Order dictated by:

Sh.Anoop Sharma, Presiding Member

1.       The complainant  has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that the complainant got Health Benefit mediclaim insurance for herself from Opposite Party  covering the risk period 15.2.2015 to 14.2.2016 and hence she is the consumer as provided under the Act and is competent to invoke the jurisdiction of this Forum. The complainant unfortunately fell ill and was to be hospitalized at Fortis Escort Hospital, Amritsar from 20.4.2015 till 27.4.2015 and the treatment cost of the said hospital came to Rs.4,55,023/-. The Opposite Party  was informed immediately about the said hospitalization and the treatment to be taken thereof as the said policy was issued on cashless basis and is worth mentioning over here that the sum insured for the medical benefit is for Rs.2 lacs. The Opposite Party  instead of making the said payment has repudiated the claim of the complainant on the frivolous grounds vide letter dated 21.7.2015 that the complainant was having pre existing disease  which in fact was totally wrong and against the true facts. The aforesaid acts of the Opposite Party  in repudiating the genuine claim of the complainant on frivolous grounds is an act of deficiency in service, mal practices, Unfair Trade Practice and has caused lot of mental tension, agony, and harassment.  Vide instant complaint, the complainant has sought the following reliefs.

a)       Opposite Party  be directed to pay the amount of Rs.2 lacs alongwith interest @ 12% per annum from 1.7.2015 till realization.

b)      Opposite Party  be directed to pay the compensation of Rs.50,000/- to the complainant.

c)       Opposite Party  be directed to pay the adequate cost of the litigation.

d)      Any other relief to which the complainant is entitled to under the law, equity, justice and fairplay be also awarded.       

Hence, this complaint.

2.       Upon notice, Opposite Party  appeared and contested the complaint by filing  written statement taking preliminary objections therein inter alia that  the complainant has not approached this Forum with clean hands. The complainant is herself guilty of misrepresentation and suppression of material facts. In view of the contract of insurance being based on uberrimae fidae, the life assured was duty bound to reveal all material facts to the insurer. Instead of complainant is misleading this Forum by stating incomplete and false facts, the insured had undergone an operation for adenoma thyroid. It was major operation. Although the said operation was undergone by him four years prior to the obtaining the insurance policy. Thus, the concealment of the material facts by the complainant about her previous medical illness gives the valid ground for rejection of the complaint. The complainant has not disclosed about her pre existing disease at the time of obtaining the policy.  On thorough scrutiny of all the submitted claim documents and also from expert opinion it is observed that the present ailment is a long standing pathology, which will take 5 to 10 years to progress to the present stage, hence the present ailment is considered as pre existing disease, which is not covered under the scope of the policy. Hence this claim is inadmissible under general exclusion clause. On merits, the Opposite Party  took up almost the same and similar pleas as taken up by them in the preliminary objections.         Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.

3.       In his bid  to prove the case, complainant tendered into evidence  affidavit Ex.C-1 in support of the allegations made in the complaint and also produced copies of documents Ex.C2 to Ex.C8  and closed his evidence.

4.       On the other hand, to rebut the evidence of the complainant, the Opposite Party tendered into evidence the affidavit of Sh.Ashutosh Kumar Legal Officer Ex.OP1  alongwith copies of documents Ex.OP2 to Ex.OP68 and closed the evidence on behalf of the Opposite Party.

5.       We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.

6.       The complainant has submitted his affidavit Ex.C1 in which he has reiterated the facts as detailed in the complaint and contended that the complainant got Health Benefit mediclaim insurance for herself from Opposite Party  covering the risk period 15.2.2015 to 14.2.2016 and hence she is the consumer as provided under the Act and is competent to invoke the jurisdiction of this Forum. The complainant unfortunately fell ill and was to be hospitalized at Fortis Escort Hospital, Amritsar from 20.4.2015 till 27.4.2015 and the treatment cost of the said hospital came to Rs.4,55,023/-. The Opposite Party  was informed immediately about the said hospitalization and the treatment to be taken thereof as the said policy was issued on cashless basis and is worth mentioning over here that the sum insured for the medical benefit is for Rs.2 lacs. The Opposite Party  instead of making the said payment has repudiated the claim of the complainant on the frivolous grounds vide letter dated 21.7.2015 that the complainant was having pre existing disease  which infact was totally wrong and against the true facts. The aforesaid acts of the Opposite Party  in repudiating the genuine claim of the complainant on frivolous grounds is an act of deficiency in service, mal practices, Unfair Trade Practice and has caused lot of mental tension, agony, and harassment.

7.       On the other hand, ld.counsel for the Opposite Parties has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that the complainant has not approached this Forum with clean hands. The complainant is herself guilty of misrepresentation and suppression of material facts. In view of the contract of insurance being based on uberrimae fidae, the life assured was duty bound to reveal all material facts to the insurer. Instead of complainant is misleading this Forum by stating incomplete and false facts, the insured had undergone an operation for adenoma thyroid. It was major operation. Although the said operation was undergone by him four years prior to the obtaining the insurance policy. Thus, the concealment of the material facts by the complainant about her previous medical illness gives the valid ground for rejection of the complaint. The complainant has not disclosed about her pre existing disease at the time of obtaining the policy.  On thorough scrutiny of all the submitted claim documents and also from expert opinion it is observed that the present ailment is a long standing pathology, which will take 5 to 10 years to progress to the present stage, hence the present ailment is considered as pre existing disease, which is not covered under the scope of the policy. Hence this claim is inadmissible under general exclusion clause. Ld.counsel for the opposite party submitted that there is no deficiency of service on the part of the Opposite Party.

8.       From the entire above discussion, we have come to the conclusion that the  complainant got Health Benefit mediclaim insurance for herself from Opposite Party  covering the risk period 15.2.2015 to 14.2.2016 and it is also not disputed that complainant fell ill and was to be hospitalized at Fortis Escort Hospital, Amritsar from 20.4.2015 till 27.4.2015 and the treatment cost of the said hospital came to Rs.4,55,023/- and the claim for his hospitalization and medical treatment was referred to Opposite Party and the claim bill of 2 lacs (as the complainant was only insured for rs.2 lacs)  was filed with Opposite Party but the same was  repudiated by the Opposite Party on the ground that complainant has not disclosed about her pre existing disease at the time of obtaining the policy.  It was further contended that on thorough scrutiny of all the submitted claim documents and also from expert opinion it is observed that the present ailment is a long standing pathology, which will take 5 to 10 years to progress to the present stage, hence the present ailment is considered as pre existing disease, which is not covered under the scope of the policy. On the other hand, though  Opposite Party has produced on record the discharge summary of life insured regarding her admission in the hospital, but the Opposite Party has not filed any affidavit of any doctor who has medically treated the insured for the disease prior to taking of the policy. It has been held by the Hon'ble National Commission in case New India Assurance Co.Ltd & Anr Vs. Murari Lal Bhusri 2011(III) CPJ 198 (NC) that where the Insurance company failed to produce any evidence to show that respondent was aware of any pre-existing disease at the time when insurance policy was taken, opposite party was not justified in repudiating the claim of the complainant on the ground of pre-existing disease. It has been held by the Hon'ble Supreme Court of India in case P.Vankat Naidu Vs. Life Insurance Corporation of India & Anr 2011(3) CPC 350 that where no cogent evidence was produced by the respondent to prove that insured/deceased had concealed any fact about his illness or hospitalization, it was held that no material fact was suppressed by the deceased in this respect. It has been held by the Hon'ble State Commission of Punjab in case  Life Insurance Corporation of India Vs. Miss Veenu Babbar and another 2000(1) CLT 619 that repudiation on the basis of history recorded in the hospital records is illegal and arbitrary and the same could not be treated as substantive material to base any decision. Same view has been taken by the Hon'ble National Commission in case Life Insurance Corporation of India & Ors. Vs. Kunari Devi IV(2008) CPJ 89 (NC) that where no document has been produced in support of allegation of suppression of disease at the time of taking policy or revival of policy, history recorded in hospital's bed ticket, not to be treated as evidence as doctor, recording history not examined, suppression of disease not proved, insurer was held liable under the policy. It has further been held by the Hon'ble National Commission in case Sahara India Life Insurance Co. Ltd. & Anr Vs. Hansaben Deeepak Kumar Pandya IV(2012) CPJ 13(NC) that where the opposite party insurance company has failed to produce on record any evidence to show that deceased insured ever consulted doctor for taking treatment of heart disease, the repudiation of the claim on the ground of suppression of material fact is totally illegal. It has been  held by Hon’ble State Consumer Disputes Redressal Commission, Chandigarh in case titled as Ashwani Gupta & Ors. Vs. United India Insurance Company Limited 2009(1) CPC page 561 that where the claim of the complainant has been repudiated on the ground that the assured had pre-existing disease of diabetes mellitus which was not disclosed- apparently, burden to prove lies  upon the insurer- If assured was suffering from pre-existing disease why insurer  had not checked it at the time when proposal form was accepted by its  staff-Respondent has failed to fulfill this requirement before repudiating the claim and the appellant was held entitled  to claim alongwith interest.

9.       In view of the above discussion, we are of the opinion that the Opposite Party  has wrongly repudiated the claim of the complainant. Consequently, we allow the complaint with costs and the Opposite Party  is directed to pay the insured claim amount of Rs.2 lacs (two lacs) to the complainant, within one month from the date of receipt of copy of this order failing which the complainant shall be entitled to interest @ 9% per annum on this amount from the date of filing of the complaint till the payment is made to the complainant. Opposite Party is also directed to pay litigation expenses to the complainant  to the tune of Rs.2000/-.  Copies of the order be furnished to the parties free of cost. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in open Forum.