Chandigarh

DF-I

CC/130/2016

Sandeep Dewan - Complainant(s)

Versus

Apollo Munich Health Insurance Company Ltd. - Opp.Party(s)

Sukaam Gupta

10 Jul 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

 

                               

Consumer Complaint No.	:	CC/130/2016
Date of Institution	:	19/02/2016
Date of Decision	:	10/07/2018

 

Sandeep Dewan, House No.1129, Sector 11, Panchkula, Haryana.

… Complainant

V E R S U S

1.     Apollo Munich Health Insurance Company Ltd., SCO 50-51, 4^th Floor, Sector 34-A, Chandigarh through its Manager.

2.     Apollo Munich Health Insurance Company Ltd., 10^th Floor, Tower-B, Building No.10, DLF Cuber City, DLF City, Phase-II, Gurgaon, Haryana-122002 through its Managing Director. 

… Opposite Parties

CORAM :	SHRI RATTAN SINGH THAKUR	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

                                                                     

ARGUED BY	:	Sh. Sukaam Gupta, Counsel for complainant
	:	Sh. Nitin Thatai, Counsel for OPs.

 

Per Rattan Singh Thakur, President

1.         Allegations in brief are, complainant had taken a mediclaim policy No.110300/11051/1000145481 for himself and his family which was operative from 26.12.2010 to 25.12.2011. The total sum assured was Rs.5,00,000/-. The complainant had ported the insurance policy on being assured all the existing benefits of continuity of the policy shall be provided to him. The complainant got renewed the said policy from the OPs for the period 2011-12, 2012-13, 2013-14 and 2014-15. 

                In the month of February 2015, son of the complainant namely Sh. Animesh Dewan had some cough problem and was taken to Alchemists Hospital where he was diagnosed with Large Ostium Secundum ASD with left to right shunt and was treated for the same and discharged on 23.2.2015. Amount of Rs.1,75,000/- was spent by the complainant for his treatment, however, the said claim was repudiated by the OPs on 4.4.2015 on the ground, disease suffered by the son of the complainant fell under exclusion clause and is a congenital disease which is not payable as per the policy.  Further case is, son of the complainant had no problem till the age of 8 years and, therefore, the same is not congenital disease. Thereafter the matter was carried to Insurance Ombudsman who awarded Rs.57,500/- i.e. the basic sum assured of the policy of National Insurance. It is also the case, pre-existing disease is covered after 36 months of continuous coverage and the complainant had got renewed the policy four times. Hence, the present consumer complaint praying for Rs.1,17,500/-, being the balance amount alongwith interest, compensation and costs of litigation.

2.         OPs furnished their joint written reply and, inter alia, raised preliminary objections of complaint being not maintainable. The decision of the Insurance Ombudsman has become final and has been accepted by both the parties as such the complainant is estopped to file the present consumer complaint.  It is also the case, congenital disease is not covered under the insurance policy, therefore, the claim was repudiated. The Ombudsman award was accepted and the amount of Rs.57,500/- was paid to the complainant in full and final settlement of the award.  On these lines, the cause is sought to be defended.
3.         Rejoinder was filed and averments made in the consumer complaint were reiterated.
4.         Parties led evidence by way of affidavits and documents.
5.         We have heard the learned counsels for the parties and gone through the record of the case.  After appraisal of record, our findings are as under:-
6.         Per pleadings of the parties and the documents adduced, it is true, the son of the complainant had suffered illness in the month of February 2015 and was hospitalized and diagnosed with large Ostium Secundum AD with left to right shunt and the bill raised was Rs.1,75,000/-.  It was a cashless policy, but, the complainant had to pay from his own pocket as the claim was repudiated being a congenital disease which was not covered under the policy.  It is also the admitted case, the Ombudsman of the Insurance Company had awarded a sum of Rs.57,500/- in favour of the complainant. The reasons recorded under paragraph No.6 of the award are reproduced below :-

“6.    After going through the written submissions and verbal pleadings, I am of a view that an out-right denial of a claim is not justified because there is a merit in the contention of Shri Sanjiv Dewan that he had ported a policy on being assured about porting of all the benefits provided under previous insurer’s policy. Here, it will be in order to allow a settlement of a claim on the basis of an available sum insured under ported policy of National Insurance Company for the year 2009-2010.  Accordingly, an award is passed with a direction to the Insurance Company to settle a claim restricting its liability to Rs.57,500/-.”

This shows, there was genuineness in the claim of the complainant and the amount of Rs.57,500/- was awarded under ported policy of National Insurance Company for the year 2009-10 even in spite of exclusion clause of congenital disease not being covered under the policy.  

7.         Per record, it is also the case, policy was in continuity right from 2009 onwards and was renewed yearly.  It is also the case, as per exclusion clause, congenital defect or disease is not covered under the insurance policy. 
8.         The first attack of the learned counsel for the OPs is, since the Ombudsman award was accepted by both the parties, therefore, the instant consumer complaint is not maintainable.  The learned counsel for the complainant has relied upon case titled as Kamleshwari Prasad Singh Vs. National Insurance Co. Ltd., I (2005) CPJ 107 (NC) in which under paragraph No.12 it was held as under :-

“12.  In view of the above discussion, it is held that the decision of the Ombudsman is not binding on the complainant and the decision of the Insurance Company to repudiate the claim is subject to adjudication by the Fora constituted under the Consumer Protection Act.”

Our own Hon’ble State Commission in case titled as The Oriental Insurance Co. Ltd. & Anr. Vs. Roseleen Sidhu, First Appeal No.22 of 2016 decided on 15.1.2016 had also held that the Ombudsman’s award is not binding.  No contra law has been shown by the learned counsel for the OPs.  As such, it is a settled position that the decision of the Ombudsman is not binding on the complainant and the decision of the Insurance Company to repudiate the claim is subject to adjudication by the Fora constituted under the Consumer Protection Act, 1986.  Therefore, per these precedents, we assume the power to entertain and decide the present consumer complaint. 

9.         The reason for repudiation is, the disease was covered under the exclusion clause as it was a genetic disease.  The OPs had not brought any record that any genetic tests were done and, therefore, the finding of being a congenital disease was arrived at.  There is no such record. It is mere saying of doctor the disease was diagnosed as ‘Atrial Septal Defect’, therefore, it was allegated to be a congenital disease.  It is the case of the complainant, his son had not suffered any disease till the age of 8 years.  Under this situation, genetic tests were mandatory to arrive at a conclusion that it was a congenital disease. 
10.         The learned counsel for the complainant has also relied upon case titled as M/s United India Insurance Co. Ltd. Vs. Jai Parkash Tayal, RFA 610/2016 & CM Nos.45832/2017, decided on 26.2.2018 by the Hon’ble Delhi High Court at New Delhi. The reliefs granted in the said case under sub clause (ii) & (iii) are relevant and the same are reproduced below :-

“(ii) Discrimination in health insurance against individuals based on their genetic disposition or genetic heritage, in the absence of appropriate genetic testing and laying down of intelligible differentia, is Unconstitutional;

(iii) The broad exclusion of ‘genetic disorders’ is thus not merely a contractual issue between the insurance company and the insured but spills into the broader canvas of Right to Health. There appears to be an urgent need to frame a proper framework to prevent against genetic discrimination as also to protect collection, preservation and confidentiality of genetic data. Insurance companies are free to structure their contracts based on reasonable and intelligible factors which should not be arbitrary and in any case cannot be ‘exclusionary’. Such contracts have to be based on empirical testing and data and cannot be simply on the basis of subjective or vague factors. It is for lawmakers to take the necessary steps in this regard.”

Therefore, keeping in view the aforesaid law laid down and the fact that genetic disorder tests were not conducted, we hold that the complainant is entitled to the full relief. 

11.         In view of the above discussion, the present consumer complaint deserves to succeed and the same is accordingly partly allowed. The OPs are directed as under:-

1. To immediately pay the balance claim i.e. Rs.1,17,500/- to the complainant alongwith interest @ 9% per annum from the date of repudiation i.e. 4.4.2015 till realization.
2. To pay Rs.40,000/- to the complainant as compensation for deficiency in service and mental agony and harassment caused to him;
3. To pay to the complainant Rs.10,000/- as costs of litigation.

12.         This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
13.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-	Sd/-
10/07/2018	[Suresh Kumar Sardana]	[Surjeet Kaur]	[Rattan Singh Thakur]
hg	Member	Member	President