Delhi

North East

CC/214/2014

Gajender Singh Tyagi - Complainant(s)

Versus

O.I.C. - Opp.Party(s)

09 Jan 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 214/14

 

In the matter of:

 

	Gajender Singh Tyagi D-4, Kiran Garden Uttam Nagar New Delhi -110059	Complainant
	Versus
1	Oriental Insurance Company Ltd. DO-29 88 Ground Floor Janpath New Delhi -110001	Opposite Party

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

12.06.2014 07.01.2019 09.01.2019

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The facts germane in the present complaint had culled out by the complainant are that he had purchased Mediclaim policy from OP bearing no. 272900/48/2013/12892 w.e.f. 30/1/2013 to 29/01.2014 for himself and his wife for a total sum coverage of    Rs. 5,00,000/- by paying premium of Rs. 6,830/-. The said policy was given by OP after proper medical of examination of complainant and to its satisfaction. However, the complainant felt chest pain on 02.10.2013 and was taken to a nearby hospital namely Mahindru Hospital adjacent to his house where he was referred to Mata Chanan Devi Hospital (MCDH) for further management. However, the cardiac unit of the said hospital was under renovation and the complainant was further referred to Sir Ganga Ram Hospital (SGRH). The complainant incurred expenditure of Rs. 42,458/- at MCDH and Rs. 5,000/- on ambulance charges from MCDH to SGRH. After angiography, the complainant was admitted at SGRH on 03.10.2013 and was diagnosed with acute case of infero Lateral Wall Myocardial Infarction (blockage in heart valve). The complainant underwent PTCA + Stent  to RCA procedure  (angioplasty) and was discharged in stable condition on 05.10.2013. The complainant incurred expenditure of Rs. 1,97,026/- at SGRH on the treatment incurred thereon for the above mentioned health condition and treatment undergone. Therefore, the complainant incurred a total expenditure of Rs. 2,44,484/- (Rs.42,458/- at MCDH, Rs. 5,000/- on ambulance from MCDH to SGRH and Rs. 1,97,026/- at SGRH. The complainant lodged a claim with OP under the mediclaim policy coverage for reimbursement of the above mentioned amount. However, the OP vide undated e-letter repudiated the claim of the complainant  under exclusion clause 4.2 of the policy citing the ailment of the complainant i.e. coronary artery diseases and myocardial infarction  as proximally related to Hypertension (HTN) which is not payable in the first two years of the policy, if contracted. Therefore, the complainant feeling aggrieved with wrong, unjustified and illegal repudiation of claim by OP despite the discharge summary by SGRH having no description of HTN, was constrained to file the present complaint of OP alleging deficiency of service, gross negligence and unfair trade practice and prayed for issuance of direction against the OP to reimburse the mediclaim amount of Rs. 2,44,484/- along with interest @ 18% in addition to Rs. 1,00,000/- as compensation for mental agony and harassment and Rs, 50,000/- towards the litigation expenses.

The complainant has attached copy of mediclaim policy schedule, copy of prescription of Mahindru Hospital, copy of Referral Summary from MCDH, invoice of Rs. 42,458/- from MCDH along with laboratory bill dated 02.10.2013, copy of ambulance receipt no. 1050 dated 02.10.2013 from Ayushman Ambulace from MCDH to SGRH for 5,000/-, Copy of Discharged Summary from SGRH, copy of bill issued by SGRH for RS. 1,97,026/-, and copy of e-letter issued by OP for denial of claim no. 9568001 rejecting mediclaim of complainant.

2. Notice was issued to OP on 10.07.2014. OP filed written statement on 05.09.2014 in which, while admitting the factum of the coverage granted to the complainant and his wife vide policy no. 272900/48/2013/12892 valid from 30.01.2013 to 29.01.2014 for sum assured Rs. 5,00,000/- subject to policy terms and conditions, denied / declined the reimbursement for mediclaim  expenses request raised by the complainant for hospitalization owing to the pre-existing nature of the ailment on ground that the complainant was diagnosed with HTN as per the discharge summary issued by MCDH and that his ailment of CAD and MI, was proximately related to HTN which was not payable in first two years of the policy under exclusion clause 4.2 of the terms and conditions of policy and any expenses on treatment on the same if contracted and / or manifested during the currency of the policy were not payable. The OP further submitted that thereafter when the complainant had filed reimbursement claim for the above mentioned hospitalization, OP had therefore in view of the above noted observations rejected the claim of the complainant vide e-letter under clause  4.3 xvii of the policy (HTN). OP has filed the mediclaim policy prospectus with the written statement.
3. Rejoinder was filed by the complainant to the written statement filed by OP by way of summary denial of defence taken by OP and submitted that his present ailment was not proximately related to HTN. The complainant filed evidence by way of affidavit exhibiting medical bills and treatment record undergone at MCDH and SGRH reiterating his grievance taken in his complaint.
4. OP filed its evidence by way of affidavit reiterating its defence taken in the written statement and exhibited the insurance policy alongwith terms and conditions thereof and letter of repudiation as well as discharge summaries by MCDH and SGRH as OPW1/ 1 to OPW1/4.
5. Written arguments were filed by the complainant reinforcing and buttressing his grievance against the OP. The complainant argued that the OP failed to discharge the burden of proof justifying the reason for repudiation of genuine claim of the complainant since the discharge summaries issued to the complainant had no description of HTN and OP had illegally and arbitrarily repudiated the genuine claim of the complainant. Complainant placed on record judgment of Hon’ble NCDRC in Sukumar Bag Vs OIC in RP No. 1364/2004 passed on 22.10.2008 in which the Hon’ble National Commission held that the onus of proving that the complainant suffered from a heart attack prior to taking mediclaim insurance policy and also had knowledge of the same lay entirely on insurance company.
6. Written arguments were filed by OP reemphasizing and justifying its defence of repudiation of claim of the complainant on grounds of  complainant having being diagnosed with HTN which led to the ailment of the complainant of CAD and MI and the same was not payable in first two years of the policy as per exclusion clause  4.2 of the TNC thereof and was therefore the claim of the complainant was rightfully rejected as the OP was not legally bound to pay the sum of Rs. 2,44,484/- to the complainant as reimbursement towards the mediclaim. The OP placed reliance on judgment of National Commission in United India Insurance Company Ltd. Vs Subhash Chandra 2010(2) CPR 357 (NC) in which the Hon’ble National Commission had taken the view that the complainant suffered heart attack within one week of taking the policy and had a history of DM and HTN and therefore this act of non-disclosure of pre-existing ailment amounted to breach of contract of utmost good faith which is the principle of insurance. OP further relied upon the judgment of Hon’ble NCDRC in New India Assurance Company Ltd. Vs Rekha Malhotra 2016(4) CPR 455 (NC) in which the Hon’ble National Commission held that where the insured was a patient of DM, HTN and CD and death claim under policy was preferred within two years, in fact within two months obtaining the same, the same was squarely covered under exclusion clause and repudiation on ground of suppression of pre existing diseases was upheld as justified. 
7. The complainant counsel during the course of oral arguments argued that the complainant had undergone the surgical treatment for coronary artery diseases/ MI and not HTN which even as per the discharge summary was newly diagnosed and therefore treatment for the said ailment was not excluded as per the policy and repudiation of claim of reimbursement was therefore unjustified on the part of OP.
8. We have given our anxious consideration to the rival contentions of both the parties and documentary evidence placed on record and relied upon by them in their respective grievance / defence.

It is not in dispute that the health policy coverage was given / extended to by OP to the complainant for the period2013-2014on receipt of premium for sum assured Rs. 5,00,000/- covering the complainant and his wife namely Smt. Bimla Tyagi. The factum of hospitalization of the complainant at MCDH and SGRH from 02.10.2013 to 05.10.2013 is also not in dispute as also the expenditure incurred by him to the tune of Rs. 2,44,484/- on the treatment undergone in the said period. However, the OP has repudiated the claim of the complainant on the basis of medical documents procured from MCDH and SGRH where he was diagnosed with HTN/CAD/acute IWMI which diseases the OP has alleged were proximally related to HTN which was not payable for first two years of policy, if contracted or manifested as per exclusion 4.2 thereof.

9. The Hon’ble National Commission in Judgment of Ravinder Singh Bindra V/s National Insurance Co. Ltd. I (2017) CPJ 498 (NC) had held that In view of Insurance Co. not having produced any evidence or filed any document to show that the deceased was suffering from pre existing heart ailment or was treated for the same before date of proposal which was essential to establish / prove the pre existing nature of the disease as contented by the Insurance Company as the onus to prove the same lies on it, the repudiation was held bad. Further the factum of concealment of hypertension were not sufficient ground amounting to suppression of any material information to repudiate the claim since it is not necessary that every person having hypertension shall suffer from heart disease.

Further, the Hon’ble National Commission in the Judgment of Birla Sun Life Insurance Co. Ltd & Anr. V/s Arvind Kaur I (2018) CPJ 301 (NC) had held that it was obligatory to insurer to either produce doctor who had allegedly treated the DLA  in Hospital or to have filed his affidavit or in the alternate it could have examine an official of hospital to prove / authenticate of photocopies which the insurance company relied upon before District Forum in support of its defence and in the absence of any such evidence, mere production of some unattested, unverified and unauthenticated photocopies could not have been the basis of holding the deceased been alcoholic and diagnosed with alcoholic liver disease thereby repudiating the claim. The Hon’ble National Commission in the judgment of SBI Life Insurance Co. Ltd. V/s Baijnath Tanti II (2018) CPJ 95 (NC) observed that the Insurance Company have not field any affidavit of treating doctor to substantiate its claim that the DLA was suffering from Tuberculosis before taking health cover and had suppressed the same at the time of submitting declaration of good health in connection with revival of Insurance Policy and held that as there is no affidavit of treating doctor was filed to prove the treatment record, the same cannot be relied upon to the extent of disallowing the death claim. The National Commission also observed in this Judgment that In cases of revival of policy, the company must have been satisfied with the evidence submitted by policy holder pertaining to health else would have rejected the revival which it is fully authorized to do so. The Hon’ble National Commission in recent judgment of Life India Corpn of India V/s P.R. Sumangla III (2018) CPJ 106 (NC) had held that In view of the fact that LIC had not filed any document or proof to show that the complainant had knowledge of disease of diabetes pre-existing before the date of proposal form and no record of treatment prior to taking of insurance cover was submitted by LIC, no question of suppression of the fact of his diabetes arises as held by Hon’ble NCDRC in its earlier case decided in RP No. 2157/2014 New India Insurance Ltd. V/s Rakesh Kumar in which the Hon’ble National Commission has held that even if the complainant is diabetic he may not be knowing of his disease and the insurance company has to prove beyond doubt that he had knowledge of his illness of diabetes prior to filling of proposal form (i.e. pre existing in nature). In all the aforesaid cases the Revision Petitions were dismissed on ground of repudiation of claim not justified by Hon’ble National Commission.

10.  The Hon’ble National Commission in Gudela Siva Vs Birla Sun Life Insurance company Ltd III (2018) CPJ 465 (NC) was faced with similar issue of repudiation of death claim on grounds of pre-existing DM however the Hon’ble National Commission, after appreciating and perusing the medical record of the DLA which were completely devoid of laboratory investigation to prove DM-type II, in light of the judgment of Hon’ble Supreme Court in LIC Vs Asha  Goel AIR 2001 SC 549 in which the Hon’ble Supreme Court held that matter of repudiation of policy should not be dealt with in a mechanical and routine manner, but with extreme care of caution and claim cannot be repudiated without any proof of previous ailment, held that OP had failed to produce any tangible evidence to prove that the deceased had withheld information about her longstanding diabetic status and treatment and therefore  repudiation of claim was unjustified. Further the Hon’ble Supreme Court in the case of P. Venkat Naidu vs Branch Manager LIC Kurnool in Civil Appeal no. 7437/2011 decided on 26.08.2011 held that onus was on the OP to produce cogent  evidence to prove the allegations of pre-existing illness to prove its case.
11.  In the present context, in light of observations made by Hon’ble  Supreme Court and Hon’ble National Commission in the above mentioned judgments, applied as relevant to the case in hand the OP has failed to place on record either any affidavit of the treating doctor who had treated complainant in MCDH or SGRH Hospital or examined any official of said hospital to prove authenticity of medical documents which the OP relied upon before us in support of its defence and in the absence of any such evidence we don’t find force to validate the repudiation letter dated nil issued by OP to complainant for declining his claim of reimbursement of medical expenses to the tune of Rs. 2,44,484/- incurred on the treatment undergone by the complainant in MCDH and SGRH from 02.10.2013 to 05.10.2013 on grounds of pre-existing HTN,  merely on the basis of mere production of some unattested, unverified and unauthenticated photocopies of medical records of MCDH and SGRH which even otherwise have clearly stated that HTN was newly diagnosed and therefore cannot be construed as pre-existing or in the knowledge of the complainant .
12.  We, therefore find OP guilty of deficiency in service in wrongful, unjustified, arbitrary and unsubstantiated repudiation of the claim of complainant and allow the present complaint and direct the OP to pay a sum of Rs. 2,44,484/- to complainant alongwith interest @ of 9% p.a. from the date of institution of the complaint till realization towards reimbursement of the medical expenses incurred by him at MCDH and SGRH in capacity of having being insured with OP for the given period. We further direct the OP to pay a sum of Rs. 15,000/- to complainant towards compensation for suffering of mental pain, agony and financial turmoil and Rs. 10,000/- towards litigation charges to the complainant, in addition to the mediclaim reimbursement. Let the order be complied within 30 days by OP from the date of receipt of copy of this order.
13.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
14.   File be consigned to record room.
15.   Announced on   09.01.2019. 

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member