Order dictated by:
Sh.S.S. Panesar, President.
1. Sh.Bhushan Vaid has brought the instant complaint under section 12 & 13 of the Consumer Protection Act, 1986 on the allegations that the complainant is taking the Health Insurance Policy (Family Floater0 from Opposite Party for himself, his wife and two children and the last policy taken vide policy No. 235301/48/2016/2075 covering risk period from 27.11.2015 to 26.11.2016, copy of the cover note is annexed. The complainant is a consumer as provided under the Act and is competent to invoke the jurisdiction of this Forum. The complainant unfortunately fell ill and got stroke and was to be under medical treatment and got admitted in K.D.Hospital, Amritsar from 4.1.2016 uptill 8.1.2016 and the claim for his hospitalization and medical treatment was referred to the Opposite Party for cashless treatment as the said policy issued by the Opposite Party is on cashless terms and the same request for the cashless treatment was denied by the Opposite Party and the complainant paid the amount to the treating hospital for the medical expenses and lodged the claim immediately with Opposite Party for the medical expenses on the treatment which comes to Rs.90,731/-. The complainant thereafter making the futile visits to Opposite Party and the Opposite Party repudiated the claim of the complainant on the frivolous grounds vide its letter dated 3.3.2016 citing some section 4 of the policy which is not applicable on the case of the complainant. It is pertinent to mention over here that no policy condition is communicated to the complainant and now repudiating the claim on such ground which is never a part of an agreement between the parties. Opposite Party had issued the said policy on cashless basis for the medical treatment, but the complainant had to pay the amount from out of pocket and the complainant was insured for the risk of Rs.5 lacs and expenses incurred is of Rs.90,731/-. The aforesaid acts of Opposite Party in repudiating the genuine claim of the complainant is an act of deficiency in services, unfair trade practices, mal practices and is not sustainable in the eyes of law and has caused lot of mental tension, agony and harassment to the complainant besides financial loss to the complainant and for which the Opposite Party is liable to pa compensation of Rs.50,000/- to the complainant. Hence this complaint.
2. Upon notice, Opposite Party appeared and contested the complaint by written statement taking preliminary objections therein inter alia that the complainant is estopped by his own act and conduct to file the present complaint and the present complaint is not maintainable under law; that the complainant does not fall within the ambit of consumer under section 2 of the Consumer Protection Act; that no cause of action has arisen to the complainant to file the present complaint as the averments of the present complaint does not depict any consumer dispute between the parties; that the complainant has not come to this Forum with clean hands and has suppressed the material facts from this Forum; that the present complaint is hopelessly time barred; that the present complaint is bad for non joinder of necessary party. On merits, facts narrated in the complaint have been denied and a prayer for dismissal of the complaint with cost was made.
3. In his bid to prove the case, complainant made in the witness box as his own witness and filed duly sworn affidavit Ex.C-1 in support of the allegations made in the complaint and also produced copy of insurance cover Ex.C2, copy of claim form Ex.C3, copy of discharge summary Ex.C4, copy of repudiation letter Ex.C5 and closed his evidence.
4. On the other hand, to rebut the evidence of the complainant, the Opposite Party tendered into evidence the affidavit of Sh.R.K.Sharma, Divisional Manager Ex.OP1/A, copy of repudiation letter Ex.OP1, copy of insurance policy Ex.OP2, copy of claim form Ex.Op3, copy of certificate of K.D.Hospital, Amritsar Ex.OP4, copy of discharge card Ex.OP5, copy of MRI report Ex.OP6, copy of another MRI report Ex.OP7, copy of colour Doppler report Ex.OP8, copy of terms and conditions of the policy Ex.OP9 and closed the evidence on behalf of the Opposite Party.
5. We have heard the ld.counsel for the parties and have carefully gone through the evidence on record.
6. On the basis of evidence on record, ld.counsel for the Opposite Party has vehemently contended that the complainant was suffering from hypertension for two yeas from the date of his admission regarding medical treatment in dispute. But however, the complainant did not disclose the factum of suffering of hypertension to the Opposite Party at the time of obtaining of the policy and the complainant is a such guilty of suppression of factum of previous disease to Opposite Party. The admission of the complainant from 4.1.2016 uptill 8.1.2016 for medical treatment in K.D.Hospital, Amritsar is not disputed and the complainant spent Rs.90,731/- on his medical treatment. But however, his insurance claim has been rightly repudiated under section 4 of the terms and conditions of the policy, copy of cover note accounts for Ex.OP2. The contention of the complainant that at the time of issue of the insurance cover, no terms and conditions were supplied to him is also without any merit. Had no terms and conditions were supplied to the complainant, the complainant could very well approach the Opposite Party for supplying the same immediately on receipt of the cover note of the insurance policy in dispute. But however, no such efforts were made. It appears that the complainant has been making lame excuses to escape from the exclusion clause of the terms and conditions of the insurance policy. However, in this case, the complainant has based his claim on the basis of insurance policy obtained by him and there is presumption that he has must gone through the terms and conditions of the policy. Reliance in this connection has been placed on Bawa Singh Vs. MD India Health Care Services & Others 2015(2) CLT 418 wherein it has been held that when the contract of insuring property is complete, it is immaterial whether the policy is actually delivered after the loss and for the same reason the rights of the parties are governed by the policy to be between acceptance and delivery of the policy. Even if no terms are specified the terms contained in a policy customarily issued in such cases, would apply. Similarly, in United India Insurance Company Ltd. Vs. Harachand Rai Cahandan Lal, IV (2004) CPJ 15 (SC), it has been laid down that the terms of the policy have to be construed as it is and we cannot add or subtract something. Howsoever liberally we may construe the policy but we cannot take liberalism to the extent of substituting the words which are not intended. On the basis of aforesaid contention, ld.counsel for the Opposite Party has vehemently contended that claim of the complainant has rightly been repudiated under the terms and conditions of the policy in dispute. Moreover, the complainant is guiltily of suppression of factum of previous disease suffered by him at the time of obtaining the policy and a such, the claim of the complainant has rightly been rejected and the complaint being false and frivolous is liable to be dismissed and the same may be dismissed accordingly.
7. However from the appreciation of the facts and circumstances of the case it becomes evident that the complainant obtained insurance policy in dispute cover risk period 27.11.2015 to 26.11.2016 from Opposite Party on payment of premium, copy of insurance cover accounts for Ex.C2. It is also not disputed that the complainant remained admitted in K.D.Hospital, Amritsar for his treatment w.e.f. 4.1.2016 uptil 8.1.2016. It is further in evidence that the complainant incurred an expenses of Rs.90,731/-, copies of treatment pertaining to K.D.Hospital, Amritsar accounts for Ex.OP4. It is also an admitted fact that the claim was repudiated vide letter Ex.C5. The ground on which the claim of the complainant has been repudiated has been that the complainant was suffering from hypertension for two years prior to the issue of the insurance cover in dispute. But however, Opposite Party has placed the document Ex.OP4 which states that there was problem of newly detected hypertension. In such a situation, it is preposterous to presume that said disease was pre-existing or that non disclosure thereof at the time of obtaining the insurance policy amount to concealment. Even otherwise, hypertension is not a material disease, therefore, non disclosure thereof is not a concealment. We draw support from Life Insurance Corporation of India Vs. Sushma Sharma from II (2008) CPJ 213 wherein Hon'ble State Commission has held as under:-
“So far as hypertension is concerned, no doubt, it is a disease but it is not a material disease. In these days of fast life, majority of the people suffer from hypertension. It may be only the labour class who work manually and take the food without caring for its calories that they do not suffer from hypertension or diabetes. Out of the literate and educated people particularly who have the white collar jobs, majority of them suffer from hypertension or diabetes or both. If the Life Insurance Companies are so sensitive that they consider hypertension and diabetes as material diseases then they should wind up their business and stop accepting premium. If these diseases had been material Nand Lal insured would not have survived for 10 years after he started suffering from these medical problems. Like hypertension ,diabetes has also infected a majority of the Indian population but the people who suffer from diabetes and continue managing it under the medical advice, they survive for number of years and none of these diseases is fatal and as discussed above, if these diseases had been material deceased Nand Lal insured would not have survived for 10 years.”.
We further draw support from Life Insurance Corporation of India Vs. Sudha Jain II (2007) CPJ 452 wherein Hon'ble Delhi State Consumer Disputes Redressal Commission, New Delhi has held that maladies like diabetes, hypertensions being normal wear and tear of life, cannot be termed as concealment of pre-existing disease.
- In such a situation the repudiation made by Opposite Party regarding genuine claim of the complainant appears to have been made without application of mind. Even in letter of repudiation, section 4 of the terms and conditions of the policy has been reproduced without specifying which of the clause of section 4 was applicable in the case of the complainant. It is usual with the insurance company to show all types of green pesters to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
- From the aforesaid discussion, it transpires that Opposite Party has wrongly repudiated the genuine claim of the complainant. Opposite Party is directed to make the payment of insurance claim of the complainant to the tune of Rs. 90,731/-. The costs of the litigation are assessed at Rs.2,000/-. Compliance of this order be made within 30 days from the receipt of copy of the order; failing which, awarded amount shall carry interest @ 9% p.a from the date of filing of the complaint until full and final recovery. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.