BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.219 of 2018
Date of Inst. 21.05.2018
Date of Decision: 10.11.2021
1. Yash Pal Jain (Deceased) S/o Sh. Dina Nath Jain R/o H. No.104, Tagore Nagar, Near Shehnai Palace, Jalandhar through his Legal Heirs.
a) Smt. Sunita Jain W/o Sh. Yash Pal Jain
b) Sh. Gaurav Jain S/o Sh. Yash Pal Jain
c) Sh. Saurav Jain S/o Sh. Yash Pal Jain
d) Ms. Shruti Jain D/o Sh. Yash Pal Jain.
2. Smt. Sunita Jain W/o Sh. Yash Pal Jain R/o H. No.104, Tagore Nagar, Near Shehnai Palace, Jalandhar.
..........Complainants
Versus
1. M/s Religare Health Insurance Company Ltd. RHICL, Jalandhar- 144001 through its Branch Manager.
2. M/s Religare Health Insurance Ltd. Vipul Tech Square, Tower-C, 3rd Floor, Gold Course Road, Sector-43, Gurgaon-122009 (Haryana) through its Managing Director.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Smt. Harveen Bhardwaj (President)
Smt. Jyotsna (Member) Sh. Jaswant Singh Dhillon (Member)
Present: Sh. A. K. Arora, Adv. Counsel for the Complainants. Sh. R. K. Sharma, Adv. Counsel for the OPs No.1 and 2.
Order
Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein alleged that the complainant has been taking policies of insurance qua the health Insurance of the complainant as well as his wife ever since 28.01.2015 and there is no break in these policies of insurance issued to the complainant by the opposite parties. The first policy of insurance taken by the complainant from the opposite parties in the name of the complainant as well as his wife namely Smt. Sunita Jain was for the period 28.01.2015 to 27.01.2016. Thereafter the said policy was renewed from 28.01.2016 to 27.01.2017 and thereafter from 28.01.2017 to 27.01.2018. Prior to 28.01.2015, the complainant as well as his wife were getting health insurance policy from National Insurance Company Limited from 28.01.2006 onwards. Policy for the period 28.01.2012 to 27.01.2013, 28.01.2013 to 27.01.2014 and 28.01.2014 to 27.01.2015 issued by National Insurance Company Limited are on the file. That the Complainant purchased Health Insurance Policy i.e. mediclaim insurance from the opposite parties for the period 28.01.2018 to mid night of 27.01.2019 in the name of the complainant as well as his wife namely Smt. Sunita Jain covering the risk to the tune of Rs.10 Lacs each by paying premium of Rs.54,690/-. The said policy of insurance was a renewal of earlier policy of insurance taken by the complainant from 28.01.2017 to 27.01.2018, which the complainant has been taking from the opposite parties ever since 28.01.2015. That the complainant lodged a claim regarding the treatment of his wife for loose motions for the period 04.06.2017 to 10.06.2017 from Pawan Hospital and Maternity Home under the policy of Insurance for the period 28.01.2017 to 27.01.2018 issued by the opposite parties. The said claim of the complainant was rejected by the opposite parties vide letter dated 20.07.2017 on the ground that the wife of the complainant was having hyper tension since five years and it was not disclosed at the time of taking policy of insurance and as such the claim has been rejected due to non disclosure. The complainant has already filed a complaint against the opposite parties with the District Consumer Disputes Redressal Forum, Jalandhar alleging therein that the treatment for which the wife of the complainant has taken treatment has nothing to do with the hypertension. Moreover hypertension is not a disease and is a common ailment and it can be controlled by medicines and as such there is no question of disclosing the same at the time of taking of policy of insurance. The said complaint is pending for adjudication by this Hon'ble Forum. That the complainant received a letter dated 10.02.2018 from the opposite parties stating therein that while verifying claim number 90358635 (already rejected by the opposite parties) submitted by the complainant against the captioned policy, it has been noticed that there has been non disclosure of material facts/pre-existing ailments at the time of proposal. Patient Mrs. Sunita Jain had a history/known case of hypertension at this fact was not disclosed at the time of taking of the policy and the complainant was called upon within a period of 15 days from the date of said letter to furnish correct facts supported by valid documentary proof and in case it is disputed, the company can cancel the policy as per the policy terms and conditions and forfeit the entire premium. That the said letter was duly replied by the complainant to the opposite parties vide reply dated 01.03.2018 stating therein that at the time of taking insurance policy from the opposite party by switching over from National Insurance Company Limited from whom the complainant had been continuously taking policy of insurance ever since 27.01.2011, the copies of previous policies of insurance issued by National Insurance Company Limited to the agent of the opposite parties who has approached the complainant for taking Health Insurance Policy from the opposite parties. It was brought to the notice of said agent of the opposite parties that Yash Pal Jain one of the insured is a diabetic and another insured Smt. Sunita Jain is taking medicines for High Blood Pressure but the agent of the opposite parties who has filled a proposal form at the time of taking insurance policy for the first time on 28.01.2015 has not mentioned the factum of the insured Yash Pal Jain as diabetic and Smt. Sunita jain patient of blood pressure. In the previous policy of insurance issued by National Insurance Company Limited insured Yash Pal Jain has been shown to be having pre existing disease of diabetes, yet the said fact was not mentioned in the proposal form filled in by the agent of the opposite parties adding in the proposal form was not signed by the complainant. It was further submitted that there was no intention of the insured regarding suppression/non disclosure of material facts at the time of issuance of insurance policy for the first time on 28.01.2015. Otherwise too hypertension is not a disease and is a common ailment and it can be controlled by medicines and there is no question of not disclosing the same at the time of taking of policy of insurance from the opposite parties for the first time. The attention of the opposite parties was drawn towards Section 45 of The Insurance Act, which states that any policy of insurance shall after the expiry of two years from the date on which it was effected, be called in question by an insurer on the ground that the statement made in the proposal form for insurance or in any report of medical officer, or referee, or friend of the insured or in any other document leading to the issue of the policy was inaccurate or false unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy holder and the policy holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose. As per Section 45 of the Insurance Act opposite parties have no right whatsoever to cancel the policy issued to the complainant and his wife, since no material fact whatsoever has been suppressed by the complainant at the time of issuance of policy of insurance on 28.01.2015. The opposite parties have no right to state after a period of more than three years that the insured i.e. the complainant has suppressed any material fact at the time of issuance of policy of insurance. Further as per IRDA guidelines, the opposite parties you have no right whatsoever to cancel the policy of insurance unilaterally in view of the fact that the public health cannot be thrown to the mercy of the Arbitrary Freedom of private contracts, because the nature of contract involving health insurance is not a matter of mere private concerns of two contracting parties, but operates in public field where the concern of community interest have to be read in such transactions. As observed by Hon'ble Gujrat High Court that the health care scheme including mediclaim are devised to ease the financial burden of the high costs of hospitalization, on low and middle Income Group Population. This would unable such persons who are covered by such health insurance schemes to avail of a better quality of medical services which otherwise might be out of the reach of such persons. The mediclaim scheme is, therefore, not a subject of mere private concerns of two contracting parties, but a result of National Concerns reflected in the norms of National Health Policy. The Court directed the Insurance Company their respective policies from the date on which they expired on payment of renewal premium payable by the policy holder under the scheme without excluding the diseases that may have been contacted by them during the period of their existing policies for the year concerned. It is not out of place to mention here that the complainant have written letters to the opposite parties dated 06.07.2017, 01.08.2017 and 13.02.2018 attaching therewith the previous policies of insurance for the three years issued by National Insurance Company Limited, requesting the opposite parties to enter the pre-existing disease of insured Yash Pal has diabetic in the policy of insurance issued to the complainant, in view of the fact that it has been mentioned in the policies of insurance issued by National Insurance Company Limited, prior to switching over for health insurance from the opposite parties. No reply whatsoever has been received to aforesaid letters nor the pre-existing disease of diabetes has been entered against insured Yash Pal Jain. Instead of adding the pre-existing disease of diabetes against the insured Yash Pal Jain, the present letter dated 16.02.2018 has been written for cancellation of the policy. That in view of the facts written above, opposite parties were requested not to cancel the Insurance Policy issued by the opposite parties in favor of complainant and his wife in view of the fact that the complainant has not suppressed any material fact at the time of taking policy of insurance issued by the opposite parties. In case, the opposite parties still cancel the policy of insurance issued by the opposite parties unilaterally, arbitrarily, leaving the insured without health insurance policy at this stage, the complainant reserve his right to file appropriate legal proceedings against the OP for the continuation of the said Health Insurance Policy at the complete risk, costs and responsibility of the opposite parties. That the opposite parties on the receipt of reply dated 01.03.2018 kept mum over the matter wrote letter dated 23.04.2018 in the shape of reminder that the opposite parties have not given reply to the representation dated 01.03.2018 received on 03.03.2018 by the opposite parties, the opposite parties without considering the reply / representation dated 01.03.2018 has remitted the premium amount of Rs.54690/- to the account of the complainant, which was charged by the opposite parties from the complainant at the time of issuance of policy of insurance for the period 28.01.2018 to 27.01.2019, which means the opposite parties have cancelled the policy of insurance issued to the complainant unilaterally and arbitrarily without any rhyme or reason. That the opposite parties has not considered the representation/reply dated 01.03.2018 given by the complainant to the opposite parties in respect of letter dated 16.02.2018 served upon the opposite parties upon the complainant for the cancellation of the policy of insurance. As per section 45 of the Insurance Act 1938, the opposite parties have no right whatsoever to cancel the policy of insurance and to refund the premium after a period of two years, in view of the fact that the complainant has been taking policy of insurance from the opposite parties ever since 28.01.2015. The said cancellation of policy of insurance is against the IRDA Guidelines and the opposite parties have no right whatsoever to cancel the policy of insurance issued to the complainant. That the complainant is under constant stress, strain and tension on account of conduct of the opposite parties in cancellation of the policy of insurance issued to the complainant by the opposite parties. The opposite parties are indulging in unfair trade practices and the services provided by the opposite parties are deficient and defective in nature. Since the complainant is about 63 years of age and as such may not be able to obtain fresh health insurance policy from any insurance company and the state of the complainant qua his health and the health of his wife are in doledrum. The complainant is entitled to special damages of Rs.5 Lacs on account of stress, stain, tension, unfair trade practices and for providing deficient services to the complainant. The said damages of Rs.5 Lac are all the more important in view of the fact that the insurance companies should not play with the Health of an individual. That the complainant is entitled to the continuance of the policy of insurance issued to the complainant for the period 28.01.2018 to 27.01.2019 on payment of premium to the opposite parties, which has been illegally refunded to the complainant by the opposite parties, since the act of the opposite parties in cancellation of the policy of insurance to the complainant is without any basis and against the provisions of Section 45 of the Insurance Act and IRDA Guidelines. The complainant is ready to make payment of the premium due and payable under the said policy of insurance. The complainant is also entitled to further renewal of the said policy of insurance from time to time from the opposite parties. That the complainant is a consumer of the opposite parties, since he has been continuously taking the policies of insurance from the opposite parties ever since 28.01.2015 and has paid premium to the opposite parties in respect of the policy of insurance for the period 28.01.2018 to 27.01.2019, which has been illegally refunded by the opposite parties to the complainant and as such, the present complaint filed with the prayer that the complaint of the complainant may kindly be accepted and OPs be directed to set aside the cancellation made by the opposite parties in respect of the policy of insurance for the period 28.01.2018 to per 27.01.2019 and the opposite parties be directed to continue the policy of insurance on payment of premium of Rs.54690/- and further the opposite parties be directed to continue/renew the health insurance policy of the complainant and his wife from time to time and further the OPs be directed to pay Rs.5,00,000/- on account of stress, stain, tension indulging in unfair trade practice, deficient services as well as illegal and unilateral cancellation and Rs.15,000/- as litigation expenses.
2. Notice of the complaint was given to the OPs, who filed written reply and contested the complaint by taking preliminary objections that the complaint is not maintainable against the OPs as the complainant cannot take advantage of his own wrongs. The complainant himself is guilty of non-disclosure of material facts at the time of taking policy, as such, the complaint is liable to be dismissed. That the complainant had purchased a Health Insurance from the Opposite party bearing No. 10172896 insuring himself and his spouse (hereinafter known as patient) for the period 28-01-2015 to 27-01-2016 subject to Policy Terms and Conditions. The policy was further renewed for a period from 28-01-2016 till 27-01-2017 and again from 28-01-2017 till 27-01- 2018 subject to policy terms and conditions. The Policy Certificate along with terms and conditions is marked as CP-1. That during the currency of the above said policy, patient was admitted in Pawan Hospital & Maternity Home on 04-06-2017 and was discharged on 10-06-2017 for her treatment of Diabetes Melitus, Hypertension and Septical Acute GE (Gastroenteritis). Thereafter, the opposite party received re-imbursement claim from the complainant for the above said Hospitalization. The claim form is annexed as OP-2. That on receipt of claim, a query letter dated 27-06-2017 was sent to the complainant asking to provide all treatment record related to Diabetes and Hypertension and Exact duration and past history of present ailment with 1st papers. Query Letter dated 27-06-2017 is annexed as OP-3. On non-receipt of required documents, a reminder for the same subject matter was issued vide Query Letter dated 07-07-2017 which is annexed as OP-4. Consultation That the Opposite Party subsequently triggered a reimbursement claim investigation which revealed that the patient Sunita Jain was suffering from the Hypertension since five years which was not disclosed at the time of taking policy. That as per Questionnaire dated 04-07-2017 filled and signed by the complainant, the complainant accepted that his wife Sunita Jain was suffering from Hypertension since 5 years i.e. before the inception of the policy and that fact was not disclosed by the complainant in the proposal form. Questionnaire duly filled by the insured is annexed as OP-5. This fact of patient suffering from Hypertension is also corroborated from the History Sheet of the Pawan Hospital which finds a specific mention showing past history of the patient to be IDDM (insulin dependent Diabetes Mellitus) with Hypertension. History Sheet is annexed as OP The said fact was also corroborated by the Discharge Card dated 10-06-2017 showing the patient to be a case of Diabetes and Hypertension. Discharge Card is Annexure OP-7. The consultation papers dated 06-05-2015 issued by Pawan Hospital also shows patient to be case of Diabetes Mellitus and Hypertension and the same is annexed as OP-8. The complainant did not disclose about the fact of patient suffering from Hypertension at the time of filling proposal form. Also as per the consultation paper dated 10-6-2017 issued by the Pawan Hospital and 07-06-2017 issued by the Mannat Super specialty Hospital, the patient was diagnosed with Hypertension, hence indicating that the present ailment has direct nexus with the information not disclosed at the inception of the policy. The consultation paper is annexed as OP-9. That it is learnt that, that even if policy is being ported, the proposer is supposed to fill proposal form. The proposal form is required to be filled, so that all the correct disclosures can be made in the proposal form before accepting his proposal of insurance thereby porting the policy. The company on reviewing the proposal, may or may not issue the policy based upon the disclosures in the proposal form and depending upon the risk appetite of the company. The complainant did not disclose about the fact of patient suffering from Hypertension at the time of filling proposal form. Proposal Form is annexed as OP-10. The fact of patient suffering from Hypertension came to the knowledge of the opposite Parties only after the receipt of re-imbursement claim, investigation made and on scrutiny of the documents furnished by the complainant. The fact of having Hypertension was neither disclosed in the Proposal Form nor in the medical examination form. Had the correct Health Status of the proposed insured been disclosed at the proposal stage or at the stage of medical examination, then the company would not have issued the policy on same terms and conditions. The said claim of the complainant stands repudiated as per terms and conditions of the insurance policy vide letter of Repudiation dated 20-07-2017 on the ground of Non-disclosure of pre-existing Hypertension since five years i.e. prior to the policy. The letter dated 20-07-2017 is OP-12. The complainant has filed complaint before this Commission bearing No.CC/14/2018 titled "Yash Pal Jain Vs Religare Health Insurance Co. Ltd" and is pending before this Commission. That the material fact of insured patient suffering from Hypertension was not disclosed at the time of taking policy from the opposite parties and porting insurance policy National Insurance Co. Ltd. in the proposal form which amounts to making of untrue and incorrect statement misrepresentation, mis-description and non-disclosure of material facts, the opposite parties as per Clause No.7.13 of the insurance policy served 15 days notice dated 16-02-2018 upon the complainant to furnish correct facts supported by valid documentary proof in case the complainant disputes that patient was not suffering from Hypertension prior to taking policy from opposite parties, failing which the policy bearing No.10172896 shall be cancelled. Copy of Notice dated 16-02-2018 is annexed as OP 13. As the complainant failed to give a satisfactory reply to the said notice wherein the averment of the complainant regarding sending of reply dated 01-03-2018 that the pre-existing disease of Hypertension was disclosed to the agent of the opposite party at the time of taking policy and the said agent did not mention the pre-existing disease of patient in the proposal form is a concocted story and an afterthought after the rejection of the claim of patient vide letter dated 20-07-2017 in the previous policy. The complainant is wrongly denying that he did not sign the proposal form. The Complainant is misquoting applicability of section 45 of the Insurance Act in the present complaint. Section 45 of the Insurance Act is applicable only in case of Life Insurance Policies. The insurance policies were issued on the basis of proposal forms. As the complainant tried to cover his fault by leveling false allegations that the pre-existing Hypertension in patient was Member disclosed to agent of the company and it is the agent who did not mentioned about the pre-existing disease of Hypertension suffered by patient in the proposal Form further amounted to misrepresentation and mis-description inferring the admission of pre-existing disease of Hypertension suffered by patient, as such the policy of the complainant was cancelled as per terms and conditions of insurance policy and the premium of Rs.54,690/- was refunded to the complainant. On merits, it is admitted that the OPs had served notice for cancellation dated 16.02.2018 upon the complainant for cancellation of the policy, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied those of the written statement.
4. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavits of the complainant as Ex.CA and Ex.CB alongwith some documents Ex.C-1 to Ex.C-15 and closed the evidence.
5. In order to rebut the evidence of the complainant, the counsel for the OPs No.1 and 2 tendered into evidence affidavit of Ankit Shanker Bhardwaj Ex.OA alongwith some documents Ex.OP-1 to Ex.OP-15 and closed the evidence.
6. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
7. Vide this complaint, the complainant has sought the setting aside the cancellation of the policy of insurance of the complainant for the period 28.01.2018 to 27.01.2019 and to give direction to the OP to continue the policy of insurance on payment of premium of Rs.54,690/- and to renew the health insurance policy of the complainant and his wife from time to time. Damages for the stress, stain and tension suffered by the complainant and the litigation expenses have also been claimed by the complainant.
8. Now the point in issue is as to whether the cancellation of the policy of the complainant and remission of the amount of premium is on a legal ground or not or as per the terms and conditions of the insurance policy or not.
9. It is an admitted fact of the parties and is proved by the complainant that the complainant purchased the health insurance policy i.e. mediclaim insurance policy from the OPs for the period 28.01.2018 to mid night of 27.01.2019 in the name of the complainant as well as his wife Smt. Sunita Jain covering the risk to the tune of Rs.10 lacs each by paying premium of Rs.54,690/-. It is also proved on the record that earlier the complainants took the insurance from the National Insurance Company, but thereafter they transferred their mediclaim to the OPs. They started taking insurance policy i.e. mediclaim from 28.01.2015 till 27.01.2019. During this period, the complainant lodged a claim regarding the treatment of his wife for loose motions for the period 04.06.2017 to 10.06.2017 from Pawan Hospital and Maternity Home under the policy of insurance for the period 28.01.2017 to 27.01.2018 issued by the OPs. Their claim was rejected by the OPs and complaint was filed by the complainant in this Forum (now Commission). That complaint was decided by the Forum (now Commission), vide order dated 13.05.2019. As per the order produced by the complainant, the Forum (now Commission) held that the claim of the complainant has wrongly been repudiated by the OPs and the repudiation letter was set-aside and the OPs were directed to pay the medical expenses alongwith interest, litigation charges and compensation.
10. In the present case also the plea taken by the OPs is that the complainant has not disclosed the material facts i.e. pre-existing ailment at the time of filing the proposal as the patient/Sunita Jain had a history of Hypertension and the complainant was called upon within a period of 15 days to furnish the correct facts supported by valid documentary evidence proof. The complainant has relied upon all the insurance policies taken by the complainant and also the previous claim which was repudiated by the OPs and thereafter was set-aside by the Forum (now Commission). Perusal of the documents produced on record by the OPs show that the main defence of the OPs is that the complainant is the patient of Hypertension and Diabetes and this fact has not been disclosed by the complainant. OPs have also relied upon the proposal form in which there is no reference of pre-existing Hypertension and Diabetes details. As per the order dated 13.05.2019, the Forum (now Commission) has categorically held and observed that the complainant has disclosed in the proposal form dated 02.12.2014 that the complainant has never been diagnosed/hospitalized or remained under any treatment for any illness and injury during the last 48 months and is not taking any medicine. The OPs have relied upon the proposal form in which it is not mentioned about the pre-existing Hypertension and Diabetes. The Ld.Counsel for the complainant has submitted that this proposal form was never filled by them rather the same was filled in by the official of the OP and it is not signed by them. Thus, it cannot be said that this information was ever given by the complainants. It has been held by Hon’ble Supreme Court in “Biman Krishna Bose Vs. United India Insurance Co. Ltd.”, that the insurance company cannot deny the renewal of the policy on the basis of the exclusion clause of the policy qua pre-existing diseases/injuries. The present claim has been cancelled by the OPs only on the ground of non-disclosure of pre-existing diseases of Hypertension and Diabetes. It has been decided by the Hon’ble Supreme Court in various judgments that Hypertension is not a disease, it is a general wear and tear of the life which occurred due to the pressure of the present life style and even otherwise the disease of Hypertension and Diabetes can be cured by taking medicine. These are not such diseases which cannot be treated and cured, thus such kind of diseases are not required to be disclosed at the time of filing of the proposal form. After setting aside the order of the repudiation of the OPs, the OPs have arbitrarily not renewed the insurance policy as it was held by the Forum (now Commission) that the repudiation of the claim on the basis of non-disclosure of Hypertension and Diabetes is wrong, arbitrary and was set-aside. It has been held by the Hon’ble Delhi High Court in 2005 (2) AD (Delhi) 358 that the refusal by the insurance company to renew the mediclaim policy is an arbitrary order and the policy was directed to be renewed.
11. In view of the above said observations, we are of the considered opinion that the policy of complainant has been wrongly cancelled by the OPs and the same order is set-aside and the complaint of the complainant is partly allowed. Thus, the OPs are directed to renew the policy of insurance for the period 28.01.2018 to 27.01.2019 on receipt of the payment of premium of Rs.54,690/- from the complainants, which was remitted to the complainants wrongly by the OPs. The OPs are further directed to continue or renew the health insurance policy of the complainant and his wife from time to time as per rules. The OPs are further directed to pay a compensation of Rs.15,000/- for causing mental tension and harassment to the complainant and further Rs.5000/- on account of litigation expenses. The compliance of the order be made within 45 days from receipt of copy of this order. This complaint could not be decided within stipulated time frame due to rush of work.
12. Copies of the order be sent to the parties, as permissible, under the rules. File be indexed and consigned to the record room after due compliance.
Dated Jyotsna Jaswant Singh Dhillon Harveen Bhardwaj
10.11.2021 Member Member President
