DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH [Consumer Complaint Case No: 548 of 2011] -------------------------------- Date of Institution : 29.11.2011 Date of Decision : 31.08.2012 -------------------------------- Ashish Rana s/o Late Sh. Ashok Kumar Rana, R/o H.No.101, GH-31, Sector 5, Mansa Devi Complex, Panchkula – 134109. ---Complainant VERSUS M/s Star Health and Allied Insurance Co. Ltd., SCO 257, 2nd Floor, Sector 44-C, Chandigarh, through its Manager/ Authorized representative. ---Opposite Party BEFORE: SH. LAKSHMAN SHARMA PRESIDENT MRS.MADHU MUTNEJA MEMBER SH. JASWINDER SINGH SIDHU MEMBER Argued By: Sh. Sandeep Bhardwaj, Counsel for Complainant. Sh. Gaurav Bhardwaj, Counsel for Opposite Party. PER JASWINDER SINGH SIDHU, MEMBER 1. Complainant has filed the present complaint, against the Opposite Party on the grounds that, the Complainant took health insurance policy namely “Senior Citizens Red Carpet Insurance Policy” by paying a premium of Rs.9326/-, for effective period beginning 28.12.2010 up to 27.12.2011. The Complainant was made to understand that he can avail the benefits of (a) in patient hospitalization expenses; (b) ICU expenses per day; (c) Nursing expenses; (d) Surgeon’s fee, Consultant’s fee, Anesthetist’s and Specialist’s fee; (e) Cost of blood, Oxygen, pacemaker; (f) Cost of drugs and diagnostic tests; (h) Emergency ambulance charges. The Complainant had supplied all the information demanded by the Opposite Party prior to taking the policy and after completing the formalities and satisfying themselves, Opposite Party issued a cover note. The detailed terms and conditions of the policy were to reach the Complainant’s address which Complainant claims that he has not received, till date. Copy of cover note/schedule is annexed as Annexure C-1 with the complaint. It is claimed that the father of the Complainant was very much healthy at the time of purchase of the policy. On 16.9.2011, father of the Complainant was admitted at Alchemist Hospital, Panchkula, due to fever, and pain in abdomen, for a period of 8-10 days. The father of the Complainant was shifted to ICU on the same day, but unfortunately passed away on 18.9.2011, due to multi-organ failure and severe metabolic acidosis as reported by the Hospital. The Opposite Party was duly informed about the admission on 16.9.2011 itself and the Complainant was told that the charges of the Hospital will be paid by the Opposite Party as the benefits of the Policy were of cashless nature. That as on 17.9.2011 and 18.9.2011 it was Saturday and Sunday, the Opposite Party informed the Complainant that he should bear the expenses from his own pocket as it was holiday on Sunday and assured to indemnify the Complainant later on. During the course of treatment of the Complainant’s father, Complainant paid an amount of Rs.900/- at GMCH, Chandigarh and Rs.3144/- at Fortis Hospital on 17.9.2011. Believing on the promise of the Opposite Party, the Complainant also paid an amount of Rs.97,523/- through credit card to the treating Hospital. Copy of the bills and receipts of the same are annexed as Annexure C-2/1 to C-2/6. The Complainant completed all the formalities with the Opposite Parties by supplying each and every document, as and when asked for by the Opposite Party. But when on 22.11.2011, the Complainant inquired about the status of his claim, the Opposite Party handed over a computer generated repudiation letter, without any seal/ stamp and claimed that there was misrepresentation by the insured person and that the disease i.e. Hairy Cell Leukemia was present at the commencement of the Policy. A copy of the said letter is annexed as Annexure C-3 with the complaint. The Complainant claims that a certificate from the treating doctor dated 24.10.2011 (Annexure C-4), copy of which was also supplied to the Opposite Party, specifically mentioning that there was no evidence of Hairy Cell Leukemia during the investigations at the time of treatment of the father of the Complainant. Thus, the claim of the Opposite Party about the misrepresentation was totally false and the repudiation of the claim of the Complainant was done on flimsy grounds. Aggrieved of the act of not entertaining the genuine claim of the Complainant, and citing deficiency in service on the part of the Opposite Party, the Complainant has filed the present complaint, seeking following reliefs:- [a] A sum of Rs.97,523/-, along with interest @18% p.a. from the date of payment; [b] Compensation of Rs.1,00,000/- towards mental agony and harassment; [c] Cost of litigation amounting to Rs.21,000/-; The complaint of the complainant is supported by his detailed affidavit. 2. The Opposite Party has contested the claim of the complainant by filing their reply, taking preliminary objections to the effect that the present complaint is not maintainable on the grounds that he has not visited this forum with clean hands and that no cause of action has accrued to the Complainant to file the present complaint against them; and that the contract of insurance is based on the principle of “Uberrima Fide” i.e. Utmost Good Faith. The insurance contract is based on information provided by one party to the contract i.e. Proposer/ insured. Based on this information the insurance company accepts or rejects the proposal. In the present case complaint had suppressed the material information with regard to his health and had not disclosed the disease suffered by him prior to take the policy. The Opposite Party claims that after due application of mind, and as per policy terms & conditions, the claim of the Complainant was repudiated. The Opposite Party has also reproduced clause 7 of the policy, as well as relevant portion of the proposal form, claimed to have been filled up by the Complainant. The Opposite Party also states that a medical officer who visited the hospital and had gone through the records of the Alchemist Hospital has submitted its report, which clearly mentions that the Complainant is a known case of Hairy Cell Leukemia and had a history of PTCA in the year 2000 at PGI. Thus, this clearly proves that the Complainant had misrepresented and suppressed material fact about his health from the insurance company. On merits, the Opposite Party has repeated their preliminary objections, while replying to the each averments of the present complaint, in their para-wise reply. Thus, claiming the present complaint to be false, frivolous and bad in law prayed for the dismissal of the same with costs. 3. Having gone through the entire complaint, version of the Opposite Party, the evidence of the parties and with the able assistance of the learned counsel for the parties, we have come to the following conclusions. 4. We have gone through the reply of the Opposite Party through which it had vehemently denied the allegations as per the averments of the complaint. However, while minutely going through the contents, it is found that the Opposite Party is categorical in para 3 of preliminary objections wherein it is found mentioned that “the Complainant has suppressed the material information with regard to his health and has not disclosed the disease suffered by him prior to the taking of the policy”. It is important to quote here that though the proposal form was filled up by the Complainant, but the material information with regard to the health and disclosure of disease was actually attributable towards the late father of the Complainant and not the Complainant himself. Secondly, while highlighting the condition 7 of the policy document, the Opposite Party has also reproduced the relevant portion of the proposal form, but on comparing the same with the proposal form submitted by the Opposite Party as Annexure R-5 (at Pg.15), it is found that against the columns mentions in the reply no specific word as ‘No’ is found written; whereas, the letters ‘—N.A.—‘ is found written against the relevant columns. Meaning thereby that the Opposite Party has tried to specifically put the word ‘No’ in the expression of the letters ‘N.A.’, as appended by the Complainant and the same is not right. 5. The Complainant while supporting his claim that his late father was not suffering from the disease, as pointed out by the Opposite Party, by bringing on record a certificate of the treating doctor of the hospital, where he was last attended to, before he finally passed away. Thus, establishing the fact that at the time of subscribing for the policy, the disease of Hairy Cell Leukemia was not present and even if, it is believed that the life insured ever took the treatment for the same at PGI in the year 2000, had actually recovered from the same, after the treatment, in that year. It is also pointed out by the Complainant that as the death of the life insured had actually happened due to multiple organ failure and not due to the Hairy Cell Leukemia. Thus, there was no relation between the existence of this disease and the cause of death by it, proving that the life assured was suffering from the same. The Opposite Party on its part has failed to bring on record any evidence which is totally independent of the entire episode of treatment. Thus, the objections of the Opposite Party on this ground deserve to be ignored. 6. It would also be important to visit the relevant portion of the terms and conditions of the policy document at Page 10 (Annexure R-2), wherein the pre-existing disease is found defined and mentions as:- “Pre Existing Disease means any condition, ailment or injury or related condition (s) for which the insured person had signs or symptoms, and/or were diagnosed and/or received medical advice/ treatment within 48 months prior to the inception of the insured person’s first policy with the Company.” It would also be fair to go through the exclusion clause, wherein at Clause No.1, it is found mentioned that the Company shall not be liable to make any payments under the policy in respect of any expenses whatsoever incurred by the insured person in connection with or in respect of:- “1. All Pre-existing disease as defined in the policy existing and suffered by the insured person for which treatment or advise was recommended or received during the immediately preceding 12 months from the date of proposal.” “5. 50% of each and every claim arising out of all pre-existing diseases as defined and 30% in case of all other claims which are to be borne by the insured.” Thus, after having gone through the definition of Pre-existing disease, as defined in the policy document, confirms that the late father of the Complainant did not suffer from Hairy Cell Leukemia within 48 months prior to the inception of the first policy with the company and also that the late father of the Complainant did not receive any treatment for this disease during the immediately preceding 12 months from the date of the proposal. The Opposite Party has failed to bring on record any proof to controvert these two conditions. Thus, the manner in which the Opposite Party has twisted the fair information supplied by the Complainant and the rejection of the claim of the Complainant, is an act of deficiency in service on their part. 7. We have also gone through the Pre-Authorization Request Form (Annexure R-3) page- 13 of the reply, submitted by the Complainant with the Opposite Party. The Opposite Party claims that the Doctor who had visited the treating Hospital where the life insured was admitted and on whose investigation, the pre-authorization was rejected, had actually not opined about the life assureds H/O past illness relevant to present illness and Whether the present illness is a complication of any pre-existing disease/ operation/ past diseases, because the relevant portion immediately below the column ‘C’ (Medical History) of this document is left blank. Hence, the Opposite Party has also flawed in deriving a conclusion that does not exist in this document. Therefore, the Opposite Party is found deficient in rendering proper service to the complainant. 8. In the light of above observations, we find a definite deficiency in service on the part of the Opposite Party. The present complaint of the Complainant succeeds against the Opposite Party, and the same is allowed qua it. Hence, the Opposite Party is directed:- [a] To pay 70% of the claim of Rs.97,523/-, as per Clause 5 of ‘Exclusions’ of the Policy; [b] To pay Compensation of Rs.25,000/- towards mental agony and harassment; [c] To pay Cost of litigation amounting to Rs.10,000/-; 9. The above said order shall be complied within 45 days of its receipt by Opposite Party; thereafter, Opposite Party shall be liable for an interest @18% per annum on the amount mentioned in sub-para [a] & [b] of para 8 above, from the date of authorization rejection letter i.e. 19.09.2011, till it is paid. 10. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 31st August, 2012Sd/- (LAKSHMAN SHARMA) PRESIDENT Sd/- (MADHU MUTNEJA) MEMBER Sd/- (JASWINDER SINGH SIDHU) MEMBER
| | MRS. MADHU MUTNEJA, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | MR. JASWINDER SINGH SIDHU, MEMBER | | 
