Kerala High Court
Life Insurance Corporation Of India vs David Sekhar on 6 June, 2019
Equivalent citations: AIR 2019 KERALA 151, AIRONLINE 2019 KER 285 (2019) 3 KER LT 676, (2019) 3 KER LT 676, AIRONLINE 2019 KER 285
Author: Shaji P.Chaly
Bench: Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
THURSDAY, THE 06TH DAY OF JUNE 2019 / 16TH JYAISHTA, 1941
WP(C).No. 6345 of 2013
PETITIONER/S:
LIFE INSURANCE CORPORATION OF INDIA,
REP. BY SMT. MINI S. NAIR, MANAGER (L& H.P.F),
DIVISIONAL OFFICE, M.G.ROAD, ERNAKULAM,
COCHIN - 682 011.
BY ADVS.
SRI.P.B.SAHASRANAMAN
SRI.K.JAGADEESH
SRI.RAAJESH S.SUBRAHMANIAN
SRI.T.S.HARIKUMAR
RESPONDENT/S:
1 DAVID SEKHAR, I.T.D., NULLATHANNI,
MUNNAR - 685 612.
2 THE INSURANCE OMBUDSMAN, OFFICE OF THE INSURANCE
OMBUDSMAN, PULINATHU BUILDING, 2ND FLOOR,
OPPOSITE COCHIN SHIPYARD, M.G. ROAD, ERNAKULAM,
COCHIN 682 015.
BY ADVS.
R1 BY SRI.A.A.ZIYAD RAHMAN
SRI.LAL K.JOSEPH
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
27.05.2019, THE COURT ON 06.06.2019 DELIVERED THE FOLLOWING:
W.P.(C) No.6345 of 2013 2
C.R.
JUDGMENT
This writ petition is filed by the Life Insurance Corporation of India, seeking to quash Ext.P10 award passed by the Insurance Ombudsman, Kochi in Complaint No.IO/KCH/LI/21-001-763/2011-12, directing the petitioner to pay an amount of Rs.1,91,880/- to the 1st respondent herein within the time period prescribed thereunder, failing which, interest at the rate of 9% per annum from the date of filing of the complaint, i.e., 26.12.2011 was imposed. Brief material facts for the disposal of the writ petition are as follows:
2. The 1st respondent has taken a Health Plus Policy which was in force from 18th October, 2008, which belongs to the category of LIC's Unit Linked Health Insurance Plans with declared benefits, reimbursement and Hospital Cash Benefit, Major Surgical Benefit and Domiciliary Treatment Benefit. The policy was issued on the basis of the proposal made by the 1st respondent, and the case of the petitioner is that, the 1 st respondent had made the Corporation believed that he has no congenital disorders, which has been confirmed as answer to questions 6(j) and 6(l) of Ext.P1 proposal W.P.(C) No.6345 of 2013 3 dated 16.10.2008. It was on the basis of Ext.P1 proposal, policy was issued by the petitioner. While so, 1st respondent raised a claim for the valve replacement surgery at the Medical College Hospital, Kottayam, done on 16.03.2011, raising a claim of Rs.1,92,600/- on 31.03.2011, which was received by the petitioner on 21.04.2011, evident from Ext.P2.
3. The claim was rejected for the reason that the hospitalization is for correction of birth defects or congenital anomalies (H09) and the treatment surgery was for correction of birth defects/congenital anomalies, evident from Ext.P3 issued by the Third Party Administrator of the petitioner. However, the rejection was challenged by the 1st respondent by raising Ext.P4 claim before the Insurance Ombudsman dated 24.04.2012. The contention advanced by the petitioner was that the treatment was for a pre-
existing disease which was not disclosed by the 1st respondent while submitting the proposal and surgery underwent by the 1st respondent has relation to the complication which arose out of pre-existing ailment. It is the case of the petitioner that, 1st respondent is having Marfan's Syndrome with supernumerary in both hands and feet and this fact was suppressed when he W.P.(C) No.6345 of 2013 4 submitted the proposal. Therefore, the surgery underwent by the 1st respondent relates to congenital defect and not entitled to get the benefit of the policy, evident from Ext.P5 objection.
4. On the other hand, in order to substantiate his claim, the 1st respondent has produced Ext.P6 certificate dated 21.08.2011 issued by the Doctor of Medical College Hospital, Kottayam, who has conducted the surgery. However, according to the petitioner, the claim was repudiated on the basis of medical opinion given by the Medical Insurance Panel Doctor of the Third Party Administrator, evident from Ext.P7. It is also stated that, 1st respondent is also a known case of degenerative aortic valve disease with severe AR, Dilated aortic root and Marfanoid features are present, evident from Exts.P8 and P9 OP Ticket and Discharge Summary respectively, issued by the Medical College, Hospital, Kottayam.
5. The case projected by the petitioner is that, the Insurance Ombudsman after perusing the records has accepted Ext.P6 certificate and other documents produced by the 1st respondent, and passed an award, directing to pay the amount specified above, within 15 days, evident from Ext.P10. Therefore, the case W.P.(C) No.6345 of 2013 5 advanced by the petitioner is that, Ext.P10 order is arbitrary and illegal, and the award was passed without providing sufficient opportunity of hearing and participation to the petitioner. It is also submitted that, the Insurance Ombudsman, in accordance with the provisions of the Redressal of Public Grievances Rules, 1998 (in short, 'the Rules, 1998), is bound to adjudicate the issue after taking into account all the attendant circumstances. However, none of the aspects were taken into account and Ext.P6 certificate produced by the 1st respondent was not proved in order to pass the award relying upon to the same. It is further submitted that, the claim raised by the 1 st respondent before the Ombudsman did not contain any material aspects disabling the petitioner to contest the proceedings before the Ombudsman.
6. A detailed counter affidavit is filed by the 1st respondent, supporting the order passed by the Insurance Ombudsman, and refuting the allegations and claims and demands raised by the petitioner. According to the 1st respondent, the claim was submitted in the format prescribed with all relevant documents before the Third Party Administrator, however, he has repudiated the claim and in spite of submitting a W.P.(C) No.6345 of 2013 6 representation before the competent officer of the petitioner, seeking re-consideration, the same was not considered properly, and it was rejected confirming the findings of the Third Party Administrator, which necessitated to approach the Ombudsman in accordance with the provisions of the Rules, 1998. It is also pointed out that, the Insurance Ombudsman has passed Ext.P10 award after taking into consideration the rival submissions made by the parties and the Insurance Ombudsman has taken up the task of elaborately looking into the provisions of law and the situations pointed out by both parties, and thereafter arrived at the conclusion that the 1st respondent is entitled to secure the claims raised.
7. I have considered the rival submissions made across the Bar, and perused the pleadings and the documents on record.
8. The question emerges for consideration is, whether any manner of interference is required to Ext.P10 award passed by the Insurance Ombudsman. The Ombudsman has taken into consideration the entire contentions raised by the petitioner, especially the one that the treatment was for a pre-existing disease which was not disclosed by the complainant in the W.P.(C) No.6345 of 2013 7 proposal and the format, and has held in paragraphs 9 and 10 as follows:
"9. One of the main contentions of the Respondent-Insurer is that the treatment was for a pre-existing disease which was not disclosed by the complainant in the proposal form. It is also contended that the surgery underwent by the complainant is in relation to a complication which arose out of pre-existing ailment. The Respondent-Insurer would contend that the complainant was having Marfan's Syndrome which is a congenital defect. The Respondent-Insurer would also contend that the complainant was having supernumerary digits in both lower and upper limbs. According to the Respondent-Insurer, it is a definite feature of existence of Marfan's Syndrome. These facts were not disclosed by him in the proposal form, it was argued by the officer representing the insurer. Copy of the proposal form submitted by the complainant is produced. Column E in the proposal form deals with health details and medical information. Sl.No.6(l) deals with congenital disorder. The complainant had answered the query relating to that aspect in the negative. Of course, the complainant is having supernumerary digits in both upper and lower limbs. There is no contention for the Respondent-Insurer that the complainant was having knowledge or reason to have knowledge that the presence of supernumerary digits in the lower and upper limbs is a characteristic of Marfan's Syndrome. Medical literature available would not reveal that supernumerary digits in the upper and lower limbs is a prime characteristic of Marfan's Syndrome. Father Gean Antonin Morfan identified Marfan's Syndrome in the early 90's. It is a hereditary condition of connective tissues, bones, muscles, ligaments and skeletal system. Tall, lean body type with long extremists including fingers and toes, abnormal joint flexibility, having stooped shoulder and dislocation of optical lens are the main symptoms of Marfan's Syndrome. It can also lead to dilated aorta and aneurysm. The medical documents available and produced by the complainant and Respondent-Insurer would reveal that the Marfan's Syndrome was never confirmed in the case of the complainant. Presence of certain symptoms of the disease alone cannot be an W.P.(C) No.6345 of 2013 8 indication of confirmation of Marfan's Syndrome. The treating Doctor had only doubted the presence of Marfan's Syndrome as per the medical certificate and discharge summary issued by him. Even while the Respondent-Insurer would contend that the ailment suffered by the complainant is a pre-existing ailment, they have not succeeded in providing any medical document which would indicate that the complainant had undergone treatment for ailment connected with Marfan's Syndrome prior to 16.10.2008 (date of proposal) or 18.10.2008 (date of commencement of the policy). In the absence of any reliable evidence regarding the existence of any ailment and in the absence of evidence regarding treatment for any ailment prior to the submission of the proposal, it is absurd to enter a finding that the complainant suffered pre-existing ailment and he had not disclosed the pre-existing ailment in the proposal form. Therefore, exclusion Clause 6(l)
(i) relating to Hospital Cash Benefit is not attracted. So also, exclusion Clause 6(II)(ii) relating to Major Surgical Benefit is not attracted.
10. Yet another point raised by the Respondent- Insurer is that the treatment and surgery underwent by the complainant relate to congenital defect and therefore, the claim is hit by Clause 6(I)(ix) relating to Hospital Cash Benefit and Clause 6(II)(xi) relating to Major Surgical Benefit. In this regard, the medical evidence available can be considered. The complainant was initially admitted at Medical College Hospital, Kottayam for the period from 03.01.2011 to 08.01.2011. During that hospitalization, he was advised surgery. For the purpose of surgery, he was admitted again at Medical College Hospital, Kottayam on 12.03.2011 and discharged on 24.03.2011. Surgical procedure was done on 16.03.2011. So, altogether the complainant was hospitalized for 14 days. Copy of the discharge summary issued from Medical College Hospital, Kottayam is produced. The diagnosis is severe AR and Annuloaortic ectasis. The procedure done on 16.03.2011 is Bentail Debono Procedure. Much emphasis is given by the Respondent-Insurer regarding the statement in the discharge summary in relation to clinical history and findings to the effect that Marfanoid features were present. In the clinical history portion, it is stated W.P.(C) No.6345 of 2013 9 that the complainant is a known case of degenerative aortic valve disease with severe AR and dilated aortic root. In the discharge summary issued from Medical College Hospital, Kottayam, it is not stated that AR (Aortic Regurgitation) and degeneration of aortic root are due to Marfan's Syndrome. Dr. Kirun Gopal of Department of Cardiothoracic Surgery, Medical College Hospital, Kottayam had issued a certificate dated 18.04.2011 to the effect that the complainant was diagnosed for Annuloaortic ectasia with severe AR on 03.01.2011. After investigations, he was discharged on 05.01.2011 and he was readmitted for surgery on 12.03.2011 and was discharged on 24.03.2011. In the said certificate, there is no mention regarding Marfan's Syndrome or Marfanoid features. The same doctor had filled up and signed the Hospital Treatment form provided by the Respondent- Insurer to the complainant and submitted along with the claim form. The Hospital Treatment Form is signed by Dr. Kirun Gopal. In that document, there is a definite question to the effect to 'Whether the present ailment/disease is a complication of any pre-existing condition that the patient is suffering from? The answer given is 'No'. There is yet another question to the effect:- 'Is the disease/ailment/disorder congenital in nature?'. The answer given by the Doctor is 'No'. The said document is dated 25.03.2011. The same Doctor had issued another certificate dated 21.08.2011 that the condition for which the complainant underwent treatment and surgery was not present at birth but was acquired over time. It is noticed in the said certificate that the complainant underwent surgery on 16.03.2011 for replacement of aortic valve and ascending aorta. It is also noted that the patient had Marfanoid features suggesting possibility of Marfan's Syndrome. The Doctor had suggested only the possibility of existence of Marfan's Syndrome. He had not given a conclusive opinion vesting to the existence of Marfan's Syndrome. Even in a case where the insured is having Marfan's Syndrome and he had undergone surgery for replacement of aortic valve and ascending aorta, there must be evidence that the ailment is a complication which arose from the pre-existing Marfan's Syndrome. Mere existence of Marfan's Syndrome alone is not sufficient to conclude that the ailment is a manifestation of W.P.(C) No.6345 of 2013 10 the existing Marfan's Syndrome. The Respondent- Insurer is relying on the copy of an OP ticket issued from Medical College Hospital, Kottayam. It is dated 21.08.2010. Therein it is noted that the complainant had complaints of headache, chest pain and palpitation. It is noted in the OP ticket that the complainant is a diagnosed case of Marfan's Syndrome. The OP ticket further reveals that the complainant was referred to Cardiology OP for further evaluation. There is no evidence available that in pursuance to the OP consultation on 21.08.2010, the complainant had hospitalization and treatment. Even in that case, the OP consultation was much after the submission of the proposal form by the complainant. To repudiate the claim, the Respondent-Insurer is also relying on a medical opinion rendered by Dr. K.V.Shenoy, Medical Insurance Panel Doctor. In the opinion, he had reproduced the medical literature available in relation to Marfan's Syndrome. He had concluded his opinion by stating:- 'As per the policy guidelines, the ailment falls under Genetic/congenital ailment with complications and becomes pre-existing as per the policy'. Doctor who provided the opinion is not a specialist in Cardiology. Further, he is a panel Doctor of the Respondent-Insurer. The complainant was treated and surgery was performed by a super specialist Cardio-thoracic Surgeon attached to the Medical College Hospital, Kottayam. The said Doctor had every opportunity to examine, diagnose and treat the patient. He had performed surgery on the complainant. The Doctor who had provided opinion to the Respondent-Insurer never had the occasion to see the patient and examine him. The Doctor who attended on the complainant and issued the medical documents relating to his treatment and surgery had direct knowledge of the characteristics and symptoms of the ailment suffered by the complainant. The opinion rendered by Dr. K.V. Shenoy is based on surmises and conjunctures. Such an opinion is insufficient to discard the opinion rendered by a highly qualified Cardiovascular Surgeon. When the well-informed and well-considered opinion of the treating Doctor is available, it is quite unsafe to rely on the contents of the opinion rendered by the Panel Doctor of the Respondent- Insurer to repudiate the claim. In the circumstances, I am inclined to accept the W.P.(C) No.6345 of 2013 11 medical certificate and opinion rendered by the treating Doctor. There is consistent evidence that the surgery performed on the complainant was not for a congenital disease. The treating Doctor is the most competent person to provide opinion in this regard. So, exclusion Clause 6(I)(ix) relating to Hospital Cash Benefit and Clause 6(II)(xi) relating to Major Surgical Benefit are not attracted in the case of the complainant and his claim."
9. On a deeper analysis of the findings rendered by the Ombudsman, it is clear that the entire contentions put forth by the parties were taken into account, and after assimilating the entire legal and factual situations, finding was rendered by the Ombudsman, directing the petitioner to pay the amounts due to the 1st respondent. Even though petitioner has a contention that no opportunity was provided to the petitioner to adduce evidence in respect of Ext.P6 medical certificate produced by the 1st respondent, on a perusal of Ext.P10 and the objection raised by the petitioner viz., Ext.P5, it is clear that no opportunity was sought for by the petitioner to examine the Doctor on the basis of Ext.P6 certificate. In accordance with Rule 14 of the Rules, 1998, the Insurance Ombudsman is entitled to look into the pleadings put forth by the parties and the documents produced and arrive at a just, fair and equitable conclusion. If the petitioner desired to examine the W.P.(C) No.6345 of 2013 12 Doctor who had issued Ext.P6 certificate, necessary steps ought to have been taken by the petitioner in order to summon the Doctor. Petitioner has no such case.
10. Moreover, in accordance with the stipulations contained under Rule 14, the Ombudsman may, if he deems fit, adopt a procedure other than mentioned in sub- rules (1) and (2) of Rule 13 for dealing with a claim, provided that the Ombudsman may ask the parties for necessary papers in support of their respective claims, and if necessary, he may collect necessary information from the insurance company. It is also the stipulation under under sub-rule (2) thereunder that the complaint shall be disposed of fairly and equitably. Therefore, understanding the situation accordingly, it is clear and evident, Ombudsman has dealt with the complaint taking into account the pleadings and documents of the parties in accordance with the procedure contemplated under Rule 14 of the Rules, 1998. To put it otherwise, the Ombudsman is vested with ample powers to deviate from the conventional procedure prescribed under Rule 13 of the Rules and adopt the procedure as per Rule 14. Such a procedure adopted by the Ombudsman cannot be said to be bad or W.P.(C) No.6345 of 2013 13 illegal in the case on hand, since the petitioner has not objected to the procedure so employed nor sought to conduct the proceeding by adducing evidence. So much so, any benefit of doubt while considering the issue shall inure to the benefit of the insured, since as and when the policy is accepted, the insured has a legitimate expectation that he is entitled to the benefit of the policy. Moreover, when the proposal is submitted, enquiry is conducted including medical examination, and thereafter alone policy is issued. These cluster of events supported by law persuade me to think that there is no error or gross illegality in conducting the proceedings by the Ombudsman. In that view of the matter, I do not think there are any established circumstances before this Court to think that Ext.P10 award passed by the Ombudsman is arbitrary or illegal, justifying interference of this Court.
11. Learned counsel for the petitioner has also invited my attention to the judgment rendered by the High Court of Delhi in 'M/s. United India Insurance Company Limited v. Jai Parkash Tayal' [CDJ 2018 DHC 067], wherein, it was held that the right to avail health insurance is integral part of Right to Healthcare and the Right to Health, as recognized in W.P.(C) No.6345 of 2013 14 Art. 21 of the Constitution of India, and therefore, discrimination in health insurance against individuals based on their genetic disposition or genetic heritage, in the absence of appropriate genetic testing and laying down of intelligible differentia, is unconstitutional, and the broad exclusion of 'genetic disorders' is thus not merely a contractual issue between the insurance company and the insured but spills into the broader canvas of Right to Health. Therefore, the Exclusionary clause of 'genetic disorders' in the insurance policy was found to be violative of Article 14 of the Constitution of India.
12. The case put forth by the learned counsel for the petitioner is that, the said judgment of the Delhi High Court is under challenge before the apex court in Special Leave Petition (Civil) Diary No.29590/2018, in which a stay is granted by the apex court on 27.08.2018. In my considered view, the constitutionality of the clause is not a subject matter to be considered in this writ petition, especially due to the fact that the Insurance Ombudsman has passed the award on merits of the matter and interpreting the clauses contained under the policy. Moreover, Sec.45(1) of the Insurance Act, 1938 has undergone an W.P.(C) No.6345 of 2013 15 amendment on and with effect from 26.12.2014 as per the Insurance Laws (Amendment) Act, 2015 dated 20.03.2015, whereby it is stipulated that, no policy of life insurance shall be called in question on any ground whatsoever after the expiry of three years from the date of the policy, i.e., from the date of issuance of the policy or the date of commencement of risk or the date of revival of the policy or the date of the rider to the policy, whichever is later.
13. Here, in this case, the policy is dated 16.10.2008 and the repudiation was made as per Ext.P3 on 28.07.2011, which thus means, the repudiation was approximately two months before the three year period. Therefore, taking into account all these aspects, I am of the considered opinion that, petitioner has not made out any case justifying interference of this Court under Article 226 of the Constitution of India.
Accordingly, the writ petition is dismissed, and there will be a direction to the petitioner to pay the amount as per Ext.P10 award and in accordance with law.
Sd/-
SHAJI P.CHALY JUDGE W.P.(C) No.6345 of 2013 16 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PROPOSAL FORM FOR HEALTH PLUS POLICY-PLAN 901 GIVEN BY THE 1ST RESPONDENT, DATED 16-10-2008.
EXHIBIT P2 TRUE COPY OF THE CLAIM FORM SUBMITTED BY THE 1ST RESPONDENT, DATED 31-03-2011. EXHIBIT P3 TRUE PHOTOSTAT COPY OF THE LETTER ISSUED BY THE THIRD PARTY ADMINISTRATOR OF THE PETITIONER TO THE 1ST RESPONDENT, DATED 28-07-2011.
EXHIBIT P4 TRUE COPY OF THE CLAIM APPLICATION FILED BY THE 1ST RESPONDENT BEFORE THE INSURANCE OMBUDSMAN, DATED 24-04-2012.
EXHIBIT P5 TRUE COPY OF THE OBJECTION RAISED BY THE PETITIONER BEFORE THE 2ND RESPONDENT, DATED 15-05-2012.
EXHIBIT P6 TRUE COPY OF THE CERTIFICATE ISSUED BY DR.KIRUN GOPAL, SENIOR LECTURER, DEPARTMENT OF CARDIOTHORACIC SURGEY, MEDICAL COLLEGE HOSPITAL, KOTTAYAM, DATED 21-08-2011. EXHIBIT P7 TRUE COPY OF THE MEDICAL OPINION ISSUED BY DR.K.V.SHENOY, TO THE PETITIONER, DATED 29-06-2011.
EXHIBIT P8 TRUE PHOTOSTAT COPY OF THE OUT PATIENT TICKET ISSUED BY THE GOVERNMENT MEDICAL COLLEGE, KOTTAYAM, DATED 21-08-2010. EXHIBIT P9 TRUE PHOTOSTAT COPY OF THE DISCHARGE SUMMARY FROM MEDICAL COLLEGE HOSPITAL, KOTTAYM, DATED NIL.
EXHIBIT P10 TRUE PHOTOSTAT COPY OF THE AWARD OF THE 2ND RESPONDENT, DATED 6TH FEBRUARY, 2013. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE St/-