Tamil Nadu

North Chennai

CC/48/2021

S.Chakrapani - Complainant(s)

Versus

The Manager, Religare Health Insurance Company Ltd - Opp.Party(s)

M/s.N.S.Nageswaran

31 Aug 2023

ORDER

 Complaint presented on :19.02.2021

 Date of disposal            :31.08.2023

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (NORTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 600 003.

 

                PRESENT : THIRU. G. VINOBHA, M.A., B.L.,                          :PRESIDENT

                                      TMT. KAVITHA KANNAN, M.E.,                         : MEMBER-I

                                      THIRU.V.RAMAMURTHY,B.A.,B.L.,PGDLA., :MEMBER-II

 

C.C. No.48/2021

 

               DATED THURSDAY THE 31^ST DAY OF AUGUST 2023

S.Chakrapani,

S/o.B.S.Sriramulu Naidu,

205, Q Block, Kannadasan Street,

MMDA Colony, Arumbakkam,

Chennai-600 106.

 

                                                                                                …..Complainant

 ..Vs..

1. The Manager,

Religare Health Insurance Company Ltd.,

FF-A, Armenian Center,

NO.94,(Old No.71) Armenian Street,

George Town, Chennai-600 001.

 

2. The Manager,

Religare Health Insurance Company Ltd.,

Vipul Tech Square, Tower C,

3^rd Floor, Golf Course Road,

Sector-43, Gurugram-122 009.

                                                                                      …..Opposite Parties.

Counsel for Complainant                     : M/s.N.S.Nageswaran and 2 others

Counsel for opposite parties 1 & 2        : M/s.M.B.Gopalan Associates.

 

ORDER

THIRU. G. VINOBHA, M.A., B.L.,         :PRESIDENT

This complaint has been filed by the complainant against the opposite parties under section 35 of the Consumer Protection Act, 2019 prays to direct the opposite parties to pay the medical expenses incurred by the complainant for amount of Rs.778580/- together with an interest @ 18% p.a. from December 2018 to until repayment and to pay Rs.5 lakhs compensation for the deficiency in service by the opposite parties and to pay Rs.5 lakhs compensation for the resultant mental agony and pain caused by the opposite parties and to pay Rs.5 lakhs for the unfair trade practice by the opposite parties and to pay Rs.50000/- as the cost of this complaint.

1.THE COMPLAINT IN BRIEF:

          The complainant submits that the 1^st Opposite party approached him with the proposal of Insurance policy in the year of 2013, all the forms and other details were filled by the representative of the 1^st opposite party. At the time of inception of the policy, the complainant clearly informed the 1^st opposite party that his wife is a diabetic patient and with all the existing diseases were disclosed and after paying the policy amount of Rs.9505/- by the complainant the policy was issued infavour of the complainant and others, policy bearing No. 10012058 dated 31.01.2013. The complainant submits that he had signed the application as per the instructions of the 1st opposite party. The complainant has taken health insurance policy for himself, his spouse, daughter and son namely 1.S.Chakrapani (Complainant) 2. Late C. Mahalakshmi Wife of Complainant, 3. S.C. Ruthika Vaisnavi, daughter of the Complainant and 4. S.C. Nitiessh Baradwaj, son of the Complainant dated 31.01.2013 vide the Policy No 10012058 for a sum assured amount of Rs. 2,00,000/- and subsequently, it has been renewed without any break by enhancing the Policy for the sum assured amount of Rs. 3,00,000/- up to 03/03/2019. The complainant wife Late C. Mahalakshmi was fallen sick and was admitted on 02.11.2018 at SIMS Hospital, Vadapalani, Chennai 600 026 with the complaint of peripheral Vascular Disease, DM, SHT Diabetic Nephropathy, Hypothyroidism Gangrene Right Great Toe 2nd 4th and 5th toes and for which they performed surgery and amputated the right 2nd, 4th and 5th toe. After surgery the complainant wife was discharged on 03.11.2018 and subsequently she was admitted on 08.11.2018 at SIMS Hospital for the same complaint and died on 28.11.2018 and the cause of death Sudden Cardiac Arrest with Abnormal TB. The Complainant submits that the staff of the 1^st opposite party approached the Complainant and gave false information/promise that the 1^st Opposite party can render good services before and after sales of the said Health Insurance Policy. But in contra he misrepresented and mislead the complainant before and after the sale of the policy. The 1st Opposite party has not turned up to the complainant even after many attempts made by the Complainant to approach the 1st Opposite Party. When the Complainant approached 1^st Opposite Party (the company) for the claim of Rs. 58,580/- and Rs. 7,20,000/- towards the hospital expenses of his wife late C. Mahalakshmi, the 1^st Opposite Party left the complainant in aloof. The Complainant submits that the 1^st Opposite party rejected the above said claim vide letter dated 28.02.2019 in accordance with non discloser of material fact/preexisting ailment at the time of proposal. It is pertinent to note that the complainant very well informed to the 1st Opposite party about pre existing disease of the complainant wife at the time of taking the policy. The 1^st Opposite party by giving false information to the Complainant with intention to sell the Medical Insurance the policy and collected a sum of Rs. 9,505/- from the complainant, knowing the existing diseases the 1^st Opposite party representative filled the application by suppressing the real facts and obtained the signature of the Complainant in the application form. The 1^st Opposite Party stereophonically rejects all the claims. The complainant further states that along with the policy certificate issued on 31.01.2013 a key policy information was attached in the key policy information it is clearly mentioned in clause 4.1(c) for pre Preexisting diseases as per Medi claim insurance policy for individual that is any ailments /dieses/injuries/health condition which are pre existing (Treated/Untreated, declared/ not declared in the proposal form, when the cover incepts for the first time or excluded up to 4 years (48Months) form the date of policy being in force continuously. The complainant submits the policy holder has taken the policy in the year of 2013 and continuously paying the yearly premium for the said Health Insurance Policy till 2019 even after the death of the complainant wife which occurred on 28.11.2018 without any break. This itself clearly evident that the complainant, his wife and children are insured with the Opposite parties for the period more than six years, according to the terms and condition of the policy all the existing decease also will be covered by the policy on completion of the 4 years from the inception of the policy. Without considering the above said ground the claim application was rejected by the opposite party. The Complainant submits that he preferred a complaint before the office of the insurance ombudsman (Tamil Nadu & Puducherry) Chennai for the claim of Rs. 7,78,580/- the same was dismissed by award No. 10/CHN/AHI/0048/2019-2020, dated 29th October 2019, that is on the grounds of that insured person was suffering from Diabetes Mellitus prior to policy inception, therefore the Ombudsman as come to the opinion that the insurer has rightly rejected the claim on the ground of non-disclosure of pre-existing disease. Which is against the Mediclaim Insurance policy in clause 4.1 of the Mediclaim. Policy rules is very clear any pre existing diseases even not disclosed at the time of inception of the policy in clause 4.1 (c) clearly states regarding pre existing diseases that is any ailments /diseases/injuries/health condition which are pre existing (Treated/ Untreated, declared/ not declared in the proposal form, when the cover incepts for the first time or excluded up to 4 years (48Months) from the date of policy being in force continuously. The complainant submit that the Opposite Parties contended that the one of the insured person suffering from Type 1 Diabetes which was not disclosed to the insurer and non-disclosure of the same led to the cancellation of floater policy with respect to the all the members, without refund of premium. The policy covered for the four persons not only to wife of the complainant; hence cancellation of the floater polity with respect to the all members is invalid before the eye of law. The Complainant submit that his wife had died on 28/11/2018, due to the sudden cardiac arrest the same was very well established by the complainant by medical records, the Opposite parties admitted the same. But the Opposite parties and the The Insurance Ombudsman, State of Tamil nadu and puducherry were not considered the fact and merit of the case, the Opposite parties and the Insurance Ombudsman enquired the matter with the predetermination mind to reject the claim application without considering the tenure of the policy and clasue 4.1 (c) of the policy. Therefore the above said view the deficiency in service will attract against the Opposite parties, liable to pay compensation for the pain and suffering and me agony caused to the complainant. Therefore all the acts of the Opposite Parties constitute deficiency in service and unfair trade practice. Hence the complainant is entitled to claim the entire amount of Rs.7,78,580/- together with the interest of 18% per annum and Rs. 5 Lakhs as compensation for the deficiency in service, Rs. 5 Lakhs for mental Agony and Rs. 5 Lakhs for unfair trade practice committed by the Opposite Parties.

2.WRITTEN VERSION FILED BY THE 1^st OPPOSITE PARTY ADOPTED BY 2^ND OPPOSITE PARTY IN BRIEF:

          The opposite parties denies all the allegations and averments made in the complaint except those that are specifically admitted.  The complaint filed by the complainants was false, frivolous and vexatious and is as such liable to be dismissed. The opposite Parties submit that the Complainant availed Care Floater Policy No. 10012058 covering himself, his wife, daughter and son. The said Policy was initially issued for the period 31.01.2013 to 30.04.2014 and yearly renewed with last period of renewal being 04.03.2018 to 03.03.2019 for a sum insured of Rs. 3,00,000/-, The Opposite Parties submit that coverage under the said Policy is strictly subject to terms, conditions and exclusions. Copy of the Policy Certificate along with the Policy Terms and conditions. The Complainant's wife died on 28.11.2018 due to cardiac arrest and the Complainant made 2 claims for Rs.58,580/- and Rs. 7.78,580/- in respect of hospitalization expenses incurred for his wife's treatment at SIMS SRM Hospital from 02.11.2018 to 03.11.2018 and from 08.11.2018 to 28.11.2018. Upon investigation of various documents including discharge summary. IP referral Request Sheet dated 18-11-2018 of SIMS Hospital, Doctor's Progress Notes dated 02-11- 2018. OP Prescription sheet dated 21-06-2017 of Apollo Hospital, In patient Discharge summary dated 09-12-2010 and 29-04-2011 of Sundaram Medical Foundation, it was discovered that the Complainant's wife was suffering from Diabetes Mellitus and was administered Insulin for the same prior to policy inception, which was not disclosed in the Proposal dated 29.01.2013 at the time of Insurance. The Proposal contained a specific question- "Does any Proposed Insured currently or in diagnosed suffered/treated taken medication for any of the following conditions If yes please provide details in the C Diabetes e additional information section below Has anyone been diagnosed hospitalized or under any treatment for any illness/injury during the last 48 months?" to which answer was marked as No Copy of the IP referral Request Sheet dated 18-11-2018 of SIMS Hospital, Doctor's Progress Notes dated 02-11-2018 an Op Prescription sheet dated 21-06-2017 of Apollo Hospital and In patient Discharge summary dated 09-12-2010 and 29-09-2011 of Sundaram Medical Foundation. Copy of the Proposal form dated 29.01.2013. The Opp. Parties submit that above non-disclosure of Diabetes at the time of Insurance is in contravention and violation of Condition No. 6.1 of the Policy (extracted below) which imposes a Duty of Disclosure and relieves Insurer from liability in case of Non-disclosure of any material information. "If any untrue or incorrect statements are made or there has been a misrepresentation, mis-description or non-disclosure of any material particulars or any material information having been withheld or if a Claim is fraudulently made or any fraudulent means or devices are used by the Policyholder or the Insured Person or any one acting on his their behalf, the Company shall have no liability to make payment of any Claims and the premium paid shall be forfeited to the Company" Thereafter vide letters dated 11.03.2019 and 30.03.2019, the Opp.Parties cancelled the Policies invoking Condition No.6.13 of the Policy which reads as follows: "The Company may at any time, cancel this Policy on grounds as specified in Clause 6.1. by giving 15 days notice in writing by Registered Post Acknowledgment Due recorded delivery to the Policyholder at his last known address". The Opp.Parties submit that a Contract of Insurance fundamentally is a contract of ubbarime fidei, a contract of utmost good faith. The Insured has a duty of disclosure of facts material to the Contract within his knowledge to the Insurer and non-disclosure of the any information could result in the contract becoming void thereby entitling insurer to deny liability under policy which is fortified by the condition. The opposite parties submit that it is the complainant who has failed in his duty of disclosure regarding his wife suffering from diabetes mellitus despite specific question in the proposal and the opposite parties cannot be blamed for complaint’s non disclosure.  The policy terms and conditions are binding on both the parties and opposite parties having acted bonafide in accordance with the same in cancelling the policy have not committed any deficiency in service.

3. POINTS FOR CONSIDERATION:

1.Whether there is any deficiency in service on the part opposite part 1 & 2 as alleged in the complaint?

 

2. Whether the complainant is entitled for the reliefs prayed in the

    complaint.  If, so to what extent?

 

The complainant filed proof affidavit and documents Ex.A1 to A11 are marked on their side and written arguments.  The opposite parties 1 & 2 written version & proof affidavits and Ex.B1 to B7 documents are marked on the opposite party side.

4. POINT NO :1:-

                    The fact that the complainant had taken health insurance policy for himself his wife, daughter and son with the 1^st opposite party in vide policy no. 10012058 on 31.01.2013 for a sum assured of Rs.200000/- and subsequently enhanced to Rs.300000/- and the premium amount was Rs.9505/- and further fact that it was renewed without any break upto 03.03.2019 and further the complainant’s wife Mahalakshmi fall in sick and was admitted from 02.11.2018 to 03.11.2018 at SIMS Hospital Vadapalani and again she was admitted on the same hospital on 08.11.2018 and died on 28.11.2018 due to sudden cardiac arrest with the Abnormal TB for which a claim was submitted by the complainant with the 1^st opposite party for Rs.58580/- and Rs.720000/- which was repudiated by the 1^st opposite party for non disclosure of preexisting disease for the  complainant’s wife at the time of taking the policy is not in dispute between the parties.

          5. But according to the complainant at the time of taking policy the complainant has clearly informed the 1^st opposite party that his wife is a diabetic patient with all the existing diseases were disclosed in the claim form and the complainant had signed in the application as per the instruction of the 1^st opposite party and further contended that as per clause 4.1(C) of the policy condition that any disease or ailments which are preexisting when the cover incepts for the 1^st time or excluded upto 4 years (48 months) from the date of policy and since the policy was taken in the year 2013 and renewed continuously upto 2019 and since the complainant’s wife was hospitalized and died on 28.11.2018 and since the policy was in force for more than 6 years and thereby as per the said clause all the pre-existing diseases will be covered by the policy after completion of 4 years and without considering the same the rejection of claim by the opposite parties amounted to unfair trade practice and deficiency in service and further contended that the cancellation of the floater policy with respect of all the members without refund of premium is invalid and hence claimed the medical expenses as well as compensation.

          6. But on the otherhand it was contended by the opposite parties that upon investigation of various documents including discharge summary and case sheet and doctors progress notes dated 02.11.2018 and out patient prescription sheet dated 21.06.2017 of Apollo Hospital and in-patient discharge summary dated 09.12.2010 and 29.09.2011 of sundaram medical foundation it was discovered that the complainant wife was suffering Diabetes Mellitus and was administered insulin prior to policy inception which was not disclosed in the proposal form dated 21.09.2013 and for the questionnaire whether the insured was treated for any diseases or diagnosed/Hospitalised for any illness or injury during last 48 months the answer was marked as NO which amounted to non disclosure of diabetes at the time of taking policy which is violation of Condition NO.6.1 of the policy and as per which for furnishing any incorrect and untrue statement and for non disclosure of material facts and particulars by any one of the insured person the company shall have no liability to make any payment and the premium shall be paid forfeited to the company and thereafter by vide letters dated 11.03.2019, 30.03.2019 the policy was cancelled by the opposite parties by invoking condition no.6.13 of the policy and further contended that the insurance being a contract of ubbarime fidei the insured has a duty to disclose the material fact within his knowledge and the non disclosure result in contract becoming void from the inception and further contended that the clause no.4.1 cannot help the complainant and not relevant which relates to coverage for pre-existing ailments after 4 years subject to policy being valid but here the policy itself is vitiated and therefore the opposite party is not liable for the claim and denied deficiency in service on its part.

          7. Ex.A1 is policy certificate dated 31.01.2013 and Ex.A2 is the health insurance card in respect of complainant and his family members.  It is found from Ex.A2 at page.8 that preexisting diseases were covered after 48 months since the inception of the policy as per clause no.4.1(C) the same is found in the terms and conditions also.  It is further found that as per Clause 6.1 of the general terms and conditions the company shall have no liability if untrue and incorrect statements or non disclosure of any materials fact by the policy holder and the premium paid shall be forfeited to the company.  It  is found from Ex.A3 discharge summary that the complainant’s wife was admitted in SIMS hospital on 02.11.2018 and discharged on 03.11.2018 and her right 2^nd, 4^th and 5^th dose were amputated and it is further found that she was a known case of diabetes mellitus which was also shown in her past medical history and Ex.A4 is the death summary by SIMS hospital wherein is also it is found that she had a past history of diabetes mellitus. Ex.A5 is the death certificate of complainant’s wife it is found from Ex.A7 and A8 that the claim submitted by the complainant was rejected by the opposite parties for non disclosure of material fact about pre-existing ailment at the time of proposal and further stated that the patient was on insulin prior to policy inception and his review claim was also rejected by the opposite parties and under Ex.A9 the ombudsman also dismissed the claim of the complainant on 28.10.2019.  Ex.A11 are final bills issued by the SIMS hospital.

          8. The opposite party mainly relied upon Ex.B3 which is a prescription dated 05.05.2011 issued by Dr.Seshiah Diabetes research institute and also another prescription of the same institute dated 29.05.2012 and discharge summary of the said institute which is marked as Ex.B4 wherein it was found that the complainant’s wife was a known case of type one diabetes mellitus and based on such medical prescription issued in the year 2011 and 2012 wherein the complainant’s wife had taken treatment for diabetes mellitus even prior to inception of the policy but for a question in the claim form with regard to preexisting disease it was answered as NO which clearly amounts to suppression of material fact by the insured and hence the policy issued has become from the date of inception of the policy and therefore the complainant cannot take shelter under clause 4.1(c) of the policy which relates to coverage of preexisting ailment after 4 years subject to policy being valid but in the present complaint the policy itself is vitiated and has become void from the inception due to suppression of material fact and hence the contention of the complainant that he is entitled to claim the expenses as per claue.4.1 of the policy is not acceptable. Though the complainant alleged in para.3 of the complaint that he has clearly informed to the 1^st opposite party that his wife is a diabetic patient and disclosed all the existing diseases there is no proof for the same and further it is found the complainant himself has filed the proposal form and signed in  the same.  The opposite parties relied upon the decision reported in SC Satwan Kaur Sandhu Vs. New India Assurance Company Ltd dated 10.07.2009, (2019)6 SC cases 175 Reliance Life Insurance Company Limited and anr Vs Rekhaben Nareshbhai Rathod Civi Appeal No.4261/2019 dated 24.04.2019, 2020 SCC Online NCDRC 1107 Life Insurance Corporation of India Vs Somenath Karmakr R.P.No.2189/2018 dated 13.07.2020 which are applicable to the facts of the present case.  It is found from Ex.B6 proposal form submitted by the complainant that the complainant has stated NO to a question whether the insured was having any preexisting disease or hospitalized during the last 48 months which is a clear suppression of a material fact which was known to the insured at the time of taking policy and therefore the action of the 1^st opposite party by sending 15 days notice under Ex.B7 before cancellation of the floater policy in respect of all the persons covered under the policy and also the forfeiture of premium amount paid under the policy is found to be valid as per Clause 6.1, 6.3 and  7.1 of the policy condition and hence the repudiation of the claim by the opposite party is valid and it is further found that there is no deficiency in service or unfair trade practice on the part of opposite parties. Point no 1 answered accordingly.

9. Point no.2:-

Based on findings  given to Point No.1 there is no deficiency in service or unfair trade practice on the part of opposite parties 1 & 2, hence the complainant is not entitled for reimbursement of medical expenses and compensation for deficiency in service, mental agony and unfair trade practice as claimed in the complaint.

In the result the Complaint is dismissed. No costs.

Dictated by the President to the Steno-Typist taken down, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 31^st day of  August 2023.

 

MEMBER – I               MEMBER – II                                   PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1	31.01.2013	Policy certificate no.10012058 along with key policy information.
Ex.A2		Health insurance card of complaint and others.
Ex.A3		Discharge summary of SIMS hospital for C.Mahalakshmi.
Ex.A4		Death summary of SIMS hospital of C.Mahalakshmi.
Ex.A5		Death certificate of Mahalakshmi online
Ex.A6		Claim application given by complainant.
Ex.A7	25.02.2021	Claim rejected by opposite party.
Ex.A8	23.04.2021	Review claim rejected by opposite party.
Ex.A9		Dismissal award by the ombudsman.
Ex.A10		Mediclaim insurance policy common rules.
Ex.A11		Final bills(2)nos. issued by SIMS hospital Vadapalani.

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES:

Ex.B1	04.02.2013	Policy document.
Ex.B2	14.01.2019	Claim form.
Ex.B3	05.05.2011	Prescription.
Ex.B4	12.11.2014	Discharge summary.
Ex.B5	23.10.2018	Prescription.
Ex.B6	29.01.2013	Proposal.
Ex.B7	11.03.2019	Notice for cancellation of policy.

 

MEMBER – I               MEMBER – II                                   PRESIDENT