ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Parties (herein referred to as OPs) under section 35 of the Consumer Protection Act 2019 deficiency in service in repudiating her insurance claim by OPs and for reimbursement of the said amount for Rs.1,31,067/- along with interest and for refund of the premium paid for further period of two years, or in the alternate to continue the insurance policy in the same terms and conditions as earlier and for Rs.2,00,000/- as compensation for  wasting her time, Rs.5,00,000/- for harassing and causing mental anguish, for Rs.2,00,000/- as punitive damages in all Rs.10,51,067/- and for cost and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; the husband of the complainant Sri Mammen Johnson John obtained health insurance policy with OP initially for a period of two years starting from 17.07.2015 and renewed further for another two years till 16.07.2019 bearing policy No.304441392015000 for himself and for the complainant. As complainant’s husband was suffering from Osteoarthritis, having pain in right knee, and as she was not able to straighten her knee due to her pain she contacted Dr. Mohan K Puttaswamy and Dr.Sheela Chakravarthy of Fortis Hospital for treatment between 21.04.2019 to and 24.04.2019 in Fortis Hospital. She was having hypertension since 2013 and the same was informed to the OP at the time of obtaining the insurance policy for the first time and during the course of the insurance policy, she got Osteoarthritis and there was no occasion for her to inform the same to the insurance authority.  On 21.04.2019 she approached OP with all medical records for cashless treatment which was denied by OP, though she was eligible. 

3.     On 23.04.2019 complainant received an email from OP1 wherein she was asked to file a declaration from the treating doctor. On 24.04.2019 a letter was sent from the treating doctor to OP informing the duration of the pre-existing health condition of the complainant. She was shocked to know that the said policy issued by  OP has been cancelled, despite it is being valid.  It is found that the junior doctor of the hospital wrote that the complainant was having hypertension for the last 20 years and Osteoarthritis for the last five years which was for the reason for OP-2 to deny the insurance on the ground of non-disclosure and also for issuing a notice of cancellation of the policy.

4.     It is contended that at the time of purchasing the insurance policy, she had disclosed that she was suffering from hypertension since from 2013 and further having Osteoarthritis during 2017. Hence she never filed any of her further health conditions.  Due to the mistake of the hospital authorities, that too, by junior doctor OP rejected her claim whereas, on 25.04.2019 through an email OP informed that they are willing to provide the continuation of the insurance policy on certain conditions.  On the further ground that, she should send and sought for another declaration from the treating doctor.  On 30.05.2019 the treating doctor issued a letter informing the OP regarding the correct period from which the complainant was suffering from Hypertension and to resolve the claim made by the complainant.  Even inspite of hospital authorities and the doctor issuing clarification regarding the period with which she was suffering from hypertension, OP did not respond positively and even cancelled the insurance policy without understanding the correctness of the doctors letter which is highly condemnable, which is illegal, and against humanitarian approach. Being a senior citizen, herself and her husband have obtained the health insurance with an only intention to have the benefit of insurance to meet the abnormal hospitalization and medical charges. She had to incurred Rs.1,31,067/- towards hospital expenses in respect of her Osteoarthritis operation of her leg. 

5.     The act of OP in repudiating the claim which is genuine one, has caused great and immense inconvenience, mental agony, irreparable loss, though she is entitle for reimbursement of the amount she has spent on her treatment, and though she has informed the OP regarding her health condition in respect of hypertension prior to obtaining the insurance policy, having collected hefty insurance premium for a period of first two years and renewal premium for the next two years, amounts to unfair trade practice and also deficiency in service and prayed the commission to allow the complaint.

6.     This complaint was filed against seven OPs. Afterwards, since there was no prayer against OP-2 to 7 who are the employees of OP-1 and as they are not responsible for what has happened, and there is no involvement of them in repudiating the insurance claim, this commission dismissed the complaint against them holding that they cannot be held personally responsible. This complaint is proceeded against OP-1 only.

7.     Upon the service of notice, OP-1 appeared before the commission through her advocate one Smt. Dwaraka, and filed version contending that the complaint is not maintainable and devoid of material facts and is filed on false, malicious, incorrect grounds, liable to be dismissed under Section 26 of the Consumer Protection Act 1986. Complainant has not approached the forum with clean hands. There is no negligence or deficiency of service on the part of OP. There is no cause of action to the complaint to be filed. The complainant has filed this complaint to deceive the OP and also this commission by misleading the commission. The policy of insurance is issued with the terms and conditions of the agreement between the insured and insurer. Complainant had filed a similar complaint in CC 822/2020 before the District Commission Bangalore. Hence this complaint is liable to be dismissed. This complaint is premature in nature as after denial of preauthorization, cash less treatment, complainant never approached OP for reimbursement hospitalization expenses. Not filing the claim for reimbursement, the complainant has adopted the legal course of filing this complaint without exhausting the remedies available.  

8.     The complainant is guilty of suppressing the material facts and the patient details. Complainant is not entitle for reimbursement of the expenses incurred in FORTIS hospital. The health insurance policy was issued under utmost good faith and on the declarations made by the insured in the proposal.  OP received request for cash less benefit for the treatment at FORTIS hospital and as per the request, and the details furnished, and the medical records submitted, complainant was suffering from hypertension since 20 years and hence OP rejected the cash less benefit as the same was not disclosed while obtaining the insurance policy.  In the insurance obtained by the complainant, it is mentioned that she was suffering from Hypertension from 2013, whereas as per the medical records, it was from 20 years and the same was not disclosed.  Their investigation revealed that she was suffering from BP for the last 20 years. On the medical consultation papers submitted by the complainant, OP was constrained to decline the claim.  As per the proposal form it is mandatory duty for the complainant to disclose all the relevant and material facts.  In this case complainant has given a wrong fact and information.  Complainant is trying to misguide the Hon’ble Commission and is duty bound to disclose the correct and accurate medical history. This complaint cannot be decided without expert opinion.  There is no liability towards the claim made by the complainant and it is not liable to reimburse the hospital expenses.  Complainant has to lead proper evidence to prove her case. The present case cannot be decided and adjudicated in a summary manner it is to be decided by a civil court. Immediately after sending the insurance policy along with proposal, covering letter and terms and conditions, it is the duty of the insured to look into the same within 15 days to decide whether to continue the insurance or to return the insurance policy. There is no negligence on the part of OP and hence prayed the Commission to dismiss the complaint. 

9      In order to prove the case, both parties filed their evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

10.   Our answers to the above points are:-

POINT NO.1:    IN THE AFFIRMATIVE.

POINT NO.2:    PARTLY IN THE AFFIRMATIVE.

                                For the following.

REASONS

POINT No.1:-

11.   On perusing the complaint, version, documents and evidence filed by the both the parties, it becomes clear that,  the complainant along with her husband obtained insurance for a sum of Rs.12,00,000/- under the insurance policy No.304441392015000 initially for a period of 2 years starting from 17.07.2015 to 16.7.2017 by paying a insurance premium with service tax in all Rs.1,13,745/- and later renewed for a further period of two years from 16.07.2017 to 16.09.2019. In the initial policy issued, it is clearly mentioned that name of the insured person Sri Mammen Johnson John, Age 61 years, male applicant, (pre-existing condition) diabetes mellitus, personal waiting period and none. Second Mrs. Salu Johnson 59 years, Female, Spouse of the applicant pre-existing conditions - hypertensive diseases two years, personal waiting period 1) cerebral vascular disease. In the second renewed policy, there is no mention of any restrictions in respect of the pre-existing diseases or medical health conditions or personal waiting period. The premium collected for renewal was Rs.1,39,581/- . 

12.   It is the contention of OP that the doctor who treated the complainant given information that the complainant was having Hypertension for last 20 years and the same was not disclosed in the proposal form where as it is disclosed as having hypertension since 2013 and hence they repudiated the contract of insurance on the ground of non-disclosure of the medical conditions.  As per Ex P4, the doctor at FORTIS Hospital has clarified that the “complainant was having hypertension since 2013 but by error from their end, it is mentioned as the patient is suffering from hypertension for last 20 years. We would request you to consider this letter on priority as the surgery is now over and also please note that all the records for your reference have been updated with the information.” 

13.   Ex P5 is the notice, informing the complainant that she is having hypertension for the last 20 years, in the light of the above information available with, we regret to inform that we are unable to continue with the policy, convey further we are cancelling the insurance policy under relevant clause 3 of the insurance policy.  Again in the letter dated 23.04.2018, the insurance company has written that “we would like to inform you that your case has been renewed that we request you to share declaration from the treating doctor informing the correct duration and that they have  updated the records for our reference.”  Even Ex P6, Fortis hospital doctor has written to the insurance company that “I hereby confirm that the above patient is having hypertension since 2013 and Osteoarthritis since 2017, but by error from our side it is mentioned that the patient is having hypertension for the last 20 years and Osteoarthritis for the last 5 years.” Again at Ex.P7. the same has been reiterated with a request to reconsider the insurance. 

14.   It is an admitted fact that, the complainant’s request for reimbursement of the insurance has been rejected by the OP solely on the ground that the complainant did not disclose that she was having hypertension for the last 20 years. The basis for this is the doctor’s letter which has been withdrawn by informing further to the insurance company that it is due to mistake it was mentioned as 20 years, whereas from 2013 onwards she was having hypertension. 

15.   Ongoing through the insurance policy issued to the complainant by Op  in the very first instance itself she has declared that she was having hypertension from 2013.  Till 2019, nothing has happened to her in respect of the medical condition of hypertension. Even if it is assumed that she was having hypertension since 20 years, earlier, the scene would not have changed. The condition has not aggravated.  Further OP has clearly stated that pre-existing condition, waiting period is 2 years.  When such being the case, no claim has been made with in a period of 2 years in respect of any problem arising out of the hypertension. It do not lie in the mouth of the op that they are repudiating the claim of the complainant for not disclosing that she was having hypertension for the last 20 years. Except on the doctors information that she was having hypertension for the last 20 years, no separate medical document shave been produced by the OP to show really the complainant was having or suffering Hypertension since 20 years from the date of obtaining the insurance.

16.   The Hon’ble Supreme Court of India in Civil Appeal No.8386/2015 decided on 06.12.2021 held that: “the object of seeking medi-claim policy is to seek indemnification in respect of a sudden illness or sickness which is not expected or imminent which may occur if the insured suffers a sudden sickness or ailment which is not expressly excluded under the policy. A duty is caste on the insurer to indemnify the complainant for the expenses incurred thereon.”

17.   The Hon’ble Supreme Court of India, Hon’ble High Court of Delhi and Hon’ble NCRDRC in various cases have held that hypertension and diabetes are not at all diseases and it is only physiological disorder in the body. When this is taken into consideration the rejection of the complainant’s’ claim regarding reimbursement of the amount holding that there is material suppression of the preexisting diseases is ill-founded, and not relevant to the suffering which the complainant has suffered i.e (Osteoarthritis) and further there is no correlation between hypertension and diabetes mellitus and the Osteoarthritis. Further added to the repudiation, OP has also cancelled the insurance which is highly unbecoming on the part of OP. At the cost of repetition it is said that the object seeking medi-claim and medical insurance is to seek indemnification of the ill ness. Even the insurance companies provide insurance for the preexisting medical disease after some waiting period.  In view of this, the rejection of the claim, cancellation of the insurance policy, shows the high handedness of the OP which has no concern at all to the ailing patients from whom the insurance companies are thriving and surviving by getting hefty premiums.

18.   Further as per the various decisions of the Hon’ble Supreme Court of India and also in the NCDRC hypertension and diabetes mellitus are no more diseases whereas it is only physiological disorder in the body. Further even assuming for the movement that the complainant was having hypertension for the last 20 years, she underwent surgery/treatment for her Osteoarthritis in the knee which is no way concerned with the hypertension disorder.  The very say of the OP that they are repudiating the insurance claim on the said ground is highly obscured, highly illegal, besides lack of common sense, reasons and honesty.  It has only made a rule that rejection of the claim is the rule and honouring the insurance claim an exception. Hence we are of the opinion that the rejection of the claim of the complainant and further cancellation of the insurance policy for the rest of the period amounts to deficiency in service and unfair trade practice, besides application of mind. Hence we answer POINT NO.1 IN THE AFFIRMATIVE.

POINT NO.2:-

19.   The complainant has sought Rs.1,31,067/- to be reimbursed in respect of the claim made by her for meeting the medical expenses at Fortis hospital. Medical receipts have been produced which has not been disputed by the OP.  In view of this, OP is liable to pay the said amount along with interest at 12% per annum from the date she underwent surgery/treatment for her knee (Osteoarthritis) i.e. on 21.04.2019. Further she has also sought for continuation of the policy which according to her own  averment in the complaint has been accepted but with the terms and condition, which she did not agree on the ground that the waiting period for her earlier health condition or medical condition would extended for a further period of two years. She has also sought for compensation of wasting her time, causing discomfort, anguish, harassment and punitive damages.

20.   No doubt she has been put to lot of inconvenience, mental agony physical hardship, discomfort and has been harassed by OP in denying her claim though genuine and also putting her under lot of mental stress by cancelling the insurance policy for a further period.  It is to be noted here that the complainant as well as her husband are senior citizens and with a fond hope that their insurance would take care their medical requirements of hospitalization charges, medicines by paying hefty insurance premiums. Whereas OP after receiving such a hefty premium and enjoying the benefits of the said premium amount, for silly reasons for illogical reasons, denied the benefits under the policy, though they very well knew that the Supreme Court has not at all considered the Hypertension and Diabetes Mellitus as no more diseases and not a medical health issues, whereas, it is only a physiological disorder which has nothing to do with the treatment the complainant has taken in the FORTIS hospital. Hence we direct OP to pay Rs.50,000/- towards damages and also Rs.25,000/- towards litigation expenses in order to meet the ends of justice having in mind the principle of granting compensation that it should not be a bonanza or windfall to the complainant whereas it should be adequate, just, proper and reasonable and shall not be a pittance. Hence we answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and pass the following:

ORDER

1. The Complaint is partly allowed with cost.
2. OP-1 is hereby directed to pay a sum of Rs.1,31,067/-  to the complainant along with interest at the rate of 12% per annum from the date she underwent surgery/treatment for her knee (Osteoarthritis) i.e. on 21.04.2019  till payment of the entire amount.
3. OP-1  further directed to pay a sum of Rs.50,000/- towards damages for causing mental agony and strain and further Rs.25,000/- towards litigation expenses.
4. OP-1 is directed to renew the insurance policy in future after receiving the premium regularly with the same terms and conditions imposed at the time of providing insurance policy for the first time.
5. Complaint against OP-2 to 7 are dismissed.
6. OP-1 is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report on this Commission within 15 days thereafter.
7. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 20^th day of SEPTEMBER 2022)

MEMBER         MEMBER       PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Power of attorney executed by complainant’s wife.

Ex P2: Copy of the Insurance policy

Ex. P3: Copy of the policy details

Ex P4: Copy of the letter issued by doctor.

Ex P5: Copy of the Cancellation letter.

Ex P6: Copy of the Health condition of the complainant.

Ex P7: Copy of the Reconsideration request issued by the hospital.

Ex P8: Copy of the email correspondence

Ex P9: Copy of the hospital bill.

Ex P10: Copy of the legal notice.

Ex P11: Copy of the reply

Ex P12: Copy of the Pre authorization form.

Ex P13: Acknowledgment.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri.Bhuwan Bhaskar – Manager legal with OP.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the proposal form.

Ex R2: Copy of the renewal policy certificate with terms and conditions.

Ex R3: Copy of the preauthorization dated 21.04.2019.

Ex R4: copy of the rejected letter dated 22.04.2019.

MEMBER         MEMBER       PRESIDENT

RAK*