Haryana

Panchkula

CC/177/2018

RAMPAL SHARMA - Complainant(s)

Versus

APOLLO MUNICH HEALTH INSURANCE CO.LTD. - Opp.Party(s)

VIKRAM CHAUHAN

27 Dec 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

                                                              

Consumer Complaint No	:	177 of 2018
Date of Institution	:	09.10.2018
Date of Decision	:	27.12.2021

 

Rampal Sharma s/o Shri Geeta Ram(since deceased) now represented through his legal heirs 1. Mamta Sharma wife of Rampal Sharma; 2. Ajay Sharma; & 3. Rohit Sharma sons of Rampal Sharma presently residing at H.No.169, Anand Vihar, Baltana, SAS Nagar, Mohali.

                                                                        ….Complainant

Versus

1.      HDFC ERGO Health Insurance Limited(Formerly known as Apollo Munich Health Insurance Co. Ltd.)  SCO No.857 above Bob Shooz, 1^st Floor, NAC, Manimajra through its manager.

         2^ndaddress:- Housing Board Complex, H.No.90-D, Bel Colony, Sector-14, Panchkula, Haryana-134113 through its manager.

2.      Head office:- HDFC ERGO Health Insurance Limited(Formerly known as Apollo Munich Health Insurance Co. Ltd.) 4^th Floor, SCO 50-51, Sub City Centre, Sector-34-A, Chandigarh through its Managing Director.

3.      Saurav agent Apollo Munich Health Insurance Co. Ltd.(Now HDFC Ergo General Insurance Co. Ltd.) SCO No.857 above Bob Shooz, 1^st Floor, NAC, Manimajra.

                                                                                    ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:                Sh.Satpal, President.

Dr.Pawan Kumar Saini, Member.

Dr.Sushma Garg, Member.

 

For the Parties:    Sh. Vikram Chauhan, Advocate for   complainant.

                           Sh. Sachin Ohri, Advocate for OPs No.1 & 2.

OP No.3 already ex-parte vide order dated 01.3.2019.

 

                                             ORDER

Per Dr. Sushma Garg

1.               The present complaint was originally filed by Sh. Rampal Sharma s/o Geeta Ram Sharma, but during the pendency of the complaint, the complainant died, hence his legal heirs have been brought on record. The name of the OP Insurance Company has also been changed from Apollo Munich health Insurance Company to HDFC ERGO health Insurance Ltd.

2.               The brief facts of the present complaint are that the OP No.3 met with the complainant Rampal Sharma (since deceased) and allured him to obtain a cashless health insurance policy of the OP No.1. The complainant believed the versions of OPs to be true and genuine and purchased a policy i.e. Apollo Munich Accident and Health Insurance Policy (optima restore floater) for his family, bearing policyno.111400/11121/ AA00791333 valid w.e.f.22.03.2018 to 21.03.019 and had paid a sum of Rs.18176.72 as premium to the OPs. They assured the complainant that he and his family members were covered under this policy and in case of any injury or ailments, all the expenses of treatment of the insured will be borne by the company i.e. OP No.1 and will get cashless treatment upto Rs.5,00,000/-. Unfortunately, on 20.06.2018 son of the complainant fell down from stairs of his house and suffered injury in his left knee.  On the next day i.e. on 21.06.2018, they went to Fortis Hospital, Mohali where the doctor after thorough checking advised him for MRI.  As per advise of doctor, they got his MRI from Panchkula Welfare Trust, NH-1, MDC, Sector-4, Panchkula on 21.06.2018. The doctor after perusal of report of MRI advised them for ‘LEFT ARTHROSCOPIC ACL RECONSTRUCTION’ i.e. for knee surgery and gave the estimate of surgery etc. to Rs.2,70,000/-.Thereafter, the complainant visited the OPs and showed them all the medical reports and related documents but OPs rejected the claim of the complainant on false and frivolous pretexts. Due to non compliance of promises of OPs, son of the complainant is still suffering from heavy pains & suffering and was not operated upon till date, in spite of the fact that the complainant had paid huge amount of premiums. Thereafter, the complainant has served a legal notice to the Ops with registered A.D. on 12.07.2018 but OPs did not sent any reply of the same. Due to act and conduct of the OPs, the complainant has suffered mental agony, physical harassment and financial loss; hence, the present complaint.

3.               Upon notice, OPs No.1 & 2 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being false and baseless; cause of action; suppressed the material facts; barred by law of limitation; the complainant has not come with clean hands; no jurisdiction and non-joinder and mis-joinder. On merits, OPs No.1 & 2 stated that the complainant approached the OP for availing an Insurance policy. As per the process involved, proposer submitted proposal form hereinafter referred as PF bearing application no.10863208 dated 09.03.2018 for issuance of an insurance policy namely Optima Restore Floater Insurance Policy so as to provide an insurance cover for himself and his family. Believing the declaration, information and details provided by the proposer including  the medical history in the PF to be true, correct and complete in all respect, giving due credence to the  under writing norms of OP, a Policy no.111400/11121/AA00791333 was issued for sum assured opted as per PF, to the proposer for the period between 22.03.2018 to 21.03.2019. It is also submitted that the policy kit containing all relevant documents were duly received by the complainant/ proposer, thereby giving an opportunity to complainant to verify and examine the benefits, terms and conditions of the policy taken by the complainant and  no objection, within the free look period i.e. 15 days, was received from the complainant. It is further submitted that cashless request was received from Fortis Hospital, Mohali for patient Ajay Sharma  who got admitted in Fortis Hospital Mohali with date of admission as 26.06.2018 for left Anterio cruciate ligament tear for menisectomy and ligament repair estimated amount of Rs.2,60,000/-. Post scrutiny of medical documents provided by the Hospital/complainant, it was observed that the said ailment comes under the waiting period of 2 years and policy was running on its 1^st year. Therefore, cashless facility was rightly rejected and claim for the treatment of expenses incurred on ACL Tear is not covered because it has waiting period of 2 years under the policy. Thus, there is no deficiency in service on the part of the OPs No.1 &2 and prayed for dismissal of the present complaint.

4.               To prove his case, the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-19 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OPs No.1 & 2 has tendered affidavit Annexure R1/A along with documents Annexure R1/1to R1/5 and closed the evidence.

5.               We have heard the learned counsels for the complainant and OPs No.1 & 2 and gone through the entire record including the written arguments filed by the learned counsel for complainant and OPs No.1 & 2.

6.               In this complaint the complainant’s son was diagnosed with Anterior Cruciate Ligament Tear (ACL tear)(in short ‘Ligament Tear’) which was happened due to accidental fall. The doctors advised ligament tear medical repair/reconstruction treatment.  For the said treatment, the complainant contacted the Ops(Insurance company) for cashless treatment as per the policy benefits,  but the OPs refused the claim stating  that the said treatment was not covered under section V  of the ‘Special terms and Conditions’ of the policy document(Annexure-R1/5).

7.               The relevant part of the said section V of the terms and conditions for the sake of ready reference is reproduced as under:

Section V.  Special terms and conditions

1. Waiting period

 

All illness and treatments shall be covered subject to the waiting periods specified below.

1. We are not liable for any claim  arising  due to condition for which appearance  of signs/symptoms, consultation, investigation, treatment or admission started within 30 days from policy Commencement date, except for the claims arising due to an accident.

 

2. A waiting period of 24 months from the first policy commencement date will be applicable to the medical and surgical treatment of illness /diagnoses or surgical procedures mentioned in the following table. However this waiting period will not be applicable where the underlying cause is cancer(s).

 

 

Sr. No.	Organ/Organ System	Illness/diagnoses (irrespective of treatment medical or surgical)	Surgeries/procedure (irrespective of any illness/ diagnosis other than cancers)
	Ear, Nose, Throat (ENT)	Sinusitis Rhinitis Tonsillitis	Adenoidectomy Mastoidectomy Tonsillectomy Surgery for Nasal septum deviation Surgery for Turbinate hypertrophy Nasal concha resection Nasal polypectomy
		Cysts, polyps including breast lumps Polycysticovarian disease Fibromyoma Adenomyosis Prolapsed Uterus	Hysterectomy
		Non infective arthritis Gout and Rheumatism Osteoporosis Ligament, Tendon and Meniscal tear Prolapsed inter vertebral disk	Joint replacement surgeries
		Cholelithiasis Cholecystitis Pancreatitis Fissure/fistula in anus, Haemorrhoids, Pilonidal sinus. Gastro Esophageal Reflux Disorder(GERD), Ulcer and erosion of stomach and duodenum Cirrhosis(however Alcoholic cirrhosis is permanently excluded) Perineal and Perianal Abscess Rectal Prolapse	Cholecystectomy Surgery of hemia
		Calculus diseases of Urogenital system including Kidney, ureter, bladder stones Benign Hyperplasia of prostate Varicocele	Surgery on prostate Surgery for Hydrocete/ Rectocele
		Cataract Retinal detachment Glaucoma
			Surgery of varicose veins and varicose ulcers
	General (Applicable to all organ systems/ organs whether or not described above)	Benign tumors of Non infectious etiologye, eg. cysts, nodules, polyps, lump, growth, etc.

 

However, the following section/clause of the policy is also relevant:-

Title	Description	Refer to policy clause number
Product Name	Optima Restore
What  am I covered for:	-	-
What are the major exclusions in the policy		-
Waiting Period	30 days for all illnesses (except accident) in the first year and is not applicable in subsequent renewals. 24 months for specific illness and treatments in the first two years and is not applicable in subsequent renewals Pre-existing Diseases will be covered after a waiting period of 36 months.	Section V.A i)     Section  V.Aii)     Section V.A.iii)

 

“Section l. Inpatient Benefits

This section of benefits is applicable when

• An insured suffers an Accident or illness which is covered this policy
• Hospitalsation is necessary & is done for treatment or
• Day care  treatment is necessary and is done or
• Domiciliary treatment is necessary and is done”.  

 

Section VII. Other Important Terms You should know

            The terms defined below and at other junctures in the policy wording have the meanings ascribed to them wherever   they appear in this policy and where appropriate, references to the singular include references to the plural, references to the male include the female and references to any statutory enactment include subsequent changes to the same.

Def.1. Accident means a sudden, unforeseen and involuntary event caused by external, visible and violent means.

Def.26  Illness means a sickness or a disease or pathological condition leading to the impairment of normal physiological function and requires medical treatment.

1. Acute condition- Acute  condition  is a disease, illness or injury that is likely  to respond  quickly  to treatment  which aims to return  the person  to his or her state of health immediately  before suffering the disease/illness/ injury  which leads to full recovery.
2. Chronic condition- A chronic, condition is defined  as a disease, illness or injury  that has one or more of the following characteristics:-

1. It needs ongoing or long-term monitoring through consultations, examinations, check-ups and/ or tests.
2. It needs  ongoing  or long-term control or relief of symptoms
3. It requires rehabilitation for the patient or for the patient to be specially trained to cope with it.
4. It continues indefinitely.
5. It recurs or is likely to recur.

Def. 27Injury means accidental physical bodily harm excluding illness or disease solely and directly caused by external, violent, visible and evident means which is verified and certified by a Medical Practitioner”.

 

8.               A perusal of the above reproduced relevant terms and conditions of the policy reveals that there is a 30 days waiting period for all illnesses except accident which means that there is no waiting period in case of any injury due to accident. Further there is a waiting period of 24 months for specific illness and treatment as mention under section V of the policy conditions, which section has been strongly relied upon by the Ops. However as per  clause (i) to section (V) says that the insurer is not liable for any claim for conditions, symptoms etc. arising within 30 days of issuance of policy “except claims arising due to accident.” which means there is no condition of any  waiting period in case of claims arising due to accident. Further as per Section (I) of the policy document, the benefits under the policy are available “when an insured suffers an accident or illness which is covered under this policy”. Now as per ‘section VII’ of the policy document, the term accident has been defined as a sudden, unforeseen and involuntary event caused by external visible and violent means. The natural consequence of an accident as in this case also is infliction of an injury. Now the term “Injury” as per policy documents means accidental, physical bodily harm “excluding illness or disease” which means that the terms of the policy document clearly distinguish between an accidental injury and an illness. In the definition of “Injury”, illness and disease have been specifically excluded. Even the term “ Illness’ has been specifically defined which means a sickness or a disease or a pathological condition leading to the impairment of normal physiological function and requires medical treatment. This definition of illness does not include any injury due to accident rather it speaks of sickness or a disease or pathological condition only.  However, section V of the policy document excludes only certain illness and specific treatment thereof, and not any accidental injury.

9.               Even otherwise, a perusal of the chart of Section V shows that what has been excluded is certain illness which is generally developed/ progressed with the passage of time. Moreover specific ‘’treatment’ has also been mentioned in the chart. In case of Ligament, Tendon and Meniscal tear what has been excluded is “Joint replacement surgeries”. However, in the case of the complainant, the treatment advised is “ligament tear meniscal repair/reconstruction” and not joint replacement. Therefore, even otherwise, section V of the policy document does not exclude the treatment advised/required to the complainant. However, we have already held that in this case it was not the illness but accidental injury for which the insured was entitled to immediate cashless treatment as per policy terms and conditions.

10.             In view of above discussion we find no justification on the part of Ops in rejecting the cashless policy claim to the insured son of the complainant.

11.             It is very sadly pointed out that the Respondent Insurance Company has acted in such an irresponsible manner in this case that the very purpose of the concept of insurance has been defeated. The complainant Shri Rampal Sharma, who had paid hefty premium to the-OP insurance company on the promise of the OP that in case of any unforeseen eventuality, the OP will bear the financial burden for the treatment, if any, for him or his family members. However, the complainant in this case has passed away waiting for the financial assistance for the treatment of his son, for which the OP was bound to do so as per the terms of the contract. We are pained at such an irresponsible, negligent and inappropriate conduct of the OP. The hon’ble Supreme Court in a recent judgment titled as Shantilata Sethy and Another vs M/s Divisional Manager, The New India Assurance Co. ltd. (Civil Appeal No.7657- 7658 of 2021 vide order dated 11.12.2021) being deeply disturbed over the trauma that the old couple had to undergo over the motor accident death claim of their son, has wondered whether the insurance company possessed any “social conscience” at all. As noted by the Hon’ble Supreme court, there is a need of fundamental rethink on this.

12.             Since in this case, cashless treatment was immediately required due to accidental injury and the Ops have failed to provide the same, therefore, as observed above, since, there is a gross deficiency in service and unfair trade practice on the part of the Ops, therefore we are of the view that apart from direction for immediate cashless treatment of Sh.Ajay Sharma, the complainants further need to be suitably compensated taking into consideration the continuous pain and sufferings being faced by Sh. Ajay Sharma son of the complainant for want of treatment of his injuries and the pain and agony faced by the complainant, Rampal Sharma during his life time and his family members, thereafter. The present complaint is dismissed qua OP No.3. The present complaint is hereby partly allowed against OPs No.1 & 2, who are held liable jointly and severally and directed as follows:

1. To provide cashless treatment without any deductions, whatsoever, to Sh. Ajay Sharma son of complainant within 30 days of the receipt of copy of this order under due intimation to him and as per his convenience. In case the OPs fail to provide him the treatment as directed, the OPs will be liable to pay further sum of Rs.500/- per day for each day’s default, however, the time period passed, if any, due to delay on the part of Sh. Ajay Kumar will be excluded. 

2. To pay a compensation of Rs.50,000/-to Sh. Ajay Sharma for the pains and sufferings he has to bear for want of treatment.

3. To pay a compensation of Rs.25,000/- on account mental agony and physical harassment to all the LRs of the complainant Rampal Sharma, to be divided equally among them.

4. To pay litigation expenses of Rs.5,500/-.

13.             The OPs No.1 & 2 shall comply with the order within a period of 30 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71 of CP Act, 2019 against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on: 27.12.2021

 

           Dr.Sushma Garg          Dr. Pawan Kumar Saini      Satpal

                    Member                    Member                        President

 

Note: Each and every page of this order has been duly signed by me.

 

                                             Dr.Sushma Garg 

                                                Member