By. Sri. Jose. V. Thannikode, President:
The complaint is filed under section 12 of the Consumer Protection Act against the opposite party to get the claim amount and to get cost and compensation.
2. Brief of the complaint:- The complainant taken Family Health Optima policy bearing No. P-181315-01-2014-000937 from the opposite party and remitted a premium of Rs.9,202/-. As per the terms of the policy the complainant, his wife and son eligible to get medical expenses if there is a hospitalization for 24 hours. Thereafter the complainant renewed the policy on 10.07.2014 after paying a premium of Rs.11,870/- as per policy No. P-181315-01-2015-000998. Meanwhile the complainant felt a breathing trouble while sleeping and he admitted and taken treatment from the MIMS Hospital, Kozhikode on 27.12.2014 and a surgery was also conducted to cure the problem on 29.12.2014 and discharged on 06.01.2015. And for the said treatment the complainant spend Rs.1,60,000/- and the complainant filed application before the opposite party to get the treatment expenses but the opposite party has denied it stating that the decease was pre-existing one. The complainant further stated that he has never had such a decease before that. The above act of the opposite party is a clear case of deficiency of service and unfair trade practice. Due to the non allowing the claim the complainant caused grate loss and hardship and for that the opposite party is responsible also and prayed before the Forum to direct the opposite party to pay Rs.1,60,000/- which is spend for treatment expense with interest and to pay Rs.25,000/- as cost and compensation to the complainant.
3. On receipt of notice, opposite party appeared and filed version stating that the complainant had taken the "FAMILY HEALTH OPTIMA-NEW" Insurance Policy from this Opposite Parties covering 3 persons for the period from 01.07.2013 to 30.06.2014 as per policy No.P/1 81315/01/2014/000937 and had renewed the same for the period from 10.07.2014 to 09.07.2015 as per policy No.P/181315/01/2015/000998 sum insured was Rs.3 lakh. It is submitted that insurance contracts are "contracts of uberrimaefidei", the opposite party issued the aforesaid policy on good faith based on the declaration made by the insured/proposer in the proposal form. Proposal form is the basis of the contract of insurance. As per the contract of insurance the insured has to furnish true and correct facts in the proposal form for issuing the policy. 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 incur 'no liability' under the policy. It is submitted that the complainant was admitted on 27.12.2014 at MIMS hospital, Calicut for treatment of OSA (obstructive sleep apnoea) with Tonsil Hypertrophy and Lax Redundant Soft Palate and a Surgery was also done on 29.12.2014 and the complainant was discharged on 06.01.2015. It is submitted that the opposite party received a pre-authorization request letter from the hospital on 29.12.2014.On the same day the opposite party has sent a query to the hospital requesting to furnish first consultation & investigation details. It is submitted that the case records from MIMS hospital clearly reveals that the complainant had first consulted for Obstructive Sleep Apnea on 03.04.2013. It is to be noted that the policy was taken from 01.07.2013. Thus the claim of the complainant falls under exclusion clause No.1 of the Policy. Hence the opposite party repudiated the cashless facility based on pre-existing disease condition. It is submitted that after discharge from the hospital, the complainant has submitted a claim with supporting documents. In the discharge summary, primary diagnosis was recorded as "OSA with Tonsil Hypertrophy & lax redundant soft palate". Sleep study, was also done. Even though MIMS hospital has sent first consultation details of OSA, history of sleep apnoea &snoring since 3-4 months was recorded in the summary mainly to help the complainant for getting a claim unlawfully from the opposite party and this also indicates collusion between the complainant & treating doctor who suppressed the previous treatment details in the discharge summary. Thereafter the opposite party obtained an expert medical opinion which confirmed that tonsillar hypertrophy is the causative factor for OSA. Hence based on the available records, it is confirmed that the claim of the complainant falls under exclusion clause No.1 of the Policy. As per exclusion clause No.1 of the policy, Pre-existing disease means "Pre-Existing Disease as defined in the policy, until 48 months of continuance coverage have elapsed, since inception of the first policy with any Indian Insurance company". Moreover it is elaborately explained in the Definition head of the policy that Pre- Existing Disease/ conditions means any ailments or injury or related condition(s) for which the insured person had signs or symptoms and or was diagnosed and or received medical advice/treatment within 48 months prior to insured person's first policy with the Company. Hence based on available records, the opposite party repudiated the claim due to pre-existing disease and informed the customer on 22.04.2015.
4. It is submitted that based on the proposal from filled by the complainant, and believing his declarations therein, the Company issued this policy in the name of the complainant. In this particular case the proposer has not revealed his previous health history in the proposal form. The suppression in this case is very material and is intentional. If the insured person discloses the facts of pre-existing diseases a decision will be taken by the opposite party whether to accept or reject the proposal. But in this case the insured has not informed about the pre-existing disease in the proposal form though he has knowledge about his previous illness. 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 Honorable Supreme Court in a decision reported in 2009 KHC 4898. The complainant has filed this complaint frivolously for the sole purpose of harassing the opposite parties with the intention for getting unlawful enrichment from the opposite .parties who are dealing with public money and functioning under the guidelines of IRDA controlled by the Government of India. As public money is held in trust, the company must exercise abundant caution in dealing with the claims by applying all conditions correctly. 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 obtaining violating the conditions mentioned in the contract. It is submitted that there is no deficiency of service from the part of the opposite party. The claim was repudiated based on terms & conditions of the policy contract. Hence prays to dismiss the complaint.
5. Complainant filed proof affidavit and stated as stated in the complaint and examined as PW1 and Ext.A1 to A5 and X1 series documents were marked. Opposite party filed proof affidavit and stated as stated in the version and he is examined as OPW1 and Ext.B1 to B9 documents were marked. Complainant's witness is examined as PW2. Ext.A1 is the Authorization letter. Ext.A2 is the Insurance Policy period from 01.07.2013 to 30.06.2014. Ext.A3(1) is the Insurance policy period from 10.07.2014 to 09.07.2015. Ext.A4 is the Family Health Optima Insurance Plan. Ext.A5(1) is the Family Health Optima Insurance Policy for the period 23.02.2012 to 22.02.2013. Ext.B1 is the Authorization letter. Ext.B2 is the Family Health Optima Insurance policy schedule for the period from 10.07.2014 to 09.07.2015. Ext.B3 is the Family Health Optima Insurance Plan. Ext.B4 is the Proposal Form. Ext.B5 is the Discharge Summary. Ext.B6 is the Pre-authorization request form. Ext.B7 is the Initial examination record. Ext.B8 is the Denial letter of pre-authorization for cashless treatment dated 29.12.2014. Ext.B9 is the claim rejection letter. Ext.X1 series page-1, claim rejection letter stating that pre existing disease and hospital bills.
6. On perusal of complaint, version and documents the Forum raised the following points for consideration:-
1. Whether there is any deficiency of service from the part of opposite party?
2. Relief and Cost.
7. Point No.1:- The policy is admitted by the opposite party since 23.02.2012 and is marked also. As per Ext.A5(1) it is renewed up to 09.07.2015 as per Ext.A3(1). The admission to hospital and treatment was done from 27.12.2014 to 06.01.2015. Opposite party has rejected the claim stating that it was a pre-existing disease as per Ext.B7 ie Diagnosis OSA for evaluation prescriptions sleep study Advised UPPP. Now the question arises only on the point that whether the disease is a pre-existing one and whether the complainant knows the disease and suppressed the fact. For analyzing this, we perused Ext.B5 and X1 and deposition of PW1 and PW2. Ext.B5 and X1 shows that the date of admission is 27.12.2014, DOS is 29.12.2014, Date of Discharge is 06.01.2015 and primary diagnosis is OSA with Tonsil Hypertrophy and lax redundant soft palate. History and physical examination – sleep apnoea and snoring since 3-4 months. PW2 Doctor ie the independent witness deposed that “I had given the Ext.B5, the patient approached me for the treatment of sleep apnoea. I understood that the same disease started since 4 months. When he comes for the examination on 03.04.2013 he comes with feelings of breath trouble in throat, this problem can be caused due to various reasons. On that day for OSA no treatment was done from our hospital. I suggested Nasopharyngoscopy and sleep study on 03.04.2013”. In Ext.X1 page 2 shows that Nasopharyngoscopy is conducted. In the first admission he has not treated for that disease. On a question, whether the operation has conducted for the reported complaint on 03.04.2013 he answered that “both time the symptoms were different. When he came for the first time it was only a doubt but in the latest admission it is confirmed. I cannot say exactly that the patient has the OSA on 03.04.2013, in the test conducted on 22.12.2014 it is confirmed that the patient has OSA. No treatment is given for OSA to the patient from our hospital”.
8. From the overall evaluation we found that the complainant had no knowledge about OSA at the time of taking the policy. Even though there was a feeling of breath trouble in the throat on 03.04.2013 he has taken the first policy on 23.02.2012 and the illness is confirmed on on 27.12.2014. In the above circumstances the denial of claim under a suspicion is a clear case of deficiency of service from the side of opposite party. Hence Point No.1 is found accordingly.
9. Point No.2:- Since the Point No.1 is found against the opposite party, he is liable to pay the claim amount with cost and compensation and the complainant is entitled for the same and the complainant has produced the medical bills also to show the expenses incurred. Point No.2 is decided accordingly.
In the result, the complaint is partly allowed and the opposite party is directed to pay Rs.1,60,000/- (Rupees One Lakh Sixty Thousand) with 12% interest from the date of claim application and also directed to pay Rs.10,000/- (Rupees Ten Thousand) as compensation and Rs.2,000/- (Rupees Two Thousand) as cost of the proceedings to the complainant within one month 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 12th day of May 2016.
Date of Filing:25.05.2015.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:-
PW1. Soudha. Complainant's wife.
PW2. Dr. Mary. ENT Specialist, MIMS Kozhikode.
Witness for the Opposite Parties:-
OPW1. Mrudula. Executive Legal, Star Health.
Exhibits for the complainant:
A1. Authorization Letter. Dt:14.07.2015.
A2. Family Health Optima Insurance Policy Schedule.
A3(Series). Family Health Optima Insurance Policy Schedule (3 Pages).
A4. Family Health Optima Insurance Plan.
A5. Family Health Optima Insurance Policy Schedule.
X1 (Series). Medical Records produced by opposite party.(100 Nos).
Exhibits for the opposite parties:-
B1. Authorization Letter. Dt:26.09.2015.
B2. Copy of Family Health Optima Insurance Policy Schedule.
B3. Family Health Optima Insurance Plan.
B4. Proposal Form.
B5. Copy of Discharge Summary.
B6. Copy of Pre-Authorization Request Form.
B7. Hospital Records (15 Nos).
B8. Denial of Pre-Authorization For Cashless Treatment.
B9. Copy of Claim Rejection Letter. Dt:22.04.2015.
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PRESIDENT, CDRF, WAYANAD.
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