Complaint filed on: 18.01.2012

                                                      Disposed on: 13.03.2017

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

CC.No.126/2012

DATED THIS THE 13^th MARCH OF 2017

PRESENT

SRI.H.Y.VASANTHKUMAR, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

Complainant/s: -                           

1. Smt.Sharada,

Aged about 56 years,

w/o P.Krishnamurthy,

No.20, 5^th Main Road,

LIC Row Housing,

J.P.Nagar, 1^st phase,

Bengaluru-560078

2. P.Krishnamurthy,

Aged about 61 years

s/o K.Puttannaiah

No.20, 5^th Main Road,

LIC Row Housing,

J.P.Nagar, 1^st phase,

Bengaluru-560078

By Advocates

M/s. Kumar & Kumar

V/s

Opposite party/s:-    

1. The Oriental Insurance co., ltd., Grievance section,

no.44/45, Leo shopping complex, Residency road cross, Bengaluru-560025

Rep. by its Regional Manager

2. M/s.Raksha TPA pvt. ltd.

No.25, Ashirwad, 1^st floor,

29^th Main, 4^th B cross,

2^nd stage, BTM layout, Bengaluru-560076

Opposite parties no.1 & 2 

• Ex-Parte

3. Divisional Manager,

The Oriental Insurance co. ltd., no.22, DVG Road,

V.C.Plaza, Basavanagudi, Bengaluru-560004

Opposite party no.3:

By Adv.Sri.M.B.Chandra Chooda

ORDER

Under section 14 of consumer protection Act. 1986.

SRI.H.Y.VASANTHKUMAR, PRESIDENT 

            The Complainants no.1 & 2/couple have been alleging the deficiency in service in repudiating their claim of “Happy Family Floater” insurance policy by the Opposite parties and thereby have been claiming the claimed amount of Rs.2,32,596/- and the compensation of Rs.1,10,000/-.

          2. The case of the Complainants in brief is that they being the holders of the “Happy Family Floater” insurance policy of the Opposite party no.3 company, got it renewed from 2008 till the year ending 30.12.11. The Complainant no.2/husband was hospitalised at Bengaluru hospital on 6 & 7 of July 2011, where he was advised for CABG operation and he was shifted to Apollo hospital, Bannerughatta road, Bengaluru. He underwent CABG heart operation on 12.07.11 being in patient from 07.07.11 to 17.07.11, where no other health complaints were detected.  They claimed the medical expenses. The Opposite party no.2 sent the letters dtd.20.08.11 and 26.09.11 mentioning the clause 4.1, pre-existed diseases and their complications. The invocation of clause 4.1 is only a ruse to overcome the obligation to make the payment. The case sheet maintained by the hospital showing sufferings of diabetes since 10 years and hypertension since 5 years are wrong entries and they were rectified by approaching the Bengaluru hospital on 29.08.11. The Bengaluru hospital was convinced about the diabetes existed from 18 months only and that the hypertension was diagnosed only on 21.07.11. The clarification letter dtd.30.08.11 of Bengaluru hospital was also furnished. In Apollo hospital also the diabetic shown from 8 years was also got rectified similarly and sent to the Opposite party no.2 on 05.09.11. Then also the Opposite party no.2 rejected the claim through letter dtd.26.09.11, contrary to the policy conditions and provisions of the insurance act. The legal notice dtd.02.11.11 was replied by the Opposite parties taking baseless grounds. Hence this complaint is filed.

          3. The Opposite party no.3 only has filed the version denying the allegations made against the Opposite parties contending that, floater policy conditions specifically refers to condition no.4.1 that any ailment which were preexisting treated or not treated in the case of the insured person for the family when the cover incepts for the first time or excluded for such insured persons up to 4 years of this policy being in force continuously. The policy was running 3^rd year that means 3 years not yet completed. The discharge summary of both Bengaluru hospital and Apollo hospital specifically referred to Complainant no.2 mentioned that the diabetes was there since 10 years, hypertension since 5 years and both caused for the heart surgery.  The said fact was suppressed while obtaining the insurance policy. The Opposite party no.2 by examining the discharge summary and medical records indicated that ailment of Complainant no.2 was pre-existed and hence clause 4.1 applies. The rejection of claim is based on their own documents and it is just and proper.  The claim of the Complainant no.2 was repudiated through letter dtd.20.08.11. The rectification documents filed by the Complainant is an afterthought and hence letter dtd.26.09.11 was issued. The Complainant no.2 having once submitted the claim is not entitled to rectify/modify the entries in discharge summary to overcome the defect found in the original statements and the said act amounts collusive act of both the parties and the hospital authorities. The repudiation by the Opposite parties is in accordance with policy conditions. Accordingly suitable reply notice was sent. The complaint is liable to be rejected.

          4. Opposite parties no.1 & 2 are placed exparte. The Complainant and the Divisional Manager of Opposite party no.3 filed their respective affidavit evidences relying on Ex-A1 to A17 and Ex-B1 to B3 documents respectively. Written arguments were also filed by both the contesting parties. The Complainant has relied on 2 judgments of the National Commission. Perused the records.

          5. The consumer disputes that arise for consideration are as follows:

1. Whether the Complainants establish the alleged deficiency in service in repudiating their re-submitted claim of “Happy Family Floater” insurance policy by the Opposite parties ?

2. To what order the parties are entitled ?

6. Answers to the above consumer disputes are as under:

1) Affirmative

2) As per final order – for the following  

REASONS

          7. Consumer Dispute No.1: The undisputed facts reveal that the Complainant no.1 is the wife of the Complainant no.2. The Complainant no.1 was the holder of “Happy Family Floater” policies of Opposite party no.3/The Oriental Insurance co. ltd. starting from 31.12.08 as per Ex-A1 policy schedule. She got it renewed up to 30.12.10 as per Ex-A2 policy & 30.12.11 as per Ex-A3 policy schedule. The policy schedule covers the Complainant no.2 her husband also.

8. The Complainant no.2 was hospitalised initially at Bengaluru hospital on 6 & 7 of July 2011 as supported by 18 bills shown in Ex-A12. Then he was diagnosed and advised to undergo CABG and accordingly he was shifted immediately to Apollo hospital, Bannerughatta road, Bengaluru and became the inpatient till 17.07.11 as per discharge summary Ex-A5 and inpatient records Ex-A4. The Complainant no.2 underwent CABG heart operation.

          9. It is also undisputed that the Complainants submitted the claim form for the hospital & medical expenditure and their claim was repudiated as per Ex-B2 by the Opposite party no.2 with the observation that the claim reported in the 3^rd year of the policy, disqualifies the Complainants under clause 4.1 of pre-existed grounds found in the detailed investigation and results about the diabetes of 10 years & hypertension of 5 years.

          10. The Complainants wrote the letter Ex-A7 dtd.27.08.11 and Ex-A9 nil dated to the Bengaluru hospital and Apollo hospital and got the certificates Ex-A8 dtd.30.08.11 & Ex-A10 nil dated. The contention of Ex-A7 to A11 documents are that there were errors made by both the hospitals in their treatment records in mentioning the age of the diabetic and hypertension as 10 years & 5 years instead of 18 months and from 05.11.11 and the said wrong entries were certified as mentioned on the basis of the say and information given by nearest relatives of the patient to the doctor who recorded the same and after the Complainant no.2 brought to their notice, they rectified the entries in their case sheets. Ex-A11 certificate issued by the consultant cardiothoracic surgeon of Apollo hospital shows      that the request made by the Complainant no.2 to rectify the entries as diabetic for 18 months and hypertension from past 6 months, Ex-A10 is the handwritten one and Ex-A11 is computerized certificate.  

          11. The careful verification of Ex-A8 certificate shows that the rectification entry is made by Bengaluru hospital. Ex-A10/A11(03.09.12) under the head “To whom so ever it may concern” certifies that the Complainant no.2 was a known diabetic for 18 months and hypertensive from past 6 months and the same is to be rectified and to do the needful and hence it is issued for kind information by doctor Sathyaki N Nambala, Senior cardiothoracic surgeon of Apollo hospital.

12. The said recommendation of cardiothoracic surgeon through Ex-A11 made for rectification was not addressed to Apollo hospital.  Ex-A5 discharge summary of Apollo hospital shows the age of the complaint DM type 2 since 18 months, HTN since 6 months. Ex-A4 in patient history and physical record also mentioned the same as complaints of 18 months and 6 months. It appears that the Apollo hospital also considered the Ex-A10/A11 observation and rectified the entries about the history of the health complaints and issued the fresh set of documents and thereby there were no old set of patient history and discharge summary documents.   

13. The Complainants again requested the Opposite parties for re-consideration of their claim and in response to the same the Opposite parties referred the terms & conditions of Ex-A1 to A3 floater policies as per Ex-B1 at clause 4.1 read as here under:

             Pre-existing health condition or disease or ailment/injuries: Any ailment/disease/injuries/ health condition which are pre-existing (treated/ untreated, declared/not declared in the proposal form), in case of any of the insured person of the family, when the cover incepts for the first time, are excluded for such insured person up to 4 years of this policy being in force continuously.

          14. The Opposite parties through letter Ex-A6 dtd.26.09.11 reiterated the clause 4.1 with the following opinion:

            Kindly note: Denial stands, pre-existing diseases and their complications are covered after 4 years continuous renewal of policy (refer clause no.4.1), hence claim is rejected, H/O chest discomfort on exertion. IHD, CAD-TVD, LV Diastolic Dysfunction, Stable Angina, NIDDM, HTN. Aortocoronary bypass. K/C/O DM since 10 years, HTN since 5 years. No other past history given. H/O chest discomfort on exertion. IHD, CAD-TVD, LV Diastolic Dysfunction, Stable Angina, NIDDM, HTN, Aortocoronary bypass. K/C/O DM since 10 years, HTN since 5 years. No other past history given.  

          15. Through Ex-B2 letter dtd.21.11.11 Opposite party no.2 reported to Opposite party no.3 as here under:

           Claim was subjected to a detail investigation and results revealed the duration of DM and HTN which were 10 years and 5 years respectively. (All previous hospitalization details were verified and in patient case records were collected for reference).

           So claim was repudiated based on preexisting grounds (clause 4.1) as policy inception date is 31 Dec 2008 and claim reported in third year of policy.

           Now insured and hospital are stating that durations mentioned in case papers were given by near relatives and certifying actual durations as 18 months and 6 months respectively – we consider this clarification as AFTER EXPLANATION, we stand by our decision, also forwarding file for your reference and further decision.

          16. The above observations and opinions of Opposite parties clearly show that the materials furnished to them by the Complainant for re-consideration also were treated as afterthought rectification to suit the purpose for which no supporting hospital records are produced before them and their detailed investigation again affirmed the same result.

          17. In response to legal notice Ex-A13 dtd.02.11.11 (served on Opposite parties, on the next day as per Ex-A14 Postal Acknowledgements based on Ex-B2 report dtd.21.11.11), the Opposite party no.3 sent the reply notice Ex-A16 dtd.20.12.11. It appears that along with Ex-A15, forwarded the legal notice to higher authorities. The Opposite party no.3 in continuation of its action called for the file from Opposite party no.2, after verifying the same, replied as per Ex-A17 letter dtd.05.01.12, that their claim does not merit for reconsideration and closing their grievances as “closed” in the said letter. It is observed that the Complainant no.2 underwent bypass surgery with past history of diabetes of 10 years and hypertension of 5 years and the alleged rectification attempts do not merit for reconsideration.

          18. The contention of the Opposite parties that the care and treatment given by the hospitals were depending upon the alleged pre-existed diseases of 10 years and 5 years and after all the expenditure were incurred, they have no right to say that the information of past history collected by the hospitals were wrong.

19. The Complainant no.1 is aged 56 years and the Complainant no.2 is aged 61 years in 2011-12. It appears they have no other family members. The produced hospital records of both hospitals show the rectified entries with the signature of concerned. It is true that the Complainants did not distinguish the rectified hospital documents and earlier issued documents. Careful verification and scrutiny of Ex-A4, A5 and other documents only show that the hospital authorities also accepted the version of the Complainants and rectified the entries accordingly and thereby their part of duty is discharged satisfactorily.

20. The Complainants having the burden to prove the ground for rectification in the hospital records and the grounds for claiming the insurance claim again re-submitted their request letter to the Opposite parties and thereby the burden shifts on the Opposite parties to rebut their evidence. Such burden is not discharged by the Opposite parties.

21. When the hospital records become the primary documents, the Opposite parties have to establish whether they visited the hospital again to enquire about the contents of re-submitted letters and effects carried out in the hospital records. In Ex-B2 it is clearly stated that all previous hospitalization details were verified and in patient case records were collected for reference. It is also observed that the age of disease were found mentioned as 18 months and 6 months. In Ex-A6 dtd.26.09.11, the history of the health complaint is addressed as pre-existing diseases of 10 & 5 years.

22. In Ex-A4 & A5 nowhere the age of health complaint was mentioned as alleged in Ex-A6 letter. Thereby the Opposite party no.3 before going through the investigation and the findings of the investigation of Opposite party no.3 had to apply its mind before intimating the confirming of the repudiation letter.

23. Without the concrete materials, the Opposite party no.3 have no right to say that by virtue of their investigation reports, they confirmed the repudiation letter. The Opposite party no.3 not only to take care about the funds to be released in favour of the genuine claimants. The responsibility also is there to scrutinize the method of investigation conducted by the TPA/third party authority. In the instant case there is no base for the Opposite party no.2 give the report with observation as per Ex-A6. The Opposite party no.3 has failed to explain how the further investigation report of the Opposite party no.2 has the base with reference to medical documents. In the result the Opposite party no.3 has to be held as erroneously and without applying its mind, blindly accepted the further investigation report of the Opposite party no.2.

24. None of the medical records show that Complainants were aware about the history of their health complaints before they were diagnosed by the doctors. There are no records by the Opposite parties to show that the Complainants suppressed the true facts while submitting the proposal form. It is not their case that it is non-disclosure case. Thereby the Opposite parties have failed to establish their defence taken against the entries in the medical records of the Complainants. There are no reasons to disbelieve the contents of medical records produced for re-consideration to the Opposite parties. Non application of mind by the Opposite parties on the reproduced medical records become deficiency in service on their part. The faulty investigation by Opposite parties without there being the entries in the medical records to support their reports could have been noticed by the Opposite party no.3. Hence the Complainants have successfully established the Consumer Dispute no.1 and accordingly it is answered in the affirmative.   

          25. Consumer Dispute No.2: In view of findings of the Consumer Dispute No.1 the Complainants deserve to get the following:

ORDER

          This complaint CC.No.126/2012 is allowed partly. The Opposite parties no.1 to 3 jointly and severally shall consider the re-submitted claim papers of Complainants and to calculate the compensation amount.  

          2. The Opposite parties no.1 to 3 are directed to pay the compensation amount so calculated within 30 days with interest at 6% p.a.

          3. The Opposite parties no.1 to 3 are directed to pay the compensation amount of Rs.50,000/- with litigation charges of Rs.5,000/- in 30 days in default to pay the interest at 12% p.a. thereon.

          Supply free copy of this order to both the parties. 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 13^th day of March 2017).

Copies of Documents marked on behalf of Complainant:

Documents marked on behalf of Opposite party no.3