District Consumer Disputes Redressal Commission ,Faridabad.
Consumer Complaint No.139/2023.
Date of Institution:27.02.2023.
Date of Order: 24.10.2024.
Kamal Narang s/o Shri H.C.Narang, r/o House No. D14/22, Sector-85, BPTP Parklands, Faridabad.
…….Complainant……..
Versus
TATA AIG General Insurance Company Limited registered office at 15th floor, Tower A., Peninsula Business Park, Ganpatrao Kadam Marg, Off Senapati Bapat Marg, Lower Parel, Mumbai – 400 013.
And at Aggarwal prestige Tower, 3rd floor, Plot NO.2, Road No.44, Main road, Pitampura, New Delhi – 110 034
AND at SCO 89. Ist floor, Sector-16, Faridabad through its Managing Director.
…Opposite parties……
Complaint under section-12 of Consumer Protection Act, 1986
Now amended Section 34 of Consumer protection Act 2019.
BEFORE: Amit Arora……………..President
Mukesh Sharma………..Member
Indira Bhadana………….Member.
PRESENT: Shri Arun Dua counsel for the Complainant.
Shrii O.P.Gaur,, counsel for opposite party .
ORDER:
The facts in brief of the complaint are that the complainant purchased an insurance policy “CRITI Medicare” from the opposite party company bearing No. 7060000882 valid from 22.05.2022 to 21.05.2023 . The complainant, under the said policy had been entitled to hospital cash benefit of Rs.20,000/- per day and traumatic surgery amount of Rs.1,00,000/-. The complainant consulted Dr. Kshitiz Rohilla at Clinic Dentaire, Faridabad with complaint of ulcer on left side of the tongue. Excision Biopsy dated 25.05.2022 and Wedge Biopsy of tonge dated 4.07.2022 had the findings of Squamous Pailloma and Squamous Cell Carcinoma respectively. The complainant also consulted BLK Max Super specialty Hospital, New Delhi on 3.6.2022. it was, however, pertinent to mention that the complainant had not been aware of any ulcer on left side of the tongue at the time of the purchase of the policy and for the first time had the knowledge of the same on his consulting Dr. Kshitiz rohilla at Clinic Dentaire, Faridabad on 25.5.2022 i.e.2 days after purchase of the policy. The complainant had purchased another insurance policy “Care Advantage” from Care Health Insurance Limited No. 18180562 for sum insured of Rs.1,00,00,000/- valid for the period from 10.10.2021 to 09.10.24 and paid consolidated single premium of Rs.1,34,681 to them under the said policy.. The complainant thereafter had been admitted at Indraprastha Apollo Hospital, New Delhi for treatment from 11.07.2022 to 16.07.2022 and being diagnosed with Squamous Cell Carcinoma Tongue (Cancer), underwent surgery. The complainant had been again admitted at Indraprastha Apollo Hospital, New Delhi for treatment from 18.07.2022 to 23.07.2022 and after discharge form hospital submitted claim form with the opposite party for payment of policy benefits. The opposite party, however, out of the blue repudiated the claim of the complainant for policy benefits. The Histo- Pathology report dated 23.07.2022 had the findings of Well Differentiated Squamous Cell Carcinoma of Tongue. Its very clear from the available medical records that he had consulted on 3.6.2022 at BLK Max Super Specialty Hospital with complainant of Left Tongue Ulcer, since 1 month, which was prior to inception of the policy on 22.5.2023, however, in application form, while proposing for this insurance, he had not declared the same. This implies that, he had not declared about the medical conditions i.e. complaint of Left Tongue Ulcer, since 1 month (which was prior to the inception of the policy), at the time of proposing for this insurance and this amount to non declaration of the facts while applying for the policy. In view of this serious misrepresentation the policy stands cancelled ab-initio in line with the provisions of the cancellation clause under the policy and they could not assume any liability for the claim made by him and see this as an opportunity missed to served him. Without prejudice to the foregoing, they would like to inform him that the policy did not provide the coverage for the pre-existing disease and its complications and the claim falls under the exclusion of the policy.” The aforesaid act of opposite party amounts to deficiency of service and hence the complaint. The complainant has prayed for directions to the opposite party to:
a) Recall the decision cancelling the policy and repudiating the claim of the complainant vide email dated 2.9.2022 and 12.10.2022 and to accept the claim of the complainant and make payment of policy benefits of Rs.3,00,000/- to the complainant.
b) pay Rs.1,00,000/- as compensation for causing mental agony and harassment .
c) pay Rs. 33,000 /-as litigation expenses.
2. Opposite party put in appearance through counsel and filed written statement wherein Opposite party refuted claim of the complainant and submitted that at the very outset, no insurable contract exists between the complainant and the insurance company because, in view of misrepresentation of material facts by the insured to the insurance company in obtaining the Criti-medicare insurance policy NO. 7060000882 for the period 22.05.2022 to 21.05.2023 from M/s. Tata AGI Insurance company Limited, the policy stands cancelled “void ab-initio” as per Section 4 – General Terms & Clauses: Clause No.1 under the medi insurance policy. It was worthing submitting that the complainant had obtained the aforesaid medi insurance policy from M/s. Tata AGI General Insurance Company Limited but at the same time, the insured misrepresented the material facts to the insurance policy:
i. Because, did not disclose the existing and current multiple insurance policies obtained from various insurance companies, which fact also constitutes misrepresentation of the material facts as well as suppression and concealments of true facts. The List of such Insurance companies were as under:
1. M/s. Care Health Insurance Policy No. 18180562 since 09.10.2006.
2. M/s. HDFC Life Policy No. 90625898 since 14.11.2017.
3. Ms/ ICICI Lombard General Insurance Co. Ltd. since 26.10.2021.
Had the complainant declared and disclosed the previous medi insurance policies from various insurance companies against a specific query in the proposal form dated 22.06.2022 in that eventuality M/s. TATA AIG General Insurance Company either would have declined to accept the risk or considered financial implications attached thereto. The insured had first time obtained the TATA AIG Criti – Medicare Insurance Policy No. 7060000882 for the period 22.05.2022 to 21.05.2023 for covering himself only, instead the family, pursuant to proposal form dated 22.05.2022 online in this behalf. It was submitted that the complainant had accepted the criti – medicare policy agreeing and being fully aware of such terms and conditions in this behalf and accordingly, the insurance company issued the medi insurance policy to the insured. The complainant neither had any cause of action nor locus standi in lodging the present complaint before this commission. It was submitted that the complainant had suppressed and concealed the true, vital and material facts and information from this Commission. It was submitted that the insurance company received a claim alongwith related claim documents in respect of hospitalization of the insured – Kamal Narang in Indraprastha Apollo Hospital, New Delhi for the period 11.07.2022 to 16.07.2022 since diagnosed with : Squamous Cell Carcinoma Tongue (Known as Cancer) and underwent surgery. The insured had again hospitalized in Indraprastha Apollo Hospital, New Delhi for the period 18.07.2022 to 23.07.2022 for the same ailment. As per discharge summary for the period 11.07.2022 to 16.07.2022, the complainant was diagnosed as a case of “Squamous Cell Carcinoma Tongue”. As per further discharge summary for the period 18.07.2022 to 23.07.2022, the complainant was hospitalized for further treatment in respect of the said ailment.
The insurance company observed the following:-
a) The TATA AIG Criti – Medicare Insurance Policy No. 7060000882 for the period 22.05.2022 to 21.05.2023 incepted first time on 22.05.2022.
b) As per the available medical treatment record, the ailment was detected or diagnosed or incepted on 24.05.2022 and/or 03.06.2022 since one month prior to obtaining medi insurance policy form 22.5.2022, meaning thereby, the ailment had on or about 23.4.2022 or 02.05.2022.
c) Since the ailment was 1 month prior to inception of the medi insurance policy dated 22.5.2022, which was exiting at the time of proposing the insurance risk, constituting misrepresentation of material facts and information from the insurance company.
Apart that the ailment falls under Exclusion Clause 25 : Pre-existing disease, in addition to initial waiting period of 30 days under Section 3 – Clause 2 – Specific Exclusion: Initial waiting period. Accordingly, the insurance company arrived at its decision that the insured had intentionally, willfully and knowingly suppressed and concealed the pre-existing disease (incepted on or about 23.4.2022 and/or 02.05.2022) prior to inception of criti medicare insurance policy on 22.05.2022 which constitutes misrepresentation of material facts and information in obtaining the criti medicare insurance policy as well as the terms and conditions, warranties and exclusions contained in the criti medicare insurance policy. Therefore, the insurance company had treated the subject claim as repudiated vide its letter dated 02.09.2022, which decision could not be termed unconscionable at all. Thereafter, the complainant lodged a representation via email dated 27.09.2022 and first time disclosed the coverage of risks with various insurance companies in obtaining multiple medi insurance policies, as listed hereinabove. Accordingly, the insurance company revisited the subject claim and observed that the complainant had suppressed and concealed the material facts& information in disclosing the coverage of risks with various insurance companies, which constitute misrepresentation of material facts at the time of obtaining the medi insurance policy from M/s. TATA AIG General Insurance Co. Ltd. Pursuant to proposal form online dated 22.05.2022 against a specific query therein. Hence, the insurance company was duly empowered to cancel the TATA AIG Criti – Medicare Insurance Policy NO. 7060000882 for the period 22.5.2022 to 21.5.2023 “void ab-initio” forfeiting the insurance premium as per clause No.1 contained in the medi insurance policy, duly intimated to the complainant vide dated 12.10.2022. Opposite party denied rest of the allegations leveled in the complaint and prayed for dismissal of the complaint.
3. The parties led evidence in support of their respective versions.
4. We have heard learned counsel for the parties and have gone through the record on the file.
5. In this case the complaint was filed by the complainant against opposite party– TATA AIG General Insurance Company Limited with the prayer to: a) Recall the decision cancelling the policy and repudiating the claim of the complainant vide email dated 2.9.2022 and 12.10.2022 and to accept the claim of the complainant and make payment of policy benefits of Rs.3,00,000/- to the complainant. b) pay Rs.1,00,000/- as compensation for causing mental agony and harassment . c) pay Rs. 33,000 /-as litigation expenses.
To establish his case, the complainant has led in his evidence Ex.CW1/A – affidavit of Kamal Narang,Ex.C-1 – insurance policy valid form 22.05.2022 to 21.5.2023, Ex.C-2 – email dated 02.09.2022, Ex.C-3 – discharge summary,
On the other hand counsel for the opposite party strongly agitated and opposed. As per the evidence of the opposite party Ex.RW1/A – affidavit of Nidhi Kalra, Chief Manager (Legal Claims), M/s. TATA AIG General Insurance Company Ltd., Plot NO. E-1, Ist & 2nd floor, Sector-8, Noida, Annx.R-1 – proposal form dated 22.05.2022, Annx.R/2 - Annx.R-2 – insurance policy, Annx.R-3 – discharge summary, Annx.R-4 – Discharge summary, Annx.R-5 – OPD dated 24.05.2022 & 25.05.2022 of Clinic Dentaire, Faridabad, Annx.R/6 – OPD dated 03.06.2022 of BLK – Max”, New Delhi, Annx.R/7 – Surgical Pathology report, Annx.R/8 – Histopathology report, Annx.R-9 – email regarding repudiation,, Annx.R-10 & 11– email dated 27.09.2022, Annx.R-12 - Doctor certification dated 13.08.2022
6. As per Annx. R-2 the complainant has obtained Tata AIG Criti – Medicare Insurance policy bearing No. 7060000882 valid for the period 22.05.2022 to 21.5.2023 for covering himself only. As per proposal form 22.05.2022 vide Annx.R- under section 6, Clause-A: Medical History, the insured has disclosed his status of medical history against a specific query as under:
Have you or any of the person proposed for insurance, ever suffered : No
From or taken treatment or hospitalized for or have been recommended
to take investigation/medication surgery or undergone a surgery : No
for medical condition specified on proposal form?
Are you or any person proposed on regular medication or waiting : No
Any procedure or treatment?
Has any application for life, health or critical illness insurance ever : No
Been declined, postponed loaded or being made subject to any special
Conditions by any insurance company?
As per discharge summary vide Annx.R-3, the insured –Kamal Narang hospitalized in Indraprastha Apollo Hospital, New Delhi for the period 11.07.2022 to 16.07.2022 for the diagnosis of Squamous Cell Carcinoma Tongue. As per discharge summary vide Annx.R-4, the complainant had again hospitalized in Indraprastha Apollo Hospital, New Delhi for the period 18.07.2022 to 23 .07.2022 for the diagnosis of Squamous Cell Carcinoma Tongue. As per excision Biopsy report dated 25.05.2022 has the findings of “Squamous Papilloma and duly endorsed dated 25.05.2022 on the prescription slip dated 24.05.2022 at the hands of Dr. Kshitiz Rohilla vide Annx.R-5. As per further consultation paper dated 03.06.2022 attended by BLK -Max Super Specialty Hospital, New Delhi, the insured was diagnosed as a case of Squamous Papilloma since 1 month. As per Histopathology report dated 23.07.2022 (received dated 13.07.2022) the insured has the findings of “Well Differentiated Squamous Cell Carcinoma of tongue vide Annx.R-8. Accordingly, the insurance company observed that the insured has intentionally and knowingly suppressed and concealed the pre-existing disease (inception on or about 23.4.2022 and 02.05.2022) prior to inception of medi insurance policy on 22.5.2022, which constitutes misrepresentation of material facts and information in obtaining the medi insurance policy as well as the terms & conditions and exclusions contained in the medi insurance policy Therefore, the insurance company has repudiated the claim of the complainant vide its letter dated 02.09.2022.
7.. When the insured is 48 years then the Insurance Company was at liberty to get the complainant medically examined prior to issuance of the policy in question. Insurance Company cannot take advantage of its act of omission and commission as it is under obligation to ensure before issuing the policy in question whether a person is fit to be insured or not. It was the duty of the opposite party to get the complainant immediately examined before issuing the policy as per IRDA guidelines.
The counsel for the complainant has given the citation which are as under:
“Medical Insurance Once Insurer Accepts That Concealment Of Disease Was Not Material, Reimbursement & Renewal Can’t Be Refused : Supreme Court.”
Issue goes in favour of the complainant.
8. As per insurance policy vide Ex.C-1, the premium was paid on the basis of C.Hospital Cash (per day benefit) – Rs. 20,000/- and Rs. 1,00,000/- for Post Traumatic Surgery.
9. After going through the evidence led by the parties as well as the citation given by the complainant, the Commission is of the opinion that opposite party has already taken the premium and issued the policy in favour of the complainant without verifying and medically examine of the complainant. It is also fault on the part of the opposite party. It was the duty of the opposite party to verify and examine the complainant. In the interest of justice, we partly allow Rs.10,000/- per day benefit instead of Rs.20,000/- per day benefit as per discharge summary vide Ex.C-3 D.O.A is 11.07.2022 & D.O.D is 16.7.2022 & again D.O.A is 18.07.2022 & D.O.D is 23.07.2022. Opposite party is also directed not to cancel the policy and will regularize the policy with per day limit of Rs.10,000/-. Opposite party is liberty to charge the premium on the reduced
amount as per the T & C of the policy. Compliance of this order be made within 30 days from the date of receipt of copy of this order. Copy of this order be sent to the parties concerned free of costs. File be consigned to the record room.
Announced on: 24.10.2024. (Amit Arora)
President
District Consumer Disputes
Redressal Commission, Faridabad.
(Mukesh Sharma)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
(Indira Bhadana)
Member
District Consumer Disputes
Redressal Commission, Faridabad.
