IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 18th day of May, 2022
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 35/2020 (filed on 15-02-2020)
Petitioner : Raju John,
S/o. V.U. John,Vazhachira
Puthenpurayil House,
Chingavanam P.O.
Kottayam - 686531
(Smitha A.K.)
Vs.
Opposite party : M/s. United India Insurance
Company Ltd.
Geetha Trade Centre,
M.C. Road, Nagampadom,
Kottayam -686 001.
Rep. by its Branch Manager.
(Adv. P.G. Girija)
O R D E R
Smt. Bindhu R. Member
The complaint is filed underS.12 of Consumer Protection Act,1986.
The complainant availed a mediclaim policy as per the MOU of All Kerala Private Bankers Association and the opposite party. The complainant was having a policy with Oriental insurance Company and the same was upgraded to the said policy with the opposite party. The sum insured of the original policy was enhanced from Rs. 1,00,000/- to Rs.5,00,000/-by paying a premium of Rs.9872.75 including his wife and daughter. The complainant’s wife was admitted in Carithas Hospital from 29.08.2018 to 20.09.2018 for coronary artery disease. From 26.8.2018 to 29.08.2018 she was admitted in the medical centre, Kottayam and from there shifted to Carithas hospital. An amount of Rs.26,618 was settled by the opposite party as cashless claim at Medical centre and thereafter for the treatment at Carithas Hospital for a period of one month the opposite party had paid off all the bills. As the fact was so and the sum insured was Rs.5,00,000/- , the complainant expected that the opposite party would settle the final bill also.
But on 20.9.2018 a bill amounting to Rs.2,92,050/- was issued to the complainant by the hospital for payment. As the subsequent days were bank holidays, the complainant had to take very much strain and mental agony for collecting money from his friends. His ailing wife also was put to high mental stress.
The complainant paid an amount of Rs.1,92,050/- to the hospital and that was informed to the opposite party on 11.10.2018. On 02.11.2018 an authorized person called from the opposite party and informed that the claim was denied for some lame reasons. If the opposite party had intimated about the denial earlier, the complainant would have got sufficient time for arranging the money for the hospital bill payment. The act of the opposite party is a clear deficiency of service which caused great mental agony and loss to the complainant and his wife. Though the legal notice sent by the complainant demanding the balance payment and compensation, the opposite party replied stating false contentions without redressing the damages caused to the complainant. Hence this complaint is filed for compensation.
Upon notice, the opposite party appeared and filed version.
The opposite party in its version contended that the policy is admitted and the said policy was a continuation of the policy issued by Oriental insurance Co.Ltd. The enhancement of the sum assured also is admitted. The complainant’s wife was treated for CAD-TVD ( Coronary Artery Disease – Tripple Vessel Disease) with its aetiology-“Multi Factorial Diabetes” As per the medical records issued by the Caritas Hospital, the complainant had Diabetes mellitus for the past six years and the aetiology of her present illness ie. CAD is Diabetes mellitus. So the wife of the complainant had a pre existing disease of Diabetes mellitus which caused the recent illness .As per clause 2.30 the policy claim was excluded under pre existing disease. As per clause 3 and 14 of the MOU also the claim cannot be approved as it is a renewed policy. So the opposite party could honour a claim to the maximum of 1,00,000/- as the original sum assured is Rs.1,00,000/-. The dishonour of the balance claim of Rs.1,92,050/- was as per the MOU and policy.
The claim is normally settled on submission of the final bill. Only on submission of the final bill and discharge summary that the pre existing illness of the complainant was noted by the TPA. During the course of treatment, the pre-existing illness was not disclosed to the TPA. The insurance policy is issued to the members through their association.
There is no deficiency of service as alleged and the opposite party is not liable to pay compensation also.
The complainant has adduced evidence through proof affidavit and Exhibits A1 to A5 whereas the opposite party filed counter affidavit and exhibits B1 to B3.
On a detailed examination of the pleadings and evidence on record, we would frame the following points:
1.Is there any act of deficiency in service on the part of the opposite party?
2.If it is found so, is the complainant entitled for the reliefs prayed for?
Point No. 1
The complainant’s case is that his wife was admitted in the hospital for the treatment of Arthrosclerosis the expenses for the same was paid by the opposite party upto the final bill and denying the final payment. Hence the case is filed for the balance payment and compensation. The opposite party has contended the case as the repudiation was on the ground of pre-existing disease and as per the clauses in the policy and MOU.
Clause 2.30 of Exhibit B1, the insurancepolicy and conditions, states that PRE-EXISTING DISEASE – “Pre Existing Disease is any condition, ailment or injury or related condition (s) for which you add signs or symptoms, and/or were diagnosed, and / or received medical advice / treatment, within 48 months prior to the first policy issued by the insurer”.
This clause itself stipulates that the ailment for which the insured has taken treatment within 48 months prior to the inception of first policy is considered as the pre existing decease. Here, the complainant’s wife, who is a co insured was admitted in hospital on 29.8.18as per Exhibit A5.In A5 discharge card in clinical summary and in final diagnosis it is shown as Type II diabetes mellitus is diagnosed on admission. There is no mention of the existence of diabetes mellitus in past history of the patient. The past history is not at all mentioned.
Thus we find that from A5 document we cannot infer that the insured had been undergoing for treatment within the 48 months prior to the inception of the first policy.
Moreover, as the policy with the opposite party is a renewed enhanced policy of the original one, the date of inception of first policy is somewhere in 2005 according to the complainant and unchallenged. There is no contrary evidence produced by the opposite party. Though Exhibit B3 is produced, the opposite party has failed to establish that the said document proves the fact that the insured had been undergoing treatment for diabetes mellitus for a specified period prior to the date of policy. The B3 document is not properly executed and nothing is proved by Exhibit B3.
In the facts of the present case, the respondent – Insurance Company cannot take the plea of any pre-existing disease of the wife of the complainant as the policy was taken in the year 2005.
According to a plethora of judgements of honourable apex Fora also pre -existing decease has been interpreted. Cited “Kanwaljit SinghVs National insurance company Ltd.2019SC”.
Now, when the contentions of the opposite parties are considered the 1st contention is that the complainant had a pre-existing disease of Diabetes mellitus. According to the opposite party clause 2.30 of the policy, diabetes mellitus was a pre-existing condition of the patient, which was not disclosed by complainant at the time of filling the proposal form. As per the policy conditions all undisclosed pre-existing diseases are excluded from the coverage of the policy. Here the opposite parties have not produced any relevant documents to prove that the complainant had been suffering from and undergoing treatment for diabetes mellitus even before the enrolment to the policy.
As per the settled position also if the insured suffers a sudden sickness that is not expressly excluded under the policy, the insurer is to indemnify the expenses incurred (Manmohan Nanda Vs. United India Insurance Co. Ltd. CPJ 2022)
So as there is no sufficient evidence to prove that the insured was having pre existing Diabetes Mellitus, the said contention is not sustainable. The document relied by the opposite party is exhibit B2 which is the MOU between the opposite party and the All Kerala Private Bankers Associationsociety. In B2 document clause 3 is “Hospitalisation benefits for pre-existingdisease covered 25% of sum insured/maximum up to Rs. 50000/-.”As it is found that the contention of repudiation on the ground of pre existing decease is not sustainable, clause 3 of exbt B2 also cannot be taken into consideration.
Again the next contention of the opposite party is that the sum insured is only 1,00,000/- and they are bound to give a claim only within this limit. Clause 14 of the B2 document says “Renewals of similar health insurance policy of other insurers without break, will be treated as continuous insurance policy, as per their existing sum insured limit”.
So the policy should be considered as a continuous policy from 2005 and so the opposite party is liable to pay the claim amount within the limit of Rs.5,00,000/-. As the enhancement is only a process of increasing the policy coverage by the option of the insured and with the sanction of the insurer it shall not affect the original policy conditions and its coverage unless and until the insured is well educated about the change in policy if any by the insured at the time of enhancement. If the contention of exclusion period taken the opposite party, if a consumer of the policy intend to enhance his sum insured every year, he would be unable to claim any of the amounts as on each and every enhancement, the exclusion period of 24 months, 48 months and 30 days would start again. Thus all the claims would be said to be excluded by the company. This is an unfair trade practice. In Jacob Punnen Vs. United India Insurance Co. 2021 (6) KLT online 1185SC, it is held that the insurer was clearly under a duty to inform the appellant policy holder about the limitations which it was imposing in the policy renewed for 2003-2009. It’s failure to inform the policy holders resulted in deficiency in service. Unjustifiable non disclosure by the insurer about the introduction of clause of limitation constituted a deficiency in service.
The opposite party contented that the policy was issued (Ext.B1) according to the terms and conditions of B2, the MOU between the opposite party and All Kerala Private Bankers Association. The insured has no direct knowledge about the clauses of the MOU and there is no evidence to prove that the MOU and the policy conditions were communicated to the complainant.
An insurance policy is meant to indemnify the insured on payment of premium as and when needed. Enhancement means only an increase in the amount not a new policy all other terms and conditions of the previous policy will continue with the enhanced policy otherwise the insured should be duly intimated of the conditions newly incorporated if any.
Thus, here in the case on hand also the opposite party has not produced any cogent evidence to prove that the complainant’s wife was undergoing any treatment for diabetes mellitus at the time of the inception of the policy. Thus a clear deficiency of service on thepart of the opposite party is made out . Hence in the light of above discussion, we find that point no .1 is in favour of the complainant.
Point No2
The opposite party contended that as the original policy was for Rs.1,00,000/- they are liable only to give the claim below that amount and as there existed a treating decease within 48months of the policy, they only paid Rs.1,00,000/- and the balance amount of Rs.1,92,000/- cannot be paid by them. But it is found that a policy on renewal and enhancement is only a continuation of the previous policy and the insurer is bound to give the claim amount as per the enhanced sum insured.
Moreover, the complainant and his wife had to undergo severe mental agony due to the unreasonable act of the opposite party and hence the complainant is entitled for the balance amount and compensation.
Thus the complaint is allowed vide the following.
ORDER
- The opposite party is directed to pay Rs.1,92,050/- to the complainant with an interest at the rate of 9% from the date of discharge 20.09.18 till realisation.
- The opposite party is further directed to pay Rs.50,000/- towards compensation for the mental agony suffered by the complainant and Rs. 5,000/- as litigation cost.
Pronounced in the Open Commission on this the 18th day of May, 2022
Smt. Bindhu R. Member Sd/-
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Copy of policy issued by opposite party
A2 – Copy of lawyers notice dtd.18-01-19
A3 – Postal receipt
A4 – Postal AD card
A5 – Discharge summary dtd.20-09-18 issued by Caritas Hospital
A5(a) – Copy of cashless claim reference dtd.20-09-18 and IP bill dtd.20-09-18 issued by Caritas Hospital
Exhibits marked from the side of opposite party
B1 –Copy of group heal policy for the period of 20-12-17 to 19-12-18
B2 – Copy of Memorandum of Understanding dtd.15-12-17 between All Kerala Private Bankers Association and United India Insurance Co. Ltd.
B3 - Copy of cashless claimNumber 17728779
By Order
Assistant Registrar
