Punjab

Ludhiana

CC/15/337

surinder Bhalla - Complainant(s)

Versus

M/s Max Bupa Health Ins. - Opp.Party(s)

M.R.Saluja Adv.

17 Mar 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:337 dated 20.05.2015.                                                         Date of decision: 17.03.2022. 

 

1. Surinder Bhalla s/o. Late Sh. Kasturi Lal Bhalla,
2. Ashish Bhalla s/o. Sh. Surinder Bhalla,

Both residents of 5588, Street No.5, New Shivaji Nagar, Near Lal Dial Mandir, Ludhiana...…Complainants

                                                Versus

1. M/s. Max Bupa Health Insurance Company Limited, Second Floor, Konal Tower, Plot No.88, The Mall, Ludhiana through its Branch Manager/Divisional Manager.
2. M/s. Max Bupa Health Insurance Company Limited, B-1/1-2, Mohan Cooperative Industrial Estate, Mathura Road, New Delhi through its Managing Director.

                                                                                      …..Opposite parties 

          Complaint Under Consumer Protection Act.

QUORUM:

SH. K.K. KAREER, PRESIDENT

SH. JASWINDER SINGH, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainants            :         Sh. M.R. Saluja, Advocate

For OPs                          :         Sh. G.S. Kalyan, Advocate.

 

ORDER

PER K.K. KAREER, PRESIDENT

1.                Shorn of unnecessary details, the case of the complainants is that they took medical claim policy bearing No.30106401201301 which was valid from 11.06.2013 to 10.06.2014 which covered the complainants for a sum of Rs.3,00,000/-. The family members of the complainants were also covered under the policy. During the currency of the policy, complainant No.2 Ashish Bhalla suffered from jaundice which was diagnosed by Dr. Ms. Jasvir Dhanoa who referred the patient to CMC Hospital, Ludhiana on 15.03.2014 and the patient was discharged on 21.03.2014. A sum of Rs.61,494/- was spent on the treatment of Ashish Bhalla. The complainants filed the claim of Rs.61,494/- with the OPs and it was repudiated on false and frivolous grounds. Feeling aggrieved, the complainants approached the Insurance Ombudsman Chandigarh and after hearing the parties, the Insurance Ombudsman, Chandigarh held that the repudiation of the claim in toto was not justified and the claim should be allowed on partial basis to the extent of 40% of the claimed amount. The complainants were, however, not satisfied with the order of Insurance Ombudsman and were not ready to accept 40% of the claim amount, but the OPs without informing the complainants, deposited a sum of Rs.23,954/- in the bank account of the complainants which does not amount to acceptance of said amount as full and final settlement of the claim. The complainants requested the OPs to review and reconsider the claim and allow the full payment of Rs.61,494/-, but to no avail. Even a legal notice dated 09.02.2015 served upon the OPs failed to elicit a positive response from them. This amounts to deficiency of service on the part of the OPs. In the end, it has been requested that the OPs be directed to pay the balance amount of Rs.37,540/- along with interest @12% per annum and with compensation and damages of Rs.30,000/-.

2.                The complaint has been resisted by the OPs. In the joint written statement filed on behalf of the OPs, it has been, inter alia, pleaded that the complaint is not maintainable nor this Commission has the jurisdiction to entertain and try the present complaint. According to the OPs, the claim has been decided by the Insurance Ombudsman, Chandigarh vide order dated 25.08.2014 and in compliance of the award passed by the Insurance Ombudsman, the OPs have paid the amount of Rs.23,954/- plus interest and the complaint is liable to be dismissed on this ground alone. On receipt of the claim for reimbursement of expenses for hospitalization of complainant No.2, it was found that he was diagnosed with jaundice. It has further been pleaded that the complainant No.2 was diagnosed with jaundice in the year 2006 also, but this fact was not disclosed by the complainants in the proposal form at the time of taking the policy. The complainant was specifically asked vide question No.2 of clause 6 pertaining to medical history, if during the last 7 years, the complainants had been to a hospital for an operation or investigation e.g. scan, X-ray, biopsy or blood tests. The complainants filled the proposal form in 2012 but did not disclose that he had suffered from jaundice in 2006 which falls within 7 years period. Therefore, the claim was also rejected on the ground of non-disclosure of material facts along with history of jaundice in 2006 at the time of policy inception. The complainants were otherwise under an obligation to disclose all the material facts in the proposal form. Therefore, the repudiation of the claim was as per the policy terms and conditions. However, despite that, as per the order of Insurance Ombudsman, the OPs have paid 40% of the claim which has been accepted by the complainants.  Therefore, the complaint is without any merits. The other allegations made in the complaint have been denied as wrong and a prayer for dismissal of the complaint has also been made.

3.                In evidence, the complainant No.1 Surinder Bhalla submitted his affidavit as Ex. CA and affidavit of complainant No.2 Ashish Bhalla as Ex. CB along with documents Ex. C1 to Ex. C41 and closed the evidence.

4.                On the other hand, learned counsel for the OPs tendered affidavit Ex. RA of Sh. Sumeet Bajaj, Chief Manager of OPs along with documents Ex. R1 to Ex. R5 and closed the evidence.

5.                We have heard the counsel for the parties as well as gone through the written arguments submitted by the parties and have also gone through the record carefully.

6.                So far as the contentions of the OPs with regard to the fact that the claim has been partly allowed by the Insurance Ombudsman is concerned, in this regard, a reference can be made to the law laid down in IV (2009) CPJ 387 in Jeewanjee Hosseinbhai Moriswala Vs New India Assurance Company Ltd.  whereby it has been held by the Hon’ble Maharasthra State Consumer Disputes Redressal Commission, Mumbai that even if a claim was partly settled by the Insurance Ombudsman, the complaint was still maintainable as the jurisdiction of the Insurance Ombudsman is advisory in nature and the principle of resjudicata is not applicable to the provisions of Consumer Protection Act, 1986. Therefore, it cannot be said that merely because the claim of the complainants was partially allowed by the Insurance Ombudsman to the extent of 40%, the complainants were barred from filing the present complaint.

7.                Secondly, as far as the merits of the case are concerned, the claim has been rejected by the OPs on account of non-disclosure of the fact in the proposal form Ex. R3 that complainant No.2 suffered from hepatitis during the last 7 years even though he had actually suffered from this disease. The counsel for the OPs have referred to pre-authorization form Ex. R6 wherein it is mentioned by the doctor concerned that the patient has a history of having suffered from hepatitis. Complainant No.2 in his affidavit Ex. CB has also admitted that he suffered a minor attack of hepatitis in the year 2006 which was relieved by taking ayurvedic medicine and it was a minor jaundice and he was not admitted in any hospital for treatment. Apart from the observation made in pre-authorization form Ex. R6, which is also quite vague and un-certain, the OPs have not led any evidence with regard to the fact that complainant No.2 suffered from hepatitis in January 2006. No evidence on record has been led where complainant No.2 was hospitalized for jaundice/hepatitis in January 2006. Therefore, in our considered view, the concealment of the fact that complainant No.2 suffered from minor jaundice in 2006 cannot be said to be a violation of terms and conditions of the policy on the basis of which  the repudiation of the claim could be said to be justified. Even otherwise, jaundice is not such a disease which can be said to be a chronic one. Therefore, even if the complainants suffered from jaundice in January 2006, it cannot be said that his hospitalization for hepatitis on 15.03.2014 after a period of 8 years was due to the fact that he had suffered from this very disease 8 years ago.  Therefore, non-disclosure of the fact that the complainant suffered from minor jaundice in 2006 in the proposal form cannot be said to be a material concealment of facts in the proposal form specially when there is no evidence of the fact that how serious disease was at that time and as to whether or not the complainant was hospitalized in 2006. In this regard, the counsel for the complainant has relied upon 2012(2) CPC 32 in Life Insurance Corporation of India and another Vs Sudesh whereby it has been held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi that in the absence of evidence on record that the insured was ever hospitalized, the repudiation of the claim was not proper on the ground that the insured had not disclosed the disease of jaundice or that he was chronic alcoholic or chain smoker. Under the facts and circumstances of the present case, it would be just and proper if the OPs are directed to pay the remaining part of the claim of Rs.37,540/- along with interest @6% per annum from the filing of the complaint till date of actual payment along with compensation of Rs.5,000/-.

8.                As a result of above discussion, the complaint is allowed with a direction to the OPs shall pay the remaining part of the claim of Rs.37,540/- along with interest @6% per annum from the date of filing of the complaint till date of actual payment.  The OPs shall further make a payment of Rs.5,000/- (Rupees Five Thousand only) as compensation to the complainant. The compliance of the order be made within 30 days from the date of receipt of copy of order. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

9.                Due to rush of work and spread of COVID-19, the case could not be decided within statutory period.

 

                             (Jaswinder Singh)                            (K.K. Kareer)

                    Member                                           President

 

Announced in Open Commission.

Dated:17.03.2022.

Gobind Ram.

Surinder Bhalla Vs Max Bupa                                        CC/15/337

Present:       Sh. M.R. Saluja, Advocate for the complainants.

                   Sh. G.S. Kalyan, Advocate for OPs.

 

                   Arguments heard. Vide separate detailed order of today, the complaint is allowed with a direction to the OPs shall pay the remaining part of the claim of Rs.37,540/- along with interest @6% per annum from the date of filing of the complaint till date of actual payment.  The OPs shall further make a payment of Rs.5,000/- (Rupees Five Thousand only) as compensation to the complainant. The compliance of the order be made within 30 days from the date of receipt of copy of order. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

 

                             (Jaswinder Singh)                            (K.K. Kareer)

                    Member                                           President

 

Announced in Open Commission.

Dated:17.03.2022.

Gobind Ram.