State Consumer Disputes Redressal Commission
Icici Lombard Gen Ins.Co. vs Chandrima Chakravorty on 3 March, 2021
Details DD MM YY
Date of Judgment 03 03 2021
Date of filling 16 04 2015
Duration 17 10 05
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,
GUJARAT STATE AT AHMEDABAD.
Court-3
APPEAL NO. 459 of 2015 Dt: 03.03.2021
The ICICI Lombard General Insurance Co.Ltd.
Zodiac Square, 3rd Floor,
Opp. Gurudwara, S. G. Highway,
Ahmedabad.. ...Appellant
Vs.
Chandrima Chakravorty
H-204, Safal Parivesh,
Nr. Auda Garden, Prahladnagar,
Ahmedabad.
...Respondent
Appearance: Mr. N. S. Dave, Ld. Advocate for the Appellant
Mr. R. P. Raval, Ld. Advocate for the Respondent
Coram: (Shri S. N. Vakil, Member)
(Shri J.Y. Shukla, Member)
Order by Shri S. N. Vakil, Member
1. This appeal is by the Insurance Company.
2. The Complainant Chandrima Chakravorty filed the Consumer Complaint No. 234 of 13 with CDRF, Ahmedabad (Rural) against the Respondent - Opponent - The ICICI Lombard General Insurance Co. Ltd., alleging that she obtained Health Insurance Policy bearing No.40631/HAP/71599501/00/000 and 41131/XOL/80009861/00/000 for the period from 25.05.2012 to 24.05.2012 and 24.05.2012 to 23.05.2013. On around 03.05.2013 she was admitted in Asian Bariatric K.S.Patel A-15-459 Page 1 of 12 hospital, Navrangpura, Ahmedabad, underwent Laparoscopic Sleeve Gastrectomy for Morbid Obesity. The surgery was not a surface surgery done for cosmetic purpose but an advanced gastrointestinal surgery done to treat and prevent complication arising out of her morbid obesity. She also underwent the procedures of Hysteroscopy + Dilatation and Curettage with Endometrial Polypectomy so that anesthesia would be administered once. The claim was submitted but the insurance co. did not process, for 60 days they remained silent. Only after the managing director was approached with, some action was taken. To her shock she received repudiation letter dated 12.08.2013 stating: „that it was a case of morbid obesity and has undergone laproscopic sleeve gastrectomy. Clause 2.2 (iv) xxxii treatment of obesity including morbid obesity and any other weight control programs as per policy terms, and for endometrial polypectomy it was not payable for the first two years of policy. As per statements of the patient she is suffering from disc prolapse since April 2008 and is on medication which falls within 48 months prior to the inception of the policy. As per treating doctor‟s statements patient is suffering from disc prolapse since five years. Standard exclusion clause provides: policy shall be null and void and no benefit shall be payable or incorrect statement, misrepresentation, mis- description or non-disclosure in any material particular in the proposal form, personal statement, declaration and connected documents or any material information having been withheld. The opponent vide letter dated 21.09.2013 cancelled both the insurance policies on the ground of non-disclosure of material facts which would be a breach of the terms and conditions of the policy. Polyp is not a decease, it is an abnormal growth of tissue and is not a pre-existing disease which can be excluded K.S.Patel A-15-459 Page 2 of 12 during the first two years. She was not diagnosed from polyp prior to the commencement of the policy. She was diagnosed with disc prolapse at a much later stage, she was not formally diagnosed since 2008. As per judicial authorities of the National Commission, merely referring a condition on some medical document would not conclusively prove that she was suffering from the same condition. As the policy is terminated she would find it extremely hard to obtain a new insurance policy with a treatment taken recently wherein she was loose all the benefits under the policy which are attainable only after policy is few years old. For expenses of Rs. 4 Lakhs, her claim was rejected. For this deficiency she claims Rs. 4 Lakhs with 12% interest from the date of claim, (2) restoration of both the insurance policies from the latest end date (3) pay the cost of Rs.10,000/- and (4) the compensation of Rs.10,000/- towards mental agony and stress and extremely costs.
3. The defense of the opponent vide written version is of total denial. The opponent does not know as to whether the complainant underwent the procedure of polypectomy. It is not true that alleged surgery was not for purpose of cosmetic reason and that surgery was gastrointestinal to avoid complication arising out of morbid obesity. Clause 2.2 (IV) xxxii of terms and condition treatment of obesity (including morbid obesity) and any other weight control programs are not payable. As the part 2 of schedule 2.2 (iii) expenses incurred on treatment of Polyps of any kind within first two years from the commencement of the policy will not be payable. One of the officers flew from Mumbai to meet with the husband of complainant to justify the reason of non-paying claim. It is not true that policy covers the hospitalization expenses owing to unforeseen health condition which is specifically covered under the policy. The policy K.S.Patel A-15-459 Page 3 of 12 is always issued subject to terms and conditions. The certificate issued by the treating doctor is explanatory clear that this was an advance gastrointestinal surgery done to treat and prevent complication arising out of her morbid obesity, excluded as aforesaid. During the investigation, the treating Dr. Mital Vyas on behalf of Dr. Mahendra Narwaria mentioned that patient Chandrima Chakravorty is suffering from Disc Prolapse since five years and Psoriasis since 2007 and as per statement given by the complainant, she admits that she is suffering from disc Prolapse since five years, obesity since five years and Proriasis since six years, and which are prior to commencement of the policy. The claim was processed immediately and the advice of the expert medical practitioner was sought. It was revealed that complainant had undergone surgery for cosmetic purpose in order to get weight reduce. She was a known case of disc prolapse since long prior to inception of the insurance policy. She had not disclosed the said fact at the time of making proposal. It was admitted by the complainant in her written statement during investigation. She having suppressed material fact qua her health was not entitled to on this ground too. The claim was rightfully repudiated. There is no deficiency in service.
4. CDRF Ahmedabad (Rural) vide its order dated 18.03.2005 allowed the complaint and ordered the opponent to pay Rs. 4 lakhs to the complainant with 9% interest from the date of complaint, to restore both these policies renewed from the date of cancellation, Rs. 3,000/- towards mental pain and Rs.2,000/- towards costs.
5. Being aggrieved by the same the ICICIC Lombard General Insurance Co. Ltd. has preferred this appeal on the ground that the terms and conditions of the policy are required to be interpreted as it is. There was K.S.Patel A-15-459 Page 4 of 12 no ambiguity therein, the claim was repudiated after proper investigation and application of mind, it is just and proper and there was no deficiency in service on the part of the Insurance Co. Repudiation letter Provides the detailed reasons for repudiation, the discharge summery dated 05.05.2013 suggests that the complainant was a known case of Psoriasis since 2007 and was also having a complaint of Dis Prolapse since 5 years. The complainant was aware of the said disease however the same was not informed to the present appellant at the time of proposal of policy in question. One of the ground of the repudiation was that the complainant had failed to disclose material facts and the incorrect statements made the policy null and void. The operations and treatments were not payable as per the terms and conditions of the policy. Hon‟ble Forum wrongly interpreted and misunderstood important aspects, erred in not directing restoration or renew of the policies, without any justification and reason and is also against the settled legal position. The Hon‟ble Forum did not properly appreciate an affidavit filed by Dr. Rooshikesh Thakor and expert opinion by Dr. Sachin Wani. The observation of the Forum is totally misconceived and the documents were misinterpreted when it observed that the doctor who has given opinion has not filed any affidavit and the doctor who has filed an affidavit has not given any opinion. It is clarified that Dr. Rooshikesh Thakor is working as an investigation manager with the appellant who investigated the claim and filed affidavit in the capacity of investigation manager and therefore question of giving any opinion by Dr. Rooshikesh Thakor does not arise at all. Dr. Vani is M.S., DNB (G.I.Surgery) and expert in his fields in which the complainant had taken the treatment. The contents of opinion are self explanatory and it is evident from the said opinion that K.S.Patel A-15-459 Page 5 of 12 complainant was suffering from Morbid obesity with BMI of 49.23 Kg/m2. Hon‟ble Forum without going into the merits of the aforesaid documents had taken hyper-technical view that the opinion was not supported by affidavit and affidavit was not followed by the opinion. The present opponent (complainant) failed to meet with the contentions of the said two documents much less the expert opinions and failed to produced any otherwise documentary evidence against the said expert opinions. It is not mandatory to produce an expert‟s affidavit in absence of any contradictory evidence qua his opinion. Medical literature produced on record shows that the sleeve gatroctomy is a surgical procedure used in the treatment of obesity. It is admitted position that the BMI 40 and above is a morbid obesity in the medical terminology. Complainant‟s BMI was 49.23, and under the terms and condition of the policy treatment of morbid obesity and any other weight control program are not payable. The Forum ought to have considered the medical literature and the physical condition of the complainant narrated in the reports and medical papers provided by the complainant herself. The judgment and order is bad and erroneous in eyes of law, against the legal position and pleadings on record and documentary evidence.
6. Heard Ld. Advocate Mr. N. S. Dave, for the ICICI Lombard General Ins. Com. Ltd. And Ld. Advocate Mr. R. P. Raval, for Chandrima Chakravorty and read his return arguments.
7. The complaint has not disputed any non-receipt of terms and condition of the policy, and hence cannot be agitated herein. Therefore it is immaterial that the policy or the proposal form were produced after the arguments in the forum.
K.S.Patel A-15-459 Page 6 of 12
8. Discharge summery shows Clinical Examination (on admission) as "weight: 142.3 kg, Height: 170 cms, BMI: 49.23 kg/m2, Pulse: 86/min, B.P.: 140/90 mmHg; Complaints: Progressive weight gain following Disc Prolapse since 5 years, ligament sparain of left knee since 6 month. Medical History: K/C/O Psoriasis since 2007. Treatment taken for psoriasis; Past surgery history: Surgery for Chocolate Cyst on both sides. Advice: Laparoscopic Sleeve Gastrectomy, Hysteroscopy Dilatation & Curettage Endometrial Polypectomy;" and for that procedure was done on 03.05.201, on the date of admission and was discharged on 05.05.2013.
9. New India Assurance Com. Ltd. Vs. Anita Chaudhary & Ors., IV (2016) CPJ 178 (NC), is to the effect that Morbid Obesity is a serious disease that may be associated with severe complications which may be life threatening. He had history of obesity since childhood and he had increased weight gain for 15 years and maximum weight attained by him was 224 Kg, discharge summery records that diagnosis of insured was „super obese‟ and was hypertensive. He (deceased) had undergone a life saving surgery and not a cosmetic surgery. Accordingly the insurance companies were held liable to pay the same insured. Now the policy condition herein provides in clause 2.2 (iv) permanent exclusions: any physical, medical or mental condition or treatment or service that is specifically excluded in the policy in part.1 of the schedule under special conditions; and in clause 2.2 (xxxii) that Vitamins and tonics, treatment of obesity (including morbid obesity) and any other weight control programs, general debility, convalescence, run-down condition and rest cure. It is clear that in Anita Chaudhary‟s case (Supra) the exclusion was for obesity treatment and its complication. It did not have further wordings like „obesity (including morbid obesity) and any other weight K.S.Patel A-15-459 Page 7 of 12 control program‟. Therefore Anita‟s case is not available for the complainant. Our commission has in Paresh V. joisaar Vs. The New India Assurance Co. Ltd., Appeal No.5 of 2014 [Corum: justice M. D. Shah (President), Smt. Jyoti P. Jani and Smt. Nandini K. Thakar] upheld the repudiation in case of morbid obesity. Our commission has in the case of United India Insurance Co. Ltd. Vs. Darshanbhai C. Jambusariya, Apepal No.117 of 2018 [same corum] by its order dated 20.03.2019 disagreed with the argument in case of morbid obesity/ Laparoscopic Sleeve Gastrectomy Hysteroscopy Dilatation & Curettage Endometrial Polypectomy was a cosmetic surgery and that the claim was held payable in the policy condition 4.9. on the ground that morbid obesity, inter alia holding that he was 57 years of age and therefore it was not proper to term it as cosmetic surgery. It having held that it is not a cosmetic surgery does not apply to the present case, as in our case of insured having "weight: 142.3 kg, Height: 170 cms, BMI: 49.23 kg/m2, Pulse:
86/min, B.P.: 140/90 mmHg", Complaints: progressive weight gain following Disc Prolapse since 5 years, ligament sparain of left knee since 6 month", it is difficult to hold that the Laparoscopic Sleeve Gastrectomy was in the present case any necessary for saving life as was the situation in Anita‟s case (Supra) where exclusion clause also did not use words „morbid‟ obesity, therefore it is to be and is held that it does fall within the exclusion clause as aforesaid even when it was Laparoscopic Sleeve Gastrectomy, and not any surface surgery. Accordingly the findings of the Ld. Forum cannot be sustained. Ligament sprain was due to fall as evidenced by certificate dated 09.12.2012 (infra).
10. Hysteroscopy Dilatation & Curettage Endometrial Polypectomy clearly falls within clause 2.2 (iii) to the effect that all types of skin and internal K.S.Patel A-15-459 Page 8 of 12 tumours/ Cysts/ nodules/ polyps of any kind including breast lumps unless malignant Indisputably are excluded. Accordingly the repudiation letter when says that expenses incurred on treatment of any kind polyps within first two years from the commencement of policy will not be payable as per part 2 of Schedule Clause 2.2 (iii), it requires to be upheld. Findings otherwise on the point therefore cannot be sustained.
11. The letter of repudiation is dated 12.08.2013. On 21.09.2013, the insured was informed of termination of the policy, which says to the effect that „during the process of insured claim they have come across the information that the insured is a known of Disc Prolapse since 5 years as evident from the treating doctor statement. Further, as per insured‟s statement she is a known case of Disc Prolapse since 2008 on medication which falls prior to the policy inception of both the policies i.e. 25.05.2011 and 24.05.2011 which was not disclosed at the time of proposing for the captioned policies. In the proposal forms there is no declaration or disclosure of the above mentioned material facts which is beach of the terms and conditions as provided in the proposal forms and the captioned policies‟. Now the complaint is that she was diagnosed with Disc Prolapsed at a much later stage. She was not formally diagnosed with Disc Prolapse since 2008.
12. She has submitted certificate by Dr. Vibhas Modak dated 28.02.2012 that she aged 35 years is having severe back pain following heavy exercises on the treadmill. She has tenderness over the L45 and L56 regim with paraspinal muscle spasm. She is presently on radiation and is advised exercise for the back. His certificate dated 09.12.2012 is to the effect that she is suffering from severe low back pain and pain and K.S.Patel A-15-459 Page 9 of 12 severing over left knee due to a fall after twisting injury to the knee. She is on medication and is advised complete rest for a period of 3 weeks.
13. Now the certificate also does not disclose since when she had Disc Prolapse or that it was since 2008 or for 5 years. The insurance company mentioned insured‟s statements that she is known case of Disc Prolapse since 2008 on medication but no such statement is produced in the case nor this facts are anywhere borne by any medical papers or affidavit of treating doctors or any. Under the circumstances it cannot be held to be proved that she was having Disc Prolapse for 5 years or since 2008 or that she was on medication for the same since then.
14. The policy has been terminated for non declaration or non discloser of the above mentioned material fact of Disc Prolapse in breach of the terms and conditions as provided in the proposal form. The proposal form so also the policy terms in part-3 of the Schedule provides: the policy shall be null and void and no benefit shall be payable in the event of untrue or incorrect statement, misrepresentation, mis description or non discloser in any material particular in the proposal form, personal statement, declaration and connected documents or nay material information having withheld, or a claim being fraudulent or any fraudulent means or devices being used by the insured or any one acting on his behalf to obtain any benefit under this policy.
15. The proposal form on page-162 at the bottom provides: „pre-existing illness/ surgery/ Symptom/ Habit: 1 Alcohol/ Smoke/ Consume Tobacco
2. Abnormal Blood Pressure 3. Diabetes 4. Asthma 5. Spondylosis/ backache/ Arthritis 6. Gynecological Disorders 7. Birth Defects Congenital Disorders 8. Hypothesis/ Liver Disease 9. Mental/ Psychiatric Disorders 10. Heart Disease 11. Cancer Tumor 12. Disorders of brain or K.S.Patel A-15-459 Page 10 of 12 Nervous System 13. Kidney and Urinary Tract Disorders 14. AIDS HIV
15. Blood Disorders 16. Any Injury. Please provide details for past 10 years. Kindly use additional sheet if space is not sufficient to give complete details‟. When it says pre-existing it can also be read with the definition of pre-existing in the policy terms, as within 48 months prior to the first individual health policy. It can be made applicable but as held above it has not been proved that she was having backache within 48 months prior to the inception of the policy. This list does not show any Disc Prolapse again nor can it be said to be within knowledge of the insured. Therefore it is difficult to say that she had knowledge it at the time of making the statement that it was false or that it suppressed facts which it was material to disclose. Therefore the Insurance Company has failed to prove cancellation of policy on the ground of non-discloser or non-declaration of material fact and therefore the cancellation of the policy cannot be sustained. Accordingly when the Forum has ordered to renew the policy from the date of cancellation it cannot be disturbed. The letter of IRDA does read that a Health Insurance Policy shall ordinarily be renewable except on the ground such as fraud, moral hazard or misrepresentation. Therefore the argument that unless some element as fraud is involved, renewal cannot be denied is not acceptable as it provides for misrepresentation also.
16. For the reasons stated the appeal deserves to be partly allowed, for which the following final order is passed.
K.S.Patel A-15-459 Page 11 of 12
FINAL ORDER
i) Appeal No. 459 of 2015 is partly allowed.
ii) The judgment and order dated 18.03.2015 by CDRF, Ahmedabad (Rural) rendered in CC No.234 of 2013, is set aside to the extent it has ordered the Insurance Company to pay Rs. 4 Lakhs with interest to the Complainant; however rest of the order is confirmed. That is the Insurance Company shall not be liable to pay Rs. 4 Lacks (Rupees Four Lacks) or any amount towards the treatment; however the Insurance Company shall be liable to renew the Policy No. 40631/HPA/71599501/00/00041131 and Policy No. 41131/XOL/80009861/00/000 from the date of its cancellation, and to pay Rs. 3,000/- towards mental pain and Rs. 2,000/- towards costs, as ordered by the Forum.
iii) No order as to costs.
iv) Registry is directed to pay the deposited amount, with accrued interest, if any, on proper verification to the appellant by account payee cheque and the cheque be handed over to the advocate for the appellant after obtaining receipt.
v) Copy of the judgment be provided to the parties free of charge.
Pronounced in the open Court today on 3rd day of March, 2021.
(J.Y.Shukla) (S.N.Vakil)
Member Member‟
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