ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.      This is the Complaint filed by the Complainant against the Opposite Party (herein referred to as OP) under Section 35 of the Consumer Protection Act 2019 for the deficiency in service in repudiating the insurance claim of Rs.10,00,000/- and for payment of the same along with interest at 18% per annum and Rs.2,00,000/- as damages for the deficiency in service and Rs.50,000/- towards the cost of the litigation and for such other reliefs as the Hon’ble District Commission deems fit.

2.      The brief facts of the complaint are that; Complainant is senior citizen  aged about 64 years. She had an insurance from OP under HDRC ERGO Easy Health Group Insurance Policy for a sum of Rs.10,00,000/- obtained on 25.04.2021 for the period till 24.04.2022. She had obtained the policy under cover from 25.04.2018 onwards.  She was admitted to Apollo hospital on the advice Dr. Geetha Subramanyam on 29.04.2021 and after investigation it was revealed that she was having “Aortic Valve Stenosis” and the doctor attending on her suggested to go for a “Trans Catheter Aortic Valve Implantation” (TAVI) which was to cost about Rs.15 to 17 lakhs. After the preliminary investigation she was discharged for which the 3^rd party administrator Ericson approved her request for cash less entry and settled the hospital bills without any objection. She contacted the customer care center6 of OP-1 to find out what is the insurance amount /coverage available for her to undergo TAVI. She was informed that she would be cove red for Rs.10,00,000/-.  She decided to undergo TAVI with the help of the insurance amount and the remaining to be adjusted by her.  She got admitted herself on 12.05.2021 to undergo TAVI and she was also informed by OP customer care that her cashless claim request, has been approved.  On the confirmation of the cashless claim request she underwent TAVI procedure on 13.05.2021.  On 17.05.2021 OP raised some quarries for which Apollo hospital authorities sent documents.  In the said enquiry, OP has sought the earlier treatment and medical documents. Upon the request for the medical documents, she furnished Dr. Roy’s Chowdhury’s consultation paper dated 15.02.2016. On receipt of the said documents, OP repudiated the claim as well as the cash less treatment and also repudiated the claim and cancelled the insurance policy. She again made a request to reconsider the same which was rejected by the grievance cell of OP. 

3.      The Dr. Roy’s Chowdhury’s consultation paper has been incorrectly considered by the OP in repudiating the claim. Had OP gone through the emails of the complainant carefully, and the test report from RV Metro Polis labs, and two self-explanatory letters by Dr.Jayaranganath who conducted TAVI properly, OP would not have rejected her claim. Rejection of the claim amount to negligence and deficiency in service. Hence, she has to be compensated for the insurance claim and for deficiency in service and prayed the commission to allow the complaint.

4.      Upon the service of notice, OP appeared before the commission through his counsel and filed the version contending that the complaint is vexatious, misconceived on misrepresentative facts, not maintainable and either in law or facts.  It is contended that the complainant obtained insurance coverage for Rs.10,00,000/- and before that she was having a history of “Virtibro Basilar Insufficiency” as per consultation paper dated 05.12.2016 which is prior to issuing the policy.  Hence the claim of the complainant was repudiated due to incorrect good health declaration under the terms and conditions of the policy i.e. Section 3 definition 11 of the policy “disclosure of information norms means: the policy shall be void and all premiums paid thereon shall be forfeited to the company in the event of misrepresentation misdescription or nondisclosure of any material facts . Further the insurance law is a contract of insurance based upon atmost good faith. Uberrima fides.”

5.      Therefore, the principle underlying of doctrine of disclosure and rule of goodfaith obliges the proposal to answer every question put to him with complete honesty and faithfulness.  There is no deficiency in repudiating the claim as complainant has violated the terms and conditions of the policy in not disclosing the material facts and also obtained the policy by giving false declaration. The insured ought not to be suffering from any preexisting illness. In the event of any information submitted by the insured being found to be false, incorrect misrepresented, misdescription of nondisclosure of any particulars in personal statement and declaration and connected policy shall stand null and void and repudiated by the OP.  The medical record of the complainant clearly proves that the complainant has suppressed the preexisting disease. 

6.      In view of the same, the complainant has filed this complaint in order to make unlawful gain of the public money.  OP is a trustee of the public money and has to safeguard the policy holder and it cannot honour the claim which are against the conditions of the policy issued.  In view of the same, OP is not at all responsible for the repudiation of the claim and complainant is not entitle for any of the reliefs and prayed the commission to dismiss the complaint.

7.      In order to prove the case, both parties have filed their affidavit 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 Party?

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

8.      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:-

9.      On perusing the complaint, version, documents, evidence filed by both  parties, it becomes clear that, the complainant got insured with the OP by paying the requisite annual premium. She obtained the insurance with OP from 2018 onwards i.e. from 25.02.2018 and had been renewing the same and the cover was up to 24.02.2022. The policy is individual, easy health, group insurance for a sum assured Rs.10,00,000/-. OP has collected Rs.21,632/- being the annual insurance premium.  It is the specific case of the complainant that OP repudiated the claim after she made the claim after undergoing TAVI with the Dr. Jaya Ranganath, on the specific ground that upon the OP requesting to furnish the documents, she produced all the earlier medical documents wherein it was noted by OP that in the history “Virtibro Basilar Insufficiency” was found in the consultation paper dated 05.12.2016 i.e. prior to the policy inception and hence the claim is repudiated due to incorrect good health declaration under terms and conditions of Section 3 definition 11 of the policy.  Except on the said document OP has not at all placed any materials to substantiate the same. Even the proposal form obtained by the complainant at the time of issuing the insurance has not been produced by the OP.

10.    On the other hand, OP is relying on the letter and the documents said to have been produced in respect of the earlier treatment wherein it was revealed that she was having Vertibro Basilar Insufficiency. No proof of the same is produced by OP.

11.    OP has not at all made clear to this commission as to whether the said medical condition is correlated to which the complainant has taken treatment with Dr.Jaya Ranganath at Apollo hospital. The said doctor has issued a letter mentioning as to whomsoever it may concern, dated 02.06.2021 wherein:

“This is regarding Mrs. Shyamala Parasuraman, aged 64 year old female patient with respect to letter from HDFC ERGO General Insurance Co. Ltd., dated 18.05.2021 and 01.06.2021. As per this letter, insurance claim was rejected stating that she had vertebra basilar insufficiency. This diagnosis was made on the clinical grounds and not proved. Carotid and vertebral Doppler was normal. The present condition for which she underwent the procedure is severe Aortic stenosis. There is no correlation between the two conditions. It was not diagnosed at that time.”

12.    He has also made clear in the said certificate that the diagnosis of “Vertibro Basilar Insufficiency” was made on the clinical ground and not proved.  Further carotid and vertebral dopplar was normal, the present condition for which she underwent the procedure is severe Aortic Stenosis and there is no correlation between the two conditions.  And it was not diagnosis at that time. When this is taken into consideration, and in the absence of OP proving independently of the existing medical situation, we are of the opinion that repudiation of the claim amounts to deficiency in service.  Under Section 45 of the Insurance Act OP ought to have cancelled the insurance policy within three years. The same has not been done in this case. In view of this, hence we answer POINT NO.1 IN THE AFFIRMATIVE.  

POINT No.2:

13.    According to the complainant, the charges involved for the said TAVI was about Rs.15 to 17 lakhs.  The bills produced by the complainant is at Ex.P8 is for Rs.12,84,640/-. The insured value is Rs.10,00,000/- as per the insurance policy Ex.P1. Further OP has not raised any dispute regarding the hospital charges. Hence OP is bound to pay the said amount along with interest at 12% per annum on  the said amount from the date of repudiation i.e. from 18.05.2021 till payment of the entire amount and also we direct OP to pay Rs.50,000/- for causing mental agony, physical hardship for the senior citizen who underwent the surgery.  Further the act of repudiation of the OP in respect of the insurance made the complainant to file this complaint by engaging  advocate by paying her profession fee. Hence we also direct OP to pay Rs.10,000/- towards legal, litigation expenses and other misc. expenses.  Hence we answer POINT NO.2 PARTY IN THE AFFIRMATIVE and  pass the following:

ORDER

1. The complaint is allowed in part with cost.
2. OP i.e. “M/s. HDFC ERGO General Life Insurance Co. Ltd., represented by its Director/Authorized Signatory is hereby directed to pay Rs.10,00,000/- to the complainant along with interest at 12% per annum on  the said amount from the date of repudiation i.e. from 18.05.2021 till payment of the entire amount.
3. Further OP is directed to pay Rs.50,000/- towards damages for causing mental agony, physical hardship and financial loss to the complainants and Rs.10,000/- towards the litigation expenses to the complainant.
4. OP is hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this Commission within 15 days thereafter.
5. 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 23^rd day of May 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 Insurance policy with terms and conditions.

Ex P2: Copy of the Medical documents

Ex. P3: Copy of the Discharge summary.

Ex P4: Copy of the letter written by OP.

Ex P5: Copy of the claim application.

Ex P6: Copy of the repudiation letter.

Ex P7: Copy of the discharge summary dated:17.05.2021.

Ex P8: Copy of the amount paid towards hospital expenses.

Ex P9: Copy of the denial for cashless facility.

Ex P10: Copy of the complaint regarding claim rejection.

Ex P11: Copy of notice terminating the insurance.

Ex P12: Copy of email correspondences.

Ex P13: Certificate issued by Dr.Jagannath.

Ex P14: Copy of the Legal notice.

Ex P15: Postal acknowledgement.

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

RW-1: Sri Naresh Babu.S. Executive Legal officer of OP.

Copies of Documents produced on behalf of Opposite Party/s

Doc.No.1: Copy of the claim form.

Doc.No.2: Coy of the insurance endorsement cum certificate of insurance.

Doc.No.3: Copy of the policy wording.

Doc.No.4: Copy of repudiation letter dt:01.06.2021.

MEMBER           MEMBER          PRESIDENT

RAK*