ORDER

11.06.2024

Sh. Sanjay Kumar, President

1. Brief facts of the present case are that complainant has obtained Smart Health Basic Insurance Policy No. BIH/Q0017838/12/10 from the OP for sum insured of Rs.2,00,000/- for the period from 25.10.2010 to 24.10.2011 for himself and his family members i.e complainant’s wife and two children. It is stated that the policy in question is floater policy.
2. It is stated that on 01.09.2011 around 11 am the complainant fell down from stair case at his house. It is further stated that the complainant was at severe pain on his left leg arising out of  the aforesaid falling, therefore, the complainant was taken to Parnami Orthopedics Hospital. It is stated that the complainant was directed by the treating doctor to carry out x-ray including various tests on the very same day i.e 01.09.2011. It is further stated that after carrying out x –ray, it became clear that the left leg of the complainant suffered fracture due to the impact  of the fall. It is stated that the complainant was required to undergo hospitalization and  underwent surgery for  fixation of the fracture. It is stated that the complainant remained hospitalized on 01.09.2011 and was discharged on 07.09.2011. It is stated that the complainant spent a sum of Rs.79,435.00 towards treatment charges, hospital room charges, medicines, investigation etc.
3. It is stated that complainant intimated the OP on 01.09.2011 about the incident of hospitalization. It is further stated that the OP appointed its Third Party Administrator (TPA) i.e E-Meditek (TPA) Services Ltd. to carry out assessment against the cashless treatment as sought by the complainant. It is stated that the aforesaid TPA was provided all the requisite documents, investigation report, medical bills etc as were required for settling the clam of the complainant, as cashless treatment. It is stated that the treating doctor of the complainant has vide letter dated 06.09.2011 replied to the queries of the TPA i.e E-Meditek (TPA) Services Ltd. to the extent that there was no history of influence of alcohol or drug at the time of the injury. It is further stated that TPA vide letter dated 06.09.2011 rejected the cashless treatment to the complainant. Since the cashless treatment was denied, the complainant has paid all the expenses i.e a sum of Rs.79,435.00 incurred towards the complainant’s treatment. It is stated that the ground for denial of cashless treatment was that the complainant has not disclosed that earlier the complainant had suffered from left fracture  leg.
4. It is stated that complainant after discharge from the hospital, through its special messenger as well as personally visited the office of the OP on various occasions with a request to settle the claim of complainant. It is further stated that no heed was ever paid to the request  of complainant by the OP. It is further stated that during of the visit to the office of OP in the month of November, 2011 the complainant was directed by the official of OP to submit certificate issued by the treating doctor or hospital. It is stated that in pursuance  to the direction of the OP, the complainant has vide letter dated nil submitted the treating doctor certificate dated 22.11.2011. It is stated that despite the receipt of all the requisite documents by the OP, the complainant’s genuine claim was not settled or paid till date. It is stated that the OP is not answering to the claim of the complainant is extremely distressing for the complainant. It is stated that the delay in settlement of the claim of the complainant is a deficiency of service.
5. It is stated that the ground for denying cashless treatment to the complainant  is totally wrong and illegal and against the contract of insurance entered  into between the complainant and the OP. It is stated that the treatment underwent by the complainant on 01.09.2011 was for the new/fresh fracture at the complainant’s left leg arising out of falling on the stairs case by the complainant in his house, and not for the treatment of the fracture which had arose on 04.03.2009. It is stated that the treatment carried out on 01.09.2011 was not for non-union fracture of the complainant’s left leg.
6. The complainant  is seeking direction to OP to pay sum of Rs.79,435.00 being the amount spent on hospitalization, to  pay interest @ 18% from date of payment to the hospital i.e 07.09.2011 until realization, to pay Rs.50,000/- towards harassment, inconvenience and mental pain and agony suffered by complainant, to pay Rs.10,000/- cost of litigation and any other order which deems fit and proper.
7. The present complaint initially filed against Bharati Axa General Ins. Co. and later taken over by ICICI Lombard General Insurance Co. who is impleaded as OP. OP filed WS and taken preliminary objections that the complainant did not come before this Hon’ble Forum with clean hands and did not disclose the material facts before this Hon’ble Forum and also concealed the fact that the complainant had previously been  operated upon his left tibia  owing to which the claim of complainant has been repudiated as per General Condition 1 of the terms and conditions of Insurance Policy. It is further stated that the answering respondent had issued a Smart Health Basic Policy to the complainant vide policy no. BIH/Q0017838/12/10 for the period from 25.10.2010 to 24.10.2011 and the liability of the respondent to indemnify the complainant is as per the terms and conditions of the insurance policy.
8. It is stated that the complainant did not disclose the fact that the complainant was diagnosed with fractures on the left tibia much before the said insurance  policy was issued to the complainant and the complainant had knowingly suppressed the facts relating to the previous fracture and also the operation carried in regard to the same. It is further stated that the independent third party administrator of the claim, M/s E-Meditek Services Limited rightly denied the cashless facility to the complainant vide letter dated 06.09.2011 so that further investigation about the previous fracture could be carried out to ascertain the relation between the previous fracture and the fracture for which the complainant was admitted in hospital.
9. It is stated that after further investigation of the claim of the insured, the respondent raised a query before Parnami Orthopaedic Hospital & Joint Replacement Centre, where the complainant was being treated for his fracture, regarding the relation between the previous fracture and the new fracture for which the claim was intimated to the respondent. It is stated that the reply to the query raised by the respondent was stated by Parnami Orthopedic Hospital & Joint Replacement Centre in a letter dated 06.09.2011 wherein the concerned doctor, Dr. M.L Parnami stated that “……Lower 1/3 of the tibia coincides with previous fracture of the left leg bones…..”. It is further stated that after the investigation and after the satiation of the query regarding the relation between the previous fracture and the new fracture for which the claim was intimated to the respondent wherein the respondent found that the complainant had suppressed a material fact related to the previous fracture in the proposal form which was filled by the complainant, on the basis of which, the respondent issued the insurance policy to the complainant.
10. It is stated that after it was found during the adjudication of the claim that there was a willful suppression of fact on the part of the complainant regarding the previous fracture in the proposal form which lead to the specific violation of the said condition no.1 of the policy terms and conditions of the insurance policy, the claim of complainant was repudiated vide letter dated 22.09.2013.  It is further stated that the present complaint is liable to be dismissed because of the willful suppression of material facts by the complainant regarding the previous fracture which coincided with the new fracture which was intimated to the respondent, leading to the specific violation of the terms and conditions of the contract of insurance.
11. On merit all the allegations made in the complaint are denied by OP and reiterated contents of preliminary objections.
12. Complainant filed rejoinder to the WS of OP and denied all the allegations made therein and reiterated contents of complaint.
13. Complainant filed evidence by way of his affidavit and reiterated contents of  complaint. Complainant relied on copy of driving license Ex.CW1/1, copy of policy Ex.CW1/2, copy of haemogram report, immunology-serology (HIV) report, urine test report, x-ray report Ex.CW1/3 (colly), copy of certificate dated 07.09.2011 Ex.CW1/4, copy of discharge summary Ex.CW1/5, copy of summary of investigation charges, cash memo, bill and payment receipt  of M/s Parnami  Orthopaedics Hospital Ex.CW1/6 (colly), copy of letter dated 06.09.2011 and 01.09.2011 Ex.CW1/7 and CW1/8, copy of TPA letter dated 06.09.2011 Ex.CW1/9, copy of discharge summary dated 09.08.2009 and 23.07.2010 respectively Ex.CW1/10 (colly), copy of claim form Ex.CW1/11, copy of discharge summary dated 07.09.2011 Ex.CW1/12 and copy of letter dated nil alongwith copy of letter/certificate dated 22.11.2011 issued by Dr. M.L Parnami Ex.CW1/13 (colly).
14. Complainant also filed evidence by way of affidavit of Dr. M.L Parnami and reiterated contents  of complaint. Dr. M.L Parnami also relied to the already exhibited documents Ex.CW1/9 (colly), CW1/5, CW1/4, CW1/7 and CW1/13.
15. OP filed evidence by way of affidavit of Ms. Shivali Sharma Senior Executive Legal and reiterated contents of WS.
16. Written arguments filed by complainant as well as by OP.
17. We have heard Sh. Rambir Sharma counsel for complainant and Sh. S.N Tripathi counsel for OP and perused the record.
18. It is admitted case of the parties that complainant got issued Smart Health Basic policy valid for the period from 25.10.2010 to 24.10.2011 for sum insured of Rs.2,00,000/- and complainant paid Rs.5281.36 as premium. The complainant was admitted on 01.09.2011 at Parnami Orthopedics Hospital for treatment of Left leg as he fell down from the stair cases. The complainant was discharged on 07.09.2011 and spent Rs.79,435/- towards treatment charges, hospital room charges medicine and investigation etc. Complainant admitted that TPA i.e E-Meditek Services Ltd. rejected the cashless treatment vide letter dated 06.09.2011. The complainant submitted certificate of treating doctor dated 22.11.2011 but the claim of the complainant is not settled.
19. We have gone through the documents filed by the parties as per discharge summary complainant was admitted for treatment of internal fracture of the left leg and  admitted on 04.03.2009 and after treatment discharged on 09.03.2009. As per letter of Dr. M.L Parnami “Lower one third of the Tibia coincides with the previous fracture of the left leg bones”. As per another discharge summary wherein it is mentioned that complainant admitted on 01.09.2011 and discharged on 07.09.2011. As per x-ray report dated 01.09.2011 fracture left tibia. According to OP a query raised before Parnami Orthopedics Hospital and Joint replacement center regarding the relation between the previous fracture and the new fracture for which claim was intimated. As per reply dated 06.09.2011 of treating doctor Dr. M.L Parnami “Lower one third of the Tibia coincides with the previous fracture of the left leg bones”. The OP insurance company concluded that complainant had suppressed the material facts of the previous fracture in the proposal form. We have gone through the proposal form filed on record wherein there is no disclosure of previous fracture. As per OP the claim was repudiated vide letter dated 22.09.2013 on the ground of violation of general condition no.1. It is pertinent to mention here that the complainant in the complaint as well not disclosed about his previous fracture and treatment and also not given any reasonable and sufficient explanation in this regard.
20. On the basis of above observation and discussion it is established on record that complainant concealded the material facts at the time of issuance of Smart Health Basic policy and during investigation treating doctor also given specifically with regard to the fracture of the left leg as discussed hereinabove. The complainant has violated the terms and conditions of the policy therefore, repudiation letter dated 22.09.2013 is fair legal and as per terms and conditions  of insurance policy. Hence present complaint is dismissed. No order as to cost. File be consigned to record room.
21. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  11.06.2024.

SANJAY KUMAR                                                           NIPUR CHANDNA                 

       PRESIDENT                                                                      MEMBER