Haryana

Jind

CC/253/2012

Sarla Bala Bindal - Complainant(s)

Versus

M/S Vipul Med Crop - Opp.Party(s)

Sh S.K. Garg

10 Nov 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL
FORUM, JIND. 
                                                Complaint Case No :253of 2012
                                                 Date of Institution   :  21.8.2012
                                                 Date of Decision      : 10.11.2016

Saral Bala Bindal w/o Sh. Ram Parkash Bindal, Advocate 1449 Urban Estate Jind District Jind.
                                                                              ….Complainant.
                                       Versus
⦁    M/s Vipul Med Corp. TPA Private Ltd. 515 Udyog Vihar, Phase V Gurgaon Haryana through its Managing Director/General Manager.
⦁    National Insurance Company Ltd. Branch Office, Jind through its Branch Manager.

                                                         …..Opposite parties.

                          Complaint under section 12 of the
              Consumer Protection Act 1986.

CORAM: SH.A.K. SARDANA PRESIDENT.
               SMT. BIMLA SHEOKAND, MEMBER.
              SH. M.K. KHURANA, MEMBER.    

Present:  Sh. S.K. Garg, Adv. counsel for complainant.
          OP No.1 ex parte. 
          Sh. Vikas Sharma Adv. counsel for OP No.2.
         
ORDER:

             Brief facts of the  present complaint are that  the complainant  purchased a mediclaim Insurance Policy No.420605/48/11/8500000381  for the period from 27.1.2012 to 26.1.2013 from OP No.2 insurance company who  appointed   to OP No.1 as its agent to settle & pay the mediclaim of the above said policy. OP No.1 issued Vipul ID No.0220220003090901 to the complainant with a direction to lodge mediclaims directly for payment.  It has been alleged by the complainant that she  became ill suddenly in between 20 25 March 2012 due to heart pain  and got admitted herself on 26.3.2012 in Batra Nursing Home & Heart Care Centre Sonipat for treatment where she was treated by Dr. Ramesh Batra & Dr. Mukesh Joon for the diagnosis HTNc CAD Angina c Hyperlipidaemia and due to 90% Stenosis in MID LAD Followed by 50% in Distal LAD  AT BAND successful PTCA c Stent to LAD was done. The said hospital forwarded the case of complainant to OP No.1 under the aforesaid insurance policy for remitting the amount of bill of the hospital directly but OP No.1 failed to  settle the same despite several telephonic calls  messages  e mail letters by the hospital authorities as well as daughter & husband of the complainant. Thereafter complainant lodged her claim amounting to Rs.151735 under the above said policy with OP No.1 on 4.4.2012 in prescribed claim form alongwith requisite documents  medical report & bills of medical expenses etc. but OP No.1 has miserably failed to settle the claim of the complainant and thus complainant having no alternative served a legal notice dated 3.7.2012  upon the OPs but all in vain. As such  the complainant has submitted that the OPs are  deficient in not settling the mediclaim  of the complainant and  prayed that the complaint be accepted and OPs be directed to pay the mediclaim amount of Rs.151735 alongwith a sum of Rs.50000 as compensation on account of mental pain & agony with interest at 12% p.a. as well as to pay a sum of Rs.5500 as litigation expenses  to the complainant. 
2.    Upon notice, none appeared on behalf of OP No.1 despite service through registered post. As such OP No.1 was proceeded against ex parte vide order  dated 4.6.2015 passed by the Forum whereas OP No.2 appeared through counsel and filed written statement raising  preliminary objections i.e. complainant has no cause of action and locus-standi to file the present complaint & complaint is not maintainable in the present forum. On merits  it has been  urged that patient was admitted with complaints of Hypertension with Chronic Artery disease with Angina with Hyperlipidaemia and PTCA was done.  It has been further urged by the answering OP that OP No.1 requested the complainant vide letter dated 30.4.2012 and 28.6.2012 to provide the detail history of hypertension diabetes mellitus and  chronic artery disease since when she is suffering from the above said disease with all the treatment records of the treating doctor and also to provide the copy of all previous policy papers alongwith copy of IPD papers & records from the hospital but the complainant did not paid any head to the letters of OP No.1 and thus the complainant herself is at sole fault and there is no deficiency on the part of answering OP. It is denied that OP No.1 failed to remit the amount of bill to the hospital rather neither complainant nor her husband replied the query raised by OP No.1 which was very necessary for just and proper disposal of the claim of complainant.   In this  way OP No.2  has prayed for dismissal of complaint with costs of Rs.10000. 
3.    To prove his contention, counsel for  complainant tendered  affidavit of complainant as Ex. C1 along with documents as  Ex. C2 to Ex. C27  and closed the  evidence whereas on the other hand counsel for OP No.2 tendered affidavit of one Sh. M.L. Arora Sr. Branch Manager as Ex. OP1 alongwith documents as Ex. OP2 to  Ex. OP7 and closed the evidence on behalf of OP No.2. 
4.    We have heard the arguments addressed by  Ld. Counsels of both the parties and perused the record placed on file. The counsel for complainant argued that complainants husband purchased a mediclaim policy from the OP No.2 covering the risk  of himself & his spouse for the period 27.1.2012 to 26.1.2013 and during this period complainant suddenly fell ill & was  admitted to Batra Nursing Home & Heart Care Centre Sonepat on 26.3.2012. The doctor specialist in Heart Surgery of the said Nursing Home operated the complainant & PTCA C STENT to LAD was successfully done. The said hospital sent the case of the complainant to OP No.1 for remitting the amount of bill directly to the hospital but the OP insurance company failed to remit the same.  Ld. Counsel for the complainant further argued that the claim was lodged by the complainant with  OP No.1 on the advice of OP No.2 in proper way amounting to Rs.151735 but the OPs  rejected the medical claim on the ground that the complainant was suffering from Hypertension before taking the mediclaim policy and thereby there is concealment of fact of pre existing disease whereas in fact the complainant was not suffering from Hpertension at the time of  purchasing the said policy as clearly mentioned in policy certificate issued by OPs and further  the surgery cannot be done during high blood pressure of the patient as alleged. The Ld. Counsel for the complainant  also submitted a case law in this regard titled as Bajaj Allianz General Insurance Co. Ltd. Vs. Valsa  Jose  reported in Vol. IV (2012) CPJ 839 (NC) rendered by Honble National Consumer Disputes Redressal Commission, New Delhi wherein it has been held that Hypertension is usually a lifestyle disease and easily controlled with conservative medicine. No evidence that it was so acute or high that it was responsible for respondents subsequent angioplasty Repudiation not justified. The Ld. Counsel for complainant further relied upon another case law titled as New India Assurance Co. Ltd. Vs. B.Y. Srikanta  reported in Vol. IV (2015) CPJ 380 (NC) decided by Hon’ble National Consumer Disputes Redressal Commission, New Delhi  wherein it has been held  that Insurance Company has not produced any evidence to show that Parkinson disease is a pre existing disease and the same was not disclosed in the proposal form by the complainant Repudiation not justified.  Ld. Counsel for complainant further argued that the burden to prove the alleged pre-existing disease if any is upon the OPs but they have failed to submit any evidence in this regard rather they are shifting the burden upon the complainant which is neither legal nor justified in the eyes of law. The Ld. Counsel for complainant  further argued that there is  admittedly a deficiency in service on the part of OPs and requested to allow the present complaint with compensation & costs of litigation etc. 
5.    On the other hand, Ld. Counsel for OPs argued that the complainant has concealed  the material facts of pre existing disease of Hypertension which is mentioned in the history sheet of the treatment by Batra Nursing & Heart Care Centre  Sonepat  and has not provided the  previous details of disease to the OPs even after a number of requests made to the complainant and thus the OPs have rightly repudiated the claim of complainant and requested for dismissal of present case with heavy costs. 
6.    After hearing the  rival contentions of  the parties and going through the relevant record  we are of the view that the main controversy arises for consideration before the Forum is as under:
    Whether the complainant was having pre-existing disease of Hypertension  at the time of purchasing of policy as alleged by the OP In this regard the contention of the complainant is that she was never suffering from the alleged disease and there was sudden chest pain to her and she got admitted herself in the Batra Nursing & Health Care Centre for treatment. The surgery was done by the expert doctor as she was with normal blood pressure & without any Hypertension and to prove this factum, complainant has placed on record document Ex. C6 i.e. claim form annexed with Medical Certificate to be filled in by the doctor wherein it has been specifically mentioned as under:
Whether the present ailment is a complication of pre existing disease?       No
Whether the disease/disorder is congenital or genetic in nature?        No

     Besides it the complainant has exihibited the policy certificate as Ex. C22 wherein for mediclaim, the  details of persons covered reads as under:
Details     Name           DOB      Sex  Depen Hyper  Diabete   Heart
                                                       dent     tension               Disease
  
Self   Sh. Ram Parkash 11.1.1951 M    N        N          N        N
         Bindal
Spouse Smt. Saral Bala 16.2.1954  F    Y       N          N        N
            Bindal

     Further, on perusal of document Ex. C27 addressed to OP No.1 and sent through regd. Post on 10.9.2012 vide postal receipt Ex. C26 it transpires that the querry raised by OP No.1 has been duly replied by husband of  the complainant being proposer/beneficiary/insured of the said policy whereas the version put forth by the OPs qua pre existing disease of the complainant is not tenable as OPs have not been able to prove that there was any type of pre existing disease to the complainant. Even the OPs have not produced any type of documents proof of treatment of the complainant qua pre existing disease if any prior to taking the said mediclaim policy. In this way the  OPs have wrongly repudiated/rejected the claim of complainant and thus deficiency in service on the part of OPs is established and this Forum has no option except to allow the present complaint and  therefore  the same is hereby allowed in the interest of justice  with a direction to OPs  to comply with the following directions within thirty days from the communication of this order:
(i)    to  reimburse a sum of Rs.151735 to the complainant  
       alongwith simple interest  9 percent per annum from the date of 
       institution of complaint  to till date.
(ii)  to pay Rs.10000/ as compensation on account of mental pain 
    and harassment etc. 
(iii)    to pay a sum of Rs. 5500/ as litigation expenses.
             Let the aforesaid order/directions issued above must be complied with by the OPs within the stipulated period failing which all the awarded amounts shall further attract simple interest @12% per annum for the period of default. So the complaint is decided in above terms. A copy of this order be sent to the parties concerned free of cost. File be consigned to the record room after due compliance. 

Announced:

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