Date of filing: 05.02.2018 Date of disposal: 30.09.2019
Complainant: Sri Arup Kumar Jas, S/o. Sri Sailendranath Jas, resident of District Agricultural Farm, 1st Gate, Kalna Road, PO. & PS: Burdwan, District: Purba Bardhaman, PIN – 713 101.
Opposite Parties: 1. The Divisional Manager, United India Insurance Company Limited, having its office at Rudco, G. T. Road, Palika Bazar, PO. & PS: Burdwan, District: Purba Bardhaman, PIN – 713 101.
2. The Regional Manager, United India Insurance Company Limited, having its Regional Office at Kolkata Himalaya House, Door No. 38B, Floor No. 3, Jaharlal Nehru Road, Kolkata, PIN – 700 071.
3. The Chairman, United India Insurance Company Limited, having its Registered Office at 24, Whites Toad, Chennai, PIN – 600 014.
4. Heritage Health Insurance TPA Pvt. Ltd., having its office at NICCO HOUSE, 5th Floor, 2, Hare Street, Kolkata, PIN – 700 001, represented by its Claim Executive.
Present:
Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member: Ms. Nivedita Ghosh.
Appeared for the Complainant: Ld. Advocate, Debdas Rudra.
Appeared for the Opposite Party Nos. 1, 2 & 3: Ld. Advocate, Ahi Bhushan De.
Appeared for the Opposite Party No. 4: None (ex parte).
J U D G E M E N T
The complainant filed this complaint under Section 12 of the C. P. Act, 1986 alleging deficiency in service and unfair trade practice against the Ops as the Ops repudiated his legitimate mediclaim.
The case of the complainant is that he took a mediclaim policy under “Individual Health Insurance Policy” issued by the OP No. 1 along with his wife, daughter and son being Policy No. 0316002815P115125985 for the period from 13.03.2015 to 12.03.2016 for sum insured amount of Rs. 2, 00,000=00 for each insured and the said policy was renewed for the period commencing from 13.03.2016 to mid-night of 12.03.2017 and also for the period commencing from 13.03.2017 to mid-night of 12.03.2018 for sum insured amount of each insured was Rs. 2,50,000=00.
The complainant further stated that his daughter was a nursing student of Vydehi Institute of Medical Science & Research Centre Hospital in Bangalore and during the period of nursing training his daughter was suffering from irregularity of period of menstrual in the month of November 2015 and was treated as out-door patient in the said institute on 18.11.2015 and the doctor prescribed certain medicines and again treated in the said institute on 23.11.2015 and on 26.04.2016 but the problem was not solved.
Thereafter, the daughter of the complainant was treated in Columbia Asia at Salt Lake City, Kolkata and the doctor who treated her advised for operation and as per advice of the doctor, she was admitted in the said Hospital on 16.11.2016 and undergone operation of the ovarian cyst and discharged on 18.11.2016 with an advice to review after 5-7 days with histopathology report. The said fact was intimated to the Ops on 16.11.2016 through on-line and the complainant already incurred all medical expenses to the tune of Rs. 1,21,531=00 from his own pocket.
The complainant lodged meiclaim before the Ops on 28.11.2016 after observing all the official formalities and also submitted all the medical documents and bills and requested the Ops to settle the claim as early as possible. Inspite of receiving all the required documents, the Ops did not settle the claim for which the complainant made a representation dated 17.07.2017 thereby requesting to settle the claim lodged by him. Thereafter very surprisingly, the Ops after a long period sent a letter dated 11.12.2017 to the complainant thereby repudiating the claim of the complainant on the ground that as per clause No. 5.8 the complainant has not disclosed the material facts that the insured has been suffering from Grace-IV Endometrios is which has led to frozen pelvis and endometriosis causes irregularity in period, severe pain during periods, which has proven in treatment records and discharge certificate of Columbia Asia and as such the Ops were unable to settle the claim and the said claim was closed as “No Claim”. The grounds of repudiation of the claim taken by the Ops are illegal and arbitrary and not tenable in the eye of law.
Thereafter the complainant went to the office of OP- 1 and requested to look into the matter earnestly because there is no question of misrepresentation of material facts and the irregularity of periods of menstrual was detected after commencement of the policy and as such there is no question of suppression of material facts. Moreover, the complainant also told the Ops that the policy is Platinum category and as such there is no clause of pre-existing of disease. But the Ops did not pay any heed to the request which not only indicates deficiency in service but also unfair trade practice on the part of the Ops. Finally, finding no other alternative to get relief has been compelled to file this complaint with a prayer for making payment of Rs. 1, 21,531=00 by the Ops towards medical expenses incurred by the complainant for the treatment of his daughter, Rs. 1, 00,000=00 as compensation towards mental pain, agony and harassment and Rs. 25,000=00 as litigation cost.
This complaint is contested by the OP Nos. 1, 2 & 3 by filing conjoint written version denying all the material allegations made by the complainant in the petition of complaint. The O.P. No. 4 did not appear to contest the case by filing written version. Therefore, the case is heard ex parte against the O.P. No. 4.
The case of the O.P. Nos. 1, 2 & 3 is that after scrutinizing the documents and papers submitted by the Insured/Complainant before the TPA (O.P. No. 4) it is found that the patient was primarily treated as out-patient on 18.11.2015 where it is clearly mentioned that she has been suffering from Increased Frequency of Periods since one year, which means she has been under treatment well before taking the Health Insurance Policy, which incepted only on 13.03.2016. While cross checking/verification with the proposal form, it is found that the proposer did not disclose the said fact in the proposal form. In this particular case had the Insured/Complainant declared the said fact in the proposal form, the Insurer/ Ops would have declined the risk or exclude the diseases related to the irregular and increased frequency of cycles. But not disclosing the said material fact in the proposal form, the Insured/Complainant has violated the policy condition No. 5.8, which reads as follows:
thereby giving no scope to the Insurer i.e., this Ops, Insurance Company as to either decline the risks or to accept the risks with imposition of exclusions of particular disease:-
“5.8 :-> The Policy shall be void and all Premiums paid hereon shall be forfeited to the Company, in the event of misrepresentation, mis-representation or non-disclosure of any material fact.”
The Ops-Insurance Company further submitted that as per findings of investigation of TPA dated 23.12.2016, the patient was suffering from irregular periods and Ovarian Cyst and got admitted on 16.11.2016 at Colombia Asia Hospital, Kolkata and given lap Ovarian Chocolate Cystectomy and discharged on 18.11.2016 and it was admitted by the patient that she was under treatment in Vydehi Hospital, Bangalore and the treating doctor mentioned that the patient was suffering from Increased Frequency of Cycle since one year, i.e., November 2014 and as such the disease is pre-existing in nature and as such the claim of the complainant/insured was recommended for repudiation under non-disclosure clause of Platinum Policy. As per policy terms and conditions, this claim is non-admissible under clause No. 5.8 and the TPA vide its letter dated 08.12.2017 informed the OP No. 1 that the claim of the complainant was recommended for repudiation by their aforesaid letter dated 10.01.2017 on the basis of specific aspects. One out patient case record dated 19.11.2015 from Vydehi Institute of Medical Sciences & Research Centre states that there is increased frequency of periods for last one year, which is pointing towards pre-existing of the disease. As per discharge certificate 21 year old woman is suffering from Grade-IV Endometriosis, which led to Frozen Pelvis Periods, severe pain during periods etc., which has proven in treatment records. The Ovarian Cyst pre-existing are all because of the Endometriosis and as such the Authorized Signatory of the TPA vide its letter dated 08.12.2017 has forwarded the claim file to these Ops-Insurance Company for repudiation of the claim of the complainant and as such these Ops-Insurance Company have duly repudiated the claim of the complainant vide its letter dated 11.12.2017 under the policy condition clause No. 5.8 and regretted their inability to be of any assistance to the complainant in this regard and closed their claim as “No claim” and as such the said decision of repudiation of claim was justified. Therefore, Ops-Insurance Company is not liable under the policy for payment of any claim and prayer is made for dismissal of the instant complaint.
Decision with reasons:-
To prove this case complainant submitted his evidence-on-affidavit and OP was asked to put questionnaire but subsequently OP did not file any questionnaire. OP prayed for accepting their written version as their evidence-on-affidavit.
After going through the evidence on record and the documents filed by the parties, we find that the policy was started from 13.03.2015 and it was renewed yearly in 2016-17 & 2017-18. During subsistence of the policy the daughter of the complainant who was a nursing trainee in Vydehi Institute of Medical Science & Research Centre Hospital in Bangalore and she was suffering from irregular menstrual period in the month of November 2015 and was treated in her institute as outdoor patient. She was prescribed some medicines which she took in 2015-16 but the problem was subsisting. Following such problem she was again treated in the Columbia Asia Hospital at Kolkata and was admitted in the said Hospital on 16.11.2016. It was detected that she was suffering from Ovarian Cyst and she was operated upon and discharged on 18.11.2016 with an advice to review after 5-7 days with histopathology report.
Complainant stated that the medical expenses for such treatment to the tune of Rs. 1, 21,531=00 was incurred from his own pocket and as per the terms of the policy he lodged mediclain before the Ops on 28.11.2016 after observing all formalities. But the matter was not settled. Then the complainant made representation requesting to settle the claim for his daughter’s medical expenses but the OP-Insurance Company repudiated the claim vide letter dated 11.12.2017. The ground of repudiation as per Clause No. 5.8 that the complainant did not disclosed the material facts that the insured’s daughter had been suffering from Grace-IV Endometriosis etc. and from the discharge certificate of Columbia Asia Ops were unable to settle the claim as the claim was of the category “No Claim”.
Complainant alleges that OP illegally and arbitrarily repudiated the claim that in the policy there was no clause of pre-existing diseases as it is a Platinum Category policy. OP stated that the disease related to irregular and increased frequency of cycles and the said material fact has not been disclosed on the ground of mis-representation and non-disclosure of any material fact as per Clause No. 5.8 of the Policy.
To prove their case the OP-Insurance Company cited the Ruling as reported in 2018(I) CPJ 29 (Har). But in the said Ruling the repudiation was justified as the insured was suffering from Tuberculosis prior to purchase of insurance policy and he suppressed the fact. Therefore, the death claim of the said insured was repudiated. But in our case the complainant submits that his daughter was treated for irregular periods which is very much common to persons of her age and is not very serious in nature and actually she was treated in the month of November 2015 as outdoor patient and was operated upon for ovarian cyst in November 2016. But the policy was purchased in March 2015 and there is no evidence to show by the Ops that the insured was suffering from such disease before purchasing such policy. So it cannot be termed as pre-existing disease and suppression thereof.
Ld. Lawyer for the Ops further submits by citing the Ruling of Hon’ble NCDRC as reported in I (2016) CPJ 57 (NC). In that case the patient’s discharge summary goes to show that in the year 2011 the patient was operated for gall stone two years back. Concealment of medical history and deliberate wrong information was established. Therefore, repudiation was justified by Hon’ble Commission. In this case the daughter of the complainant was suffering from menstrual disorder since November 2015 and operation of Ovarian Cyst was done in the year November 2016 and the claim of medical expenses to the tune of Rs. 1, 21,531=00 was made after such operation on 28.11.2016. Therefore, we do not find any evidence of concealment of any pre-existing disease or non-disclosure of the same.
To that effect complainant cited reference of Hon’ble NCDRC as reported in 2014 (CPJ) 552 (NC). In that case the patient was admitted with history of Pulmonary Hypertension for last two years and on that allegation the Insurance Company failed to produce primary evidence to establish for repudiation of claim to prove that the petitioner obtained the policy concealing the fact that he was suffering from Pulmonary Hypertension. The doctor who allegedly treated the patient from 14.06.2017 to 21.06.2017 and recorded the history of Pulmonary Hypertension was not examined to prove the photocopy of discharge card relied upon by the Insurance Company or the affidavit of the said doctor had not been filed. Therefore, Hon’ble NCDRC opined that the Insurance Company failed to prove the concealment of the fact and repudiation was not justified. In our case there is no document to show that the daughter of the complainant was suffering from any such disorder of irregular menstrual history before purchasing the policy in March 2015 or any other document is filed regarding her treatment. No doctor was examined and there is no document in that effect from the side of the OP.
Ld. Lawyer for the complainant also submitted reference of Hon’ble NCDRC as reported in III (2014) CPJ 340 (NC) that OP cannot apply hard and fast rule to presume that complainant was suffering for long duration i.e., before taking the policy. People can live for months, even years without knowing they have the disease and it is often discovered accidentally after routine medical checkups. In our case the daughter of the complainant was suffering from irregular menstrual periods which are not uncommon by a lady of her age and she was operated for ovarian cyst which has been in the year 2015-16 after medical checkup. Therefore, there is no ground to hold that it is a concealment of material fact of preexisting disease of deliberation.
Therefore from the evidences and documents filed by the parties, it is clear that TPA vide its letter dated 08.12.2017 recommended for repudiation of the claim on the basis of specific aspects as the lady, 21 year old is suffering from Grace-IV Endometriosis. But there is no evidence in this regard. No doctor has been examined whether the ovarian cyst which the lady was suffering from was a pre-existing disease and we have already discussed that complainant admitted the suffering of her daughter from November 2015 after purchase of the policy in the March 2015 and there is no other document from the side of the OP to prove pre-existing disease or suppression of material facts etc. as alleged.
After hearing argument from both sides we find that the ground of repudiation by the OP is not justified. From the discharge summary of the daughter of the complainant of irregular periods, findings of her investigations etc. does not suggest the pre-existing disease before purchase of the policy. The treatment started from November 2015 and the policy was purchased in the March 2015. The ground of repudiation claimed by the Ops are arbitrary and not tenable and therefore the Ops are liable to pay the expenses incurred for medical treatment of the daughter of the complainant to the tune of Rs. 1,21,531=00 which was proved by sufficient documents including the treatment sheets and discharge summary of Columbia Asia Hospital, Kolkata. As a result, the case succeeds.
Hence, it is
O r d e r e d
that the present Consumer Complaint being No. 21/2018 be and the same is allowed on contest against the OP Nos. 1, 2 & 3 with cost and dismissed ex parte against the OP No. 4 without any cost with a direction to the OP Nos. 1, 2 & 3 to pay Rs. 1, 21,531=00 (Rs. One lack twenty one thousand five hundred and thirty one) only jointly or severally to the complainant as medical expenditure incurred by the complainant along with interest @7% per annum from the date of repudiation i.e., from 11.12.2017 within 45 days from the date of this award, failing which, the aforementioned amount will carry penal interest @9% per annum till its realization. The OP Nos. 1, 2 & 3 are also directed to pay either jointly or severally Rs. 5,000=00 (Rs. Five thousand) only as compensation for mental pain, agony and harassment and Rs. 2,000=00 (Rs. Two thousand) only as litigation cost to the complainant within 45 days from the date of passing of this order, failing which, the complainant is at liberty to put the entire award in execution as per provisions of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Dictated & Corrected by me: (Jayanti Maitra (Ray)
President
(Jayanti Maitra (Ray) D.C.D.R.F., Purba Bardhaman
President
D.C.D.R.F., Purba Bardhaman
(Nivedita Ghosh)
Member
D.C.D.R.F., Purba Bardhaman
