Punjab

Rupnagar

CC/15/97

Chetan Aggarwal & Another - Complainant(s)

Versus

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

Sh. Kamal Saini, Adv.

25 Nov 2016

ORDER

BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR

 

                                      Consumer Complaint No. :  97 of 17.11.2015

                                      Date of decision                : 25.11 .2016

 

1. Chetan Aggarwal, aged about 59 years, son of Bhagwan Dass Aggarwal, resident of House No.337, Giani Zail Singh Nagar, Rupnagar, Tehsil & District Rupnagar.

2. Neelam Aggarwal, wife of Chetan Aggarwal, aged about 59 years, son of Bhagwan Dass Aggarwal, resident of House No.337, Giani Zail Singh Nagar, Ropar.  

                                                                                     ......Complainants

                                             Versus

1.  The Branch Manager, ICICI Lombard General Insurance Cooperative Ltd,    SCO No.20, 2^nd floor Beant Singh Aman Nagar, Bela Chowk, Rupnagar, Tehsil & District Rupnagar.  

2. ICICI Lombard, House No.414, Veer Savarkar Marg, Near Sidhi Vinayak Temple Prabhadevi Mumbai .

3. Rajinder Singh, agent code 5790506  C/o Branch Manager, ICICI Lombard General Insurance Co. Ltd SCO No.20 2^nd floor, Beant Singh Aman Nagar, Bela Chowk, Rupnagar, Tehsil & District Rupnagar. 

4. Manish Kumar Chabba, agent code 8247111, Branch Manager, ICICI Lombard General Insurance Co. Ltd SCO No.20 2^nd floor, Beant Singh Aman Nagar, Bela Chowk, Rupnagar, Tehsil & District Rupnagar 

 

                                                                                       ....Opposite Parties

 

                                       Complaint under Section 12 of the                                                                     Consumer Protection Act, 1986

 

QUORUM

                             MRS. NEENA SANDHU, PRESIDENT

                             MRS. SHAVINDER KAUR, MEMBER

 

ARGUED BY

Sh. Kamal Saini, Advocate, counsel for complainants

Sh. Ajay Talwar Advocate, counsel for Opposite Parties No. 1 & 2

Complaint against O.Ps. No.3 & 4 stands Dismissed as Withdrawn vide order dated 3.2.2016.

 

 

ORDER

                                      MRS. NEENA SANDHU, PRESIDENT

 

Sh. Chetan Aggarwal & Neelam Aggarwal have filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘the O.Ps.’) praying for issuance of the following direction to them:-

i)       To pay medical expenditure/claim of Rs.3,40,153/- along with interest 18% w.e.f. 29.09.2015 i.e. the date of filing of complaint bearing No.58/2015 

ii)      To pay Rs.1,00,000/- as compensation for harassment caused to him,

iii)     To pay Rs.25,000/- as litigation expenses,

iv)     Any other relief which this Hon’ble Court may deems fit may be granted to him,

 

2.                    In brief, the case of the complainants is that they came in contact with O.Ps. No.3 & 4, who introduced themselves as /promoter/advisor of ICICI Lombard General Insurance Co. Limited. The O.Ps. No.3 & 4 have given the health insurance plan to the complainants.     On their assurance, the complainants got themselves insured under health insurance policy (Renewable), had filled proposal form and paid premium amount of Rs.15,412/-. After sometime they received health insurance renewable policy bearing No.4034i/FPT/05816537/00/000, valid for the period from 3.2.2011 to 2.2.2012.    He paid the premium for the renewal of said policy for the period from 3.2.2012 to 2.2.2013 and the O.Ps.  issued a policy bearing No.4034i/FPR/70218719/00/000.      They again got said policy  renewed  for  the  period  from  4.2.2013  to 3.2.2014

           and the O.Ps. issued a policy bearing No.4034i/CHI/77405619/00/000. They got it renewed again and O.Ps. issued a policy bearing No. 4128i/HPR/86811502/00/000 for the period from 4.2.2014 to 3.2.2015. They were having another health insurance policies bearing No. No.4113i/XOL/05815486/00/000, which was valid for the period from 3.2.2011 to 2.2.2012. They got it renewed having policy No.4113i/XOL/69821070/00/000, for the period from 6.2.2012 to 5.2.2013 and the same was further renewed vide policy No.4183i/XOL/77402477/00/000 for the period from 6.2.2013 to 5.2.2014. They further got it renewed for a period from 6.2.2014 to 5.2.2015 and the O.Ps. issued a policy  bearing No.4113i/XOL/77402477/01/000.  It is further stated that they received a letter dated 9.11.2013 from the O.Ps. in which it was clearly stated that their policy No.4034i/CHI/77405619/00/000 with subject new health plan with enhanced features they gave some mandatory changes as applicable in all the health policies are listed below:-

i.   Lifetime Renewability

ii. No Claims based loading on renewals

iii. Additional sum insurance of 10% of annual sum insurance.

In the said letter, it was also stated that their current plan would continue until but not beyond, the next renewal date and they would be entitled to continuity benefit on pre existing deceases and other time bound exclusion etc.  In the month of May 2013, the complainant No.2 namely Neelam Rani. She suffered from some illness, initially took treatment from Parmar Hospital and CA Breast was deducted and thereafter, she started taking treatment from PGIMER, Chandigarh. All the medicals bills/claims amounting to Rs.3,40,153/- in original along with prescription of the doctors were sent to the O.Ps. But the O.Ps. repudiated the claim vide letter No.77405619 dated 11.4.2014 against the policy No.4034I/CHI/77405619/00/000, having coverage period of 4.2.2013 to 3.2.2014. In the said letter it was stated that “rejected as per insured she is K/C/O Hypertension since Feb 2008 and is on regular medication, As per OPD consultation papers of PGI patient is K/C/O of HTM for the last 5 years and is on regular medication, which falls 48 months prior to the date of inception of policy i.e. 3.2.2011. Incontestability and duty of disclosure the policy shall be null and void no benefits shall be payable in the event of untrue and incorrect statement, misrepresentation, mis description, or non disclosure in any material.

The reason given for repudiation of the claim are baseless, illegal and just to get rid from their legal liability to pay the amount, which was incurred on the treatment of the complainant No.2. The complainants have received a letter dated 11.8.2014, from the O.Ps. vide which the O.Ps. informed the complainants regarding termination of health insurance policy No.4128i/HPR/86811502/00/000. The sum insured was of Rs.4,00,000/- for the policy bearing No. 4034i/FPT/05816537/00/000, which was renewed by the O.Ps. till 2015. The complainants had also taken another medical insurance health policy bearing No.4113i/XOL/05815486/00/000 for the period from 3.2.2011 to 2.2.2012 and got renewed vide policy No.4113i/XOL/69821070/00/000 for the period from -06.02.2012 to 05.02.2013, it was further renewed vide policy No.4183i/XOL/77402477/00/000 for the period from 04.02.2013 to 05.02.2014. They further renewed the policy having policy No. No.4113i/XOL/77402477/01/000 for the period from 06.02.2014 to 05.2.2015 continuously and the sum assured was Rs.10 Lacs. By not paying the insured amount, the O.Ps. have committed deficiency in service, unfair trade practice, maltreatment, mal practice and lacuna on the part of the O.Ps. It is further stated that earlier the complainant had filed a complaint No.58 of 2015 titled as Chetan Aggarwal etc Vs The Branch Manager ICICI Lombard etc, before the District Consumer Disputes Redrssal Forum, Ropar, for claiming the repudiated the claim i.e. Rs.3,40,153/-. The said complaint was withdrawn by him with the permission to file a fresh complaint and same was granted by the Hon’ble Forum vide order dated 29.9.2015. It is further stated that the O.Ps. are legally bound to pay the expenditure incurred by the complainants on the treatment of the complainant No.2. But the O.Ps. illegally repudiated the claim of the complainants against the policy No.4034i/CHI/77405619/00/000 having coverage period from 4.2.2013 to 3.2.2014 just to save their skin from paying the treatment expenditure of the complainant No.2. Hence, this complaint.  

3.                On being put to notice, the O.Ps. No.1 & 2 have filed written version taking preliminary objections; that the complaint is not maintainable before this Forum; that complainants have no locus standi to file the present complaint as they have already filed a complaint/application under Section 22-C, Legal Services Authorities Act, 1987 before the Permanent Lok Adalat, Rupnagar, on the same cause of action; that they have concealed material facts from the Ld. Forum, thus are not entitled for any relief; that they have not come to the Forum with clean hands; that as per the medical record, Neelam Rani is K/C/O of hypertension since, February 2008 and is on regular medication. As per the OPD consultation paper of PGI patient is K/C/O of HTN and is on regular medication for the last 5 years, which shows that complainant No.2 was suffering from the ailment of hypertension 48 months prior from the date of inception of the policy i.e. 3.2.2011; that  contract of insurance is based upon the principle of utmost good faith and the complainants were duty bound to disclose all the facts regarding his health correctly and diligently, but the complainants have concealed and suppressed the material fact from the O.Ps. at the time of taking the insurance policy.  On merits, it is denied that the O.Ps. No3 & 4 allured the complainant to purchased the policy from the O.Ps. No.1 & 2. On 3.2.2011, the complainants submitted a proposal form No.FPO-0279292 for Health Insurance “Family protect for one year” cover along with premium of Rs.15,412/-, at the time of the proposing the policy. Thereafter, the O.Ps. issued policy No.4034i/FPT/05816537/00/000 for the period of 3.2.2011 to 2.2.2012 and it is correct that the policy was got renewed for the period from 3.2.2012 to 4.2.2013 and again renewed for the period from 4.2.2013 to 3.2.2014.The complainants further got renewed having policy No.4128i/HPR/85811502/00/001 and the same was cancelled vide letter dated 11.8.2014 and the premium of Rs.29,455/- was refunded vide cheque No.008194 vide letter dated 11.9.2014. It is admitted that a policy bearing No. 4113i/XOL/05815486/00/000, to the complainants period of 3.2.2011 to 2.2.2012, which was renewed for the period from 6.2.2013 to 5.2.2014. It was further renewed for the period from 06.02.2014 to 5.2.2015. It is further stated that after perusal of the documents annexed along with the claim lodged by the complainants for the refund of the amount of Rs.3,40,153/-, incurred on the treatment of the complainant No.2, allegedly taken in PGI, Chandigarh, it was found that complainant No.2, Neelam Rani was suffering from Hypertension for the last 5 years and was on regular medication. The said fact was not disclosed at the time of proposing the policy. The complainant No.2 also submitted questionnaire in which she further disclosed about Hypertension, since Feb 2008 and also disclosed that she was on regular medication. Thereafter, the claim of the complainant was repudiated vide letter dated 9.4.2011, as per the terms and condition of the policy and intimation for the same was duly given to the complainants. Even the O.Ps. have rightly terminated the health insurance policy bearing No.4128i/HPR/86811502/00/000. Rest of the allegations made in the complaint have been denied and a prayer has been made for dismissal thereof.  

4.                On being called to do so, the learned counsel for the complainants tendered affidavit of complainants Ex.C1 & Ex.C2 along with documents Ex.C3  to Ex.C34 and closed the evidence. On the other hand, the learned counsel for the O.Ps. No.1 & 2 tendered affidavit of Ms. Meenu Sharma, Authorized Signatory, ICICI General Insurance Ltd Ex.OP-1, along with documents Ex.OP2 to Ex.OP8 and closed the evidence. The learned counsel for complainants has suffered a statement, which has been recorded separately to the effect that since the complainants has not found at the present address of O.Ps. No. 3 & 4, therefore, at this stage, he withdrew the complaint filed against the O.Ps. No.3 & 4.

 

5.                We have heard the learned counsel for the parties and have gone through the record, carefully.

6.                 At the outset, the learned counsel for the O.Ps. raised the objection that the complainants have no locus standi to file the present complaint before this Forum, because on the same cause of action, they have already filed a complaint/application under Section 22 (c) of Legal Service Authorities Act, 1987, before the permanent Lok Adalat, Rupnagar, and prayed that the present complaint may kindly be dismissed being not maintainable.

To this effect, the learned counsel for the complainants submitted that the complainants have filed complaint/application before the permanent Lok Adalat, Rupnagar, for different cause of action. In the said complaint, prayer has been made for issuance of the directions to the O.Ps. for renewal of terminated policy bearing No. 4128i/HPR/86811502/00/000 pertaining to the period from 4.2.2014 to 3.2.2015 and to renew the insurance policy with effect from 3.2.2015 till life time of complainants. To pay amount of expenditure incurred on the treatment except Rs.3,40,153/-, Rs.5,00,000/- as compensation for harassment and Rs.1,00,000/- as litigation expenses along with interest @ 18 % per annum. Whereas, in the present complaint, prayer has been made for issuance of directions to the O.Ps. to pay the claim amount of Rs.3,40,153/- against the policy bearing No. 4034i/FPR/70218719/00/000 pertaining to the period from 4.2.2013 to 3.2.2014.

We find force in the contention of the learned counsel for the complainants because in the present complaint case, the relief has been sought by the complainants with regard to the policy bearing No. 4034i/FPR/70218719/00/000 pertaining for the period from 4.2.2013 to 3.2.2014. However, in the complaint/application filed before the Permanent Lok Adalat, the relief sought with regard to policy bearing No.  4128i/HPR/86811502/00/000 pertaining to the period from 4.2.2014 to 3.2.2015.  As such, it cannot be said that the complainants have filed the complaint before this Forum and before the Permanent Lok Adalat, on the same cause of action. Thus, the objection raised by the learned counsel for the O.Ps. is baseless. Hence, rejected.

On merits, the learned counsel for the O.Ps. No.1 & 2 vehemently argued that as  per medical record, complainant No.2 was suffering from hypertension and was on medication, for the last five years from the date of inception of the policy. The said fact was not disclosed by the complainants at the time of taking the policy in question and the O.P. No.2 have rightly repudiated the claim vide letter dated 29.5.2013 and prayed that complaint be dismissed being devoid of merits.    

On the contrary, the learned counsel for the complainants submitted that although, the O.Ps.  No.1 & 2 have alleged that in the proposal form, the complainants have not disclosed that the complainant No.2 was suffering from hypertension for the last five years and was taking medicine regularly, yet have not placed on record the copy of the said proposal form.  He further submitted that the complainant No.2 was suffering from breast cancer was detected, for the first time in the year 2013 i.e. during the subsistence of the policy in question, as such, it cannot be said to be  pre existing disease. Even otherwise, no document or medical literature has been placed on record by the O.Ps. No.1 & 2 to show that hypertension is the cause of breast cancer. He further submitted that even for the arguments sake if we believe that the complainants at the time inception of the policy have concealed this fact that complainant No.2 was suffering from hypertension, even then, the insurer cannot avoid consequences of insurance contract by simply showing inaccuracy or falsity of statement. Because the O.Ps. No.1 & 2 were to prove that the suppression was of material fact. Since, the complainant No.2 has suffered from breast cancer and the O.Ps. No.1 & 2 have failed to prove that the hypertension is the cause of breast cancer. Therefore, it cannot be said that the complainants had concealed the material facts from the O.Ps.  No. 1 & 2at the time of taking the policy, as such, they were not justified in repudiating the claim. Therefore, they be directed to settle the genuine claim as per the terms and condition of the policy. They be also directed to pay compensation on account of mental agony and physical harassment along with cost of litigation.

Admittedly, complainants purchased the health insurance policy for the first time in the year 2011 and got it renewed from time to time till 2015. The question for determination is whether repudiation of claim of the complainants by the O.P. No. 2, on the ground of concealment of material facts was justified or not. From the outpatient card dated 21.5.2016, Ex.OP5, it appears that Smt. Neelam Aggarwal, i.e. complainant No.2 was suffering from hypertension from last 5 years and was on medication. The plea of the O.Ps. No.1 & 2 is that in proposal form No. FPO-0279292 filled in by the complainants at the time of taking of the insurance policy, they have not disclosed the fact that complainant No.2 was suffering from hypertension since 2008. However, the O.Ps. No.1 & 2 have not placed on record the proposal form to show that the insured had given the answer in negative in response to the question, whether the insured had ever been treated for hypertension. Thus, in the absence of proposal form, the plea of the O.Ps. No.1 & 2 cannot be taken as gospel truth. Moreover, in the case of suppression of material fact heavy burden lies on the insurer and in such cases, insurer is required to prove the same. It may be stated that in catena of judgments, the Hon’ble Superior Fora/Courts have already held that maladies like diabeties, hypertension being normal wear and tear of life cannot be termed as concealment of pre existing disease and non mentioning of said diseases in proposal form by the insured does not amount to suppression of material fact or misstatement in real sense. Insured not suppose to disclose minor problems of life unless patient hospitalized or underwent operation for some diseases. Even otherwise, in the present case, complainant No.2 has been suffering from breast cancer, was detected for the first time in the year 2013, i.e. during the subsistence of the policy. No document or medical literature has been produced by the O.Ps. No.1 & 2 to show that hypertension is the cause for breast cancer. Taking these facts into consideration, complainants cannot be said to be guilty for misrepresentation, the O.Ps. No.1 & 2, thus, were not justified in repudiating the claim of the complainants and are liable to pay the claim amount, as per terms and conditions of the insurance policy. They are also liable to pay the compensation on account of mental agony and physical harassment suffered by the complainant along with cost of litigation.  

7.                In view of the aforesaid discussion, we allow the complaint against   the O.Ps. No.1 & 2 and they are directed in the following manner:-

1.       To pay the claim amount of Rs.3,40,153/-  to the complainants as per the policy terms and conditions of the policy along with interest @ 9% per annum from the date of repudiation of the claim i.e. 29.5.2013 till the date of actual payment.

          2.       To pay Rs.10,000/- as compensation.

          3.       To pay Rs.5000/- as litigation expenses.

The O.Ps. No.1 & 2 are directed to comply with the order within 30 days from the date of receipt of certified copy of the order.

8.                The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed & consigned to the Record Room.

 

ANNOUNCED                                                     (NEENA SANDHU)

Dated: 25.11.2016                                                PRESIDENT

 

                                                                            (SHAVINDER KAUR)

                                                                             MEMBER.