BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

                                   Dated this the 31^st day of July 2018

                                                                             Filed on: 24.03.2015

PRESENT:

 Shri. Cherian K. Kuriakose,                                  President.

 Shri. Sheen Jose,                                                 Member

 Smt. Beena Kumari V.K.                                      Member.

                            CC.No.207/2015

                                  Between         

O R D E R

Cherian K.Kuriakose, President

1)     A brief statement of facts of this complaint is as stated below:

         The complainant had taken a policy of opposite party by name “LIC’s Health Plus Plan” (Table 901 policy) with effect from 11.12.2009. The policy certificate was issued for a period of 18 years assuring the complainant that he would be paid a cash benefit of Rs.2,000/-  in addition to the bonus for the period of stay for the medical treatment in any hospital as inpatient.  The policy was valid up to 11.12.2027 and the yearly premium fixed for the policy is Rs.12,000/- p.a.  The complainant was regularly paying the yearly premium without any default and he is still continuing the policy.  The complainant was admitted in Medical Trust Hospital, Ernakulam on 17.02.2014 and he had undergone treatment as inpatient for 9 days in the hospital and he was discharged on 25.02.2014.  The medical bill for the said treatment was Rs.28,539/- and that amount was paid to the hospital by M/s. National Insurance Company with whom he had a cashless benefit policy.  The claim against the opposite party made by the complainant was for the cash benefit of Rs.2000/- + bonus per day to the complainant which was assured at the time of registering the policy. Again on 12.09.2014, the complainant was admitted in Amrita Institute of Medical Science Hospital, Ernakulam during the period on 12.09.2014 and was discharged on 17.09.2014 and the bill amount was paid by the National Insurance Company as cashless benefit policy.  This time also the opposite parties 1 and 2 refused to pay the cash benefit as agreed by them at the time of registering the policy. According to the opposite parties in the claim registration letter dated 23.05.2014 it was contended that “the insured is a known case of HEPATITIS B since 15 – 24 years”.  The discharge summary issued by both Medical Trust Hospital and Amrita Hospital does not show that the insured- complainant had a persistent case of Hepatitis B. The opposite party denied the claim of the complainant on untenable grounds. The complainant contended that being a consumer, he is entitled to get the total cash benefit of Rs.30,000/- + Bonus for his total period of stay in both the hospitals as inpatient, such case has been covered by the policy and the complainant is entitled to realize the amount from the opposite parties. The complainant seeks appropriate direction from this Forum with regard to legitimate the claim of the complainant through this complaint.

2)     Notices were issued to the opposite parties.  The opposite party appeared and resisted the complaint by filing written version contending inter-alia as follows:

3)      Version of the opposite parties

The fact that the complainant had taken a Health Plus plan 901 policy commencing from 11.12.2009 is admitted. It is submitted that Life insurance contract is a contract of utmost good faith.  The complainant had not disclosed the previous illness at the time of applying for the policy.  The complainant here suppressed his previous illness of Hepatitis B which was detected earlier.  The complainant was admitted to Medical Trust Hospital and he was diagnosed to be suffering from Cystic Bronchiectasis, lower respiratory tract infection, Klebsiella Isolated allergic Bronchitis and Hepatitis B.  Thereafter he was admitted to Amrita Hospital also.  On careful examination of previous reports and past history it was clear that the complainant was suffering from Hepatitis B since 15 to 25 years.  In the discharge summary dated 25.02.2014 issued by the Medical Trust Hospital, Ernakulam singed by Dr.Babu John Mathews, it was observed that amongst other ailments the complainant was also diagnosed as suffering from Hepatitis B. The investigation done by the TPA of the hospital records maintained by the hospital revealed that the complainant-patient had Hepatitis B 15 years back and he was on treatment for one year on regular basis.  He reported his past ailments of Hepatitis B to the treating doctor.  The complainant in his letter dated 14.05.2014 had admitted that he had previous history of Hepatitis B during 1988/2000.  However, in answer of question No. E7 in the proposal Form, the complainant had reported that he was never been tested positive for HIV/AIDS/Hepatitis B or C or sexually transmitted diseases.  The claim of the complainant was rightly rejected by the opposite party as he was a known case of Hepatitis B for 15-24 years.  The complainant had suppressed his previous pre-existing disease.  Therefore he is not entitled to get the benefit of the policy taken by him and the complaint is therefore sought to be dismissed.

4)      Issues came up for considerations are as follows:

1.     Whether the complainant has proved that there was any deficiency in service or unfair trade practice on the part of the opposite party as alleged?

2.     If so, whether the complainant is entitled to get compensation and quantum thereof?

3. Reliefs and costs?

5)     The evidence in this case consists of oral evidence adduced by the complainant when he was examined as PW1 and documentary evidence Exbt.A1 to A11 which were marked on the side of the complainant.  The opposite party did not adduce any oral evidence, but marked Exbt.B1 to B7 documents on their side.

6)      Issue No. (i)

        The complainant is a consumer as deposed as PW1 and he filed an affidavit supporting his allegations along with the original complaint. Exbt.A1 policy taken by the complainant is admitted by the opposite party.  Exbt.A2 is the discharge summary issued by Medical Trust Hospital, Ernakulam on 25.02.2014 in which it was noted by Dr.M.M Hassan, Authorized medical attend at Medical Trust Hospital stating that the complainant was diagnosed with Bronchiectasis, LRTI, allergic Bronchitis and Hepatitis B.  He was admitted on 17.02.2014 and he was discharged on 25.02.2014.The discharge certificate is annexed with entire treatment reports including the medical bills.  The discharge summary issued by Dr.Babu John Mathews who had treated the complainant is also enclosed as Exbt.A2, in respect of treatment during the period from 17.02.2014 to 25.02.2014.  The hospital bill submitted by the complainant before the treating doctor is also a part of the discharge summary which is as follows:

“Mr.Sathyan 51 yr old male with h/o Hepatitis B & recurrent episodes of hypoglycemia, now got admitted with c/o cough with expectoration and fever for 1 day.  Similar recurrent attacks since last 1 year.  On admission, patient’s vitals were stable, chest having B/L wheeze.  Patient was investigated.  During hospital stay, Pulmonology consultation was given and advised for PFT which showed mild obstruction.  CT chest was done during hospital stay and identified bronchiectasis with infection. Further evaluation for pulmonary TB was done which showed negative.  Sputum isolated klebsiella and was treated with iv antibiotics.  Gastro consultation was given for altered LFT and advised to continue on Tab.  Udiliv.  Endocrinology consultation was given for recurrent hypoglycemia.  They opined as reactive hypoglycemia, managed conservatively.  Patient improved with current management hence being discharged in stable condition and advised to review after 2 weeks in Medicine OPD”.

7)      The  learned Counsel for the opposite party contended that the complainant himself had a history of Hepatitis B, that the treating Dr. Babu John Mathai stated that he had a history of Hepatitis B and recurrent episodes of hypoglycemia. Therefore it is to be presumed that the complainant was aware that he was a patient of Hepatitis B at the time when he had applied for proposing the policy by filling a proposal Form before the opposite party.  We have gone through the discharge summary meticulously and we are not taking statement of any complaint disclosing the treating doctor that he was diagnosed with Hepatitis B at any time prior to the filing of the proposal form before the opposite party.  Just because of the fact that Dr.Babu John Mathai had recorded that complainant had a history of Hepatitis B earlier, does not mean that the complainant was aware of any such disease at any time prior to the filling of proposal Form in 2009. If at all an admission was made by the complainant before the treating doctor, it was the burden of the opposite party to prove with substantial evidences that the complainant had prior knowledge and information and awareness that he was a patient of Hepatitis B at the time when he had made proposal for the policy.

8)      The complainant was treated at Amrita Hospital, Ernakulam thereafter.  The documents produced on either side do not show any instance wherein there is no material to show that the complainant was suffering from Hepatitis B prior to 2009. Exbt. A3 is a letter issued by the complainant to the Chief Executive Officer of TPA of the opposite party stating as clarification in answer to queries put to him, that the complainant had consultation during a period 1988-2000 with same doctor and Hepatitis B was detected during 1988-2000; “24 years back and thereafter it was found negative”. The complainant had also intimated that the consultation reports during that period were not available with him and he was unable to produce the same.   The complainant had also clarified that Hypoglycemia was first detected in the consultation covered by the discharge summary and requested for settling the claim against him.

9)      In Exbt.A4 intimation from TPA to the complainant, it is stated that the complainant was a known case of Hepatitis B since 15 to 24 years.   However the opposite party has not produced any document to substantiate such contention with the origin of Hepatitis B date back to any day prior to the application for the policy.   

10)    The opposite party produced Exbt.B1 to B7 documents.  Exbt.B1 is the proposal Form and it is admitted that the complainant did not disclose that he had Hepatitis B at any time prior to the signing of the proposal form.  Exbt.B2 and B3 are the terms and conditions of the policy and the Exbt.B4 is the copy of discharge summary which was issued by Medical Trust Hospital which was same as produced by the complainant as Exbt.A2.  Exbt.B5 is the discharge summary issued from Amrita Hospital, Ernakulam.  Exbt.B6 is the document which was produced by the complainant as same as Exbt.A3.   Exbt.B7 is the photocopy of the investigation report which says as outcome of investigation that he could not find out any evidence regarding alcohol history in which the complainant had Hepatitis B 15 years back.  Exbt.B7 is only a photocopy and is not seen signed by the investigator. The original investigation report is not forthcoming.  The opposite party did not adduce the evidence of so called investigator who made the so called finding that the complainant had a history of Hepatitis B for the last 15 years.  The opposite party did not produce any data collected by them to come to the conclusion that the complainant had suppressed material facts including the factum of so called pre-existing disease.  On going through the evidence adduced by the patient’s communications, we find that the burden to prove the above fact is on the opposite party.  The complainant himself had produced Exbt.A3 before this Forum wherein he had stated that Hepatitis B was detected during 1988-2000;  24 years back and thereafter it was found negative.  The learned Counsel for the opposite party harp upon Exbt.A3 clarification letter wherein the complainant   himself had admitted that Hepatitis B was detected during 1988-2000.  The learned Counsel was only following that part of sentence which was written by the complainant and the remaining part of the sentence would clearly show that such detection was found negative thereafter.  The so called pre-existing disease of Hepatitis B alleged by the opposite party was based on a wrong investigation.  The investigation lab which was specifically recorded by report ‘finding negative Hepatitis B’.  The opposite party who refused dues, have to prove their contention to get protection for them in not paying the complainant the amount due to him under the policy taken by him for continuous period from 2009 till date and to continue till 2027.

11)    It is to be noted that the complainant was provided with the expenses by M/s. National Insurance Company under their medical claim policy for which terms were made by the complainant.  The complainant was asking his rightful share in getting ‘cash benefit’ as agreed by the opposite party as per the terms and conditions of the policy. The complainant was not seeking the reimbursement of the amount which he had already received from National Insurance Company.  He was seeking only additional benefit available to him under the policy taken from the opposite party.  The opposite party had denied the claim of the complainant on untenable grounds and on unproved facts.  We find that the opposite party not only committed deficiency in service but also committed unfair trade practice by denying the payment of the bills on unproved grounds.  The Life Insurance Corporation owned by Government of India which is run for the benefit of citizens of India.  It must be just, proper and fair.  Here the LIC acted as a profit making company, at the cost of public after collecting premium amounts from the public.  We find that the opposite party not only denied payment but also accepted further premium in full that they will not be able to pay the benefit to the complainant as agreeing to them were satisfied with the complainant was not entitled for getting payment.  We find that such circumstances that the Hon’ble Supreme Court had made an observation that exemplary costs has been given in such cases so that no such unfair trade practice would be continued further by such service providers we find that the opposite party is liable to compensate the complainant for deficient service to the complainant and having committed unfair trade practice to the complainant as well as to the whole society.  The 1^st issue is therefore found in favour of the complainant.

12)    Issue No. (ii)

          The 2^nd issue related to the award of compensation.  We have dealt with similar issues previously wherein the consumer who had taken policy, since 2009 was denied his right on untenable and unproved facts.  There the policy invoked principles laid by the Hon’ble Supreme Court in matters regarding award of compensation.  We find that for the reasons stated above, the complainant is entitled to get the claim as per the terms and conditions of the policy and the complainant is entitled to get reimbursement.  In addition to the above we award an amount of Rs.2 lakhs towards exemplary compensation to the complainant.  The 2^nd issue is found accordingly.

13)     In the result this complaint is allowed and we direct as follows:

1. Having found the issue No.(i) and (ii) in favour of the complainant, we direct the opposite party to reassess the claim of the complainant and to pay the dues within a period of one month in view of the observations made by us while disposing of the issue No. (i).
2. We direct the opposite party– Life Insurance Corporation of India to pay Rs.2 lakhs to the complainant by way of exemplary compensation within one month from the date of receipt of a copy of this order which was deemed as the 3^rd day from the date of dispatch of this order from this Forum.

3. We also direct the opposite party to pay an amount of Rs.10,000/-  towards costs of the proceedings to the complainant.

The above payments shall be complied with, within 30 days of the receipt of a copy of this order, failing which the above amounts shall carry interest @ 18% p.a. from the day of filing the complaint ie., 24.03.2015 till the date of realization.

          Pronounced in the open Forum on this the 31^st day of July 2018.

                                                                    Sd/-Cherian K. Kuriakose, President

                                                                    Sd/-Sheen Jose, Member.

                                                                    Sd/-Beena Kumari V.K., Member

                                                                             Forwarded by Order

                                                                             Senior Superintendent

                                                APPENDIX

Opposite party’s Exhibits            ::   

Depositions :

          PW1  :         T C Sathyan

Date of Despatch :

          By Hand     :

          By Post       :

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