Delhi

North East

CC/373/2014

Anju Soti - Complainant(s)

Versus

ICICI Lom. Gen Ins. Co. Ltd. - Opp.Party(s)

07 Feb 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 373/14

 

In the matter of:

	Smt Anju Soti W/o Late Shri Neeraj Soti R/o B-107, Surya Nagar, 1st Floor Ghaziabad, Uttar Pradesh	Complainant
	Versus
1	ICICI LOMBARD GIC LTD Through its CEO / Managing Director DDA Market, 1st Floor, 101, J & K Market Dilshad Garden, New Delhi-11009   Also At:- M/s ICICI Lombard G.I.C Ltd Through ITS CEO / Managing Director ICICI Lombard House, 414, Veer Savarkar Marg, Near Siddhi Vinayak Temple Prabhadevi, Mumbai-400025	Opposite Party

 

DATE OF INSTITUTION:     JUDGMENT RESERVED ON:                 DATE OF DECISION     :

17.09.2014 07.02.2019 07.02.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

 

Order passed by Ms. Sonica Mehrotra, Member

 

 

 

 

 

ORDER

1. Brief facts leading to the institution the present complaint are that the husband of the complainant namely Mr. Neeraj Soti had taken a joint health policy for himself and his wife Anju Soti, the complainant herein from the OP by way of Complete Health Insurance vide policy no. 4128i/HPR/82819329/00/000 w.e.f. 09.09.2013 t0 08.09.2014 for total annual sum assured of Rs. 3,00,000/- with additional sum assured of Rs. 30,000/- on payment of total premium of Rs. 9,383/- made to OP for the said coverage. On 18.03.2014, the husband of the complainant was admitted at Yashoda Hospital, Ghaziabad for treatment of high grade fever and was diagnosed to be suffering from jaundice and underwent series of medical examination and clinical investigation like Urine, Widal test, Bio Chemistry, Hematology, Ultrasound, X-ray, N.C.C.T. Scan KUB, CECT Head, Thorax/chest MRI Scan Brain, MRI LS Spine etc between 19.03.2014 to 28.03.2014 in which tests among other reports, he was tested as nil for sugar, Typhoid, HIV, Malaria, Hepatitis B or Cardiac problem. The said hospital raised a bill of Rs. 1,00,000/- for the admission and clinical investigation on the complainant for which the complainant requested the OP to grant cashless service  but the OP refused to provide the same and the husband of the complainant was forced to deposit the said sum with the OP for his treatment and tests. The complainant again had to undergo further clinical investigation on 31.03.2014 in the said hospital for NCCT Head, Bio Chemistry and hematology etc., at Yashoda Hospital which indicated diagnosis of Tubercular Meningitis. The complainant’s husband had to further deposit a sum of Rs. 97,478/- with Yashoda Hospital on 01.04.2014 - 02.04.2014 due to refusal by OP again to provide cashless facility to the husband of the complainant. The husband of the complainant was discharged on 02.04.2014 and as per the complainant, the discharge summary issued by Yashoda Hospital gave no depiction of her husband suffering from diabetes or administration of any medication for the said disease during his entire hospitalization period. Unfortunately, on 17.05.2014, the husband of the complainant was again rushed to Yashoda Hospital in unconscious state but was declared as brought dead on reaching the said hospital. Thereafter on 27.06.2014, the complainant lodged a claim vide claim no. 220100271919 with OP for reimbursement of the hospital expenses to the tune of Rs. 1,97,478/- by way of mediclaim and submitted all necessary and supporting documents. However the OP, vide e-mail dated 01.08.2014 repudiated the claim of the complainant by citing incongruous reason “as per insured’s wife statement, her husband is suffering from diabetes since June 2012 and consulted Dr. Anil Jain and he prescribed Metfomin medicine which her husband was taking till September 2014, also as per discharge summary of Yashoda Hospital, patient is k/c/o type -2 diabetes since two years on regular medicine which falls under 48 months prior to policy inception”. Thereafter, complainant made repeated attempts and request before OP to relook into their decision of repudiation since during the entire period of hospitalization, the husband of the complainant was never on treatment of diabetes or was administered any medication for that but such request fell on deaf ears of OP. Therefore, the complainant was constrained to file the present complaint before this Forum against the OP on grounds of deficiency in service for repudiation of claim due to which the complainant suffered harassment and agony and therefore prayed for issuance of directions to the OP to pay a sum of Rs. 1,97,478/- to the complainant alongwith compensation of Rs. 2,00,000/- for mental torture and agony and cost of litigation.

Complainant has attached copy of health policy with OP, copy of admission documents of her deceased husband at Yashoda Hospital from 18.03.2014 to 28.03.2014 alongwith clinical investigation reports, copy of payment receipts of Rs. 1,00,000/- paid on 29.03.2014 by her deceased husband to Yashoda Hospital for treatment and tests, copy of clinical investigation of her husband at Yashoda hospital on 31.03.2014, copy of payment receipt of Rs. 97,478/- paid by her deceased husband to Yashoda Hospital on 01.04.2014 and 02.04.2014, copy of discharge summary of her deceased husband dated 02.04.2014 from Yashoda Hospital, copy of declaration of death of complainant’s husband issued by Yashoda Hospital on 17.05.2014, copy of claim form filled by the complainant and submitted to OP on 27.06.2014 for reimbursement of medical expenses alongwith affidavit and final bill of Rs. 1,97,478/- deposited by complainant with OP and copy of repudiation e-mail dated 01.08.2014 from OP to the complainant rejecting reimbursement and copy of e-mails dated 07.08.2014 by complainant to OP to reconsider her claim.

2. Notice was issued to OP on 22.09.2014. OP entered appearance and filed its written statement on 27.11.2014 in which OP took the preliminary defence that the husband of the complainant had submitted the proposal form no. 0212443 without disclosing that he is suffering from diabetes at the time of taking policy cover and on the basis of proposal form and information furnished by husband of the complainant, the OP had extended the health policy cover in 2012 which was renewed in 2013. OP submitted that at the time of admission of complainant’s husband at Yashoda Hospital on 18.03.2014, when the cashless request was made, OP came to know from the said hospital that complainant’s husband was suffering from Diabetes Mellitus (DM) and therefore OP had sent a letter dated 19.03.2014 to the said hospital to provide requisite information which the hospital provided on 23.03.2014 on its letter head mentioning clearly that Mr. Neeraj Soti was suffering from diabetes for last two years for which reason the OP had denied the cashless access to the complainant vide letter dated 24.03.2014. The OP contended that the complainant never provided any documents pertaining to the diabetes of her husband which he was suffering from for past two years and was on regular treatment thereof as per the discharge summary dated 02.04.2014 issued by Yashoda Hospital. OP urged that despite the complainant’s husband being aware of the terms and conditions and exclusions of the policy in event of incorrect statement, misrepresentation, non description or non disclosure, the complainant’s husband concealed material information in the proposal form rendering the entire contract of insurance as null and void. Therefore, since diabetes – type 2 is a chronic lifelong disease, symptoms of which are shown gradually in the body, the complainant’s husband despite being aware of the same did not reveal the factum of suffering from it and therefore the claim of the complainant was rightfully repudiated vide letter dated 01.08.2014 in terms of clause 3 sub clause 3.1 Exclusion of part II of schedule of ICICI Lombard Health Insurance Policy excluding pre-existing illness claim for a period of four consecutive years and in the present case the policy of the complainant’s husband had not completed two years.  The OP urged that the insurance contract is a contract of utmost good faith and the repudiation of claim was due to concealment of material information by complainant’s husband. Lastly the OP took the defence that the complainant failed to produce any documents in support of a contention that her husband was non diabetic contrary to her averment in the complaint and discharge summary of Yashoda Hospital. In light of the defence taken by OP in its written statement, it submitted that there was no deficiency of service on its part warranting any compensation or damages or entitlement of claim to the complainant and therefore prayed for dismissal of complaint.

OP has attached copy of the Health Insurance Proposal Form of complainant’s husband and his wife, copy of risk assumption letter, policy certificate and terms & conditions of policy for the period 2012 to 2013, copy of risk assumption letter, policy certificate with premium certificate for the period 2013 to 2014, true copy of letter dated 19.03.2014 from OP to Yashoda Hospital for submission of information about complainant’s husband, copy of clinical progress note of complainant’s husband by Yashoda Hospital dated 23.03.2014 on its letter head alongwith Doctors opinion, copy of letter dated 24.03.2014 by OP to Yashoda Hospital rejecting cashless request and copy of repudiation letter dated 01.08.2014 from OP to complainant rejecting his claim for cashless access.

3. Rejoinder to the written statement of OP was filed by the complainant in rebuttal to the defence taken therein in which the complainant vehemently denied that her husband was suffering from diabetes and the same was well established by medication administered by Yashoda Hospital as well as letter dated 23.03.2014 of Yashoda Hospital wherein the hospital authorities had clearly opined the husband of complainant was non diabetic and had even requested the OP to reconsider its decision of denying cashless facility to the deceased husband of the complainant and this very documents has also been relied upon by OP itself in its written statement as annexure E attached therewith. The complainant further denied that the discharge summary of her husband issued by Yashoda Hospital on 02.04.2014 mentioned that he was a k/c/o type-2 DM for two years on regular treatment and alleged that OP declined the medical opinion as well as request to reconsider rejection of cashless facility on surmises and conjecture. The complainant submitted that her husband never concealed anything from OP and that he was not suffering from diabetes at any moment of time which facts was established by Yashoda Hospital also. The complainant denied having any malafide intension of grabbing treatment money in the name of insurance claim or that her husband had concealed material information in the proposal form but stated that it was rather OP which despite being duty bound as service provider had intentionally chosen to conduct breach of service by denying lawful claim of complainant. The complainant further denied coming within the exception/exclusion of the policy terms and condition as cited by the OP and reiterated her grievance and relief sought by way of prayer in the complaint against the OP.
4. Evidence by way of affidavit was filed by complainant exhibiting the documents relied upon by her filed alongwith the complaint as exhibit CW1/1 to CW1/12 i.e. from Proposal Form to Repudiation Letter.
5. Evidence by way of affidavit was filed by OP exhibiting the documents relied upon by it in its written statement in support of his defence as exhibit OPW-1-A to OPW-1-G. OP further submitted that it had followed all guidelines of IRDA regarding health insurance policies.
6. Written arguments were filed by the complainant in which the complainant argued apart from the pleadings in the complaint, rejoinder and evidence that as per letter dated 23.03.2014 of Yashoda Hospital to OP, her husband was told to be diabetic two years back and put on metformin, but for last 15 -20 days he was not on treatment and there was no increase in blood sugar level and in hospital was not needing any anti diabetics. When patient was admitted he was diagnosed with Tubercular Meningitis hence might be given history in disoriented manner and OP was asked to reconsider its decision. Complainant further argued that it is impossible for a diabetic to survive without medication or insulin even for a week but her husband during his entire duration of hospitalization was not given any medication for diabetes but the OP instead of taking a composite and reliable medical view provided by hospital, chose to give weightage to general information provided by relatives / attendant of deceased. Complainant further argued that the death of her husband was due to meningitis which had no relation with diabetes and OP never got the deceased checked for the same or provides any certificate from any treating doctor to substantiate its claim. Lastly, complainant argued that the discharge summary issued by Yashoda Hospital did not depict any symptoms of Mr. Neeraj Soti suffering from diabetes or any related treatment / medication thereof.
7. Written arguments were filed by OP in reiteration of the defence taking in the written statement and placed reliance on judgment of Hon’ble NCDRC in LIC of India Vs Smt Vimla Verma for contract of insurance based on principle of “Ubberima fides” and the judgment of Hon’ble Supreme Court in Satwant Kaur Sandhu Vs New India Assurance Co. Ltd (2009) 8 SCC  316 in which the Hon’ble Supreme Court held that in the event of suppression of material facts in regard to health of the insured, the insurer was fully justified in repudiating the insurance contract.                         
8. We have given our anxious consideration to the rival contentions of both the parties and documentary evidence placed on record and relied upon by them in their respective grievance / defence.

It is not in dispute that the health policy coverage was given / extended to by OP to the complainant for two successive terms 2012-2013 and thereafter 2013-2014 on receipt of premium for sum assured Rs. 3,00,000/- covering the deceased and the complainant herein. The factum of hospitalization of the complainant’s at Yashoda Hospital, Ghaziabad from 19.03.2014 to 02.04.2014 is also not in dispute as also the expenditure incurred by the complainant’s husband to the tune of Rs. 1,97,478/- on the clinical investigation an tests undergone in the said period. However, the OP has repudiated the claim of the complainant on the basis of complainant’s statement about her husband suffering from diabetes since June 2012 for which he had consulted one Dr. Anil Jain was put on medication by him which her husband was taking till September 2014. A specific question was put by this Forum to the counsel for OP whether he has placed on record the said statement of the complainant or that of Dr. Anil Jain to which he admitted of not having either of the statements or affidavit in his possession / support. At this point the counsel for complainant put forth an argument by way of clarification that Dr. Anil Jain was actually an empanelled doctor with OP and not treating doctor of the complainant’s husband since there was no such doctor on the record of Yashoda Hospital. The counsel for OP argued that the complainant’s husband had ticked mark “No” against column 9 for history of diabetes mellitus in the insurance proposal form alleging that the complainant had not disclosed to OP at the time of filling the proposal form for taking the health policy under the head of pre-existing disease details. As per clinical pathology report of urine routine of complainant’s husband conducting on 18.03.2014 and report received on 19.03.2014, there was NIL sugar. However, the said argument could be very well countered by the clinical progress dated 23.03.2014 issued by Yashoda Hosptial with respect to complainant’s husband relied upon by OP itself whereby the treating doctor had himself apprised the OP that there was no increase in the sugar level of the deceased and he was not needing any anti diabetics and he was admitted in disoriented state diagnosed with tubercular meningitis and was probably given his history in disoriented manner which is a symptom of said disease and OP was asked to reconsider its decision for rejecting cashless request.

On close scrutiny and analysis of medical documents by way of clinical tests, investigations and diagnosis thereof complainant’s deceased husband, it is clearly established that complainant’s husband was initially admitted with high grade fever on 18.03.2014 at Yashoda Hospital and suffering from Jaundice since his liver and kidney function test were indicative of the same. From the CT scan of head, MRI of brain, NCCT head and MRI spine, the complainant’s husband was diagnosed with hydrocephalus tubercular meningitisand myelitis and arachnoiditis which are all indicative of severe brain disorder and all medication prescribed by Yashoda Hopital were also for treatment / cure of the said diseases at the time of discharge on 02.04.2014. The complainant’s husband was admitted at Yashoda Hospital as follow up case of tubercular meningitis with seizure disordered and the cause of death on 17.05.2014 was also tubercular meningitis.

 

9. The Hon’ble National Commission in Judgment of Ravinder Singh Bindra V/s National Insurance Co. Ltd. I (2017) CPJ 498 (NC) had held that in view of Insurance Co. not having produced any evidence or filed any document to show that the deceased was suffering from pre existing heart ailment or was treated for the same before date of proposal which was essential to establish / prove the pre existing nature of the disease as contented by the Insurance Company as the onus to prove the same lies on it, the repudiation was held bad. Further the factum of concealment of hypertension were not sufficient ground amounting to suppression of any material information to repudiate the claim since it is not necessary that every person having hypertension shall suffer from heart disease.

Further, the Hon’ble National Commission in the Judgment of Birla Sun Life Insurance Co. Ltd & Anr. Vs Arvind Kaur I (2018) CPJ 301 (NC) had held that it was obligatory to insurer to either produce doctor who had allegedly treated the DLA  in Hospital or to have filed his affidavit or in the alternate it could have examine an official of hospital to prove / authenticate of photocopies which the insurance company relied upon before District Forum in support of its defence and in the absence of any such evidence, mere production of some unattested, unverified and unauthenticated photocopies could not have been the basis of holding the deceased been alcoholic and diagnosed with alcoholic liver disease thereby repudiating the claim. The Hon’ble National Commission in judgment of SBI Life Insurance Co. Ltd. Vs Baijnath Tanti II (2018) CPJ 95 (NC) observed that the insurance Company have not field any affidavit of treating doctor to substantiate its claim that the DLA was suffering from Tuberculosis before taking health cover and had suppressed the same at the time of submitting declaration of good health in connection with revival of Insurance Policy and held that as there is no affidavit of treating doctor was filed to prove the treatment record, the same cannot be relied upon to the extent of disallowing the death claim. The National Commission also observed in this Judgment that In cases of revival of policy, the company must have been satisfied with the evidence submitted by policy holder pertaining to health else would have rejected the revival which it is fully authorized to do so. The Hon’ble National Commission in recent judgment of Life India Corpn of India V/s P.R. Sumangla III (2018) CPJ 106 (NC) had held that in view of the fact that LIC had not filed any document or proof to show that the complainant had knowledge of disease of diabetes pre-existing before the date of proposal form and no record of treatment prior to taking of insurance cover was submitted by LIC, no question of suppression of the fact of his diabetes arises as held by Hon’ble NCDRC in its earlier case decided in RP No. 2157/2014 New India Insurance Ltd. V/s Rakesh Kumar in which the Hon’ble National Commission has held that even if the complainant is diabetic he may not be knowing of his disease and the insurance company has to prove beyond doubt that he had knowledge of his illness of diabetes prior to filling of proposal form (i.e. pre existing in nature). In all the aforesaid cases the Revision Petitions were dismissed on ground of repudiation of claim not justified by Hon’ble National Commission.

The Hon’ble National Commission in Gudela Siva Vs Birla Sun Life Insurance Company Ltd III (2018) CPJ 465 (NC) was faced with similar issue of repudiation of death claim on grounds of pre-existing DM however the Hon’ble National Commission, after appreciating and perusing the medical record of the DLA which were completely devoid of laboratory investigation to prove DM-type II, in light of the judgment of Hon’ble Supreme Court in LIC Vs Asha Goel AIR 2001 SC 549 in which the Hon’ble Supreme Court held that matter of repudiation of policy should not be dealt with in a mechanical and routine manner, but with extreme care of caution and claim cannot be repudiated without any proof of previous ailment, held that OP had failed to produce any tangible evidence to prove that the deceased had withheld information about her longstanding diabetic status and treatment and thereforerepudiation of claim was unjustified. Further the Hon’ble Supreme Court in the case of P. Venkat Naidu Vs Branch Manager LIC Kurnool in Civil Appeal no. 7437/2011 decided on 26.08.2011 held that onus was on the OP to produce cogent evidence to prove the allegations of pre-existing illness to prove its case.

The Hon’ble National Commission in the latest judgment of Neelam Chopra Vs LIC of India IV (2018) CPJ 321 (NC) was faced with a similar complaint wherein the insurance company had repudiated the claim of the complainant on ground of concealment of pre existing ailment of diabetes and LL Hansen diseases though the cause of death of DLA was cardio respiratory arrest. In this case the Hon’ble National Commission, after having considered arguments of both sides and examining the medical certificate which clearly mentioned that though DLA was suffering from diabetes, it was under control guided by decision of Hon’ble Delhi High Court in Hari Om Agarwal Vs Oriental Insurance Co. Ltd. in Writ Petition (C) no 656/2007 decided on 17.09.2007 had observed that diabetes and hypertension are common lifestyle diseases and insurance claim cannot be denied on such grounds though it does not give any right to the person insured to suppress information in respect of such diseases. The Hon’ble National Commission further placed reliance upon judgment of Hon’ble Supreme Court in Sulbha Prakash Motegaonkar Vs LIC of India in Civil Appeal No 8245/2015 decided on 05.10.2015 in which the Hon’ble Supreme Court, observing that it was not the case of insurance company that the deceased was suffering from life threatening disease which caused his death since the cause of death was ischaemic heart disease and myocardial infarction, held that repudiation of insurance claim was incorrect and not justified. The observation of Hon’ble Supreme Court clarifies that suppression of any information relating to pre-existing disease if it has not resulted in death or no direct relationship to cause of death would not completely disentitle the claimant for the claim. The Hon’ble National Commission therefore in Neelam Chopra (Supra) case while observing that even though the DLA was suffering from diabetes for some time, the same being under control, held that non disclosure of the same will not totally disentitle the complainant for indemnification of claim in the light of Hari Om (Supra) Judgment of Hon’ble Delhi High Court and also the cause of death being unrelated to the diseaseswhich was not active at the time of death in light of Sulbha Prakash (Supra) judgment of Hon’ble Supreme Court.

Another vital fact pertinent to the present case is the factum of renewal of insurance policy of the complainant’s husband for the period of 2013-2014, previously taken for the period 2012-2013. The Hon’ble National Commission in National Insurance Co. Ltd Vs Shyam Babu I (2018) CPJ 198 (NC) observed in the case where the insurance company had repudiated the claim under mediclaim policy on ground of pre-existing diseases, that the insurance company having renewed the same policy for the next year as well is stopped from blindly repudiating the claim on grounds of non disclosure of disease. The Hon’ble NCDRC in the said case therefore affirmed the orders of Hon’ble Delhi SCDRC and District Forum New Delhi. In our view too, it is strange that OP has taken a dual stand of on one hand renewing the policy of the complainant and her husband and on the other hand repudiating the claim on ground of pre-existing disease thereby blowing hot and cold which it cannot be allowed as it is apparent from the conduct of OP, its intention to pocket the premium without taking necessary precaution to ensure whether its prospective customers are fit to take the policy and when such claims like this arise, OP very conveniently repudiates the same whimsically and mechanically.

10.  In the present context, based on the above exhaustive discussion of the case laws and settled proposition therein by Hon’ble  Supreme Court, Hon’ble National Commission & Hon’ble Delhi High Court applied as relevant to the case in hand the OP has failed to place on record either any affidavit of the treating doctor who had treated complainant’s husband for diabetes at any point of time at Yashoda  Hospital or elsewhere or examined any official of said hospital to prove authenticity of medical documents which the OP relied upon before us in support of its defence and in the absence of any such evidence we do not find force to validate the repudiation letter dated 01.08.2014 issued by OP to complainant for declining her claim of reimbursement of medical expenses to the tune of Rs. 1,97,478/-  incurred on the treatment undergone by the complainant’s husband in Yashoda Hospital from 18.03.2014 to 02.04.2014 on flimsy grounds of pre-existing diabetes merely on the basis of mere averment / plea of complainant’s statement which the OP failed to produce or establish as also any statement of Dr. Anil Jain who the complainant was allegedly consulting as per OP for diabetes and in total disregard to the Yashoda Hospital treating doctor’s own statement relied upon OP by itself that DLA was not needing any anti diabetic and was admitted after being diagnosed with tubercular meningitis in disoriented state and was admitted in ICU.

The judgment of Satwant Kaur Sandhu vs New India Assurance Co. Ltd. passed by Hon’ble Supreme Court relied upon by OP is not applicable in present case since in the judgment relied upon by OP the cause of death was due to chronic renal failure and the DLA had suppressed the factum of suffering from chronic diabetes nephropathy and renal failure being on regular haemodialysis and therefore the diseases and the cause of death had direct correlation with each other unlike the present case.

11.  We therefore, find OP guilty of deficiency in service in wrongful, unjustified and unsubstantiated repudiation of the claim of complainant and allow the present complaint and direct the OP to pay a sum of Rs. 1,97,478/- to complainant towards reimbursement of the medical expenses incurred by her deceased husband at Yashoda Hospital, Ghaziabad in capacity of having being insured with OP for the given period. We further direct the OP to pay a sum of Rs. 20,000/- to complainant towards suffering of mental pain, agony and financial turmoil and Rs. 10,000/- towards litigation charges to the complainant, in addition to the mediclaim reimbursement.  Let the order be complied with by OP within 30 days of receipt of copy of this order.
12.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
13.   File be consigned to record room.
14.   Announced on 07.02.2019. 

 

(N.K. Sharma)     President

(Sonica Mehrotra) Member