Order by:
Smt.Priti Malhotra, President
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 stating that the complainant has been availing the health insurance policy from the Opposite Parties since the year, 2018 continuously without any break. Lastly, the complainant availed the policy bearing No. P/211222/01/2023/006565 for the period 28.09.2022 to 27.09.2023 covering himself and his wife from opposite parties. Unfortunately on 06.06.2023, the complainant got admitted in the Joshi Superspeciality & Multi Speciality Hospital, under Consultant Doctor Mukesh Joshi and after the treatment got discharged from said hospital on 13.06.2023. At the time of treatment of complainant, the complainant requested the opposite party no. 2 to pay the medical expenses, to the concerned hospital but the opposite parties lingered on the matter on one pretext or other and did not pay the expenses of the treatment and thus the complainant had to pay whole of the amount of medical expenses as well as medical bills from his own pocket. After discharging from the hospital, the complainant submitted all the medical record of treatment to the opposite party no. 2 as per their demand, but inspite of that the opposite parties had not paid any amount. Alleged that complainant has spent an amount of Rs. 99,548/- on his treatment from his own pocket. The complainant requested Opposite Parties many times to make the payment of claim but the opposite parties refused to make the payment to the complainant and vide letter dated 19.07.2023, repudiated his claim. Due to such act and conduct of Opposite Parties, the complainant has suffered mental tension and harassment. Hence, this complaint. Vide instant complaint, the complainant has sought the following reliefs:-
a) Opposite Parties may be directed to pay the amount of Rs.99,548/- alongwith interest @ 24% p.a. till its realization.
b) To pay an amount of Rs.50,000/- as compensation for mental tension and harassment.
c) To pay an amount of Rs.3300/- as litigation expenses.
d) And any other relief which this Commission may deem fit and proper be granted to the complainant in the interest of justice and equity.
2. Opposite Parties appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that the present complaint has been filed without any cause of action, as the claim of the complainant was denied by the answering Opposite Party on the ground of Pre-existing disease & Non-Disclosure of material facts. It is established from the medical/treatment records as filed by the insured and as received from the treating hospital that the insured was a k/c/o Diabetes Mellitus since the last 15 years which is prior to inception of the insurance policy and the same was never disclosed at the time of procurement of policy. Thus, the claim was found not payable. The insured/complainant by not disclosing the PED before procuring the policy has violated the policy document/contract and also the core principle of insurance i.e. the Principle of Good Faith and had obtained the policy through concealment of material facts. Averred that the present complaint pertains to insurance claim under Family Health Optima Insurance Plan-2021 Policy bearing No.P/211222/01/2023/006565 valid from 28/09/2022 to 27/09/2023 covering the Complainant self and his spouse Suman Sachdeva for a sum of Rs 10,00,000/-. However it is submitted that the aforesaid insurance policy was issued to the insured by the answering OP subject to the terms and conditions of the insurance policy. The said terms and conditions were handed over and supplied to the insured at the time of the contract and the terms and conditions of the policy were explained to the complainant at the time of proposing policy and the same were served to the complainant along with policy schedule. The complainant had accepted the policy agreeing and being fully aware of such terms and conditions and executed the proposal form. Averred further that the insured has requested for cashless and submitted the documents for hospitalization on 06.06.2023 to 13.06.2023 in Joshi Hospital and Trauma Centre, Jalandhar towards the treatment of Old Tibial Condyle Fracture RT Knee with Pus Collection with Septicaemic Shock, Uncontrolled DM, but the cashless authorization was rejected due to reason as per the documents received by Opposite Parties, the patient was suffering from diabetes mellitus for the past 15 years which is prior to inception of the policy. Hence it was a pre existing disease/condition. The insured has failed to disclose diabetes mellitus in his proposal form at the time of inception of the insurance policy. Thereafter, insured submitted the claim seeking reimbursement of hospitalization expenses for treatment of Old Tibial Condyle Fracture RT Knee with Pus Collection with Septicaemic Shock, Uncontrolled DM. The Opposite Parties processed the claim and it was observed from the discharge summary of the above hospital that the insured patient is a known case of diabetes mellitus since 15 years and the patient has history of ORIF with plating 10 years back which confirms that the insured patient has diabetes mellitus and old tibial condyle fracture knee prior to inception of medical insurance policy. Hence these are pre-existing diseases. The present admission and treatment of the insured patient is for complication of pre existing disease. As per Exclusion - Pre-existing disease - Code Excl-01 of the policy issued to complainant, the Company is not liable to make payment for any pre-existing disease only after the expiry of 48 months from 06.06.2023 and 11.07.2023. Averred further that as per the new IRDA guidelines, if the non-disclosed disease is other than the disease from the list of permanent exclusions, then the insurer can incorporate additional waiting period of not exceeding 4 years for the said undisclosed disease or condition from the date the disease was found out and it is now incorporated in your policy as pre existing disease/condition by passing endorsement. Thus for the reasons stated above Opposite Parties were unable to settle the alleged claim under the above policy and same was repudiated. Further the insured had submitted the pre- post documents and the alleged claim has been rejected vide our letter dated 19.07.2023 and as such pre hospitalization expense submitted were not payable. Hence, the claim was rejected and the same was informed to the insured vide letter dated 28.09.2023. Averred that the complainant has got no cause of action and locus-standi to file the present complaint; the instant complaint is neither maintainable in law nor on facts; this Commission has got no jurisdiction to try and decide the present complaint; no deficient services have been rendered by the answering Opposite Parties. 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 her case, the complainant has placed on record her affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C8.
4. On the other hand, Opposite Parties has tendered into evidence affidavit of Sh.Sumit Kumar, Senior Manager, Star Health & Allied Insurance Co. Ltd. Ex.OP1,2/A alongwith copies of documents Ex.OP1,2/1 to Ex.OP1/16.
5. We have heard the ld. counsel for both the parties and also gone through the record.
6. It is an admitted fact that complainant has been obtaining the health insurance policy from Opposite Parties since, 2018. In continuation to the earlier policy, the complainant purchased the policy for the period 28.09.2022 to 27.09.2023. It is also not disputed that during the above policy coverage, the complainant visited Joshi Hospital and Trauma Centre, Jalandhar on 06.06.2023 and after the treatment got discharged on 13.06.2023. After being discharged from the hospital, the complainant lodged the claim with Opposite Parties, but vide letter dated 19.07.2023, the Opposite Parties repudiated the claim of the complainant. Thereafter, the complainant again lodged the claim with the Opposite Parties for pre and post hospitalization expenses, but the opposite Parties considering its first repudiation letter dated 19.07.2023 again repudiated the claim of the complainant, vide letter dated 28.09.2023. The said repudiations have been challenged by this complaint.
7. On the other hand, ld. counsel for the Opposite Parties contended that the claim of the complainant was denied by the answering Opposite Party on the ground of Pre-existing disease & Non-Disclosure of material facts. Further contended that it has been established from the medical/treatment records as received from the treating hospital that the insured patient had taken the treatment for Old Tibial Condyle Fracture RT Knee with Pus Collection with Septicaemic Shock, Uncontrolled DM, which is prior to inception of policy and the same are considered as pre existing diseases, thus, the claim was found not payable and hence repudiated vide letters dated 19.07.2023 and 28.09.2023 respectively.
8. The perusal of repudiation letter dated 19.07.2023 (Ex.OP1,2/12) reveals that Opposite Parties repudiated the claim of the complainant on the ground of Pre-Existing Disease and its non disclosure. The contents of the said letter are being reproduced for the sake of convenience:-
“We have processed the claim records relating to the above insured-patient seeking reimbursement of hospitalization expenses for treatment of Old Tibial Condyle Fracture RT Knee with Pus collection with Septicemia, AKI, Septicamemic Shock, Uncontrolled DM.
It was observed from the discharge summary of the above hospital that the insured patient is a known case of diabetes mellitus since 15 years and the patient has history of ORIF with plating 10 years back which confirms that the insured patient has diabetes mellitus and old tibial condyle fracture knee prior to inception of medical insurance policy. Hence these are pre-existing diseases. The present admission and treatment of the insured patient is for complication of pre existing disease.
As per Exclusion – Pre-existing disease – Code Excl-01 of the policy issued to you, the Company is not liable to make payment for any pre-existing disease only after the expiry of 48 months from 06.06.2023 and 11.07.2023.
Further we wish to bring to your kind attention that the above non disclosed Pre-Existing Disease is found while processing the claim of the above insured on 06.06.2023 and 11.07.2023.
As per the new IRDA guidelines, if the non-disclosed disease is other than the disease from the list of permanent exclusions, then the insurer can incorporate additional waiting period of not exceeding 4 years for the said undisclosed disease or condition from the date the disease was found out (i.e. 06.06.2023 and 11.07.2023) and it is now incorporated in your policy as pre existing disease/condition by passing endorsement.
We therefore regret to inform you that for the reasons stated above we are unable to settle your claim under the above policy and we hereby repudiate your claim.”
The contents of another/subsequent repudiation letter dated 28.09.2023 (Ex.OP1,2/14) are reproduced as under:-
“We have processed the claim records relating to the above insured-patient seeking reimbursement of hospitalization expenses for treatment of Old Tibial Condyle Fracture RT Knee with Pus collection with Septicemia, AKI, Septicamemic Shock, Uncontrolled DM.
We have rejected the hospitalization claim vide our letter dated 19.07.2023 and as such pre and post hospitalization expenses now submitted are not payable.
We therefore regret to inform you that for the reasons stated above we are unable to settle your claim under the above policy and we hereby repudiate your claim.”
9. We have given the due consideration to the admitted and proved facts on record and also considered the rival contentions of the ld. Counsels for both the parties and have gone through the record meticulously. The main contention raised by ld. counsel for the Opposite Parties is that complainant submitted the documents with Opposite Parties seeking reimbursement of the hospitalization expenses and it has come to the notice of the Opposite Parties from the submitted record that complainant is a known case of diabetic mellitus since 15 years and the patient has history of Orif with plating 10 years back which confirms that the insured patient has diabetes mellitus and old Tibial Condyle Fracture knee prior to inception of the policy; hence, the Opposite Parties repudiated the claim of the complainant on the ground of pre existing diseases. We do not agree with the aforesaid contention of the ld. counsel for the Opposite Parties and the ground of Pre-Existing Disease is not tenable, as diabetes mellitus is common life style disease and cannot be treated as preexisting disease. Reliance in this regard is placed on RP No. 4461 of 2012, Neelam Chopra Vs. Life Insurance Corporation of India & Ors., decided on 08.10.2018, (NC), wherein it has been held that:
"11. From the above, it is clear that the insurance claim cannot be denied on the ground of these life style diseases that are so common. However, it does not give any right to the person insured to suppress information in respect of such diseases. The person insured may suffer consequences in terms of the reduced claims.
14. Moreover, the non-disclosure of information in respect of this life style disease of diabetes, will not totally disentitle the complainant for indemnification of the claim in the light of the judgment of Hon'ble High Court of Delhi in Hari Om Agarwal Vs. Oriental Insurance Co. Ltd., (supra)."
16. Based on the above discussion, I am of the opinion that the Insurance Company had not been able to prove beyond doubt that the Complainant was suffering from diabetes before filing of the proposal form. It is also to be noted that the Insurance Company had given Insurance to a person of 66 years of age without any preliminary medical examination which could have definitely revealed whether the proposer was suffering from diabetes or not. It is commonly known that a person of 66 years of age has a high probability of suffering from common lifestyle diseases like diabetes and hypertension. If the company is ready to take the risk at this age of the proposer, without any preliminary medical examination, then the company should be ready to honour the claim also because the chances of death of such persons are more during the currency of the Policy.”
From the aforesaid settled law, it is clear that the common lifestyle diseases like diabetes and hypertension cannot be treated as pre-existing diseases and also there non-disclosure is not fatal to the claim lodged by the complainant, therefore, cannot be a ground of repudiation of the claim.
10. Further perusal of the record reveals that the complainant has been obtaining the policy from the Opposite Party since the year, 2018 without any break, meaning thereby that the policy in question is in its 5th year of continuation, so it cannot be said that complainant is suffering from pre-existing disease. There is no averment from the Opposite Parties that complainant ever lodged any claim for his alleged pre existing disease in the past more than 4 years. No one can presume that a person having alleged pre existing diseases will not take any treatment for the same for long more than 4 years. Moreover, perusal of the policy document (Ex.C2) placed on record by the complainant reveals that in the said document, the complainant has mentioned his date of birth as 23.01.1956 and in the said document date of inception of first policy is mentioned as: 28th September, 2018, meaning thereby that at the time availing the first policy, the age of the complainant was 62 years i.e. 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. As per the 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.”
However, the Opposite Parties-Insurance Company has not placed on record any evidence that before issuing the policy they ever got medically examined the insured. From the discussion above, we are of the concerted view that Opposite Parties illegally and wrongly repudiated the genuine claim of the complainant. As the Opposite Parties have not resisted the bills placed on record for the expenses incurred by the complainant, thus there is no hesitation to allow the said claim it being genuine.
11. From the above discussion, we partly allow the complaint of the complainant and direct the Opposite Parties to pay an amount of Rs.99,548/- (Rupees Ninety Nine Thousand Five Hundred Forty Eight only) to the complainant. Opposite Parties are also directed to pay compository costs of Rs.10,000/-(Rupees Ten Thousand only) as compensation and litigation expenses to the complainant. The pending application(s), if any also stands disposed of. The compliance of this order be made by the Opposite Parties within 45 days from the date of receipt of copy of this order, failing which, the Opposite Parties are further burdened with additional cost of Rs.20,000/-(Rupees Twenty Thousand only) to be paid to the complainant for non compliance of the order. 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
