Haryana

Panchkula

CC/168/2019

RAJINDER KUMAR SINGLA. - Complainant(s)

Versus

M/S HDFC ERGO GENERAL INSURANCE COMPANY LTD. - Opp.Party(s)

COMPLAINANT IN PERSON.

20 Mar 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

 

                                                       

Consumer Complaint No	:	168 of 2019
Date of Institution	:	13.03.2019
Date of Decision	:	20.03.2024

 

 

 

Rajinder Kumar Singla, Flat No.103, GH-104(H), Sector-20, Panchkula, Haryana.

 

                                                                           ….Complainant

 

Versus

1.     M/s HDFC ERGO General Insurance Company Limited, HDFC House, FF-165-166, Backbay Reclamation, H.T. Parekh Marg, Chuchgate, Mumbai-400020 through its Managing Director/ECO Sh. Ritesh Kumar.

2.     M/s HDFC ERGO General Insurance Company Limited, SCO No.124-125, FF, Sector-8-C, Chandigarh through its Branch Manager.                                                                                                                                                                                                                                                        ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

 

Before:              Sh. Satpal, President.

Dr. Sushma Garg, Member.

Dr. Barhm Parkash Yadav, Member

 

 

For the Parties:   Sh. Krishan Singla, Advocate for the complainant.   

                        Sh. Nitesh Singhi, Advocate for OPs No.1 & 2.

 

ORDER

(Satpal, President)

1.             The brief facts, as necessary for the adjudication of the present complaint, are that the complainant had availed the services of OPs by getting health insurance policy, namely, Sarv Suraksha-Personal Accident Policy/ Health Suraksha Policy; Policy No.2952 2010 5326 2002 000 and Individual Personal Accident Plan 1; Policy No.52282944/ 00001 valid from 18.05.2017 to 17.05.2018 and 18.01.2016 to 17.01.2018 respectively, wherein, the expenses incurred during his hospitalization were covered. The complainant has purchased the said policies through his credit card at Panchkula and the same was received by him at Panchkula. It is stated that the complainant had gone to Bangalore to meet his son, where he had got slipped, which resulted into fracture in his leg. He got admitted in the hospital, namely, Columbia Asia, Hospital, Bangalore on 09.01.2018 and got operated there. Since the complainant was insured with the OPs, hence the policy was produced before the hospital, who forwarded it to OPs. The total bill of the hospital was more than Rs.3,84,487/-, but the complainant restricted his claim for Rs.3,84,487/- only. The claim of the complainant was repudiated on the ground that the complainant was a known case of Hypertension and Hypothyroidism before the inception of the policy i.e. 18.05.2010. There is a history of hypertension for the last 23 years and Hypothyroidism for 10 years respectively. On account of non-disclosure of material facts from the preview of the OPs, a valid, legal and genuine claim of the complainant was repudiated. It is stated that the OPs have rejected/repudiated his genuine claim in an arbitrary manner and without appreciating the relevant facts as involved in the case. On 10.01.2018, sudden accident has no concern with hypertension or Hypothyroidism. It is stated that no separate policy or any other exclusion clause were handed over to him either at the time of issuing policy cover to him or thereafter; thus, the OPs can’t take the advantage of any exclusion clause. Due to the act and conduct of the OPs, the complainant has suffered financial loss and mental agony, physical harassment; hence the present complaint.

2.             Upon notice, the OPs No.1 & 2 appeared through counsel and filed written statement raising preliminary objections that the present complaint is pre-mature complaint as no claim for reimbursement of expenses was ever lodged by the complainant after discharge from the hospital; therefore, the complaint is not maintainable against the OPs. It is submitted that the cashless facility was a mere facility provided by the OPs to the complainant and that the denial of the cashless facility does not mean final denial of the claim. The complainant was at liberty to approach the OPs for reimbursement after submitting all the necessary documents. It is stated that, in the present case, after the denial of cashless facility, the complainant did not approach the OPs for reimbursement, and therefore, the OPs had denied to assess the claim on its merits. Hence, the present complaint is pre-mature and liable to be dismissed. It is submitted that the complaint pertains to insurance claim under Sarv Suraksha-Personal Accident Policy bearing policy no.2952 2018 0046 7600 000, valid from 05.06.2017 to04.06.2019. It is submitted that the liability of the company, if any, is subject to terms and conditions of the insurance policy, which were duly supplied along with policy schedule to the insured and that the parties are bound by the terms and conditions of the policy, and no claim can be passed beyond the terms and conditions of the policy. It is submitted that no claim was intimated under Policy No.52282944, instead a request for cashless facility was made under Policy No.2952 2018 0046 7600 000. It is further submitted that in order to process the cashless claim of the complainant, the OPs had issued a letter to the treating hospital requesting to share the following information:-

i.      Any history of alcohol at the time of incidence certified by the    treating doctor just after the injury.

ii.      Exact duration of DM/HTN/Hypothyroidism by treating doctor in DD/MM/YYY format.

iii.     KYC details.

                It is submitted that, in response to the said letter issued to the hospital, it was informed to the Ops that the complainant was suffering from Hypertension since 23 years, Hypothyroidism since 10 years and Diabetes Mellitus since 1 year i.e. the complainant was suffering from all these ailments before the inception of the policy. The complainant had concealed the said information at the time of purchasing the policy. It is submitted that the complainant had not disclosed his pre-existing disease before availing the policy in question and thus, his claim was repudiated under Section 10 r ii and the complainant was informed accordingly vide repudiation letter dated 10.01.2018.

                On merits, it is submitted that the complainant was covered under the different policies, the details of which is given as under:-

1. Sarv Suraksha-Personal Accident Policy/ Health Suraksha Policy; Policy  No.2952 2010 5326 2002 000
2. Individual Personal Accident Plan 1; Policy No.52282944/ 00001.

                Rest of the allegations as leveled by the complainant has been denied and it has been prayed that there is no deficiency in service on the part of the OPs No.1 & 2 and as such, the complaint is liable to be dismissed.

3.             To prove the case, the learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-4 in evidence and closed the evidence by making a separate statement. On the other hand, the learned counsel for the Ops No.1 & 2 has tendered affidavit as Annexure R-A1 along with documents as Annexure R-1 to R-4 and closed the evidence.

4.             We have heard the learned counsels for the complainant and OP No.1 & 2 and gone through the record available on the file, including the written arguments filed by the complainant and minutely and carefully.

5.             During arguments, the learned counsel for the complainant reiterating the averments as made in the complaint as also in the Affidavit(Annexure C-A) contended that the repudiation of the claim, qua expenses incurred by the complainant during his hospitalization in Columbia Asia, Hospital, Bangalore, was not valid and justified as no concealment was made by the complainant before taking the health insurance policy in question and thus,  the complaint is liable to be accepted by directing the OPs to make the reimbursement of the sum of Rs.2,94,735/- qua expenses incurred by the complainant during his hospitalization w.e.f. 09.01.2018 to 13.01.2018.

6.             On the other hand, the OPs have contested the complaint by taking the plea that the complainant had concealed his pre-existing disease before taking the health insurance policy. The learned counsel on behalf of the OPs, during arguments, reiterating the averments as made in the written statement as also in the affidavit(Annexure R-A) contended that the cashless facility was rightly denied by the OPs vide letter dated 10.01.2018(Annexure C-3/R-4) on the ground of concealment of pre-existing disease. It is argued that the complainant was found having history of hypertension for the last 23 years, and Hypothyroidism for 10 years. It is argued that the complaint is pre mature as the complainant had never approached the Ops seeking the reimbursement of the claim after his discharge from the hospital. The learned counsel argued that though the complainant had concealed his pre-existing disease before taking the health insurance policy in question yet the OPs are ready to settle the claim subject to submission of discharge summary issued by the hospital along with final bill and thus, prayed for disposal of the present complaint, accordingly.

7.             After hearing the learned counsels for the parties, the question that arises for adjudication before the Commission, is, whether the denial of the claim by the OPs vide letter dated 10.01.2018 (Annexure C-3/R-4), taking the plea of concealment of pre-existing disease by the complainant, was valid, legal and justified.

8.             As per Health Suraksha Policy Silver Plan bearing no.2952 2010 5326 2002 000, issued on 28.04.2017(Annexure R-1), valid from 18.05.2017 to 17.05.2018, it is found that the complainant had obtained the Health Suraksha Policy Silver Plan first time on 18.05.2010 and the same was continuously being renewed till 17.05.2018. The OPs have not placed the copy of proposal form etc., which were accepted by the complainant at the time of issuance of the said health insurance policy to him first time on 18.05.2010. Needless to mention here that the complainant was provided the health insurance policy by the Ops on the basis of his thorough medical examination by the empanelled Doctors of Insurance Company. Moreover, the insurance policy was renewed continuously by the OPs without any objections. Infact, the insurance company i.e. the Ops invariably conducts various medical test of a person, prior to the issuance of insurance policy to him/her and thereafter, the medical test are conducted at the time of each renewal.  

9.             Pertinently, in the present case, the OPs have alleged that the Complainant was suffering from the pre-existing disease of   hypertension and Hypothyroidism prior to the taking of the insurance health policy on 18.05.2010. It is a well settled proposition of law that the burden of proving the pre-existing disease lies upon the insurance company i.e. OP and the same has to be proved by it by way of adducing adequate, cogent and credible evidence relating to the treatment of pre-existing disease. In this regard, we may safely rely upon the case law laid down by the Hon’ble National Commission, New Delhi in case titled as National Insurance Company Limited decided on 18.05.2017 wherein it has been held that it is the onus upon the insurance company to prove that the complainant was suffering from the pre-existing disease”. 

                However, the OPs have not submitted any document on record to show that the complainant was taking the treatment qua the ailment of hypertension and hypothyroidism prior to obtaining of the health insurance policy from OPs on 18.05.2010. The information provided by the Colmbia Asia Hospital vide Annexure R-2 is of no help to the case of the Ops as the same is silent qua the source of information. Thus, the OPs have failed to discharge the burden of proof qua the fact that Complainant was suffering from pre-existing disease of hypertension and hypothyroidism prior to 18.05.2010.

        We may also rely upon the law reported in 2017 (1) CLT 24(NC) titled as Chand Ratan Lahoti & others Vs. Aviva Life Insurance Co. India, Ltd & anr. wherein it has been held by Hon’ble National Commission that the suspicion  howsoever  strong is not substitute for the  proof-Thus, in order to justify the repudiation  of the insurance claim onus lies heavily on the opposite party to establish  that the insured concealed his medical condition already known to him while submitting proposal  form for purchasing  the insurance policy.

10.            Moreover, the Ops have failed to prove that the terms and conditions of the policy including the exclusion clause were provided to the complainant. Furthermore, the complainant had got the treatment qua fracture in his leg, which by no stretch of imagination, had any nexus or connection with the ailment of hypertension and Hypothyroidism, on the basis of which, the claim was rejected. As such, the repudiation of claim was neither valid nor justified.  In this regard, we may, safely, rely upon the order passed by the Hon’ble NCDRC in Revision Petition Nos.1096, 1097, 1098, 1099, 1100,1101, 1102 of 2019 and First Appeal nos.921, 922 of 2019 in the case titled as Life Insurance Corporation of India Vs. Dr.Nilam Hetal kumar Patel & 4 Ors., decided on 20.09.2023, wherein the order passed by the State Commission, Gujarat was upheld. The para no.12 of the said order is relevant, which is reproduced as under:-

          “We have carefully gone through the facts and circumstances of the case, orders  of the State Commission, other relevant  records, case  laws  relied  upon by the parties/State Commission  and rival contentions  of the parties  and are of  the view  that State Commission  has correctly placed reliance  on the judgment  of Hon’ble Supreme Court in case titled as Sulbha Prakash Motogaonkar and Others Vs. Life Insurance Corporation of India and Others 2021 13 SCC 561 decided on 05.10.2015 that  as there is no nexus between the disease, information  about  which was not disclosed  and the cause of death, hence the repudiation of the claim byOP Insurance Company is not correct”.

11.            The aforesaid discussion lead us to the irresistible conclusion  that the OPs were  deficient, while rendering the services to the complainant, for which, they are liable, jointly and severally to reimburse the amount as spent by him(the complainant) during his hospitalization in Columbia Asia, Hospital, Bangalore w.e.f. 09.01.2018 to 13.01.2018.

12.            In relief, the complainant has prayed for payment of sum of Rs.3,84,487/- with interest. Further, a sum of Rs.55,000/- and Rs.11,000/- as also on account of mental agony and harassment and litigation charges.

13.            The prayer of the complainant qua bill amounting to Rs.89,752/- is declined as the said bill was draft bill only. Further, we find the bill no.IPP-24548, issued by Columbia Asia, Hospital, Bangalore, showing the hospitalization of the complainant, from 09.01.2018 to 13.01.2018, on record as Annexure C-2(colly). The payment receipt issued by the said hospital is placed on record as Annexure C-2, wherein, the payment details are mentioned as under:-

Document No.	MRN	Document Date	Patient Nam	Amount(Rs.)
IPP-24548	Cahw-0000172015	13.01.2018	Rajinder Singla	2,94,735.00
Billed amount				294735.00
RPT-1146863		09.01.2018	Deposit	(8,847.00)
RPT-1147785		10.01.2018	Deposit	(1,20,000.00)
RPT-1150386		12.01.2018	Deposit	(145,000.00)
		Total Receipt Value :		20,888.00
		Amount Tendered :		20,888.00
		Change :		0.00
		Balance Amount Payable		0.00

 

14.            As per above, it is clear that a sum of Rs.2,94,735/- was paid by the complainant to Columbia Asia Hospital, Bangalore qua the expenses incurred during his hospitalization in said hospital w.e.f. 09.01.2018 to 13.01.2018. Therefore, the present complaint is disposed of with the directions to the OPs to release the payment of Rs.2,94,735/- in favour of the complainant along with @9% per annum(simple interest) w.e.f. 13.01.2018 i.e. the date when the final payment was made by the complainant subject to the submission of the affidavit/ undertaking by him(complainant) to the effect that he has not claimed/received the expenses from any other insurance company/ authority, pertaining to the same treatment as availed in the Colmbia Asia, Hospital, Bangalore w.e.f. 09.01.2018 to 13.01.2018.  Further, the OPs are directed to pay a compensation of Rs.10,000/- to the complainant on account of mental agony and harassment and a compensation of Rs.5,500/- on account of litigation charges.

15.            The OPs No.1 & 2 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:20.03.2024

 

 

Dr.Barhm Parkash Yadav      Dr.Sushma Garg             Satpal                

     Member                          Member                   President

 

Note: Each and every page of this order has been duly signed by me.

 

                                         Satpal                               

                                        President