Nidhi Verma, Member;

1        The present complaint has been received from the District Consumer Disputes Redressal Commission Amritsar by the order of the Hon’ble State Consumer Disputes Redressal Commission Punjab, Chandigarh for its disposal.

2        The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 12 and 14 against the opposite parties on the allegations that  the complainant for the securing life of himself as well as of his family, purchased one Medical Insurance policy of floater sum insured Rs. 5,00,000/- from the opposite party No. 1 & 2, having policy No. 401208/48/14/8500000185 under the Bank of India National Swasthya Bima Policy for the period 13-06-2015 to 12-06-2016 against valuable consideration i.e. after paying premium. The complaint is regularly renewing his medical policy from opposite parties No.1 and 2 from time to time. Earlier in the month of November 2013, complainant was blessed with another son namely Parth, whose request for endorsement in the Policy in force at that time was immediately made and later on was duly endorsed in the medical Policy on 20-02-2014 having policy No.401208/48/13/8500000325 and valid upto 12-06-2014, without any additional/extra charge.  In the month of December 2015, minor son namely Parth who was insured under the said policy was hospitalized in Narayana Institute of Cardiac Sciences, Bangalore for the treatment of his heart Ventricular Septal defect and other heart related problems. The said child at the age of 2 years undergone treatment for the period 05-12-2015 to 16-12-2015 and had undergone various medical treatments and surgery and in total expenses to the extent of Rs. 2,83,093/- were spent on his surgery, medicines, hospitalization in the said hospital and later on an amount of Rs. 9,286/- were spent on other medical treatments. In the month of February 2016 for regular checkup of child Echo was done at Deep Hospital Amritsar where an additional amount of Rs. 2500/- was spent by the complainant.  Since minor child of the complainant fell ill during the validity period of the said insurance policy and for that complainant and his family was medically insured with opposite parties No. 1 and 2 and as such complainant submitted the medical claim of his son with the opposite parties along with all the requisite documents which were duly received by Opposite parties. As per the existing medical policy the complainant is legally entitled to the expenses which were incurred by him during the medical treatment of his minor son for the treatment of his son. Earlier complaint send the Medical Bills in December 2015 to the tune of Rs. 2,92,379/- and since said medical policy also cover the post hospitalization expenses for 60 days as such complainant is legally entitled to the additional amount of Rs. 2500/- which was spent on Echo in February 2016 at Deep Hospital. The opposite parties are legally bound to pay this medical claim to the complainant but instead of making the payment of this medical claim, the opposite party in a wrong and illegal way repudiated the claim of the complainant vide order dated 15.2.2016 stating that disease of his son is pre-existing and as such said claim falls under the exclusion clause of 4.1 of the said medical policy. Since the age of three months said child is endorsed in the Medical Policy at the time of endorsement. The complainant at the time of birth of said minor child namely Parth lodged the claim of Maternity Benefits which was duly covered under the said Policy and were to be paid only if the child was healthy and was not suffering from any ailment or disease and said Maternity Benefits and baby care expenses, after scrutinized the discharge summary by the Opposite parties, were duly credited in the account of Complainant by the Opposite Parties. The child was healthy and was not suffering from any disease or ailment at the time of his birth. Earlier said Child namely Parth was Hospitalized in the month of September 2014 (at that time age of child was 9 months) during the continuation of the Policy Number 401208/48/14/8500000210 with validity period 13-06-2014 to 12-06-2015 and at that time also the claim of the complainant was repudiated by the opposite parties by applying Exclusion Clause 4.3 stating that child is suffering from Congenital Heart Disease and policy does not cover the said disease for first 12 months from date of inception of policy. At that time no such plea of pre-existing was taken by the Opposite Parties. The claimant at that time filed Complaint before this Commission which was allowed and that order was challenged by the Opposite Parties in State Commission, Punjab. During the pendency of the said complaint before State Commission, child undergone second surgery and on account of Grudge towards the Complainant, the Claim of the claimant was wrongly repudiated by the Opposite parties by applying Exclusion Clause 4.1 stating that Disease is pre-existing. During the first time repudiation of claim no such plea of pre-existing was taken by the Opposite parties. The same disease which was earlier referred as Congenital Internal Disease now has been referred as Pre-existing arbitrarily by the opposite parties whereas the case of the complainant does not falls under the definition of Pre-existing disease because first time when the child was underwent treatment was in September  2014 whereas said Child was already covered under the Policy in month of February 2014 itself as stated above. The said Child was never treated nor diagnosed even does not receive any Medical Advice at any time before endorsing in the Policy in the month of February 2014 and as such the clause of Pre-existing does not apply in this case. The claim of the complainant does not fall within any such exclusion clauses. It seems that Opposite parties are in habit of repudiating the claims by applying the exclusion clause according to the own choice to safeguard their interest and to harass its customers as neither any such conditions are explained to complainant nor complainant has ever signed on any such terms and conditions. Earlier the claim was repudiated vide repudiation letter dated 27-11-2014 stating that claim is barred for first 12 months due to exclusion clause No. 4.3 as ailment of the child was referred as Congenital Internal Disease and when the child has been referred to surgery for same ailment opposite parties for their own convenience has referred to the ailment as pre-existing as it was well within the knowledge that now exclusion clause 4.3 cannot be applied on the reason that child was of 2 years of age and moreover the policy was continue 20-02-2014 and a period of 22 months has elapsed for the said child and as such opposite parties wrongly repudiated the claim of the claimant by applying exclusion clause no. 4.1 referring as Pre-existing disease. The complainant has prayed the following reliefs:-

(i)      To give direction to the opposite parties to pay the medical claim Rs.2,94,879/ (Rs. 2,92,379 + Rs. 2500/-) to the complainant along with interest from date of entitlement till date of realization.

(ii)     To direct the opposite parties to pay compensation of Rs. 50,000/- to complainant for causing mental agony and harassment.

(iii)    To direct the opposite parties to pay litigation expenses of Rs. 15,000/- to complainant.

3        After formal admission of the complaint, notice was issued to Opposite Parties and opposite parties No. 1 and 2 appeared through counsel and filed written version and contested the complaint by interalia pleadings that the complainant is estopped by his own act and conduct to file the present complaint and the present complaint is not maintainable under law.  The complainant does not fall within the ambit of consumer under section 2 of CP Act. No cause of action has been arisen to the complainant to file the present complaint as the averments of the present complaint does not depict any consumer dispute between the parties. The complainant has not come to this commission with clean hands and has suppressed the material facts from this commission. The complainant has already filed an application before the insurance ombudsman and an award dated 06/10/2016 has been passed by the said authority in which it has been held that the application before the said authority is untenable and the complaint of the present complainant accordingly and is disposed of accordingly and thereafter the complainant has again approached this commission for the same cause of action without disclosing the said material fact.  The present complaint is a fit case where this commission shall take stringent action against the complainant as envisaged under section 26 of Consumer Protection Act 1986, as amended upto date as the same is frivolous qua O.P.  Since as per the allegations of the complainant in the complaint, the matter in dispute require lengthy and detailed evidence/detailed trial to prove either way, the present matter cannot be disposed of in summary trial under 'act' ibid as the allegations are of complex and complicated nature. This matter can only be tried by the civil court.  The complainant has lodged his claim with the opposite parties No. 1, 2 and the medical record of the son of the complainant is duly scrutinized and processed by the opposite party No.3 and found that the said record contains earlier the particulars of same ailment, the earlier claim of which has already been repudiated by the opposite parties Nos. 1 and 2, which has been raised by the complainant during the tenure of previous insurance policy and thereafter a complaint has been filed by the complainant before this commission challenging the said repudiation of opposite parties No. 1, 2 and presently the matter has been pending before Hon'ble State Commission, Chandigarh for adjudication and presently after availing the opportunity before the insurance ombudsman, Chandigarh, when no relief has been got by the complainant from the said authority with regard to the matter in question. Thereafter without disclosing the said fact to this commission, the complainant has filed the present complaint with ulterior motive. Even the matter which is pending before this commission for adjudication is directly co-related to the matter in question as the complainant has raised the medical expenses of the same ailment in the present complaint. The insurance is subject to terms and conditions of the policy and the same are having legally binding force between the parties to the contract of insurance and if there is any violation of terms and conditions, then the claim has to be decided accordingly and in the present case keeping in view of the terms and conditions as mentioned in exclusion clause 4.1 of the said medical policy, which is reproduced hereunder:

4.1 "Benefits for pre-existing diseases will not be available for any conditions as defined in the policy until 36 months of continuous coverage has elapsed since inception of the first policy with us."

The son of the complainant who was endorsed in the policy on 20/02/2014, which was valid upto 12/06/2014 at that time. So certainly the son of the complainant falls within the ambit of exclusion clause 4.1 as mentioned above. Earlier claim of the son of the complainant has been repudiated as he was suffering with congenital internal disease and falls within the ambit of clause 4.3. In the definition of exclusion clause 4.3., it has been clearly mentioned that the diseases mentioned in the exclusion clause 4.3. If pre-existing will be covered only as per provisions of exclusion clause 4.1 above. So, both these clauses are interconnected and applied as per the facts of the present case. The medical expenses on the ailment of the complainant's son is in continuation and of same ailment for which the earlier claim has been raised by the complainant and repudiated by the replying opposite parties and uptill the adjudication of the same subject matter by the Hon'ble State Commission, Chandigarh, no fresh complaint is maintainable before this Commission with regard to the continuation of same cause of action. The claim of the complainant is rightly repudiated keeping in view the terms and conditions of the policy. The clause of 4.1 of the insurance policy is rightly applicable to the facts of the present case and it has no bearing with respect to the fact that maternity benefits have been paid by the opposite parties No. 1, 2 to the complainant. The opposite parties No. 1 and 2 have denied the other contents of the complaint and prayed for dismissal of the same.

4        Notice was issued to the opposite party No. 3 and it was duly served but it opted not to come forward to contest the complaint and consequently, the opposite party No. 3 was proceeded against ex-parte

5        To prove his case, the complainant has tendered in evidence his affidavit Ex. C-1, copy of the policy for the period 13.6.2013 to 12.6.2014 Ex. C-2, copy of policy for period from 13.6.2014 to 12.6.2015 Ex. C-3, copy of policy for the period from 13.6.2015 to 12.6.2016 Ex. C-4, copy of the policy for the period from 13.6.2016 to 12.6.2017 Ex. C-5, copy of terms and conditions obtained from the internet Ex. C-6, copy of the complete medical record including discharge summary Ex. C-7, copy of the letter written to officer in charge of Park Mediclaim alongwith endorsement duly received Ex. C-8, copy of the letter dated 15.2.2016 regarding the repudiation obtained Ex. C-9, copy of bill of expenses occurred on the treatment Ex. OP-10, copy of the claim form submitted and duly received Ex. C-11, copy of the earlier repudiation letter dated 27.11.2014 Ex. C-12 and closed the evidence.  Ld. counsel for the opposite parties tendered in evidence affidavit of Sh. Dheeraj Seth Divisional Manager Ex. OP1, 2/1, copy of insurance policies Ex. OP1,2/2 to OP1, 2/5, copy of terms and conditions of the policy Ex. OP1,2/6, copy of ombudsman order Ex. OP1,2/7, repudiation letter Ex. OP1,2/8 and closed the evidence.

6        We have heard the Ld. counsel for the complainant and opposite parties No. 1, 2 and have gone through the record on the file.

7        In the present complaint, the complainant for the securing life for himself as well as of his family , purchased one medical insurance policy of floater sum insured Rs 500,000/- of the OP No.1 & 2 , having policy no 401208/48/8500000185 under the Bank of India  National Swasthya Bima Policy for the period 13.06.2015 to 12.06.2016 . In the month of November 2013, complainant blessed with baby boy namely Parth, his son endorsed in the medical policy on 20.02.2014 having policy no . 401208/13/8500000325 and valid upto 12.06.2014 without any extra charge. In the month of December 2015, minor son Parth , was hospitalized in Narayana Institute of Cardiac Science, Banglore for the treatment of his heart ventricular septal defect and other heart related problems , he undergone the treatment from 05.12.2015 to 16.12.2015 and total expenses incurred are Rs 2,83,093/- and later Rs 9,286/- were spent on other medical treatment. In the month of February 2016 for regular checkup of child ECHO  was done at Deep Hospital Amritsar and spent Rs 2500/- . Later the complainant submitted the medical claim of his son with the Ops along with requisite documents which were duly received by OP. On dated 15.02.2016 Ops repudiated the claim stating that disease of his son is pre existing and as such said claim falls under the Exclusion Clause of 4.1 of the said medical policy.  The complainant at the time of birth of said minor child namely Parth lodged the claim of Maternity benefits which was duly covered under the said policy and were to be paid only if the child was healthy and was not suffering from any ailment or disease and said maternity benefits and baby care expenses were duly credited in the account of the complainant by the Ops . Further, said child was hospitalized in the month of September 2014 (at that time age of child was 9 months ) during the continuation of the policy number 401208/48/14/8500000210 with validity period 13.06.2014 to 12 06.2015 and at that time also the claim of the complainant was repudiated by the Ops by applying exclusion clause 4.3 stating that the child is suffering from congenital heart disease and policy does not cover the said disease for first 12 months from date of inception of policy. At that time no such plea of pre existing was taken by the Ops . Op No. 1 & 2 stated in their written version that the claim of the complainant is rightly repudiated keeping in view the terms and conditions of the policy. The clause 4.1 of the insurance policy is rightly applicable to the facts of the present case and it has no bearing with respect to the facts that maternity benefits have been paid by the Ops to the complainant. Moreover, earlier claim was repudiated on exclusion clause 4.3 and the claimant at that time filed complaint before this Forum which was allowed  vide it’s order dated 21/6/2016 and that order was challenged by the Ops in State Commission , which was reversed by the order dated 29/12/20016 . It is pertinent to mention here that earlier claim of the son of the complainant has been repudiated as he was suffering with congenital internal disease and falls within the ambit of clause 4.3. In the definition of exclusion clause 4.3 , it has been clearly mentioned that the diseases mentioned in the exclusion clause 4.3 . If pre existing will be covered only as per provisions of exclusion clause 4.1 . So both these clauses are interconnected and applied as per the facts of the present case.

The terms and conditions as mentioned in exclusion clause 4.1 of the said medical policy :-

4.1 “ benefits for pre existing diseases will not be available for any conditions as defined in the policy until 36 months of continuous coverage has elapsed since inception of the first policy with us.”

We have gone through pleading of the parties, perused the record and heard the argument of the learned counsel for the parties. There is no dispute between the parties that the respondent purchased the medi claim policy from the OP , It is also not denied by the OP that the respondent son was hospitalized in Narayana Institute of Cardiac Science Banglore and undergone treatment for the period 05.12.2015 to 16.12.2015  and had undergone various medical treatments and surgery . There is also no dispute regarding the expenses of treatment which were incurred by the respondent.

8        The only dispute between the parties are of pre-existing disease that whether the respondent was suffering from the disease before the purchase of the policy for the period 20.02.2014 to 12.06.2014 and whether he concealed this fact at the time of purchase of the policy from the OP. The Ops have not produced any evidence to prove that before the purchase of the policy, the son of the complainant had taken any treatment from the doctor or any hospital and the complainant had the knowledge that his son was suffering from the heart disease and he has concealed this fact from the Ops at the time of issuance of the medi claim policy. The Hon’ble Supreme Court in the case of “LIC vs GM chanabasamma”,1991(1) SCC357, Has held that the burden of proving that the insured had made false statement and suppressed material facts is on the insurance company. In the present case the insurance company has produced no evidence on record to prove alleged pre existing disease.  In the present case there is no evidence on record to show that the respondent had ever taken any treatment for alleged pre existing disease prior to taking mediclaim policy from the insurance company. Moreover, earlier said child namely Parth was hospitalized in the month of September 2014 ( at that time age of child was 9 months) during the continuation of the policy number 401208/14/8500000210 with validity period 13 .06.2014 to 12.06.2015 and at that time also the claim of the complainant was repudiated by the OP by applying Exclusion Clause 4.3 stating that child is suffering from congenital heart disease and policy does not cover the said disease for first 12 months from the date of inception of policy. It is pertinent to mention here that, at that time no such plea of pre existing was taken by the OP. Further, the Ops were well known of the disease of the complainant’s son Parth and they know the fact that , they may repudiate the future claim if any claim apply by the complainant related to the same disease , so it must be the duty of the OP  to convey such facts to the complainant regarding the continuation of the policy and let the complainant decide to switch the policy with other insurance company or may not continue it’s child name in the policy, as if his son is not covering under the claim of the disease then why should the complainant pay for the policy. Repudiating the claim by the Ops on one ground to another is not justified.  The son of the complainant was born on November 2013 and his name was endorsed in the policy on dated 20.2.2014. The opposite party has also failed to place on record any cogent document which shows that during these three months the son of complainant namely Parth has taken any treatment from any hospital. So how the opposite parties have reached to the conclusion that he is suffering from pre-existing disease. Earlier O.Ps repudiated the claim on Exclusion Clause 4.3 and when same Exclusion Clause was not applied then they repudiated the second claim on Exclusion Clause 4.1 , it seems like insurance company is interested only in having policy premium and at the time of playback the claim opposite party repudiate the claim on one ground to the other without any evidence. The Hon’ble National Commission in the case of “LIC Vs Joginder Kaur and others”, 2005(2) CLT 229 has clearly held that in the absence of any reasonable inquiry and in the absence of any reasonable evidence the insurance company was not correct in repudiating the claim under the policy.  In view of the above discussion it is pertinent to mention here that no material information was concealed by the insured at the time of taking the policy , the claim was wrongly repudiated by the OP on a frivolous ground for which they did not have any evidence.

9        In view of the above discussion, the present complaint is allowed and the opposite parties No. 1 and 2 are directed to make the payment of Rs. 2,94,879/-  to the complainant. The complainant has also been harassed by the opposite parties No. 1, 2 for a long time, as such the complainant is also entitled to Rs. 10,000/- as compensation on account of harassment and mental agony and Rs 7,500/- as litigation expenses. Opposite Parties No. 1, 2 are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of filing the present complaint till its realisation.  The present complaint against the opposite party No. 3 is dismissed. Copy of order be supplied by the District Consumer Disputes Redressal Commission, Amritsar as per rules. File be sent back to the District Consumer Disputes Redressal Commission, Amritsar.

Announced in Open Commission

15.11.2022