Jammu and Kashmir

Jammu

CC/417/2017

DHARAM SINGH - Complainant(s)

Versus

NATIONAL INSURANCE CO. - Opp.Party(s)

PARVINDER SINGH

04 Apr 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,JAMMU

      (Constituted under J&K Consumer Protection Act,1987)

                                                          .

 Case File  No               498/DFJ         

 Date of  Institution      30-03-2017

 Date of Decision      :   13-03-2018

 

Dharam Singh,

S/O Sh.Sain Dass,

R/O House No.80 Sector No.14,

Nanak Nagar,Jammu.

                                                                                                                                                Complainant

               V/S

National Insurance Company Ltd.

Through its Branch Manager,

Last Morh,Gandhi Nagar,Jammu.

                                                                                                                                                Opposite party

CORAM

                  Khalil Choudhary              (Distt.& Sessions Judge)   President

                  Ms.Vijay Angral                                                                 Member

                  Mr.Ghulam Sarwar Chauhan                                          Member

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

     

  Mr.Parvinder Singh,Advocate for complainant, present.

Mr.Baldev Singh,Advocate for OP,present.

 

 

                                                   ORDER

                            Grievance of complainant as is discernible from the complaint is that complainant in order to cover the risk of his life and to protect himself from the unexpected expenditure regarding illness and diseases, got himself insured under the scheme of Mediclaim Insurance  Policy of OP in the year 2016 under Policy No.421801/48/16/8500000006 for the period ranging from 05-04-2016 to 04-04-2017,copy of insurance policy cover note is annexed as Annexure-A. According to complainant, the Op before issuing said Mediclaim Insurance Policy got him medically checked and examined from their doctor,namely,Dr.Adnan Rafiq,who after conducting number of tests has given fitness report and declared as physically fit and not suffering from any disease or disability, copy of fitness report with tests report is annexed as Annexure-B and the OP after getting fitness report from the doctor issued policy. Complaint further proceeds on the premise that in the month of August,2016 complainant suffered suffocation and decided to consult the doctors at PGIMER,Chandigarh and on,17-08-2016 complainant got himself checked at PGIMER,Chandigarh,where he was diagnosis for heart problem, he was for the first time diagnosed for Hypertension. Complainant further submitted that he was not suffering from any type of disease and his blood pressure was always normal though he was checking it regularly after every month and he was admitted in PGIMER on,27-08-2016 and under gone Stent Surgery and the complainant remains admitted in PGIMER from 27-08-2016 to 02-09-2016 and incurred expenditure of Rs.1,33,814/-on his treatment, which includes medicine and implants which were fixed during treatment,(Annexures C&D. Complainant further submitted that he processed his mediclaim case and all the requisite documents were submitted to Park Mediclaim TPA Pvt.Ltd.,but the OP started delaying the settlement of claim case on single pretext that “when the complainant was diagnosed for Hypertension for the first time and complainant replied all the letters of OP apprising them that he was not first time diagnosed for hypertension at the time when he suffered suffocation and taken to PGIMER Chandigarh on,17-08-2016,copies of letters  of OP and reply alongwith receipt are annexed as Annexure-E.Allegation of complainant is that to his utter dismay he received a letter dated 28-02-2017 of Op by virtue of which his Mediclaim was repudiated on flimsy grounds and this act of Op constitutes deficiency in service.Hence the present complaint.In the final analysis, complainant prays for reimbursement of Rs.1,33,814/-alongwith interest from the date of discharge from the hospital and also in addition prays for Rs.75,000/-each under the head, mental torture and litigation expenses, respectively.

                               OP filed its written version and resisted the claim on the ground that the complainant at the time of taking Medicalim Insurance Policy has declared in writing on the Proposal Form dated 05-04-2016 duly signed by him to the effect that he is not suffering from any disease, but as a matter of fact he was suffering from serious ailment which he disclosed to the Doctor on,17-08-2016 at Postgraduate Institute of Medical Education and Research, Chandigarh at the time of his medical examination and the same is noted by the doctor in the OPD Slip that the complainant is suffering from AOE (Angina on Exertion)for nine months and history of hyper-tension, photocopies of proposal form and Out Patient Card of the hospital submitted by the complainant are annexed as Annexure-RA and RB.The OP further submitted that the complainant had the knowledge that he is suffering heart disease at the time of taking of the policy, but has intentionally concealed this fact from the OP.That the complainant was repeatedly asked by the office of OP and the TPA Agency to clarify the position and produce the record of treatment of his doctor which he failed to submit the same,resultantly,OP after giving enough opportunities to the complainant and on his failure to produce the documents as asked for and after considering the facts from the medical record submitted by the complainant it is established that he had pre-existing disease, hence his claim is repudiated, which is not payable in view of Exclusion Clause No.4.1 of the policy which is reproduced as under:

         4.Exclusions

    4.0-The Company shall not be liable to make payment under the policy in respect of any expenses whatsoever incurred by any insured Person in connection with or in respect of

  4.1 All diseases/injuries which are pre-existing when the cover incepts for the first time.

  Therefore,according to OP,there is no deficiency in service on its part,Lastly it is prayed that complaint may be dismissed with costs.

                    Complainant lead evidence in the shape of duly sworn his own affidavit and affidavits of Pooja Rana and Rajinder Kumar,respectively..Complainant has placed on record copy of Policy Schedule, copy of fitness report, copy of Out Patient Card, copy of utilization list, copies of retail invoice, copy of tax invoice, copy of final reminder cum closure letter and copies of communications exchanged between the parties.

                           On the other hand OP has adduced evidence by way of duly sworn affidavit of Vijay Abrol Divisional Manager, National Insurance Co.Ltd.Canal Road,Jammu.OP has placed on record.OP has placed on record copy of proposal form, copy of OPD card and copy of policy.

                     We have perused case file and heard learned counsel appearing for the parties at length.

                                            After hearing L/Cs for parties at length and perusing the case file, in our opinion, point for consideration is, as to whether or not OP is justified in declining benefit of reimbursement of expenses incurred on the treatment of complainant,on the ground of pre-existing disease, which falls under exclusion clause of Insurance Policy.

                            Before heading further, it is to be noted that since parties have lead evidence in the shape of evidence affidavits, which are much or less reproduction of contents of their respective pleadings,therefore,we do not feel it necessary to represent the same again and if need arises, same would be referred hereinafter at appropriate stage.

                    It appears that OP had denied the benefit of reimbursement to complainant , on the ground that he was suffering from pre-existing disease and same has been suppressed at the time of taking of insurance policy.

                     On scanning case file, altogether different factual scenario emerges, which goes to prove that complainant obtained Mediclaim Policy from OP,on,05-04-2016 to 04-04-2017 i.e.for one year.Admittedly,complainant was hospitalized at PGIMER from 27-08-2016 to 02-09-2016,i.e.during currency of Insurance Policy,therefore,the ground of pre-existing disease or concealment of fact are not available to OP for following reasons;.

                 Section 45 of Insurance Act

                By now it is well settled preposition of law that as per legislative command contained under section 45 of Insurance Act,1938,no policy of insurance after expiry of two years from the date on which, it was effected, be called in question by an insurer on the ground that statement made in the proposal for insurance or in any report of Medical Officer, or referee, or friend of insured or in any other document leading to the issue of policy was inaccurate or false, unless insurer shows that such statement was of material matter or suppressed facts, which it was material to disclose. Be it further noted that Section 45 of Insurance Act,1938 is contained in two parts, while as, under the first part of Section, policy cannot be avoided by the insurer on the ground of inaccurate or false statement after expiry of two years of effecting the policy, but the insurer can do so, if it can be established that the statement made by the policy holder was not only inaccurate or false, but it was also on material matter or that it suppressed the fact, which it was material to disclose and that it was fraudulently made and the policy holder knew at the time of making statement that it was false to his knowledge or that the facts which it was material to disclose was suppressed by him.

                 Now turning to the facts on hand,admittedly,complainant was hospitalized during currency of insurance policy,therefore,plea raised by OP regarding concealment of fact was not available to the insurer.Further more,OP was required to discharge the burden by proving that relevant fact was in the knowledge of complainant at the time of taking of policy, but complainant deliberately concealed the fact and failure to discharge the burden, which is cast upon the insurer, did not confer the jurisdiction upon the insurer to repudiate the claim, on the ground of concealment.Therefore,defence raised by OP not only suffers from non application of mind, but also contravenes Section 45 of Insurance Act,1938.therefore,OP cannot under the contract of insurance run away from its contractual liability.

                    L/C for complainant placed reliance on the judgment passed by Hon’ble Madras High Court in case titled Manivasagam v/s The Branch Manager, National Insurance Company Ltd.Madurai  & another ,wherein it has been held:

            Insurance Act,1938 Section 45 Medical Claim policy for bye-pass surgery-Claim for-rejected by Insurance company on grounds that same was undergone on basis of pre existing disease-Challenged-Admittedly, petitioner suffering from hypertension and diabetes-If treatment is relating to hypertension and diabetics then it is pre-existing disease and no claim can be made-Claimant underwent surgery on ground of Coronary Artery Disease and same not pre-existing disease at time when policy was issued-It was for doctors to interpret cause of disease or ailment and treat same-Therefore, claim apparently rejected on mis-conception-Under the terms of the medi claim policy, interpretation of a particular disease is not permissible-They are strictly bound by the disease or ailment specified in the policy as pre-existing disease-No addition or deletion by way of interpretation can be done, which is what has happened in the present case-Rejection of claim, was not proper and justified-Hence, appeal allowed.

            L/C for OP placed reliance on the judgment passed by Supreme Court of India  at New Delhi in case titled Satwant Kaur Sandhu V/S New India Assurance Co.Ltd. reported as 2010 ACJ 265,wherein their Lordship has been pleased to hold as:

Insurance Mediclaim policy-Fraudulent suppression of material facts-Repudiation of claim-Assured took a mediclaim policy and within 4 months fell ill and despite treatment in hospitals died within 7 months-Widow filed claim for reimbursement of expenses incurred on hospitalization-Insurance Company repudiated her claim on the ground that policyholder suppressed material facts about his health at the time of taking the policy-Deceased was found to be a diabetic fir 16 years and a known case of chronic renal failure/diabetic nephropathy and was on regular haemodialysis whereas he had stated  in his proposal form that he was in good sound health and had not undergone any treatment or operation in last 12 months-Claimant filed complaint before District Forum under Consumer Protection Act which found insurance company guilty of deficiency in service and directed payment of claimed amount with interest-State Commission set aside the order of District Forum on the ground that there  was misrepresentation and suppression of material facts regarding health by the policyholder and no  case of deficiency in service has been established-National Commission, in revision, did not interfere-Apex Court observed that statement made by insured in proposal form regarding his health was palpably untrue to his knowledge-Whether insurance company was justified in repudiating the insurance contract as there was clear suppression of material facts-Held yes.

                        In order to substantiate his allegations, complainant filed his own duly sworn evidence affidavit, wherein he has deposed in para 6  that to the utter surprise of the deponent received a letter dated 28-02-2016 of the respondent by virtue of which the Mediclaim case of the deponent was repudiated on the flimsy ground, whereas the deponent was completely medically checked by the respondent through their doctor prior to issuance of Mediclaim policy and was thoroughly examined for Coronary Risk Profile and was declare physically fit. The respondent has taken this unjustifiable plea just not to satisfy the Mediclaim of the deponent. Copy of letter dated 28-02-2017 is same which is on the main file.It is most important to submit that no prudent can play with his life after being diagnosed as heart patient, wait for more than four months to get himself treated just to save money. Life is more important than money and no one can take such a risk with his life that to when he is suffering from heart disease:.

                         After going through rival contention raised by the parties and supporting documents produced by them, it pains us to note that insured purchases health insurance policy so that on the happening of unfortunate event, he would get support from his insurer, but had been made to understand by insurer that, he had rather purchased an unjustified court battle.

                In view of discussion made hereinabove, we did not hesitate to hold that from day one OP and its TPA unnecessarily entangled complainant into niceties and technicalities, which were out side the scope of contractual liability. The conduct of OP and its TPA, just added to the miseries, for which complainant would have never thought of at the time of effecting the insurance policy, rather complainant wanted to have insurance policy to mitigate its sufferings by providing supporting financial plank. Under these circumstances, complainant is required to be suitably compensated for mental pain and agony he underwent after paying premium for the day which unfortunately happened when he underwent treatment.

 

                                    It is needful to recall the judgment of Honble Supreme Court passed in Oriental Insurance Company Ltd.V/S M/S Ozma Shipping Co.and Anr.2010 AIR SCW 514

Before parting with this case we would like to observe that the insurance companies in genuine and bona fide claims of the insured should not adopt the attitude of avoiding payments on one pretext or the other. This attitude puts a serious question mark on their credibility and trustworthiness of the insurance companies. Incidentally by adopting honest approach and attitude the insurance companies would be able to save enormous litigation costs and the interest liability.

                 Complainant has produced bills of treatment for an amount of Rs.1,33,814/-and veracity of same is not disputed by OP,therefore insured is held entitled to sum of Rs.1.33.814/-.

                          Therefore in view of the aforesaid discussion and after pursuing the record of the case, complaint filed by the complainant is accordingly allowed and we direct the OP to pay Rs.1,33,814/- alongwith interest  @ 7% w.e.f.02-12-2016(i.e. two months after discharge from the hospital), till its realization. The complainant is also entitled to Rs.5000/-as compensation for causing mental agony and harassment and litigation charges of Rs.5000/-.This order shall be complied with by OP within one month from date of receipt of this order. Copy of this order be provided to the parties free of charge. Complaint is accordingly disposed of and file be consigned to records after its due compilation.

   Order per President                                                 (Khalil Choudhary)                               

 

Announced                                                              (Distt.& Sessions Judge)

13-03-2018                                                                     President

                                                                               District Consumer Forum

Agreed by                                                                  Jammu.

                                                                                       

Ms.Vijay Angral          

Member                                                             

                                                                                                                                                                Mr.Ghulam Sarwar Chauhan

Member