BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

========

Complaint  Case  No : 218 of 2011

Date of Institution :  26.04.2011

Date of  Decision   :  07.12.2011

Sh. C.R. Jindal, resident of H.No.3551, Sector 38-D, Chandigarh.

 ….…Complainant

V E R S U S

[1]  M/s New India Assurance Company Limited, SCO No. 104-106, Sector 34-A, Chandigarh through its Manager.

[2]  Raksha TPA Pvt. Ltd., SCO No. 181, 2^nd Floor, Sector 7-C, Chandigarh, through its authorized representative.

.…..Opposite Parties

CORAM:    Sh.P.D. GOEL                      PRESIDENT

SH.RAJINDER SINGH GILL            MEMBER

DR.(MRS)MADANJIT KAUR SAHOTA      MEMBER

Argued by: Sh.Gaurav Bhardwaj, Counsel for Complainant.

Sh.Rajesh K.Sharma, Counsel for OPs.

PER DR.(MRS)MADANJIT KAUR SAHOTA,MEMBER

          Succinctly put, the Complainant, who is a senior citizen, purchased Hospitalization Benefit Policy/ Senior Citizen Mediclaim Policy (Annexures P-1, P-2 & P-2/1)) from the OPs in the year 2007, which was renewed from time to time and lastly renewed on 19.7.2009, for the period 19.07.2009 to 18.07.2010. During the currency of the policy in question (Annexure P-1) i.e. on 17.05.2010, the Complainant had gone to PGIMER for his check-up, as he was feeling uneasiness. After performing ECO Cardiograph Test, he was referred to Cardio OPD for further investigation. On 19.5.2010, after examination, the doctor admitted him in Cardio Ward and the following tests such as Chest, HRTC and PFT were performed and then he was discharged on 20.5.2010 (Ann.P-3). It was averred that after one week of discharge, he once again felt uneasiness and he again went to PGIMER for his check-up and during check-up he was advised for coronary angiography. The same was performed on 24.6.2010, who showed that the Complainant was suffering from blockage of arteries. Thereafter, he had undergone the angiography and angioplasty on 24.6.2010 and 26.6.2010 respectively, and after keeping him under observation for two/three days, the Complainant was discharged from the PGIMER on 29.6.2010 (Ann.P-4 to P-6). Since he had spent huge money i.e. Rs.1,75,879/- on the above said treatment, therefore, after discharge from the PGIMER, the Complainant submitted his medical claim (Ann.P-9 & P-10) on the prescribed performa of the OP on 12.7.2010 with respect to the medical expenses borne by him. But to his utter shock and surprise, the OP rejected his claim by taking shelter of clause 4.1 of the Policy conditions on the ground of pre-existing disease vide Annexure P-11. Thereafter, the Complainant approached the OPs a number of times and even wrote letters, but to no avail. Hence this complaint alleging that the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice.

2]        Notice of the complaint was sent to OPs, seeking their version of the case.

3]        OP No.1. in its reply, while admitting the factual matrix of the case, pleaded that the Complainant got himself insured from the replying OP under the Hospitalization Benefit Policy/ Senior Citizens Mediclaim Policy for the period 19.7.2009 to 18.7.2010 for a sum of Rs.1,00,000/-. It was asserted that the Complainant submitted his claim to the replying OP. The Complainant was suffering from Hypertension for 25 years and from Diabetes Mellitus for the last 10 years. The Complainant was chronic smoker and suffering from COPD. He had the history of shortness of breath and Atrial Fibrillation. Since the disease of the Complainant was pre-existing, his claim was not payable as per clause 4.1 of the Terms and Conditions of the Policy. All other material contentions of the complaint were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint.

4]        Parties led evidence in support of their contentions.

5]        We have heard the learned counsel for the parties and have also perused the record.

6]        The contention of the complainant that the mediclaim (Annexure P-10) submitted to the OPs during the validity of the Hospitalization Benefit Policy has been wrongly rejected (Ann.P-11) referring to Clause No.4.1 of the Policy Condition (Ann.R-3), which refers to pre-existing disease and the claim was made Non-Tenable. The complainant further pleaded that rejection of his genuine claim on the pretext of the concealment of pre-existing disease i.e. Hypertension & Diabetes Mellitus Type-2, is wholly illegal, unjustified and arbitrary; whereas the claim is being made for the cardiac disease, detected when the angiography and angioplasty was done by the doctors.

7]        Refuting wholly the allegations of the complainant, the OPs averred that the alleged claim of the complainant was not payable due to the pre-existing disease as per Clause NO.4.1 of the Policy Condition; as he was suffering from COPD (Chronic Obstructive Pulmonary Disease). Therefore, the Company should not be held liable for any payment in respect of the expenditure, incurred by the insured in connection with the disease, which existed prior to the effective date of the insurance.

8]        Undisputed fact of the present case is that the complainant submitted his mediclaim (Annexure P-10) with the Opposite Parties with respect to the said Policy (Hospitalization Benefit Policy) (Annexure R-2).  The OPs investigated and revealed that the insured was suffering from Hypertension and Diabetes Mellitus Type-2, which he did not disclose at the time of purchase of the above said Policy. 

9]        Admittedly, the complainant, when underwent angiography and angioplasty, only then came to know that he was suffering from blockage of arteries.  Moreover, the doctors have not ever diagnosed that the Hypertension and Diabetes Mellitus is interlinked with Heart/Cardiac ailment.  Above all, the OPs have not placed on file any expert doctor’s report/opinion, which might have led to the rejection of the said claim.

10]       Furthermore, the policy is continuing one and was in the third year of inception, as admitted by the OPs in their letter dated 23^rd July, 2010 (Annexure P-11). 

11]       The OPs have attached a document i.e. Annexure R-3 (Senior Citizens Mediclaim Policy) at Page 26, wherein Clause 1.0, under the heading Coverage: NOW THIS POLICY WITNESSES,‘….the Company undertakes that, if during the period stated in the Schedule or during the continuance of this policy by renewal, any Insured Person shall contract any disease or suffer from any illness……………the TPA will pay to the Hospital/Nursing Home/Day Care Centre, or reimburse the insured person the expenses listed in 2.1 to 2.6 of the policy’.

12]       Even during the arguments, the learned Counsel of the complainant argued that COPD is linked to the problem of lungs, which stood unrebutted by the OPs, proving their version with cogent evidence or expert opinion that the said problem is linked to Cardiac Disease.  Therefore, we find no force in the contention raised by the OPs that the cardiac problem is due to COPD.

13]       Now the only point which calls determination is whether the repudiation letter dated 23^rd July, 2010 (Annexure P-11) is valid and legal!  The repudiation letter Annexure P-11 whereby the claim of the complainant has been repudiated by the OPs stated as under:-

“PATIENT ADMITTED AND DIAGNOSED CHRONIC AF, HTN, TYPE 2 DM, COPD, CART & PTCA + STENTING DONE.  SINCE THE POLICY IS IN 3^RD YEAR OF INCEPTION AND THE DISEASE (HTN*25YRS AND DM*10YRS) IS PRE-EXISTING. HENCE THE CLAIM IS NON PAYABLE AS PER CLAUSE 4.1 OF THE POLICY CONDITIONS. CHRONIC AF, HTN, TYPE 2DM, COPD FOR CART & PTCA + STENTING.”

14]       The statement of the OPs that the life assured withheld the material information regarding his health during the purchase of the policy and the claim has been rightly repudiated, finds no ground.  The onus to prove the said fact lied upon the OPs, which they have failed to do so.

15]       Reliance placed on Oriental Insurance Company Ltd. Vs. Mohinder Singh (Dr.) report in IV(2008) CPJ 511 and Lakhwinder Singh and Anr. Vs. United India Insurance Company Ltd. and Others reported in II(1010) CPJ 265 decided by our own Hon’ble State Commission.

16]       From the authorities cited above and the facts and circumstances of the present case otherwise had established that the policy holder is not expected to disclose the normal ailments, which are controllable with standard medication and cannot be termed as concealment of ‘Pre-existing Disease’ and that too lead to the repudiation of insurance claim. 

17]       In view of the above, the repudiation of the claim cannot be considered, as based on logic, as it is the insurer, who accept the proposal for insurance and issue insurance policy subsequently, after due examination by the doctors of the Company.  The OPs alleged pre-existing disease, but failed to prove the same.  Reliance placed on LIC of India and others Vs. Harband Kaur, 2010(1) CLT (NC).

18]       In view of the foregoing, we are of the opinion that the claim of the complainant was genuine & justified, whereby the repudiation of the same by the OPs was totally wrong.  Therefore, we accept the complaint and allow the same.  The OPs are directed to reimburse the medical expenses of Rs.1,00,000/- as sum assured to the complainant. The OPs are also directed to pay compensation of Rs.25,000/- besides litigation cost of Rs.10,000/- to the complainant.

19]       This order be complied with by the OPs, within one month, from the date of receipt of its copy, failing which they would be liable to pay the awarded amount, alongwith interest @ 12% p.a. from the date of filing of the present complaint i.e. 26.4.2011, till the amount is actually paid to the complainant, besides paying the litigation cost of Rs.10,000/-.

20]       Certified copies of this order be sent to the parties free of charge.  The file be consigned.