Punjab

Ludhiana

CC/15/94

Shiv Shankar - Complainant(s)

Versus

New India Ass.Co.Ltd - Opp.Party(s)

A.C.Gupta Adv.

07 Sep 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 94 of 12.02.2015

Date of Decision          :   07.09.2015

 

Shiv Shanker Tripathi aged about 32 years c/o M/s. Sleek Knitwears, Jain Hosiery Complex, V.P.O.Noorwala, Ludhiana.

….. Complainant

Versus

1.M/s. The New India Assurance Co.Ltd., having its head Office at New India

Assurance Building, 87, Mahatma Gandhi Road, Fort, Mumbai-400001

 

2.M/s The New India Assurance Co.Ltd., SCO 11-12, Second Floor, PUDA

Complex, Field Ganj, Ludhiana-141008.

…Opposite parties

 

    (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.SAT PAUL GARG, MEMBER

MS.BABITA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :         Sh.Gaurav Gupta, Advocate.

For Ops                         :         Sh.T.J.S.Jaggi, Advocate

 

PER GOPAL KRISHAN, PRESIDENT

 

1.                          Complainant Shiv Shanker Tripathi filed complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter as referred as the ‘Act’)  against the OPs, by claiming that one Medi-Claim Insurance Policy bearing No.36010134120100000215 for the period 14.3.2013 to 13.3.2014 was purchased by him from Ops. M/s. Raksha TPA Pvt. Ltd. was the TPA agent. Sum assured was Rs.1,00,000/-. Unfortunately, complainant suffered heart problem for the first time in April, 2013 and he was admitted in Dayanand Medical College & Hospital, Ludhiana on 16.4.2013, where he was diagnosed for the first time to be suffering from Rheumatic Heart Disease Severe Aortic Regurgitation. Complainant was admitted in Hero D.M.C.Heart Institute, Ludhiana for treatment, where his Aortic Valve was replaced after conduct of surgery on 22.4.2013. Complainant was discharged from that hospital on 30.4.2013. Claim for disbursement of the medical expenses was lodged with the Ops by submitting necessary documents and completing all the requisite formalities. Complainant claims to have spent Rs.3,21,967/- as expenditure on treatment. The claim submitted by the complainant has been repudiated on false ground of pre-existing disease by invoking clause 4.1 of the policy. As repudiation of the claim is illegal and as such, deficiency in service on the part of Ops pleaded. Directions sought to Ops to pay Rs.1,00,000/- as claim amount alongwith interest @18% p.a. Compensation of Rs.1,00,000/- and litigation expenses of Rs.22,000/- also claimed by alleging that complainant has been put to mental agony and harassment.

2.                On appearance, Ops filed written statement by pleading interalia as if the complaint is not maintainable; complainant has not approached the court with clean hands; claim is not payable as per the terms and conditions of the policy because medi-claim insurance policy got by the complainant by concealment of facts; intricate questions of law and fact are involved requiring elaborate evidence, due to which, matter can be decided by Civil Court. Claim has been rightly repudiated by claim settling agency as per clause 4.1 of the policy and as such, there is no deficiency in service on the part of OPs. Rheumatic Heart disease is chronic in nature since from birth. As the disease was pre-existing to the inception of the policy date and as such, claim amount not payable as per the terms and conditions of the policy. Admittedly, complainant   was   admitted   with  complaints   of   Rheumatic  Heart  Disease, Severe Aortic Regurgitation in Hero D.M.C. Heart Institute, Ludhiana, but each and every other averment of complaint denied. However, it is claimed that claim of the complainant was referred to M/s. Raksha TPA Pvt. Ltd., the Claim Settling Agency, where it was rightly repudiated.

3.                Complainant to prove his case tendered his affidavit Ex.CA alongwith documents Ex.C1 to Ex.C15 and then closed the evidence.

4.                On the other hand, counsel for OPs tendered in evidence affidavit Ex.RA1 of Sh.R.M.Bhatnagar, Manager of Ops and even tendered affidavit Ex.RA2 of Dr.Rakesh Kalra, Regional Manager of Raksha TPA Pvt.Ltd., alongwith documents Ex.R1 to Ex.R6 and thereafter, closed the evidence.

5.                          Written arguments not submitted by any of parties. Oral arguments were addressed and heard. Records gone through minutely. 

6.                Undisputedly, the medi-claim insurance policy was purchased by the complainant and policy schedule Ex.C1 was issued. Complainant remained admitted in Dayanand Medical College & Hospital, Ludhiana for the period from 16.4.2013 to 30.04.2013. The same fact born from discharge summary Ex.C2=EX.R5 and Ex.C3 submitted by the complainant. Complainant was diagnosed for treatment of “Rheumatic Heart Disease, Severe Aortic Regurgitation and Moderate LV Dysfunction”. Aortic Valve Replacement with 23mm St.Jude Aortic Valve took place through surgery of 22.4.2013 are the facts born from discharge summary Ex.C2=Ex.R3. In view of this, claim of the complainant put forth through application Ex.C1 was recommended to be rejected by TPA i.e. M/s. Raksha TPA Pvt. Ltd. through letter Ex.C11=Ex.R2. It is contended by counsel for the Ops that TPA through recommendation Ex.C11=Ex.R2 found the above referred ailments, for which, complainant underwent treatment as chronic in nature because Rheumatic Heart Diseases exists since from birth and as such repudiation of claim is as per clause 4.1 of the terms and conditions of the insurance policy. That submission vehemently rebutted by the counsel for the complainant by contending that complainant was not suffering from this problem at the time of submission of the proposal form and nor at the time of purchase of the policy. Rather  it  is  contended that  in fact the complainant had history of dyspnoea grade for the last six days prior to his admission in Dayanand Medical College & Hospital, Ludhiana on 16.4.2013 and as such disease, for which, the complainant underwent treatment was not known to the complainant even. In view of lack of knowledge on part of the complainant qua this disease at the time of submission of proposal form, benefit of clause 4.1 of Ex.R1 cannot be availed by Ops.

7.                As per clause 4.1 of terms and conditions of medi-claim insurance policy Ex.R1, the company is not liable to make any payment in respect of pre-existing diseases/condition. That clause 4.1 read as under:-

“All diseases/injuries/conditions, which are pre-existing when the cover incepts for the first time (except as shown hereunder). Any complication arising from pre-existing disease/ailment/injury will be considered as a part of pre-existing condition. This exclusion will be deleted after four consecutive claim free policy year provided there was no hospitalization for the pre-existing disease/ailment/condition/injury during the said four years of insurance with our company”.

8.                Treatment for Rheumatic Heart Disease was got by the complainant on 16.4.2013 that is in the first year of the purchase of the policy and as such, deletion of clause 4.1 of Ex.R1 is not contemplated by the terms and conditions of the contract/policy. Perusal of Ex.C1 reveals that medi-claim insurance policy of complainant commenced from 14.3.2013 at 03:05:00 PM and the same was to be ended at 13.03.2014 at 11:59:59 PM. So, treatment virtually was got by the complainant for Rheumatic Heart Diseases just after one month of the commencement of the insurance policy. In view of that it is vehemently contended by Sh.T.J.S.Jaggi, Advocate representing the Ops that the complainant deliberately suppressed the factum of pre-existing disease or pre-existing condition. That submission of counsel for the Ops has no force because after going through the discharge summary Ex.C2=Ex.R3, it is made out that as per history of illness, for which, treatment to complainant was to be provided by Dayanand Medical College & Hospital, Ludhiana, the said history of dyspnoea grade was for the last six days. If this history was for the last six days only, then the complainant got the knowledge of this disease or condition thereof approximately on 10.04.2013 and not before that. Complainant came to Dayanand Medical College & Hospital, Ludhiana with history of palpitation and dizziness as well as productive, white color cough and that is why he was admitted for treatment of acute respiratory distress and fever of short duration. It was on conduct of echo that it was found as if complainant has severe aortic regurgitation with trileaflet aortic valve and thickened disease. So, it was on conduct of echo alone in Dayanand Medical College & Hospital, Ludhiana that complainant was found to be suffering from Rheumatic Heart Disease. Before echo test, heart disease some time not traceable and as such, virtually the complainant got the knowledge of his being Rheumatic Heart patient with Severe Aortic Regurgitation only after his admission in Dayanand Medical College & Hospital, Ludhiana on 16.4.2013. So,  it  is  not a case of deliberate suppression of facts qua pre-existing condition for such pre-existing disease. Therefore, submission of Sh.Gaurav Gupta, Advocate has force that complainant has not concealed the factum of pre-existing disease at all. Rather from the material produced on record, we make out that complainant was not aware about the disease at the time of purchase of the policy.

9.                As per law laid down in case ICICI Prudential Life Insurance Company Limited vs. Veena Sharma & another-IV(2014)CPJ-580(N.C.), insurance company required to prove with credible evidence that complainant was suffering from pre-existing disease and knowingly failed to disclose same at the time of purchase of the policy. Mere production of discharge card not enough to prove the existence of pre-existing disease at the time of purchase of the policy. Same are the facts of the case before us because no material except discharge summary Ex.R3 and operative notes Ex.R4 produced to show that actually the complainant was suffering from Rheumatic Heart Disease earlier to 16.4.2013 also. Even the doctor who treated the complainant has not been examined. As per law laid down in case SBI Life Insurance Co.Ltd. vs. Harvinder Kaur and another-III(2014)CPJ-552(N.C.), when concerned doctor, who allegedly treated the insured and recorded that patient was admitted with history of pulmonary hypertension for last two years was not examined by insurance company, but reliance on photocopy of discharge card alone placed, then the insurance company cannot be said to have established that complainant concealed the material facts of pre-existing disease at the time of purchase of the insurance policy. Same is the position in the case before us because here Rheumatic Heart Disease, for which, treatment was got by the complainant came to his knowledge only after his admission in Dayanand Medical College & Hospital, Ludhiana and not before that. No record has been produced to show that complainant ever suffered from heart disease prior to his admission in Dayanand Medical College & Hospital, Ludhiana on 16.4.2013 or purchase of the insurance policy in March, 2013. If complainant was not suffering from any such like disease or was not aware of the same, then repudiation of the claim on ground of suppression of pre-existing alleged disease is not justified as per case Abhishek Jain vs. HDFC Standard Life Insurance Co.Ltd. and another-IV(2014)CPJ-144(N.C.). Same is the position in case before us because here the complainant himself was not aware of the heart disease, for which, he got treatment in question and as such, he has not committed any fraud with the insurance company. Even the complainant has not made any mis-representation while submitting the proposal form. In case, insurance company failed to prove that insured was aware of fraudulent suppression of facts, which are material in repudiating the claim, then repudiation of claim is not justified. This infact is the proposition of law laid down in case LIC of India vs. Kunakose K.-IV(2015)CPJ-8A(CN)(Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram). But if a person is suffering from hypertension, then he cannot be said to have concealed the material fact of sufferance of heart disease at the time of taking insurance policy as per law laid down in case Post Master, Main Post Office, Sangrur and others vs. Indra Devi-II(2014)CPJ-5A(CN)(Punjab State Consumer Disputes Redressal Commission, Chandigarh). Ratio of this case fully applicable to the facts of the present case and as complainant has not mis-represented the facts at all at the time of purchase of the insurance policy and as such, repudiation of claim in view of clause 4.1 of Ex.R1 is not justified.

10.              So, complaint deserves to be allowed with compensation and litigation costs.

11.              Therefore, as a sequel of the above discussion, the present complaint allowed with directions to Ops to consider the medi-claim of complainant and pay him such amount as is due to him as per terms of the policy within 30 days from the date of receipt of copy of this order. Compensation of Rs.20,000/- and litigation costs of Rs.5,000/- also allowed in favour of complainant and against Ops. Payment of the assessed amount will be made within 30 days of assessment, failing which, complainant will be entitled to interest @8% per annum from today onwards till recovery. Copies of orders be supplied to the parties free of costs as per rules.

12.                        File be indexed and consigned to record room.

 

 

(Babita)                                   (Sat Paul Garg)                            (G.K.Dhir)

 Member                                   Member                                       President

Announced in Open Forum

Dated:07.09.2015

Gurpreet Sharma.