Complaint No: 288 of 2019.
Date of Institution: 11.09.2019.
Date of order: 06.09.2023
Gagandeep Khindria Son of Satish Kumar Khindria age about 39 years, H.No.49/797, Mohalla Maan Nagar, Dera Baba Nanak, City Batala District Gurdaspur.
….....Complainant.
VERSUS
- Religare Health Insurance Company Limited., Sco-28, 1st floor, Taneja Tower, Ranjit Avenue, Amritsar, through its Branch Manager.
- Religare Health Insurance Company Limited., Vipul Tech Square, Tower C, Third floor, Golf Centre Road, Sector-43, Gurgaon-122009, through its Manager.
- Fortis Escort Ltd, Majitha Verka Bypass Road Behra Enclave, Amritsar, through its Director
….Opposite parties.
Complaint U/S 12 of the Consumer Protection Act.
Present: For the complainant: Sh.Vishesh Kumar, Advocate.
For the opposite parties No.1 & 2: Sh.Sandeep Ohri, Advocate.
None for the opposite party No.3.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President
Gagandeep Khindria, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act, (here-in-after referred to as 'Act') against Religare Health Insurance Co. Ltd. Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant is doctor by profession and his wife namely Shivani is also a doctor by profession. Whereas the opposite parties No. 1 & 2 are the insurance company and the opposite party No.3 is empanelled Hospital of the opposite parties No.1 and 2. It was submitted that the opposite parties No. 1 to 2 allured the complainant to obtain a health group insurance policy from them, which will be beneficial to the complainant etc., as such complainant fell into the trap of the opposite parties No. 1 and 2 and took a Health Group Insurance vide Policy No.11758547 on dated 24.03.2018. It is further pleaded that the total insured member of the family was 5 which include complainant, his mother, his wife and two children. It is alleged that the wife of the complainant had fallen ill and she remained under treatment at empanelled hospital and accordingly the complainant had lodged his claim and same was allowed and intimation was given on 07.08.2018. It is further pleaded that complainant renewed its Heath Group Insurance on 24.03.2019 vide Policy No.12281899 and its premium was Rs.20,813/- and the payment of premium is annual. It was submitted that the basic benefit of the said policy was that the opposite parties No.1 & 2 offers cashless treatment of the members of the family in case of any accident or any other illness. It is further alleged that unfortunately, the wife of complainant namely Shivani suffered heart-attack and she was admitted in the hospital of the opposite party No. 3 and she remained admitted in the said Fortis Escorts Hospital at Amritsar till 29.05.2019. It is further pleaded that since the complainant has got the Health insurance policy from the opposite party No.1 & 2 for cashless treatment, as such the opposite party No.3 lodge claim with the opposite party No.1 & 2 for the expenses of the treatment of the wife of the complainant namely Shivani, but the opposite party No. 1 & 2 repudiated the claim of the opposite party No. 2 on the ground that "NON DISCLOSURE OF MATERIAL FACTS PRE EXITING ALIMENTS AT THE TIME OF THE PROPOSAL". It is further alleged that the opposite party No.3 approached the complainant and handed over the letter dated 27.05.2019 issued by the opposite party No. 1 & 2 regarding denial of claim and also directed the complainant to pay Rs.2,73,229/- for the expenses of the treatment of the wife of the complainant. It is further pleaded that the complainant paid Rs.2,73,229/- to the opposite party No.3. It is further alleged that thereafter the complainant lodged the claim of Rs.2,73,229/- with the opposite party No.1 & 2 and the opposite party demanded some documents from the complainant which were provided by the complainant to the opposite party No.1 & 2 as per their demand but the opposite party No.1 & 2 were lingering upon the matter on one pretext or the other and finally the opposite party No.1 & 2 again sent a letter to the complainant dated 19.06.2019 and denied the claim of the complainant on the same ground i.e. "NON DISCLOSURE OF MATERIAL FACTS PRE EXITING ALIMENTS AT THE TIME OF THE PROPOSAL". It is further alleged that the opposite parties have failed to pay the claim amount. It is further pleaded that it is clear cut case of deficiency in service, unfair trade practice and negligent on the part of the opposite parties, as opposite parties have failed to comply with the policy provided to the complainant. It is further alleged that the opposite parties No.1 & 2 illegally repudiated the claim of the complainant on the ground mentioned in the said letter and the opposite parties has no valid ground for rejecting the claim of the complainant. It is further pleaded that wife of the complainant suffered from heart attack due to high blood pressure which is not pre-exiting diseased. It is further pleaded that she has no past medical history regarding the said diseased and the high blood pressure or heart attack is an accident therefore the complainant is entitled for the claim. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to pay the claim amount i.e. of Rs.2,73,2291- to the complainant. The opposite parties also may kindly be directed to pay Rs.50,000/- for harassment, financial loss, mental tension etc., and the opposite parties also may kindly be directed to pay Rs.25,000/- for litigation expenses, in the interest of justice.
3. Upon notice, the opposite parties No.1 and 2 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complainant has no cause of action to file the present complaint and the insurance is a contract between the two parties based on utmost good faith. It is further pleaded that it is the duty of the complainant to disclose all the material facts regarding his health, at the time of getting the health policy in the proposal form and the complainant concealed the pre-existing ailments at that time, due to which the claim of the complainant has been repudiated and both the parties are bound with the terms and conditions of the policy provided with the policy to the complainant. It is pleaded that the health insurance policy was issued to the complainant bearing No. 11758547 and the complainant along with his mother, spouse (here-in-after known as "the Insured") and two children were covered w.e.f. 24.03.2018 till 23.03.2019 for a total sum insured of Rs.10 Lakh. It is further pleaded that policy was further renewed till 23.03.2020 and through the treating Hospital, the insured applied for cashless pertaining to the hospitalization of the Insured at Fortis Hospital Amritsar for Heart Related problem. It is further pleaded that on receipt of the cashless request, it came to light that insured has HTN and DM and accordingly to get more clarity of the matter, the O.P Company sought past treatment record with regard to the same vide query letter dated 26.05.2019 and claim investigation also started. It is further pleaded that basis of the information provided in the cashless request form, query reply and investigation, it came to light that insured is suffering from hypertension prior to policy inception, therefore the cashless request was denied by the O.P company vide letter dated 27.05.2019 on the ground of non-disclosure of the material facts. It is further pleaded that thereafter the complainant filed reimbursement claim and the reimbursement claim was also rejected by the O.P/company vide letter dated 19.06.2019 under clause 5.2 of the policy terms and conditions for non-disclosure of the material information. It is further pleaded that as per clause 5.2 the complainant was under obligation to disclose all the material facts at the time of taking the policy. It is further pleaded that as per the questionnaire dated 27.05.2019 filed by the insured herself and certified by the Treating Doctor, the insured is specified to have a history of HTN since past 8 years i.e. prior to the policy inceptions. It is further pleaded that as per the Discharge Summary dated 29.05.2019, prepared by Fortis Escorts hospital, the Insured is specified to be a K/C/O type II DM with HTN. It is further alleged that the complainant and the insured had opportunity to disclose about the history of hypertension at the time of proposal form dated 22.03.2018, but no such disclosure was made by the complainant. It is further pleaded that in the matter of Satwant Kaur Sandhu Vs. New India Assurance Co. Ltd., 2009 (8) SCC 316, it has been held that if the proposer have knowledge of any material fact then he is obliged to disclose it particularly while answering questions in the proposal form. It is further pleaded that any inaccurate answer will entitle the insurer to repudiate their liability. It is further pleaded that there is no liability of the insurance company and the claim has rightly been repudiated.
On merits, the opposite parties No.1 and 2 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite parties. In the end, the opposite parties prayed for dismissal of complaint with costs.
4. Upon notice, the opposite party No.3 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complainant is not covered under the definition of "consumer" under the act ‘ibid’ qua replying Opposite Party. It is further pleaded that complainant has no locus standi to file the present complaint under the provisions of the act ‘ibid’ and obviously does not fall within the preview of the ‘consumer’ as envisaged under section 2(d) of the Act ‘ibid’; the Hon'ble Commission does not have the jurisdiction in the above said case because none of the OP’s have any branch in Gurdaspur as is evident from the Memo of Complaint. OP No. 1 is stationed in Amritsar and Head Office of OP No.2 is at Gurgaon. It is further pleaded that as for as the OP No. 3 is concerned, there is no branch in Gurdaspur and as such the District Consumer Commission does not have the jurisdiction to try the case and a separate application to this effect is also being moved for transfer of the case the District Consumer Redressal Commission, at Amritsar. It is further pleaded that the complaint is not maintainable either on facts or under the law against the Opposite Party No.3. It is further pleaded that since no specific allegation has been alleged in the complaint against the answering opposite party and as such Complaint is not maintainable against the opposite party No. 3 and the present complaint is a gross abuse of the process of this Hon'ble Commission as the complainant has not approached this Hon’ble Commission with clean hands. It is further pleaded that Various material facts have been concealed and distorted version of facts has been deliberately presented in or to pressurize and harass the Opposite Party No. 3 and there is no evidence worth its name to show that there is any negligence or deficiency or delay in service at the hands of the Opposite Party No. 3. It is further pleaded that there is no breach of contract between the complainant and O.P. No. 3 since the O.P. No. 3 was not a part of contract of insurance Company and persons insured and the patient has only paid the charges consented upon for the medical services taken from the opposite Party No.3. It is pleaded that the matter of the fact is that the O.P. No.3 has been unnecessarily roped into this litigation. It is further pleaded that Smt. Shivani aged 37 years; wife of the complainant was admitted in Fortis Escorts Hospital on 26.05.2019 in emergency with chest pain and the patient was a known case of Type II DM with HTN and had a history of C section done 8 years ago and the patient was diagnosed triple vessel disease and advised for PTCA to RCA. It is further pleaded that patient was discharged in good condition and there is no complaint to medical treatment as far as patient is concerned. It is further pleaded that grievance of the patient is denial of insurance for medical treatment by the OP No. 1 & 2. It is further pleaded that as for as the patient covered under some insurance Policy of OP No. 1 & 2, it is submitted that an insurance card of the patient is not a credit card for medical treatment. It is further pleaded that patient has signed an undertaking which clearly indicates that in case of non-sanction of the amount by the insurance company, the bills have to be settled by the patient. The relevant clause of the Undertaking reads as under:
- “4. In the event of rejection/reduction/denial by TPA out of the amount sanctioned under pre-authorization communication for any reason whatsoever including misstatement, non-disclosure of existing disease at the time of taking of med claim policy non-disclosure of previous disease in the pre-authorization form the same would be paid by me before discharge from my personal resources.
- 5.1 also understand that initial approval will not be considered as Final Approval and due to any reasons LAMA, EXPIRY or DOR in case if I want to release my patient will settle HOSPITAL BILL according to cash bill from which will be refunded from hospital end as subject to final approval from TPA.”
It is further pleaded that at the time of admission also a consent/undertaking titled, 'Financial Counseling & Consent for payment of Charges' was signed on 26.05.2019, wherein it is consented, ‘I further state that I take the full responsibility of settling the bill before leaving the hospital. I certify that I have been explained in the language I understand the requirement of hospitalization for me/my patient'. The patient was apprised of the charges required to be incurred for Treatment 'CORONARYANGIOGRAPHY' which has been signed by Shri Gagandeep husband of patient. It is further pleaded that the patient was admitted on 26 May, 2019 and was discharged on 29th May, 2019. It is further pleaded that Discharge summary clearly reads, ‘Patient came in emergency with c/o chest pain since today morning and ECG showed acute Infamy and was thrombolysis with Retelex and Lab investigations revealed raised level of TLC (12500), Trop-T(56). Echocardiogram done on 27.05.2019 revealed CAD, RWMA present, normal LV/RV function EF 55% and normal PAP. It is further pleaded that patient underwent Coronary Angiography on 27.05.2019 revealed triple vessel disease and advised for PTCA to RCA and Coronary Angioplasty (PTCA stent to RCA +POBA PLV-PDA) done on same sitting. It is further pleaded that procedure was uncomplicated and well tolerated and her subsequent stay in the hospital was uneventful and discharged in stable condition. It is further pleaded that patient has paid the total bill of Rs.2,73,229 - for the treatment undertaken by her as consented. It is further pleaded that in the complaint any deficiency on the part of the O.P. No. 3 has specifically not been pointed out and O.P. No.3 has been roped into litigation without any deficiency or negligence in service. It is further pleaded that on 19.06.2019 the claim has been rejected by the OP No. 1 and 2 on the ground “NON DISCLOUSURE OF MATERIAL FACTS/PRE EXISTING AILMENTS AT THE TIME OF PROPOSAL”. It is therefore clear that as far as OP No. 3 is concerned no cause of action arises against the OP No. 3 and stated in the complaint itself the cause of action is only repudiation of claim and the same as stated in Para 6 of the complaint is only against OP No. 1 and 2 and no cause of action arises against the OP No. 3.
On merits, the opposite parties No. 3 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
5. But, after filing reply neither opposite party No. 3 nor their counsel have appeared on the last previous dates.
6. Learned counsel for the complainant has tendered into evidence affidavit of Gagandeep Khindria, (Complainant) as Ex.C-1 along with other documents as Ex.C-2 to Ex.C-19.
7. Learned counsel for the opposite parties No.1 and 2 has tendered into evidence affidavit of Shreya Chansoria, (Authorized Signatory, Religare Health Insurance Company Ltd., Delhi) as Ex.OP-1,2/A along with other documents as Ex.OP-1,2/1 to Ex.OP-1,2/11.
8. Learned counsel for the opposite party No. 3 has tendered into evidence affidavit of Dinesh Vashist, (Facility Director of Fortis Escort Hospital, Amritsar) as Ex.OP-3/A along with other documents as Ex.OP-3/1 to Ex.OP-3/5.
9. Rejoinder not filed by the complainant.
10. Written arguments not filed by both the parties.
11. Ld counsel for the complainant has argued that the complainant is doctor by profession and his wife namely Shivani is also a doctor by profession and complainant to obtain a health group insurance policy from the OP and the wife of the complainant remained under treatment at empanelled hospital and accordingly the complainant had lodged his claim and same was allowed and intimation was given on 07.08.2018. It is further argued that wife of the complainant was admitted in the hospital of the opposite party No. 3 but the opposite party No. 1 & 2 repudiated the claim of the opposite party No. 2 on the ground that "NON DISCLOSURE OF MATERIAL FACTS PRE EXITING ALIMENTS AT THE TIME OF THE PROPOSAL". Which is clear cut deficiency in service on the part of opposite parties.
12. It is argued by the counsel for the opposite party No.1 and 2 that on 19.06.2019 the claim has been rejected by the OP No. 1 and 2 on the ground “NON DISCLOUSURE OF MATERIAL FACTS/PRE EXISTING AILMENTS AT THE TIME OF PROPOSAL”. It is further argued that thereafter the complainant filed reimbursement claim and the reimbursement claim was also rejected by the O.P/company vide letter dated 19.06.2019 under clause 5.2 of the policy terms and conditions for non-disclosure of the material information and as per clause 5.2 the complainant was under obligation to disclose all the material facts at the time of taking the policy. It is further argued that as per the questionnaire dated 27.05.2019 filed by the insured herself and certified by the Treating Doctor, the insured is specified to have a history of HTN since past 8 years i.e. prior to the policy inceptions. It is further argued that as per the Discharge Summary dated 29.05.2019, prepared by Fortis Escorts hospital, the Insured is specified to be a K/C/O type II DM with HTN. The claim is not payable and compliant is liable to be dismissed. It is plea of the op No.3 that as far as OP No. 3 is concerned there is no cause of action against the OP No. 3 and the cause of action is only repudiation of claim and the same as stated in Para 6 of the complaint is only against OP No. 1 and 2 and no cause of action arises against the OP No. 3.
13. We have heard the counsel for the complainant and opposite party No. 1 and 2 and gone through the contents of the pleading of opposite party No.3. It is admitted fact that complainant had purchased health insurance policy from opposite parties No. 1 and 2. It is further admitted fact that during continuation of the policy the wife of the complainant who was also insured under policy suffered from heart problem and remained under treatment with op No.3. It is further admitted fact that cash less and after cash less reimbursement claim has been repudiated by the opposite parties. It is admitted fact that the wife of the complainant suffered heart attack but cash less treatment has been declined only due to previous history of hypertension but the opposite parties have not been able to prove this fact that hypertension alleged by the opposite parties was cause of heart problem for which the wife of the complainant took treatment. Moreover, the disease for which complainant is alleged to be suffering i.e. Heart disease, which is subject matter of the present compliant has no concern with hypertension and when there is no relation between the alleged previous disease and disease mentioned in the medical history of complainant, the opposite parties cannot refused to settle and pay the claim to the complainant. More over the opposite parties have not lead any evidence in the shape of affidavit of any medical expert that the Hypertension lead to the Heart disease in the present case.
14. This Commission has placed reliance on judgment of Hon'ble Supreme Court of India 2023(2) Law Herald (SC) 1560 titled as Om Parkash Ahuja Vs. Reliance General Insurance Co. Ltd. Etc. wherein it was held by the Hon'ble Supreme Court of India as under
"Consumer Insurance Health Insurance Non mentioning of disease from which the deceased suffered at the time of purchasing the policy was not material, as the death was caused from a different disease all together Both had no relation with each other Insurance Company directed to pay".
As per this judgment it was held by the Hon'ble Supreme Court of India that non mentioning of disease from which wife of the applicant was suffering at the time purchasing policy is not material and the death was caused from different disease all together.
15. Further, reliance is be placed on another judgment of Hon'ble Supreme Court of India reported in 2018(1) Law Herald (SC) 832 wherein it was held by Hon'ble Supreme Court of India as under
"Insurance Life Insurance Premium accepted without conducting of medical examination Amounts to waiving off condition precedent in proposal form Insurer held liable to pay".
The ground of the opposite parties regarding non settlement and payment of the claim is previous history of hypertension but this Commission is of the view that hypertension is a common life style disease and it is not necessary that person suffering from hypertension would always suffer from some other disease or heart disease. More over Hypertension is common life style disease and every third person might have suffered from the same at some point of his life. This Commission has placed reliance an order of Hon'ble Punjab State Consumer Dispute Redressal Commission, Chandigarh reported in 2017(3) CLT 140 wherein it was held as under
"Hypertension is a common disease and it can be controlled by medication".
16. We are of the view that the opposite parties cannot refuse to settle the claim of the complainant by referring to the record of previous ailments with which the present disease has no connection or nexus. Moreover, the opposite parties have renewed the policy of insurance from time to time receiving premium. As such having renewed the policy of insurance from time to time without having availed medical examination of the complainant prior to renewal of the policy amounts to waiver and as such opposite parties cannot refuse to settle the clam by referring to the documents regarding previous ailment with which the present ailment has no concern. We are of the view that insurance companies are only interested in procuring business this way or the other but at the time of the settlement they find one excuse or the other some of which are totally ignorable.
17. We placed reliance upon judgment of Hon'ble Supreme Court of India reported in 2022 LiveLaw (SC) 506 wherein it was held by the Hon'ble Supreme Court of India as under
"Insurance Insurance companies refusing claim on flimsy grounds and/or technical grounds While settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control. Para 4.1".
18. This Commission is of the view that it was obligatory on the part of the opposite parties before renewal of the policy of insurance must had insisted for medical examination of the complainant and his family members and since the opposite parties have failed to get them medically examined before renewal, as such opposite parties have no right to take any such ground later on. Even, in the present case opposite parties have failed to place on record any evidence or affidavit of any doctor regarding previous ailment in respect of which documents are being demanded.
19. We also placed reliance upon judgment of Hon'ble Punjab State Consumer Dispute Redressal Commission, Chandigarh reported in 2014(3) C.P.J. 13 : 2014(87) R.C.R.(Civil) 264 wherein it was held as under
"Insurance Company failed to produce any evidence to show that appellant was suffering from said disease at the time of taking policy No affidavit of any doctor or person who recorded history of patient".
20. From the above discussion and evidence on record complainant has fully proved that during the continuation of policy of insurance complainant remained admitted in hospital and had submitted the necessary documents with the opposite parties and detail of treatment and expenditure which is admitted by the opposite parties as Rs.2,73,229/- and the act of the opposite parties of repudiated the cashless and reimbursement claim vide letters Ex.OP-1, 2/3 amounts to deficiency in service particularly when the alleged previous disease has no connection with disease for which the complainant took treatment. As such complainant has fully proved deficiency on the part of the opposite parties for having failed to settle and pay the claim which was ultimately denied vide letter Ex.C8 and it amounts to deficiency in service on the part of the opposite parties.
21. Accordingly, we partly allowed the present complaint and opposite parties are directed to pay Rs.2,73,229/- to the claimant alongwith interest @ 9% P.A. from the date of filing of the complaint till realization. Opposite parties are further directed to pay Rs.10,000/- to the complainant for mental tension, harassment, inconvenience and cost of litigation. Entire exercise shall be completed within 30 days from the receipt of copy of this order.
22. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
23. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Lalit Mohan Dogra)
President
Announced: (B.S.Matharu)
Sept. 06, 2023 Member
*YP*
