Order by:
Smt.Aparana Kundi, Member
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that the complainant has been purchasing the health insurance policy since the year 1999 and in the year 1999 the complainant purchased the health insurance policy from New India Insurance Company and the same was thereafter ported to Star Health Insurance and further complainant ported the same from Star Health Insurance Company to Opposite Parties Max Bupa Health Insurance company vide policy No. 30081817201705. At the time of portal of the policy into Opposite Parties insurance company, the Opposite Parties specifically informed that all pre –existing diseases are covered after four years and as the policy which the complainant had availed is a continuous policy since the year 1999, therefore the complainant was informed by the Opposite Parties that all the diseases are automatically covered. Unfortunately, in the year 2017 the complainant was hospitalized in Aastha Kidney and Super Specialty Hospital, Ludhiana owing to some kidney disorder and was informed by the doctor that he would have to be operated upon and the complainant in pursuance of the terms and conditions of the policy, sent a request to the Opposite Parties for pre-authorization regarding his treatment vide Pre-authorization claim request I.D.148622, but the complainant was shocked to receive a e-mail dated 21.07.2017 from the Opposite Parties wherein it was informed that pre-authorization request made by the complainant for his treatment in Aastha Kidney and Super Specialty Hospital has been declined without giving any cogent and convincing reason. The complainant further made a request to reconsider the decision regarding kidney biopsy and had specifically mentioned that he is taking CILACAR since the last two years and he was diagnosed as a case of NEPHROTIC SYNDROME HAVING PROTINURIA MORE THAN 4 gms and the same is not caused by hypertension or dyslipidemia, so there was no occasion for the Opposite Parties to reject the genuine claim of the complainant and as such, there is deficiency in service on the part of the Opposite Parties. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties may be directed to reconsider the claim of the complainant.
b) To compensate the complainant to the tune of Rs.1 lakh on account of causing mental harassment, pain and agony.
c) To further pay a sum of Rs.1 lakh on account of their unethical and unprofessional acts and on account of deficiency in service.
d) To pay the costs and litigation expenses and
e) Any other additional or alternative relief to which the complainant is found entitled to, may kindly be g ranted to the complainant.
3. Opposite Parties appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is submitted that Max Bupa Health Insurance has nothing to do with the business conducted by other Health Insurance companies Star Health Insurance Company or New India Health Insurance Company. The policy under question Family first Silver bearing No. 30081817201200 was issued by the Opposite Parties on the basis of the information provided by the assured to the company and the complainant has tried to challenge the veracity of the decision of the Opposite Parties to repudiate the claim. The repudiation of the claim under the subject policy was on the grounds of misstatement of information, suppression of material information and furnishing of false information in the proposal form. Assured Ravi Khera at the time of submitting the proposal form, did not disclose the correct information about his health and habits, as per the submitted documents/ information done by the company it was found that the insured had history of hypertension and Hyperlipidemia since 2008 which was not disclosed at the time of taking the policy. Hence, as per the policy terms and conditions, the pre-authorisation for cashless treatment was denied. On merits, the Opposite Parties took up almost same and similar pleas as taken up by them in the preliminary objections and the complaint may be dismissed with costs.
4. In order to prove his case, the complainant tendered into evidence his affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C10 and closed the evidence on behalf of the complainant.
5. On the other hand, to rebut the evidence of the complainant, Opposite Parties also tendered into evidence the affidavit Ex.RA alongwith copies of documents Ex.R1 to Ex.R6 and closed the evidence.
6. We have heard the ld.counsel for the parties, written submissions of the Opposite Parties and also gone through the documents placed on record.
7. During the course of arguments, ld.counsel for the Complainant has mainly reiterated the facts as narrated in the complaint and contended that no such terms and conditions were ever conveyed or supplied to the complainant at the time of insurance and the alleged terms and conditions are not applicable on the case of complainant. Further contended that during the policy period, in the year 2017 the complainant was hospitalized in Aastha Kidney and Super Specialty Hospital, Ludhiana owing to some kidney disorder and was informed by the doctor that he would have to be operated upon and told that the costs of hospitalization be Rs..41,500/- and he sent a request to the Opposite Parties for pre-authorization regarding his treatment vide Pre-authorization claim request I.D.148622, but the complainant was shocked to receive a e-mail dated 21.07.2017 from the Opposite Parties wherein it was informed that pre-authorization request made by the complainant for his treatment in Aastha Kidney and Super Specialty Hospital has been declined without giving any cogent and convincing reason. The complainant further made a request to reconsider the decision regarding kidney biopsy and had specifically mentioned that he is taking CILACAR since the last two years and he was diagnosed as a case of NEPHROTIC SYNDROME HAVING PROTINURIA MORE THAN 4 gms and the same is not caused by hypertension or dyslipidemia, so there was no occasion for the Opposite Parties to reject the genuine claim of the complainant. On the other hand, the only contention for the rejection of the pre authorization of the treatment of the complainant is that policy under question Family first Silver bearing No. 30081817201200 was issued by the Opposite Parties on the basis of the information provided by the assured to the company and the complainant has tried to challenge the veracity of the decision of the Opposite Parties to repudiate the claim. The repudiation of the claim under the subject policy was on the grounds of misstatement of information, suppression of material information and furnishing of false information in the proposal form. Assured Ravi Khera at the time of submitting the proposal form, did not disclose the correct information about his health and habits, as per the submitted documents/ information done by the company it was found that the insured had history of hypertension and Hyperlipidemia since 2008 which was not disclosed at the time of taking the policy.
8. The main plea raised by Opposite Party is that the complainant has violated the terms and conditions of the policy in question and as per the terms and conditions of the policy, the complainant is not entitled to the claim as claimed. But the Opposite Party could not produce any evidence to prove that terms and conditions of the policy were ever supplied to the complainant insured, when and through which mode? It has been held by Hon’ble National Commission, New Delhi in case titled as The Oriental Insurance Company Limited Vs. Satpal Singh & Others 2014(2) CLT page 305 that the insured is not bound by the terms and conditions of the insurance policy unless it is proved that policy was supplied to the insured by the insurance company. Onus to prove that terms and conditions of the policy were supplied to the insured lies upon the insurance company. From the perusal of the entire evidence produced on record by the Opposite Party, it is clear that Opposite Party has failed to prove on record that they did supply the terms and conditions of the policy to the complainant insured. As such, these terms and conditions, particularly the exclusion clause of the policy is not binding upon the insured. 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.” Our own Hon’ble State Commission, Punjab, Chandigarh in First Appeal No.871 of 2014 decided on 03.02.2017 in case titled as Veena Mahajan (Widow) and others Vs. Aegon Religare Life Insurance Company Limited has also held so.
9. We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. The main contention of the Opposite Party is that on receipt of pre authorisation letter, it was investigated and found that Assured Ravi Khera at the time of submitting the proposal form, did not disclose the correct information about his health and habits, as per the submitted documents/ information done by the company it was found that the insured had history of hypertension and Hyperlipidemia since 2008 which was not disclosed at the time of taking the policy and there is no deficiency in service on the part of the Opposite Parties. But we do not agree with the aforesaid contention of the ld.counsel for the Opposite Parties. First of all, the complainant is continuously purchasing the medi claim policy since the year 1999 for the safety of his as well as her family’s life and protection with a understanding that in some bad days, he could claim the medical expenses, if required. It is also not disputed since the date of purchase of polices i.e. from 1999, the complainant has not claimed even a single penny on account of medical expenses. Furthermore, the opposite party also failed to prove on record that the complainant has taken any treatment for the said disease from any hospital. It has been held by the Hon'ble National Commission in case New India Assurance Co.Ltd&Anr Vs. Murari Lal Bhusri 2011(III) CPJ 198 (NC) that where the Insurance company failed to produce any evidence to show that respondent was aware of any pre-existing disease at the time when insurance policy was taken, opposite party was not justified in repudiating the claim of the complainant on the ground of pre-existing disease. So the abovesaid law squarely covers the case of the complainant that it was the duty of the insurer to get medically examined while issuing the policy and once the policy was issued the insurer cannot take the plea of pre-existing disease of the insured.
- Moreover, prior to issuance of the policy, it was required to check up life assured thoroughly. It was the bounden duty of the Opposite Party to make thorough investigation at the initial stage. It appears that the Opposite Party has different yard stick at the time of accepting the policy for procuring the business and different face at the time of discharge of its lawful liability. Not only this now-a-days it has become a business of almost all the Insurance Companies to deny the claim one or on another ground . Even otherwise in the fast growing business competition among the Insurance Companies unhealthy practice developed to get maximum benefits and profits. But in most of the cases he is left cheated when his claim is rejected with just a stroke of pen that his claim is against the terms and conditions of the policy or his claim has been deducted as per terms and conditions of the policy. The Insurance companies are required to explain all the details and conditions of the Insurance policy to the customers because a common man is not supposed to know all the technicalities of law. Once accepting the premium and everything entered into an agreement the Insurance company cannot wriggle out of the liability merely by saying that repudiation has been made as per terms and conditions of the policy .
11. It also needs to be mentioned that Section 19 of the General Insurance Business (Nationalization) Act, 1972 states that it shall be the duty of every Insurance Company to carry on general insurance business so as to develop it to the best advantage of the community. The denial of medical expenses reimbursement is utterly arbitrary on the ground that disease in question was pre-existing disease. It is mere an excuse to escape liability and is not bona fide intention of the insurance company. Fairness and non-arbitrariness are considered as two immutable pillars supporting the equity principle, an unshakable threshold of State and public behavior. Any policy in the realm of insurance company should be informed, fair and non-arbitrary. When the insurance policy has exclusions/conditions to repudiate the claim or limit the liability, the same must be specifically brought to the notice of the insured and are required to be got signed to show that such exclusions and conditions have been brought to his/her notice. Recently, our own Hon’ble State Consumer Disputes Redressal Commission, Chandigarh in First Appeal No. 50 of 2019 titled as Bajaj Alliance General Vs. Arjan Singh decided on 04.03.2021 also held so.
12. The need for interpreting a contract always arises in two situations, (i) when a gap is needed to be filled in the contract and (ii) an ambiguity is needed to be resolved in the contract, then to find out correct intention of the contract, spirit behind it is required to be considered. Normally, the insurance policy is a contract of adhesion in which other party is left with hardly any bargaining power as compared to the insurer. Insurance contracts are standard form contracts and are drafted by the insurance company and as such, insurance company is at higher footing than the insured. The benefit of such clause, as exclusion clause, would go to the insured unless the same is explained in clear terms by the insurer. In such circumstances, the tribunal would be more oriented towards the interpretation which goes against the party who has inserted/drafted the disputed clause in the agreement/contract. The adjudicating authority is required to look into whether the intention of the party is to exclude or limit liability has been appropriately explained to the other party or not. This Commission while interpreting insurance agreement is to honour the intention of the parties, who have signed the agreement. Even if the agreement had general exclusion/condition for misrepresentation still fraudulent misrepresentation and non-disclosure may not be there. The innocent and negligent misrepresentations are to be ignored. On the other hand, the rulings (i) Satwant Kaur Sandhu Vs. New India Assurance Company Limited, (ii) Murti Devi Vs. Birla Sun Life Insurance and (iii) Mamohan nanda Vs. United India Insurance Company Limited, cited by the ld.counsel for the Opposite Parties are not applicable and relevant to the facts of the present case. The insurance companies are in haste to charge the premium, but when the time to pay the insurance claim comes, they generally take up one excuse or the other to avoid their liability. The reliance of counsel for the appellant on law laid down in “Life Insurance Corporation of India Vs. Priya Sharma & others” 2012(4)CPJ-646, “Life Insurance Corporation of India & others Vs. Harbans Kaur” 2009(3)CPC-677, and “Life Insurance Corporation of India & another Vs. Ashok Manocha” 2011(3)CPC-285, would have been applicable, had this fact been established that life assured suffered from pre-existing ailment of and he deliberately suppressed this fact fraudulently from the Opposite Parties, when he took the insurance policy. In view of our finding recorded above that Opposite Parties had failed to prove this fact that complainant was suffering from any pre-existing ailment and hence these authorities would not be attracted in this case. In this regard, on the same and similar facts and circumstances of the case, Hon’ble State Consumer Disputes Redressal Commission, in First Appeal No.62 of 2015 decided on 02.02.2017 in case India First Life Insurance Vs. Ms.Sudesh Rani also held so. On the other hand, the rulings cited by the ld.counsel for the Opposite Parties are not applicable to the facts of the present case and we distinguish the same.
13. The law on the question of applicability of exclusion clause, suppression of the relevant factually position regarding any pre-existing disease from which the insured was suffering and the treatment thereof, if any, received from any hospital etc., has been the subject matter of number of decisions by the Hon’ble National Commission as also by the Hon’ble Supreme Court of India. In nutshell, the settled position is that it is the duty of the insured to disclose the above mentioned information to the insurance company at the time of buying the insurance policy and, if the same was not disclosed by the insured, the insurance company was well within their rights to repudiate the claim. However, the insured was under no obligation whatsoever to foresee, assess and apprehend the probable and future complications, which might or could suddenly arise from the earlier disorder. In this regard, the Hon’ble Supreme Court in their latest judgment in case Civil Appeal No.8386 of 2015 titled as “Manmohan Nanda Vs. United India Assurance Co. Ltd. & Anr.” decided on 06.12.2021, has held the object of buying a Medi-claim Policy is to seek indemnification in respect of a sudden illness or sickness which is not expected or imminent and that may occur overseas, “If the insured suffers a sudden sickness or ailment, which is not expressly excluded under the Policy, a duty is cast upon the insurer to indemnify the appellant for the expenses incurred there under”. In this regard, recently Honble State Consumer Disputes Redressal Commission, Punjab at Chandigarh in First Appeal No.482 of 2019, decided on 10.01.2022 in case titled as Bajaj Allianz General India Insurance Company Versus Kewal Singh Kainth also held so.
14. Furthermore, as per the proposal form Ex.R2 produced by the Opposite Parties themselves, at the time of obtaining the policy, the complainant was having date of birth as 10.05.1969 (meaning thereby which is more than 45 years, so it was the bounden duty of the Opposite Parties-Insurance Company to get the complainant medically examined before issuing the policy in his name who was above 45 years of age. In support of his contention Ld.counsel for the complainant placed reliance upon I.R.D.A.I Rules and Instructions with regard to thorough medical examination if the insured is more than 45 years which is reproduced as under:-
“As per instructions issued by the Insurance Regulatory and Development Authority of India (IRDAI), it was bounded duty of the insurer to put insured to thorough medical examination in case Mediclaim insured was more than 45 years and if insurance company failed to do so then insurance company has no right to decline the insurance claim on account of non disclosure of the facts of pre existing disease when the policy was taken. The above observations is supported by law cited in SBI General Insurance Company Limited Vs. Balwinder Singh Jolly” 2016(4) CLT 372 of the Hon’ble State Commission, Chandigarh.”
However, the opposite party has not placed on record any evidence that before issuing the policy they ever got medically examined the insured . So the abovesaid law squarely covers the case of the complainant that it was the duty of the insurer to get medically examined while issuing the policy and once the policy was issued the insurer cannot take the plea of pre-existing disease of the insured.
15. In such a situation the repudiation made by Opposite Party-Insurance Company regarding genuine claim of the complainant have been made without application of mind. It is usual with the insurance company to show all types of green pasters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seems that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
16. In view of the above discussion, we hold that the Opposite Party-Insurance Company have wrongly and illegally rejected the claim of the complainant.
17. To support their contention, the Opposite Party has cited the rulings, but these rulings are not applicable to the facts of the present case and are not supportive to the instant case.
18. The Opposite Parties vide Ex.R5 themselves produced the copy of pre-authorisation form in which the costs of hospitalization is mentioned as Rs.41,500/- and we allow the claim of the complainant accordingly.
19. In view of the aforesaid facts and circumstances of the case, we partly allow the complaint of the Complainant and direct Opposite Party-Insurance Company to pay the amount of Rs.41,500/- (Rupees forty one thousands five hundred only) to the complainant alongwith interest @ 8% per annum from the date of filing the present complaint i.e. 10.11.2017 till its actual realization. All pending applications are disposed off accordingly. The compliance of this order be made by Opposite Party-Insurance Company within 60 days from the date of receipt of copy of this order, failing which the complainant shall be at liberty to get the order enforced in accordance with law. Copies of the order be furnished to the parties free of cost by District Consumer Disputes Redressal Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
20. Reason for delay in deciding the complaint.
This Consumer Complaint was originally filed at District Consumer Disputes Redressal Forum (Now Commission) at Ludhiana and it keep pending over there until Hon’ble State Consumer Disputes Redressal Commission, Punjab vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 has transferred the instant Consumer Complaint alongwith Other Complaints to District Consumer Commission, Moga with directions to work on this file onward from 14th March, 2022 and accordingly District Consumer Commission, Moga has decided the present complaint at Camp Court, Ludhiana, as early as possible.
Announced in Open Commission at Camp Court, Ludhiana.
