DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.361/2016
DEVMANI BANSAL
S/O MR. TRILOK CHANDRA BANSAL
R/O 1/3, FIRST FLOOR, KALKAJI EXTN.
NEW DELHI-110019
….Complainant
Versus
HDFC ERGO GENERAL INSURANCE COMPANY LIMITED
(Formerly known as Apollo Munich Health Insurance Co. Ltd/HDFC ERGO Health Insurance Limited)
415, SOMDUTT CHAMBERS-II
9, BHIKAJI CAMA PLACE
NEW DELHI-110066
LOAN TREE THROUGH ITS
PROPRIETOR, MR.LOKSH MADAAN,
HAVING ITS OFFICE AT
E-237, AMAR COLONY
LAJPAT NAGAR-IV
NEW DELHI-110024
….Opposite Party
Date of Institution : 04.11.2016
Date of Order : 12.09.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Sh. U.K. Tyagi
1. The Complainant has prayed to pass an order directing the Apollo Munich Health Insurance Co. Ltd and Loan Tree through its Proprietor (hereinafter referred to as OP-1 and OP-2 respectively) (i) to restore benefits as are available under medical policy issued by HDFC ERGO General Insurance Company Limited ; (ii) to remove the clause of loading charges; (iii) or in alternative to restore the earlier policy of HDFC ERGO with accrued benefits; (iv) to indemnify the Complainant with all future disease as covered under the earlier policy upto Rs. 5,00,000/-; (v) to pay Rs.5,00,000/- towards deficiency in service; (vi) to pay Rs. 50,000/- as litigation charges etc.
2. Brief facts of the complaint are as under:-
The Complainant was holding a Medical Insurance Policy for the total cover of Rs.3,00,000/- from the HDFC ERGO General Insurance Company Ltd. for the period from 26.05.2014 to 25.05.2015 and also having the accidental cover of Rs. 10,00,000/-. The said policy was renewed on 28.05.2015 for the period 26.05.2016 to 25.05.2016 (may be 26.05.2015) with the enhancement cover from Rs.3,00,000/- to Rs.5,00,000/-. The Complainant was treated under Care Procedure by Dr. Ajita Bagai Kakkar at Max Hospital Saket for Viral Wart in November, 2015. The Complainant approached OP-1 HDFC ERGO for re-imbursement of the claim. The claim form & requisite documents were submitted. The claim of the Complainant was neither processed nor repudiated by the said insurance company. On the conduct of HDFC ERGO Company, the Complainant opted to switch over his policy from HDFC ERGO to OP-1. OP-2 briefed the process of porting of medical policy from one company to another company, and also told that the benefits so allowed in the earlier company, shall continue in other company. After having satisfied with features of the policy, the Complainant handed over the cheque for the sum of Rs.7,438/- in favour of OP-1. It was told on enquiry that no prior permission is required from the previous company in switching over the policy. The above said cheque for Rs.7,438/- was encashed by the OP-1 on 25.04.2016, which is evident from account statement. The same is annexed as Annexure C-3.
3. It was briefed by the OP-2 that while porting the policy, the process was to be initiated at least one month before the expiry of the current policy so that the procedure could be completed. So the process of porting of the policy was started in April, 2016, whereas renewal date was due on 25.05.2016 of the policy of HDFC ERGO. The Complainant maintained that he was busy in marriage ceremony, even though he enquired in 2nd week of May, 2016 from OP-2. OP-2 assured that policy had been issued and would be delivered in due course of time with all benefits to be accrued as was available in the previous policy on 01.06.2016, the Complainant received e-mail. The e-mail contained an attachment which was a letter dated 24.05.2016, issued by OP-1 in respect of OPTIMA Restore Floater Policy. On going through, it was found that there was proposal form allegedly to be filled in by the Complainant where the disclosure about the Viral Wart was not provided. It was clarified that if loading charges i.e additional premium were not confirmed within 10 days, in that case, the policy can be terminated under Section 5 (4) of the Policy. The copies of email alongwith letter dated 24.05.2016 and annexed as Annexure- C-4 (Colly). The Complainant also protested vide email dated 02.06.2016. Again, the OP-2 assured that all benefits would be restored. The Complainant vide email dated 23.06.2016 accepted the terms & conditions to accrual of benefits in porting. The same is annexed as Annexure C-6. The OP-1 sent SMS informing the Complainant for ensuring the sufficient funds in the account. The Complainant did not pay heed to the said SMS as the payment had already been made in April, 2016. Another SMS was received regarding loading charges. After looking into contents of SMS, the OP-2 assured that no such policy was applied by the Complainant. He shall enquire and would brief shortly. The SMS’s copy is annexed as Annexure- C-7. The Complainant was shocked to know that the policy which was to be issued in April, 2016, had now been issued in September, 2016. The Complainant raised dispute referring the earlier SMS & Letters. It was also noticed that the Proposal Forms Number (i) OR10158786 indicated in letter dated 24.05.2016 & in SMS dated 04.09.2016 i.e (ii) 17392419P are different completely. Likewise, the policy so indicated in letter dated 24.05.2016 is different from the policy issued on 16.09.2016. The conduct of OP-1 & OP- 2 had knowingly allowed the policy of HDFC ERGO to lapse as earlier policy terminated on 26.05.2016 and new policy started w.e.f 14.09.2016 to 13.09.2017. The sum assured in the new policy was also reduced year wise. The certificate of the Kotak Mahindra w.r.t cheque indicated that payment was received in September, 2016. The Complainant also disputed the payment as no payment was made by him in September, 2016. As such, the OP-1 in every sense failed to carry its duty. Hence, the Complaint.
4. OP-1 on the other hand filed its reply interalia raising some preliminary objection. The right to file the written statement by OP-1 was closed vide the order dated 17.03.2017 of this Commission. But the Hon’ble State Commission set aside the above order subject to deposition of Rs.3,000/- in Consumer Welfare Fund. Hence, the reply. The Complainant failed to provide the medical history hence, the complaint is liable to be rejected. The OP-1 also assailed the complaint on the basis of false foundation of insurance contract. The non-disclosure of medical history goes to the root of the principle of faith and also entails violations of the 4 (VII) of the said policy. It is also averred that prima facie there is no deficiency of service on the part of OP-1. It is settled proposition of law that contract of insurance are contracts of ‘uberrima fides’ hence, every material fact should be disclosed. The OP-1 also referred the case of P.C. Chacko and Anr. Vs Chairman, Life Insurance Corporation of India and others ( Case No Appeal (Civil) 5322 of 2007), where it was held by Apex Court that material fact ought to have been disclosed by the insured, if not, the contract is voidable. The OP also referred the conditions of Portability Form;
- If there is any claim in existing policy, same with detail should be reported.
- If there is past medical history, the same may be reported.
5. The Complainant did not provide either of them, hence OP-1 cannot be held liable. It was averred by OP-1 that the features and terms & conditions were briefed to the Complainant. The medical history w.r.t. viral Wart under the previous policy was received from IRDA, which amount to non-disclosure of the material facts. The OP-1 sent letter dated 24.05.2016 informing him about non-disclosure of above ailment and seeking consent for extra premium as loading charges for the said disease within 10 days. The Complainant consented only vide email dated 23.06.2016 subject to accrual of benefits. The loading charges could have been received only on 14.09.2016 and policy No.110106/11109/AA00471148 was issued having validity upto 13.09.2017. OP-1 also averred that the payment is a matter of record and Complainant was twisting the facts to his benefits. As per IRDA Regulation, the Complainant should approach the insurer at least 45 days before the renewal date. As alleged by the Complainant, loading charges had been deposited by OP-1 or OP-2 to cover their negligence, is totally baseless as contended by OP-1.
6. OP-2 has been proceeded exparte. However, notice was sent twice but he did not join proceedings.
7. Both the parties filed their written submissions and evidence-in affidavits. Written Statement is on record, so is rejoinder. Oral arguments were heard and concluded.
8. This Commission has gone into the entire gamut of issues. Due consideration was given to the oral arguments. It is fact that the Complainant maintained that the Proposal Form was filled in by the OP-2 and every stage, he was assured by the accrual of benefits of the earlier policy of HDFC ERGO. The initiation of portability might have been taken somewhere in March, 2016 as the cheque issued to OP-1 is of 30.03.2016. However, it was realized on 26.04.2016, which is evident from Bank statement enclosed as Annexures. So the condition of at least 45 days before the renewal date seems to have been satisfied. The Payment had also been realized in the account of the OP-1 Company in time. As regards to issue of Viral Wart was reported to the OP-1 well before the renewal date. It is also fact that the Complainant could give consent for payment of additional premium as loading charges was also given June, 2016. It is also noticed that the different proposal forms as indicated by the Complainant in its reply also raises doubt about the correspondence exchanged among OP-1 & OP-2 and Complainant. Delay in portability of the insurance policy and ultimately issuance of policy by OP-1 is apparent. However, neither party led any evidence to this effect to establish that the whole process should have been completed in such period. But we can safely assume by going through the IRDA Regulations which prescribes the initiation of portability should start at least 45 days before renewal date I.e 25.05.2016 hence, this process should also be completed well before 45 days.
9. It is also further noted that the OP-1 has not contradicted the averment of Complainant with respect to different number of Proposal Forms. The OP-1 has also raised objection on the day care procedure for ailment of the Complainant. This Commission feels that this is not of significance for deciding this matter.
10. The OP-1 has filed application for substitution of the Company name from HDFC ERGO Health Insurance Ltd. (formerly known as Apollo Munich Health Insurance Company Ltd.) to HDFC ERGO General Insurance Company Limited. The same is kept on record.
11. After having considered the materials placed on record and narrations as pointed out above, this Commission concludes that there is some degree of deficiency in service on the part of OP-1 & OP-2. Accordingly, this Commission direct the restoration of the benefits as available to the Complainant under the earlier policy i.e issued by Apollo Munich Health Insurance Co. Ltd/HDFC ERGO Health Insurance Limited and other requests of the Complainant are not allowed except Rs.20,000/- as compensation which is also to be paid by the OP-1. The said process of restoration of benefits and release of amount should be completed within 03 months from the date of receipts of this order failing which rate of interest shall be levied @ 9% per annum on the above amount till its realization.
File be consigned to the record room after giving a copy of the order to the parties as per rules. Order be uploaded on the website.
