The Complainant filed a petition u/s. 12 of the C.P. Act, 1986 against the O.Ps. The brief facts of the case is that the complainant is a widow lady and member of below poverty level. The complainant took a loan from the O.P No. 2 bearing Loan Account No. 7C5GPL72167440. After that the complainant being a insurance policy bearing No. 00229000201700 dated – 10/04/2018 from the O.P No. 1 for insured her life and the sum insured at the tune of Rs. 1,00,000/- only and period of insurance policy from 10/04/2018 to midnight of 09/04/2019. O.P No. 1 took premium from the complainant and issued a valid policy certificate and assuring the complainant that they will provide proper service towards the complainant. That due to chest pain the complainant was admitted in Alipurduar District Hospital on 06/02/2019 and on the next day she was shifted to N.J.M. Hospital, Coochbehar there from the complainant was admitted in Dr. P.K. Saha Hospital Pvt. Ltd., Coochbehar as an indoor patient and she was discharged on 15/02/2019. After treatment the Nursing Home Authority was charged an amounting to Rs. 1,15,685/- which was duly paid by the relatives of the complainant which they accumulated by way of loan and soon after release from the Nursing Home. Complainant submitted her claim before the O.P NO. 1 along with all relevant documents in respect of the legal claim which was registered as claim No. 414125 and the O.P No. 1 repudiated the said legal claim on 25/04/2019 stating inter alia “as per submitted doc7ument and investigation done by us it is found the patient has h/o hypertension since 4 years and on regular treatment regarding the same which falls prior to policy inception date that confirms condition of PED” without having any base with ill motive, whimsical, rejecting the legal claims of the complainant which is arbitrary capricious and against the object and principle of the insurance business. Thereafter, the complainant visited the office of the O.P No. 2 on several times but they did not pay any heed to it.
Hence, this case has filed by the complainant before the District Commission against the O.Ps with a prayer to pay Rs. 1,00,000/- as the claim amount with interest to the complainant and also prayed for a sum of Rs. 80,000/- for his mental agony and harassment by the O.Ps and Rs. 10,000/- towards litigation cost from the O.Ps.
The O.Ps have denied all the material allegations made by the complainant. The O.Ps have filed the written version and evidence in chief in this case. The case of the O.Ps are that as per the admission pro-forma and patient history sheet the complainant has suffered of Hypertension since 4 years and on regular medication. The O.Ps further stated that the treatment taken is for pre-existing conditions and as such there is a waiting period of 48 months for treatment taken for pre-existing conditions.
Copy of the claim for reimbursement is annexed herewith as Annexure - R-3 copy of the Investigation report with the relevant admission form and pro-forma highlights that the complainant is on continuous medication for 4 years for HTN is Annexure - R-4. They further submitted that the complainant did not appear before their examination in a clean hand and he has suppressed the fact in this case and according the case is to be dismissed.
We find that the present petitioner Smt. Taniya Ghosh, D/O - Late Habul Ghosh is the legal heir of the deceased complainant Sipra Ghosh who died on 04/11/2021 during the pendency of this case. As per law Smt. Taniya Ghosh, D/O – Late Habul Ghosh being permitted to contest this case as the legal heir of the deceased complainant.
We have gone through the materials on record very carefully and also perused the documents which are lying on case record. Considering the above pleadings the following issues are necessarily come up for the proper adjudication of this case.
POINTS FOR CONSIDERATION
- Is the complainant a consumer u/s. 2(7)(ii) of Consumer Protection Act, 2019 ?
- Has this Commission jurisdiction to try the instant case?
- Is there any deficiency in service on the part of the O.Ps?
- Is the complainant entitled to get any relief/reliefs as prayed for?
DECISION WITH REASONS
Considering the nature and character of the case all these points are interlinked to each other as such all the points are taken up together for consideration for the sake of brevity and convenience. The case has been filed u/s. 12 of the Consumer Protection Act, 1986 by the complainant.
Point Nos. 1 & 2:- It is admitted position that the complainant took a loan from O.P. No. 2 having her loan Account No. 7C5GPL72167440 and being included by the O.P. No 1 insured her life under the O.P No. 1 and at the tune of Rs. 1,00,000/- as per privation of C.P. Act the Complainant is a consumer and she is entitled to file this case for her relief. So there is no hesitation to hold that the complainant is a consumer within the meaning of u/s. 2(7)(ii) of C.P. Act, 2019 and the complainant and she resides within the jurisdiction of this Commission and the O.Ps runs his business through O.P No. 2 within the territorial jurisdiction of this Commission. Therefore, this Commission has territorial jurisdiction to try this case as per u/s. 34 of C.P. Act, 2019.
Point Nos. 3 & 4:- It is admitted position that the complainant took a loan from O.P No. 2 and insured her life under O.P No. 1 and the sum insured amount of Rs. 1,00,000/- on 10/04/2018 bearing Policy No. 00229000201700 and the period of from 10/04/2018 to midnight of 09/04/2019 for which the O.P No. 1 took premium and insured a valid policy.
The dispute started when the complainant on 06/02/2019 admitted to her chest pain at Alipurduar District Hospital and on the next day she was shifted to MJN Hospital Cooch-Behar there from the complainant was admitted in Dr. P.K. Saha Hospital Pvt. Ltd., Cooch Behar as on indoor patient and she was discharged on 15/02/2019 and paid the amount of Rs. 1,15,685/- to the nursing home for her treatment. After that the complainant submitted the claim before the O.P No 1 along with all documents which was registered as claim No. 414125 and gave plea that after investigation it is found the patient has Hypertension since 4 years and on regular treatment.
Now, the question is there is any deficiency in service on the part of the O.Ps? or is the complainant is entitled to get any relief/reliefs as prayed for?
After hearing both the parties we are the considered view that once the policy has been issued after assessing the medical condition of the insurer and they cannot repudiate the claim by citing an existing the medical condition. The proposer is presumed to know all the facts and circumstances concerning the proposal insurance. The concealment of Hypertension was material. Hypertension is a common condition and that it would not have been a major factor in the insurer’s decision to issue the policy or to set the premium.
The Hon’ble Supreme Court made these observations in the case of Sheryl Sebastian Vs United India Insurance Company Limited. Hon’ble Supreme Court held that the Insurer could not refuse the policy on the basis of the concealment of Hypertension. The Supreme Court Judgment in this case is a well come relief for insurer who have concealed a minor health condition when applying a medical insurance policy. The judgement makes it clear that insurers cannot use such concealments as a pretext to deny reimbursement of the medical expenses.
It appears from the case record that the complainant insured her life under the O.P. No. 1 and the same insured at the tune of Rs. 1,00,000/- on 10/04/2018 and the period of insurance from 10/04/2018 to midnight of 09/04/2019, for which O.P. No. 1 took premium and issued a valid policy assuring the complainant that they will provide proper service towards the complainant. The complainant paid the premium for her health insurance with an expectation that at the time of her requirement she will get the benefit from the insurance company, but in most of the cases we find that the insurance company taken premium but when the claim petition filed by the complainant they are avoiding the complainant and repudiated her claim.
We find there is a definitely deficiency in service from the side of the O.Ps by taking a flimsy ground to avoid the payment to the complainant. We are of the considered view at a disease is a consider material if it would have influenced the insurer’s decision to issue the policy or to said the premium. The insurer has the burden of proving that the concealment of a disease was material. If the insurer is unable to prove that the concealment of a disease was material, the insured is entitled to reimbursement of medical expenses of the complainant. Complainant is entitled to get Rs, 1,00,000/- as the claim of insured amount and she also get entitled to Rs. 40,000/- for her mental agony and harassment. The complainant is also entitled to get Rs. 10,000/- as litigation cost. The O.P No. 1 is liable to pay the said amount of compensation to the complainant.
Thus all the points are disposed of accordingly in favour of the complainant.
Hence, for ends of justice; it is;-
ORDERED
that the instant case be and same is allowed on contest against the O.P No. 1 and dismissed against O.P No. 2. The complainant (Smt. Taniya Ghosh legal heir of the deceased complainant) do get an award amounting to Rs. 1,00,000/- (One Lakh) for his insurance claim for medical treatment along with interest of 6% Per Annum from the date of filing to till the realization of the amount. The complainant is also do get an award amounting to Rs. 40,000/- (Forty Thousands) as compensation for his harassment, mental agony and sufferings and also Rs. 10,000/- (Ten Thousands) as his litigation costs; total decreetal amount of Rs. 1,50,000/-(One Lakh Fifty Thousands) excluding interest. The O.P No. 1 is liable to pay the said award amount and he is hereby directed to comply this order within 30 days from this day, failing which legal action will be taken against him.
Let a copy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action.
Dictated & Corrected by me
