Delhi

North

CC/124/2019

RAJESH SOODAN - Complainant(s)

Versus

OIC - Opp.Party(s)

06 May 2023

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

Consumer Complaint No. 124/2019

[CDRF-VI (New Delhi) CC No. 731/2014]

 

In the matter of:

Rajesh Soodan (through his Legal Heirs)

S/o Late Shri O P Soodan

1. Smt Rajat Rajesh W/o Late Shri Rajesh Soodan
2. Ms Ipsa Soodan D/o Late Shri Rajesh Soodan
3. Ms Arsh Soodan D/o Late Shri Rajesh Soodan
4. Sanyam Soodan S/o Late Shri Rajesh Soodan

All residents of

J-65, Ashok Vihar, Phase-1

Delhi                                                                    …      Complainant

 

Versus

 

Oriental Insurance Company Ltd.

9^th Floor, Jeewan Bharti Building

Tower-1 Connaught Place

Delhi

 

Also at:

RO-I, 10^th Floor, Hansalya

Barakhamba Road

New Delhi

 

Also at:

DO-18, 6^th Floor, Shahpuri Tirath Tower

Janakpuri

New Delhi                                                            …      Opposite Party

 

ORDER

06.05.2023

(Divya Jyoti Jaipuriar)

This complaint was earlier filed before Consumer Disputes Redressal Forum- VI (New Delhi) vide CC No. 731/2014. The said complaint was decided by the order dated 10.10.2017 by the said CDRF-VI. As the Opposite Party was proceeded ex-parte before CDRF-VI on 27.04.2015, the final order was challenged by the OP herein before Hon’ble Delhi State Commission on FA no. 343/2018. Hon’ble State Commission, vide its order dated 07.03.2019, while allowing of the said appeal with certain conditions, set aside the order dated 10.10.2017 passed by CDRF-VI and remanded the matter back for fresh consideration after taking the Written Statement of the OP on record. By the said order, Hon’ble State Commission also directed the Forum to make endeavour to dispose of the complaint within a period of six months from the date of the receipt of the order.

Subsequently, by an order dated 06.05.2019 passed by Hon’ble Delhi State Commission in TC No. 07/2019, this complaint was transferred to this Commission (erstwhile Forum) and parties were directed to appear before this Commission on 18.07.2019. Thereafter, the pleading in the matter was completed by the parties before this Commission. However in view of non- availability of regular President before this Commission for a long time and also on account of restricted functioning of this Commission during Covid-19 pandemic, this matter could not be decided in the time limit as directed by Hon’ble Delhi State Commission. By this order, we are finally disposing of this compliant.

It is also to be noted that during pendency of the complaint before CDRF-VI (New Delhi) the Complainant has expired. Hence, by an order dated

Briefly stated, the Complainant herein (now deceased), who was the beneficiary of the health insurance policy issued by M/s Oriental Insurance Company Ltd. (OP herein), was aggrieved by the repudiation of the claim by the OP on the ground that the Complainant herein was a habitual tobacco chewer, and the treatment of the ailment that has been caused by tobacco chewing was not covered under the insurance.

The Complainant herein was admitted in Rajiv Gandhi Cancer Institute and Research Centre, New Delhi for the treatment of cancer from 16.10.2012 to 23.10.2012 and again from 23.11.2012 to 24.11.2012.  For the said treatment, he lodged two insurance claims with the OP for both these admissions on 19.11.2013 and 30.11.2012 respectively. Although the complete claim documents have not been filed, the Complainant has pleaded that the total claim by the Complainant/ Insured was Rs. 4,00,000/-. This claim amount has not been disputed by the OP in the reply.

Both these claims filed by the Complainant were rejected by the OP on 28.2.2012 and 07.01.2013 respectively. The reasons for rejection in both these repudiation letters are identical. The OP rejected the claims primarily under clause 4.8 of the policy terms and conditions while observing that the Patient/ Complainant herein was “having habit of chewing” tobacco.

In its reply, the OP has not filed any documents in support of repudiation of the claim. The OP has simply quoted the recommendations of its TPA (Third Party Administrator) and clause 4.8 of the terms and conditions of the policy.  The grounds of rejection of the insurance claim as allegedly recommended by the TPA read as under:

“• The patient was admitted for the treatment of Carcinoma Rt. Lateral Border of Tongue (post Op) and managed by radiotherapy.

• The patient is having habit of tobacco chewing.

• Tobacco chewing greatly increases the risk of contracting buccal mucosa cancer/ Carcinoma Left Cheek.

• Chewing oral tobacco, this tobacco comes as loose leaves, plugs, or twists of dried tobacco. Its chewed or placed between the cheek and gum or teeth. The nicotine in the tobacco is absorbed through the mouth tissues. The user spits out (or swallow) the brown saliva that has soaked through the tobacco the most harmful cancer-causing substances in tobacco are tobacco-specific nitrosamines (TSNAs).

• The ingredient that produces the effect people is nicotine, an addictive drug and one of the harshest chemicals in tobacco.

• Tobacco use was associated with oral cancer cases caused by irritation of the mucuous membranes of the mouth.

• Tobacco contains at least 73 known carcinogens, including benzo[a]pyrene, NNK, 1,3-butadiene and the radioisotope polonium-210.

• Tobacco chewing addiction is the causative risk factor- Carcinoma Left Cheek.

• As per Policy Terms illness arising due to use of addiction and its complications are excluded from scope of Policy.

• On scrutiny of the claim documents it is observed that patient is having history of tobacco chewing addiction and as per policy terms diseases arising due to use of intoxicating substances or such abuse or addiction and its complications are not payable.

• Hence the claim was repudiated under the policy exclusion clause no. 4.8.”

[Emphasis by us.]

Clause 4.8 of the policy terms and conditions, as reproduced by the OP reads as under:

“Convalescence general debility “run down” condition or rest cure, congenital external and internal diseases or defect or anomalies, sterility, and fertility sub- fertility or assisted conception procedure, venereal diseases, intentional self injury suicide, all psychiatric and psychosomatic disorders and diseases /accident due to and use, misuse or abuse of drugs/alcohol or alcohol or use of intoxicating substances or such abuse or addiction etc.”

Interestingly, the OP has neither filed the report of the TPA, policy terms and conditions or even the medical records based on which the TPA or the OP has relied on while deciding to repudiate the claim of the Complainant.

In the rejoinder and also in the evidence, the Complainant has stated that the Complainant patient was not a habitual tobacco chewer. Further the OP has not filed any document or medical records to suggest that the Complainant Patient was a habitual tobacco chewer. The inference and conclusion so derived by the OP While repudiating the claim of the Complainant appears not to be based on any medical records of the Complainant Patient.

In this context, we would like to refer to the judgment of Hon’ble National Commission in the matter of Tarlok Chand Khanna vs. United India Insurance Co. Ltd. [RP-686/2007 decided on 16.08.2001], in which Hon’ble National Commission, while examining the repudiation of the claim by the OP insurance Company on the ground of “pre-existing disease” held that the onus to prove the pre-existing disease lies with the insurance company and also that the such claim must be supported by an medical expert opinion.

Similar view was again taken by Hon’ble National Commission in the matter of Life Insurance Corporation Ltd. vs Priya Sharma [IV (2012) CPJ 646 (NC)] in which Hon’ble National Commission held that the onus to prove pre-existing disease of the Insured is on the insurance company.

The same principle can be applied in the case in hand. In the case in hand, the probable cause of the cancer and the allegation of habitual tobacco chewing by the patient must be established by the OP Insurance Company by filing medical records and expert medical opinion, based on which the claims of the Complainant were repudiated. The OP has not only failed to place on record any annexure in support of their pleading, but has also failed to produce any medical record to support its claim that the Complainant patient was in a habit of tobacco chewing. There are two observations of the TPA, which have been quoted by the OP in its reply. These observations of the TPA are- (i) the patient was in a habit of tobacco chewing and (ii) the claim documents indicate the history of tobacco chewing.  However, neither the complete TPA report nor the medical record of the Complainant have been filed by the OP which are allegedly basis for drawing conclusion regarding habit of tobacco chewing by the Complainant.

While relying on the report of the TPA, OP has also argued that the tobacco use is associated with the cancer for which the Complainant/ Patient was treated and operated upon. However, there is no literature on record to suggest that such a “Squamous Cell Carcinoma (SCC)” popularly known as “tongue cancer”, for which the Complainant/ Patient took treatment, is only caused by the use of tobacco. As a matter of fact, known causes of SCC include, tobacco use, alcohol use, jagged teeth, not taking care of your teeth and gums, infection with Human Papilloma Virus (HPV) etc. The OP and the TPA appear to have assumed that the patient was using tobacco as a habit which resulted into tongue cancer of the Complainant and repudiated the claims.

In absence of any medical records, which the OP was required to place on record in support of their repudiation, we cannot merely assume that the tongue cancer of the Complainant/ patient was caused by the habit of tobacco chewing by the Complainant/ patient. Further in absence of any proof or document to suggest the alleged habit, it is difficult for us to accept the contention of the OP that the claims of the Complainant/ Patient are liable to be repudiated. Hence, we hold that the repudiation letters dated 28.2.2012 and 07.01.2013 are not based on medical records of the Complainant and are liable to be set aside. As a result, while holding as above, we direct as under:

1. OP is directed to honour the claims dated 19.11.2013 and 30.11.2012 filed by the Complainant and make the payments of the claimed amount, which is stated to be Rs. 4,00,000/- in the complaint, to the Complainant along with an interest @ 9% PA from the date of the respective claims, within a period of three weeks from the date of receipt of the order.
2. OP is directed to pay a sum of Rs. 1,00,000/- as compensation and litigation cost to the Complainant within a period of three weeks from the date of receipt of the order.
3. If the payment so directed in not made within a period of three weeks from the date of receipt of the order, the entire amount so payable at the end of the said period shall bear additional interest @ 10% PA till actual payment is made.
4. As the original Complainant has since expired, and his LRs are on record, the payments as directed above shall be made in the name of Smt Rajat Rajesh W/o Late Shri Rajesh Soodan, who is also the mother and guardian of other legal heirs of the original complainant.

With above directions, this complaint is disposed of. Office is directed to supply the copy of this order to the parties in accordance with law and rules framed thereunder. Thereafter, the file be consigned to the record room.

 

 

 

 

 

(Ashwini Kumar Mehta) Member

(Divya Jyoti Jaipuriar) President