In the District Consumer Disputes Redressal Commission,Hooghly, At Chinsurah.

Case No. CC/36/2020.

Date of filing: 02/09/2020.                     Date of Final Order: 09/01/2023.

Soumitra Mukherjee,

S/o Late Birendra Nath Mukherjee,

Residing Permanently at 31/4, Dr. P.T. Laha Street,

P.O and P.S-Rishra, Pin – 712248, Dist.-Hooghly.                               -Petitioner

            VS  

1. Team Rcare Health

           Reliance General Insurance Rcare

           Health no.1-89/3/B/40 to 42/KS/301

          3^rd Floor, Krishe Block, Krishe Sapphire,

         Madhapur, Hyderabad,Telengana – 500 081.                -Opposite Party – 1

2. Branch Manager, Bank of India,

          Serampore Branch

         89 No-G.T. Road, Sirishtala

         P.O and P.S – Serampore, Pin -712201

         Dist. – Hooghly,West Bengal.                                     Opposite Party – 2

3. Manager, Reliance General Insurance Company Limited

           Policy Servicing Branch, 49 No Dobson Road,

          2^nd Floor, Near Ac Market, Post and P.S-Howrah,

          Pin – 711101, Dist.-Hooghly.                                  Opposite Party – 3

4. Sri Sumon Majhi,

Son of ShriJayanta Majhi

          7 No. T.C.Mukherjee Street, P.O and P.S – Rishra,

         Pin-712248, Dist. – Hooghly.                                   - Opposite Party – 4.

Before:            President, Shri Debasish Bandyopadhyay.

                           Member,  Debasis Bhattacharya.

FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that the complainant was a policy holder of Health insurance of Reliance General Insurance Company Limited on 28^th October, 2019.  The petitioner accepted the said policy through agent of Reliance General Insurance Company Limited Namely Bank of India, Serampore Branch and the aforesaid policy came into force on and from 28^th October 2019 and to be in force up to 27^th October 2020 and the said health policy alias ‘Mediclaim’ is numbered as 150391928451000232 vide proposed no.-Y110219029452 and customer ID-196534112 and the policy period from 00.00 hours on 28^th October 2019 to midnight on 27^th October 2020 and sum insured Rs.300,000/- and the petitioner paid Rs.8,982/- on account of aforesaid health insurance /mediclaim yearly premium on 3,00,000/- and to accept the aforesaid health insurance policy the petitioner was advised by the above named agent to opena savings account before the Bank of India Serampore Branch, District-Hooghly bearing IFSC Code-BKID0004252 and MCR Code – 700013053 and accordingly the petitioner deposited Rs.9,900/- in his savings account bearing no.425210110007593 by opening the aforesaid account dated 28^th October 2019 and the said agent withdraw Rs.8982/- from the said savings account of the petitioner dated 28^th October 2019 on account of BOI Swasthya Bima (Reliance) as the aforesaid Swasthya Bima is ran by Reliance General Insurance Company Limited in collaboration with Bank of India as because is an intermediary in respect to aforesaid Swasthya Bima policy having its intermediary code – 16B31217.

The complainant visited the chamber of Doctor (Prof) Apurba Kumar Pal, MBBS,MD(Cal), MNAMS(Nbe), DM(Cal), Ex Head of the Department of Gastroenterology, R.G. Kar Medical College, Kolkata for his gastro checkup Dr. Pal called upon his assistant and directed her to execute as E.C.G if the complainant and accordingly the said assistant did it and handed over the report to Dr. Pal and after going through the É.C.G Report’ Dr. Apurba Kumar Pal directed him to move immediately to the B.M.Birla Heart Research Centre for admission to implant pace maker as early as possible because the said ECG reflected that the Right Bundle branch block and left anterior fascicular block of the petitioner heart and mentioned in his prescription that advised (V.V. urgent) for implantation Pace Maker and as advised by Dr. Apurba Kumar Pal the petitioner rushed to the B.M.Birla Heart Research Centre.  He was admitted before the emergency unit of B.M.Birla in presence of the brother and sister-in-law of the petitioner under the supervision of Dr. Dhiman Kahali, Senior Cardiologist of B.M.Birla Heart Research Centre and from emergency unit he was shifted to cardiac Care unit at 11:23 p.m. and his life was under custody of temporary pacemaker at C.C.U. and Dr. Dhiman Kahali had an elaborate discussion with the above named brother and sister-in-law and intimated them that the condition of the petitioner is very critical and permanent pace maker is to be implanted by tomorrow evening i.e. 8^th day of January 2020 and his brother and sister in law agreed upon the advised of the above named Doctor and the brother and sister in law above named visited the Accounts Department of the B.M.Birla Heart Research Centre for submission of the aforesaid Mediclaim policy of the petitioner issued by the Reliance General Insurance CompanyLimited and accordingly B.M.Birla Heart Research Centre sent anEstimated Cost of PPI’(Implantation of Pacemaker along with the cost of Angiography) of the petitioner which amounted to Rs. 4,90,000/- as cashless request to the Reliance General Insurance Company Limited dated 10^th Day of January 2020 to their Mediclaim policy servicing Branch at 49, Dobson Road, Near A.C.Market Pin-711101, Howrah West Bengal India and the implantation of pace maker of the petitioner took place on 8^th of January 2020.  In the evening and the whole implantation process of pace maker was done by Dr. Dhiman Kahali in his own hand with the help of few medical assistants at Operation Theater.

On 10^th January 2020 Reliance General Insurance Company Limited sent one E-mail to the B.M.Birla Heart Research Centre, 1/1 no. National Library Avenue, Ekbalpore Crossing, Kolkata-700027 in which the reliance General insurance flatly denied to provide cashless facility to the petitioner on the ground that on the perusal of the documents submitted by the B.M.Birla Heart Research Centre in support of their claim vide cashless request for Reliance General Insurance and Bank of India tie up ‘Swasthya Bima’ the Reliance General Insurance expressed their regret that they are unable to process the claim as because the pre-authorization request is denied as because the petitioner is known care of diabetes mellitus and the same was not disclosed at the time of proposal of the policy.  Hence the claim for cashless facility is committed to be provided to the petitioner is repudiated as policy is also cancelled as per policy terms and condition 5.1.1 and 5.1.2.  A copy of the rejection letter is also provided by the B.M.Birla Heart Research Centre to the family members of the petitioner o the same date at the Hospital.  Same copy of the rejection letter dated 10^th January 2020 was also sent by the Reliance General insurance Co. Ltd. to the address of the petitioner through Maruti Air Couriers and the petitioner accepted his mediclaim policy of Reliance General insurance through Bank of India Serampore Branch, situates 89, G.T. Road, Sirishtala Post-Serampore, Pin-712201, District-Hooghly the said branch played the role as an intermediary vide code no.-16B31217 regarding inception of the said Mediclaim policy and in this regard one Sri Suman Majhi was represented  as an middleman in between Bank of India, Serampore Branch and the petitioner who helped me to fulfill the required formalities and whenever the such untoward incident took place by rejection of my cashless claim as well as cancellation of the aforesaid Health Insurance Policy (Mediclaim Policy) I immediately contacted the said branch of Bank of India eventually with the above named middleman, but both of them advised the petitioner to contact directly with the Reliance General Insurance Company Ltd., Hyderabad where from the petitioner was intimated about the rejection of cashless claim as well as cancellation of the aforesaid ‘Mediclaim policy’ accordingly the petitioner sent a mail to reliance general Insurance Company Limited dated 12^th Day of March 2020 but it is very much regrettable that the Reliance General Insurance Company Limited did not pay any had upon the aforesaid mail till the filing of this suit and ;by aforesaid rejection of Mediclaim claim on the part of the Reliance General Insurance vide Mediclaim policy no.-150391928451000232 dated 28^th day of October 2019 on the ground that the petitioner (Patient) is a known case of ‘Diabetes Mellitus’and the same is not disclosed at the time of proposal for the aforesaid policy is highly unethical illegal, ill motivated  and fraudulent one such act of the Reliance General Insurance Co. Ltd. are strictly undesirable and socking to an insurer like the petitioner and the petitioner trusted upon the Reliance General Insurance Co. Limited in spite of a private organization and incepted his Mediclaim policy without  any afterthought but such faith and trust of the petitioner have been severely hit at the end of Reliance General Insurance company Limited and the heart decease of the petitioner was detected on 7^th day of January 2020 by the Doctor Apurba Kr. Pal and accordingly though he is a Gastroenterologist and the petitioner was never been treated by any cardiologist for his Cardio problem prior to the aforesaid date and whatever the E.C.G and Holtering and Monitoring were done for the aspect of health checkup. Any sort of heart disease or cardiological problem was not detected prior to the aforesaid date.  Another necked allegation has been raised by the Reliance General insurance Companylimited that the petitioner (patient) is a known case of Diabetes.  This allegation is not only untrue and baseless but also illmotivated the petitioner never suffers from Diabetes problem nor the petitioner takes any sort of medicine for the blood sugar even in patient discharge summery it is clearly mentioned that the PAST MEDICAL HISTORY OF THE PETIENT (petitioner / Soumitra Mukherjee) are Hypertension and Hypothyroldism.  A copy of the patient discharge summary alongwith three copies of glucose fasting (sugar testing) reports are submitted herewith this petition which will prove that the petitioner never suffers from diabetes problem nor the petitioner suffers from any sort of cardiactic problem prior to 7^th January 2020 when the petitioner visited the chamber of Dr. Apurba Kr. Pal for this Gastro problems and Dr. Pal diagnosed that the problem which caused to the health of the petitioner due to cardiac problem.  So the cardiac problem of the petitioner has been detected after the inception and acceptance of the mediclaim policy of the Reliance General Insurance Company Limited dated.28.10.2019.

It is very much regrettable that, Axis Bank has done another highly illegal, unjustified, unethical and ill motivated act against the petitioner by suspending both existing Debit card bearing no.4173 4901 0244 3823 and Credit Card no.5305 6202 2164 0853 from swiping regarding any sort of purchase and due to that the petitioner forcefully restrained by the Axis Bank from using and swiping in case of purchase of goods.  Furthermore the petitioner is very much astonished to see that through the petitioner having sufficient fund in his Savings account no.545010100067272 in Axis Bank, Rishra Branch, but it is same scenario has come before the petitioner that the petitioner has also been restrained from using and swiping his Debit Card as aforesaid at the time of purchasing the goods and in both cases a severe financial contingency has been arising during the lock  down period as well as in the recent pandemic situation in the country.  It is further regrettable that the petitioner pays his credit card bill month bymonth as per credit card statement send bythe Axis Bank to the permanent address and registered e-mail id of the petitioner and another highly illegality on the part of the Axis Bank to stop payment of the matured fixed deposit amounted to Rs.1,35,067/- bearing Account no.919040051046733 and the said fixed deposit is matured on 01/08/2020.  When the petitioner enquired before the Axis Bank, Rishra Branch, about the reason of such stop payment of the said fixed deposit, the concern staff namely Sri Subhojit Choudhury intimated the petitioner that due to outstanding payment of the alleged credit card as aforesaid, the Axis Bank authority as a security purpose has stopped payment of the aforesaid Fixed Deposit of the petitioner and due to unethical illegal and ill motivated denial of cashless preauthorization request as referred by the B.M. Birla Heart Research Centre, Kolkata-27 dated 10^th January 2020, the petitioner had been forced to clear out the dues of the B.M. Birla Heart Research Centre which amounted to Rs4,91,778/- out of his own source vide i) Credit Card Rs.2,70,000/-  ii) Debit Card Rs.21,779/-  iii) Cash Rs.1,99,000/-.  Final invoice of the B.M. Birla Heart Research Centre worth Rs.4,91,778/- is submitted with this instant petition before the Honour’s Court.

Inspite of inception and acceptance of aforesaid ‘Health Insurance policy’(Mediclaim) of the Reliance General Insurance Co. Ltd by the petitioner, the aforesaid Health Insurance Policy (Mediclaim) of the petitioner is cancelled malafidely with flimsy, vague, unjustified and untrue ground bythe Reliance General Insurance on 10.01.2020 and the cashless claim of the petitioner isalso repudiated on the flimsy, baseless, vague, unjustified and untrue ground of Diabetes mellitus on 10.01.2020 and as a result in spite of existence of valid ;Health Insurance policy (Mediclaim policy) of the petitioner, the petitioner had been forced to meet up the entire bill amounts vide Final Invoice out of his own source as provided to the family members of the petitioner by the Reliance General Insurance Company Limited in addition to the billing amounts of the Emergency Department’which caused a severe mental and economical pressure and contingency upon the health of the petitioner of this instant suit as well as very much harmfulfor the Health of the petitioner who is a pace maker implanted patient since 08.01.2020 by the B.M.Birla Heart Research Centre, Kolkata-27 and the following questions have been raised due to the aforesaid illmotivated acts of the Reliance General Insurance CompanyLimited as well as in the above stated perspective:-

Whenever the past medical history in the patient discharge summary dated 11.01.2020 issued by B.M.Birla Heart Research Centre (C.K.Birla Hospital) clearly pointed out that the patient (petitioner) suffers from i) Hypertension and ii) Hyphthyroidism in that consequences it was very much amassing to the petitioner that how and why the Reliance General Insurance raised a vague, untrue, unjustified and unethical allegation that the petitioner (Insurer) is a “Diabetes Mellitus patient”?  It is the compulsion on the part of the Reliance General Insurance to prove strictly by virtue of authentic documentations, the allegation raised against the petitioner (Mediclaim policy Holder).  The petitioner has also submitted his latest Blood sugar fasting report dated 10.07.2020 issued by Metropolis before the Honour’s Court.

Complainant filed the complaint petition praying direction upon the opposite parties to pay a sum of Rs. 3,00,000/- as coverage of health Insurance (Mediclaim) policy and to pay sum of Rs.1,50,000/- for mental anxiety, agony and trauma and to pay a sum of Rs.50,000/-  for unlawful malafide and unethical acts and to give any other order/ relief as deem fit and proper.

Defense Case:-The opposite party No. 2contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the bank acts as an agent only, on behalf of Reliance General Insurance and all the required documents relating to the said insurance company were filled up bythe complainant himself.  Therefore, what is wrongor what is right about the given information that only the person knows who filled it up  and this OP cannot be held responsible for the rejection of the insurance claim of the complaint and the instant petition for complain may kindly be dismissed with cost against this OP.

The opposite party No. 3 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that this OP Reliance General Insurance Company Ltd. had issued one Insurance Policy namely RGI-BOI Swasthya Produce bearing no.150391928451000232 vide proposal no.Y110219029452 is matter of record that policy is effective as per terms and conditions of the policy as well as the policy is effective only as per the Act and Rules.  It is mentioned in the proposal form that the benefits under the policy would be provided only as per policy terms and conditions.  The policy wordings are also available on the respondent’s website, which the complaint is required to check and under4stand before applying for the policy.  The relevant extract of the Proposal Form is mentioned in the W/V and the complainant has admitted in the proposal Form that he is aware about the policy terms and conditions.  The relevant extract of the Proposal Form is mentioned below:-

In the Proposal Form, the complainant was required to disclose his past medical history and if he had suffered any preexisting diseases.  There is a specific question in the proposal Form as to whether the complainant was suffering from High Blood Pressure/Hypertension, Low Blood Pressure, chest pain, any ailment/diseases of the Heart?  In response to this question, the complainant has mentioned ‘No’ and as per policy terms and conditions, Clause 5 Disclosure to Information Norm, it is clearly stipulated that in the event of mis-representation or non-disclosure of material facts, the policy shall be void.  The relevant extract is mentioned below:

Clause 5.1.1 “Disclosure to Information Norm: The policy shall be void and all premiums paid thereon shall be forfeited to the company, in the event of Misrepresentation, mis-description or non-disclosure of any material fact”

As per policy terms and conditions, Clause 5 Duty of Disclosure, in the event of non-disclosure of any material particulars  in the Proposal Form or if any material information is withheld by the policy holder or insured person, the company can cancel the policy.  The relevant extract is reproduced below:

Clause 5.1.2 “In the event of any untrue or incorrect statement, misrepresentation, mis-description or non-disclosure of any material particulars in the proposal form, personal statement declaration and connected documents or any material information having been withheld, or claim being fraudulent or any fraudulent  means, or device being used by the policy holder/ insured person or any one acting on his/their behalf to obtain a benefit under this policy, the company may cancel this policy at its sole discretion and the premium paid shall be forfeited in its favour.”

The complainant submitted acclaim with respect to insurance coverage under the aforesaid policy vide Claim no.10120000955.  That the subject claim lodged by the complainant was registered and thoroughly scrutinized by the answering Insurance Company on the basis of details and documents provided by the complainant.  After perusal of documents more particularly “Request for Cashless Hospitalization” submitted by the complainant to the Insurance company, it is observed by the answering Insurance company that the complainant is a known case of Hypertension since 5 to 6 years, but the same was not disclosed by insured in proposal copy at the time of policy inception and thus the claim is not covered as per policy terms and conditions.  The past medical history of hypertension is also mentioned in the discharge card submitted by the Complainant.  The said policy was sourced through Bank of India and person submitting the proposal has to provide the critical information of his pre-existing disease and conditions as there would be an option available to the insurance company not to underwrite the policy.  In the said case the condition of hypertension is a declining risk and if the proposer would have declared the same, the company would have declined the policy. 

It is pertinent to mention that no claim stands admissible and/or payable by the company under the policy terms and conditions as above mentioned above.  Hence, the claim was repudiated by RGICL vide claim repudiation letter dated 13.04.2020 and the OP Reliance General Insurance Company Ltd. submits that the complainant in his proposal form not mentioned that he is a patient of ‘Hypertension’ and in his discharge summary it was clearly mentioned that Past Medical History of the Patient (petitioner/Soumitra Mukherjee) are hypertension and Hypothyroldism’ and from this it is clear that complainant suppress his disease in his proposal form and purchased the mediclaim policy with a wrongful Act.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the answering opposite parties.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party no. 3 filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party no. 3 heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of non-maintainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Rishra, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law. It is the settled principle of law that failure of the Insurance Company to comply with the contractual obligation to release claim amount in deficiency in service. This legal principle has been laid down by Hon’ble State Commission, Delhi and it is reported in 2022 (2) CPR 13 (Del).

   All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that complainant was a policy holder of health insurance of Reliance General Insurance Company Ltd.
2. It is also admitted fact that the complainant adopted the said policy on 28^th October, 2019                                and it was done through the agent of Reliance General Insurance Company Ltd. namely Bank of India, Serampore Branch.
3. There is no dispute over the issue that the said policy came into force on 28^th October 2019 and it was in force upto midnight of 27^th October, 2020.
4. There is no controversy over the issue that the said health policy was mediclaim policy and it is numbered as 150391928451000232 vide proposal no.-Y110219029452 and customer ID-196534112.
5. It is admitted fact that the complainant paid Rs. 8982/- in respect of the said mediclaim policy as yearly premium and it was accepted by the op, insurance company.
6. It is also admitted fact that the complainant as per advice of the agent opened a savings bank account before the Bank of India Serampore Branch, District-Hooghly bearing IFSC Code-BKID0004252 and MCR Code – 700013053.
7. There is no dispute over the issue that the petitioner/ complainant deposited Rs. 9900/- in his said savings bank account bearing no. 425210110007593.
8. There no controversy over the issue that the agent of the op, insurance company has withdrawn Rs. 8982/- from the said savings bank account of the complainant on 28^th October, 2019.
9. It is admitted fact that the complainant thereafter had undergone medical treatment under Dr. Apurba Kumar Pal and on checkupDr. Pal directed the complainant to move immediately to the B.M. Birla Heart Research Center for admission to implant pacemaker as early as possible.
10. It is also admitted fact that thereafter the complainant was admitted to the B.M. Birla Heart Research Center under the supervision of Dr. Dhiman Kahali, senior cardiologist of the said hospital.
11. There is no dispute over the issue that on the evening of 8^th February, 2020 Dr. Dhiman Kahali implanted pacemaker.
12. There is no controversy that for the purpose of said medical treatment B.M. Birla Heart Research Center imposed cost of Rs. 4,90,000/-.
13. It is admitted fact that thereafter the relatives of the complainant submitted and/ or placed the said claim as cashless request to the op, insurance company on 10^thJanuary, 2020.
14. There is no dispute that the op, insurance company repudiated the said claim on the ground that the complainant was a long standing patient of “diabetes mellitus” but the same was not disclosed at the time of submitting proposal of insurance policy.
15. It is admitted fact that the cardiac problem of the complainant has been detected after the inception and acceptance of the mediclaim policy of op, insurance company on 28.10.2019.

                 Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

             On the background of the above noted admitted  facts and circumstances the parties of this case are deferring on the point and/ or apple of discord between the parties of this case is that the complainant is adopting the plea that inspite of existence of valid mediclaim insurance policy the op, insurance company has illegally repudiated the claim on the ground of suffering by the complainant “diabetic mellitus” although the complainant is not at all a patient of diabetes and this act of op, insurance company is not only illegal but also amounting to deficiency of service but on the other hand the op, insurance company has adopted the defense alibi that the complainant in his proposal form has intestinally suppressed the fact that he has been suffering from “diabetes mellitus” for which the claim of the complainant was cancelled/ repudiated as per policy terms and conditions 5.1.1 and 5.1.2.

In order to arrive at just and proper decision in respect of the above noted issue this District Commission finds that as there was mediclaim policy was in existence at the time of implantation of pacemaker to the complainant the op, insurance company is in contractual obligation to indemnify the claim amount in favour of the complainant.

Another important point of contention and argument raised by the ld. Advocate of the opposite party no. 2 is that the complainant concealed the factum of pre existing disease (HTN) for which he had obtained medical treatment and the complainant was suffering from HTN for a long time and the policy under dispute was the subsequent policy and the period of 48 months was not over at the time of medical treatment by the complainant and for that reason the opposite party no. 1 has rightly repudiated the claim of the complainant. Over this issue Hon’ble State Commission, Delhi in appeal no. A-482/2005 disposed of on 1.8.2008 has been pleased to observe the following points:-

1. 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.
2. If insured had been even otherwise living normal and healthy life and attending to his duties and daily chores like any other person and is not declared as a disease person as referred above he cannot be held guilty for concealment of any disease, the medical terminology of which is even not known to an educated person unless he is hospitalized and operated upon for a particular disease in the near proximity of date of insurance policy say few days or months.
3. Disease that can be easily detected by subjecting the insured to basic tests like blood test, ECG etc. the insured is not supposed to disclose such disease because of otherwise leading a normal and healthy life and cannot be branded as diseased person.
4. Insurance Company cannot take advantage of its act of omission and commission as it is under obligation to ensure before issuing medi-claim policy whether a person is fit to be insured or not. It appears that insurance Companies don’t discharge this obligation as half of the population is suffering from such malaises and they would be left with no or very little business.

Thus, it is crystal clear that the attempt on the part of insurer (op no. 1) to repudiate the claim for such non discloser is neither permissible nor is exclusion clause invocable. So the Clause No. 5.1.1 and 5.1.2 which is referred by opposite party side is also not acceptable in this case.

            Hon’ble State Commission, Delhi in the above noted appeal has also been pleased to observe that unless and until a person is hospitalized or undergoes operation for a particular disease in the near proximity of obtaining insurance policy or any disease for which he has never been hospitalized or undergone operation is not a pre-existing disease. Is a person conceals the factum of his hospitalization of a particular disease or operation undergone by him in the near proximity of obtaining the insurance policy say a year or two, only then it can be termed as concealment of factum of disease and doctrine of good faith u/s 45 of the Insurance Act may be pressed in by Insurance Company and not otherwise. Doctrine of good faith is two-way traffic and not a one-way traffic. If the Insurance Companies take benefit of doctrine of good faith then they have to accept whatever the insured declares and should not subject the insured to medical test and get certificate from the Doctor on the panel that the insured possesses sound and good health and is entitled to mediclaim insurance policy. Such a certificate will be meaningless and of no relevance as to the state of health of a person.

            Hon’ble State Commission, Delhi in the above noted appeal has also been pleased to observe that recently the Hon’ble Apex Court has deprecated the practice of Insurance Companies for rejecting the claims in respect of mediclaim policies on the ground of pre-existing disease.

Hon’ble National Consumer Disputes Redressal Commission, New Delhi in Revision Petition no. 2858 of 2017 decided on 18^th April 2018 has also been pleased to observe almost similar views/ legal principle which have been stated above.

   A cumulative consideration of the above noted discussion goes to show that the complainant of this case has proved his claim in respect of all the points of consideration adopted in this case and so he is entitled to get the relief which he has prayed in this case.

In the result it is accordingly

ordered

that the complaint case being no. 36 of 2020 be and the same is allowed on contest but in part against op nos. 1 and 3 and it is dismissed against op nos. 2 and 4.

            It is held that the complainant is entitled to get the sum of Rs. 3,00,000/- as coverage of the health insurance (mediclaim) policy and also entitled to get compensation of Rs. 20,000/- for mental agony, pain and deficiency of service and also entitled to get litigation cost of Rs. 10,000/- from the op nos. 1 and 3.

Opposite party nos. 1 and 3 are directed to pay the said amount to the complainant within 45 days from the date of this order otherwise complainant is given liberty to execute this order as per law.

            In the event of nonpayment/ noncompliance of the above noted direction the opposite party nos. 1 and 3 are also directed to pay and/ or deposit Rs. 10,000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly which is to be utilized for the purpose of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.