Chandigarh

DF-I

CC/497/2023

ABHINAV SHASTRI - Complainant(s)

Versus

HDFC ERGO GENERAL INSURANCE COMPANY LIMITED - Opp.Party(s)

DHAWAL BHANDARI

08 Jul 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/497/2023
Date of Institution	:	13.10.2023
Date of Decision	:	08/07/2024

 

ABHINAV SHASTRI, AGED 37 YEARS SON OF SUDHARSHAN SHAHTRI, RESIDENT OF (OLD ADDRESS :- PATTI UCHAND, GHARUAN, MOHALI, PUNJAB 140413) NEW ADDRESS # 556W, WARD NO 7, VILLAGE GHARUAN, TEHSIL KHARAR, MOHALI, PUNJAB 140413.

COMPLAINANT

VERSUS

 

1. HDFC ERGO GENERAL INSURANCE COMPANY LIMITED [EARLIER KNOWN AS HDFC ERGO HEALTH INSURANCE] THROUGH ITS MANAGING DIRECTOR / AUTHORISED REPRESENTATIVE REGISTERED and CORPORATE OFFICE: 1ST FLOOR, HDFC HOUSE, 165-166 BACKBAY RECLAMATION, H. Τ.

PAREKH MARG, CHURCHGATE, MUMBAI 400020

2. HDFC ERGO GENERAL INSURANCE COMPANY LIMITED [EARLIER KNOWN AS HDFC ERGO HEALTH INSURANCE] THROUGH ITS BRANCH MANAGER/AUTHORISED REPRESENTATIVE, 4TH FLOOR, SCO 50-51 SCO 50-51 SECTOR- 34A CHANDIGARH – 160022.

3. MR NARESH KUMAR,  ADDRESS:- HOUSE NUMBER 3384, SECTOR 45-D CHANDIGARH-160045.

… Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	SHRI SURESH KUMAR SARDANA	MEMBER

                                                                               

ARGUED BY	:	Sh. Dhawal Bhandari, Advocate for complainant (through VC)
	:	Sh. Nitesh Singhi, Advocate for OPs No.1&2.
	:	OP No.3 ex-parte.

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by the complainant under Section 35 of the Consumer Protection Act 2019 against the opposite parties  (hereinafter referred to as the OPs). The brief facts of the case are as under :-

1. It transpires from the averments as projected in the consumer complaint that on 6.10.2020 the complainant had taken a Medial Health Insurance policy Annexure C-1 namely Optima Restore Family Floater health Insurance plan from OP No.1 through its agent OP No.3,  covering the complainant and his wife Tamana with sum insured to the tune of Rs.5.00 lacs  valid w.e.f. 5.10.2020 to 4.10.2021. Later on the said policy was got renewed by the complainant through OP No.3, which was valid w.e.f. 5.10.2021 to 4.10.2022 with sum insured 7,50,000/- (hereinafter referred to be as subject policy) and the copy of policy is annexed as Annexure C-2.  Unfortunately on 11.10.2021  the complainant being not feeling well was admitted to Health Sure Multi Speciality Hospital, Gharuan, Punjab for initial treatment  where he was diagnosed dengue fever as is apparent from Annexure C-4. Thereafter the complainant was  referred to Max Super Speciality Hospital Mohali (hereinafter referred to be treating hospital) where dengue fever was reconfirmed. Thereafter the treating hospital sought approval from OP No.1 for cashless treatment but when the said facility was not approved by OPs No.1&2, the complainant was compelled to pay initial amount of Rs.10,000/- to the treating hospital vide receipt Annexure C-5.  Thereafter the OP No.2 vide Annexure C-6 sought additional information about old disease of the complainant from the treating hospital with regard to disease cystic encephalomalacia, and later on OPs No.1&2 vide Annexure C-7 denied the cashless facility for the treatment of the complainant on the ground that he has past history of cystic encephalomalacia despite of the fact that the complainant was admitted for the treatment of dengue fever. Even the treating doctor Lakhwinder Singh Kang vide Annexure C-8 had given in writing that the complainant was admitted with Dengue fever with severe dehydration and not for cystic encephalomalacia. The complainant was forced to pay the bill amount of Rs.1,65,120.07. Copy of bill is annexed as Annexure C-10.  Subsequently the complainant was shocked to know that  the OPs No.1&2 have rejected the claim of the complainant and cancelled the policy vide Annexure C-11 on the ground  of non-disclosure of material facts by the complainant as the complainant did not disclose about the pre-existing disease cystic encephalomalacia at the time of inception of the policy. It is further alleged that  the complainant was admitted for the treatment of dengue fever and the denial of cashless facility and thereafter cancellation of policy by the OPs amounts to deficiency in service and unfair trade practice on their part. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OPs No.1&2  resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of  maintainability, cause of action locus standi and jurisdiction and concealment of material facts and also that the complainant has not approached this Commission with clean hands. On merits it is admitted that the subject policy was issued by the answering OPs  and the complainant was admitted at the  Max Hospital Mohali the treating hospital  and he was diagnosed with dengue fever. It is further alleged that the answering OPs have received the cashless treatment request from the treating hospital but since it was found that the insured patient is a known case of cystic encephalomalacia since childhood, the cashless facility was denied to the complainant. Moreover, the complainant has not disclosed the material facts qua the pre-existing disease cystic encephalomalacia from which he was suffering before the inception of the policy and as such the policy was rightly cancelled. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. OP No.3  was properly served and when OP No.3 did not turn up before this Commission, despite proper service, it was proceeded against ex-parte on 11.12.2023.
4. Despite grant of numerous opportunities, no rejoinder was filed by the complainant to rebut the stand of the OP.

2. In order to prove their respective claims, the contesting parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the contesting parties and also gone through the file carefully, including the written arguments on record.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainant had obtained the subject policy for himself and his wife Tamana which was valid w.e.f. 5.10.2020 to 4.10.2021  and later on got the same renewed and the same was renewed w.e.f. 5.10.2021 to 4.10.2022 as is evident from Annexure C-1 and C-2 and thereafter the complainant was firstly admitted in Health Sure Multi Speciality Hospital, Gharuan, Punjab, wherefrom  he was referred to Max Hospital Mohali  i.e. the treating hospital, where he was also diagnosed dengue fever and the treating hospital has sent request to OPs No.1&2 for cashless treatment of the complainant which was denied by OPs No.1&2 on the ground that the complainant has not disclosed about the pre-existing disease cystic encephalomalacia from which he was suffering before the  inception of the policy as is also evident from Annexure C-7  and later on OPs No.1&2 had cancelled the subject policy on the same ground i.e. non-disclosure  of  material facts by the complainant vide  Annexure C-11 letter dated 23.10.2021, the case is reduced to a narrow compass as it is to be determined if  the OPs are unjustified in rejecting the claim of the complainant and thereafter cancelling the policy and the complainant is entitled for the relief as prayed for or if the  OPs are justified in rejecting the claim of the complainant and cancelling policy and the complaint being not maintainable is liable to be dismissed as is the defence of the OPs.
   2. Perusal of Annexure C-8,  the certificate issued by Dr. Lakhwinder Singh Kang serving in the treating hospital indicates that  the complainant was known case of cystic encephalomalacia  since his childhood  and has been taking treatment from PGI, Chandigarh but he was admitted with the treating hospital for dengue fever with severe dehydration.  In fact the OPs No.1&2 firstly denied the cash treatment facility to the complainant on the ground that he was suffering from cystic encephalomalacia from his childhood,  by relying upon the aforesaid medical record and later on cancelled the subject policy on the ground that the complainant has not disclosed the material facts qua the pre-existing disease, from which he was even suffering since his childhood i.e. prior to the inception of the policy.
   3. The case of the complainant is that he has never raised any claim with OPs No.1&2 with respect of disease cystic encephalomalacia rather he has taken treatment for dengue fever  with severe dehydration from which he was suffering only after the inception of the policy and prior to that had never suffered from the said disease.
   4. Thus, when it stands proved on record that the complainant  has raised claim with respect to the dengue fever with severe dehydration for which he was taking treatment from the treating hospital and immediately after his admission in the treating hospital request for cashless treatment was sent to OPs No.1&2 for the aforesaid disease i.e. dengue fever  which has no nexus with the old disease i.e. cystic encephalomalacia, the  Ops No.1&2 wrongly firstly denied the cashless facility and later on cancelled the subject policy.
   5. Hon’ble Supreme Court in Sulbha Prakash Motegaonkar and Ors. v. Life Insurance Corporation of India, Civil Appeal No.8245 of 2015, decided on 5.10.2015 (SC) has held as under:-

       “We have heard learned Counsel for the parties.

              It is not the case of the Insurance Company that the ailment that the deceased was suffering from was a life threatening disease which could or did cause the death of the insured. In fact, the clear case is that the deceased died due to ischaemic heart disease and also because of myocardial infarction. The concealment of lumbar spondylitis with PID with sciatica persuaded the respondent not to grant the insurance claim.

              We are of the opinion that National Commission was in error in denying to the appellants the insurance claim and accepting the repudiation of the claim by the respondent. The death of the insured due to ischaemic heart disease and myocardial infarction had nothing to do with this lumbar spondylitis with PID with sciatica. In our considered opinion, since the alleged concealment was not of such a nature as would disentitle the deceased from getting his life insured, the repudiation of the claim was incorrect and not justified.”

 

6. In view of the foregoing discussion and the ratio of law laid down above, it is clear that the OPs have not been able to connect the previous diseases ailment of cystic encephalomalacia  with the present disease/ailment i.e. dengue, for which the insured had taken treatment from the treating hospital.  Hence, it is unsafe to hold that the OP-1&2/insurer were justified in rejecting  the claim and later on cancelling the policy of the complainant and the aforesaid act of OPs rejecting the clam and cancelling the policy  amounts to deficiency in service and unfair trade practice on their part, especially when the entire case set up by the complainant in the consumer complaint as well as the evidence available on record is unrebutted by the OPs. Hence, the instant consumer complaint deserves to be allowed.
7. So far as the quantum of relief is concerned, it is evident from Annexure C-10  the bill raised by the treating hospital that the complainant has paid Rs.1,65,120/-, thus the OPs are liable to pay the said amount to the complainant.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs are directed as under :-

1. to  pay ₹ Rs.1,65,120/- to the complainant alongwith interest @ 9% per annum from the date of cancelling the subject policy i.e. 23.10.2021 till onwards.  
2. to pay an amount of ₹20,000/- to the complainant(s) as compensation for causing mental agony and harassment to her/him/them;
3. to pay ₹10,000/- to the complainant/s as costs of litigation.

5. This order be complied with by the OPs jointly and severally within a period of 45 days from the date of receipt of certified copy thereof, failing which the amount(s) mentioned at Sr.No.(i) & (ii) above shall carry penal interest @ 12% per annum (simple) from the date of expiry of said period of 45 days, instead of 9% [mentioned at Sr.No.(i)], till realisation, over and above payment of ligation expenses.
6. Pending miscellaneous application(s), if any, also stands disposed off.
7. Certified copies of this order be sent to the parties free of charge. The file be consigned.

Announced 08/07/2024 mp			Sd/- [Pawanjit Singh] President
			Sd/-
			[Suresh Kumar Sardana] Member