Chandigarh

DF-I

CC/297/2023

RAHUL AGGARWAL - Complainant(s)

Versus

ICICI LOMBARD GENERAL INSURANCE COMPANY LIMITED - Opp.Party(s)

DEVINDER KUMAR

01 Feb 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/297/2023
Date of Institution	:	11/06/2023
Date of Decision	:	01/02/2024

             

Rahul Aggarwal son of Sh. Pawan Kumar Aggarwal, aged about 50 years, r/o H. No.5764, Duplex Modern Housing Complex, Manimajra, Chandigarh.

… Complainant

V E R S U S

1.     ICICI Lombard General Insurance Company Limited, Plot No. 149, Fourth Floor, The Statement Industrial Area, Phase-I, Chandigarh through its Branch Manager.

2.     ICICI Lombard General Insurance Company Limited, Regd. Office, ICICI Lombard House, 414, Veer Savarkar Marg, Near Siddhivinayak Temple, Prabhadevi, Mumbai-400025 through its Managing Director.

 … Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	MRS. SURJEET KAUR	MEMBER
	SHRI SURESH KUMAR SARDANA	MEMBER

 

ARGUED BY	:	Sh. Devinder Kumar, Advocate for complainant
	:	Sh. Ankur Gupta, Advocate for OPs

 

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Rahul Aggarwal, complainant against the aforesaid opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under :-

1. It transpires from the allegations as projected in the consumer complaint that, in the year 2010, agent of Apollo Munich Health Insurance Company Limited (hereinafter referred to as “previous insurer”) approached the complainant and explained features of health insurance policy and on the said assurances, complainant agreed to purchase a health insurance policy for himself and his daughter.  The said policy was thereafter renewed by the complainant annually upto the year 2018, by paying huge premium and the copies of the policy documents are Annexure C-1.  In the month of February 2018, i.e. prior to expiry of the aforesaid health insurance policy, the agent of OPs had approached the complainant and explained features of their health insurance policy and allured him to port the policy from the previous insurer to the OPs and the complainant agreed to the same after completing all the formalities. Thereafter the complainant got the said policy ported with the OPs on 28.2.20218 and got renewed annually, from time to time, till February 2023, by paying huge premium amount without any break.  The last policy was valid w.e.f. 1.3.2022 to 28.2.2023 (Annexure C-2) (hereinafter referred to as “subject policy”), which was issued by the OPs on receiving huge premium amount of ₹38,936/-.  In the month of January 2023, complainant faced stiffness and pain in the right hip and accordingly visited the Max Healthcare Hospital, Mohali (hereinafter referred to as “treating hospital”) where the doctors conducted tests and advised him hip replacement. The complainant requested the OPs for cashless facility vide email (Annexure C-3) and on this OPs asked him to submit documents. As per direction of the OPs, complainant submitted all the documents and on receipt of the said documents, OPs vide email dated 4.2.2023 (Annexure C-5) approved the sum of ₹3,20,000/- for treatment of the complainant.  However, thereafter OPs rejected the cashless request vide email dated 7.2.2023 (Annexure C-6) on the ground that the complainant, at the time of inception of the policy, had not disclosed about the fact that he was suffering from HTN (hypertension) for 13 years.  On receipt of the said email, complainant contacted his doctor who issued certificate (Annexure C-7) clearly stating that hypertension was diagnosed only in January 2020 and he advised complainant with certain medicines.  After that the complainant sent the said certificate to the OPs with the request to reconsider request, but, the OPs failed to do so.  As per advice of the doctor, complainant was admitted in the treating hospital on 7.2.2023 where surgery was performed and he was discharged on 13.2.2023 as per discharge summary (Annexure C-8).  As the OPs failed to provide the cashless facility to the complainant, he was compelled to pay a sum of ₹3,81,950/- vide receipt (Annexure C-9), raised by the treating hospital and thereafter again spent an amount of ₹1,05,330/- on physiotherapy vide bills (Annexure C-10 to C-13) totaling ₹4,87,280/-.  However, the OPs instead of paying the genuine claim of the complainant, issued notice dated 10.3.2023 (Annexure C-16) with malafide intentions intimating about cancellation of the subject policy.  Thereafter, OPs vide letter (Annexure C-17) cancelled the subject policy and credited the premium amount of ₹40,598/- in the account of the complainant.  In this manner, the act of the OPs in rejecting/repudiating the claim of the complainant and cancelling the subject policy, despite of the fact that hypertension was detected in the year 2020 and not prior to that, amounts to deficiency in service and unfair trade practice. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OPs resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability, cause of action and concealment of facts.  It is alleged that, in fact, complainant did not disclose about the fact that he is known case of HTN (hypertension) since 12 years at the time of obtaining the policy, which fact was later on found during investigation and on that ground the cashless facility was denied to the complainant and the policy was cancelled.  On merits, admitted that the subject policy was issued to the complainant which was valid at the relevant time, but, alleged that as the complainant did not disclose the fact about his previous ailment i.e. hypertension for the last more than 12 years at the time of inception of the policy, the claim was rightly rejected/repudiated and the policy was cancelled as per the terms and conditions. On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. Despite grant of sufficient opportunity, rejoinder was not filed by the complainant to rebut the stand of the OP.

2. In order to prove their case, parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the parties and also gone through the file carefully.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the complainant had previously obtained a health insurance policy from the previous insurer in the year 2010 and got the same renewed from time to time, on payment of premium upto the year 2018 and thereafter the complainant ported the previous policy with the OPs, regarding which OPs had issued policy certificate i.e. subject policy (Annexure C-2) which was valid w.e.f. 1.3.2022 to 28.2.2023 and the complainant was hospitalized in the treating hospital w.e.f. 7.2.2023 to 13.2.2023 where surgery for “right total hip arthroplasty” was done and the said hospital raised bills of ₹3,81,950/- and ₹1,05,330/- totaling ₹4,87,280/-, and the cashless request of the complainant was denied by the OPs, vide letter dated 7.2.2023 (Annexure C-6) and later on finally rejected/repudiated claim of complainant vide letters dated 10.3.2023 (Annexure C-6 & C-17) and even cancelled the subject policy on the ground of non disclosure of earlier ailment of hypertension by the complainant for the last more than 12 years and the premium amount has already been credited in the account of the complainant, the case is reduced to a narrow compass as it is to be determined if the OPs are unjustified in cancelling the subject policy and rejecting/repudiating the claim of the complainant and the said act amounts to deficiency in service and unfair trade practice on their part and the complainant is entitled to the reliefs prayed for in the consumer complaint, as is the case of the complainant, or if the OPs have rightly rejected/ repudiated the claim of the complainant and cancelled the policy and the instant consumer complaint, being false and frivolous, is liable to be dismissed, as is the defence of the OPs.
   2. In the backdrop of the foregoing admitted and disputed facts on record, one thing is clear that the entire case of the parties is revolving around the terms and conditions of the subject policy, medical record, rejection/repudiation letter and cancellation of the policy letter and the same are required to be scanned carefully for determining the real controversy between the parties.
   3. Perusal of Annexure C-2 clearly indicates that under the subject policy, complainant and his daughter namely Dishita Aggarwal were covered and the same was valid w.e.f. 1.3.2022 to 28.2.2023. 
   4. Annexure C-6 is the letter dated 7.2.2023 through which the OPs had denied the cashless access request of the complainant and the relevant portion of the same reads as under :-

        “We refer to the pre-authorization request dated 07-FEB-23. We are in receipt of the documents submitted by you in support of your claim. On perusal of the same, we regret to inform you that your pre-authorization request is denied for the reason(s) mentioned herein below :-

Sr.No.	Reason	Description
1	Incontestability and Duty of Disclosure	1. As per the info available with us & AS PER DOCUMENTS FURNISHED Patient is k/c/o HTN for 13 YRS the same was not disclosed at the time of policy inception, as per clause PART III OF THE SCHEDULE 1: Incontestability and Duty of Disclosure: No benefit shall be payable in the event of untrue  or incorrect statements, misrepresentation, misdescription or on non-disclosure, hence Cashless request rejected.”

 

5. It is the defence of the OPs that the complainant was having pre-existing ailment i.e. hypertension from which he was suffering for the last 12 years regarding which the medical officer has also made reference in Annexure R-1.  However, perusal of Annexure R-1 further shows that the same was merely a questionnaire which was allegedly submitted by the OPs to the doctor of the treating hospital for his opinion. In order to counter Annexure R-1, complainant has also proved on record certificate dated 7.2.2023 (Annexure C-7) issued by one Dr. Parneesh Arora of The Heart Clinic, which clearly indicates that the complainant was diagnosed with hypertension in January 2020 and the said doctor had advised him medicines. The relevant portion of the aforesaid certificate is reproduced as under :-

                “This is to certify that Mr. Rahul Aggarwal consulted me for hypertension – diagnose in Jan 2020 and I advised him Amlodepine 5g and Nebirilal 5g which he has been taking regularly since then and his blood pressure is well controlled.”

 

6. Thus, one thing is clear from the aforesaid certificate (Annexure C-7) as well as the questionnaire (Annexure R-1) that the OPs are not able to prove on record that the complainant was actually suffering from hypertension for the last more than 12 years, especially when the evidence led by the OPs by placing on record the questionnaire (Annexure R-1) has been rebutted by the complainant through certificate (Annexure C-7).
7. Not only this, OPs had denied/rejected cashless facility to complainant vide letter dated 7.2.2023 (Annexure C-6) by relying upon Part III of Schedule I of the policy and thereafter had finally rejected the claim and cancelled the subject policy vide letters dated 10.3.2023 (Annexure C-16 & C-17).  However, surprisingly OPs have not proved on record the complete policy schedule as per which the claim of the complainant was denied and for that adverse inference has to be drawn against the OPs. 
8. Even for argument’s sake, if it is believed that the complainant was suffering from hypertension since last more than 12/13 years, even then when it has come on record in the discharge summary (Annexure C-8) of the treating hospital that the complainant was diagnosed with “RIGHT O.A. HIP” and had undergone surgery for “RIGHT TOTAL HIP ARTHROPLASTY”, it is clear that the same has no nexus with the alleged previous ailment.
9. Otherwise also, it has been held by the Hon’ble State Commission, Delhi, in the case titled S.S. Jaspal Vs. National Insurance Co. Ltd. & Ors., IV (2022) CPJ 26 (Del.) that common lifestyle disease like diabetes and hypertension, cannot be treated as pre existing diseases and cannot be a ground of repudiation of claim by Insurance companies. The relevant portion of the order is reproduced as under :-

 “Consumer Protection Act, 1986 - Sections 2(1)(g), 14(1)(d), 15 - Insurance (Mediclaim) -Angioplasty and Stenting - Suppression of pre-existing disease alleged - Repudiation of claim Deficiency in service - District Forum dismissed Complaint - Hence Appeal - Complainant experienced pain in chest and remained admitted in Hospital from 24.6.2004 to 30.6.2004, where he had undergone Angioplasty and Stenting, by incurring Rs.3,20,126 on treatment - Previous medical history is based upon information provided by family of patient - Respondents failed to show any evidence regarding pre-existing disease suffered by insured at time of getting policy - Common lifestyle disease like diabetes and hypertension, cannot be treated as pre existing diseases and cannot be a ground of repudiation of claim by Insurance companies - Respondents failed to show any evidence that any medical tests or examination was done, before issuing said policy in question - Respondents are directed to pay a sum of Rs.3,20,126 (Cost of Medical Expenses) to Appellant along with interest @ 6% p.a.”

10. Similarly, the Hon’ble National Commission in the case titled Sunil Kumar Sharma v. Tata AIG Life Insurance Company and Ors., Revision Petition No.3557 of 2013 decided on 1.3.2021, while dealing with the issue of pre-existing disease, has held as under:-

“14.   Moreover the claim had been repudiated only on the ground that the insured was suffering from diabetes for a long time. So far as life style diseases like diabetes and high blood pressure are concerned, Hon'ble High Court of Delhi in Hari Om Agarwal Vs. Oriental Insurance Co. Ltd., W.P.(C) No.656 of 2007, decided on 17.09.2007 held as under:

"Insurance – Mediclaim -Reimbursement-Present Petition filed for appropriate directions to respondent to reimburse
expenses incurred by him for his medical treatment, in accordance with policy of insurance - Held, there is no dispute that diabetes was a condition at time of submission of proposal, so was hyper tension - Petitioner was advised to undergo ECG, which he did - Insurer accepted proposal and issued cover note. It is universally known that hypertension and diabetes can lead to a host of ailments, such as stroke, cardiac disease, renal failure, liver complications depending upon varied factors. That implies that there is probability of such ailments, equally they can arise in non-diabetics or those without hypertension. It would be apparent that giving a textual effect to Clause 4.1 of policy would in most such cases render mediclaim cover meaningless. Policy would be reduced to a contract with no content, in event of happening of contingency. Therefore Clause 4.1 of policy cannot be allowed to override insurer's primary liability. Main purpose rule would have to be pressed into service. Insurer renewed policy after petitioner underwent CABG procedure. Therefore refusal by insurer to process and reimburse petitioner's claim is arbitrary and unreasonable. As a state agency, it has to set standards of model behaviour; its attitude here has displayed a contrary tendency. Therefore direction issued to respondent to process petitioner's claim, and ensure that he is reimbursed for procedure undergone by him according to claim lodged with it, within six weeks and petition allowed."

11. Further, the Hon’ble National Commission in the case titled as Neelam Chopra Vs. Life Insurance Corporation of India & Ors., IV (2018) CPJ 321 (NC) while dealing with the question of suppression/ non-disclosure of material facts has held as under :-

     12. In the present case, clearly the cause of death is cardio respiratory arrest and this disease was not existing when the proposal form was filled. Clearly, there is no suppression of material information in respect of this disease, which is the main cause of death. The other disease of LL Hansen, which was prevailing for five weeks on the date of admission on 1.8.2003 was also not existing when the proposal was filed by the DLA. The fact of DLA having been treated in the year 2002 for LL Hansen is not supported from any direct evidence though PGI Chandigarh in its certificate has mentioned that disease was treated in 2002. Moreover, this disease does not have any correlation with the cause of death in the present case. Hon’ble Supreme Court in Sulbha Prakash Motegaonkar and Ors. v. Life Insurance Corporation of India, Civil Appeal No.8245 of 2015, decided on 5.10.2015 (SC) has held the following:

        “We have heard learned Counsel for the parties.

                It is not the case of the Insurance Company that the ailment that the deceased was suffering from was a life threatening disease which could or did cause the death of the insured. In fact, the clear case is that the deceased died due to ischaemic heart disease and also because of myocardial infarction. The concealment of lumbar spondylitis with PID with sciatica persuaded the respondent not to grant the insurance claim.

                We are of the opinion that National Commission was in error in denying to the appellants the insurance claim and accepting the repudiation of the claim by the respondent. The death of the insured due to ischaemic heart disease and myocardial infarction had nothing to do with this lumbar spondylitis with PID with sciatica. In our considered opinion, since the alleged concealment was not of such a nature as would disentitle the deceased from getting his life insured, the repudiation of the claim was incorrect and not justified.”

12. In view of the foregoing discussion and the ratio of law laid down above, it is clear that the OPs/insurer have not been able to connect the previous diseases/ailments with the present diseases/ailments, for which the insured had taken treatment from the treating hospital.  Hence, it is unsafe to hold that the OPs/insurer were justified in rejecting/denying the claim of the complainant and the present consumer complaint deserves to succeed. 
13. So far as the case of the complainant that the OPs have illegally cancelled the subject policy is concerned, as it has already been discussed above that the genuine claim of the complainant was wrongly rejected/repudiated by the OPs, it is further safe to hold that there was no ground with the OPs to cancel the policy as there was no material fact which has been suppressed by the complainant at the time of obtaining the subject policy from the OPs.
14. Now coming to the quantum of relief, since the complainant has proved the receipt/bills (Annexure C-9 to C-13) of the hospital amounting to ₹4,87,280/-, it is safe to hold that the OPs are liable to pay the said amount to the complainant, minus the amount already paid, alongwith interest and compensation etc. for the harassment suffered by him, besides restoring the subject policy.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs are directed as under :-

1. To restore the subject policy in the name of the complainant, as per its terms & conditions, with upto date benefits on payment of requisite charges, if any;
2. to pay ₹4,87,280/- to the complainant, after deducting the amount already paid, alongwith interest @ 9% per annum from the date of rejection/repudiation of the claim i.e. 10.3.2023 onwards.
3. to pay ₹20,000/- to the complainant as compensation for causing mental agony and harassment;
4. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by the OPs within forty five days from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(ii) & (iii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of remaining directions.
6. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
7. Certified copies of this order be sent to the parties free of charge. The file be consigned.

01/02/2024 hg	Sd/- [Pawanjit Singh] President
	Sd/- [Surjeet Kaur] Member
	Sd/- [Suresh Kumar Sardana] Member