Adv. For the Complainant: - Sri Kairu Sahu
Adv. For O.P1 :- - Sri Prasanta Kumar Sahoo,Sri Radhakanta Mahakur
Adv. For O.P2 :- - Self
Date of filing of the Case :-02.11.2021
Date of Order :- 21.08.2023
JUDGMENT
Facts of the Case in nutshell :-
The complainant had opened a family health optima Insurance 2017 policy vide policy No. P/191214/01/2021/000616 dated 02/06/2020 with M/S Star Health and allied insurance company Ltd. office of the insurance forest park Bhubaneswar , District Khorda who is Op No.3 and M/S Star Health and Allied Insurance Company Ltd. Sri Balaji Complex 15 whites Road Chennai 60014 vide code No AA 006752825 dated 02/06/2020 by depositing a sum of Rs. 19,872/- as policy money which was valid from dt 02/06/2020 to 01/06/2021.
The complainant fell a victim to covid-19 and admitted to care hospital Bhubaneswar , plot No.324/ Prachi Enclave , Chandrasekharpur, BBSR. Who is OP NO. 1 in this case, where in
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the complainant underwent Medical treatment from dt. 29/04/2021 to 05/05/2021further the complainant deposited a sum of Rs.6,360/- towards medical treatment on dt. 29/04/2021 during the period of his medical treatment in care hospital the complainant spent a sum of Rs.1,06,360/- from his own pocket , the complainant had spent a sum of Rs.1,00,000/- in cash for other medical expenses during that period from his own pocket.
The complainant had intimated this matter to the OP No.2 and 3 with a request for payment of the same , but the OPS remain silent and at last on dt. 30/10/2021 the said Ops refused to pay the claimed amount to the Complainant and repudiate the claim. Hence this case.
(2) To substantiate his case the complainant relies on the following documents.
(1) Xerox copy of insurance policy certificate.
(2) Xerox copy of Diagnostic Report of the complainant given by care hospital.
(3) Xerox copy of Outpatient bill cum receipt .
(4) Xerox copy of Financial counseling form .
(5) Xerox copy of Discharge Summary.
(6) Xerox copy of Patient Provisional bill details .
(3) Having gone through the complaint it’s accompanied documents and on hearing the complainant prima facie it seemed to be a genuine case hence admitted and notice to the Ops were served and in response they appeared through their councel and filed their written version.
(4) On rival contention OP No.1 stated that the complaint filed by the complainant is not maintainable and sustainable in law it is not maintainable on the score of non-Joinder of proper parties No point of time the hospital has committed any latches , error fault or negligence on his part . There is no nexus of the OPS No.1 with other OPS in this case what alleged by the complainant as such the complainant petition otherwise bad in law and liable for dismissal against OP No.1.
OP No.2 and 3 admitted that the complainant took family Health Optima policy with them on dt.29.04.2019 which was valid from 29/04/2019 to 28/04/2020 for a sum of Rs. 10,00,000/- and renewed the said policy from 02/06/2020 to 01/06/2021 it is also admitted in Para No.3 of the written version that the complainant admitted to care hospital BBSR on
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dt.29/04/2021 and submitted a claim for cashless facility of Rs.99,000/- vide preauthorization request form along with assessment sheet dated 29/04/2021 ICP dt.29/04/2021 and 30/04/2021 and ECG dated 30/04/2021 and the complainant stayed in the hospital for 5 to 6 days for his treatment , but given weight age to the hypertension past history of the complainant which is hidden by the complainant at the time of taking the policy with OP No.2 and 3 and after scrutinizing the hospital documents submitted along with the request form , the insurance (OPS) came to conclusion that the minimum and maximum level of SPO2 level ranged from 94% to 96% . As such the complainant was not administered with the supply of oxygen during hospitalization and this fact established that the respiratory rate ranged between 18 to 21 min also other vitals of stabilities and as per the guide line of (AIMS) the claim was repudiated on dt. 03/05/2021.
(5) Heard the complainant and perused the material on record with submission and vehement denials of the learned advocate for the OP with arguments.
(6) We have heard councel of both the parties and have carefully gone through the evidence and written version available on the record and taking the facts in to consideration this commission feels and observe that.
The complainant found COVID-19 positive which reflected on the medical report given by the OP No.1 the bills of medical treatment also reflected on the bill papers given by OP No.1 but OP No.1 averred in its written version that he may be exclude from the case as non- joinder of necessary party. But in this case the cause of action arises from the admission in to the hospital of OP No.1 , no doubt the OP No.1 has no link with other OPS regarding the payment of or reimbursement of the medical bill but the OP No.1 could not free him from the liability as because the cause of action arised from its hospital , as such OP No.1 is a proper party to the complaint case.
Before adjudicating the case in hand this commission prefer to frame the important issues for the Just and proper decision of the case in the interest of Justice as follows.
- Issue No.1 whether this case is dismissed for devoid of merit by attracting the contract Act ?
- Whether the Health Insurance comes under IRDA guide line for COVID-19 ?
- Whether the complainant is entitled for compensation ?
To settle the issue No.1 it is pertinent to mention hear that the Insurance contract is a contract of indemnity and also governed by Indian contract Act 1872 and insurance Act 1939 , in which it requires good faith and the insured has to disclose all the material fact in the
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proposal while buying an insurance policy . Further as per the protection of policy holder regulation 2017, the requirement of disclosure of material information regarding a proposal or policy apply under these regulation both are liable one is for non disclosure another is for repudiation of contract. As such the case is not allowed to dismissed rather decide on merit.
According to their terms and conditions of Op No.2 and 3 regarding the policy the policy is still in validity . The policy was renewed by the Ops by taking requisite premium. Secondly the complainant informed the OPS at the time of admission which was within the time prescribed in the term and condition of the policy(i.e. within 24 hours of admission in to a hospital)
The care hospital also comes within the list of authentic hospital approved by the OPS.
Here the question raised by the OPS regarding hypertension which is hidden by the complainant at the time of taking policy which is baseless and full of surmises . The duty to make full disclosure continues to apply throughout negotiations for the contract but it comes to end when the contract is concluded. Therefore material facts which come to the proposer’s knowledge subsequently need not be disclosed. The OPS was not Justified in repudiating the Insurance claim of the complainant on the ground of suppression of material fact as there was no evidence filed by the OPS on whom there was onus to prove that the complainant had under- gone treatment for hypertension which could not cover under the contract.
Is it material fact to repudiate the contract. What is a material fact is best know from S.K. Sandhu Vs. New India assurance Co Ltd(2009) 8 sec 316 has held “ The test to determine as to what is a material fact is whether that fact has any bearing on the risk undertaken by the insurer. If that fact has any bearing it is a material fact and it not it is not material fact”.
The complainant was taking medicine for hypertension for some time does not amount to suppressing material fact because as is well know hypertension is usually a ‘lifestyle’ disease and easily controlled with conservative medicine. No material is found in the record or produce by the OPS to established that prior obtaining the policy the complainant was suffering from hypertension held on 2023(2) CPR 151 ( Bombay Subendu Begchi v. HDFC ERGO General Insurance CC/20/150 decided on 05.04.2023 (B.S. C.D.R.C).
More over the OPS admitted all the material fact as well as the validity and coverage period of the policy . It is pertinent to mention here that the insurer’s decision to reject a claim shall be based on sound logic and valid grounds. It may be noted that such limitation clause does not work in isolation and is not absolute. Rejection of claims on purely technical grounds in a mechanical fashion will result in policy holders losing confidence in the insurance industry
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giving rise to excessive litigation Earning money by pocketing premium only cannot be the ultimate moto of insurance policy ( National Insurance V. Nitin Khandewal)
Regarding the issue No.2 it is pertinent to mention here that IRDA pronounced a circular to all Health Insurance related companies to follow the guide line. As per regarding the COVID-19 IRDA vide its letter dt IRDA/HLT/REG/CIR/054/032020 dated 04/03/2020 has issued guide line to deals with the claim repeated under corona virus and strictly implement and follow the guide line of all insurance company who are linked with health insurance where the policy holder hospitalized for 72 hours is entitled for insured amount.
Where in ICMR guide line it is clearly stated that the Corona positive means the person is effected by the viral pneumonia CORADS-5 and all the Covid care center at that pandemic treated as hospital. Where the insured be provide any needful.
Assistance or emergency reimbursement of the expenditure bearded by the insured who admitted to any hospital whether private or government and stays or admitted minimum of 24 hours and due to non availability of bed or place return to home and stay in Isolation who may be found Covid positive should entitled for the claim during the medical process as expenditure occurred and the insurer could not repudiate the same on technical grounds.
The case in hand the complainant found Covid positive admitted to ICU and treated as indoor patient in care hospital , BBSR for five days and discharge on dt. 05/05/2021 . As such the OPS by playing a technical game foul play with the complainant intentionally to harrash the complainant and repudiate the cashless claim cunningly in an unreasonable manner which act of the OPS amounts to deficiency in service and the complainant deserves the remedies.
Regarding the issue No.3 whether the complainant is entitled for the claim amount as compensation.
From the above facts , Circumstances and evidence on record as well as written version and going through the papers carefully this commission . feels and observe that it is admitted that the complainant admitted to care hospital , found covid-19 positive treated in ICU as in door patient bear all the medical expenses accrued during the process from his own pocket the complainant inform the OPS in time at the time of admission within 24 hours as per their condition for cashless claim request by the complainant but repudiate the same by the insurer (OPS) just in technical ground which is unreasonable, hurt the complainant in his death bed who done the life saving health insurance policy to receive some add. But in vain which raise to hypertension . The complainant was in mental agony he had a high hope that his health insurance may come to help at the crucial time of life but of no use , as such the complainant
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awarded Rs.1,06,360/- as medical expenditure Rs.1,00,000/- towards other expenses support to medical treatment and Rs.1,00000/- as mental agony which is so minimum which cannot fulfill the injury which he sustained at the time of hospital bed.
Hon’ble S.C in Gurmel Singh- Vrs- B.M. National Insurance Co Ltd. Civil Appeal No. 4071/of 2022 date of Judgment 20.05.2022 where in it was held that “ The insurance company should not be too technical while settling the claim and asks for documents that the insured is not in a position to produce due to circumstances beyond his control.
Sequel to the above discussion we herby allow the complainant petition we find merit in the complainant and allow the same with following directions.
ORDER
The OP No.1 is exempted from the liability. The OP No. 2 & 3 ( M/S Star Health and Allied Insurance company) directed to pay a sum of Rs.2,06,000/- @ 9% interest per annum from the date of repudiation of claim till the date of order , and Rs. 1,00,000/- as mental agony and Rs.10,000/- towards litigation expenses within one month from the date of order, failing which the entire amount will be paid by the OPs @12% interest per annum from the date of filing of the case till realization.
No award as to cost.
PRONOUNCED IN THE OPEN COMMISSION TODAY I.E DATE 21st day of AUGUST’2023.
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(J.MISHRA) (R.K.TRIPATHY)
MEMBER. PRESIDENT(I/C)
