The complainant Sanjay Kumar (here-in-after referred to as complainant) has filed this complaint U/s 35 of Consumer Protection Act, 2019 (here-in after referred to as 'Act') before this Commission against Cholamandalam MS General Insurance Company Limited and another (here-in-after referred to as opposite parties).
Briefly, the facts of the complaint as pleaded by the complainant are that he took a group health insurance policy from opposite parties for himself, his wife namely Madhu Bala and son namely Yogesh Kumar with policy plan Family Floater/AROGYA for the period from 21.12.2019 to 20.12.2020 vide certificate No.2876/00038817/000003/000/00 for sum assured of Rs.3,00,000/- under the influence of opposite parties. The agent of opposite parties assured the complainant that this insurance policy covers all types of diseases, accident and surgical procedures.
It is alleged that after getting Rs.7866/- from the complainant, opposite parties issued card for use in network hospital, but no terms and conditions were ever supplied to the complainant before issuing the certificate of insurance.
It is further alleged that all of a sudden on 2.6.2020, the complainant fell sick with weakness right half of body associated with inability to speak. As such, he was firstly admitted to Singla Neuro Maternity Hospital, Bathinda from where after investigation by the doctors, he was referred to CMCH Ludhiana with diagnosis CVA-Left MCA INFARCT, Right Hemiparesis, Left ICA Thrombosis. He was first time admitted with this problem without any past history. Thereafter he was got admitted in CMCH Ludhiana as per the reference letter of Singla Neuro & Maternity Hospital Bathinda and at there he was admitted from 3.6.2020 to 16.6.2020 and major surgery was performed by the CMCH Ludhiana. The complainant spent more than Rs.3,00,000/-, but opposite parties failed to make the payment of Rs.3,00,000/- to hospital and now, to the complainant despite of submission of claim form and all documents in original alongwith original bills of hospital to opposite parties in time, as such, the complainant was forced to take friendly loans from his friends at high rate of interest for which opposite parties are liable to pay.
It is further alleged that the certificate/card issued to complainant was cashless despite this, company failed to settle the lawful claim of claimant. Treatment of complainant is to be completed with two major surgeries, out of which, one surgery was already done by CMCH and second is to be done now in short future, but as opposite parties failed to settle the lawful claim of the claimant within time. As such, the complainant is helpless to get second surgery performed as advised by the doctors of CMCH Ludhiana, as he had already taken loans from his friends for payment of first surgery and now no sources are there for second surgery. As such, in case of any mishap, opposite parties are solely responsible for that.
It is further alleged that on 14.9.2020, Yogesh Kumar son of complainant e-mailed opposite party and requested for early settlement of lawful claim of complainant, but to no avail. On 11.10.2020, opposite parties dropped one e-mail in mail box of Yogesh Kumar son of complainant that the patient is been known condition for Hypertension as per submitted claim document, however same information (details regarding Hypertension) had not been disclosed in the proposal form while purchase of the policy. Therefore we regret to inform you that your claim has been recommended for repudiation as per policy T & C, the repudiation letter will be issued within next 7 days.
It is further pleaded that the ground for repudiation of the claim is totally illegal and untenable in the eyes of law and opposite parties are intentionally saving their skin by making a lame excuse to swallow the genuine claim of the complainant, whereas the complainant is fully entitled to get the claim with interest.
On this backdrop of facts, the complainant has prayed for directions to opposite parties to pay sum insured of Rs.3 lakhs under the policy alongwith interest @ 18% per annum from the date of 2.6.2020 till its realization and pay compensation to the tune of Rs.1 lakhs and cost of litigation to the tune of Rs.25,000/-.
Upon notice, opposite parties appeared through counsel and contested the complaint by filing written version and raised the legal objections that the intricate questions of law and facts are involved in the complaint. They require voluminous documents and evidence for determination. It is not possible in the summary procedure under 'Act' and appropriate remedy, if any, lies only in the civil court. The complainant has concealed the material facts and documents from this Forum and opposite parties. As such, the complainant is not entitled to any relief. He has concealed the fact that on perusal of documents submitted for reimbursement of claim, it was observed that the signs and symptoms of present illness were existing since 14 years, which is prior to the inception of policy i.e. 21.12.2019. As such, the ailment is considered as pre-existing disease and claim is inadmissible as per general exclusion clause 3.2 which reads," No indemnity is available or payable for claims directly or indirectly caused by, arising out of or connected to any pre- existing disease or any pre- existing condition (s) as defined in the policy until 24 months of continuous coverage have elapsed, since inception of first policy with insurer." observed that the complainant is suffering from hypertension since 14 years as per the history recorded in the submitted documents and this information was not disclosed in proposal form while proposing for insurance. In view of this non-disclosure of material information, the contract of insurance becomes void and no claim is payable under the policy and claim was repudiated vide letter dated 13.1.2021. The terms and conditions of the policy were explained to the complainant at the time of proposing policy and same were served to the complainant alongwith policy schedule. Moreover it is clearly stated in the policy schedule 'The insurance under this policy is subject to terms, conditions and exclusions etc. attached'.
It is further pleaded that the policy is contractual in nature and claims arising therein are subject to the terms and conditions forming part of the policy. The claimant insured accepted the policy agreeing and being fully aware of such terms and conditions and executed the proposal form. The complainant has accepted the policy agreeing and being fully aware of such terms and conditions and executed the proposal form. The insurance is based on utmost good faith. Both the parties are bound by the terms and conditions of contract of insurance. The complainant is not 'consumer' of opposite parties and he has violated the terms and conditions of the policy. As such, opposite parties are not liable to pay any claim. Opposite parties have also referred some case law, detail of which is not necessary at this stage.
On merits, opposite parties have denied all other averments and reiterated their stand as taken in the preliminary objections as detailed above and prayed for dismissal of complaint.
In support of his complaint, the complainant has tendered into evidence his affidavit dated 19.11.2020 (Ex.C1) and documents, (Ex.C2 to Ex.C8).
In order to rebut the evidence of complainant, the opposite parties have tendered into evidence affidavit of Sh.Vidhi Passi dated 21.9.2021 (Ex.OP1/2) and the documents (Ex.OP1/1 and Ex.OP1/3 to Ex.OP1/5).
We have heard learned counsel for the complainant and gone through the record.
Counsel for complainant has argued that he had purchased the policy of insurance from opposite parties and during continuation of mediclaim policy, he fell sick on 2.6.2020 and he was diagnosed to be suffering from CVA-Left MCA INFARCT, Right Hemiparesis, Left ICA Thrombosis.
It is further argued that the complainant remained admitted at CMCH Ludhiana as per the reference of Singla Neuro & Maternity Hospital Bathinda where he remained admitted from 3.6.2020 to 16.6.2020 and major surgery was performed by CMCH Ludhiana and he had spent more than Rs.3,00,000/-. On claim being lodged with opposite parties, they had refused to pay the claim.
It is further argued that repudiation of claim by opposite parties on false and flimsy grounds amounts to deficiency in services.
On the other hand, learned counsel for opposite parties has argued that the complainant has concealed the material facts and as such, he is not entitled for reimbursement of any amount as it was observed that signs and symptoms were existing since 14 years, which is prior to inception of policy i.e. 21.12.2019. Hence, the present ailment is considered his pre-existing disease and claim is inadmissible as per general clause 3.2 of policy of insurance.
It is further argued that the complainant was suffering from Hypertension from the last 14 years, which is evident from the treatment record, (Ex.OP1/5, Ex.C4 and Ex.C5). As such, the claim is not payable as per terms and conditions of policy and claim has been rightly repudiated by opposite parties and counsel for opposite parties has also referred case law reported in 2015(1) CPR 421 wherein it has been held by Hon'ble National Commission that order ignoring waiting period and awarding compensation is set-aside.
We have given careful consideration to these submissions.
It is admitted fact that the complainant had purchased mediclaim policy of insurance from opposite parties, (Ex.C2) and he was issued health card, (Ex.C3). It is further admitted fact that the complainant was insured for free medical treatment up to 3 lakhs as per policy of insurance. It is further admitted fact that the complainant remained admitted at CMCH Ludhiana from 3.6.2020 to 16.6.2020 and surgery was performed by hospital authority and complainant had spent amount of more than Rs.3 lakhs on his treatment. It is further admitted fact the claim lodged by the complainant was repudiated by opposite parties vide letter of repudiation, (Ex.OP1/4) on the ground that the complainant was suffering from Hypertension from the last 14 years and no claim is payable in respect of pre-existing disease until 24 months continuous coverage has elapsed.
This Commission has gone through the record and as per which, the complainant is reported to have been suffering from Hypertension and Ischemicc Stroke regarding which he had undergone treatment from CMCH Ludhiana.
As far as arguments of learned counsel for opposite parties regarding suffering from Hypertension by the complainant is concerned and ground of repudiation is concealment of Hypertension at the time of filling of proposal form are concerned. This Commission is of the view that it has been number of times held by Hon'ble National Commission and Hon'ble Supreme Court of India that Hypertension and Diabetes are common disease and non-disclosure of Hypertension and Diabetes cannot be held to be concealment of pre-existing disease by the insured. Accordingly, this Commission is of the view that repudiation of claim by opposite parties on the ground of concealment of Hypertension is not justified.
So far as second ground of opposite parties regarding no liability of opposite parties in respect of pre-existing disease within 24 months of the policy of insurance is concerned. This Commission is of the view that opposite parties have not been able to prove that the said terms and conditions were ever explained to the complainant when the policy of insurance was issued. Accordingly, without any evidence on the part of opposite parties to prove this fact that the said conditions were ever explained to the complainant, opposite parties cannot bind the complainant and refuse to pay the claim by taking shelter of exclusion clause.
The reliance can be placed upon by the case law cited by Hon'ble Supreme Court of India in case title New India Assurance Co. Ltd. & Ors. Vs. Paresh Mohanlal Parmar, 2020(2) ICC 19 in which it has been held as under:-
“Consumer Protection Act, 1986, Section 23 Burglary and house breaking Insurance Policy-Non informing of terms and conditions of Insured-Compensation-Held, in absence of insured being made aware of terms of exclusion, not open to insurer to rely upon exclusionary clauses.”
So far as diabetes is concerned, the settled law is that this is not a material disease and the Insurance Companies have no right to repudiate the insurance claim on its basis. Majority of the population in India suffers from diabetes but diabetes can be kept under control as this is a cureable disease. It was held by this Commission in First Appeal No.1674 of 2002 "L.I.C. of India and others v. Ramandeep Kaur and another" decided on 2.2.2009 as under:-
"16. So far as the law on the subject is concerned it was held by the Hon'ble Supreme Court in the judgment dated 10.10.1995 recorded in "Biman Krishna Bose vs. United India Insurance Co." Civil Appeal No.3438 of 1995 that if a person is suffering from hypertension, the insurance claim of the legal heirs of such a person cannot be repudiated on the ground that the life assured had suppressed this information from the Insurance Company. Moreover hypertension is not a material disease which is fatal in itself.
So far as diabetes is concerned, the same parameter will apply. Disease of diabetes is so common in our country men, at least in this part of the country, that almost every third person is suffering from it. If proper check is maintained on that disease it is not fatal and a person suffering from diabetes can live even for 20 to 30 years if he is taking proper medicines. Therefore non-disclosure of this disease by the assured does not entitle the Insurance Companies to repudiate the insurance claim."
It was held vide the judgment reported as "Life Insurance Corporation of India vs. Sushma Sharma" I(2008) CPJ 213 as under:-
"18. So far as hypertension is concerned, no doubt, it is a disease but it is not a material disease. In these days of fast life, majority of the people suffer from hypertension. It may be only the labour class who work manually and take the food without caring for its calories that they do not suffer from hypertension or diabetes. Out of the literate and educated people particularly who have the white collar jobs, majority of them suffer from hypertension or diabetes or both. If the Life Insurance Companies are so sensitive that they consider hypertension and diabetes as material diseases then they should wind up their business and stop accepting premium."
It was also held by this Commission in the judgment reported as "Life Insurance Corporation of India vs. Satwinder Kaur" 2008(2) CLT 405 as under:-
"11. The settled law is that the Insurance Companies must have solid and convincing evidence to prove that the insured had suppressed material facts while filling the proposal form. The right of repudiation cannot be granted to the Insurance Companies on flimsy grounds or sketchy evidence. After all the Insurance Companies insure a person, take the premium and when it comes to making the insurance claim, they find out one or the other ground to reject the claim. Courts, therefore, have to be cautious while determining the rights of the parties and has to insure that the right of repudiation is exercised by the Insurance Companies judicially and on sound principles."
Accordingly, this Commission is of the view that repudiation of claim lodged by the complainant on the part of opposite parties amounts to deficiency in services. Accordingly, present complaint is partly allowed and opposite parties are directed to settle and pay the claim to the complainant within 45 days from the date of receipt of copy of this order. However, it is further held that if the claim is not settled and paid within 45 days after receipt of copy of this order, claim amount shall carry interest @ 9% per annum w.e.f 13.1.2021 i.e. date of repudiation of claim till realization. The complainant is held entitled to cost of Rs.5000/- on account of mental tension, harassment and cost of litigations.
The complaint could not be decided within the statutory period due to heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost and file be consigned to the record room.
Announced :
03-07-2023
(Lalit Mohan Dogra)
President
(Shivdev Singh)
Member
