DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 398/2014
Date of Filing: Date of Admission Date of Disposal:
18.07.2014 28.07.2014 10.02.2015
PETITIONER = Vs. = O.Ps.
Sri Surajit Kundu, 1.The United India Insurance Co. Ltd,
S/o. Sri Amiya Krishna Kundu, 24, Whites Road, Chennai- 600014.
Banamalipur, Barasat, 2. The Branch Manager,
P.S. Barasat, The United India Insurance Co. Ltd,
Kolkata-700124, 7, K. B. Bose Road, Barasat,
Dist- North 24 Pgs. P.S. Barasat, Dist- North 24 Pgs.
3. The Regional Manager,
United India Insurance Co. Ltd,
“Himalaya House”, 2nd floor,
38B, Jawaharlal Nehru Road,
P.S. Park Street, Kol-700071.
4. Genins India TPA Ltd,
15, Ganesh Chandra Avenue,
3rd floor, Kolkata- 700013.
J U D G E M E N T
Facts of the case, in short, is that the complainant is a self-employed person and running a small scale business and he has to borne the entire responsibilities of his family and he has to maintain his family and dependants out of his earning from his business. The family of the complainant consists of the complainant himself, his wife Smt. Sutapa Kundu, his minor daughter baby Srotoswini Kundu and his mother Smt. Rani Kundu, since deceased, and the complainant and his entire family members were under coverage of the said Insurance Policy since 29.04.03 onwards and the said policy has been renewed from time to time by the complainant by regular payment of premium, under the terms and condition as framed by the Insurer, that is the O.P. No.1, and observing all the formalities as per the requirement of the Insurer and the said policy is still valid and subsisting / or in effect.
Dictated and corrected Contd. …. 2/-
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The complainant stated that he has lastly renewed the said Health Insurance Policy, bearing Policy No. 0310012813P100090548 on 17.04.13 paying the premium of Rs. 28,333/- only, as fixed by the Insurer, within time, through an agent appointed by the Insurer, namely Nityananda Dutta, having his agent code AGD0001870 and the said policy was in effect till the midnight of 16.04.14.
The complainant further stated that the category of the Health Insurance Policy covering the complainant, his wife and daughter was a “Platinum Policy” whereas his mother Smt. Rani Kundu, since deceased was covered under a “Gold Policy” and to that effect the total amount of premium as paid by the complainant for those policies on 17.04.13 was Rs. 28,333/- only.
The complainant also stated that it is also necessary to mention here that under the said Individual Health Insurance Policy (which covered all the family members of the complainant against the cost of treatments of their ailments subject to the deceases expressly excluded under the policy terms) the insured agreed to protect the complainant for medical expenses upto of Rs. 5,00,000/- only, the wife of the complainant for medical expenses upto Rs. 2,25,000/- only, the daughter of the complainant upto Rs. 2,50,000/- only and the mother of the complainant Smt. Rani Kundu, since deceased, was covered under the said health policy for medical expenses upto Rs. 5,00,000/- only.
The complainant further stated that very unfortunately one of the insured under the aforesaid health Insurance Policy, namely Smt. Rani Kundu, Wife of Amiya Krishna Kundu, i.e. mother of the complainant suddenly became serious ill and she was admitted to Jubilant Kalpataru Hospital at Barasat on 31.01.14 and immediately after her admission to the said hospital the complainant intimated the Insurer and on behalf of the insurer the O.P. No.4 mediated the entire process and transactions on behalf of the O.P. Nos. 1,2 & 3 respectively.
The complainant also stated that on 01.02.14 the health condition of the patient, that is of Smt. Rani Kundu, mother of the complainant suddenly deteriorated as she was suffering from severe breathlessness and as per the instruction of the doctor she had been shifted to a Super Specialty Hospital, namely Medica Super Specality Hospital.
Dictated and corrected Contd. …. 3/-
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The complainant further stated that on 03.02.14 the Branch Manager of the Insurance Company, the O.P. No.2 issued a sanctioned letter (Claim Control No. UN-8-2275) in terms of the disbursement of the initial claim amount as per the terms of the policy as renewed for the period of 2013 to 2014 and sanctioned an amount of Rs. 15,000/- only, towards payment of Room rent, Nursing and Barding Charges of Rs. 5,000/- per day and in case of ICU/CCU treatment of Rs. 10,000/- per day maximum. It is further to be mentioned that on 06.02.14 the O.P. No.3 had further issued another authorization letter for an amount of Rs. 50,000/- ( towards payment of room rent+ nursing +boarding Rs. 5,000/- per day and in case of ICU/ CCU maximum Rs. 10,000/- per day.
The complainant also stated that again on 14.02.14 the O.P. No.3 had further issued and another authorization letter for amount of Rs. 70,000/- but surprisingly this time the O.P. No.4 has unlawfully and arbitrarily reduce the allotment amount i.e. subject to room rent +nursing + boarding Rs. 2,500/- per day and in case of ICU/CCU Rs. 5,000/- per day maximum i.e. Rs. 2,500/- less under the head of room rent+ nursing +boarding and Rs. 5,000/- less under the head of in case of ICU/CCU.
The complainant further stated that on 18.02.14 the O.P. No.4 again issued an another authorization letter (claim control No. UN-8-2275) for an amount of Rs. 90,000/- only, (subject to room rent+ nursing + boarding Rs. 5,000/- per day and in case of a maximum ICU/CCU, Rs. 10,000/- per day which is in terms of the existing policy after renewal for the period of 2013 to 2014. In this regard it is totally clear that the O.P. no.3 has contradicted /misdirected itself in altering the amounts of sanctioned by itself in various authorization letters (Claim Control No. UN-8-2275).
In this regard, the complainant stated that the policy was renewed by the complainant timely before its termination, observing all the requirement of the O.P. No.1/ Insurer and the said newly renewed policy came into effect on and from 17.04.13 and the mother of the complainant one of the insured under the said policy i.e. Smt. Rani Kundu (since deceased) was admitted in the hospital on 31.01.14, i.e. after 9 months of renewal of the said policy, that is on 17.04.13 and the O.P. No.4 initially sanctioned the amount in terms of the said renewed policy but subsequently reduced the sanctioned amount by issuing a letter dated 14.02.14 and started to sanction amount, from time to time, for the treatment of the insured, since deceased, under the terms and conditions as laid down by the Insurer in its previous policy as came in effect in the year 2012.
Dictated and corrected Contd. …. 4/-
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The complainant further stated that in the meantime, that is on 19.02.14 the said Smt. Rani Kundu (since deceased) was discharged from Medica Super Specality Hospital and on the same date she was re-admitted in Jubilant Kalpataru Hospital and she remains admitted tillo 24.02.14 and again on 24.02.14 she was admitted in Dum Dum Municipal Specialized Hospital and there from she was ultimately discharged on 21.03.14. The complainant thereafter again wrote a letter dated 24.02.14, addressed to the O.P. No.4 for reimbursement of the said amount but the O.P. No. 4 only sanctioned an amount of Rs. 20,000/- only.
The complainant also stated that on 17.03.14 the complainant wrote a letter addressed to the O.P. No.4, requesting the authority concern to release the entire amount that is the sum assure in favour of the complainant because total sum assure under the policy, which the insurer promised to pay at the time of its renewal for medical treatment of said Smt. Rani Kundu, since deceased, had already been spent, but the Insurer only disbursed an amount of Rs. 2,50,000/-.
The complainant further stated that very unfortunately on 28.03.14 the said Rani Kundu died and the cause of the dead was declared as cardio respiratory failure in a case of chronic kidney disease with mitral stenosis and atria fibrillation with diabetes mellitus and sepsis and after her death department of Health & Family Welfare of Barasat Municipality issued a Death Certificate being registration No. WB-DR-2014/20005/1/423, being No.2000515292/DC/2014, date of registration on 11.04.14.
The complainant further stated that said Rani Kundu since deceased, before renewal of the said policy had never suffered from any such disease any time of her life and also before the renewal of the insurance policy for the period of 2013 to 2014 and she was physically fit and there is no such evidence which proves that she was suffering from any such serious disease even at the point of renewal of the said policy which resulted to her death. The insurer has only tried to exempt their liability under the renewed policy taking the shield of clause 5.10.4 of the policy, but it cannot be allowed to take advantage of the said clause as the deceased was not suffering from any serious disease at the time of renewal of the said policy on 17.04.13 and enhancement of coverage.
The complainant also stated that due to the immoral activities, sheer deficiencies in services and unlawful trade practice on the part of the Insurer and the TPA appointed by the Insurer not disbursing the amount actually payable to the Insured for her treatment. Hence the case.
Dictated and corrected Contd. …. 5/-
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The O.P. Nos. 1 to 3 have contested the case by way of filing written version.
The O.Ps stated that O.P. No.4 scrutinized the all treatment prescriptions, medical reports and patient’s discharge certificate through their Panel Medical Officer and at the time of scrutinize of the said papers, the Medical Officer of the O.P. No.4 detected that the insured person i.e. Smt. Rani Kundu had previous history of RHD-Rheumatic heart disease with moderate MR HTN and chronic AF-all of which are chronic in nature and manifested itself by late 30’s, the present condition being proximately related to the same underlying pathology, the sum insured was decided to be restricted by the O.P. No.4’s Medical Officere (doctor) and the final approval with sum insured restriction was allowed as per policy condition. Be it mentioned here that the policy of the insured person i.e. Smt. Rani Kundu was renewed with effect from 17.04.13 enhancing the sum insured coverage from Rs. 2,50,000/- to Rs. 5,00,000/- in full knowledge and Agreement and the Agreement of the fact that the enhanced sum insured of Rs. 2,50,000/- shall attract clause 5.12/5.13 of the policy terms and conditions that is any disease or its complication thereof prior too sum enhancement shall be excluded from coverage for the enhanced sun insured. It also be noted that since it was not clear about the diagnosis whether the suffering ailments/ disease was prior to enhance sum insured, the approval was ehnaced in phase wise manner depending upon the bill submitted by the said treating hospital only at the end and when it was found from the discharge certificate issued by the Jubilant Kalpataru Hospital and Medica Super Specialty Hospital that insured person i.e. Smt. Rani Kundu had previous history of RHD –Rheumatic Heart Disease with moderate MR, HTN and Chronic AF- all of which are chronic in nature and manifest itself and laying with the Pathology report by late 30’s, the present condition being proximately related to the same underlying pathology. That before finalization of the complainant’s claim arising out of the said policy, the O.P- Company placed all medical prescriptions, discharge certificate and pathological report of the insured person i.e. Smt. Rani Kundu before their panel doctor for determination of sum insured as well as the O.P- Company also requested the complainant to submit the previous treatment paper in the name of the insured person and after receiving the said letter from the O.P. no.4, the complainant submitted a written declaration on 10.02.14 that Smt. Rani Kundu never suffered any RHD, HTN. That after verification of discharge certificate as well as pathology report of the insured person i.e. Smt. Rani Kundu, by the doctor of the O.Ps , the sum insured was decided to be restricted and final approval with sum insured restriction was allowed as per policy condition.
Dictated and corrected Contd. …. 6/-
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The said O.Ps further stated that as per medical documents the insured was suffering with Rheumatic Heart disease with its affect MR and chronic AF, all being Chronic in nature with onset of symptoms in the middle age group were definitely pre-existing to enhancement of sum insured form Rs. 2,50,000/- to Rs. 5,00,000/- and the same being a proximate cause for the present hospitalization claims and the non-availability of enhanced sum insured will not be available for treatment of the present hospitalization disease conditions. Hence they prayed for dismissal of this case.
The O.P. no.4 has contested the case by way of filing written version.
The O.P. No.4 stated that as per the complainant the policy of the patient was renewed with effect from 14.04.13 enhancing the sum insured coverage from 2.5 lakhs to 5 lakhs in full knowledge and Agreement of the fat that the enhanced sum insured of 2.5 lakhs shall attract clause 5.10.4 read with 5.13 A renewed policy of the policy terms and conditions that is any disease or its complication thereof prior to sum enhancement shall be excluded from coverage for the enhanced sum insured, the point which the complainant willfully omitted in order to distract the attention of the Ld. Forum from this very basic fact of any insurance coverage that only unknown risk will be covered not which is known.
The O.P. No.4 further stated that the further contention of the complainant that the patient never had suffered from any disease prior to enhancement of the sum insured as baseless and founded on any evident grounds as it may please be noted that Rheumatic Heart Disease with disease its complication of having moderate mitral stenosis and chronic Atrial fibrillation does not develop at this age of 67 years- rheumatic fever affects the children and the cardiac pathology gets established by teenage and the full manifestation of the rheumatic heart disease gets manifested by adulthood- this is further evident from the fact that at many places in the treatment sheet it is noted clearly that the patient was on medication for her chronic AF.
The O.P. No.4 also stated that the claim settlement as per the medical condition and policy clause 5.10.4 is within the parameters of policy Agreement and hence no deficiency exists on part. Hence the O.P prayed for dismissal of the case.
Point for Decision:-
Whether the complainant is entitled to get any relief as prayed for?
Dictated and corrected Contd. …. 7/-
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Decision with Reasons
Both parties have filed affidavit-in-chief. We have perused the same and we have heard the same for the Ld. Lawyers of both parties.
According to the O.Ps, the insured person i.e. Smt. Rani Kundu re-admitted in the Jubilant Kalpataru Hospital for further treatment on 24.02.14 and the complainant wrote a letter to the O.Ps for cash less treatment as well as reimbursement of balance money. After receiving of the complainant’s declaration, the O.Ps- companies officially informed the treating Hospital on 10.02.14 that available limit had been exhausted in previous claim, cashless cannot be accorded submit for “Re-imbursement Evaluation” through fax and sanctioned Rs. 20,000/- with a note that “SI RESTRICTED On Rs. 2,50,000/- ONSET OF DISEASE CONDITION BEFORE ENHANCE SI.” O.Ps denied that Smt. Rani Kundu since deceased, before renewal of the said policy had never suffered from any such disease any time in her life and also before renewal of the Insurance Policy for the period of 2013 to 2014 and she was physically fit and there is no such evidence which proves that she was suffering from any such serious disease even at the point of renewal of the said policy which resulted to her death. It is argued by the Ld. Lawyer for the O.P. Nos.1 & 4 that before admission of Jubilant Kalpataru Hospital on 31.01.14, the insured person i.e. Smt. Rani Kundu was under treatment of Dr. P. K. Guha Neogi and as per prescription dated 02.07.13 issued by the Dr. Partha Guha Neogi, it is very clear from the prescription of the Dr. P. K. Guha Neogi that the insured person had RHD disease. It is needed to mention here that the patient i.e. Smt. Rani Kundu never had suffered from any disease prior to enhancement of sum insured is baseless and founded on any
evident grounds as it may please be noted that Rheumatic Heart Disease with disease its complication of having moderate mitral stenosis and chronic Atrial fibrillation does not develop at this age of 67 years- Rheumatic fever affects the children and the cardiac pathology gets established by teenage and the full manifestation of the RHD gets manifested by adulthood. It is further evident from the fact that at many places in the treatment sheets it has been noted clearly that the patient was on medication for her chronic AF. It is fact that the insured had symptoms related to Rheumatic Heart Disease, is clear from the presence of SOB, Palpitation and swelling of feet with normal blood pressure during her consultation in July 2013 for which she was prescribed medication. The insured
Dictated and corrected Contd. …. 8/-
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was given a chance to submit all prior consultation with a doctor. The insured was given a chance to submit all prior consultation documents including any medical records prior to sum insured enhancement, but the same was produced for scrutiny and on the other hand the insured person’s son stated in his declaration that the patient never had any problem and even the RHD was detected at the time of admission which is quiet contrary to medical documents subsequently submitted reflecting presence of RHD and its effect even prior to hospitalization though all papers since onset were not submitted for evaluation.
Clause 5.12 & 5.13 says that –
5.12 ENHANCEMENT OF SUM INSURED:-
The insured may seek enhancement of Sum Insured in writing at or before payment of premium for renewal, which may be granted at the discretion of the Company. However, notwithstanding enhancement, for claims arising in respect of ailment, disease or injury contracted or suffered during a preceding policy period, liability of the company shall be only to the extent of the Sum Insured under the policy in force at the time when it was contracted or suffered during the currency of such renewed policy or any subsequent renewal thereof.
Any such request for enhancement must be accompanied by a declaration that the insured or any other insured person in respect of whom such enhancement is sought is not aware of any symptoms or other indications that may give rise to a claim under the policy. The Company requires such insured persons’ to undergo a Medical examination to enable the company to take a decision on accepting the request for enhancement in the Sum Insured.
5.13 Cancellation Clause:-
The company may at any time cancel the policy on grounds of misrepresentation, fraud, non-disclosure of material fact or non-coopeeration by the insured by sending fifteen days notice in writing by Registered A/D to the insured at his last known address in which case the Company shall return to the insured a proportion of the last premium corresponding to the unexpired period of insurance if no claim has been paid under the policy. The insured may at any time cancel this policy and in such event the Company shall allow refund of premium at Company’s short period rate table given below provided no claim has occurred upto the date of cancellation.
Dictated and corrected Contd. …. 9/-
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PERIOD ON RISK RATE OF PREMIUM TO BE CHARGED
Upto one month 1/4th of the annual rate
Upto three months ½ of the annual rate
Upto six months 3/4th of the annual rate
Exceeding six months Full annual rate.
Ld. Lawyer for the complainant relied on a decision reported in 2014(3) CPR 178 wherein it has been held that non disclosure of latent disease does not amount to suppression of material fact.
Another decision referred by the Ld. Lawyer for the complainant is (1998) 1 CPJ (NC) 45/(1996)1 CPR(NC)129/(1996) 1 CPC (NC)528 LIFE INSURANCE CORPORATION OF INDIA Vs. SANJEEV MAHENDRALAL SHAH wherein it has been held that “ The State Commission after a detailed and reasoned analysis of the evidence on the record rightly came to the conclusion that the proved facts are suggestive of the straight forward conduct of the insured and her husband both before and after the malignancy was detected and also of the fact that neither the insured, nor her husband nor all the doctors and experts had any reason to suspect that the lump which was found on the neck of the insured had malignancy. Following facts noticed by the State Commission may be reproduced:-
Result:- Appeal dismissed.
In Life Insurance policies, an assured is not required to disclose casual ailments not requiring any treatment or consultation with a medical doctor and the sickness, ailment which is required to be disclosed with reference to serious disorders in health. “
We have carefully gone through the materials on record. There is no such document to disbelieve the prescription of Dr. Partha Guha Neogi who diagnosis the complainant’s mother was admitted after 6-7 months of the extension of insurance policy, but it cannot be said that mother of the complainant did not suffer from any disease prior to enhancement of Sum Insured. After perusal of several medical literatures that RHD with disease its complication of having moderate mitral stenosis and chronic Atrial fibrillation does not develop at this age of 67 years. It is also noted clearly that the mother of the complainant was on medication for her chronic AF.
Dictated and corrected Contd. …. 10/-
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But considering the decision of National Consumer Redressal Commission, New Delhi i.e. (1998) 1 CPJ that the O.Ps failed to prove that insured had any knowledge that she was suffering from RHD. It is a fact that the complainant had already received Rs. 2,50,000/- against the first policy.
Considering the materials on record, we are of the view that the O.P. Nos. 1 to 3 are liable to pay Rs. 30,000/- to the complainant for pain and sufferings.
In view of the above discussion, we are hold that the complainant is entitled to get relief as prayed for.
Hence
Ordered,
that the complaint be and the same is allowed on contest against the O.Ps. in part.
O.P. Nos. 1 to 3 are directed to pay Rs. 30,000/- to the complainant for pain and sufferings within one month from the date of this order.
The O.P. Nos. 1 to 3 are further directed to pay Rs. 3,000/- as litigation cost to the complainant within one month from the date of this order.
In the event of non- compliance of any portion of the executable order by the O.P Nos. 1 to 3 within the above specified period, the said defaulting O.Ps. shall have to pay a sum of Rs. 100/- per day from the date of this order till its realization, as punitive damages, which shall be deposited by the said O.Ps in the State Consumer Welfare Fund.
Let copies of the order be supplied to the parties free of cost when applied for.
Member Member President
Dictated & Corrected by me.
