BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.292 of 2019
Date of Instt. 29.07.2019 Date of Decision: 12.07.2023
Ms. Reema Kalyan daughter of Shri Subhash Kalyan, resident of Quarter No.322-A, PAP Lines, Gate No.5, Near Gurudwara Sahib, Jalandhar.
..........Complainant
Versus
1. M/s Star Health & Allied Insurance Co. Ltd., Through its Authorized Signatory V. Ramesh, No.15, Shri Balaji Complex, 1st Floor, Whites Lane, Royapettah, Chennai 600 014.
2. M/s Star Health & Allied Insurance Co. Ltd., Branch Office: Jalandhar-II, EH-198, 2nd Floor, Nirmal Complex, G. T. Road, Jalandhar Through its Branch Manager.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Sohit Talwar, Adv. Counsel for Complainant.
Sh. Nitish Arora, Adv. Counsel for OPs No.1 and 2.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the complainant purchased Policy No.P/211215/01/2017/002402 on 18.3.2017 from the OP No.2, which was again renewed vide No.R/211215/01/018/002924 for the period from 19.3.2018 to 17.3.2019 having Product Type Medi-Classic Individual Revised. On 21.4.2017, the complainant felt some pain in her chest. Thereafter, younger brother of the complainant took her to a medical store, who advised that the pain pertains to a serious disease, so she should be got checked up from a Competent Doctor. Immediately, the complainant was taken to the Hospital of Dr. Raman Chawla, who after conducting the preliminary tests, diagnosed that the complainant was suffering from serious heart ailment and required immediate operation. At that time, due to some family issues the complainant could not get her surgery. Thereafter, on 7.11.2017, again condition of the complainant deteriorated and she was again taken to Hospital where the Doctor advised that if she would not undergo immediate Surgery, it could cost her life. Under such circumstances, the complainant was got admitted on 9.2.2018 in Dr. Raman Chawla's Super Specialty Hospital Care-max and was operated upon for MCPRP+OG. The complainant was discharged on 19.2.2018. As the complainant is under the cover of Mediclassic Individual Policy, as such, she lodged the claim with the OP No.1 through OP No.1 for reimbursement of her medical claim vide claim No.CLMG/2018/211215/0502901. The claim of the complainant was repudiated by the OP No.1 with the observation that from the indoor case records of the above Hospital, it was observed that Insured patient is symptomatic of the above disease for the past two years, which is prior to inception of the medical insurance policy vide letter dated 22.3.2018. The complainant is not a symptomatic of heart disease for the last two years, as such, the repudiation of the claim on the basis of false collection of evidence from the Hospital is illegal, unlawful, without any rhyme or reason and is liable to be withdraw and the complainant is entitled to reimburse of expenses of her treatment under the Insurance Policy. The act of the OPs in repudiating the insurance claim of the complainant is an illegal, unlawful, negligent and deficient service which has further caused great mental tension, loss of money to the complainant. The complainant also served the OP with legal notice dated 1.9.2018, but all in vain and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to settled the insurance claim of the complainant as per policy and further OPs be directed to pay Rs.4,00,000/- approximately paid to the hospital and tests and Rs.1,00,000/- as damages on account of unfair trade practice, negligence and deficiency in service and litigation expenses be also paid.
2. Notice of the complaint was given to the OPs, who filed reply and contested the complaint by taking preliminary objections that the claimant availed Mediclassic Insurance Policy (Individual) covering Reema Kalyan-Self for the sum insured of Rs. 500000/- vide Policy Nos, P/211215/01/2017/002402- 18.03.2017 to 17.03.2018. Prior to this the claimant was insured under the same policy scheme vide Policy no.P/211215/01/2016/000874 for the period from 16.02.2016 to 15.02.2017. It is submitted that the Policy is contractual in nature and the claims arising therein are subject to the terms and conditions forming part of the policy. The Complainant has accepted the Policy agreeing and being fully aware of such terms and conditions and executed the Proposal Form. The terms and conditions of the Policy were explained to the complainant at the time of proposing policy and the same was served to the complainant along with the Policy Schedule. Moreover it is clearly stated in the policy schedule ‘the insurance under this policy is subject to conditions, clauses, warranties, exclusions etc. It is further averred that the claimant was admitted at Care Max Super Speciality Hospital-Jalandhar for the treatment of RHD (Rheumatic Heart Disease) and raised pre authorization request for cashless authorization and the same was rejected vide letter dated 12.02.2018 stating that as per initial emergency assessment sheet it is clearly evident that the complainant is a known case of rheumatic heart disease for the past 2 years. This clearly suggests that the patient had rheumatic heart disease prior to policy inception. The OP had repeatedly requested the complainant to provide details of treatment taken prior to April 2017, but the same were not provided. Hence in view of non-disclosure and non-submission of the necessary documents, the opposite party was not able to process the Cashless authorization.
Subsequently, the complainant has submitted claim records towards reimbursement of medical expenses. On scrutiny of the claim records, it is observed that:
• As per Discharge Summary, the complainant was admitted on 09.02.2018 towards the treatment of RHD, Severe MR Moderate PAH and is a known case of RHD since, 1year ON MEDICATION and discharged on 19.02.2018
. The indoor case records of the above hospital that the complainant is symptomatic of the above disease i.e., heart disease for the past 2 years.
Thus, the complainant is symptomatic of the heart disease prior to inception of the Policy. Therefore, it is evident that present admission and treatment of the complainant is for the non-disclosed disease. At the time of inception of the policy which is from 16.02.2016 to 15.02.2017, the insured have not disclosed the above mentioned medical history/health details of the insured-person in the proposal form which amounts to misrepresentation/ non-disclosure of material facts. As per Condition No.7 of the policy, if there is any misrepresentation/non-disclosure of material facts whether by the insured person or any other person acting on his behalf, the Company is not liable to make any payment in respect of any claim Hence, the claim was repudiated and the same was communicated to the insured vide letter dated 22.03.2018. As per Condition No. 13 of the policy, if there is any misrepresentation/non-disclosure of material facts, the policy is liable to be cancelled. Thus, the policy was cancelled and the same was informed to the insured vide letter dated 19/02/2018. It is further averred that at the very outset the Respondent/OP denies all the averments and contentions made by the Complainant in the complaint except those, which are specifically adverted to and admitted herein. The Respondent/OP further seeks the leave of this Forum to refer and rely upon the proposal, policy documents with annexure, the correspondence exchanged between the Complainant and the Respondent OP along with all forms and declarations submitted by the Complainant the time of inception of the policy and any other relevant documents. That contrary to the stand taken by the complainant of non- performance deficiency in service, the respondent/ OP claims this opportunity to apprise the Forum of the fact that complainant had submitted its duly signed proposal form after fully understanding & deliberating upon the terms and conditions of the policy concerned. The terms and conditions of the policy are in strict adherence to norms set by IRDA and were duly communicated to the complainant. The Respondent/OP has taken all the necessary precautions and has kept the complainant adequately informed of his policy terms and obligations. It is humbly submitted before this Forum that the complainant has termed their negligent and callous acts, as non-performance deficiency in service by the Respondent/OP. It is further averred that no cause of action has arisen in favor of the Complainant to file the present case. It is submitted that the Respondent/OP has acted strictly on the basis of the terms and conditions contained in the policy. The complaint has been filed by the complainant with the mala-fide intention, and further to grab the public money. Hence, the present complaint is liable to be dismissed. It is further averred that the complaint is bound by the terms and conditions as applicable and which were expressly made known to the complainant at the time of his taking the policy in question. The OP had at the time of issuing the policy explained to the complainant the exclusion clauses and the payment plan. Therefore, the complaint is liable to be dismissed with exemplary costs. It is further averred that the complainant has approached this Commission with unclean hands by not disclosing and misrepresenting material facts. The present complaint is false, frivolous, misconceived and vexatious in nature and has been filed with the sole intention of harassing the OPs. The complainant has knowingly and intentionally concealed the true and material facts from this Commission. The present complaint is a gross abuse the process of law and is liable to be dismissed with costs. The present complaint is the misuse of the legal process. It is further submitted that the present complaint was filed only with the motive to harass the OPs. It is further averred that the complainant has no locus-standi and cause of action to file the present complaint. On merits, the factum with regard to availing insurance policy by the complainant is admitted and the facts regarding lodging of the claim and repudiated the same is also admitted, 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 not filed by the complainant.
4. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
5. We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.
6. It is admitted and proved fact that the complainant has purchased policy from the OP No.2 on 18.03.2017, which was renewed later on for the period from 19.03.2018 to 17.03.2019. Copy of the insurance policy has been proved by the complainant Ex.C-1. The OP has also proved the policies Ex.OP1&2/1 and Ex.OP1&2/2, which were effective from 16.02.2016 to 15.02.2017 and from 18.03.2017 to 17.03.2018 respectively. The complainant has alleged that she felt pain in her chest and was taken to Hospital of Dr. Raman Chawla. She was advised to get the surgery, but due to circumstances, the surgery could not be done and on 07.11.2017 again her condition deteriorated and the surgery was got conducted. The claim was filed, which was repudiated on the ground that the complainant is guilty of non-disclosure of the disease as she is known case of Rheumatic Heart Disease for the past 2 years. The OP has alleged that the patient had Rheumatic Heart Disease prior to policy inception.
7. The complainant has alleged that she felt pain on 21.04.2017 and as per the opinion of the doctor, she was suffering from serious heart ailment and required immediate operation, but again on 07.11.2017, her condition deteriorated and she was taken to the hospital again, but again she was admitted on 09.02.2018 and was discharged on 19.02.2018. The complainant has not produced on record any medical opinion of any doctor to show that she was ever taken to the hospital on 21.04.2017 or 07.11.2017 nor there is any document to show that since how long she was suffering from this heart disease, but as per her own assertion she was having this problem on 21.04.2017. Perusal of Ex.C2 and Ex.OP1&2/2 show that she was admitted on 09.02.2018 and was discharged on 19.02.2018. As per this document, she was diagnosed with RHD, Severe MR/Moderate PAH in the column of past history. It has been mentioned that she was a known case of RHD since one year on medication, meaning thereby that as per this document, she was having this heart problem prior to 09.02.2018, when she was admitted in hospital. Perusal of Ex.OP1&2/8, which is the initial emergency room assessment form and this is the record of the hospital Care Max Super Specialist Hospital shows that she was having RHD, Severe MS, MR, TR, Moderate PAH. It has been certified that patient was apparently asymptomatic two years back when she had cough which increased for the last 3 months, non productive increase during winter and chest pain for two years. This clearly shows that she was admitted in the hospital on 09.02.2018 and as per the doctor’s opinion, she was having this disease for the last two years, meaning thereby that she was having this heart problem since 09.02.2016 i.e. few days prior to the inception of the insurance policy, but in the proposal form, nothing has been mentioned by the complainant regarding any disease and in all the columns, the word ‘No’ has been filled in. The complainant has relied upon a letter Ex.C-5, in which Sh. Manpreet Singh has declared that he told the history of the patient to the doctor and verbally told them that she was diagnosed with heart problem approximately 1-2 years back, but the doctor has mistakenly wrote two years instead of one year, but this letter is of no help to the complainant as Manpreet Singh has himself stated in this letter ‘approximately 1-2 two years back’, meaning thereby that it was definitely more than one year and maximum of two years. In the certificates of the doctor and medical history, the name of the informant i.e. Manpreet Singh has nowhere been mentioned nor there is any certificate of any doctor to show that inadvertently in past history, the problem of RHD, Severe MS, MR, TR, Moderate PAH has been mentioned for the last two years instead of one year. So, this letter cannot be relied upon. The complainant has lodged the claim for surgery as she was having heart problem and the problem regarding heart has been concealed and not disclosed by the complainant while filling the proposal form, which is clearly non-disclosure of material facts. It has been held by the Hon’ble Supreme Court, in a Civil Appeal No.2776 of 2002, decided on 10.07.2009, titled as ‘Satwant Kaur Sandhu Vs. New India Assurance Company Ltd.’ that ‘A. Insurance Act, 1938, Section 45 Consumer Protection Act, 1986, Section 2(1)(o)(g) and (c) (xiii) Medi-claim Policy Deficiency in service - Deceased took a medi-claim policy - At the time of taking policy he was suffering from Diabetic Nephropathy/Chronic Renal Failure - Deceased did not disclose the fact of ailment while taking the policy which was within his knowledge and he was required to disclose it under the terms of policy- Death of deceased after 7 months of taking the policy Wife claiming compensation which was repudiated by the insurance company - Held, fact suppressed was a material fact There is no deficiency in service Insurance company justified in repudiating the claim Material fact means any fact which would influence the judgment of a prudent insurer in fixing insurer the premium or determining whether to accept the risk or not.’ It has been held by the Hon'ble National Commission, in a Revision Petition No.3515 of 2009, decided on 12.01.2015, titled as ‘Subhash B. Jatani Vs. National Insurance Co. Ltd.’’2015 (1) CPR 807 that ‘Consumer Protection Act, 1986 Sections 15, 17, 19 and 21 Insurance Mediclaim Policy - Non- reimbursement of hospitalisation charges Myasthenia Gravis was found present and complainant was suffering from it as per history given since month of February, 2000- Disease relates to Muscular Paralysis and patient must be experiencing and aware of it- It is not a silent disease which is may go unnoticed Doctor a renowned Neuro-Physician examined the complainant on 01.08.2001 also categorically noted that the complainant treating doctor confirmed and gave history of symptoms of Myasthenia Gravis for duration of six months prior to his examination - Therefore, when the proposal form was filled in on 20.06.2001, not disclosing of the same the mischief was committed and thus, Insurance Company rightly inferred after careful investigation of the case that there being a breach committed by the complainant of utmost good faith, the claim needs to be repudiated Observation of State Commission is supported by - medical certificate Order passed by State Commission cannot be faulted Revision petition dismissed.’ It has been held by the Punjab State Commission, Chandigarh in First Appeal No.332 of 2004, decided on 17.11.2009, titled as ‘Sangeeta Kaushik and others Vs. Life Insurance Corporation of India and others’ 2010(1) CLT 481 that ‘certificate has been issued by the functionaries of the DMC and Hospital who have no interest in the respondents nor they were inimical to the appellants nor they had any motive to issue a false certificate’. It has been held by the Hon'ble National Commission in Petition No.66 of 1999, decided on 10.11.2008, titled as ‘Diwan Surender Lal Vs. Oriental Insurance Co. Ltd. & Anr.’ that ‘Claim repudiated by Insurance company on ground of non-disclosure of material facts Past illness accepted by complainant in hospital's admission record Not disclosed in proposal form but which was material for the issue of medi-claim policy Insurance policy issued on basis of utmost faith, which has been shattered by complainant Medical history given by complainant himself to treating doctor, not denied Medical claim rightly repudiated by Insurance company- Complainant held not entitled to any relief- Complaint dismissed.’
8. In the present case also, the doctors have no enmity with the complainant nor there is any motive to issue a false certificate, therefore, the certificate of having disease for the last two years issued by the doctor, cannot be said to be false certificate. So, the complainant has failed to prove any deficiency in service and unfair trade practice on the part of the OPs and thus the complaint of the complainant is without merits and the same is dismissed with no order of costs. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.
9. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
12.07.2023 Member Member President
