…..Opposite Parties.

Complaint Under Section 35 of Consumer Protection Act, 2019.

Before   Sh. Jaswant Singh……President.

              Sh. Vineet Kaushik……Member 

      Dr. Rekha Chaudhary……Member

 Argued by: Shri Amit Sachdeva, counsel for the complainant.

                    Shri Naveen Kaushal, counsel for the OPs.

                    (Jaswant Singh President)

ORDER:                     

                 The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant purchased a medical insurance policy since 31.08.2015 and continued till 31.08.2021 from Star Health & Allied Insurance Co.Ltd. first policy no.P/161111/01/2020/012057. The official of the OPs approached the complainant and her husband and requested the complainant to get switched her mediclaim policy from Star Health & Allied Insurance Co. to the Aditya Birla Health Insurance Co. The official of the OP told that all the benefits of the previous policy will be given to the complainant and waiting period of 48 months was also waived off and policy is considered as pre-existing condition and also eligible for Post Hospitalization Medical expenses upto 180 days and accordingly the complainant agreed and paid the premium and the Medi-claim policy issued by the OP company, vide policy no.21-21-0058497-00 valid from 31.08.2021 to 30.08.2023 with sum insured of Rs.25,00,000/-.

2.             In the first week of April, 2022, complainant got pain in both the knees and she visited the doctor on 04.04.2022 and met with doctor at SITA Ram Bhartia Hospital and Dr. J. Maheshwari attended complainant. After checkup and after conducting all required tests, doctor found that complainant both knees are required to be replace and surgery to be done and accordingly the complainant got admitted to the hospital and as per advice of doctor on same day undergone a Bilteral Osteoarthritis knee surgery and was remained admitted to the hospital on 04.04.2022 and discharged on 09.04.2022. At the time of admission in the hospital, complainant informed to OPs for cashless treatment because the said medical insurance policy have been purchased by complainant is a cashless policy, firstly the same got pre-approved for Rs.2,50,000/- on 05.04.2022 and thereafter on 09.04.2022 pre approval was rejected on the ground that of non-disclosure of osteoarthritis bilateral knee since June, 2021. However, complainant has paid premium of insurance in order to secure the expenses that incurred for medical expenses and is having valid insurance policy and moreso complainant was not suffering from any disease prior to the inception of the policy rather the policy was running since 2015 and ported to the OP company with all benefits what the complainant enjoying with the earlier mediclaim policies since 2015. Finding no other way, complainant paid the charges for treatment i.e. total of Rs.6,29,255/- and after that complainant was discharged from hospital on 09.04.2022 with suggestion of exercise with Physiotherapy and also medication for 4 months and regular follow up and for the same till time more than Rs.50,000/- has been spent by the complainant. After that complainant lodged the claim with the OPs to reimburse the abovesaid amount and completed all the formalities. But OPs did not pay the claim and rejected the same, vide letter dated 21.06.2022 due to non-disclosure of osteoarthritis bilateral knee since June 2021. After that complainant visited the office of OPs so many times and requested to settle the claim but OPs did not pay any heed to the request of complainant.  In this way there is deficiency in service on the part of the OPs. Hence this complaint.

3.             On notice, OPs appeared and filed its written version raising preliminary objections with regard to maintainability; locus standi; cause action; jurisdiction and concealment of true and material facts. On merits, it is pleaded that the insured Sakshi Khanna availed an Active Health Platinum Enhanced Policy covering Sakshir Khanna herself and Bhumika Khanna dependent daughter for a sum insured of Rs.25,00,000/-, vide policy no.21-21-0058497-00 valid from 31.08.2021 to 30.08.2023. On 02.04.2022, OPs received a cashless request for a sum of Rs.4,41,366/- and again on 04.04.2022 for a sum of Rs.5,59,859/- and as per the terms and conditions of the policy a sum of Rs.2,50,000/- was initially approved, vide letter dated 04.04.2022 for the treatment of Sakshi Khanna who was admitted in Sita Ram Bhartiya Institute of Science and Research New Delhi for the treatment of Knee Replacement (Bilateral). The complainant remained admitted in the hospital from 04.04.2022 to 09.04.2022. Thereafter, OPs received a bill alongwith the supportive documents i.e. discharge summary, plan of care and other documents and a claim of Rs.5,00,839/- was claimed by the complainant and on scrutiny of the documents, it was revealed from the discharge summary as well as plan of care, documents submitted  and statement of husband of complainant, complainant was suffering from the disease since two years for which she taken treatment from Fortis Hospital Mohali in June, 2021, meaning, thereby, the complainant was having history of Osteoarthritis since June, 2021 prior to inception of the policy and this fact was not disclosed by the complainant in her proposal form at the time of portability of the policy intentionally and deliberately. Hence, the claim of the complainant was rightly rejected by the OPs, vide letter dated 02.05.2022. The policy shall be void and all premium paid thereon shall be forfeited to the company in the event of mis-representation, mis-description or non-disclosure of any material facts. There is no deficiency in service on the part of the OPs. The other allegations made in the complaint have been denied by the OPs and prayed for dismissal of the complaint.

4.             Parties then led their respective evidence.

5.             Learned counsel for complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of insurance policies of Star Health from 31.08.2018 to 30.08.2021 Ex.C1 to Ex.C3, copy of insurance policy of Aditya Birla from 31.08.2021 to 30.08.2023 Ex.C4, copy of interim approved pre-authorization letter dated 05.04.2022 Ex.C5, copy of pre-authorization denial letter dated 09.04.2022 Ex.C6, copy of claim form Ex.C7, copy of discharge summary and bills Ex.C8, copy of repudiation letter dated 02.05.2022 Ex.C9, copy of policy cancellation letter dated 21.06.2022 Ex.C10, copy of aadhar card Ex.C11, copy of KYC form Ex.C12, copy of photo of SMS dated 08.08.2022 regarding refund of premium amount Ex.C13, copy of letter dated 27.08.2022 regarding cancellation of the policy in question Ex.C14 and closed the evidence on 25.11.2022 by suffering separate statement.

6.             On the other hand, learned counsel for the OPs has tendered into evidence affidavit of Abhijeet Dhamale Ex.RW1/A, copy of proposal form Ex.R1, copy of insurance policy Ex.R2, copy of terms and conditions of the policy Ex.R3, copy of claim form Ex.R4, copy of estimate request Ex.R5, copy of clarification Ex.R6, copy of query letter Ex.R7, copy of initial approval Ex.R8, copy of x-ray report Ex.R9, copy of claim form Ex.R10, copy of letter of Fortis Hospital Ex.R11, copy of pre-authorization request denial letter dated 09.04.2022 Ex.R12, copy of repudiation letter dated 02.05.2022 Ex.R13 and closed the evidence on 09.03.2023 by suffering separate statement.

7.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

8.             Learned counsel for complainant, while reiterating the contents of complaint, has vehemently argued that initially complainant had purchased a Health Insurance policy from Star Health & allied Insurance Co., which continued year by year upto six years from 2015 to 2021 and thereafter complainant ported the said policy to the OPs. On 04.04.2022, complainant has taken treatment from Sita Ram Bhartia Hospital Institute of Science and Research New Delhi for replacement of her both knees and has also taken treatment from Fortis Hospital, Mohali (Punjab). The policy was a cashless policy, but OPs denied the cashless treatment to the complainant. Complainant spent total amount of Rs.6,29,255/- on her treatment. Complainant lodged the claim with the OPs for reimbursement of the said amount but OPs did not pay the same and repudiated the claim of the complainant on false and frivolous ground of pre existing disease and prayed for allowing the complaint.

9.             Per contra, learned counsel for OPs, while reiterating the contents of the written version, has vehemently argued that the complainant purchased the policy in question for a period of 31.08.2021 to 30.08.2023 by way of portability from Star Health & Allied Insurance Co. On 04.04.2022, complainant was hospitalized in Sita Ram Bhartia Hospital Institute of Science and Research New Delhi for the treatment of Knee Replacement and submitted a request for cashless authorization. OPs received a claim and on scrutiny of the documents, it was revealed that complainant was suffering from the disease since two years for which she taken treatment from Fortis Hospital Mohali in June, 2021, meaning, thereby, the complainant was having history of Osteoarthritis since June, 2021 prior to inception of the policy and this fact was not disclosed by the complainant in her proposal form at the time of portability of the policy. So, the claim of the complainant was rightly rejected by the OPs, vide letter dated 02.05.2022 and lastly prayed for dismissal of the complaint.

10.           We have duly considered the rival contentions of the parties.

11.           Admittedly, in the year 2015 insured has availed the health insurance policy from Star Health & Allied Insurance Co., which was ported with the OPs company. It is also admitted that during the subsistence of the insurance policy complainant had taken the treatment and admitted in Sita Ram Bhartia Hospital Institute of Science and Research, New Delhi on 04.04.2022 and was discharged on 09.04.2022.

12.           The claim of the complainant has been denied by the OPs, vide letter Ex.C9/Ex.R13 dated 02.05.2022 on the grounds which is reproduced as under:-

“On scrutiny of the documents, it was observed that verification of the claim documents reveals patient was admitted for bilateral osteoarthritis, however patient is having history of bilateral osteoarthritis since June, 2021, which was not disclosed in the proposal form. Hence, the claim is being denied and hence we are unable to approve your claim”.

 13.          Complainant purchased the medical insurance policy from the Star Health and Allied Insurance Company Limited on 31.08.2015 and continued till 31.08.2021 without any break. The said policy has been ported with the OP company on 31.08.2021 and was valid upto 30.08.2023. This fact has not been denied by the OPs.

14.           The meaning of portability defined by the IRDA vide its circular Reference No. IRDA/HLT/MISC/CIR/209/09/2011) is as under:-

Portability:  Portability means the right accorded to an individual health insurance policyholder (including family cover) to transfer the credit gained by the insured for pre-existing conditions and time bound exclusions if the policyholder chooses to switch from one insurer to another insurer or from one plan to another plan of the same insurer, provided the previous policy has been maintained without any break.              

15.           The claim of the complainant has been denied by the OPs on the ground that complainant is having history of bilateral osteoarthritis since June, 2021, which was not disclosed by her in the proposal form at the time of portal of the policy.

16.           There is no break in the medical insurance policy issued by the Star Health and Allied Insurance Company Limited, prior to portal of the same in the OP company. The OPs have ported the insurance policy and issued the fresh policy Ex.C4 dated 31.08.2021. In the said policy OPs themselves waived off the waiting period of 48 months, when the OPs themselves had waived off the waiting period, then the plea taken by the OPs regarding pre-exist medical history, is having no force at all. 

17.           We further fortified with the observation of Hon’ble National Commission in case titled as Mrs. Rubi Chandra Dutta Versus M/s United India Insurance Co. Ltd., (2011) 3 scale 654, decided on 16.12.2016 wherein it is held that “It was 2 years before switching over the policy with the OPs. Therefore, once portability scheme was accepted by OPs then they had no right to decline the claim upto the amount of sum assured of previous insurance policy in case it was within the terms and conditions of the policy. The policy with New India Assurance Company was continuing since 2001 and counsel for OPS was unable to pin point how the claim to the extent of Rs.1,30,000/- allowed by the District Forum was not payable under the policy. Clause 1 of the policy speaks that under portability right accorded to an individual health insurance policy holder to transfer the credit gained by the insured for pre-existing conditions and time bound exclusions if the policy holder chooses to switch from the one insurer to another insurer or from one plan to another plan. Under that scheme whatever has been gained by the insured under the policy insured by the previous insured will be gained by the insured under the portability scheme. Therefore, we do not agree with the plea raised by the OPs. Even otherwise, the policy was continue one since 2001.

 18.           Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

 19.          Keeping in view, the ratio of the law laid down in aforesaid judgments, facts and circumstances of the present complaint, we are of the considered view that act of the OPs while denying the claim of the complainant amounts to deficiency in services, which is otherwise proved genuine one.

20.           The complainant claimed Rs.6,29,255/- and in this regard she has placed on file copy of claim form Ex.C7. The original claim form alongwith medical bills and records have already been submitted by the complainant with the OPs. This fact has not been denied by the OPs. Moreover, the complainant has also placed on file detail of the bills alongwith duplicate case summary Ex.C8. Hence, the complainant is entitled for the said amount alongwith interest, compensation for mental harassment and litigation expenses etc.

21.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to pay Rs.6,29,255/-(six lakhs  twenty nine thousand two hundred fifty five only) to the complainant alongwith interest @ 9% per annum from the date of repudiation of the claim till its realization. We further direct the OPs to pay Rs.25,000/- to the complainant on account of mental agony and harassment and Rs.11,000/- towards the litigation expenses.  This order shall be complied with within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:11.07.2023   

                                                        President,

                                                   District Consumer Disputes

                                                   Redressal Commission, Karnal.

                (Vineet Kaushik)        (Dr. Rekha Chaudhary)      

                      Member                        Member