Punjab

StateCommission

FA/12/1671

Ashwani Joshi - Complainant(s)

Versus

Reliance General Insurance Company Ltd. - Opp.Party(s)

Arvind Kashyap

27 Feb 2015

ORDER

2^nd  ADDITIONAL BENCH

 

PUNJAB STATE CONSUMER DISPUTES REDRESSAL

COMMISSION,

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

First Appeal No. 1671 of 2012

 

                                                                   Date of institution: 24.12.2012

                                                                   Date of Decision: 27.02.2015

 

Ashwani Joshi C/o M/S Anj Metal Recycling Pvt Ltd. Fatehgarh Sahib, Distt. Fatehgarh Sahib

        . …..Appellant/Opposite Party

Versus

 

1. Reliance General Insurance Company Limited, SCO 135-136, 2^nd Floor, Sector 9-C, Madhya Marg, Chandigarh through its General Manager.
2. Reliance General Insurance Company Limited, 7^th Floor, Surya Tower 108, The Mall, Ludhiana through its Branch Manager.

....Respondents/Complainants

 

First Appeal against the order dated 09.11.2012 passed by the District Consumer Disputes Redressal Forum, Fatehgarh.

Before:-

 

Sh. Gurcharan Singh Saran, Presiding Judicial Member

Sh. Jasbir Singh Gill, Member

Sh. Harcharan Singh Guram, Member

 

Present:-

 

For the appellant                   : Sh. Sudesh  Sahi,  Advocate for

                                                 Sh. Arvind Kashyap, Advocate

 

For the respondent               : Sh. Puneet Tuli, Advocate for

                                                 Sh. Sandeep Suri, Advocate

 

Sh. Harcharan Singh Guram, Member

 

                                                          ORDER

 

                  This appeal has been preferred by appellant/complainant (hereinafter called as the complainant) against the order dated 09.11.2012 in C.C. No. 34 of 25.01.2012 passed by the learned District Consumer Disputes Redressal Forum, Fatehgarh (in short the ‘District Forum’) vide which the complaint filed by him under section 12 of the Consumer Protection Act, 1986, was dismissed.

2.               The complainant took Mediclaim policy in the year 2006 from Reliance General Insurance Company. This policy was obtained by paying a premium of Rs. 16,198/- and the sum insured under the policy was Rs. 5,00000/- for the insurance period starting from 5.03.2006 upto 04.03.2011 vide policy no. 2001792811010275. The said policy was further renewed vide policy no. 2001702811001420 effective from 06.03.2011 to 05.03.2012. He was hospitalized in Medanta The Medicity Hospital situated at Gurgaon, Haryana on 06.07.2011 and remained their upto 15.07.2011. At the time of admission, he provided all relevant documents of the insurance policy to Medanta, hospital for the purpose of cashless access but the Ops refused to sanction cashless benefits. He paid a total bill amount of Rs. 4,99,249.89p/- to the said hospital. After discharge from the hospital he made request to Ops to consider his claim. But his claim was rejected vide their repudiation letter dated 22.11.2011 on the grounds that the complainant did not disclose his pre-existing disease of diabetes and hypertension. It was stated that the Ops had already paid hospitalization charges for the treatment of his ear ailment. At the time of the renewal of the policy on 06.03.2012 the sum assured of the policy was Rs. 5,00000/- and cumulative bonus was to the extent of Rs. 91,500/-. Thus at the time of his admission in Medanta Medicity he was eligible to get reimbursement of hospitalization expenses to the extent of Rs. 5,91,500/-. On failure to get any relief he issued a legal notice to the parties. Even the service of the legal notice did not yield any result. The Act of the Opposite Party in not settling his claim amounts to deficiency in service. Therefore, he filed the complaint for the issuance of the aforesaid directions to the Opposite Party.

3.               The complaint was contested by the Ops by filing written reply denying/disputing the allegations made in the complaint.  The OP pleaded that the complainant had concealed the facts from the District Forum. He did not disclose true facts about his health while filling up the proposal form dated 04.03.2006. He had filled up the columns pertaining to the past history of hypertension and diabetes as “No”. Since the complainant did not disclose his pre-existing disease at the time of filling up the form as such the claim of the complainant was covered under the maximum “violation of utmost good faith principle of insurance”.  Accordingly, his claim was repudiated vide their letter dated 22.11.2011. Thus, there was no deficiency in service on their part. However, they took the plea that the policy was purchased from Ludhiana and the complainant filed his complaint in District Consumer Forum at Fatehgarh instead of Ludhiana as such the District Forum Fatehgarh was not having jurisdiction to entertain the complaint. It was submitted that the complainant was having policy commencing from the period from 05.03.2006 upto 04.03.2011. However, as per authorization submitted by the Medanta Medicity Hospital to them in that application it was mentioned by the consulting doctor that the complainant was a known case of diabetes for 25 years and for hypertension for the last 1 year. Thus the ailment of the complainant was a pre-existing disease and as per clause no. 4.1 of the policy, the pre-existing diseases was not covered.

4.               Both the parties produced evidence in support of their respective averments before the District Forum.

5.               The complainant tendered his evidence in the shape of affidavits as Ex-CW2/A, copy of the legal notice Ex-C/1, repudiation letter Ex-C/3 rejection letter document ,Ex-C/4, Ex-C/5 and Ex-C/6 policy document, Ex-C/7 denial of cashless access, seeking permission for treatment of cashless treatment by the Medanta Medicity hospital to the TPA as Ex-C/8, Renal transplant discharge summary of Medanta as Ex-C/9, follow up notice for Medanta as Ex-C/10, mediclaim policy of the complainant given by Medanta dated 15.07.2011 as Ex-C/11 and Ex-C/12 kidney transplant package break up Ex-C/13, cash receipt issued to the complainant Ex-C/14 and Ex-C/15, bills of the medicines Ex-C/16 and Ex-C/17, discharge summary of fortis hospital department of ENT.  Ex-C/18, bill of fortis hospital dated 30.04.2010 Ex-C/19, settlement of the fortis hospital bill by paramount health services (TPA) Pvt. Ltd., a sum of Rs. 1,85,751 Ex-C/20. Ops filed their evidence by way of affidavit of Shri. Satpal Dhamija Manager  Ex-R/1, medicliam insurance policy proposal form  Ex-R/2, copy of the policy Ex-R/3, Ex-R/4, Ex-R/5 and Ex-R/6 and Ex-R/7, repudiation letter Ex-R/8.

6.               District Forum while going through the record and after hearing learned counsels on their behalf dismissed the complaint, vide aforesaid order.

7.               We have heard learned counsel for the complainant and have carefully gone through the records of the District Forum, which were called at the stage of admission of the appeal.

8.               The first contention before us is that the Ops had taken a plea in their written reply that District Forum, Fatehgarh Sahib was not having territorial jurisdiction to decide the complaint. As per section 11 of Consumer Protection Act.  Jurisdiction of District Forum is to be considered as under:

1)               Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed does not exceed rupees twenty lakhs.

2)               A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction:

                  (a)     the opposite party or each of the opposite parties, where there are more than one, at the time of the institution or the complaint, actually and voluntarily resides or carries or business or has a branch office or personally works for gain; or

                  (b)     any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office or personally work for gain, as the case may be, acquiesce in such institution; or

                  (c)     the cause of action, wholly or in part, arises.

The proposal form Ex-R/2 was filled up Mandi Gobindgarh, District Fatehgarh Sahib; Payment of the insurance premium for insurance was also paid at Mandi Gobindgarh, District Fatehgarh Sahib, thus part of cause of action accrued to the complainant in the jurisdiction of District Forum Fatehgarh Sahib.  We are of this view, after considering the pleadings of the parties we find that the complainant is resident of Fatehgarh Sahib. The requisite premium for the policy was paid by him in the jurisdiction of Fatehgarh Sahib and also proposal form was filled at Mandi Gobindgarh, District  Fatehgarh Sahib. Thus, part cause of action had taken place, where he had filled insurance proposal form and insurance policy was posted at his Mandi Gobindgarh, District Fatehgarh Sahib, address.  As a result of our above discussion, we find that the District Forum, who had heard the complaint and decided the same was having territorial jurisdiction to hear the complaint.

9.               It has been submitted by the Learned Counsel for the complainant that the District Forum had failed to consider that he got his claim of ear ailment passed from the Ops for his hospital admission in fortis hospital for a sum of Rs. 1,85,751/-,  as per Ex-C/20.  He agitated that the exclusion clause 4.1 was not applicable in his case as he has been taking insurance policy from the Ops since 05.03.2006.  As such, a period of 48 months had already expired.  Accordingly, he is eligible to get reimbursement of his mediclaim bill paid by him at Medanta Medicity Hospital from Ops.

10.             During the course of the arguments a query was raised to the counsel of the respondents that from the perusal Ex-C/18 i.e. discharge summary of department of ENT of fortis hospital where in, under column of past history, the patient was shown as a known case of diabetes mellitus and hypertension, then how his claim was settled by them. Further, the counsel was asked why the present claim was not settled by them when they have renewed their policy further from 06.03.2011 to 05.03.2012. To these queries put by us he was unable to provide the correct reply and agitated that as per Ex-C/8 pertaining to admission request note, in which under past history column it was stated that the patient was suffering from hypertension for one year and also from Diabetes for last 25 years, due to this fact the claim of the complainant was repudiated by them.

11.              As per law laid down by Punjab State Consumer Disputes Commission, in citation CLT 1999 (1) Vol 13 Smt. Tripta Rani v/s LIC of India which states as under :

“Apart from the above history of the patient recorded in the hospital at the time of his death, the Corporation did not take into possession any evidence that the deceased had taken treatment earlier either at the same hospital or from any other doctor. Simple assertions made on the history of the patient recorded in the hospital records is not considered sufficient to hold that the patient had earlier taken treatment for such like diseases. Thus, it is held that the repudiation of the claim solely on the basis of the history recorded in the hospital record is arbitrary and illegal. Non settlement of the claim on that account amounts to deficiency in rendering service.

12.              Moreover, the Supreme Court in its judgment dated 10.10.1995 recorded in Biman Krishan Bose V/s United India Insurance Company, in Civil Appeal number 3438 of 1995 had stated: “that if a person is suffering from hypertension, the insurance claim of the legal heirs of such a person cannot be repudiated on the ground that the life assured had suppressed this information from the Insurance company. Moreover hypertension is not a material disease which is fatal in itself.

13.              Similarly the Hon’ble Delhi State Consumer Disputes Redressal Commission, in case of Life Insurance Corporation of India versus Sudha Jain” 2007 (2) CLT 423,  had drawn the conclusions in para 9 and had stated as under.

        “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.”

14.              So far as diabetes is concerned the same parameter will apply. Disease of diabetes is so common in our country-men at least in this part of the country, that almost every third person is suffering from it. If proper check is maintained on that disease it is not fatal and a person suffering from diabetes can live even for 20 to 30 years, if he is taking proper medicines. Therefore non disclosure of this disease by the assured does not entitle, the insurance companies to repudiate the Insurance claim”.

15.             From the above it is clear that the Ops were not justified in repudiating the clam of the complainant on the ground of pre-existing disease. Accordingly, the appeal filed by the complainant is accepted and the order of the District Forum is set aside.

16.             The Ops are directed to pay the bill amount of Rs. 4,99,249.89p/- to the complainant and also to pay a sum of Rs. 35,000/- as compensation for causing mental agony and harassment and to pay Rs. 11,000/- as litigation costs to the complainant within 45 days from the receipt of the copy of the order. On their failure to pay the directed amount within the stipulated period, it will carry interest @ 9% from 15.07.2011 till the date of actual payment.

17.             The arguments were heard and the order was reserved on 20.02.2015. Now order be communicated to the parties as per rules.

18.             The appeal could not be decided within the statutory body due to heavy pendency of court cases.

 

                                                  (GURCHARAN SINGHSARAN)

                                                              PRESIDING JUDICIAL MEMBER

 

 

                                                               (JASBIR SINGH GILL)

                                                                         MEMBER    

 

 

                                                     (HARCHARAN SINGHGURAM)

February 27, 2015                                                                                                                                                               MEMBER           

Surinder