FINAL ORDER/JUDGEMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The complainant has filed the petition of complaint against the OPs U/s 11 read with Section 12 of the CP Act, 1986.
The fact of the case in brief is that the complainant being a senior citizen of India is residing within the jurisdiction of this case. He approached by the agent of the OPs who is a Pvt. Sector Health Insurance Co. and purchased a health insurance policy where the complainant and his wife could avail the benefit of the medical facility. They purchased the policy of the “Easy Health Floaters Standard” policy being policy No. 150300/11051/1000159122-01. The subject policy was valid on and from 23.01.2011 to 22.01.2012 subject to further renewal on or before the expiry of the policy term and the complainant was renewed the subject policy time to time.
It is further stated by the complainant that during continuation of the subject policy the representative of the OPs introduced with the benefits of “Optima Restore Floater Medical Facility”. The complainant was suggested by the OP to switch over to the said plan. Being impressed by the offer and/or benefit of the said policy the complainant decided not to continue with the previous policy and accordingly did not further renew the previous policy.
Under such circumstances, the complainant took the policy in question being “Optima Restore Floater Medical Policy”. Being Policy No. 150300/11121/6000070704-04 or (1503000/1112/600007074 mentioned in renewal advice 12.12.2014) only covering the complainant and his wife i.e Sri Shankar Lal Mundra and Smt. Leela Mundra in terms of the said policy. The complainant and his wife were provided cashless medical facility by the insurer upto Rs.3,00,000/-. The policy was valid on and from 24.01.2018 to 23.01.2019. The photocopy of the policy card issued in favour of the complainant and his wife are annexed herewith as “A”.
It is further case of the complainant that prior to the issuance of the subject policy the OP conducted complete medical check up of the complainant and his wife by its authorised and/or empanelled doctor and after such medical check up being satisfied with physical and mental health condition of the complainant and his wife, the said policy was issued to the complainant. After receiving the said policy in favour of the complainant, the complainant sent an electronic email on 02.01.20114 and 28.03.2014 to the official email to the OP as to whether the “Parkinson’s” diseases was covered under the said policy or not because he is suffering from the said disease and attending Dr. had recommended the complainant to undergo with DBS Surgery. The estimate of expenditure of that surgery and the post surgery medication could be cost around Rs.8,00,000/- to Rs.10,00,000/- approximately. The complainant made enquiry whether he was entitled to be said coverage or not. The copy of the said mail is annexed herewith as “B”.
It is alleged by the complainant that though the OP acknowledged the receipt of the said mail by a reverse mail dated 04.01.2014 but failed to give any reply to that effect. Thereafter, on 28.04.2014 the complainant had undergone with the DBS surgery in Jaslok Hospital in Mumbai and paid a sum of Rs.11,36,000/- as surgery cost. After the surgery the complainant forwarded the claim along with relevant document for the surgery to the OP but the OP repudiated the claim. On the pretext that, it was pre-existing disease and the complainant has entitled to get medical coverage for the said disease only after 36 month from the date of said policy. Copies of invoice of renewal of policy issued by the OPs are annexed herewith as “C”.
It is further stated that till date the complainant paid a sum of Rs.1,80,787.99 i.e. as premium for the year 2013 to 2015 to 2018 to 2019 to the OP to avail the said benefits. The complainant further stated that he was agreed to continue the policy from time to time as per assurance of the OP and alleged that sometimes in the year 2018 suddenly the OP increased 30% premium fee without any prior notice given to the complainant.
It is further stated by the complainant that in the year 2016 the complainant made his cataract surgery in Disha Eye Hospitals Pvt. Ltd. and the expenses of Rs.20,500/- was reimbursed by the OP.
The complainant further stated in his petition of complaint that on or about 5th May, 2018 the complainant suffered heavy pain in his abdomen then he was taken to Colombia Asia Hospital situated at Saltlake City. As per Dr’s. advice he was admitted in said hospital and undergone several test and was diagnosed. The Dr. diagnosed that the complainant was suffering from possible appendicitis then the complainant informed the OP insurance Co. in that effect and requested for cashless medical facility in the said hospital but the OP denied his request rather they asked the complainant to forward Dr’s. prescription and informed expected duration to take place of such treatment. In spite of the same, cashless facility was denied by the OP. The complainant then discharged from the hospital on 10th May, 2018 and discharged bill of Rs.8,935/- only which was paid by the complainant from his own pocket. The discharge certificate has been brought into evidence as “E”. After his discharge from the hospital, the complainant submitted the bills issued by the hospital before the OP-2 Insurance Co. for reimbursement of medical expenditure. The photocopy of reimbursement is marked as “F.”
But ultimately in the month of June, the OP Insurance Co. sent a refusal letter to the complainant to give benefit of the said policy. All bills paid by the complainant under the said policy. The notice of termination was served upon the complainant by the OP-2 on the plea that the complainant did not disclose that he was suffering from the said disease at the time initiation of health insurance coverage. Photocopy of the letter dated 08.06.2018 is annexed as “G”.
Thereafter, on prayer of 2018, the complainant sent letter to the OP raised objection of termination of insurance policy which is annexed as “H”.
It is stated by the complainant that the OP cannot reveal out from his obligation to reimburse the medical reimbursement placed by the complainant in or about in May, 2018.
It is the claim of the complainant that he did not suppress any fact at the time of initiation of policy and at this stage when the complainant is 67 years and his wife 65 years they have got no scope to get new policy at this age.
Under such circumstances, the complainant claimed the refund of Rs.3,00,000/. The sum assured in policy in question and principle amount of premium. He has paid of Rs.1,80,787.99 along with interest @ 18% p.a. and has filed the petition of complaint with a prayer to give the direction to the OP to refund a sum of Rs.1,80,787.99 along with interest @ 18% p.a. from the date of each payment till realisation and also prayed for giving direction upon the OP to pay a sum assured of policy in question to tune of Rs. 3,00,000/- or to give direction to the OPs to recall letter of termination of policy and to release the claim raised by the complainant on May, 2015 along with compensation of Rs. 2,00,000/- for mental pain and agony and litigation cost of Rs. 50,000/-.
The OPs 1 and 2 have contested the claim application by filing WV denying all the material allegations levelled against them. It is the case of the OP that the petition of complaint is baseless concocted and malafide.
It is the case of the OPs that the petition of complaint is liable to be dismissed U/s 26 of CP Act, 1986.
it is the further case of the OP that the claim of the complainant are paid by the Insurance Co. out of common pool of funds belonging to all policy holders of the company and the insurance co. has to check the admissibility of the claim before honouring the same .As such, any payment is claimed in the complaint would be undue discrimination with the other policy holders who are insured in same risk pool.
It is alleged by the OPs that the complainant has concealed the materials and correct facts with malafide intention. The present petition of complaint is liable to be dismissed on the ground that the complainant failed to mention even a single cause of action in his complaint to file false and baseless complaint.
It is further alleged by the OPs that the complainant did not mention about his pre- existing disease in the declaration of proposal form and he has no cause of action or locus standi to file the case. Hence, the case is liable to be dismissed.
In view of the above pleadings, the points of consideration are as follows:-
- Is the case maintainable in its present form?
- Is there any cause of action to file the case?
- Is the complainant a consumer within ambit of CP Act, 1986?
- Is there any deficiency in service on the part of the OPs?
- Is the complainant entitled to get relief as prayed for?
- To what other relief or reliefs is the complainant entitled to get
Decision with Reasons
All the points of consideration are taken up together for convenience of discussions and to avoid unnecessary repetitions.
On careful perusal of the materials on record and on consideration of the fact and circumstances of this case it appears that the OP-1 HDFC Ergo General Insurance Co Ltd. has its head office at Mumbai which is beyond the jurisdiction of this commission and complainant was seeking permission from this forum by filing a misc application being No. 24/2019 with a prayer to proceed the case against the OP-1. That permission as sought for by the complainant has given by the forum vide order No 02 dated 05.02.2019. Under such circumstances, it can be held by the commission that the complainant got the permission from the Forum as per law and was permitted to proceed the case against the OP-1. Under such circumstances, it is held that this Forum has got the territorial as well as pecuniary jurisdiction to try this case.
As per the plea of limitation is concerned. It is found that the cause of action arose on 23.01.2013 and on and from 23.01.2013 and onwards till 23.01.2018 lastly on 15.05.2018 and he filed the case on 18.01.2019 which is well within the period of limitation.
Hence, in view of above discussion it is held by this forum that the case is well maintainable in eye of law.
Let us see whether the complainant is a consumer within the ambit of CP Act, 2 (d) (ii) or not. Admittedly, the complainant purchased the mediclaim policy from the OP insurance Co. in the year 2011 under the nomenclature “Easy Health Floater Standard” having policy No. 15030011051/ 1000159122-01 to avail cashless medical facility by the OP upto Rs.3,00,000/- to the complainant and his wife and the policy was renewed on time to time.
From the evidence on record as adduced by both the parties we have got it that as per advice of OP insurance Co., the consumer/complainant switched over to “Optima Restore Floater Medical Policy” on 12.12.2014 and the said policy was also renewed time to time and which was valid on and from 24.01.2018 to 23.01.2019. So, from the materials as well as evidence on record and also from the written argument as well as oral as advance by the Ld. Advocate of both the sides, it is revealed that since purchasing the health policy by the complainant and the OP Insurance Co. the complainant is a consumer within the ambit of U/s 2 (d) (ii) of the CP Act, 1986 and the OPs are the service provider.
It is the further case of the complainant is that on 02.01.2014 and 28.01.2014 the consumer/complainant by electronic emails categorically asked the OP as to whether the disease “Parkinson” was covered under the said policy because he is suffering from the said disease and Dr. had advised him to undergo with the DBS surgery. So the consumer categorically raised an enquiry as to whether he was entitled to the said coverage or not. But the OP insurer failed and or neglected to reply the said enquiry of the consumer. Ultimately on 28.04.2014 the consumer had undergone the said surgery at Jaslok Hospital in Mumbai and spent a sum of Rs. 11,36,000/- has surgery cost. Then the consumer placed the claim in writing along with all required documents of the surgery before the OP insurer but the OP insurer declined such claim on the grounds that the “Parkinsons” is pre existing disease and the consumer is not entitled to get medical coverage only after 36 months from the said policy.
It is the respective argument of the consumer that he got the medical policy form in the year 2011 and it is continued from 2011 to 2019. The insured i.e. consumer have paid a substantial amount of Rs.1,80,787.99 as policy premium to the insurer. From the email dated 01.02.2014, it is evident that the Insurance Company was aware that the consumer had Parkinson disease and in spite of same the policy was renewed time to time therefore the purported refusal of such mediclaim is completely illegal and against the Insurance Act, 1938 and the Insurance Regulatory and Development Authority, 1999. In this regard, the insurer/ OP i.e. the insurance co. in its evidence stated that one great principle in law is that any content in insurance that “One Great Principle of Insurance Law” any contract of insurance based on utmost good faith, uberrima fides. Therefore, the principal underline doctrine of disclosure and the rule of good faith obliged the proposal to answer every question put to him with complete honesty”.
The OP/Insurance Co. further submitted that “proposal form means a form to be filled in by the prospect in written or electronic or any other format as approved by authority for furnishing all material information requested by insurer in respect of a risk in order to enable the insurer to take informed decision in the context of under writing the risk, and in the event of acceptance of the risk, to determine the rate, advantages, term and condition of cover to be granted and the “Material Information ” for the purpose of this regulation shall mean all important, essential and relevant information sought by the insurer in the Proposal Form and other connected documents to enable him to take informed decision in the context of under writing the risk”. The OP insurer alleged that the insured complainant misrepresented the fact so his claim is unsustainable in terms of the insurance policy.
In this regard, the complainant in his BNA stated that in several cases i.e. Sushila Ben Indrabadan Gandhi and Ors. Vs. the New Indian insurance Co. Ltd. & Ors. (2021) 7 SCC 151 Satwant Kaur Sandhu Vs. New India Insurance Co. Ltd. (2009) AIR SCW 7213 and Canara Bank Vs. United India Insurance Co. AIR On Line 2020 Supreme Court 137 . It is decided and observed by the Hon’ble Apex Court that “if any query” or column in a proposal form is left blank then the Insurance Co. must ask the insured to fill it up. if in spite of any column being left blank, the Insurance Co. accept the premium and issues a policy, it cannot at a later stage, when the claim is left under the policy, say that there was a suppression or non-disclosure of a material fact, and shift and repudiated the claim. The Insurance Co. has the right to seek the details regarding medical condition, if any, of the proposal by getting the proposal examined by one of its empanelled Dr. If, on the condition of medical report be Insurance Co. satisfied about the medical condition of the proposar and on such satisfaction it has issued the policy, it cannot thereafter, contained that there was a possible pre existing illness or seekness which has left to the claim being made by the insured for that reason repudiated the claim.
In the instant case, the OP Insurance Co. initially issued the insurance policy of health scheme to the complainant insured in the year 2011 on receipt of required premium and year to year to renewed the same till 23.01.2019. Initially the policy was issued being named as “Easy Health Floater Standard” having policy no. 15030011051/ 1000159122-01 to avail cashless medical facility by the OP upto Rs. 3,00,000/- to the consumer and his wife and thereaftrer, as per advice of OP Co. the Consumer switched over to “Optima Restore Floater Medical Policy” on 12.12.2014 and it was renewed upto 23.01.2019. From the evidence on record it is crystal clear that on 02.01.2014 and 28.01.2014, the consumer disclosed his disease “Parkinson” to the OP insurer by mail and he wanted to know whether the disease Parkinson” was under the coverage of subject policy or not and thereafter, without giving any reply of query of the consumer the OP insurer renewed the policy upto 23.01.2019. So relying upon the view of Apex Court, this Forum is also opined that once a policy has been issued after examining the medical condition of the insured. The insurer cannot repudiated the claim by citing and any pre existing medical condition which was disclosed by the insured either in the proposal form or later on to the insurer and which condition has left to particular risk in respect of which the claim has been made by insured. So, in the instant case when the insurer OP even after getting the knowledge of disease of “Parkinson” of the insured of year 2014 has renewed the policy time to time upto 23.01.2019 then it cannot repudiated the claim by the insured on the ground of suppression of pre existing disease.
Moreover, in the instant case admittedly the OP insurance Co. examined the consumer and his wife by one of its empanelled doctor and being satisfied with the health condition of the consumer and his wife the insurance co. i.e. the insurer issued the health policy certificate in favour of the complainant/consumer. Under such circumstances, when the claim be placed before the insurance co., the insurance co. cannot deviate from its stand and not repudiate the claim on the ground of suppression of pre existing decease.
It is also the case of insured that in the year 2018, the OP insurer suddenly increased the premium @ 30% without any prior notice or intimation to the insured. Thereafter on 05.05.2018 the insured was admitted at Colombia Hospital at Salt lake for treatment of appendix and he sought to arrange the cashless medical facility. However, the same was repudiated by the Insurer on the ground that the insured had history of Parkinson and the same was suppressed by him in the proposal form. Thus, the policy was terminated. In that score the insured paid a sum of Rs. 89,835/- towards the hospital expenditure and even after, remaining the policy on repeated occasions the insurer terminated the policy and repudiated the claim.
In the discussion made above, It has been discussed vividly and opined by this Forum that once the insurer being satisfied by the declaration of insured and issued the policy then they cannot repudiated the same on the ground of suppression of pre existing disease.
Now a days, it is the trend as observed by this forum the insurer always tried to deprive the insured on the pretext of pre existing disease even after issuing the policy then renewed the same for years together just to enhance their business. That trend should be condemned by this forum and keeping in mind the observation of Ho’ble Apex Court in several cases and relying upon the same this forum is of view that at the time of issuance of insurance policy if the insurer failed to discharge its obligation to examine the insured by one of it’s empanelled doctor and issued the policy in favour of the insured on receipt of required premium and also renewed the same time to time on several occasions then suddenly they cannot repudiated the claim of the insured on the ground of suppression of pre existing decease which claim is the right of the insured to get from the insurer.
Moreover, the OP/insurer has terminated the “Optima Restore Floater Medical Facility” being policy No. 150300/11121/6000070704-04 or (150300/11122/6000070704) mentioned on renewal advice 12.12.2014) for a total floater of Rs.3,00,000/- covering the complainant/insured and his wife Smt. Leela Mundra. The complainant /insured and his wife being the senior citizens ageing about 67 years and 65 years old. So, they could not get any new health policy. Under such circumstances, the OP insurer behaved in-humanly and terminated the policy which they cannot.
In view of the discussions made above, this forum is of view that the complainant/consumer/insured could be able to prove his case beyond all reasonable doubt because the OP/insurer caused harassment mental pain and agony to him repudiating the claim of the complainant/insured and to terminate the policy which proved that there was/is sufficient deficiency in service on the part of the OP/insurer and for which they should be liable to give compensation to the complainant /insured.
Thus, the complainant/insured is entitled to get the relief as prayed for.
All the points of consideration are thus, discussed favourably to the complainant/consumer /insured.
The case is properly stamped.
Hence,
Ordered
That the case be and the same is decreed on contest against both the OPs with exemplary cost of Rs. 1,00,000/-.
The complainant do get the decree as prayed for.
The OPs are directed to refund a sum of Rs.1,80,787.99 towards the premium paid by the complainant/insured either jointly or severally along with interest @ 9 % p.a. from the date of filing till realisation within 45 days from the date of this order.
The OP is further directed to pay the coverage value of the subject policy of a sum of Rs.3,00,000/- to the complainant /insured either jointly or severally within 45 days from the date of this order
The OPs are further directed to pay a sum of Rs.11,36,000/- to the complainant insured for his DBS surgery made in Jaslok Hospital at Mumbai dated 15.05.2018 either jointly or severally within 45 days from the date of this order.
The OPs are further directed to pay compensation to the complainant/insured of Rs.2,00,000/- along with litigation cost of Rs.50,000/- either jointly or severally within 45 days from the date of this order i/d the complainant / insured is at liberty to execute the decree as per law.
Copy of the judgment be supplied to the parties free of cost as mandated by the CP Act. The Judgement be uploaded forthwith on the website of the Commission for perusal of the party.
