State Consumer Disputes Redressal Commission
Assumption Sebastian D'Souza vs Bharati Axa General Insurance Company ... on 12 September, 2023
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI-GOA
In the matter of First Appeal 70 of 2019 in Consumer
Complaint 37of 2019.
Before: Dr. Nagesh S. Colvalkar, Member
Adv. Ms. Rachna A. M. Gonsalves, Member
Shri Assumption Sebastian D'Souza,
Flat No. AS-2, Karapurkar Valley,
View Apartments, 20 Point, Socorro,
Porvorim, Bardez, Goa.403401. .....Appellant
V/s
Bharti AXA General Insurance Company Ltd.,
Millennium Star Building,
Office No. 09, Near Ruby Hall Clinic,
Dhole Patil Road, Pune,
State of Maharashtra. 411001. .....Respondent-1
Bharti AXA General Insurance Company Ltd.,
5th Floor, Rani Pramila Arcade,
18th June Road, Panaji-Goa. 403001. .....Respondent-2
Adv. Shri R. Gomes Pereira present for Appellant.
Adv. Shri J. Lopes present for Respondents.
DATE: 12/09/2023
JUDGMENT
[per Dr. Nagesh S. Colvalkar, Member]
1. By this Judgment and Order we hereby dispose off the First Appeal filed U/s 15 of CPA, against the Judgment and Order dated 30/09/2019 passed in Consumer Complaint No. 37/2019 of District Commission, North.
12. Appellant is the original Complainant. Respondents are the original Opposite Parties.
3. Appellant states in short as under:
i. The Appellant takes exception to the order dated 30/09/2019 whereby the Consumer Disputes Redressal Commission dismissed his Complaint for a direction to the Respondent to reimburse medical expenses and retrospectively renew his insurance policy on the ground that the Complaint is not maintainable being barred by res judicata.
ii. The Appellant had purchased a 'Smart Health Insurance Policy' (Policy no: BH/Q0054659/11/07) from the Respondent which is a general insurance company, for the period 26/07/2013 to 25/07/2014. The insured/assured amount was Rs.2 lakh.
iii. The said policy was renewed (Policy no:
BIH/Q0069123/11/08) for the period 27/08/2014 to 26/08/2015 and once again renewed (Policy no: BIH/Q0069/123/11/08) for the period 27/08/2015 to 26/08/2016.
iv. The Appellant who was diagnosed with rectal carcinoid anal cancer) on 27/03/2014 (i.e. during the subsistence of the said policy), made two claims with the Respondent, both of which were declined by the Respondent citing reasons, such as non-disclosure of a material fact before purchase and pre-existing disease.
v. Appellant submits that the first complaint finally disposed of by this Hon'ble Commission in First Appeal No. 139/2017 by order dated 13/07/2018. The Respondent, was inter alia, directed to make payments 2 towards the said two claims. In addition, this Hon'ble Commission in its said order held as under:
....
10. ...."We are of the view that the Complainant was not having pre-existing ailment of rectum or of colon".
12. ....."Hence, it has to be held that the Complainant had disclosed to the executive of the OP about his coindition of Diabetes Mellitus and Hypertension, to be mentioned in his proposal form, if necessary but the said executive did not do so".
Hence the policy of the Complainant cannot become null and void for non-disclosure of any material particulars. The first claim, in our view, has been wrongly repudiated by the OP."
14...."Insofar as the original policy No. BIH/Q0054659/ 11/07 is concerned, all that is already discussed earlier applies and it cannot be said that the said policy is null and void on account non-disclosure of material facts. By letter dated 26/08/2014, the Complainant had clarified to the OP that the special instructions for renewal dated 21/08/2011 should be read as diabetes mellitus and hypertension history since April, 2013. The renewed policy no. BIH/Q006913/11/08 was issued on 01/09/2014 for the period from 27/08/2014 to 26/08/2015. Hence there is no question of non- disclosure for the purpose of renewed policy. Hence, the second claim also cannot be denied on the ground of pre- existence illness or non-disclosure of material facts".
15. During the course of oral arguments, Adv. Lopes, Ld. Counsel for the OP contended that in case the Complainant is granted his first claim on being detected with anal cancer, he would not be entitled to any further 3 claim for the same illness until 48 months of continuous coverage have elapsed since inception of the first policy with the Company, on account of exclusion clause No. 6.1...."With regard to the hospitalization due to anal cancer, the contention of the Ld. Counsel for the OP is not acceptable. The clause No. 6.1 deals with 'pre- existing diseases/illness/injury/conditions' which means the diseases/illness/injury/conditions existing prior to taking the policy and not the diseases, etc contracted for the first time after obtaining the policy..."
vi. Despite appropriately taking up of the matter with the Respondent, it failed and neglected to permit renewals of the cancelled policy and to reimburse the medical expenses incurred by the Appellant.
vii. Appellant states that the District Commission failed to appreciate that the order dated 13/07/2018 clearly holds that the Appellant had no pre-existing ailment of rectum or of colon and that the policy of the Appellant could not have become null and void for non-disclosure of any material particulars. These being rendered the cancellation of the said policy was illegal and there was no need for any further declaration to that effect.
viii. There was no legal obligation on the Appellant to seek leave of the Commission to apply for reimbursement of the claim in respect of the cancelled policy. Once it was held that the said policy could not have become null and void, its cancellation on that count was clearly illegal and the Appellant was free to apply for re- imbursement of his medical expenses incurred during the subsistence of the said policy.
ix. Appellant stated that the Consumer Protection Act is a beneficient legislation for the benefit of lay consumers;
4and a strict approach in construing the same will deviate the very object it seeks to achieve. It is also pertinent that the Complaint was filed by the Appellant without any assistance from an advocate.
4. Respondents states in short as under:-
i. That the Insurance policy is subject to terms and conditions of the insurance policy.
ii. Respondents submits that the Consumer Complaint No. 37/2019 filed by the Appellant is the second complaint and the first complaint on the same cause of action and the same prayer is already decided by this honorable Commission in First Appeal No. 139/2017 in the Consumer Complaint No. 50/2016. The policy is subject to the terms and conditions of the Insurance Policy.
iii. Respondent states that the Appellant had taken policy from the Respondent, Smart Health Basic Policy bearing policy no.BIH/Q0054659/11/07 for a period from 26/7/2013 to 25/7/2014.
iv. Respondent submits that the Respondent received the claim bearing insurance claim no 2515754 of the Appellant along with the discharge cards and medical records for an amount of Rs.2,20,000/-.
v. Respondent further states that the Appellant has committed breach in the terms and conditions of the insurance policy by non disclosing the pre-existing diseases and that the Respondent had communicated the repudiation of the policy to the Appellant vide claim repudiation letter dated 7/7/2014.5
vi. That after going through the claim form and medical papers/discharge cards of the Appellant it was found that the Appellant was admitted at Manipal Hospital on 15/12/2014 was diagnosed as rectal carcinoid-post rectal dissection status, underwent laparotomy/lleostomy closure/colostomy reciting/ Incisional Hernia repair under GA and discharge on 27/12/2014. The Appellant is covered under Bharti Axa Smart Health Policy since 26/7/2013. As per the past discharge summery (25/3/2014 to 28/3/2014), patient is a K/C/ODM,HTN since April 2013 and had history of bleeding per rectum since one year. Since the ailment which is pre existing prior to the inception of the policy is not covered, claim stand repudiated under exclusion 6.1 of the policy and also per non disclosure of the fact in the proposal form is noted. Hence claim stands repudiated at general conditions 6.1 of the policy. During the hospitalization, patient underwent inguinal Hernia repair which is not covered for the first two years from the inception of the policy. Hence stands repudiated under exclusion 6.4.
vii. That the claim of the Appellant was not payable as per the terms and conditions of the policy (pre existing disease is not covered for 4 years of inception of the policy) and that the Respondent has intimated about the non payment of the claim on the grounds mentioned above through email. That the Respondent also informed the Appellant that if the Appellant is not satisfied the Appellant may approach office of the insurance ombudsman.
viii. The Respondent submits that as per the Consumer Protection Act the State Commission has no power to review its own order and the same is held in Supreme 6 Court Judgment Rajeev Hitendra Pathak V/S Achyut Kashinath Karekar.
ix. The Respondent submits that the complaint which is filed by the Complainant in respect of the medical expenditure which was incurred in January 2016 and the complaint is filed in the year 2019 and hence barred by limitation under Section 69 of Consumer Protection Act 2019 as the complaint is filed after two years from the date of actual expenditure of the bill.
x. Respondent states that the complaint No. 37/2019 was rightly dismissed by the Hon'ble District Consumer Commission, North as there is no deficiency on part of the Respondent and on the ground that the said complaint is not maintainable being barred by the Res Judicata.
xi. The Respondent submits that the second complaint which is filed in respect of the policy commencing from 27/08/2015 to 26/08/2016 which is already decided by this Hon'ble Commission and the second complaint on the same policy is not maintainable.
xii. Respondent states that from the pleading and the suppression of the fact it is clear that Appellant has not approached this State Commission with unclean hand and is trying to mislead the Hon'ble Commission by false averment in the Appeal.
5. In view of the background as described above, and after having perused Written Submissions and after hearing Oral Arguments of both sides, we proceed to list below our:
7OBSERVATIONS AND FINDINGS
a) The Complainant in their Written Arguments on Preliminary objection stated that the principal grievance in the Policy" (Policy No. BIH/Q0069/123/11/08) taken by the Complainant for the period commencing on 27/08/2015 and ending on 26/08/2016. The said policy was unilaterally cancelled by the Opposite Party in January 2016, without giving any reasons therefore.
b) The Opposite Party declined two prior claims of the Complainant in Consumer Complaint No. 50/16 before this Commission which primarily concerned two prior claims were declined by the Opposite Party without giving proper reason.
c) The Complainant stated that the Hon'ble State Commission by its Order dt. 13/07/2018, in the said Appeal held that, the Complainant was not having any pre-existing ailment of rectum or of colon and the policy of the Complainant cannot become null and void for non disclosure of any particulars.
d) That the Opposite Party cannot continue to justify the cancellation of the Complainants policy after the said judicial pronouncement. Due to the illegal cancellation of his policy the Complainant was unable to renew the said policy for the periods mentioned in the complaint.
The Complainant was also unable to register the claims listed in the complaint with Opposite Party. It is only on receiving the certified copy of the said Order that the Complainant could register the said claims with the Opposite Party on having done so, the Opposite Party failed and neglected to permit renewals of the cancelled policy and to reimburse the medical expenses incurred 8 by the Complainant. Therefore, the Complaint is maintainable and deserves to be allowed.
e) That there is no proof of the premium paid towards the insurance policy by the Complainant. The Complainant could have very well sought relief to renew the cancelled policy in the first complaint. No one had stopped him from doing so. Moreover the policy is cancelled and the Hon'ble State Commission has refused to declare the cancellation of the policy as illegal. Hence the Complainant as of today does not have a subsisting policy with the Opposite Party. The Complainant has not shown that by law, the Opposite Party is bound to renew the policy.
f) In view of above facts and circumstances we pass the following:
ORDER i. The Appeal is dismissed with no order as to costs.
Pronounced in Open Court.
Proceedings in this matter stands closed.
[Dr. Nagesh S. Colvalkar] Member [Adv. Ms. Rachna A.M. Gonsalves] Member SN 9