BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.126 of 2019
Date of Instt. 23.04.2019
Date of Decision: 26.06.2024
Reva Jolly (now since deceased) wife of Kuldeep Singh R/o 209 Lajpat Nagar, Jalandhar through his LRs.
a) Gurvinder Singh Jolly (Son)
..........Complainant
Versus
1. M/s Star Health & Life Insurance Co. Ltd. No.15, State Bank of India, Balaji Complex, First Floor Royapeteah, Chennai through its Managing Director.
2. M/s Star Health & Life Insurance Co. Ltd., EH-198, 2nd Floor, Nirmal Complex, GT 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. Vikas Sood, Adv. Counsel for the Complainant.
Sh. A. K. 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 OPs approached the complainant earlier for providing the insurance facility and assured the complainant for best of the services. Relying on the assurances of the OPs the complainant accepted the proposal accordingly purchased one Health Insurance Policy from the OPs vide police no.P/211215/01/0019/000557. The policy was operative from 13.06.2018 to 12.06.2019. All the information while getting the insurance policy was provided to the OPs by the complainant correctly and bonafidely. Medical examination was also done. Nothing was suppressed. On 05.03.2019 suddenly, the complainant was not well and felt unrest. She was taken to Cardionova Hospital. But thereafter, complainant on 6-3-2019 was referred to NHS Hospital, (Unit of NASA Brain & Spine Centre), Jalandhar. She got the treatment from there. There she was diagnosed CVA (Left MCA Infarct), HTM, AK1, DM2. It was cashless policy, so request was made for providing cashless facility to the opposite parties. But the cashless police was declined and not given on the basis that Cardionova Hospital has the history which shows, first time diagnosed in the year 2010 and the complainant is having pre-existing history. This was wrong. It is pertinent here to mention that this history was noted inadvertently by the hospital authorities. The OPs at that time assured the complainant that they have taken the proposal of complainant and the complainant should pay front and the matter shall be decided soon. So, in urgency the complainant spent the amount initially. The complainant was discharged from the hospital. But the family members of the complainant have to depute one attendant to look after her and she is also taking physiotherapy treatment. Initially this policy was taken in the year 2016 i.e. from 11.06.2016 to 10.06.2017 and even at that time, medical examination was done and each and every information was provided to the OPs. While taking the treatment, the claim was processed with the OPs to meet out the medical expenses. The OPs repudiated the claim vide their letter dated 20.03.2019 stating that the insured patient has history of deep vein, thrombosis in the year 2010 as per the history received from the Cardionova Hospital. So, considering this fact the claim of the complainant was repudiated. The complainant immediately approached the concerned hospital and doctors. The concerned hospital and doctors gave in writing and issued the certificate that in the discharge summary inadvertently, the time period written as left leg in 2010. The clarification was duly given by doctor that at the time of admission of the patient, one of the relatives of the patient told since 2010 but later on as per reviewing the DVT, reports, history, it was found that it was first diagnosed on 03.10.2017. So, nothing was suppressed at the time of taking the insurance policy. After receiving the letter from the hospital authorities, the complainant again approached the OPs on 26.03.2019 and submitted the clarification but till now nothing has been received from the OPs. Reputation on the part of the OPs is illegal, void and without any basis. There is deficiency in service on the part of the OPs by repudiating the policy of the complainant 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 pay the amount Rs.67,048/- to the complainant along with 24% interest from the date of delivery till its realization along with other misc. expenses. Further, OPs be directed to pay Rs.1000/- per day from the day of trouble till now. Further, OPs be directed to pay a compensation of Rs.1,00,000/- for causing mental tension, agony and harassment and Rs.20,000/- as litigation expenses.
2. Notice of the complaint was given to the OPs, who filed reply and contested the complaint by taking preliminary objections that contrary to the stand taken by the complainant of non-performance/deficiency in service, the Respondent/ OP's claims this opportunity to apprise the Forum of the fact that complainant had submitted it's 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's 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's. 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's has acted strictly on the basis of the terms and conditions contained in the policy. The present case is premature as the complainant had not submitted the required documents for the purpose of the claim despite of repeated requests by the answering Respondents/OP's. 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 relief sought in the present complaint is in violation of the terms and conditions contained in the policy. Therefore, the complaint is liable to be dismissed with exemplary costs. 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. It is further averred that the complainant has approached this Forum 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 Forum. The present complaint is a gross abuse of the process of law and is liable to be dismissed with costs. It is further averred that 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. It is further averred that the policy issued to the complainant under which the dispute has been raised in governed by liability as per various clauses. Without any prejudice to whatever has been stated in this written statement, even admitting without conceding that the company is liable to pay the claim in terms of the contract of insurance issued to the claimant-complainant. On merits, it is admitted that
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 that the complainant Reeva Jolly (now deceased) purchased health insurance policy from the OP. The insurance policy has been proved as Ex.C-15 and the OPs have also proved on record the policies purchased by the deceased Ex.OP-1 to Ex.OP-3. It has been proved that the policy was operative from 13.06.2018 to 12.06.2019 and the first policy was purchased by the complainant on 08.06.2016, which was renewed every year and the second year renewal was on 09.06.2018 and it commenced from 13.06.2018. It was on the yearly basis. This policy was valid upto 12.06.2019. The complainant has alleged that on 05.03.2019, the complainant felt unrest and she was taken to Cardinova Hospital. Thereafter, she was referred to NHS Hospital. The cashless claim was declined and the amount was spent by the complainant. The claims were lodged for reimbursement. The claim forms have been proved by the complainant Ex.C-3, Ex.C-4, Ex.C-28 and Ex.C-29. The claim of the complainant was repudiated on the ground that from the discharge summary, the insured patient was found having history of deep vein, thrombosis in the year 2010, which is prior to the date of commencement of the first policy and on this ground on the basis of non-disclosure of pre-existing disease, the claim was repudiated, vide Ex.C-1/OP-21 and as per condition No.13, the policy was held to be liable to be cancelled and it was ordered that the necessary action will be taken by their corporate office. As per Ex.OP-25, prior to the repudiating the claim, the company wrote a letter that they may cancel the policy on the ground of non-disclosure of pre-existing disease.
7. Now the point is to be seen as to whether at the time of commencement of the policy, the complainant was suffering from deep vein and thrombosis and this fact was not disclosed at the time of purchasing the policy. The OPs in their written statement have stated that earlier the patient was hospitalized on 05.03.2019 in Cardionova Hospital and submitted claim for reimbursement which was rejected due to non-disclosure of material facts for Rs.17,324/- and then again on 06.03.2019 she was treated and discharged on 06.03.2019 in NHS Hospital and submitted claim for Rs.23,400/- and the same was also rejected on the ground of non-disclosure of the material facts. Thus, both the claims filed by the complainant were repudiated by the OP on the ground of non-disclosure of material facts. The OP has relied upon the history received by the OP from the Cardionova Hospital. As per the discharge summary of Cardinova Hospital, the history of the patient shows that Reeva Jolly was alleged to be having DM, HTN and DVT Left Leg in 2010 and she was diagnosed for DM, HTN, DVT (Left Leg in 2010), Mild Nephropathy, CVA, Acute Non Haemorrhagic Infarct Left MCA. This discharge summary was given by the doctor on 06.03.2019, but thereafter the complainant relied upon and received the certificate from Cardionova Hospital, which has been proved as Ex.C7/Ex.C8. The doctor has given the certificate that Reeva Jolly was admitted on 05.03.2019. At the time of admission, one of the relative of the complainant told about DVT since 2010, but later on as per the information by the son of the complainant and after reviewing the record DVT was first diagnosed on 03.10.2017. The OP has submitted that this certificate was obtained later on, therefore, this cannot be relied upon and as per condition No.9 of the policy, the company shall not be liable to make any payment under the policy in respect of any claim, if information furnished at the time of proposal is found to be incorrect or false. He has also relied upon condition no.13, wherein it has been mentioned that the policy can be cancelled under these circumstances.
8. As discussed above, earlier the complainant was admitted in Cardionova Hospital on 05.03.2019 and was discharged on 06.03.2019. Thereafter, she was admitted in NHS Hospital on 06.03.2019 and was discharged on 09.03.2019. The discharge summary has been proved as Ex.OP-19. As per this discharge summary, she was having medical history of DM from the last 10 years on insulin since 2010, Hypertension from 10 years, OLD CVA and Sinus Tachycardia (5.3.19). Patient had history of left leg DVT in October, 2017 on both knees. The contention of the counsel for the OP regarding obtaining the certificate is not tenable as the doctor does not issue certificate casually. He issues certificate regarding medical history of the patient on the basis of medical examination. Though, in the discharge summary, it has been mentioned that she was suffering from DVT since 2010 and the doctor after reviewing the record confirmed that the DVT was first diagnosed on 03.10.2017, which fact is corroborated from the discharge summary issued by the doctor of NHS Hospital Ex.OP-19. This also confirms that the patient had history of Left Leg DVT in October, 2017, but she was having history of DM since 2010. The discharge summary Ex.C-6 and Ex.OP-19 shows that she was having history of DM, HTN since 2010 and from last 10 years respectively. So far as diabetes and hypertension is concerned. It has been held by the Hon’ble Punjab State Consumer Disputes Redressal Commission, in a case titled as “Religare Health Insurance Co. Ltd. Vs. Subhash Chander Aggarwal”, which reads as under:-
“Hypertension is a common disease and it can be controlled by medication and it is not necessary that person suffering from hypertension would always suffer a heart attack and repudiation on account of pre-existing disease was not justified.”
It has been held by the Hon’ble National Commission, in a case, titled as “Ravinder Singh Bindra Vs. National Insurance Company Limited & Ors.”
“Concealment of hypertension has not been taken as a suppression of any material information sufficient to repudiate the claim.”
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.
9. So far as the complainant having history of left leg in 2010 is concerned, it has been discussed above that the doctor has clarified his mistake after reviewing the record and has clarified that she was having history of left leg DVT since 2017. Similarly, the doctor of NHS Hospital also confirmed about the history of left leg DVT in 2017. Then onus shifted upon the OP to prove that the material facts have been concealed by the complainant and the medical certificate issued by the doctor of Cardionova Hospital is wrong and cannot be relied upon. To prove this fact, the OP has not rebutted the evidence. The OP has nowhere got verification of the certificate Ex.C-7/C-8 from the concerned doctor to come to the conclusion as to whether the certificate is wrong or not or as to whether the history mentioned in discharge summary Ex.C-6 is wrong or not, but no effort has been made by the OP. No doctor has been examined by the OP, to show that the certificate Ex.C-7/C-8 is not genuine document. The OP has also not produced on record any prescription of the doctor or record of any hospital or doctor to prove that she was ever treated for left leg DVT prior to the commencement of the policy i.e. from 2010 till 2017, nothing has been proved by the OP. It has been held by Hon'ble National Commission, in Revision Petition No.2615 and 2616 of 2011, case titled as ‘Life Insurance Corporation of India Vs. Priya Sharma & Ors.’ that ‘Repudiation of claim Ground of suppression of pre-existing disease which was not disclosed-Deceased was suffering Onus to prove that insured was suffering from pre- existing disease is on the petitioner-Petitioner has admittedly not examined any doctor to prove this fact that insured was suffering from any pre-existing disease at the time of taking the policy - Repudiation unjustified.’ It has further been held by the Hon'ble National Commission in Revision Petition No.686 of 2007, case titled as ‘Tarlok Chand Khanna Vs. United India Insurance Co. Ltd.’ that ‘the onus to prove that the insured was suffering from pre-existing disease was on the insurer - O.P. insurer had not produced any evidence/expert medical opinion in support of its case-Insured had been taking medi-claim policy since 1996 but it was nowhere recorded that she had any medical condition including problem of knees, by respondents doctor who examined her Insurer failed to prove reasons for repudiation of claim, impugned orders set aside Insurer directed to pay petitioner Rs. 1,78,945 along with interest @ 6% from date of claim’. It has been held by Hon'ble National Commission in Revision Petition No.2097 of 2017, case titled as ‘Reliance Life Insurance Co. Ltd & Anr. Vs. Tarun Kumar Sudhir Halder’ that ‘the onus to prove the pre-existing disease lies on the Insurance Company and no supporting documents have been filed by the Insurance Company - Diabetes is a life style disease and is so common in India that the whole insurance claim cannot be rejected.’
This is not the case of the OPs that the policy has been cancelled. No document of cancellation of policy has been proved, only repudiation was made. So, we are of the opinion that the claim of the complainant has been wrongly and illegally repudiated by the OPs and the same is hereby set-aside and further, find that the complainant is entitled for the relief as claimed.
10. In the light of above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to pay the amount of Rs.67,048/- to the complainant alongwith interest @ 6% per annum from the date of delivery till its realization. Further, OPs are directed to pay a compensation of Rs.15,000/- to the complainant for causing mental tension and harassment and Rs.5000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
11. 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
26.06.2024 Member Member President
