BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 650 of 2019
Date of Institution : 18.11.2019.
Date of Decision : 16.11.2023.
Gurdeep Kumar aged about 52 years son of Shri Ved Parkash, resident of H. No. 293, VPO Gadrana, Tehsil Dabwali, District Sirsa.
……Complainant.
Versus.
1. HDFC Ergo General Insurance Company Ltd. having its office at Dabwali Road, Sirsa through its authorized signatory.
2. HDFC Ergo General Insurance Company Ltd. having its registered office at 1st Floor 165-166, Backbay Reclamation, H.T. Parekh Marg, Church Gate, Mumbai- 400020 through its Managing Director.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act, 1986.
Before: SH. PADAM SINGH THAKUR …………PRESIDENT
MRS.SUKHDEEP KAUR………………MEMBER.
SH. OM PARKASH TUTEJA………….MEMBER
Present: Sh. J.D. Garg, Advocate for complainant.
Opposite party no.1 already exparte.
Sh. R.K. Mehta, Advocate for opposite party no.2.
ORDER
The present complaint has been filed by complainant under Section 12 of the Consumer Protection Act, 1986 (after amendment u/s 35 of the Consumer Protection Act, 2019) against the opposite parties (hereinafter referred as OPs).
2. In brief, the case of the complainant is that complainant had purchased a Home Suraksha Plus Policy from the ops bearing No. 2918 2020 8096 3100 000 on 30.01.2018 which is valid till 29.01.2023 and paid Rs.1,13,544/- in total as premium and in that policy the Fire and Allied Perils, Earth Quake and Terrorism ( A. Building) Burglary, House Breaking Theft, Major Medical Illness and personal accident etc. were covered. That after 12 months of purchase of the policy, the complainant became ill and throat cancer was diagnosed and he got himself examined from the doctors of PGI MS Chandigarh. He is taking treatment from there regularly. It is further averred that complainant contacted the ops and intimated them that he is suffering from major illness and requested to compensate him under the policy because his health was also covered therein but the ops repudiated the claim of complainant on the ground that at the time of taking the said policy he did not disclose his illness. That complainant earlier suffered from cancer of urinary bladder and was operated upon in the year 2002, 2004, 2009 and 2013 and had been cured properly and was free from any symptom of bladder cancer and this fact was cleared by Urologist of PGI Chandigarh. It is further averred that disease of throat cancer of complainant was not the pre existing disease relating with the cancer of urinary bladder rather the same has been developed after purchase of the policy and thus the repudiation of the claim of complainant by ops is arbitrary and illegal. That complainant had already spent a huge amount on his treatment and further requires a huge amount for his further treatment and ops have caused deficiency in service, unfair trade practice as well as unnecessary harassment to the complainant. Hence, this complaint whereby complainant has prayed that ops may be directed to indemnify the claim of complainant under the said policy by making payment of Rs.5,00,000/- as incurred by him on his treatment, also to pay Rs.1,00,000/- as compensation for harassment etc., to pay Rs.50,000/- as penalty on account of deficiency in service and unfair trade practice and also to pay litigation expenses.
3. On notice, op no.2 appeared and filed written statement submitting therein that claim of complainant was repudiated on the ground of non disclosure of material fact. The complainant never disclosed the fact that he is known case of Diabetes since 2002, Hypertension since 2002, bladder cancer since 2002 and was operated for the same in 2002, 2009 and 2013 and chronic kidney disease since 2016 i.e. before the first inception of the policy (30.01.2018). Thus, the claim of complainant was found not payable as per the policy terms and conditions, as the complainant by not disclosing the said fact before procuring the policy has violated clause 10 r ii (Non-disclosure) of 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 acts which amounts to fraud. That terms and conditions of the policy were never disputed by the insured. It is further submitted that insured got admitted in PGI Hospital, Chandigarh. The op received reimbursement claim and on receipt of claim documents, the officials of the op duly processed the claim. However, after scrutiny of medical documents i.e. out patient card submitted by complainant, it was found that insured was known case of Diabetes since 2002, Hypertension since 2002, bladder cancer since 2002 and was operated for the same in 2002, 2009 and 2013 and chronic kidney disease since 2016 which were never intimated to the op before the policy inception. That complainant had a duty of disclosure of information related to all kinds of ailment as suffered and the treatments taken, which he suffered before the policy inception. Therefore, the claim of complainant was repudiated on the ground of non disclosure of ailment while purchasing the policy. It is further submitted that if the insured would have disclosed the said material factum of previous ailment to the op at the time of issuance of policy, then the op would have issued the insurance policy with certain additional conditions. The previous ailments are crucial and material for the underwriters to take decision while accepting the risk. Thus, the claim was repudiated under General Condition No.2 and 31 of the policy and letter dated 01.07.2019 was sent to the complainant regarding repudiation of his claim. It is further submitted that as the policy of insurance was issued from Chandigarh and the claim of complainant was processed and stands closed from Noida where the answering op is having its office and as op is having no branch office at Sirsa, as such present complaint is not maintainable before this Commission for want of territorial jurisdiction and complaint deserves to be dismissed on this ground. With these averments, dismissal of complaint prayed for.
4. Op no.1 did not appear despite service of notice and as such op no.1 was proceeded against exparte.
5. The complainant in evidence has tendered his affidavit Ex. CW1/A and documents Ex.C1 to Ex.C268.
6. On the other hand, op no.2 has tendered affidavit of Sh. Vivek Yadav, Senior Manager as Ex.R1 and documents Ex.R2 to Ex.R10.
7.We have heard learned counsel for the parties and have gone through the case file carefully.
8.From the policy documents i.e. policy schedule placed on file by complainant, it is evident that complainant had availed Home Suraksha Plus policy from the ops by paying premium amount of Rs.1,13,544/- vide which besides building of the complainant, burglary, housebreaking, theft etc., the major medical illness and procedures was also covered for the sum insured amount of Rs.11,13,546/-. The policy was effective from 30.01.2018 to 29.01.2023. It is also proved on record that in the month of October, 2018 complainant suffered with the disease of throat cancer and was admitted in PGI Chandigarh on 01.10.2018 and was discharged on 04.10.2018 as is evident from discharge summary placed on file by op no.2 itself as Ex.R5. It is also proved on record that treatment of tongue/ throat cancer of the complainant started after purchase of the policy in question i.e. from 01.10.2018 onwards. Since the major medical illness was covered in the above said policy taken by complainant from ops, therefore, claim was submitted to the ops for reimbursement of medical bills, but the ops vide their letter dated 01.07.2019 (Ex.R10) repudiated the claim of complainant on the ground that “As per the document submitted, patient was admitted on 11.08.2018 for treatment of Cancer tongue. Patient is known case of Bladder Cancer since 2002 and was operated for the same in 2002, 2009 and 2013, Diabetes since 2002, Hypertension since 2008 and Chronic Kidney Disease since 2016 i.e. before the first inception of the policy (30.01.2018). Insured had not disclosed the ailment while purchasing the policy. Hence there is non disclosure of material facts and thus this claim is being repudiated under General Condition 2 and 31.” But however, we are of the considered opinion that ops have wrongly and illegally repudiated the genuine claim of the complainant. The complainant suffered with the disease of Tongue Cancer only in the month of October, 2018 i.e. after nine months of the purchase of policy in question and as such it cannot be said to be pre existing disease. The ops have failed to prove on record that complainant has concealed any material fact regarding his previous illness from the ops. The ops have failed to prove on record that any specific questions were put to the complainant regarding his previous illness and that complainant had not disclosed about his previous illness to them. The ops have not placed on file any proposal form on record to prove the fact that any specific questions regarding health of complainant were put to the complainant before issuing the policy in question. Moreover, the complainant has himself admitted the fact in his complaint that he was suffering from Bladder cancer for which he was treated and operated in 2002, 2009 and 2013 and has also placed on file his treatment record in this regard. The complainant took treatment for cancer of urinary bladder up to 2013 and had been cured properly and was free of any symptom of bladder cancer. Moreover, the policy in question has been purchased by complainant in the year 2018 i.e. after five years of above said disease and there is no association with the disease of bladder cancer which was cured in 2013 and with the disease of tongue cancer which the complainant suffered in October, 2018. Further the ops have failed to discharge its onus i.e. to prove the fact with cogent and convincing evidence that complainant has concealed the material fact of his previous illness. Further more, the ops could medically examine the complainant before issuance of the policy in question but they have failed to do so. The ops could also terminate the policy in question within free look period as available to the insured but they have also failed to do so. Moreover, the ops have also failed to prove on record that terms and conditions of the policy were supplied to the complainant or that same were explained to the complainant. The ops have obtained huge premium amount of Rs.1,13,544/- from the complainant but when it was their turn to reimburse the genuine claim of the complainant they have repudiated the claim of complainant on baseless grounds. It is proved on record that ops have caused unnecessary harassment, deficiency in service as well as adopted unfair trade practice towards a person who was taking treatment for above said major disease and was already under mental trauma and by the act and conduct of ops he has become more victim and has suffered more harassment at the hands of ops. As such repudiation of claim of complainant on such false, frivolous and baseless grounds is hereby set aside. It is also proved on record that complainant has spent huge amount on his treatment and will also be in requirement of further money for further treatment. Therefore, complainant is entitled to reimbursement of the amount of Rs. five lacs as claimed by him which was spent on his treatment of tongue cancer as the sum insured under major illness is Rs.11,13,546/- and complainant has duly proved on record through various bills/ receipts Ex.C1 to Ex.C215 that he has spent above said huge amount of Rs.five lacs on his treatment. Besides the claim amount of Rs.5,00,000/- the complainant is also entitled to compensation for unnecessary harassment and litigation expenses from the ops.
9. In view of our above discussion, we allow the present complaint and direct the opposite parties to pay the claim amount of Rs.5,00,000/- within a period of 45 days from the date of receipt of copy of this order failing which complainant will be entitled to receive the said amount of Rs.5,00,000/- alongwith interest @6% per annum from the ops from the date of this order till actual realization. We also direct the ops to further pay a sum of Rs.50,000/- as compensation for causing unnecessary harassment to the complainant who was suffering from major illness and also to pay a sum of Rs.15,000/- as litigation expenses to the complainant within above said stipulated period of 45 days. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced: Member Member President,
Dated: 16.11.2023. District Consumer Disputes
Redressal Commission, Sirsa.
