SMT. RAVI SUSHA: PRESIDENT
Complainant filed this complaint for getting an order directing opposite party to pay Rs.5 lakhs with 12% interest from 24/03/2022 and to pay Rs.5,00,000/- as compensation for the serious hardship, mental agony and huge financial loss suffered by complainant and also to pay the cost of proceedings.
Complainant’s case, in brief, is that the complainant had bought a family Health Optima insurance plan from the OP for the complainant and his wife and two children for a total premium of Rs.17,447 on 16/02/2022. When the complainant haven’t got any relief from the treatment obtained from doctor’s Nabu Joseph for the complaint of lost of appetite. He went to Aster Mims Kannur to consult Gastrologist Dr.Kavitha K. On 17/03/2022 Dr. Kavitha K ordered for ultrasound of abdominal and prescribed some medicines. Result of Ultrasound was Suspicious Gastric wall thickening along with large Heterogeneously Hypo echoic Nodular lesions in the Perigastric Region as described Lymph nodes. Suggest CECT abdomen for further evaluation. Thereafter on 19/0/2022 endoscopy was conducted on the complainant. The result of Endoscopy was Neoplasm body of stomach with partial GOO. While doing endoscope biopsy was taken and send for further test. On 21/03/2022 for 2nd consultation with all his medical prescriptions and his records the complainant went to Dr. Rohit Ravindran HOD Senior consultant Gastrointestinal Surgery at Meitra Hosptial. After seeing the report Dr. Rohit Ravindran ordered for CECT. On 24/03/2022 the biopsy report came which confirmed that complainant is having cancer. On that day complainant came to know about his disease that means on 24/03/2022. Complainant got the knowledge of his disease. On 28/03/2022 the complainant got admitted to lakeshore hospital for further treatment and he is continuing treatment there. There after complainant applied for his claim from the OP Insurance company. On 06/06/2022 OP denied his claim stating the Non-disclosure of pre-existing disease. On 14/06/2022 OP also denied his claim for reimbursement of hospitalization expenses stating the same excuse. On 15/07/2022 the complainant received communication from the OP Insurance company stating that complainant name is deleted from the policy. It is submitted that on 16/02/2022 while taking insurance policy the complainant was not having any disease or if he had any disease he was not aware about the. On 24/03/2022 he was diagnose with cancer after the result of biopsy came. He only got aware about his condition of 24/03/2022. While taking insurance policy complainant have given all information to the insurance company truthfully and best of his knowledge. The act of the OP is unlawfully and unjust. Hence the complaint.
OP contended that the complainant has been filed by suppressing material facts. It is submitted the complainant had taken a family health optima insurance policy from the Kannur a branch office of the OP for the period commencing form 16/02/2022 to 15/02/2023 covering the complainant, his wife and two children for a sum insured of Rs.5 lakh vide policy No. P/1813/01/2022/014239. At the time of issuing the policy of complainant was supplied with the Terms and conditions of the policy which were explained to the complainant the time of proposing policy and the same was served to eh complainant along with the policy schedule. Moreover it is clearly stated in the policy schedule that “the Insurance under this policy is subject to conditions, clauses, warranties, exclusions etc., attached. It is submitted that proposal form is the basis of insurance contract, on that basis the policy is issued. In the proposal form, the complainant has declared that he was not suffering from any diseases. It is submitted that during the aforesaid policy period, the complainant had submitted 3 claims before the OP as CIR/2022/181313/4046749, CIR/2023/181313/0102682,CIR/2023/181313/0239670. In I.No.CIR/2022/181313/4046749, the OP had received a request for cashless hospitalization from Lakeshore Hospital, Kochi stating that the complainant was admitted at hospital on 28/03/2022 and was provisionally diagnosed with moderately differentiated Adenocarcinoma, body of stomach. Along with the pre-authorization, the hospital has also forwarded the consultation paper dated 17/03/2022 from Aster MIMS Hospital, Kannur. As per the consultation paper dated 17/03/2022, the complainant is having abdominal pain since 3 weeks. As there were no completed requested records, the OP was not in a position to decide the admissibility of the claim. Hence the pre-authorization request for cashless treatment was denied by the OP and informed the hospital and the complainant vide letter dated 30/03/2022. It is submitted that after treatment, the complainant had submitted claim form, discharge summary, bills of RS.39,793/- and reports for the reimbursement off the medical expenses incurred by him. In the history column of the discharge summary, it mentioned that the complainant was evaluated for loss of appetite, early satiety, loss of weight and fatigue for past 2 months. This means that the complainant has been suffering from Carcinoma Stomach since 2 months as on 28/03/2022 which is prior to the inception of policy. The complainant had failed to disclose this in the proposal form at the time of inception of policy. This amounts to misrepresentation/non disclosure of material facts. As per condition No.4(1) of the policy issued to the complainant, if there is any misrepresentation/non disclosure of material facts whether b the insured person or any other person acting on his behalf the company is not liable to make any payment in respect of any claim. It is submitted that in the history column of the discharge summary, it is mentioned that the complainant was evaluated for loss of appetite, early satiety, loss of weight and fatigue for past 2 months. This means that the complainant has been suffering from Carcinoma Stomach since 2 months as on 28/03/2022 which is prior to the inception of policy. The complainant had failed to disclose this in the proposal from at the time of inception of policy. The amounts to misrepresentation/non disclosure of material facts. Moreover as per condition No.4(7) of the policy, the company can cancel the policy on grounds of misrepresentation, fraud, moral hazard, non disclosure of material fact as declared in the proposal form, and /or claim form at the time of claim and non- co-operation of the insure d by sending 30 days notice by registered letter at the insured person’s last known address. Hence as per the condition, a notice dated 06/06/2022 was issued to the complainant and informed that the policy was canalled with effect from 16/07/2022.
There was suppression of facts by the complainant in as much as the complainant did not disclose his suffering from carcinoma stomach prior to obtaining insurance coverage from the OPs. There was no deficiency of service at the instance of the OPs and the case is liable to be dismissed.
Both parties led evidence. Complainant filed chief affidavit with documents examined as Pw1. Marked Ext.A1 to A20. On the side of OP, Deputy Manager of OP company filed his chief-affidavit and examined as Dw1.Marked Ext.B1 to B9. After that the learned counsels of complainant and OP made argument and also field written argument notes with judgments of Hon’ble Apex court.
The learned counsel of OP, submitted that from the materials on record (discharge summary from Lakeshore hospital) it has become evident that the complainant had a history of pre-existing disease ie Adeno carcinoma, body of stomach, which the complainant had intentionally suppressed. So the complaint is to be dismissed as OP has no liability to indemnity the complainant’s claim to reimburse the treatment expense incurred to the complainant at Lakeshore hospital.
We have considered the submission of the learned counsel of OP and have gone through the materials on record and the learned counsel of complainant submitted that in spite of complainant having valid insurance coverage, OP Insurance company has repudiated his just and proper claim. The OP insurance company has, on the other hand, has tried to prove that the repudiation of the complainant’s claim was justified as there was material suppression of pre-existing disease by the complainant. The learned counsel submitted that “The Insurance under this policy is subject to condition, clauses, warranties, and exclusions etc, attached” In the proposal form, the complainant has declared that he was not suffering from any diseases. As per condition No.4(1) of the policy issued to the complainant, “if there is any misrepresentation/non disclosure of material facts whether the insured person or any other person acting on his behalf, the company is not liable to make any payment in respect of any claim.”
The learned counsel for the complainant submitted that, the medical papers submitted by the complainant clearly indicate that the symptoms like loss of appetite, early satiety, loss of weight and fatigue are commonly seen in the normal people. In this case, only on 24/03/2022, the biopsy report of the complainant received which confirmed that complainant that complainant is having gastric carcinoma. The proposal form was filled and given 16/02/2022, the total premium of Rs.17,447/- also paid 16/02/2022. It is submitted that on 16/02/2022 while taking insurance policy the complainant was not having any disease or if he had any disease he was not aware about his condition on 24/03/2022 he was diagnosed with cancer after getting the result of biopsy report. He only got aware about his condition on 24/03/2022. It is submitted by the learned counsel of complainant that while taking insurance policy, complainant has given all information to the insurance company truthfully and best of his knowledge.
The complainant’s learned counsel submitted a number of citations and judgment of the appellate court with regard to the facts of this case.
In star health and Allied Insurance company Ltd Vs. V P Satheesh Menon, 2020 (1) KLJ71, the Hon’ble High Court of Kerala held that “A disease can be said to be contracted for the purpose of insurance claim only when after diagnosis it is clinically found that the patient is suffering from the disease. The symptoms related to the disease may be in existence for long periods prior to the diagnosis and the symptoms may be within the knowledge of the patient. For the purpose of an Insurance claim, a disease can be said to be contracted only when it is diagnosed by a competent physician and confirmed.”
Here Ext.B8, discharge summary of the complainant from Lakeshore Hospital Kochi, clearly evident that in history and examination head that An upper GIS copy and biopsy was taken on 19/03/2022 and CECT abdomen was taken on 21/03/2022. Diagnosed Aeno Carcinoma stomach – CT 3N2MO. Ext.A10 shows sample collected on 21/03/2022 and report date 24/03/2022, diagnosed moderately differentiated adeno carcinoma, body of stomach”.
Having considered the present matter with the view of Hon’ble High Court of Kerala, we find the complainant is entitled to get reimbursement of the medical expense incurred in Lakeshore hospital. Repudiation of the claim made by OP Insurance company amounts to deficiency in service of its part. Hence complainant is also entitled to get compensation and cost of the litigation expense. Ext.A19 and Ext.A20 are the medical bills pertaining to the treatment of complainant which amounts to Rs.6,59,496+ Rs.1,20,146.92. Since sum assured and limit of coverage as per Ext.A1 policy comes Rs.5,00,000/- complainant insured is entitled to get maximum of Rs.5 lakhs. So the policy benefit is limited to Rs.5,00,000/-.
In the result complainant is entitled to get Rs.5,00,000/- with interest 4% per annum from the date of complaint till realization with Rs.50,000/- towards compensation and Rs.5,000/- towards cost of the proceedings. Opposite party Insurance company is directed to pay the above said amount within one month from the date of receipt of the certified copy of this order. Failing which the awarded amount except cost amount, will carry interest @ 12% per annum from 24/03/2022 till realization. Complainant is at liberty to file execution application under the provision of Consumer Protection Act 2019.
Exts.
A1- Policy
A2-Letter from Grama Panchayat (with objection)
A3-Prescription from Dr. Nebu Joseph HNC Family clinic.
A4-Test result from HNC hospital
A5-Prescription from Dr. Kavitha
A6-Altra sound scan Aster Mims, Kannur
A7-Endoscopy Aster Mims Hospital
A8-CECT chest & Abdominal scanning report
A9-Out patient visit summary
A10-Biopsy test report
A11-Discharge summary
A12- Lab report
A13- Discharge summary Lakeshore hospital
A14- Lab report Lakeshore hospital
A15-Letter from Star Health
A16&A17-Letters from Star Health dated 14/06/2022
A18-Letter from Star Health dated 15/07/2022
A19-Medical bills (89 in No) Rs.6,59,496/-
A20-Medical bills (57 in No) Rs.1,20,146.92/-
B1-Proposal form
B2-Copy of policy schedule and condition
B3-Copy of request for cashless hospitalization from lakeshore hospital (subject to proof)
B4-Copy of query letter dated 29/03/2022(subject to proof)
B5-Copy of preauthorization request dated 30/03/2022
B6-Copy of discharge summary
B7-Copy of repudiation letter dated 04/06/2022
B8-Copy of discharge summary
B9-Copy of repudiation letter dated 14/06/2022
Pw1- Santhosh kumar-Complainant
Dw1-OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forwarded by order/
Assistant Registrar
