Delhi

New Delhi

CC/1120/2013

Savitri Devi - Complainant(s)

Versus

M/S. Oriental Insurance Company - Opp.Party(s)

27 May 2019

ORDER

 

CONSUMER FISPUTES REDRESSAL FORUM-VI

(DISTRICT NEW DELHI,  M-BLOCK, 1^ST FLOOR,

VIKAS BHAWAN, I.P. ESTATE. NEW DELHI-1100001.

 

C.C.No.1120/2013

 

Savitri Devi,

W/o Late Sh. Shiv Kumar,

R/o 6757, Block No.10,

Street No.3, Dev Nagar,

Karol Bagh,

New Delhi-05.

                                             …..Complainant

Vs.

 

 

1. ORIENTAL INSURANCE COMPANY LTD.,

Through its Regional Manager,

10^th Floor, Hansallya Building,

Barakhamba Road,

New Delhi-110001.

 

 

2. ORIENTAL INSURANCE COMPANY LTD.,

Through its  Manager,

88, Janpath,

           New Delhi-110001.                                                    

    ….Opposite Party

 

ARUN KUMAR ARYA, PRESIDENT

 

O R D E R

 

 

The complainant has filed the present complaint against the OPs under section 12 of Consumer Protection Act, 1986. The facts as alleged in the complaint are that the complainant got renewed his mediclaim policy bearing  No.272900/48/2013/8802  valid from 4.11.2012 to 3.11.2013   from the OP and paid a sum of Rs.6880/- as premium. On 2.2.2012, the complainant  started having abdominal pain and was admitted in B.L. Kapoor Hospital, Pusa Road where he was treated and  discharged on 4.2.2012.  The complainant incurred an amount of Rs.1,10,975/- for his treatment.  Unfortunately, Sh. Shiv Kumar, Insured expired later on.  Thereafter, OPs were informed, who appointed the Medi Assist, TPA for completion of formalities. After a long correspondence, on 14.5.2013, OP repudiated his claim  on the ground of  “PRE-EXISTING DISEASE”.  The repudiation of claim of the complainant is arbitrarily and unjustified, hence this complaint.

2.     Complaint has been contested by OP.  In its written statement, OP has not disputed that complainant had taken policy referred above. OP has stated that there is no deficiency in services on its  part.  It is further stated by the OP that the claim does not fall under the purview of insurance contract since the ailment  as per the discharge summary falls under exclusion clause 4.1 of the insurance policy issued to the complainant which reads as under:

 

 “ Such diseases which have been in existence at the time of proposing this insurance .Pre-existing conditions means any injury which existed prior to the effective date of this insurance.Pre-existing condition also means any sickness or its symptoms which existed prior to the effective date of this insurance, whether or not the insured person had knowledge that the symptoms were relating to the sickness.Complications arising from pre-existing disease will be considered part of this pre-existing condition”.

 

 

3.     OP has carefully scrutinized the claim documents submitted by the complainant  and after receipt of medical expert advice, repudiated the claim.  It is further submitted that the complainant failed to supply the required information to it or its TPA.  However, the TPA received some information from the records of treating hospital and as per records, the complainant’s husband, Sh. Shiv Kumar,  was diagnosed as a case of acute  chronic renal failure, HTN, DMII.  As per consultation paper dt. 13.4.2013, the deceased was having history of DM & HTN  since 22 years which proves that the disease for which treatment was taken was pre-existing and same are excluded vide exclusion clause NO.4.1.    Hence, the claim was rightly repudiated as per the terms and conditions of the policy.

 

4.     Both the parties have  filed their evidence by way of affidavit.  

5.     We have heard argument advance at the Bar and have perused the record.

6.     It is argued on behalf of complainant that his claim was repudiated by  OP insurance Co. on false and frivolous ground of pre-existing disease.

7.     The main contention of the learned counsel for the OP Insurance Co. is that the complainant  was a patient of DM & HTN, prior to taking the policy in question and since these facts were not disclosed by him therefore, it was a case of suppression of material facts regarding health on the part of the complainant thus the claim of the complainant was rightly repudiated by the OP under exclusion clause 4.1 of the terms and conditions of the policy.

8.     There is no dispute on the point that complainant had taken medi claim policy referred above.

9.     There is no dispute on the point that the complainant was got admitted in the B.L. Kapoor hospital and discharge summary of the hospital reveals that the deceased was admitted in the hospital on 2.2.2012 and he was discharged from the hospital on 4.2.12.  There is no dispute on the point that the complainant had spent a sum of Rs.1,10,975/- in getting the treatment.

10.    The first question for consideration is whether repudiation of claim of the complainant by the OP  on ground of suppression of material facts was justified or not or whether the hypertension could be said to be pre-existing diseases or  whether the complainant  was a patient of abovementioned diseases prior to taking the policy in question

11.    It may be stated here that if the claim is repudiated by the insurance company on the ground that the insured had suppressed the material facts, the burden shall lie heavily on the insurance company and for that the law laid down by the Hon'ble Supreme Court in the case of Life Insurance Corporation of India Vs. G.M.Channabasamma ( 1991) 1 SCC 357; AIR 1991 SC 392 ) may be referred to.

12.    Further, a discussion should be made about the about the meaning of pre-existing disease.

Meaning of Pre-existing disease

13.    Pre-existing disease is one for which the insured should have undergone hospitalization or undergone long treatment or operation. Otherwise, for laymen these day to day normal problems are not to be disclosed even otherwise medical terminology of such problems is difficult to understand and know.

14.    Merely because some positive signs in respect of so called disease are noticed later on, but for that; disease could not be treated as pre-existing disease.

15.    It may be stated here that a person might be suffering from a disease but he may not take care to that and go to a doctor. Quite often a person, who might be having some problem with the heart may not be knowing about it and may not go to a doctor. The question always, which has to be determined, is, was the pre-existing disease to the knowledge of the insured. That knowledge could be attributed if the person takes some or the other treatment from a doctor/hospital and on point of pre-existing disease the law laid down by this Commission in the case of New India Assurance Co. Ltd. Vs. Vishwanath Manglunia ( ( 2006 ) 3 CPJ 68 ) may be referred to.

16. Further the Delhi State Consumer Disputes Redressal Commission in the case of Pradeep Kumar Garg Vs. National Insurance Co. reported in III ( 2008 ) CPJ 423 has held in the following manner-

" On the concept, meaning and import of words ' disease', ' pre-existing disease' with reference to medical insurance policies, we have drawn following conclusions in highly extensive, dissective manner. These are as under-

(i) ' Disease' means a serious derangement of health or chronic deep-seated disease frequently one that is ultimately fatal for which an insured must have been hospitalized or operated upon in the near proximity of obtaining the mediclaim policy.

(ii) Such a disease should not only be existing at the time of taking the policy but also should have existed in the near proximity. If the insured had been hospptalized or operated upon for the said diseases in the near past, say six months or a year he is supposed to disclose the said fact to rule out the failure of his claim on the ground of concealment of information as to ' pre-existing disease'.

(iii) Malaise of hypertension, diabetes, occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in and out of the house and are controllable on day to day basis by standard medication and cannot be used as concealment of ' pre-existing disease' for repudiation of the insurance claim unless an insured in the near proximity of taking of the policy is hospitalized or operated upon for the treatment of these diseases or any other disease.

(iv) If insured had been even otherwise living normal and healthy life and attending to his duties and daily chores like any other person and is not declared as a ' diseased person' as referred above he cannot be held guilty for concealment of any disease, the medical terminology of which is even not known to an educated person unless he is hospitalized and operated upon for a particular disease in the near proximity of date of insurance policy say few days or months.

(v) Disease that can be easily detected by subjecting the insured to basic tests like blood test, ECG, etc. the insured is not supposed to disclose such disease because of otherwise leading a normal and healthy life and cannot be branded as ' diseased person'.

(vi) Insurance company cannot take advantage of the act of ' ommission and commission' as it is under obligation to ensure before issuing mediclaim policy whether a person is fit to be insured or not. It appears that insurance company do not discharge this obligation as half of the population is suffering from such malaises and they would be left with no or very little business. Thus any attempt on the part of the insurer to repudiate the claim for such non-disclosure is not permissible, or is ' exclusion' clause' invokable.

(vii) Claim of any insured should not be and cannot be repudiated by taking a clue or remote reference to any so-called disease from the ' discharge summary' of the insured by invoking the ' exclusion clause' or non-disclosure of ' pre-existing disease' unless the insured had concealed his hospitalization or operation for the said disease undertaken in the reasonable near proximity as referred above.

(viii) Day to day history or history of several years of some or the other physical problem one may face occasionally without having landed for hospitalization of operation for the disease cannot be used for repudiating the claim. For instance an insured had suffered from a particular disease for which he was hospitalized or operated upon 5, 10 to 20 years ago and since then had been living healthy and normal life cannot be accused of concealment of ' pre-existing disease' while taking mediclaim policy as after being cured of the disease, he does not suffer from any disease much less the pre-existing disease.

17.    It may be stated here that in the present case there is nothing on record to prove the fact that prior to the issuance of the policy the complainant had taken treatment from any doctor or any hospital for the diseases of DM & HTN 

18.    Even otherwise where mis-representation, fraud or non-disclosure of material facts are alleged, the O.P is duty bound to place on record medical evidence to buttress its contention. Needless to say that O.P has not placed on record even the proposal form in support of his contention regarding the   fact that the complainant was suffering from DM & HTN  from last 22 years and he failed to disclose this fact at the time of issuance of the policy. Therefore, the plea taken by O.P of suppression of material facts regarding DM & HTN  for repudiating the claim of the complainant was not justified. OP had repudiated the claim of the complainant without any basis and on wrong assumption and in an arbitrary manner which amounts to deficiency in service on the part of the OP.   We therefore hold, OP guilty of deficiency in services and direct it as under:

i).     Pay to the complainant a sum of Rs.1,10,975/-  alongwith interest @ 9% from the date of filing of complaint i.e. 23.12.2013 till its realization.

ii)      Pay to the complainant a sum of Rs.20,000/- as compensation,  which will include the cost of litigation.

 

This final order be sent to server (www.confonet.nic.in ). A copy each of this order each be sent to both parties free of cost by post. File be consigned to Record Room.

 

Announced in open Forum on 27/05/2019.

 

                                             ARUN KUMAR ARYA

                                                     PRESIDENT

        NIPUR CHANDNA                                                         H.M. VYAS

              MEMBER                                                                    MEMBER