Order by:

Smt.Priti Malhotra, President

1.           The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 on the allegations that the complainant no.1 namely Jaspreet Kaur purchased an health insurance policy bearing no.P/211222/01/2023/000230 for Rs.10,00,000/- covering herself as well as her family from Opposite Parties. During the policy coverage complainant no.1 Jit Singh was suffering from Prostate Enlargement and he got medically treated from Fortis Hospital, Mohali from 21.07.2022 to 23.07.2022. At the time of admission in the said hospital, the complainants requested the Opposite Parties to provide cashless facilities to them, but the Opposite Parties declined the request of the complainants and assured the complainants that they will pay the same at the time of claim. As per the assurance of Opposite Parties, the complainants had paid whole amount of medical expenses as well as medical bills from their own pocket. After getting discharge from the hospital, the complainants submitted all the record of medical treatment of complainant no.2 to the Opposite Parties, but inspite of that the Opposite Parties did not pay any amount to the complainants. The complainants spent Rs.1,20,292/- (i.e. Rs.95000/- paid to Fortis Hospital, Mohali, Rs.25292/- on medical tests, medicines and diagnostic labs). Complainants requested many times to Opposite Parties to make the payment of claim, but Opposite Parties refused to make the payment to the complainants. Hence this complaint. Vide instant complaint, the complainant has sought the following reliefs:-

a)       Opposite Parties may be directed to make the payment of Rs.1,20,292/- alongwith interest @ 24% p.a. till its actual realization.

b)      To pay an amount of R.50,000/- as compensation on account of mental tension, harassment and agony.

c)       To pay an amount of Rs.33,000/- as litigation expenses.

2.       Opposite Parties appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that the intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court; The complainant has concealed material facts and documents from this Commission as well as from the Opposite Parties, therefore the complainant is not entitled to any relief. Further alleged that complainant no.1 availed the Star Women Care Insurance Policy having No.P/211222/01/2023/000230 for the period 15.04.2022 to 14.04.2023 and in this policy complainants are insured for an amount of Rs.10,00,000/-. The terms and conditions of the policy were explained to the complainant at the time of proposing policy and the same was served to complainant alongwith the policy schedule. It is clearly stated in the policy schedule that “The Insurance under this policy is subject to conditions, clauses, warranties, exclusions etc.” The complainant has accepted the policy agreeing and being fully aware of such terms and conditions and executed the Proposal Form. The claim in dispute was reported in the first year of the policy and claim was registered vide claim no.CIR/2023/211222/0472658. Further alleged that the policy in question was ported from Oriental Insurance Company Limited to present company on 14.01.2021. No pre-existing disease was declared by the insured. The complainant made request for cashless on 18.07.2022 for treatment of Beningn Prostatic Hyperplasia in Fortis Hospital, Mohali and lodged claim of Rs.1,03,489/-. On perusal of documents submitted with request for cashless it is found by the medical team of the Opposite Parties that the patient is a k/c/o BPH since 10 months on treatment and the same has not been disclosed on porting the policy, hence the request for cashless was rejected vide letter dated 23.07.2022. On perusal of the claim documents it is observed by the medical team of Opposite Parties that the submitted prostrate MRI report dated 19.10.2021 confirms that the insured patient is known case of prostatic enlargement which is prior to the policy. The present admission and treatment of the insured patient is for the non disclosed disease. Hence, the claim was rejected on the ground of non disclosure of disease at the time of taking the policy or at the time of porting the policy. Therefore, the claim was repudiated and duly informed to the complainant vide letter dated 27.10.2022. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.

3.       In order to prove his case, complainant tendered in evidence his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C12.

4.       To rebut the evidence of the complainant, Opposite Parties tendered in evidence affidavit of Sh.P.C. Tripathy, Zonal Manager, Star Health & Allied Insurance Co. Ltd. Ex.OPs/1 along with copies of documents Ex.OPs/2 to Ex.OPs/12.

5.       We have heard the counsel for the complainant and gone through the documents placed on record.

6.       The cause of action accrued in favour of the complainants to file the present complaint when the Opposite Parties rejected their claim, vide letter dated 23.07.2022 Ex.OPs/9. It is well proved on record that the complainants are the holder of Insurance policy namely “Star Women Care Insurance policy” having no.P/211222/01/2023/000230 for the period 15.04.2022 to 14.04.2023. Earlier the complainants were availing the insurance policies from Oriental Insurance Company since the year 2012 continuously without any break and thereafter, they ported their policy from Oriental Insurance Company to Star Health & Allied Insurance Company i.e. opposite parties in the year, 2022 and that too without any break. From the perusal of the record it transpires that the claim for the reimbursement of the expenses incurred for the treatment taken by complainant no.2 during the coverage period from 15.04.2022 to 14.04.2023 was rejected by the Opposite Parties on the ground that “as per submitted documents, patient is a k/c/o BPH since 10 months on treatment and the same has not been disclosed on porting the policy”.

The thorough perusal of the record belies the stand of the Opposite Parties, as it is well evident on record vide Ex.C2 page 4 of the policy document that both the complainants were duly covered for pre-existing diseases too. Therefore, the rejection of the claim of complainant no.2 on the ground that complainant no.2 was suffering from pre-existing disease or k/c/o BP BPH since 10 months on treatment, is highly unjustified and not only amounts to deficiency in service but tantamounts to unfair trade practice on the part of Opposite Parties.

7.       In our concerted view, once the contract of insurance for indemnification even for the pre-existing diseases are there, then deviation from the terms of the contract is unfair, unjustified and illegal. The rejection of the genuine claim in such manner i.e. without considering their own commitments or without going through their own policy terms and conditions; nonetheless reflects the mal functioning of the insurance company in question.

8.       While rejecting the genuine claim in question the Opposite Parties failed to observe that the complainants are duly entitled for the continuation benefit under the policy in question since it is duly admitted by the Opposite Parties that the complainant earlier was insured with Oriental Insurance Company since 2021.

Furthermore, as per the policy document, at the time of porting the policy, complainant no.2/life assured has duly mentioned his age as 68 years, which was more than 45 years, so it was the bounden duty of the Opposite Parties-Insurance Company to get the life assured medically examined before issuing the policy in his name who was above 45 years of age. For the observation above, we place reliance upon I.R.D.A.I Rules and Instructions with regard to thorough medical examination if the insured is more than 45 years which is reproduced as under:-

“As per instructions issued by the Insurance Regulatory and Development Authority of India (IRDAI), it was bounded duty of the insurer to put insured to thorough medical examination in case Mediclaim insured was more than 45 years and if insurance company failed to do so then insurance company has no right to decline the insurance claim on account of non disclosure of the facts of pre existing disease when the policy was taken. The above observations is supported by law cited in SBI General Insurance Company Limited Vs. Balwinder Singh Jolly” 2016(4) CLT 372 of the Hon’ble State Commission, Chandigarh.”

In reference to the above, the Opposite Parties have not placed on record any evidence revealing that before issuing the policy in question they ever got medically examined the insured. So the abovesaid law squarely covers the case of the complainant that it was the duty of the insurer to get medically examined the proposer/insured while issuing the policy and once the policy got issued the insurer cannot take the plea of pre-existing disease of the insured. It has also 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 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.       Under given circumstances, the deficiency in service as well as unfair trade practice on the part of the Opposite Parties is proved and thus, the complainants are entitled for their right full claim under the policy coverage for the period from 15.04.2022 to 14.04.2023. Further it is added that there is no dispute qua the complainant no.2 being suffering from Benign Prostate Enlargement and further treatment taken for the same during the coverage period also not disputed.

10.     Now come to the quantum of amount to be awarded to the complainant. Vide instant complaint, the complainant claimed the amount of Rs.1,20,292/- i.e. expenses incurred upon the treatment and said amount has duly been proved on record. The record further reveals that the Opposite Parties against the claimed amount of complainants assessed the amount of Rs.1,13,357/- vide Ex.OPs/12, but they failed to produce on record any document showing the term under which the deduction has been made. Neither any term and condition of the policy is being highlighted nor any term has been referred on the basis of which the deduction so made in the assessment sheet. Thus, in the absence of any justifiable basis for the deduction so made, so the complainants are entitled for whole expenditure incurred by them on the treatment of complainant no.2.         

11.     In view of the discussion above, we party allow the complaint of the complainants and direct the Opposite Parties to pay an amount of Rs.1,20,292/-(Rupees One Lakh Twenty Thousand Two Hundred Ninety Two only) to complainant no.2. Opposite Parties are further burdened with compensation of Rs.20,000/-(Rupees Twenty Thousand only) to be paid to the complainant no.2, not only for rendering deficient services but also for unfair trade practice resorted to by them while rejecting the genuine claim. For thrusting the avoidable litigation, they are further burdened with costs of Rs.5000/-(Rupees Five Thousand only) as litigation expenses. The compliance of this order be made by the Opposite Parties within 30 days from the date of receipt of copy of this order, failing which, the Opposite Parties are burdened with additional amount of Rs.15,000/- (Rupees Fifteen Thousand only) to be paid to the complainant no.2 besides the ordered amount. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced on Open Commission