Punjab

Ludhiana

CC/15/539

Balwinder Kaur - Complainant(s)

Versus

oriental Ins.Co.Ltd - Opp.Party(s)

Akash Bhalla Adv.

18 Jan 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 539 of 11.09.2015

Date of Decision            :   18.01.2017 

 

Balwinder Kaur wife of Joginder Singh, resident of Ullahsnagar-3, Taluka, Thane, Maharashtra through her Special Power of attorney Amarjit Kaur wife of Satnam Singh, resident of House No.155, New Partap Nagar, Bahadurke Road, Ludhiana.

….. Complainant

                                                         Versus

 

1.The Oriental Insurance Company Limited, Registered Office at A-25/27, Asaf Ali Road, New Delhi-110002 through its General Manager/Director/Manager/Authorized person.

2.The Oriental Insurance Company Limited, Branch Office at Ganpati Tower, Gill Road, above Syndicate Bank, Miller Ganj, Ludhiana through its Branch Manager/Authorized person.

3.Park Mediclaim TPA Pvt. Ltd., Third Party Administrator Health Services, 702, Vikrant Tower, Rajendra Place, New Delhi.

…Opposite parties

             (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

 

SH.G.K.DHIR, PRESIDENT                                     

SH.PARAM JIT SINGH BEWLI, MEMBMER

 

COUNSEL FOR THE PARTIES:

For complainant            :          Sh.Akash Bhalla, Advocate

For OPs                          :          Sh.Mohit Verma, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.                Complainant Smt. Balwinder Kaur through attorney Smt.Amarjijt Kaur filed complaint by claiming that her husband Sh.Joginder Singh Shimar was insured with OP1 and OP2 vide Happy Family Floater Policy bearing No.234000/-48/2014/2216. As per this policy, complainant along with her entire family was insured. The said policy was having the validity period from 24.2.2014 to 23.02.2015. On 30.9.2014 at about 10:00 PM, husband of the complainant suffered heart attack, due to which, he was admitted in Fortis Hospital, Mumbai on 1.10.2014 at about 12:38 AM. Husband of the complainant remained admitted there for two days i.e. on 1.10.2014 to 2.10.2014. An amount of Rs.41,195/- was incurred as expenses on the treatment. Thereafter, husband of the complainant was shifted to Aims Asian Institute of Medical Sciences, Mumbai on 2.10.2014 in ICU and there he remained from 2.10.2014 to 4.10.2014. An amount of Rs.73,996/- was incurred as expenses on this treatment. Further, husband of the complainant was transferred to KEM Hospital, Parel, Mumbai, where his death took place. An amount of Rs.1,15,191/- was incurred as expenses on treatment of husband of the complainant. As per the terms and conditions of the policy, all these amount liable to be paid by the insurer. Complainant submitted the claim, but the same was repudiated through letter dated 28.1.2015 on ground that the husband of the complainant was having pre-existing disease. However, husband of the complainant earlier was not having any heart problem. Even on the second page of the policy, it is mentioned in the column of the particulars as if husband of the complainant was not having any pre-existing ailments. Act and conduct of Ops in repudiating the claim amounts to deficiency in service and the same is also an act of unfair trade practice. Complainant sent legal notice dated 13.8.2015 through Sh.Akash Bhalla, Advocate for calling upon Ops to disburse the amount of Rs.1,15,191/-, but that notice was not accepted. Complainant claims to have suffered mental tension and agony, due to deficiency in service on the part of Ops and as such, compensation for mental harassment of Rs.1 lac also claimed. Interest on reimbursement amount of Rs.1,15,191/- even claimed.

2.                In written statement filed by OP1 to OP3 jointly, it is admitted that the policy in question was purchased by the husband of the complainant for period from 24.2.2014 to 23.2.2015. After admission of the complainant in Fortis Hospital, the doctors there filled up the admission history and physical assessment form, perusal of which shows that the patient was detected IHD near back. Further, as per that record, Sh.Joginder Shimar was having history of Ischemic Heart Disease for the last one year. So, the insured was having the complaint of IHD before inception of the policy. As per clause 4.1 of the insurance policy, cover expenses incurred for treatment of pre-existing disease for the first four years not provided and as the policy in question was in the first year and as such, in view of exclusionary clause of 4.1 of the insurance policy, the claim defended to be rightly repudiated. Contract of insurance is based on the maxim “UBERRIMA FIDES” and as such, disclosure of the heart disease sufferance should have been made in the proposal form by the complainant at the time of purchase of the policy. Fact about the pre-existing disease was very much in the knowledge of the complainant. Allegations regarding admission of husband of the complainant in Fortis Hospital, Mumbai or of his shifting to AIMS, Mumbai and then to KEM Hospital, Parel, Mumbai or of incurring expenses of Rs.1,15,191/- denied one by one each. Each and every other allegation of the complainant denied, but it is claimed that detailed reply of legal notice sent by the complainant through Advocate was submitted by the Ops. It is claimed that the husband of the complainant was admitted in Mumbai hospital and even complainant residing at Mumbai and as such, this Forum has no jurisdiction.

3.                Complainant to prove her case tendered in evidence affidavit Ex.CA of Smt.Amarjit Kaur(attorney) along with documents Ex.C1 to Ex.C28 and then closed the evidence.

4.                On the other hand, counsel for OP1 to OP3 tendered in evidence affidavit Ex.RA of Sh.Rakesh Soni, Divisional Manager of Oriental Insurance Co.Ltd, Ludhiana along with documents Ex.R1 to Ex.R10 and then closed the evidence. Thereafter, on allowing of application for additional evidence, documents Ex.R11 and Ex.R12 more were tendered by Ops, but no rebuttal to this additional evidence adduced by the complainant because counsel for the complainant suffered statement that he does not want to tender any evidence in rebuttal.

5                 Written arguments submitted by the complainant alone, but not by Ops. Oral arguments of counsel for both the parties heard. Records gone through carefully.

6.                Undisputedly, policy documents Ex.C1 and Ex.C2 or Ex.R1 discloses that Happy Family Floater Policy was purchased by the complainant for self and family members for the period from 24.2.2014 to 23.2.2015. OP3 is the TPA. This policy is not in continuation of the old policy and as such, the policy was in the first year, when death of husband of the complainant (also insured) took place on 4.10.2014. Ex.C3 is the policy card showing Sh.Joginder Singh Shimar as insured. Ex.C4 is the record showing that the patient was discharged from Fortis Hospital against medical advise and that is why, words DAMA(Discharge Against Medical Advise) recorded in the ‘Special Orders’ column. However, the same shows as if treatment in ICU of Fortis Hospital was provided. In Ex.C4 itself, it is recorded that the patient was advised CAG, but his relatives were not willing for the same and that is why, they took him against medical advise. So, due treatment from Fortis Hospital was not got for Sh.Jaswinder Singh Shimar. Even the deposit receipts Ex.C5 to Ex.C7 shows the incurring of expenses of Rs.41,195/- on treatment of husband of the complainant for the period from 1.10.2014(12:37AM) to 2.10.2014(12:07 AM). Ex.C9 is the record of registration cum admission form of husband of the complainant in Asian Institute of Medical Sciences(AIMS) in ICU unit for the period from 2.10.2014 to 4.10.2014. DAMA Summary Ex.C10 also annexed with Ex.C9. That DAMA summary against medical advise shows as if the patient was shifted to Fortis Hospital earlier. CAG was done on 2.10.2014 as per contents of Ex.C10. This CAG was not got done earlier from Fortis Hospital as referred above. Final bill of Asian Institute of Medical Sciences(AIMS) Ex.C11 along with receipts and invoices Ex.C12 to Ex.C15 also produced on record. Death of Sh.Jaswinder Singh Shimar took place in KEM Hospital, Parel, Mumbai on 4.10.2014 is a fact borne from the medical record Ex.C16.

7.                Undisputedly, the claim for medical reimbursement expenses was submitted and the same was processed by OP3 and the same facts even borne from the contents of Ex.C17 to Ex.C21. Recommendation for repudiation of claim submitted by OP3 through letter Ex.C22 and said repudiation took place through letter Ex.R2 on ground that death took place in the first year of the policy and patient was having history of Ischemic Heart Disease (IHD) for the last one year i.e. before the inception of the policy and as such, claim is not admissible in view of clause 4.1 of the policy. Bone of contention remains as to whether really insured Sh.Jaswinder Singh Shimar was having pre-existing heart ailment prior to the inception of the policy or not?

8.                Counsel for the complainant vehemently contends that no record produced to show that insured Sh.Jaswinder Singh Shimar  suffered  from  pre-existing heart ailment, but counsel for the Ops vehemently contends that history of the patient recorded by the hospital shows as if he was suffering from heart ailment since from 2013. Reliance for the purpose is placed on Emergency Room Assessment Form Ex.R3. Perusal of the same reveals that the insured Sh.Jaswinder Singh Shimar had some problem of chest pain in the last year of 2013. On the basis of this record, repudiation of the claim took place through letter Ex.R7. Ex.R8 is the same thing as is Ex.C4. So, the only record produced by the Ops for establishing that the insured Sh.Jaswinder Singh Shimar was suffering from heart ailment prior to the inception of the policy is Ex.R3. If the discharge of Sh.Jaswinder Singh from Fortis Hospital took place against medical advise, then due to that alone, it cannot be inferred that the complainant or Sh.Jaswinder Singh Shimar were knowing about the heart ailment of insured Sh.Jaswinder Kumar Shimar, prior to the inception of the policy. No medical record produced except Ex.R3 to show that Sh. Jaswinder Singh Shimar  suffered from heart disease prior to the inception of the policy on 24.2.2014. If in Ex.R3 mention made that patient had similar history of chest pain last year of 2013, then it does not mean that the chest pain was on account of heart ailment. Until and unless the heart ailment/disease discovered prior to the inception of the policy, till then it was not bound to be in the knowledge of the insured or his family members that insured was suffering from pre-existing heart ailment. Question of suppression of pre-existing disease to arise only if really the insured despite knowledge of pre-existing disease, would have suppressed that fact. In the reported case of Dilraj Singh vs. Life Insurance Corporation of India and another-2014(4)CPJ-665(N.C.), it was found that the patient himself gave the previous history of his suffering from IgA nephropathy and of Wegner’s granulomatosis diagnosis prior to the inception of the policy. Even name of the doctor concerned who provided treatment prior to the inception of the policy mentioned in para no.5 of the reported case. That is not the position in the case before us because here mention of suffering of chest pain alone made without disclosing as to what was diagnosed by the concerned doctor earlier in 2013. Non-mentioning of these sufferances in Ex.R3 shows that the chest pain may or may not be due to heart ailment. Even if the said chest pain be assumed to be on account of heart ailment, despite that knowledge of the same was not there with the complainant or her relatives and as such,   non disclosure of sufferance from chest pain in 2013 is not a circumstance showing that the complainant or the insured or their family members suppressed the material facts qua pre-existing disease. In case of Satwant Kaur Sandhu vs. New India Assurance Company Limited-2009(9)JT-82(Supreme Court of India), it was found that deceased did not disclose the fact of ailment while taking the policy,  though the same was within his knowledge. However, in the case before us, knowledge of earlier heart ailment of insured Sh.Jaswinder Singh Shimar cannot be attributed to the complainant or insured or their family members and as such, virtually there is no suppression of facts in this case. Being so, repudiation of claim by the Ops is unjustified. Benefit from clause 4.1 of Ex.R11 not available to the Ops because we do not find any suppression of material facts qua earlier treatment of heart disease by the insured Sh.Jaswinder Singh Shimar or his family members. There was no suppression of material facts regarding the heart ailment or of pre-existing disease and as such, complaint deserves to be allowed. Policy Ex.C1 purchased at Ludhiana by showing the address of insured of Aggar Nagar, Ludhiana and as such, certainly this Forum has territorial jurisdiction because cause of action accrued with purchase of the policy at the place of purchase thereof.

9.                Chest pain may be for various reasons i.e. due to gas trouble or sufferance from cold or like that. Mere sufferance from chest pain will not make one to know that he is suffering from heart disease. Sufferance from heart disease can be known to one only after being diagnosed by the doctor and not before that. That diagnose of earlier heart ailment not shown to be got done and as such, findings qua pre-existing heart ailment given by TPA are improper.

10.              Bill Ex.C7 is an amount of Rs.41,195/- qua treatment of deceased Sh.Joginder Singh Shimar from Fortis Hospital Limited, Mumbai, whereas, bill Ex.C11 is an amount of Rs.73,996/- showing the expenses on treatment of deceased Sh.Jaswinder Singh Shimar in AIMS, Hospital. These are the amounts of expenses actually claimed in the complaint and as such, insurers i.e. OP1 and OP2 liable to reimburse this amount of Rs.1,15,191/- to the complainant because of said amount being expenses on treatment of the insured during subsistence of the policy period. Complainant suffered mental harassment, due to repudiation of claim and as such, she is entitled for compensation for mental harassment and also to litigation expenses.

11.              As a sequel of the above discussion, complaint allowed against OP1 and OP2 only in terms that they will reimburse the medical expenses of amount of Rs.1,15,191/- to the complainant within 30 days from the date of receipt of copy of this order, failing which, they will be liable to pay interest @8% per annum on the above referred  amount of Rs.1,15,191/- from today till payment. Liability of         both OP1 and OP2 held as joint and several. Complaint against OP3 is dismissed because of its being the processing agency only. Compensation for mental harassment of Rs.7500/- and litigation expenses of Rs.2500/- more allowed in favour of complainant and against OP1 and OP2 only. Payment of above said awarded compensation and litigation expenses be also made within 30 days from the date of receipt of copy of this order. Copies of order be supplied to parties free of costs as per rules.

12.                        File be indexed and consigned to record room.

         

                   (Param Jit Singh Bewli)                                        (G.K. Dhir)

                                                Member                                                President

Announced in Open Forum                                                              Dated:18.01.2017

Gurpreet Sharma.