Orissa

Cuttak

CC/130/2022

Arpita Pattanaik - Complainant(s)

Versus

HDFC ERGO General Insurance - Opp.Party(s)

A K Jena & associates

04 May 2024

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL COMMISSION,CUTTACK.

C.C.No.130/2022

Arpita Pattanaik,

W/o: Prabir Kumar Barik,

At present Kalyani Apartments,

Friends Colony,P.S:Mangalabag,

                    Town/Dist:Cuttack-753001,

Permanently residing At/PO:Buxi Bazar,

P.S:Daragha Bazar,Town/Dist:Cuttack

                     Pin-753001,Odisha.                                                   …Complainant

 

          Vrs.

 

1.        HDFC ERGO General Insurance Company Ltd.,

OSL Tower-II,2^nd Canal Road Near KFC,

Badambadi Colony,Cuttack,

P.S:Badambad, Town/Dist:Cuttack.

                   Pin-753012,Odisha.

 

2.        Bandhan Bank,Cuttack/1330,1^st Floor,

Omkar Building,Near Chandi Temple,

ICICI Bank Complex,Chandi Road,Cuttack,

                  Odisha,Cuttack-753001.

 

3.        Apollo Hospitals Enterprises Limited,

Bhubaneswar Office:Plot No.251,Sainik School Road,

                   Unit -15,Bhubaneswar-751005.

 

4.        HDFC ERGO General Insurance Company Ltd,

Regd. & Corporate Office:1^st Floor,HDFC House,165/166,

Backbay Reclamation, H.T.Parekh Marg,Churchgate,

                 Mumbai-400020.                                                                        ...Opp.Parties

 

Present:         Sri Debasish Nayak,President.

                      Sri Sibananda Mohanty,Member.

 

Date of filing:    04.07.2022

Date of Order:  04.05.2024

 

For the complainant:             Mr. A.K.Jena,Adv. & Associates.

For the O.Ps no.1 & 4:           Mr. R.Pati,Adv. & Associates.

For the O.Ps no.2 & 3:                       None.

 

Sri Debasish Nayak,President

            Case of the complainant as made out from the complaint petition bereft unnecessary details in short is that she had opted for one Health Insurance policy from O.Ps no.1 & 4 bearing policy no.2811203747409401000 which also covered the health issues of her husband and minor son.  She was paying the premium regularly and the policy was being renewed annually. It was effective from 15.11.2021 to 14.11.2022 bearing policy no. 2811203747409401000 appertaining to Group Policy No. 2999203669163500000 which covered the insurance of Prabir Kumar Barik, the husbanded the complainant and Amlan Aditya, the son of the complainant.  On 22.2.2021 the complainant had sustained severe back pain for which she had gone to Apollo Hospital and after undergoing certain tests there, it was detected that she was suffering from Kidney stone for which she was admitted there.  On 22.11.2021, she had undergone surgery and on 29.11.2021 she was discharged.  A total amount of medical expenses there at Apolo Hospital towards the treatment of the complainant was Rs.4,50,000/- and when the claim for the said amount was made by the complainant, the O.Ps no.1 & 4 had rejected her such claim on the ground of suppression of material facts as she had not disclosed those  while filling up the proposal form for obtaining the health insurance policy from the O.Ps.  Having no other way out, the complainant had to pay the said sum and even after repeated persuasions, when no fruitful result yielded, the complainant has come up with her case before this Commission seeking direction to the O.Ps no.1 & 4 in order to refund the paid sum of Rs.4,50,000/- to the complainant and also to pay compensation to her to the tune of Rs.5,00,000/- for her mental agony and harassment.  She has also prayed for the cost of her litigation and further for any other relief as deemed fit and proper. 

            Together with her complaint petition, she has annexed copies of several documents in order to prove her case.

2.        Out of the four O.Ps as arrayed in this case, having not preferred to contest this case, O.Ps no.2 & 3 have been set exparte vide order dt.7.10.2022.  But O.Ps no.1 & 4 have contested this case and they have filed their written version jointly.  According to the written version of O. Ps no.1 & 4, the case of the complainant is barred by principles of estoppels, waiver, acquisance, limitation, non-joinder and mis-joinder of necessary parties which is liable to be dismissed.  They admit about the health insurance policy as obtained by the complainant from them which also  covered the health issues of  her family members like her husband and her minor son, but they have urged that while filling up the proposal form, the complainant had concealed about her previous ailments and when the claim was made by her, they could know that the complainant had certain health issues like she was diagnosed with and had undergone surgery for her Umbilical Hernia Repair in the year 2010 and also in the year 2016, Hysterectomy for Uterine Fibroid and DUB in the year 2015 and was a known case of Disc. Prolapse since 2017.  That apart, she was recently diagnosed with hypertension three months prior to getting admitted for the surgery.  She was under regular medication and has suppressed all these vital informations related to her pre-existing diseases without disclosing those in her proposal form for her insurance policy.  It is for the said reason, the O.Ps have urged through their written version about such suppression of material facts which is against the IRDA guidelines and this non-disclosure of material facts as pointed out by the O.Ps, gains corroboration from the decisions of the Hon’ble Superior Courts which are as follows:

1.        In the case of Branch Manager,Bajaj Allianz Life Insurance Company  Ltd., and Ors. Vrs. Dalbir Kaur.

2.     In the case of Sulbha Prakash Motegaonkar Vs. Life Insurance Corporation of India.

It is for the said reason, the O.Ps have prayed for dismissal of the complaint petition as filed.

           The O.Ps have also filed copies of several documents in order to support their stand.

           The complainant has filed her evidence affidavit here in this case which when perused, appears to be a reiteration of the averments as made by the complainant in her complaint petition.

             Similarly, the O.Ps no.1 & 4 have filed evidence affidavit through one Bhubaneswari Das working as Legal Manager of the their Company.  The evidence affidavit of the said Bhubaneswari Das when perused it is also appears to be a reiteration of the averments as made in the written version of the O.Ps. no.1 & 4.

3.          Keeping in mind the averments as made in the complaint petition and the contents of the written version of the O.Ps no.1 & 4, this Commission thinks it proper to settle the following issues in order to arrive at a definite conclusion here in this case.

           i.   Whether the case of the complainant is maintainable?

ii.  Whether there was any deficiency in service on the part of the O.Ps?

         iii. Whether the complainant is entitled to the reliefs as claimed by her?

Issue no.II.

          Out of the three issues, issue no. ii being the pertinent issue is taken up first for consideration here in this case.

          After perusing the complaint petition, the written version, written notes of submissions as filed from both the sides, evidence affidavit filed from both sides as well as the copies of documents available in the case record, it is noticed that infact, the complainant had obtained health insurance from the O.Ps no.1 & 4 and during the subsistence of the said insurance policy she was admitted to Apollo Hospital on 22.11.2021 as she had kidney stone and after being operated there she was discharged on 29.11.2021 from Apollo hospital.  The medical expenses as incurred there for the treatment of the complainant was to the tune of Rs.4,50,000/- which the complainant had to bear herself since because the O.Ps no.1 & 4 had repudiated her claim on the ground of suppression of material facts.  According to the O.Ps no.1 & 4, the complainant had undergone surgery for Umbilical Hernia Repair in the years 2010 and 2016.  She had Hysterectomy for Uterine Fibroid and DUB in the year 2015.  She was a known case of Disc. Prolapse since 2017 and she recently was diagnosed with hypertension three months prior to getting admitted for the surgery.  According to the O.Ps no.1 & 4, the complainant has suppressed all these material facts and though she was under medication she had not disclosed the same while obtaining the health insurance policy from them.  In this context, the O.Ps have relied upon a decision of our Hon’ble Apex Court in the case of Branch Manager,Bajaj Allianz Life Insurance Company Ltd., and Ors. Vrs. Dalbir Kaur wherein it is held that “the contractual duty so imposed is such that any suppression, untruth or inaccuracy in the statement in the proposal form will be considered as a breach of the duty of good faith and will render the policy voidable by the insurer.  The system of adequate disclosure helps buyers and sellers of insurance policies to meet at a common point and narrow down the gap of information asymmetries.  This allowed the parties to serve their interests better and understand the true extent of the contractual agreement.”  Thus, according to the contesting O.Ps no.1 & 4, since because the complainant  in this case while obtaining her health insurance policy from them had not mentioned or rather had not disclosed in her proposal form about her pre-existing ailments, suppression of those, according to the O.Ps no.1 & 4 tantamounts to repudiation of the insurance policy since it is hit by the principles of Uberimai Fidei.  But while going through another pertinent decision of the Hon’ble Apex Court in the case of Sulbha Prakash Motegaonkar Vs. Life Insurance Corporation of India _ which has been taken into account and discussed in the case of Branch Manager,Bajaj Allianz Life Insurance Company Ltd., and Ors. Vrs. Dalbir Kaur wherein the assured suffered a myocardial infarction and had succumbed to it.  The claim was repudiated by the insurance company on the ground that there was a suppression of a pre-existing lumbar spondylitis.  It was in this background that this Court (Hon’ble Apex Court) held that the alleged concealment was of such a nature that would not dis-entitle the deceased from getting his life insured.  In other words, the pre-existing ailment was clearly unrelated to the cause of death.  This Court (Hon’ble Apex Court) had also observed in its decision that the ailment concealed by the deceased was not a life-threatening disease.  This decision must, therefore, be distinguished from the factual position as it has emerged before this Court (Hon’ble Apex Court).  Such findings/observations were made by the Hon’ble CJI while considering the case of Branch Manager,Bajaj Allianz Life Insurance Company Ltd., and Ors. Vrs. Dalbir Kaur and discussion therein the case of Sulbha Prakash Mogegaonkar Vrs. LIC of India.

           Thus, keeping the facts and circumstances of the case in mind and the findings as made by the Hon’ble Apex Court in the case of Sulbha Prakash Motegaonkar Vrs, LIC of India, though the complainant had Umbilical Hernia Repair in the years 2010 and 2016 and also had Hysterectomy for Uterine Fibroid and DUB in the year 2015 and was also had Disc. Prolapse since 2017, such ailments cannot be said to be the cause of kidney stone of the complainant subsequently.  As per the findings made by the Hon’ble CJI in the case as cited above and while taking into account the pertinent case of Sulbha Prakash Motegaonkar Vs. Life Insurance Corporation of India, it is observed that unrelated pre-existing ailments should not dis-entitle the assured in getting the benefits of the insurance policy.  The O.Ps no.1 & 4 have nowhere apprised this Commission that if such non-disclosure of the pre-existing ailments of the complainant as stated by them is related to the present kidney stone of the complainant or has nexus in any manner for the kidney stone of the complainant.  Thus, when such ailments of the complainant as alleged by O.Ps no.1 & 4 are not made clear before this Commission by the said contesting O.Ps to be related to the present ailment of the complainant, the complainant should not be dis-entitled from getting the benefits of her insurance policy which was inforce while she was subjected to surgery at Apollo hospital for her kidney stone.  As such, by repudiating the claim of the complainant, the O.Ps no.1 & 4 appear to have acted unilaterally and arbitrarily and their such act signifies deficiency in their services.  Accordingly, this issue goes in favour of the complainant.

Issues no.i & iii.

           From the discussions as made above, the case of the complainant is definitely maintainable and she is entitled to the reliefs as claimed by her from the O.Ps here in this case.  Hence it is so ordered;

ORDER

           The case is decreed on contest against the O.Ps no.1 & 4 and exparte against O.Ps no.2 & 3 who are found to be jointly and severally liable here in this case. The O.Ps 1 & 4 are thus  directed to settle the claim of the complainant on payment of the insured amount of Rs.4,50,000/- with immediate effect alongwith interest thereon @ 12% per annum with effect from 15.12.2021 till the total amount is quantified.  The O.Ps 1 & 4  are also directed to pay a sum of Rs.1,00,000/- to the complainant towards compensation for her mental agony and harassment as well as to meet her cost of litigation.  This order is to be carried out within a period of 30 days from the date of receipt of copy of this order.

            Order pronounced in the open court on this the 4^th day of May,2024 under the seal and signature of this Commission.                                                                        

 

                                                                                                Sri Debasish Nayak

                                                                                              President

 

 

                                                                                          Sri Sibananda Mohanty

                                                                                                        Member.