FBEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,
FATEHABAD.
Complaint Case No.: 156 of 2016.
Date of Institution: 09.06.2016
Date of order: 16.05.2017.
Sharwan Kumar Sharma son of Prayag Chand Sharma aged 42 years Caste Sharma resident of near Hanuman Mandir, Batra Colony, Fatehabad Tehsil & District Fatehabad.
….. Complainant.
Versus
1.National Insurance Company Limited through its Branch Manager, Branch Office, G.T.Road, Fatehabad Tehsil & District Fatehabad.
2.National Insurance Company Limited through its Divisional Manager, Division Office, Sirsa, Tehsil & District Sirsa.
….Opposite parties.
Complaint U/s 12 of the Consumer Protection Act
BEFORE: Sh. Raghbir Singh, President.
Sh.R.S.Panghal, Member.
Smt. Ansuya Bishnoi, Member.
Present: Shri R.K.Tayal, Advocate for the complainant.
Shri N.D.Mittal, Advocate for the opposite parties.
ORDER:
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter to be referred as OPs).
2. Briefly stated the facts of the present complaint are that the complainant had obtained an insurance policy bearing No. 420701/48/14/85000000060 dated 16.10.2014 having validity from 16.10.2014 to 15.10.2015 for himself and other family members from Op No.1 and also paid requisite premium thereof. The policy in question was renewal of previous National Medi Claim policy No.42701/48/13/ 8500000075 dated 16.10.2013 which was valid from 16.10.2013 to 15.10.2014. It has been further averred that at the time of renewal of policy it was assured to the complainant that policy would cover the medical and major surgical benefits upto Rs.1,50,000/-. In the second week of June 2015, the complainant fell ill with decreased urine output, cervical pain and fever for which he had taken medicines and thereafter on 25.06.2015 he visited Goswani Hospital, Bus Stand, Hisar for consultation but after some investigations he was referred to Dr.Sahil Popli, CMC Hospital, Hisar. The complainant was admitted there as an indoor patient and treated conservatively and during the treatment he was diagnosis for CKD (Chronic Kidney Disease) and also advised for hemo-dialysis. Thereafter he was discharged against medical advice on 27.06.2015 and was shifted to Medanta, The Medicity Hospital, Gurgaon and admitted there in nephrology department. It has been further averred that after due investigations hemo-dialysis was initiated via right femoral catheter, right IJ permcath and last hemo-dialysis was done on 30.06.2015. Thereafter the complainant was discharged in stable condition with the advice to continue dialysis thrice in a week on 01.07.2015. It has been further averred that the complainant had applied for cashless facility at Medanta The Medicity Hospital, Gurgaon, therefore, Vipul MedCorp.TPA Private Limited Gurgaon was deputed for assessment but the same was declined with the remarks Patient is suffering from HTN (hypotension) since eight years and policy incepted since 2013 (2nd year policy). Case is not admissible under exclusion 4.1 of Policy (hypo-tensive nephropathy). It has been further averred that the doctor at Medanta Hospital, has certified that Chronic Kidney Disease is not the direct nexus of hypertensive nephropathy. It was asked to the complainant to pay bills of the hospital and further to submit the related documents and to lodge claim for reimbursement with the OPs. It has been further averred that after discharge the complainant he submitted form for reimbursement for the expenditure incurred upon the treatment at Hisar and Gurgaon with the medical certificate of treating doctors and also deposited relevant documents to the Ops to settle the claim but the OPs repudiated the claim vide letter dated 23.10.2015 with the remarks that as per the submitted documents patient was diagnoses as acute on chronic CKD uremic enceohelpathy. Actual factor Hypotension/Nasid intakes as patient is hypertensive since last 8 years and the policy inception date is 16.10.2013.Hence, this claim is not admissible as per clause 4.1 of the policy and is being repudiated”. The repudiation of the claim by the OPs is with a view to cause wrongful loss to the complainant which is clear cut deficiency in service on their part as the complainant was not having any pre-existing disease and even he was having no symptoms or signs before June, 2015. Hence, this complaint. In evidence the complainant has tendered his affidavit Annexure CW1/A and documents Annexure C1 to Annexure C8.
3. Upon notice, OPs appeared through counsel and resisted the complaint by filing reply taking preliminary objections regarding cause of action, estoppal, maintainability and suppression of true and material facts. It has been submitted that in the proposal form dated 16.10.2013 the complainant had specifically mentioned that he was in good health, free from physical and mental disease and medical complaints and he had also replied in negative qua the question whether he was diagnosed with any of the disease including Diabetes and hypertension etc., therefore, the insurance company had issued the policy in question on believing the information supplied by the complainant. It has been further submitted during medical examination, when the complainant was having problem of decreasing urine output, cervical pain and fever, he was found to be the patient of CKD (chronic kidney disease), therefore, he was advised hemodialysis at CMC, Hisar. In the discharge summary given by Medanta, Global Health Pvt. Limited dated 01.07.2015 it has been clearly mentioned that the patient was a known case of hypertension since 7-8 years on regular medicines. It has been further submitted that if the history mentioned in the discharge card read together with 4.1 exclusion clause then it makes very clear that the patient was having pre-existing disease. The diagnosis mentioned in the discharge card is acute on chronic CKD uremic Enceohelopathy Actual Factor-Hypertension/NASAID intake, therefore, as per TPA report the claim was not admissible and the same was repudiated as per law. It has been further submitted that the complainant had intentionally suppressed the material facts qua his health from the insurance company. Other pleas made in the complaint have been controverted and prayer for dismissal of the complaint has been made. In evidence, the OPs have tendered affidavit of Sh.Suresh Kumar, Chaudhary, as Annexure R1 and documents Annexure R2 to Annexure R9.
4. We have heard learned counsel for the parties and have perused the case file carefully.
5. The grouse of the complainant is that his claim has been wrongly & illegally rejected by the OPs on the ground that he was having pre-existing disease at the time of effecting insurance despite the fact that he was not suffering from any ailment and he had not made any concealment. Learned counsel for the complainant during arguments has reiterated the submissions made in the complaint and prayed for acceptance of the complaint. In support of his contentions learned counsel for the complainant has relied upon case laws titled as The Branch Manager, LIC of India & Others Vs. Pasupuleti Bhagya Laxmi & Others 2014 (4) CLT, 115 (ASCDRC), SBI General Insurance Company Limited Vs. Balwinder Singh Jolly & Anr. 2016 (4) 272 CLT (Chd.SCDRC), United India Insurance Co.Limited & Anr.Vs. S.K.Gandhi 2015 (2) CLT 71 (NC), Abedin S.Baldiwla Vs. United India Insurance Co.Limited 2016 (3) CLT 584 (NC), LIC of India & Anr.Vs. Chawali Devi 2016 (1) CLT 114 (NC), Satinder Singh Vs. NIC 2011 (2) CLT 376 (NC), Praveen Damani Vs. OIC 2007 (1) CLT 213 (NC) and Star Health and Allied Insurance Co.Limited Vs. Asha & others 2015 (1) 590 CLT HSCDRC.
7. On the other hand the counsel for the OPs rebutted the above said arguments of the counsel for the complainant and argued that the complainant has concealed the material fact about his health from the insurance company because at the time of inception of this policy he was having pre-existing disease. It has been further argued that in the discharge summary the doctor of Medanta, Global Health Pvt. Limited had clearly mentioned that the patient/complaint was a known case of hypertension since 7-8 years on regular basis, therefore, the insurance company has rightly repudiated the claim of the complainant. In support of his contention has relied upon the judgments titled as Satwant Kaur Sandhu Vs. New India Assurance Company IV 2009 CPJ (8) (SC), P.C.Chacko & Anr. Vs. Chairman Life Insurance Corporation of India & Others III (2008) CPJ 78 (SC), Savitri Singh Vs. Bajaj Allianz Life Insurance Company decided on 31.01.2017 by Hon’ble National Commission in RP No.3329 of 2016, Kailash Chan Jain Vs. National Insurance Company III (2016) CPJ 57 (Raj.), R.Venkata Krishna Vs. UII III 2016) CPJ 480 (NC), SBI Life Insurance Company Limited Vs. Dune Bhavgyalakshmi IV (2016) CPJ 278 (NC) and Bajaj Allianz Life Insurance Company Vs. Jaspal Kaur IV (2016) CPJ 342 (NC).
8. We have considered the rival contentions of the parties. It is not disputed that complainant had obtained insurance policy covering the medical and major surgical benefits upto Rs.1,50,000/- from the OPs (Annexure C1). Perusal of Annexure C3 to Annexure C7 reveal that the complainant had fallen ill during the subsistence of the policy and due to that he was admitted and treated in various hospitals such as Goswami Hospital, Hisar, CMC Hospital, Hisar and Medanta Global Health Pvt.Limited, Gurgaon. During hospitalization the complainant had underwent many tests and Hemodialysis was also initiated via right femoral catheter as right IJ Permacatch was put on 29.06.2015 and last HD was done on 30.06.2015 but the OPs have refused to reimburse the amount incurred by the complainant on his treatment vide repudiation letter dated 23.10.2015 (Annexure C8) on the ground that life assured had made incorrect statements and withheld correct information from them regarding his health at the time of proposal and as per the investigation report the patient was diagnosed as Acute on Chronic CKD Uremic Enceohelopathy, Actual Factor-Hypotension/Nasid Intake as he was hypertensive since last 8 years from the date of inception of policy on 16.10.2013. In support of his contention learned counsel for the OPs has drawn the attention of this Forum towards discharge summary issued (Annexure R5) by Medanta Global Health Pvt. Limited. Otherwise, there is not an iota of evidence of any doctor or any hospital that the ailment was prevalent at the time when the complainant filed up the proposal and had knowledge of the same and had suppressed the same willfully. No record of medical treatment taken by the complainant before revival of the policy has been produced by the OPs. Mere reference in the history is not sufficient to establish that complainant was suffering with the disease before the date of filing of the proposal. The insurance company is required to prove with credible and cogent evidence to prove that the complainant was suffering from pre-existing disease and had knowingly failed to disclose the same. Moreover, it is well known that hyper-tension is usually a life style disease and easily controlled with conservative medication. There is no evidence that it was so acute or high that it was responsible for Acute Kidney Disease suffered by the complainant. It is also quite possible that the complainant despite suffering from Hyper-tension may not be aware of the same. Moreover, the OPs ought to have made thorough inquiry/investigation or necessary medical health check up before issuing of policy. Without doing so, when they have issued the policy, now they cannot turn around. All the inquiries, investigations and health checkup ought to have been made before issuance of the policy itself. Moreover, the concealment of hypertension has not been taken as suppression of any material information to repudiate the claim. On this point reliance can be taken from case law titled as ICICI Vs. Veena Sharma, 2014 (4) CPJ 580 (NC). It is a matter of common knowledge that in a majority of policies being issued by the Insurance Companies the same are routed through their agents. The agents in their anxiety to get their commission and the insurance companies in order to do more and more business see that the policies are issued the moment they received the premium amount. Even the insurance companies are not aware as to how is the proposer, what is his status or health condition. Here the intention is very clear that first they induce the people to purchase policies and later they start litigation. The case laws titled as The Branch Manager, LIC of India & Others Vs. Pasupuleti Bhagya Laxmi & Others (supra), SBI General Insurance Company Limited Vs. Balwinder Singh Jolly & Anr. (supra), United India Insurance Co.Limited & Anr.Vs. S.K.Gandhi (supra), Abedin S.Baldiwla Vs. United India Insurance Co.Limited (supra), LIC of India & Anr.Vs. Chawali Devi (supra), Satinder Singh Vs. NIC (supra), Praveen Damani Vs. OIC (supra) and Star Health and Allied Insurance Co.Limited Vs. Asha & others (supra) relied upon by learned counsel for the complainant are fully applicable to the case in hand.
9. The OPs have failed to establish that the complainant had taken treatment prior to obtaining the policy. There is enough on the file to show that the complainant has been able to prove his case against the OPs and the present complaint deserves acceptance. The verdict made in the case laws relied upon by learned counsel for the Ops is not disputed but the same are distinguished being rested on different footings.
10. Thus, as a sequel to our above discussion, we accept the present complaint and direct the OPs to pay the amount of Rs.1,50,000/- spent by the to the complainant spent alongwith interest @ 6% per annum from the date of filing of present complaint till actual realization. This order should be complied within a period of 30 days from the date of this order, failing which the complainant will be entitled to initiate legal proceedings under Section 25/27 of the Act against the opposite party. A copy of this order be supplied to the parties free of costs. File be consigned to the record room after due compliance.
Announced in open Forum.
Dated: 16.05.2017.
(Raghbir Singh)
President
(Ansuya Bishnoi) (R.S.Panghal) Distt.Consumer Disputes
Member Member Redressal Forum, Fatehabad.
