IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Dated this the 27th day of February, 2023
Present: Sri.Manulal.V.S, President
Smt.Bindhu.R, Member
Sri.K.M. Anto, Member
CC No. 96/2021 (Filed on 25/06/2021)
Complainant : V.M.Safar, Valiyakunnathu (H)
1st Mile, KE Road
Kanjirappally Village
Kanjirappally Taluk
Anakkallu P.O-686508
(By Adv.K.S.Asif)
Vs
Opposite parties : 1. Vidal Health TPA Pvt Ltd
ANMOL PALANY, No.88
GN Chetty Road, L2, T Nagar
Chennai.
2. Divisional Manager
United India Insurance Co.Ltd
Divisional Office 010500
Catholic Centre, 64-Armenian Street
Chennai-600001
3. Divisional Manager,
United India Insurance Co.Ltd
Divisional Office
Geetha Trade Centre, Floor No.2
MC Road, Nagampadom
Kottayam-686001
(By Adv.P.G.Girija)
4. Indian Bank
Co Bancassurance Service Centre
254-260, Avvai Shanmugam Salai
Chennai-600001.
(By Adv.Thomas Kurian)
O R D E R
Sri.Manulal.V.S, President
The complaint is filed under section 35 of the Consumer Protection Act 2019.
Case of the complainant is as follows: The complainant is a medi claim policy holder of the first opposite party by name Arogya Raksha vide policy number 0105002019484100001083662. The features of the said policy cover extends to the policy holder, spouse, dependent parents and two dependent children. The complainant having a continuity of medi claim policy from
04-03-2005 to 03-03-2019 by name Happy Floater Policy of Oriental Insurance Company. The complainant switched to second opposite parties Arogya Rakha policy from 01-10-2018 and thereafter renewed the said policy on 01-10-2019 after paying a premium of Rs.16,863/-.
The complainant’s wife Laila Safar underwent a surgery on January 2020 at Dr. Naushad’s, ENT Hospital and Research Centre, Cochin and discharged from the hospital after surgery on 14-01-2020. The treatment expenses of the surgery was Rs.55,000/-. Though the complainant submitted a claim form to the first opposite party along with the bills and treatment details for reimbursement of the medical bills, there was no response from the first opposite party. After repeated request and demands the opposite parties informed orally that his claim was rejected. The opposite parties told the complainant over phone that the claim was rejected due to the reason that the policy has not completed two years. According to the complainant his policy is a switch over policy and it has got continuity right from 04-03-2015. It is specifically written down in the features of the policy that continuity will be provided in case of switchover from the other insurance companies. The rejection of the complainant claim is violation of the policy conditions and amounts to deficiency in service on the part of the opposite parties. Hence this complaint is filed by the complainant praying for an order to direct the opposite parties to reimburse Rs.55,000 along with a compensation of Rs.20,000/- and Rs.10,000/- as cost of this litigation.
Upon notice opposite third and fourth opposite parties appeared before the commission and filed version. Despite the receipt of notice from this commission the first and second opposite party neither care to appear before the commission nor to file version. Hence first and second opposite parties are set ex-party.
Version of the third opposite party is as follows:
The third opposite party had issued Arogya Raksha vide policy number 0105002019484100001083662 to the complainant initially from 01-10-2018 to
30-09-2019 and then from 01-10-2019 to 30-09-2020. The policy was issued as a tie up policy with the Indian bank for its account holders. The policy is issued in good faith on the basis of the declaration and details entered in the proposal form. As per proposal form in the column of previous insurance history and column of existing illness/injury are kept blank. So, the complainant has not disclosed any previous insurance policy. So even if there is any policy it was not ported to the present policy. Prior approval for portability of the previous insurance policy was not obtained from the third opposite party while taking Arogya Raksha Policy. Hence Arogya Raksha Policy can be considered as a fresh policy and continuity benefits are not available to this policy.
The ailment for which the patient is admitted and treated is a complication of the pre-existing disease. As per case record and discharge summary of the complainant’s wife Laila Safar from Dr.Noushd’s ENT Hospital and Research Centre, the diagnosis was Bilateral COM (Chronic Otatis Media) which is mucosal disease with moderate hearing loss. It is stated that she had complaints of ear discharge with impared hearing since one year and the past history shows that she had undergone bilateral ear surgery thirty years back. The present treatment was also for Bilateral COM. As per Arogya Raksha Policy any pre-existing disease will be covered under the policy only after completion of 36 months continuous coverage. So the claim was repudiated on pre-existing disease under cause 4.1 of the policy. There is no deficiency in service on the part of the third opposite party.
Version of the fourth opposite party is as follows:
The complainant has initially availed a Health Insurance Policy from the Oriental Insurance company which is not a partner of the fourth opposite party. The petitioner received the said policy from Oriental insurance Company in the name of Happy Floater Policy which had maturity date till 03-03-2019. Subsequently on 10-10-2018 the complainant availed the health policy of fourth opposite party by name Arogya Raksha policy with maturity till 30-09-2019. But then the complainant joined the policy of the fourth opposite party he failed to mention about the existing policy he had with the oriental insurance company. No claim certificate from the fist opposite party were also not submitted along with the proposal form. The complainant ought to have given the details of previous policy at the time of switching over to a new policy. Thus in the above circumstances the complainant cannot claim that he has a continuity of medi claim policy from
04-03-2005 onwards. The claim made by the complainant before he fourth opposite party was rejected for the reason that the policy has not completed three years, which is a minimum waiting period in the said insurance policy availed with the fourth opposite party regarding the existing disease. There is no violation of policy condition or unfair trade practice or any sort of deficiency of service on the part of the fourth opposite party.
Complainant filed proof affidavit in lieu of chief examination and marked Exhibit A1 to A6 from the side of the complainant. M.K.Suresh Kumar who is the Divisional Manager of the second opposite party filed proof affidavit in lieu of chief examination and marked Exhibit B1 to B3 from the side of the third opposite party. Suraj Prasanna Das who is the Chief Manager of the second opposite party filed proof affidavit in lieu of chief examination. No documentary evidence on the part of the fourth opposite party.
On the basis of the contention of the rival parties we framed the following issues for consideration.
- Whether the opposite parties committed any deficiency in service as alleged?
- Regarding the relief and costs?
Point number 1 and 2.
There is no dispute on the fact that the complainant had had availed a Arogya Raksha vide policy number 0105002019484100001083662 from the third opposite party initially from 01-10-2018 to 30-09-2019 and then from 01-10-2019 to 30-09-2020. On perusal of Exhibit A1 policy we can see that the complainant, his wife Laila Safar and daughter Faima Safar were the insured persons and the sum insured was Rs.7,00,000/-. It is proved by Exhibit A6 that the wife Laila Safar was treated at DR. Noushd’s ENT Hospital and research Centre, the diagnosis was Bilateral COM (Chronic Otatis Media) which is mucosal disease with moderate hearing loss from 12-01-2020 to 14-01-2020. It is further proved that the procedure done at hospital was Left Revision cortical Mastoidectomy with Tympanoplasty Type III LA. The claim of the complainant was repudiated by the third opposite party on the ground that as per Arogya Raksha policy any pre-existing disease will be covered under the policy only after completion of 36 months continuous coverage.
The specific case of the complainant is that his policy is a switch over policy and it has got continuity right from 04-03-2015. In order to prove his case the complainant produced A2 Happy family Floter 2015- Policy certificate. On perusal of exhibit A2 we can see that the period of coverage of said policy was 04-03-2018 to 03-03-2019. It is further proved by Exhibit A2 that the said policy was in continuation of the policy issued for the period of 04-03-2015 to 03-03-2016. However on perusal of Exhibit A1 policy which is issued by the second opposite party we can see that the date of inception of the said policy was 01-10-2018. Thus it is evident that the complainant has availed exhibit A1 policy after the expiry of seven months from the expiry of Exhibit A2 policy. Hence we cannot accept the argument of the complainant that he had got continuity right from 2015.
According to the third opposite party the treatment for which the wife of the complainant underwent was a pre-existing disease. The third opposite party relied on Exhibit B3 which is the case record and discharge summary from Dr. Noushad’s ENT Hospital. On perusal of Exhibit B3 we can see that it was recorded that the patient had a past history of bilateral ear surgery 30 years back and suffering from bilateral ear discharge with impaired hearing since one year. According to the third opposite party as per clause 4.1 of the policy pre-existing disease will be covered under the policy only after completion of 36 months continuous coverage. In Oriental Insurance Co. Ltd. vs Yogesh Kapoor disposed on 14 December, 2006 Hon’ble Delhi State Commission has held as under “
To sum up our conclusions are as under:-
(i) Disease means a serious derangement of health or chronic deep-seated disease frequently one that is ultimately fatal for which an insured must have been hospitalized or operated upon in the near proximity of obtaining the mediclaim policy.
(ii) Such a disease should not only be existing at the time of taking the policy but also should have existed in the near proximity. If the insured had been hospitalized or operated upon for the said disease in the near past, say, six months or a year he is supposed to disclose the said fact to rule out the failure of his claim on the ground of concealment of information as to pre-existing disease.
(iii) Malaise of hypertension, diabetes, occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in and out of the house and are controllable on day to day basis by standard medication and cannot be used as concealment of pre-existing disease for repudiation of the insurance claim unless an insured in the near proximity of taking of the policy is hospitalized or operated upon for the treatment of these diseases or any other disease.
(iv) If insured had been even otherwise living normal and healthy life and attending to his duties and daily chores like any other person and is not declared as a diseased person as referred above he cannot be held guilty for concealment of any disease, the medical terminology of which is even not known to an educated person unless he is hospitalized and operated upon for a particular disease in the near proximity of date of insurance policy say few days or months.
(v) Disease that can be easily detected by subjecting the insured to basic tests like blood test, ECG etc. the insured is not supposed to disclose such disease because of otherwise leading a normal and healthy life and cannot be branded as diseased person.
(vi) Insurance Company cannot take advantage of its act of omission and commission as it is under obligation to ensure before issuing medi-claim policy whether a person is fit to be insured or not. It appears that insurance Companies dont discharge this obligation as half of the population is suffering from such malaises and they would be left with no or very little business. Thus any attempt on the part of the insurer to repudiate the claim for such non-disclosure is not permissible, nor is exclusion clause invokable.
(vii) Claim of any insured should not be and cannot be repudiated by taking a clue or remote reference to any so-called disease from the discharge summary of the insured by invoking the exclusion clause or non-disclosure of pre-existing disease unless the insured had concealed his hospitalization or operation for the said disease undertaken in the reasonable near proximity as referred above.
(viii) Day to day history or history of several years of some or the other physical problem one may face occasionally without having landed for hospitalization or operation for the disease cannot be used for repudiating the claim. For instance an insured had suffered from a particular disease for which he was hospitalized or operated upon 5, 10 to 20 years ago and since then had been living healthy and normal life cannot be accused of concealment of pre-existing disease while taking mediclaim policy as after being cured of the disease, he does not suffer from any disease much less the pre-existing disease.
(ix) For instance, to say that insured has concealed the fact that he was having pain in the chest off and on for years but has never been diagnosed or operated upon for heart disease but suddenly lands up in the hospital for the said purpose and therefore is disentitled for claim bares dubious design of the insurer to defeat the rightful claim of the insured on flimsy ground. Instances are not rare where people suffer a massive attack without having even been hospitalized or operated upon at any age say for 20 years or so.
(x) Non-disclosure of hospitalization/or operation for disease that too in the reasonable proximity of the date of mediclaim policy is the only ground on which insured claim can be repudiated and on no other ground.
It is pertinent to mention that the medi claim policies are on yearly basis and therefore if a patient does not suffer from any disease or not hospitalized for a period of atleast one year prior to the taking of the medi claim policy. He is not supposed to disclose anything.”
A person cannot reasonably be expected to remember all ailments/ treatments/ investigation/medication etc. undertaken in his life and failure to mention them cannot be held to be a ground for the insurer to repudiate the contract at its discretion. Thus we are of the opinion that the second and third opposite parties has committed deficiency in service by repudiating the claim of the complainant stating that the treatment which was undertaken by the wife of the complainant thirty years back is a pre-existing disease .
It is proved by Exhibit A6 that the complainant had spent Rs.55,000/- for the treatment of Leila Safar. Therefore we are of the opinion that the complainant had proved his case and the complaint is to be allowed. Hence the complaint is allowed ad pass the following order.
We herby direct the second and third opposite parties to pay Rs.55,000/- to the complainant along with 9% interest from 25-06-2021 ie the date on which the complaint is filed till realization.
We hereby direct the second and third opposite parties to pay Rs.20,000/- as compensation to the complainant for the deficiency in service on the part of the second and third opposite parties .
We hereby direct the second and third opposite parties to pay Rs.3,000/- as cost of this litigation to the complainant
Order shall be complied within 30 days from the date of receipt of the copy of this order, failing which the compensation amount will carry 9 % interest till the date of realization.
Pronounced in the Open Commission on this the 27th day of February, 2023.
Sri.Manulal.V.S, President sd/-
Smt.Bindhu.R, Member sd/-
Sri. K.M. Anto, Member sd/-
Appendix
Exhibits marked from the side of complainant
A1- Copy of the Arogya Raksha Policy Vide No.0105002019484100001083662, dated 03.10.2019 of United India Insurance Co.Ltd.]
A2- Copy of the Happy Family Floater -2015 Policy Schedule,
A3- Copy of the letter to the M/s Vidal Health Insurance TPA service Kochi, dated 10.02.2020.
A4- Copy of the letter to the Vidal Health TPA service, Kochi, dated 25.06.2020.
A5- Copy of the bill dated 14.01.2020 issued by Dr.Noushad’s ENT Hospital & Research Centre Cochin.
A6- Copy of case record and discharge summary dated 14.01.2020 issued by Dr.Noushad’s ENT Hospital & Research Centre, Cochin
Exhibits marked from the side of opposite party
B1- Copy of the Policy cum certificate for Arogya Raksha vide No.0105002019484100001083662, dated 03.10.2019 of United India Insurance Co.Ltd
B2- Copy of the application for Arogya Raksha.
B3- Copy of the case record and discharge summary dated 14.01.2020 issued by Dr.Noushad’s ENT Hospital & Research Centre, Cochin.
By order
sd/-
Assistant Registrar
