Haryana

Kurukshetra

213/16/2018

Parveen Kumar - Complainant(s)

Versus

Amit Kumar - Opp.Party(s)

21 Jan 2020

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KURUKSHETRA.

 

Original Complaint Case No.213 of 2016.

Date of instt: 03.08.2016. 

                                                                       Date of Decision: 21.01.2020.

 

Parveen Kumar (aged 44 years) son of Late Smt. Om Pati wife of Moti Ram, resident of Shop-cum-House No.76, Anaj Mandi, Pehowa, District Kurukshetra.

                                                                        ……..Complainant.

                                        Versus

 

1. Amit Kumar agent Code No.BA0000 170265 of Star Health and Allied Insurance Company Limited, resident of near Tiba Farm, opposite Tagore Public School, Kurukshetra Road Pehowa, District Kurukshetra.
2. Star Health and Allied Insurance Company Limited, Branch Office Karnal through its Branch Manager.
3. Star Health and Allied Insurance Company Limited, KRM Centre, VI Floor No.2, Harrington Road, Chetpet, Chennai- 600031, through its Managing Director/ General Manager.

……Opposite parties.

 

Complaint under Section 12 of the Consumer Protection Act.

 

Before       Smt. Neelam Kashyap, President.

                   Ms. Neelam, Member.

                   Sh. Issam Singh Sagwal, Member.

 

Present:     Shri Prateek Singla, Advocate for the complainant.

                Opposite party No.1 given up.

Shri Gaurav Gupta, Advocate for opposite parties No.2 & 3.      

           

ORDER     

 

                   This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by the complainant Parveen Kumar against Amit Kumar agent and Star Health and Allied Insurance Company Limited, the opposite parties.

2.             It is pertinent to mention here that earlier this complaint was dismissed in default on 21.08.2017 and vide order dated 27.3.2018 passed by the Hon’ble State Consumer Disputes Redressal Commission Haryana, Panchkula, the complaint was ordered to be restored. Accordingly, the complaint was restored.

3.            The brief facts of the present complaint are that in the year 2013, the OP No.1 Amit Kumar, an authorized agent of OPs No.2 and 3 explained about the benefits of the insurance and assured about the best services, upon which, he became ready to take Senior Citizen Red Carpet Insurance policy in the name of his mother namely Om Pati aged 72 years. He and his mother have not concealed any fact from the OP No.1 at the time of proposal of said policy as his mother disclosed all the facts regarding previous treatment. It is further averred that after checking the previous treatment record and particulars regarding health, age etc., the OPs accepted the proposal and issued one insurance policy No.P/211114/1/2014/000979 for the period from 24.10.2013 till 23.10.2014 for a sum of rupees five lacs. The OPs received full and final premium of Rs.20,225/- including all taxes. The policy is being renewed year by year and policy is still effective and he & his mother paid the premium regularly. On 02.02.2016, his mother unluckily became ill and admitted at Amrit Dhara Hospital Pvt. Limited, Karnal, where she remained under treatment upto 07.02.2016. Thereafter, she was admitted for treatment in Medanta- The Medicity Global Health Pvt. Limited, Gurgaon and remained there as indoor patient upto 16.02.2016. It is further averred that on 16.2.2016, she was treated at Saraswati Mission Hospital, Pehowa and suddenly died on 18.2.2016. The complainant and his family have spent a sum of Rs.10,00,000/- on treatment of his mother. He informed the OPs regarding disease/illness of his mother and name of the hospital, where she was treated. He applied for the medical claim of his mother without any delay from the OPs. The complainant was surprised and shocked to see the letter dated 10.6.2016 alongwith draft dated 9.6.2016 for Rs.20,520/- received on 21.6.2016 regarding rejection of medical claim of his mother due to non disclosure of material fact i.e. about the existence of pre-existing disease. The letter dated 10.6.2016 has been issued arbitrarily and with intention to not to refund the medical claim of mother of complainant whereas the mother of complainant disclosed and submitted all the material facts regarding her age, health, previous disease at the time of proposal. In this way, the OPs deficient in providing the services. Hence, this complaint.

4.             OP No.1 was given up by learned counsel for complainant being unnecessary.

                OPs No.2 and 3 appeared and filed written statement raising certain preliminary objections regarding limitation; jurisdiction; cause of action; mis-joinder & non-joinder of the parties. It is stated that insured was admitted in Amritdhara Hospital, Karnal on 03.02.2016 for the treatment of coronary artery disease, acute coronary syndrome and was discharged on 7.2.2016. As per discharge summary, insured was diagnosed as hypertension, diabetes mellitus, old coronary artery disease. The insured was admitted in Medanta Hospital on 7.2.2016 for treatment of acute inferior myocardial infraction- acute left ventricle hypertrophy. On receipt of the pre authorization request form, it is observed that as per discharge summary of Medanta Hospital for the period of hospitalization from 19.6.2013 to 20.6.2013, the insured patient is a known case of diabetes mellitus, parkinsonism and left PUJ obstruction, who underwent robotic pyeloplasty on 17.5.2013, which is prior to inception of the medical insurance policy. Hence, the cashless authorization was denied and the same was communicated to the insured and the treating hospital vide letter dated 10.2.2016. It is further submitted that at the time of inception of the policy, the insured has not disclosed the above mentioned medical history/ health details of the insured-person in the proposal form which amounts to misrepresentation/ non disclosure of material facts. As per condition No.9 of the policy, if there is any misrepresentation/ non disclosure of material facts whether by the insured person or any other person acting on his behalf, the company is not liable to make any payment in respect of any claim and prayed for dismissal of the complaint.

5.             The learned counsel for complainant tendered affidavit Ex.PW1-A and documents ExP1 to Ex.P45. On the other hand, learned counsel for Ops No.2 & 3 tendered affidavit Ex.RW1/A and documents Ex.R-1 to Ex.R-16.

6.             We have heard the learned counsel of the parties and carefully gone through the case file and also the written arguments filed by the learned counsel for the complainant and the case laws referred by the learned counsel for both the parties.

7.             The learned counsel for the complainant has argued that the complainant had purchased Senior Citizen Red Carpet Insurance policy for his 68 years old mother namely Ompati from the OPs No.2 & 3 through agent OP No.1, vide Policy Ex.P1. After medical check-up of mother of the complainant, the OPs had taken premium from the complainant and given two pages policy to the complainant and except this, no separate terms & conditions were given/provided to him by the OPs. It is further argued that on 02.02.2016, mother of complainant became ill and admitted at Amrit Dhara Hospital, Karnal and remained there upto 07.02.2016 (Ex.P13). Thereafter, mother of complainant was admitted for treatment in Medanta Hospital, Gurgaon and remained there as indoor patient upto 16.02.2016. (Copy of Admission and Discharge is Ex.P26 to P28). After that, she admitted in Saraswati Mission Hospital, Pehowa on 16.02.2016 and ultimately died on 18.02.2016 vide death certificate Ex.P10. The complainant spent Rs.4,13,312/- on the treatment of his mother. The Ops were informed by the complainant regarding illness and admission of his mother, but the OPs illegally cancelled the claim of complainant after death of his mother Ompati vide letter dated 10.06.2016 (Ex.P-6). It is argued that the OPs had not acknowledged the terms & conditions of the policy with the cover note. It is further argued that by not paying genuine claim of the complainant, the OPs are deficient in services and prayed for allowing the present complaint. In support to their contentions, the learned counsel for the complainant has placed reliance upon case laws titled Life Insurance Corporation of India and Anr. Vs. Asha Singh, 2007 (1) CPJ, 238 (NC); National Insurance Company Ltd. Vs. Rajan Narain, 2008 (1) CPJ, 501 (NC); Nirmala Devi Vs. Birla Sunlife Insurance Co. Ltd., First Appeal No.1900 of 2011, dod 03.4.2014 (Rajasthan State Commission,  Jaipur); New India Assurance Co. Ltd. Vs. Suresh Garg, 2015 (3) CPR 799 (NC); D. Srinivas Vs. SBI Life Insurance Co. Ltd. and Ors., 2018 (2) Apex Court Judgments, 81 (SC) and Vipin Grover and Another Vs. New India Assurance Co. Ltd., 2018 (2) CPJ, 374 (NC).

8.             Contrary to it, the learned counsel for the OPs No.2 & 3 has argued that the insured patient was admitted in the hospital for heart problems and this fact is also mentioned in all treatment records of her. It is further argued that no medical check-up was done of the mother of the complainant by the OPs. It is further argued that the insured patient is a known case of diabetes mellitus, parkinsonism and left PUJ obstruction, who underwent robotic pyeloplasty on 17.05.2013, which is prior to inception of the medical insurance policy and this fact has not been disclosed by the complainant at the time of taking the policy in question. As such, the policy in question was rightly cancelled and there is no deficiency on the part of the OPs and prayed for dismissal the complaint with special costs. In support to their contentions, the learned counsel for the OPs No.2 & 3 has placed reliance upon case laws titled Satwant Kaur Sandhu Vs. The New India Ins. Co. Ltd., Civil Appeal No.2776 of 2002, Decided on 10.7.2009 (SC); P.C. Chacko & another Vs. Chairman, LIC & Ors., Civil Appeal No.5322 of 2007, decided on 20.11.2007 (SC); Surinder Kaur Vs. National Ins. Co. Ltd., Decided on 04.5.2016, NCDRC, New Delhi; TATA Aig Life Ins. Co. Ltd. Vs. Orissa State Co-operative Bank & Anr., decided on 20.9.2012, NCDRC, New Delhi; United India Ins. Co. Ltd. Vs. M/s Harchand Rai Chandan Lal, Civil Appeal No.6277 of 2004, decided on 24.9.2004 and Aman Kapoor Vs. National Ins. Co. Ltd., Decided on 17.4.2017, NCDRC, New Delhi.

9.             Admittedly, initially the complainant had purchased the policy in question from the OPs for his 69 years old mother namely Ompati from 24.10.2013 to 23.10.2014 for a sum assured of Rs.5,00,000/-, after paying special premium and got renewed the said policy upto 28.10.2016 as apparent from the policy documents Ex.P1 to Ex.P5 respectively.

10.              The OPs No.2 & 2 repudiated the claim of the complainant as well as cancelled the policy in question vide letter dated 10.06.2016 (Ex.P6) with the following remarks:

        “We refer to the repudiation of claim from our Claims Department,     Corporate Office, Chennai due to non-disclosure of Material fact        (i.e., about the existence of Pre-existing diseases) and the current policy is cancelled and the premium is refunded herewith    Cancellation Endorsement passed in the policy is enclosed. In view      of the above, we are forwarding D.D. No.:09/06/2016 dated       :841373 for amount Rs.20520/- drawn on HDFC Bank Chennai        which please acknowledge”.         

                To corroborate this fact, the OPs No.2 & 3 produced Discharge Summary of mother of the complainant namely Ompati Devi as Ex.R2 and extract part of said Summary reads as under:-

Past History: Type II diabetes mellitus, Parkinsonism, Left DJ Stenting Left pyeloplasty

Procedure of Surgery: DJ STENT REMOVAL WAS DONE UNDER LA ON 19.06.2013.

Medical History & Presenting Complaints: Mrs. Ompati Devi, 68 years old female, is a known case of left PUJ obstruction who underwent left robotic pyeloplasty on 17.05.2013. She was admitted for DJ stent removal.

                It may be stated here that except this document Ex.R2, the OPs No.2 & 3 has not produced any medical record of the mother of complainant to prove that she was taking treatment for the diseases, referred to above, prior to taking the policy in question. It was not proved on record as to who had disclosed that mother of complainant was suffering from the said diseases. Further, affidavit of the treating doctor who had recorded the patient history, at the time of preparing Discharge Summary/Assessment Report, has not been produced on record. The entire defence revolves around the said Discharge Summary/Assessment Report, which is not supported by cogent document and on the basis of that Discharge Summary, the OPs No.2 & 3 cannot repudiate the claim of the complainant. In the case of Rajinder Singh Vs. The New India Assurance Co. Ltd. & Ors., 2018(3) CLT-187, the Hon’ble State Commission Haryana, has held that “the treating doctor mentioned that the complainant was suffering from diabetes and hypertension for the last about three years without mentioning his source of knowledge in this regard and has not mentioned as to whether the patient had himself told him that he was suffering from the abovementioned ailments- Repudiation of the claim was not justified”. Further, in the case of LIC of India Vs. Joginder Kaur, 2005, CPJ-78, the Hon’ble State Commission Haryana has held that “the unproved case history recorded by some person on the date of admission of the patient, would not be cogent and convincing evidence to repudiate the case, unless it was coupled with medical record for the treatment prior to the submission of the proposal form”.

11.            From the record, it is born out that the age of mother of the complainant was more than 68 years at the time of taking the policy in question, therefore, as per IRDAI guidelines, it was incumbent upon the OPs No.2 & 3, prior to accepting the premium and issuing the policy, got medically examined the mother of the complainant. As it has been held by the Hon’ble State Commission, U.T., Chandigarh, in the case of Manish Goyal Vs. Max Bupa Health Insurance Co. Ltd. and others, 2018 (2) CLT, 205 that “If the opposite parties themselves, failed to adhere the instructions issued by Insurance Regulatory & Development Authority of India (IRDAI), by putting the insured to through medical examination, being her age more than 45 years, and were interested in collecting premium from the complainant, as such, now at this stage, they cannot evade their liability”.

12.            The plea of the OPs No.2 & 3 is that the mother of the complainant was a known case of Type-II diabetes mellitus, parkinsonism and this fact has not been disclosed by the complainant at the time of taking the policy in question and has drawn attention of this Forum towards the column “Past History of Discharge Summary” of the mother of complainant (Ex.R2), wherein, both these diseases are mentioned. However, the OPs No.2 & 3 cannot be used the “diabetes mellitus” as concealment of pre-existing disease for repudiation of the insurance claim. In this regard, we can rely upon the case law titled Life Insurance Corporation of India Vs. Sudha Jain 2007(2) CLT 423, the Hon'ble Delhi State Consumer Disputes Redressal Commission, New Delhi has drawn conclusions in para 9 of the order and the relevant clause is 9(iii), which is reproduced as under:-

                "9(iii) Malaise of hypertension, diabetes occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in and out of the house and are controllable on day-to-day basis by standard medication and cannot be used as concealment of pre-existing disease for repudiation of the insurance claim unless an insured in the near proximity of taking of the policy is hospitalized or operated upon for the treatment of these diseases or any other disease."

                Now coming to the disease Parkinsonism, however, from the internet, we have taken out definition of said disease as Mark A, which reads as under:-

                Parkinson’s disease is an illness that affects the part of your brain that controls how you move your body. It can come on so slowly that you don’t even notice it at first. But over time, what starts as a little shakiness in your hand can have an impact on how you walk, talk, sleep and think. You’re more likely to get it when you’re 60 and older. It’s also possible for it to start when you’re younger, but that doesn’t happen nearly as often”.

                So, from perusal of said definition, it is revealed that generally a person suffered from the Parkinson disease in the old age above 60 years. However, the mother of the complainant was also above the age of 68 years at the time of taking the policy in question by the complainant and that’s why the complainant taken Senior Citizen Red Carpet Insurance policy for his 68 years old mother and in this regard, the OPs No.2 & 3 had taken a special premium as senior citizen, so the OPs No.2 & 3 are also not justify in repudiating the claim of the complainant due to the said diseases.

13.            The complainant further contended that the OPs No.2 & 3 have not supplied the terms & conditions of the policy in question to him with the cover note. This contention of the complainant has force, because the OPs No.2 & 3 has not produced any documentary proof to establish that the terms & conditions of the policy in question were duly acknowledged to the complainant alongwith the policy cover note. Moreover, the OPs have also not produced any signed copy of the terms & conditions by the complainant, as a token of its receipt. Our view is supported by the case laws titled as National Insurance Company Ltd. Vs. Rajan Narain (supra), wherein, the Hon’ble National Commission, New Delhi has held that Insured felt chest pain within 3 days of taking policy- Underwent heart surgery three weeks later- Repudiation of claim- On ground of suppression of pre-existing disease alleged- Deficiency of service alleged- Complaint allowed-Compensation awarded – Dismissal of appeal- Challenged by revision- Held, complainant was neither aware of exclusion clause nor was supplied with terms and conditions of policy at time of issuing cover note- Since, complainant having heart disease prior to taking of policy not proved- Thus, complaint rightly allowed- Order upheld- Interference declined- Revision dismissed.

14.            The complainant purchased the policy in question on 24.10.2013 and the mother of the complainant was died on 18.2.2016, but the OPs No.2 & 3 had cancelled the policy in question on 10.06.2016 i.e. after more than 2½ years from the date of purchasing the policy in question, which is unjustified because, an insurance policy is a contract between the two parties and as such both the parties are bound by the same.

15.            Keeping in view the ratio of the case laws laid down by the superior Fora in the aforesaid cases and the facts & circumstances of the present case, we are of the considered opinion that the OPs No.2 & 3 has not been able to prove the allegations, on the basis of which, they had repudiated the claim of the complainant as well as cancelled the policy in question after paying the amount of Rs.20,520/-. Thus, the repudiation of the claim as well as cancellation of policy done by the OPs No.2 & 3, is held to be unjustified and amounts to deficiency in services on the part of OPs No.2 & 3. Hence, the OPs No.2 & 3 are liable to revive the policy in question and thereafter to reimburse the amount which the complainant had incurred on the treatment of his mother.

16.            Now the question which arises for consideration is what should be the quantum of indemnification? At the time of arguments, the learned counsel for the complainant has contended that the complainant has spent total Rs.4,13,312/- on the treatment of his mother. In this regard, the complainant has produced bills of three hospitals i.e. Amrit Dhara, Karnal; Medanta Hospital, Gurgaon & Saraswati Mission Hospital, Pehowa as Ex.P14 to Ex.P25, Ex.P29 & Ex.P32 to Ex.P45 amounting Rs.50,183/-, Rs.3,35,070/- and Rs.28,059/- respectively, total amounting Rs.4,13,312/-. From the policy document Ex.P-1, it is evident that the sum assured in the policy was Rs.5,00,000/-, therefore, the OPs No.2 & 3 are liable to reimburse the said amount of Rs.4,13,312/- alongwith interest to the complainant. They are also liable to compensate the complainant for the mental agony and physical harassment suffered by him, alongwith litigations expenses.

17.            In view of the aforesaid discussion, we hereby allow the present complaint against the OPs No.2 & 3 and direct them in the following manner:-

1. To revive the policy in question after deducting the amount of   Rs.20,520/- from the awarded amount.
2. To pay the amount of Rs.3,92,792/- (Rs.4,13,312/- -        Rs.20,520/-) alongwith interest @ 6% per annum w.e.f.      03.8.2016 i.e. the date of the filing the present case, till its        realization to the complainant.
3. To pay Rs.10,000/- as compensation for mental agony and        physical harassment suffered by the complainant.
4. To pay Rs.5,000/- as litigation expenses.

 

                The OPs No.2 & 3 are further directed to comply with the aforesaid directions within the period of 30 days from the date of preparation of certified copy of this order, failing which, the complainant will be at liberty to initiate proceedings under Section 25/27 of the Act against the OP. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the record-room, after due compliance.

Announced in open Forum:

Dt.:21.01.2020.  

                                                                        (Neelam Kashyap)

                                                                        President.

 

(Issam Singh Sagwal)          (Neelam)       

Member                             Member.