Complaint No: 464 of 2017.
Date of Institution: 01.09.2017.
Date of order:13.10.2023.
Dheeraj Kumar Aggarwal aged about 44 years S/o Vishwa Nath Aggarwal resident of House No. 55, Urban Estate Batala, District Gurdaspur.
….....Complainant.
VERSUS
1. Apollo Munich Health Insurance, Central Processing Centre, 2nd & 3rd Floor, ILABS Centre, Plot No. 404, 405, Udyog Vihar, Phase-III, Gurgaon – 122016, Haryana, through its Managing Director / Principal Officer / Authorized Person.
2. Managing Director / Principal Officer / Authorized Person, Apollo Munich Health Insurance, Central Processing Centre, 2nd & 3rd Floor, ILABS Centre, Plot No. 404, 405, Udyog Vihar, Phase-III, Gurgaon -122016, Haryana.
3. Canara Bank, G.T. Road, Batala, through its Branch Manager.
….Opposite parties.
Complaint U/s 12 of the Consumer Protection Act, 1986.
Present: For the complainant: Sh.Rajiv Kaura, Advocate.
For the opposite parties No.1 & 2: Sh.Sachin Mahajan, Advocate.
For the opposite party No.3: Sh.Pushkar Nanda, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Dheeraj Kumar Aggarwal, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against Apollo Munich Health Ins. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant is the son of Smt. Krishna Aggarwal W/o Sh. Vishwa Nath Aggarwal C/o M/s R.S. Enterprises and resident of House No. 55 Urban Estate Batala, District Gurdaspur who was the account holder in Canara Bank G.T. Road / Amritsar road Batala i.e. with the opposite party No. 3 since the opening of the said SME Branch. It is submitted that the aforesaid Smt. Krishna Aggarwal visited the bank i.e. opposite party No. 3 for the operation of her account and she was informed by the officials of opposite party No. 3 that Canara Bank has made the collaboration with Apollo Munich Health Insurance i.e. the opposite party No. 1 and 2 and a new health policy has been introduced and requested the complainant to obtain the Health Insurance policy from the opposite parties on the payment of the required fixed premium from her bank account. It is further submitted that on the request of opposite party No. 3 the aforesaid Smt. Krishna Aggarwal obtained one health insurance policy for herself vide cover note No.120100/12001/2015/A004588/PE00049809 with effect from 29.09.2015 to 28.09.2016 being the individual plan from opposite parties No. 1 to 3 for the sum of Rs.5 Lakhs and she paid the required premium which was renewed in the next year vide policy No. 120100/22001/2015/A004933/351 with effect from 29.09.2016 to 28.09.2017 and paid the required premium demanded by the opposite parties from her account lying with the bank i.e. opposite party No. 3. It is further submitted that at the time of obtaining the insurance policy aforesaid Smt. Krishna Aggarwal was not suffering from any sort of disease dangerous to her life. It is further pleaded that no medical examination on the person of aforesaid Smt. Krishna Aggarwal was got conducted by the opposite parties and her signatures were obtained on blank papers and forms with the assurance to fill up after words as the aforesaid Smt. Krishna Aggarwal and the complainant who accompanied with his mother at the time of obtaining the insurance believed upon the bank officials being their regular account holders. It is further pleaded that on 16.01.2017 the aforesaid Smt. Krishna Aggarwal got the routine checkup from Fortis Escort hospital Majitha - Verka Bye pass, Amritsar - 143004 Punjab due to Ghabhrahat & pain in arm whereas she was not having any sort of such health problem earlier. It is further pleaded that on the day of admission i.e. 16.01.2017 the aforesaid Smt. Krishna Aggarwal was got admitted in the above said hospital for her treatment which continued till 30.01.2017. It is further pleaded that the complainant being the son of Smt. Krishna Aggarwal had to pay / spent the amount of Rs.3,60,000/- against receipts duly issued by the above mentioned hospital for the treatment of his mother i.e. Smt. Krishna Aggarwal in the above said hospital with effect from 16.01.2017 to 30.01.2017. It is further pleaded that as detailed above at the time of obtaining the insurance policy by the complainant's, she was not suffering from any kind of hypertension nor there was any previous history of any hypertension. It is further pleaded that more so no such question was ever asked by the opposite party No. 3 on behalf of the opposite parties No. 1 and 2. It is further pleaded that aforesaid Smt. Krishna Aggarwal was covered well within the risk of her health claim as the insurance policy obtained by her is/was operative and effective when Smt. Krishna Aggarwal was got admitted in the above mentioned hospital where her health treatment detailed above was done by the doctors of the above mentioned Hospital and which is mentioned in the medical record. It is further pleaded that Smt. Krishna Aggarwal through her son i.e. the complainant filed the health claim under the health insurance policy No.120100/22001/2015/A004933/351 and completed all the required formalities and submitted all the necessary documents desired by opposite parties. It is further pleaded that the complainant on behalf of his mother was informed by the opposite party vide letter dated 18.01.2017 regarding the denial of cash less facility and to file the full claim papers for reimbursement of the claim amount after the treatment. It is further pleaded that the allegation leveled in letter dated 18.01.2017 was to the effect that "Cashless facility cannot be granted due to incorrect good health declaration at the time of policy proposal History of PTCA August 2015" which in fact is wrong and incorrect. It is further pleaded that during the treatment at the above mentioned hospital the health condition of aforesaid Smt. Krishna Aggarwal deteriorated due to the improper treatment by the hospital doctors and the complainant was left with no alternative but to leave the hospital without discharge on 30.01.2017 and aforesaid Smt. Krishna Aggarwal died on the same day i.e. on 30.01.2017. It is further pleaded that to the utter surprise and shocking to complainant that the just, legal and valid claim of the complainant for the reimbursement of Rs.3,60,000/- (the medical expenses incurred on the treatment of his mother Smt. Krishna Aggarwal and other incidental charges) has been repudiated by the opposite parties vide repudiation letter dated 14.03.2017 and on the lame excuse of alleged already existing ailment and on the alleged allegations of wrong declaration at the time of application for health insurance in the proposal form dated 29.09.2015. It is further alleged that the opposite parties have repudiated the just, legal and valid health insurance claim of mother of the complainant illegally, unlawfully, in utter disregard and violation of the terms and conditions of the policy and in a high handed and unwarranted manner. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to make the payment to the complainant an amount of Rs.3,60,000/- with interest thereon @ 18% P.A. w.e.f. 30.01.2017 till the actual date of payment. The opposite parties be further directed also pay an amount of Rs.1,00,000/- as compensation for harassment and mental agony caused to the complainant by the opposite parties and Rs.22,000/- as litigation expenses to the complainant, in the interest of justice.
3. Upon notice, the opposite parties No.1 and 2 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that at the very outset the Opposite Parties deny all the allegations, facts and averments stated in the complaint filed by the Complainant except to the extent it is expressly admitted therein. It is further pleaded that non-traversal of any paragraph should be read as categorical denial and the complaint under the reply is not maintainable and is liable to be dismissed as the Complainant has attempted to misguide and mislead the Hon'ble Commission and as such the complaint is liable to be dismissed on this ground alone. It is further pleaded that the complaint is not maintainable and is liable to be dismissed as no cause of action ever arose in favour of the Complainant and against the Opposite Parties to file the present complaint and hence, the complaint under reply is an abuse of the process of law and as such the same is liable to be dismissed, with exemplary cost. It is further pleaded that the Complainant has created a false story in his complaint to mislead this Hon'ble Commission by concocting and distorting the facts and circumstances of the present case. It is further pleaded that in the case of General Assurance Society Ltd. Vs. Chandumull Jain and Another, reported in (1966) 3 SCR 500 the Constitution Bench has observed that the policy document being a contract and it has to be read strictly. It was observed:-
“In interpreting documents relating to a contract of insurance,the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for the court to make a new contract, however reasonable, if the parties have not made it themselves. The application as such, merits dismissal on this score alone”.
It is further pleaded that the instant complaint filed by the complainant is liable to be dismissed at the outset as the Opposite Parties dispute and deny their liability to pay any amount and compensation to the applicant as alleged. It is further pleaded that policy is a legal contract between the policy holder and the insurance company and the parties to the said contract are bound by its terms and conditions and the complaint of the complainant is false and frivolous as the same has been filed by with intent to derive illegal financial gains under the policy and the present complaint is wholly misconceived, baseless, groundless, and false, which is unsustainable in the eyes of law. It is further pleaded that the case of the complainant is closed for non-submission of documents which were required by the opposite parties and that the answering Opposite Parties craves the leave of this Hon'ble Consumer Commission to file the amended reply in case any new fact crops up during the pendency of the complaint. It is pleaded that the mother of the Complainant i.e. Smt. Krishna Aggarwal had approached the replying Opposite Parties Company for availing Insurance Policy. It is further pleaded that as per the process involved, the Complainant has submitted Proposal /Application Form bearing No.CB10040090 for issuance of an insurance policy namely Easy Health Group Insurance Policy so as to provide an insurance cover his mother. It is further pleaded that point 4 Declaration & warranty on behalf of all persons to be insured, clearly asks the proposer to declare if he/she and "other members proposed to be insured are in good health and have not suffered in last 5 years from any major disease/disorder/ailment or deformity." It is further pleaded that the replying Opposite Parties Company issued a Policy bearing No. 120100/12001/2015/ A004932/351 with period from 29.09.2015 to 28.09.2016 based on the statements and representations of the proposer. It is further pleaded that the policy was further renewed for the next policy years for the period 29.09.2016 to 28.09.2017. It is further pleaded that the Policy Kit containing all relevant documents were duly sent, thereby giving an opportunity to Policyholder and complainant to verify and examine the benefits, terms and conditions of the Policy taken by them. It is further pleaded that the complainant/proposer never approached the Company stating that any information given in the documents in the Policy Kit was incorrect or any term and condition therein is not understandable or acceptable to him on the receipt of the policy document to review the terms and contract of the policy. It is further pleaded that as no objection was received from the Complainant, therefore the Complainant is strictly bound by the terms and conditions of the policy. It is further pleaded that on 17th Jan 2017, Cashless was received from Fortis Hospital, Amritsar for patient Smt. Krishna Aggarwal, who got admitted with c/o acute hyperkalemia with Acute on CKD and probable diagnosis acute hyperkalemia with Date of Admission 16th Jan 2017 and estimated duration of stay of 4 days with estimated cost of Rs.61,000/-. It is further pleaded that post reviewing the documents past history of CAD, PTCA along with DM, HTN was noted. So query was raised accordingly as under:
Exact duration of CKD and CAD/PTCA, when was it first diagnosed, first consultation paper, all treatment records pertaining to the same. Note:- We request you to submit the above mentioned requirement within a maximum of 48 hours from the receipt of this letter, failing which we are constrained to reject your cashless request in view of non- receipt of the requirement. It is further pleaded that then post reviewing the reply received cashless was rejected stating "Cashless facility cannot be granted due to incorrect good health declaration at the time of policy proposal History of PTCA August 2015". It is further pleaded that the same claim was later submitted as Reimbursement on 2 March 2017 with DOA 16 Jan 2017 and Leave against Medical Opinion (Discharge) on 30 Jan 2017, with diagnosis Severe sepsis with Shock, acute on CKD, CAD with PTCA, Hypertension and DM Type 2. It is further pleaded that with the submitted documents showing history of CAD and PTCA prior to policy inception. The claim was rejected as under and policy was also terminated for same:
The medical history details of Coronary Artery Disease and surgical history of undergoing Percutaneous Trans luminal Coronary Angioplasty was not revealed in the proposal form while taking the policy. Hence the claim is repudiated and policy is cancelled due to Incorrect Good Health declaration and concealment of facts under section 3 (t) of policy terms and conditions.
On merits, the opposite parties No.1 and 2 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.
4. Upon notice, the opposite party No.3 appeared through counsel and contested the complaint and filing their written reply, stating therein that the complaint of the complainant is not maintainable as against the opposite party No. 3 in any manner and the opposite party No. 3 is not liable to compensate as alleged in the complaint and liability if any is being held that will be of the opposite parties No. 1 and 2 and it is prayed that the complaint as against the opposite party No. 3 may be dismissed.
On merits, the opposite party No.3 denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
5. Learned counsel for the complainant has tendered into evidence affidavit of Dheeraj Kumar Aggarwal, (Complainant) as Ex.C-1 alongwith other documents as Ex.C-2 to Ex.C-8.
6. Learned counsel for the opposite parties No.1 and 2 has tendered into evidence affidavit of Ms. Deepti Rustgagi, (Senior Vice President- Legal & Compliance of Apollo Munich Health Ins. Co. Ltd.) as Ex.OP-1,2/1 alongwith other documents as Ex.OP-1,2/2 to Ex.OP-1,2/5.
7. Learned counsel for the opposite party No.3 has tendered into evidence affidavit of Sh. Rakesh Kumar, (Branch Manager of Canara Bank, Branch SME G.T. Road, Batala) as Ex.OP-3/1 alongwith reply.
8. Written arguments filed by the complainant but not filed by the opposite parties.
9. Counsel for the complainant has argued that during the continuation of health policy mother of the complainant had gone for routine checkup at Fortis Escort Hospital, Amritsar on 16.01.2017 due to ghabhrahat and pain in arm and earlier was not having any such problem. It is further argued that complainant had spent amount of Rs.3,60,000/- on the treatment of his mother. However, opposite parties declined the cashless facility due to the reason incorrect good health declaration at the time of policy proposal history of PTCA August 2015. Since the mother of the complainant was not having any such previous ailment as such refusal to pay the medical reimbursement amounts to deficiency in service.
10. On the other hand counsel for the opposite parties No.1 and 2 has argued that on 17.01.2017 cashless request was received from Fortis Hospital, Amritwsar regarding Krishna Aggarwal who got admitted with acute hyperkalemia with acute CKD and date of admission 16.01.2017 and post reviewing the documents past history of CAD, PTCA along with DM, HTN were noted. As such querry was raised to explain exact duration of CKD and CAD/PTCA, when was it first diagnosed, first consultation paper, all treatment records pertaining to the same and failure of the complainant to produced the said record cashless facility was declined. The claim was repudiated and policy was cancelled due to incorrect good health declaration and concealment of fact.
11. Counsel for the opposite party No.3 has argued that complaint against opposite party No.3 is not maintainable.
12. We have heard the counsels for the parties and gone through the record.
13. To prove his case complainant has placed on record policy document Ex.C2, copy of detail of payment Ex.C4, copy of repudiation letter pre-authorization Ex.C5, copy of notice for termination of policy Ex.C6, copy of Lama discharge Ex.C7 whereas opposite parties No.1 and 2 have placed on record affidavit of Deepti Rustgagi Ex.OP-1,2/1, copy of enrolment form Ex.OP-1,2/2, copy of declaration of insurance health Ex.OP-1,2/3. Opposite party No.3 has placed on record affidavit of Rakesh Kumar Branch Manager Ex.OPP-3/1.
14. Perusal of file shows that opposite parties have declined the cashless claim of the complainant on the basis of past history mentioned in lama discharge of Fortis Escort Hospital, Amritsar as per which in the column of past history Hypertension, DM type-II, CAD with P/PTCA (Aug 15) and DKD have been mentioned and cashless facility and reimbursement of claim was declined due to incorrect good health declaration at the time of policy proposal history of PTCA August, 2015 but perusal of file shows that although there is reference of some diseases in the column of past history but the opposite parties have not proved on record by examinging any doctor that deceased Smt.Krishna Aggarwal was suffering from such diseases at the time of purchase of policy. The opposite parties have not not examined any such doctor to prove the pre-existing disease at the time of purchase of policy of insurance. The complainant has taken the plea that before issuance of policy of insurance the insured Smt.Krishna Aggarwal had under gone medically examined from the concerned doctor of the opposite parties and she was not found to be suffering from any such disease. As such repudiation and denial of claim on the ground of concealment of pre-existing disease and incorrect good health declaration amounts to deficiency in service.
15. We are of the view that the opposite parties cannot refuse to settle the claim of the complainant by referring to the record of previous ailments with which the present disease has no connection or nexus. Moreover, the opposite parties have renewed the policy of insurance from time to time receiving premium. As such having renewed the policy of insurance from time to time without having availed medical examination of the complainant prior to renewal of the policy amounts to waiver and as such opposite parties cannot refuse to settle the clam by referring to the documents regarding previous ailment with which the present ailment has no concern. We are of the view that insurance companies are only interested in procuring business this way or the other but at the time of the settlement they find one excuse or the other some of which are totally ignorable.
16. We placed reliance upon judgment of Hon'ble Supreme Court of India reported in 2022 LiveLaw (SC) 506 wherein it was held by the Hon'ble Supreme Court of India as under:-
"Insurance - Insurance companies refusing claim on flimsy grounds and/or technical grounds - While settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control. (Para 4.1)".
17. We also placed reliance upon judgment of Hon'ble Punjab State Consumer Dispute Redressal Commission, Chandigarh reported in 2014(3) C.P.J. 13 : 2014(87) R.C.R.(Civil) 264 wherein it was held as under:-
"Insurance Company failed to produce any evidence to show that appellant was suffering from said disease at the time of taking policy - No affidavit of any doctor or person who recorded history of patient".
18. From the above discussion and evidence on record complainant has fully proved that during the continuation of policy of insurance mother of the complainant remained admitted in hospital and had submitted the necessary documents with the opposite parties and detail of treatment and expenditure which is admitted by the opposite parties as Rs.3,60,000/- and the act of the opposite parties of repudiated the cashless and reimbursement claim vide letter Ex.OP-1, 2/5 amounts to deficiency in service particularly when the alleged previous disease has no connection with disease for which the complainant took treatment. As such complainant has fully proved deficiency on the part of the opposite parties for having failed to settle and pay the claim which was ultimately denied vide letter Ex.C5 and it amounts to deficiency in service on the part of the opposite parties.
19. Accordingly, we partly allowed the present complaint and opposite parties are directed to pay Rs.3,60,000/- to the complainant being legal heir and nominee of the policy alongwith interest @ 9% P.A. from the date of filing of the complaint till realization within 30 days from the date of receipt of copy of this order.
20. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
21. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Lalit Mohan Dogra)
President
Announced: (B.S.Matharu)
Oct.13, 2023 Member
*YP*
