Punjab

Ludhiana

CC/16/307

Harjeet kaur - Complainant(s)

Versus

HDFC Ergo Gen.Ins.Co.Ltd. - Opp.Party(s)

Harpreet Singh Adv.

21 Nov 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

                                                         Complaint No: 307 dated 26.04.2016.                                                                           Date of decision: 21.11.2017

                  

Harjeet Kaur aged about 54 years s/o Sh.Manohar Singh resident of H.No.166/CE1, City Enclave Jagraon, District Ludhiana.                                                                                                                                        ..…Complainant                                                                      Versus

HDFC Ergo General Insurance Company Limited, 88, 5^th Floor, Surya Tower, Mall Road, Ludhiana, through its Manager.                                                                                                                                                         …..Opposite party

            Complaint under Section 12 of Consumer Protection Act, 1986.

QUORUM:

SH. G.K. DHIR, PRESIDENT                                                                      SH. PARAM JIT SINGH BEWLI, MEMBER

COUNSEL FOR THE PARTIES:

For complainant            :         Sh.Harpreet Singh, Advocate.                         For OP                      :         Sh.G.S.Kalyan, Advocate

ORDER

PER G.K. Dhir, PRESIDENT

1.                Complainant and her husband Sh.Manohar Singh took mediclaim policy namely Health Suraksha Policy(Silver Plan) from Op bearing No.2825201034452500000 with validity period from 9.2.2015 to midnight of 8.2.2016 by paying premium of Rs.12,496/- for insured sum of Rs.3 lac. On 28.6.2015, complainant suffered from fever, breathlessness and right flank pain, due to which, she was taken to Dayanand Medical College & Hospital, Ludhiana, where she was diagnosed for Hypertension, diabetes, bronchial asthma, allergic bronchopulmonary Aspergillosis(ABPA) and B/L Pneumonitis. Complainant was treated mainly for ABPA and B/L Pneumonitis and was discharged on 7.7.2015. An amount of Rs.1,01,455/- was spent on this treatment including hospitalization expenses and medicines purchase. The policy was cashless. Complainant received letter dated 7.7.2015 addressed to hospital for denying the cashless facility. Through this letter, complainant was called upon to apply for reimbursement later on. Complainant supplied all the requisite documents to Op for processing her claim, but she was astonished to receive letter dated 28.1.2016 through which repudiation of claim took place on ground that she was suffering from pre-existing disease of hypertension and the same is not covered. Concealment of material facts in this respect was made the ground for repudiation. That repudiation challenged as illegal on the ground that at the time of conduct of medical examination of complainant at the time of purchase of the policy, problem of hypertension was  not observed. Moreover, it is claimed that hypertension is common life style ailment and is not a material disease, liable to be disclosed at the time of purchase of the policy. Moreover, complainant was mainly treated for ABPA and B/L Pneumonitis and not for hypertension. Hypertension is also alleged to be having no link with the provided treatment of ABPA, which is a fungal allergy of lungs. Likewise, B/L Pneumonitis is Pneumonia in common language. Both these treated diseases have no link with the hypertension. Act of repudiation alleged to be amounting to deficiency in service, which has caused mental agony to the complainant. So, prayer made for directing Op to pay the claimed amount of Rs.1,01,455/- i.e. the amount of incurred expenses on treatment. Compensation for mental harassment and agony of Rs.50,000/- and litigation expenses of Rs.20,000/- more claimed.

2.                In written reply filed by OP, it is pleaded interalia as if complaint is based on false, frivolous and vexatious facts and complainant is guilty of suppression of material facts. Moreover, the matter involved necessarily requires leading of elaborate evidence and examining of expert and as such, the same can be got decided from the Civil Court of competent jurisdiction and not through these proceedings, which are essentially  summary in nature. Complainant did    not disclose the medical history in the policy proposal form duly filled and signed at the time of purchase of the policy and as such, due to suppression of material facts, the repudiation of claim alleged to be proper. The entire policy booklet consisting of Welcome Kit letter, insurance certificate, premium receipt, policy terms and conditions and the proposal form (filled by the complainant) were provided to the complainant at the time of issue of the policy. The policy was issued on the basis of supplied information by the complainant by assuming that proposer is a healthy person and risks involved in insuring her are within the acceptable limits. Op received pre-authorization request for cashless treatment on behalf of the complainant from Dayanand Medical College & Hospital, Ludhiana, but that request was denied vide letter dated 7.7.2015 after finding as under:-

“Chronicity and facts related to ailment cannot be ascertained at this point of time and discrepancy found in the submitted documents, hence cashless facility cannot be accorded. Kindly apply the case in reimbursement for further consideration. Initial approval also stands invalid.”

It is claimed that there is no deficiency in service on the part of OP, because denial of cashless claim was as per the terms and conditions of the policy. It is also admitted that Op received claim for reimbursement of expenses incurred by the complainant during hospitalization from 29.6.2015 to 7.7.2015 for treatment of Bronchopneumonia unspecified and the said claim was registered. On receipt of investigation report and claim documents, officials of OP duly processed the    claim and repudiated the same. In the discharge summary dated 7.7.2015, it was observed that the complainant was suffering from hypertension for the last 5-6 months and the same was disease pre-existing in nature because inception of the policy was with effect from 9.2.2015. However, complainant in the proposal form claimed to be not suffering from hypertension at the time of filing of proposal form. So, concealment of material facts was in gross violation of the terms and conditions of the insurance policy. Denial of claim took place vide letter dated 28.1.2016 by observing as under:-

“As per the submitted documents, the patient was admitted on 29.6.2015 with the diagnosis of hypertension (HTN), diabetes mellitus, DCMP and was treated for the same. As the date of inception of the policy is 9.2.2015 and hypertension was diagnosed 5-6 months back, so it was pre-existing in nature, hence, this claim is being repudiated under Section 9 A iii of the policy terms and conditions (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 us). Also there is non disclosure of material fact at the time of inception of the policy, as patient is known case of hypertension prior to inception of the policy and the same was not disclosed at time of inception of the policy. Hence the claim is also being repudiated under section 10 r ii.”

Complainant accepted the terms of the policy proposal form by admitting that full and frank disclosure of all material facts, have been made therein, but in fact     there was concealment of facts regarding pre-existing disease. If complainant would have disclosed her medical condition by sharing information regarding pre-existing disease, then Op would not have accepted the proposal. In view of suppression of material information regarding her medical condition, her claim lodged under the policy is not tenable. By denying all other averments of the complaint, prayer made for dismissal of complaint.

3.                Counsel for complainant tendered in evidence affidavit Ex.CA of complainant along with documents Ex.C1 to Ex.C17 and thereafter, closed the evidence.

4.                On the other hand, counsel for Op tendered in evidence affidavit Ex.RA of Sh.Pankaj Kumar, Manager-Legal Claims of Op along with documents Ex.R1 to Ex.R5 and then closed the evidence. 

5.                Written arguments in this case submitted by both the parties. Oral arguments even addressed by counsel for parties and those were heard. Records gone through carefully.

6.                Undisputedly, the insurance policy in question was purchased by the complainant with validity period w.e.f.9.2.2015 to 8.2.2016. Insurance cover note Ex.C1=Ex.R1 has been produced in this respect on record. Ex.R1 also contains the terms and conditions of the policy. Complainant got treatment during period from 29.6.2015 to 7.7.2015 from Dayanand Medical College & Hospital, Ludhiana is a fact borne from the copy of bill Ex.C3 along with copy of discharge summary Ex.C2=Ex.R3. Copy of proposal form before purchase of insurance policy by complainant is produced on record as Ex.R4. In proposal form Ex.R4, it is specifically mentioned as if complainant was not suffering from any ailment of hypertension or like that earlier. However, in the discharge summary Ex.C2=Ex.R3, it is specifically mentioned that complainant was having history of hypertension for the last 5-6 months and she was also patient of diabetes mellitus-2 for the last 15 days. As sufferance of complainant from hypertension was for the last 5-6 months prior to her admission on 29.6.2015 and the proposal form was submitted on 23.01.2015 and as such, it is vehemently contended by counsel for OP that complainant has suppressed the material facts qua sufferance from hypertension at the time of submission of proposal form Ex.R4. Even if in Ex.C2=Ex.R3, mention may have been made in the clinical findings qua previous history of the complainant qua sufferance from hypertension for the last 5-6 months or qua sufferance from diabetes mellitus-2 for last 15 days, despite that no documents produced on record to establish that complainant was earlier diagnosed for hypertension or for diabetes mellitus-2 prior to the submission of proposal form Ex.R4 and as such, inference is obvious that complainant was not aware of her sufferance from hypertension at the time of submission of proposal form in January 2015. Diseases like hypertension and diabetes mellitus-2 are such, which are not known to the sufferer even. These diseases of hypertension and diabetes mellitus becomes known on clinical examination or on medical checkup and not before that. There is no material produced on record by the Op to establish that the complainant got her medical checkup conducted prior to submission of the proposal form for finding that she was suffering from hypertension or diabetes mellitus-2. Even no record of                                                                         treatment of complainant for hypertension or diabetes mellitus-2 prior to the submission of the proposal form Ex.R4 has been produced and as such virtually Op failed to discharge the burden of proof placed on it that the complainant deliberately suppressed the material facts qua sufferance from hypertension or diabetes mellitus-2 at the time of submission of proposal form. Onus is on the insurer to prove the suppression of material facts qua concealment of facts qua disease of hypertension or like that, but insurer(Op) failed to prove that and as such, repudiation of claim on ground that complainant suppressed the diseases of hypertension and diabetes mellitus-2 at the time of submission of proposal form is absolutely improper.

7.                In case titled as Ravinder Singh Bindra vs. National Insurance Company Limited and others-2017(1)CPJ-498(N.C.), it was found that if insurer has not produced any evidence to show that deceased was suffering from any heart ailments or was treated for the same before the date of proposal, then concealment of disease of hypertension cannot be taken as suppression of any material fact, sufficient for repudiation of claim. Ratio of this case is fully applicable to the facts of the present case in view of the above discussion and as such, repudiation of claim on ground of suppression of material facts qua pre-existing ailment of hypertension through letter Ex.C17=Ex.R5 is absolutely incorrect, particularly when evidence is not at all adduced by Op to show that the complainant actually was suffering from hypertension or diabetes mellitus-2 or DCMP prior to submission of the proposal form. The observations of clinical findings recorded in Ex.C2=Ex.R3 were recorded on 29.6.2015 qua sufferance of complainant from hypertension for the last 5-6 months after diagnosis of the same. Doctors on clinical examination can find about sufferance from diabetes mellitus or hypertension with duration of such sufferance. If such clinical findings recorded by the doctors on 29.6.2015, then the same in no way will establish that the complainant was aware of these diseases of hypertension and diabetes mellitus-2 even at the time of submission of proposal form, 5 months earlier to the record of these findings. Proposal form Ex.R4 was submitted on 23.01.2015 and sufferance of complainant from disease of hypertension for the last 5-6 months on clinical examination found on 29.6.2015 through Ex.C2 and as such, it is obvious that complainant may not have suffered from the disease of hypertension at the time of submission of proposal form Ex.R4 on 23.1.2015 because time of sufferance from hypertension as 5-6 months given tentatively in Ex.C2 and not exactly. OP has not collected any material to establish that the complainant earlier had been getting treatment of hypertension or of diabetes mellitus-2 prior to submission of the proposal form Ex.R4 and as such, inference of concealment of material facts qua sufferance from ailment of hypertension erroneously drawn by Op for repudiating the claim.

8.                Even in case of The Senior Divisional Manager, Life Insurance Corporation of India and others vs. Ramandeep Kaur and anothers-2009(4)CPR-423(State Consumer Disputes Redressal Commission, Punjab), it has been held that hypertension and diabetes even otherwise cannot be said to be material diseases for the repudiation of claim on ground that the assured suppressed that information, particularly when the certificate issued by the hospital for the treatment of the insured did show that she was admitted on 10.12.1996 and expired on the same day, but without disclosing the sufferance of patient from hypertension or diabetes prior to 1993, when the policy was taken. Same is the position in the case before us because here discharge summary Ex.C2 does not at all discloses that the complainant actually suffered from hypertension or diabetes mellitus-2 prior to 23.1.2015 i.e. date of submission of proposal form Ex.R4. Rather, the time for sufferance from hypertension given as tentative as 5-6 months on clinical observations through Ex.C2.

9.                Even in case titled as Abedin S.Baldiwala vs. United India Insurance Company Limited-2016(3)CLT-584(N.C.), it has been held that when no evidence of treatment for diabetes and hypertension before submission of proposal form produced, then it cannot be presumed that the insured was aware about these two ailments at the time of filing of the policy. In the reported case, it was found that medical evidence did not show that bye pass surgery conducted in that case may not be directly related to the ailments of diabetes mellitus and hypertension and that is why, repudiation of claim found unjustified. Same is the position in the case before us because here treatment for B/L Pneumonitis or of bronchial asthma or ABPA shown to be having no nexus with the diseases of hypertension or of diabetes mellitus-2. Rather, in Ex.C2=Ex.R3, it is specifically mentioned that diabetes mellitus-2 was detected recently, which corroborates the claim of the complainant that at the time of conduct of medical examination of the complainant at the time of purchase of the policy, she was not found to be suffering from diabetic mellitus-2 or from hypertension. Even in case of Life Insurance Corporation of India and another vs. Naseem Bano-2012(3)CPJ-208(N.C.), it was found that when no evidence,prior to filing of the policy proposal form, was available to show that deceased was taking any medicine, then inference of sufferance from diabetes mellitus-2 and hypertension not draw-able. Moreover, in the reported case, it was found that heart attack has no nexus with the ailments of diabetes mellitus and hypertension and as such, repudiation of claim was found unjustified, particularly when record of the hospital or of slips of doctor or of prescription not produced for showing that deceased was taking medicine before purchase of the policy for curing diabetes mellitus and hypertension. Same is the position in the case before us and as such, repudiation of claim is absolutely incorrect.

10.              Certainly as per cases of Satwant Kaur Sandhu vs. New India Assurance Company Limited-(2009)89(S.C.) and United India Insurance Company Limited vs. Harchand Rai Chandan Lal bearing Civil Appeal No.6277 of 2004 decided by the Hon'ble Supreme Court of India, non-disclosure of the requisite information qua pre-existing ailment deliberately can    be treated as a ground for repudiation of claim. However, that concealment in the case before us is not shown to be deliberate. Rather, the complainant herself was not aware of the sufferance from diabetic mellitus or hypertension at the time of submission of proposal form and as such, benefit from ratio of these cited cases in the written arguments cannot be gained by Op. As repudiation of claim is improper and as such, Op required to reconsider the claim for settling and paying the         due amount regarding treatment of complainant for period from 28.6.2015 to 07.07.2015, within 45 days from the date of receipt of copy of this order. As illegal and improper repudiation of claim caused mental agony, pain and harassment to the complainant and as such, she is entitled for compensation of amount of Rs.5000/- at least along with litigation expenses of Rs.4000/-.

11.              As a sequel of above discussion, complaint allowed with direction to OP to settle and pay the mediclaim insurance amount of treatment of complainant for period from 28.06.2015 to 07.07.2015 by treating as if she was not suffering from any pre existing disease. Payment of the amount be made as per rules within 45 days from date of receipt of copy of order. Compensation for mental harassment and agony of Rs.5,000/- (Rupees Five Thousand only) and litigation expenses of Rs.4,000/- (Rupees Four Thousand only) more allowed in favour of complainant and against OP. Payment of these amounts of compensation and litigation expenses be made within 30 days from the date of receipt of copy of order. Copies of order be supplied to parties free of costs as per rules.

12.              File be indexed and consigned to record room.

                             (Param Jit Singh Bewli)                     (G.K. Dhir)

                              Member                                            President

Announced in Open Forum.

Dated: 21.11.2017.

Gurpreet Sharma