DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016.

Case No.1099/2007

Sh. Manohar Lal Pawani (now deceased)

through his LRs.

i.  Smt. Devi Rani (wife)

ii. Sh. Naresh Kumar (son)

iii. Sh. Mahesh Kumar Pawani (son)

iv. Smt. Promila Chatwani (daughter)

v.  Smt. Ruchi (daughter)

All R/o

Flat No.87,  Sarojni Nagar Market,

New Delhi                                                                       ….Complainants

Versus

1.       M/s National Insurance Company Ltd.

          through its Divisional Manager

          L-2, First Floor, Green Park Extension,

          New Delhi-110061

2.       M/s Vija Medi Corpn Pvt. Ltd.

          515 Udyog Vihar Phase-5

          Gurgaon, Haryana                                   …...Opposite Parties

Date of Institution               :    19.10.2007

     Date of Order        :    20.05.2017

Coram:

Sh. N.K. Goel, President

Ms. Naina Bakshi, Member

ORDER

The complainant who died during the pendency of the complaint and is now being represented through his LRs filed the present complaint stating therein that he had been continuously getting policies since 1996 and lastly vide Hospitalization and Domiciliary Benefit Policy bearing No. 354900/48/06/8500001584 from OP No.1 for the period 17.09.06 to the midnight of 16.09.07. During the subsistence of the policy, he fell ill and was hospitalized w.e.f. 22.09.06 to 25.09.06 in the Moolchand Kharati Ram Hospital and Ayurvedic Research Institute, Lajpat Nagar -III, New Delhi. He submitted a claim to the OP No.1 for reimbursement of the hospital and incidental charges who in turn referred the matter to OP No.2 Third Party Administrator with whom the complainant did not have any privity of contract. OP No.2 rejected /repudiated the claim of the complainant but neither the OP No.2 nor OP No.1 intimated the complainant about the repudiation of his claim and the said fact came to his knowledge only when he visited the office of OP No.1.  The case of the complainant is that the OP No.1 rejected the complainant’s claim on the basis of false and baseless letter of OP No.2 dated 20.02.07 and “printed on 29.03.07” wherein  the date of policy is wrongly mentioned as 01.09.07 while the date of policy is 17.09.06.   According to the Complainant, the information/history on the basis of which the OPs rejected his claim is factually incorrect and wrong; that the complainant has got a certificate from the concerned doctor in the treating hospital to refute the allegations levelled in the repudiation letter. According to the Complainant, he has been claiming and receiving the mediclaims during the last 11 years without any demur.  OPs were served with the legal notice dated 28.05.07 but in vain.  Hence, the complainant has filed the present complaint for directing the OP No.1 to pay an amount of Rs.95478/ as the amount of the claim by declaring the letter dated 20.02.07 issued by OP No.2 repudiating his claim as bad, illegal, null and void, to issue directions to the OPs to pay compensation to him for making to him suffer mental agony and pain and to pay litigation charges.

In the written statement OP No.1 has pleaded that the policy in question had been issued to the complainant as per terms and conditions mentioned therein.   It is stated that the insured committed fraud on the OP No.1 by not mentioning the disease from which he was suffering from much prior to the commencement of the policy; that the principle of “ Uberrima fidei”  i.e. “Utmost Good Faith” which is the hallmark of the insurance policy was never violated by the Insurance Company and the same was violated by the insured while taking the policy.  It is stated that the complainant was well informed of the repudiation of his fake claim through a letter dated 15.06.07 which was well received by the complainant. The claim of the complainant was duly repudiated according to exclusion clause 4.1 (Pre-Existing Disease) as per terms and conditions of the policy in question.  According to the OP No.1, exclusion clause No.4.1 reads as under:-

“The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of

All Diseases/Injuries which are Pre-existing when the cover incepts for the first time”

The printing of the wrong date with regard to the date of policy is stated to be a typographical error. It is stated that in the discharge summary dated 25.09.06 it is mentioned that the past history “HTN and DM Type II for the last 3-4 years on regular treatment CAD
AMI in 1991. No records Available.” It is prayed that the complaint be dismissed.

Therefore, it is for the first time from the written statement filed on behalf of the OP No.1 that we have come across the fact that the complainant’s claim had been repudiated on account of non-disclosure of pre-existing disease by the complainant.

In the rejoinder the complainant has stated that the policy in question was in continuation of the earlier policy by virtue of its renewal by the OP No.1 and the complainant is entitled for a sum of Rs.95,478/- alongwith compensation  etc.

OP No. 2 has been proceeded exparte.

Complainant has filed his own affidavit in evidence.  On the other hand, affidavit of Sh. J. S. Joon, Divisional Manager has been filed on behalf of the OP No.1.

Written arguments on behalf of the Complainant and OP No.1 have been filed.

We have heard the oral arguments of the Counsel for OP No.1 and have also carefully gone through the record.

 It is an undisputed fact that the complainant had been getting the insurance policies from the OP for the last about 10-11 years and the policy in question was in continuation of the earlier policy.  After getting the treatment as an indoor patient from Moolchand Hospital w.e.f. 22.09.06 to 25.0906 the complainant submitted the bill of Rs.95478/- with the OP No.1 to get it processed /investigated through to OP No.2 TPA who in turn repudiated the claim vide letter dated 20.02.07.  A copy of the letter dated 20.02.07 written on behalf of the OP No.2 to OP No.1 has been placed on the record which we mark as Mark A for the purposes of identification. The relevant portion of the said letter is as under:-

“Case History

PATIENT IS A KNOWN CASE OF HYPERTENSION, TYPE-II DIABETES MELLITUS AND CORONARY ATRERY DISEASE, PRESENTED WITH COMPLAINTS OF LABOURED BREATHING ASSOCIATED WITH COUGH WITH FROTHY EXPECTORATION. HE WAS EXAMINED, INVESTIGATED AND WAS DIAGNOSED AS A CASE OF HYPERTENSION, TYPE-II DIABETES MELLITUS, CAD-OLD MI, ATRIAL FIBRILLATION WITH FELINE VIRAL RHINOTRACHEITIS. HE WAS MANAGED  SYMPTOMATICALLY FOR THE SAME.

OPINION

THE PATIENT IS A KNOWN CASE OF CORONARY ARTERY DISEASE WITH ANTERIOR WALL MYOCARDIAL INFARCTION SINCE 1996. THE PRESENT HOSPITALIZATION IS FOR THE TREATMENT OF THIS DISEASE AND ITS COMPLICATION. THE DISEASE WAS PRESENT PRIOR TO POLICY PURCHASED. HENCE THE CLAIM MERITS REPUDIATION UNDER EXCLUSION CLAUSE 4.1 (PRE-EXISTING DISEASE) OF MEDICLAIM POLICY AND IS NOT PAYABLE. THE ORIGINAL FILE IS BEING SENT HEREWITH FOR YOUR APPROPRIATE ACTION.

If we do not receive your reply within 15 days, we will presume that you agree with our opinion. We shall then repudiate the claim and close the file.”

In response to the letter dated 11.04.07 received from the Complainant through Advocate the OP No.2 wrote a letter dated 14.06.2007 to the Counsel for Complainant thereby informing the complainant  through his advocate that his claim had been repudiated under clause 4.1 of the policy.  We mark the letter as Mark B for the purpose of identification.  The relevant portion of the letter reads as under: 

“in the claim of Mr. Manohar lal Pawani, the medical records indicate that he is a known case of Myocardial Infarcation since 1996. The present hospitalization is for the treatment of the same disease and its complications. The disease was therefore present prior to the original policy period and the claim merits repudiation under clause  no.4.1 of the policy. We have intimated  our opinion to the insurers. You will hear from them on the outcome of their decision.”

Neither the complainant nor the OP No.1 seems to have filed any other relevant document on the record. Onus was upon the OP No.1 to prove that the complainant had been suffering from the disease since prior to the inception of the original policy. There is no denial to the fact that in the past also the complainant had been getting his mediclaim passed from the OP No.1.  Therefore, we are not satisfied that the complainant had been suffering from a pre-existing disease i.e. Myocardial Infarcation since 1996 and that he concealed the said disease from the OP No.1. Therefore, repudiation of the complainant’s claim was not at all justified and also not according to the terms and conditions of the policy in question. Hence we hold the OPs guilty of deficiency in service.

 In view of the above discussion, we allow the complaint and direct the OP No.1 Insurance Company to pay Rs.95478/- to the legal heirs of the complainant in equal proportion by means of Account Payee Cheques/Demand Drafts alongwith interest @ 6% per annum from the date of filing of the complaint till realization failing which the OP No.1 shall become liable to pay said amount alongwith interest @ 9% p.a. from the date of filing of the complaint till realization.

 Since the complainant has since died during the pendency of the complaint we do not award to his LRs any amount towards compensation or cost of the litigation.

           Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

Announced on  20.05.17.