State Consumer Disputes Redressal Commission
Rajesh Singla vs Max Bupa Health Insurance Company Ltd. on 24 April, 2018
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH
Consumer Complaint No. 100 of 2017
Date of Institution : 21.02.2017
Date of Reserve : 16.04.2018
Date of Decision : 24.04.2018
Rajesh Singla s/o Parkash Chand Singla r/o House No. 19, Sector
21, Chander Lok Colony, Mandi Gobindgarh, Punjab
....Complainant
Versus
1. Max Bupa Health Insurance Co. Ltd., B-1/I-2, Mohan
Cooperative Industrial Estate, Mathura Road, New Delhi - 110 044
through its Authorized Representative.
2. Max Bupa Health Insurance Co. Ltd., Ludhiana Office: Plot
No. 88, 2nd Floor, Kunal Tower, Mall Road, Opp. AXIS Bank,
Ludhiana-Punjab-141001 through its Authorized Representative.
....Opposite Parties
Consumer Complaint under Section 17 of
the Consumer Protection Act, 1986.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member.
Shri Rajinder Kumar Goyal, Member
Present:-
For the complainant : Ms. Kashika Kaur, Advocate
For the opposite parties: Sh. K.S. Cheema, Advocate
Consumer Complaint No. 100 of 2017 2
GURCHARAN SINGH SARAN, PRESIDING JUDICIAL MEMBER
ORDER
Complainant has filed this complaint against the opposite parties (hereinafter referred as Ops) under Section 17 of the Consumer Protection Act, 1986 (for short the Act) on the averments that he purchased a Health Companion Health Insurance Policy No. 30368041201400 from Ops on 20.10.2014, which was valid for the period of one year from 20.10.2014 to 19.10.2015 for himself, for his wife and 2 children for sum insured of Rs. 24 Lacs after paying premium of Rs. 46,054/- through authorized agent. After a year the policy was got renewed vide policy No. 30368041201501 for the period 20.10.2015 to 19.10.2016 for himself, for his wife and two children for sum insured of Rs. 24 Lacs after paying premium of Rs. 50,815/-. During the coverage of insurance policy, complainant was hospitalized in Fortis Escort Hospital, New Delhi from 7.12.2015 to 12.1.2016. He underwent surgical treatment of liver transplant for a total amount of Rs. 22,15,000/- and also spent Rs. 45,528/- as post hospitalization expenses. No intimation was received by the complainant from Ops for cashless treatment, therefore, the complainant paid the entire amount to the hospital. After discharge from the hospital, the complainant immediately sent the claim form with discharge summary and final invoice to the ops. However, after a gap of about 2 months, to the utter shock and dismay to the complainant, he received a letter dated 7.4.2016 stating that the Consumer Complaint No. 100 of 2017 3 claim of the complainant has been rejected as his claim did not fall under the personal 2 years waiting period for Cerebrovascular Diseases and Pre-existing Hypertensive Diseases. However, the Ops have illegally rejected the reimbursement claim of the complainant. At the time of admission, the Ops have allowed a claim of Rs. 50,000/- vide letter dated 7.12.2015 but lateron vide letter dated 22.12.2015, they had cancelled the authorization of cashless discharge of the hospital and also cancelled the previous authorization letter dated 7.12.2015. Without going through the documents, the Ops declared the complainant a patient having history of chronic liver disease. The complainant tried to contact Ops in order to clarify the issue and in order to claim for reimbursement but Ops No. 1 & 2 not only rejected his claim but also harassed him. The complainant continued to send a notice to the Ops through email seeking clarification regarding reasons for declining the claim and the basis on which it was declared that the complainant had a hypertension problem. Ops vide email dated 26.5.2016 replied that the claim was reviewed by their Doctors based upon the medical record and the medical treatment taken by the complainant and that the medical treatment taken by the complainant falls under the permanent exclusions. Alongwith the reply, they attached another denial letter showing history of hyper tension for the last 5 years. The ground taken by the Ops to reject the claim of the complainant is grossly illegal, arbitrary as the complainant did not suffer from hyper tension or chronic liver disease. Alleging deficiency in service on the part of Ops, this Consumer Complaint No. 100 of 2017 4 complaint has been filed by the complainant seeking claim of Rs. 23 Lacs alongwith interest @ 18% p.a. from the date of submission of the mediclaim till the date of payment Rs. 5 Lacs as compensation for mental agony and harassment and Rs. 1 Lac as litigation cost.
2. Upon notice, Ops appeared and filed their written reply taking preliminary objections that the complainant suppressed the material facts from the Commission, therefore, the complaint is liable to be dismissed; the policy No. 30368041201400 was issued by the Ops to the complainant on the basis of information provided by the assured in the proposal form dated 14.10.2014. This information has been established to be incorrect, therefore, the Ops were well within its right to repudiate the claim of the complainant; the claim of the complainant was declared on the basis of suppression of material information and furnishing false information in the proposal form. The Assured Rajesh Singla at the time of filling the proposal form did not disclose the correct information about his health and habits. It was found that claim for treatment of conditions arising due to complications was a result of substance abuse (Alcoholism) and the complainant was a patient of hypertension for the last 5 years, which was not disclosed by the assured at the time of submitting the proposal form; the assured was treated for liver transplant at Fortis Escorts Hospital, New Delhi for the period 7.12.2015 to 12.1.2016. The insurance contract is based upon utmost good faith and in case this principle has been violated then the contract is avoid. According to IRDA (Protection of Consumer Complaint No. 100 of 2017 5 Policyholders' Interests) Regulations, 2002, material for the purpose of these regulations shall mean and include all important, essential and relevant information, therefore, the claim filed by the complainant was referred and has relied upon the judgment of 'Satwant Kaur Sandhu v. New India Assurance Company Ltd.', 2009(4) CLT 398, 'Life Insurance Corporation of India & Ors. Vs. Smt. Asha Goel & Anr.', (2001) ACJ 806 and "P.C. Chacko and another Vs. Chairman, Life Insurance Corporation of India and others", AIR 2008 SC 424; the complainant failed to settle the nexus between the damages claim in the present complaint and the damages suffered by him, therefore, the compliant is just an abuse of the process of law, it should be dismissed under Section 26 of the CP Act. On merits, issuance of the policy and its renewal is a matter of record. It was again reiterated that the insured concealed the material fact with regard to his health and habit at the time of taking the policy and filling the proposal form. In the proposal form, he is submitted the history of the following questions as under:-
Medical History Q. No. Questions Answer for all proposed insured
1. Within the last 2 years, have you consulted a No doctor or a health care professional?
2. Within the last 7 years, have you been to a No hospital for and operation and/or and investigation (e.g. Scan, X-Ray, Biopsy or Blood Tests)?
3. Do your take tablets, medicines or drugs on a No regular basis?
4. Within the last 3 months, have you experienced No any health problems or medical conditions which you have not seen a doctor for?
The answers given by the assured/complainant in the proposal form are not correct answers. When the complainant/assured was Consumer Complaint No. 100 of 2017 6 in Fortis Escort Hospital, New Delhi for liver transplant during the period 7.12.2015 to 12.1.2016, after receiving of the intimation i.e. cashless authorization, Ops approved a sum of Rs. 50,000/- and asking the hospital to provide treating Doctor certificate for etiology and exact history of chronic liver failure with all the past treatment records. After evaluating the documents, the Ops cancelled the previous authorization and liver transplant of the patient was planned. According to the medical record, the patient is a known case of chronic liver disease but no exact duration and past treatment record was provided for the same. Earlier the complainant submitted his reimbursement bill, which was denied by the Ops. It was also reported that he was a patient of hypertension for the last 5 years. The contract of insurance is based upon the principle of utmost good faith and in case the assured/complainant has violated the principle of utmost good faith then the assured/complainant is not entitled for the claim submitted by him. It was denied that there was any deficiency in service on the part of Ops. The complaint is without merit, it be dismissed.
3. The parties were allowed to lead their respective evidence in support of their complaint. Complainant in his evidence has tendered affidavit of Rajesh Singla, complainant as Ex. C-A and documents Exs. C-1 to C-10. On the other hand, Ops have tendered affidavit of Chandrika Bhattacharyya, Sr. Legal Manager Ex. Op-A and documents Exs. Op-1 to Op-9.
Consumer Complaint No. 100 of 2017 7
4. We have heard the counsel for the parties and have carefully gone through the pleadings of the parties, evidence and documents on the record.
5. It is an admitted fact that the complainant alongwith his wife and two children had obtained a health Companion Health Insurance Policy No. 30368041201400 from Ops for the period 20.10.2014 to 19.10.2015 by the complainant alongwith his wife and two children and the said policy is Ex. C-2. The said policy was further renewed for the period 20.10.2015 to 19.10.2016. It was issued under a new policy No. 30368041201501. It is also an admitted fact that during the period of insurance 20.10.2015 to 19.10.2016, the complainant fell ill and was hospitalized in Fortis Escort Hospital, New Delhi and he remained admitted there for the period 7.12.2015 to 12.1.2016 and had undergone liver transplant and had paid a sum of Rs. 22,15,000/- and its bill has been placed on the record and post operative treatment expenses of Rs. 45,000/- were spent by the complainant. The discharge summary of Fortis Escort Hospital has also been placed on the record, which shows that the complainant remained admitted with Fortis Escort Hospital from 7.12.2015 to 12.1.2016 and had undergone liver transplant. It was argued by the counsel for the complainant that although it was the duty of the Ops to provide cashless facility but instead of providing the cashless facility they had not even reimbursed the bill when it was submitted to the Ops and declined the same on flimsy grounds that the complainant is suffering from pre-existing disease i.e. hyper tension and chronic liver disease, Consumer Complaint No. 100 of 2017 8 therefore, he is not covered under the terms and conditions of the policy. But counsel for the complainant has referred to the certificate issued by Fortis Hospital Dr. Ajay Kumar Ex. C-10 wherein it has been mentioned 'Etiology of acute or chronic liver injury is not known. He denies history of alcohol intake & is negative for known hepatitis and autoimmune markers. It has been labelled as Cryptogenic Cirrhosis, therefore, the basis on which the claim has been repudiated is not correct. Therefore, it was argued by the counsel for the complainant that the claim of Rs. 22,15,000/- and Rs. 45,000/- post operative expenses spent by the complainant be allowed.
6. Ops have repudiated the claim on the basis of pre- existing disease i.e. hypertension and chronic liver disease. With regard to hyper tension, in the discharge summary Ex. C-4 at the time of admission the patient's pulse was 90/min and BP was 120/80 mmHg, which is ideal BP. Whereas in the hospital record, it ranged from 70 to 160 maximum and on number of occasion it was upto 80-90, 130/140. The Op has not referred any such report where the BP of the patient was quite high. Rather in the patient history and clinical record produced by the Ops in the column of hypertension, it has been referred hyper tension 'No'. No doubt that in Ex. Op-8/A, it has been mentioned hyper tension for the last 5 years. Mere reference in the record that the patient is suffering from hyper tension for the last 5 years is not sufficient. There must be some investigation report showing that BP of the patient was quite high than the normal, only then it can be said that the patient Consumer Complaint No. 100 of 2017 9 was suffering from hypertension. Moreover, there no record of 5 years has been placed on the record by the Ops to corroborate the plea taken by the Ops or as referred by the Doctors in the hospital record. No affidavit of any Doctor of Fortis Escort Hospital, New Delhi has been placed on the record on what basis they have referred that the patient was suffering from hypertension for the last 5 years so that the complainant could be in a position to controvert and confront the record to the said Doctor. Therefore, in the absence of any specific evidence on the record, mere reference in the record mentioned by the Doctor that he was suffering from hypertension for the last 5 years is not sufficient to say so. Moreover, hypertension is not a disease, which is required to be referred in the proposal form. In this regard, we are fortified by the judgment of the Hon'ble National Commission reported as I (2016) CPJ 613 (NC) "Satish Chander Madan v. Bajaj Allianz General Insurance Co. Ltd.", in which it was observed by the Hon'ble National Commission that hypertension is a common complaint and it can be controlled by medication. She has referred to another judgment of the Hon'ble National Commission 2015 (4) CPJ 288 "Pramod Kumar Kapoor versus Oriental Insurance Co. Ltd. and another". In that case also, the claim of the complainant was repudiated by the Insurance Co. on the plea that the complainant was known case of hypertension. Record revealed that the treatment did not reveal to hypertension and no literature has been placed on the record that the hypertension cannot develop all of a sudden. Therefore, we are of the opinion that in view of the Consumer Complaint No. 100 of 2017 10 evidence referred above and the judgment law relied upon does not make out a case in favour of the Ops to repudiate the claim of the complainant on the basis of hypertension.
7. Another plea on the basis of which claim has been repudiated is that the claim for treatment, conditions arising due to complication as a result of substance abuse. As per the policy terms and conditions, treatment related to addictive conditions and disorder or from any kind of substance abuse or misuse is not payable as per Clause 4(e) i.e. non-disclosure of material facts. The relevant clause of the terms and conditions i.e. 4(e)(i) is as under:-
"(i) Addictive conditions and disorders Treatment related to addictive conditions and disorders, or from any kind of substance abuse or misuse."
In the key feature document, pre-existing disease has been referred as under:-
"Pre Existing Disease (P.E.D.): Any condition/illness/injury which the insured person has suffered from before issuance of policy is classified as P.E.D. Claims with respect to P.E.D. are not payable till the completion of waiting period i.e. 48 months (in case of silver plan) / 24 months (in case of gold/platinum plan) since inception of the policy and continuous renewal."
In the discharge summary enclosed with the document Ex. C-4, final diagnosis and history of present illness is as under:- Consumer Complaint No. 100 of 2017 11
"Final Diagnosis:
1. Right love living donor liver transplantation.
2. Acute on chronic liver failure (unknown etiology) History of Present Illness:
Patient was apparently well two month back when he started developing generalized weakness and loss of appetite. He was taking indigenous treatment at home. On further investigations his LFT was found deranged at that time. Patient had progressive yellow discoloration of eyes and urine since past 20 days. There is no history of, clay color stools or blood transfusion received in the past. Patient was admitted to FELDI on 7.12.2015 for further management." In case we go to the history of the present illness, it has been referred by the Fortis Escort Hospital, New Delhi that the patient was apparently well two months back when he started developing generalized weakness and loss of appetite, which shows that mainly the disease started two months prior to the admission of the patient in the hospital and further in the certificate issued by Dr. Ajay Kumar, who had given the treatment to the patient and it has been certified as mentioned in para No. 5 above whereas counsel for the Ops has referred to the investigation report Ex. Op-8 and in the findings, it has been referred as under:-
"5. As per history sheet no history of HTN but as per anesthesia sheet HTN since 5 years. Consumer Complaint No. 100 of 2017 12
6. As per discharge summary etiology of diagnosed is unknown but it was on the date of transplant 22-12- 15 insured was present with Confirm diagnosis Alcoholic CLD (Mentioned in Preoperative notes and nursing notes)."
Alongwith that he has referred to the document Ex. Op-8/A in which it has been referred non-alcoholic but it seems that word 'non' has been added lateron because in the opening of the pre-operative evaluation form, it has been referred alcoholic CLD and in the critical hand off report, in the column of diagnose, it has been referred 'alcoholic hepatitis (L)' and his G.G.T. has been mentioned as on 19.11.15 - 495 and on 1.12.2015 - 239 whereas on 17.12.2015, it has been referred as 120 and the record further shows that on 22.12.2015, it decreased to 50 and on 26.12.2015, it was 62. Again on 29.12.2015, it was 39 and on 4.1.2016, it was
118. On 2.1.2016, it was 100, therefore, the G.G.T. has been changing from time to time. The counsel for the Ops has relied upon the medical literature 'Harison's 15th Edition, Principal of Internal Medicine, Volume 2' wherein it has been observed that chronic hepatitis represents a series of liver disorders of varying causes and severity in which hepatic inflammation and necrosis continue for at least 6 months. In the column of laboratory features, it has been observed as under:-
"Patients with alcoholic fatty liver are often identified through routine screening tests. The typical laboratory abnormalities are nonspecific and include modest elevations of the Consumer Complaint No. 100 of 2017 13 aspartate aminotransferase (AST) and alanine aminotransferase (ALT) accompanied by hypertriglyceridemia, hypercholesterolemia, and, occasionally, hyperbilirubinemia. In alcoholic hepatitis and incontrast to other causes of fatty, the AST and ALT are usually elevated two- to sevenfold. They rarely are above 400 IU, and the AST/ALT ratio is >I (Table 298-2). Hyperbilirubinemia is common and is accompanied by modest increases in the alkaline phosphatase. Derangement in hepatocyte synthetic function indicates more serious disease. Hypoalbuminemia and coagulopathy are common in advanced liver injury. The mean corpuscular volume (MCV) and uric acid level are commonly elevated in chronic alcohol abuse. Measurement of the carbohydrate-deficient transferring (CDT) is superior to the measurement of the gamma-glutamyl transpeptidase (GGTP) or MCV in identifying excessive drinking. Ultrasonography is useful in detecting fatty infiltration of the liver and determining liver size. The demonstration by ultrasound of portal vein flow reversal, ascites, and intra-abdominal collaterals indicates serious liver injury with less potential for complete reversal of liver disease."
In case we analyze this medical literature, no doubt that G.G.T. level can increase due to use of alcohol but it is not the only factor, there can be so many other factors. Whether the complainant was used to excessive alcohol intake, then we are again to revert back Consumer Complaint No. 100 of 2017 14 to the medical record. In the certificate Ex. C-10 given by Dr. Ajay Kumar, it has been referred that patient denies history of alcohol intake & is negative for known hepatitis. Whereas counsel for the Ops has referred to pre-operative evaluation form Ex. Op-8/A alcoholic CLD but in the same form, it has been referred non- alcoholic and in clinical hand off report, it has been mentioned as alcoholic hepatitis. In the daily progress notes, it has been mentioned CLD ċ portal HTN.
8. Even if the version of the Ops is admitted that the patient had the problem due to some alcoholic intake but again the history is not coming forth whether before taking the policy, the patient was suffering from that disease and did not give its intimation in the proposal form at the time of taking the policy. Originally the policy was taken from 20.10.2014 to 19.10.2015 and then it was got renewed from 20.10.2015 to 19.10.2016 and the problem was received by the complainant in the 2nd policy years as he remained admitted in Fortis Escort Hospital, New Delhi from 7.12.2015 to 12.1.2016 and in the repudiation letter, it has been mentioned that he was a known case of hyper tension and treatment of conditions arising due to complications is a result of substance abuse. In the written reply, the counsel for the Ops has referred to the judgments "Satwant Kaur Sandhu versus New India Assurance Company Ltd.", 2009(4) CLT 398, "Life Insurance Corporation of India & Ors. Vs. Smt. Asha Goel & Anr." (2001) ACJ 806 and "P.C. Chacko and another Vs. Life Insurance Corporation of India & others" AIR 2008 SC 424. In Consumer Complaint No. 100 of 2017 15 all these judgments, the claim of the patient was dismissed on the ground of concealment of material facts but each case depends upon the evidence of that case. In those cases, evidence was produced by the Ops that before taking the policy, the insured was suffering from some disease and independent evidence was produced by the Ops in those cases and on the basis of that evidence, the claim was declined. But here in the present case, the Ops have not been able to collect any evidence that before taking the policy, the complainant/insured was suffering from hyper tension or his liver disease was complication arising on account of misuse of substance. With regard to hypertension, we have already given the detailed discussion that no specific date has come on the record to prove that before taking the policy, insured was suffering from hypertension but whatever data is available B.P. is within the normal range or slightly on the higher side and further we have no evidence that the complication to the liver was outcome of the hypertension, therefore, the claim cannot be repudiated on the basis of any complication of hypertension. With regard to pre- existing disease, even in the policy document, it has been reported in the key feature document referred as under:-
"any condition of illness/injury which the insured person has suffered from before issuance of the policy is classified as pre-existing disease."
But no such evidence has been brought on the record by the Ops. In this regard, a reference can be made to the judgment of the Hon'ble National Commission in Revision Petition No. 200 of 2007 Consumer Complaint No. 100 of 2017 16 "Mr. Satinder Singh versus National Insurance Co. Ltd." decided on 24.1.2011 wherein it has been observed that "recording of history of patient in the above stated manner does not become a substantiate piece of evidence and convincing evidence be brought on record that complainant was aware of pre-existing disease." It has been observed by the Hon'ble National Commission in the III 2014 CPJ 340 (NC) "New India Assurance Company Limited through its duly Constituted Attorney, Manager versus Rakesh Kumar" that people can live months/years without knowing the disease and it is diagnosed accidentally after routine check up and on that ground repudiation is not justified. Further it has been observed by the Hon'ble National Commission in its judgment IV (2008) CPJ 89 (NC) "Life Insurance Corporation of India & Ors. Versus Kunari Devi" that history recorded in the hospital bed head ticket is not to be taken as evidence as Doctor recording history not examined and suppression of disease not proved. In the present case, except the medical record of the present ailment, Ops have not placed on the record any independent evidence that the insured had the knowledge or that he had been taking the treatment of liver disease before purchasing this policy and these judgments were not rebutted by the counsel for the Ops that in the absence of any specific evidence on the record how the disease, if any, to which the insured does not have the knowledge can be termed as pre-existing disease. Further it was also observed in "New India Assurance Company Limited through its duly Constituted Attorney, Manager versus Rakesh Kumar" (supra) Consumer Complaint No. 100 of 2017 17 that many times healthy persons are unaware of such silent ailments of diabetes and hypertension, which come to their knowledge first time during the health check-up camps or in any emergent situation. Op cannot apply a hard and fast rule to presume that complainant was suffering for long duration before taking the policy. Therefore, we are of the opinion that repudiation of the claim is not justified.
9. What is the quantum of the claim? Under the policy, sum insured is Rs. 24 Lacs as referred in the policy Ex. C-3. Claim form Ex. C-4 submitted alongwith a bill of Fortis Escort Hospital, New Delhi of Rs. 21,77,824/-. It has been further argued by the counsel for the complainant that pre-operative and post operative expenses are also available to the insured. In this regard, he has referred to the policy terms and conditions i.e. key feature document wherein pre and post hospitalization expenses have been referred as under:-
"Pre and Post hospitalization expenses: Expenses incurred 30 days prior to hospitalization and 60 days post hospitalisation are payable only if hospitalization is accepted for claim payment under the policy. If we have accepted the In-patient claim with a co-payment, then co-payment shall be applicable for pre and post hospitalization treatment as well."
However, the complainant alongwith the claim form has submitted the bill of Rs. 4985/- dated 2.2.2016, another bill of Amar Medicos dated 15.1.2016 of Rs. 1082/-, another bill dated 21.1.2016 of Rs. 2,000/-, bill dated 18.1.2016 of Rs. 5804/-, bill dated 15.1.2016 of Consumer Complaint No. 100 of 2017 18 Rs. 10,335/-, bill dated 25.1.2016 of Rs. 8945/-, bill dated 27.1.2016 of Rs. 3292/-, bill dated 15.1.2016 of Rs. 4985/-, bill dated 27.1.2016 of Fortis Hospital of Rs. 3100/-. These bills are covered under post operative treatment, which covered under the policy upto the period of 60 days. Therefore, the complainant/insured will also entitled to this amount. In this way, the total amount comes to Rs. 22,22,352/-. Accordingly, the complainant will be entitled to this amount.
10. No other point was argued.
11. Sequel to the above, we allow the complaint and direct the Ops as under:-
(i) pay Rs. 22,22,352/- to the complainant alongwith interest @ 9% p.a. w.e.f. 7.4.2016 i.e. the date of repudiation, till the payment of this amount;
(ii) Ops were further directed to pay Rs. 40,000/- as compensation on account of mental and physical harassment to the complainant.
(iii) pay Rs. 15,000/- as litigation expenses to the complainant.
The above directions be complied by the Ops within a period of 45 days from the date of receiving of the copy of the order, failing which the complainant will be at liberty to execute the order by filing application under Sections 25 & 27 of the CP Act against the Ops.
12. The consumer complaint could not be decided within the statutory period due to heavy pendency of Court cases. Consumer Complaint No. 100 of 2017 19
13. Copy of the order be supplied to the parties as per rules.
(GURCHARAN SINGH SARAN) PRESIDING JUDICIAL MEMBER (RAJINDER KUMAR GOYAL) MEMBER April 24, 2018.
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