Chandigarh

DF-I

CC/119/2023

GGEETIKA SHARADA - Complainant(s)

Versus

NIVA BHUPA HEALTH INSUREANCE COMPANY LTD. - Opp.Party(s)

02 Feb 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-I,

U.T. CHANDIGARH

                                     

Consumer Complaint No.	:	CC/119/2023
Date of Institution	:	01/03/2023
Date of Decision	:	02/02/2024

Ggeetika Sharda wd/o Aditya Sharda r/o House No.1185, Sector 15, Panchkula, presently residing at House No.1006-Golden Sand Apartments, Dhakoli (Punjab).

… Complainant

V E R S U S

1. Niva Bupa Health Insurance Company Ltd. through its Managing Director, C-98, 1^st Floor, Lajpat Nagar, Part-1, New Delhi 110024.
2. Niva Bupa Health Insurance Company Ltd., through its Managing Director, SCO No.84-85, 2^nd Floor, Sector 8-C, Madhya Marg, Chandigarh through its Branch Office at Chandigarh.
3. Paras Hospitals, Plot No.H-2, HSIDC, Technology Park, Sector 22, Near Nada Sahib Gurdwara, Panchkula, Haryana 134109.

… Opposite Parties

CORAM :	SHRI PAWANJIT SINGH	PRESIDENT
	SHRI SURESH KUMAR SARDANA	MEMBER

 

                                                                               

ARGUED BY	:	Sh. Ravindra Jain, Advocate for complainant
	:	Sh. Gaurav Bhardwaj, Advocate for OPs 1 & 2
	:	OP-3 ex-parte.

Per Pawanjit Singh, President

1. The present consumer complaint has been filed by Ggeetika Sharda, complainant against the aforesaid opposite parties (hereinafter referred to as the OPs).  The brief facts of the case are as under:-

1. It transpires from the allegations as projected in the consumer complaint that on 21.7.2020, late husband of the complainant namely Sh.Aditya Sharda (hereinafter referred to as “DLA”) had obtained a medical health insurance policy from OP-1 for himself, his wife (complainant) and his minor son, Aarav Sharda and got the same continuously renewed annually.  The first policy was valid w.e.f. 21.7.2020 to 20.7.2021 (Annexure C-1) which was thereafter got renewed w.e.f. 17.7.2021 to 20.7.2022 (Annexure C-2).  Finally, the aforesaid policy was renewed w.e.f. 19.7.2022 to 20.7.2023 (Annexure C-3) (hereinafter referred to as “subject policy”) on payment of premium of ₹17,948/-.  The DLA and all other family members were having good health condition and the DLA was regularly going to his job and enjoying work.  However, on 28.10.2022, the DLA felt headache and he approached Dr. Vikas Sandhir at Chandigarh, who after diagnosis advised some tests and further follow up vide prescription slip dated 28.10.2022 (Annexure C-4). The said tests were got conducted from Dr. Lal Path Labs and copies of reports are Annexure C-5. However, in order to get second opinion, DLA again got the tests conducted from Aggarsain Charitable Diagnostic & Healthcare Centre, Panchkula on 1.11.2022 and the reports are Annexure C-6. Thereafter the DLA approached the doctor who referred him to hospital. Accordingly, on 12.12.2022, DLA was admitted in Alchemist hospital, wherein again medical check-up and tests were conducted and the DLA for the first time was detected with CKD (Chronic Kidney Disease) for which he was medically treated.  During investigation, it was found that the aforesaid hospital was not empaneled with OP-1/insurer and accordingly the DLA was discharged on 14.12.2022 as per discharge summary (Annexure C-7).   However, on the same day, DLA was again admitted in the Paras Hospitals, Panchkula who charged an amount of ₹1,000/- vide receipt (Annexure C-8). During investigation/query raised by the TPA department, Dr. Navjit Singh Sidhu, Associate Director Nephrology, had opined that it was likely that hypertension was the vital cause of CKD and acute kidney illness, which occurred in 2022 and caused acute kidney injury, which made it clear that first time CKD as alleged has occurred in October 2022. The complainant made requests for cashless reimbursement of the amount of ₹7,40,694/- out of which ₹3,10,694/- was already paid, but, the same was not reimbursed.  Unfortunately, DLA expired in the hospital on 29.12.2022 due to poor treatment by the hospital as well as by not providing the proper financial help to the family of the DLA by the OP/insurer.  The cashless proposal was sent to the OP through authorised representative and earlier they had approved only a sum of ₹1,07,500/- out of ₹1,67,500/-, but, even the said approved amount has not been released to the complainant.  On 30.12.2022 (Annexure C-12) complainant received an email regarding notice of cancellation of the subject policy alleging that the medi-claim/reimbursement claim has been declined on the ground that there has been non-disclosure of pre-existing illness/medical conditions at the time of applying for health insurance policy.  It is further alleged that, in fact, OPs 1 & 2 have wrongly cancelled the subject policy on the ground that the DLA was suffering from pre-existing disease which was not disclosed at the time of obtaining the policy even without verifying the fact of pre-existing disease from the treating hospitals.  Even there is no document which shows that the DLA was having any illness prior to 28.10.2022.  In this manner, the aforesaid acts of the OPs amount to deficiency in service and unfair trade practice. OPs were requested several times to admit the claim, but, with no result.  Hence, the present consumer complaint.
2. OPs 1 & 2 resisted the consumer complaint and filed their written version, inter alia, taking preliminary objections of maintainability, cause of action, concealment of facts and jurisdiction.  However, it is admitted that the health insurance policy was issued to the DLA and his family members which was renewed annually and the subject policy was valid w.e.f. 21.7.2022 to 20.7.2023.  It is alleged that, in fact, DLA had history of CKD since June 2020, which is prior to policy inception and the said fact was suppressed by him at the time of obtaining the policy, which amounts to fundamental breach of the terms and conditions of the policy as the said disease i.e. CKD was even verified by the investigator of the OP and copy of pre-auth denial letter is Annexure OP/4.  It is further alleged that on the grounds of mis-representation, non-disclosure of material facts and fraud by the DLA, notice for cancellation of the subject policy was issued and the consumer complaint of the complainant, being not maintainable, is liable to be dismissed.  On merits, the facts as stated in the preliminary objections have been reiterated. The cause of action set up by the complainant is denied.  The consumer complaint is sought to be contested.
3. OP-3 did not turn up before this Commission, despite proper service, hence it was proceeded against ex-parte vide order dated 10.5.2023.
4. In rejoinder, complainant re-asserted the claim put forth in the consumer complaint and prayer has been made that the consumer complaint be allowed as prayed for.

2. In order to prove their case, contesting parties have tendered/proved their evidence by way of respective affidavits and supporting documents.
3. We have heard the learned counsel for the contesting parties and also gone through the file carefully, including written arguments.
   1. At the very outset, it may be observed that when it is an admitted case of the parties that the DLA had obtained the subject policy for the first time in the year 2020  which was valid w.e.f. 21.7.2020 to 20.7.2021 (Annexure C-1) and the same was renewed annually vide policies (Annexure C-2 & C-3) and on 28.10.2022 he fell ill and was referred to  nephrologist by the treating doctor, as is also evident from Annexure C-4, and thereafter he was admitted in the Alchemist Hospital where he remained admitted from 12.12.2020 to 14.12.2020 and was diagnosed with chronic kidney disease and thereafter he was shifted to Paras Hospitals where he remained admitted w.e.f. 14.12.2022 to 29.12.2022 and ultimately died, and the claim lodged by the complainant was repudiated/rejected by the contesting OPs and notice for cancellation of the policy was also issued to the complainant on the ground that the DLA had not disclosed about the pre-existing disease from which he was suffering prior to the inception of the subject policy, the case is reduced to a narrow compass as it is to be determined if the contesting OPs/insurer are unjustified in repudiating/rejecting the genuine claim of the complainant and the complainant is entitled to the reliefs prayed for in the consumer complaint, as is the case of the complainant or if the contesting OPs/insurer have rightly rejected/ repudiated the claim of the complainant and consumer complaint of the complainant, being not maintainable, deserves to be dismissed, as is the defence of OPs.
   2. In the backdrop of the foregoing admitted and disputed facts on record, one thing is clear that the entire case of the parties is revolving around the medical record and the repudiation letter and the same are required to be scanned carefully to determine the real controversy between the parties.
   3. Annexure C-7 is the discharge summary which indicates that, at the time of admission on 12.12.2022, DLA was diagnosed as k/c/o Chronic Kidney Disease Stage 5, hypertension and COVID-19 disease in 2020 and he had symptoms of shortness of breath and was treated there for kidney ailment etc. 
   4. Annexure C-9 is the certificate issued by Dr. Navjit Singh Sidhu, Associate Director – Nephrology of Paras Hospitals and the relevant portion of the same is reproduced below for ready reference :-

“It is likely that hypertension is the initial cause of CKD and an acute febrile illness which occurred in October 2022 caused an Acute Kidney Injury (over and above the initial mild or underlying CKD) and this AKI was irreversible and resulted in CKD (stage 5), as his serum creatinine was 7.4 mg/dl at that time. (It must be understood that 20% of AKI do not reverse and resulted in permanent CKD).”

5. Annexure C-11 is death summary, which indicates the cause of death “sepsis with septic shock” with past history of hypertension on medication, history of CKD on medical management. The relevant portion of the death summary is reproduced below for ready reference :-

       “Cause of death : Sepsis with Septic Shock

        History of Present illness:

        Patient K/C/O CKD developed above said complaints. Initially he was admitted at Alchemist Hospital Panchkula and was managed conservatively.  Patient underwent 2 session of hemodialysis, last HD done on 13/12/2022. Patient later on took LAMA and came to Paras Hospital for further evaluation and management.

        Past Medical History :

        History of hypertension on medication

        History of CKD on medical management.”

 

6. The only document, having been relied upon and emphasized by the OPs, to counter the case of the complainant and in order to prove that the DLA was suffering from pre-existing disease and due to the non-disclosure of the said disease by the DLA before obtaining the subject policy, is Annexure OP/3 issued by Paras Hospitals to the investigator deputed by the contesting OPs which refers the past history of the patient (at page 97) as under :-

       1.    HTN x 2 yrs                 

2.    CKD x (June 2020)

3.    COVID (2020)

7. Annexure C-16 is the copy of email dated 1.2.2023 through which the claim of the complainant was repudiated and notice for cancellation of the subject policy was issued on the ground of non-disclosure of pre-existing disease i.e. K/C/O CKD Stage V since June 2020, HTN since 2 years and post COVID in 2020.
8. Learned counsel for the complainant contended with vehemence that as the contesting OPs have failed to prove on record that the DLA was suffering from pre-existing disease i.e. CKD since June 2020, rather it has come on record that he had suffered from the said disease only in the month of October 2022 i.e. during the currency of the subject policy, there was no question of disclosure of the aforesaid disease by the complainant before obtaining the subject policy, especially when the DLA was not having any health issue qua the said disease and the consumer complaint be allowed as prayed for.
9. On the other hand, learned counsel for the contesting OPs contended with vehemence that as it stands proved on record from the certificate issued by the Paras Hospitals to the investigator (Annexure OP-3) that the DLA was suffering from chronic kidney disease since June 2020 and the said fact was not disclosed by him before obtaining the subject policy, the contesting OPs have rightly repudiated the claim of the complainant and have also issued notice for cancellation of the subject policy.
10. However, there is no force in the contention of the learned counsel for the contesting OPs as the certificate (Annexure C-9) issued by Dr. Navjit Singh Sidhu has specifically mentioned that it was likely that hypertension was the initial cause of CKD and acute febrile illness which had occurred in October 2022 and caused acute kidney injury (over and above the initial mild or underlying CKD) and this AKI was irreversible resulted in CKD stage 5, as his serum creatinine was 7.4 mg/dl at that time, making it clear that the DLA had suffered from the aforesaid disease in October 2022 only and the simple reference in the certificate (Annexure OP-3) about the CKD history since June 2020 is of no help to the OPs since the said certificate by the medical officer has not been proved by the OPs with cogent evidence either by examining the said medical officer who had opined about the said history or by tendering the certificate/affidavit of the aforesaid medical officer, especially when it has come on record that both Annexure OP-3 and Annexure C-9 have been issued by the same hospital i.e. Paras Hospitals, Panchkula and Annexure C-9 has been issued by the Associate Director – Nephrology, Dr. NS. Sidhu of the said Hospital.
11. It has also been held by our own Hon’ble State Commission, UT, Chandigarh in the case of Manish Goyal Vs. Max Bupa Health Insurance Company Limited & Ors., 2018 (2) CLT 205 as under :-

A. Consumer Protection Act, 1986 Section 2(1)(g) Insurance claim - Rejected - On ground that insured not disclosed the pre existing disease and Doctor recorded the past history of illness - Held, opposite parties failed to produce on record any document to show that the insured was still suffering from the said disease - Opposite parties further failed to get information from the hospital, as to whether the doctor who recorded the past history recorded such information on the basis of the information given by the insured or her relative or some medical prescriptions were consulted - It was the duty of the opposite parties to prove who supplied this information to the hospital and also to conduct a thorough enquiry about the previous treatment of alleged epilepsy or tuberculosis obtained by complainant - However, no such enquiry was conducted- Even the affidavit of the Doctor who recorded the said history had not been produced on record - So, merely on basis of past history mentioned in the Patient Admission Record, prepared by Hospital, it could not be held that insured was suffering from epilepsy or tuberculosis at the time of taking the policy and she had intentionally concealed the said material fact. Complaint partly allowed.”

12. Thus, one thing is clear from the medical record/evidence led by both the parties that the DLA had suffered CKD stage V only in the month of October 2022 as is the case of the complainant and not in the month of June 2020, as is the defence of the OPs, especially when it has further come on record that the DLA was also diagnosed with history of COVID and also that nothing has come in Annexure OP-3 that he suffered from COVID prior to or after obtaining the subject policy.
13. So far as the defence of the contesting OPs that the DLA was also suffering from hypertension is concerned, it has been held by the Hon’ble State Commission, Delhi, in the case titled S.S. Jaspal Vs. National Insurance Co. Ltd. & Ors., IV (2022) CPJ 26 (Del.) that common lifestyle disease like diabetes and hypertension, cannot be treated as pre existing diseases and cannot be a ground of repudiation of claim by Insurance companies. The relevant portion of the order is reproduced as under :-

 “Consumer Protection Act, 1986 - Sections 2(1)(g), 14(1)(d), 15 - Insurance (Mediclaim) -Angioplasty and Stenting - Suppression of pre-existing disease alleged - Repudiation of claim Deficiency in service - District Forum dismissed Complaint - Hence Appeal - Complainant experienced pain in chest and remained admitted in Hospital from 24.6.2004 to 30.6.2004, where he had undergone Angioplasty and Stenting, by incurring Rs.3,20,126 on treatment - Previous medical history is based upon information provided by family of patient - Respondents failed to show any evidence regarding pre-existing disease suffered by insured at time of getting policy - Common lifestyle disease like diabetes and hypertension, cannot be treated as pre existing diseases and cannot be a ground of repudiation of claim by Insurance companies - Respondents failed to show any evidence that any medical tests or examination was done, before issuing said policy in question - Respondents are directed to pay a sum of Rs.3,20,126 (Cost of Medical Expenses) to Appellant along with interest @ 6% p.a.”

14. Similarly, the Hon’ble National Commission in the case titled Sunil Kumar Sharma v. Tata AIG Life Insurance Company and Ors., Revision Petition No.3557 of 2013 decided on 1.3.2021, while dealing with the issue of pre-existing disease, has held as under:-

“14.   Moreover the claim had been repudiated only on the ground that the insured was suffering from diabetes for a long time. So far as life style diseases like diabetes and high blood pressure are concerned, Hon'ble High Court of Delhi in Hari Om Agarwal Vs. Oriental Insurance Co. Ltd., W.P.(C) No.656 of 2007, decided on 17.09.2007 held as under:

"Insurance – Mediclaim -Reimbursement-Present Petition filed for appropriate directions to respondent to reimburse
expenses incurred by him for his medical treatment, in accordance with policy of insurance - Held, there is no dispute that diabetes was a condition at time of submission of proposal, so was hyper tension - Petitioner was advised to undergo ECG, which he did - Insurer accepted proposal and issued cover note. It is universally known that hypertension and diabetes can lead to a host of ailments, such as stroke, cardiac disease, renal failure, liver complications depending upon varied factors. That implies that there is probability of such ailments, equally they can arise in non-diabetics or those without hypertension. It would be apparent that giving a textual effect to Clause 4.1 of policy would in most such cases render mediclaim cover meaningless. Policy would be reduced to a contract with no content, in event of happening of contingency. Therefore Clause 4.1 of policy cannot be allowed to override insurer's primary liability. Main purpose rule would have to be pressed into service. Insurer renewed policy after petitioner underwent CABG procedure. Therefore refusal by insurer to process and reimburse petitioner's claim is arbitrary and unreasonable. As a state agency, it has to set standards of model behaviour; its attitude here has displayed a contrary tendency. Therefore direction issued to respondent to process petitioner's claim, and ensure that he is reimbursed for procedure undergone by him according to claim lodged with it, within six weeks and petition allowed."

15. In view of the foregoing, when it is clear that OPs 1 & 2/insurer have failed to prove that DLA was suffering from CKD prior to purchasing/inception of the subject policy, rather it has come on record that the DLA suffered from the same only during the currency of the subject policy in October 2022, it is unsafe to hold that the OPs 1 & 2/insurer were justified in repudiating/rejecting the claim of the complainant and accordingly the present consumer complaint deserves to succeed.
16. Now coming to the quantum of relief to be awarded in the instant case, since the complainant has proved the bills (Annexure C-17 colly.) amounting to ₹7,40,694/-, OPs 1 & 2/insurer are liable to pay the said amount alongwith interest and compensation etc. for the harassment caused to her.

4. In the light of the aforesaid discussion, the present consumer complaint succeeds, the same is hereby partly allowed and OPs 1 & 2 are directed as under :-

1. to pay ₹7,40,694/- to the complainant alongwith interest @ 9% per annum from the date of repudiation of the claim i.e. 1.2.2023 onwards.
2. to pay ₹30,000/- to the complainant as compensation for causing mental agony and harassment;
3. to pay ₹10,000/- to the complainant as costs of litigation.

5. This order be complied with by OPs 1 & 2 within forty five days from the date of receipt of its certified copy, failing which, the payable amounts, mentioned at Sr.No.(i) & (ii) above, shall carry interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
6. Since no deficiency in service or unfair trade practice has been proved against OP-3, the consumer complaint against it stands dismissed with no order as to costs.
7. Pending miscellaneous application(s), if any, also stands disposed of accordingly.
8. Certified copies of this order be sent to the parties free of charge. The file be consigned.

02/02/2024 hg	Sd/- [Pawanjit Singh] President
	Sd/- [Suresh Kumar Sardana] Member