State Consumer Disputes Redressal Commission
Marie Furtado Casa Adrina vs New India Assurance Co. Ltd on 3 December, 2010
BEFORE THE HON
BEFORE
THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Complaint
Case No. CC/09/141
1. MRS
MARIE FURTADO CASA ADRINA FLAT NO B
104 1 ST
FLOOR ST JOHN BAPTIST ROAD,
BANDRA (WEST) MUMBAI 400050
....Complainant(s)
Versus
1. NEW
INDIA
ASSURANCE CO. LTD. LIC BUILDING, VILE PARLE, (W), MUMBAI 400056
Maharastra
2.
Paramount Health Service Pvt. Ltd. Elite Auto House, 54-A, Chakala,
M.Vasanji road, Off Andheri Kurla road, Andheri (E), Mumbai M.S.
....Opp.Party(s)
BEFORE :
Hon'ble Mr. P.N. Kashalkar , PRESIDING MEMBER
Hon'ble Mrs. S.P.Lale , Member PRESENT:
Mrs.Anita Marathe-Advocate for the complainant Mr.A.S.vidyarthi, Advocate for the Opp.Party JUDGEMENT/ORDER Per Mr.P.N.Kashalkar, Honble Presiding Judicial Member This is a complaint filed by the complainant against M/s.New India Assurance Co. Ltd. O.P.no.1 and also against M/s.Paramount Health Services P. Ltd. O.P.no.2, who appears to be an agent of O.P.no.1. Complainant is alleging deficiency in service on the part of O.P.nos.1&2 in her complaint.
According to complainant she is 67 years senior citizen residing at Bandra (West), Mumbai. She had purchased from O.P.no.1 a Mediclaim policy for the assured sum of `3 lakhs in the year 2003. O.P.no.2 is a third party administrator of O.P.no.1. O.P.no.2 processes claims of the policy holders presented to Insurance company. She pleaded that in the year 2003, she had purchased policy and she had paid requisite premium. That policy was styled as Insurance policy for hospitalization and ancillary hospitalization benefits. She had given her past health history while purchasing the policy from O.P.no.1. According to her on 29/7/2007 she was feeling difficulty in breathing as a result of pest control that was going on at her residence. Consequently, her agent Ms.Swati Agarwal advised her that she should get admitted herself at Holy Family Hospital, Bandra. Accordingly, she went to Holy Family Hospital, Bandra. She was admitted in the hospital and she was indoor patient from 29/7/2007 to 09/8/2007, on which date she was ultimately discharged by the hospital. She was diagnosed with Sleep Apnoea and respiratory failure. The said illness had nothing to do with Asthama she was having. She had paid all the hospital bills and lodged claim with the Insurance company for reimbursement in terms of Mediclaim policy. She had asked reimbursement of `1,43,622/-
from O.P.nos.1&2. She had supplied all the papers asked for by O.P.nos.1&2 but vide letter dated 30/11/2007, O.P.no.1 repudiated her claim on the ground that complainant was suffering from COPD/Bronchial Asthma since last 30 years. She had not disclosed her ailment of Bronchial Asthma in her proposal form. Therefore, as per exclusion clause no.4.1 since the said ailment was pre-existing ailment or complications arising out of pre-existing ailment, they expressed their inability to reimburse her medical hospital charges. According to her when she was taken to Holy Family Hospital, attending doctor recorded questionnaire from her daughter and mistakenly her daughter had disclosed that the patient was suffering from Bronchial Asthma for last 30 years. Her daughter then addressed a letter dated 06/8/2007 to the O.Ps stating that complainant was never suffering from Asthama and any wrong information given by her should be overlooked.
Complainant pleaded that she was never suffering from COPD/Bronchial Asthma for the last 30 years. She pleaded that because of repudiation letter she has suffered mental stress and agony at this old age. She is still under treatment and medicines and she needs complete rest. She brought this fact to the notice of O.Ps but O.Ps behaved with her in most callous manner and refused her claim. She therefore alleges that O.Ps are guilty of neglect and deficiency in service and, therefore, O.Ps are bound to pay her a sum of `1,43,622/-
with interest @ 21% p.a. from the date of filing of the complaint. She has also claimed `40 lakhs as damages for causing her mental harassment and stress. She therefore, prayed for the award of `1,43,622/-
against O.Ps with interest @ 21% p.a. and also claimed `40 lakhs as compensation for mental harassment.
She filed affidavit in support of her claim.
Insurance company filed written statement and contested the matter. According to Insurance company, consumer complaint is not maintainable since in the pleading there is no allegation of deficiency of service or unfair trade practice. Company also pleaded that claim was wrongly inflated to oust the jurisdiction of the District Consumer Disputes Redressal Forum. Her claim was basically `1,43,622/-
but she has added `40 lakhs by way of compensation for mental harassment and thereby brought this complaint within the jurisdiction of this Commission. As such, on this count company pleaded that complaint should be dismissed with cost.
Insurance company also pleaded that complaint is hopelessly time barred in view of terms and conditions of the policy.
Insurance company further pleaded that they had rightly repudiated the claim in view of exclusion clause at 4.1 of the policy. The claim of the complainant was tainted with fraud and insurance cover was obtained by the complainant by not disclosing material facts. She had given all the information in the proposal form in the negative which was asked in respect of past and present ailments. She had also given false information in claim form also. Insurance company pleaded that on the basis of replies given by the complainant in the proposal form, divisional office of Insurance company of Santacruz had issued Mediclaim policy to the complainant for the first time in 2003, which policy was renewed every year by the complainant. Claim was lodged by the complainant for the period 04/5/2007 to 03/5/2008. Insurance company admitted that complainant was admitted in Holy Family Hospital, Bandra between 29/7/2007 to 09/8/2007 on account of breathing difficulty. Her case was diagnosed to be of Sleep Apnoea and respiratory failure. In the Admission Request Note to the printed questionnaires it was mentioned that patient was suffering from Hypertension and Diabetes Mellitus since 10 years and from COPD/Bronchial Asthma for the last 30 years. This information was supplied by Ms.Michelle Vas, the daughter of the complainant. According to Insurance company, this was never disclosed to them while obtaining insurance policy. So this was a clear cut case of non disclosure of material fact and, therefore, all the insurance policies obtained by the complainant from the respondents are void-ab-initio. Company attached with written statement as Exhibit B copy of Admission Request Note. Insurance company pleaded that it is true that complainant procured one letter from Dr.Sunanda Anand dated 03/8/2007 issued by Holy Family Hospital, wherein it has been stated that the diagnosis of Sleep Apnoea syndrome with Respiratory failure had nothing to do with Asthama, but according to O.Ps, this letter/certificate dated 03/8/2007 is obviously a got up one and, therefore, no credence should be attached to this certificate. Insurance company pleaded that blunder was committed by her own daughter in mentioning the correct facts about her mother and it was sought to be rectified by procuring letter from Dr.Sunanda Anand.
Insurance company further pleaded that they had rightly repudiated the claim by sending letter dated 30/11/2007 on the ground that the claim being for Sleep Apnoea syndrome with Respiratory failure, it was evident that patient was suffering from COPD/Bronchial Asthma for the last 30 years and also from Hypertension and Diabetes Mellitus since 10 years and, therefore, her claim is not admissible as per exclusion clause 4.1 of the policy which excludes all pre-existing ailments and its complications. According to O.Ps repudiation was proper. The ailment of the complainant for which she had been taken to Holy Family Hospital was on account of pre-existing disease and, therefore, said disease and treatment was hit by clause 4.1 of the insurance policy and they had rightly repudiated the claim. Insurance company therefore pleaded that complaint should be dismissed with cost.
We heard submissions of Mrs.Anita Marathe-Advocate for the complainant and Mr.A.S.Vidyarthi-Advocate for the O.P. Following points arises for our determination:-
1.
Whether complaint should be dismissed simply on the ground that the word deficiency in service or unfair trade practice is not mentioned by the complainant in her complaint?
Finding :
NO.
2. Whether it can be stated that the claim involved in the complaint has been inflated wrongly just to oust the jurisdiction of the District Consumer Disputes Redressal Forum and, therefore, complaint should be dismissed?
Finding :
NO.
3. Whether complaint is hopelessly time barred?
Finding :
NO.
4. Whether repudiation of the claim preferred by the complainant was proper?
Finding :
YES
5. What order?
Finding :
Complaint stands dismissed.
Point No.1:
Preliminary objection was raised by the Insurance company in its written statement that complaint is not maintainable in view of the basic flaw in the pleading in as much as in the whole of the complaint the words deficiency in service or unfair trade practice have not been uttered by the complainant against the respondents/O.Ps. However, whole the tenor of complaint has to be considered and read in proper perspective and when it was read we are of the view that there is in-built pleading in the complaint alleging deficiency in service and unfair trade practice on the part of Insurance company/O.P. herein. The pleading in the consumer complaint is not to be strictly construed. A latitude has got to be given while considering the pleading found in consumer complaint. Unlike in Civil court, we should not adhere to the law of pleading. That is why we have considered the complaint as a whole in proper perspective and we are of the strong view that there is sufficient material on record to point out the deficiency in service on the part of O.P./Insurance company and though actual words like deficiency in service or unfair trade practice may not have been used in the pleading while drafting the complaint, moreover complaint appears to have been drafted by a party in person. Taking all these facts into account, we are of the view that there is no merit in the preliminary objection raised by the Insurance company in this behalf. We therefore, record our finding on issue no.1 in the negative.
Point no.2:
Second objection taken to the filing of complaint by the complainant is about inflated claim preferred by the complainant just to seek ouster of jurisdiction of District Consumer Disputes Redressal Forum. According to O.P. the claim of the complainant was purely for `1,43,622/-
but to bring the case within the pecuniary jurisdiction of this Commission, the complainant in para 2 of the prayer clause has asked for compensation of `40 lakhs for mental harassment and mental agony.
It cannot be stated that the claim of the complainant is inflated one. It is the choice of the complainant while filing consumer complaint what amount of compensation for mental harassment and mental agony should be asked for and it is the duty of the Commission to arrive at just compensation after considering all the facets of the matter. Jurisdiction of the forum or Commission depends upon the pecuniary claim made in the complaint. So simply because complainant in addition to the claim of reimbursement, which was for a medical bill, had asked for compensation of `40 lakhs as compensation for mental harassment, that does not mean that it was wrongly inflated claim requiring us to throw out this consumer complaint and to direct complainant to approach the District Consumer Disputes Redressal Forum. Jurisdiction of the Commission we reiterate depends upon the pecuniary claims preferred by the complainant in any consumer complaint. In this case claim was involving `41,63,622/-
and, therefore, consumer complaint was rightly filed in this Commission directly rather than approaching the District Consumer Disputes Redressal Forum. We do not think it fit and proper to hold that the complainant had wrongly inflated the claim just to oust the jurisdiction of District Consumer Disputes Redressal Forum and to bring this claim within the pecuniary jurisdiction of this Commission. So we are finding no substance in the second objection raised by O.P. in this behalf. We, therefore, record our finding on point no.2 in the negative.
Complainant was admitted in Holy Family Hospital at Bandra on 29/7/2007 and on 09/8/2007 she was discharged after giving indoor treatment. From the date of discharge cause of action accrues to the complainant to file consumer complaint against the Insurance company. This consumer complaint came to be filed on 29/7/2009. Repudiation letter issued by Paramount Health Services Pvt. Ltd. is dated 30/11/2007 repudiating the mediclaim preferred by the complainant. So even from that day too the complaint appears to be filed within limitation. We are thus finding that within two years from the accrual of cause of action with reference to the date of discharge of the complainant from the hospital or with reference to repudiation letter, the consumer complaint as filed is well within limitation and there is no merit in this objection raised by the O.P./Insurance company.
We, therefore, record our finding on point no.3 in the negative.
Admittedly, affidavit of the complainant discloses that complainant was admitted in Holy Family Hospital on 29/7/2007 as she was feeling breathing difficulty. Hence Ms.Swati Agarwal agent of New India Assurance Co.Ltd. suggested her to get admitted in Holy Family Hospital, Bandra. Accordingly, complainant rushed to Holy Family Hospital, Bandra and she was admitted in the said hospital and from 29/7/2007 till she was discharged on 09/8/2007, she was indoor patient in the said hospital. She was required to pay bill of `1,43,622/-
as hospital expenses and she lodged a claim with the Insurance company in terms of mediclaim policy issued by the O.Ps. The claim was repudiated by O.P.no.2 on behalf of O.P.no.1 on the ground that she was suffering from COPD/Bronchial Asthma for the last 30 years and also from Hypertension and Diabetes Mellitus since 10 years as per discharge card issued by Holy Family Hospital, Bandra and, therefore, relying upon clause 4.1 of the policy, Insurance company repudiated the claim since the ailment of Sleep Apnoea was the complication arising out of COPD or Bronchial Asthma, which was pre-existing disease of the complainant.
Insurance company relied upon the discharge card issued by Holy Family Hospital, Bandra. In the discharge card, which is at Exhibit A, it has been mentioned that Ms.Marie Furtado, aged 64, was admitted as indoor patient on 29/7/2007 and was discharged on 09/08/2007 and she was under treatment of Consultant -Dr.Sunanda Anand of Neurology department. She was diagnosed as Sleep Apnoea syndrome with Respiratory failure. In the discharge card under the caption Previous history of similar complaints and any other illness with duration, it has been mentioned that complainant was having C.O.P.D., HTN (Hypertension) and DM (Diabetes Mellitus) since 10 years. This history of previous ailment was disclosed allegedly by daughter of the complainant. Of course, complainants daughter at Exhibit G gave letter to Insurance company and she stated that she do apologize for the miscommunication to all concerned parties for filling the form without adequate knowledge of the patient.
We are finding that the Insurance company had rightly repudiated the claim for the simple reason that the complainant was admitted in Holy Family Hospital for the alleged ailment of Sleep Apnoea syndrome with Respiratory failure during the fifth year of policy and the documents submitted by the patient like discharge card suggested that she was suffering from COPD/Bronchial Asthma for the last 30 years and also from Hypertension and Diabetes Mellitus since 10 years and according to Insurance company Sleep Apnoea syndrome with Respiratory failure was the direct complication of her ailment of COPD/Bronchial Asthma. Therefore, in our view the Insurance company/O.P. herein had rightly repudiated the claim of the complainant and we are finding no substance in the complaint lodged by the complainant. It is pertinent to note that the information about her ailment was given to the hospital by the complainants own daughter and her daughter by way of damage control exercise wrote letter to the Insurance company saying that she was not aware of the mothers ailment. She was not a doctor and she had miscommunicated about the ailment of her mother to Holy Family Hospital. This was clearly an after thought.
Complainant produced on record certificate of Dr.Sunanda Anand dated 03/8/2007 in which she mentioned that Sleep Apnoea syndrome coupled with Respiratory failure has nothing to do with Asthama. But that certificate was procured by the doctor from the complainant just in an attempt to get approved mediclaim bill submitted to the Insurance company. So that certificate cannot be attached any importance. In the totality of the circumstances, we are finding that the Insurance company had rightly repudiated the claim, relying upon clause 4.1 of the policy since Sleep Apnoea disease was direct complication of COPD/Bronchial Asthma. She was also suffering from Diabetes Mellitus since 10 years and she has suppressed this ailment while filling proposal form and since it was pre-existing disease, under clause 4.1 the claim was rightly repudiated by O.P.no.2 on behalf of O.P.no.1.
Contract of insurance is the contract of good faith of both the parties. Insured is under contractual and legal obligation to make true and full disclosure of the information within his personal knowledge. If he is suffering from any ailment or disease while purchasing policy, he has to disclose in the proposal form itself that he has presently such and such ailment. If he suppresses his ailment and purchases policy then that is an act of bad faith. Person who is guilty bad faith cannot be heard to say that he or she had not deliberately suppressed his/her ailment while purchasing the policy. In the instant case, complainant was fully aware that she was suffering from Bronchial Asthma and Diabetes Mellitus. She suppressed this fact and purchased mediclaim policy and lodged the claim for reimbursement of medical hospitalization charges but she had not disclosed anything in the proposal form she had submitted to the Insurance company. So whatever she stated in the proposal form as to the state of her health was palpably untrue to her own knowledge and suppression of material fact is clearly proved from the entries made in the discharge card issued by Holy Family Hospital, Bandra and, therefore, the claim was rightly repudiated by the Insurance company, since contract of insurance is nothing but the contract of userrimaefidel, in the circumstances, we are of the view that consumer complaint as filed by the complainant is devoid of any merits, since we hold that there was justifiable ground for repudiation of the claim by the Insurance company. In the circumstances, we record our finding on point no.4 in the negative and pass following order:-
ORDER Consumer complaint stands dismissed.
Parties are left to bear their own costs.
Copies of the order be furnished to the parties.
Pronounced Dated the 03 December 2010 [Hon'ble Mr. P.N. Kashalkar] PRESIDING MEMBER [Hon'ble Mrs. S.P.Lale] Member Ms.