FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35 (a) (ii) of the Consumer Protection Act, 2019 by the complainant stating that the petitioner and his wife namely Mrs. Kaberi Sinha (now deceased) obtained a revised mediclaim insurance policy from the op no.1 to cover their risks on 2.9.2002.  Since 1998 the wife of the petitioner had been suffering from heart disease.  She was treated and admitted from 20.04.1998 to 22.05.1998 in SSKM hospital, at that time deceased wife was operated for BMW (Balloon mitral Valotomy).  At the time of submitting proposal for her mediclaim policy to the company of Op-1 the deceased wife of the petitioner disclosed in her proposal Form of her ailments in details attaching her “Discharge Certificate” on the basis of declaration and medical history of Discharge certificate in the proposal Form paragraph no.13 (C) had been written without any medical examination by the OP-1.  And the deceased wife of the petitioner have been cover under Mediclaim policy since 30.9.2002 of the company of OP-1 and every year time to time petitioner deceased wife renewed her policy in her life time.  The present policy where claim is made was commence from 30.9.2019 to midnight of 29.9.2020 with a sum insured of Rs.500000/- + Cumulative Bonus of Rs.92,000/- and the petitioner wife admitted firstly on 15.11.2019 in day care unit at Apollo Gleneagles Hospital, Kolkata and in the same day she  was discharged  after evolution and with a suggestion to replacement of MITRAL VALVE ON   26.11.2019 and advised to admit in hospital on 25.11.2019 and as per advice of Medical Officer the wife of the petitioner admitted on 25.11.2019 during the period of her treatment she died on 28.11.2019.  Actually she was hospitalized from 25.11.2019 to 28.11.2019 and after the death of the wife of the petitioner on 2.9.2020 the petitioner submitted the medical bill of Rs.260000/- and pre Hospitalization charge Rs.22,755/- Tolling Rs.282755/- to the OP-1.  It is relevant to mention here the total hospitalization bill of the wife of the petitioner was Rs.567989/- at the time of treatment cashless approved Rs.292000/- by the OP-1 i.e. Rs.567989 – Rs.292000/- = R.275989 Discount of Hospital bill Rs.15,989 Net amount paid by the petitioner Rs.260000/- and Rs.22755/- (pre hospitalization) Total Rs.282755/- for the ;treatment of the wife of the petitioner and the OP-1 repudiated the claim of the petitioner and intimated through email dated.7.1.2021 mentioning inter alia   - “the discharge patient suffering this disease last 6 years so we calculate the applicable sum insure 2015 – 16 policy, no further payment will be considerable under this particular treatment as SUM INSURE has exhausted”  and it is noted in the discharge summery of wife of the petitioner in the column at Chief Complaints that “patient known case of type 2 diabetes mellitus, hypertension hypothyroid, Rheumatic heart disease, admitted with history of gradually progressive shortness of breath for last 5-6 years,  Balloon Mitral valvotmy (BMV) done in 1998 in SSKM Hospital and was before 6 years”. From the observation and report of discharge summery of patient it is well understood the deceased wife of petitioner was suffering from RHEUMATICE HEART DISEASE MIXED MITRAL VALVE DISEASE (AWAITING MVR) STATUS POST BALLON MITRAL VALVOTOMY since 1998.

The  claim made in the year 2019-20 but as per the choice of OP-1 the claim of the wife of the petitioner has been settled and calculate basing upon the year 2015-16.  The OP-1 could have been settled and calculate the claim of the wife of the petitioner basing upon the year 2002 when the policy was incepted as they have wide scope and advantage.  At the time of inception of the policy the deceased wife disclosed her illness alongwith medical certificate and the OP-1 settled the claim based upon the year 2015-16 only their interest and deprive the legitimate claim of the petitioner as in the year the sum insured was Rs.175000 + Rs.68750 (Cumulative Bonus).  As a result after approved and paying Rs.292000 as cash less they declared that the sum insured has exhausted and in the year 2018-19 in her policy the sum insured was Rs.400000/- and cumulative Bonus was Rs.72000/- in the year 2019-20 at the time of renewal of the policy the wife of the petitioner enhanced her sum insured from Rs.400000/- to Rs.500000/- and her cumulative bonus was  Rs.92000/- and as per the recital clause of the company of the op-1 imposed condition 4.1.4.2.4.3 for enhancing the sum insured from Rs.400000/- to Rs.500000/-.

The operative clauses of the OP’s company, specified disease / procedure waiting period (90 days waiting period, 1 year waiting period, 2 yrs waiting period and 4 yrs waiting period), first 30 days within period , enhancement of basic sum insured are described in the complaint petition in details.

After partial repudiation of the claim of the petitioner, the petitioner file a complaint on 13.4.2021 before the insurance ombudsman, Kolkata for his redressal after hearing both the parties the complain is dismissed on 21^st day of June 2021 by the Insurance Ombudsman Kolkata.  In forwarding letter of the secretary observed inter alia “In the eventuality of your disagreeing with the enclosed award, you may, however, if you deem fit proper, move a fresh application at any other forum / court that may be considered by you as appropriate, against the insurance company for its alleged deficiency of service complained by you.”…. and before the insurance ombudsman Kolkata, after appearing the op-1 took plea inter alia …”that as per Clause 4.1.” All pre-existing diseases when the cover incepts for the first time until 48 months of continuous coverage has elapsed.  Any complication arising from pre-existing ailment will be considered as a part of the pre-existing health condition of disease”. Coverage details described in the complaint petition.

Current diagnosis and cause of illness of death is directly related to pre-existing illness of heart disease hence as per clause 4.1 we applied 4 yrs back sum insured of the 2015-16 and cumulative bonus given (Sum Insured – Rs.175000/- + C.B. Rs.68750/-  = Rs.243750/-).  But TPA erroneously approved cashless amount of Rs.292000/-….”. and OP-1 have taken two different plea to repudiate the legitimate claim of the petitioner.  In the repudiation letter the OP-1 it is mentioned “the discharge patient suffering this disease last 6 years so we calculate the applicable sum insure 2015-16 policy, no further payment will be considerable under this particular treatment as SUM INSURE has exhausted “.  On the other hand before the Insurance ombudsman the OP-1 have taken plea that as per Clause 4.1 complainant applied 4 years back sum insured of the 2015-16 and cumulative bonus given (sum insured – Rs.175000/- + C.B.Rs.68750/- = Rs.243750/-).  But TPA erroneously approved cashless amount of Rs.292000/- and at time of inception of this policy in the year 2002 the deceased wife of the petitioner declared since 1998 she had been suffering from heart disease and she was treated and admitted from 20.4.1998 to 22.5.1998 in SSKM hospital, at that time deceased wife was operated for BMW.  The said policy is continuing since 2002 till her approach death on 28.11.2019.  The cause shown by the OP-1 at the time of repudiation that the discharge patient suffering this disease last 6 years so complainant calculate the applicable sum insure 2015-16 policy this plea of the op-1 cannot stand in any way.  Second plea took by the OP-1 at the time of hearing before insurance ombudsman that OP-1 applied clause 4.1 as the Sum insured was enhanced by the insurer at the time of renewal of her policy.  In the year 2018-19 the sum insured was Rs.400000/-.  In the year 2019-20 at the time of renewal of her policy the insurer enhanced the sum insured Rs.400000/- to Rs.500000/- which was accepted by the OP-1 in the policy bond of the 2019-20 it is noted due to enhancement of sum insured the Clause 4.1.4.2.4.3 are imposed. Op no. 1 bypass the other and overlie the Clause 6.17 as in the clause 6.17 it is mentioned that “Basic sum insured can be enhances only at the time of Renewal. Basic sum insured can be enhanced subject to discretion of the company. For the incremental portion of the basic sum insured, the waiting periods and conditions as mentioned in Exclusion 4.1.4.2.4.3. shall be afresh”.

It is clear front the abbreviation of the Clause 6.17 the op no. 1 wrongly and intentionally applied the Clause 4.1 at the time of settlement of claim of the complainant on the whole sum insured amount of the deceased wife. Clause 4.1 shall be applied on the incremental portion of sum insured. In this case the Clause 4.1 will be applied on Rs. 1,00,000/- only on her incremental portion of sum insured as in the year 2019-20 the sum insured was Rs. 4,00,000/- plus her C.B. Rs. 92,500/-. The claim of the complainant deceased should be calculated and estimated on Rs. 4,92,500/- only deprive the legitimate claim of the insurer the op no. 1 calculated sum insured Rs. 1,75,000/- + Rs. 68,750/- = Rs. 2,43,750/.

Complainant filed the complaint petition praying direction upon the opposite parties to pay a sum of Rs. 2,82,755/- which is illegally repudiated along with interest and to pay a sum of Rs. 50,000/- for harassment and sufferings, mental agony and deficiency of service and to pay a sum of Rs. 20,000/- from op no. 1 as legal costs.

Defense Case:-The opposite party No.1contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that as per previous hospital discharge summary dt. 15.11.2019 the wife of the complainant has had a history of DM, HTN, hypo-thyroid, rheumatic heart disease and admitted with history of gradually progressive shortness of breath for the preceding 5-6 years. On a perusal of the death certificate of the said Kaberi Sinha dt. 28.11.2019 issued by the Apollo Gleneagles Hospital, Calcutta it appears that the “Immediate cause of death: Severe Biventrioular Dysfunciton in a post operated case of Mitral Valve Replacement and Triouspid Valve Replacement”, however it is pertinent to note at this juncture that the “Antecedent cause of death” has been mentioned as “Rheumatic Heart Disease with Right Ventricular Dysfunction” and other associated causes – DM, CKD, HTN, Parkinsons and Hypothyroidism Ergo from the death certificate it is but apparent and evidence that the immediate cause of death is directly related to a pre-existing disease (heart disease) and op would beg to refer to the clause 4.1 of the Insurance Policy Contract which is described in the written version indetails. In the present case, the immediate cause of death is directly related to a pre-existing disease (heart disease) and as such clause 4.1 becomes applicable and the sum insured of 4 years back (2015-2016) has been applicable (Rs. 1,75,000/ along with cumulative bonus of Rs. 68,750/- had been approved) nonetheless the TPA op no. 2 erroneously approved cashless of Rs. 2,92,000/- and regarding the increase of the sum  insured the clause 4.1 of the Insurance Policy Contract has been made applicable as per the terms and conditions. Accordingly the claim has been rightly settled to the terms and conditions of the policy and no further claim/ amount is payable whatsoever in accordance to the policy conditions. So, the complaint case is liable to be dismissed with costs to the op no. 1.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite party no. 1.

            The answering opposite party no. 1 filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party no. 1 filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party no. 1 heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration are  clubbed together and taken up for discussion jointly at first.

      Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of non-maintainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Serampore, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law. It is the settled principle of law that failure of the Insurance Company to comply with the contractual obligation to release claim amount in deficiency in service. This legal principle has been laid down by Hon’ble State Commission, Delhi and it is reported in 2022 (2) CPR 13 (Del).

      All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that the complainant and his wife has mediclaim insurance policy in the op no. 1.
2. It is also admitted fact that the said mediclaim insurance policy was renewed time to time and said policy was to cover their risks on 2.9.2002.
3. There is no controversy over the issue that the wife of the complainant had been suffering from heart disease since 1998.
4. There is no dispute over the issue that the wife of the complainant had to take admission in the SSKM hospital from 20.4.1998 to 22.4.1998 for the purpose of operation for BMW(Balloon mitral Valotomy).
5. It is admitted fact that the wife of the complainant is now deceased.
6. It is also admitted fact that in the proposal form of the said insurance policy all the ailments in details were disclosed and discharged certificate of the wife of the complainant was enclosed.
7. There is no controversy over the issue that in the said mediclaim policy the sum assured was Rs. 5,00,000/- + cumulative bonus of Rs. 92,000/-.
8. There is no dispute over the issue that the wife of the complainant was admitted in the day care unit of Apollo Gleneagles Hospital, Kolkata on 15.5.2019.
9. It is admitted fact that she was discharged from the said hospital after evolution with a suggestion for replacement of MITRAL VALVE ON   26.11.2019.
10. It is also admitted fact that the wife of the complainant was admitted in the above noted hospital on 25.11.2019 for replacement of MITRAL VALVE.
11. There is no controversy over the issue that the wife of the complainant was died on 28.11.2019.
12. There is no dispute over the issue that the wife of the complainant was hospitalized from 25.11.2019 to 28.11.2019.
13. It is admitted fact that after the death of the wife the complainant on 2.9.2020 submitted medical bill of Rs. 2,60,000/- and pre hospitalization charge of Rs. 22,755/- totaling Rs. 2,82,755/- to the op no. 1.
14. It is also admitted fact that the op no. 1 repudiated the said claim of the petitioner and intimated the same by email dt. 7.1.2021 mentioning inter alia “the discharge patient suffering this disease last 6 years so we calculate the applicable sum insure 2015 – 16 policy, no further payment will be considerable under this particular treatment as SUM INSURE has exhausted”.            

Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

On the background of the above noted admitted  facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant is adopting the plea that the op insurance company negligently repudiated the claim of the complainant inspite of existence of valid insurance policy which indicates that there was deficiency on the part of the op no. 1 insurance company but on the other hand the op no. 1 insurance company has taken the defence alibi that the patient had been suffering from type 2 diabetes mellitus, hypertension hypothyroid, Rheumatic heart disease, admitted with history of gradually progressive shortness of breath for last 5-6 years,  Balloon Mitral valvotmy (BMV) done in 1998 in SSKM Hospital and was before 6 years” and so the claim of complainant has been repudiated.

            For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords between the parties and also for the interest of the disposal of the point of consideration nos. 4 and 5, this District Commission after going through the evidence on record and also after examining the documents filed by the contesting parties of this case finds that at the time of admission of the victim (complainants’ daughter) in the hospital and at the time of conducting surgery there was valid insurance policy  and in this regard It is the settled principle of law that failure of the Insurance Company to comply with the contractual obligation to release claim amounts to deficiency in service. This legal principle has been laid down by Hon’ble State Commission, Delhi and it is reported in 2022 (2) CPR 13 (Del). Moreover the definition of service which is embodied in Section 2 (o) of the Consumer Protection Act, 1986 is very much important. Over this issue it is the settled principle of law that service under Section 2(o) of the Consumer Protection Act, 1986 is wide enough to comprehend service of every description and the District Forum has the jurisdiction to entertain and try such complaint. This legal principle has been laid down by Hon’ble Apex Court and it is reported in 2022 (2) CPR 249 (SC). Thus, it is crystal clear that the ops have their fault, negligence and deficiency of service in the matter of not granting claim of Rs. 2,92,755/- to the complainant.

Another important point of contention and argument raised by the ld. Advocate of the opposite party no. 1 is that the complainant concealed the factum of pre existing disease (HTN) for which he had obtained medical treatment and the complainant was suffering from HTN for a long time and the policy under dispute was the subsequent policy and the period of 48 months was not over at the time of medical treatment by the complainant and for that reason the opposite party no. 1 has rightly repudiated the claim of the complainant. Over this issue Hon’ble State Commission, Delhi in appeal no. A-482/2005 disposed of on 1.8.2008 has been pleased to observe the following points:-

1. Malaise of hypertension, diabetes, occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in and out of the house and are controllable on day to day basis by standard medication and cannot be used as concealment of pre-existing disease for repudiation of the insurance claim unless an insured in the near proximity of taking of the policy is hospitalized or operated upon for the treatment of these diseases or any other disease.
2. If insured had been even otherwise living normal and healthy life and attending to his duties and daily chores like any other person and is not declared as a disease person as referred above he cannot be held guilty for concealment of any disease, the medical terminology of which is even not known to an educated person unless he is hospitalized and operated upon for a particular disease in the near proximity of date of insurance policy say few days or months.
3. Disease that can be easily detected by subjecting the insured to basic tests like blood test, ECG etc. the insured is not supposed to disclose such disease because of otherwise leading a normal and healthy life and cannot be branded as diseased person.
4. Insurance Company cannot take advantage of its act of omission and commission as it is under obligation to ensure before issuing medi-claim policy whether a person is fit to be insured or not. It appears that insurance Companies don’t discharge this obligation as half of the population is suffering from such malaises and they would be left with no or very little business.

Thus, it is crystal clear that the attempt on the part of insurer (op no. 1) to repudiate the claim for such non discloser is neither permissible nor is exclusion clause invocable. So, the above noted defence alibi which is adopted by op no. 1 is also not acceptable in the eye of law.

            Hon’ble State Commission, Delhi in the above noted appeal has also been pleased to observe that unless and until a person is hospitalized or undergoes operation for a particular disease in the near proximity of obtaining insurance policy or any disease for which he has never been hospitalized or undergone operation is not a pre-existing disease. Is a person conceals the factum of his hospitalization of a particular disease or operation undergone by him in the near proximity of obtaining the insurance policy say a year or two, only then it can be termed as concealment of factum of disease and doctrine of good faith u/s 45 of the Insurance Act may be pressed in by Insurance Company and not otherwise. Doctrine of good faith is two-way traffic and not a one-way traffic. If the Insurance Companies take benefit of doctrine of good faith then they have to accept whatever the insured declares and should not subject the insured to medical test and get certificate from the Doctor on the panel that the insured possesses sound and good health and is entitled to mediclaim insurance policy. Such a certificate will be meaningless and of no relevance as to the state of health of a person.

            Hon’ble State Commission, Delhi in the above noted appeal has also been pleased to observe that recently the Hon’ble Apex Court has deprecated the practice of Insurance Companies for rejecting the claims in respect of mediclaim policies on the ground of pre-existing disease.

Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Revision Petition no. 2858 of 2017 decided on 18^th April 2018 has also been pleased to observe almost similar views/ legal principle which have been stated above.

A cumulative consideration of the above noted discussion goes to show that the complainant of this case has proved his claim in respect of all the points of consideration adopted in this case and so he is entitled to get relief which he has prayed in this case.

In the result it is accordingly

ordered

that the complaint case being no. 103 of 2021 be and the same is allowed on contest but in part against op no. 1.

            It is held that the complainant is entitled to get the claim amount of Rs. 2,82,755/- from the op no. 1 and also entitled to get compensation of Rs. 10000/-for deficiency of service on the part of the op insurance company and also entitled to get litigation cost of Rs. 5000/-.

Opposite party no. 1 is directed to pay the said amount within 45 days from the date of this order otherwise complainant is given liberty to execute this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite party no. 1 is also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.