BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 370 of 2019
Date of Institution : 12.07.2019
Date of Decision : 28.07.2023.
- Jawahar Lal son of Shri Sansar Chand
- Anju Bala wife of Shri Jawahar Lal
Both residents of House No.133/99, Water Works Road, Kalanwali, Tehsil Kalanwali, District Sirsa.
……Complainants.
Versus.
- HDFC Ergo General Insurance Company Ltd., registered & corporate office 165, 166 Blackberry, Reclamation HT Parekh Marg, Churg Gate Mumbai- 400020.
- HDFC Bank Ltd., Branch office AT Sangwan Chowk, Sirsa, through its Branch Manager.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. PADAM SINGH THAKUR………………PRESIDENT
SMT. SUKHDEEP KAUR …………….…… MEMBER.
Present: Sh. A.K. Gupta, Advocate for the complainants.
Sh. R.K. Mehta, Advocate for opposite party no.1.
Opposite party no.2 already exparte.
ORDER:-
The complainants have filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (after amendment u/s 35 of C.P. Act, 2019) against the opposite parties (hereinafter referred as OPs).
2. The case of the complainants in brief is that complainant no.1 purchased one health Suraksha Policy (silver plan) vide policy no.2825100061732702000 w.e.f. 23.6.2017 to 22.6.2018 vide which the mediclaim to the tune of Rs.3,00,000/- was covered. The policy was firstly issued on 23.6.2015 which was continuously renewed. That the complainants were also issued cashless card in respect of this policy which was undertaken to be honored by recognized hospital including Max Hospital. It is further averred that in the month of March, 2017, the complainant no.1 developed swelling over the left side of the face. However, as there was no pain or discharge etc., he did not suspect anything and was not bothered but since the swelling was persisting, so the complainant no.1 went to Indrani Hospital, Chandigarh for checkup, upon which on 10.7.2017 the complainant no.1 was advised ultrasound examination and he was diagnosed to be having some nodes and some medibular glands with complex cystic marks relating to left Parotid gland. It is further averred that doctors of Indrani Hospital immediately referred the complainant no.1 to undergo complete diagnose and referred to Max Hospital Super Specialty Hospital, Delhi. The complainant no.1immediately went to Max Hospoital on 14.7.2017 as per the advice of the doctors of Indrani Hospital, where he was got admitted. The complainant no.1 was thoroughly examined and underwent many diagnostic test. The complainant no.1 produced his reference slip of Indrani Hospital and also produced his cashless card in the hospital and the claim was accordingly lodged with HDFC Ergo Insurance Company Ltd. through the hospital. However, the opposite party on 14.7.2017 itself repudiated the claim saying that cash claim was not available and the claim is being repudiated on the ground that it was a pre existing disease. The complainant was stunned to see the conduct of the op no.1 in repudiating the claim and it was hurriedly repudiated unilaterally. That the complainant no.1 had to undergo the surgery as per the advice of the doctor immediately and was made to pay Rs.1,94,765/- and was discharged on 16.7.2017 for further treatment. It is further averred that there was no pre-existing disease as mentioned in the repudiation letter and the problem of parotid gland had just started in the month of March, 2017 for the first time and he was not having any problem in past. It is further averred that earlier also complainants filed a consumer complaint whereby the order for lodging the claim alongwith requisite document with the op within a period of 30 days was passed and a direction was also issued to op to pay claim as per terms and conditions of the policy within a period of 45 days. That accordingly complainants lodged the claim through HDFC Bank Ltd. and handed over all the requisite documents to the ops. However, op no.1 again repudiated the claim vide repudiation letter dated 14.05.2018 without going into the actual facts and repeated the same order of repudiation as was done previously which is wrong and illegal as no man in the world would wait for his treatment in case of cancer and as such ops have caused deficiency in service. The complainant no.1 was not having any disease whatsoever prior to March, 2017 and he has clearly stated true facts regarding his health condition in the proposal form at the time of inception of the first policy in the year 2015. It is further averred that after discharge from Max Hospital after surgery, the complainant no.1 was diagnosed as having adenocytic carcinoma of left parotid and underwent further treatment on 16.08.2017 and underwent radiotherapy up till 26.09.2017 and during this period the complainant had to pay Rs.2,55,000/- vide bill dated 26.09.2017. That complainants lodged the claim with op no.1 again and submitted all the requisite documents including the bills and treatment card, however, again the claim was repudiated vide letter dated 30.05.2018 on the same ground that it was a pre existing disease and ops have repudiated the claim by taking false pretexts which is wrong and illegal. That complainant no.1 has not concealed anything from the op at the time of inception of the first policy. The complainants are entitled to receive a sum of Rs.3,00,000/- as covered under the policy against total claim lodged in respect of his two term treatment charges i.e. Rs.1,94,765/- and Rs.2,55,000/-. Hence, this complaint.
3. On notice, opposite party no.1 appeared and filed written statement taking certain preliminary objections regarding cause of action and that complainant has pleaded that he never suffered any pre existing disease, which is again denied. It is submitted that upon the direction of this Forum (now Commission) the complainants lodged the reimbursement claim alongwith the relevant documents. Thereafter, the perusal of said document, it was again found that apart from letter issued by the hospital dated 11.07.2017, the discharge summary and Oncology report of the patient clearly mentioned that patient was evaluated with complaints of swelling in the left parotid area since five years which prima facie establishes the fact that the complainant no.1was known case of Parotid swelling since 4-5 years. Therefore, the claim of the complainants was repudiated by op no.1 vide letter dated 30.05.2018 with the reasoning mentioned therein. It is further submitted that as per Section 9 A (iii of the policy condition, any pre existing disease/ illness/ injury will not be covered until 48 months of continuous coverage have elapsed since inception of the first Health Suraksha Policy with the company. Thus, the present case where the Parotid swelling was present even prior to the policy inception date, the coverage for Parotid swelling and related symptoms would not be covered for the first 48 months. Therefore, due to aforesaid reason the claim of complainant is not maintainable and has rightly been denied. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
4. Op no.2 failed to appear despite service of notice and as such op no.2 was proceeded against exparte.
5. The complainants in evidence have tendered affidavit of Jawahar Lal complainant as Ex.C1 and copies of documents i.e. copy of the order dated 12.03.2018 passed in the earlier complaint as Ex.C2, policy schedule Ex.C3, repudiation letter dated 14.07.2017 Ex.C4, treatment record and bills Ex.C5 to Ex.C8 and again repudiation letter dated 14.07.2017 Ex.R8 again.
6. On the other hand, op no.1 did not lead any evidence despite availing several opportunities including last opportunities and as such its evidence was closed by order.
7. We have heard learned counsel for the parties and have gone through the case file carefully.
8. Admittedly the complainants are purchasing the health insurance policy from op no.1 since 23.06.2015 and the policy in question was got renewed for the relevant period i.e. 23.06.2017 to 22.06.2018 whereby both the complainants were covered and the sum insured amount was Rs.3,00,000/- and op no.1 charged premium amount of Rs.7391/- from the complainants as is evident from the policy schedule Ex.C3. The claims of the complainants for the treatment of complainant Jawahar Lal during the period of policy i.e. from the month of July, 2017 onwards has been repudiated by the op no.1 vide letters dated 14.07.2017 and 30.05.2018 on the ground of pre existing disease as per exclusion clause 9 (A) (iii) of the policy which provides 48 months waiting period for all pre-existing conditions declared and/ or accepted at the time of admission. Admittedly on 10.07.2017 the complainant no.1 was diagnosed with swelling of Parotid in Dr. Deepali Path Labs & Cancer Diagnostic Centre, Bathinda, the copy of which is placed on file as Ex.C6 and accordingly complainant no.1 was treated for Parotid swelling i.e. cancer in Max Hospital. The exclusion clause 9 A (ii) of the policy itself provides that A waiting period of 24 months shall apply to the treatment, whether medical or surgical of the disease/ conditions mentioned below. Additionally the said 24 months waiting period shall be applicable to all surgical procedures mentioned under surgeries in the following table, irrespective of the disease/ condition for which the surgery is done, except claims payable due to the occurrence of cancer and as such as per said clause of the policy there is no time limit for treatment of cancer. Since the complainant no.1 was treated for cancer, therefore clause No. 9 A (iii) which provides 48 months waiting period will not apply in this case and as such op no.1 has wrongly and illegally repudiated the claim of complainant against its own terms and conditions of the policy. Moreover, even the fact of pre existing disease to the complainant is not proved by op no.1 as op no.1 has not led any evidence in support of its said version. The op no.1 has only relied upon the treatment record placed on record by complainants. The complainants have specifically asserted that complainant no.1 only felt above said problem in the month of March, 2017 i.e. in third year of the policy in question. The op no.1 has not proved on record the fact through any cogent and convincing evidence that complainant was having said problem since 4-5 years i.e. at the time of inception of the policy. The op no.1 has only relied upon document of Max Hospital wherein it is mentioned that Parotid Swelling since 4-5 years but the op no.1 has not proved on record that how the doctor recorded the said fact and whether this fact was disclosed to him by the complainant no.1 himself or how the said doctor came to know that patient is suffering from said disease since 4-5 years. So without any supporting cogent and convincing evidence or in the absence of any affidavit of concerned doctor and in absence of any other evidence of op no.1, it cannot also be said that complainant no.1 was having pre existing disease. So, op no.1 has wrongly and repudiated the claim of complainant on both the above said ground of waiting period of 48 months and pre existing disease rather clause no. 9 (A) (ii) will apply in this case meaning thereby that the rejection of claims of complainant by op no.1 is groundless. The op no.1 could not repudiate the claims of complainants as per Clause 9 A (iii) of policy and on the ground of pre existing disease. Moreover, the disease of Parotid swelling i.e. cancer for which the complainant was treated is not excluded in the exclusion clause 9A (a) and 9A (b). Therefore, the repudiation of both the claims of complainants are hereby set aside. From the documents i.e. bills/ receipts of the hospital Ex.C7 and Ex.C8 It is proved on record that complainants have spent more than the insured amount of Rs.3,00,000/- under the policy and as such complainants are entitled to the insured amount of Rs.3,00,000/- from op no.1. Besides this complainants are also entitled to interest on the said amount of Rs.3,00,000/- because despite earlier direction given by the Forum vide order dated 12.03.2018 to settle and pay the claim of complainant, the op no.1 repudiated the claim of complainants by taking above said baseless grounds again. It is proved on record that op no.1 has caused unnecessary harassment, deficiency in service as well as adopted unfair trade practice towards a person who was taking treatment for above said disease and was already under mental trauma and by the act and conduct of op no.1 he has become more victim and has suffered more harassment at the hands of op no.1 and has to file complaint twice before this Commission. It is also proved on record that insurance company is also acting against its own terms and conditions of the policy and is relying the clause of its own choice which is favourable to it.
9. In view of our above discussion, we allow this complaint qua opposite party no.1 insurance company and direct the opposite party no.1 to pay the claim amount of Rs.3,00,000/- to the complainants alongwith interest at the rate of @6% per annum from the date of filing of present complaint i.e. 12.07.2019 till actual payment within a period of 45 days from the date of receipt of copy of this order. We also direct the op no.1 to further pay a sum of Rs.10,000/- as compensation for unnecessary harassment and also to pay further sum of Rs.10,000/- as litigation expenses to the complainant within above said stipulated period. However, no liability of op no.2 bank of any type towards complainants is made out and as such complaint against op no.2 bank stands dismissed. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced : Member President,
Dated: 28.07.2023. District Consumer Disputes
Redressal Commission, Sirsa.
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