BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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Rachhpal Singh son of S. Gurcharan Singh, r/o House No.1156/1, Sector   44-B, Chandigarh.

…..Complainant

                                V E R S U S

1.     HDFC ERGO General Insurance Company Ltd., Registered office, Ramon House, H.T. Parekh Marg, 169, Back way Reclamation, Mumbai 40020, through its Managing Director.

2.     HDFC ERGO General Insurance Company Ltd., Branch Office SCO No. 124-125, Sector- 8-C, Chandigarh.

                                        ……Opposite Parties

CORAM:   SH.P.D.GOEL                             PRESIDENT

                SH.RAJINDER SINGH GILL          MEMBER

                DR.(MRS) MADANJIT KAUR SAHOTA          MEMBER

Argued by:   Sh.Sunil Toni, Advocate for the complainant.

                   Sh. Paras Money Goyal, Advocate for the OPs.

PER DR.(MRS) MADANJIT KAUR SAHOTA,  MEMBER

                Briefly stated, the complainant got Health Suraksha Policy (Ann.C-1) from OPs on making payment of Rs. 9613/- towards its premium (Ann.C-2). It has been averred that on 8.11.2009, the complainant was admitted in Fortis Hospital for treatment and ultimately operated upon for Bye-pass Surgery on 10.11.2009. He was discharged on 17.11.2009 (Ann.C-3). The total expenses incurred on the said treatment was to the tune of Rs.2,29,492/- (Ann.C-5).  Thereafter, a claim was lodged with OPs for reimbursement of the expenses of the said treatment, but OPs repudiated it vide letter dated 4.2.2010 (Ann.C-6) being not payable on the ground of pre-existing disease. The complainant filed his claim before the Insurance Ombudsman, Chandigarh on 8.3.2010 (Ann.C-7) and the matter is still pending. It has been further stated that earlier the complainant filed a complaint pertaining to the same cause of action but the same was dismissed in default vide order dated 5.5.2011, thereafter, he moved an application for restoration of the complaint but the same was withdrawn by the complainant on 12.9.2011 (Ann.C-8).   Alleging the above repudiation as illegal and deficiency in service on the part of OPs, the present complaint has been filed.

2]             OPs No.1 & 2 filed the reply stating therein that the complainant had underwent bye-pass surgery, which was a pre-existing disease, as such, the ailment of the complainant and the treatment taken thereof, was not covered under the insurance perils of the policy (Ann.R-1), due to which, his claim was rightly repudiated vide letter dated 4.2.2010 (Ann.R-2) on the ground of pre-existing disease.  The OPs have also placed on record Discharge Summary of complainant as Ann.R-3, by way of additional evidence. Denying all the material allegations of the complainant and pleading that there has been no deficiency in service on their part and prayer for dismissal of the complaint with exemplary costs has been made.  

3]             Parties led evidence in support of their contentions.

4]             We have heard the learned Counsel for the parties and have also perused the record. 

5]             The main dispute, which gave rise to the present complaint is, that due to illegal acts & deeds of OPs, the medical claim of the complainant, has been wrongly repudiated on the ground that any ailment or injury, before getting the policy, is a pre-existing disease and not payable, as per terms & conditions of the policy. The complainant has contended that due to said acts of OPs, he has to suffer mental agony, physical harassment and financial loss as well.     

6]             While, on the other hand, the OPs have denied of rendering any deficient service and rather termed the complainant as guilty of suppressing material facts, while taking the said policy, as he has failed to disclose, during submitting the proposal form, that he was suffering from any pre-existing disease for which he had underwent the treatment, whereas the contract of insurance is mainly governed by the principle of utmost good faith, which he has breached by suppressing material information from OPs.

7]             The OPs further contended that the ailment of the complainant and the treatment taken thereof, was not covered under the insurance perils of the policy.  Therefore, such claim was liable to be repudiated on the ground of pre-existing disease.

8]             Going deeply into the facts and circumstances of the case, it is evidently clear that the claim of the complainant was repudiated on the ground of pre-existing disease.

9]             The ld.Counsel for the complainant has argued that the OPs should come forward with the proposal form on the ground of which they are claiming that the complainant has concealed the material facts and have not disclosed the diseases, which were pre-existing at the time of taking the policy, henceforth led to the repudiation of his claim.

10]           The OPs, in support of their contentions, have placed on record the policy document as Ann.R-1 and Discharge Summary of complainant as Ann.R-3.  The Resume of History, mentioned in the Discharge Summary (Ann.R-3 at Page No.19) is reproduced as under:-

                        “RESUME OF HISTORY:

H/O present complaints: Patient with c/o one episode of unconsciousness in the morning while on morning walk.  No h/o chest pain & dyspnoea. Presently c/o uneasiness. Also presented with cardiac arrhythmias (Ventricular Tachycardia – heart rate was 240 per minute & after cardioversion heart rate was 106 per minute).  Also old anterior wall MI/Post PTCA+stent to LAD in 2007 – Instent restenosis of LAD stent in June 2008.

Past History: DIABETES MELLITUS TYPE-II, ESSENTIAL HYPERTENSION”

11]           However, the OPs have neither placed on record the Proposal Form to prove their allegations that the complainant has concealed the material information about his pre-existing disease, at the time of taking the policy nor the above referred Discharge Summary/Resume of History is support by an affidavit of any doctor, to substantiate their stand/justification for the repudiation of claim on the ground of pre-existing disease.  Furthermore, they have also failed to clarify that who has recorded the said Discharge Summary/Resume of History or at whose instance it was so recorded.  Therefore, it cannot be said that the complainant had concealed any information from OPs about any pre-existing disease while taking the policy in question. 

12]           Reliance has been placed on :-

i)      Sunita Jain Vs. Life Insurance Corporation of India & Anr.,1999(1) CPC 645 (Punjab State Commission), wherein it has been held that :-

“The insurer failed to prove by any cogent evidence that material fact was concealed by the insured – Burden of proof heavily lies on insurer in such matters – Mere reference in history sheet of patient that he was suffering from diabetes is not enough.”

ii)     In the case of Life Insurance Corporation of India vs. Smt.Kulwant Kaur, 2000(1) CPC 31 (Punjab State Commission), it has been held that :-

‘Patient’s history of hospital is not a cogent evidence to prove that he was suffering from Alcoholism for the last 19-1/2 years – Onus to prove of concealment of disease lies upon the Insurer..”

iii)    In Life Insurance Corporation of India vs. Sebati Munda, 2004(1) CPC (Orissa State Commission), it has been held that :-

“Concealment of disease – Insurance claim was repudiated with the contention that the deceased had concealed ailment of T.B. when policy was taken – No expert was produced in support of the contention – Fact of suppression of disease not proved.”

13]           In view of the foregoing observations as well as the above cited case laws, we are of the considered opinion that the claim of the complainant was unjustly/wrongly repudiated. The OPs have miserably failed to place any plausible justification or cogent evidence in support of their averments, whereas the complainant has totally assailed the ground so taken by the OPs for repudiation of his rightful claim.  Therefore, the complaint having lot of merit, weight and substance, must succeed. The same is accordingly allowed. The OPs are directed to pay to the complainant the sum assured amount of Rs.2.00 lacs (Ann.C-1), as the expenses incurred by him on the treatment is more than that, along with interest at the rate of 12% per annum from the date of repudiation i.e. 04.02.2010 (Ann.C-6) till its actual payment, apart from litigation cost of Rs.15,000/-.

         This order be complied with by the OPs within a period of 30 days from the date of receipt of copy of this order, failing which they shall be liable to pay interest at the rate of 15% per annum instead of 12% p.a. on the above awarded amount, from the date of repudiation i.e. 4.2.2010 till its actual payment to the complainant, besides paying litigation cost, as aforesaid.

                Certified copies of this order be sent to the parties free of charge. The file be consigned.