Chandigarh

StateCommission

A/303/2019

The Oriental Insurance Company Ltd. - Complainant(s)

Versus

Jyotsna Bali - Opp.Party(s)

J P Nahar Adv.

19 Aug 2020

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

1. The Oriental Insurance Company Limited, D.O.-II, through its Senior Divisional Manager, SCO No.48-49, Sector 17-A, Chandigarh.
2. Raksha TPA (P) Ltd., through its authorised signatory/Incharge, SCO No.359-360, 1^st Floor, Sector 44-D, Chandigarh, presently at SCO No.39, 1^st Floor, Madhya Marg, Sector 26, Chandigarh.

Now both through their authorized signatory, Gurupdesh Kaur, Manager, The Oriental Insurance Company Ltd., Regional Office, SCO No.109-111, Sector 17-D, Chandigarh

……Appellants/Opposite parties

V e r s u s

Jyotsna Bali w/o Sh. R.C. Bali (Raghubir Chander Bali), aged about 68 years, r/o H.No.85, Sector 27-A, Chandigarh

…..Respondent/complainant

BEFORE:           JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                        MRS. PADMA PANDEY, MEMBER

                        MR. RAJESH K. ARYA, MEMBER

Present through Video Conferencing:-

                             Sh.J.P. Nahar, Advocate for the appellants.

                        Sh.Vishal Bali, Advocate for the respondent.

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                    The claim for reimbursement of the amount of the complainant (respondent herein), was repudiated by the appellants (Insurance Company) on the ground that she was suffering from hypertension before obtaining the policy in question and this fact was concealed by her. However, the learned District Commission-I, U.T., Chandigarh (in short the District Commission) through the impugned order dated 26.09.2019, discarded the grounds of repudiation and allowed the claim of the complainant.

2.           Feeling aggrieved by the impugned order, the appellants i.e. Insurance Company and its Administrator namely Raksha TPA (P) Ltd., have come up in this appeal by assailing the impugned order.
3.           Before the District Commission, it was the case of the respondent-complainant that she had been purchasing medi-claim Policy (with Family Floater) from the appellants continuously since the year 2015, which she kept on renewing from time to time. The policy bearing No.231290/48/2018/177 which is in dispute, was got renewed by her, which was valid for the period from 28.4.2017 to 27.4.2018.  On 20.2.2018, she felt chest pain and was treated in OJAS Super Specialty Hospital, Sector 26, Panchkula, as indoor patient.  She had been diagnosed and treated for blockage in the main artery for which (PTCA)  and stenting of LAD was done and was discharged on 23.2.2018. The bill of Rs.1,92,285/-towards the said treatment was raised by the hospital concerned, which was paid  by the respondent. However, when she submitted her claim for reimbursement of the said amount to the appellants, it was repudiated on the ground that she was suffering from hypertension before obtaining the policy in question, which she did not disclose, and the same was treated as pre-existing disease; therefore, her claim falls under the exclusion clause and is not payable. Hence consumer complaint was filed by the respondent, before the District Commission.
4.           On notice being issued, the appellants while admitting the factual matrix of the case pleaded that the disease for which the respondent was treated and stenting was done, was the outcome of hypertension, which she had been suffering for the last 25 years.  The fact that the respondent was suffering from hypertension was concealed by her at the time of taking the policy, in question, and, therefore, her claim fell in the exclusion clause. She had furnished wrong information with regard to her pre-existing health condition. Pleading that there is no deficiency in service on their part, a prayer for dismissal of the complaint was made.
5.           The parties led evidence in support of their case, before the District Commission.
6.           The District Commission after hearing the contesting parties and going through the record of the case, allowed the consumer complaint, in the following manner:-

 “In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed. OPs are directed as under :-

1. to pay the claimed amount of Rs.1,92,285/- to the complainant alongwith interest @ 9% per annum from the date of repudiation i.e. 9.5.2018 till realization.
2. to pay an amount of Rs.30,000/- to the complainant as compensation for causing mental agony and harassment to her;
3. to pay Rs.10,000/- to the complainant as costs of litigation.

This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above”.

7.           We have heard the counsel for the parties and gone through the material available on the record.
8.           At the time of arguments, it has been vehemently contended by counsel for the appellants that the case of the respondent was squarely covered by the judgment of the Hon’ble National Commission, titled as Oriental Insurance Co. Ltd. Vs.  Pratik Samaj Seva Trust & Anr., Revision Petition No. 2929 of 2013, decided on 09 May 2017, which was duly mentioned in the reply filed by them before the District Commission but the same has not been considered by it and in this view of the matter, the order impugned is liable to be set aside and reversed.  Strong reliance has been placed upon Annexure C-2 (colly) wherein the history of hypertension is stated by the Doctor.
9.           On the other hand, counsel for the respondent contended that there is not an iota of evidence to prove that the respondent was suffering from any pre-existing disease, and that C-2 (colly) is neither signed by the patient nor by her family members; it is a self created document and the same does not pertain to hypertension of the complainant and is an ambiguous document. According to him, the District Commission was right in allowing the complaint.
10.           We have critically considered the rival contentions of the contesting parties and critically examined the material available on the record. 
11.            Undisputedly, the medi claim insurance policy was, for the first time, purchased by the respondent from the appellants-insurance company, in the year 2015 and she kept on renewing the same. There is no evidence, if at the time of sale of the insurance policy in question to the respondent, she was medically examined nor there was any proof that she was suffering from any pre-existing disease including hypertension. The insurance company is estopped from taking the plea that the respondent was suffering from pre-existing disease-hypertension because at the time of offering the policy in question, she was neither subject to any medical/examination nor there was any proof that she was suffering from any other pre-existing disease. Our this view is supported by the judgment of the Hon’ble Supreme Court of India, in Kanwaljit Singh  Vs.  National Insurance Company Ltd., Civil Appeal No. 6255 of 2019, decided on August 14, 2019, wherein it has been held as under:-

“12. It may be noticed that the claim could not have been repudiated by the Insurance Company as there was no pre-existing disease when the initial individual Mediclaim Policy of Master Jasnoor Singh was taken in the year 2007-2008. Since then the policy was regularly renewed up to the year 2014-2015. Thus in the facts of the present case, the respondent – Insurance Company cannot take the plea of any pre-existing disease of Master Jasnoor Singh. Even otherwise, after having initially repudiated the claim of the appellant, the Insurance Company had itself allowed the claim to the extent of Rs.27,550/-, which amount was deposited in the account of the appellant, meaning thereby that the question of pre-existing disease in the case of the claimant was not considered to be material by the Insurance Company.”

12.           In Oriental Insurance Co. Ltd. Vs.  Pratik Samaj Seva Trust (supra), reliance whereupon has been placed by counsel for the appellants, the facts thereof are entirely different to that of the present case. In that case, it was an admitted fact that the insured was regularly taking tablets for controlling blood pressure, whereas this is not the situation in the present case. It was under those circumstances that the Hon’ble National Commission held to the contrary.  Relevant part of the said case is reproduced hereunder:-

 “It is not disputed that complainant No. 2’s earlier policy lapsed and he obtained fresh policy on 13.3.2007 and incurred expenses for treatment of his disease in the hospital from 7.1.2009 to 17.1.2009 meaning thereby within two years from taking the policy.  Exclusion clause 4.3 of the policy excludes expenses incurred within two years for hypertension and admittedly complainant was taking tablets for controlling blood pressure.  Expenses incurred by complainant in the hospital for his treatment falls within the purview of exclusion clause.”

Bare perusal of the facts of the case and the observations made by the Hon’ble National Commission in Oriental Insurance Co. Ltd. Vs.  Pratik Samaj Seva Trust (supra), clearly establish that the same are distinguishable from the facts of the case in hand.

13.           To further buttress his argument, learned counsel for the appellants placed reliance on the “OPD Initial Assessment Report” dated 20.02.2018, which is Annexure C-2 (colly.) issued by the hospital concerned, wherein against the column- “Past Medical/Personal Family/Socio-Economic History”- it has been written as “HTN x 25 years”.  It is not clear whether this column pertains to  the ‘past medical history’ of the patient or of her family or of their ‘socio economic history’. To this extent this document is clearly ambiguous and no inference can be drawn against the respondent.
14.           Besides this, no evidence has been placed on record by the appellants to prove that the said information was supplied by the insured  or any of her attendant, at the time of initial assessment of her case.  The said document bears no signatures of the patient or any of her family members. No affidavit of the doctor concerned or other credible evidence has been placed on the record to establish that the respondent was suffering from hypertension prior to obtaining of the insurance policy and the same has a direct nexus to the heart problem in question. The Hon’ble Supreme Court in Mithoo Lal Nayak Vs. LIC of India - AIR 1962 SC 814 as also in Satwant Kaur Sandhu Vs. New India Assurance Co. Ltd.- (2009) 8 SCC 316 has held that the test to determine is as to what is a material fact, and whether that fact has any bearing on the risk undertaken by the insurer. If the fact has any bearing, it is a material fact and if not, it is not material.
15.           Furthermore, the respondent is sexagenarian and generally, the sexagenarians are more prone to hypertension. Thus, it was the duty of the insurance company to get her medically examined before issuance of the policy in question. Even otherwise, in our considered opinion, hypertension is usually a lifestyle disease and easily controlled with conservative medication. It is not necessary that a person suffering from hypertension would always suffer a heart attack.  There is no evidence that it was so acute or complicated that it was responsible for the respondent’s subsequent stenting or any other past major illnesses. Our this view is supported by the observations made by the Hon’ble National Commission in Satish Chander Madan Vs. M/S. Bajaj Allianz General Insurance Co. Ltd., Revision Petition No. 3619 of 2013, decided on 11 Jan 2016:-

“Learned counsel for the respondent has contended that it is established on record that the petitioner was having a previous history of hyper tension and since hypertension can lead to heart problem, the respondent was justified in repudiating the claim on the ground that the heart problem suffered by the petitioner was caused by pre existing hypertension.  There is no merit in this contention.  Hypertension is a common ailment and it can be controlled by medication and it is not necessary that a person suffering from hypertension would always suffer a heart attack.  Therefore, the argument advanced by respondent is far fetched and is liable to be rejected”.

16.           Recently also, a similar question fell for determination before the Hon’ble National Commission in New India Assurance Co. Ltd. Vs. Surinder Singh, Revision Petition No.1246 of 2014, decided on 10.07.2020, which was decided in favour of the insured, while holding as under:-

“A perusal of the discharge summary of the complainant would show that he was hospitalized for the treatment of a coronary disease  and his angioplasty was done at PGI Chandigarh. Therefore the reimbursement which he sought from the insurer was for the expenses which he incurred on his angioplasty. As per the discharge summary this was an old case of hypertension and inferior wall myocardial infraction. The said summary does not show how old the coronary ailment was. There is no evidence to prove that the complainant was suffering from any coronary ailment at the time the insurance policy was taken by him. No evidence was produced by the insurer to prove that the complainant was suffering from coronary ailment at the time the policy was initially taken by him in the year 2011. The possibility of the coronary ailment having been discovered by the complainant after taking the policy but before his admission in the hospital therefore cannot be ruled out. Hence, it is not proved to be a pre existing disease at the time the insurance policy was taken. Though, there is evidence to prove that the complainant was suffering from hypertension 4/5 years before taking the policy, the reimbursement he sought was not for treatment of hypertension but was for the angioplasty which was done in PGI Chandigarh. No evidence was led by insurer to prove that that the blood pressure of the complainant was uncontrolled and had led to the coronary ailment for removal of which angioplasty had to be done by at PGI Chandigarh. No doubt hypertension may be one or more causes of someone developing a coronary artery disease if the hypertension is not under control but it is not necessary that even a controlled hypertension would lead to the patient to a coronary artery disease. Therefore, I am unable to accept the contention that the disease of complainant  was covered under clause 4.1 of the terms and condition attached to the policy. As far as class 4.3 is concerned coronary artery disease is not one of the ailments for which cooling off period of 2 years is prescribed in the insurance policy. Therefore, the case is also not covered under class 4.3 of the policy. It is true that hypertension has been concealed by the complainant while obtaining the insurance policy, he having replied in negative when asked whether he was suffering from hypertension. But, a perusal  of the repudiation letter would show that the aforesaid concealment was not a ground for repudiation of the claim. As held by the Hon’ble Supreme Court in GALADA POWER AND TELECOMMUNICATION LTD Vs. UNITED INDIA INSURANCE CO. LTD. AND ANOTHER  IV (2016) CPJ 5 (SC) the insurer cannot be allowed to travel beyond the ground taken in the repudiation letter issued by it while rejecting the claim. Therefore, the aforesaid concealment cannot be a ground for dismissing the complaint, the same not being one of the grounds for repudiating the claim”.        

17.           Reliance has also been placed by counsel for the appellants on Clause 4 of the insurance policy (Annexure OP-1 and 2/1), which read as under:-

“4.1 Pre-existing health condition or disease or ailment/injuries: Any ailment/disease/injuries/health condition which are pre-existing (treated/untreated, declared/ not declared in the proposal form), in case of any of the insured person of the family, when the cover incepts for the first time, are excluded for such insured person upto 3 years of this policy being in force continuously.

For the purpose of applying this condition, the date of inception of the first indemnity based health policy taken shall be considered, provided the renewals have been continuous and without any break in period, subject to portability condition.

This exclusion will also apply to any complications arising from pre existing ailments/diseases/injuries. Such complications shall be considered as a part of the pre existing health condition or disease.

4.2. The expenses on treatment of following ailment/diseases/surgeries for the specified periods are not payable if contracted and/or manifested during the currency of the policy.

If these disease are pre-existing at the time of proposal the exclusion no.4.1 for pre-existing condition shall be applicable in such cases.

4.3  to 4.21 ...........................................”

18.           We have gone through these clauses and considered the contention of counsel for the appellants in this regard. bare perusal of exclusion clause 4 ibid  makes it abundantly clear that the same is not applicable to the case in hand. As stated above, since in the present case, the appellants failed to place on record even an iota of evidence, to prove that she was suffering from  hypertension before or during the treatment for which stenting was done or that the said complications arose from hypertension,  as such, no help therefore can be drawn by the appellants from Clause 4.1 of the insurance policy in question.
19.           Furthermore, the insurance policy was in continuity w.e.f. April 2015 till 27.04.2020. Even the period of 2 years from April 2015 has already came to an end. There were no complications to the respondent in the first two years of issuance of the policy in question i.e. 2015-2016 and 2016-2017. As such, no help therefore can be drawn by the appellants from Clause 4.2 of the insurance policy also. Viewing from all the angles, the exclusion clauses of the insurance policy, referred to above, are not applicable to the case in hand.
20.           The argument of the appellants can be considered from another angle. Admittedly, the present claim of the respondent was submitted with the appellants on 05.03.2018 which means that the appellants came into the knowledge that in the above-said OPD Initial Assessment Report dated 20.02.2018, Annexure C-2 (colly.), it has been written as “HTN x 25 years”. Surprisingly, for the subsequent periods i.e. 2018 onwards the insurance policy was renewed and fresh policies were issued for the years 2018-2019 and 2019-2020 under the same terms and conditions, knowingly well that in Annexure C-2 (colly.) it is mentioned as “HTN x 25 years”.
21.           The insurance policy (Annexure C-8) is for the period 28.04.2018 to 27.04.2019, and (Annexure C-9) is for the period 28.04.2019 to 27.04.2020 but no medical examination of the respondent was got conducted. Thus, the appellants had renewed the policy in question twice for 28.04.2018 to 27.04.2019 and 28.04.2019 to 27.04.2020, despite the fact that they were in the knowledge of aforesaid  OPD Initial Assessment Report dated 20.02.2018, Annexure C-2 (colly.). This scenario makes it abundantly clear that hypertension was neither a per-existing disease which could attract the exclusion clause nor it was a root cause of the complications the patient had faced.
22.           For the reasons recorded above, we are of the considered opinion that this appeal is devoid of merit and the same deserves dismissal. The impugned order did not suffer any illegality or infirmity and the same does not require interference by this Commission. Thus, the same stands upheld. Resultantly, this appeal is hereby dismissed, with cost of Rs.5,000/-, to be paid by the appellants to the respondent within a period of 30 days, from the date of receipt of certified copy of this order, failing which the said amount shall carry penal interest @6% p.a. from the date of passing of this order, till realization, besides compliance of the directions given in the impugned order. 
23.           Certified copies of this order be sent to the parties, free of charge.
24.           The file be consigned to Record Room, after completion.

Pronounced

19.08.2020

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

Sd/-

(PADMA PANDEY)

        MEMBER

Sd/-

 (RAJESH K. ARYA)

MEMBER

Rg.