Before the District Consumer Dispute Redressal Commission [Central], 5th Floor ISBT Building, Kashmere Gate, Delhi
Complaint Case No.122/04.05.2017
Ravindra Singh Tanwar s/o Late Sh. Sampat Singh Tanwar
r/o A-353, Govindpuram, Ghaziabad, U.P.-201013 …Complainant
Versus
OP- The Manager (Authorised)
Cigna TTK Health Insurance Company Ltd.
32-B, 3rd Floor, Rajinder Nagar, Pusa Road,
Landmark: Pillar No. 122, Near Karol Bagh
Metro Station, New Delhi-110005
The Manager (Authorised)
Cigna TTK Health Insurance Co. Ltd.
401/402, Raheja Titanium, Western Express Highway,
Goregaon (East), Mumbai-400063 ...Opposite Party
Date of filing: 04.05.2017
Date of Order: 27.07.2023
Coram: Shri Inder Jeet Singh, President
Ms. Shahina, Member -Female
Shri Vyas Muni Rai, Member
Inder Jeet Singh, President
ORDER
1.1. (Introduction to case of parties) –The complaint has been filed for allegations of deficiency in services. The complainant/Insured took health insurance policy from the OP/Insurer and when medical bill of his hospitalization and treatment was raised, his valid claim was declined and repudiated on the ground that there is non-disclosure of ‘patient having HTN since 8 to 10 years on treatment at the time of taking policy’. Whereas, he was never patient of high blood pressure at any point of time, which is also mentioned in the discharge summary as well as physician test carried by the OP.
1.2. The OP had opposed the complaint that the complainant has suppressed material information from the proposal form, he concealed about his pre-existing disease of HTN for last 8-10 years, which has been surfaced and discovered from scrutiny of the papers of treatment, a paper has been filed as Annexure-E (Page-45) to the written statement. There is also 'exclusion clause of pre-existing disease for period of 48 months prior to inception of first insurance policy'. The claim of complainant was not tenable within the terms & conditions of the policy and it was properly repudiated. There is no negligence or deficiency of any services on its part.
2.1. (Case of complainant) – The complainant took a health insurance policy bearing no. PROHLT010261627 dated 26.02.2016 valid w.e.f. 26.02.2016 to 24.02.2017 from OP. However, on 13.01.2017 at about 6:30 pm, the complainant felt restlessness and pain in his chest, which persisted till next morning. Thence, on 14.01.2017, he was hospitalized at Sarvodya Super Specialty Hospital and Heart Centre, Ghaziabad, UP (in brief 'Hospital'), for treatment of chest pain in the emergency, he was diagnosed ailment related to heart first time and he had undergone treatment for the same. He was discharged on 17.01.2017 and he was issued medical document and discharge slip/summary.
2.2. On 08.02.2017, the complainant registered his claim by email with the OP, he furnished all papers, which were registered by the OP vide claim no. BLR-0117-CL-0015545, it were acknowledged by the OP vide email dated 09.02.2017.
2.3. On 15.02.2017, the OP sent email to the complainant of rejection of medical claim by citing reason that in the discharge summary furnished by the complainant, it shows that complainant has been suffering from hyper-tension for 8-10 years and diabetes mellitus for 3-4 years but it was not disclosed, while buying the policy.
Whereas, the claim was rejected on false grounds mentioned in the email by the OP since the complainant was never suffering from hyper-tension nor it was so mentioned in the discharge summary. In fact discharge summary mentions, 'no previous history of HTN'. The complainant had disclosed that he was suffering from diabetes type-II which find mentioned in the physician reported dated 05.01.2017, which is prepared by the examining doctor quarterly. Therefore, denial of valid claim by the OP is arbitrary and contrary to the record, apart from it is malicious denial. The complainant felt traumatized because of rejection of his claim by OP on false grounds, especially the complainant had undergone treatment of heart ailment first time immediately before rejection of the claim. The complainant has not concealed any fact about his ailments but by imputing vague allegations, they are derogatory to the reputation of complainant and his image has been tarnished by the OP.
2.4. The complainant also sent legal notice dated 27.02.2017 by registered post on 01.03.2017, asking the OP to reimburse valid medical claim bills of complainant but no result. That is why the complaint against OPs for reimbursement of paid medical bills/claim of Rs.1,88,000/-, compensation of Rs.5,00,000/- towards mental agony & harassment caused to the complainant, legal notice charges of Rs. 11,000/-, litigation cost of Rs. 60,000/- apart from separate compensation of Rs. 5,00,000/- towards loss of reputation.
2.5. The complaint is accompanied with copy of cover-note/policy schedule, premium payment receipt, proposal form, discharge summary, emails exchanged inclusive of repudiation of claim, physician report dated 05.01.2017, identity proof, medical reports, medical bills and legal notice, besides authorization letter by complainant in favour of his son Adatya Pratap Singh to make appearance, do needful and to prosecute the complaint on behalf of complaint.
3.1 (Case of OP)- OP opposes the complaint vehemently that it is abuse of process of law as complainant approached the Consumer Forum/Commission by suppressing material facts as well as previous ailments. There is no negligence or deficiency of services as OP had acted in terms of covenant of policy. The complainant was admitted in the hospital on 14.01.2017 and he was discharged on 17.01.2017, in the discharge summary he was diagnosed with HTN (Hyper Tension). The inpatient record of 16.01.2017 (Annexure-E/Page-45) clearly shows the notes made by hospital that he is known case of hyper-tension for last 8-10 years and he was on medication for such ailment. Whereas, while buying Pro Health Insurance Policy from OP, the complainant had furnished proposal form dated 18.02.2016, wherein he has disclosed diabetes mellitus being the only disease complainant suffering from. He has not disclosed about his other ailment of hyper-tension, whereas in Question no. 4(A)-Medical history, he has answered ‘No’ against hyper-tension history of duration and medication. Therefore, there is concealment of material fact but the contract of insurance is based on utmost good faith. The OP refers LIC of India Vs. Vimla Verma that suppression of material information by the insured amounts to breach of contract. The OP also refers clauses VIII.I. (Duty of disclosure), VIII.2. (material change), VIII.23 (overriding effect of policy schedule) and clause 52 (pre-existing disease) and also reproduced them to emphasis that as per the terms & conditions of the policy the claim was rejected properly. Moreover, the claim does not sustain because of pre-existing disease, which stipulates that before 48 months from the inception of the policy the claim would not be maintainable.
3.2. The complainant’s claim was considered in terms of contract of policy, there was suppression of material ailment as well as pre-existence of disease, therefore, it cannot be construed that rejection of claim was false or on flimsy ground, consequently, there was no negligence or deficiency of service on the part of OP. The complaint is liable to be dismissed.
3.3. The written statement is accompanied with copy of proposal form dated 18.02.2016, terms & conditions of the policy, medical examination report form dated 18.02.2012, a inpatient record slip dated 16.01.2017.
4. (Replication of complainant) – The complainant filed rejoinder after written statement of OP. The complainant reaffirms all the contents of complaint as correct as well as he denies all the allegations of reply by OP. There is no concealment of any material fact in the proposal form or otherwise. There is no reference of any ailment of hyper tension/HTN in the discharge summary issued by Hospital, rather in the discharge summary at page-2 it is specifically mentioned under heading “Brief history and essential physical findings as - “No P/H/O-DM/HTN/CoPD/CVA,” which reads as ‘No history of DM/hyper tension/CoPD/CVA’. The authenticity of inpatient slip dated 16.1.2017/Annexure-E filed by OP is denied. The case of LIC of India Vs. Smt. Vimla Verma is not applicable to the feature of present case as in that case the claimant had undergone treatment prior to taking the policy and it was not disclosed to this effect. The complainant also refers case of Praveen Damini Vs. OIC and refers its paragraph-18 which reads as “The District Forum also relied on clause 4.1 of the policy which states that is not material whether the insured had knowledge of the disease or not, and even existence of the symptoms of the disease prior to the effective date of insurance enables the Insurance Company to disown the liability”. Further extract of case has also been reproduced in the replication. There is deficiency of services and negligence on the part of the OP in repudiating the claim of complainant.
5.1. (Evidence)- The complainant (CW1) led evidence by filing his own affidavit coupled with documentary record, which was part of the complaint. The complainant also led evidence by way of affidavit of his son Sh. Adatya Kumar (CW2), it is also reiteration of similar facts, features and documents as narrated by the complainant
5.2. The OP led evidence by filing affidavit of Shri Shankajit Kar, Assistant Manager-Legal and affidavit of evidence is replica of written statement coupled with documents
6.1 (Final hearing)- The parties were given opportunity to file written arguments and the complainant as well as OP have filed their respective written arguments.
6.2. Moreover, Sh. Samanpal Singh along with Sh. Sandeep Ranjan, Advocate for complainant made oral submissions, case law has also been relied upon, however, there were no oral submissions by OP despite opportunity. However, the case of parties on merits and their rival contentions will be considered being in the pleading, evidence and other record.
During the course of arguments, the complainant supplemented while highlighting the ratio of law laid down in –
(a) Praveen Damini Vs. OIC (RP No. 1696/2005, dod 03.10.2006, NC), wherein it was observed that when the insured was thoroughly checked by the doctors, who were nominated by the insurance company and at that time the insured was found hale and hearty, in such set of circumstances, it would be difficult to arrive at conclusion that the insured at suppressed the pre-existing disease.
(b) New Indian Assurance Company Ltd. Vs. Rakesh Kumar (RP No. 2157/2014, dod 01.07.2014, NC; paragraph-7) wherein it was held that “in some cases of diabetes, there are no symptoms. People can live for months, even years, without knowing they have the disease and it’s often discovered accidentally after routine medical check-ups or following screening tests for other conditions. Hence, there are more chances that the complainant might have developed diabetes and hypertension during a span of 17 months after taking the policy. Thus, we do not find any concealment made by the complainant. The OPs failed to prove their contention; accordingly the repudiation of claim by OP is unjustified, it a deficiency in service”.
(c) Manmohan Nanda Vs United- India Assurance Co. [Civil Appeal no. 8386/2013) decided on 6.12.2021 (paragraph 52,(iv) & (v) , it was held in (iv) that if any query is made in a proposal form is left blank then the insurance company must ask the insured to fill it up. If inspire of any column being left blank, the insurance company accepts the premium and issues a policy, it cannot at later stage, when claim is made under the policy, say that there was a suppression or non-disclosure of a material fact, and seek to repudiate the claim. (v) The insurance company has the right to seek details regarding medical conditions, if any, of the proposer, by getting the proposer examined by one of its empanelled doctors. If on the consideration of the medical report, the insurance company is satisfied about the medical condition of the proposer and that there is no risk of pre-existing illness, and on such satisfaction if has issued the policy, it cannot, thereafter, contend that there was a possible pre-existing illness or sickness which has led to the claim being made by the insured and for that reason repudiate the claim.
7.1 (Findings)- The rival contentions of both the sides are considered keeping in view their evidence, precedent & case law presented by the parties. It is manifest that dispute surrounds “whether or not there is pre-existing disease of hyper-tension for 8-10 year?” Consequent to decision thereon, it will also determine “whether or not there was suppression of material fact of previous ailment”? or
“ applicability of exclusion clause of 48 months prior to inception of first policy ”?
7.2. After taking into account stock of all material aspects, it is held that the complainant was not suffering from HTN (hyper-tension), prior to taking the policy for the following reasons:-
(i) The complainant and the OP both of them have filed copy of proposal form dated 18.02.2016, and in the proposal form, column is 'left blank' against previous disease of hyper-tension.
(ii) There is medical examination report form dated 18.02.2016 (Annexure-C of paper book of OP) and in the column of medical history of high/low BP, it is denied by putting mark cross (‘x’). It was medical examination by the physician nominated by OP and his BP was recorded as 124/80 (Annexure-C/page-43 medical examination report form).
However, against the column of diabetes, it is confirmed by putting mark/tick right (‘√’) and duration of two years is mentioned along with name of medicine being taken orally. To say, there was disclosure of disease of diabetes. It was not a case of hyper-tension, the BP of 124/80 was in normal range.
(iii) The complainant has filed and proved discharge summary dated 17.01.2017 issued by Hospital (Pages 13-16) and in the discharges summary, it mentions previous medical history, there is no history of hyper-tension and its extract has already been reproduced in paragraph 4 above, which reads as ‘No history of–DM/hyper tension/CoPD/CVA’. This discharge summary is from page no. 13 to 16 is continuation.
On the other side, OP has filed a single page of inpatient slip (Annexure-E/page-45), in the middle thereof date 16.01.2017 is mentioned and HTN (8-10 years) is also mentioned. The upper half part of this slip is incomplete, may be in continuity of previous paper(s) but that paper(s) has/have not been filed. However, there is no description of patient, name, age/sex, address, or admission number to correlate it with a specific patient. Moreover, Annexure-E page-45 being a single sheet and it appears to be as if continuity of some previous papers but that record has not been filed nor proved by the OP. To say on the face of Annexure-E page-45 it cannot be identified to whom/patient it belongs to and also on the face of this Annexure-E, it is not relating with the complainant for want of any identity. Lastly, this page Annexure-E/Page-45 is not part of discharge summary (Page 13-16) filed by the complainant, especially the discharge summary from 13-16 is heading wise and in continuity and the Annexure-E/Page-45 is in different writing/ink impression from the writing/ink impression of discharge summary in pages 13-16.
(iv) The discharge summary proved by the complainant is not disputed by OP neither in its written statement nor in evidence. On the other side, complainant raises objection on the authenticity of single sheet of 16.01.2017. The OP failed to justify this inpatient slip. Why OP has not filed complete record of inpatient summary, if slip of 16.1.2017 was part of it?
(v) Moreover, the complainant has also proved physician report dated 05.01.2017 (Page 23-24 of paper book of complainant). It is in respect medical examination of complainant by the doctor nominated/empanelled by OP. This medical examination report form is on a prescribed form; this form is on the same pattern as medical examination form dated 18.02.2016 (Annexure-C of paper book of OP).
In the physician report of 05.01.2017, the complainant has declared and was shown diabetic with medical duration and oral medicine being taken. Moreover, in column no. 7 (physical examination) the BP recorded was mentioned as 160/100, repeating as 150/100 and again repeating as 150/100. The physician has concluded no sign or symptom for any disease, except he has diabetic.
(vi) By taking the conclusions/reasons (i) to (v) above, it clearly demonstrates that at the time of filling in the proposal form, the complainant had declared that he was not suffering from hyper-tension and on the same vary day, there was medical examination by the physician nominated by OP and his BP was recorded as 124/80 (Annexure-C/page-43 medical examination report form). Further, medical examination on 05.01.2017 (Page-24 of complainant’s paper book) also does not show any opinion of physician that complainant was suffering from high blood pressure. The Annexure-E/Page-45 has not been properly proved by the OP, as to whom (patient/person) it belongs as well as from which material record it was extracted from, since it does not form part of discharge summary (page 13-16) proved by the complainant.
Therefore, it stand established from the record as well as other circumstances that complainant was not suffering from hyper tension from the last 8-10 years prior to date of his treatment or prior to taking the policy. The complainant has not concealed any fact of his blood pressure status. He had declared his other disease of diabetes to OP.
(vii) The OP accepted the proposal form after medical examination of complainant through its nominated physician, premium was accepted and then policy was issued after its satisfaction. There is no record established by the OP that complainant was suffering from high BP at the time of taking policy. In fact record proved by the complainant, even from the medical record maintained by OP, it proves that OP has proceeded beyond its own record.
7.3. Since, it is already held in paragraph 7.2 above, that complainant was not suffering from hyper-tension, therefore, there is no question arises of concealment of any disease of HTN. The OP could not establish that there was breach of principle of utmost good faith by the complainant. In fact, OP has suppressed the complete record from which inpatient slip was extracted, which OP was not supposed to do it being a professional entity bound by same principle of utmost good faith.
7.4. In view of the conclusion reached in paragraphs 7.2 and 7.3 above, since there was no pre-existing disease of HTN suffered by the complainant, consequently, the exclusion clause no.52 of pre-existing disease would not be applicable. Moreover, in the repudiation letter, the OP confined it to the extent of suppression of ailment. OP cannot take defence beyond the reasons given for repudiation, thus invoking of clause no.52 is beyond the repudiation letter.
7.5. The objections raised with regard to pre-existing disease of clause no. 52 and suppression of material pre-existing disease could not be established by the OP vis-à-vis the complainant has established on the basis of medical record [inclusive of physician report given by doctors nominated by OP] that complainant was not suffering from hyper-tension/blood pressure. Therefore, the repudiation letter (at page 19 of the complainant’s paper book) baseless, beyond the medical record stand proved and mala-fide to deny valid claim of complainant. It is never the case of OP that this Annexure-E/Page-45 was provided by the complainant. The OP has not proved the source from which Annexure-E/Page-45 was procured by the OP to counter the discharge summary proved by complainant.
The complainant was constrained and compelled to pay the medical bills of his hospitalization etc. of Rs.1,88,000/-, which has been also proved in the complaint. The rejection of valid medical claim amounts to deficiency of services and the complainant has succeeded to establish this deficiency of services against OP. Thus, the complainant is entitled for reimbursement of his medical bills of Rs. 1,80,000/-.
The complainant also claim interest of 12% pa, however, there is no specified or agreed date of interest to this eventuality, therefore, interest @ 6% pa from the date of complaint till its realisation will meet both ends.
7.6. The complainant has claimed compensation of Rs. 5,00,000/- towards mental agony, harassment and the circumstances are speaking that his claim was rejected despite the OP was having record of medical examination by its nominated doctors and it was rejected when recently complainant had faced trauma of medical treatment of heart ailment. There was mental agony and other inconvenience faced by him to secure his valid medical reimbursement. Therefore, he is held entitled for compensation of Rs. 30,000/- in his favour and against the OP.
7.7. The complainant has claimed legal notice charges of Rs. 11,000/-, however, the legal notice dated 27.02.2017 does not mention any specific fee/charges, therefore, for want of mentioning of legal notice charges, this request is declined.
However, the complainant claims Rs. 60,000/- as litigation cost. The circumstances are speaking volumes that from the beginning the complainant has been pursuing his claim for reimbursement to the office of OP, followed by legal notice and then filing of the present complaint, in which he has succeeded. Therefore, cost of Rs. 15,000/- is allowed in his favour and against OP.
7.8. The complainant has also claim compensation of Rs. 5,00,000/- under the heading of loss of reputation, whereas, loss of reputation is not within the purview of consumer disputes. Simultaneously, the complainant is pursuing and feeling harassed that by making declaration in the repudiation letter that he has been suffering from hyper tension from the last 8-10 years, which is not existing, the complainant also felt jolted and shocked.
It has already been held OP could not prove Annexure-E/Page-45 belonging to or pertaining to the complainant and on the same very basis the claim was repudiated vis-à-vis the OP being the professional body having physician at its disposal, they have also given their physician report, which were prior to or at the time of proposal form, the same was ignored by OP and unauthenticated Annexure-E/page-45 was introduced. The OP has also given an impression that on scurrility of documents furnished by the complainant, it was found that he was suffering from HTN for the 8-10 years, whereas this document was never furnished by the complainant. The complainant has also prayed for other appropriate/proper relief.
Thus, question is whether punitive damages can be considered?. What is punitive damage and what is its purpose? The Punitive damages (or exemplary damages) are assessed and awarded in order to pinch opposite/faulting party for outrageous/intolerant behaviour and/or to refrain it or to deter others from engaging in conduct similar to that which formed basis of law suit. The purpose of punitive damages is to reform defaulting party as well as to deter other from indulging in such wrongs. Normally, punitive damages are awarded in civil action, however, there is also provision in section 14(1)(d) the Consumer Protection Act, 1986 for punitive damages. The punitive damages are not fine or penalty as fine is imposed in criminal trials. Therefore, by considering circumstances proved, it is a fit case to award punitive damages against the OP, the same are quantified as Rs. 10,000/- in favour of complainant and against OP. No order is passed with regard to loss of reputation.
8. Accordingly the complaint is allowed in favour of complainant and against the OP to refund/reimburse medical bills amount of Rs.1,88,000/- along-with simple interest @ 6%pa from the date of complaint till realization of amount; apart from to pay compensation of Rs.30,000/-, costs of Rs.15,000/- apart from punitive damages of Rs. 10,000/- in favour of complainant and against OP.
OP is also directed to reimburse/pay the amount within 30 days from the date of receipt of this Order. In case amount is not paid within 30 days from the date of receipt of order, the interest will be 8% per annum (in place of 6%pa) on amount of Rs.1,88,000/-.
9. Announced on this 27th day of July 2023 [श्र!वण 5, साका 1945].
Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.
[Vyas Muni Rai] [ Shahina] [Inder Jeet Singh]
Member Member (Female) President
