opposite party through letter dt.21-06-2010 and also informed that the assured would submit further claim for the treatment to the tune of Rs.1,19,000/- besides Rs.2,79,189/-. The opposite parties considered the claim of the assured and sent Rs.2,000/- through Demand Draft No.752756 dt.09-07-2010 and Rs.2,000/- through demand draft No.754456 dt.10-07-2010 towards the claim of the assured. However the assured returned the said two Demand drafts to the 2nd opposite party through her letter dt.11-08-2010 by not encashing the said demand drafts and requested the 2nd opposite party for the total claim of Rs.6,12,753.67 by furnishing the statement along with the letter. Unfortunately the assured died on 06-10-2010. Hence the further claim was not made by sending the further bills of the therapies of the assured as the nominee, who is the complainant was performing the last rites of his wife the assured Pushpalatha. The complainant reminded the 2nd opposite party through letters dt.15-11-2010 and 28-02-2011 and the claim of his wife by sending a letter requesting to pay the claim amount of Rs.6,12,753.67 at an early date by furnishing Death Certificate and Legal Heir Certificate. The complainant also sent the bills of the treatment of his wife, the assured during the periods of September, 2010 and October, 2010 to the 2nd opposite party. However the opposite parties have not even given reply for the letters of the assured and to the reminder letters of the complainant, who is the husband of the assured. Even after the reminder letters of the complainant, the opposite parties have not paid the claim amount of Rs.9,24,479/- and thereby they caused deficiency of service in not settling the claim of the complainant.
7. The 1st opposite party filed counter stating that the complaint is not maintainable and is liable to be dismissed as the complainant it trying to misguide and mislead this Hon’ble forum by suppressing material facts. It is well settled legal proposition that “one who seeks justice must come to the court with his clean hands” and as such the complaint is liable to be dismissed. That the grievance of the complainant is essentially against the ICICI Prudential Life Insurance Company Limited which is a incorporated company under the companies Act,1956 and the insurance Act 1938 having its registered office at ICICI Pru Life Towers, 1089 Appa Saheb Marathe Marg, Prabhadevi, Mumbai- 400 025 carrying inter alia business of life insurance . And the instant company is a juristic person and has a separate legal identity. Hence it can sue and be sued in its own name. However ICICI Prudential Life Insurance Company Limited has not been made a party in the instant case. As such the complaint is liable to be dismissed on the ground of non-joinder and miss-joinder of the parties.
8. The 1st opposite party further submitted that the complaint is not maintainable as there is no deficiency of service on the part of the opposite parties. The opposite parties has acted in accordance with the terms and conditions of the policy and the contract of insurance is governed by the policy terms and conditions. The same has been clearly stated in Reliance Life Insurance Company Limited Versus Madhavachary “Revision petition NO.211/2009, wherein it was held by the National Commission that “since the insurance between the insurer and the insured is a contract between the parties the terms of the agreement including applicability of the provision and also exclusion had to strictly construed to determine the extent of the liability of the insurer”. Since the opposite parties had declined the claim of the complainant purely on the basis of terms and conditions of the policy. The allegation of deficiency of service by the complainant against the opposite parties is erroneous and unsustainable.
9. The complainant suffers from suggestions vari suppression falsi and is not entitled to any relief from this Forum.
Further the opposite party submitted that without prejudice to the above contentions the true facts of the case are that the complainant’s wife Smt. P.Pushpalatha had availed ICICI Prudential Hospital Care Policy during his life time vide policy bearing No.08552528 dt.11.04.2008 for a term of 10 years with an annual premium of Rs.9,536/-. In accordance with clause 6(2) of the Insurance Regulatory and Development Authority (IRDA) the policy documents were dispatched to the life assured on 06.05.2008 which was received by the life assured on 13.05.2008. As per one of the terms and conditions of the policy if the complainant disagrees with any of the terms and conditions of the policy, he/she has the right to return the policy to the company within the free look in period of 15 days from the date of receipt of policy document for cancellation. In such case, the insurance company refunds the premium paid subject to applicable deductions. This is the statutory provision implemented in accordance with the clause 6 (2) of the Insurance Regulatory and Development Authority Regulations, 2002.
10. The opposite party further submits that the opposite parties received claim intimation from the complainant from which it was revealed that the life assured was hospitalized on 04.12.2008 to 09.12.2008 and also underwent surgery for Right Modified Radical Mastectomy under general anesthesia on 05.12.2008. While assessing the claim the cytopathology report dt.21.11.2008 issued by Yashoda Hospital it came to the notice of the opposite parties that the life assured was diagnosed to have right Breast Lump since 6 months from 04.06.2008. This diagnosed date falls within the first three months from the date on inception of the policy which is 11.04.2008 and as per the policy terms and conditions the same falls within the waiting period. The waiting period as mentioned in the policy is as under:-
Clause 6-
waiting period:- At no point of time during the term of the policy, any benefit shall be payable for the claim which occurs or where the signs and/or the symptoms of illness/condition for the claim has occurred within 3 months of the policy issue date. This exclusion is not applicable where the claim occurs due to injuries caused by an accident.
11. Further the opposite parties submitted that before the opposite parties could reject the said claim on the basis of clause 6 of the policy terms and conditions, the opposite parties received second claim under the said policy for treatment of Chemotherapy and Radiotherapy undergone by the life assured., wherein she was again admitted in the Yashoda Hospital from 25.12.2008 to 26.12.2008. The opposite parties had declined the second claim under the policy vide its letter dt.14.02.2009 as the same falls with the exclusions of the policy terms and conditions. And in the meantime the opposite parties again received a request for reconsideration of the first claim under the said policy. Then the opposite parties on sympathetic grounds agreed to make exgratia payment of Rs.83,000/-, irrespective of the fact that the first claim is not maintainable as per the terms and conditions of the policy. The same was also communicated to the complainant and he was made to sign a discharge voucher after making the said extratia payment. The claim amount of Rs.83,000/- was paid to the life assured vide Cheque bearing No.136566 dt.23.03.2009 and the same was encashed on 28.03.2009. The amount was calculated as per the terms and conditions of the subject policy and the detailed bifurcation of the same is as under.
Plan Type : Plan A
Length of stay : 5 days
DHCB : Rs.5,000/-
ICU Benefit : 0
Surgical Benefit : Rs.75,000/- (Grade 3.75x1000)
Convalescence Benefit : Rs.3000/- (3x1000)
Total : Rs.83,000/-
12. Further the 1st opposite party submitted that it is pertinent to note here that though the said claim was not payable as per the policy terms and conditions but the opposite parties after reconsideration the said claim had made as an exgratia payment for an amount of Rs.83,000/- to the life assured. Later the life assured was further hospitalized on 25.12.2008 to 26.12.2008 at Yashoda Cancer Institute, Secunderabad. The said claim was rejected as per clause 6 and 2 (a) i of the terms and conditions of the policy. The claim was rejected as the cytopathology report from Yashoda Hospital dt.21.11.2008 it is clearly stated that the life assured was diagnosed to have right Breast Lump since 6 months i.e., since 04.06.2008, which falls within the waiting period. The date 04.06.2008 falls well within the first three months from the date of inception of the policy which is 11.04.2008 and the stay in the hospital was less than 24 hours. Hence the claim was rejected as per clause 6 and clause 2 (a) of the terms and conditions of the policy. The relevant provisions of clause 6 & 2 (a) is reproduced below:
Clause 6
Waiting period:- At no point of time during the term of the policy, any benefit shall be payable for the claim which occurs or where the signs and /or the symptoms of illness/condition for the claim has occurred within 3 months of the policy issue date. This exclusion is not applicable where the claim occurs due to injuries caused by an accident.
Clause 2 (a):- This benefit is payable where the life assured has been hospitalized for a continuous period in excess of 24 hours i.e., the life assured stays in the hospital for at least 2 consecutive nights and is charged for a minimum of 2 consecutive days bed/room charges. The benefits shall be payable for the first day of hospitalization.
13. Had the claim not occurred within the waiting period it is submitted that as per the policy terms and conditions the life assured was eligible only for the benefits as mentioned below:
A. Daily hospital cash benefit (DHCB) upon hospitalization.
B. An additional ICU benefit upon hospitalization in an ICU ward (ICUB).
C. Surgical benefit (SB) upon actual undergoing a surgery.
D. Convalescence Benefit (CB) is a post hospitalization benefits.
14. The hospital care policy is a fixed benefit plan and the benefit is payable on the occurrence of one or more event solely in accordance with the policy terms and conditions irrespective of the actual amount incurred by the life assured. It is submitted that if the life assured is hospitalized for chemotherapy/radiotherapy then only DHCB is payable which is in accordance with the policy terms and conditions and no further amount would be payable as the life assured did not undergo any surgery under the said claim. Further if the life assured has undergone any surgery or had been hospitalized in ICU, then the claim would be payable for DHCB, surgery undergone and CB benefit as per the policy terms and conditions. Thus in case of any hospitalization for chemotherapy, only DHCB is payable and the expenses of chemotherapy is not covered under the said policy. Further it is pertinent to note here that chemotherapy and Radiotherapy are not surgeries, whereas these are treatment for cancer and hence no surgical benefit becomes payable for the same.
Nature of benefit | Event on which the benefits is payable as per policy terms and conditions | Applicability for the present case |
Daily Hospitalization care Benefit (DHCB) | Payable only when the life assured is hospitalized for a continuous period in excess of 24 hours i.e. the life assured stays in the hospital for at least 2 consecutive nights and is charged for a minimum of 2 consecutive days bed/room charges. (refer clause 2 (a) of the policy terms and conditions) | The life assured has opted for Plan A. The life assured was hospitalized for a period of 5 days and hence DHCB of Rs.1000/- for 5 days have been paid. Total amount paid under DHBC is Rs.5,000/- |
Intensive care unit (ICU | Payable only when during the course of treatment the life assured is admitted in ICU. Benefit payable for each day on ICU shall be additional 50% of the DHBC under the plan opted for by the policyholder. (Refer clause 2 (b) of the policy terms and conditions). | The life assured was not admitted in ICU and hence this benefit is not payable. |
Surgical Benefit (SB) | Payable only when the life assured undergoes any of the surgeries covered under this policy. Surgeries are classified on the basis of severity are graded 1 to 4 (refer clause 2 (c ) of the policy terms and conditions). | In the present case, the surgery undergone by the life assured is covered under Grade 3 and hence as per the plan opted an amount of Rs.75,000/- was paid. Further, Radiotherapy and Chemotherapy are not treated as Surgery in medical parlance. |
Convalescence Benefit (CB) | Payable only when the life assured is admitted for a continuous period of 5 or more consecutive days (refer clause 2 (d) of the policy terms and conditions | In the present case the life assured was not admitted for a consecutive period of 5 days and hence this benefit is not payable. |
15. The contents of para 3 & 4 are denied as the same are baseless and misconceived and are designed to mislead this Forum. With regard to the hospitalization claim for the period 04.12.2008 to 09.12.2008, the opposite parties had duly reconsidered the said claim and had made an exgratia payment of Rs.83,000/- vide Cheque bearing No.A136566 dt.23.03.2009. Further, as per the diagnosis and the cytopathology report from Yashoda Hospital, dt.21.11.2008 it was evident that the life assured was suffering from right breast lump for the last six months i.e., from 04.06.2008 which falls within the waiting period as per the terms and conditions of the said policy. As such her claim for hospitalization from 25.12.2008 to 26.12.2008 was rejected on the ground that the signs and/or symptoms of the illness/condition for the claim had occurred within three months from the date of issuance of policy and also on the ground that the life assured was not admitted in the hospital for more than 24 hours. The rationale and basis of payment of Rs.83,000/- has been explained herein above.
16. Therefore the opposite parties are not liable to pay an amount of Rs.93,794/- to the life assured for the medical expenses incurred by her for the treatment. It is pertinent to note that apart from the fact that the claim is not payable as per the cytopathology report from Yashoda Hospital dt.21.11.2008, which clearly stated that the life assured was diagnosed to have right breast lump since six months which falls within the waiting period, the second claim was also not payable due to the fact that no surgery was undergone by the life assured and there was no hospitalization for more than 24 hours and hence no claim is payable as per the policy terms and conditions. Further the opposite parties submitted that the opposite parties has rejected the claim of the complainant purely on the basis of the terms and conditions of the policy.
17. The contents of para 6 to 8 are denied as the same are totally false and bogus. It is relevant to state here that the life assured was hospitalized from 19.02.2010 to 23.02.2010 for chemotherapy. A Cheque bearing No.834833 for an amount of Rs.4,000/- as DHCB was sent to the life assured on 06.09.2010 the said Cheque has not been encashed. It is relevant to state here that in case of hospitalization for chemotherapy only DHCB is payable as Chemotherapy/Radiotherapy are treatments for cancer and not surgeries and the said plan taken by life assured covers only surgery benefits. The life assured incurred expenses up to Rs.51,834.91 towards first chemotherapy from 11.02.2010 to 13.03.2010. The opposite parties had looked into the said claim and had decided to pay an amount of Rs.2,000/- as DHCB vide Cheque bearing No.A752756 on 09.07.2010 and the said Cheque has not been encashed. Under the above said circumstances only DHCB was paid to the life assured because the life assured was neither admitted in ICU nor had undergone any of the surgeries covered nor was hospitalized for a consecutive period of 5 or more days.
18. The life assured incurred expenditure of Rs.55,125.60 towards the second chemotherapy from 13.04.2010 to 15.04.2010. Accordingly a Cheque bearing No.A754456 dt.10.07.2010 for an amount of Rs.2000/- as DHBC was sent to the life assured on 10.07.2010 and the same has not been encashed. Further the opposite parties submitted that the life assured is not entitled to any further benefits under the said claim as no surgery was undergone by her. Therefore it is only DHCB which is payable. And further a sum of Rs.53,722/- has been incurred by life assured toward third chemotherapy from 06.05.2010 to 16.05.2010. However the opposite parties are not in the receipt of the claim intimation for the said hospitalization. The claim would be payable only for DHCB as the life assured was hospitalized for chemotherapy only. Another sum of Rs.1,22,197.18 was incurred by the life assured towards fourth chemotherapy from 16.06.2010 to 18.06.2010. The opposite parties never received claim intimation for the said hospitalization and the claim would be payable only for DHCB as the life assured was hospitalized for chemotherapy only and again no surgery was undergone by her. It is further relevant to state here that the letter dt.21.06.2010, 15.11.2010 and 28.02.2011 were never received by the opposite parties. The company had further received a legal notice dt.09.03.2011 with regard to the said matter and the company had duly replied to the same on 02.05.2011.
19. The opposite parties has denied the contents of para 9 and are not liable to pay a sum of Rs.93,794/- towards balance of first claim or Rs.9,24,479/- towards the second claim for the reasons stated above.
20. The 2nd opposite party filed memo adopting the counter of the 1st opposite party.
21. Basing on the above pleadings, the points that arise for consideration are:-
1. Whether there is deficiency of service on the part of the opposite parties
1 & 2?
2. To what relief?
22. In order to prove the case of the complainant, the evidence on affidavit of the complainant has been filed and marked Ex.A1 to A37 documents. On behalf of the 1st opposite party, the 1st opposite party filed evidence on affidavit and marked Ex.B1 to B5 documents. At the request of the complainant, Advocate-Commissioner was appointed and he filed his report and marked X1 to X9 documents.
23. Heard both sides.
24. POINT NO.1: - There is no dispute with regard to taking of the policy by the complainant’s wife and nominating the complainant as a nominee of the deceased in the said policy. The complainant’s wife P.Pushpalatha during her life time has taken a Hospital Care Plan-A Policy by paying a premium of Rs.9,536/- to the 1st opposite party on 11-04-2008 and the term of the policy is for 10 years. The said policy is marked as Ex.A1 wherein the maximum annual limit of the claim payable is only Rs.4,00,000/- and the life time maximum limit is Rs.20,00,000/-. As per the plan opted by the complainant is Plan-A wherein the annual limit agreed is basing on the below table:
Table-1
Benefits/Plan | Hospitalization Benefits | Surgical Benefits | Convalescence Benefit |
DHCB Per day = x | ICUB Per day | Grade 1 | Grade 2 | Grade 3 | Grade 4 |
Plan-A | Rs.1000 | 0.5 x | 15 x | 50 x | 75 x | 100 x | 3 x |
Plan-B | Rs.2000 |
Plan-C | Rs.3000 |
Plan-D | Rs.4000 |
Note: ICUB, SB & CB are expressed as multiples of DHCB
A. Annual Limit: - The aggregate of all the benefits in any one policy year shall not exceed an amount equivalent to 400 times of the DHCB under the plan opted for.
B. Life time Limit:- The aggregate of all the benefits payable under the policy during the whole of the policy term shall not exceed an amount equivalent to 2000 times of the DHCB of the plan opted for.
COVERAGE: -
Hospital care offers a comprehensive hospitalization and surgery benefits for the expenses incurred during the hospitalization. The following benefits are offered by Hospital Care policy:
(A) Hospital Cash Benefit (DHC):-
This benefit is payable only when the life assured is hospitalized for a continuous period in excess of 24 hours (at least 2 consecutive nights) and charged for a minimum of 2 consecutive days bed/room charges.
In one policy l year the benefit payable is limited to 90 times of the DHCB under the plan Opted for. Any unutilized benefit can not be carried forward for next year.
The DHCB limit includes days spent in an ICU as well.
(B) Intensive Care Unit Benefit (ICUB):-
In addition to DHCB, ICUB benefit is payable only if the Life Assured is admitted into
An “ICU” and is subject to the hospitalization conditions of DHCB
- The ICUB benefits payable for each day is equal to 50% of the DHCB under the plan.
- In any one policy year the maximum ICUB payable is limited to an amount equivalent to15 times of the DHCB i.e. 30 days of ICU stay under the plan. Any unutilized benefit
cannot be carried forward for next year.
(C) Surgical Benefits (SB):-
This benefit is payable only if the life assured undergoes any of the surgical procedures
Specified in the surgery list (attached in policy document) and the benefits payable as Per the severity of the surgery.
The benefits payable under each grade is mentioned in Table 1.
When the life assured undergoes more than one surgery under one anesthesia, full SB is payable for the surgery with highest severity, 50% for the second highest and no
Benefit for third and beyond surgeries.
SB is payable regardless of whether DHCB is payable or not.
The maximum SB payable in any policy year is limited to an amount equivalent to 300 Times the DHCB under the plan opted for. Any unutilized benefits cannot be carried Forward for next year.
(D) Convalescence Benefits (CB):-
This benefit is payable only if the life assured is eligible for DHCB.
CB is payable only if the life assured is continuously hospitalized for a period 5 or
More days and the maximum benefit payable is 3 times the DHCB amount.
25. The counsel for the complainant argued that the opposite party has allowed a part of the first claim made by the policyholder and settled the part by way of cheque bearing No.136566 dt.23-03-2009 for a sum of Rs.83,000/- drawn on ICICI Bank vide their letter dt.24-03-2009 and further argued that the policyholder was forced to sign on the discharge voucher dt.24-03-2009 by the opposite parties in order to encash the same. Hence the policyholder with no option signed on the discharge voucher as full and final settlement. The counsel for the complainant argued that a sum of Rs.83,000/- which is a part of the first claim was paid and there was a balance of Rs.93,794/- towards the claim made by the assured with regard to the first operation.
26. Further argued that as per the suggestions made by the doctors to undergo for the second operation, she was admitted in the Yashoda Hospital and got operated from 19-02-2010 to 23-02-2010. The assured incurred a sum of Rs.83,059.30 towards hospitalization from 19-02-2010 to 23-02-2010 and subsequently an amount of Rs.51,834.91 was spent towards first Chemo Therapy from 11-03-2010 to 13-03-2010, Rs.55,125.60 towards second Chemo Therapy from 13-04-2010 to 15-04-2010, Rs.53,722/- towards third Chemo Therapy from 06-05-2010 to 16-05-2010, Rs.1,22,197.18 towards fourth Chemo Therapy from 16-06-2010 to 18-06-2010, Rs.1,17,159.73 towards fifth Chemo Therapy, Rs.1,29,654.86 towards sixth Chemo Therapy, Rs.44,258.92 towards pulmonary treatment in the month of September, 2010, Rs.1,41,506.10 towards pulmonary treatment in the same month and again Rs.1,25,960/- towards pulmonary treatment in October, 2010, altogether the opposite parties are liable to pay a sum of Rs.9,24,479/-.
27. The counsel for the complainant argued that in the meanwhile the life assured wrote number of letters to the opposite parties to settle her claims for which the opposite party sent a sum of Rs.2,000/- through Demand Draft No.752756 dt.09-07-2010 and Rs.2,000/- through Demand draft No.754456 dt.10-07-2010 towards claim of the assured. But the assured returned the said two demand drafts to the 2nd opposite party through her letter dt.11-08-2010 by not encashing the said demand drafts and requested the 2nd opposite party for total claim of Rs.6,12,753.67 by furnishing statement along with letter. Later unfortunately the assured died on 06-10-2010. Hence the further claim was not made by sending further details of the therapy of the assured as the nominee and the present complainant was to perform the last rites of his deceased wife. The complainant reminded the opposite party through letters dt.15-11-2010 and 28-02-2011 claiming an amount of Rs.6,12,753.67 by furnishing the Death Certificate and Legal Heir Certificate. However the opposite parties have not given any reply to the letters or settled the claim. The counsel argued that this shows that there is negligence on the part of the opposite parties in settling the claim of the deceased and thereby caused deficiency of service for which they are liable.
28. The counsel for the opposite parties submitted there is no dispute with regard to issuing of the policy to the life assured. The counsel for the opposite parties submitted that the said policy was issued to the life assured on 11.04.2008 for a term of 10 years with an annual premium of Rs.9,536/-. And the said policy was issued in accordance with clause 6 (2) of the Insurance Regulatory & Development Authority (IRDA) and the policy documents were dispatched to the life assured on 06.05.2008 which was duly received by the life assured on 13.05.2008.
29. Further the opposite parties submitted that as per the terms and conditions of the policy if the complainant disagrees with any of the terms and conditions of the policy he/she has the right to return the policy to the company with the free look in period of 15 days from the date of receipt of the policy document for cancellation. In such case the insurance company refunds the premium paid subject to applicable deductions. This is a statutory provision implemented in accordance to clause 6 (2) of IRDA Regulations 2002.
30. The counsel for the opposite parties submitted that the opposite parties received the claim intimation from the complainant from which it was revealed that the life assured was hospitalized on 04.12.2008 to 09.12.2008 and also underwent surgery for Right Modified Radical Mastectomy under general anesthesia on 05.12.2008. While assessing the claim from cytopathology report dt.21.11.2008 issued by Yashoda Hospital it also came to the notice of the opposite parties that the life assured was diagnosed to have Right Breast Lump since 6 months i.e., 04.06.2008. This diagnosis date falls within the first three months from the date on inception of the policy which is 11.04.2008 and as per the policy terms and conditions the same falls within the waiting period. The waiting period as mentioned in the policy is as under:
CLAUSE 6:
Waiting Period:- At no point of time during the term of the policy, any benefit shall be payable for the claim which occurs or where the signs and /or the symptoms of illness/condition for the claim has occurred within 3 months of the policy issue date. This exclusion is not applicable where the claim occurs due to injuries caused by an accident.
31. Further the opposite parties submitted that before the opposite parties could reject the said claim on the basis of the clause 6 of the policy terms and conditions, the opposite parties received second claim under the policy for treatment of chemotherapy and radiotherapy undergone by the life assured. Wherein she was again admitted in the Yashoda Hospital from 25.12.2008 to 26.12.2008. The opposite parties had declined the second claim under the policy vide its letter dt.14.02.2009 as the same falls within the exclusions of the policy terms and conditions. Again in the meantime the opposite parties received a request for reconsideration of the first claim under the said policy. Then the opposite parties on sympathetic grounds agreed to make exgratia payment of Rs.83,000/- irrespective of the fact that the first claim is not maintainable as per the policy terms and conditions. The same was also communicated to the complainant and he was made to sign a discharge voucher after making the said exgratia payment. Further the counsel for the opposite parties argued that it is pertinent to note here that though the said claim was not payable as per the terms and conditions, but the opposite parties after reconsidering the said claim had made an exgratia payment of Rs.83,000/- to the life assured. The life assured was further hospitalized on 25.12.2008 to 26.12.2008 at Yashoda Cancer Institute, Secunderabad and the said claim was rejected as per the clause 6(2) (a) i of terms and conditions of the said policy. The counsel for the opposite parties argued that the policy issued by the opposite parties is strictly governed by the terms and conditions of the policy and basing on the said terms and conditions the further claims were not paid to the life assured. Hence there is no deficiency of service on the part of the opposite parties and are not liable to pay any sum as claimed by the complainant.
32. As seen from the arguments, it is an admitted fact that the opposite parties have settled only part of the claim by paying a sum of Rs.83,000/- towards her first operation claim but no reason was assigned for the part payment and there is no mention of the balance claimed but obtained the signature of the policyholder/assured on the discharge voucher on 24-03-2009. Subsequently when the policyholder was advised by the doctors to go for second operation and further treatment for which she was again admitted in Yashoda Hospital from 19-02-2010 for chemo therapy treatments intermittently till her death i.e. 06-10-2010. For the said second operation and treatments, she has spent a sum of Rs.6,12,753.67 upto 05-08-2010 which is marked as Ex.A19. Further the policyholder has spent a sum of Rs.3,53,960.73 from 05-09-2010 to 06-10-2010 and the said bills were submitted later on by the complainant as the policyholder died on 06-10-2010. In the meanwhile after submitting of the second operation expenses by the policyholder, the opposite party has sent a cheque bearing No.752756 for a sum of Rs.2,000/- through their letter dt.10-07-2010, another cheque bearing No.754456 dt.10-07-2010 for Rs.2,000/- through their letter dt.12-07-2010, the same was received by the policyholder and returned the same to the opposite party vide letter dt.11-08-2010 requesting the opposite party to settle her total claim of Rs.6,12,753.67.
33. Later the 2nd opposite party acknowledging the receipt of the documents and records of the policyholder’s claim and sent another cheque bearing No.834833 dt.06-09-2010 for a sum of Rs.4,085/- vide their letter dt.06-09-2010 without giving any clarification with regard to the claim. The opposite parties after receiving first operation claim from the policyholder had paid only a sum of Rs.83,000/- and fell due by a sum of Rs.93,794/-. Further the second operation claim expenses incurred by the policyholder was kept pending by the 2nd opposite party and sent only a sum of Rs.4,000/- through cheques vide their letters dt.10-07-2010 which is marked as Ex.A16 and another letter dt.12-07-2010, which is marked as Ex.A17. This clearly shows that the 2nd opposite party after receiving first operation claim bills had settled the first claim by paying only part i.e. a sum of Rs.83,000/- and the balance was not paid to the policyholder and no reasons were assigned for the deduction of Rs.93,794/- towards first operation claim made by the policyholder. And further the 2nd opposite party has only acknowledged the receipt of the second operation claim vide their letter dt.07-09-2010, which is marked as Ex.A22 but without referring to the claim amount only mentioned that a cheque for Rs.4,085.92 was being sent, which was due to the policyholder and requested them to remit for discharging for clearance within 3 months from the date of issue. The above letter clearly discloses that the 2nd opposite party did not give any particulars with regard to the claim made by the policyholder. Further after the death of the policyholder, the husband of the deceased/policyholder and the present complainant has sent the bills with details incurred by the complainant from 05-09-2010 to 06-10-2010. But there is no response for the said requests made by the complainant. Only on 31-12-2010 the 2nd opposite party sent a letter stating that a cheque bearing No.834833 dt.06-09-2010 was sent towards the hospital care health claim with respect to the policy bearing No.08552528 and requested to encash the cheque within 90 days which is marked as Ex.A30. Subsequently as the claim of the complainant was not processed the complainant got issued a legal notice dt.09-03-2011, which is marked as Ex.A3 requesting the opposite parties to settle the claim.
34. After hearing the arguments of both sides and perusing the documents submitted by both side and advocate commissioner report admittedly there is no dispute with regard to the taking of the policy by the complainant’s wife. As seen from the document for the first claim made by the complainant’s wife the opposite parties have paid a sum of Rs.83,000/- for a claim of Rs.1,76,794/- and the first policy runs from 11.04.2008 to 10.04.2009. The second policy year starts from 11.04.2009 to 10.04.2010 and during this period the complainants wife has spent a sum of Rs.1,62,616.30 and made a claim for the same for which the opposite parties has sent two cheques of Rs.2,000/- each which were not encashed by the complainants and returned to the opposite parties.
35. As per the terms and conditions of the policy taken by the complainant’s wife the maximum limit payable for one policy year is 400 times of the DHCB (400x1000=4,00,000/-). The complainant has made a claim at the first instance in the first policy year for a sum of Rs.1,08,982.75 for which the opposite parties have settled the claim for a sum of Rs.83,000/- with the following calculation:
Plan Type : Plan A
Length of stay : 5 days
DHCB : Rs.5,000/-
ICU Benefit : 0
Surgical Benefit : Rs.75,000/- (Grade 3.75x1000)
Convalescence Benefit : Rs.3000/- (3x1000)
Total : Rs.83,000/-
But did not specify anything about the balance amount which has not been settled. And for the second policy year the complainant’s wife has spent a sum of Rs.1,62,616.30 for which the opposite parties has sent only Rs.4,000/- which was not encashed by the complainant and returned to the opposite parties. As per the terms and conditions of the policy which is marked as Ex.B1 it is clearly mentioned that the DHCB as per plan A opted by the complainant’s wife is Rs.1000/- per a day and the surgical benefit as per the treatment taken by the complainant’s wife is of grade III nature and as per grade III the DHCB is multiplied 75 times. Hence it comes to Rs.1000x75=75,000/-. This is the surgical benefit granted by the opposite parties and the convalescence benefit (CB) is paid three times of DHCB i.e., 3x1000=3000 and a sum of Rs.5000/- is granted towards DHCB for the 5 days stay i.e., 5x1000=5000/-.
36. As seen from Ex.B1 document in the terms and conditions the 6 condition is with regard to waiting period and as per the said term “At no point of time during the term of the policy any benefit shall be payable for the claim which occurs or where the signs and / or the symptoms of illness/condition for the claim has occurred within 3 months of policy issue date. This exclusion is not applicable where the claim occurs due to injuries caused by an accident”. As per this condition the complainant’s wife has taken the policy on 11.04.2008 and the cytopathology report is dt.21.11.2008 which clearly shows that as her Right Breast Lump is since six months in upper part deeply seated 3x3 cm whitish aspirate which is marked as Ex.B3 this is the lab report. And as per the advocate commissioner report in which the doctor who treated the complainant’s wife in his cross examination has said that he cannot say since how much period that she was suffering from swelling and stated that it is a typographical mistake to state that she was having cancer for six months. And further stated that the history was not recorded by him and not binding on him as he is not the author of the same. Further stated that the disease suffered by the patient falls under stage 3. And it is referred to stage 3 it cannot be called an advance stage in medical terminology. As seen from the discharge summary which is marked as Ex.X9 as per the chief complaint of the patient it is mentioned as a Lump in the Right Breast since three months. This clearly shows that the complainant’s wife was suffering from pain and swelling in her Right Breast Lump prior to her consulting the doctor’s at Yashoda Hospital. And it is pertinent to note here that no common person can suspect that he /she is suffering from cancer at the initial stages. And it is only after thorough testing and investigation by the doctors and only after biopsy it can be confirmed whether the patient is suffering from cancer or not. Hence in the instant case also the patient might not have the knowledge of suffering with cancer. Even as per the terms and conditions of the policy the waiting period is not payable when the claim is made within three months of the policy issue date. Whereas in the present case the complainant’s wife has taken the policy on 11.04.2008 and the diseased was diagnosed on 21.11.2008 as per the cytopathology report which is marked as Ex.B3. Hence the contention of the opposite parties cannot be considered as the date of issue of policy is 11.04.2008 and the confirmation of the disease is on 21.11.2008 there is a gap of seven months. Hence the condition No.6 cannot be considered.
37. As per the claim made by the complainant for the third policy year the total amount claimed by the complainant is Rs.7,73,343.32 but there is a ceiling of maximum amount payable in one policy year as per terms and conditions No.3 i.e., annual limit “ The aggregate of all the benefits payable in any one policy year under this policy shall not exceed an amount equivalent to 400 times the DHCB under the plan opted for the policyholder. As per this condition the complainant is not supposed to claim more than Rs,4,00,000/- in any one policy year. In the above circumstances as discussed above in the first policy year the complainant is eligible to make a claim for Rs.1,08,982.75 for which the opposite parties have paid a sum of Rs.83,000/- and the balance of Rs.25,982.75/- is to be paid towards the first operation in the first policy year but not Rs.93,794 as claimed by the complainant. And in the second policy year the complainant has made a claim for Rs.1,62,616.30 for which the opposite parties has sent only a sum of Rs.4,000/- by way of two cheques which was not encashed by the complainant and returned to the opposite parties. Hence the opposite parties are liable to pay the entire amount of Rs.1,62,616.30 towards the second policy year claim. And for the third policy year though the complainant has made a claim for Rs.7,73,343.32 as per the terms and conditions of the policy condition No.3 the annual limit is limited to Rs.4,00,000/- only. Hence, the opposite parties are liable to pay a sum of Rs.4,00,000/- only for the third policy year to the complainant..
38. In the above circumstances we are of the view that the opposite parties are jointly and severally liable to pay to the complainant a sum of Rs.25,982.75 towards the first policy year. Rs.1,62,616.30 towards second policy year, Rs.4,00,000/- towards the third policy year which comes Rs.5,88,599.05. Further the opposite parties have failed to settle the claim of the complainant and the complainant has to mentally suffer a lot due to none settlement of the claim for which the opposite parties are liable to pay a sum of Rs.1,00,000/- towards mental agony.
39 POINT NO.2 - In the result, the complaint is partly allowed by directing the opposite parties 1& 2 jointly and severally liable to pay to the complainant a sum of Rs.5,88,599.05 towards the claims made by the complainant in the three policy years. And a sum of Rs.1,00,000/- is awarded towards mental agony and the said amounts are payable within one month from the date of this order failing which interest shall be paid @ 9% P.A. from the date of this order.
Dictated to the Steno, transcribed by him, corrected and pronounced by us in open Forum, this the 07th day of January, 2015.
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LADY MEMBER, PRESIDENT MALE MEMBER
DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM
ANANTHAPURAMU ANANTHAPURAMU ANANTHAPURAMU
APPENDIX OF EVIDENCE
WITNESSES EVIDENCE ON CHIEF AFFIDAVITS
ON BEHALF OF THE COMPLAINANT:
PW1: K. Aswarthanarayana complainant.
PW2: Authorized Person Yashoda Hospitals, Secunderabad.
PW3: Dr.K.Srikanth, Surgical Oncologist, Yashoda Cancer Institute, Hyderabad,
examined on 04.11.2014.
ON BEHALF OF THE OPPOISITE PARTIES
RW1: U.Narayana S/o Sethanna, Working as Branch Office In charge ICICI Prudential
Life Insurance Company Limited, Ananthapuramu.
-NIL-
EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT
Ex.A1 Photo copy of insurance policy bearing No.08552528 issued by the
2nd opposite party in favour of deceased P.Pushpalatha.
Ex.A2 Photo copy of certificate dt.27.12.2008 issued by Dr. K.Sreekanth,
Yashoda Hospital,Secunderabad.
Ex.A3 Photo copy of certificate dt.07.02.2009 issued by Dr.Nagandar Kalar,
Yashoda Hospital, Secunderabad.
Ex.A4 Letter dt.24.02.2009 issued by the 2nd opposite party to the deceased
P.Pushpalatha.
Ex.A5 Photo copy of cheque bearing No. 136566 dt.23.03.2009 for Rs.83,000/- issued by the 2nd opposite party in favour of deceased P.Pushpalatha.
Ex.A6 Photo copy of discharge voucher given by the deceased P.Pushpalatha to the 2nd opposite party.
Ex.A7 Photo copy of pre authorization request form submitted by the
complainant to the opposite parties.
Ex.A8 Photo copy of letter 22.04.2009 sent by the deceased P.Pushpalatha to
the 2nd opposite party.
Ex.A9 Photo copy of details of expenditure incurred treatment of deceased
P.Pushpalatha at Yashoda Hospital, Secunderabad.
Ex.A10 Receipt issued by the DTDC dt.22.04.2009 in favour of the deceased
P.Pushpalatha.
Ex.A11 Receipt issued by the DTDC dt.22.04.2009 in favour of the deceased
P.Pushpalatha.
Ex.A12 Photo letter dt.04.06.2009 sent by the deceased P.Pushpalatha to the
2nd opposite party
Ex.A13 Photo letter dt.13.07.2009 sent by the deceased P.Pushpalatha to the
2nd opposite party
Ex.A14 Receipt issued by the DTDC dt.14.07.2009 in favour of the deceased
P.Pushpalatha.
Ex.A15 Letter dt.17.07.2009 issued by the 2nd opposite party to the deceased
P.Pushpalatha
Ex.A16 Letter dt.10.07.2010 sent by the 2nd opposite party to the deceased
P.Pushpalatha.
Ex.A17 Letter dt.12.07.2010 sent by the 2nd opposite party to the deceased
P.Pushpalatha.
Ex.A18 Photo copy of letter dt.11.08.2010 sent by the complainant to the
2nd opposite party.
Ex.A19 Photo copy of details of expenditure incurred in respect of deceased
Pushpalatha at Yashoda Hosopital, Secunderabd.
Ex.A20 Receipt issued by the DTDC dt.14.08.2010 in favour of the deceased
P.Pushpalatha.
Ex.A21 Letter dt.07.09.2010 sent by the 2nd opposite part to the deceased
P.Pushpalatha.
Ex.A22 Letter dt.07.09.2010 sent by the 2nd opposite part to the deceased
P.Pushpalatha.
Ex.23 Photo copy death certificate relating to deceased P.Pushpalatha issued by
Greater Hyderabad, Municipal Corporation.
Ex.A24 Photo copy of letter dt.15.11.2010 issued by the 2nd opposite party to the
deceased P.Pushpalatha.
Ex.A25 Photo copy of letter 15.11.2010 sent by the complainant to the
2nd opposite party.
Ex.A26 Receipt dt.20.11.2010 issued by DTDC to the complainant.
Ex.A27 Photo copy of letter dt.28.02.2010 sent by the complainant to the
2nd opposite party.
Ex.A28 Receipt dt.28.10.2010 issued by DTDC to the complainant.
Ex.A29 Receipt dt.28.10.2010 issued by DTDC to the complainant.
Ex.A30 Photo copy of letter dt.31.12.2010 sent by the 2nd opposite party to the
deceased P.Pushpalatha.
Ex.A31 Photo of family members’ certificate relating to the complainant issued by
Tahsildar Anantapur dt.11.11.2010.
Ex.A32 Office copy of legal notice dt.09.03.2011 got issued by the complainant to
the opposite parties 1 & 2.
Ex.A33 & A34 postal receipt dt.09.3.2011.
Ex.A35 Postal acknowledgement signed by the 1st opposite party.
Ex.A36 Photo copy of renewal premium receipt related to deceased P.Pushapalatha issued by the 2nd opposite party.
Ex.A37 Photo copy of premium deposit receipt relating to deceased P.Pushapalatha issued by the 2nd opposite party.
EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTIES
Ex.B1 True copy of proposal form.
Ex.B2 True copy of policy along with terms and conditions.
Ex.B3 True copy of hospital reported dt.21.11.2008 issued by Yashoda Hospital.
Ex.B4 True copy of repudiation letter dt.30.01.2009 issued by the opposite
parties to Pushpalatha
Ex.B5 True copy of letter dt.02.05.2011 issued by the opposite parties to
counsel for the complainant.
EXHIBITS MARKED ON BEHALF OF THE FORUM
Ex.X1 Commissioner warrant dt.06.08.2012 issued by this Forum.
Ex.X2 Photo copies of affidavit and petitioner filed by the complainant for appointment of commissioner.
Ex.X3 Notice issued by advocate commissioner to both parties.
Ex.X4 Postal receipts.
Ex.X5 Deposition of PW2.
Ex.X6 & 7 Final bill statement issued by Yashoda Hospital, Secunderabad.
Ex.X8 Photo copy of Chief examination of PW2 submitted by the advocate
commissioner.
Ex.X9 Report of Advocate commissioner.
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LADY MEMBER, PRESIDENT MALE MEMBER
DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM, DISTRICT CONSUMER FORUM
ANANTHAPURAMU ANANTHAPURAMU ANANTHAPURAMU
