Delhi

North East

CC/363/2012

Ms. Shaida Praveen - Complainant(s)

Versus

M/S HDFC ERGO General Insurance Company - Opp.Party(s)

27 Jul 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.363/12

 

In the matter of:

 

	Ms. Shaida Praveen W/o Mohd Ahamad and Mohammad Ahamad R/o B-160/1, Gali No. 2, Indra Vihar, Karwal Nagar, Delhi-99	Complainant
	Versus
1.                     2.	M/s HDFC ERGO General Insurance Company Ltd, 6th Floor Leela Business Park, Andheri Kurla Road, Andheri (East) Mumbai-4000059. Through its Managing Director/Chief Executive Officer Also At:- M/s HDFC ERGO General Insurance Company Limited, Raman House, H.T. Parekh Marg, 169, Backbay Reclamation, Mumbai-4000020.   M/s Family Health Plan (TPA) Ltd Gr. Gl Srinilaya-Cyber, Spazio, Road No.2, Banjara Hills, Hyderabad-500034. E-mail:- st floor, Udyog Vihar.	Opposite Parties

 

 

	DATE OF INSTITUTION:	13.09.2012
	DATE OF DECISION      :	27.07.2017

 

 

 

Nishat Ahmad Alvi, Member:-

ORDER

 

1.        As per complaint complainant was issued two Mediclaim policies by OP vide Numbers 50741668 and 50741669 on 30.05.2011. One is the Health Suraksha Plan in which sum assured was two Lacs. Other is personal accident policy in which sum assured was Rs. 10,00,000/- (Rupees Ten Lacs Only). These policies were valid upto May 2012. As assured on hospitalization in authorized hospitals complainant shall be entitled to cashless facilities. Max Super Specialty hospital is one of the authorized hospitals as per OPs.

2.        Complainant’s hands had turned blue and it being an emergency she was taken to emergency of Max Super specialty hospital at Patparganj, Delhi where she was advised immediate hospitalization. On showing Mediclaim Card, Hospital personnel  asked her to wait until they are able to seek nod from OPs and after about two hours’ of scrutiny and verification they informed that both the OPs have approved the treatment to be undertaken by the Hospital. Thereafter she was admitted to the Hospital and her treatment started.    

3.        On 21.03.2012 complainant was discharged after treatment, as per discharge summary and documents submitted to OP1 and OP2. However, at 1.21.23 Pm the same day complainant received a massage on her mobile stating “your cashless is pending for certain documents. Please contact helpdesk for details.” On contact it was told that the Hospital has not received confirmation from OPs for the cash less facility to be availed at the Hospital and now it is a case of reimbursement. She was asked to manage for Rs. 32,005/- (Rupees Thirty Two Thousand and Five only) in order to get the discharge. On contact to OP2 one Dr. Rajeev advised that one Mr. Rawat from the agency shall visit the Hospital to do all formalities. But nobody visited there. On contacting again it was further advised to talk to Dr Kuber Kumar Lenka at Hyderabad who advised not to worry and make payment and seek reimbursement with the promise that they will get the amount reimbursed immediately on receipt of all the original bills/documents from the complainant.    

4.        Surprisingly she was given a letter dated 21.03.2012 through Fax on behalf of OP2 stating “Doctors note – cashless facility is denied, as the present ailment is a Pre-Existing disease under Section 6 D of Mediclaim Policy. ” This is misleading and fraud committed by OPs as she was first made to pay then was denied the reimbursement, in the garb Of Pre-Existing disease, just to avoid legal liabilities under the policy while there is no clause 6-D in the policy nor even there had been any alleged Pre-Existing disease. As advised complainant sent claim and original bills for reimbursement. But no action was taken nor Original Bills have been returned by the OPs.  Complainant’s claim of Rs. 32,000/- (Rupees Thirty Two Thousand Only) has been denied on the flimsy, whimsical, unfair grounds without any substance and verification whatsoever. Letter dated 21.03.2012, 18.04.2012 and 02.05.2012 received from OPs are self contradictory and complainant had to suffer to arrange money at heavy cost, which OPs were liable to pay.

5.        Complainant’s sent notice dated 02.05.2012 through Advocate which was never replied. However, in response to e-mail of notice it was informed on behalf of OPs that they have forward the claim to concerned department. Complaints to Principal Grievance Officer and ombudsman were also met with no relief.

            Pleading adoption of unfair trade practices on the part of OPs and gross deficiency in service by them complainant has prayed for grant of directions to the OPs to reimburse Rs. 32,000/- (Rupees Thirty Two Thousand only) with interest thereon @ 24% p.a. since 21.03.2012 till final payment alongwith Rs. 1,00,000/- (Rupees One Lacs Only) compensation and Rs. 10,000/-   (Rupees Ten Thousand only) litigation cost.   

6.        OP1 by filing its reply states that as per discharge summary complainant had complaints of pain in right upper limb for last six years and pain in right lower limb for three months. This is a preexisting condition which is excluded from the scope of liability under the policy in question under clause   6 (d). Discharged summary under the head “Course in Hospital” also states that complaint of the patient was evaluated and some relevant investigations were done. This is also excluded from the scope of liability under the policy as per section 6 (e) xvi thereof. Therefore, vide its letter dated 18.04.2012 OP1 rejected the claim of the complainant. There being no deficiency in service on the part of OP1, no cause of action against it arises. Hence, the complaint may be dismissed.

7.        In rejoinder to reply of OP1 reiterating the contents of the complaint as correct, complainant states that OP1 is misleading this forum by distorting the correct facts and misrepresenting the reports and the discharge summary, without any substance and proof. OPs neither got any declaration or proposal form, sign from the complainant nor medically examined her prior to issuing the policy.         Rather she was assured that all the insured are        comprehensively covered under the policy. Regarding treatment/investigations etc complainants state that they having no knowledge of medical field just followed advice of Doctors for which there rights under the policy cannot be denied.

8.        OP2, despite service did not appear. Hence it was proceeded against Ex-parte. 

9.        Complainant and OP1 filed their respective sworn Affidavits by way of evidence.

10.      Heard and perused the record.

11.      Undeniably complainant was duly insured with OP1, OP2 is TPA thereof, policy was valid during treatment, all premiums of the policy are duly paid by the complainant and there is no default/dispute in this regard between the parties. Only dispute remains with respect to OPs’ defence that complainant was having pre-existing disease on taking the policy and admitted for investigation and evaluation only, which are allegedly covered under exclusion clause 6 (d) and (e) xvi of the policy. Both these contentions are based only on discharge summary issued the Max Super Specialty Hospital. Complainant disputes both these grounds on two counts – firstly the terms and conditions of the policy in question have no such clause 6 at all. Secondly, even if considered she was not having any alleged pre-existing disease and allegation of admission in the hospital only for the purposes of investigation & evaluation is wrong. Going though the policy document exhibit C/1, though there is no section / clause 6 but the terms stated therein are mentioned in this policy document under section 4 (d) and section 4 (e) xv. Section 4 (d) provides exclusion of pre-existing condition. Pre-existing condition is further defined under definition number 17 given in the head of interpretations and definitions of the policy as – condition, aliment or injury or related condition (s) for which insured person had signs or symptoms and / or received medical advice/treatment within 48 months prior to the commencement of his first Health Suraksha Policy with us.

            In other exclusion under section 4 (e) it is stated that we will not make any payment for any claim in respect of any insured person directly or indirectly for, caused by, arising from or any way attributable to any of the following unless expressly stated to the contrary in the policy :-

(i to xiv)

xv) experimental, investigational, or unproven treatment devices and pharmacological regimens or measures primarily for diagnostic, x-ray or laboratory examinations or other diagnostic studies which are not consistent with or incidental to the diagnostic and treatment of the positive existence or presence of any illness for which confinement is required at a Hospital.

12.      Going through various orders/ judgments passed by Hon’ble State and National Commission and the Supreme Court of India, we find that onus to prove pre-existing disease, as per above terms of policy, or suppression of the same, lies on the insurance company – OPs in the present case. In support of its defence OP1 has placed on record only discharge summary which states – patient presented to Max Hospital Patparganj, with complaints of pain in right upper limb x six years and pain in right lower limb (on & off) x three months. But no cogent evidence or witness of any doctor is presented by the OPs, in support of the contention in the discharge summary. Moreover reports of investigations in the Hospital also not verify this fact. There is no proposal form submitted by the OPs in support of its contentions of suppression of fact. There is no treatment or investigation record of the past of any hospital / doctor to establish that the complainant was having any such disease/ condition in the past or any sign or symptom of the same, as per the condition mentioned in the aforesaid section of the policy. There is also no evidence / affidavit of any competent witness of the OP to show that the complainant had even knowledge of any such alleged condition / disease.

            With respect to OPs defence of applicability of the exclusion clause regarding investigation and evaluation, the same is misinterpreted as discharge summary itself says that it was a part and parcel of the treatment and not only investigation and evaluation. This fact also got support from the fact itself that after the treatment complainant got relief and was discharged being hale and hearty. As also held by Hon’ble State Commission Nagpur (Maharashtra) in National Insurance Company Ltd vs Shri Ashok Netermal Tahiliani – mere entry in the past history column in discharge card is not sufficient proof of pre-existing condition / disease.

            As per Hon’ble State Commission Delhi, in the order passed Appeal No. 1223/2002 dated 03.05.2007 in the case of     Mr. Virendar Kumar Jain vs Oriental Insurance Company Ltd with reference to pre-existing disease the disease is explained as follows:-

(i)Disease means a serious derangement of health or chronic deep-seated disease frequently one that is ultimately fatal for which an insured must have been hospitalized or operated upon in the near proximity of obtaining the mediclaim policy.

(ii)Such a disease should not only be existing at the time of taking the policy but also should have existed in the near proximity. If the insured had been hospitalized or operated upon for the said disease in the near past, say, six months or a year he is supposed to disclose the said fact to rule out the failure of his claim on the ground of concealment of information as to “Pre-existing disease”.

(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.

(iv)If insured had been even otherwise living normal and healthy life and attending to his duties and daily chores like any other person and is not declared as a ‘diseased person’ as referred above he cannot be held guilty for concealment  of any disease, the medical terminology of which is even not known to an educated person unless he is hospitalized and operated upon for a particular disease in the year proximity of date if insurance policy say few days or months.

(v)Disease that can be easily detected by subjecting the insured to basic tests like blood test, ECG etc. the insured is not supposed to disclose such disease because of otherwise leading a normal and healthy life cannot be branded as ‘diseased person’.   

(vi)INSURANCE COMPANY cannot take advantage of its act of omission and commission as it is under obligation to ensure before issuing Mediclaim policy whether a person is fit to be insured or not. It appears that INSURANCE COMPANIES do not discharge this obligation as half of the population is suffering from such malaises and they would be left with no or very little business. Thus, any attempt on the part of the insurer to repudiate the claim for such non-disclosure is not permissible, nor is ‘exclusion clause’ invokable.

(vii)Claim of any insured should not be and cannot be repudiated by taking a clue or remote reference to any so-called disease from the ‘discharge summary’ of the insured by invoking the ‘exclusion clause’ or non-disclosure of ‘pre-existing disease’ unless the insured had concealed his hospitalization or operation for the said disease undertaken in the reasonable near proximity as referred above.

(viii)Day to day history of several years of some or the other physical problem one may face occasionally without having landed for hospitalization or operation for the disease cannot be used for repudiating the claim. For instance and insured had suffered from a particular disease for which he was hospitalized or operated upon 5, 10 to 20 years ago and since then had been living healthy and normal life cannot be accused of concealment of ‘pre-existing’ while taking mediclaim policy as after being cured of the disease, he does not suffer from any ‘disease’ much less the pre-existing disease.

(ix)For instance, to say that insured has concealed the fact that he was having in the chest off and on for years but has never been diagnosed or operated upon for heart disease but suddenly lands up in the hospital for the said purpose and therefore is disentitled for claim bares dubious design of the insurer to defeat the rightful claim of the insured on the flimsy ground. Instances are not rare where people suffer a massive attack without having even been hospitalized or operated upon at any age say for 20 years or so.

(x)Non-disclosure of hospitalization or operation for disease that too in the reasonable proximity of the date of Mediclaim policy is the only ground on which insured claim can be repudiated and on no other ground.         

        

13.      Not only this the repudiation of the claim is done by the OPs by way of three letter Exhibit C/2, Exhibit C/7 and Exhibit C/8. First one show the rejection of the claim on the ground of pre-existing disease while the later show only investigation and evaluation as a ground of rejection. Thus we also find that even OPs were not sure about the actual ground of rejection.

14.      On the basis of above said findings OPs have failed to prove that there was any pre-existing disease to the complainant at the inception of the policy. It has also failed to prove that the complainant was admitted in the hospital only for the purpose of investigation and evaluation. Therefore, rejection of the claim of the complainant is legally invalid, null and void. The OPs in rejecting the same are deficient in service and have adopted unfair trade practice and harassing her in not granting the claim.

            Holding, both the OPs guilty for the same we directed them to :-

1. Grant the claim of the complainant by reimbursing Rs. 32,000/- (Rupees Thirty Two Thousand only) paid by her to the Hospital alongwith interest thereon       @ 12% p.a. from 21.03.2012 the date of payment, till final compliance of this order ; and
2. Pay a compensation of Rs. 50,000/- (Rupees Fifty Thousand only) to the complainant for this deficiency in service and harassment; and
3. Pay litigation cost of Rs. 11,000/- (Rupees Eleven Thousand only) to the complainant.    

Jointly and severally.

15.      Order shall be complied with by OP1 within 30 days from the receipt thereof. Failing which the interest to be charged on the amount of reimbursement shall be 15% p.a.

16.    Let a copy of this order be sent to each party, free of cost, as per regulation 21 of the Consumer Protection Regulations, 2005.

17.      File be consigned to record room.

(Announced on  27.07.2017)    

 

(N.K. Sharma) President

(Nishat Ahmad Alvi) Member