BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 660 of 2015
Date of Institution: 17.11.2015
Date of Decision: 27.07.2016
- Saroj Sharma wife of Sh.Ramesh Kumar
- Ramesh Kumar son of Sh.Rattan Chand, both residents of H.No.F-9/1315, Gali Peera Wali, Vijay Nagar, Batala, Amritsar.
Complainants
Versus
- Max Bhupa Health Insurance Company, 2nd Floor, Kunal Tower, Plot No.88, Mall Road, Ludhiana through its Manager, Senior Divisional Manager/ Person Over All Incharge.
- Max Bhupa Health Insurance Company Limited, having corporate office, B1/1-2, Mohan Co-operate Industrial Estate, Mathura Road, New Delhi-110044, through its Principle Officer/ Person over all Incharge.
Opposite Parties
Complaint under section 11 & 12 of the Consumer Protection Act, 1986 as amended upto date.
Present: For the Complainants: Sh.Munish Kohli, Advocate
For the Opposite Parties: Sh. R.P.Singh, Advocate
Coram
Sh.S.S.Panesar, President
Ms.Kulwant Kaur Bajwa, Member
Mr.Anoop Sharma, Member
Order dictated by:
Sh.S.S. Panesar, President.
1. Smt.Saroj Sharma and another have brought the instant complaint under section 11 & 12 of the Consumer Protection Act, 1986 on the allegations that the complainants had received a call from the agents of Opposite Parties No.1 and 2 namely Amit Khanna and Kusam Mahajan and with their consistence persuasion, the complainants had port from National Insurance to Opposite Parties No.1 and 2 Family Health Insurance Policy which covers the risk of policy holder as well as his family members and the said policy known as ‘Health Companion’ commencing by paying a premium of Rs.12,118/- in the shape of cheque at Amritsar for a sum assured of Rs.3 lacs from Opposite Party No.1 through Opposite Party No.2 vide policy No.30428086201500 valid for the period w.e.f. 8.6.2015 to 7.6.2016 against the requisite premium covering the medical risk of all the family members of the complainants and as such, the complainants are consumers of the Opposite Parties as defined under Consumer Protection Act. It is a fact to be mentioned over here that prior to that the complainants had been regularly purchasing/ obtaining Mediclaim policy from National Insurance Company Limited w.e.f 2009 till June 2015 and thereafter on account of consistent persuasion of the agents of Opposite Parties namely Amit Khanna and Kusam Mahajan who visited the house of the complainants, the complainants obtained the mediclaim policy from Opposite Parties for valuable premium as detailed above. At the time of obtaining the said mediclaim policy, said agents of Opposite Parties obtained signatures of both the complainants on various blank papers and forms, etc. under the impression that all the documents related to their insurance policy, but however, no explanation of any kind whatsoever was given to the complainants at that time by the said agents of Opposite Parties. It is further a fact to be mentioned over here that the complainants are only matriculate persons and were not conversant with any such technicalities and as such, they signed the said documents and forms believing on the version of said agents of Opposite Parties and all the requisite formalities of documentation were completed as per asking/ directions of concerned officials of Opposite Parties. Medical examination of complainant No.2 was conducted at Universal laboratory by doctor Gaurav Sharma situated at Tilak Nagar, Amritsar as per advice of Opposite Parties . As such, all the requisite formalities were got fulfilled by the complainants as per full satisfaction of the Opposite Parties. The complainants are holders of cashless medical hospitalization facilities under the Scheme under the policy having Card No.2000106472 issued by Opposite Party No.1, through Opposite Party No.2 to provide cashless hospitalization facilities to the holders of this card. It is important to mention that only card No. 2000106472 was given to the complainants and no insurance cover note, schedule and terms and conditions of the insurance were ever supplied to the complainants much less the alleged terms and conditions ever formed part of contract between the parties. During the validity period of the said policy, complainant No.1 was hospitalized in Surjit Hospital, Airport Road, Amritsar and after conducting proper medical examination, she was operated for Fibroadenosia with lump excision (which is a Harmonal problem) and it is the most common disorder of the breast resulting from hormonal imbalanace which generally occurs in women between the age of 35 to 50. Complainant No.1 was not having any such past disease and the complainant suddenly suffered from said disease and came to know about the same only in the month of July, 2015 and as such, she was got treated due to emergent need and her surgery was got conducted and she remained hospitalized w.e.f. 18.8.2015 to 22.08.2015 as per the advice of concerned doctor. The requisite medical certificate issued by Dr.Gagandeep Singh of Surjit Hospital is enclosed herewith for perusal of this Forum. At the time of admission, the complainant presented the card issued by Opposite Parties No.1 and 2, but Opposite Parties refused the complainant to provide cashless facility and insisted for deposit of the cash amount with the concerned hospital. After that, complainant No.2 approached Opposite Parties and the officials of Opposite Parties assured that they would refund the amount spent by the complainants for the operation of Complainant No.1 in Surjit Hospital alongwith all other expenses incurred on her medical treatment and medicine etc. Further time to time, complainant No.2 approached Opposite Parties and made them aware that complainants are entitled for the cashless hospitalization facilities for Rs.44,025/-, but the Opposite Parties have refused to pay the genuine claim. The impugned claim was lodged for reimbursement of medical expenses with the Opposite Parties and all the requisite documents and original medical bills etc. were supplied to the Opposite Parties, but the Opposite Parties have failed to process the claim of the complainants within the stipulated period and rather on the contrary instead of paying the genuine claim, Opposite Parties repudiated the impugned claim of the complainant on 13.10.2015 under clause 4-A of the terms and conditions of the policy. The cause of action arose to the complainant to file the present complaint against Opposite Parties firstly in the month of July, 2015 when the complainants came to know about the said disease of Complainant No.1 and thereafter on 18.8.2015 when the complainant No.1 remained hospitalized and discharged on 22.8.2015. Vide instant complaint, the complainants have prayed for directing the Opposite Parties to pay a sum insured amount to the tune of Rs.44,025/- alongwith interest @ 18% per annum and compensation to the tune of Rs.40,000/- may also be awarded to the complainants which the complainants have suffered on account of mental agony and harassment besides costs of litigation to the tune of Rs.11,000/-. Hence, this complaint.
2. Upon notice, Opposite Parties appeared and contested the complaint by filing joint written statement taking preliminary objections therein inter alia that the complainants have concealed the material facts from this Forum and have not come to the court with clean hands, therefore, they are not entitled to any claim. In this case, as per the documents provided by the complainants and after going through the documents, it was found that the Complainant No.1 underwent Rt Breast surgery in 2012, which falls prior to the policy inception, hence as per the pre-existing disease, claim merits repudiation and as such, it revealed that the Complainant No.1 was suffering from pre existing disease, but this fact was not mentioned in the proposal form, duly filled and signed by the complainants at the time of getting the policy after portability from the Opposite Parties, therefore, the complainants intentionally concealed the material facts from the Opposite Parties, therefore, they are not entitled to any claim as alleged in the complaint. Had the complainants disclosed the disease at the time of procuring the policy, it could not have been issued by the Opposite Parties. The present policy bearing no.30428086201500 was issued for the period 8.6.2015 to 7.6.2016 having sum insured of Rs.3 lacs under Health Companion Family Floater, the present policy was ported from National Insurance Company Limited as per Portability guidelines. Had the insured knew about the Rt breast surgery in 2012, it would not have ported the policy. In this case, on receiving the intimation of claim, the answering Opposite Parties went through the documents made available and it was found that the patient underwent Rt breast surgery in 2012, which falls prior to the policy inception, therefore, the claim was rightly repudiated under clause 4(a) & non disclosure clause of the policy; that no medical of Complainant No.1 was conducted at the time of issuance of the policy as she had disclosed history of gall bladder surgery was done in 2011 and had fully recovered; that in this case, the complainants have leveled allegations against Amit Khanna and Kusam Mahajan alleging that they were agents of Opposite Parties, but both have not been made parties, therefore, the present complaint is not maintainable as the allegations leveled against them can only be replied by them, therefore, the present complaint is liable to be dismissed on this short ground; that the complainants have breached the terms and conditions of the policy, therefore, they are not entitled for any claim; that the complainants are estopped by their own act and conduct from filing the present complaint, as the complaint has been filed without any cause of action and that the complainants have no locus standi to file the present complaint. On merits, it is stated that the complainants, with their own free, will shifted the policy from National Insurance Company to Opposite Parties and the policy was issued as per the proposal form filled by complainants. After relying upon the information given by the complainants, the policy was issued to them in good faith and both the parties are bound by the terms and conditions of the policy. The allegations have been leveled against Amit Khanna and Kusam Mahajan which can only be replied by both of them. So far as knowledge of Opposite Parties is concerned, nothing has happened as mentioned in this para and the complainants be put to strict proof thereof. It is denied that any blank papers have been got signed by any agent of Opposite Parties from the complainants. It is worthwhile to mention here that the complainants have tried to manipulate the facts and have concocted the story to get undue benefits by filing the present complaint. No medical of Complainant No.1 was conducted at the time of issuance of the policy as she had disclosed history of gall bladder surgery which was done in 2011 and she had fully recovered. It is denied that complainants were not provided the insurance cover note, schedule and terms and conditions of the policy. It is denied that repudiation of the claim is unlawful, arbitrary and without any basis or there is any negligence, carelessness and deficiency in service on the part of Opposite Parties. It is submitted that the complainants were themselves guilty of suppression of material facts from the knowledge of the Opposite Parties, therefore, they are not entitled to any claim. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.
3. In their bid to prove the case, the complainants tendered into evidence duly sworn affidavit of Complainant No.1 Ex.CW1/A in support of the allegations made in the complaint and also produced copies of documents Ex.C1 to Ex.C49 and affidavit of Kusam Mahajan Ex.CW2/A and closed the evidence.
4. To rebut the evidence of the complainants, the Opposite parties tendered into evidence the affidavit of Sh.Sumeet Bajaj Ex.OP1,2/1 alongwith copies of documents Ex.OP1,2/2 to Ex.OP1,2/7 and closed the evidence of the Opposite Parties.
5. We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.
6. Ld.counsel for the Opposite Parties has vehemently contended that the claim of the complainants was repudiated by the Opposite Parties under clause 4-A and non disclosure clause of the policy. No medical examination of complainant Saroj Sharma was conducted at the time of insurance policy. She had disclosed gall bladder surgery which was done in 2011 and she stated that she has fully recovered from the same. In view of the facts, the policy was also cancelled by the Opposite Parties as per the terms and conditions of the policy and due intimation of the repudiation and cancellation was given to the complainants. Opposite Parties have proved on record the copy of policy Ex.OP1,2/2, its terms and conditions Ex.OP1,2/3, proposal form Ex.OP1,2/4, cancellation of policy Ex.OP1,2/5, repudiation letter Ex.OP1,2/7. In the repudiation letter, it was specifically mentioned that (i) in patient hospitalisation, ICU, Hospital Accommodation is not covered under Members benefit, (ii) as per verification done it has been noted that patient underwent right breast surgery in 2012 which fall prior to policy inception and also was not disclosed with us at the time of policy inception, hence as pre-existing clause of 4(a) and non- disclosure clause, claim merits repudiation. So far as the proof of pre-existing disease and non-disclosure clause is concerned, in para No.8 of the complaint, it has been specifically admitted by the complainant when it is stated that “ the complainant had already disclosed the factum of her previous medical treatment taken in the year 2012 to the agent of Opposite Parties namely Amit Khanna and Kusam Mahajan at the time of obtaining the insurance policy from Opposite Parties and the form was fulfilled by Amit Khanna in his own handwriting.” From this averment, one thing is clear that the complainant was having pre existing disease, which was not disclosed by the complainant. So far as the allegation levelled by the complainant in the complaint regarding getting signature(s) on blank papers and blank form are concerned, it is alleged that the complainant has filed the affidavit of Kusam Mahajan in which she has supported the complainant and stated that Amit Khanna has taken the signature on the blank papers and forms from the complainants and filled the same in the presence of Kusam Mahajan. Kusam Mahajan is the employee of Opposite Parties and she has connived with the complainant to give her undue benefit and the connivance is specifically exhibited from the fact that in the proposal form Ex.Op1,2/4, the complainant has specifically stated regarding the previous disease of gall bladder stone operation. If for the sake of arguments, it is accepted that the allegation of the complainant regarding signature of complainant (s) on the blank proposal form then from where the previous history of gall bladder came to the knowledge of Kusam Mahajan or Amit Khanna, which has been specifically mentioned in the proposal form. The proposal form has also been duly signed by Kusam Mahajan, if the form was signed blank, there must not have been the mention of previous treatment history of the complainant. But this fact has never denied by the complainant that she underwent gall bladder stone operation in the year of 2011. From this fact it is clear that Kusam Mahajan has connived with the complainant and is trying to cheat the Opposite Parties with which she has been working. On the other hand, as per affidavit given by Kusam Mahajan, she has stated that the blank papers were signed by Amit Khanna and were also filled by him. The perusal of the proposal form Ex.OP1,2/4 shows that there are no signatures of Amit Khanna on the proposal form rather it bears the signature of Kusam Mahajan, which falsify the stand taken by Kusam Mahajan regarding filling the proposal form by Amit Khanna. This fact also fortify the connivance with Kusam Mahajan with the complainant. In the questionnaire given to Kusam Mahajan, in the answer of question No.2 she stated that the affidavit was got drafted by Manish Kohli, counsel for the complainant, on her instructions. Kusam Mahajan was not the summoned witness rather she was contacted by the complainant and she gave her affidavit against the facts and she cleverly gave the answer to question No.2 stating that Amit Khanna obtained signatures of complainant on various blank papers, forms etc. in her presence without disclosing nature and contents of those documents, whereas the proposal bears the signatures of Kusam Mahajan only and not those of Amit Khanna and gall bladder history was also given which can only be mentioned if the due information was provided, which shows that the signatures was not obtained on blank papers, rather the proposal form was filled by the complainant and duly signed by them after admitting the contents to be correct. Kusam Mahajan in reply of question No.16, has admitted that previous history of disease was disclosed at the time of obtaining policy by Ramesh Kumar and Saroj Sharma. It means that the previous history was disclosed by the complainant and same was filled in the proposal form. On the basis of aforesaid discussion, ld.counsel for the Opposite Parties has vehemently contended that signatures of the complainants were not taken on blank papers or form, rather the information which was given by the complainants was duly interpreted in the proposal form. The complainants, after admitting the same to be correct, signed the proposal form, therefore, the present complaint is liable to be dismissed and it is requested that the complaint may please be dismissed accordingly.
7. However, from the facts and circumstances of the case, it becomes ample clear that the repudiation in the present case has been made without any rhyme or reason. It is proved on record that Health Companion Insurance policy was obtained by the complainants from Opposite Parties through agents of Opposite Parties namely Amit Khanna and Kusam Mahajan. It is the case of the complainants that medical examination of complainant No.2 only was conducted at the time of issuance of the policy while no medical examination of Complainant No.1 was conducted. It is further case of the complainants that the agent Amit Khanna had filled the proposal form while relevant forms, documents were got signed from the complainants while being blank. This fact has been admitted by none else, but Kusam Mahajan employee of Opposite Parties. Had the proposal form and other relevant forms relating to the policy were filled in the presence of the complainants and got signed from them after filling, there was no reason with Kusam Mahajan to submit a duly sworn affidavit to that effect. Opposite Parties have not initiated any action either against Amit Khanna or Kusam Mahajan so far which shows that testimony of Kusam Mahajan before this Forum was true & correct. No iota of connivance of Kusam Mahajan with the complainant has been proved by the Opposite Parties. There is no denying the fact that Health Companion Insurance policy was obtained by the complainants from Opposite Parties No.1 and 2 vide Policy No. 30428086201500 valid for the period w.e.f. 8.6.2015 to 7.6.2016. It is also an admitted fact that complainant No.1 was admitted in Surjit Hospital, Airport Road, Amritsar and she incurred a sum of Rs.44,025/- on her treatment. It is also not disputed that the complainant moved for refund of the insurance amount on account of her medical treatment by filing the claim with Opposite Parties No.1 and 2, but however, the claim was declined vide repudiation letter Ex.OP1,2/7 on the basis of terms and conditions 4-A of insurance cover. But however, clause 4-A of the insurance cover is not applicable in the case of the complainant because no terms and conditions were ever supplied to the complainants before at the time of obtaining the policy. Reliance in this connection can be had on Modern Insulators Ltd.Vs. Oriental Insurance Company Limited (2000) 2 SCC 734, wherein it is held that In view of the above settled position of law, we are of the opinion that the view expressed by the National Commission is not correct. As the above terms and conditions of the standard policy wherein the exclusion clause was included, were neither a part of the contract of insurance nor disclosed to the appellant, the respondent can not claim the benefit of the said exclusion clause. Therefore, the finding of the National Commission is untenable in law.” There is absolutely, no evidence to show that there was any misrepresentation regarding pre existing disease on the part of Complainant No.1 at the time of obtaining the insurance policy in dispute. If Complainant No.1 could detail about the gall bladder surgery undertaken on her in the year 2011, there was absolutely no hitch with her to detail the surgery in the year 2012. The burden to prove the deliberate concealment and misrepresentation was upon the Opposite Parties which they have miserably failed to demonstrate or prove in accordance with law. Reliance in this connection can be had on Capt.Malkiat Singh Vs. Castle Toyota/ANR Motors Private Limited & Others 2014(3) CLT page 205 of Hon’ble State Commission, Punjab, Chandigarh wherein it has been laid that it is now well settled that the burden heavily lies on the insurance company to prove the allegation of deliberate concealment and mis-representation. In the present case the respondent has failed to discharge the burden. An apparent look at the policy would show that the conditions are printed in such a small type that even a normal person cannot read them. Apart it has not been proved that the agent had fully explained all the conditions before getting the proposal form signed, more so when the whole proposal form has been filled in by the agent- Mere presumption never make any proof- Appeal allowed. In the instant case the proposal form has been filled by agent of the Opposite Parties and the complainants were just made to sign the blank proposal form. In such a case, the complainants can not be said to have withheld/ concealed the earlier aliment wilfully from the Opposite Parties.
8. From the aforesaid discussion, it emerges that the rightful claim of the complainants has been wrongly repudiated by the Opposite Parties without any rhyme or reason and the complainants are entitled to the refund of Rs.44,025/- as medical claim alongwith interest @ 9% per annum from the date of filing the complaint until full and final recovery. The costs of the complaint are assessed at Rs.2,000/-. Compliance of this order be made by Opposite Parties within 30 days from the date of receipt of copy of this order, failing which the awarded amount shall carry interest @ 6% per annum from the date of filing the complaint unless full and final recovery. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
Dated: 27.07.2016. (S.S.Panesar) President
(Anoop Sharma) (Kulwant Kaur Bajwa)
Member Member
hrg
