IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated, the 30th day of November 2022.
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
C C No. 59/2018 (Filed on 31-03-2018)
Complainant : (1) Sunny George,
S/o. P.J. Varkey,
Pulikkathazhe (H) Kottapuram P.O.
Palakkad, Now at Pulikkathazhe (H)
Plassanal P.O. Kottayam – 686579
(Adv.Avaneesh V.N. and Adv. Giri J.)
Additional Complainant (2) Nessy Sunny
2 & 3 (Impleade as per W/o. late Sunny George
IA 187/2021) Pulickathazhe (H) Thalappalam,
Plazanal, Kottayam – 686579
(3) Merin Sunny,
D/o. late Sunny George,
Pulickathazha (H) Thalapalam,
Plazanal, Kottayam – 686579
(Rep. by her Mother Nessy Sunny)
(For 2nd &3rd ptr.Adv. Avaneesh V.N.)
Vs.
Opposite parties 1 and 2 : (1) HDFC ERGO General
(As per IA 417/21 Appolo Munich Insurance Company . Ltd.
Health Insurance Co. Ltd. amended as Rep. by its Managing as HDFC
HDFC ERGO General Insurance Director, Ground Floor,
Co. Ltd) Sreenilaya, Cyber Spazio,
Road No.2, Benjara Hills,
Hydarabad-500034
(2) Branch Manager,
HDFC ERGO General Insurance Company Ltd. 3rd Floor,
Uthradom, RBI, Railway Station
Road, Panaveli Junction,
Thiruvananthapuram - 1.
(For Op1 and 2, Adv. Saji Isaac K.J.)
O R D E R
Sri. Manulal V.S. President
The case of the complainant is as follows:
The complainant has taken a loan from Canara Bank, Sreekkrishnapuram branch, Palakkad, and under their scheme, he joined the health insurance plan and remitted the initial premium amount through them and he is paying premium amount regularly and policy certificate having policy no. 120100/12001/2017/A007627 was issued to him. The family members of the petitioner are also covered under the policy including his wife. The complainant had joined the scheme after an adequate medical check-up as directed by the first respondent. On 31-7-2017 the wife of the complainant named Nessy sunny was admitted at Caritas hospital due to a utres complaint and she was treated there as an inpatient till 5-8-2017. During this time she was treated for VH and AP repair done under spinal anesthesia on 2-8-2017. The complainant had spent Rs.48,073/- towards medical expenses. Though the complainant preferred a claim with opposite parties along with relevant documents, the claim of the complainant was rejected on 8-12-2017 due to the non-production of treatment for Chronic Kidney Disease. According to the complainant, his wife was not at all a chronic kidney disease patient. It is further alleged that the act of the opposite parties amounts to a deficiency in service and unfair trade practice. Due to the deficiency in service on the part of the opposite parties the complainant suffered much mental agony and pain. Hence this complaint is filed by the complainant praying for an order to direct the opposite parties to pay Rs.48073/- with interest @ 12% from 8-12-2017 till realization along with compensation of Rs.10,000/- and Rs.5000/- as the cost of litigation.
Upon notice opposite parties appeared before the commission and filed version contending as follows:
The complainant had availed the Apollo Munich Easy Health Group insurance -Family Plan policy from the opposite parties and had willfully withheld material information at the time of taking the policy. The insured was a known case of type II diabetes mellitus for 14years, hypertension for 6 years on medication, dyslipidemia on medication, and chronic kidney disease. While submitting the proposal form, the complainant had willfully suppressed these material informations to obtain the policy. The pre-authorization form of the insured also states the fact that the insured had pre-existing diseases of diabetes mellitus hypertension dyslipidemia and chronic kidney disease. The policy was issued to the complainant based on the proposal form submitted by him. He had declared and warranted that neither he nor the persons proposed to be insured have suffered in the last 5 years from any major disease /disorder/ailment or deformity. He further declared that all persons proposed to be insured are in good health and that the proposed insured are not availing any treatment medical or surgical not attending any follow-up for any disease/condition/ailment/injury/addiction not specified in the declaration.
The complainant had suppressed material information that was vital in assessing the undertaking of the risk by the opposite parties. The complainant had also made the false declaration and hence the policy had been void abinitio. The terms and conditions of the policy availed by the insured also stipulate provisions for termination of the policy by the opposite parties on the ground of misrepresentation, fraud, and non-disclosure of material facts by the insured. The opposite parties in their best efforts to honor the claim of the complainant had to seek copies of all investigation reports, treatment, and follow–up records before current hospitalization related to chronic kidney disease. Despite repeated reminders being sent on 26-10-2017, 13-11-2017, and 20-11-2017, the complainant had not provided any of the records sought by the opposite parties. According to the terms and conditions of the policy, if there is any deficiency in
the documents/information submitted by the insured, the complainant on receipt of the deficiency letter is obliged to provide the complete set of claim documents. The opposite parties can make payment only on the receipt of the entire claim document. The complainant is not entitled to any amounts as claimed as he had acted dishonestly and had failed to act according to the term and conditions of the policy. There is no deficiency in service and unfair trade practice on the part of the opposite parties as alleged in the complaint.
During the pendency of the complaint the original complainant expired and his wife and daughter of the deceased are impleaded as additional second and third complainants vide order in IA 187 of 2021. The complainant filed IA 417 of 2022 to amend the complaint in respect of the name and address of the opposite parties and the same was allowed.
Additional second complainant filed proof affidavit in lieu of chief examination and marked exhibit A1 to A4 from their side.
Aneesh Bhaskaran who is the senior manager legal of the opposite parties filed proof affidavit in lieu of chief examination and marked exhibits B1 to B5.
On the evaluation of the complaint version and evidence on record we would like to consider the following point:
- Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties?
- If so what are the reliefs?
Point numbers 1 and 2 together.
There is no dispute on the fact that the complainant availed the Apollo Munich Easy Health Group insurance –Family Plan policy from the opposite parties vide policy certificate having policy no.120100/12001/2017/A007627. On perusal of exhibit B3 policy we can see that the second complainant is one of the insured under the policy and the sum assured was Rs.2,00,000/- . It is admitted fact that the second complainant had been treated as an inpatient in Caritas hospital from 31-7-2017 to 5-8-2017 for uterus complaint. During this time she was treated for VH and AP repair done under spinal anesthesia on 2-8-2017.
Exhibit A2 discharge bill dated 5-8-2017 that the complainant had spent Rs.48,073/- for the treatment. The claim of the complainant was rejected by the opposite parties for the reason of the non-production of requested documents regarding the investigation reports, treatment and follow-up records prior to current hospitalization for chronic kidney disease.
Opposite parties contended that the insured was a known case of type II diabetes mellitus for 14 years, hypertension for 6 years on medication, dyslipidemia on medication, and chronic kidney disease, and the complainant availed the policy by suppressing these material information. It is further contended by the opposite parties that as per the terms and conditions of exhibit B3 policy there is a provision for termination of the policy by the opposite parties on the ground of misrepresentation, fraud, and non-disclosure of material facts by the insured.
Exhibit B1 is the enrollment form which is filled up by the first complainant for availing the policy. On perusal of exhibit B1, we cannot see any queries regarding the health conditions of the proposed persons to be insured. In exhibit B1 there is a declaration printed under the head of Declaration warranting on behalf of all persons to be insured which is reproduced hereunder
“I confirm that I and other members proposed to be insured under this policy are in good health and have not suffered in the last 5 years from any major diseases/disorder/ailment or deformity(other than the infrequent common cold, fever, loose motion, headaches, acidity, high cholesterol, asthma, thyroid problem, diabetes without any complication or hypertension without any complication. Thus the proposer shall disclose the ailments for which the proposed person to be insured had medication in the last 5 years other than the infrequent common cold, fever, loose motion, headaches, acidity, high cholesterol, asthma, thyroid problem, diabetes without any complication or hypertension without any complication in the proposal form.
On perusal of exhibit B2 which is the pre-authorization form which is submitted by the hospital authorities to the opposite parties, we can see that only diabetes, hypertension, and hyperlipidemia are shown as a history of chronic illness. Though the column for other ailments is struck off against that column it is written as ‘CKD’. The administrator of the Caritas hospital produced the treatment records of the insured Nessy sunny as per the order in IA 196 of 2018. Though the said application was filed by the opposite parties they did not care to mark the same as the exhibit. Even though the said document is not marked by either the parties, the consumer protection act being benevolent legislation we are of the opinion that for the just and fair disposal of the complaint the said document has to be looked into.
On perusal of the medical records of the patient, it can be seen that in the discharge summary ailment diagnosed was prolapsed utres. It is further recorded in the discharge summary that the patient was present with a history of C/o mass coming down vagina 2 years, Para 3, all FTND. Periods once in 2-3 months LMP-18-6-2017 Known case of hypertension. Dyslipidemia and Dm on treatment. On a close perusal of medical records, we can see that there was no pre-history of kidney disease or during the treatment kidney disease was not diagnosed.
It is now the settled law that pre-existing disease does not automatically follow a valid repudiation of a claim.
There should be an independent application of mind and recording of satisfaction that the infringement was induced by a motive to misrepresent the facts or created a possibility of dishonesty in fraudulent manner. Diabetes and Hypertension are common lifestyle diseases; these cannot be treated as pre-existing diseases.
In this context, we rely upon the decisions of the judgment of the Hon’ble Delhi State Consumer Disputes Redressal Commission and two judgments of the
Hon’ble National Consumer Disputes Redressal Commission respectively as follows:-
Oriental Insurance Co. Ltd. – Vs. – Kaushalya Verma & Another [Appeal No.412/2016, 05.05.2021] – which justifies, even though there was pre-existing disease, it will not completely entitle the respondent from indemnification of the claim from the Insurance Company for such common lifestyle diseases.
Neelam Chopra – Vs. – Life Insurance Company of India [Revision Petition No.4461 of 2012] – which clarifies, the disease of “Cardio Respiratory Arrest” was existing for only five months prior to the death of the deceased therefore, it is clear that the disease was not prevailing when the proposal form was filled.
Although the disease of “Diabetes” existed for some time but was under control at the time of filling up the proposal form. Moreover, the non disclosure of information in respect of this lifestyle disease of diabetes, will not disentitle the complainant from indemnification of the claim.
If the disease was not active at the time of filling of the proposal form and if the disease of “LL Hansen” has no relationship with the actual cause of death i.e. “Cardio Respiratory Arrest”, its suppression would not lead to total denial of the claim. So, even if any information was suppressed in the proposal form, it cannot be treated as material information. Therefore, the petitioner/complainant would be entitled to the insurance claim.
The National Consumer Disputes Redressal Commission (NCDRC) observed during rejecting the revision plea filed by the Reliance Life Insurance Co. Ltd. against the Maharashtra State Commission’s order dismissing its appeal challenging the District Commission’s direction to pay Rs.1,12,500.00 to the husband of one of its policy holders who died of diabetic ketoacidosis; even if the
insured person was suffering from a disease and did not know about it nor was taking any treatment for the same, the claim cannot be denied by an insurance company. Diabetes was a lifestyle disease in India and the whole insurance claim cannot be rejected only based on this ground.
In the instant case, the second complainant never had any such complications of kidney disease prior to the inception of the policy or prior to her ailment on 5-8-2017, even though if the disease of Hypertension and Diabetes were pre-existing, it will not completely disentitle the Complainant from indemnification of the claim from the Insurance Company for such common lifestyle diseases. If the disease of “Hypertension” and “Diabetes” existed for some time but it may be under control at the time of filling up the proposal form. Moreover, the nondisclosure of information in respect of this lifestyle disease of “Hypertension” and “Diabetes”, will not disentitle the complainant from indemnification of the claim.
Moreover, the second opposite party did not produce any evidence to prove that there was direct nexus between the diabetics and the ailment for which the complainant had undergone the treatment Therefore, it transpires that there are not only elements of negligence, unfair trade practice, and gross deficiency in service but also forced the Complainant to suffer a severe economic loss, harassment and mental pain by the whimsical and illegal act of the opposite parties.
Now, coming to the matter of relief, we find that the opposite parties can’t get absolved from the mischief of negligence, unfair trade practice, harassment, and deficiency in service. Accordingly, complaint is allowed and we hereby direct the opposite parties to reimburse the hospital expenses for Rs.48,073/-along
with simple interest @9% per annum from the date of filing of this case till the date of payment and compensation of Rs.10,000/- and litigation costs of Rs.2500/- from the second opposite party.
Order shall be complied within 30 days from the date of receipt of copy of this Order. If not complied as directed, the compensation amount will carry 9% interest from the date of Order till realization.
Pronounced in the Open Commission on this the 30th day of November, 2022
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Copy of letter dtd.08-12-2017 by opposite party to 1st complainant
A2 – Copy of bill dtd.05-08-17 by Caritas hospital in the name of 2nd complainant
A3 –Copy of lawyers notice dtd.15-01-18 to 2nd opposite party
A4- Postal AD card
Exhibits marked from the side of opposite party
B1 – Copy of proposal form
B2 – Copy of pre-authorisation form
B3 – Copy of policy document
B4 – Copy of letters by opposite party to 1st complainant
B5 – Copy of letter dtd.08-12-17 by opposite party to 1st complainant
By Order
Sd/-
Assistant Registrar
