By: Sri. Mohandasan K President
The complaint in short is as follows: -
1. The agent of the opposite parties approached the complainants and induced them to subscribe the insurance policy of the opposite parties describing the various merits of the policies and introducing various advertisements. It was stated that the opposite parties are issuing health family insurance policies and if at all subscribe the same, the complainants will be given all the treatment expenses from the hospitals itself and there will be separate wings to the insurance company and just presenting the insurance ID card it will be provided cashless facility and in some cases the treatment expenses will be given to the policy holders on submission of reimbursement claim form with documents. Believing the words of the agent the first complainant subscribed a policy in the name of complainant and also his wife and son. As a part of subscription of policy, all of them were undergone medical examination before a doctor. Thereafter the opposite parties issued a policy certificate numbered as 1010012817P106606358. On attaining the maturity period, it was renewed from 07/08/2018 to 06/08/2019 and remitted renewal premium amount of Rs.3,931 and the new policy number was allotted as 1010012818P105888501.
2. While so, the second complainant was admitted in MESIARC, Dr. Manojs ENT super specialty institute and research center due to ailment and undergone surgery to ear. He was admitted on 03/01/2019 and discharged on 04/01/2019. Though the complainants informed the hospitals about the insurance coverage but want of insurance tie-up with the opposite parties, the complainant remitted the treatment expenses nearly 1,00,000/- rupees. Thereafter the complainant approached the first opposite party office and then he was directed to submit claim form with medical bills and assured it will be considered properly. The first opposite party said to the complainant that they will forward the documents to the second opposite party and the second opposite party will allow the claim and they will send the amount as account payee DD
3. But even after months the complainant did not receive any response from the opposite party and no amount was received also. The complainant approached the first opposite party several times and each and every occasion the first opposite party assured that he will get the money. At last, the opposite party issued a letter dated 08/05/2019 repudiating the claim stating that the patient was having pre-existing disease and so, as per condition 4.1 of policy the complainant is not entitled for the claim. Thereafter on 17/09/2019 a person said to be from the customer care of opposite party called the complainant and demanded to settle the claim for 10,000/- rupees. Since the offer from the opposite party was not acceptable to the complainant, the present complaint has been filed to redress the grievance of the complainant. The submission of the complainant is that there was no pre-existing disease and moreover he was duly examined by doctor prior to the issuance of the policy. The complainant not availed treatment twice to the same ear as alleged by the opposite party. The claim submitted before the opposite party was within the valid period of the insurance policy. Hence the complainant alleges deficiency in service on the side of opposite party and which caused mental agony and financial loss to the complainant. The claim of the complainant is to allow treatment expense of 1,00,000/- rupees with 12% interest and 1,00,000/- rupees for the mental agony and financial difficulties suffered by the complainants and also cost of Rs.10,000
4. On admission of the complaint notice was issued to the oppose parties and on receipt of notice the first opposite party entered appearance and filed version. The second opposite party did not appear and so set exparte. The first opposite party denied the entire averments and allegations in the complaint and submitted that complaint is not maintainable either in law or on facts. The opposite party submitted that the complainant approached this Commission with unclean hands scripting a fabricated story suppressing material facts. The first opposite party contended that the first complainant has no locus standi to approach this Commission because the second complainant is aged more than 25 years and thus attained majority. The alleged issues related to the surgery of the second complainant and who is very much alive and major person. The opposite party admitted that they issued a policy 1010012817P106606358 for the period commencing from 07/08/2017 to 06/08/2018. It is submitted that complainants accepted the conditions of the policy and remitted the required premium for that period. The opposite party admitted that they issued can Medi claim (group health insurance scheme) policy certificate to the complainants and one Sainaba. Even though Sainaba, wife of the first complainant also covered and issued the above policy, she is not arrayed as party in the complaint, for that reason the complaint is devoid of non-joinder of necessary parties and so to be dismissed. It is further submitted that the above policy was expired and the first opposite party was approached by the complainant to renew the policy.
5. The first complainant accepted the policy conditions of the first opposite party and issued can Medi claim (group health insurance scheme) with policy conditions for the period commencing form 07/08/2018 to 06/08/2019 with policy No. 101001281P10588850 after remitting the required premium. The opposite party submitted that cashless facility is available to the complainant, if the insured is admitted in the hospitals or healthcare providers were enlisted by the first opposite party or second opposite party. The second complainant treated in the hospital which is not enlisted by the opposite parties. As per clause 5.5 of the policy certificate, all supporting documents related to the claim must be filed within 15 days from the date of discharge from the hospital. The delay in filing claim forms and alleged manipulations of documents were violation of the policy certificate of first opposite party executed between first opposite party and the complainant. The first complainant submitted the medical bill and claim form on 11/02/2019 which is much after the stipulated time and that score also complaint is liable to be dismissed.
6. The second complainant admitted on 03/01/2019 in Mesiarc ENT hospital Pvt. Limited for ear surgery and discharged on 04/01/2019. The diagnosis especially in discharge summary issued from the hospital shows that right COM squamous active, operated ear and short history in the discharge summary shows that Right ear discharge on and off, operated left ear right trial myringotomy done on 24/05/2013. The opposite party submitted that myringotomy is a procedure to create a hole in the year drum to allow fluid that strapped in the middle ear to drain out a small tube is inserted in to the hole in the ear drum to help maintain drainage. It is submitted that it is a pre-existing disease which is defined in the policy certificate executed between the first opposite party and complainant. The discharge summary issued by the doctor on 04/01/2019 itself shows that who treated the second complainant since 2013. It is further submitted that the said hospital where the second complainant is admitted is not enlisted by the opposite parties. The opposite party submitted that all supporting documents and original bills to be submitted before second opposite party for disbursement. It is the norms of the first opposite party that claim forms should be supported by the medical certificate / attending doctors certificate and original bills. The certificate submitted along with claim form shows that the second complainant first consulted for the illness on 16/05/2013 according to the doctor who issued the medical certificate for second complainant’s illness. The treated doctor could have known the existence of illness since 2013.
7. The third-party administrators (TPA) who is the second opposite party has informed to first opposite party that under renewed policy the claim of the complainants comes under the exclusion clause 4.1 of the policy condition executed by the first opposite party and complainant. So, stating the above reason the first opposite party repudiated the claim of the complainant on 08/05/2019 by stating the section 4.1 of the policy certificate, which says “any pre-existing conditions (s) as defined in the policy, until 48 months of continues coverage of such insured person have elapsed since inception of his / her first policy as mentioned in the scheduled attached to the policy . The submission of the opposite party is that the illness of second complainant is pre-existing prior to the commencement of policy, has not completed mandatory duration of continues policy periods to be eligible for the waiver of the exclusion. So, the claim of the second complainant is repudiated by the first opposite party. The opposite party denied the averment that somebody called from customer care of opposite parties to settle the claim for 10,000/- rupees.
8. The opposite party had issued the policy conditions and the complainant has verified and accepted the policy conditions and remitted the required policy premium. Subsequently only the first opposite party issued the policy certificate. The complaint is filed only on experimental purposes and so liable to be dismissed in limine with cost. The complainants are not eligible for the compensation as prayed. It is further submitted that clause 5.14 of the policy certificate executed between first opposite party and complainant, if any dispute or difference shall arise as to the quantum to be paid under the policy (liability being otherwise admitted) such difference shall independently of all other questions to be referred to the decision of the arbitrator to be appointed in writing by the parties. Hence the submission is that complaint is not maintainable before this Consumer Commission since there is arbitration clause in the policy certificate.
9. The opposite parties submit that there is no deficiency of service as alleged in the complaint and there is no cause of action for this complaint and so the complainants are not entitled to get any amount as claimed in the complaint. So the prayer of the opposite party is to accept the version of the opposite party and dismiss the complaint with cost to the opposite party.
10. The complainant and first opposite party filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A8. The documents on the side of opposite party marked as Ext B1 and B2. Ext. A1 is insurance policy certificate which is valid from 07/08/2018 to 06/08/2019 and the policy number is 1010012818P105888501. Ext. A2 is copy of discharge summary issued from ENT super specialty institute and research center dated 04/01/2019. Ext. A3 is letter of repudiation issued from the first opposite party dated 08/05/2019. Ext. A4 is inpatient bill dated 04/01/2019 issued from ENT super specialty institute and research center. Ext.A5 is insurance policy certificate for the period 2014-15. Ext. A6 is insurance certificate valid from 07/08/2017 to 06/08/2018 with policy number 1010012817P106606358. Ext. A7 is insurance certificate for the period 10/06/2016 to 09/06/2017 with policy No.1010012816P103102114. Ext. A8 is insurance certificate valid from 10/06/2015 from 09/06/2016 with policy No.1010012815P102687376. Ext. B1 is copy of medical certificate / attending doctor’s certificate dated 14/01/2019. Ext. B2 is insurance repudiation letter dated 08/05/2019.
11. Heard complainant and first opposite party, perused affidavit and documents the complainant and opposite party filed notes of arguments also.
The following points arise for consideration
Whether there was pre-existing disease to the complainant as contended by the opposite party?
Whether there is deficiency in service on the part of the opposite party?
Relief and cost?
12. Points 1 to 3
The opposite party admitted that there was insurance policy in favor of the complainants as contended in the complaint. The opposite party did not dispute the treatment undergone by the complainant. But the case of the opposite party is that the complainant was having pre-existing disease and non-disclosure of the same at the time of inception of policy is sufficient reason for repudiation of the claim. The opposite party produced Ext. B1 to show the pre-existing disease of the complainant. Ext. B2 is the repudiation letter issued by the opposite party to the complainant. The complainant produced Ext.A2 the discharge summary to show the treatment undergone by the complainant. The complainant has got a case that he underwent treatment for the other ear which was not treated earlier. According to the opposite party as per Ext. B1 document the complainant was undergone for consultation in the year 2013 i.e., 16/05/2013. But as per Ext. A2 the discharge summary reveals history of treatment to right ear discharge on and off, operated left ear, right trail myringotomy on 24/05/2013. On evaluating both Ext. A2 and Ext. B1 documents it is not possible to conclude the treatment undergone in the year 2013 and subsequently in the 2019 are one and same. So, the contention of the complainant that the treatment undergone earlier was not the treatment connected to the ailment presently undergone.
13. The complainant produced Ext.A1, A5, A6, A7 and A8 to establish that the complainant was having insurance policy with the opposite party. Ext. A5 is policy for the period 2014 to 2015. The present ailment and the treatment are in the year 2019. It is admitted fact that the complainant is liable to disclose the ailment which he knows at the time of subscribing the policy. The complainant has got a case he had disclosed the treatment undergone by him prior to the inception of insurance policy. Further the complainant submitted that he subscribed the policy after medical examination by the doctor also. In the absence of non production of relevant document regarding whether the complainant had disclosed or not the pre existing disease to the opposite party can be concluded only on verification of the document. Hence in the absence of contra evidence against the claim of complainant we find that there was no pre-existing disease as contended by the opposite party and the repudiation of the claim by the opposite party through Ext. B2 is unsustainable and amounts deficiency in service.
14. The complainant undergone treatment before ENT super specialty institute and research center from 03/01/2019 to 04/01/2019 as per Ext. A2. The complainant produced Ext. A1 and A4 to show the medical expenses incurred by him during the treatment period. The opposite party has not disputed the treatment expenses. Hence, we find that the complainant is entitled for the treatment expenses as claimed. The submission of the complainant is that he spent more than one lakh rupees for the treatment. But the document produced by the complainant shows that he spent only Rs.75,500/- towards treatment expenses as per Ext. A4. Hence the complainant is entitled Rs.75,500/- towards the treatment expenses. The complainant had duly submitted the claim form before the opposite party. But the opposite party repudiated the claim on the ground of non-disclosure of pre-existing disease and which considered as violation of policy conditions. As per clause 4.1 in the medical insurance policy entitles the opposite party to repudiate the claim. Moreover, the opposite party contended that if any dispute or difference shall arise to quantum to be paid under the policy, such difference shall be independently of all other questions to be referred to the decision of the arbitrator to be appointed in writing by the parties. But it is well settled position that the presence of arbitration clause will not disentitle the consumer commission the jurisdiction to entertain the complaint. There is no written agreement for reference to the arbitrator by the parties in the matter. So, the commission finds that the complainant is entitled for the treatment expenses under the policy, with interest at the rate of 9% per annum from the date of filing this complaint till date of payment. The opposite party is also liable to pay cost of Rs.5,000/- to the complainant.
In the light of above fact and circumstances we allow this complaint as follows: -
The first opposite party is directed to pay Rs.75,500/- to the complainant with interest at the rate of 9% per annum from date of filing this complaint to till date of payment.
The first opposite party is also directed to pay Rs.5,000/- as cost of the proceedings.
The opposite parties shall comply this order within one month from the date of receipt of copy of this order, failing which the opposite parties are liable to pay interest at the rate of 9% per annum from the date of filing this complaint till date of payment.
Dated this 6th day of February, 2023.
Mohandasan K.President
Preethi Sivaraman C. Member
Mohamed Ismayil C.V. Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A8
Ext.A1: Insurance policy certificate which is valid from 07/08/2018 to 06/08/2019 and
the policy number is 1010012818P105888501.
Ext.A2: Copy of discharge summary issued from ENT super specialty institute and
research center dated 04/01/2019.
Ext A3: letter of repudiation issued from the first opposite party dated 08/05/2019.
Ext A4: Inpatient bill dated 04/01/2019 issued from ENT super specialty institute and
research center.
Ext A5: Insurance policy certificate for the period 2014-1
Ext.A6: Insurance certificate valid from 07/08/2017 to 06/08/2018 with policy number
1010012817P106606358.
Ext.A7: Insurance certificate for the period 10/06/2016 to 09/06/2017 with policy
No.1010012816P103102114.
Ext A8: Insurance certificate valid from 10/06/2015 from 09/06/2016 with policy
No.1010012815P102687376.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1 to B2
Ext.B1: Copy of medical certificate / attending doctor’s certificate dated 14/01/2019.
Ext.B2: Insurance repudiation letter dated 08/05/2019.
Mohandasan K., President
Preethi Sivaraman C., Member
Mohamed Ismayil C.V Member
