Order dictated by:
Sh.S.S. Panesar, President.
1. Sh.Narinder Kumar has brought the instant complaint under section and 12 of the Consumer Protection Act, 1986 on the allegations that Opposite Party No.1 is having tie up with Opposite Party No.2 for the purpose of effecting medi claim and other policies. The complainant obtained a PNB-Oriental Royal Mediclaim Policy bearing No.233300/2015/5376 for a period of one year from 24.2.2015 to 23.2.2016 from the Opposite Parties against requisite premium of Rs.5780/- vide which the risk of the complainant and his family members was covered upto Rs.4 lacs and thus, the complainant having hired the services of the Opposite Parties for valuable consideration falls within the definition of consumer as defined under the Consumer Protection Act and has right and locus standi to file the complaint. During the validity period of the aforesaid policy, the complainant suffered heart attack on 3.4.2015 and he was immediately admitted to Fortis Escorts Hospital, Amritsar and after treatment/ operation, he was discharged from the said hospital on 5.4.2015. The complainant spent Rs.2,21,273/- on his treatment. After discharge from the said hospital, the complainant submitted al the medical bills and other relevant documents to Opposite Party No.1 for disbursement of the amount of Rs.2,21,273/- spent by him on his treatment and the Opposite Party assured the complainant that the claim of the complainant would be settled and the amount of claim would be disbursed to him within shortest period. Now surprisingly, the complainant has received a letter dated 2.6.2015 received on 17.6.2015 from Opposite Party No.2 vide which Opposite Party No.2 has repudiated the genuine and legitimate claim of the complainant on the ground that the complainant was a patient of hyper tension and he has concealed this fact at the time of obtaining the insurance policy. The fact remains that the complainant was never a patient of hyper tension. At the time of admission in the said hospital, he was not suffering from hyper tension. Had the complainant been a patient of hyper tension or his BP would have been high, the operation of the complainant would not have been conducted by the doctors of the said hospital. It is basic principle of medical jurisprudence that whenever a patient suffers heart attack, hyper tension automatically comes in the heart. It is also pertinent to mention over here that the Opposite Party has not appointed any doctor or surveyor to ascertain as to whether the complainant was suffering from hyper tension. The complainant was never called or ever checked by any doctor of the Opposite Party and simply on the basis of medical terminology, no decision can be given and as such, said order of 2 dated 2.6.2015 is totally wrong, illegal arbitrary and contrary to actual position and on the basis of presumption and assumption, the Opposite Party No.2 has alleged that the complainant was suffering from hyper tension only with a view to reject the genuine and legitimate claim of the complainant, the Opposite Party neither south his explanation nor any opportunity of being heard was given to him to explain the true position. After receiving the impugned letter of repudiation, the complainant approached the attending doctor Dr.Deepak Kapila, Addl. Director Cardiology of Fortis Escorts Hospital, Amritsar who operated upon the complainant and who has given certificate dated 8.6.2015 certifying the treatment given to the complainant and further mentioning that there was no history of HTN which means the complainant was not suffering from hyper tension. Thus the Opposite Parties are bound to pay the claim of the complainant and they have no right to withhold the genuine and legitimate claim of the complainant on flimsy ground. The act of the Opposite Party in repudiating the genuine and legitimate claim of the complainant on flimsy ground and without any just and sufficient cause, amounts to deficiency in service, unfair trade practice as well as gross negligence which has caused mental tension, agony, harassment as well as inconvenience to the complainant which also entitles the complainant to claim compensation of Rs.1 lac from the Opposite Parties and the Opposite Parties are bound to pay the same to the complainant. Vise instant complaint, the complainant has sought the following reliefs:-
a) Opposite Parties may kindly be directed to pay the claim amount of Rs.2,21,273/- alongwith interest at the rate of 18% per annum from the date of lodging the claim till payment.
b) Opposite Parties may also be directed to pay compensation of Rs.1 lac to the complainant.
c) Opposite Party may also be directed to pay the costs of the present complaint alongwith litigation expenses and counsel fee fo Rs.20,000/-.
Hence, this complaint.
2. Upon notice, Opposite Parties 1 and 2 appeared and contested the complaint of the complainant.
3. In its separate written reply, Opposite Party No.1 took preliminary objections therein inter alia that the complainant has filed baseless, frivolous and an imaginary claim with an ulterior motive. The same is bad and can not be entertained. The complainant has fabricated a false story with ulterior object to extract unlawful gains to which he is otherwise not entitled; 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, hence liable to be dismissed; that the complainant does not fall within the ambit of consumer under section 2 of 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 and the present complaint is pre mature complaint; that the complainant has not come to this Forum with clean hands and has suppressed the material facts from this Forum. On merits, it is stated that the complainant has lodged his claim with the replying Opposite Party and the medical record go the complainant is duly scrutinised and processed by Opposite Party No.2 and thereafter, the claim of the complainant is repudiated as per the terms and conditions contained in the policy especially the condition No.4.2, the said clause of the insurance policy is reproduced as under:-
During the period of insurance cover, the expenses on treatment of hyper tension for specified period of two years are not payable if contracted and/or manifested during the currency of the policy. The medical record of the complainant shows that he was diagnosed as a case of Coronary Artery Disease, Acute Coronary Syndrome, hypertension, Double Vessel disease and underwent PTCA Stenting from the same. As per Medical Literature HTN and CVAD are proximally related to each other and as per the policy terms and conditions, there is an exclusion of two years for the treatment charges related to HTN and its complications. The Coronary and Renal Angiography report revealed that the patient had CAD, HTN, ACS, USAP, DVD, which clearly proves that patient/ complainant is hypertensive which has nexus with heart ailment.
So, keeping in view the aforesaid terms and conditions of the policy in question meaning thereby the clause 4.2 of the terms and conditions of the policy in question is fully applicable to the facts of the present case and therefore, the claim of the complainant is rightly repudiated vide repudiation letter dated 2.6.2015. Remaining facts mentioned in the complaint are also denied and a prayer for dismissal of the complaint with cost was made.
4. In its separate written reply, Opposite Party No.2 filed the same written version ‘word to word’ as filed by Opposite Party No.1 and has prayed for the dismissal of the complainant.
5. In his bid to prove the case, complainant tendered into evidence his affidavit Ex.C1, copy of policy schedule Ex.C2, copy of part of policy Ex.C3, copy of name of policy holder Ex.C4, copy of letter dated 29.6.2015 Ex.C5, copy of denial of claim Ex.C6, copy of claim form Ex.C7, copy of authorisation Ex.C8, copy of authority letter Ex.C9, copy of clearance of discharge Ex.C10, copy of impatient bill Ex.C11, copy of voucher Ex.C12, copies of payment receipts Ex.C13 to Ex.C16, copy of payment receipt Ex.C17 and closed his evidence.
6. On the other hand, to rebut the evidence of the complainant, Opposite Parties tendered into evidence affidavit of Sh.Gurdeep Singh, Divisional Manager Ex.OP1,2/1, affidavit of Dr.S.R.Bhatt Ex.Op1/2/2, copy of repudiation letter dated 29.6.2015 Ex.OP1/2/3, copy of repudiation letter dated 2.6.2015 issued by TPA Ex.OP1,2/4, copies of insurance policies Ex.OP1,2/5 and Ex.OP1/2/6, copy of angioplasty report Ex.OP1,2/7, copy of report Ex.OP1,2/8, copy of medical literature Ex.OP1,2/9 and closed the evidence on behalf of the Opposite Parties.
7. We have heard the ld.counsel for the complainant and have carefully gone through the evidence on record as well as written synopsis of arguments submitted on behalf of the parties.
8. On the basis of evidence on record, ld.counsel for Opposite Parties has vehemently contended that the policy in question which was effective from 24.2.2015 to 23.2.2016 was admittedly obtained by the complainant from Opposite Party No.1. This policy was renewed conjectively having previous policy No.233300/48/2014/5361 which was effective from 24.2.2014 to 23.2.2015. The medical treatment taken by complainant in Fortis Escorts Hospital, Amritsar w.e.f. 3.4.2015 uptil 5.4.2015 shows that the treatment was taken approximately in 14th month of commencement of Parent Policy i.e. Ist Mediclaim policy obtained by the complainant from Opposite Party No.1. The claim of the complainant has been repudiated on the ground that the medical record of the complainant shows that he was suffering from hyper tension which has proximally related to CAD i.e. Artery Disease and there is an exclusion of two years for the treatment charges relating to H.T.N. and its complication. The Coronary and Renal Angiography report revealed that the patient had CAD, HTN, ACS, USAP, DVD which clearly proves that the complainant is hypertensive which has nexus with heart ailment. Keeping in view of the aforesaid terms and conditions of the policy in question i.e. clause 4.2 of the terms and conditions of the policy in question which is fully applicable to the facts of the present case. It is not denied that the complainant had taken the treatment with respect to the said ailment before 24 months/ two years from the date of commencement of policy. Therefore, the said medical expenditure is not covered under the terms and conditions of the policy in question in the 14th month approximately of commencement of policy when the patient had taken the treatment in question. So, the claim of the complainant has rightly been repudiated keeping in view the terms and conditions of the policy in question. Ld.counsel for the Opposite Parties has further contended that the terms and conditions of the policy in question are binding inter se parties and while interpreting documents relating to contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is for the court to make or construe as it is and we can not add or subtract anything from the policy terms and conditions. Reliance in this regard has been placed on Bawa Singh Vs. M.D. India Health Care Services & Others 2015(2) CLT page 418 of Hon’ble Punjab State Commission, wherein it has been laid down that Firstly taking the plea whether the terms and conditions were not supplied to the complainant, the perusal of the complaint there is no reference that he was not given the copy of the terms and conditions of the policy. In case the complainant is basing his claim on the basis of policy taken by him, there is presumption that he must have gone through the terms and conditions of the policy. A reference can be made to the judgement given by Constitutional bench of our Hon’ble Apex Court reported in 1966(7) CPSC 44 “General Assurance Society Limited Vs. Chandmull Jain” wherein it has been observed in para 11 (relevant extract as under):-
“…..The policy not only defines the risk and its duration but also lays down the special terms and conditions under which the policy may be enforced on either side. Even if the letter of acceptance went beyond the cover notes in the matter of duration , the terms and conditions of the proposed policy would govern the case because when a contract of insuring property is complete, it is a material whether the policy is actually delivered after the loss and for the same reasons 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.”
9. Ld.counsel for the Opposite Parties has further contended that other aspect of this case has been that a certificate dated 8.6.2015 Ex.C9 has been obtained from the concerned doctor of Fortis Escorts Hospital, Amritsar by the complainant after issuance of the repudiation letter in the present case which clearly proves that after thought evidence has been created just to get a claim and the such after thought/ fabricated evidence can not be relied upon while deciding the present complaint. Moreover, the treatment record was taken from the hospital is much more reliable evidence in order to decide the present claim instead of relying upon after thought created document. On the basis of aforesaid contentions, it has been vehemently contended that the repudiation made vide repudiation letter Ex.OP1,2/4 has been rightly made and instant complaint is nothing, but an abuse of the process of law and therefore, the complaint may be dismissed accordingly.
10. But however, from the appreciation of the facts and circumstances of the case, it becomes evident that the repudiation in the case in hand has been made without any reasonable cause or excuse. It is an admitted fact that the complainant got medical treatment in Fortis Escorts Hospital, Amritsar w.e.f. 3.4.2015 to 5.4.2015. It is also proved on record that the complainant had to spend Rs.2,21,273/- on the said treatment, copies of invoice/ bills account for Ex. C-11 to Ex.C-17. Prior to obtaining the insurance policy, the complainant was never a patient of hypertension and nor he had suffered from such disease prior to his admission in the hospital. Ex.C9 bears witness to the said fact. Opposite Parties have wrongly acted upon the bed head ticket for reaching conclusion that the complainant was suffering from hypertension and claim of the complainant has been rejected on that ground under clause 4.2 of the terms and conditions of the policy in question. But however, bed head ticket has not been proved by the treating doctor. In such a situation, the bed head ticket being secondary evidence can neither be taken into consideration for deciding the fate of the claim of the complainant nor it can be held that the complainant was guilty of suppression of material facts from the court. Reliance in this context can be had on LIC of India Vs. Chawali Devi 2016(1) CLT page 114 (NC) wherein it has been held that As far suppression of material facts regarding existing disease and treatment is concerned, ld. Counsel for the petitioner has drawn my attention towards history of deceased noted by doctor in which it was mentioned that deceased was having breathlessness , cough and expectoration etc. No doubt, this fact has been mentioned as patient’s history, but petitioner has failed to place any document on record regarding treatment of aforesaid breathlessness, cough & expectoration etc and has not filed any affidavit of concerned doctor who recorded history to prove that the history was given by deceased himself. In such circumstances, only on the basis of recorded history of deceased, it cannot be held that deceased was suffering from breathlessness, cough and expectoration etc since last 10 years and had taken any treatment. Ld.counsel for the respondent has denied any ailment and also placed reliance on judgement of this Commission in III(2014) CPJ 552 (NC)- SBI Life Insurance Co.Ltd. Vs. Harvinder Kaur & Anr in which it was observed as under :
“Concerned doctor who allegedly treated insured and recorded that patient was admitted with history of pulmonary hypertension for last two years was not examined by petitioner to prove photocopy of discharge card relied upon by petitioner nor affidavit of doctor has been filed- Foras below were right in declining to reply upon the photocopy of discharge card produced by petitioner to establish that petitioner while obtaining insurance policy concealed the fact that he was suffering from pulmonary hypertension- Repudiation not justified.” Further reliance in this connection can be had on LIC of India Vs. Kolla Santhi & Another 2016(1) CLT 520 (NC), wherein it has been held that We have considered the arguments advanced by both the parties and have gone through records thoroughly. The petitioner insurance company has not produced any evidence showing the treatment of the insured before the date of proposal in any hospital. The blood pressure and diabetes are such disease that are not sometimes known to patient, as they do not manifest any serious symptoms in the patient. The actual cause of death has been cardio respiratory arrest i.e. heart attack, which can also not be said to be pre-existing disease and can occur suddenly. Certificate given by Dr.S.Bhanu Prabhakar reads as follows:
“This is to certify that Mr.K.Durga Prasad is transferred from Arun Kidney centre to Help Hospital on 6.10.2003 for further management. At the time of adm8ission he was suffering from Status Epilepticus, Essential Hypertension & Diabetes Mellitus. He was discharged on 10.10.2003. At the time of discharge patient general condition is stable. During the above period patient was under my care.”
11. Further Hypertension and Diabetes Mellitus are no longer the material diseases as millions of people in this country are afflicted with these ailments. Reliance in this connection has been placed on Life Insurance Corporation of India Vs. Sushma Sharma II(2008) CPJ 213 wherein Hon'ble Mr. Justice S.N. Aggarwal and Mrs. Jasbir Kapoor member have held in an appeal titled as in para 18 of the judgement as follows:-
“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.”.
12. Further reliance can be had on 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. Moreover, the disease of hyper tension has nothing to do with Artery Disease. It has been wrongly held by Opposite Parties that the disease of HTN has the nexus with Artery Disease or on that account the complainant has been found to be guilty of suppression of material facts regarding the alleged disease suffered by him. As such, we find that the repudiation of the genuine claim of the complainant has been made erroneously and the complainant is entitled to get the medical claim to the tune of Rs. 2,21,273/- alongwith interest @ 9% per annum from the date of filing the complaint until full and final recovery. The costs of litigation are assessed at Rs.2000/-. 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.
Announced in Open Forum
Dated: 17.08.2016.
hrg
