| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION PATIALA. Consumer Complaint No. 226 of 12.6.2017 Decided on: 16.3.2021 Varinder Kumar Sharma aged about 41 years son of Mr.Megh Raj Sharma, resident of House No.612, Street No.15, Old Bishan Nagar, Tehsil and District Patiala. …………...Complainant Versus - HDFC ERGO General Insurance Company Ltd., Registered & Corporate Office at Ist Floor, 165-166 Backbay Reclamation, H.T. Parekh Marg, Churchgate ,Mumbai-400020 through its authorized signatory/managing director.
- HDFC ERGO General Insurance Company Ltd., Branch office at SCO-11,Chhoti Baradari, First Floor, Patiala- 147001 through its Branch Manager/Authorized Signatory.
…………Opposite Parties Complaint under Section 12 of the Consumer Protection Act, 1986. QUORUM Sh. Jasjit Singh Bhinder, President Sh.Y.S.Matta, Member ARGUED BY Sh.L.S.Sandhu,counsel for complainant. Sh.Amit Gupta, counsel for OPs. ORDER JASJIT SINGH BHINDER,PRESIDENT - This is the complaint filed by Varinder Kumar Sharma (hereinafter referred to as the complainant) against HDFC ERGO General Insurance Company Ltd. and another (hereinafter referred to as the OP/s) under the Consumer Protection Act, (hereinafter referred to as the Act).
Facts of the complaint - Briefly the case of the complainant is that at the time of taking the loan from the HDFC Bank, he obtained insurance policy bearing No.2918 2007 5407 7500 000 from the OPs valid for the period from 18.5.2014 to 15.5.2019 and paid the premium of Rs.33327/- through cheque dated 15.5.2014 covering the risk of fire and allied peril, earthquake and terrorism, burglary, house breaking, theft ,major medical illness and procedures , personal accident and loss of job. It is averred that on 20.9.2016, the complainant underwent kidney transplant and his brother was as donor and incurred expenses of Rs.3,34,049.91 on the surgery and treatment of kidney transplant. Thereafter, the complainant applied to the OPs for the payment of claim but OPs refused to pay any amount on the false and flimsy grounds. It is further averred that in the month of September,2014 he felt weakness and he consulted in the Forts Hospital, from where he got proper treatment and except this he never had not any past medical history. The complainant also wrote letters for the reimbursement of his claim but the OPs did not pay any heed. There is thus deficiency in service on the part of the OPs which caused harassment, humiliation, mental agony, tension and harassment to the complainant. Hence this complaint with the prayer to accept the same by giving direction to the OPs to pay the amount of Rs.3,34,049.91 to the complainant alongwith interest @14%per annum till realization; to pay Rs.50,000/- as counsel fee with litigation expenses of Rs.50,000/- alongwith Rs.60,000/- as compensation.
Reply/Written statement - Notice of the complaint was given to the OPs who appeared through counsel and contested the complaint by filing written reply having raised preliminary objections that the claim of the complainant was repudiated on the ground of pre-existing conditions; that the complainant has concealed the true and material facts from this Hon’ble Court that he is a known case of hypertension and diabetes mellitus before the first inception date of the policy i.e. on 16.2.2014; that the complainant was admitted in Max Hospital, Mohali on 19.9.2016 and underwent for the kidney transplant on 20.9.2016; that as per policy terms and conditions the company is not liable to make any payment on account of pre existing illness and as such the OPs have rightly repudiated the claim.
- On merits, it is admitted that the complainant has taken Home Suraksha Cover which has covered major medical illness and procedures specified in the policy w.e.f.16.5.2014 to 15.5.2019, strictly subject to the terms and conditions of the policy. It is further submitted that the claim of the complainant was not found tenable. Further after denying all other averments, the OPs have prayed for the dismissal of the complaint.
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- In support of the complaint, the ld.counsel for the complainant has tendered in evidence Ex.CA affidavit of the complainant alongwith documents Exs.C1 to C12 and closed the evidence.
- On the other hand, the ld. counsel for the OPs has tendered in evidence Ex.OPA affidavit of Sh.Pankaj Kumar Manager(Legal) alongwith documents Exs.OP1 to OP6 and closed the evidence.
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- The complainant has also filed the written arguments.We have gone through the same heard the ld. counsel for the parties and have also gone through the record of the case, carefully.
- The ld. counsel for the complainant has argued that the complainant obtained policy in question from OPs No.1&2 and the complainant had obtained this policy when he took loan from the HDFC Bank and paid premium of Rs.33327/- to OPs No.1&2 and payment was made through cheque on 15.5.2014 to HDFC Bank Limited and the policy was applicable from 18.5.2014 to 15.5.2019 and covered besides all the major illness. The complainant underwent kidney transplant on 20.9.2016 with his brother as donor and complainant incurred Rs.3,34,049 on the surgery. The ld. counsel has argued that the OPs have repudiated the claim vide Ex.C5 on flimsy grounds. The ld. counsel for complainant has relied upon the citations National Insurance Co. Ltd. and Anr. Vs. D.P.Jain and Ors. 2007(3)C.P.J.34, Life Insurance Corporation of India Vs. Smt.Asha Goel 2001(2)BCR 791, M/s Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd. 2000(100)Comp Cas 97.
- On the other hand, the ld. counsel for the OPs has argued that the claim was repudiated on the ground of pre existing condition. The ld. counsel further argued that the complainant has concealed true facts as he is known case of hypertension and diabetes from the last two years. The ld. counsel further argued that the claim has been filed under the benefits of major medical illness and it was rightly repudiated.The ld. counsel further argued that this ailment falls under exclusion category as applicable to Section 3 and he has relied upon the citation New India Assurance Co. Ltd. Vs. Nina Sudhir Thackersey MANU/CF/0515/2019.
- To prove the case, the complainant has tendered his affidavit Ex.CA and he has deposed as per his complaint, Ex.C1 is the insurance policy valid from 16.5.2014 to 15.5.2019, Ex.C2 is certificate of Max Hospital, in which it is mentioned that Varinder Kumar found to be hypertensive in April 2015 when he had pain in right side of abdomen and was put on drugs. He was never investigated for renal disease at that time and the kidney disease detected on May,2015 when s.createnine was found to be 7.5mg and underwent kidney transplant on 20.9.2016.Ex.C3 is another certificate of Max Hospital, in which it is mentioned that the patient was first seen on 2.6.2015 and there is no IP assessment record of 24.11.2014,Ex.C4 is receipt of Rs.33,733/- of Max Hospital,Ex.C5 is repudiation letter, in which it is mentioned that complainant is covered under Exclusion clause of Insurance Policy under Section 3, Ex.C6 is letter written by complainant,Ex.C7 is also letter written by complainant to insurance company,Ex.C10 is also letter written by Varinder Kumar to Insurance company,Ex.C12 is loan agreement.
- On the other hand Sh.Pankaj Kumar, Manager Legal has tendered his affidavit, Ex.OPA and he has deposed as per the written statement. It is mentioned in para no.3 of the affidavit that the complainant was admitted in Max Hospital, Mohali on 19.9.2016 and underwent kidney transplant on 20.9.2016 and the claim was lodged and the documents were submitted. After relying upon the documents, submitted by the complainant it was found that as per the consultation paper of Fortis Hospital dated 18.9.2014, the complainant was suffering from hypertension and diabetes, Ex.OP1/1 is policy dated 16.5.2014, Ex.OP1/2 is Photostat slip of Fortis Hospital dated 18.9.2014. So, it is clear that the policy was taken on 16.5.2014 and the slip of Fortis Hospital is 18.9.2014 i.e. after the policy and OPs have relied upon this prescription slip for rejecting the claim of the complainant. So, it is clear that this slip is after taking the policy.Ex.OP1/3 is discharge summary of Max Hospital, Ex.OP1/4 is also record of Max Hospital,Ex.OP1/5 is form filled by the complainant, Ex.OP1/6 is repudiation letter. As per this letter the disease was under exclusion policy clause.
- As already stated above, in the repudiation letter, it is mentioned that this disease was under Exclusion Clause. There is certificate Ex.C2 of the Max Hospital, in which it is mentioned that Varinder Kumar was found to be hypertensive in April,2015 and regarding kidney disease he came into knowledge in May,2015 when serum cratenine was found to be at higher level.
- Admittedly this policy was for five years. There is no evidence or document on the file which can show that all the terms and conditions of the policy were supplied to the complainant at the time when he took the policy. In the repudiation letter, the OPs have relied upon Exclusion Clause of policy wording under Section 3, in which it is mentioned that the company shall not be able to make any payment directly or indirectly arising out of the following events: “Any Pre-Existing illness”. As already stated above, there is no document to show that this Exclusion Clause was duly intimated to the complainant. As per law the exclusion clause is required to be explained to the insured. It has been held by the Hon’ble Supreme Court in M/s Modern Insulators Ltd. Vs. Oriental Insurance Co. Ltd.(supra) that exclusion clause was neither a part of the contract of insurance nor disclosed about the clause to appellant, respondent cannot claim benefit of exclusion clause. So there is direct judgment of the Hon’ble Supreme Court in favour of the complainant on the file. There is another judgment of the Hon’ble Supreme Court passed in Life Insurance Corporation of India Vs. Smt.Asha Goel (supra) , in which Hon’ble Supreme Court has held that according to Section 30 of Insurance Act no policy of insurance can be repudiated after the expiry of two years unless the insurer shows that such statement of fact was on a material matter and suppression was fraudulent on the part of the policy holder. But there is no document on the file to show that fraud was played by the complainant at the time of taking the insurance policy. As per record on the file the complainant went to Fortis Hospital on September,2014 and he got proper treatment. Except this he had not any past history.
- The OPs have also relied upon various citations of Hon’ble National Commission but in view of the Hon’ble Supreme Court’s judgment on the file regarding the Exclusion clause these judgments are not helpful to the insurance company.
- In view of the aforesaid discussion, the complaint stands allowed and the OPs are directed to pay the claim amount of Rs.3,34,049 to the complainant alongwith interest @6% per annum from the date of repudiation i.e. 25.3.2017 till actual payment. They are further directed to pay Rs.5000/-as costs of litigation and Rs.5000/-as compensation. Compliance of the order be made by the OPs within a period of 45 days from the date of the receipt of the certified copy of this order.
ANNOUNCED DATED:16.3.2021 Y.S.Matta Jasjit Singh Bhinder Member President | |
