Haryana

Karnal

CC/569/2021

Suresh Chand Bhardwaj Advocate - Complainant(s)

Versus

M/s Cholamandlam MS General Insurance Company Limited - Opp.Party(s)

Narian Singh

23 Aug 2022

ORDER

      BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                       Complaint No. 569 of 2021

                                                        Date of instt.12.10.2021

                                                        Date of Decision:23.08.2022

 

Suresh Chand Bhardwaj Advocate son of late Shri Jyoti Ram, resident of 25, Jarnailly Colony, Karnal.

 

                                               …….Complainant.

                                              Versus

 

M/s Cholamandlam MS General Insurance Company Ltd. Samyak tower, plot no.132, 11nd floor, opposite Metro Piller no.120, Pusa Road, Karol Bagh, New Delhi 110005 through its Manager.

 

                                                                      …..Opposite Party.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Shri Jaswant Singh……President.

              Shri Vineet Kaushik……Member

      Dr. Rekha Chaudhary…….Member

                   

 Argued by: Sh. Narender Singh, counsel for the complainant.

                   Shri Naveen Khetarpal, counsel for the OP.

 

                    (Jaswant Singh President)

 

ORDER:   

                

                   The complainant has filed the present complaint under Section 35 of Consumer Protection Act, 2019 against the opposite party (hereinafter referred to as ‘OP’) on the averment that complainant purchased a medical policy from the OP through Oriental Bank of Commerce (now merged in Punjab National Bank) Mini Secretariat, Karnal on 16.09.2019 and a annual premium of Rs.7866/- was deposited on even date. The OP had issued a policy bearing no.2876/00023233/000008/000/00, valid from 16.09.2019 to 15.09.2020.  The complainant and his wife namely Shashi Bala was entitled to get the medical facilities from the OP. The complainant renewed the said policy for the period from 16.09.2020 to 15.09.2021 by paying the next premium. It is further averred that suddenly, in the intervening night between 27/28.03.2021, complainant felt ill and became serious due to loose motion, Nausea & pain abdomen since evening with recurrent vomiting and episodw of fever, dehydrated. Since the condition of the complainant was serious, there was no option before the complainant but to take the hospital. Complainant got admitted in Karnal Nursing Home, Karnal, the said hospital is on the penal of the OP, so that said hospital applied for approval to the OP on 28.03.2021 but OP did not reply to the request of Hospital Authority. On 29.03.2021 (day of Holi), a number of times the Hospital Authority has requested for approval but OP has not given any response. On 30.03.2021 the condition of the complainant became stable and he recovered from the disease and hospital authority discharged the complainant. On 30.03.2021 a number of times the hospital authority requested for approval but OP did not pay any heed to the request of hospital authority as well as complainant. The complainant has spent Rs.19000/-on his treatment and he has no other option but to pay the said amount out his own pocket. Thereafter, complainant applied for reimbursement of the said amount and completed all the formalities as required by the OP but OP failed to make the payment even repeated requests and lastly, OP has repudiated the claim of complainant on the ground that insured is suffering from Diabetes since 10 years and this fact was not disclosed by the insured at the time of obtaining the insurance policy. It is further averred that complainant has not concealed any material facts from the OP at the time of obtaining the insurance policy. The complainant was admitted in the hospital for getting the treatment loose motion, Nauses and pain abdomen with recurrent vomiting and episodw of fever, dehydrated, neither for the treatment of diabetes nor the said disease was the creation of diabetes. The OP had repudiated the claim of the complainant with malafide intention and to escape itself from its liabilities to pay the medical bills. It is further averred that before receiving the letter of repudiation from the OP, complainant had deposited annual premium of the aforesaid policy for the period of 16.09.2021 to 15.09.2022 with the Punjab National Bank Mini Secretariat, Karnal on 16.09.2021. The OP has issued third policy bearing no.2876/000/23233/000008/000/02. It is further averred that on the one hand OP repudiated the claim of complainant on account of diabetes disease and on the other hand the OP has issued and renewed the policy in question without any objection. In this way there is deficiency in service and unfair trade practice on the part of the OP. Hence this complaint.

2.             On notice, OP appeared and filed its written version raising preliminary objections with regard to maintainability; jurisdiction and concealment of true and material facts. On merits, it is pleaded that the insured availed a medical policy no. 2876/00023233/000008/000/01, valid from 16.09.2020 to 15.09.2021 through Oriental Bank of Commerce now merged in Punjab National Bank. Complainant has lodged claim with the OP. On perusal of the claim documents and direct visit to hospital, it is observed that the insured is suffering from Diabetes since 10 years as per the history record in the submitted documents and this information was not disclosed in the proposal form while proposing for insurance. In view of this non-disclosure of material information, the contract of insurance becomes void and no claim is payable under this policy clause 4.2, so being not maintainable, claim of the complainant was repudiated by the OP, vide repudiation letter dated 15.09.2021. There is no deficiency in service on the part of the OP. The other allegations made in the complaint have been denied by the OP and prayed for dismissal of the complaint.

3.             Parties then led their respective evidence.

4.             Learned counsel for complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of insurance policy of the year 2019 Ex.C1, copy of policy issued on 17.09.2020 Ex.C2, copy of third policy, valid from 17.09.2021 to 19.09.2022 Ex.C3, copy of IPD bills Ex.C4, copy of claim form Ex.C5, copy of discharge summary Ex.C6, copy of lab booking slip Ex.C7, copy of GST invoices Ex.C8 and Ex.C9, copy of cancelled cheque Ex.C10, copy of prescription slip Ex.C11, copy of lab report Ex.C12 and Ex.C13, copy of courier receipt Ex.C14, copy of repudiation letter Ex.C15, copy of cancellation of policy Ex.C16 and closed the evidence on 26.04.2022 by suffering separate statement.

5.             On the other hand, learned counsel for OP has tendered into evidence affidavit of Surjeet Kumar Sahu, Deputy Manager Ex.RW1/A, copy of admission and discharge summary Ex.R1, copy of lab. report Ex.R2, copy of investigation report Ex.R3, copy of insurance policy Ex.R4, copy of terms and conditions of insurance policy Ex.R5, copy of questioner for doctor Ex.R6, copy of discharge summary Ex.R7, copy of computation sheet Ex.R8 and closed the evidence on 08.06.2022 by suffering separate statement.

6.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

7.             Learned counsel for complainant, while reiterating the contents of complaint, has vehemently argued that complainant had purchased a Health Insurance policy from OP, which continued from the year 2019 to 2022. He further argued that on 28.03.2021 complainant felt ill and became serious due to loose motion, Nauses and pain abdomen and got admitted in Karnal Nursing Home, Karnal  discharged on 30.03.2021 and spent Rs.19000/- on his treatment. The OP has denied the cashless facility to the complainant. Thereafter, complainant lodged his claim with the OP for reimbursement of the abovesaid amounts but OP did not pay the claim and denied the same on the false and frivolous ground. He further argued that OP has also cancelled the policy in question of the complainant after filing of the present complaint and lastly prayed for allowing the complaint. Learned counsel for complainant relied upon the judgments of Hon’ble High Court in case titled as Religare Health Insurance Company Ltd. Versus The Chairman, Permanent Lok Adalat and another CWP 107 of 2020, date of decision 07.01.2020; Iffco Tokio General Insurance Company Versus Permanent Lok Adalat (Public Utility Services) Gurgaon and others LPA no.1537 of 2011 (O&M), date of decision 26.08.2011; SBI Life Insurance Co. Ltd. Versus Smt. Darshana and others CWP 7838 of 2015, date of decision 17.10.2019 and  Tata AIA Life Insurance Company Limited and Anr. Versus Permanent Lok Adalat and Anr. CWP 14631 of 2013, date of decision 02.08.2019.

8.             Per contra, learned counsel for OP, while reiterating the contents of the written version, has vehemently argued on perusal of the claim documents, it is observed that the insured is suffering from Diabetes since 10 years and this information was not disclosed in the proposal form while proposing for insurance. In view of this non-disclosure of material information, the contract of insurance becomes void and no claim is payable under this policy clause 4.2 and the claim of complainant was rightly repudiated by the OP, vide repudiation letter dated 15.09.2021 and prayed for dismissal of the complaint.

9.             We have duly considered the rival contentions of the parties.

10.           Admittedly, insured has availed the health insurance policy from OP. It is also admitted that during the subsistence of the insurance policy, complainant was got admitted in Karnal Nursing Home, Karnal on 28.03.2021 and was discharged on 30.03.2021.  

11.           The claim of the complainant has been repudiated by the OP, vide repudiation letter Ex.C15 dated 15.09.2021 on the ground which reproduced as under:-

“On perusal of the claim documents and direct visit to hospital, it is observed that the insured is suffering from Diabetes since 10 years as per the history recorded in  the submitted documents and this information is not disclosed in the proposal form while proposing for insurance. In view of this non-disclosure of material information, the contract of insurance becomes void and no claim is payable under this policy clause 4.2 ”.

 

12.           The claim of the complainant has been repudiated by the OP on the ground that the  insured is suffering from Diabetes since 10 years and this material information has not been disclosed by the insured, so the contract of insurance becomes void and no claim is payable. The onus to prove its version lies upon the OP but OP has miserably failed to prove the same by leading any cogent and convincing evidence. There is nothing on file that complainant had  been suffering from Diabetes since 10 years.

13.           Further, it is pertinent to mention here that the written version filed by the OP is not signed by the authorized person of the OP, only signed by its counsel. As per order 6 Rule 14 CPC, every pleading shall be signed by the party and his pleader. Order 6 Rule 14 CPC is reproduced as under:-

14. Pleading to be signed:- 

Every pleading shall be signed by the party and his pleader (if any):

Provided that where a party pleading is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorized by him to sign the same or to sue or defend on his behalf.  

 

                Since the written version has not been signed by the party itself, thus written version as well as evidence of OP cannot be considered. But in the interest of justice and for avoiding the further complications and litigations, the present complaint will be decided on merits.   

14            To prove his version, complainant has placed on record his affidavit Ex.CW1/A, copy of insurance policy of the year 2019 Ex.C1, copy of policy issued on 17.09.2020 Ex.C2, copy of third policy, valid from 17.09.2021 to 19.09.2022 Ex.C3, copy of IPD bills Ex.C4, copy of claim form Ex.C5, copy of discharge summary Ex.C6, copy of lab booking slip Ex.C7, copy of GST invoices Ex.C8 and Ex.C9, copy of cancelled cheque Ex.C10, copy of prescription slip Ex.C11, copy of lab report Ex.C12 and Ex.C13, copy of courier receipt Ex.C14, copy of repudiation letter Ex.C15, copy of cancellation of policy Ex.C16. Hence, the evidence of the complainant has gone unrebutted and unchallenged and there is no reason to disbelieve the same.

15.           As per the version of the complainant he has taken the treatment of loose motion, Nausea & pain abdomen with recurrent vomiting and episodw of fever, dehydration from Karnal Nursing Home, Karnal. To prove his version complainant has placed on record discharge summary Ex.C6. On perusal of the same it has been proved on record that complainant has been diagnosed for acute Febrile illness with Acute Gastroenteritis with Dehydration. Furthermore, there is no nexus between the disease mentioned in repudiation letter i.e. diabetes and present disease for which complainant has lodged the claim with the OP, hence the claim of the complainant cannot be repudiated.

16.           Further, for the sake of arguments, if it be presumed that the life assured was suffering from Diabetes Mellitus at the time of obtaining the insurance policy, in that case also the claim of the complainant cannot be denied on the said ground, because Hypertension, diabetes, occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life which is full of tension. In this regard, we are also fortified from the observations of the Hon’ble State Commission, New Delhi, titled as Life Insurance Corporation of India Versus Sudha Jain 2007 (2) CLT 423, in which Hon’ble State Commission has drawn conclusion in para 9 of the order and the relevant clause is 9 (iii), is reproduced as under:-

        “9(iii) Malaise of hypertension, diabetes occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in and out of the house and are controllable on day-to-day basis by standard medication and cannot be used as concealment of pre-existing disease for repudiation of the insurance claim unless an insured in the near proximity of taking of the policy is hospitalized or operated upon for the treatment of these diseases or any other disease.” Taking into consideration the facts of the present case and law laid down by the Hon’ble Superior Fora in the above referred cases, we are of the view that OPs were not justified in repudiating the claim of the complainant and are thus liable to pay the amount which the complainant had incurred on his treatment”.

 

17.           As per insurance policy Ex.C1/Ex.R4, the date of birth of complainant is 15.03.1957 and policy in question purchased on 16.09.2019. Thus, at that time the age of complainant was more than 62 years. OP was duty bound to get the medical examination of the complainant as per the instructions issued by Insurance Regulatory & Development Authority of India (IRDAI). In this regard, we place reliance upon case titled as  National Insurance Company Ltd. Versus Harbirinder Singh appeal no.220 of 2016 decided on 30.09.2016, wherein Hon’ble State Commission U.T. Chandigarh has held that if the complainant and his wife both are older than 45 years of age but there is nothing on record to show that before insurance policy was issued to them, the appellants got them medically examined, which as per instructions issued by Insurance Regularly & Development Authority of India (IRDAI) is must in such like cases. Similarly, view was taken by Hon’ble Chandigarh State Commission in case of M/s Max Bupa Health Insurance Co.Ltd. Vs. Rakesh Walia, appeal no.191 of 2016 decided on 18.08.2016  and held that if contrary to the instructions issued by IRDAI, an insured above the age of 45 years, was not put to through medical examination, claim raised after issuance of insurance of policy cannot be rejected on account of non-disclosure of the fact of pre-existing disease when policy was obtained.

18.           The OP has also cancelled the policy in question of the complainant, vide letter Ex.C16 dated 12.11.2021, on the ground for non-disclosure of material facts regarding his health. The claim of the complainant has been repudiated by the OP on 18.09.2021. It is evident from the  Certificate of Insurance Ex.C3, OP has renewed the policy in question w.e.f.17.09.2021 to 16.09.2022 after repudiation of the claim of complainant. It has been proved on record that complainant has not concealed any material facts regarding his health, at the time of obtaining the insurance policy. Hence, the act of the OP while cancellation of the policy in question is illegal, arbitrary and not justified in the eyes of law.

19.  

                It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy.

20.           Keeping in view, the ratio of the law laid down in aforesaid judgments, facts and circumstances of the present complaint, we are of the considered view that act of the OP while denying the claim of the complainant and cancellation of the policy amounts to deficiency in service. 

21.           The complainant claimed Rs.18,668/- and in this regard he has placed on file bills details Ex.C4 and claim from Ex.C5. The said amount has not been rebutted by the OP. Hence, the complainant is entitled for the said amount alongwith interest, compensation for mental harassment and litigation expenses etc.

22.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OP to pay Rs.18668/-(Rs. eighteen thousand six hundred sixty eight only) to the complainant alongwith interest @ 9% per annum from the date of repudiation of the claim till its realization. We further direct the OP to pay Rs.5,000/- to the complainant on account of mental agony and harassment and Rs.3300/- towards the litigation expenses. We further direct the OP to continue the policy in question.  This order shall be complied with within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:23.08.2022.

                                                                       

                                                        President,

                                                   District Consumer Disputes

                                                   Redressal Commission, Karnal.

       

                (Vineet Kaushik)                (Dr. Rekha Chaudhary)      

                      Member                       Member