The case of the complainant is that he took a Mediclaim insurance policy firstly on 06.10.2012 under the name and style as “Paribar Mediclaim Policy” being policy No. 153600/48/12/8500005092 from the office of the OP No.2 through the OP No.3 in collaboration with the OP No.4 by paying of Rs.8219/- as premium which was valid from 05.10.2012 to 04.10.2013 and sum insured of Rs.2,00,000/- and being diabetic patient this complainant paid extra load of 10% over the said policy. This complainant again took another mediclaim insurance policy as above on 05.10.2013 being policy No.153600/48/12/8500005892 from the OP No.2 office through the OP No.3 in collaboration with the OP No.4 by paying of Rs.8219 as premium which was valid from 05.10.2013 to 04.10.2014 and sum insured of Rs.2,00,000/- and being diabetic patient the complainant paid extra load of 10% over the said policy. Suddenly the complainant suffered acute pain in his chest and then he was advised to conduct Angiogram and hospitalized on 12.06.2014 at B.M.Birla Heart Research Centre at Kolkata and discharged on 14.06.2014 and subsequently admitted on 18.06.2014 and discharged on 03.07.2014 to conduct heart operation. For his treatment a sum of Rs.250,000/- was expensed in two phases. During the admission of hospital this complainant applied before the Medsave Health care TPA Ltd for cashless of the said coverage of the deceased but the said OP No.4 rejected the claim of the complainant due to pre-existing diseases. The complainant filed a complaint dated 05.01.2015 before the OP No.2 office for disbursing the amount incurred for treatment of his disease under the coverage of the policy. The said office by a letter dated 28.10.2014 sent a letter to this complainant for repudiating the claim of the complainant under mediclaim policy, no claim as per policy condition 4.1. Then he wrote another letter to the OP No.1 dated 10.12.2014 for reconsideration of his claim who on his turn replied vide letter dated 22.01.2015 by opining that the OP No.2 rightly adjusted and repudiated. Getting no alternative this complainant filed the instant complaint before this Forum for redresssal as prayed in the prayer portion of the complaint petition.
The OP No.1&2 by filing written version denied the allegation as leveled against them and averred that the complainant took a Parivar Mediclaim Policy being no.153600/48/12/8500005092 valid from 05.10.2012 to 04.10.2013 and by additional premium the complainant took coverage of diabetics but he did not take coverage of hypertension as pre existing by paying additional premium. The policy was a policy for Sushanta Das, his wife, Shampa Das and his son, Spandan Das where the floater sum insured was Rs.200000/-. The said policy was renewed in due time being no.153600/48/12/8500005199 valid from 05.10.2013 to 04.10.2014 with the same floater sum insured of Rs.200000/-. He further averred that by making payment of additional premium at the inception the insured took coverage of diabetics as pre-existing disease but he did not take coverage of hypertension by making payment of additional premium. The panel of doctors of TPA following the papers of insured in the view that he was suffering from chest pain, heaviness and SOB on exertion for last one year and had past history of hypertension and diabetics. Coverage of diabetics was taken but coverage for hypertension as pre-existing disease was not taken. As the hypertension which was the basic cause of heart disease was pre-existing before the inception of the first policy no claim for heart surgery was admissible under clause 4.1 of the policy because the pre-existing disease will be covered only after four continuous claim free policy years as explicitly stipulated in exclusion clause no.4.1 of the said policy and accordingly the TPA rejected the claim. The floater sum insured in the policy under which the claim has been lodged was Rs.200000/- but the entitlement of the reimbursement was always subject to the capping as clearly provided in the policy terms and conditions. As per policy condition there is capping for bed room charges which is 1% of the sum insured per day for general bed and 2% of sum insured per day for ICU and room charges shall include nursing care, RMO charges, IV fluids/ blood transfusion/ injection administration charges. Besides other cappings the main capping of “Parivar Mediclaim” policy is that company’s liability would arise if the treatment of the disease or injury contacted /suffered is incepted during the policy period & total expenses incurred for anyone illness is limited to 50% of sum Insured per family, as clearly stipulated in condition no.1 and the company’s liability is limited to Rs.1,00,000/- subject to other cappings.
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.
The OP filed evidence on affidavit in which he assailed that from the discharge summary of B.M.Birla Heart Research Centre it is clear that the claimant had a history of heart disease and he was taking injection Penegra which is used for the prolonged treatment of heart disease and the complainant used to take Clopitab which prevents blood clotting. And it is clear that the petitioner was a patient of heart disease before taking insurance policy. The hypertension which is the basic cause of heart disease was pre-existing before the inception of the first policy, no claim for heart surgery was admissible under clause No.4.1 of the policy because the pre-existing disease will be covered only after four continuous claim free hears as explicitly stipulated in exclusion clause No.4.1 of the said policy and accordingly the TPA rejected the claim.
Both sides filed written notes of argument which are taken into consideration for passing final order.
Argument as advanced by the agent of the complainant and OPs heard in full.
From the discussion herein above, we find the following Issues/Points for consideration.
ISSUES/POINTS FOR CONSIDERATION
1. Whether the Complainant Sushanta Das is a ‘Consumer’ of the opposite party?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?
4. Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
DECISION WITH REASONS
In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.
- Whether the Complainant Sushanta Das is ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986.The complainant herein being the customer of the OP insurance company and OP No.1&2 are the service provider, OP No.3 is the agent of the OP insurance and the Op No.4 is the TPA through which the claims are settled., so being consumer he is entitled to get service from the OP .
(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
Both the complainant and opposite parties are residents/carrying on business within the district of Hooghly. The complainant prayed for a direction upon the OP No.2 to pay Rs.200000/- for coverage of the policy and compensation amounting to Rs.10000/- for mental pain and agony and Rs.15000/- for litigation cost other reliefs as this Forum deems fit and proper, ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainants?
The opposite party being the largest Insurance Company of the Nation associated with the insurance of a lot of people of throughout the whole nation since a long back with self generated assets i.e. goodwill of the business. So, the credibility of the OP Insurance Company is unquestionable and that is why the complainant insured his life before the said company without anydoubt. It is well settled proposition of law that a contract of insurance is based on the principles of utmost good faith-uberrimae fidei applicable to both the parties. The rule of nondisclosure of material facts vitiating a policy still holds the field. The bargaining position of the parties in a contract of insurance is unequal. The insured knows all the facts, the insurer is unaware of anything which may be material to the risk. Very often, it is the insured who is the sole person who has this knowledge. The insurer may not even have the means to find out facts which would materially affect the risk. The law, therefore, enjoins on the insured an absolute duty to disclose correctly all material facts which is within his/her personal knowledge or which he ought to have known had he made reasonable inquiries. A contract of insurance, therefore, can be repudiated for non disclosure of material facts.
The expression “material fact” is not defined in the Insurance Act,1938 and therefore, as observed by the Supreme Court in Satwant Kaur Sandhu -vs- New India Assurance Company Ltd. 2013 (3) CPR 644 (sc),it has to be understood 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” and if the proposer has knowledge of such fact, he is obliged to disclose it, particularly while answering questions in the proposal form. Any inaccurate answer will entitle the insurer to repudiate their liability because there is clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance.
That the observation of the Apex court in Satwant Kaur’s case as :-
“thus it needs little emphasis that when an information on specific aspect is asked for in the proposal form, an assured is under solemn obligation to make a true and full disclosure of the information on the subject which is within his /her knowledge. It is not for the proposer to determine whether the information sought for is material for the purpose of the policy or not. Of course, obligation to disclose extends only to facts which are known to the applicant and not to what he ought to have known. The obligation to disclose necessarily depends upon the knowledge one possesses.”
The case of the complainant is that he took a Mediclaim Insurance policy firstly on 06.10.2012 under the name and style as “Paribar Mediclaim Policy” being policy No. 153600/48/12/8500005092 from the office of the OP No.2 through the OP No.3 in collaboration with the OP No.4 by paying of Rs.8219/- as premium which was valid from 05.10.2012 to 04.10.2013 and sum insured was Rs.2,00,000/- and being diabetic patient this complainant paid extra load of 10% over the said policy. This complainant again took another mediclaim insurance policy as above on 05.10.2013 being policy No.153600/48/13/8500005199 from the OP No.2 office through the OP No.3 in collaboration with the OP No.4 by paying of Rs.8219 as premium which was valid from 05.10.2013 to 04.10.2014 and sum insured of Rs.2,00,000/- and being diabetic patient the complainant paid extra load of 10% over the said policy. Suddenly the complainant suffered acute pain in his chest and then he was advised to conduct Angiogram and hospitalized on 12.06.2014 at B.M. Birla Heart Research Centre at Kolkata and discharged on 14.06.2014 and subsequently admitted on 18.06.2014 and discharged on 03.07.2014 to conduct heart operation. For his treatment a sum of Rs.2,50,000/- was expensed in two phases. During the admission of hospital this complainant applied before the Medsave Health care TPA Ltd for cashless of the said coverage of the deceased but the said OP No.4 rejected the claim of the complainant due to pre-existing diseases. Complainant in his written argument assailed that the doctor of B.M.Birla Heart Research Centre opined that hypertension started one year ago but blood pressure on that date was 
. In the age group of 50-54 years the normal blood pressure is 
and pre hypertension stage is 
. The age of the complainant was at the time of admission in the B.M.Birla Heart Reaserch Centre 52 years, it was not hypertension according to age of the complainant and it is quite normal and pre hypertension stage. Hypertension started after in the said age group as per medical norms which has been given as per vive health website. He further assailed that injection Penegra is used for saving the Kidney and the Clopitab is used for Cholesterol not to prevent blood clotting.
The OP No.1&2 denied the allegations as leveled against them and averred that the complainant took a Parivar Mediclaim Policy being no.153600/48/12/8500005092 valid from 05.10.2012 to 04.10.2013 and by additional premium the complainant took coverage of diabetics but he did not take coverage of hypertension as pre existing by paying additional premium. The policy was a policy for Sushanta Das, his wife, Shampa Das and his son, Spandan Das where the floater sum insured was Rs.200000/-. The said policy was renewed in due time being no.153600/48/12/8500005199 valid from 05.10.2013 to 04.10.2014 with the same floater sum insured of Rs.200000/-. He further averred that by making payment of additional premium at the inception the insured took coverage of diabetics as pre-existing disease but he did not take coverage of hypertension by making payment of additional premium. The panel of doctors of TPA following the papers of insured in the view that he was suffering from chest pain, heaviness and SOB on exertion for last one year and had past history of hypertension and diabetics. Coverage of diabetics was taken but coverage for hypertension as pre-existing disease was not taken. As the hypertension which was the basic cause of heart disease was pre-existing before the inception of the first policy no claim for heart surgery was admissible under clause 4.1 of the policy because the pre-existing disease will be covered only after four continuous claim free policy years as explicitly stipulated in exclusion clause no.4.1 of the said policy and accordingly the TPA rejected the claim. The floater sum insured in the policy under which the claim has been lodged was Rs.200000/- but the entitlement of the reimbursement was always subject to the capping as clearly provided in the policy terms and conditions. As per policy condition there is capping for bed room charges which is 1% of the sum insured per day for general bed and 2% of sum insured per day for ICU and room charges shall include nursing care, RMO charges, IV fluids/ blood transfusion/ injection administration charges. Besides other cappings the main capping of “Parivar Mediclaim” policy is that company’s liability would arise if the treatment of the disease or injury contacted /suffered is incepted during the policy period & total expenses incurred for anyone illness is limited to 50% of sum Insured per family, as clearly stipulated in condition no.1 and the company’s liability is limited to Rs.1,00,000/- subject to other cappings.
Perused the case record, documents, evidence and hearing the arguments it appears that the claim of the complainant was repudiated by the OP insurance company on the ground that he was suffering from pre-existing disease and the life assured suppressed his suffering in the policy Form so it is breach of terms and condition on the part of the complainant. The discharge summary of B.M.Birla Heart Research Centre, dated 12.06.2014 reflects that the complainant is suffering from Diabetics Mellitus for 2 years and Hypertension for 1 yr. By collecting the discharge summary of B.M. Birla Heart Research Centre regarding the treatment of the life assured the OP investigated the claim of the complainant and repudiated claim on the pretext that he suppressed his suffering in the proposal Form. And banking upon the discharge summary the OP repudiated the claim of the complainant on flimsy ground that the life assured prior to taking the insurance policy was suffering from hypertension which leads to heart disease and he suppressed those disease while taking the policy from the OP. It appears from the information of the claim of the complainant that he has done angiogram before the B.M.Birla Heart Research Centre, Kolkata from 12.06.2014 to 14.06.2014 and thereafter he done CABG before the said hospital. Now it is a matter of discussion that the complainant was suffering from diabetes mellitus and he informed regarding his suffering to the OP insurance company while taking policy and paid extra premium but why he concealed the suffering of hypertension if he was well aware of the disease. The insured person is fully aware of the fact of extra load of 10% if he is suffering from either Diabetes or Hypertension and 25% of the admissible claim amount in case suffering from both Diabetes and Hypertension so he agreed to pay extra premium as he was aware of his suffering and he had knowledge of fate of breach of condition. After perusing the documents and going through the averments of the both sides that the complainant was not suffering from hypertension and there was no contributory cause of heart problem, the cause of heart disease has been occurred suddenly. Moreover, nobody knows when she/he will suffer from any kind of sudden pain or disease requiring treatment/operation. In the instant case the OP could not file any previous prescription of any doctor prior to taking out insurance policy that the life assured borne any symptoms or sickness relating to his disease and he was consuming medicine for the recovery.
We do not find suppression of any material fact by the insured in the proposal form and OP has committed deficiency in repudiating claim on flimsy grounds.
Had he been suffering from heart problem prior to acceptance of policy then what was his problem to receive treatment from date of knowledge of suffering. No one would like to remain without treatment when he has sufficient funds to take treatment.
During the period of argument the advocate on behalf of the OP assailed that the discharge summary of the treating hospital clearly depicts that the complainant was suffering from hypertension which leads to heart problem. Any person suffering from hypertension may or may not be heart patient.
Merely because one is having hyper tension may be without his knowledge, it cannot be said that ultimately he will suffer from heart disease. There is no material in the record to show that in any proposal form, it was concealed or mentioned by the LA that he was suffering from hypertension. There is no material to show that there was any earlier treatment in respect of any hypertension/ heart problem. In absence of any treatment paper, no court/Forum can hold that there was some earlier pre-existing disease which was concealed by the complainant while making proposal for the insurance cover. Thus the defense which has taken by the OP Company was having no legs to stand, so it is deserved to be discarded by this Forum.
It was pleaded on behalf of the complainant that if an insured is not aware of an ailment he may be suffering, nondisclosure thereof does not tantamount to suppression of material fact.
No documents in respect of treatment of the complainant before the acceptance of Proposal Form are in the case record which corroborates that the complainant has been suffering from hypertension which leads to his heart operation. The OP failed to produce such document to deny the claim of the complainant that during the acceptance of proposal Form LA supplied the correct information regarding his health.
So the life assured was unaware of his disease whether he was suffering from hypertension and his illness at the material point of time i.e. taking the insurance policy does not arise. He was not aware whether he will suffer from heart problem in the future and he/ his nominee have to make claim before the Insurance Company for which the Insurance Company by repudiating his/complainants claim destructed the myth of utmost on good faith.
Upon consideration of the evidence adduced by the parties, this Forum observed that the Insurance Company had failed to bring on record any proof in support of their plea that the life assured was suffering from any pre-existing disease at the time of obtaining the policy, there was no evidence to prove that the deceased was ever admitted for any treatment in a hospital for the alleged pre-existing disease at the time of obtaining the policy, there was no evidence to prove that the deceased was ever admitted for any treatment in a hospital for the alleged pre-existing disease and that the medical evidence relied upon by the Insurance Company was neither supported by any corroborative evidence nor did it prove that the said treatment had any nexus with the cause of heart problem. Every person may suffer from normal diseases like acidity, fever, common cold and indigestion which does not lead to heart problem or cancer. So the discharge summary of the hospital have no relevancy of suffering from pre-existing disease prior to receiving the policy but OP insurance company used the said note of discharge summary only to evade the responsibility of paying the claim. This should not be the intention of the organisation who has been established for the purposes of benefit of the public. This Forum thus came to the conclusion that there was no suppression of any material fact by the life assured and therefore, in repudiating the claim of the complainant, there was deficiency of service on the part of the Insurance Company, causing great hardship, financial loss and mental agony to the complainant.
So we are in a considered opinion to allow the complaint as policy holder was not suffering from any pre-existing disease which he suppressed when he signed the policy proposal of this OP Insurance Company and OP could not prove the same. We direct the OP Insurance Company i.e. the OP No.1&2 to pay the claim amounting to Rs.200000/- against the policy being no 153600/48/13/8500005199, a sum of Rs.10000/- for mental pain, agony and harassment and another Rs.10000/- for litigation cost. The OP No.3 & 4 are exonerated from the proceeding as their liability in respect of deficiency of service is not proved.
4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant has abled to prove his case and the Opposite Party No.1&2 are liable to pay the ordered amount.
ORDER
Hence, it is ordered that the complaint be and the same is allowed on contest against the Opposite Party No.1 &2 with a litigation cost of Rs.10,000/-.
The whole gamut of the facts and circumstances leans in favour of the complainant. We, therefore, allow the complaint and Opposite Party No.1&2 are directed to pay the assured sum amounting to Rs.200000/- to this complainant within 45 days from the date of order.
The OP No.1&2 is also directed to pay a sum of Rs.10000/- as compensation to this complainant for mental pain, agony and harassment.
At the event of failure to comply with the order the Opposite Party No.1&2 shall pay cost @ Rs.100/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer legal Aid Account.
Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.
Dictated and corrected by me.
