Complainant Mrs.Lata Sharma & other vide the present complaint filed U/S 12 of the Consumer Protection Act, 1986 (hereinafter for short The Act) for issuance of the necessary directions to the titled opposite party to make the payment of Rs.1,86,000/- alongwith interest @ 9% per annum from the date of complaint till its realization. Opposite party be further directed to pay Rs.50,000/- for mental agony and pain and sufferings to them, in the interest of justice.

2.       The case of the complainant in brief is that they have taken a family Health policy from opposite party bearing Policy No.30458629201500, Customer ID 0000362808 dated 12.09.2015 under Individual and Family Floater Scheme in which they and their family members i.e. son Ashutosh Sharma are covered. Thus they are consumers of the opposite party. The sum assured in this policy is upto Rs.7,50,000/-. Arun Sharma complainant who is also covered under the said policy got seriously ill and got medical treatment from Amandeep Hospital Dalhousie Road, Mamoon, Pathankot. Lata Sharma got admitted in the abovesaid hospital from 19.11.2015 to 22.11.2015. They have lodged claim amounting to Rs.1,86,000/- with the opposite party which was refused by opposite party vide e-mail dated 16.12.2016 sent to Arun Sharma  on the ground that the insured Arun Sharma has past history of HTN since 11 years, Alcoholic since 20 years, Chronic smoker since 20 years. It was next pleaded that ground taken for the repudiation of the claim was illegal un-natural and against the principle of natural justice. Mrs.Lata Sharma sent the legal notice to the office of opposite party through his counsel on 28.01.2016 to review the decision of repudiation of the claim, but no reply was sent regarding that notice. Hence this complaint.

3.      Upon notice, the opposite party appeared through its counsel and filed its written version taking certain preliminary objections. On merits, it was admitted that the policy bearing no.30458629201500 was issued to the complainants and she was allotted customer ID 0000362808. The sum insured was Rs.7.5 lacs. It was denied that the policy issued under “Individual and floater scheme.” It was submitted that complainant had purchased a health insurance policy called Health Companion Family Floater Policy from the opposite party and opted for the plan Health Companion 7.5 Lacs 2 Adults 1 Child. However during the conversation with the Insurance Counselor telesales she did not disclose true ad correct medical history of the persons insured under the policy and therefore, assuming that the proposer is a healthy person and hence risks involved in insuring him are within the acceptable limits, health insurance policy was issued by the opposite party. It was further submitted that an investigation was conducted by the person authorized by the opposite party to ascertain the facts. During the course of the investigation it was revealed that the complainant was suffering from HTN since 11 years i.e. since before policy inception. It was also revealed that he was alcoholic and chronic smoker since 20 years. During the course of the verification of the claim the complainant provided the written statement wherein she stated that her husband was taking “TABLE NEOPRESS SINCE 6 to 12 MONTHS”. This medicine is used to treat HTN. The complainant was obligated disclose these details at the time of the inception of the policy. However during the conversation with the Insurance Counsellor – telesales she did not disclose these details. All other averments made in the complaint has been vehemently denied and lastly prayed that the complaint may be dismissed with costs.

4.                Complainant tendered into evidence his own affidavit Ex.CW1/A along with the other documents exhibited as Ex. C1 to Ex.C9 including Ex.C-5A and closed the evidence.

5.        Counsel for the opposite party tendered into evidence affidavit of Sh.Akanksha Kapoor Working as Manager Legal Ex.OP-1, alongwith the other documents Ex.OP2 to Ex.OP45 and closed the evidence.

6.             We judicially observe with the analytic but judicious precision  and find that the OP insurers vide its e-mail (Ex.C9 dated 18.01.2016) and again vide its letter (Ex.OP12 of 25.07.2016) have arbitrarily repudiated the complainant’s insurance claim No.164489 of 04.12.2015 on account of his alleged suppression of i) past history of HTN since 11 years, ii) being an alcoholic since 20 years & iii) being a chronic smoker since 20 years; in the related proposal form Ex.OP6 (Information Summary Sheet) amounting to material non-disclosure violating the terms and condition of the applicable policy in turn prompting the resultant repudiation.

7.       The complainants have vehemently refuted the alleged violation of policy terms by way of material non-disclosure/suppression of any pre-existing ailment/health condition etc as it could not have escaped the notice of the OP insurers’ designated doctor who had duly conducted the complainant’s medical examination before recommending him for the instant health insurance policy. The OP insurers have not contested the above referred assertion and instead have attempted to justify the impugned repudiation by placing reliance upon i) investigation, treatment, discharge summaries & others (Ex.OP20 to Ex.OP29 and Ex.OP34 to Ex.OP42) alike by the Hospital giving current treatment who have simply made a passing reference to the pre-existed but allegedly non-disclosed past ailments and that too at the information orally provided by the patient’s attendants at the time of admission with no subsequent evidence of past medical treatment/history and/or other etc and not supported by any deposition etc. Further, the OP insurers have placed forth its repudiation reliance upon the investigation report Ex.OP43, co-complainant’s statement Ex.OP44 and lastly upon the patient’s history sheet by the treating Hospital Ex.OP45. None of the said exhibits has been accompanied by the requisite affidavit to support its contents. The investigation report confirms having made no subsequent investigations into the past medical treatment of the allegedly suppressed ailments and has simply recommended ‘claim repudiation’ in a stereotyped pre-determined manner and thus deserves an outright rejection. The co-complainant’s statement Ex OP44 has been honest and stands opposed to the claim repudiation. Again, the treating Hospital’s History sheet simply reproduces the oral information (in writing) on the complainant’s past health as provided by him and the accompanying attendants at the time of admission in the heat of the moment sans any authoritative evidence etc. Thus, we find that the OP insurers have totally failed to prove the legal validity of its arbitrary repudiation of the complainant’s insurance claim and that lines them up to an adverse statutory award under the applicable Act.                 

8.       Thus, the alleged misrepresentation/ concealment/ non-disclosure of material facts etc do not stand proved. In such like repudiations the onus of proof always lay heavily upon the insurers but here they have miserably failed to legally discharge the same successfully. We are strengthened in our above proposition by virtue of the valuable comments as made out by the honorable Punjab State Commission in the FA # 537 of 2008 titled: LIC of India vs. Priya Sharma & ors., as: “…. in this case, there is no evidence on record to prove that the deceased life assured was suffering from any pre-existing disease at the time of purchasing the policy. …. There is no evidence to prove that the deceased was ever admitted or took any treatment from any hospital or the doctor regarding the alleged pre-existing disease. …”.  The honorable National Consumer Commission has further elaborated the legal proposition in RP # 218 of 2008 titled United India Insurance Co. Ltd., vs. Anumolu Rama Krishan as: “7… Even if Respondent was suffering from these diseases which admittedly do not occur overnight, it is both possible and plausible that he was unaware of it since these can be ‘silent diseases’ and a person suffering from them may not even be aware until the condition aggravates and overt symptoms appear….”.  We also find that the instant claims as put forth by the complainant has been kept illogically deferred awaiting ‘settlement’ for collateral but arbitrary reasons. Even, the expert professional opinion pertaining to pre-existing disease cannot be taken as an evidence of its ‘non-disclosure/suppression’ by the insured since he may not be ‘himself’ aware of  the disease present in its latent hibernating state.

9.       In the light of the all above, we are of the considered opinion that the OP insurers have blatantly bruised the consumer rights of the present complainant by employing ‘unfair trade practice’ amounting to ‘deficiency in service’ (on their part) and that lines them up for an adverse statutory award under the applicable Consumer Protection Act’ 1986.

10.     We, therefore,  partly allow the present complaint and thus ORDER the OP insurers to settle and pay the present ‘insurance claim’ as per the governing ‘terms’ of the applicable Health Insurance Policy (to its full benefits) but strictly in accordance with the IRDA guidelines on ‘settlement of claims’ to the present complainants besides to pay her Rs.10,000/- as cost and compensation within 30 days of receipt of the copy of the present orders otherwise the aggregate award amount shall attract interest @ 9% PA from the date of the orders till actual payment.

11.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.

          (Naveen Puri)

                                                                             President   

Announced:                                                     (Jagdeep Kaur)

October 27, 2016                                                      Member

*MK*