Order-18.
Date-12/07/2016.
This is an application u/s.12 of the C.P. Act, 1986. This case emanates over repudiation of mediclaim.
Briefly the case of the complainant is that he has a mediclaim insurance policy since over last ten years, initially the policy was with the Reliance General Insurance Company Ltd. till 10-06-2011 thereafter with National Insurance Company Ltd. till 11-06-2014 and, thereafter, with the OP for the period from 12-06-2014 to 11-06-2015 under the directives of the IRDA of India on portability of health insurance policy including Family Floater Policy. OP has renewed the said Family Health Insurance Policy consisting of three members – the complainant, his wife and minor son for the period 12-06-2014 to 11-06-2015 on receiving the proposal form and also the portability form from the complainant-insured. The OP also issued the health insurance policy on and from the renewal date of the expiring policy. Wife of the complainant Mrs. Sonu Sarawagi 34 years old attended Dr. Avijit Ghosh on 10-11-2014 and the doctor advised laparoscopic operation for cholecystectomy and accordingly the patient was admitted in the Srusrusha Nursing Home on 21-11-2014 and underwent operation on 22-11-2014 and was discharged on 28-11-2014. Complainant has submitted doctors’ consultation prescriptions with all previous treatment papers to the OP in original along with the claim form for Rs.89,216/- but the OP insurer declined the claim stating that since the insured has not disclosed health history/medical history in the proposal form the claim is not admissible. It is also alleged by the complainant that his wife was not suffering from diseases like diabetes, high BP, cholesterol, gall stone, kidney diseases, cataract except pain in the abdomen and the complainant did not mention for suffering of any disease in the proposal form since the wife of the complainant did not suffer illness at the time of renewal of the policy. Complainant wrote several letters to the OP for consideration of the claim vide letters dated 04-03-2015, 24-03-2015, 08-04-2015 but such letters were not replied from the end of the O.P. Hence this case.
OP has contested the case in filing written version contending inter alia, that the instant case is not maintainable under Section 26 of the C.P. Act and complainant has no cause of action for filing the case against the OP. OP stated that the Branch Office, Howrah of the OP issued one policy namely Family Health Optima Insurance Policy vide Policy bearing no.P/191113/2015/000866 from 12-06-2014 to 11-06-2015 covering the complainant and his family for sum insure of Rs.3,00,000/-. The insured’s wife was admitted in Shrususha Nurshing Home, Kolkata on 21-11-2014 for laparoscopic operation for cholecystectomy on receipt of pre-authorization request from the treating nursing home, the cashless authorization was denied by the OP on the ground of non disclosure of pre-existing disease. It is also stated that the USG of the patient done on 24-05-2011 reveals GB polyps 3 in number, fatty lever, right turbo ovarian mass and left ovarian cyst which is prior to the inception of the policy of National Insurance Company as well as of the policy of the OP. It is also alleged that the patient has history of multiple pelvic surgeries as per the consultation dated 31-05-2011(two c-section, ectopic salpingectomy in 2008, left ovarian cyst adenoma 2010). All these were prior to the policy of OP It is alleged that at the time of inception of policy the insured had not disclosed the abovementioned medical history of the insured person in the medical form. It is alleged that as there was misrepresentation and non-disclosure of material fact, the OP is not liable to make any payment in respect of mediclaim of the insured. It is stated that there is no negligence and deficiency of service since the claim of the Petitioner was repudiated in terms of the policy condition by the O.P.
Point for decision
- Whether there is deficiency in service on the part of the O.P. in repudiating the claim of the complainant?
- Whether the O.P. was justified in repudiating the claim of the complainant?
- Whether the complainant is entitled to get the claim as prayed for?
Decision with Reasons
We have gone through the documents on record like insurance policy, Family Health Optima Insurance Plan, medical papers, prescriptions, proposal form etc. lying on the record as filed from the respective parties. It appears that the complainant has mediclaim insurance policy since last more than 10 years. Initially, the mediclaim policy was with the Reliance General Insurance Co. till 10-06-2011, thereafter, with National Insurance Co. Ltd. till 11-06-2014 and thereafter, with the OP for the period 12-06-2014 to 11-06-2015 under the directives of the IRDA of India on portability of Health Insurance Policy including Family Floater Policy. It is known to all of us that the IRDA has issued directives that if an insured wishes to switch over his individual Health Insurance Policy from one insurer to other insurer, he can do so under portability system and it will be considered as continuation of coverage with the new insurer. In the instant case, we find that OP has renewed the said family health insurance policy for three members including the complainant, his wife and minor son for the period from 12-06-2014 to 11-06-2015. OP has renewed the policy as it appears after receiving the proposal form and also the portability form from the complainant - insured. It can be presumed that the insurance company had maintained all the formalities, guidelines framed out by the IRDA in their portability circulars and guidelines being satisfied with the correctness of the information furnished in the proposal form and portability form duly submitted by the insured. We think that the insurance company at this stage cannot deny that the insured has not disclosed about the treatment of the patient. It is given to understand to us that the OP has not rejected such proposal form and portability form. On the contrary, we find that the OP accepted the proposal form and issued the policy on and from the renewal date that is from 12-06-2014 with coverage of Family Health Insurance for three members in the family of the complainant for a period from 12-06-2014 to 11-06-2015. It also appears that the patient was advised on 10-11-2014 by the doctor for a plan of laparoscopic operation for cholecystectomy and the patient was admitted in the nursing home on 21-11-2014 and her operation was held on 22-11-2014 and she was discharged on 28-11-2014. There is no report or indication coming to us from the side of the OP that there was cholelithiasis in the gallbladder of the patient before the renewal date of the policy. Hence, the plea for non-disclosure of disease or diseases in the proposal form after submission of claim to the insurance company is not acceptable at all at this stage.
It appears that the policy of the complainant was continuing for more than 10 years. As the time of three years has already elapsed from the date of inception/issuance of policy, there is no scope of calling the policy in question on the ground of suppression of material facts as per amended Section 44 of the Insurance Act, 1938. Since the period of three years have been over the insurer has no option to call the policy in question. Once, this period of three years is over, the policy cannot be called in question. The renewal of the policy is treated as revival of the policy. It appears that OP has accepted the policy under the portability guidelines of IRDA without objection and queries to the insured, it is established that the insurer being satisfied with the information has issued the policy. The insurance company cannot discontinue or cancel the policy on their own while they have accepted the policy on portal basis. We think that the repudiation of the claim has not been justified and there is clearly a deficiency in service on the part of the OP.
In result, the case succeeds.
Hence,
Ordered
That the instant case be and the same is allowed on contest against the OP.
OP is directed to settle the claim and reimburse the medical bill of the complainant for Rs.89,216/- along with interest at the rate of9 percent p.a. within one month from the date of this order till payment.
OP is also to pay litigation cost of Rs.10,000/- to the complainant by the date fixed. In case of non-compliance of this order the complainant will be at liberty to put the order into execution and in that event the OP shall have to pay penalty of Rs.100/- per diem to be deposited to this Forum till full and final payment.
