SMT. RAVI SUSHA : PRESIDENT
Complainant filed this complaint U/S 12 of the Consumer Protection Act 1986 against opposite parties seeking to get an order directing the OPs to pay an amount of Rs.372960.37 towards compensation for the damages.
The facts of the case according to complainant are that the complainant is a street lottery vender being a poor village man and who is not much educated agreed to join the policy believing the Ops words that he can avail the benefit for insurance coverage to all disease. As per the direction of 2nd OP and their agent complainant had given a cheque for an amount of Rs.14663/- to 2nd OP. After that as per the direction of OP, complainant had undergone medical checkup at Appolo Clinic,Kannur and various tests were conducted by the doctors attached to the clinic ECG and other test were conducted to know the pre-existing cardiac problems if any. The cardiologist confirmed that there was no cardiac problem for the complainant. On that basis a family health optima insurance policy No.P/181313/01/2017/001511 was issued to the complainant with effect from 22/7/2016 to 21/7/2017. After that policy was renewed by paying Rs.15046/- with effect from 31/7/2017 to 30/7/2018. So during this period the complainant , his wife and child were covered by this policy including cardiac problem. As per the policy coverage to complainant and his family is Rs.375000/-. While so complainant had a sudden cardiac problem and he had undergone cardio thoracic surgery from Koyili Hospital and he had paid Rs.172960.37 as hospital bill. The complainant had given claim application to Ops but they rejected the claim application on 16/9/2017 stating that there was variation in ECG at the time of taking policy on 22/7/2016. Complainant submits that he has no such cardiac problem and he was not under treatment for cardiac disease. Medical report submitted at the time of taking policy does not show any cardiac problem. The Ops received the policy amount from the complainant and denied service to the complainant itself is a deficiency of service. So on 3/3/2018 the complainant had issued notice to 1st OP, in reply it was stated that at the time of issuing policy treatment for disease related to cardiac vascular system was excluded for a period of 4 years. In fact that is illegal and no such exclusion was stated to the complainant at the time of issuing policy. So the complainant is entitled for compensation from the Ops. Hence filed this complaint.
The insurance company filed written version . The Op admitted that the complainant had taken a insurance policy family health Optima insurance plan for a period from 22/7/2016 to 21/7/2017 for a sum insured of Rs.3,00,000/- and it was renewed on 31/7/2017 to 30/7/2018 vide policy No.P/181313/01/2017/001511 but denied all the allegations. Ops submitted that at the time of availing the policy the complainant was supplied and explained with the terms and conditions of the policy. It is submitted that since the complainant was aged more than 50 years at the time of taking the policy, he had undergone pre-medical checkup and based on ECG findings, it was found that the complainant was suffering from cardiac ailment. On basis of the ECG findings in pre-medical examination, the OP informed him that the policy can be issued to him subject to the exclusion treatment of disease related to cardio vascular system and diseases of hepatobiliary system and their complications and also informed that endorsed diseases/pre existing disease will be covered only after 4 years from the date of inception of first policy. The complainant has accepted the condition and had given his consent letter dtd.27/7/2016 by affixing his signature. After accepting the proposal, the Ops issued a policy with the endorsement that treatment of disease related to cardio vascular system and diseases of hepatobiliary system and their complications. The terms and conditions of the policy are applicable to both the insurer and the insured. It is submitted that the Ops had received a preauthorization request for cashless treatment from Koyili hospital Kannur which stated that the complainant was admitted at the hospital for Triple Vessel Coronary Artery disease and recommended for CABG. Since the treatment of disease related to cardio vascular system has been specifically endorsed in the policy, any expenses relating to such disease will be covered only after 4 years from the date of inception of first policy. Hence the Ops had rejected the pre-authorization for cashless treatment and had informed the hospital and complainant vide letter dtd.7/9/2017. There is absolutely no violation of the terms and conditions of the policy in the matter of rejecting the request of the complainant for cashless treatment. The Ops have not denied any service to the complainant and there is no deficiency in service on their part. Hence prayed for the dismissal of the complaint.
Complainant has filed his affidavit in support of his complaint and documents. He was examined as PW1 and documents were marked as Exts.A1 to A9. Ext.A1 is the proposal form, ECG certificate Ext.A2, policy certificate Ext.A3, Renewal certificate Ext.A4, Discharge bill Ext.A5, copy of lawyer notice Ext.A6, Reply notice Ext.A7, Advance premium receipts Exts.A8&A9. PW1 was cross examined for Ops. Asst.Manager Legal of OP filed chief affidavit on behalf of Ops and documents. He was examined as DW1 and the documents were marked as Exts.B1 to B10. Original policy proposal form Ext.B1, ECG report dtd.26/7/2016 of complainant Ext.B2, letter of acceptance Ext.B3, letter of consent Ext.B4, Policy forwarding letter Ext.B5, renewal policy Ext.B6, copy of pre-authorization request Ext.B7, Coronary angiogram report Ext.B8, Rejections of pre-authorizations Ext.B9 and policy schedule Ext.B10.
After that learned counsel for complainant filed argument note. We have perused the material evidence, oral evidence and considered the averments in the complaint and contentions in the version.
The contentions of OP is that at the time of availing the policy the complainant was supplied with the terms and conditions of the policy and were explained to the complainant. Further contended that since the complainant was aged more than 50 years at the time of taking by the policy, he had undergone pre-medical checkup by the panel of doctors of Ops at Apollo Hospital Kannur and based on ECG findings, it was found that the complainant was suffering from cardiac ailment. Hence the complainant was given policy subject to the exclusion treatment of disease related to cardio vascular system and their complications and for such disease policy will be covered only after 4 years from the date of inception of first policy. According to OP the said condition was explained to the complainant prior to the issuance of the policy and the complainant had given consent letter for that. OP submitted ECG of the insured and his consent letter. Exts.B2&B4 are the evidence that the complainant was suffering from diseases related to cardiovascular system. Hence as per the condition No.3(1) complainant is not eligible to get claim amount and issued Ext.B9 rejection of pre-authorization for cashless treatment stating the reason that the insured has been diagnosed with CAD.
On the other hand complainant stated that while the 2nd policy was in force he had a sudden cardiac problem and had undergone cardio thoracic surgery from Koyili Hospital and he had paid Rs.172960.37 as hospital bill. Complainant submitted that he has no such cardiac problem prior to that and was not under treatment for cardiac disease. According to him medical report submitted at the time of taking policy does not show that he had any cardiac problem. Complainant alleged that after receiving premium amount the rejection of his claim by the OP amounts to deficiency in service on their part. Complainant further alleged that about the exclusion clause as contended by OP was not stated to him at the time of issuing policy.
The question to be decided in this case is whether the repudiation of cashless claim of complainant by OP is justifiable or not?
The fact that an Insurance policy family health Optima insurance plan was taken by complainant on 22/7/2016 to 21/7/2017 and it was renewed on 31/7/2017 to 30/7/2018 and he had undergone cardio thoracic surgery from Koyili hospital during the policy period is not in dispute. The policy claim was repudiated by the insurance company on the ground that insured has been diagnosed CAD at the time of Pre-medical checkup and based on ECG findings .
It is pertinent to be noted that proposal form is the basic document for issuing a policy and the facts mentioned in it is having very important. Here OP stated that since insured was above 50 years at the time of taking policy, he was undergone premedical checkup by the panel of doctors of OP. OP produced the original of proposal form(Ext.B1) .On perusal of Et.B1, we can see that Health history details mentioned as “Good health”. Further in column 4© Heart disease if yes since when . Answer written is “NO”. Here OP does not have a contention that complainant had committed material suppression in filling Ext.B1 proposal form. Moreover on the testimony of DW1, the manager Legal of OP, has deposed that in page No.2 OP bv¡v \ÂInb proposal form(Ext.B1) t\m¡n a\Ênem¡nbn«pv . AXnse Imcy§Ä sXämsW¶v A`n{]mbanà 22/7/2016 \v BWv Ext.B1 . AXnsâ ASnØm\¯n BhiyapÅ saUn¡Â ]cntim[\ \S¯nbncp¶p. I¼\n prescribe sN¿p¶ em_n h¨pw prescribe sN¿p¶ tUmIvSÀamcmWv ]cntim[n¡p¶Xv. Further deposed that ECG FSp¯t¸mÄ lmÀ«v kw_Ôamb AkpJw DÅXmbn a\Ênembn. ECG bn variation DÅXmbn FhnsSsb¦nepw tcJs¸Sp¯nbn«ptm ?(Q) (A) tUmIvSÀ ]dªncp¶p. FXp Doctor BWv ]dªXv (Q) ? (A) t]cv Adnbnà group of doctors BWv. Proposal form  ]dªImcy§Ä sXämsW¦n Proposal form reject sN¿m³ A[nImcapv? (A) icnbmWv. Ext.B1. Ops contention is that, it is in evidence that complainant had given Ext.B4 the consent letter to OP stating that the complainant had undergone treatment of disease related to cardio vascular system and such diseases will be covered after 4 years from the date of inception of first policy. But OP failed to substantiate the contentions in Ext.B4 with corroborating evidence. It is seen in Ext.B5 and B6 the renewal letters sent to complainant for 2nd policy (ie policy in dispute), that “if there is a suppression of any material fact, you will appreciate that the contract shall become valid”. Here OP failed to submit the renewal instructions submitted by the insured, before this commission to evaluate whether the complainant admitted the treatment for heart disease in it. Further we can see that in Ext.B6 OP stated that “we enclose the renewed policy based on our records.” Complainant categorically deposed during cross examination that he does not have any information about policy conditions. In the complaint itself he has clearly stated that no such exclusion clause in the policy was stated to the complainant at the time of issuing policy. Here there is no evidence before us to show that the terms and conditions of the insurance policy were also communicated to the insured nor the Ops have placed on the file any document to show that these terms and conditions were also signed by the insured. Therefore there is no evidence that the terms and conditions of the insurance policy were duly communicated or explained or sent to the insured and in his case the cardiac problem was excluded for four years from the date of inception of policy . Mere statement in the written version of OP is not sufficient. Written version cannot be taken as evidence in the absence of supporting evidence at the evidence time of adducing evidence. It is a settled law that when the insurance companies want to apply the exclusion clause to deny the insurance claim, they have to prove that exclusionary clause was duly communicated to the insured . In M/s Modern Insulators Ltd vs. Oriental Insurance Co.Ltd.1(2000) CPJ1(SC), the Ho’ble Apex court held that” As the terms and conditions of standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the insured, OP /insurance company cannot claim the benefit of the said exclusion clause”. In the instance case OP failed to substantiate that the fact of exclusion of cardiac problem for four years from the inception date, was mentioned in the policy and also the said fact was communicated to the complainant.
Moreover DW1, deposed that the opinion of cardiac problem on the complainant at the time of taking policy has given by the panel of doctors of OP. If OP panel were of the opinion that the heart disease of complainant was pre-existing, the OP could have produced the medical record of complainant from any hospital or Ops could have examined any of the panel doctors before the commission. Nothing of this was done by the Ops. Even Ops could have produced the discharge summary from Koyili hospital where the complainant was undergone treatment for triple vessel coronary artery disease and elicited the fact that he was suffering from heart disease at the time of issuance of policy. The burden lies on the insurance company to establish the fact beyond reasonable doubt that the complainant had pre-existing cardiac problem. The complainant has stated in the complaint that he had a sudden cardiac problem occurred and was admitted at hospital. It is a fact that the heart ailment can occur at any point of time without having any previous symptom of the said disease. We are of the view that there is no evidence available on record to reveal that the complainant had been suffering with heart ailment at the time of filling the proposal form. Hence our considered opinion that the repudiation of claim application of complainant without reasonable ground after receival of premium amount cannot be said to be justified. Hence there is deficiency in service on the part of Ops. So complainant is entitled to get relief.
Here the coverage of policy clause No.1(A) to ( C) In patient treatment-covers hospitalization expenses for period more than 24 hours. Complainant herein produced cash bill issued by Dr.Prasad Surendran, Cardio- Thoraces surgery in favour of complainant in IP General on 16/9/2017 shows the gross amount for hospitalization expenses was Rs.172960.37. So complainant is entitled to get that much amount with interest together with compensation for the mental agony sustained to the complainant.
In the result complaint is allowed in part. Opposite parties are directed to pay Rs.172960/- with 4% interest from the date of complaint till realization. Opposite parties are also directed to pay Rs.50,000/- as compensation for the mental agony caused to the complainant. Opposite parties shall comply the order within one month from the date of receipt of this order, failing which the amount Rs.172960/- carries interest@12% per annum from the date of complaint till realization with the compensation of Rs.50,000/-. Complainant is at liberty to file execution application against opposite parties for realization of the awarded amount as per the provisions of Consumer Protection Act 2019.
Exts:
A1 - proposal form,
A2- ECG certificate
A3- policy certificate
A4- Renewal certificate
A5- Discharge bill
A6- copy of lawyer notice
A7- Reply notice
A8&A9- Advance premium receipts
B1-Original policy proposal form –
B2- ECG report dtd.26/7/2016 of complainant
B3- letter of acceptance
B4- letter of consent
B5-Policy forwarding letter
B6- renewal policy
B7- copy of pre-authorization request
B8- Coronary angiogram report
B9-Rejections of pre-authorizations
B10- policy schedule
PW1 –Rajeev.O-complainant
DW1- Asst.Manager Legal of OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew. Sajeesh K.P
eva
/Forwarded by Order/
ASSISTANT REGISTRAR
