Date of Filing:01/02/2016

Date of Order:04/12/2018

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated: 4^TH DAY OF DECEMBER 2018

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B. (Rtd. Prl. District & Sessions Judge) And PRESIDENT

SRI D.SURESH, B.Com., LL.B., MEMBER

COMPLAINT NO.171/2016

V/s

ORDER

BY SRI.H.R. SRINIVAS, PRESIDENT

1.  This is the complaint filed by the complainant against the Opposite Party (hereinafter referred to as O.P) under Section 12 of the Consumer Protection Act, 1986 praying this Forum to direct the O.P to pay a sum of Rs.3,78,347/- along with an interest at the rate of 18% per annum from 13.07.2015 towards the hospital charges spent by him in respect the treatment to his father, and Rs.50,000/- towards damages for mental agony and for other reliefs as this forum deems fit under circumstances of this complaint.

2.     The case of the complainant in brief is that: the complainant obtained from O.P Health Insurance policy under Senior Citizen Red Carpet Insurance scheme effective from 10.03.2015 till mid-night of 09.03.2016 for a sum of Rs.3,00,000/- each for his father K.Narayana Gowda and mother Smt. Gangalakshmi.  He had also informed at the time of obtaining the policy regarding the health condition of his parents.  His Father underwent cardiac surgery PTCA to LAD and RCA in the year 2011 and also that he was having diabetic and hypertension since 10 years and his mother having hypertension since 6 years and the same was noted by the agent of the O.P and he obtained signature on the blank proposal form along with cheque for a premium amount of Rs.28,989/- with an assurance that he would mention the same in the proposal form.

3.     It is contended that on 30.05.2015 his father had to be hospitalized in Sagar Hospital, Kumaraswamy Layout, Benglauru for Brain stem dysfunction due to intra ventricular hemorrhage and after treatment for about 15 days, he died on 14.06.2015 due to the said problem. The said medical condition is not at all connected with PTCA but is due to hypertension.

4.     The Hospital sent a bill for Rs.3,78,347/- for the treatment. He made a claim with O.P on 13.07.2015 for the due payment of the same as the health policy obtained was in force along with required document. He had to issue notice to the O.P for settling his claim.  O.P has not responded to the said notice or to his letters requesting to settle the claim at the earliest. The O.P is bound to pay the claim made by him since he has disclosed the pre-existing medical condition of his parents.  Since the O.P have not taken any decision on his claim, there is deficiency in service and hence prayed the forums to allow the complaint.

5.     Upon issuance of notice, O.P appeared before the Forum and filed its version contending that the complaint is not maintainable in law or on facts and the head of the O.P has not been made as a party and the complaint is bad for non-joinder of necessary parties.  The insurer has given a  declaration that: “I hereby declare and warrant that the above particulars are true and complete. I consent and authorize the insurer to seek any information regarding the medical particulars of the person proposed from any medical establishment/medical practitioner/employer of any person. I agree that the proposal shall form the basis of the contract if insurance contract is effected. If it is found that, the statements, particulars, declarations, connected documents or any other information provided in the proposal form is incorrect or untrue or there is failure to disclose any particulars, the insurance company is not liable under this insurance. I have read the key features of this insurance and I am willing to accept the coverage provided by the Company.”

6.     Further before filing the proposal for insurance, the diseased Narayana Gowda had already availed treatment for his Ischemic heart disease, coronary heart disease and undergone surgery and adoption of TCA to LAD and RCA in the year 2011 have not been disclosed.  The death of Sri Narayana Gowda was due to the effect of complication of hypertension on the targeted organ. In the policy, the ailment and the complications due to hypertension are excluded.  Since as per the exclusion stated in the policy schedule and since the complainant had operated in the year 2011 for his heart ailment mentioned in the discharge summary dated 28.05.2014, they repudiated the claim of the complainant on 23.07.201. The policy was issued subject to the terms conditions and limitations and the policy holder agreed that exclusion of diabetes and hypertension and their complications including target organ damage.

7.     It is further contended that, without prejudice to their defense, as per exclusion Clause 5: “Out of the amount incurred against certain heads of expenses, “50% of cost will be borne by the insured himself in respect of the claims in regard to expenses of pre-existing disease as defined, and 30% cost will be borne in respect the claim which is not related to the pre-existing diseases and the maximum sum assured and the limits of liability would be Rs.1,19,550/- that is   applying Co-pay at 50% issued to the Claimant-petitioner”.

8.     In view of the same, they have taken the decision to repudiate the contract of insurance for not disclosing the previous heart surgery and hence there is no deficiency in service.  Further it is contended that since the insurance is on contractual terms, there is no scope for sympathetic view and no independent decision contrary to the terms, rules and regulations and procedure can be taken.  It has also denied the averments made para wise in the complaint and prayed the forum to dismiss the complaint. It is further contended that, they are liable to pay the claim in terms of the conditions of contract of insurance and the liability could be only Rs.1,19,550/- and hence  prayed the Forum to dismiss the complaint.

9.     On the other hand, the Complainant and O.P have filed their affidavit evidence and produced documents. Heard the arguments. The following points arise for our consideration:-

                   1)   Whether the complainant has proved

                        Deficiency  in service on the part of the

                        Opposite Party?

2)    Whether the Complainant is entitled to

                         the relief prayed for in the complaint?

10.   Our answers to the above points are:-

POINT NO.1:            In the Affirmative.

POINT NO.2:            Partly in the Affirmative.

                                For the following.

REASONS

POINT No.1:-

11.      Both the parties have reaffirmed their allegations and defense as per their complaint and version in the affidavit filed in lieu of their evidence. It is not in dispute that, the complainant obtained insurance under Senior Citizen Red Carpet Insurance scheme effective from 10.03.2015 till mid-night of 09.03.2016 for a sum of Rs.3,00,000/- each for his father K.Narayana Gowda and mother Smt.Gangalakshmi.  It is also not in dispute that the said policy was inforce when the father of the complainant suffered brain stem dysfunction due to intraventricular hemorruage at Sagar Hospital on 30.05.2015 and succumbed to death on 14.06.2015 and the intra ventricular hemorrhage is due to hypertension and not connected with S/PTCA. 

12.    It is also not in dispute that the claim made by the complainant for hospital charges and other related charges for Rs.3,78,347/- has been repudiated by the O.P on the ground that on investigation they found that the father of the complainant had undergone operation during 2014 and he was operated for coronary angioplasty by right femoral precautaneous arterial approach. It was diagnosed as hypertension, diabetes mellitus, IHD-S/P PTCA with stent with LAD and RCA (2011) acute coronary syndrome unstable angina, NSR, normal LV function and hence the same was not disclosed at the time obtaining the policy they have repudiated the claim of the complainant. However the O.P. has admitted that as per exclusion clause 5 of the policy, the expenses payable during the entire policy period in respect of the diseases /conditions is limited to the amount mentioned against the diseases and also admitted that they are ready to pay Rs.1,19,550/- only by applying the above condition.

13.     On perusing the document filed in respect, the cause for death of the father of the complainant is due to brain stem dysfunction due to Intraventricular Hemorrhage considered as due to cerobro vascular accident, O.P has to pay Rs.1,60,000/- and if the death is due to Intraventricular Hemorrhage as cardio vascular disease, O.P. has to pay Rs.1,60,000/- being the amount of liability against the insured amount of Rs.3,00,000/-. 

14. Though the policy clearly mentions that the complainant has informed the sufferance of diabetes and hypertension in respect of his father and mother, the policy issued clearly states that the exclusion of diabetes and hypertension and their complications including target organ damage.  In view of the admission of the OP that they have to pay 50% of the amount and in the absence of the complainant informing the previous diseases before getting the policy in respect of the medi-claim policy obtained towards his parents, we are of the opinion that the complainant is entitle for Rs.1,60,000/- towards the claim made by the complainant in the complaint along with interest at 12% per annum from the date of claim i.e. 13.07.2015.  Hence not paying the said amount amounts to deficiency in service and hence we answer Point No.1 affirmative and Point no.2 partly in the affirmative.

15.  The counsel  for  complainant and O.P have relied on the following decisions:

Complainant relied on HARI OM AGARWAL Vs Oriental Insurance Co. Ltd., dated 17.09.2007 in AIR 2008 DELHI 29.

 O.P relied the following decisions:

“1. Supreme Court of India in P.C. Chacko and Anr. Vs. Chairman, Life Insurance Corporation  of India & Ors. – SC-2007-1263 dated 20.11.2007.

2. Supreme Court of India in Oriental Insurance Co. Ltd., Vs. Samayanallur Primary Agricultural Coop.Bank – A No.8716/1997 dated 02.11.1999.

3. Appeal (Civil) 6277/2004, in United India Insurance Co. Ltd., Vs. M/s Harchand Rai Chandan Lal – 24.09.2004.

4. Supreme Court of India in Vikram Greentech (I) Ltd., & Anr Vs New India Assurance Co. Ltd. – Dated 01.04.2009.

5. Supreme Court of India in Oriental Insurance Co. Ltd., Vs Sony Cheriyan – in C.a. No.4913/1997 – Dated: 19.08.1999.

16.   We have gone through the said decisions. In view of the admission made by the O.P that he is liable to pay 50% of the insured amount as per Clause 5 of the condition, it is not necessary to go into the details of the said decisions.

17.   The complainant has sought Rs.50,000/- as damages towards mental agony and travelling expenses due to non settlement of the claim at the earliest.  The O.P ought to have informed the complainant that they are liable to pay Rs.1,60,000/- as per the Condition No.5 when the claim was made by the complainant in the repudiation letter dated 23.07.2015. On perusal of the said repudiation letter, it has rejected the claim of the complainant on the ground that no earlier medical history and health conditions were informed and there is misrepresentation/non disclosure of the material facts. Though the very policy itself clearly shows that the complainant had informed the insurance company regarding his father having diabetes and hypertension for the last 10 years and his mother having hypertension for last 6 years, it has issued the policy after fully knowing the said health condition.  The father of the complainant was aged about 74 years when the O.P issued the policy. It ought to have got the insurer medically examined to know the exact health condition. The same has not been done by the O.P though it very well knew that the hypertension and diabetes may affect the heart, brain, kidney as well as the vision. In view of this, the complainant was made to approach O.P several times and made him to knock the doors of this Forum. Hence we are of the opinion that if a sum of Rs.25,000/- towards damages for physical and mental sufferance and Rs.5,000/- towards litigations expenses if awarded would meets the ends of justice and hence pass the following:-

ORDER

1.   The Complaint is allowed in part with cost.

2.  O.P. i.e. Star Health & Allied Insurance Company Limited represented by its Authorized Signatory is hereby by directed to pay a sum of Rs.1,60,000/- being the cost of the medical expenses to the complainant along with interest at the rate of 12% per annum from the date of claim i.e. 13.07.2015 till the date payment of full amount.

3. Further O.P is hereby directed pay a sum of Rs.25,000/- as compensation and Rs.5,000/- towards cost of the litigation expenses.

4.  The O.P is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.

5. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 04^th of DECEMBER 2018)

MEMBER                        PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

CW-1:Sri K.N.Srinivas - Complainant.

Copies of Documents produced on behalf of Complainant/s:

Annexure-A & B: Xerox copy of the Senior Citizens Red Carpet Insurance policy .

Annexure C & D: Xerox copy of the details of Primary insured by O.p in favour of complainant. 

Annexure E.F 7 G: Xerox copy of the Death Summary, Test report and Discharge Summary.

Annexure H & J: Xerox copy of the letter dated 13.07.2015 and 13.10.2015 issued by complainant.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri G.Mahadevan, Local Regional Office.

Copies of Documents produced on behalf of Opposite Party/s

Document No.1: Copy of the proposal form.

Document No.2: Copy of the Report.

Document No.3: Copy of Discharge summary.

Document No.4: Copy of the letter of repudiation.

MEMBER                        PRESIDENT