Haryana

Yamunanagar

CC/287/2011

Deepak bhatia S/o Tilak Raj - Complainant(s)

Versus

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

Anuj Jain

23 Jan 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

                                                                                          Complaint No… 287  of 2011.

                                                                                          Date of institution: 01.04.2011

                                                                                          Date of decision: 23.01.2017

1.  Deepak Bhatia aged about 45 years son of late Sh. Tilak Raj Bhatia,
2.  Smt. Bimla Bhatia wife of late Sh. Tilak Raj, resident of 843/1,Bhatia House, Kartar Pura, Yamuna Nagar.

  

                                                                                                              …Complainants.

                                    Versus

1. ICICI Lombard General Insurance Company Limited, Healthcare, TGV Mansion, 6^th Floor, Plot No. 6-2-1012, Khairatabad, Hyderabad, Andhra Pradesh through its M.D./Chairman
2. The Branch Manager/ Incharge, ICICI Lombard General Insurance Company Limited, Healthcare, Commercial Belt, Sector-17, HUDA, Near HUDA Office, Jagadhri, Distt. Yamuna Nagar.

                                                                                                               …Respondents 

 

BEFORE:         SH. ASHOK KUMAR GARG, PRESIDENT.

                         SH. S.C.SHARMA, MEMBER.

 

Present:   Sh. Anuj Jain, Advocate, counsel for complainants.  

                 Sh. Arvind Bhardwaj, Advocate, counsel for respondents.                

             

 

ORDER   (ASHOK KUMAR GARG PRESIDENT)

 

1.                     Complainant Deepak Bhatia and his mother have filed the present complaint under section 12 of the Consumer Protection Act, 1986.  

2.                     Brief facts of the present case, as alleged by the complainants,  are that  the complainants obtained a health insurance policy for a sum of Rs. 3,00,000/- for the benefits of hospitalization of his mother who is complainant No.2 and paid a sum of Rs. 15,000/- to the respondents Insurance Company ( hereinafter respondents will be referred as OPs Insurance Company) vide demand draft No. 001433 dated 05.08.2010 drawn on ICICI Bank Limited. Upon which, the OPs Insurance Company issued insurance policy bearing No. 40631/HAP/05457683/00/000 valid from 06.08.2010 to 05.08.2011 (Annexure C-1). Unfortunately, on 14.12.2010, complainant No.2 was checked up by Dr. Ajay Sharma, M.D. in Maharishi Dayanand Hospital, Yamuna Nagar who was further referred to Dr. Vimal Miglani, M.S. and thereafter complainant No.2 was referred to Delhi for treatment where she was checked up by Dr. Gyan Roy M.S. who diagnosed breast cancer. Thereafter, complainant No.2 was admitted in Surya Hospital, Delhi and remained admitted there w.e.f. 30.12.2010 to 05.01.2011 where she was operated by the doctor and she spent Rs. 81,176/-. A claim was lodged with the OPs Insurance Company and all the formalities were completed by the complainants but the Ops Insurance Company rejected the claim of the complainant vide letter dated 25.02.2011 (Annexure C-6) on the false and frivolous ground that the facts have been concealed regarding pre-existing disease, whereas neither it was in the knowledge of the complainant nor she was suffering from the said disease prior to the insurance policy in question. The complainants made so many requests to the OPs Insurance Company to pay the amount of Rs. 81,176/- spent on the treatment by the complainant but the OPs Insurance Company flatly refused. Hence, this complaint.

3.                     Upon notice, OPs Insurance Company appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable; the complainants have concealed the true and material facts, the true facts are that as part part II of the schedule exclusion 2.2- expenses incurred on treatment of any pre existing disease shall be excluded from the scope of cover under this policy. As per evidence dated 14.12.2010, the patient was having lump breast- since six (6) months even also prior to six (6) months, which falls prior to policy inception dated 06.08.2010, therefore, the claim of the complainants were rightly rejected by the OPs Insurance Company as the complainant did not disclose during policy in caption in contestability and duty of disclosure and on merit controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections and lastly prayed for dismissal of complaint. 

4.                     In support of the case, complainant Deepak Bhatia tendered into evidence his affidavit as Annexure CX and documents such as Photo copy of insurance policy as Annexure C-1 to C-3, Photo copy of insurance health card as Annexure C-4, Photo copy of claim form as Annexure C-5, Photo copy of repudiation letter dated 25.02.2011 as Annexure C-6, Photo copy of discharge card of Surya Hospital of Delhi as Annexure C-7, Photo copy of certificate issued by Dr. Maharishi Dayanand Maternity and General Hospital dated 22.03.2011 as Annexure C-8, Photo copy of hospital bills as Annexure C-9 to C-14, Photo copies of bill of medicine chemist as Annexure C-15 to C-40 and closed the evidence on behalf of complainants.

5.                     On the other hand, counsel for the OPs failed to adduce any evidence despite last opportunity and with cost, hence the evidence of the Ops was closed by court order dated 22.12.2015.

6.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

7.                     It is not disputed that the complainant No.1 obtained a health care insurance policy bearing No. 40631/HAP/05457683/00/000 valid from 06.08.2010 to 05.08.2011 for a sum of Rs. 3,00,000/- for the benefits of hospitalization of his mother i.e. complainant No.2 from the OPs Insurance Company which is duly evident from the copy of Insurance Policy (Annexure C-1 to C-4). it is also not disputed that complainant No.2 Smt. Bimla Bhatia remained admitted in the Surya Hospital Delhi w.e.f. 30.12.2010 to 05.01.2011 which is duly evident from the discharge card issued by Surya  Hospital (Annexure C-7). It is also not disputed that complainant had submitted duly filled claim form claiming an amount of Rs. 81,176/- with the OPs Insurance Company which is also duly evident from the photo copy of claim form (Annexure C-5) and hospital bills and bills of Medicine/ Chemist (Annexure C-9 to C-40).

8.                     The only grievances of the complainant is that the OPs Insurance Company has wrongly and illegally repudiated the claim of the complainant vide letter dated 25.02.2011 (Annexure C-6) on the ground that complainant No.2 was having pre-existing disease whereas that disease was neither in the knowledge of the complainant nor the complainant No.2 was suffering from the said disease prior to the insurance policy in question. Learned counsel for the complainant draw our attention towards the case law titled Sunita Jain Versus Life Insurance Corporation of India and another, 1999(1) CPC page 645 in which it has been mentioned “that the Insurer failed to prove by any cogent evidence that material fact was concealed by the insured- Burden of proof heavily lies on insurer in such matter”.  Whereas on the other hand, the OPs Insurance Company took the plea that claim of the complainant has been rightly repudiated vide letter dated 25.02.2011 (Annexure C-6) as the complainant No.2 was having pre-existing disease and as per exclusion clause 2.2 the expenses incurred on treatment of any pre-existing disease shall be excluded from the scope of cover under the policy in question. It has been further mentioned that as per evidence dated 14.12.2010 the patient was having lump breast since six (6) months which falls prior to policy inception date i.e. 06.08.2010 but this plea of the OPs Insurance Company is not tenable because firstly the OPs Insurance Company has not placed on file any terms and conditions of the insurance policy in support of its version. Secondly, the Ops Insurance Company has also not placed on file any document from which it can be cleared that the complainant No.2 was having any pre-existing disease and was having any knowledge prior to obtaining the insurance policy in question. The OPs Insurance Company neither filed any affidavit of any doctor nor tendered any evidence to prove the pre-existing disease, as alleged in the repudiation letter (Annexure C-6). On the other hand, it is not disputed that complainants obtained the insurance policy w.e.f. 06.08.2010 whereas she i.e. complainant No.2 was remained admitted in the hospital w.e.f. 30.12.2010 to 05.01.2011 i.e. during the currency of insurance policy. Even from the perusal of certificate dated 22.03.2011 (Annexure C-8) issued by Dr. Ajay Sharma of Maharishi Dayanand Maternity and General Hospital, Yamuna Nagar, it is duly evident that complainant No.2 Smt. Bimla Bhatia came to know first time on 14.12.2010 that she was having a lump in her left breast for which she was referred to the Surgeon.

9.                     After going through the facts of the case law referred above and in the circumstances noted above as the OPs Insurance Company has totally failed to file any cogent evidence in support of its version and has also not placed on file any terms and conditions of the Insurance policy whereas on the other hand the case of the complainant is duly proved from the documents placed on file, hence we are of the considered view that the OPs insurance company has wrongly repudiated the genuine claim of the complainant, which constitute a gross negligence and deficiency in service on the part of OPs Insurance Company. Hence the complainant is entitled for relief.

10.                   Resultantly, we partly allow the complaint of complainant and direct the OPs Insurance Company to pay a sum of Rs. 81176/- to the complainant within a period of 30 days after preparation of copy of this order failing which OPs Insurance Company will also liable to pay interest at the rate of 6% per annum from the date of filing of complaint till its realization. The OPs Insurance company is further directed to pay Rs. 5000/- as compensation for mental agony, harassment as well as litigation expenses. Order be complied within a period of 30 days after preparation of copy of this order failing which complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court. 23.01.2017.

                                                                                                (ASHOK KUMAR GARG)

                                                                                                PRESIDENT

 

 

                                                                                                (S.C.SHARMA)

                                                                                                MEMBER