Delhi

North East

CC/86/2019

Sh. Himanshu Sharma - Complainant(s)

Versus

ICICI Lombard, General Insurance Co. Ltd. - Opp.Party(s)

22 Dec 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

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

 

Complaint Case No.86/19

 

 

In the matter of:

 

1.     2.     3.     4.	Sh. Himanshu Sharma, S/o Shri Ramesh Chand Sharma,   Smt. Sapna Sharma, W/o Himanshu Sharma,   Master Vibhav Sharma (Minor) S/o Himanshu Sharma,   Baby Lavanya Sharma (Minor) D/o Himanshu Sharma, All R/o House No. 1, Main Anarkali Bazar, Aram, Park, Delhi-110051	Complainants
	Versus
1.	ICICI Lombard General Insurance Company Ltd., Branch Address At: 1st Floor, Unit-101, Station Box At Metro Station, Dilshad Garden, New Delhi-110095	Opposite Party

 

DATE OF INSTITUTION:                                     JUDGMENT RESERVED ON:                                                      DATE OF ORDER :	31.08.2019                  24.11.2022                  22.12.2022

CORAM:

Sh. Surinder Kumar Sharma, President

Sh.Anil Kumar Bamba, Member

Ms.Adarsh Nain, Member

 

 

ORDER

            Ms. Adarsh Nain, Member

The Complainant has filed the present complaint under Section 12 of the Consumer protection Act, 1986.

Case of the Complainant

1.  The case of the Complainants as revealed from the record is that the Complainant no. 1 and 2 are husband and wife and they are also representing Complainants no.3 and 4 who are minors. It is stated that the Complainant no. 1 had availed health benefits insurance policy i.e. Happy Family Floater-2015 vide policy no. 214303/48/2018/4310 has sum assured of Rs. 6,00,000/- from the Oriental Insurance Company Ltd. for himself and his family. It is further submitted that the Complainant no. 1 didn’t have left side kidney by birth and the said fact was within the knowledge of the Oriental Insurance Company. It is submitted that during the subsistence of the earlier policy, the Complainant had suffered from “Dengue” and he was given the benefits and claim under the policy that time. It is alleged that in the month of November, 2018 an agent of the Opposite Party approached the Complainant no. 1 and offered to port his policy from the “Oriental Insurance Company Ltd.” to the Opposite Party as the Opposite Party was offering the health cover of Rs. 10,00,000/- and the Complainant no. 1 had to pay very less amount as extra premium in comparison to the earlier policy with “The Oriental Insurance Company Ltd.”  Apart from that, all the benefits were the same. It is stated that the Complainant no. 1 agreed to the offer and paid Rs. 22,217/- to the Opposite Party and his earlier policy was converted as per the terms agreed upon between the parties and he was handed over the policy documents vide policy no. 4128i/P-iH/159714457/00/000 dated 29.11.2018 for a period of 1 year. It is submitted that the Complainant No. 1 had handed over the photocopy of the earlier policy showing the previous claims and also handed over the medical documents along with the report dated 20.09.2013 showing “The left kidney is not visualized in the left fossa region.” It is further alleged that the said fact was duly disclosed to the agent also. The policy with the Opposite Party was duly issued to the Complainants by the Opposite Party after verifying all the requisite documents etc. During the subsistence of the policy with the Opposite party, the Complainant no. 1 fell sick and was admitted to Max Hospital, Vaishali on 17.02.2019 and after his medical tests, it was found that he had “Chronic Liver Disease” and other related illness. It is alleged that on 19.02.019, the Complainant No. 1 was informed that his claim has been rejected on the ground that the fact of Complainant No. 1 having “solitary kidney” was not disclosed to the Opposite Party. It is alleged that the claim was rejected and policy was declared null and void without giving any show cause/opportunity to the Complainants of being heard with malafide intentions. The Complainant no. 1 had to bear all his expenses on his own and the Opposite Party broke the trust of the Complainants. The complainant also served a legal notice upon the Opposite party but Opposite party did not release the claim amount nor bothered to give any reply. Hence, the present complaint has been filed with the prayer to direct the Opposite Party to pay a sum of Rs. 10,00,000/- along with interest @ 18 % p.a. as compensation for mental and physical harassment, to restore the above said policy of the Complainants and to pay a sum of Rs. 50,000/- to the Complainant as litigation charges.

Case of Opposite Party

2. The Opposite Party contested the case and filed written statement taking preliminary objections that there is no deficiency on their part. On merits, it is averred by the Opposite Party that the claim of the complainant was repudiated on the ground of deliberate concealment of the fact in the Insurance proposal form that the complainant has only one kidney since birth. It is further averred that the claim of the complainant is not maintainable in view of part III, Clause 1 of the terms and conditions of the policy. Hence, the complaint is liable to be dismissed.

Rejoinder to the written statement of Opposite Party

3. The Complainant No.1 filed rejoinder to the written statement of Opposite Party wherein the Complainant has denied the pleas raised by the Opposite Party and has reiterated the assertions made in the complaint.

Evidence of the Complainant

4. The Complainant No.1 in support of his case filed an affidavit wherein he has supported the assertions made in the complaint. In support of his contentions, the complainant has inter alia relied upon and marked the documents namely copy of policy issued by OP, copy of earlier policy, medical Report and documents, Repudiation letter, and copy of legal notice etc.

Evidence of the Opposite Party

5. In order to prove its case, Opposite Party has filed affidavit of Shri. Deepak Bansal, Manager Legal at ICICI Lombard General Insurance Company Ltd. having office at 4^th Floor, Parasvnath Tower, Red Fort Capital, Gole Market, New Delhi,  wherein the averments made in the written statement have been supported. In support of their contentions, the Opposite party has relied upon the documents namely copy of Insurance proposal form with portability form, copy of investigation Report of the OP, copy of policy wordings etc.

Arguments and Conclusion

6. We have heard the Complainant and Opposite Party. We have also perused the file.
7. The case of the Complainant is that the complainant purchased health insurance policy from Oriental Insurance General Insurance Company Ltd. and ported the same to ICICI Lombard General Insurance Company Ltd., Opposite Party as the complainant was offered to have same benefits on payment of less amount as extra premium in comparison to old policy. During the subsistence of the said health policy with the opposite party, the complainant fell sick and allegedly, his claim was rejected stating that the fact of Complainant No. 1 having “solitary kidney” was not disclosed to the Opposite Party and the policy was declared null and void without giving any show cause/opportunity to the Complainants of being heard.
8. The case of the opposite party is that the claim of the complainant was rightly repudiated due to deliberate concealment and non-disclosure of the material facts in the insurance proposal form that the complainant has only one kidney since birth and the policy was declared null and void in view of part III, Clause 1 and clause 13 (a)of the terms and conditions of the policy. The relevant extract is reproduced hereunder:

Part III of the policy General terms and conditions

             Clause-1:  Incontestability and Duty of Disclosure

The Policy shall be null and void and no benefit shall be payable in the event of untrue or incorrect statements, misrepresentation, mis-description or on non-disclosure in any material particular in the proposal form, personal statement, declaration and connected documents, or any material information having been withheld, or a Claim being fraudulent or any fraudulent means or devices being used by You or any one acting on your behalf to obtain any benefit under this Policy.

Clause 13: Cancellation/termination

(a) “Disclosure to information norm

The Policy shall be void and all premium paid hereon shall be forfeited to the company, in the event of misinterpretation, mis-description or non-disclosure of any material fact”.

9. From the perusal of the pleadings and evidence led by the parties, it is revealed that it is undisputed that the complainant’s claim arose during the subsistence of a valid policy with the opposite party company.
10. The only issue which is to be decided is that whether the reimbursement claim was rejected validly by Opposite Party leading to declaring the policy itself as null and void.  The case of Opposite party is that the claim of the claimant was rejected on the ground that at the time of obtaining the subject health policy, the Complainant has concealed the material fact that he has solitary kidney while  it is the case of the Complainant that it was already in the knowledge of the Opposite party as he had ported the previous policy from other insurance company to the opposite company and at the time of portability, the complainant handed over the copy of earlier policy showing previous claims and also the relevant medical documents. 
11. On perusal of the pleadings, it is revealed that the Opposite party has filed a portability form along with proposal form which shows that the intention was always to port the erstwhile policy to the subject policy andthe Policy document issued by the opposite party also contains particulars of the erstwhile policy of the complainant.
12. It is further important to note that the Policy wordings relied upon by the Opposite party, defines Portability in definitions section, part II of the policy as below:

 

1. Definitions

Portability means the right accorded to an individual health insurance policyholder (including family cover), to transfer the credit gained for pre-existing conditions and time bound exclusions, if the Policy holder chooses to switch from one insurer to another insurer or from one plan to another plan of the same insurer, provided the previous policy has been maintained without any break.

13.  It is clear from the above wordings that with the portability, the policy holder becomes entitled to credit gained for pre-existing conditions and time bound exclusions under the erstwhile policy. Once, any Policy is issued under the portability scheme, it is presumed that earlier policy has been taken into account. Therefore, the Opposite party cannot be allowed to contend that relevant medical documents were not provided as first, it was their duty to confirm and verify all the relevant details under the old policy before porting the same. From the perusal of the old policy, it is observed that the details of previous claims passed have been mentioned. In view of that, the contention of the Opposite Party deserves to be rejected that they did not have the knowledge of pre-existing disease. Moreover, once they are accepting the premium for porting the erstwhile policy, they are transferring all the benefits gained under that policy. Hence, at the time of the claim, the Opposite party cannot be allowed to say that the fact was not disclosed while the medical documents on the basis of which the previous claim was passed, clearly mentioned the fact of complainant having one kidney. Hence, the Opposite Party cannot be allowed to avoid the liability to pay the claim under the policy. Once the portability scheme was accepted by the Opposite party, then they had no right to decline the claim if the same is within the terms and condition of the policy. The complainant is entitled to the credit gained by him under the old policy for per existing conditions and time exclusion in the old policy before shifting to the Opposite Party company by way of portability.
14. Therefore, in view of the above discussion and the evidence led by the Opposite Party, we are of the considered opinion that since the Opposite party had issued the Policy under Portability scheme which renders the complainant entitled to the credit gained by him under the old policy for per existing conditions and time exclusion in the old policy, the Opposite party has wrongly rejected the claim of the complainant and declare the policy null and void. The Opposite party has been deficient in services by rejecting the claim of the complainant, causing mental agony and torture to the complainant, hence, liable to pay the claim and restore/revive the policy in question as valid.

 

15. Accordingly, we allow the complaint and direct the Opposite Party to restore/revive the policy no. 4128i/P-iH/159714457/00/000 dated 29.11.2018 with all the consequential benefits thereunder and further direct the Opposite party to process the claim afresh upon within 30 days from the date of the receipt of the order. Opposite party is further directed to pay Rs.25000/- towards compensation and litigation cost. OP is liable to pay the same within a period of 4 weeks from the date of receipt of order. In case of delay in the payment beyond 4 weeks OP will be liable to pay interest @6% p.a. for the delayed period.
16. Order announced on 22.12.2022.

Copy of this order be given to the parties free of cost.

File be consigned to Record Room.

 

(Anil Kumar Bamba)           Member

(Adarsh Nain)       Member

(Surinder Kumar Sharma) President