Haryana

Karnal

CC/141/2015

Sachin Kumar S/o Rohtas - Complainant(s)

Versus

1. Star Health & allies Insurance Company Limited - Opp.Party(s)

Sh. J.P. Chaudhary

14 Nov 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL. 

                                                     Complaint No. 141 of 2015

                                                    Date of instt.10.7.2015

                                                     Date of decision 14.11.2017

 

Sachin Kumar son of Shri Rohtas, resident of shop no.37, Anaj Mandi, VPO Kunjpura, District Karnal.

                                                                                 ……..Complainant.

                                        Versus.

1. Star Health & Allied Insurance Company Limited through its Authorized Signatory, 1 New Tank Street, Valluvar Kottam High Road, Nungambakkam, Chennai.

2. Star Health & Allied Insurance Company Limited through its Branch Manager, SCO 242, 1^st floor, sector-12, opp. Mini Secretariat, Karnal.

 

                                                                 ..…Opposite Parties.

 

 Complaint u/s 12  of the Consumer Protection Act 1986.

 

Before     Sh. Jagmal Singh……….President.

                Ms. Veena Rani………Member

                Sh.Anil Sharma…….Member.

 

Present:   Sh. J.P.Chaudhary Advocate for the complainant.

                 Sh. A.K. Vohra Advocate for opposite parties.

                 

       

                (JAGMAL SINGH, PRESIDENT)

 

 ORDER:

 

                This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act 1986, on the averments that he purchased the polices under plan “Family Health Optima Insurance Policy, Cover type “Family” by paying the premium amount of Rs.6000/- for each policy, valid from 4^th March, 2014 to 18^th February, 2015 covering limit upto Rs.5,00,000/-.  The said policy covered himself and his other family members. As per the policies the company had taken the guarantee to the insured persons to provide even cashless facilities in case of treatment of health care of any of the policy holder. The policy holder was insured for hospitalization expenses, pre-hospitalization and post hospitalization expenses, ambulance cover, domiciliary hospitalization, health check-up, recharge of sum insured, daily allowance. He developed some health problem and he was taken to the hospital “Amritdhara Hospital Pvt. Limited Karnal” on 10.8.2014. Various tests were conducted him and as per ultrasound report some problem in the right kidney was found. The doctor of said hospital duly filled the claim form for the cashless facility to be provided by the company and claim forms were sent to the OPs, but OPs have refused to extend this facility to him. There was no other option with him and his family members to save his life to get the further treatment because his kidney was to be replaced. The kidney was donated by his wife, who is also a continuous policy holder alongwith her husband. He spent more than Rs.10,000,00/- on his treatment. He filed the claim for reimbursement of the amount with the OPs, but OPs repudiated his claim, vide letter dated 12.1.2015 on the ground that you have not disclosed the pre-existing disease you were carrying whereas he was good in health at the time of getting the policy. In this way there was deficiency in service on the part of the OPs and hence complainant filed the present complaint.

2.             Notice of the complaint was given to the OPs, who appeared and filed written statement raising preliminary objections with regard to maintainability; concealment of facts; locus standi and estopped from filing the present complaint. On merits, it has been submitted that it is an offer and acceptance which are basis of contract but subject to certain terms and conditions of the policy no.P/211114/01/2014/001764. It is worthwhile to mention here that premium to the tune of Rs.8663/- was paid including service tax under the Family Health Optima Insurance Policy covering complainant and his wife Manu Rani and daughter Hansika. It has further been submitted that policy has been cancelled from the insurer due to reasons of non-disclosure/pre-existing disease qua Sachin Kumar-complainant. The policy of Mr. Rohtash Kumar is separate and different policy number is provided. New policy has been issued to Manju Rani and daughter Hansika. It has further been submitted that the complainant was having chronic kidney disease. The complainant suppressed true and material facts regarding his health/chronic disease at the time of filling of the proposal form. So the claim of the complainant was rightly repudiated vide letter dated 6.1.2015 on the ground that USG showed solitary small right kidney which indicates chronic kidney disease state 5. Chronic kidney disease is a progressive kidney disease which takes years to reach end stage and kidneys to become small. Our medical team is of the opinion that the insured patient has CKD prior to inception of medical insurance policy. Hence the claimant is not entitled to any cashless scheme. There was no deficiency in service on the part of the OPS. The other allegations made in the complaint have been denied.

3.             Complainant tendered into evidence his affidavit Ex.CW1/A and documents Ex.C1 to Ex.C28 and closed the evidence on 18.11.2015.

4.             On the other hand, OPs tendered into evidence affidavit of Rajnish Kohli Ex.O1 and documents Ex.O2 to Ex.O16 and closed the evidence on 12.7.2016.

5.             We have heard the learned counsel for both the parties and perused the case file carefully and have also gone through the evidence led by the parties.

6.             It is admitted fact of the parties that complainant purchased the polices under plan Family Health Optima Insurance Policy valid from 4^th March, 2014 to 18^th February, 2015 covering limit upto Rs.5,00,000/-. The said policy covered the complainant, his father Shri Rohtash Kumar and other family members namely Dinesh Rani, Manju Rani, Hansika, Anoop Kumar and Ravina.

7.             According to the complainant, he has developed some health problem and he was taken to Amritdhara Hospital Pvt. Ltd., Karnal on 10.8.2014. As per direction of doctor, various tests were conducted of the complainant. The ultrasound report reveal that left Kidney is not visualized and there is some problem in the right Kidney. The doctor of the said hospital has sent the duly filled claim form to the OP for cashless facilities, but the OP refused the same. To save the life of complainant, there was no other alternative except that the Kidney of complainant was to be replaced and for the same the complainant was admitted in the hospital Max Health Care, Delhi. The Kidney was donated by Smt. Manu Rani the wife of the complainant, who was also a continuous policy holder of the OPs alongwith complainant her husband. The complainant made the claim to the OPs, but the OPs have repudiated the claim of the complainant, vide letter dated 12.1.2015 on the ground that you (complainant) have not declared the pre-existing disease which you were carrying. When a person has no knowledge about his pre-existing disease, then how it can be said that he has suppressed the same. The complainant has spent Rs.10 Lakh on his treatment, but the insured amount is Rs.5 lakh, so the complainant is entitled for Rs.5 lakh + bonus if any from the OPs.

8.             According to the OPs, the complainant was having chronic Kidney disease and complainant has suppressed the same while filling proposal form i.e. column no.1 and 2. The certificate of Dr. M. Ram Prabhakar, Head of Department of Nephrology dated 20.12.2014 which reads as under:-

“ This is to state that this 26 years old man admitted for headache fever since a month and found to have solitary small kidney with severe renal failure and normaocytic normochromic anemia. Investigations done on 11.8.2014 showed creatinine of 19.3 mg, ultrasonogram showing solitary right small kidney suggestive of CKD stage 5. CKD is a progressive kidney disease and it takes years to reach end stage and the kidneys to become small. This patient presented with features of end stage renal failure advised hemodialysis initiation here by state that he had pre-existing CKD at the time of policy inception.”

        The ultra sound conducted by Dr. Sehgal Ultra sound and Digital x-ray Karnal which reads that Impression –“Non-visualization of Lt. Kidney? Apiasia and small Rt. Kidney.” So, the claim of the complainant was rightly repudiated, vide letter dated 6.1.2015. It is also stated that that it is wrong that the claim was repudiated vide letter dated 12.1.2015 rather the repudiation was communicated to the insured complainant vide letter dated 6.1.2015.

9.             From the pleadings and evidence of the case, it is clear that the claim of the complainant has been repudiated on the ground of misrepresentation/non-disclosure of material facts. What material facts are suppressed or mis-represented or not disclosed by the complainant while taking the policy and to prove the same, the onus was upon the OPs. The OPs have tendered into their evidence documents Ex.O-2 to Ex.O-16. Out of these documents, the material document is Ex.O-2 which is dated 29.12.2014 and material part is as under:-

“ This is to state that this 26 years old man admitted for headache fever since a month and found to have solitary small kidney with severe renal failure and normaocytic normochromic anemia. Investigations done on 11.8.2014 showed creatinine of 19.3 mg, ultrasonogram showing solitary right small kidney suggestive of CKD stage 5. CKD is a progressive kidney disease and it takes years to reach end stage and the kidneys to become small. This patient presented with features of end stage renal failure advised hemodialysis initiation here by state that he had pre-existing CKD at the time of policy inception.”

 On the basis of Ex.O-2 Dr. M. Ram Prabhakar stated that he (complainant) had pre-existing CKD at the time of policy inception. Now the question arises that whether the said disease was diagnosed prior to the inception of policy and was in the knowledge of the complainant? If the same was diagnosed prior and was in the knowledge of complainant and while filling proposal form, the complainant did not disclose the same, then it can be said that the complainant has suppressed the material facts regarding pre-existing ailment and the OPs are right in repudiating the claim. But if the same was not diagnosed prior of the inception of policy then how the same may be in the knowledge of the complainant and how the complainant is guilty of misrepresentation/non-disclosure.

10.           The findings of this document Ex.O-2 are based on the treatment record of the complainant. All the medical record of the  treatment of the complainant placed on the file by the OPs is dated 10.8.2014 or thereafter. The policy in question was purchased by the complainant in the month of February, 2014 valid from 4.3.2014 to 18.2.2015. The OPs have not produced any such document on the file vide which it can be proved that the CKD disease in question was diagnosed prior to the inception of policy. When the same was not diagnosed prior to the inception of policy then how it can be said that the same was in the knowledge of the complainant. No doubt the CKD disease of the complainant may be pre-existing from the inception of the policy, but the OPs have failed to prove that the same was diagnosed prior to the inception of policy and the same was in the knowledge of the complainant and the complainant has suppressed the same while filling the proposal form. In this regard we can rely upon the authority cited in 2015(2) CLT-71 (NC) titled as United India Insurance Vs. S.K. Gandhi wherein it is held by the Hon’ble National Commission that it is quite possible that the complainant, despite suffering from hypertension was not actually aware of the same-in that case he cannot be accused of mis-statement or concealment-the onus was upon the insurance company to prove that he had made a mis-representation while obtaining the insurance policy-insurance company liable. This authority is fully applicable to the facts of the present case.  In the present case also, the onus to prove that the ailment of the complainant was diagnosed prior to the inception of the policy and the same was in the knowledge of the complainant. But the OPs have not produced any cogent evidence on the file to prove the same. Keeping in view the authority as well as the facts and circumstances of the case, we are of the considered opinion that the OPs have failed to prove that the complainant has suppressed the material facts regarding his pre-existing ailment while filling the proposal form and the OPS have wrongly repudiated the claim of the complainant. Hence the OPs are deficient in providing services to the complainant. It is pertinent to mention here that the complainant has spent Rs.10 Lakh on his treatment/replacement of Kidney but the insurance policy is for Rs.5 lakh only. So, the complainant is entitled for insured amount.

11.           As a sequel to above discussions, we allow the present complaint and direct the OPs to pay Rs.5,00,000/- the insured amount to the complainant. We further direct the OPs to pay Rs.5500/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expenses.  This order shall be complied within 30 days from the receipt of copy of this order failing which the abovesaid amount will carry interest @ 8% per annum from the date of order till its realization. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 14.11.2017

                                                                  

                                                                  President,

                                                         District Consumer Disputes

                                                        Redressal Forum, Karnal.

 

 

                        (Veena Rani)       (Anil Sharma)

                          Member                Member