By. Smt. Renimol Mathew, Member:
The complaint is filed under section 12 of the Consumer Protection Act against the opposite parties to get reimbursement of of the claim amount with cost and compensation.
2. Brief of the complaint:- The complainant is the policy holder of senior citizens Red Carpet Insurance Policy vide No. P/181211/01/2014/006548. The inception of the policy was on 28.02.2014. While so on 14.09.2014 complainant sustained injuries due to a domestic fall from her house at Kalpetta. Next day she went to her son's house at Thiruvananthapuram since there was pain and swelling in her right leg and right hand on 16.09.2014, she admitted at SP Fort Hospital at Thiruvananthapuram to undergone surgery. Immediately after the admission this matter was referred to opposite party insurance company. While so on 20.09.2014 from the office of the Opposite parties at Chennai informed the Hospital by fax Message that the they refused the policy benefits stating the reason that there is non discloser of material facts at the very inception of the policy. Hence the complainant was forced to arrange a huge amount for payment of Hospital Bills of Rs.1,22,921/-at the time of discharge on 22.09.2014. After the discharge on 24.10.2014 the complainant send a written request to the Chennai office of the Opposite parties requesting them to settle the claim at the earliest. In response to the same the complainant received a letter from the Zonal office of the Opposite parties directing the complainant to submit all original Bills and discharge summery etc. Accordingly the complainant send all documents to the Zonal office of the Opposite parties There after on 11.12.2014 the complainant received a reply from the Chennai office of the Opposite parties refusing the claim of the complainant. Complainant alleges that the reason for the denial of policy benefits by the Opposite parties is illegal. The complainant did not suppressed any material facts as alleged in the reply of the Opposite parties. The injuries sustained to the complainant is due to a domestic fall which has no relevance to the surgery underwent for cancer which was completely healed years back. Complainant alleges that the opposite party's have no right to deny the claim amount of Rs.1,22,921/-. The complainant sustained irreparable mental agony and hardships due to the illegal act of opposite parties. Hence filed this complaint alleging deficiency of service on the part of opposite parties.
3. On receipt of notice, opposite party entered and version filed in short it is as follows:- At the outset it is humbly submitted that the above complaint is not sustainable either on facts or on law and is liable to be dismissed. This Honourable forum has no jurisdiction to entertain this complaint since no cause of action has arisen at Kalpetta. In this case the complainant has taken the policy from opposite party's Branch office at Ernakulam. The complainant submitted a claim at Thiruvananthapuram office. The cause of action for this complaint ie, the claim repudiation made from Opposite party's Chennai address. The complainant was admitted & treated at SP,Fort hospital, Thiruvananthapuram. The Honourable Supreme Court has ordered in sonic surgical Vs. National Insurance Company Ltd.2009 KHC 5136 that "Branch office means the branch office where the cause of action has arisen". Since the parties entered into contract of insurance are not within the Jurisdiction of this Forum. Hence the question of Jurisdiction is to be decided as a preliminary issue. It is submitted that the complainant had taken Senior citizen Red carpet insurance policy from the opposite party Vide policy no. P/181211/O1/2014/006548 from 27.02.2014 to 27.02.2015 for a sum insured of Rupees one lakh.
4. It is submitted that the proposal form is the basis and integral part of the contract and on that basis the policy is issued. The policy issued to the complainant is essentially a health insurance policy .So the information regarding the health status of the complainant at the time of filling the proposal and earlier are material for proper underwriting of the proposal. This policy is issued after accepting the facts in the proposal form on utmost good faith. In the proposal form the complainant further declared that if after the insurance policy is effected, any particulars stated in the proposal form are found incorrect, the insurance company would have "no liability" under the policy.
5. It is submitted that the complainant was admitted on 16.09.2014 at SP Fort Hospital, Trivandrum for treatment of Screw Fixation for Avulsion Fracture right Calcaneum and after treatment she was discharged on 22.09.2014. This opposite party received a pre-authorization request letter from the hospital on 17.09.2014. On the same day the opposite party has sent a query to the hospital requesting to furnish the case sheets & investigation details. It is submitted that the opposite party received a discharge summary dated 25.10.2012 of Baby. Memorial hospital which clearly reveals that the complainant had undergone MRM surgery (modified Radical Mastectomy) for CA breast in 2012 & also she was suffering from hypertension for which she was on treatment. Hence based on available records, the opposite party rejected the cashless facility due to suppression of material facts and informed the same to the Hospital on 20.09.2014.
6. It is submitted that the averment in the complaint that as per policy, the complainant is entitled for Cashless facility is totally false & denied the opposite parties. It is submitted that Cashless facility is not a part of contractual obligation as per the terms and conditions of the Insurance policy contract. It is more than the commitment given under the contract of insurance and meant for extra comfort level for the customer. It is a facility extended to those cases where the liability of the Insurance Company under the policy is established beyond any doubt. In all other cases, the insured has to submit a completed claim form with all supporting treatment documents to enable the company to understand and process the claim on merit.
7. It is submitted that the case records from Baby memorial Hospital reveal that the complainant had treated for Ca Breast, Hyper ParaThyrodisom and HTN since 25.11.2012 and she had undergone mastectomy surgery in 2012. In this case the proposer has not revealed any diseases in the medical history column despite there is a specific question that "Is any of the person proposed for insurance suffering/ suffered from: a) Stroke b) Cancer c) Chronic kidney disease, d) Parkinsons disease e) Alzheimers disease f) Any other disease/illness or sustained any injury or disability." The complainant has answered as "NO" to this specific question. Moreover in the additional questionnaire with regard to the Cancer, the insured has answered as "NO".
8. Since the complainant has intentionally suppressed material facts in the proposal form, the company repudiated the claim due to "suppression of material facts" and informed the complainant on 11.12.2014. It is submitted that the SP Fort hospital intentionally avoided the details of pre-existing illness in the discharge summary which clearly indicates collusion between the complainant & the hospital in order to get a claim from the opposite party unlawfully. If the insured person discloses the facts of pre-existing disease a decision will be taken by the opposite party whether to accept or reject the proposal. If there is suppression of material facts then the insurance contract becomes void from the beginning and the company is not liable to indemnify the insured. The said position of law is held by the Honourable Supreme Court in a decision reported in 2009 KHC 4898.
9. In this case complainant has tried to defraud the company by suppressing the existing illness and try to get compensation from the opposite party. Hence the policy was vitiated by the element of fraud. Moreover the complainant dragged the opposite parties to an unnecessary litigation knowing well that policy is obtained by violating the conditions mentioned in the contract. It is submitted that there is no deficiency in service from the part of the opposite party. The claim was repudiated based on terms & conditions of the policy contract.
10. Complainant filed affidavit and examined as PW1. Ext.A1 to A14 documents were marked. Ext.A1 is the Senior Citizens Red Carpet Insurance Policy schedule. Ext.A2 is the Letter dated 05.11.2014. Ext.A3 is the letter dated 24.10.2014. Ext.A4 is the Repudiation letter dated 11.12.2014. Ext.A5 is the copy of discharge summary. Ext.A6 is the Renewal Notice dated 22.12.2014. Ext.A7 is the Discharge Summary. Ext.A8 is the Terms and conditions of the policy. Ext.A9 is the Senior citizens Red carpet Insurance Policy conditions. Ext.A10 is the Mammogram Report dated 16.10.2012. Ext.A11 is the Cytology Report dated 17.10.2012. Ext.A12 is the Histopathology report dated 01.11.2012. Ext.A13 is the Immunohistochemistry dated 05.11.2012. Ext.A14 is the Histopathology dated 05.12.2012. Opposite party is examined as OPW1 and Ext.B1 to B8 documents were marked. Ext.B1 is the Authorization letter. Ext.B2 is the policy conditions. Ext.B3 is the policy schedule. Ext.B4 is the proposal form. Ext.B5 and B6 are the copy of Discharge summary. Ext.B7 is the rejection of pre-authorization for cashless treatment dated 20.09.2014. Ext.B8 is the Repudiation letter dated 11.12.2014.
11. On considering the complaint, version and documents the Forum raised the following points for consideration:-
1. Whether there is any deficiency of service on the part of the opposite parties?
2. Relief and Cost.
12. Point No.1:- Complainant alleged that opposite party denied her claim for reimbursement of hospital bill without any valid reason since she is a valid policy holder. Opposite party opposed the complainant's case stating that the 1st inception of the policy was on February 2014 and the cause of action for the present treatment occurs on 04.09.2014. She took the policy from Ernakulam and treated at Thiruvananthapuram, Subsequently complaint filed at Wayanad. Hence this complaint is not maintainable before this Forum. Complainant argued that on 14.09.2014 she fell down at Kalpetta. Next day she went to her son's house at Thiruvananthapuram since there was pain and swelling on her right leg and hand she admitted and treated at SP Fort Hospital, Thiruvananthapuram. Opposite parties branch office situated all over Kerala, thereby she can file complaint before anywhere having its branch offices. Opposite party repudiated the claim as per Ext.A4 repudiation letter stating that:-
“the treatment records reveal that the patient was suffering from Carcinoma (L) breast, hyperthyroidism and HTN since 25.11.2012. The policy commences from 28.02.2014. Existing illness suppressed while taking policy. In the proposal form, you have not revealed the previous health related complaints. A health insurance policy is issued in good faith after assessing the health condition of a proposer based on the health related facts stated in the proposal form. Obtaining a policy without disclosing the full facts on health of a person would make the insurance policy void ab initio”.
13. Opposite party argued that insurance is based on bonafides, this complainant is a senior citizen took the policy on 28.02.2014 concealing all the health related problems. To prove his case opposite party produced documents Ext.B1 to B8. In Ext.B6 Discharge summary dated 29.11.2012 and other case records from Baby Memorial Hospital, Kozhikode reveals that the complainant had treated for Ca Breast, Hyper Parathyrodisom and HTN since 25.11.2012 and she had undergone mastectomy surgery in 2012. In this case the complainant has not revealed any diseases in the medical history column despite there is a specific question that "Is any of the person proposed for insurance suffering/ suffered from: a) Stroke b) Cancer c) Chronic kidney disease, d) Parkinsons disease e) Alzheimers disease f) Any other disease/illness or sustained any injury or disability." The complainant has answered as "NO" to this specific question. Moreover in the additional questionnaire with regard to the Cancer, the insured has answered as "NO" (Ext.B4). Relying on this records opposite party argued that this complainant knowingly suppressed the material facts relating to her health condition while taking the policy. Hence the policy issued to the complainant itself is void abnito.
14. Complainant argued that as per Ext.A4 and B6 Discharge summary she underwent a surgery. There are many diagnosis reports in relation with here surgery such as Ext.A11, 12, 13 and Ext.A14. But the surgery was done based on the tests and evaluations. In all these reports diagnosis was Carcinoma (L) breast, the surgery was done on 25.11.2012. On going through the Histopathology Report of Post operative specimen (Ext.B14) dated 05.12.2012 shows no sign of cancer. Since further cancer treatment such as Radiation and Chemotherapy was not required to this patient. To prove the claim of complainant she produced Ext.A6 Renewal Notice issued by the opposite party dated 22.12.2014. She received Ext.A6 renewal notice immediately after the receipt of Ext.A4 repudiation letter. On perusal of Ext.A6 Notice we found that still opposite parties are ready and willing to renew this complainants policy. Hence opposite party's contention that this policy is not valid, is not sustainable. Based on the submissions, records and evidences putforth by the parties we opine that the present treatment is not the continuation of previous treatment. The present claim is not in any way related the past surgery. The present treatment of Screw fixation for Avulsion Fracture right Calcaneum was underwent after a domestic fall. The opposite party argued relaying on the Ext.B3, B6 discharge summary and diagnosis reports from Baby Memorial Hospital, Kozhikode. On perusal of Ext.B14 it is evident that the specimen are free of cancer. More over as per Ext.A6 notice now also opposite parties are ready and willing to renew the policy of this complainant. The originals of hospital bills are already submitted to opposite parties along with the claim form but opposite parties repudiated the claim on a suspicion of cancer. Hence we opine that deficiency on the part of opposite parties stands proved and complainant is entitled to get reimbursement of the claim amount of Rs.1,00,000/- as per the terms and conditions of the policy. Point No.1 is found accordingly.
15. Point No.2:- Since the Point No.1 is found in favour of complainant, he is entitled to get reimbursement of claim amount of Rs.1,00,000/- with cost and compensation. The Point No.2 is decided accordingly.
In the result, the complaint is partly allowed and the opposite parties are directed to pay the claim amount of Rs.1,00,000/- (Rupees One Lakh) to the complainant as per the terms and conditions of the policy. Opposite parties are also directed to pay Rs.3,000/- (Rupees Three Thousand) as cost and compensation of the proceedings to the complainant. This Order must be complied by the opposite parties within 30 days from the date of receipt of this Order.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 23rd day of September 2015.
Date of Filing: 08.05.2015.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:-
PW1. Lillykutty. Complainant.
Witness for the Opposite Parties:-
OPW1. Manu Mohan. Executive, Claims, Star Health.
Exhibits for the complainant:
A1. Senior Citizens Red carpet Insurance Policy Schedule.
A2. Letter. Dt:05.11.2014.
A3. Letter. Dt:24.10.2014.
A4. Repudiation Letter. Dt:17.12.2014.
A5. Copy of Discharge Summary.
A6. Renewal Notice. Dt:22.12.2014.
A7. Copy of Discharge Summary.
A8. Terms and condition of the policy.
A9. Senior Citizens Red Carpet Insurance Policy conditions.
A10. Mammogram Report. Dt:16.10.2012.
A11. Cytology Report. Dt:17.10.2012.
A12. Histopathology Report. Dt:01.11.2012.
A13. Immunohistochemistry report. Dt:05.11.2012.
A14. Histopathology Report. Dt:05.12.2012.
Exhibits for the opposite parties:-
B1. Authorization Letter. Dt:12.08.2015.
B2. Senior Citizens Red Carpet Insurance Policy conditions.
B3. Copy of Senior Citizens Red carpet Insurance Policy Schedule.
B4. Proposal Form.
B5. Copy of Discharge Summary.
B6. Copy of Discharge Summary.
B7. Copy of Rejection of Pre-authorization for cashless treatment. Dt:20.09.2014
B8. Copy of Repudiation Letter. Dt:11.12.2014.
Sd/-
PRESIDENT, CDRF, WAYANAD.
a/-
