Haryana

Yamunanagar

CC/421/2010

Sushil Kumar Shrama S/o Amar Singh - Complainant(s)

Versus

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

Subhash Sharma

04 Nov 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                    Complaint No. 421 of 2010

                                                                                    Date of institution: 03.05.2010 

                                                                                    Date of decision: 04.11.2016.

 

       Sushil Kumar Sharma son of Sh. Amar Singh since deceased being represented by his following legal heirs:-

1. Smt. Shashi Sharma widow,
2. Sachin Sharma son of Sh. Sushil Kumar Sharma, both resident of L 31, Tyagi Garden, Behind Old Sales Tax Office, Gobindpuri, Yamuna Nagar.

                                             …Complainant.

                                                     Versus

1. ICICI Lombard General Insurance Company Limited, Branch Office, Yamuna Nagar, through its Branch Manager.
2. ICICI Lombard General Insurance Company Ltd. Corporate Office Zenith, Keshavrao Khade Marg, Mahalaxmi, Mumbai through its Managing Director.

                                                                                                                              …Respondents.                                       

 

BEFORE: SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                 SH. S.C.SHARMA………………………….MEMBER.

 

Present:    Sh. Subhash Sharma, Advocate, counsel for complainant.  

                 Sh. Parmod Gupta, Advocate, counsel for respondents.   

 

ORDER  (Ashok Kumar Garg President  )

 

1.                     The present complaint under section 12 of the Consumer Protection Act was earlier filed by complainant Sushil Kumar Sharma. However, during the pendency of complaint Sh. Sushil Kumar Sharma died and his LRs Smt. Shashi Sharma widow and Sh. Sachin Sharma son were impleaded as complainants vide order dated 10.02.2015.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that complainant purchased a medical cashless health insurance policy bearing No. 4034/FPP/03049660/00/000 for the period of two (2) years i.e. from 30.12.2007 to mid night of 29.12.2008, which was later on renewed up to 29.12.2009 and paid premium of Rs. 14713/- to the OP No.1. After that, Ops Insurance Company allotted health Member ID No. IHPN03190899-01-01 and issued the insurance policy Annexure C-17. Thereafter, complainant, on completion of insured period  on 28.12.2009, got renewed his insurance policy from 28.01.2010 to 27.1.2012 vide insurance policy bearing No. 4034I/FPP/03049660/01/000 (Annexure C-3) and paid the premium of Rs. 14,460/-. In the last week of January, 2010 complainant had chest pain for which complainant went to Santosh Hospital at Yamuna Nagar for check up and after check up, the doctor advised him for angiography and then Dr. Anurag Sharma advised for by pass surgery due to all three artery blockage. Accordingly, he remained admitted for one day and after that he was taken to Fortis Hospital, Mohali on 30.01.2010 and he was operated upon and by pass surgery was done on 02.02.2010 and discharged from the hospital on 10.02.2010. The complainant spent on his medical treatment a total sum of Rs 2,67,047/-. As the complainant was having cashless health policy from the OPs Insurance Company, as such the complainant showed the policy papers to the hospital authority and accordingly, the Fortis Hospital Authority informed the OPs Insurance Company but to the utter surprise of the complainant the OPs Insurance Company declined to have any cashless access vide letter dated 01.02.2010 on the allegation that there was concealment and mis-representation on the part of the complainant due to that complainant was not entitled to get cashless facility. After that complainant and his family members arranged the whole amount to pay to the hospital and due to the act of the Ops Insurance Company, complainant has suffered great mental agony, pain and torture. It has been further mentioned that complainant never withheld any information about his health. The OPs Insurance Company was under legal obligation to give the cashless facility. The factum of non-concealment of any information from the side of complainant is clear from the letter of Fortis Hospital, Mohali dated 01.02.2010 wherein it has been clearly mentioned by the Doctor concerned in para No.2 that “ patient started retrosternal pain on 27.01.2010, he had no past history of the same”. The OPs Insurance Company has wrongly and illegally declined the claim of the complainant which was covered under the health policy which constitute the deficiency in service and unfair trade practice on the part of the Ops and lastly prayed for directing the OPs Insurance Company to pay the amount of Rs. 3,00,000/-, so spent on the treatment by the complainant and also to pay compensation as well as litigation expenses. Hence, this complaint.

3.                     Upon notice, Ops appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable; complicated question of law and facts are involved; complaint is bad on account of mis-joinder and non-joinder of necessary parties. The complainant lodged a cashless request vide reference No. 110100109521 for Rs. 2,40,000/- and the request was received from the hospital on 01.02.2012 and after reviewing the documents, the following documents were demanded (i) Valid I.D. Proof of the patient with age, date of birth, first consultation paper, details of the diagnosis, treatment surgery and onset duration and progression,(ii) As per the pre authorization request complaint is of one day duration whereas the CAG has already been done on 28.01.2010 and the patient was found with past history of HTN (Hypertension) since last 15 years. The patient was known as case of DM (II) (diabetes) from the last 15 years for which he was on a regular treatment and he was having a history of stroke from the last 10 months. The patient/ complainant has also suffered and concealed his past history and not disclosed the same while taking the policy from the Ops Insurance Company. As per terms and conditions of the policy particularly part III of the schedule of the standard terms and conditions (1) the policy shall be null and void and no benefits would be payable in the event of untrue and incorrect statement, mis-representation or non-disclosure of any material particulars in proposal form, personal statement, declaration and connected documents or any material information having been withheld, hence cashless facility was denied legally and validly because the complainant has concealed and suppressed the past history of illness and has not provided the true information and on merit controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objections. Lastly, prayed for dismissal of complaint.

4.                     In support of his case, counsel for the complainant tendered into evidence affidavit of Sachin Sharma as Annexure CW/A and photo copies of documents such as Photo copy of denial letter dated 01.02.2010 issued by ICICI Lombard as Annexure C-1, Certificate issued by Fortis Hospital on dated 01.02.2010 as Annexure C-2, Health insurance policy for the period from 28.01.2010 to 27.01.2012 amounting to Rs. 3,00,000/- as Annexure C-3, Cash card issued by ICICI Lombard as Annexure C-4, Medical Bills of Fortis Hospital as Annexure C-5 to C-15, Bill of Alchemist Hospital as Annexure C-16, Insurance policy with premium receipt for the period from 30.12.2007 to 29.12.2008 as Annexure C-17 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the OPs tendered into evidence short affidavit of Sh. Gurpreet Bhular, Manager (Legal) ICICI Lombard as Annexure RW/A and documents such as photo copy of denial letter dated 01.02.2010 as Annexure R-1, copy of insurance policy for the period from 28.01.2010 to 27.01.2012 with premium certificate as Annexure R-2, copy of discharge summary of Alchemist Hospital as Annexure R-3, copy of admission request note as Annexure R-4, C.D. Annexure R-5 and closed the evidence on behalf of OPs.

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 admitted case of the OPs Insurance Company that complainant purchased the insurance policy bearing No. 4034/FPP/03049660/00/000 first time for two (2) years i.e. from 30.12.2007 to Mid night of 29.12.2009 which is also duly evident from the photo copy of insurance policy (Annexure C-17). It is also admitted by the Ops Insurance Company that complainant got renewed his insurance policy bearing No. 4034I/FPP/03049660/01/000 (Annexure C-3) for next two (2) years w.e.f. 28.01.2010 to 27.01.2012 which is also evident from the photo copy of insurance policy Annexure C-3. It is also not disputed that complainant got admitted in the Alchemist Hospital, Panchkula on 27.01.2010 and remained their till 28.01.2010, which is duly evident from the hospital bill Annexure C-16. It is also not disputed that complainant after discharged from the Alchemist Hospital, Panchkula remained admitted in the Fortis Hospital Mohali from 31.01.2010 to 10.02.2010 which is evident from the copy of hospital bill Annexure C-6 and spent Rs. 2,67,047/-. The only version of the complainant is that firstly OPs Insurance Company has wrongly and illegally denied the cashless request made by the hospital on 01.02.2010 for Rs 2,40,000/- (Annexure C-1) and after that refused to pay the entire amount spent on the treatment of the deceased complainant on the false and flimsy ground whereas the complainant was legally entitled to get the amount of Rs. 3,00,000/- out of which an amount of Rs. 2,67,047/- was paid to Fortis Hospital vide bill Annexure C-6 and an amount of Rs. 12,000/- to the Alchemist Hospital vide bill Annexure C-16. Learned counsel for the complainant argued that no affidavit on behalf of the doctors of the Fortis Hospital, who recorded the past history of the deceased complainant, has been placed on file to prove the stand taken in the written statement by the OPs Insurance Company. Lastly prayed for acceptance of complaint and referred the case law titled as M/s United India Insurance Company Ltd. Versus  Gurdeep Singh Oberio, 1999 (2) CPC page 123 wherein it has been held that Insurance claim concealment of disease- Insurance Company repudiated the insurance claim on the ground that insured had concealed the disease of myocardial infraction- Insurance Company accepted proposal from which was almost blank without any verification- Complainant underwent angiography and bypass surgery, Concurrent finding of authorities below allowing complainant’ claim cannot be upset in revision- Petition dismissed. Learned counsel for the complainant further referred the case law titled as Life Insurance Corporation of India Vs. Raj Rani, 2000(2) CLT page 366, Life Insurance Corporation of India Versus Padma Rani, 2000 (2) CPC page 130 State Commission, Haryana, Chandigarh, Divisional Manager LIC of India Versus Savitri Devi, III (1998) CPJ page 475, Life Insurance Corporation of India vs.Smt. Bimla Devi, 2004 (1) CPC page 248 and LIC of India Versus Sanjeev Mahendralal Shah, 1996(1) CPC page 528.

8.                     On the other hand, counsel for the OPs Insurance Company argued at length that claim of the complainant has been rightly denied as the complainant/patient was found with a history of HTN (Hypertension) and case of DM (II) diabetes from the last 15 years for which he was on regular treatment and further the complainant/patient was having a history of stroke from the last 10 months and draw our attention towards the second page of discharge summary of the Fortis Hospital Annexure R-3 wherein it was so recorded. Learned counsel for the OPs Insurance Company draw our attention towards pre authorization request letter (Annexure R-4) sent by the Fortis Hospital to the OPs Insurance Company in which also the same past history has been shown. Learned counsel for the OPs Insurance Company also argued that complainant himself has admitted in para No.3 of the complaint that in the last week of January, 2010 he had chest pain for which the complainant went to the Santosh Hospital, Yamuna Nagar for check up and after that he was referred for cardiology treatment, upon which the complainant admitted in the Alchemist Hospital on 27.01.2010 which is duly evident from the copy of hospital bill (Annexure C-16) and argued that on that day i.e. on 27.01.2010, no insurance policy stands in the name of complainant as previous insurance policy bearing No. 4034/FPP/03049660/00/000 was valid from 30.12.2007 to 29.12.2009 and after that complainant got renewed his previous insurance policy on 28.01.2010 i.e. after a period of one month and complainant had suffered cardiology problem in the last week of January 2010. Meaning thereby that at the time of chest pain and admission in the Santosh Hospital, Yamuna Nagar, Alchemist Hospital Panchkula no medical insurance policy was in existence in the name of complainant Sushil Kumar ( Now deceased). Learned counsel for the Ops further argued that when the complainant/ patient was admitted in the Alchemist Hospital, Panchkula on 27.01.2010, then he got renewed his lapsed insurance policy just to get the reimbursement of the medical expenses from the OPs Insurance Company. Lastly, prayed for dismissal of complaint and draw our attention towards the case titled as Mrs. Shnyni Valsan Pombally Versus State Bank of India & others, 2014(1) CLT page 356 wherein it has been held “that Insurance claim- Repudiation- Pre-existing disease-Held- The deceased was suffering from “diabetes mellitus” for which ailment he was on regular medication for over three years- It was not possible to even comprehend that the insured would not know that he was suffering from diabetes- Undoubtedly, these were “material facts” and being within the knowledge of the insured only, he was obliged to disclose the same correctly- Having suppressed the said facts while answering the questionnaire, we are of the opinion that the Insurance Company was within its rights to repudiate the claim of the complainant- In that view of the matter, there was no question of any deficiency in service on their part”

9.                     After hearing both the parties, it is not disputed that at the time of insuring a person, he might have been got medically examined from the competent medical practitioner authorized by the insurance company. If the complainant (now deceased) was suffering from diabetes for the last 15 years and was on steroids for the last many years then the Insurance Company would not have issued Insurance policies in favour of complainant.  There is no explanation in this regard. In case of 2014(III) CPJ page No. 221 (National Commission) wherein it has been held that Authorized doctor of the Insurance Company examined insured, assessed fitness and after complete satisfaction- Insurance Policy was issued to the complainant by the OPs Insurance Company- It cannot be presumed that the insured/deceased was aware in regard of ailment/cancer and concealed previous illness. Repudiation not justified. In another case 2014(3) CPJ page 552 National Commission, New Delhi held that concerned doctor who allegedly treated insured and recorded that patient was admitted with history of pulmonary hypertension for the last two (2) years was not examined by the petitioner to prove Photostat copy of discharge card relied upon by the petitioner nor affidavit of doctor has been filed and Foras below were right in declining to rely upon the photo copy of discharge card produced by petitioner to establish that petitioner while obtaining insurance policy concealed the fact that he was suffering from pulmonary hypertension. Repudiation not justified.

                        In another case titled as Life Insurance Corporation of India Versus Raj Rani, 2000 (2) CLT page 366 wherein it has been held that the history recorded in the hospital cannot be treated as substantive evidence or material to base any decision. Similarly in case titled as Life Insurance Corporation of India Versus Padma Rani 2000(2) CPC page 130 wherein it has been held that Consumer Protection Act 1986- Section-14- Insurance Claim- concealment of ailment- Order of District Forum accepting complainants claim was challenged on the ground that insured deceased had concealed the ailments of blood cancer- there is no affidavit of Medical Officer of Corporation or of PGI to prove the allegation- Order of District Forum accepting the claim with interest and cost is justified. Appeal Dismissed. 

10.                   Similarly, is the position of the case in hand. The doctor who examined the complainant (now deceased) has neither filed any affidavit nor has been examined to prove the Photostat copy of record of medical examination (Annexure R-3 and R-4). Moreover, no proposal form have been placed on file by the OPs Insurance Company to prove that complainant (now deceased) have mis-represent or not disclosed the true facts to the OPs Insurance Company at the time of taking Insurance Policy, hence the First plea of the OPs Insurance Company have no weightage that the complainant has concealed/mis-represented or has not disclosed any material facts  OPs Insurance Company. Even, the complainant has suffered problem after a lapse of period of two (2) years and expiry of First Insurance Policy which was valid for two (2) years. Meaning thereby, that the exclusion clause is not applicable in this case.

11.                   The second plea which has been argued by the counsel for the OPs Insurance Company is that no insurance policy stood in the name of complainant in the last week of January 2010 particularly on 27.01.2010 as the policy in question has been renewed by the complainant on 28.01.2010 after its expiry on 29.12.2009 i.e. near about after 1 month is also not tenable.  We have perused the terms and conditions of the insurance policy, down loaded by the OPs Insurance Company at internet as neither counsel for the complainant nor the counsel for the OPs insurance Company has placed on file. Only 3-4 pages of the insurance policy has been filed by the counsel for the OPs Insurance Company i.e. complete insurance policy alongwith its terms and conditions has not been placed on file by the OPs Insurance Company due to reasons best known to them. As per terms and conditions of Insurance Policy there was only exclusion clause for two (2) years. From the perusal of terms and conditions of the Insurance policy on internet, it is clearly evident that insurance policy in question was having a grace period of 30 days which has been mentioned under part 3 of the schedule 18 of the Insurance Policy in question. Even, as per terms and conditions of the insurance policy under the Head what will be not paid exclusion clause under the policy -It has been specifically mentioned that where the policy is having sum insured of Rs. 3,00,000/- or more, then exclusion clause will be applicable only for 2 years. In the present case, the complainant (now deceased) was having insurance policy w.e.f. 30.12.2007 to 29.12.2009 (Annexure C-17) and got renewed this policy on 28.01.2010 i.e. near about after 29-30 days i.e. in the grace period of 30 days and when the OPs Insurance Company renewed the policy in question for next two years and received the premium from the complainant then how the OPs company can be repudiate the genuine claim of the complainant on the ground that no policy in question was standing in the name of complainant at the time of first admission in Alchemist Hospital, Panchkula on 27.01.2010 and prior to this when the complainant visited Santosh Hospital, Jagadhri.

12.                   Moreover, the second plea taken by the Ops insurance company has not been taken by it in the repudiation letter dated 01.02.2010 (Annexure R-1). From this angle also, the OPs Insurance Company cannot be allowed to travel beyond the repudiation letter.

                        Now next question remains that what compensation be awarded to the complainant.

13.                   Learned counsel for the complainant has claimed Rs. 3,00,000/- in his complaint but no such cogent evidence has been placed on file to prove the same. However, from the perusal of copy of hospital bill issued by Fortis Hospital, Mohali, it is evident from the copy of bill that the complainant has paid Rs. 2,67,047/- to the Fortis Hospital (Annexure C-6). Learned counsel for the complainant draw our attention towards the copy of bill issued by Alchemist Hospital, Panchkula (Annexure C-16) and argued that an amount of Rs. 12,000/- was also spent by the complainant on his treatment. Besides this, the complainant has also spent more amounts on his treatment but no cogent evidence except these two (2) bills have been placed on file to prove the same. The OPs Insurance Company has neither rebutted the version of the complainant nor has challenged the amount mentioned in these bills. Hence, we are of the considered view that complainant is entitled to get the total amount of Rs. 2,84,453/- ( Rs. 2,67,047/- as Annex. C-6 plus Rs.5406/- as Annex. C-7 to C-15 plus Rs.12,000/- as Annex. C-16).

14.                   In the circumstances noted above and going through the law cited above, we are of the considered view that the complainant is entitled to get relief.

15.                   Resultantly, we partly allow the complaint of complainant and direct the OPs Insurance Company to pay a sum of Rs. 2,84,453/- alongwith interest at the rate of 6% per annum from the date of filing of complaint till its realization to the complainants in equal share. Order be complied within a period of 30 days after preparation of copy of this order failing which complainants 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: 04.11.2016.          

                                                                                    (ASHOK KUMAR GARG )

                                                                                    PRESIDENT,                                             

                       (S.C.SHARMA )

                        MEMBER.