Per Smt. Gauri M.Kapse, Hon’ble Member

1. This is an action under Section 35(1)(a) of Consumer Protection Act 2019, the briefly stated case is as follows :-
2. The Complainant himself and his entire family has obtained "Aditya Birla Health Insurance Policy" under the category of "Active Assure Diamond plan" from the Opposite Party. Further Complainant has obtained a separate policy for himself. Complainant submits that he obtained said Aditya Birla Health Insurance policy from Opposite Party on 04/02/2019 by porting his earlier health insurance policy from the previous insurance Company. The Complainant has continued this policy since the inception of the policy in New India Assurance Co. Ltd. since 2006 and has renewed the same policy every year.
3. It is further submitted that Complainant had obtained the said Aditya Birla Health Insurance Policy in the year 2019 by porting the said policy from previous insurer M/s. Religare Health Insurance Company under the previous Policy No. 10528467. The Opposite Party had issued him the said health insurance policy on 04/02/2019 after conducting prescribed medical examination/test which was mandatory as informed by Opposite Party’s advisor before accepting any risk and issuing the said policy to Complainant.
4. On 31/01/2019 Dr. Mrs. Shagufta Yasmin from M/s. The Lab Beyond Excellence had visited Complainant's home to conduct medical examination and collect blood sample before issuance of policy by the Opposite Party. The Complainant had specifically declared that he is taking medicine for diabetes from past 9months. Later the complete medical examination reports where shared with Complainant wherein there was no adverse finding about Complainant's medical condition. Further on the basis of declaration made by Complainant, Opposite Party had charged a separate 20% loading for covering the diabetes and subsequently collected additional premium towards it.
5. The health insurance policy issued by Opposite Party under the policy docket No.13-18-006741-00 dt.04/02/2019 was renewed by Complainant on yearly basis. Further it is submitted that Opposite Party had issued health insurance policy No.23-18-0067415-04 dt. -04/02/2023 under the category of "Active Assure - Diamond plan", valid from 04/02/2023 to 03/02/2024 having sum insured of Rs.20,00,000/- + Rs.4,00,000/- towards accrued bonus. Total insured for Rs.24,00,000/-  and the amount of premium paid towards the said policy was Rs. 32,855/- The Complainant has ported the said insurance policy in 2019, and has been paying the insurance premium regular & timely without any default. Under the said Policy Basic sum insured is Rs.20,00,000/- + Rs.4,00,000/- is accrued bonus. Total insured of Rs. 24,00,000/- and amount of premium paid towards the said policy was Rs. 32,855/- covering Complainant separately under this health insurance policy.
6. On 22/03/2023 in afternoon he could sense pain in his left hand and further felt discomfort in chest. Therefore, Complainant visited his Doctor who immediately advised him to carry out certain test on emergency basis. Further in the process of diagnosis/test the Complainant was immediately rushed to Thunga Hospital at Malad (West).  In the process of diagnosis, it was revealed/discovered that there was blockage in arteries. Therefore, Complainant was admitted to the hospital for treatment of coronary angioplasty. Complainant submits that on 23/03/2023 when Complainant was admitted in ICU for the treatment of coronary angioplasty, complainant's cashless claim facility was rejected by Opposite Party due to non-disclosure of past history as alleged by the Opposite Party. The total cost of treatment and Hospitalization bill incurred by Complainant is Rs. 3,17,286/-.
7. The Opposite Party (Insurance Company) has illegally and unreasonably repudiated and cancelled the health policy on 29/03/2023 the genuine hospitalization claim of Rs. 3,17,286/- by giving false reasons, without producing any cogent proof/ evidence as alleged non-disclosure of hypertension since 2012. Further the Opposite Party has refunded the premium of RS.32,855/- vide letter dt.15/04/2023. Hence, he compelled to send a legal notice to the Opposite Party which was replied by the Opposite Party in negative manner and denied the subject claim.
8. Thus, the Complainant has been constrained to file the present complaint with following prayers:
   1. to pay the claim amount of Rs.3,17,286/- along with interest at the rate of 24% p.a. from the date of discharge i.e. 24/03/2023 realization of the claim;
   2. to reinstate the Complainant’s health insurance policy no.23-18-0067415-04 along with all benefits as detailed therein in the last effective policy of 2023-2024 w.e.f. 04/02/2023
   3. to collect the annual renewal premium towards the re-instated policy as per rule
   4. to pay sum of Rs.5,00,000/- towards compensation for mental agony and physical hardship caused to be suffered due to the wrong repudiation, with suitable interest thereon from the date of filling complaint till realization;
   5. to pay sum of Rs.1,00,000/- towards cost of legal expenses; with incidental charges of Rs.20,000/-;
9. The Complainants has placed reliance on true copies of documents annexed with the complaint compilation at page no.29 to 186.
10. The Opposite Party was duly served with the notices of case; but absent, hence case was proceeded ex-parte against them on 30/04/2024.
11. The Complainant has filed affidavit of evidence with written argument. Heard oral argument of the complainant.
12. Thus, on the contentions of all Complainant, following points arise for our determination on which we record findings with the reasons given below:

REASONS FOR FINDINGS

Point No.1 &2 :-

13. The evidence of the Complainant is remained unchallenged in the case.
14. The Complainant purchased an Active Assure Diamond plan from the Opposite Party (Insurer) in 2019, disclosing diabetes and paying a 20% loading. In March 2023, they underwent coronary angioplasty at Thunga Hospital, incurring Rs.3,17,286/- in expenses, and submitted a cashless claim. However, the Insurer rejected the claim citing non-disclosure of past hypertension history.
15. Considering the oral and documentary evidence of the Complainant it is revealed that the before issuing the policy, the Opposite Party has caused medical test of the Complainant in the  January 2019 which is eloquent from the page no. 48 to 52 of the record. It is manifest from the said record the cc had already disclosed that he was suffering from Dm. After perusal the Hypertension clause of the said report, it speaks about 3 reading of the HTN was 120/80 mmHg. Thus, at the time of medical test the Complainant HTN was normal nor there was any history of HTN. After perusing the discharge summary of the Complainant, it revealed that the he suffered from acute coronary syndrome on 22/03/2023. Then coronary angioplasty was performed on 23/03/2023 at Thunga Hospitals Mumbai.  In discharge summary under caption of the History and examination the DM+HTN was written, then BP :170/90 mmHg was noted. Thus, it does not mean that the Complainant having history of the HTN since 2012. However, the Opposite Party cannot be allowed to raised defence about concealment of pre-existing disease viz. HTN.
16. When the Complainant was medically examining before issuance of insurance policy thereafter only policy was issued as no pre-existing ailment was noticed to the doctor of the Opposite Party. If really there would have been pre-exiting disease of HTN then definitely policy would not have been issued by Opposite Party.
17. Moreover, the Opposite Party would have appeared in the case when duly served with the notice thereof, then would have filed written statement along with documentary evidence to prove that there was medical record as pre-exiting ailment of the Complainant. However, the Opposite Party absented allowed to proceed ex-parte by withholding the documentary evidence of pre-existing history. Hence plea as to concealment of pre-existing history raised into repudiation order dt.23/03/2023, cannot be sustained under the law.
18. Thus, from entire evidence it is revealed that only to avoid paying liability in paying insurance claim the above referred defence has been malafide raised without discharging burden to prove the same. Thus, repudiation order found to be unarbitrary.
19. Thus, on all the above grounds discussed supra the order of repudiation dt.23/03/2023 found to be arbitrary and unsustainable hence, the Complainant is justified to claim of Rs.3,17,286/- with interest at the rate of 9% p.a from the date repudiation i.e. from 23/03/2023 till its actual realization.
20. The Complainant has claimed compensation of Rs.5,00,000/- towards mental agony, damages, litigation costs of Rs.1,00,000/- with incidental charges of Rs.20,000/- Considering the above discussed evidence, arbitrary act of Opposite Party about repudiation of claim, naturally he suffered mental agony and have been compelled to knock the door of this Commission with the help of Advocate coupled with time spent in fighting with Opposite Party from 2023 to till date; hence, he is justified to claim of compensation of Rs.1,20,000/- on all the counts.
21.  After considering oral and documentary evidence of both the parties it is crystal clear that the Complainants’ son did not suffer the pre-existing diseases of HTN so as to have justification and ground to the Opposite Party to invoke forfeiture clause of the policy while repudiating the legitimate claim. Indeed, from fact, circumstances and evidence, it is manifest that there was remote ground to repudiate the claim by invoking forfeiture clause of the policy. Consequently, above both action of the Opposite Party found to be most arbitrary and high handed so as to avoid the liability in paying the legitimate insurance claim.
22. Thus, it is cleared that the Opposite Party has rendered deficiency in service and had adopted unfair trade practice in forfeiting the insurance claim by repudiation it. Hence under such circumstance the Complainant’s is justified in claiming restoration of the policy by taking legitimate premium from the Complainant so as to give continuous benefit of the insurance policy. Hence, we have answered the findings on all the points accordingly and proceed to pass following order:

FINAL ORDER

1. Consumer Complaint No.CC/176/2023 is partly allowed.
2. The Opposite Party/Insurance Company is hereby directed to pay the claim of Rs.3,17,286/- with interest at the rate of 9% p.a. from the date repudiation i.e. from 23/03/2023 till its actual realization, within 45 days from the date of receipt of this order.
3. If the Opposite Party/Insurance Company failed to pay the above said amount (order clause No.2) within 45 days from the date of this order, then it shall be liable to pay interest at the rate of 12% p.a. on the above said amount till its actual realization.
4. The Opposite Party/Insurance Company is also directed to pay compensation of Rs.1,20,000/- towards mental agony, litigation costs etc. to the Complainant.
5. The Opposite Party/Insurance Company is further directed to restore the subject insurance policy by taking legitimate amount of premium by giving notice to the Complainant within 45 days from this order, so as to continue the subject policy with all benefits.
6. Rest of the prayers of the Complainant are denied.
7. Copies of this order be sent to the parties free of costs.