Per Smt. Gauri  M. Kapse, Hon’ble Member

1. This is an action under Section 35(1)(a) of Consumer Protection Act 2019, the briefly stated case is as follows:
2. The Complainant availed the Family Floater Mediclaim Policy 2012 bearing Policy No.11120034132500008309 from Opposite Party for himself and his family members.
3. The Complainant ported the Mediclaim Policy and undertook the Pro Health-Protect Insurance Policy bearing no. PROHLR010493276 from the Opposite Party for a period from 01/03/2018 to 28/02/2019 which is a Family Floater Policy, for sum insured of Rs.10,00,000/. The Policy was renewed on a yearly basis.
4. On 20/01/2022 the son of the Complainant, Mr. Manan Kothari was admitted and treated at Ashtavinayak Nursing Home, Goregaon West, Mumbai for dislocation of right shoulder. On 21/01/2022 an arthroscopic surgery was performed on Mr. Manan Kothari by Dr. Nimish Relan and was discharged from the Hospital on 23/01/2022.
5. The Complainant intimated the Opposite Party and lodged Reimbursement Claim under the Policy in the first week of February, 2022 through his insurance brokers with the Opposite Party. The Opposite Party acknowledged and accepted the request of the Complainant vide letter dt.09/02/2022.
6. The Opposite Party, through its Third-Party Administrator (TPA), Medi Assist Insurance ТРА Private Limited, addressed a letter dt. 18/02/2022 to the Hospital seeking documents required for processing the Reimbursement Claim. The Opposite Party addressed an email dt. 28/02/2022 and sought further additional documents for processing the Claim. The Complainant through his insurance brokers, submitted the documents sought at the office of the Opposite Party.
7. The Opposite Party wrongly repudiated the Reimbursement Claim of the Complainant vide letter dt. 11/03/2022 on the grounds of Policy Clause V. 1. Pre-existing Disease Waiting Period and Policy Clause VIII. 1. Duty of Disclosure.
8. The Policy was renewed for a period from 08/03/2022 to 07/03/2023 by the Opposite Party. The Complainant paid Rs. 33,805/- on 25/02/2022 towards premium for the renewal of the Policy.
9. The Complainant immediately approached the Health Relationship Managers of the Opposite Party, for redressal of his grievance by submitting the necessary documents. The Opposite Party addressed an email dt. 15/03/2022 to the Complainant asking for the first prescription report of Mr. Manan Kothari, in order to process the request of the Complainant. The Complainant addressed an email dt. 18/03/2022 to the Opposite Party providing a copy of the first prescription report sought by the Opposite Party. The Complainant also submitted a medical report dt. 15/03/2022 issued by Dr. Relan. The Customer Service Team of the Opposite Party acknowledged the receipt of documents vide email dt. 20/03/2022 stating that the Opposite Party had forwarded the documents to the relevant team and the same would be processed within seven (7) calendar days. The Opposite Party repeatedly addressed emails dated 22/03 and 29/03/2022 to the Complainant asking for the same set of documents viz., the first prescription report.
10. The Complainant received an email dt. 21/04/2022 from the Manager of Grievance Management Cell of the Opposite Party stating that, the request for reconsideration of the Reimbursement Claim was registered with Reference no.2022042102126, which would be handled by the Grievance Officer of the Opposite Party. The Grievance Management Cell of the Opposite Party addressed an email dt. 29/04/2022 stating that claim decision remained unchanged.
11. The Complainant escalated the grievance by addressing an email dt. 02/05/2022 to the Opposite Party. The Complainant submitted a medical report dt. 01/05/2022 issued by Dr. Relan addressing the case of Mr. Manan Kothari and a letter signed by the Complainant denying the allegations and false contentions made by the Opposite Party while repudiating the Reimbursement Claim. The Manager of Grievance Management Cell of the Opposite Party addressed an email dt. 02/05/2022 assuring the Complainant that his email was assigned to a Health Relationship Manager and the Opposite Party would respond to it in three (3) working days.
12. The Opposite Party through its Assistant Manager of Grievance Management Cell addressed an email dt. 10/05/2022 stating that, "... We reiterate that the claim request were reviewed and we regret to inform that claim decision remains unchanged." The Opposite Party also arbitrarily terminated the Policy of the Complainant and forfeited the premium sum of Rs.31,856.71/-.
13. Thus, the Complainant has been constrained to file the present complaint with following prayers:
    1. to pay the claim amount of Rs.1,52,635/- along with interest at the rate of 12% p.a. from 11/03/2022 till its realization with Rs 10,00,000/- towards damages for physical hardship and mental torture
    2. to re-instate and restore the policy bearing the number PROHLR010493276
14. The Complainants has placed reliance on true copies of following documents annexed with complaint compilation at Page No.35 to 72.
15. The Opposite Party has filed written version wherein it has denied all the allegations leveled in the complaint; the following are the main defenses:
    1. The Complainant approached the Opposite party for purchasing a health insurance policy. The Complainant submitted a proposal form bearing no. PROHLR010493276. Relying on the information provided by the Complainant in the proposal form and as per their requirement the Opposite Party issue the policy bearing no. PROHLR010493276 on 01/03/2018 which has been subsequently renewed and is valid till 07/03/2023. The insured members under the policy are the Complainant, Complainant's wife Nisha Kothari and Complainant's son Manan Kothari. The sum insured is 10,00,000/- on family floater basis.
    2. Claim repudiated as per conditions of the policy:-

The Complainant had filed a claim for reimbursement towards hospitalization for anthroscopic surgery performed on his son Manan Kothai for treatment of his right shoulder.

3. After scrutiny of the claim documents, the Opposite party had found that the Complainant's son had the history of supraspinatus tendon tear since 04/02/2018. The Opposite party submits that the history of supraspinatus tendon tear was not disclosed by the Complainant to the Opposite party at the time of opting the policy. It was the duty of the Complainant to disclose such pre-existing ailments to the Opposite party. The relevant clause of the policy is as follows:
4. VIII. 1. Duty of disclosure:

The policy shall be null and void and all premium paid thereon shall be forfeited to the company in the event of mis-representation, mis- description or non- disclosure of any material fact by the policy holder. (Material facts for the purpose of policy shall mean all relevant information sought by the company in the proposal form and other connected documents to enable it to take informed decision in the context of underwriting the risk)

5. In any event, the as per the policy conditions there is 48 months specific waiting period for treatment of all types of Pre-existing Ailments. The relevant clause is reproduced herewith as under:
6. V.1. Pre-existing disease waiting period: All Pre-existing Diseases / Illness/Injury/conditions as defined in the Policy, until 48 months of continuous covers have elapsed since inception of the first Policy with Us. This exclusion doesn't apply for Insured Person having any health insurance indemnity policy in India at least for a period of 48 months, prior to taking this Policy and accepted under portability cover, as well as for subsequent Renewals with us without a break.
7. The opposite party submits that from the said wordings it is crystal clear that the policy would not cover treatment of pre-existing ailments for a period of four years and further that the insured would be entitled to reimbursement for such treatment only after the lapse of period of 4 years. Hence the opposite party rejected the claim of the Complainant. The said wordings also make it clear that even if the ailments are declared or non-declared, there would be no coverage for a period of 4 years. In the present matter the policy was purchased by the Complainant in the year 2018 and that the period of 4 years would be completed only in the year 2022.
8. Also, the act and conduct of the Complainant is in gross contravention to the provisions of IRDAI Regulation. The relevant Clause 19(4) enumerating the "General Principles" is reproduced herein : "The policyholder shall furnish all information that is sought from him by the insurer, either directly or through the distribution channels which the insurer considers as having a bearing on the risk to enable the insurer to assess properly the risk covered under a proposal for insurance."
9. Estoppel by Conduct -At the time of issuance of policy, the policy kit containing all relevant documents was duly delivered to the Proposer, thereby giving him an opportunity to verify and examine the benefits, terms and conditions of the Policy. That Opposite Party has given Free Look Period of 15 days to the Proposer from the date of receipt of the Policy document to review the terms and conditions of this Policy. If proposer had any objections to any of the terms and conditions, he had the option of cancelling the Policy stating the reasons for cancellation and he would have been refunded the premium paid by him after adjusting the amounts spent on any medical check-up, stamp duty charges and proportionate risk premium. It is pertinent to submit that the Proposer never approached Opposite Party within the Free Look Period or after that either seeking any clarification related to the Policy or raising objection to any of the terms and conditions of the Policy implying thereby that the policy terms and conditions were acceptable to him. Thus, the Complainant is estopped by conduct from questioning the contents of the policy.

16. Both the parties filed affidavit of evidence with written argument. Heard oral argument of the Complainant.
17. Thus, on the contentions of all Complainant, following points arise for determination on which we record findings with the reasons given below:

REASONING

Point No.1 &2

18. Considering the oral and documentary evidence of both the parties, only question arise before us, whether the Opposite Party has rightly repudiated the insurance claim of the Complainant?
19. The Opposite Party has repudiated the insurance claim of the Complainant on the grounds:

VIII.1. Duty of disclosure: The Policy shall be null and void and no benefit shall be payable in the event of untrue or incorrect statements, misrepresentation, mis -description, or non- disclosure of any material particulars in the proposal form, personal statements, declaration, claim form declaration, medical history on the claim form and connected documents, or any material information having been withheld by You or any one acting on Your behalf, under this Policy. You further understand and agree that We may at Our sole discretion cancel the Policy and the premium paid shall be forfeited to Us.

  V. 1. Pre-existing disease waiting period: All Pre-existing Diseases / Illness/Injury/conditions as defined in the Policy, until 48 months of continuous covers have elapsed since inception of the first Policy with Us. This exclusion doesn't apply for Insured Person having any health insurance indemnity policy in India at least for a period of 48 months, prior to taking this Policy and accepted under portability cover, as well as for subsequent Renewals with us without a break.

20.  The insurance company repudiated the Complainant's claim for reimbursement of his son's arthroscopic surgery, citing non-disclosure of a pre-existing condition - supraspinatus tendon tear - which occurred before the policy's inception. According to the policy, there's a 48-month waiting period for pre-existing ailments, and the Complainant's policy was purchased in 2018, with the waiting period set to end in 2022. Thus the claim is not payable.
21. The Complainant come with the evidence and certificate and affidavit of treating Dr.Nimish Relan that on 04/02/2018 the Complainant’s son Manan was found to have shoulder subluxation in his right shoulder. The patient Manan was given oral medication and analgesics as treatment for his condition. The patient does not require any surgery even MRI scanning. The only advised was rest and physiotherapy as a part of treatment which is eloquent from the first prescription dt. 04/02/2018. Follow-up on 16/03/2019, showed improvement; treatment adjusted to oral medication and supportive therapy. The Complainant’s son come with the new complaint on 29/12/2021, of severe shoulder pain; MRI scan revealed Hill Sach's lesion, no supraspinatus tendon tear. Arthroscopic surgery was performed on 21/01/2022, where repaired anterior labrum of the patient.
22. Thus, considering the evidence of both the parties coupled with the treating doctor’s certificate and more particularly affidavit following points need to be ponder over:
    1. The Opposite Party has not produced documentary evidence to prove that in the year 2018 the Complainant’s son suffered from supraspinatus, but he has suppressed the said fact while taking policy.
    2. On 29/12/2021 the Complainant’s son Manama suffered from supraspinatus hence was treated by Dr.Nimish Relan
    3. There is vital difference in between the ailment subluxation and supraspinatus. The first ailment speaks about partial dislocation or alignment which can be set by oral medication with or without physiotherapy as against this the other ailment i.e. supraspinatus relates to……..
    4. It is manifest from the above discussed evidence that while taking the policy the Complainant’s son has no preexisting disease namely supraspinatus.
    5. If Manan had suffered a dislocation in 2018, rigours treatment would have been necessary before 2021-2022.
    6. The ailment suffered in 2018 was fully covered due to oral medication and physiotherapy
    7. The evidence of the treating doctor is not rebutted by the Opposite party in the above regard.
    8. Thus, it is crystal clear from the above evidence that there were no pre-existing diseases of supraspinatus so as to repudiated the claim.  On the contrary Opposite Party found to have misdirected by the medical terms and as to the ailment suffered by the Complainant’s son in 2018 and 2021. If really there would have been pre-existing diseases as claimed by the Opposite Party, then defiantly the documentary evidence would have been placed on record. However, no documentary evidence what so ever has been produced on record. On this background the evidence of the Complainant and treating Dr.Nimish Relan  shall prevail over the Opposite Party. Thus, the Opposite Party failed to prove the pre exiting diseases so as to deny legitimate claim of the Complainant.
23. Thus considering the facts, circumstances and evidence it is clear that, the there was no pre-existing disease, hence no question arises  as to non- disclosure of material fact. Thus, the denial of the Complainant’s claim by the Opposite Party was without any basis, which amounts to deficiency in service on its part.
24. Thus, on all the above grounds discussed supra the order of repudiation dt.11/03/2022 found to be arbitrary and unsustainable hence, the Complainant is justified to claim of Rs.1,52,635/- with 9% p.a interest from the date repudiation i.e.from11/03/2022 till its actual realization.
25. The Complainant has claimed compensation of Rs.10,00,000/- towards mental agony, damages with litigation costs. Considering the above discussed evidence, arbitrary act of Opposite Party about repudiation of claim, naturally he suffered mental agony and have been compelled to knock the door of this Commission with the help of Advocate coupled with time spent in fighting with Opposite Party from 2022 to till date; hence, she is justified to claim of compensation of Rs.1,00,000/- towards mental agony and damages etc.
26. After considering oral and documentary evidence of both the parties it is crystal clear that the Complainants’ son did not suffer the pre-existing diseases namely supraspinatus so as to have justification and ground to the Opposite Party to invoke forfeiture clause of the policy while repudiating the legitimate claim. Indeed, from fact, circumstances and evidence, it is manifest that there was remote ground to repudiate the claim by invoking forfeiture clause of the policy. Consequently, above both action of the Opposite Party found to be most arbitrary and high handed so as to avoid the liability in paying the legitimate insurance claim.
27. Thus, it is cleared that the Opposite Party has rendered deficiency in service and had adopted unfair trade practice in forfeiting the insurance claim by repudiation it. Hence under such circumstance the Complainant’s is justified in claiming restoration of the policy by taking legitimate premium from the Complainant so as to give continuous benefit of the ins policy.  Hence, we have answered the findings on all the points accordingly and proceed to pass following order:

FINAL ORDER

1. Consumer Complaint No. CC/212/2022 is partly allowed.
2. The Opposite Party is hereby directed to pay the claim of Rs.1,52,635/- with 9% p.a interest from the date repudiation i.e. from 11/03/2022 till its actual realization, within 45 days from the date of receipt of this order.
3. If the Opposite Party failed to pay the above said amount (order clause no.2) within 45 days from the date of receipt of this order, then it shall be liable to pay 12% interest p.a. on the above said amount till its actual realization.
4. The Opposite Party is hereby directed to restore the subject insurance policy by taking legitimate amount of premium by giving notice to the Complainant within 45 days from this order, so as to continue the subject policy with all benefits.
5. The Opposite Party do pay compensation of Rs.1,00,000/- towards mental agony, damages etc. to the Complainant.
6. Copies of this order be sent to both the parties free of costs.