State Consumer Disputes Redressal Commission
Prabhatha Shetty vs Apollo Munich Health Insurance Co. Ltd on 25 July, 2022
1
Appeal No.963/2019
Date of filing: 18.06.2019
Date of disposal: 25.07.2022
BEFORE THE KARNATAKA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)
DATED: 25.07.2022
PRESENT
Mr.K.B SANGANNANAVAR : JUDICIAL MEMBER
Mrs. DIVYASHREE M : LADY MEMBER
APPEAL NO.963/2019
Mr.Prabhatha Shetty,
S/o Late Shekar Shetty,
Aged about 60 years,
Residing at Flat No.204, 2nd Floor,
KRITHI SAGAR Apartment,
Vidyaratna Nagar,
Manipal - 576119,
Udupi. .....Appellant/s
(Advocate - Dr.V.C Jagannath)
V/s
Apollo Munich Health Insurance Co. Ltd.,
Apollo Hospitals Complex,
Jubilee Hills, Hyderabad,
Telangana - 500033.
By its Managing Director.
Branch Office at
Canara Bank, Circle Office Building,
Balmatta Road,
Mangalore - 575001. .....Respondent/s
2
Appeal No.963/2019
ORDER
Mr.K.B SANGANNANAVAR, JUDICIAL MEMBER This is an Appeal filed U/s.15 of C.P Act, 1986 by the complainant in CC No.194/2017 on the file of Dakshina Kannada District Consumer Disputes Redressal Forum, Mangalore, aggrieved by the order dated 16th April 2019.
2. The brief facts of the case in nutshell would be, complainant availed the services of OP through Apollo Munich Health Insurance which covers hospitalization and medical expenses of the family members of the complainant and all medical expenses, including hospital stay, room charges, intensive care charges, doctors charges etc. On 12.08.2016 wife of complainant Mrs.Sapalika Prabhatha Shetty was admitted to Gandhi Hospital, Udupi for treatment of high fever, severe headache, vomiting, shivering and dyspnoea. On 12.08.2016 she was referred to Adarsha hospital. She was diagnosed with mass lesion existed in the right frontal region of her brain. It was tumor of malignant nature and was surgically removed on 16.08.2016. She was discharged from the hospital on 22.08.2016 and thereafter she underwent post-operative treatment at A.J Hospital. Complainant was insured with OP sought for cashless benefits, was rejected alleging 'Incorrect good health declaration'. Later on terminated the policy. In this regard legal notice dated 24.03.2017 was caused demanding OP to pay Rs.3,50,041/- being the amount spent by the complainant towards his wife treatment. OP did not reply. The 3 Appeal No.963/2019 health conditions did not improve and was again admitted to Adarsha Hospital for treatment. She was diagnosed for the first time with secondary brainstem dysfunction with midline posterior fossa GBM & underwent treatment. On 26.04.2017 she was kept in ventilator and was died on 26.04.2017. The complainant in all has spent Rs.8,05,026/- and being aggrieved by refusal and deficiency of service on the part of OP, raised consumer complaint on the file of Forum below and the Forum below held enquiry, received evidence of CW-1, RW-1, EX.C-1 to 14 and Ex.R-1 to R-7 thereby dismissed the complaint which is now in this Appeal on the following among other grounds, the Forum has rejected the complainant claim only on one point that OP has collected some IPD records found that his wife had history of breast lump excision as per Ex.R-4. However as admitted, the said breast lump has nothing to do with the treatment undergone by his wife. There was no suppression of any fact. The Forum has erred in fact that as per the policy the waiting period for the pre-existing disease is 36 months prior to taking the policy. The policy was taken on 23.06.2016. The alleged breast lump was of the year 2012. The Forum erred in not noticing the fact that 'Declaration & Warranty on behalf of OP all persons to be insured' is "not suffered from any major disease". No evidence was placed by OP to show that breast lump is a major disease. There is no suppression of any vital information. The health condition of his wife is good on the date of insurance and she had no major disease 36 months prior to the date of insurance. The Forum below though accepts that there need not be any nexus between pre-existing disease and present 4 Appeal No.963/2019 illness, still accepted that the insurer is entitled to repudiate the claim is contrary to the facts and law is liable to be set aside.
3. The Commission heard learned counsel on record. We examine the grounds of Appeal and impugned order passed by Forum below and now to examine whether impugned order does call for any interference for the grounds set out in the appeal memo?
4. It is an undisputed fact that complainant purchased group health individual insurance policy and to that effect OP had issued a certificate of insurance health dated 23.06.2016 in order to cover health and hospitalization expenses of the complainant and members of his family. It is an undisputed that the policy entitles the complainant to be indemnified by OP towards the expenses incurred on hospitalization and also covers the family members of the complainant. The claim question raised by the complainant having been obtained group policy from OP is in respect of his wife Smt.Sapalika Prabhath Shetty, who was suffering with mass lesion was diagnosed to be a tumor of malignant nature necessitating surgical intervention, is removed surgically. However the OP rejected the cashless benefits under the head "Incorrect good health condition Declaration". According to complainant, his wife was diagnosis with mass lesion existed in the right frontal region of the brain for the first time on 13.08.2016 after purchase of policy from OP. It is case of OP that in the investigation report, it is noted that Mrs.Sapalika Prabhath Shetty, diagnosed to have benign 5 Appeal No.963/2019 fibrocystic lump disease in the year 2012 but it was not revealed or disclosed in the proposal form while availing the policy. Had complainant disclosed this material facts as to her such health conditions, OP would not have issued the policy. The Forum below to ascertain the genuineness of the claim of OP recorded reasons. OP has done in collecting some IPD records found complainant's wife had history of breast lump excision as per Ex.R-4 and thereby held it is established law that there need not be any nexus between pre-existing disease and present illness. If the vital information has been withheld from the proposal form then the insurance company is entitled to repudiate the claim even if there is no nexus between the two and to fortify such view relied on decision of the Hon'ble National Commission in case of LIC of India Vs. Ramamani Patra 2015(3) CLT 487 wherein held:
"Consumer Protection Act, 1986 Section 2(1)(g) Insurance Claim - Repudiation of claim on ground of pre-existing non- disclosure of disease - Insured not disclosed the pre-existing in proposal form - Death of insured - Plea raised by Complainant that there is no nexus between the accidental death and disease suppressed - Held, that the duty of the Consumer Fora under obligation not to find out whether there is a nexus between the accidental death and disease suppressed by the insured - No connection with the grant of compensation - The nexus point has to be eschewed out of consideration otherwise the ubberimae fide shall stand violated - Revision Petition allowed."
5. Let us examine whether findings recorded by Forum below are justified from the facts placed by parties to the complaint. Learned counsel for complainant submits, RW-1 in her affidavit evidence in para-6 has stated, based on the IPD record collected 6 Appeal No.963/2019 during the investigation, it was noted from the anesthesia notes during surgery that the patient has history of Breast lump excision under GA 4 years back with Bronchial asthma 1 episode 1 year and Migraine with spondylitis. Thus this evidence deposed by RW-1 if accepted, as it is wife of complainant has history of Breast lump excision under general anesthesia 4 years back and further counsel brought to the notice of Commission as per Ex-R1 the policy obtained by complainant from OP provides for all treatments within the first 30 days of cover except any accidental injury, 1 year waiting period for specified illness/conditions that existed prior to taking the policy. Thus, in this case evidence of RW-1 and this policy conditions would be said play a vital importance to decide on the complaint.
6. Admittedly complainant had purchased Group Health Individual Policy and OP had issued certificate of insurance dated 23.06.2016. As per the evidence of RW-1 history of breast lump excision under GA held 4 years back. Admittedly Smt.Sapalika Prabhath Shetty, is a member under health group insurance policy with OP with sum assured Rs.10,00,000/- and the complainant has her husband is also a nominee has taken policy on 23.06.2016 and the alleged breast lump was of the year 2012. As per evidence of RW-1 which is prior to 36 months has to be held her health condition was good on the date of insurance and she had no major disease was not perceived by Forum below. Learned counsel for Appellant/complainant to find support has placed a reliance of the Hon'ble Apex Court of India in Appeal (Civil) 4186-87/1988 in a 7 Appeal No.963/2019 case of Life Insurance Corporation of India & Ors. Vs. Smt.Asha Goel & Anr. decided on 13th December 2000 wherein held on page- 5 (a) the statement must be on a material matter or must suppress facts which it was material to disclose; (b) the suppression must be fraudulently made by the policy holder; and (c) the policy holder must have known at the time of making the statement that it was false or that it suppressed facts which it was material to disclose. And to find support as to the clause of the policy does not apply to the insured, as the period of 48 months has lapsed both prior to taking of the first policy and even after the subsequent renewals, placed a strong reliance of the Hon'ble National Consumer Disputes Redressal Commission, New Delhi, in the case of Star Health & Allied Insurance Co. Vs. Balbir Kumar & Anr. decided on 28th March 2019, wherein held in para-9 & 10 as under:
9. ........
"Pre-Existing Disease means any Condition, ailment or injury or related condition(s) for which the insured person had signs or symptoms, and/or were diagnosed, and/or received medical advice/treatment within 48 months prior to the insured person's first policy with any Indian insurer"
Further Pre-Existing Diseases as defined in the policy until 48 consecutive months of continuous coverage have elapsed; since inception of the first policy with any Indian Insurer. However, the limit of the Company's liability in respect of claim for pre-existing diseases shall be limited to the sum insured under the first policy with any Indian Insurance Company."
10. It is evident from the above Clauses that only those diseases which are existing within 48 months prior to the insured person's first policy would be excluded from the 8 Appeal No.963/2019 coverage period. In the instant case even assuming for the sake of argument that the Complainant did not declare that his wife has undergone PTCA stenting on 30.07.2007, admittedly the first Policy was taken on 27.09.2011, which is four years prior to the subject policy. The medical record also shows that the Complainant's wife Smt.Renu Dang, who is also an insured, was admitted for angiography only on 05.10.2015 and was discharged after one night of hospitalization on 06.10.2015. Therefore the question of pre-existing disease as defined in the Clauses of the Policy does not apply to the insured as the period of 48 months has lapsed both prior to the taking of the first Policy and even after the subsequent renewals.
And the above ratio laid down is squarely applicable to the facts of the case considering evidence of RW-1 who has stated patient has history of breast lump 4 years back it does mean insured obtained policy prior to 36 months and even prior to renewal of the said policy. The condition under policy is 36 months whereas PW-1 stated 4 years ago does mean prior to 48 months.
7. Learned counsel has also placed a decision of the State Commission Punjab in CC No.401/2016 decided on 19.09.2017 in case of Ruldha Singh Vs. United India Insurance Company Limited., wherein held in para-13(9) & (10), 17, 18, 19, 20 & 25 are as under:
9............. Therefore, the only fact established by the above reports is that the petitioner prior to obtaining insurance policy was having history of hypertension. This, however, does not lead to conclusion that petitioner was also having previous history of heart problem. Therefore, the insurance claim submitted by the complainant for treatment of his heart problem cannot be termed as a claim in respect of a 9 Appeal No.963/2019 pre existing disease. Thus, repudiation of insurance claim by the respondent opposite party is not justified.
10. .......... Hypertension is a common ailment and it can be controlled by medication and it is not necessary that a person suffering from hypertension would always suffer a heart attack. Therefore, the argument advanced by respondent is far fetched and is liable to be rejected."
17. And the Hon'ble Delhi State Consumer Disputes Redressal Commission, New Delhi in case Life Insurance Corporation of India Vs. Sudha Jain 2007(2) CLT 423 has drawn conclusions in para 9 of the order and the relevant clause is 9(iii), which is reproduced as under:-
"9(iii) Malaise of hypertension, diabetes occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in and out of the house and are controllable on day-to-day basis by standard medication and cannot be used as concealment of pre-existing disease for repudiation of the insurance claim unless an insured in the near proximity of taking of the policy is hospitalized or operated upon for the treatment of these diseases or any other disease."
18. Further in case of New India Assurance Company Limited Versus Smt.Usha Yadav & others 2008(3) R.C.R (Civil) 111, the Hon'ble Punjab & Haryana High Court expressed its anguish and observed as follows:-
"It seems that the Insurance Companies are only interested in earning the premiums, which are 10 Appeal No.963/2019 rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance Companies make the effected people to fight for getting their genuine claims. The insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus, pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy."
19. Thus, keeping in mind the above citations, it is also relevant to mention here that Section 19 of the General Insurance Business (Nationalization) Act, 1972 states that it shall be the duty of every Insurance Company to carry on general insurance business so as to develop it to the best advantage of the community. The denial of medical expenses reimbursement is utterly arbitrary on the ground that disease in question was pre-existing disease. It is mere an excuse to escape liability and is not bona fide intention of the insurance company. Fairness and non-arbitrariness are considered as two immutable pillars supporting the equity principle, an unshakable threshold of State and public behavior. Any policy in the realm of insurance company should be informed, fair and non-arbitrary. When the insurance policy has exclusions/conditions to repudiate the claim or limit the liability, the same must be specifically brought to the notice of the insured and are required to be got signed to show that such exclusions and conditions have been brought to his/her notice.
20. ........... Insurance contracts are standard form contracts and are drafted by the insurance company and 11 Appeal No.963/2019 as such, insurance company is at higher footing than the insured.
25. Thus, we are of the opinion that the claim of the complainant was illegally and arbitrarily rejected by the TPA, against the aforesaid instructions of the IRDA.
It was held in the case of PNB Metlife Insurance Company Vs. Vinita Devi on 24th September 2018 by the Hon'ble National Consumer Disputed Redressal Commission, New Delhi, in para-8 as under:
8. .......... In the instant case the Insurance Company has not produced the affidavit of the concerned doctor nor did the said doctor answer any interrogatory by way of evidence before the Fora below. At the cost of repetition, it is reiterated that the burden to prove that the life assured was suffering from any pre-existing disease lies with the Insurance Company and the Insurance Company had not filed any documentary evidence or Affidavit of the treating doctor in support of their contention.
Hence we find force in the contention of the Counsel of the Complainant that the insured was never treated by the said doctor Y.K Thakur of Hazipur as the reports are not substantiated by any affidavit of evidence. In the light of this observation, we are of the considered view that the aspect of nexus between the kidney disease and heart attack is of no relevance in the instant case. The State Commission has rightly placed reliance on the prescription given by Dr.Mihir Chandra, in whose treatment the Insured was before his death and in the said prescription it is only stated that the insured had breathlessness and lost consciousness and thereafter died. There is absolutely nothing in the patient's history record or in the prescription which even remotely suggests either liver cirrhosis or alcoholism or any kidney disease.
12 Appeal No.963/2019and in yet another decision of Hon'ble National Commission in a case of M/s.Tata AIG General Insurance vs. Ms.Pooja Gupta decided on 19th January 2011 in para-7 wherein held as under:
7. ......
The onus lies on the insurer to prove firstly that the insured knowingly concealed this material fact from the insurer and secondly that the pre-existing condition has nexus with the medical condition eventually suffered by the insured for which the claim has been raised.
8. Thus from the above decisions of the Hon'ble Apex Court of India and Hon'ble National Commission, on facts of the case we are of the view that they are squarely applied to the case on hand considering policy terms and conditions coupled with evidence of RW-1 since OP/Respondent failed to prove that the complainant insured knowingly concealed the material facts from the insurer and that knowingly failed to disclose pre-existing condition has nexus with the medical condition eventually suffered by the insured for which the claim has been raised. In such view of the matter, we are of the view that the repudiation of the claim of complainant is not justified, in other words Commission or omissions on the part of OP amounts to deficiency of service. Accordingly impugned order is held contrary to the facts and law is liable to be set aside. In the result Commission proceed to allow the Appeal. Consequently set aside the order dated 16th April 2019 passed in CC No.194/2017 on the file of Dakshina Kannada District Consumer Disputes Redressal Forum, Mangalore and 13 Appeal No.963/2019 directed OP/Respondent to settle the claim and do pay Rs.1,00,000/- as compensation for the mental agony and hardship caused and Rs.25,000/- towards litigation cost within 60 days from the date of receipt of this order. It is hereby ordered that complainant is entitled for interest on settled claim amount @ 6% p.a from the date of repudiation till realization.
9. Provide copy of this order to the District Commission as well as parties to the Appeal.
LADY MEMBER JUDICIAL MEMBER vln*