Haryana

Kurukshetra

216/2018

Darshana Devi - Complainant(s)

Versus

Poligarte health Insurance - Opp.Party(s)

Bikram Singh

12 Feb 2020

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KURUKSHETRA.

 

                                        Consumer Complaint No.216 of 2018.

                                        Date of instt.:11.10.2018. 

                                        Date of Decision:12.02.2020.

 

Darshana Devi, aged 59 years, wife of Shri Jagmal Singh, r/o H.No.1742, now H.No.677/23, Vishnu Colony, near D.N. College, Kurukshetra.

                                                                        …….Complainant.                                       Versus

 

Religare Health Insurance Co. Ltd., Vipul Square Tower C-3^rd Floor, Sector-43, Golf Course Road, Gurgaon-122009, through its M.D.

 

                ….…Opposite party.

 

Complaint under Section 12 of Consumer Protection Act.

 

Before       Smt. Neelam Kashyap, President.    

                   Ms. Neelam, Member.       

                   Shri Issam Singh Sagwal, Member.                                                   

Present:     Shri Bikram Singh, Advocate for the complainant.           

Shri Rajesh Kaushik, Advocate for the opposite party.

           

ORDER

                                                                         

                    This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Darshana Devi against Religare Health Ins. Co. Ltd., the opposite party.

2.             The brief facts of the complaint are that the complainant got insured for health insurance through his son Narinder Singh on 15.08.2014 bearing Client No.51186430, Policy No.10134743 for the amount of Rs.5 lacs with the OP by disclosing all the facts about her health. She did not conceal anything from the OP and her medical also conducted and after receipt of premium, the policy alongwith its terms & conditions was issued to her. That she got replaced both her knee in the hospital Indian Spinal Injuries Centre, Sector-C, Basant Kunj, New Delhi-70 after paying Rs.4,31,662.18 to the said hospital. That she was admitted in the hospital on 06.05.2018 and discharged on 22.05.2018. That she made a request to the OP for reimburse of the said amount after submitting all the relevant documents, but the OP sent a letter for denial of the claim by saying “Claim rejected. Non disclosure of HTN since 10 years. Non disclosure on 17.09.2018”. That she had not concealed any fact from the OP nor she was suffering from HTN since 10 years. Moreover, replacement of both the knee is different to the alleged disease as alleged in the rejection letter. By not paying her genuine claim, the OP is deficient in services. Hence, this complaint.

3.             Upon notice, the opposite party appeared and filed written statement stating therein that the complainant has concealed the material facts from this Hon’ble Court. As per documents provided by the complainant, he undergone treatment for bilateral knee pain and was diagnosed with Bilateral Knees Osteoarthritis and underwent Bilateral Knee Replacement Surgery. On the perusal of documents and subsequent investigation of the claim, it was found that the complainant had a history of hypertension prior to the inception of the current policy issued to the complainant. The claim was denied under Clause 7.1 of the policy terms and conditions for non-disclosure of material facts/pre-existing ailment. That the OP issued health insurance policy to the complainant under the plan “Care” w.e.f. 15.08.2014 to 14.08.2018 providing insurance coverage to the sum of Rs.5,00,000/- subject to the terms and conditions. The complainant approached the OP for cashless facility request for his planned Hospitalization at Indian Spinal Injuries Centre, Delhi for the treatment of Bilateral Knee Osteoarthritis on 23.04.2018 with estimated cost of Rs.5,40,000/-. Hence a query was sent to the complainant and concerned hospital authorities vide letter dated 18.04.2018. Query reply was not received. However, the said request was declined by the OP as due to non receipt of the necessary documents vide letter dated 23.04.2018. During the policy period, the complainant was admitted on 16.05.2018 at Indian Spinal Injuries Centre, Delhi for the treatment of Bilateral Knee Osteoarthritis and was discharged on 23.05.2018 and submitted his claim with the OP. Accordingly, the OP trigged a reimbursement Claim investigation of the said claim and upon receipt of necessary documents, made the following observations:-

1. As per the Pre-Anesthesia record dated 17.05.2018 of Indian Spinal Injury Centre, the complainant was a known case of Hypertension since 10 years, Grade II Dyspnoea.
2. As per the Discharge Summary dated 22.05.2018 of Indian Spinal Injury Centre, Delhi, the complainant had a Past History of Hypertension and was on medications for the same. The patient was taking Tab TELVAS-AM 40 mg for the same.
3. As per the IPD Case Record dated 16.05.2018 of Indian Spinal Injury Centre, the complainant had a past history of Hypertension.

                So, from the above, it is clear that the complainant was having a history of Hypertension since 10 years which is prior to inception of the policy and he concealed the said fact to gain unlawful monetary gains. The claim was denied under Clause 7.1 of the policy terms and conditions for non-disclosure of material facts/pre-existing ailment. The rest of the contents of the complaint are denied and prayed for dismissal the same.

4.             The complainant tendered affidavit Ex.CW1/A alongwith documents Ex.C-1 to Ex.C-5. On the other hand, learned counsel for OP tendered documents Ex.R-1 to Ex.R-10.

5.             We have heard the learned counsel of the parties and carefully gone through the case.

6.             At the outset, the learned counsel for the OP has argued that this Forum at Kurukshetra has got no territorial jurisdiction to try and adjudicate the present complaint as neither the policy in question was issued from Kurukshetra nor the OP is having branch at Kurukshetra. In this regard, the complainant has alleged that he made the payment of premium Online through his Credit Card of Kurukshetra. However, it is pertinent to mention here that the OP has not taken the said plea of jurisdiction at the initial stage i.e. in his reply/written statement, which is not tenable at this belated stage of arguments. In this regard, we can rely upon the case law titled Kurukshetra University and Ors. Vs. Vinay Parkash Verma, 1993 (2) CPJ, 647 (HSCDRC), wherein, the Hon’ble Haryana State Commission, Chandigarh has held that “Territorial Jurisdiction- Complainant resident of Kaithal was a student of Kurukshetra University- He filed his complaint in the District Forum, Kaithal, against the University- The appellant questioned the territorial jurisdiction of the District Forum- Held, the provision of Section 11 of the Act would indicate that it is the residence of the opposite party or where it carries on business or personal works for gains is the relevant consideration for determining the territorial jurisdiction- In the present case no part of cause of action can be said to have arisen at Kaithal itself and the territorial jurisdiction for all disputes relating to examination would be at Kurukshetra alone- However in the absence of any plea taken to that effect at the initial stage, it would be in appropriate to set aside the impugned order on the appeal of the appellant.

7.             The learned counsel for the complainant has reiterated all the averments mentioned in the complaint. He argued that the complainant got insured for health insurance through his son Narinder Singh on 15.08.2014 for the amount of Rs.5 lacs with the OP by disclosing all the facts about her health. The complainant did not conceal anything from the OP. He further argued that the complainant got replaced both her knee in the hospital Indian Spinal Injuries Centre, Sector-C, Basant Kunj, New Delhi-70 after paying Rs.4,31,662.18 to the said hospital and made a request to the OP for reimburse of the said amount after submitting all the relevant documents, but the OP sent a letter for denial of the claim by saying “Claim rejected. Non disclosure of HTN since 10 years. Non disclosure on 17.09.2018”. He further argued that the complainant had not concealed any fact from the OP nor she was suffering from HTN since 10 years. Moreover, replacement of both the knee is different to the alleged disease as alleged in the rejection letter.

8.             Contrary to it, the learned counsel for the OP has also reiterated all the averments mentioned in the reply. He argued that the OP issued health insurance policy to the complainant under the plan “Care” w.e.f. 15.08.2014 to 14.08.2018 providing insurance coverage to the sum of Rs.5,00,000/- subject to the terms and conditions. He further argued that during the policy period, the complainant was admitted on 16.05.2018 at Indian Spinal Injuries Centre, Delhi for the treatment of Bilateral Knee Osteoarthritis and discharged on 23.05.2018 and submitted his claim with the OP, but after investigation of the claim of the complainant, it was found that the complainant was having a history of Hypertension since 10 years which is prior to inception of the policy and he concealed the said fact to gain unlawful monetary gains. The claim was denied under Clause 7.1 of the policy terms and conditions for non-disclosure of material facts/pre-existing ailment.

9.             Admittedly, initially the complainant had purchased the policy in question from the OP in the year 2014 and thereafter renewed the same in the year 2015, 2016 and lastly in the year 2017 for the period from 15.08.2017 to 14.08.2018, for a sum assured of Rs.5,00,000/-, after paying total premium of Rs.21309/- as apparent from the policy documents Ex.R-1.

10.              The OP repudiated the claim of the complainant vide letter dated 17.09.2018 Ex.C-3, with the following remarks:

        “We have reviewed the claim filled by you pertaining to Health Insurance policy (10134743) and hereby inform you that the claim is not payable as per policy terms and conditions listed below:-

• CLAIM REJECTED: NON DISCLOSURE OF HTN SINCE 10 YEARS.
• NON DISCLOSURE

           

                To corroborate this fact, the OP produced Pre-Anesthesia record dated 17.05.2018 of Indian Spinal Injuries Centre, New Delhi as Ex.R-4, wherein it is mentioned that the patient was a case of HTN since 10 years, Grade II Dyspnoea. The OP further produced Discharge Summary of Indian Spinal Injuries Centre, New Delhi as ExR-5, wherein, it is mentioned “PAST HISTORY- History of Hypertension – on medications”. The OP also produced IPD CASE RECORD dated 16.05.2018 of Indian Spinal Injuries Centre as Ex.R-6 wherein, it is mentioned that the complainant had a past history of Hypertension. It may be stated here that except these documents, the OP has not produced any medical record of the complainant to prove that she was taking treatment for the disease of hypertension, prior to taking the policy in question. It was not proved on record as to who had disclosed that the complainant was suffering from the said disease. Further, affidavit of the treating doctor, who had recorded the patient history, at the time of preparing the Pre-Anesthesia record/ Discharge Summary/ IPD CASE RECORD, has not been produced on record by the OP. The entire defence revolves around the documents Ex.R-4 to
Ex.R-6, which are not supported by cogent document and on the basis of these documents, the OP cannot repudiate the claim of the complainant. In the case of Rajinder Singh Vs. The New India Assurance Co. Ltd. & Ors., 2018(3) CLT-187, the Hon’ble State Commission Haryana, has held that “the treating doctor mentioned that the complainant was suffering from diabetes and hypertension for the last about three years without mentioning his source of knowledge in this regard and has not mentioned as to whether the patient had himself told him that he was suffering from the abovementioned ailments- Repudiation of the claim was not justified”. Further, in the case of LIC of India Vs. Joginder Kaur, 2005, CPJ-78, the Hon’ble State Commission Haryana has held that “the unproved case history recorded by some person on the date of admission of the patient, would not be cogent and convincing evidence to repudiate the case, unless it was coupled with medical record for the treatment prior to the submission of the proposal form”.

11.            From the record, it is born out that the complainant was more than 58 years at the time of taking the policy in question, therefore, as per IRDAI guidelines, it was incumbent upon the OP, prior to accepting the premium and issuing the policy, got medically examined the complainant. As it has been held by the Hon’ble State Commission, U.T., Chandigarh, in the case of Manish Goyal Vs. Max Bupa Health Insurance Co. Ltd. and others, 2018 (2) CLT, 205 that “If the opposite parties themselves, failed to adhere the instructions issued by Insurance Regulatory & Development Authority of India (IRDAI), by putting the insured to through medical examination, being her age more than 45 years, and were interested in collecting premium from the complainant, as such, now at this stage, they cannot evade their liability”.

12.            The plea of the OP is that the complainant was a known case of HTN since 10 years, Grade II Dyspnoea and this fact has not been disclosed by the complainant at the time of taking the policy in question and has drawn attention of this Forum towards the documents Ex.R4 to Ex.R6, wherein, this disease is mentioned. However, the OP cannot be used the “hypertension” as concealment of pre-existing disease for repudiation of the insurance claim. In this regard, we can rely upon the case law titled Life Insurance Corporation of India Vs. Sudha Jain 2007(2) CLT 423, the Hon'ble Delhi State Consumer Disputes Redressal Commission, New Delhi has drawn conclusions in para 9 of the order and the relevant clause is 9(iii), which 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."

 

13.            From the record, it is evident that the complainant had purchased the policy in question from the OP in the year 2014 and thereafter renewed the same in the year 2015, 2016 and lastly in the year 2017 for the period from 15.08.2017 to 14.08.2018. So, the policy in question has completed more than two years and according to Section 45 of the Insurance Act, 1938, no life insurance policy can be called into question on grounds of mis-statement or wrong disclosure after two years of the policy coming into force. However, if the insurer is able to prove that the claim was fraudulent, it need not be passed. Section 45 of Insurance Act reads as under:

                "No policy of life insurance shall, after the expiry of two years from the date on which it was effected, be called into question by an insurer on the ground that a statement made in the proposal for insurance...was inaccurate or false," says the Insurance Act. This is unless the insurer shows that such statement was on a material matter and that the policyholder knew at the time of making it that the statement was false”.

                Our above view is also supported by the case law titled Life Insurance Corporation of India and Anr. Vs. Asha Singh, 2007 (1) CPJ, 238 (NC), wherein, the Hon’ble National Commission, New Delhi has held that Consumer Protection Act, 1986 Section 2(1)(g) Insurance Act, 1948, Section 45- Life Insurance – Revival of lapsed policy- Death of insured 30 months thereafter – Repudiation, alleging suppression of fact of existing heart ailment at the time of seeking revival- No evidence that deceased was suffering from any cardiac problem or any ailment and same was within his knowledge- Moreover, under Section 45 of Insurance Act, said ground after passage of 2 years – Repudiation of claim not in order – Revision dismissed.

14.            Keeping in view the ratio of the case laws laid down by the superior Fora in the aforesaid cases as well as the facts & circumstances of the present case, we are of the considered opinion that the OP has not been able to prove the allegations, on the basis of which, he had repudiated the claim of the complainant. Thus, the repudiation of the claim done by the OP, is held to be unjustified and amounts to deficiency in services on the part of OP. Hence, the OP is liable to reimburse the amount which the complainant had incurred on her treatment.

15.            Now the question which arises for consideration is what should be the quantum of indemnification? In the complaint, the complainant has alleged that he had spent Rs.4,31,662.18 on his treatment and Rs.19338/- as expenses of attendant. The complainant produced bills of Indian Spinal Injuries Centre, New Delhi hospital for Rs.4,31,662.18 as Ex.C-2, but he has not produced any document/receipt regarding expenses of Rs.19338/- on the case file and without which, the contention of the complainant that he had spent Rs.19338/- as attendant expenses, has no force, hence rejected. From the policy documents Ex.R-1, it is evident that the sum assured in the policy was Rs.5,00,000/-, therefore, the OP is liable to reimburse the said amount of Rs.4,31,662.18 alongwith interest to the complainant. The OP is also liable to compensate the complainant for the mental agony and physical harassment suffered by her, alongwith litigations expenses.

16.            In view of the aforesaid discussion, we hereby allow the present complaint against the OP and direct him in the following manner:-

1. To pay the amount of Rs.4,31,662.18 alongwith interest @        6% per annum w.e.f. 11.10.2018 i.e. the date of the filing      the present case, till its realization to the complainant.
2. To pay Rs.5,000/- as compensation for mental agony       and physical harassment suffered by the complainant.
3. To pay Rs.3,000/- as litigation expenses.

 

                The OP is further directed to comply with the aforesaid directions within the period of 30 days from the date of preparation of certified copy of this order, failing which, the complainant will be at liberty to initiate proceedings under Section 25/27 of the Act against the OP. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the record-room, after due compliance.

Announced in open Forum:

Dt.:12.02.2020.                                                   (Neelam Kashyap)

                                                                        President.

 

(Issam Singh Sagwal),         (Neelam)       

Member                             Member.