DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE
PRESENT : Sri. P.C. PAULACHEN, M.Com, LLB : PRESIDENT
Smt. PRIYA.S, BAL, LLB, MBA (HRM) : MEMBER
Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER
Saturday the 18th day of December 2021
C.C. 213/2017
Complainant
Karun Radhakrishnan
No.414 B, Hilite Metromax
Byepass Road, Thondayad,
Nellicode (P.O)
Kozhikode – 673 016
(By Adv. Aboo Puthiyottil)
Opposite Party
ICICI Lmbard General Insurance Ltd
ICICI Lambard Health Care
ICICI Bank Tower, Plot No.12,
Financial District, Nanakram Guda
Gachibowli
Hyderabad - 500032
(By Adv. N. Sooraj)
ORDER
By Sri. P.C. PAULACHEN – PRESIDENT.
This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.
2. The case of the complainant, in brief, is as follows:
The complainant has been the policy holder with the opposite party since last 8 years and having the present Top Up Policy bearing No.41401/TU/124428344/00/000 valid from 22/11/2016 to 21/11/2017 with an annual sum assured of Rs.7,00,000/-. He is having policy from 28/07/2015 to 27/07/2017 for an annual sum insured of Rs.1,20,000/- The complainant opted to top up the policy as mentioned above and thereby the annual sum assured was offered Rs.7,00,000/-. He was admitted in Baby Memorial Hospital, Kozhikode on 01/11/2016 for implant removal of 11 year old united fracture of patella right knee and was discharged on 04/11/2016 after removal of the implant. But during hospitalisation, chest x-ray showed coin shaped lesion over the mediastinum and on further CT scan dated 03/11/2016 revealed that there was a coin shadow on chest x-ray which was due to ductal aneurysm with wall calcification. He visited Lakshore hospital, Kochi on 24/11/2016 for second opinion. On 12/12/2016 he was admitted in Baby Memorial Hospital, Kozhikode for endovascular repair of large ductal aneurysm. He was discharged on 16/12/2016. The medical expenses was Rs.5,90,483.56. The opposite party was having cashless facility with the said hospital and a sum of Rs.3,60,185/- only was sanctioned by the opposite party and the claim for the balance amount of Rs.2,30,298/- was rejected. Thereafter he preferred a separate claim before the opposite party for Rs.2,30,298/-. It was rejected on 11/03/2015 stating highly technical and false grounds. The opposite party is bound to pay the medical expenses incurred by the complainant. Heavy monetary loss and mental agony was suffered by the complainant due to the acts of the opposite party. Hence the complaint to direct the opposite party to pay Rs.2,30,298/- with interest and cost to the complainant.
3. The opposite party resisted the complaint by filing version. The contentions in the version, in a nutshell, are as follows:
The issuance of Health Booster Policy valid from 22/11/2016 to 21/11/2017 to the complainant is admitted. The complainant was also holding another valid policy bearing No. 41381/HPR/81194235/101/100. The complainant was having ailment of ductal aneurysm before the booster policy inception date. Later he was hospitalised on 12/12/2016 to 16/12/2016 with a diagnosis of Essential Primary Hypertension Aneurysm of other specified arteries. He made a claim for Rs.5,90,484/- for the medical expenses. But only an amount of Rs.3,62,714/- under policy No.41381/HPR/81194235/101/100 was sanctioned. The complainant has suppressed the material fact that he was suffering from pre-existing disease of ductal aneurysm and hypertension before the commencement of booster policy. Hence the claim was rejected and informed to the complainant. The averment in the complaint regarding deficiency in service and unfair trade practice is false and hence denied. The complaint is devoid of merits and liable to be dismissed with compensatory costs to the opposite party.
4. The points that arise for determination in this case are:
(1) Whether there was any unfair trade practice
or deficiency of service on the part of the
opposite party in repudiating the claim ?
(2) What, if any, is the legitimate dues payable to
the complainant ?
(3) Reliefs and costs?
5. Evidence was recorded and the documents were marked by our learned predecessors-in-office. PW1 was examined and Exts. A1 to A8 were marked on the side of the complainant. No oral evidence was adduced by the opposite party. Ext.B1 and Ext.B2 were marked. (Ext.B2 is same as Ext.A8)
6. We heard both sides. Brief argument notes were also filed.
7. Points 1 and 2 : The complainant has approached this Commission claiming a sum of Rs.2,30,298/- from the opposite party being the balance amount due as per the claim preferred by him for the treatment for the period from 12/12/2016 to 16/12/2016.
8. PW1 is none other than the complainant. PW1 has filed proof affidavit in terms of the averments in the complaint. Ext.A1 is the copy of the policy bearing No.49401/TU/124428344/00/000 for the period from 22/11/2016 to 21/11/2017, Ext.A2 is the copy of the policy No.41281/HPR/81194235/01/000 valid from 28/07/2015 till 27/07/2017, Ext.A3 is the copy of the CT scan report dated 03/11/2016, Ext.A4 is the discharge summary of Baby Memorial Hospital, Kozhikode, Ext.A5 is the copy of visit summary of Lakshore Hospital, Kochi, Ext.A6 is the copy of the discharge summary of Baby Memorial Hospital, Kozhikode, Ext. A7 is the copy of the repudiation letter dated 11/03/2017 and Ext.A8 is the Health Claim Form and the connected documents produced by the opposite party pursuant to the order of this Commission in IA 177/2018. Ext.B1 is the copy of the policy No.41401/PU/124428344/00/000 with policy wordings and conditions. Ext. B2 is the same document marked as Ext.A8.
9. Exts A1 and A2 policies are admitted by the opposite party. It is an admitted fact that the complainant was hospitalised from 12/12/2016 to 16/12/2016 for endovascular repair of large ductal aneurysm. The medical bill amounted to Rs.5,90,483.56. He preferred a claim for medical expenses before the opposite party. But the opposite party sanctioned only an amount of Rs.3,60,185/- under Ext.A2 policy. Hence the complainant preferred a separate claim for Rs.2,30,298/-. The claim was rejected by the opposite party as per Ext.A7 letter. The reasons stated in Ext.A7 for repudiation of the claim are the following:
(1) 30 days Waiting Period : As part II of Schedule of policy wordings clause 3.3, any disease contracted and declared during first 30 days of period of insurance start date except those arising out of accidents are not payable.
(2) Pre-Existing disease: As per documents furnished, Ductal Aneurism started before inception of Booster policy. As per the Part II of the schedule under exclusion of the policy wordings, any pre existing condition(s) until 24 months of continuous coverage has elapsed. Since period of Insurance start date was not covered.
(3) Standard Exclusion: Rejected as per part III clause I of policy Terms and Conditions Incontestability and Duty of Disclosure: as the insured not disclosed the material fact that he was Ductal Aneurysm prior to the inception date of Booster Policy. The policy shall be null and void and no benefit shall be payable in the event of untrue or incorrect statements, mis description or on non disclosure of any material particulars in the proposal form, personal statement, declaration and connected documents or any material information having been withheld, or a claim being fraudulent or any fraudulent ,means or devices being used by the insured or any one acting on his behalf to obtain any benefit under the policy.
(4) Others: As per insured statement, Ductal Aneurysm detected at the time of implant removal. Known case of high Hypertension since one year and on treatment with TAZLAC 20 and CILACAR 5. The same was not disclosed by the insured at the time of inception of the Booster policy.
10. The main reason for the repudiation of the claim is that Ductal Aneurysm and Hypertension detected on 03/11/2016 was pre existing. Apart from that, 30 days waiting period is also stated as another reason for rejection. Yet another reason stated is that hypertension was not disclosed at the time of the policy inception.
11. The learned counsel for the complainant argued that the complainant is not guilty of suppression of any pre-existing disease as alleged and all the medical records relating to the ailment was before the opposite party prior to the issuance of the booster policy. Per contra, the learned counsel for the insurance company vehemently argued that the complainant had not declared that he was having pre-existing disease of ductal aneurysm and hypertension before the commencement of Ext.A1 policy and hence the claim was rightly repudiated by the company.
12. It is well settled that the contract of insurance between the insured and the insurer is based on the principle of utmost good faith. In Modern Insulators Ltd Vs The Oriental Insurance Company Ltd - (2000) 2 Supreme Court Cases 734, the Honourable Apex Court has held at paragraph 8 as follows:
“ It is the fundamental principle of insurance law that utmost good faith must be observed by the contracting parties and good faith forbids either party from non-disclosure of the facts which the parties know. The insured has a duty to disclose and similarly it is the duty of the insurance company and its agents to disclose all material facts in their knowledge since obligation of good faith applies to both equally”.
13. In this context, it is worthwhile to have a glance at Ext.A8 documents. The complainant was admitted in Baby Memorial Hospital, Kozhikode on 01/11/2016 and discharged on 04/11/2016 for implant removal as evidenced by Ext.A4 discharge summary. During the said hospitalisation, chest x-ray was taken and it showed coin shaped lesion over mediastinum. C T scan made on 03/11/2016 revealed that there was a coin shadow on chest x-ray which was due to ductal aneurysm with wall calcification. Thus the said ailment was detected on 03/11/2016 during hospitalisation on scan report. Admittedly, the complainant had preferred claim for the hospitalisation and treatment expenses during the period of hospitalisation from 01/11/2016 to 04/11/2016 for implant removal and all related records like discharge summary, scan report etc were produced before the opposite party in connection with that claim. The said documents were produced before this Commission by the opposite party pursuant to the order passed by this Commission in IA No.177/2018 filed by the Complainant herein. The said documents are marked as Ext.A8. Ext.A8 documents were in the custody of the opposite party while issuing Ext.A1 Top Up Policy. Ext.A1 policy was issued on 22/11/2016 and valid up to 22/11/2017. Ext.A8 contains the scan report dated 03/11/2016 and the entire related records. The impression given in the scan report is that a case of incidentally detected coin shadow on chest x-ray - Apparent coin shadow in chest x-ray is due to ductal aneurysm with wall calcification. The said scan report and the connected hospital records were with the opposite party on 04/11/2016 itself for sanction of earlier claim regarding medical and treatment expenses from 01/11/2016 to 04/11/2016. As already stated, Ext.A1 policy was issued only on 22/11/2016. Ext.A8 documents were with the opposite party and the same were produced before this Commission by none other than the opposite party. Therefore there was no suppression of the pre-existing disease by the complainant as alleged. Since the documents were already before the opposite party at the time of issuance of Ext.A1 Top Up Policy, no suppression of material facts regarding existing disease can be attributed against the complainant. The contention of the opposite party regarding the suppression of the ailment and the 30 days waiting period etc is not tenable for the aforesaid reason. That being so, there was no justification for denying the claim on the above grounds. The act of the opposite party in repudiating the claim without just and valid reason amounts to deficiency of service and unfair trade practice. The opposite party is liable to pay a sum of Rs.2,30,298/- with interest to the Complainant. Complainant is entitled to get Rs.5,000/- as cost of the proceedings.
14. Point No.3:
In the light of the finding on the above points, the complaint is disposed of as follows:
- CC 213/2017 is allowed.
- The opposite party is directed to pay a sum of Rs.2,30,298/- (Rupees Two Lakh thirty thousand two hundred and ninety eight only) to the complainant with interest at the rate of 6% per annum from the date of the complaint i.e, 07/06/2017 till realisation.
- The opposite party is directed to pay a sum of Rs.5,000/- (Rupees five thousand only) as cost of proceedings to the complainant.
- The payment as aforestated shall be made within 30 days from the date of receipt of copy of this order.
Dictated to the Confidential Assistant, transcribed by her and corrected by me and pronounced in the open Commission on this the 18th day December, 2021.
Date of Filing: 07/06/2017.
Sd/- Sd/- Sd/-
PRESIDENT MEMBER MEMBER
APPENDIX
Exhibits for the Complainant :
Ext. A1 – Copy of policy bearing No.49401/TU/124428344/00/000
for the period from 22/11/2016 to 21/11/2017,
Ext. A2 – Copy of the policy No.41281/HPR/81194235/01/000
valid from 28/07/2015 till 27/07/2017.
Ext. A3 – Copy of the CT scan report dated 03/11/2016..
Ext. A4 – Copy of discharge summary of Baby Memorial
Hospital, Kozhikode,
Ext. A5 – Copy of visit summary of Lakshore Hospital, Kochi
Ext. A6 – Copy of discharge summary of Baby Memorial
Hospital, Kozhikode,
Ext. A7 – Copy of repudiation letter dated 11/03/2017
Ext. A8 – Copy of Health Claim Form and the connected
documents produced by the opposite party
Exhibits for the Opposite Party
Ext. B1 - Copy of the policy No.41401/PU/124428344/00/000
with policy wordings and conditions.
Ext. B2 - is the same document marked as Ext. A8
Commission Exhibits
Nil
Witnesses for the Complainant
PW1 – Karun Radhakrishnan - (Complainant)
Witnesses for the opposite party
Nil
Sd/-
PRESIDENT
Sd/-
MEMBER
Sd/-
MEMBER
Forwarded/By Order
Senior Superintendent
