Date of Filing: 14/06/2011
Date of Order: 30/07/2011
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20
Dated: 30th DAY OF JULY 2011
PRESENT
SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT
SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER
SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER
COMPLAINT NO. 1070 OF 2011
Mr. Krishnan Kutty G,
S/o. G.K. Gangadharan,
Aged About 71 years,
R/at: No.101, Rapsody,
Shanthivana, Sahakaranagar,
Bangalore-560 092.
(Rep. by Advocate G.T. Rudra Murthy) Complainant.
-V/s-
1) M/s. Medi Assist India TPA Pvt., Ltd.,
“GREEN ARCH” 2nd Floor, (next to Park
View restaurant), No.45/A, 1st Main Road,
Sarakki Industrial Layout, 3rd Phase,
JP Nagar, Bangalore-560 078.
Rep. by its Manager & Authorized Signatory.
(Absent)
2) M/s. New India Assurance Company Limited,
No.1, Shankar house, 2nd Floor, Mekhri Circle,
Bangalore-560 080.
Rep. by its Manager & Authorized Signatory-claims.
(Rep. by Advocate S.V. Angadi) Opposite parties.
BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT
ORDER
The brief antecedents that lead to the filing of the complainant made under section 12 of the Consumer Protection Act, seeking direction to the opposite parties to pay a sum of Rs.2,00,000/-, are necessary:-
The complainant obtained “Hospitalization Benefit for Senior Citizen Mediclaim Policy” bearing No. 671602/34/10/15/00001149, on 31.12.2010 from the opposite party and it was valid up to 30.12.2011 and paid a premium of Rs.5,284/- and the sum assured was Rs.1,00,000/-. On 04.03.2011 the complainant was admitted to the Bhagwan Mahavir Jain Hospital for Left Lower Limb foot duskiness and pain and on 09.03.2011 he underwent surgery called as “Left Graft Thrombectomy with across the distal anastomosis stenting” and also distal angioplasty operation was done. At the time of admission the complainant requested cashless facility, but the opposite party No.1 informed that they did not have the said facility with the said Hospital and stated that the complainant can claim the bills later. The complainant paid Rs.1,60,000/-. The opposite party agreed to reimburse the medical claim. The hospital raised total bill amounting to Rs.2,31,500/-. Out of which Rs.50,000/- was paid by the insurance company covered by the daughter of the complainant. The balance of Rs.1,81,500/- was paid by the complainant. The complainant immediately applied for reimbursement from the office of the opposite party. The opposite party rejected the claim laying claim under pre-existing disease, diabetes, Hypertension, Chronic smoker since 10 years, etc.,. The complainant was smoking in his college days, but not now. It is not proper. Hence the complaint for reimbursement of Rs.1,00,000/- and compensation of Rs.1,00,000/-.
2. The opposite party No.1 though remained absent throughout the proceedings. In brief the version of the opposite party No.2 are:-
The complainant is not a consumer. The purchase of the insurance policy, paying of the premium, its validity are all admitted. The complainant was admitted to the Bhagwan Mahavir Jain Hospital his operation, payments amounting to Rs.1,60,000/- made by the insurance policy of the daughter of the complainant is not within the knowledge of this opposite party. The contract of insurance is based on good faith and honest treatment. Any misrepresentation as defined in section 18 of the Indian Contract Act makes the contract voidable. The complainant was very much aware that at the time of submitting a proposal for the insurance coverage the fact of ailment if not disclosed, the policy will not even issued by this opposite party. The complainant did not enjoy good health as on the date of the submission of the proposal as he was suffering from various ailments which he has not disclosed at the time of taking policy. The investigations disclosed that the complainant had an history of Diabetes Mellitus and hypertension from the past 15 to 20 years and a patient with a chronic smoking since the part 10 years. The diagnosed ailment is a complication developed due to the pre-existing disease as mentioned above. As he has not disclosed, the policy was rightly repudiated
3. To substantiate their respective cases the parties have filed their affidavits and documents. The arguments were heard.
4. The points that arise for our consideration are:-
- Whether the repudiation of the policy claim on the ground of pre-existing disease by the opposite party is an unfair trade practice?
- What order?
5. Our findings on the above points are:-
Point (A) : In the Negative.
Point (B) : As per the final order
For the following:-
REASONS
POINT (A) to (B):-
6. Reading the pleadings in conjunction with the affidavits and documents on record, it is an admitted fact that the complainant has made an application for medi-claim policy on 31.12.2010, paid certain premium and the sum assured was Rs.1,00,000/-. The policy was valid between 31.12.2010 to 30.12.2011. Further it is an undisputed fact that the complainant was admitted to the Bhagwan Mahavir Jain Hospital on 04.03.2011 and was discharged on 12.03.2011. In that regard Hospital authorities have raised a bill of Rs.2,31,495.19 paise, out of which about Rs.50,000/- was paid by the insurance company of the daughter of the complainant according to the complainant. No document is produced by the complainant in that regard. Anyway that statement of the complainant is not challenged. In any event the complainant had paid Rs.1,86,645/- to the Hospital. The complainant had claimed only the sum assured that is Rs.1,00,000/- from the opposite parties and the opposite parties have repudiated the claim on 01.06.2011. The said repudiation is being challenged before this Forum.
7. The repudiation reads thus:-
That is to say since the complainant was suffering from Diabetes Mellitus and Hypertension since 15 to 20 years and is a Chronic smoker since 10 years, which has not been disclosed, hence the opposite party has repudiated the claim.
8. The complainant never disclosed that he was suffering from these ailments, disease i.e., diabetes mellitus and hypertension since 15 to 20 years earlier to taking the policy in question in this case. The complainant has stated that he was smoking in his college days and not now. Hence let us probe further.
9. The complainant had made an application for policy in question. In that at column No. 6 he has stated thus:-
That is to say he had not disclosed his diabetes mellitus, his hypertension or his smoking habit at the time of taking the policy.
10. The relevant portion of the discharge summery reads thus:-
Patient was admitted with above mentioned complaints and underwent through evaluation by a Physician, Pulmonologist and Nephrologist for his medical comorbidities. He was started on full dose anticoagulation. His left lower limb foot duskiness and pain improved. On 9.3.11, he underwent a left graft (femoral-Pop (P2)) thrombectomy with across the distal anastomosis stenting and distal angioplasty. Post operative period, he had some episode of hypotension, that corrected with IVF, but Trop I was minimally elevated (0.1/0.2). Cardiologist opinion obtained who also reviewed with repeat ECG and ECHO and they both were normal, so diagnosed as mild NSTEMI. Post operative day 2 he had episodes of tachycardia were managed with altering his BP medication and put on selective B-blocker by the cardiologist.
His leg, foot warmed up. His popliteal ++, anterior tibial artery, posterior tibial artery ++ palpable. His thigh suture line is clean. He was on full dose anticoagulation perioperativeg period.
AT THE TIME OF DISCHARGE: Patient is afebrile. ABI 0.96.
The opposite party on 01.06.2011 has repudiated the claim which reads thus:-
That is to say because of the diabetes mellitus and hypertension and non-stop smoking since 10 to 20 years the complication developed left graft thrombectomy with across the distal anastomosis stenting and distal angioplasty. If these three diseases had been disclosed at the time of obtaining policy the opposite party would not have ventured in issuing the policy as rightly contended.
11. Within three months from the date of taking the policy this operation was done. This operation did not come from the blue all of a sudden. This non-disclosed pre-existing disease is the cause for repudiation, rightly, there is no illegality or deficiency in service. If the opposite party had been disclosed with such pre-existing disease by the complainant they would not have issued the policy in question as rightly contended.
12. In this case the pre-existing disease is the straight cause for the operation in question. Hence the opposite parties were right in repudiating the claim. The counsel for the complainant cited (1) I(2002) CPJ 23 (NC), (2) I (2000) CPJ 241, (3) II (2000) CPJ 317, (4) III (1993) CPJ 1791. There is no dispute about the proposition of law stated there in. These judgments are not applicable to the facts and circumstances of this case. Discussing and distinguishing these judgments will only bulk and bulge the record which is impermissible under the regulation 18(5) of the Consumer Protection Regulation 2005.
13. Further in Appeal No.5222/2010 dated: 07.03.2011 between National Insurance Company Limited and Another –V/s- Leela Bai following dictum of law in I(2008) CPJ 500 (NC) it is held:-
“In this connection the LC for the appellant relied upon a decision reported in 1(2008) CPJ 500 (NC) in case of Shiv Kumar Malhan –V/s- National Insurance Company Limited, wherein it has held that:
“Consumer Protection Act, 1986 – Section 21(b) – Insurance – Suppression of material facts – pre-existing disease suppressed at the time of purchase and renewal of policy – Reimbursement of treatment claim repudiated – Complaint dismissed by Forum- Appeal against the order dismissed – Hence revision-Complainant known case of diabetes mellitus for last 6 month proved – Contention, no proposal submitted by complainant at time of renewal of policy-New plea of fact, not taken before For a below, cannot be permitted to raise for the first time in revision – No interference required in revision – R.P. Dismissed.”
The conduct of the respondent/complainant knowingly fully well that she was suffering from hypertension and diabetics suppressed the pre-existing disease had obtained the policy and the answers given for the questioner that whether have you suffered from any of the diseases / illness like high blood pressure, heart disease, including ischaemic heart disease, other circulatory disorder etc, the answer given as ‘No’ in the proposal forum as ‘No’. Men may lie but not the document and the discharge summery issued by the reputed Hospital clearly shows that the respondent/complainant is suffering from hypertension for the last 15 years and diabetic for the last 5 years. That mean to say that before obtaining medi-claim policy she was suffering from the aforesaid disease. Nowadays in India it is easy for such people to obtain the policy with cleaver mind by suppressing the material facts. Perhaps she might not have disclosed her pre-existing disease before the panel doctor who signed on the proposal form. The appellant/Insurance Company with utmost good faith on the respondent/insured after undergoing medical check up issue the policy. Therefore, the order passed by the DF in allowing the complaint is totally incorrect and perverse and the DF without non examining the documents like discharge summary issued by the Bangalore Hospital, Bangalore, has allowed the complaint which requires our interference.
Since the respondent/complainant has not given proper answers to the questioner of the proposal form, it can be said that the respondent has willfully obtained the policy by playing fraud.”
This in all force applies to the facts and circumstances of this case.
14. In view of the said decision of our State Commission and the Hon’ble National Commission the citation citied by the complainant as stated supra is outdated and obsolete.
15. Hence we hold the above points accordingly, and proceed to pass the following:-
ORDER
1. The complaint is Dismissed. No order as to costs.
2. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
3. Send a copy of this order to both parties free of costs, immediately.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 30th Day of July 2011)
MEMBER MEMBER PRESIDENT
