State Consumer Disputes Redressal Commission
The Branch Manager, The New India ... vs K.K. Shanmugam, S/O. K.Kalichettiyar, ... on 27 April, 2012
THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI. Present: Thiru.A.K.Annamalai, Presiding Judicial Member Thiru.S.Sambandam, Member. F.A.No.358/2011 [Against order in C.C.No.57/2010 on the file of the DCDRF, Trichy] FRIDAY, THE 27th DAY OF APRIL 2012. The Branch Manager, The New India Assurance Co. Ltd., 66, W.B. Road, Trichy-8 .. Appellant/opposite party /Vs/ K.K. Shanmugam, S/o. K.Kalichettiyar, 11/6, Central Samynaicken Street, Triplicane, Chennai. .. Respondent/Complainant The Respondent as complainant filed a complaint before the District Forum, against the opposite party praying for the direction to the opposite party to pay a sum of Rs.1,87,445/- towards medical expenses from the mediclaim policy payable and Rs.25,000/- towards compensation for deficiency of service and mental agony and for costs. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dated 3.12.2010 in C.C.No.57/2010. The appeal coming before us for hearing finally on 16.4.2012, upon hearing the arguments of appellant side and perused the documents, written submissions as well as the order of the District Forum, this Commission made the following order :- Counsel for Appellant/Opposite party : M/s. Elveera Ravindran, Advocate. Counsel for Respondent/Complainant : M/s. S.Murugaian, Advocate. ORDER
A.K.ANNAMALAI, PRESIDING JUDICIAL MEMBER
1. Opposite party is the appellant.
2. The complainant claimed a sum of Rs.1,87,445/- towards medical expenses from the mediclaim policy payable and Rs.25,000/- towards compensation for deficiency of service and mental agony and for costs.
3. Complainant availed mediclaim policy from the opposite party for himself and for his family members from the year 2004 and in the year 2007 the policy was renewed with the enhanced amount for Rs.3,00,000/- towards himself and for his wife and Rs.1,00,000/- towards his children and also availed the benefits for the year up to 2008. During the period of enhanced policy in the year 2009 when the complainant made a claim for Rs.94,413/- on 13.2.2009 and Rs.93,032/- on 21.3.2009 in all for Rs.1,87,445/-, the opposite party sent a letter on 25.3.09 enclosing a cheque for Rs.398/- only towards full settlement and as the complainant has not accepted the same after giving legal notice come forward with this consumer complaint praying for the reliefs as above.
4. The opposite party denied the allegations in their written version and contended since the claim was made by the complainant for the subsequent treatment with the enhanced rate of claim as per the policy subsequently renewed for the year 2009 and as those claims were related to the pre-existing disease the allowable amount alone was granted and thereby due to suppression of facts at the time of renewing or enhancing of the policy amount as the pre-existing disease was not disclosed as per the terms and conditions of the policy the claim was not honoured. Hence there is no deficiency on the part of the opposite party.
5. Based on both sides materials and after an enquiry the District Forum allowed the complaint and directed the opposite party to pay Rs.1,87,445/- towards the claim amount with 8.5% interest and Rs.5,000/- as compensation for the loss caused to the complainant and Rs.1,000/- as costs.
6. Aggrieved by the order of the District Forum, the opposite party come forward with this appeal and among other things it is contended that the complainant was having mediclaim policy from the year 2004 and from the year 2007, the claim was enhanced from Rs.1,00,000/- to Rs.3,00,000/- for himself and for his wife and up to 2008 December and in January 2009 the claim towards his wifes medical expenses were granted by the opposite party to the extent of Rs.1,00,000/- as per the terms and conditions of the policy and since the present claim was made under the policy period from 21.12.08 to 20.12.09 relating to the pre-existing disease of the complainants wife eligible amount of Rs.1,00,000/- was granted and for the remaining amount the claim was not entertained and since the complainant suppressed the material facts at the time of renewing the policy regarding the pre-existing disease as per the conditions 6(1) of terms and conditions of the policy under Exhibit B3 the claim was repudiated. But the District Forum without considering the same erroneously allowed the complaint even as per the admission made by the complainant a sum of Rs.99,602/- was already sent directly to the hospital and a sum of Rs.398/- by way of cheque sent to the complainant which was alleged to have been returned by the complainant. If at all if any amount payable by the opposite party must be only for Rs.87,445/- alone is payable and hence the complaint to be dismissed.
7. While considering both sides arguments, averment and contentions it is the admitted case of both sides that the complainant was having mediclaim policy from the year 2004 for himself and for his family members and also availing benefits for his wifes treatment under various claim and in the year 2007 the policy was renewed with enhanced assured amount for Rs.3,00,000/- for himself and for his wife and Rs.2,00,000/- to his children and accordingly for the treatment of his wife during the period of policy 21.12.08 to 20.12.09, he made claim on 13.2.09 for Rs.94,413/- and on 21.3.09 for Rs.93,032/- in all for Rs.1,87,445/- as per the claim under Exhibit A8 and A10 for which the opposite party/appellant contended that they have settled a sum of Rs.1,00,000/- only by sending Rs.99,602/- directly to the hospital and the balance of Rs.398/- by way of cheque to the complainant as per the document under Exhibit B7 which relates to the claim made for Rs.94,413/- dated 13.2.09. For this the complainant has stated that he has returned the cheque for Rs.398/- and admitted that the balance of Rs.99,602/- was directly sent to the hospital in his proof affidavit. The opposite party has not come forward to explain when the claim itself was made for Rs.94,413/- under the claim form Exhibit A8, how the sum for Rs.1,00,000/- was derived and whether the total amount derived was included for the claim made on 21.3.09 for Rs.93,032/- and as per the terms and conditions of the policy after taking in to consideration of both claims for total sum of Rs.1,87,445/- by granting Rs.1,00,000/- alone the remaining amount was disallowed was not informed and intimated to the complainant and under Exhibit B4 claim form submitted it is mentioned that from May 2007 the cancer was inexistence. The subsequent settlement relating to the two claims for the dates 13.2.09 and 21.3.09 except to state that the sum of Rs.1,00,000/- was settled the other documents are not filed.
8. While perusing the terms and conditions of the policy under Exhibit B3 in condition No.6-0 under caption Renewal of Policy it is stated as follows :-
If the policy is to be renewed for enhanced sum insured then the restriction as applicable to a fresh policy will apply to additional sum insured as if a separate policy has been issued for the difference. In other words, the enhanced sum will not be available for an illness, disease, injury already contracted under the proceeding policy periods.
Unless in our case the opposite party claimed even though the complainants wife had cancer in the year 2007 itself as per the discharge summary under Exhibit A7 and claim form Exhibit B4. The same was not informed during the enhancement of the renewal policy in the year 2007 or subsequently as per the medical claim form under Exhibit B4 regarding any other existing disease a reply was given as nil among with other details and thereby the fact was suppressed even though the earlier claim also made for the same nature of cancer treatment which became suppressed fact in view of the continuation of renewal of enhanced policy and thereby only admissible amount of Rs.1,00,000/- was alone granted. For this they relied upon condition No.3.1 under Exhibit B3 policy condition apart from clause 6 (c) under condition No.3.1 regarding definition pre-existing condition any sickness illness which is existed prior to the effective date of this insurance whether or not the insured per had any knowledge of some times related to the sickness/illness. Complications arising from a pre-existing condition will also be considered as part of that pre-existing condition. On this basis it is contended the claim was for the excess amount rejected. Condition No.4.1 , it is stated, 4.1. Pre-Existing disease/condition : All diseases/injuries/conditions, which are pre-existing when the cover incepts for the first time (except as shown hereunder).
Any complication arising from pre-existing disease/ailment/injury will be considered as a part of pre-existing condition. This exclusion will be deleted after four consecutive claim free policy year provided there was no hospitalization for the pre-existing disease/ ailment/condition/injury during the said four years of insurance with our company.
Compulsory coverage for specific Pre-existing conditions On payment of additional premium, which is compulsory for persons suffering from the pre-existing conditions Diabetes mellitus and Hypertension these specific pre-existing conditions only are covered in the following manner :-
1st Year : No claim 2nd year :
No claim 3rd year : 50% of admissible claim or 50% of the sum insured set for the individual whichever is less.
4th year : 75% of admissible claim or 75% of the sum insured set for the individual whichever is less.
5th year onwards : 100% of admissible claim or sum insured set for the individual whichever less.
9. While considering the details with this reference it is the admitted case of the complainant that his wife was suffering from cancer even from the year 2007 which was disclosed in the discharge summary under Exhibit A7 in which it is stated under the column history of present illness she had received first course of chemotherapy (6 sittings with TAC) from 20.11.2007 to 4.3.2008 at V.S.Hospital, Chetput, Chennai and this is also proved under Exhibit B4 regarding the claim form for requests for cashless hospitals submitted by the complainants wife by stating nature of illness as carcinoma breast right side (stage IV) with multiple liver and bone secondaries from May 2007. It is the admitted case of both sides that the complainant was having mediclaim policy from the year 2005 onwards and in the year 2007 the policy was enhanced by paying higher premium and according to the appellant/opposite party during the course of renewal of premium with enhanced sum the complainant failed to disclose the pre-existing disease of cancer and in view of the claim made during the year 2008-09 it could be treated only as pre-existing disease for the purpose of considering the claim as per the terms and conditions of the policy under Exhibit B3 in which under clause 3.1, 4.1 and 6-c those details are established and if these conditions are accepted certainly the claim made by the complainant would become unacceptable in view of the exclusion clause. In the written version and proof affidavit of the opposite party, it is stated that even prior to the period of renewal with the enhanced sum insured the wife of the complainant had disease but the complainant had conveniently suppressed the same during renewal and complainant made claims for Rs.95,037/- during the period from 17.12.08 to 18.12.08 and Rs.90,917/- was the policy period from 21.12.08, 20.12.09 and another some for Rs.1,94,015/- from 15.1.09 to 24.1.09 for the treatment of cancer and the claim was settled for Rs.1,00,000/-. Rs.99,602/- for hospital and Rs.398/- to the complainant under Exhibit B5 and B6.
From these details it is clear even in the earlier period irrespective of the nature of disease in view of the policy term the claims were entertained and paid and in the subsequent claim also a sum of Rs.1,00,000/- was paid. Even though the claim made for Rs.1,87,445/- by restricting the same for Rs.1,00,000/- which is now disputed by the complainant against the repudiation. In view of the foregoing reasons and as per the terms and conditions of the policy as elicited under Exhibit B3, it is not in dispute that the complainant had suppressed the details of pre-existing disease as far as the claim is concerned for the period from 21.12.08 to 20.12.09 and the opposite party rightly restricted the claim to the extent of available benefits i.e for Rs.1,00,000/-
and thereby we are of the view that the complainant is not entitled to claim any other amounts as prayed for in the complaint. Since he had not disclosed the pre-existing disease of his wife in the proposal form for the renewal of policy with enhanced policy amount which is proved through the document under Exhibit B4, the claim made in which for all the questions relating to the brief history ailments answer was given as nil. Hence there was suppression of material fact and learned counsel for the appellant also relied upon the rulings reported in ,
1) 1999 AIR SCW 3226 and 2004 (7) SC 110 in which it is held as follows :-
Terms of policy have to be strictly construed The insurance policy between the insurer and the insured represents a contract between the parties. Since the insurer undertakes to compensate the loss suffered by the insured on account of risks covered by the insurance policy, the terms of the agreement have to be strictly construed to determine the extent of liability of the insurer. The insured cannot claim anything more than what is covered by the insurance policy. That being so, the insured has also to act strictly in accordance with the statutory limitations or terms of the policy expressly set out therein.
2. 2004 (7) Supreme 110 in which it is held as follows :-
Terms of policy have to be construed as it is and nothing can be added or subtracted. It is not open to interpret the expression appearing in policy in terms of common law. Judgment of National Commission in Public Type College was not a good law Insurance Company was well within its rights to repudiate the claim. However on point of equity since payment had already been made to respondents, it was not to be disturbed.
10. In view of the above rulings which are applicable in our case also we are of the view that the complainant cannot have any claim more than that what he is eligible under the terms and conditions of policy and thereby the District Forum without going deep in to the matter wrongly allowed the complaint by directing the appellant to pay the claim amount which is to be set aside.
11. In the result, the appeal is allowed by setting aside the order of the District Forum, and the complaint is dismissed. However with the direction to the opposite party to refund the sum of Rs.398/- which is said to have been returned by the complainant if already complainant not received the same. There will be no order as to costs.
S.SAMBANDAM, A.K.ANNAMALAI, MEMBER PRESIDING JUDICIAL MEMBER INDEX : YES / NO sg/B-I/aka/New Ind. Ass.