Chandigarh

DF-I

CC/770/2021

Smaksh Ahuja - Complainant(s)

Versus

HDFC ERGO General Insurance Co. Ltd. - Opp.Party(s)

Rahil Mahajan

01 May 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/770/2021
Date of Institution	:	08/11/2021
Date of Decision	:	01/05/2023

Smaksh Ahuja aged about 19 years son of Atul Ahuja resident of Street No.12, Near Gopi Chand College, New Suraj Nagri, Abohar, Fazilka, Punjab.

… Complainant

V E R S U S

1. HDFC Ergo General Insurance Company Limited, 1^st Floor, HDFC House, Backbay Reclamation, H.T. Parekh Marg, Churchgate, Mumbai – 400020 (registered and corporate office)
2. HDFC Ergo General Insurance Company Limited, 5^th Floor, Tower 1, Stellar IT Park, C-25, Sector-62, Noida, UP, India – 201301 (Health Insurance Claim Office)
3. HDFC ERGO General Insurance Company Limited, Office of Insurance Ombudsman, SCO No.101-103, 2^nd Floor, Batra Building, Sector 17-D, Chandigarh (Chandigarh Branch).

… Opposite Parties

 

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER

                                                                               

ARGUED BY	:	Sh. Arjun Dosanj, Vice Counsel for Sh. Rahil Mahajan, Counsel for complainant
	:	Sh. Nitesh Singhi, Counsel for OPs

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Sh.Smaksh Ahuja, complainant against the opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the allegations as projected in the consumer complaint that the father of the complainant had taken a health policy for himself and his wife and the said policy was renewed/extended from time to time.  In the year 2020, father of the complainant had again taken Health Suraksha Policy (Silver) (hereinafter referred to as “subject policy”) and the complainant was also inducted as dependent member in the same.  The subject policy was further renewed for the year 2021 (Annexure C-1).  In the year 2018, complainant had suffered an injury on his right shoulder (shoulder dislocation) while playing sports and had again suffered injury in the year 2019.  In the year 2018, the shoulder of the complainant was dislocated 3-4 times and thereafter he was referred to PGIMER for further treatment.  In the year 2021, when he was taking physiotherapy etc. from PGIMER, he was suggested to undergo surgery for his right shoulder. Accordingly, the complainant approached the ARV Orthopaedic Hospital, Chandigarh and consulted the medical officers there who asked him to get few medical reports/tests for the right shoulder. After going through the said medical reports (Annexure C-2), the medical officer had decided to conduct surgery of the shoulder in the third week of June 2021. At that time, the complainant had disclosed to the aforesaid hospital staff that he had existing health policy with the OPs and the surgery expenses can be reimbursed through the said policy. Thereafter the complainant and his father applied for pre-authorisation/approval through the aforesaid ARV Hospital before the surgery.  The complainant got himself admitted in the said hospital on 17.6.2021 and the surgery was performed on 18.6.2021.  Thereafter, all the documents with regard to the previous injuries pertaining to the year 2018 and his treatment at the PGIMER were also attached on the web portal of the OPs by the said hospital as it was helping the complainant for grant of approval from the OPs. The OPs had also sent a communication on 17.6.2021 asking for KYC documents for pre-authorisation claim and the same was also provided by the father of the complainant to the OPs.  However, when the complainant again requested the OPs to clear the claim, OPs had deleted the entry from their website, but, before that the complainant had taken screenshot of the webpage (Annexure C-5) of the OPs. Since the surgery of the shoulder of the complainant was performed on 19.6.2021 after pre-approval by the OPs, they have been delaying the clearance of the claim on one pretext or the other. Ultimately, the claim of the complainant was repudiated by the OPs vide letter dated 19.6.2021 (Annexure C-7) on the ground of non-disclosure of material facts by the complainant. On 20.6.2021, complainant was discharged from the hospital and a bill of ₹1,34,250/- (Annexure C-8) was raised by the said hospital. Again the complainant had filed review claim with the OPs on 24.6.2021 through their online page and had also uploaded the documents by retaining screenshot (Annexure C-10) of the claim, but, despite of that, nothing has been done by the OPs.  The aforesaid act amounts to deficiency in service and unfair trade practice on the part of OPs. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OPs resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability, cause of action, locus standi, concealment of facts and also that the complainant has not approached the Commission with clean hands.  However, it is admitted that the complainant was insured under the subject policy by the OPs, but, alleged that there is no deficiency in service on their part as the claim was repudiated on the ground of non-disclosure of material facts vide letter dated 19.6.2021.  It is further alleged that in fact the discharge summary of the said ARV Hospital makes clear that there was shoulder dislocation of the complainant in the year 2018 and since then he has been continuously suffering from shoulder dislocation and also that the complainant had taken treatment from the PGI, Chandigarh for the said problem and he had history of shoulder dislocation since the year 2018 i.e. before the first inception of the policy on 17.2.2020, which fact was not disclosed by the complainant to the OPs.  It is further alleged that since the complainant does not fall under the definition of consumer, this Commission has no jurisdiction to try the consumer complaint.  On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. In replication, complainant re-asserted the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully, including the written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainant was insured under the subject policy (Annexure C-1/ Annexure A) by the OPs alongwith his father and brother with basic sum insured of ₹4,00,000/-, which was valid w.e.f 17.2.2020 to 16.2.2022 and also that the complainant was suffering with an injury on his right shoulder/shoulder dislocation since the year 2018 i.e. prior to the obtaining of the aforesaid policy, and he had 3-4 episodes of shoulder dislocation in the year 2018, the case is reduced to a narrow compass as it is to be determined if the complainant is entitled for the medi-claim i.e. for the amount spent by him for the surgery of his right shoulder and the OPs are unjustified in repudiating the claim of the complainant on the ground that he had not disclosed about the earlier injuries/ dislocation of his shoulder before obtaining the subject policy and the complainant is entitled for the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if the OPs are justified in  repudiating the claim of the complainant on account of non-disclosure of material facts qua the earlier injuries/dislocation of shoulder of the complainant, as per the terms and conditions of the subject policy, and the consumer complaint of the complainant is liable to be dismissed, as is the defence of the OPs.
   2. In the backdrop of the foregoing admitted and disputed facts on record, it is clear that the entire case of the parties is revolving around the terms and conditions of the subject policy and the same are required to be scanned carefully.
   3. As it is an admitted case of the parties that the said factum of the earlier incidents of dislocation of the right shoulder of the complainant were not disclosed by the complainant to the OPs before obtaining the subject policy, the case is further reduced to a narrow compass as it is to be determined if due to non-disclosure of the said fact, the consumer complaint of the complainant is not maintainable in the light of the terms and conditions of the policy.

 

4. The relevant clauses/portions of the subject policy, for the disposal of the present consumer complaint, are reproduced below for ready reference :-

“SECTION. 9. EXCLUSIONS

A. Waiting Periods

All claims payable will be subject to the waiting periods specified below:

                xxx                    xxx                    xxx

ii. 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.

                xxx                    xxx                    xxx

Pl Note:

Coverage under the policy for any past illness/condition or surgery is subject to the same being declared at the time of application by You or the Insured Person or anyone acting on behalf of You or an Insured Person and accepted by Us without any exclusion.

SECTION. 10. GENERAL CONDITIONS

r. Termination

i.      You may terminate this Policy at any time by giving Us written notice. The cancellation shall be from the date of receipt of such written notice. If no claim has been made under the Policy, then We will refund premium in accordance with the table below:

 

1 Year Policy Period		2 Year Policy Period
Length of time Policy in force	% of premium refunded	Length of time Policy in force	%of premium refunded
Upto 1 Month	75.00%	Upto 1 Month	87.50%
Upto 3 Months	50.00%	Upto 3 Months	75.00%
Upto 6 Months	25.00%	Upto 6 Months	62.50%
Exceeding 6 Months	Nil	Upto 12 Months	48.00%
		Upto 15 Months	25.00%
		Upto 18 Months	12.00%
		Exceeding 18 Months	Nil

ii.     We may terminate this Policy on grounds of misrepresentation, fraud, non-disclosure of material facts or non-cooperation by You or any Insured Person or anyone acting on Your behalf or on behalf of an Insured Person. Such termination of the Policy shall be from the inception date or the renewal date (as the case may be) upon 30 days notice and by sending an endorsement in this regard at Your address shown in the Schedule without refund of any premium.

SECTION.11. INTERPRETATIONS & DEFINITIONS

Def. 18.     Disclosure of information norm means the policy shall be void and all premiums paid hereon shall be forfeited to the Company, in the event of misrepresentation, mis-description or non-disclosure of any material fact.”

 

5. Perusal of the aforesaid clauses of the subject policy makes it clear that the insured was bound to disclose about the disease/surgery, if any, before obtaining the policy, failing which the insurer had every right to terminate the policy on grounds of misrepresentation, fraud, non-disclosure of material facts or non cooperation by the insured.  Since nothing has come on record nor it is the case of the complainant that he had disclosed about the earlier injury/disease/ dislocation of his shoulder before obtaining the subject policy, it is clear that the same amounts to non-disclosure of material facts by the complainant/ insured to the OPs, which otherwise the insured was required to disclose to the insurer. Hence, the complainant has miserably failed to prove any deficiency in service or unfair trade practice on the part of the OPs and it is safe to hold that the OPs were justified in repudiating the claim of the complainant on the ground of non-disclosing the material fact.

4. In the light of the aforesaid discussion, the present consumer complaint, being devoid of any merit, is hereby dismissed leaving the parties to bear their own costs.
5. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 01/05/2023 hg			Sd/- [Pawanjit Singh] President
			Sd/- [Surjeet Kaur] Member