Subhash Kumar Goyal, Complainant (here-in-after referred to as 'complainant') has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against Oriental Insurance Company Limited and another (here-in-after referred to as 'opposite parties').
Briefly stated, the case of the complainant is that he is holder of saving bank Account in Punjab National Bank, Bathinda. He obtained Medi-Claim Policy from opposite party No.1 through his said bank. He firstly took policy No.233200/48/2014/3797 on 30-01-2014 with Capital Sum Assured Rs.5,00,000/-. It was renewed time and again. Lastly, he got renewed the policy vide No. 233200/48/2016/3344 effective from 30-08-2016 to 29-07-2017. The said policy is continuous, without any interruption. It is pleaded that no terms and conditions were ever supplied by Insurance Company to him.
As per complainant, he was not suffering from any ailment at the time of obtaining said medi-claim insurance policy nor he was aware of any ailment. All of sudden, he felt severe pain in his chest on 27-04-2016 and was immediately taken to Delhi Heart Institute & Multispecialty Hospital, G.T. Road, Bathinda. The doctors diagnosed him to be suffering from cardiogenic shock. The hospital started treatment. Intimation regarding disease/treatment and admission in the hospital was duly given to the opposite parties. The complainant underwent Heart Surgery on 29-04-2016 and incurred more than Rs.3,50,000/- on his treatment.
It is further pleaded that said policy is Cashless Policy. The said hospital is on the penal of the opposite parties. Due consent was duly taken by the concerned officials of the hospital from the opposite parties and only thereafter, doctors of the aforesaid hospital performed Heart Surgery. The complainant lodged claim with the opposite parties and TPA i.e. opposite party No.2 issued Reimbursement Claim No.12687525 to the complainant. The complainant submitted all the original documents with opposite party No.2 required for settlement of the claim, immediately after discharge from the aforesaid hospital. The opposite parties conveyed him that his lawful claim shall be reimbursed within few days.
It is alleged that although the aforesaid Medi-Claim Insurance was Cashless, yet the opposite parties failed to provide Cashless Insurance to the complainant. The complainant was left with no option except to pay the amount of Rs.3,50,000/- to the hospital from his own pocket. Thereafter, on 04-06-2016, the opposite parties conveyed him that his lawful claim has been settled after deducting Rs.6,610/- being non-payable amount but till date, he has not received the said amount inspite of repeated requests and reminders and E-mails.
It is alleged that opposite party No.2 is demanding documents repeatedly, although the complainant has already submitted all the original documents with the opposite parties but the opposite parties have not made the payment. On 20-07-2016, Mr. Atul Goyal son of the complainant also sent e-mail to the opposite parties and requested to make the payment of claim but all in vain. The complainant also got issued Legal Notice dated 01-10-2016 through his counsel Sh. Surinder Kumar, Advocate requesting the opposite parties to pay the aforesaid amount of Rs.3,50,000/- along with interest @ 18% p.a. within 15 days of receipt of notice, but to no response.
It is also alleged that opposite parties rejected the claim of the complainant in the month of October, 2016 through email and the claim has been rejected mainly under condition No. 4.1.
It is also alleged that rejection of lawful claim of the complainant is illegal, null and void, arbitrary and is liable to be set-aside. The said condition is not binding upon the complainant as he was never supplied any terms and conditions of the insurance policy. by the opposite parties.
It is further case of the complainant that due to this deficiency in service and unfair trade practice on the part of the opposite parties, he is suffering mental tension, agony, harassment, botheration etc., for which he has claimed compensation to the tune of Rs.50,000/- in addition to litigation expenses to the tune of Rs.11,000/- and claim of Rs.3,50,000/- with interest @ 18% p.a. Hence, this complaint.
Upon notice, the opposite parties appeared through counsel and contested the complaint by filing joint written reply. In written reply, the opposite parties raised legal objections that intricate questions of law and facts are involved in the complaint which require voluminous documents and evidence. That the complainant has concealed material facts and documents from this Forum as well as opposite parties. He has concealed the fact that he was having history of hypertension and diabetes mellitus for the last five years which was abundantly clear from the anesthesia report of Delhi Heart Institute and Multi Specialty Hospital, Bathinda where he was admitted. Since, the present complaints of complainant were related to complications of pre-existing ailments of diabetes and hypertension which he had prior to the inception of policy, the claim was not admissible by invoking the exclusion clause 4.1 of the policy. The opposite parties have also quoted Clause 4.1 of policy, the reproduction of which is not considered necessary at this stage.
The further legal objections are that complainant is not consumer of the opposite parties. That the complainant has no locus standi or cause of action to file the complaint and that the complaint is not maintainable in the present form.
On merits, regarding purchase of Insurance policy, it is stated to be matter of record. It is denied that policy was valid from 30-08-2016 to 29-07-2017. As per opposite parties it was valid from 30-01-2016 to 29-01-2017. It is denied that policy, terms and conditions were not supplied to the complainant. Even otherwise the complainant has himself alleged the policy to be a continuous insurance. The complainant cannot plead ignorance of terms and conditions of the policy. It is denied that the complainant was not suffering from any ailment at the time of obtaining the said medical claim insurance policy or he was not aware of any such disease. It is denied that complainant suffered heart disease all of sudden on 27-04-2016. It is further mentioned that treatment record of Delhi Heart Institute including anesthesia report clearly showed that the complainant suffered from hypertension and diabetes mellitus for more than five years which fell prior to the inception of policy. Therefore, no claim is payable as per exclusion clause 4.1 of the policy. Regarding heart surgery on 29-04-2016,it is stated to be matter of record. It is denied that a sum of Rs.3,50,000/- was spent thereon but it is further mentioned that complainant had himself lodged the claim for reimbursement of Rs.3,21,780/- which was again subject to the terms and conditions of the policy. It is admitted that authorization for cashless treatment was denied but it is further mentioned that it was suspected to be a clear case of pre-existing disease. Regarding lodging of claim and submission of documents for reimbursement,it is stated to be matter of record. It is denied that complainant was intimated that his claim has been settled after deducting Rs.6610/-. All other averments of the complainant are denied. In the end, the opposite parties prayed for dismissal of complaint.
Parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence photocopy of legal notice (Ex. C-1), postal receipts (Ex. C-2 & Ex. C-3), photocopy of letter dated 1-5-2016 (Ex. C-4), photocopy of letters (Ex. C-5 to Ex. C-7), photocopy of claim detail (Ex. C-8), affidavit dated 12-2-2017 of complainant (Ex. C-9), photocopy of discharge summary (Ex. C-10), photocopy of payment receipts (Ex. C-11), photocopy of hospital bill (Ex. C-12), photocopy of letter (Ex. C-13) and photocopy of medi-claim policy (Ex. C-14).
In order to rebut this evidence, opposite parties have tendered into evidence affidavit dated 17-6-2017 of R L Baleem, Sr. Divisional Manager (Ex. OP-1/1), photocopy of letter (Ex. OP-1/2), photocopy of letter dated 30-1-2017 (Ex. OP-1/3), photocopy of medi-claim policy schedule (Ex. OP-1/4), photocopy of claim documents (Ex. OP-1/5), photocopy of anesthesia record (Ex. OP-1/6), photocopy of claim documents (Ex. OP-1/7) and closed the evidence.
The complainant has also submitted written arguments.
We have heard learned counsel for the parties, gone through the record and written arguments of complainant.
Learned counsel for complainant has reiterated his stand as set up in the complaint and as detailed above. It is further submitted by learned counsel for the complainant that it is admitted that complainant availed insurance policy of opposite party No. 1. It is also not denied that complainant underwent surgery on 29-4-2016. The complainant submitted bill for reimbursement but the opposite parties have repudiated his claim vide letter dated 30-1-2017 (Ex. C-6). Vide this letter, the complainant was not intimated reason for repudiating the claim. The opposite parties have simply quoted clause 4.1 of the policy. It is well settled that the opposite parties cannot take up fresh ground to justify the repudiation. Now the opposite parties have quoted that in the medical record, complainant was shown having history of hypertension and diabetes mellitus for five years. It is said to be mentioned in the Anesthesia Report of Delhi Heart Institute and Multi Speciality Hospital, Bathinda. This fact is not mentioned in the letter Ex. C-6.
It is further submitted by learned counsel for the complainant that even otherwise it is not proved that complainant was having any history of hypertension and diabetes mellitus as alleged. Of course in discharge summary (Ex. C-10), it is mentioned that complainant is normotensive & diabetic but it is no where mentioned that patient was suffering from these diseases for the last five years. Moreover, mere mentioning of disease in the history sheet will not prove that complainant was suffering from any disease unless and until it is proved on record by documentary evidence that complainant ever took treatment for these diseases. From this angle also, repudiation is not justified.
The learned counsel for the complainant has further submitted that complainant has pleaded that he has been taking policy since 30-1-2014. There is nothing on record to prove that from the date of inception of policy till 27-4-2016 (i.e. first problem) complainant ever took treatment for hypertension or diabetes.
The further submission of learned counsel for the complainant is that opposite parties took shelter of clause 4.1 of the policy but this clause is also not applicable in the case of complainant. As per this clause also, any ailment/disease/injuries/health condition which are pre-existing are excluded for such insured person upto three years of this policy being in force continuously. This exclusion will apply to any complication arising from pre-existing ailments/diseases/ injuries. It is not the case of the opposite parties that complainant took treatment for hypertension or diabetes mellitus. It is also not the case of opposite parties that treatment taken by the complainant was the result of complications arising from pre-existing ailment. From all angles, repudiation is not justified.
To support these submissions, learned counsel for the complainant has cited :-
(i) II (2005) CPJ 9 (NC) titled Life Insurance Corporation of India Vs. Badri Nageswaramma (deceased)
(ii) 2008 (3) CPJ 423 titled Pardeep Kumar Vs. NIC
(iii) 2008 (3) CPJ 120 titled LIC Vs. Sarabjit Kaur
On the other hand, learned counsel for the opposite parties has submitted that contract of insurance is based on utmost good faith. The parties are supposed to reveal all the material facts which are in their knowledge. The complainant although is taking policy since 2014 but he has never disclosed that he was having history of hypertension and diabetes mellitus. He has concealed this fact despite having knowledge. The complainant has taken treatment of cardiac problem. Discharge Summary (Ex. C-10) is relied upon by complainant himself. This document proves that complainant was having history of hypertension and diabetes. Although in his history the complainant has not revealed entire facts but the opposite parties have collected Anesthesia Record (OP-1/6) from treating hospital. In this document, HT & DM (hypertension and diabetes mellitus) is mentioned since 5 years. The complainant was in the knowledge of this fact but he has intentionally concealed this fact at the time of availing insurance policy. The opposite parties have brought on record copy of policy document containing all the terms and conditions (Ex. OP-1/4). Clause 4.1 contains Exclusions. As per this clause, complications arising from pre-existing ailment/disease is excluded. It is proved that complainant was suffering from hypertension and diabetes mellitus. This Forum can take judicial notice of the fact that hypertension is the main reason for cardiac problem. Therefore, complication involved in the case of complainant is only due to pre-existing disease of hypertension. This treatment is excluded. Parties are bound by terms and conditions. As such, complainant is not entitled to any claim from the opposite parties. The opposite parties are justified to repudiate the claim. The complaint is without any merit. It be dismissed.
To support his submissions, learned counsel for the opposite parties has cited :-
(i) 2009 (4) CPJ 8 case titled Satwant Kaur Sandhu Vs. New India Assurance Company Ltd.,
(ii) 2008 (3) CPC 248 case titled PC Chacko and another
(iii) 2010 (3) CPC 222 case titled M/s. Suraj Mal Ram Niwas Oil Mills (P) Ltd., Vs. United India Insurance Co. Ltd., and another
(iv) 2009 (2) CPC 593 case titled Vikram Greentech (I) Ltd., and Anr. Vs. New India Assurance Co. Ltd.,
We have carefully gone through the record, case law cited by learned counsel for the parties and have considered the rival contentions.
Some facts are not in dispute. It is not disputed that complainant used to take policy of the opposite parties since 2014. The matter relates to the policy covering period 30-8-2016 to 29-8-2017. The complainant took treatment w.e.f. 29-4-2016 from Delhi Heart Institute & Multispeciality Hospital, G.T. Road, Bathinda. He submitted bill of Rs. 3,50,000/-. The opposite parties have repudiated the claim vide letter dated 30-1-2017 (Ex. OP-1/3). Vide this letter, it was intimated to the complainant that on scrutiny of claim documents, we observe that the claim is not admissible in view of the following :-
“As per policy 4.1 (PED)”
The opposite parties have not specifically mentioned the reason of denying the claim or applicability of clause 4.1. The opposite parties have also placed on record policy documents containing all the terms and conditions.
For the sake of convenience, clause 4.1 is being reproduced as under :-
Clause 4.1
The company shall not be liable to make any payment under this policy in respect of any expenses whatsoever incurred by any insured person in connection with or in respect of :
4.1. Pre-exising health condition or disease or ailment/injuries : Any ailment/disease/injuries/health condition which are pre-existing (treated/untreated/declared/not declared in the proposal form), in case of any the insured person of the family when the cover incepts for the first time, are excluded for such insured person upto three years of this policy being in force continuously.
This exclusion will also apply to any complications arising from pre-existing ailments/diseases/injuries. Such complications shall be considered as part of the pre-existing health condition or disease.”
A perusal of aforesaid clause reveals that it is applicable where disease is pre-existing or where complication arises from pre-existing ailment/disease.
In written version, the opposite parties have pleaded that complainant was having history of hypertension and diabetes mellitus which were pre-existing ailments, Therefore, in order to justify the repudiation, the opposite parties were required to plead and prove that complainant has concealed this fact but it is not the case of the opposite parties that complainant has concealed factum of pre-existing disease. The opposite parties have not brought on record copy of proposal form to prove concealment of any fact by complainant.
The only reliance of the opposite parties to prove history is“Anesthesia Record” (Ex. OP-1/6). Of course, it is mentioned in this document “HTN - 5 years ; DM - 5 years” but there is no other evidence to support this fact.
In the case of Life Insurance Corporation of India Vs. Badri Nageswaramma (deceased) (supra), it was observed that past history of insured can be considered only if the affidavit of the doctor who had treated him earlier was produced or some other material from the hospital or the doctor is produced to prove the record of the previous treatment.
Similarly in the case of Pardeep Kumar Vs. NIC (Supra), it was held that unless and until person is hospitalized or under goes operation of particular diseases in near proximity of obtaining insurance policy or any diseases for which he has never been hsoptalized/undergone operation – Diseases are not pre-existing.
In the case in hand, the opposite parties have not produced affidavit of any treating doctor or record of any hosptal to prove that complainant took treatment of Hypertension and diabetes mellitus.
Moreover, in the case of LIC Vs. Sarabjit Kaur (Supra) it was observed that Diabetes, Hypertension are not serious disease. It is a part of ordinary strain, stress of life. Even otherwise there is nothing on record that insured was aware of suffering from hypertension or diabetes mellitus prior to taking insurance policy.
In the light of factual and above legal position, it can be safely concluded that opposite parties remained unsuccessful to prove that complainant was having pre-existing diseases i.e. Hypertension and Diabetes mellitus and he has concealed this fact. Therefore, the repudiation of claim by the opposite parties is not sustainable.
Now the question is regarding amount for which complainant can be held entitled. The complainant has pleaded that he has spent Rs. 3,50,000/- on his treatment. The complainant has also pleaded that on 4-6-2016, the opposite parties have conveyed that lawful claim has been settled after deducting Rs. 6610/- being non-payable amount but complainant has not produced on record any document to prove that his claim was accepted for this amount.
The opposite parties have also brought on record copy of policy containing entire terms and conditions. Clause 4.2 relates to coverage under the policy and reveals history and benefits under the policy. Therefore, the claim is to be reimbursed as per terms and conditions mentioned in the policy.
For the reasons recorded above, this complaint is partly accepted with Rs. 10,000/- as cost and compensation. The opposite parties are directed to settle and pay the claim in question as per terms and condition of the policy. However, opposite parties will be at liberty to seek any further document/information, if so, required in connection with the settlement of claim.
The compliance of this order be made within 45 days from the date of receipt of copy of this order.
The complaint could not be decided within the statutory period due to heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost. As there is shortage of postal stamps, parties can also collect the copy of order personally/through counsel against receipt. File be consigned to the record room.
Announced :
21-03-2018 (M.P.Singh Pahwa )
President
(Jarnail Singh )
Member
(Sukhwinder Kaur)
Member
