Haryana

Karnal

CC/164/2020

Sanjeev Kumar Kapoor - Complainant(s)

Versus

Oriental Bank Of Commerce - Opp.Party(s)

Sunil Kumar

09 May 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                       Complaint No. 164 of 2020

                                                        Date of instt.17.03.2020

                                                        Date of Decision:09.05.2022

 

Sanjeev Kumar Kapoor Advocate son of late Shri Satpal Kapoor, resident of house no.607, Mithan Mohalla, near Jain Mandir, Karnal.

 

                                               …….Complainant.

                                              Versus

 

1.     Oriental Bank of Commerce, Mini Secretariat, Sector-12, Karnal through its Branch Manager.

2.     Cholamandlam MS General Insurance Company Limited SCO no.334 Basement Mugal Canal Market, Karnal.

3.     Cholamandlam MS General Insurance Company Limited SCO 2463-64, 2^nd floor, Sector-22 Chandigarh through its Manager.

4.     Cholamandlam MS General Insurance Company Limited new no.319, Old no.154, Shaw Wallace Building, 2^nd floor, Thambu Chetty Street Parry’s corner Chennai-600001.

 

                                                                      …..Opposite Parties.

 

Complaint under Section 12 of the Consumer Protection Act, 1986 as amended under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.       

      Sh. Vineet Kaushik…….Member.

      Dr. Rekha Chaudhary…..Member

           

 Argued by: Shri Sunil Kumar, counsel for complainant.

                    Shri Somesh Garg, counsel for OP no.1.

                     Shri Naveen Khetarpal, counsel for OPs no.2 &4.

 

                     (Jaswant Singh President)

ORDER:   

                

                The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 as after amendment under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant had been insured with Group Health Insurance Policy bearing certificate no.2876/00015246/000004/ 000/00, valid from 03.08.2019 to 02.08.2020, sum assured Rs.3,00,000/-.  After taking the policy through OP no.1, complainant has deposited a sum of Rs.7866/-, which has been deducted from the Bank Account of the complainant. At the time of insurance, the official of the OPs assured that under this health policy the complainant and his family i.e. Smt. Madhu Kapoor (spouse), Nancy and Sanjana daughters are being insured. It is further averred that at the time of taking the policy all the family members were healthy and there was no disease to any of the family member of the complainant. On 30-31.12.2019 the complainant alongwith his family member went to a holy place Sirdi, he received pain and after reaching Sirdi the complainant visited in Shri Saibaba Hospital, Sirdi, where the doctors check up the complainant in the hospital and also conducted the ECG, D ECHO and colour Doppler Report and treated him. The doctors told the complainant that there are symptoms of heart attack. After getting treatment the complainant alongwith his family members immediately returned Karnal by Air and got admitted himself in Sanjiv Bansal Cygnus Hospital, Karnal, where the doctors admitted the complainant on 02.01.2020 and treated the complainant upto 03.01.2020 during this period the doctor conducted the tests and coronary Angiography. The complainant sent the approval to the OPs no.2 to 4 on 02.01.2020, but the official of OPs denied his cashless request and said that complainant can send a request for reimbursement within 30 days from the date of discharged. It is further averred that thereafter complainant went to PGI Chandigarh for checkup on 07.01.2020, after checkup the doctors told that complainant suffered heart attack and advised for stunt and called the complainant for 10.01.2020. Thereafter, on 10.01.2020 the complainant again visited at PGI Chandigarh, where the doctors operated, and treated the complainant for a period from 10.01.2020 to 11.01.2020. The complainant has spent a sum of Rs.1,43,584/- on his treatment. After discharge from the hospital, complainant approached the OPs for reimbursement of the claim and submitted all the relevant documents with the OPs. After receiving the documents, the officials of the OPs assured the complainant that they shall pay all the medical expenses to the complainant as early as possible, but it is very surprising for complainant when he received a letter dated 25.02.2020, vide which the claim of the complainant has been repudiated on the false and frivolous ground. After receiving the repudiation letter, complainant approached the OPs and requested to release the medical claim, but the official of the OPs always postponed the matter on one pretext or the other. In this way there is deficiency in service on the part of the OPs. Hence this complaint.

2.             On notice, OP no.1 appeared and filed its written version raising preliminary objections with regard to maintainability; jurisdiction; locus standi; barred by limitation and concealment of true and material facts. On merits, it is pleaded that the complainant took health policy from OP no.2 and on the instructions of the complainant, OP bank deducted the premium of Rs.7866/- from the bank account of the complainant and paid to OP no.2 on 22.07.2019 and upon receipt of premium, the OPs no.2 to 4 issued the health policy as per choice/instructions of the complainant. There is no deficiency in service and unfair trade practice on the part of the OP no.1 and prayed for dismissal of the complaint qua OP no.1.

3.             OP no.2 to 4 filed their separate written version raising preliminary objection with regard to maintainability and concealment of facts. On merits, it is pleaded that after getting the intimation regarding claim of complainant, OPs appointed an investigator to investigate the matter and collect the documents, who submitted his detailed investigation report. After receiving the report, documents and complainant’s statement, it comes to know that the signs and symptoms of the present ailment diabetes existed since 5 years, which is prior to the inception of policy. Hence, present ailment is considered as pre-existing disease and the claim is inadmissible as per General Exclusion clause 3.2 which reads as No indemnity is available or payable for claims directly or indirectly cause by, arising out of or connected to any pre-existing any pre-existing condition(s) as defined in the policy until 24 months of continuous coverage have elapsed, since inception of the first policy within insurer. So being not maintainable, claim of the complainant was repudiated by the OPs, vide repudiation letter dated 25.02.2020. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

4.             Parties then led their respective evidence.

5.             Learned counsel for complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of insurance policy card Ex.C1, copy of insurance policy E-card Ex.C2, copy of insurance policy Ex.C3, copy of insurance certificate Ex.C4, copy of treatment record of Shri Sai Nath Hospital, Sirdi Ex.C5 and Ex.C6, copy of cashless denial letter to the hospital Ex.C7, copy of discharge summary Ex.C8, copy of coronary angiography report Ex.C9, copy of PGI card dated 07.01.2020 Ex.C10, copy of lab. report Ex.C11, copy of PGI discharge card Ex.C12, copy of treatment bills detail Ex.C13, copy of bill OPD Ex.C14, copy of medicine bills Ex.C15, copies of bills receipts Ex.C16 to Ex.C26, copy of utilization list Ex.C27, copies of bills receipts Ex.C28 to Ex.C38, copy of repudiation letter Ex.C39 and closed the evidence on behalf of complainant on 16.09.2021 by suffering separate statement.

6.             On the other hand, learned counsel for OP no.1 has tendered into evidence affidavit of Abhishek Nigam, Assistant Manager Ex.RW1/A, statement of account Ex.OP1/B and closed the evidence on behalf of OP no.1 on 07.02.2022 by suffering separate statement.

7.             Learned counsel for OPs no.2 to 4 has tendered into evidence affidavit of Randhir Singh, Senior Manager as Ex.RW1/A, copy of investigation report Ex.R1, copy of claim form Ex.R2, copy of discharge summary Ex.R3, copy of treatment record Ex.R4, copy of cashless denial Ex.R5, copy of repudiation letter Ex.R6, copy of insurance policy Ex.R7, copy of terms and conditions of insurance policy Ex.R8 and closed the evidence on behalf of OPs on 07.02.2022 by suffering separate statement.

8.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

9.             Learned counsel for the complainant, while reiterating the contents of complaint, has vehemently argued that complainant has obtained Group Health Insurance Policy from OPs no.2 to 4. On 30-31.12.2019 the complainant alongwith his family members went to Sirdi, he received pain and after reaching Sirdi the complainant visited in Shri Saibaba Hospital, Sirdi, where the doctors did check up of the complainant in the hospital and also conducted the ECG, D ECHO and colour Doppler Report and treated him. After getting treatment the complainant immediately returned Karnal and got admitted himself in Sanjiv Bansal Cygnus Hospital, Karnal, where the doctors treated the complainant upto 03.01.2020, during this period the doctor conducted the tests and coronary Angiography. The complainant sent the approval to the OPs no.2 to 4 on 02.01.2020, but the official of OPs denied his cashless request. He further argued that thereafter complainant went to PGI Chandigarh for further checkup on 07.01.2020, after checkup the doctors told that complainant had suffered heart attack and advised for stunt. Thereafter, on 10.01.2020 the complainant visited at PGI Chandigarh, where the doctors operated, and treated the complainant for a period from 10.01.2020 to 11.01.2020. The complainant spent a sum of Rs.1,43,584/- on his treatment in PGI Chandigarh. After discharge from the hospital, complainant approached the OPs for reimbursement of the claim and submitted all the relevant documents with the OPs, but OPs did not pay the claim and repudiated the same, vide letter dated 25.02.2020 on the false and frivolous ground. Hence, prayed for allowing the complaint.

10.           Per contra, learned counsel for OP no.1, while reiterating the contents of written version, has vehemently argued that OP bank deducted the premium of Rs.7866/- from the bank account of the complainant and paid to OP no.2 on 22.07.2019 and upon receipt of premium, the OPs no.2 to 4 issued the health policy as per choice/instructions of the complainant. Hence prayed for dismissal of complaint qua OP no.1.

11.           Learned counsel for OPs no2 to 4, while reiterating the contents of written version, has vehemently argued that after getting the intimation regarding claim of complainant, OPs appointed an investigator to investigate the matter and collect the documents, who had submitted his detailed investigation report. After receiving the report, documents and complainant’s statement, it comes to know that the signs and symptoms of the present ailment diabetes existed since 5 years, which is prior to the inception of policy. Hence, present ailment is considered as pre-existing disease. So, claim of the complainant had been repudiated by the OPs, vide repudiation letter dated 25.02.2020.

12.           We have duly considered the rival contention of the parties.

13.           Admittedly, the complainant had purchased a Health insurance policy from OPs no.2 to 4, by paying requisite premium of Rs.7866/- and OPs issued insurance policy to the complainant for the sum insured of Rs.three lakhs, covering complainant as well as his wife, Nancy and Sanjna daughters and the period of coverage was 03.08.2019 to 02.08.2020. It is also admitted that complainant suffered from heart attack during the subsistence of the insurance policy.

14.           The complainant was hospitalized in Shri Saibaba Hospital, Sirdi on 30.12.2019 as he was feeling chest pain and subsequently admitted in Sanjiv Bansal Cygnus Hospital on 02.01.2020 and was discharged on 03.01.2020 and thereafter admitted in PGI Chandigarh on 10.01.2020 and discharged on 11.01.2020 where the complainant was operated.

 15.          The claim of the complainant has been repudiated the by the OPs, vide repudiation letter Ex.C39/Ex.R6 dated 25.02.2020 on the ground reproduced as under:-

“On scrutiny of the claims documents submitted, we observe that the claim is not admissible for the following reasons.

On perusal of the documents it is observed that the  signs and symptoms of the present ailment diabetes were existing since 5 years, which is prior to the inception of policy. Hence, present ailment is considered as pre existing disease and the claim is inadmissible as per General Exclusion clause 3.2 which reads as No indemnity is available or payable for claims directly or indirectly caused by, arising out of or connected to any pre-existing any pre existing condition(s) as defined in the policy, until 24 months of continuous coverage have elapsed, since inception of the first policy with insurer.

 

16.           The claim of the complainant has been repudiated by the OPs on the above mentioned ground. The onus to prove that complainant was suffering from pre-existing disease was lying upon the OPs but OPs miserably failed to prove their version by leading cogent and convincing evidence. Moreover, the case of the OPs based upon the observation collected from the documents submitted by the complainant, which is not admissible in the eyes of law. OPs have not placed on record any single medical report to prove its version. Furthermore, the case of the OPs is also based upon the presumption and assumption. It is settled proposition of law that merely on the basis of presumption without any cogent and convincing evidence, it cannot be concluded that complainant was suffering from diabetes disease prior to taking the insurance policy. In this regard, we are also fortified from the observations of the Hon’ble National Commission made in judgment dated 31.05.2019 rendered in Rivision Petition No.2097 of 2017 case titled as Reliance Life Insurance Company Ltd. & Anr. Vs. Tarun Kumar Sudhir Halder in which it is observed as under:-

“12. From the above entry, it seems that either the doctor filling up this form has not clearly given the date or somebody has made cutting after the word ‘since’. Thus, no conclusion can be drawn in respect of the period since when the DLA was suffering from diabetes. From the entries in the Medical Attendant Certificate it is clear that the DLA first complained about illness only on 22.06.2021. This entry clearly denies pre existing disease of Diabetic Ketoacidosis. The insurance company has not filed any evidence to show that the DLA was taking treatment for the disease prior to filling up of the proposal form. Even if there was disease inside the body, but the life insured did not know about the disease and was not taking any treatment for the same, the insurance claim cannot be denied on mere presumption that the life assured might be suffering from pre-existing disease. Thus, on merits, I am convinced on the basis of the entries in the Medical Attendant Certificate that the disease was complained for the first time by the DLA on 22.06.2021, which is much after the date of the proposal form. The onus to prove the pre-existing disease lies on the Insurance Company and no supporting documents have been filed by the Insurance Company in support of their assertion.”

17.           As per E-card Ex.C1, the age of complainant was 51 years at the time of obtaining the insurance policy. Hence, it is evident that the age of complainant was more than 45 years at the time of purchasing of insurance policy. Thus, the OPs were duty bound to get the medical examination of the complainant conducted as per the instructions issued by Insurance Regulatory & Development Authority of India (IRDAI). In this regard, we place reliance upon case titled as  National Insurance Company Ltd. Versus Harbirinder Singh appeal no.220 of 2016 decided on 30.09.2016, wherein Hon’ble State Commission U.T. Chandigarh has held that if the complainant and his wife both are older than 45 years of age but there is nothing on record to show that before insurance policy was issued to them, the appellants got them medically examined, which as per instructions issued by Insurance Regularly & Development Authority of India (IRDAI) is must in such like cases. Similarly, view was taken by Hon’ble Chandigarh State Commission in case of M/s Max Bupa Health Insurance Co.Ltd. Vs. Rakesh Walia, appeal no.191 of 2016 decided on 18.08.2016  and held that if contrary to the instructions issued by IRDAI, an insured above the age of 45 years, was not put to through medical examination, claim raised after issuance of insurance of policy cannot be rejected on account of non-disclosure of the fact of pre-existing disease when policy was obtained. Hence, plea taken by the OPs is having no force.

18.           If the version of the OPs is to be believed that complainant was suffering from diabetes at the time of obtaining the insurance policy, even in that case also the OPs cannot repudiate the claim of the complainant as, Hypertension, diabetes, occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life which is full of tension. In this regard we are placing reliance upon the case of Hon’ble State Commission, New Delhi, titled as Life Insurance Corporation of India Versus Sudha Jain 2007 (2) CLT 423, in which Hon’ble State Commission has drawn conclusion in para 9 of the order and the relevant clause is 9 (iii), is reproduced as under:-

        “9(iii) Malaise of hypertension, diabetes occasional pain, cold, headache, arthritis and the like in the body are normal wear and tear of modern day life which is full of tension at the place of work, in and out of the house and are controllable on day-to-day basis by standard medication and cannot be used as concealment of pre-existing disease for repudiation of the insurance claim unless an insured in the near proximity of taking of the policy is hospitalized or operated upon for the treatment of these diseases or any other disease.” Taking into consideration the facts of the present case and law laid down by the Hon’ble Superior Fora in the above referred cases, we are of the view that OPs were not justified in repudiating the claim of the complainant and are thus liable to pay the amount which the complainant had incurred on his treatment.

 

 19.           Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

                “It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy

20.           In the present case also, the OPs no.2 to 4 have not placed any treatment record of complainant regarding taking treatment of the alleged disease, prior to taking of policy in question. Rather it is proved on record that complainant was not having any past history of alleged disease.

21.           Keeping in view that the ratio of the law laid down in the aforesaid judgments, facts and circumstance of the case, the act of the OPs no.2 to 4 amounts to deficiency in service and unfair trade practice, while repudiating the claim of complainant, which is otherwise proved genuine one.

22.           As per version of the complainant, he has spent Rs.1,47,717/- on his treatment. The said fact has been proved from the details of the medical bills in Ex.C13 and bills Ex.C19 to Ex.C38. The said bills have not been disputed by the OPs. Hence, the complainant is entitled for the same alongwith interest,  compensation on account of mental agony and harassment, and litigation expenses, etc. 

23.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs no.2 to 4 to pay Rs.1,47,717/- to the complainant alongwith interest @ 9% from the date of repudiation of claim till its realization. We further direct the OP to pay Rs.25,000/- to the complainant on account of mental agony and harassment suffered by him and Rs.11,000/- for the litigation expenses. This order shall be complied within 45 days from the receipt of copy of this order. Complaint qua OP no.1 stands dismissed. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated: 09.05.2021                                                                    

                                                                      President,

                                                      District Consumer Disputes

                                                      Redressal Commission, Karnal.

 

 

 

        (Vineet Kaushik)                (Dr. Rekha Chaudhary)

                  Member                           Member