ORAL
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
APPEAL NO. 936 OF 2023
(Against the order dt. 13-02-2023 in Complaint Case No.114/2018 of the District Consumer Commission, Gautam Budh Nagar)
- Star Health and Allied Insurance Company Limited
Corporate Office-I
New Tank Street Valuesuver Kotattam High Road Naugram
Bakkam Chennai
Through its Branch Manager
- Star Health & Allied Insurance Company Limited
Zonal Office, 501 Lekhraj Market-3
Faizabad Road, Indira Nagar
Lucknow
Through its Zonal Manager
...Appellants Vs.
Dr. Vineeta Yadav
D/o Dr. Gore Lal Prasad Yadav
R/o Flat No. 201 Narmada Block
Anand Ashray Housing Society
Near Jalvan Vihar, Sector P-2
Greater Noida, District
Gautam Budh Nagar, U. P.
...Respondent
BEFORE:
HON'BLE MR. JUSTICE ASHOK KUMAR, PRESIDENT
For the Appellant : Sri Shishir Pradhan, Advocate.
For the Respondent : Sri Santosh Kumar Yadav, Advocate.
Dated : 25-10-2024
JUDGMENT
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BY MR. JUSTICE ASHOK KUMAR, PRESIDENT
The instant appeal has been filed under Section 41 of the Consumer Protection Act 2019 against the judgment and order of the District Consumer Commission, Gautam Budh Nagar dated 13-02-2023 passed in Complaint Case No. 114/2018; Dr. Vineeta Yadav V/s Star Health & Allied Insurance Company Limited and another by which the complaint has been allowed and the following order has been passed.
“परिवादनी का परिवाद स्वीकार किया जाता है। विपक्षी को आदेशित किया जाता है कि वह परिवादनी को अंकन 18,45,972/- रूपये 06 प्रतिशत ब्याज सहित 30 दिन के अन्दर अदा करे। ब्याज की गणना परिवाद दाखिल करने की दिनांक से अदायगी की दिनांक तक की जाएगी। विपक्षी परिवादनी को मानसिक सन्ताप की मद में 10,000/- रूपये व वाद व्यय की मद में 2000/- रूपये भी 30 दिन के अन्दर अदा करे ।
प्रार्थना पत्र यदि कोई लम्बित हो तो वह सभी इस निर्णय के अनुसार निस्तारित किए जाते हैं”
Being aggrieved with the impugned judgment and order the opposite parties Star Health & Allied Insurance Company Limited and another have come up in appeal.
Facts of the case stated in brief are that the complainant for her secure future, had purchased a family health insurance policy cashless from the opposite party Star Health and Allied Insurance Company Ltd. on 28-2-13. The Policy no.P/161112/01/2013/009312 was issued and the policy was renewed from time to time. In the month of December 2014, while playing football, Yash Yadav son of the complainant, complained of dizziness, breathlessness, headache and weakness. The complainant consulted local physician Dr. L.B. Prasad for first aid, who
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told that her blood pressure has increased and gave some treatment and said that there is nothing to worry about.
The complainant again consulted Dr. Rakesh Yadav, Professor of Cardiology and Dean, All India Institute of Medical Sciences, New Delhi who after examining Yash Yadav, advised her to show him to kidney specialist Dr. D.K. Agarwal of Indraprastha Apollo Hospital, New Delhi. The complainant took her son to Dr. D.K. Agarwal who got some tests done. After getting the said tests done, Dr. D.K. Agarwal told that both the kidneys of Yash Yadav have failed. Accordingly he has advised for necessary treatment immediately because it will have a very bad effect on other organs of the body. He further said that he will have to undergo dialysis three times a week until his kidney is replaced.
At the time of dialysis, the complainant first wanted to get treatment in Apollo Hospital, Delhi through the policy of her insurance company Star Health, but the TPA counter of the hospital informed the complainant that your insurance company is not responding and also said that until their reply comes, the complainant should deposit money so that the treatment starts. It is informed by the hospital that later, its reimbursement will be received from the opposite party Insurance Company and accordingly the deposited amount will be adjusted/refunded.
The complainant got her son Yash Yadav treated at Apollo Hospital, New Delhi, where kidney transplant was done. About 25 lakh rupees were spent on medicines and hospital treatment for transplantation of kidney and complainant’s son treatment for which the complainant claimed Rs. 18,45,972/- but the Insurance Company has only accepted total of Rs. 1,63.719/- for the year 2014-15, Rs. 2,95,113/- for the year 2015-2016 on 14-6-2016 and Rs. 8,45,986/- for
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the year 2015-2016 on 15-6-2016 and has demanded some other necessary documents from the complainant for verification which the complainant has provided to the insurance company but the opposite party has not paid the amount against the bills till date.
The Insurance Company did not fulfill the rules and obligations mentioned in the insurance policy, therefore, the complainant has filed the complainant before the ld. District Consumer Commission.
The opposite party Insurance Company has filed its written statement before the learned District Consumer Commission and has denied the allegations made by the complainant in his complaint and has stated that the complaint is baseless and based on wrong facts and is liable to be dismissed under Section-26 of the Consumer Protection Act, 1986.
Sri Shishi Pradhan, learned Counsel for the appellants appeared.
Sri Santosh Kumar Yadav, learned Counsel for the respondent appeared.
Heard learned Counsel for the parties and perused the record.
It has been argued by the learned Counsel for the appellants that the order passed by learned District Consumer Commission is illegal, arbitrary and unjust in the eyes of law.
It has been argued by the learned Counsel for the appellant that the impugned judgment and order has been passed by the District Consumer Commission without considering the facts and circumstances of the case. The entire approach of the District Consumer Commission in deciding the complaint is erroneous and suffers from manifest error of both facts and law.
It has been further argued by the learned Counsel for the appellant
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that the impugned order so passed by the District Consumer Commission is erroneous and bad in the eyes of law in as much as the same has been passed without application of mind and assailing the records.
It has been contended by the learned Counsel for the appellant that the impugned order suffers from illegality and material irregularity and is also contrary to the facts and evidence available on record and the same is therefore, liable to be quashed and set aside.
It has been further contended by learned Counsel for the appellant that the claim of the respondent was repudiated strictly in accordance with the terms and conditions of the insurance policy and as such the appellant could not be legally held liable to indemnify the respondent.
It has been contended by the learned Counsel for the appellants that the insured had obtained a Family Health Optima Insurance Policy for Rs.15,00,000/- for Mrs. Bandana (self) and Yash Yadav (dependent son). The insured was admitted to Indraprastha Apollo Hospital on 23-4-2018 for the treatment of UTI/RENAL/ALLOGRAFT RECIEPIENT/ UTI/HTN for which a claim was given for cashless treatment. Cashless claim dated 24-4-2018 was rejected on the grounds of previous illness CONGENITAL HEART DISEASE. After examining the documents related to treatment dated 9-8-2015 to 7-8-2015 by the complainant, it was found that the patient was suffering from CONGENITAL HEART DISEASE, VSD, PDA, LVD and he was treated for this only 28 days after birth. At the time of commencement of policy from 28-2-13 to 27-2-14, the insured did not mention the previous illness in the proposal form. Thus, the insured has violated condition-8 of the insurance contract by misrepresenting material facts. The insurance company is not responsible for paying the claim. The complainant's claim was rejected on 9-2-2017 and the complainant was informed that
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the opposite party has not committed any deficiency in service.
Learned Counsel for the appellants has referred the judgment of Hon’ble Apex Court in the case of Satwant Sandhu V/s New India Assurance Company Limited reported in 2009(8) SCC 316 wherein it has been held by the Hon’ble Apex Court that obligation of disclose true and full information sought in proposal form, the extent of said disclosure necessary. When information on a specific aspect is asked for in the proposal form held, the assured is under a solemn obligation to make a true and full disclosure. Hence insurer was fully justified to repudiate insurance contract. Further non-disclosure of fact as to his illness by insured in proposal form though he was suffering from certain disease at the relevant time. It tantamount to suppression of material fact enabling the insure3r to repudiate its liability under the policy. Similar view is also taken in (2008)1 SCC 321 P. C. Chacko and another V/s Chairman Life Insurance Corporation.
Learned Counsel for the appellants has further referred the judgment of Hon’ble Apex Court in the case of United India Insurance Company V/s Harchand Rai Vhamdan reported in (2004) 8 SCC 644 wherein it has been held by the Hon’ble Apex Court that insurance contract the term of the policy shall govern by the contract between the parties and they have to abide by the definition given therein, and all those expression appearing in the policy have to be construed as it is and something cannot be added, subtracted or substituted.
Learned Counsel for the respondent has argued that the order passed by the learned District Consumer Commission is perfectly correct and the learned District Consumer Commission has committed no illegality in passing the impugned judgment and order.
Learned Counsel for the respondent/complainant has further argued
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that the District Consumer Commission has jurisdiction to entertain and adjudicate the complaint and cause of action accrued to the complainant to file the complaint before the learned District Consumer Commission.
Learned Counsel for the respondent/complainant has argued that the learned District Consumer Commission has applied its judicial mind to all the facts, circumstances and evidence and on judicious consideration of all the materials available on the record, passed the impugned judgment and order, which is perfectly legal and sustainable and allegations made by the appellants contrary to this are baseless and fit to be rejected and the appeal filed by the appellant is fit to be dismissed with exemplary cost to the complainant.
It has been further contended by learned Counsel for the respondent that the opposite party has committed deficiency in rendering the services to the complainant and the complainant has suffered a mental and physical agony on account of refusal of the complainant’s claim.
I have perused the impugned judgment and order passed by the learned District Consumer Commission.
The District Consumer Commission has recorded a categorical finding in its judgment which is reproduced hereinbelow:-
“पत्रावली पर उपलब्ध साक्ष्यों के परीक्षण के उपरान्त स्पष्ट है कि वर्तमान परिवाद में परिवादनी ने विपक्षी बीमा कम्पनी से स्वयं व अपने परिवाद की सुरक्षा के लिए फैमिली हैल्थ बीमा पालिसी 28-2-3 को कय की थी जिसका समय समय पर नवीनीकरण कराया जाता रहा। विपक्षी ने इस तथ्य को अस्वीकार नहीं किया है। माह दिसम्बर-14 में परिवादनी के पुत्र को फुटबाल खलते समय चक्कर, सांस फूलना, सिर दर्द व कमजोरी की शिकायत हुयी। यश यादव को विभिन्न चिकित्सकों को दिखाया गया। डॉ० डी०के० अग्रवाल इन्द्रप्रस्थ अपोलो अस्पताल नई दिल्ली के द्वारा बताया गया कि यश यादव की दोनों किडनी फेल है और
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तुरन्त इलाज कराया जाना आवश्यक है जब तक किडनी न बदली जाय डायलेसिस कराया जाना आवश्यक है । परिवादनी द्वारा अपने पुत्र का इलाज अपोलो अस्पताल नई दिल्ली में कराया जहां किडनी ट्रांस-प्लान्ट की गयी इलाज पर पर करीब 25,00000/- रूपये का खर्च आया।
विपक्षी ने परिवादनी का क्लेम इस आधार पर निरस्त कर दिया कि यश यादव पूर्व में CONGENITAL HEART DISEASE से पीडित था और जन्म के 28 दिन बाद ही इस सम्बन्ध में उसका उपचार किया गया था। परिवादनी ने 28-2-13 को पालिसी प्राप्त करते समय उक्त सारवान तथ्य को छिपाया और बीमा संविदा की शर्त-8 का उल्लघंन किया। परिवादनी का क्लेम दिनांक 9-2-17 को निरस्त कर उसे सूचित कर दिया गया ।
परिवाद के कथनों से यह स्पष्ट है कि यश यादव का जो उपचार किया गया है वह किडनी फेल होने पर डायलेसिस व किडनी ट्रान्सप्लान्ट किया गया है। मरीज का उपचार हृदय संम्बन्धी रोग के लिए नहीं किया गया है। विपक्षी ने ऐसा कोई विशेषज्ञ साक्ष्य भी प्रस्तुत नहीं किया गया है कि यश यादव की किडनी से सम्बन्धित रोग उसकी पूर्व की बतायी गयी बीमारी CONGENITAL HEART DISEASE के कारण हुयी थी इसके अतिरिक्त यह भी उल्लेखनीय है कि विपक्षी ने पूर्व की बीमारी डिसचार्ज समरी के आधार पर बतायी है। पैसा कोई लिंक साक्ष्य पत्रावली पर नहीं है कि जन्म के 28 दिन बाद हुए उपचार का कोई सम्बन्ध यश यादव की वर्तमान बीमारी से सम्बन्धित है और वह पालिसी लेने से पूर्व से ही विपक्षी द्वारा कथित बीमारी से पीड़ित था। इस प्रकार विपक्षी ने परिवादनी का क्लेम निरस्त कर सेवा में कमी की है। परिवाद स्वीकार किए जाने योग्य है।“
Having heard the learned Counsel for the parties and after going through the material and evidence available on record and particularly the findings recorded by the learned District Consumer Commission, I am of the considered opinion that the order passed by the learned District
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Consumer Commission is fully justified and is correct, as such need no interference and as such is liable to be upheld.
In view of above I am of the view that the appeal has no force and is liable to be dismissed.
ORDER
The appeal is dismissed. The judgment and order of the District Consumer Commission, Gautam Budh Nagar is confirmed.
Any amount deposited by appellant in appeal under the Consumer Protection Act shall be remitted to District Consumer Commission, Gautam Budh Nagar alongwith interest accrued for disposal in accordance with this judgment.
Let copy of this order be made available to the parties as per rules. The Stenographer is requested to upload this order on the website of this Commission at the earliest.
( JUSTICE ASHOK KUMAR )
PRESIDENT
Pnt.
