Chandigarh

DF-I

CC/40/2024

JASWANT KAUR - Complainant(s)

Versus

CARE HEALTH INSURANCE LIMITED - Opp.Party(s)

MUNISH GOEL

05 Nov 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/40/2024
Date of Institution	:	10.01.2024
Date of Decision	:	5/11/2024

 

1.    Jaswant Kaur w/o Late Sh. Jiwan Singh SherGill R/o H.No 1112, Sector 33 C, Chandigarh-160020

2.    Anoopinder Singh SherGill S/o Late Sh. Jiwan Singh Sher Gill R/o H.No 1112, Sector 33 C, Chandigarh-160020

3.    Rupinder Kaur w/o Gagan Deep Singh R/o H.No 2124, Sector 38- C, Chandigarh-160036 (Daughter of Late Sh. Jiwan Singh Sher Gill)

4.    Bhupinder Singh SherGill S/o Late Sh. Jiwan Singh SherGill R/o H.No.1112, Sector 33 C, Chandigarh-160020

...Complainants

Vs

1.    Care Health Insurance Limited, 5th Floor, 19, Chawla House, Nehru Place, New Delhi-110019, through its Director/Managing Director/Regional Manager/ Manager/Authorized Signatory

2.    Care Health Insurance Limited, Vipul Tech Square, Tower C, 3rd Floor, Golf Course Road, Sector 43, Gurugram 122009 through its Director/Managing Director/Regional Manager/Manager/Authorized Signatory

3.    Care Health Insurance Limited, SCO 56-57-58, 2nd Floor, Sector-9 D, Chandigarh, 160017 through its Director/Managing Director/Regional Manager/Manager/ Authorized Signatory

4.    Punjab National Bank, SCO 28-29, Sector 33D, Chandigarh 160020 through its Director/Managing Director/Regional Manager/Manager/ Authorized Signatory.

… Opposite Parties

 

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

 

                                                                               

ARGUED BY	:	Sh. Jagjeet Singh, Advocate proxy for Sh. Munish Goel, Advocate for complainant
	:	Sh.Amarpreet Singh, Advocate for OPs No.1 to 3
		Sh.Navdeep Monga, Adv. for OP No.4

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by the complainants against the aforesaid opposite party (hereinafter referred to as the OPs).  The brief facts of the case are as under:-

1. It transpires from the allegations, as projected in the consumer complaint, that the husband of the complainant No.1 namely Late Sh.Jiwan Singh Shergill was having account with Punjab National Bank i.e. OP  No 4 since long and OP No.4 had been taking health Insurance policy on behalf of complainant No.1 and her husband since 12.02.2016 from Oriental Insurance Co. Ltd. and later on, the same was ported/got renewed by OP No.4 from OPs No.1 to 3-Care Health Insurance Limited. Earlier policy obtained by the complainant and her husband (hereinafter referred to as the ‘DLA’) which was issued by the Oriental Insurance Co. Ltd. was obtained on 12.02.2016 and the same was renewed annually and the last policy was issued by the aforesaid company is Ex.C-6, which was valid w.e.f. 23.03.2020 to 22.03.2021. Thereafter the said policy was ported/got renewed by OP No.4 from OPs No.1 to 3  by deducting the premium amount from the account of the DLA and the subject policy was issued by OPs No.1 to 3 (Ex.C-5) which was valid from 23.03.2022 to 22.03.2023. Thereafter the DLA suffered heart problem on 11.12.2022 and he was taken to Healing Super Specialty Hospital (hereinafter referred to as the ‘treating hospital’) at around 5.51 PM. After conducting various tests of DLA, the treating hospital had put Stent on the same day but due to cardiogenic shock, he suffered cardiac arrest in ICU and could not be revived and died on the same evening at around 8.15 PM. A copy of Discharge Certificate is as Ex C-7 and the copy of the Medical Certificate of Cause of Death dated 11.12.2022 is Ex C-8. The complainants paid ₹3,07,683/- to the treating Hospital on account of the treatment expenses of the DLA vide bill dated 11.12.2022 (Ex.C-9). A copy of death Certificate of DLA is  Ex C-10. Thereafter, the complainants submitted claim form alongwith all documents for reimbursement of ₹3,07,683/- under the Insurance policy, which was duly received on 21.12.2022 (Ex.C-11).  However, OPs No.1 to 3 have illegally rejected the genuine claim of the complainant vide letter dated 19.01.2023 (Ex.C-12).  Even after the death of the DLA, OPs No.1 to 3 had renewed the insurance policy valid w.e.f. 23.03.2023 to 22.03.2024 (Ex.C-13), knowing fully well that the DLA died on 11.12.2022 and the deduction of premium of ₹28,041/- from the account of the complainant No.1 is also wrongful act on the part of OPs No.1 to 3. A copy of the bank statement is Ex.C-14. Thereafter, the complainants issued the legal  notice dated 17.05.2023 to the OPs (Ex.C-15) and the copy of the postal receipts is Ex.C-16, which was replied vide reply (Ex.C-17). The complainants again served a legal notice (Ex.C-18) along with the documents upon the OPs and the copy of the postal receipts is Ex.C-19. In this manner, the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OPs No.1 to 3 resisted the consumer complaint and filed written version. It has been admitted that the subject policy was issued to complainant No.1 and DLA. It has further been admitted that the claim form was received from the complainant with respect to the DLA  and as per the discharge summary (Annexure R-3), PTCA to LAD stenting was done and Patient was in cardiogenic shock and thereafter the DLA had died and upon receipt of the claim an investigation  was also triggered to check the veracity of the claim and it was found that as per the deceased son's statement, the patient is known case of prostate since last 10 years (Annexure R-4). It is further alleged that as per USG Abdomen report dated 29.06.2021, it was mentioned that a cortical cyst measuring (2.14cm) was seen in the mid pole (Annexure R-5). It is further alleged that on finding that the DLA had not disclosed about the renal cyst prior to policy inspection, the claim was rightly rejected on account of non-disclosure of material facts/pre-existing ailments at the time of proposal form in terms of Clause 6.1 of the terms and conditions of the policy. As the defence of OPs No.1 to 3 is supported with number of judgments  referred in the written version, the claim of the complainant was rightly repudiated and the complaint, being not maintainable, is liable to be dismissed. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. In its separate written version, OP No.4 took preliminary objections of maintainability, jurisdiction, cause of action and concealment of facts.  On merits, it has been admitted that the subject policy was issued to the complainant No.1 and DLA but it is denied that the same was obtained by the complainant No.1 and the DLA at the instance of answering OP. The answering OP has never charged any single premium for any insurance policy nor got the said policy at any point of time and the same was done by the customer as per his/her own choice. It is further alleged that the answering OP has now tie up/contract with five different insurance agencies who sell their different insurance policies through bank branch and concerned bank branch showed every customer(s) all five different plans of comparative charts and the customer as per his/her convenience of facility and rate opts for that plan which will give them maximum benefits which also includes port facility. On merits, the facts as stated in the preliminary objections have been re-iterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
4. In replication to the written version of OPs No.1 to 3, complainant reiterated  the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully, including written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainant No.1 and the DLA-Jiwan Singh  Shergill had initially obtained the health insurance policy  through OP No.4 from the Oriental Insurance Co. Ltd. and thereafter they got the subject policy renewed through OP No.4 annually and the subject policy was also got renewed by OP No.4 on behalf of the complainant No.1 and DLA  which was valid w.e.f. 23.03.2022 to 22.03.2023 and the DLA died on 11.12.2022 due to cardiogenic shock after stenting was done in the treating hospital, as is evident from the discharge certificate ((Ex.C-7), medical certificate (Ex.C-8) and claim was repudiated on account of non-disclosure of renal cyst prior to policy inspection and non-disclosure of material facts/pre-exiting ailments at the time of proposal, the case is reduced to a narrow compass as it is to be determined if OPs No.1 to 3  are unjustified in repudiating/rejecting the claim of the complainants and they are entitled to the reliefs prayed for in the consumer complaint, as is the case of the complainant or if OPs No.1 to 3 have rightly repudiated/ rejected the claim of the complainants as per the terms and conditions of the subject policy and the consumer complaint of the complainant, being false and frivolous, is liable to be dismissed, as is the defence of the OPs.
   2. In the backdrop of the foregoing admitted and disputed facts on record, one thing is clear that the entire case of the parties is revolving around the terms and conditions of the subject policy, repudiation letter and the medical record and the same are required to be scanned carefully for determining the real controversy between the parties.
   3. Perusal of Ex.C-6 clearly reveals that the health insurance policy was issued by Oriental Insurance Co. Ltd. which was valid from 23.03.2020 to 22.03.2021, which further makes it clear that the date of inspection of the policy was 12.02.2016, making further clear that OP No.4 has been getting the insurance policy on behalf of the complainant No.1 and the DLA earlier from Oriental Insurance Co. Ltd. and was getting the same  renewed annually by deducting the premium amount  from the account of the insured, which fact has also not been disputed by the OPs. Ex.C-5 is the copy of the subject policy which further indicates that the same was ported from the earlier insurer with OPs No.1 to 3 and the same was valid w.e.f. 23.03.2022 to 22.03.2023 with sum insured of ₹7.00 lakhs. Ex.C-7 is discharge summary dated 11.12.2022 which indicates that the PTCA to LAD stenting was done and the patient was in cardiogenic shock and thereafter the DLA had died on 11.12.2022, the relevant portion of which reads as under:-

“Medication on discharge:-

PTCA to LAD with stenting was done and pt. was in cardiogenic shock. Pt. underwent asystole with VT/VF in cath lab, CPR was done twice. Pt. was shifted to ICU with high dose, ionotropes. Pt. suffered cardiac arrest again in ICU could not be revived, declared @ 8.16 p.m., 11.12.22”.

4. Ex.C-12 is the copy of the medical certificate of cause of death which clearly indicates that the patient had died due to cardiogenic shock.
5. Ex.-12 is the copy of the claim denial letter which indicates that the claim of the complainant was repudiated on account of non-disclosure of renal cyst prior to policy inspection and non-disclosure of material facts/pre-exiting ailments at the time of proposal.
6. The learned  counsel for the complainant has contended with vehemence that as it stands proved on record that the subject policy was renewed/ported from earlier insurer i.e. Oriental Insurance Co. Ltd. who had issued the first policy to the complainant No.1 and the DLA on 11.02.2016 and further when it has come on record that the cardiogenic shock has no nexus with the renal cyst and further the said disease i.e. heart related ailment had no nexus with the same, OPs No.1 to 3 have wrongly repudiated the genuine claim of the complainants and the complainants are entitled for the reliefs as prayed for.
7. On the other hand, the learned counsel for OPs No.1 to 3 contended with vehemence that as it stands proved on record that the DLA had not disclosed about the pre-existing disease i.e. renal cyst in the proposal form, the claim of the complainants was rightly repudiated on account of non-disclosure of material facts qua renal cyst i.e. pre-existing disease prior to the inception of the policy.
8. OPs No.1 to 3 have relied upon the alleged statement of son of the DLA (Annexure R-4) by alleging that Sh.Bhupinder Singh has stated in his statement that DLA was a known case of prostrate since last 10 years. However, Annexure R-4 nowhere indicates that the son of the DLA had stated that the patient was a known case of prostrate for the last 10 years.
9. The other document having been relied upon by OPs No.1 to 3 is Annexure R-5 i.e. report of Sai Charitable Diagnostic Centre in which it was found that cortical cyst measuring 2.14 cm in the mid pole was seen on 29.06.2021 i.e. prior to the issuance of the subject policy and as the said fact was not disclosed by the insured in the proposal form, the claim is not maintainable. Moreover, when it has come on record that OPs No.1 to 3  have not proved Annexure R-5 given by Dr.Sachin Anand, which indicates about cortical cyst seen in mid pole of the right kidney and they have also not cared to even tender the affidavit of the aforesaid doctor, it is safe to hold that the said report has no relevance in the present case in order to prove the past history of illness of the DLA.
10. It has also been held in the judgment titled as Manish Goyal Vs. Max Bupa Health Insurance Co. Ltd., reported in 2018(2) CLT 205 passed by the Hon’ble State Commission, UT, Chandigarh as under:-

“A. Consumer Protection Act, 1986 Section 2(1)(g) Insurance claim Rejected - On ground that insured not disclosed the pre existing disease and Doctor recorded the past history of illness - Held, opposite parties failed to produce on record any document to show that the insured was still suffering from the said disease-Opposite parties further failed to get information from the hospital, as to whether the doctor who recorded the past history recorded such information on the basis of the information given by the insured or her relative or some medical prescriptions were consulted. It was the duty of the opposite parties to prove who supplied this information to the hospital and also to conduct a thorough enquiry about the previous treatment of alleged epilepsy or tuberculosis obtained by complainant However, no such enquiry was conducted. Even the affidavit of the Doctor who recorded the said history had not been produced on record So, merely on basis of past history mentioned in the Patient Admission Record, prepared by Hospital, it could not be held that insured was suffering from epilepsy or tuberculosis at the time of taking the policy and she had intentionally concealed the said material fact Complaint partly allowed”.

11. Further, there is no force in the contention of learned counsel for OPs No.1 to 3 that the DLA had not disclosed about the disease of renal cyst prior to inception of the policy because it is evident from the record that the insured patient had taken the treatment from the Treating Hospital for heart ailment which he had suffered in the year 2022 i.e. after more than 7 years of the inception of the policy, which was obtained by the complainant in the year 2016 and there is no co-relation/nexus between the heart ailment and renal cyst.
12. The Hon’ble National Commission in case titled as Neelam Chopra Vs. Life Insurance Corporation of India & Ors., IV (2018) CPJ 321 (NC), while dealing with the question of suppression/non-disclosure of material facts, has held as under :-

     12. In the present case, clearly the cause of death is cardio respiratory arrest and this disease was not existing when the proposal form was filled. Clearly, there is no suppression of material information in respect of this disease, which is the main cause of death. The other disease of LL Hansen, which was prevailing for five weeks on the date of admission on 1.8.2003 was also not existing when the proposal was filed by the DLA. The fact of DLA having been treated in the year 2002 for LL Hansen is not supported from any direct evidence though PGI Chandigarh in its certificate has mentioned that disease was treated in 2002. Moreover, this disease does not have any correlation with the cause of death in the present case. Hon’ble Supreme Court in Sulbha Prakash Motegaonkar and Ors. v. Life Insurance Corporation of India, Civil Appeal No.8245 of 2015, decided on 5.10.2015 (SC) has held the following:

        “We have heard learned Counsel for the parties.

                It is not the case of the Insurance Company that the ailment that the deceased was suffering from was a life threatening disease which could or did cause the death of the insured. In fact, the clear case is that the deceased died due to ischaemic heart disease and also because of myocardial infarction. The concealment of lumbar spondylitis with PID with sciatica persuaded the respondent not to grant the insurance claim.

       

                We are of the opinion that National Commission was in error in denying to the appellants the insurance claim and accepting the repudiation of the claim by the respondent. The death of the insured due to ischaemic heart disease and myocardial infarction had nothing to do with this lumbar spondylitis with PID with sciatica. In our considered opinion, since the alleged concealment was not of such a nature as would disentitle the deceased from getting his life insured, the repudiation of the claim was incorrect and not justified.”

13. In view of the foregoing discussion and the ratio of law laid down above, it is clear that OPs No.1 to 3/insurer have not been able to connect the previous diseases/ailments with the present disease/ailment, for which the insured patient had taken treatment from the treating hospital.  Hence, it is unsafe to hold that the insurer was justified in rejecting/repudiating the claim of the complainant. 
14. Further, there is no force in the contention of the OPs No.1 to 3  as it is an admitted case of the parties that the complainant No.1 and the DLA had been obtaining the health insurance policy earlier from Oriental Insurance Co. Ltd. through OP No.4 since 12.02.2016 and thereafter the said policy was ported with OPs No.1 to 3 vide policy (Ex.C-5), the portability details given in the said policy (Annexure C-5) are relevant for the decision of the present case and the same are reproduced below for ready reference :-

        “Portability Details (if applicable)

Name	Client ID	Date of Birth/Incorporation	Relationship	Insured with the company (since)	Pre-existing disease	Sum insured
Jaswant Kaur	34015650	04-Apr-1957	Member	23-Mar-2022	Port benefit for hypertension & Hypothyroid	700000
Jiwan Singh Shergill	34079228	18-Sept-1944	Spouse	23-Mar-2022	None	700000

 

15. On behalf of complainants, reliance has been placed on the circular/guidelines dated 1.1.2020 issued by the IRDA through which certain guidelines have been issued for the portability of policy, including health policy, and the relevant portion of the same in case of migration of the policy is reproduced below for ready reference :-

“4. Migration shall be applicable to the extent of the sum insured under the previous policy and the cumulative bonus, if any, acquired from the previous policies.

5. Only the unexpired/residual waiting period not exceeding the applicable waiting period of the previous policy with respect to pre-existing diseases and time bound exclusions shall be made applicable on migration under the new policy.

6. Migration may be subject to underwriting as follows:

a. For individual policies, if the policyholder is continuously covered in the previous policy without any break for a period of four years or more, migration shall be allowed without subjecting the policyholder to any underwriting to the extent of the sum insured and the benefits available in the previous policy.

b. Migration from group policies to individual policy will be subject to underwriting.

c. Where underwriting is done, the insurance company shall convey its decision to the policyholder within 15 days as per Regulation 8(6) of IRDAI (Protection of Policyholders' interests) Regulations 2017.”

 

16. Since it has come on record that the complainant No.1 and the DLA had not purchased the health policy first time from OPs No.1 to 3 in the year 2022, rather the health policy was originally purchased by the complainant from the previous insurer i.e. Oriental Insurance Co. Ltd. in the year 2016 and after portability of the same, the said policy continued upto March 2023 i.e. the subject policy, even as per the terms and conditions of the subject policy (Ex.C-5), the disease (renal cyst), from which the complainant had suffered in the year 2021, does not fall under the pre-existing disease as per the terms and conditions of the subject policy (Annexure R-8), which is reproduced as under:-

Clause 1.1.37- Pre-existing Disease means any condition, ailment. injury or disease

 

 i) That is/are diagnosed by a physician within 48 months prior to the effective date of the policy issued by the insurer or its reinstatement or

 

 ii). For which medical advice or treatment was recommended by, or received from, a physician within 48 months prior to the effective date of the policy issued by insurer or its reinstatement”.

 

In the present case, the date of inception of the first policy shall be counted as 12.02.2016 when the first policy was issued by previous insurer i.e. Oriental Insurance Co. Ltd. and later on when the same was ported with the OPs. Thus, even as per the guidelines issued by the IRDA in the aforesaid circular, the case of the complainant is not covered under the clause of pre-existing disease.

17. In view of the foregoing, it is safe to hold that OPs No.1 to 3 are unjustified in repudiating the claim of the complainant and the present consumer complaint deserves to succeed.
18. Now coming to the quantum of amount, since the complainants have proved on record the bill to the tune of ₹3,07,683/-  indicating that they had paid aforesaid amount to the treating hospital from their own pocket, it is safe to hold that the insurer is liable to pay said amount to complainants alongwith interest and compensation etc. It is also an admitted case of the parties that an amount of ₹28,041/ was deducted from the account of complainant No.1 as premium towards the policy valid from 23.03.2023 to 22.03.2024 (Ex.C-13) issued by OPs No.1 to 3, which was admittedly issued after the death of the DLA who died on 11.12.2022, it is safe to hold that the aforesaid premium amount is liable to be refunded to the complainants subject to retaining the same qua the share of complainant No.1, who is still alive.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and the OP is directed as under :-

1. to pay ₹3,07,683/- to the complainants alongwith interest @ 9% per annum (simple) w.e.f. 19.01.2023 (when the claim was finally denied/repudiated) onwards.
2. To pay proportionate premium of the deceased DLA-Sh.Jiwan Singh Shergill to the complainants out of the total premium amount of ₹28,041/- of the policy (Ex.C-13), by retaining the same qua the share of complainant No.1.
3. to pay ₹30,000/- to the complainant as compensation for causing mental agony and harassment;
4. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by the OP within a period of 45 days from the date of receipt of certified copy thereof, failing which the amounts mentioned at Sr.No.(i) to (iii) above shall carry penal interest @ 12% per annum (simple) from the date of expiry of said period of 45 days, instead of 9% [mentioned at Sr.No.(i)], till realisation, over and above other reliefs.
6. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
7. Certified copies of this order be sent to the parties free of charge. The file be consigned.

5/11/2024	[Pawanjit Singh] President
	[Surjeet Kaur] Member
	[Suresh Kumar Sardana] Member