SMT. RAVI SUSHA : PRESIDENT
Complainant filed this complaint U/S 12 of the Consumer Protection Act 1986 against opposite party seeking to get an order directing the OP to pay Rs.2,00,405/- being treatment expenses of the complainant’s wife. Rs.140,000/- incurred by the complainant for the subsequent surgeries, along with Rs.10,00,000/- as compensation for the damages pain and mental agony caused to the complainant due to the deficiency in service and unfair trade practice on the part of opposite party.
In brief the facts of case are that the complainant purchased a family health optima insurance policy for himself , his wife and children from the OP for a period from 24/3/2014 to 23/3/2015 and the said policy is being renewed from time to time and the present policy period is from 24/3/2018 to 23/3/2019. The complainant to the insurance cover for a sum of Rs.10,00,000/-. Thereafter on 9/9/2018 the complainant intimated OP about the admission of his wife for CA tongue at Malabar cancer Center Thalassery and the final diagnosis was CA tongue(second primary) and the stage was CT2N2c and the surgery was conducted on 11/9/2018 and she was discharged on 20/9/2018 and thereafter completed her radiation treatment and chemotherapy on 12/12/2018 and she is on regular follow-ups. Therefore the complainant preferred a claim before the OP in accordance with the policy conditions. But the insurance company did not settle the claim. On 3/11/2018 he received a letter from OP that the claim preferred by the complainant is repudiated by the company and the main reason for repudiating the claim stated was that complainant has not disclosed the medical history/health details of his wife on 24/3/2014 ie when complainant took the policy. Thereafter on 10/11/2018 complainant again received another notice from OP that they have cancelled the policy and its coverage with effect from 20/12/2018. In fact the complainant nor his wife did not suppress any material facts about any disease and not violated any terms or conditions of the policy. According to the OP it was a pre-existing disease at the time of taking policy for the first time and it is known t the complainant and hence it is a non disclosure of the material fact. The complainant states that she consulted at MIMS on 29/3/2014 and the complainant’s wife told that the lesion was therefore the last one year and as there was no other symptoms or discomfort or pain, she did not consult any doctor or did not take any treatment for the same. He has also stated in his affidavit that infact complainant or his wife were not at all aware that it was a cancer at the time of inception of the policy as there was no symptoms due to that lesion. It is also stated that the present claim for the medical expenses, for the treatment done for the CA tongue(II primary) is after 4 ½ Years of the 1st treatment and above all it is not a pre-existing disease and it is not a continuation or any remnants of an uncured disease occurred in 2014. The present CA tongue is totally a new one and it has no connection with the earlier one and the diagnosis was “second primary”. The present policy was taken for the period from 24/3/2018 to 23/3/2019 and there was no carcinoma or any kind of disease and did not taken any treatment for any such disease during the period 2015,2016,2017. Further complainant states that as per the bills dtd from 7/8/2018 to 28/9/2018 complainant had incurred an amount of Rs.200405/- and in addition to that complainant had to spend nearly Rs.140000/- for the surgeries and radiation treatments during October 2018 to December 2018. The complainant states that the OP is liable to allow the claim submitted by him and also to reimburse the money spend by complainant for his wife’s treatment till 23/3/2019 as per the terms of the health insurance policy for the period 24/3/2018 to 23/3/2019. On 10/1/2019 a lawyer notice was send to OP but the OP neither send any reply nor sanctioned the claim of the complainant. Hence filed this complaint for getting relief as prayed in the complaint.
The insurance company filed written version and pleaded that the complainant had availed the policy from the Sulthan Bathery, Wayanad branch office of OP company. The claim processing and decision taken in the claim at Thiruvananthapuram District. No cause of action has taken place within the jurisdiction of this commission. OP further submitted that the complainant took a family health optima insurance policy for the period from 24/3/2014 to 23/3/2015 and the same has been renewed upto 23/3/2019 vide policy No. P/181315/01/2018/004839 covering complainant and his wife and two children. The Op submitted that complainant’s wife Dr.Sheena Mol K.S was admitted on 9/9/2018 at Malabar cancer centre Thalassery for the treatment of CA Tongue (2nd primary). And after the treatment she was discharged on 20/9/2018. The discharge summary issued by the Malabar Hospital Kannur reveals that the complainant’s wife was diagnosed with CA Tongue(RT lateral Border in 2014 and underwent wide excision RT SND from RCC,Trivandrum on 25/4/2014. The discharge summary dtd.29/3/2014 issued by the MIMS Hospital Kozhikode that the complainant’s wife had history of solid lesion right side of tongue since one year and the illness was diagnosed as CA tongue. From the surgical Oncology Division dtd.24/4/2014 issued by the Regional Cancer centre,Thiruvanathapuram reveals that the patient had complaints of non healing ulcer for 3 months and the illness was diagnosed as CA tongue. Based on the available medical records as stated above it is evident that the complainant had history of solid lesion right side of tongue and non healing ulcer for which treatment has been taken before the inception of policy and was not revealed in the proposal form at the time of inception of policy and taking policy , the complainant and his wife was well aware about the health condition and the insured has willfully suppressed the pre-existing disease in the proposal form, which is the basis of contract at the time of taking the policy, thereby she intentionally suppressed those facts in the proposal form despite there is specific question in the health history. Hence OP repudiated the claim and the same was informed to the complainant vide letter dtd.3/11/2018 and no deficiency in service was made. After repudiation, the complainant had sent an advocate notice on 10/1/2019, the OP sent a reply notice on the basis of the claim review committee report. Hence prayed to dismiss the complaint .
Complainant has filed his chief affidavit and documents. He was examined as PW1 and marked Exts A1 to A11. The doctor who had treated the wife of complainant from 9/9/2018 to 20/9/2018 in Malabar Cancer Centre Thalassery and issued discharge summary.(Ext.A4) was examined as PW2 on the side of complainant. The Asst. Manager legal of OP’s Zonal officer Mr. Balu.M has filed chief affidavit for himself and on behalf of the OP and was examined as DW1. Documents Exts.B1 to B11 were marked on the side of OP.
After that the Learned Counsels of complainant and OP filed their written argument notes.
We have gone through the available records as well as medical records and considered submissions for complainant and OP.
The undisputed facts in this case are that the complainant had taken family health optima insurance policy from OP for a sum of Rs.10,00,000/- . The policy was taken on 24/3/2018 having No.P/181315/01/2018/004839. Further the admitted fact that complainant’s wife Dr.Sheena Mol K.S was consulted at MIMS Hospital on 29/3/2014 as there was a solid lesion on the right side of her tongue and as per history told her that there was lesion for the last one year. Further on 24/4/2014 she was admitted in Regional Cancer Centre,Thiruvanathapuram and diagnosis was tongue CA. It is also admitted that she was admitted and treated in Malabar cancer centre Thalassery from 9/9/2018 to 20/9/2018 and final diagnosis as CA Tongue (2nd primary). Further there is no dispute that complainant has given claim form before OP for the treatment of his wife in Malabar cancer centre,Thalassery for a period from 9/9/2018 to 20/9/2018 and it was repudiated by OP through Ext.B6 with endorsement “suppression of material facts.” The insurance company has repudiated the claim of the complainant only on the ground that the complainant had concealed his wife’s ailment and in fact , she was suffering from the ailment of tongue CA. prior to the date of taking the policy. Further Ext.B7 letter, OP company cancelled the coverage of complainant in relating to the policy in question with effect from 20/12/2018.
The question to be decided in this case are (1) whether the repudiation of claim application submitted by the complainant made by OP is justifiable or not?
2) Whether complainant has suppressed material fact of concealed ailment of his wife that she was suffering from tongue CA prior to taking policy at the time of filling proposal form?
3) Whether there is any deficiency in service or unfair trade practice on the side of OP?
Insurance company has filed the affidavit of Sri.Balu.M,Assistant Manager, Legal , M/s Star Health ,Zonal office Thiruvananthapuram along with the papers relating to the treatment of complainant’s wife as an impatient in MIMS Hospital, Kozhikode from 29/3/2014 to 30/3/2014, as an impatient in Malabar cancer Centre,Thalassery for a period from 9/9/2018 to 20/9/2018 and in Regional Cancer Centre, Thiruvananthapuram from 24/4/2014 to 28/4/2014. The medical records Exts.B3 to B5 filed by OP nowhere indicates that the complainant’s wife had infact, been suffering with the ailment of CA Tongue and been taken treatment prior to 24/3/2014 ie, the date he took the health insurance policy. The complainant in his affidavit has stated that as there was a solid lesion on the right side of her tongue, she consulted at MIMS Hospital ,Kozhikode on 29/3/2014 and the complainant’s wife told that the lesion was there for the last one year and as there was no other symptoms or discomfort or pain, she did not consult any doctor or did not take any treatment for the same. He has also stated in his affidavit that in fact complainant or his wife were not at all aware that it was a cancer at the time of inception of the policy as there was no symptoms due to that lesion. It is also stated that the present claim for the medical expenses, for the treatment done for the CA tongue(II primary) is after 4 ½ Years of the 1st treatment and above all it is not a pre-existing disease and it is not a continuation or any remnants of an uncured disease occurred in 2014. The present CA tongue is totally a new one and it has no connection with the earlier one and the diagnosis was “second primary”.
For substantiating the said averment, complainant has examined Dr.Sajith Babu.T.P Oncologist as PW2 who had issued Ext.A4 discharge summary of Malabar Cancer centre . He has deposed that the wife of complainant approached in the year 2018, on biopsy it was found as CA second primary. PW2 also deposed that the second primary CA is not a continuation of the cancer treated in 2014 PW2 as an expert in Oncology further deposed about History and physical examination findings as per Ext.A2 “ This lady presented with the C/o solid lesion right side of tongue since one year”. That all lesions are not cancer and in this case complainant’s wife has only solid lesion and not cancer since one year from Ext.A2 date 29/3/2014. It is also stated that the ailment found on 2018 in the patient is not a continuation of ailment on 29/3/2014. During cross examination by the learned counsel of OP, PW2 deposed that from the medical records shown to him the patient had cancer in the year 2014.
On analyzing all the medical records available before us and from the deposition of expert in oncology we do not find that there is any evidence available on records which may indicate that the complainant had knowledge about his wife’s ailment as CA tongue at the time of filling the proposal form or obtaining the policy. There is also no evidence to reveal that complainant’s wife had taken treatment for CA tongue prior to 29/3/2014. Therefore we do not find that the complainant suppressed the material fact with regard to the pre-existing disease. There is no piece of evidence on record which may suggest that the complainant, at the time of filling the proposal form or obtaining the policy had any knowledge of his ailment. The repudiation of the claim by the insurance company cannot be held to be justified in any manner. Here DW1 witness of OP who has no direct knowledge about the inception of policy, nature of the disease and the treatment done by the complainant. Further deposed that they used to conduct medical examination before giving insurance policy and admits that they had not done medical examination on the complainant and his family before giving insurance policy. DW1 further admits that they are having no documents to show that the complainant’s wife had undergone treatment for cancer in 2015,2016 and 2017. OP’s strong case is that as per medical records produced from their side it is evident that the complainant’s wife had history of solid lesion right side tongue and non healing ulcer for which treatment has been taken before the inception of policy and was not disclosed in proposal form by the complainant. Here PW2 categorically deposed that solid lesion and all non –healing ulcer cannot be taken as cancer . There is no iota of evidence on record which may lead that complainant’s wife has been taken treatment before the inception of policy. Ext.A10 Histopathology Report shows that certified date was 3/4/2014.
For the reasons stated above, we are of the view that the repudiation of complainant’s claim by OP is not justifiable and there is deficiency in service on the part of OP. Here Ext.A7 statement of treatment expenditure from 7/8/2018 to 28/9/2018 shows the cash bill total as Rs.184794/-. Complainant submits treatment expenses for the subsequent surgeries, radiation treatments etc for a period from 7/3/2020 to 10/3/2020 comes to Rs.140000/-. But complainant is not entitled to get subsequent treatment expenses because during the said period complainant has no effective policy.
In the result complaint is allowed in part. Opposite party is directed to pay Rs.184794/- being treatment expenses of the complainant’s wife. Opposite party is further directed to pay Rs.50,000/- as compensation for the damages , pain and mental agony happened to the complainant due to the deficiency in service on the part of opposite party. The opposite party shall comply the order within one month from the date of receipt of order. Failing which amount of Rs.184794/- carries 12% interest from the date of order till realization. Complainant is at liberty to realize the awarded amount from the opposite party by filing execution application as per provisions in Consumer Protection Act 2019.
Exts:
A1- Policy for a period for 24/3/2014 to 23/3/2019 with documents
A2-Discharge summary dtd.30/3/2014(photocopy)
A3-do- Dt.28/4/2014
A4- discharge summary dt.20/9/2018
A5- Repudiation letter dtd.30/11/2018
A6- -do- dtd.10/11/2018
A7- statement of accounts dt.7/8/18 to 28/9/2018
A8- lawyer notice dtd.10/1/19
A9- postal receipt
A10- Histopathology Report
A11- Advance premium receipt dtd.22/3/2018
B1-Policy
B2- Policy schedule and condition
B3-Discharge summary of Malabar cancer Center
B4- Discharge summary of MIMS Hospital Kozhikode
B5-Surgical Oncology division report issued by RCC Trivandrum
B6-Repudiation letter
B7-Csancellation letter
B8-Copy of mail
B9-copy of letter dtd.15/11/2018
B10-Reply notice
B11-Acknowledgment card.
PW1-Dr.Anilkumar.P.K-complainant
PW2- Dr.Sajith Babu.T.P- witness of PW1
DW1- Balu.M-witness of OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew. Sajeesh K.P
eva
/Forwarded by Order/
ASSISTANT REGISTRAR
