Kerala

Idukki

CC/133/2021

George P Joseph - Complainant(s)

Versus

The Star Health Allied Insurance co ltd - Opp.Party(s)

Adv: Shiji joseph

25 Jul 2023

ORDER

DATE OF FILING : 17/09/2021

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 25^th day of July 2023

Present :

              SRI.C.SURESHKUMAR                                               PRESIDENT

              SMT.ASAMOL P.                                                          MEMBER

              SRI.AMPADY K.S.                                                        MEMBER

CC NO.133/2021

Between

Complainant                                :  George P Jacob,

                                                        Perumthekkeri House,

                                                        1^st Mile, Kumily – 685 509

                                                        (By Adv.Shiji Joseph)

                                                   And

Opposite Parties :                      :1 .  The Star Health and Allied Insurance Co. Ltd.,       

                                                          Regd. & Corporate office 1, New Tank Street,                                                      

                                                           Velluvarkottam, High Road, Nungambakkam,

                                                           Chennai – 600 034., Represented by its

                                                           Chairman and Managing Director.

                                                   2 .  The Star Health and Allied Insurance Co. Ltd.,

                                                         1^st Floor, Darsanam Chamber, VI/372 (3),

                                                         MC Road, Perumbavoor – 683 542,

                                                         Represented by its Branch Manager.

                                                    3 . The Star Health and Allied Insurance Co.Ltd.,

                                                         Kattappana, Represented by its Branch Manager

                                                    4 . Jilson Jose, Insurance Agent,

                                                         Star Health and Allied Insurance Co.Ltd.,   

                                                          Kattappana.

                                                           (All of them By Adv.K.Pradeepkumar)

(Cont....2)

-2-

O R D E R

SRI.AMPADY K.S., MEMBER

 

This complaint is filed U/s 35 of Consumer Protection Act, 2019.  Allegations of the complainant are discussed hereunder:-

1 . The 1^st opposite party is the Chairman and Managing Director of the Star Health and Allied Insurance Co.Ltd., and the 2^nd and 3^rd opposite parties are the Branch Managers of Star Health and Allied Insurance Co.Ltd., Perumbavoor and Kattappana respectively.  The 4^th opposite party is the insurance adviser working for the opposite parties 1 to 3.

2 . The complainant and his family have been taking health insurance policies from the opposite parties 1 to 3 for the last 7 years.  In 2016 December, the 4^th opposite party insisted the complainant to take a health insurance policy in the name of the complainant’s mother Susamma Jacob.  The details were given by the complainant over phone to the 4^th opposite party and paid Rs.5,118/- as premium and the opposite parties 1 to 3 had issued the policy No.P/181219/01/2017/004517.  The complainant subsequently renewed the policy and enhanced the sum assured from         Rs.1 Lakh to Rs.25 Lakhs and paid a premium of Rs.42,823/- (Rupees Forty two Thousand Eight Hundred and Twenty Three only) for the period 20-21.  The policy period is from 31^st December 2020 to 30^th December 2021 and the policy No. is P/181219/2021/013558.  For the last 4 years there was no claim upon the policy.

(Cont....3)

 

-3-

3 . The complainant’s mother had undergone a heart valve replacement surgery in the year 2007 and subsequent to the transplantation she had no further complaints.  The complainant had divulged all those facts to the 4^th opposite party at the time of taking the policy.

4 . In April 2021, the complainant’s mother developed DYSPNOEA and the aortic valve was replaced at Rajagiri Hospital, Alwaye in 2021.  For the valve replacement the complainant has spent Rs.17,45,000/- (Rupees Seventeen Lakhs Forty Five Thousand only).  Though the policy provides cashless treatment benefits, opposite party 1 to 3  denied  cashless treatment facility to the complainant and offered to consider the same on submitting the bills.  Hence the complainant claimed Rs.17,45,000/- (Rupees Seventeen Lakhs Forty Five Thousand only) after discharge.

5 . On 07/05/2021, the 1^st opposite party sent a letter to the complainant stating that Aortic valve replacement (relating to Mrs. Susamma Jacob) was found to be owing to  pre-existing heart disease and hence they repudiated claim and cancelled the policy exercising the provisions of clause 12 of the conditions of policy.  To that notice the complainant sent a reply on 12/06/2021.   Due to Covid 19 lockdown, the complainant could not approach this Hon’ble Commission.

6 . The complainant has not suppressed any material facts as alleged by the opposite parties 1 to 3.  If anything was done, the 4^th opposite party is responsible for the same.

 

(Cont....4)

 

-4-

7 . Hence the complainant is entitled to get the claim of Rs.17,45,000/- (Rupees Seventeen Lakhs Forty Five Thousand only) from the opposite parties.  The complainant also wanted to continue the policy and the cancellation of the policy by the 1^st opposite party is illegal.

8 . The cause of action for this complaint arose in December 2016 when the first policy was taken and again on 07/05/2021 the day opposite party denied the claim and continually thereafter in Kumily Kara in Idukki District within the jurisdiction of this Hon’ble Commission.

9 . The relief claimed in the complaint is valued at Rs.19 Lakhs and a court fee of Rs.400 is paid along with this complaint.

So, he prayed for the following reliefs.

1 . The opposite parties may be asked to pay Rs.17,45,000/- (Rupees Seventeen Lakhs Forty Five Thousand only) to the complainant as the treatment expense of Smt.Susamma Jacob.

2 . The opposite parties may be asked to pay Rs.2 Lakhs as compensation for the deficiency in service of the opposite parties.

3 . The opposite parties may be asked to pay Rs.10,000/- as cost of the complaint.

4 . Such other reliefs that deemed just and equitable also may be granted.

On the contrary, opposite parties filed written version on the following way.

(Cont....5)

 

-5-

1 . Except those that are specifically and expressly admitted and explained to hereinafter, all other allegations in the complaint are denied as false.

2 . The complainant has no bonafides in instituting the complaint and the same has been done with the ulterior motive of making illegal gains.

3 . The complainant had taken Senior Citizen Red Carpet Health Insurance Policy for the period commencing from 21/12/2016 to 20/12/2017 for the Sum Insured of Rs.1,00,000/-.  Thereafter the complainant had renewed the policy from 29/12/2017 to 28/12/2018 and the same has been renewed upto 21/12/2019 for the sum insured of Rs.2,00,000/-The policy was renewed from 31/12/2019 to 30/12/2020 and the same has been renewed upto 30/12/2021 vide policy No.P/181219/01/2021/013885 covering his mother for a sum insured of Rs.25,00,000/-.  At the time of availing the policy the complainant was supplied with the Terms and Conditions of the policy.  The terms and conditions of the policy were explained to the petitioners at the time of proposing policy and the same was served to them 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, EXCLUSSIONS ETC., ATTACHED”.

4 . Proposal form is the basis of insurance contract, on that basis the policy is issued.  In the proposal form, the complainant has specifically

(Cont....6)

 

-6-

declared that she was not suffering from any disease or ailment at the time of submitting the proposal form or any point of time earlier and that her health condition was good in all respects.  The policy is issued strictly according to the terms and conditions only and it is a settled law that the parties to the insurance contract are bound by the terms and conditions of the policy issued.  In this case also, the complainant has admitted the terms, conditions and exclusions set in the policy.

5 . Acceptance of proposal is based on the information/details given by the proposer.  Acceptance of risk is to be decided by the insurance company.  If the health status of the proposer is found satisfactory based on the facts in the proposal, the insurer would accept the risk and issue policy.  If the health status is not satisfactory, the insurer would decline the risk.

6 . In claim No: CIR/2022/181219/2536498, the opposite parties had received a request for cashless hospitalization from Rajagiri Hospital, Ernakulam stating that the complainant’s mother (Mrs.Susamma Jacob) was admitted at the hospital on 29/04/2021 and was provisionally diagnosed with Severe Aortic Bioprosthesis Stenosis.  Moreover the treating doctor also noted in the portion of “Past History Column” that the patient had undergone surgical procedure AVR (Aortic Valve Replacement) in 2007 and also noted that the patient had history of Heart Diseases-Severe AS (Aortic Stenosis) – 2007.

(Cont....7)

 

 

-7-

7 . After received the request for cashless hospitalization, the opposite party had sent a query letter dated 29/04/2021 to the hospital authority and requested to forward the following documents:-

1 ) . Exact cause of dyspnoea with relevant investigation reports.

2 ) . All past treatment details

3 ) . Complete work up with day to day ICP.

8 .  Based on the query letter, the hospital authority had forwarded the case sheet copies and previous discharge summary dated 28/07/2007 issued by Amrita Institute of Medical Sciences, Ernakulam.

9 .  It is submitted that the discharge summary dated from 16/07/2007 to 28/07/2007 issued by Amrita Institute of Medical Sciences, Ernakulam clearly reveals that complainant’s mother was treated for Severe Calcific AS, Trivial AR, Bronchial Asthma and underwent Aortic Valve Replacement – 21 mm Carpentier Edwards Pericardial Perimount MAGNA Bio Prosthetic Valve.

10 . It is submitted that the Valve Diagram dated 20/07/2007 issued by Amrita Institute of Medical Sciences, Ernakulam shows Severe Calcific Sortic Stenosis, Severe LVH, AVR done and operation performed:- Aortic Valve Replacement – 21 mm Carpentier Edwards Pericardial Perimount MAGNA Bioprosthetic Valve.

11 . Based on the available medical records, it is evident that the complainant had history of Severe Calcific Aortic Stenosis and underwent

(Cont....8)

 

-8-

Aortic Valve Replacement on 2007 which is before the inception of policy and was not revealed in the proposal form at the time of inception of policy.  As the complainant has wilfully suppressed the Pre-existing disease in the proposal form, which is the basis of contract at the time of taking the policy, it amounts to suppression of material facts.  The proposer has intentionally suppressed in the proposal form despite there is specific question in the health history column 2 that:-

          1 )  Have you consulted/ taken treatment/been admitted for any illness/ diseases/ injury/ surgery? – The complainant has answered ‘NA’ to this specific question.

2 )  In column No.3 mentioned in the proposal form “Have you ever suffered or suffering from any of the following”.

          (a ) Diabetes Mellitus – If yes since when” – the complainant has answered ‘NA’ to this specific question.

(b  ) Heart Disease – If yes since when’? – The complainant has answered ‘NA’ to this specific question.

( 1) Any other problems (Please Specify) – The complainant has answered ‘NA’ to this specific question.

12 . As per condition No.6 of the policy, the company shall not be liable to make any payment under the policy in respect of any misrepresentation, mis-description or non-disclosure of any material fact by the policy holder.  As the complainant has wilfully suppressed the above

(Cont....9)

 

-9-

disease in the proposal form, which is the basis of contract at the time of taking the policy, the opposite parties had rejected the cashless facility and the same was communicated to the hospital authority and the complainant vide letter  dated 03/05/2021.

13 . After discharged from the hospital, the complainant has submitted completed claim form with discharge summary, Lab reports and bills for an amount of Rs.17,66,274/-.

14 . It is submitted that after verifying the discharge summary dated 07/05/2021 issued by Rajagiri Hospital, Ernakulam reveals that the complainant had history of Valvular Heart Disease Severe Calcific Aortic Stenosis – Status Post Aortic Valve Replacement with 21 mm Carpentier  Edwards Pericardial Perimount Magna Bioprosthetic Valve in 07/2007, was on regular medications and follow up here since 2017.  Follow up Echocardiogram in 2019 showed degenerative changes in Aortic Prosthesis with significant gradient and advised Re-do Aortic Valve Replacement versus Trans catheter Aortic Valve repair was advised.  Based on the submitted records the opposite parties again repudiated the claim and the decision was informed to the complainant vide letter dated 23/06/2021.

15 . It is submitted that as per conditions No.5 (10) of the policy, the company may cancel the policy on grounds of misrepresentation, fraud, Moral hazard, Non disclosure of material fact as declared in the proposal

 

(Cont....10)

 

-10-

form.  On the basis the opposite parties had cancelled the policy in the name of Mrs.Susamma Jacob, the mother of the complainant and an amount of Rs.42,463/- was refunded as premium to the complainant vide DD No.853246 dated 28/06/2021.

16 . It is submitted that the complainant had admitted in para No.4 of the complaint that “the complainant’s mother had undergone a heart value replacement surgery in the year 2007 and subsequent to the transplantation, she had no further complaints”.  Hence it is confirmed and admitted by the complainant himself that his mother had treated for heart valve replacement surgery but the same was suppressed in the proposal form at the time of inception of policy which amounts to suppression of material facts.

17 . It is submitted that if there is suppression / Non disclosure/ Misrepresentation as to material fact in proposal form by insured – in a contract of insurance, any fact which would influence of the mind of a prudent insurer in deciding whether to accept and not to accept the risk is a material fact (Regulatory and development Authority (Protection of Policy Holders Interests) Regulations, 2002.  Regulation 2 (1) (d) if the proposer has knowledge of such fact, he is obliged to disclose it to insurer particularly answer to said questions will entitle the insurer to repudiate its liability under the policy.  The said position of law is held by the Hon’ble Supreme Court in a decision reported in 2009 KHC 4898.

 

(Cont....11)

-11-

 

18 . The answers given by the insured in a fraudulent manner amounts to suppression of material facts, which were within knowledge of insured, resulted into vitiating contract of insurance.   The Said position was already decided in 1(2014) CPJ 3 (NC) by Hon’ble National Consumer Disputes Redressal Commission in Manjinder Kaur Vs Life Insurance Corporation & Anr.

19 . The latest judgment of the Hon’ble Supreme Court in Reliance Life Insurance Co.Ltd., & Anr V.Rekhaben Nareshbhai Rathod reported inCivil Appeal No.4261  of 2019 dated 24/04/2019 observed that a contract of insurance is contract Uberrimae fidei and there must be complete good faith on the part of the assured.

20 . The allegations in the original petition are admitted only to the extent stated supra and the remaining is denied.

21 . The allegation in para No.3 of the complaint that the 4^th opposite party insisted the complainant to take a health insurance policy in the name of the complainant’s  mother Susamma Jacob, the details were given by the complainant over phone to the 4^th opposite party and paid the premium are not correct and hence denied.  It is submitted that the complainant approached the 4^th opposite party for availing a policy and the opposite parties have explained the terms and conditions of the policy.  After knowing the terms and conditions of the policy, the proposer had opted the Senior

 

(Cont....12)

-12-

Citizen Red Carpet Policy and remitted the premium.  Moreover, the complainant had not disclosed any previous health related complaints of his mother in the proposal form.  The complainant had suppressed the real facts and thereby misleading the Hon’ble Commission.

22 . The allegation in para No.7 of the complaint that the complainant has not suppressed any material facts is totally false and hence denied.  It is submitted that the discharge summary dated 28/07/2007 issued by Amrita Institute of Medical Sciences, Ernakulam clearly reveals that complainant’s mother was treated for Severe Calcific AS and underwent Aortic Valve Replacement.

23 . The petitioner has filed this complaint vexatiously and frivolously for the sole purpose of harassing the opposite parties with the intention for getting unlawful enrichment from the opposite parties who are dealing with public money and functioning under the guidelines of IRDA controlled by the Government of India.  As public money is held in trust, the company must exercise abundant caution in dealing with the claims by applying all conditions correctly.

24 . There has been no deficiency of service and unfair trade practice from the part of the opposite parties.  The opposite parties had acted only as per the terms and conditions of the policy.  The complainant has absolutely no cause of action for the petition and not entitled for any damage, cost and compensation.

 

(Cont....13)

-13-

25 . The claim is not payable as per policy terms and conditions.  As per the policy terms and conditions, the maximum sub limit for the Cardio Vascular Disease will be Rs.5,00,000/- for 25 lakhs sum insured.  Therefore it is humbly submitted that even though the claim is not payable as per policy terms and conditions, if this Hon’ble Commission finds any liability upon this opposite parties, then the liability of the opposite parties may be limited to Rs.5,00,000/-.

Therefore, opposite parties prayed for dismissal of complaint with their costs and compensation.

The complainant was examined as PW1 and Exts.P1 to P4 were marked.  On the side of opposite parties Manager of opposite party company and its Tele Verification Staff were examined as RW1 and RW2 respectively.   Exts.R1 to R15 were marked.  Complainant objected to marking of Ext.R6 and R15.

Heard both sides,

We have examined the pleadings of both sides, proof affidavit, sworn statement  and documents produced from both sides.  Opposite parties have raised preliminary objection with regard to IA filed by complainant for restoring the policy cancelled by 3^rd opposite party.  As the same had to be considered along with the complaint and it is considered in this order.

On a perusal of the evidence available on record and the depositions, pleadings etc. of both sides, following points arise for consideration:-

 

(Cont....14)

-14-

1 . Whether there is any deficiency in service or unfair trade practice on the part of opposite parties?

2 . If so, for what reliefs complainant is entitled to?

3 . Final order and costs?

Point Nos.1 and 2 are considered together:-

Complainant’s case is that though policy was live during the period of surgery opposite parties have illegally repudiated his claim and also cancelled the existing policy stating flimsy reasons.  While taking the policy, details were given to the agent over phone.  Complainant states that he and his family have been taking health insurance policy from opposite parties 1 to 3 for the past 7 years.  While so, 4^th opposite party insisted him to take health insurance policy in the name of his mother Susamma Jacob.  Details were given by him to 4^th opposite party and paid Rs.5,118/-.  Accordingly policy No.P/181219/01/2017/004517 was issued by opposite parties 1 to 3.  On going through ext.P1, it is seen that policy was taken in the name of Susamma Jacob from 21/12/2016 to 20/12/2017 and the sum insured was Rs.1 Lakh.  It is seen renewed for the period from 31/12/2020 to 30/12/2021 as per renewal endorsement No.P-181219/01/21/013885 for an amount of Rs.25 Lakhs.  In the 1^st policy issued in 2016, details of pre-existing diseases of the insured is shown as ‘Nil’.  At the time of inception of policy, age of insured was 71 years.  Age of the insured was 75 while renewing the policy in 2020.  With regard to Ext.R3, opposite party company have sent proposal

 

(Cont....15)

-15-

for cancellation of policy with effect from 16/06/2021.  It is stated therein that they will process relevant refund of premium and sent along with cancellation endorsement.   On a perusal of the contention of both sides, we noticed that the real issue raised is with regard to suppression of material facts, ie, non disclosure of pre-existing disease, while policy was first taken.  It is settled law that doctrine of “Uberrimae fidei” is applicable in the matter of contract of insurance.  It is applicable to both sides.  Contract of insurance is a speculative one.  The transactions between insurer and insured must be transparent and both are bound to disclose material facts each other.  In the instant case opposite parties’ strong contention is that complainant had suppressed existence of earlier valve replacement surgery at the time of filing proposal form.  On the other hand, complainant opposes the same.  It is specifically stated in complaint that, complainant had divulged the fact of heart valve replacement surgery conducted in 2007 to  the 4^th opposite party at the time of taking policy.  Opposite parties contention is that, it was not disclosed in the proposal form.  Complainant has deposed in cross examination that he has not signed the proposal form.  It is also deposed by him that before taking policy he has given the proposal form after talking over phone.

It is true that doctrine of “Uberrimae fidei” is necessary in a contract of insurance which is applicable to both insurer and insured.  In a contract of insurance being a speculative one, insurer plays a dominant role and the only

 

(Cont....16)

-16-

option available to the insured is either to accept the terms or to abandon it.  The purpose of taking insurance is to meet unforeseen incident.  On a careful study of Ext.R5 customer information sheet, it is seen that as per Sl.No.3 (a) under the head “what are the major exclusions in the policy” it is stated that “pre existing disease 12 months”.  In Sl No.5 loss sharing is shown as “in case of a claim”, this policy requires you to share the following costs, expenses exceeding the following:

Sub limits

1 .  Room/ICU charges as per schedule.

2 . For the specified diseases, Cataract, Cerebrovascular accident, Cardiovascular disease, cancer and for the diseases mentioned in sublimit 2 shown above is stated “as per table”.  As per Cl.4 under the above heading percentage of each co-payment is shown as in Cl.1(k) of policy schedule.  As per table in page 4 of Ext.R5 customer information sheet under the head “for policy with sum insured on individual basis” limit per person per policy period for each disease/ condition is shown as Rs.5 lakhs for a sum insured of Rs.25 Lakhs in the case of Cardiovascular disease .  It is pertinent to note that while proposal was received from complainant for taking policy for his mother aged 71 years, opposite party company had not resorted to medical check up for the proposed insured.  As per version of opposite parties, it is stated that sum insured was raised from Rs.1 Lakh to Rs.2 Lakhs in 2018.  While the policy was renewed without break for subsequent years, in 2020,

 

(Cont....17)

-17-

sum insured was considerably increased from said  Rs.2 Lakhs to 25 lakhs.    No attempts were seen taken by officials of opposite party company to enquire with the proposed insured  about her health conditions either at the time of filling proposal form or at the time of enhancement of sum insured considerably.  So they have acceded to the proposal made by son of insured.  Normally insurer has to obtain medical check up especially in respect of very senior citizen.  But, it has abstained from doing so.  Name of policy itself is “Senior Citizens Red Carpet Health Insurance Policy’.  So, it can be seen that it is specifically designed to protect senior citizens from any unforeseen incident.  Hence, element of high risk is involved therein.  Then the insurer cannot take shelter of any non disclosure of facts by a proposer who is not the insured.  It is true that as per Ext.R6, proposal form, in column 2 under the head “Health history” specific question is shown “Have you consulted/taken treatment/been admitted for any illness/injury/disease/surgery.  If yes, give details” Answer is shown as “NA”.  In column 1 thereof in response to question “Are you in good health and free from physical and mental disease or infirmity”, answer given is “yes”.  In clause “c” of column 3 thereof answer given in respect to the question “Heart disease- if yes since when” is “NA”.  On a perusal of the handwriting in respect of signature of proposer (Complainant) and with regard to filling up of other columns, we noticed that both are done by two persons.  No attempt was taken by either party to examine the handwriting in the proposal form by a handwriting expert

 

(Cont....18)

-18-

 especially when complainant disputes his signature in Ext.R6 and opposite parties approves the signature.  Similar is the situation in respect of Ext.R15 pen drive.  We have heard the conversation of so called tele verification contained  therein through official laptop in open Commission in the presence of counsels and witnesses for both sides.  This cannot be accepted in evidence without verifying sound of persons involved therein.    Moreover, the device through which recording was done is not produced for verification before the Commission.   Opposite parties have raised strong contention that as per policy conditions, suppression of material facts is sufficient ground to repudiate the claim as well as cancellation of policy.

Opposite parties have raised an alternative contention that if at all this Commission find any liability upon them, then the liability may be limited to Rs.5 Lakhs.  Though they have raised such a contention, basis thereof is not stated.  On going through Ext.R5, it is seen that such a contention was raised based on condition No.1(coverage) mentioned in page 4 thereof (sub limits mentioned).  Though complainant has raised the contention that he had informed the health condition to the insurance agent (4^th Opposite party), no evidence thereof is available.  We have again heard the conversation during said  tele verification by inserting Ext.R15 pen drive in official laptop as already stated above.   Though the authenticity of the record is not proved, we find that it is necessary to state the necessary conversation recorded

 

 

(Cont....19)

-19-

therein.  While company official ask the complainant that “whether Smt.Susamma Jacob has done any treatment of surgery”? Reply is given by the person from opposite side that “there is no such problem”.  In answer to next question “Whether she is using any medicine”? answer is “No”.  In response to another question” Have you signed the proposal form”?  answer is given after few seconds with a murmur and subsequently stated as “it must be so”.  Yet another question asked was “have you been informed about the terms of the policy”?  answer is “No”  “I almost know the details”.

പരാതിക്കാരൻറെ Cross Examination ൻറെ  പ്രധാനപ്പെട്ട ഭാഗങ്ങൾ ഇപ്രകാരമാണ്.  പോളിസി എടുക്കുന്നതിന് മുൻപ് ഞാൻ Proposal  Form  കൊടുത്തത് ഫോണിൽ സംസാരിച്ചതിൻറെ  അടിസ്‌ഥാനത്തിലാണ്‌.  ഒപ്പോടുകൂടിയ Proposal Form  നൽകിയാലേ കമ്പനി accept  ചെയ്യുകയുളളൂ (Q).  ഞാൻ ഒപ്പിട്ടുനൽകിയിട്ടില്ല (A ).  Proposal  ൻറെ  വിവരങ്ങൾ ഫോണിലൂടെ Jilson  Joseph  എന്ന ആൾക്ക് പറഞ്ഞു കൊടുത്തു.  നിങ്ങളുടെ  ഒപ്പിട്ട Proposal  കമ്പനിയിൽ ഉണ്ട്  എന്ന്  പറയുന്നു  (Q).  Proposal  Form  ഉണ്ടായിരിക്കാം , ഞാൻ ഒപ്പിട്ടതല്ല (A ).  ഇപ്രകാരമുള്ള പ്രൊപ്പോസലിനെ base ചെയ്താണ് പോളിസി തന്നത് എന്ന്  പറയുന്നു (Q).  അത് ശരിയല്ല (A ).  ഈ Proposal  നിങ്ങളുടെ അമ്മയുടെ Health  Condition  നേയും  Previous  illness  നേയും  കുറിച്ച് ചോദ്യങ്ങൾ ഉണ്ടായിരുന്നു എന്ന്  പറയുന്നു (Q).  അതിനെപ്പറ്റി എനിക്ക് അറിയില്ല (A).  ആ ചോദ്യങ്ങൾക്കെല്ലാം യാതൊരുവിധ അസുഖങ്ങളുമില്ലായെന്നാണ് രേഖപ്പെടുത്തിയത് എന്നും പറയുന്നു (Q).  അമ്മയ്ക്ക് നടത്തിയ ഓപ്പറേഷനെപ്പറ്റി

 

 

 

(Cont....20)

-20-

ഞാൻ പറഞ്ഞിരുന്നതാണ് 2007  ൽ Heart  Valve  replace  ചെയ്ത വിവരം ഞാൻ വ്യക്തമായി പറഞ്ഞിരുന്നതാണ് (A ).  അങ്ങനെയൊരു വിവരം Proposal  Form  ൽ  രേഖപ്പെടുത്തി കാണുന്നില്ല (Q).  അതേക്കുറിച്ച് ഒന്നും പറയാനില്ല (A).    Valve  replacement  നെ തുടർന്ന് തുടർച്ചയായി Amrita  യിൽ 2019  വരെ ചികിത്സനടത്തി എന്ന് പറയുന്നു (Q).  ശരിയല്ല , കൃത്യം തീയതി ഞാൻ ഓർക്കുന്നില്ല (A ).  Replacement  കഴിഞ്ഞ് ഒന്നോ രണ്ടോ തവണ പോയിക്കാണും.  Amrita Hospital  Records  പ്രകാരം 2017  വരെ regular  follow up  നടത്തിയിരുന്നുവെന്നും 2019  ൽ Eco  Cardiogram  പരിശോധന നടത്തിയിരുന്നുവെന്നും പറയുന്നു (Q).  അത് ശരിയല്ല (A ).

 It is stated in Ext.R12 that Eco Cardiogram in 2019 showed degenerative changes in Aortic Prosthesis with significant gradient and advised Re-do aortic valve replacement versus trans catheter aortic valve repair was advised.  It is pertinent to note that previous surgery was done in 2007 in Amrita Hospital, Ernakulam.  As per the discharge summary (Ext.R7) no regular medication was seen advised.  But, it is stated that medications for Br.Asthma to be adjusted according to the advice of Chest Physician.  The valve repair done in 2021 which is the cause of this claim.   2^nd treatment was taken after a long period of 14 years.  Normally a person who has undergone any surgery like this believe that it will not again damage in future.  It is developed on several years, which cannot be found fault with on the insured.

 

 

(Cont....21)

-21-

Complainant or the opposite parties have not cared to examine the insurance agent as well as doctors who treated the insured.  It is the duty of complainant to establish his case which is not done here.  RW2 has deposed in cross examination as follows:-

ഇത്  ഏത് device  ൽ ആണ്  record  ചെയ്തത് (Q).  Headset  Use  ചെയ്ത്  Head  Office  ലെ system  ത്തിൽ already  record  ചെയ്യപ്പെടും (A ).  Swipe  എന്ന software  ആണ്  system ത്തിൽ install  ചെയ്തിരിക്കുന്നത് .  ഈ recording  system  ത്തിൻറെ  custodian  ഞാൻ അല്ല.   അത് ആരുടെ custody  ൽ ആണ് (Q).  Head  office, Chennai  യുടെ custody  യിൽ ആണ്  (A ).  Ext .R 15  ലെ  അത് system  ത്തിൽ നിന്നും copy  ചെയ്തത് നിങ്ങളാണോ (Q).  അല്ല  അത് Head  office  ൽ നിന്നും അയച്ചു തന്നതാണ്  (witness  adds ).  Opposite party failed to examine the person recorded the above conversation.  As per Regulation 4  of Insurance Regulatory and Development  Authority (Protection of Policy Holders' Interests )  Regulations, 2002, it is the duty of an insurer to furnish to the insured free of charge, within 30 days of the acceptance of a proposal, a copy of the proposal form.  If above Regulation No.4  was complied with by opposite parties, there is no need to go for a litigation.  If the complainant had got the opportunity to verify and provide more information or to rectify any mistake in the proposal form, he could have done so.  It is pertinent to note that opposite parties have no specific case of forwarding proposal form along  with policy and its terms and conditions.  At the same time complainant has not challenged the

(Cont....22)

 

-22-

contention of opposite parties that they have given the terms and conditions of the policy to the complainant at the time of availing the policy.  Hence it is to be taken that policy terms and conditions were given to complainant.  There is no doubt that suppression of material facts is sufficient reason to repudiate the claim or to cancel the policy.  Here both parties have failed to discharge their respective onus of proof to establish their case by a preponderance of probabilities.  In these circumstances, we can dispose of this complaint with the reliable materials on record.    This Commission cannot rewrite the terms of contract between the parties.  In the light of our above observations regarding the partial  sustainability of contentions of both sides and also based on main condition No.1 COVERAGE in sub limits column, limit per person, per policy period for each diseases is shown as Rs.5 Lakhs for Cardiovascular diseases, this amount could have been given.  Opposite parties have raised an alternate contention that if at all any amount is found to be paid by them it may be limited to Rs.5 Lakhs.  Considering the entire facts and circumstance and also evidence on record, we find that complainant is only entitled to the sub limits mentioned Rs.5  Lakhs in respect of disease in question.  Though opposite parties are aware that they will be held responsible for not honouring the claim, they have not cared to settle the claim to the extent possible.  This is deficiency in service on their part.  So they are liable to pay interest @ 12% per annum from the date of

 

 

(Cont....23)

-23-

complaint.  Besides, opposite parties are also liable to pay compensation of Rs.50,000/- for the mental agony, loss and hardship caused to the complainant.  They are also liable to pay litigation costs of Rs.5,000/- also.  Point Nos.1 and 2 are answered as above.

Point No.3

In the light of forgoing discussions and our findings on Point Nos.1 and 2 this complaint is disposed of as follows.

In the result complaint is allowed in part giving following directions to opposite parties.

1 . We order that opposite parties 1 to 3 shall pay Rs.5 Lakhs (Rupees Five Lakhs only) to the complainant as expenses for surgery done to his mother.

2 . We also order above opposite parties to pay Rs.50,000 (Rupees Fifty Thousand only) as compensation and Rs.5,000/- (Rupees Five Thousand only) as litigation costs to the complainant.  Treatment expenses and compensation ordered above shall carry simple interest @ 12 % per annum from the date of complaint.  Above amounts including costs shall be paid by  opposite parties 1 to 3 to complainant within 45 days of receipt of this order,

failing which complainant will be entitled to recover the same as per law.

3 .  We make it clear that complainant should be allowed to continue the policy, in accordance with law as per directions of IRDA given time to time if he chooses to do so.

 

(Cont....24)

-24-

In view of final order passed above I.A. No.55/2021 is dismissed as the case has attained finality.

Parties shall take back extra copies without delay.

Pronounced by this Commission on this the   25^th day of July 2023.

 

                                                                                              Sd/- 

                                                                            SRI.AMPADY K.S., MEMBER

                                                                                          Sd/-

                                                                 SRI.C.SURESHKUMAR, PRESIDENT

                                                                                          Sd/-

                                                                        SMT.ASAMOL P., MEMBER

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1- George P.Thomas

On the side of the Opposite Party :

RW1 - Padma Prabha P.

RW2 – Shameena Habeeb

Exhibits :

On the side of the Complainant :

Ext.P1 – Senior Citizens Red Carpet Health Insurance Policy Schedule  copy

               No.P/181219/01/2017/004517 dated 21/12/2016 for the period

               21/12/2016 to 20/12/2017 and renewal endorsement

               No.P/181219/01/2021/013885 for the period 31/12/2020 to

               30/12/2021.

 

                                                                                                                                     (Cont....25)

 

-25-

Ext.P2 –Hospital bill summary dated 07/05/2021.

Ext.P3 –Notice dated 07/05/2021 regarding proposal to cancel the existing

               policy w.e.f.16/06/2021 due to non-disclosure of pre-existing

               disease.

Ext.P4 – Reply dated 12/06/2021 given by complainant to opposite party

              company.

 On the side of the Opposite Party :

Ext.R1 – Policy and ID card copy issued by opposite party to the insured for

               the period 21/12/2016 to 20/12/2017 (This and policy mentioned in  

               first limb of Ext.P1 are same)

Ext.R2 -  Policy schedule copy for 29/12/17 to 28/12/18.

Ext.R3 – Policy schedule copy for 31/12/2018 to 30/12/2019.

Ext.R4 – Policy schedule copy for the period 31/12/2019 to 30/12/2020.

Ext.R5 – Copy of customer information sheet.

Ext.R6 – Proposal form for Senior Citizen  Red Carpet Health

                Insurance Policy

Ext.R7 – Request for cashless hospitalisation for Health Insurance given by

               the hospital authority to opposite party company.

Ext.R8 – Query on authorisation for cashless treatment dated 29/04/2021

               given by opposite party company to hospital

Ext.R9 – Discharge summary dated 28/07/2007 from Amrita Institute of  

                 Medical Sciences and Research Centre.

 

(Cont....26)

-26-

 

Ext.R10 – Valve Diagram dated 20/07/2007.

Ext.R11-  Rejection of authorisation for cashless treatment dated 03/05/2021  

                 issued by opposite party company to Rajagiri Hospital with copy

                 of letter addressed to complainant about rejection of cashless

                 treatment facility and proposal to cancel policy on the ground of

                  non-disclosure of pre-existing disease.

Ext.R12 – Discharge summary dated 07/05/2021 from

                  Rajagiri Hospital, Aluva.

Ext.R13 – Repudiation letter dated 23/06/2021 issued by opposite party  

                  company to complainant.

Ext.R14 – Notice of cancellation of policy dated 07/05/2021

                  (This and Ext.P3 are same)

Ext.R15 – Pen drive stated to be recorded during policy verification call.

 

                                                                                              Forwarded by Order

 

                                                                                        ASSISTANT REGISTRAR