BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.226 of 2022
Date of Instt. 06.07.2022
Date of Decision: 08.06.2023
1. Saurabh Arora age 39 years son of Shri Om Parkash Arora.
2. Mandeep Kaur aged 39 years wife of Saurabh Arora
Both R/o Ward No.4, House No. 139, Adampur Road, VPO Bhogpur, District Jalandhar-144201 (M) 8283880004
..........Complainants
Versus
1. HDFC ERGO General Insurance Company Limited, through its authorized Representative, 1st Floor, HDFC House, 165-166 Backbay Reclamation, H.T. Parekh Marg, Churchgate, Mumbai- 400020
2. HDFC ERGO General Insurance Company Limited through its Authorized Representative, Eminent Mall, 261, Near Guru Nanak Mission Chowk, Lajpat Nagar, Jalandhar, Punjab-144001.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Rakesh Dhir, Adv. Counsel for the Complainants.
Sh. V. K. Gupta, Adv. Counsel for the OPs No.1 & 2.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the complainant No.1 has taken Apollo Munich Health Insurance having Policy No.180200/11121/AA00541059 which has now become HDFC ERGO Health Insurance i.e. OP No.1 having Policy No.2805203524908802000 for Optima Restore Family Insurance for ten lakh each i.e., complainant and his wife i.e. complainant No.2 against the premium of Rs.18,953/- per annum. The complainant No.2 Mrs. Mandeep Kaur had been diagnosed with an Ovarian Mass for the first time in December 2021 from the prescription slip and the scan report of Dr. Ritu J. Nanda dated 22.12.2021 for which she was undergoing her treatment at Fortis Memorial Research Institute for which complainant had requested for a cashless claim from Fortis Memorial Research Institute and a cashless hospitalization claim No.RC-HS 21-12801173 which was registered by the opposite parties and the same was intimated to the complainant No. 1 vide an e-mail dated 15.01.2022. The complainant No.1 had also requested for an insurance cover for the treatment of complainant No.2 as the same was covered by the Insurance Policy with the OPs. To the utter surprise and dismay of complainant No.1 vide an e-mail dated 17.01.2022 it was intimated to the complainant that his proposal for insurance cover of Optima Secure Application No.202201140073825 has been declined and the process to refund the premium paid by the complainant No. 1 has also been initiated. It was further intimated that the request of the complainant No.1 for the renewal of the Insurance Policy has also been declined and that the OPs refused to offer sum ensured enhancement and product change on the grounds that the complainant No.2 has a history of Stromal Tumor Ovary. In fact it is not so, the scan report to this effect of Mandeep Kaur in 2019 clearly proves that there was no history of Stromal Tumor Ovary, as alleged by the OP. The OPs has also refused the cashless hospitalization claim bearing claim No.RC-HS-21-12801173 on the grounds of a pre-existing disease. The complainant No.2 had earlier undergone a surgery for CSF Rhinorrorhea around 12 years back and was currently undergoing a treatment for Ovarian Mass which was just recently discovered. The above two medical issues had no co-relations with each other and hence question of any sort of pre-medical history and the concealment on the part of the complainants does not arise at all. Furthermore, the OPs had never ever got the proposal form filled by the complainants asking for any surgical history, hence the grounds for rejecting the claim of complainants and thereafter refusing to renew the policy are totally baseless and vague. Despite multiple requests for settlement of the claim and the continuation of Policy No.2805203524908802000 for Optima Restore Family Insurance, the OPs have refused to entertain the same. It is important to mention here that since the policy of the complaint and his wife is more than three years old, hence they were also eligible for the pre-existing diseases as well. The complainants feels harassed due to the irresponsible and unfair trade practices on the part of the OPs and the OPs are highly negligent and deficient in their services towards the complainants, this has not only caused financial loss to the complainants but has also caused lot of inconvenience, pain and mental agony to the complainants. The OPs were also served with legal notice dated 25.02.2022, but all in vain and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay Rs.4,25,466/- to the complainants being the cost of treatment from Fortis Memorial and cost of future treatment. Further, OPs be directed to pay a compensation of Rs.4,00,000/- for causing mental tension and harassment to the complainant and Rs.25,000/- as litigation expenses and to pay interest @ 9% per annum from the date of filing this complaint till the date of realization of the payment and further directing the OPs for continuation of the policy No.2805203524908802000 i.e. Optima Restore Family Insurance against the payment of premium with all the benefits since the day of inception of the health policy which has occurred to the complainants.
2. Notice of the complaint was given to the OPs, who filed written reply and contested the complaint by taking preliminary objections that the instant complaint is false, malicious, incorrect and malafide and is nothing but an abuse of the process of law and it is an attempt to waste the precious time of this Commission as the same is filed by the complainant only to avail undue advantage. The complaint is thus liable to be dismissed under Consumer Protection Act, 2019. It is further averred that the complaint is barred by the Consumer Protection Act, 2019 and the same is liable to be relegated to the Civil Court of competent jurisdiction since the adjudication of the matter requires recording of elaborate evidence, oral, documentary and medical. It is further averred that the complainant has concealed the material and correct facts and has not approached this Commission with clean hands while stating, distorted and incorrect facts before this Commission, with malafide intentions of misleading this Commission. It is further averred that based on non-disclosure of the material facts at the time of availing the policy, the Cashless request was rejected by the OP due to non-disclosure and concealment of facts. In view of the false and misleading statements and assertions of the Complainant; present complaint is liable to be dismissed. It is further averred that the present complaint is liable to be dismissed in view of the settled proposition of law that the Contracts of Insurance are contracts of Uberrima fides utmost good faith- and every material fact must be disclosed, otherwise there is a good ground for recession of the contract. The said law has been upheld by Hon'ble Supreme Court of India in a catena of judgments. Evidently, the complainant had concealed material facts and had falsely stated the fact of his health in the Proposal Form. Therefore, the present complaint is liable to be dismissed with exemplary cost. It is further averred that the present complaint is liable to be dismissed on the ground that the complainant failed to mention even a single cause of action in his complaint to file this false and baseless complaint. Therefore, it is liable to be dismissed on this ground alone with heavy cost. It is further averred that the Proposal Form is the basis of the insurance contract. The decision of the Insurance Company whether to grant insurance cover to the applicant/proposer solely depends upon the various facts, disclosure, information, statements and declarations made by the applicant/proposer in the Proposal Form. Further the various terms of the insurance contract/cover including the premium amount, maturity amount etc. depends solely upon the said facts, disclosure, information, statements and declarations in the Proposal Form. It is submitted that one great principle of Insurance Law is that a contract of insurance is based upon utmost good faith, Uberrima fides. Therefore, the Principle underlying the doctrine of disclosure and the rule of good faith oblige the proposer to answer every question put him with complete honesty. It is further averred that believing the above said information and details provided by the Proposer including the medical history to be true, correct and complete in all respect, giving due credence to the under writing norms of Respondent Company, a Policy in the name Optima Restore Insurance policy vide No.:180200/11121/AA00541059 was issued for sum assured of Rs.10,00,000/- opted as per PF, to the Proposer for the period between 11.01.2017 to 10.01.2018. It is further submitted that policy was further renewed on yearly basis. The Policy Kit containing all relevant documents were duly received by the Complainant/proposer, thereby giving an opportunity to complainant to verify and examine the benefits, terms and conditions of the Policy taken by the Complainant. It is pertinent to submit that the complainant/proposer never approached the answering Respondent Company stating that any information given in the documents in the Policy Kit was incorrect or any term and condition therein is not understandable or acceptable to him within the free look period i.e. 15 days from the receipt of the policy document. As no objection was received from the Complainant, therefore the Complainant is strictly bound by the terms and conditions of the policy. In view of the above fact, the present complaint is liable to be dismissed with exemplary costs. On merits, the factum with regard to taking health insurance policy by the complainant No.1 is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. Rejoinder not filed by the complainant.
4. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
5. We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.
6. It is proved by the complainant that he purchased Apollo Munich Health Insurance Policy having Policy No.180200/11121/AA00541059 from the OP No.1 against the premium of Rs.18,953/- per month. The OP has admitted that the complainant purchased the above said policy. The complainant has alleged that the complainant No.2 was diagnosed with an Ovarian Mass for the first time in December, 2021 and she was undergoing her treatment at Fortis Memorial Research Institute and cashless hospitalization claim was got registered by the complainant with the OP vide email dated 15.01.2022. This fact has been admitted by the OP that the cashless request was received from Fortis Memorial Research Institute for Mrs. Mandeep Kaur, the complainant No.2 with the date of admission 06.01.2021 and estimated cost of Rs.4,43,625/-. The complainant has alleged that on 17.01.2022, the complainant was intimated that his proposal for insurance cover of Optima Secure Application has been declined and the process to refund the premium paid by the complainant No.1 has been initiated, which has been challenged by the complainant. The complainant has further alleged that he was also intimated that the request of the complainant No.1 for renewal of the policy was also declined.
7. The OP has admitted this fact also and has alleged that the complainant has concealed the material facts of past surgery at the time of taking the policy. As per the discharge summary and as per cashless claim request received from the Fortis Hospital, the patient had past medical history of surgery for CSF rhinorrhea in 2009, which was not disclosed by the complainant at the time of taking the insurance policy with the OP in proposal form. The OP has relied upon the IRDA (Protection of Policy Holder’s Interests) Regulations 2017 and he has also relied upon the General Terms and Conditions of the Insurance.
8. The complainant has admittedly been taking the insurance policy since 2017 till 2022 as per Ex.C-2. The policy was renewed as per Ex.C-1. The complainant has also proved on record the record of the hospital of Dr. Ritu J. Nanda Gynae & Fertility Centre and Fortis Memorial Research Institute Ex.C-5 to Ex.C-23 and the cashless facility was declined as per Ex.C-24. Perusal of the documents Ex.C5 and Ex.C4, which is the MRI Scan of Pelvis with Screening of Upper Abdomen, shows that on 24.12.2021, the patient Mandeep Kaur was found with ‘Large well circumscribed mass arising from the right ovary with hemorrhage, cystic areas and enhancing solid component showing diffusion restriction – suspicious for malignancy? Granulosa cell tumour and Mild ascites’. As per Ex.C-5, she was suffering from irregular period since one year and the finding of the doctor was suggestive of Ovarian Tumour. As per the document of the Fortis Hospital produced on record by the OP, which is the part of the Annexure-C, shows that she was having past history of CSF Rhinorrhea, which was done in the year 2009. As per Ex.C-25, the email, the complainant No.2 has intimated to the OPs that she was having history of surgery for CSF Rhinorrhea around 12 years back, which does not have any co-relation with her current condition as diagnosed ovarian mass. There is no connection between these two situations. She has further stated that she does not remember if the agent had ever asked her about the surgical history otherwise she would have not disclosed this fact to her treating doctor also.
9. The complainant has alleged that the agent has never asked about the previous history of any surgery. Even otherwise, the complainant had purchased the policy in the year 2017. Had there been any ill intention of the complainant to avail the false claim, the complainants would have availed the claim in these four years, but this is not the case of the OPs that earlier also they had ever filed the claim regarding any disease. Moreso, CSF Rhinorrorhea as per medical literature is a cerebrospinal fluid occurs when there is a fistula between the dura and the skull base and discharge of CSF from the nose. Even, the document i.e. detail given by the treating doctor, this was done by Neuro Surgeon i.e. ENT Surgeon, so this problem which the complainant was having about 12 years back was regarding nose, but now she had suffered the ovarian mass which are all together two different diseases. There is no nexus between the Ovarian Mass and CSF Rhinorrorhea. There is no connection between the disease, for which the claim has been lodged and the past disease alleged by the OP. There is no evidence that due to past disease, the disease of Ovarian Mass has occurred. We are supported by the law laid down by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in III (2021) CPJ 66 (NC), case titled as ‘PNB Metlife India Insurance Company Ltd. Vs. Godavariben Kalubhai Vaghela’ that ‘Insured had suffered a heart attack and he died - Complainant being nominee, claimed amount under the policy, which was denied by the petitioner on ground that insured had concealed material fact at the time of buying policy- Insured was not suffering from any heart ailment when he filled up proposal form- only defence taken is that insured had underwent treatment for T. B. and this fact was concealed – insured had died after about six months of buying the policy – Concealment of fact regarding treatment of T. B., if any, cannot be termed as concealment of material fact – There is no nexus between concealment of alleged fact and cause of death.’ It has been held by the Hon’ble Delhi State Commission Disputes Redressal Commission, New Delhi, in I (2022) CPJ 112 (Del.), case titled as ‘Gurpreet Kaur Vs. Bajaj Allianz Life Insurance Co. Ltd. & Ors., that ‘Death of life assured occurred due to heart attach/cardiac arrest, which is not connected with pre-existing disease and nor there is any evidence to show that death was on account of pre-existing disease of life insured- Repudiation of claim is not justified.’ It has been held by the Union Territory Consumer Disputes Redressal Commission, Chandigarh, in (2006) CPJ 270, case titled as ‘Life Insurance Corporation of India & Ors. Vs. Shiv Singh’ that ‘insured got examined from insurance doctor, found healthy – Deceased allegedly suffered from chronic obstructive pulmonary disease and chronic asthma – No nexus between cause of death and alleged ailment of deceased – Fraudulent suppression of material facts not proved- insurer liable.’
So, in view of the above referred law and considering the facts of the case, the complainant is entitled for the relief.
10. In view of the above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to pay Rs.4,25,466/- to the complainant alongwith interest @ 6% per annum from the date of filing this complaint till its realization. Further, OPs are directed to continue the policy No.2805203524908802000 i.e. Optima Restore Family Insurance against the payment of premium with all the benefits since the day of inception of the health policy, which was accrued to the complainants. Further, OPs are directed to pay a compensation including litigation expenses of Rs.20,000/- for causing mental tension and harassment to the complainant. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
11. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
08.06.2023 Member Member President
