Complaint No: 171 of 2023.
Date of Institution: 03.10.2023.
Date of order: 16.02.2024.
Pradeep Singh Advocate, resident of Chamber No. 89, Block – C, District Courts Complex, Gurdaspur, Punjab. ….........Complainant.
VERSUS
1. Care Health Insurance Limited, Jail Road Gurdaspur SCO 22, Punjab, through its Branch Manager.
2. Care Health Insurance Limited, registered office 5th Floor, 19 Chawla House, Nehru Place, New Delhi – 110019.
Correspondence Office: Vipul Tech Square, Tower C, 3rd Floor Golf Course Road, Sector 43 Gurugram – 122009 (Haryana), through its MD & CEO Anuj Gulati.
3. Care Health Insurance Limited, Head Quarter Tower C Unitech Cyber Park sector 39 F116 Unit Number 604 – 607 Gurgaon, New Delhi – 122001.
4. Fortis Hospital Ludhiana Chandigarh Road Villlage Mundian Ludhiana, through its M.D. Pin Code – 141015.
….Opposite parties.
Complaint u/s 35 A of Consumer Protection Act.
Present: For the vomplainant: Sh.K.S. Walia, Advocate.
For the opposite parties No.1 & 2: Sh.Sandeep Ohri, Advocate.
Complaint against opposite parties No.3 and 4 had already been dismissed as withdrawn.
QUORUM: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Pradeep Singh Advocate, Complainant (here-in-after referred to as complainant) has filed this complaint under section 35 A of the Consumer Protection Act, (here-in-after referred to as 'Act') against Care Health Insurance Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant purchased a Care Health Policy from the opposite parties for which he paid the premium of Rs.23,562/- under the “Care Supreme Plan” for which mode of premium was single alongwith GST to the opposite parties and the opposite parties after receiving the premium of Rs.23,562/- issued the Policy No. 68714934 to the complainant on 18th July 2023. The policy is valid from 18th July 2023 to 17th July 2024. It is pleaded that the Policy Certificate issued by the opposite parties has shown the details of the insured person i.e. complainant and his spouse, in which there is no pre-existing disease since the purchase of the policy duly signed by the authorized signatory. The policy issued to the complainant by the opposite parties is cashless policy for the sum insured of Rs.7,00,000/-. It is further pleaded that previously the complainant was insured with Bajaj Alliance Company and date of first enrollment of policy was 16th July 2022 for Rs.5,00,000/- sum insured alongwith GST . The complainant switched on to the Care Health Company on 18th July 2023 and the probability details of the previous insurer are mentioned in the policy No. 68714934 duly accepted by the opposite parties. It is further pleaded that all of a sudden in the month of Aug 2023 the complainant felt hard piece of mass on the left side of stomach for which he approached the Medical Officer Civil Hospital Gurdaspur who advised for CECT chest and whole abdomen CT scan from Civil Hospital Gurdaspur, which was done by Krsnaa Diagnostics Center in which Lymphoma (cancer) High Grade B – Cell Lymphoma (CD 30 Positive) was detected. It is further pleaded that the further investigation was done from Sohana Super Specialty Cancer Hospital Mohali Sector 77 by the Oncologist where the complainant remain admitted and his PET / CECT Scan of whole body was performed and the finding regarding the Lymphoma multiple variable sited discrete and confluent lymph nodes with increase FDG uptake were seen at retrocrural, Periportal, Portocaval, peripencreatic, para, aortic (largest measuring approximate 4.5 × 5.6 × 6.7 cm, SUV Maximum 14) aortrocaval, Mesenteric, (Largest measuring approximate 5.4 × 9.1 × 10.1 cm, SUV Maximum 15) and at the bifurcation of aorta, Perinodal fat stranding was noted. After the PET Scan by the Oncologist biopsy scan was done and the mass of piece of Lymphoma was sent to the Laboratory for further investigation. It is further pleaded that on 11.09.2023 the report of biopsy was received by the complainant in which High Grade B - Cell Lymphoma CD 30 positive was detected. After the investigation, the complainant approached Fortis Hospital which is a Super Specialty Hospital at Ludhiana on 29.09.2023 alongwith the investigation report for treatment of High Grade B - Cell Lymphoma CD 30 positive. The Consulting Dr. Davinder Paul Senior Oncologist advised for 6 Chemo - therapies to the complainant. It is further pleaded that the cashless card issued by the opposite parties was shown to the insurance department of Fortis Hospital Ludhiana which contacted the opposite parties for cashless treatment of the complainant by filling up the form and the same was received by them from the cashless department. The claim status was shown as pending medical adjudication. It is further pleaded that on dated 29.09.2023 letter of repudiation from the opposite parties was received by the complainant in which the pre-authorization of cashless treatment was rejected on the ground of:- NON- DISCLOSER OF FACTS / PRE – EXISTING AILMENT AT THE TIME OF PROPOSAL / COMPLAINANTS PRIOR TO POLICY NON- DISCLOSER OF FACTS / PRE – EXISTING AILMENT AT THE TIME OF PROPOSAL. It is further pleaded that as per the policy No. 68714938 dated 18th July 2023 to 17th July 2024 issued by the opposite parties there is no pre-existing disease and it was incumbent upon the opposite parties to get the complainant medically examined to verify the facts mentioned by them at the time of issue of policy where the policy holder is more than 45 years of age as per the instructions of IRDA. It is further pleaded that it was held in judgment Balwinder Singh Jolly Vs. SBI General Insurance Co. Ltd. “pre-existing diseases age of insured when mediclaim insurance policy was issued was more than 45 years – Held – in that event as per Instructions issued by IRDA it was duty of the insurer to put insured to thorough examination – claim raised after issuance of insurance policy cannot be rejected on account of non-disclosure of the fact of pre – existing disease when policy was obtained”. It is further pleaded that the Insurance Companies are habitual to repudiate the genuine claim of insured persons intentionally and willfully to unnecessary drag them in frivolous litigation and harass them for the genuine claims for which they had paid heavy premium alongwith the GST in case of emergency. The policy holder / insurer is ditched and taken for a ride by the Insurance Companies as happened with the complainant. The false claims of the Insurance Companies to provide cashless facilities to the insured is a farce and bundle of lies falsely published in policy letters to raise the business of Insurance Companies and trap innocent customers. It is further pleaded that the denial of the genuine claim of pre-approval of cashless treatment is a mockery and cruel joke with the complainant for which in an emergency he has to pay the treatment charges out of his pocket which will amount to Rs.4,80,000/- for 6 Chemotherapies. It is further pleaded that the denial of cashless approval for treatment of 6 Chemotherapies and repudiation of permission vide letter dated 28.09.2023 is unfair trade practice and deficiency in services by the opposite parties. 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. So, 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 immediately pay the medical expenses of Rs.4,80,000/- to the opposite party No.4 which is to be paid by the complainant for 6 chemotherapies as his medical card is cashless before 14th October 2023. The complainant be also paid Rs.1,00,000/- as compensation from the opposite parties No.1 to 3 for causing mental agony and harassment and Rs.50,000/- as litigation expenses in the interest of justice or any other order as deems fit may also be passed 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 the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead the Hon'ble Commission. The present complaint is not maintainable in the present form as the complaint involves disputed question of facts which cannot be determined in summary jurisdiction of Consumer Commission. It is pleaded that the present complaint filed by the complainant with the mala-fide intention and has not come before this Hon'ble Commission with the clean hand, being litigation for the sake of litigations is liable to dismissed. The claim of the complainant does not fall within the purview of the Insurance as granted by the replying opposite parties hence, the complainant is not entitled for any claim under the policy. It is further pleaded that intricate questions of law and facts are involved in the matter in issue and parties should have to lead evidence by examining the witnesses and the other party should have to cross examine the witnesses and the matter involved in this case cannot be decided in summary manner and the complainant, if so advised, may approach the Civil Court. The complaint is false, frivolous and vexatious in nature as such the complainant is liable to pay penalty under the act to the opposite parties. The complainant is estopped from filing the present complaint by his own acts, conduct, omissions and acquiescence. It is further pleaded that the complainant has tried to challenge the veracity of decision of the opposite parties to repudiate the claim. The Company has repudiated the claim under the said policy by a speaking order, which lists out the specific reasons for the decision. By no stretch of imagination the said decision can be brought under the umbrella of 'Deficiency in Services'. The complainant should approach the Civil Courts in order to challenge the veracity of the decision of the opposite party company to repudiate the claim. It is further pleaded that the complaint is devoid of any material particulars, and has been filed merely to harass and gain undue advantage and unjustified monies from the opposite parties, and hence the complaint deserves to be dismissed in limine. The insurance is a contract of utmost good faith and that the contract of insurance is based on Doctrine of Uberrima Fides and even if any due diligence is done by the insurance company, it does not change the basic element of an insurance contract. It is further pleaded that the complainant has sought relief on the basis of allegations which are not supported by any documentary evidence to substantiate the same. Therefore, the complaint does not deserve any consideration by this Hon'ble Commission and merits dismissal at the threshold and there is no deficiency in service rendered by the answering opposite parties in the present case, and the answering opposite parties is not a necessary or a proper party to present dispute, accordingly present complaint ought to be dismissed against the opposite parties. The complaint being frivolous and vexatious is liable to be dismissed under Consumer Protection Act. It is further pleaded that the replying opposite parties company issued a health insurance policy namely "Care Supreme" bearing Policy No. 68714934 being issued to Mr. Pradeep Singh and his spouse Jabir Kaur from 18.07.2023 till 17.07.2024 for a sum insured up to Rs.7,00,000/- subject to policy terms and conditions. It is further pleaded that believing the information and details provided by the Proposer including the medical history to be true and correct in all respect and giving due credence to the under writing norms of replying opposite parties Company, a Policy issued. The copy of Schedule bearing relevant details of the Policy along with policy bond having terms and conditions were duly sent and delivered to the Proposer. Further, no assurance was given to the Complainant beyond the terms and conditions of the Policy. It is further pleaded that replying opposite parties Company further submits that the Policy kit containing all relevant documents was duly delivered to the Complainant from time to time, thereby giving an opportunity to the Complainant to verify and examine the benefits, terms and conditions of the Policy taken by the Complainant. The complainant never approached the replying opposite parties’ Company stating that any information given in the Policy Schedule was incorrect.
The replying opposite parties received a cashless request from M/s Fortis Hospital Ludhiana on behalf of the Insured for his hospitalization on 28.09.2023. As per the pre-authorization form, insured was provisionally diagnosed with Non-Hodgkin’s Lymphoma. Upon receipt of the cashless request, a query dated 28.09.2023 was raised to the hospital for the following documents/information:
- EXACT DURATION AND PAST HISTORY OF PRESENT AILMENT WITH 1ST CONSULTATION PAPER AND ALL PAST TREATMENT RECORDS. NON HODGKIN'S LYMPHOMA
Upon perusal of the submitted documents following observations were made:
- As per the pre-authorization form, the insured was having complaints of abdominal fullness and pain since 4 months.
- As per the document of Fortis Hospital dated 28.09.2023, it is mentioned that the complainant was having complaints of abdominal fullness and pain abdomen since 4 months.
Therefore, in the light of above findings, the answering opposite parties Company rejected the cashless request vide Denial Letter dated 28.09.2023 for the following reason:
- NON DISCLOSURE OF MATERIAL FACTS / PRE-EXISTING AILMENTS AT TIME OF PROPOSAL COMPLAINTS PRIOR TO POLICY.
It is further pleaded that the complainant filed a reimbursement claim for his hospitalization at Sohana Hospital from 30.08.2023 to 01.09.2023. As per the discharge summary, the complainant was diagnosed with Abdominal Lymphadenopathy, lymphoma under evaluation, Diabetes Mellitus. Upon perusal of the submitted documents following observations were made:
- As per the pre-authorization form, the insured was having complaints of abdominal fullness and pain since 4 month.
- As per the document of Fortis Hospital dated 28.09.2023, it is mentioned that the complainant was having complaints of abdominal fullness and pain abdomen since 4 months.
Therefore, in the light of above findings, the answering opposite parties Company rejected the claim vide Denial Letter dated 19.10.2023 for the following reason:
- CLAIM REJECTED FOR NON-DISCLOSURE OF PAIN ABDOMEN AND ABDOMINAL FULLNESS PRIOR TO POLICY INCEPTION.
- 5.1.1 NON DISCLOSURE OF MATERIAL FACTS/PRE-EXISTING AILMENTS AT TIME OF PROPOSAL.
It is further pleaded that the Complainant had the chance to disclose his pre-existing diseases of complaints of abdominal fullness and pain in abdomen at the time of filling the proposal form. However, the complainant did not disclose the same at the time of filling the proposal form. It is further pleaded that in the light of above, the complaint is not at all maintainable since the complainant himself violated the terms and conditions of the policy and there is no deficiency in services on part of replying opposite parties and hence the present complaint is liable to dismissed forthwith.
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 services on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.
4. Complaint against opposite party No.3 had already been dismissed as withdrawn.
5. Upon notice, the opposite party No.4 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complaint is not maintainable either on facts or under the law against the replying OP No. 4. The complainant is not entitled for any relief against replying OP No. 4 and nor any relief has been sought from the replying OP No. 4 in the complaint itself. The complainant has, therefore, unnecessarily dragged the replying OP No. 4 into litigation. It is pleaded that at the present complaint is a gross abuse of the process of this Hon'ble Commission as the complainant has not approached this Hon'ble Commission with clean hands. Various material facts have been concealed and distorted version of facts have been deliberately presented in or to pressurize and harass the replying OP. The complainant has concealed the vital fact the patient was explained about the financial counseling and undertaking has also been given to settle the bill before leaving the hospital and has consented to pay for the treatment undertaken from the hospital before leaving the Hospital. Simply because the patient or his attendants want any claim from the insurance company, they cannot implead the answering opposite party as a party to the proceedings more particularly when they have no allegation against the answering opposite party as is apparent from the complaint. It is further pleaded that the complainant is seeking claim on reimbursement basis. Therefore, the complaint may be dismissed against the answering opposite party No. 4, as the only claim is to seek on reimbursement basis for his treatment and does not include any allegation or relief against the answering OP No.4. There is no evidence worth its name to show that there is any negligence or deficiency or delay in service at the hands of the answering opposite party No. 4 during the course of treatment of the patient. It is further pleaded that there is no breach of contract between the complainant and the answering OP No.4. Since, the answering OP No.4 was responsible for providing the medical treatment to the Patient in need, and the same was provided without any delay or negligence. The complainant had agreed to clear the dues for the medical treatment availed at the hospital at the time of discharge. Also, the answering OP No. 4 is not a part of contract of Insurance Company and person insured. It is further pleaded that the bare perusal of the complaint reveals that there are no allegations against the answering opposite party No. 4. The Complainant has paid the treatment cost as consented upon and there is no charge or allegation of any lapse in the treatment. Simply because the insurance company has not paid the amount of medical expenses to the Complainant no cause of action arises against the answering opposite party Hospital wherefrom the treatment is taken. To make out a case, there must exist any deficiency in service or any other ground as per provisions of Sec. 2(11) of the Consumer Protection Act, 2019 and for this reason, this complaint is liable to be dismissed at admission stage itself against the answering OP No. 4. The present complaint is a fit case where this Hon'ble Commission shall take stringent action against the complainant as envisaged under section 26 of the 'Consumer Protection Act, 1986, as amended up to date, as the same is frivolous qua replying OP No. 4. It is further pleaded that the complainant purchased a Care Health Policy from the OP No. 1 for which a premium of Rs.23,562/- was paid and the OP No. 1 issued the Policy No. 68714934 to the complainant on 18th July 2023, with a validity till 17th July 2024, it is an agreement between the Insurer and the Insure. The Insurance Policy was issued by the OP No. 1 and the answering opposite party No. 4 is not a party to the contract between the insurer and the insured. It is further pleaded that the complainant approached the answering opposite party on 29.09.2023 alongwith the investigation report for treatment of High Grade B - Cell Lymphoma CD 30 Positive. Dr. Davinder Paul Senior Oncologist at Fortis Hospital Ludhiana advised for 6 Chemotherapies. The treatment was advised as per the set medical protocol and there was no delay or deficiency in treating the complainant. It is further pleaded that the answering opposite party No. 4 received the cashless treatment form filled by the complainant and the same was forwarded to the opposite party No. 1. The answering opposite party No. 4 received a letter of repudiation on 29.09.2023 issued by the opposite party No. 1 on the grounds of non-disclosure of pre-existing disease at the time of proposal. It is further pleaded that the letter of repudiation was issued by the opposite party No. 1. The answering OP No. 4 has made all efforts to assist the complainant in seeking the approvals for the cashless treatment from the insurance company as is evident from the facts stated above. It is further pleaded that no claim has been sought from the answering OP No. 4, and moreover there is no deficiency in service and nor it has been alleged in the complaint as there is no negligence or deficiency in attending the patient during his hospitalization and even there is no act of harassment, mentally or physically is caused by or any act on the part of the answering OP No. 4 and as such no cause of action arises against the answering OP No. 4. Since no mental or physical harassment, agony or inconvenience is caused from any act of the answering OP No. 4, no relief or compensation in any form is called for from the answering OP No. 4 and nor has been claimed. It is further pleaded that the complaint filed by the complainant against the answering opposite party No. 4 is liable to be dismissed and the complainant is not entitled for any relief qua the answering opposite party No.4.
On merits, the opposite party No.4 has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
6. Learned counsel for the complainant has tendered into evidence affidavit of Pradeep Singh Advocate, (Complainant) as Ex.CW-1/A alongwith other documents as Ex.C-1 to Ex.C-7.
7. Learned counsel for the opposite parties No.1 and 2 has tendered into evidence by way of Self Declaration of Sh. Parth Arora, (Authorized Signatory of Care Health Insurance Co. Ltd., Gurgaon) as Ex.OPW-1,2/A alongwith other documents as Ex.OP-1,2/1 to Ex.OP-1,2/7 alongwith reply.
8. Learned counsel for the opposite party No.4 has tendered into evidence affidavit of Sh. Vishavdeep Goyal, (Facility Director, Fortis Hospital, Ludhiana) as Ex.OP-4/A alongwith other documents as Ex.OP-4/1 to Ex.OP-4/3 alongwith reply.
9. Rejoinder not filed by the complainant.
10. Written arguments not filed by the parties.
11. Counsel for the complainant has argued that complainant had purchased one health policy from the opposite parties No.1 and 2 valid from 18.07.2023 to 17.07.2023. It is further argued that complainant and his wife was insured upto Rs.7,00,000/-. It is further argued that previously complainant was insured with Bajaj Allianz Company and thereafter complainant switched on to the care health company on 18.07.2023. It is further argued that in the month of August, 2023 complainant felt hard piece of mass on the left side of stomach for which he approached medical officer civil hospital Gurdaspur who advised CECT chest and whole abdomen CT scan which was conducted by Krsnaa Diagnostics Centre in which Lymphoma (cancer) High Grade B – Cell Lymphoma (CD 30 Positive) was detected on 18-8-2028. On further investigation from Sohana Super specialty Cancer Hospital Mohali PET/CECT scan of whole body was performed and finding regarding the Lymphoma multiple variable sited discrete and confluent lymph nodes with increase FDG uptake were seen at retrocrural, Periportal, Portocaval, peripencreatic, para, aortic (largest measuring approximate 4.5 × 5.6 × 6.7 cm, SUV Maximum 14) aortrocaval, Mesenteric, (Largest measuring approximate 5.4 × 9.1 × 10.1 cm, SUV Maximum 15) and at the bifurcation of aorta, Perinodal fat stranding was noted. After the PET Scan by the Oncologist biopsy scan was done and the mass of piece of Lymphoma was sent to the Lab. On 11.09.2023 the report of biopsy was received by the complainant in which High Grade B - Cell Lymphoma CD 30 positive was detected and thereafter complainant approached Fortis Hospital Ludhiana alongwith investigation report and was advised 6 Chemo-therapies by the doctor. Since the complainant was insured with the opposite parties No.1 and 2 complainant has shown his insurance card and applied for cashless treatment on 29.09.2023. The claim for cashless was rejected on the ground non disclosure of pre-existing ailment at the time of proposal prior to the policy. It is further argued that complainant was not suffering from any pre-existing disease and as per the instructions of IRDA opposite parties were required to get the complainant medically examined and failure to do so shows that opposite parties cannot take any excuse later on. It is further argued that since the complainant was not in possession of amount and as such had filed the present complaint alongwith application for interim relief and now all the 6 Chemo-therapies have been completed and complainant had to pay Rs.4,80,000/- to the hospital from his own pocket and act of opposite parties in repudiating the claim amounts to deficiency in service.
12. On the other hand counsel for the opposite parties No.1 and 2 has argued that present complaint is not maintainable and is liable to be dismissed. It is further argued that the claim lodged by the complainant was repudiated by speaking order with specific reasons for the decision. It is further argued that the subject matter for the above policies itself is proved to be initiated by fraudulent act and complaint has been filed with motive to extract money from the insurance company. It is further argued that on receiving cashless request query was raised and on perusal of documents it was observed that insured was having complaints of abdominal fullness and pain since 4 months and complainant had not disclosed this fact at the time of purchase of the policy. Meaning thereby that complainant was aware about the disease prior to the inspection of the policy. Accordingly, claim was rightly repudiated by the opposite parties.
13. Complaint against opposite parties no.3 and 4 had already been dismissed as withdrawn.
14. We have heard the Ld. counsels for the complainant and opposite parties No.1 and 2 and gone through the record.
15. To prove his case complainant has placed on record his affidavit Ex.CW-1/A, copy of welcome letter Ex.C1, copy of policy Ex.C2, copy of proposal detail Ex.C3, copy of health card Ex.C4, copy of denial letter Ex.C5, copy of diagnosis Ex.C6, copy of judgment Ex.C7, copies of treatment record and bills Ex.C8 to Ex.C38 whereas opposite parties No.1 and 2 have placed on record affidavit of Parth Arora Ex.OPW-1,2/A, copy of policy Ex.OP-1,2/1, copy of request for cashless Ex.OP-1,2/2, copy of diagnosis Ex.OP-1,2/3, copy of denial of pre-authorization Ex.OP-1,2/4 copy of discharge summary Ex.OP-1,2/5, copy of denial of claim Ex.OP-1,2/6, copy of detail of person insured Ex.OP-1,2/7. Opposite party No.4 has placed on record affidavit of Vishavdeep Goyal Ex.OP-4-A, copy of admission and discharge card Ex.OP-4-1, copies of claim book Ex.OP-4-2, copies of bills and deposit receipt Ex.OP-4-3.
16. Opposite parties have mainly relied upon record of Fortis Hospital Ludhiana as per which the complainant has got mentioned abdominal fullness and pain for the last 4 months and the same is diagnosis by Sohana Hospital Mohali. From the discharge summary it is described that patient came to SGHS Hospital with complaint of pain of abdomen. The plea of the counsel for the opposite parties No.1 and 2 that the policy document was purchased by the complainant on 18.07.2023 and if complainant was having abdominal pain for the last 4 months which was detected by Sohan Hospital on 30.08.2023 meaning thereby that complainant was aware about the problem in the month of April 2023 and while filling the proposal form complainant concealed the abdominal pain from the opposite parties No.1 and 2.
17. Perusal of policy document shows that age of the complainant mentioned is 53 years and more than 45 years and as per the instructions of IRDA opposite parties No.1 and 2 were required to get the complainant and his wife medically examined before issuance of policies but the opposite parties No.1 and 2 had failed to get the insured medically examined. As such opposite parties cannot raise plea of pre-existing disease and denied the claim of the complainant.
18. We have also placed reliance upon the judgment of Balwinder Singh Jolly Vs. SBI General Insurance Co. Ltd. “pre-existing diseases age of insured when mediclaim insurance policy was issued was more than 45 years – Held – in that event as per Instructions issued by IRDA it was duty of the insurer to put insured to thorough examination – claim raised after issuance of insurance policy cannot be rejected on account of non-disclosure of the fact of pre – existing disease when policy was obtained”. Moreover, it is also not denied by the opposite parties No.1 and 2 that the complainant was already insured with the Bajaj Allianz Company w.e.f 16-7-2022 and was covered for health insurance upto Rs.5,00,000/-. Opposite parties No.1 and 2 cannot take this plea that the complainant purchased the health policy from the opposite parties No.1 and 2 or that was aware about the pre-existing disease. The cancer is such a disease that symptoms develop and some time come out at last stage and the patient come to know about the same only at last stage. And in the present aslo how can complainant come to know that alleged hard piece of mass is cancer with out tests. We are of view that for every minor physical discomfort no one will go to Super Specialty Hospital and abdominal pain and hypertension are such diseases with which every human body get confronted at some stage of life and more over it is not in a such disease that was required to be disclosed while filling up the proposal form while obtaining the policy of insurance. Moreover, there is no medical evidence on record to prove this fact that the disease in respect of which the complainant undertook treatment was in knowledge of the complainant or that complainant undertook any treatment from any hospital or that thereby deliberately concealed this fact from the opposite parties No.1 and 2. Moreover, opposite parties have not placed any record in respect of treatment under gone by the complainant for alleged pre-existing disease nor have placed on record any affidavit of the doctor who allegedly treated the disease complainant for alleged disease. As such we are of the view that repudiation of the claim on the ground of pre-existing disease is totally unjustified.
19. We have further 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".
20. We have also 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)".
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. Moreover, the opposite parties have issued the policy of insurance after having received premium, as such opposite parties cannot refuse to settle the clam by referring to previous ailment.
21. From the aforesaid discussion, it transpires that the genuine claim of the complainant has been repudiated by the opposite parties without any reasonable excuse. It is usual with the insurance companies to show green pastures to the consumers when they are to sell their policies. But however when it comes to the payment for claim, they invent all sort of excuses to deny the claim. Reliance in this connection can be had on the decision of Hon'ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This 'take it or leave it', attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon'ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
"It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich".
22. We have also referred order of Hon'ble National Commission in Revision Petition No.200 of 2007 "Mr. Satinder Singh v. National Insurance Co. Ltd." decided on 24.1.2011 wherein it has been observed "recording of history of patient in the above stated manner does not become a substantiate piece of evidence and convincing evidence be brought on record that complainant was aware of preexisting disease for which he had taken the treatment of disease". Counsel for the complainant has referred that in case the complainant was not aware of the disease even if there was some problem that cannot be categorized as pre-existing disease. In this regard, he has made a reference to III 2014 CPJ 340 (NC) "New India Assurance Company Limited through its duly Constituted Attorney, Manager vs. Rakesh Kumar" that people can live months/years without knowing the disease and it is diagnosed accidentally after routine check up and on that ground repudiation is not justified. Further no Doctor of Fortis Escort Hospital, Amritsar has been examined on what basis he has written that complainant was suffering from COPD for the last 2 years. It has been observed by the Hon'ble National Commission in its judgment IV (2008) CPJ 89 (NC) "Life Insurance Corporation of India & Ors. v. Kunari Devi" that history recorded in the hospital bed head ticket is not to be taken as evidence as Doctor recording history not examined and suppression of disease not proved. Therefore, we do not agree with the plea raised by the counsel for the appellant/Op that the claim is not payable on the basis of pre-existing disease.
23. Accordingly, form the above discussion we are of the view that repudiation of the claim by the opposite parties No.1 and 2 amounts to deficiency in service.
24. Accordingly, present complaint is partly allowed and opposite parties No.1 and 2 are directed to pay Rs.4,80,000/- to the complainant for 6 Chemotherapies paid to Fortis Hospital Ludhiana (OP. No.4) during the treatment alongwith interest @ 9% P.A. from the date of filing of the present complaint till realization and opposite parties No.1 and 2 are further directed to pay compensation of Rs.25,000/- for mental agony and harassment and Rs.11,000/- as cost of litigation. Entire exercise shall be completed within 30 days from the date of receipt of copy of this order.
25. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record room.
(Lalit Mohan Dogra)
President
Announced: (B.S.Matharu)
Feb. 16, 2024 Member
*YP*
