Chandigarh

DF-I

CC/707/2015

Ms Preeti Bedi - Complainant(s)

Versus

Religare Health Insurance Co. Ltd. - Opp.Party(s)

Mukand Gupta

30 Aug 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I,

U.T. CHANDIGARH

========

 

 

                               

Consumer Complaint No.	:	CC/707/2015
Date of Institution	:	19/10/2015
Date of Decision	:	30/08/2016

 

 

Ms. Preeti Bedi w/o late Rajnish Bedi resident of House No.1166, 1^st Floor, Sector 22-B, Chandigarh.

…..Complainant

V E R S U S

1.     Religare Health Insurance Company Ltd., SCO No.28, 2^nd Floor, Sector 20-D, Chandigarh through its Branch Manager.

2.     Religare Health Insurance Company Ltd., D-3, District Center, Saket, New Delhi – 17 through its authorised representative.

……Opposite Parties

 

QUORUM:	DR. MANJIT SINGH	PRESIDENT
	MRS.SURJEET KAUR	MEMBER
	SURESH KUMAR SARDANA	MEMBER

                                                                                       

 

ARGUED BY	:	Sh. Mukand Gupta, Counsel for complainant.
	:	Sh. Sahil Abhi, Counsel for OPs.

 

                                 

PER DR. MANJIT SINGH, PRESIDENT

1.         Ms. Preeti Bedi, complainant has brought this consumer complaint under Section 12 of the Consumer Protection Act, 1986, against Religare Health Insurance Company Ltd. and another, Opposite Parties (hereinafter called the OPs), for directing the OPs to pay Rs.55,036/- on account of medical expenses; Rs.20,000/- as compensation for mental harassment and agony suffered by her and Rs.15,000/- as litigation expenses.

                Put in brief, the facts of the case are that the complainant purchased a Health Insurance Policy from the OPs which was valid for the period from 22.1.2015 to 21.1.2016. The complainant was insured upto Rs.5.00 lacs and she paid premium of Rs.11,774/-. As per the complainant, she was only issued the policy certificate and the terms and conditions of the policy were not supplied to her by the OPs. During the currency of the policy in question, the complainant had some problem in her left knee for which she consulted a doctor at Shivalik Hospital & Trauma Centre on 12.4.2015 and thereafter got conducted CTR and MRI.  On the basis of the reports dated 12.4.2015 and 13.4.2015, the doctor at the said hospital admitted the complainant for surgery of left knee Asthroscopy on 1.5.2015 and she was discharged on 2.5.2015. The complainant spent a sum of Rs.55,036/- on her medical treatment. It is alleged that though the representatives of the OPs had assured the complainant that it was a cashless treatment for which she had to pay nothing from her pocket, but, they did not care to pay. Ultimately the complainant lodged a claim with the OPs claiming medical expenses incurred by her.  Thereafter, in order to process the claim, the OPs demanded certain documents from the complainant vide email dated 9.6.2015 which were duly supplied by her.  However, surprisingly vide letter dated 4.7.2015, the OPs rejected her claim under clause 6.1 of the terms and conditions of the Health Insurance Policy for non-declaring hyper-tension/diabetes for the last four years.  The OPs also threatened to cancel the policy and the complainant vide its reply dated 28.7.2015 stated that they cannot cancel the policy as she never concealed any fact. Alleging that the aforesaid acts amount to deficiency in service and unfair trade practice on the part of OPs, the complainant has filed the instant complaint praying for reliefs mentioned above.

2.         The OPs resisted the complaint by filing their joint written statement, inter alia, taking the preliminary objections that the present complaint is barred under Section 26 of the Consumer Protection Act; that the present complaint is not maintainable. It is stated that the complainant obtained the policy for the first time in the year 2013, which was valid from 22.1.2013 to 21.1.2014. The said policy was subsequently renewed from 22.1.2014 to 21.1.2015 and 22.1.2015 to 21.1.2016 on the basis of the facts disclosed by the proposer i.e. insured in the proposal form.  The policy kit consisting of proposal form, policy, policy terms and conditions was sent to the complainant vide Air-Way Bill (AWB) No.43995681984 on 28.1.2013, but, she has withheld the production of the entire kit at the time of filing the complaint. It is stated that a claim was lodged by the complainant for reimbursement of the medical expenses incurred by her on her treatment which was denied vide letter dated 4.7.2015 for “Non-disclosure of Hypertension/Diabetes for last 4 years” wherein diabetes was erroneously mentioned in place of Migraine. Hence a revised rejection letter dated 13.11.2015 with the reason of rejection recorded as “non-disclosure of Hypertension/ Migraine for the last 4 years”. It is contended that the complainant by not disclosing true and correct facts about her health at the time of proposing has violated ‘the principles of ‘uberrima fides’. It is alleged that had true and correct facts been disclosed at the proposal stage, the contract would have been insured on separate terms and conditions. The OPs served a show cause/cancellation notice dated 18.9.2015 upon the complainant to furnish the correct facts supported by valid document proof in case she disputed the facts of non-disclosure of hypertension and Migraine failing which it was made clear that the OPs would be entitled to cancel the policy as per clause 6.1 of the policy terms and conditions. However, the complainant failed to submit any reply, as such, the OPs vide letter dated 20.10.2015 repudiated the claim and further informed her that her health insurance policy stands void ab initio due to non-disclosure of material information and the premium stands forfeited and that OPs have no liability under the captioned policy and no further amount is payable. Thus, the OPs prayed for dismissal of complaint.
3.         Replication was filed by the complainant denying all the averments in the written statement of the OPs.
4.         Parties led evidence in support of their contentions. 
5.         We have gone through the record, including the written arguments, and heard the arguments addressed by the learned Counsel for the parties.
6.         The learned counsel for the complainant argued that the OPs/Insurance Company are not justified in repudiating the claim of the complainant particularly when the OPs did not supply the terms and conditions of the insurance policy to the complainant at the time when she obtained the present policy effective from 22.1.2015 to 21.1.2016. The complainant also did not furnish any declaration or any form, so there was no occasion with the complainant to conceal any ailment. He further argued that the complainant was not suffering any ailment. The OPs have failed to produce any cogent evidence that the complainant was suffering from hypertension or diabetes or migraine, so the complainant is entitled to reimbursement of her medi-claim and the complaint be accepted.
7.         The learned counsel for the OPs, on the other hand, argued that the policy was obtained in the year 2013. At that time, the complainant gave the declaration while duly filling the policy form and did not disclose about his previous ailment of hypertension and migraine.  He argued that on the request of the complainant, the policy was renewed on yearly basis and it was the duty of the complainant to disclose about the pre-existing disease. Even though there was no requirement for a fresh declaration in case the policy was to be renewed, but, a duty was cast on the complainant to disclose about the material facts.  The OPs renewed the policy in good faith that during the intervening period the complainant did not suffer from any disease.  He further argued that even the declaration given in the year 2013 was also false as even at that time the complainant had concealed the material fact about her previous illness. The learned counsel for the OPs has relied upon the judgment of the Hon’ble Supreme Court in P.C. Chacko & Anr. Vs. Chairman, Life Insurance Corporation of India & Ors.,  2008 (1) SCC 321 wherein it was observed as under :-

“20.  We are not unmindful of the fact that Life Insurance Corporation being a State within the meaning of Article 12 of the Constitution of India, its action must be fair, just and equitable but the same would not mean that it shall be asked to make a charity of public money, although the contract of insurance is found to be vitiated by reason of an act of the insured. This is not a case where the contract of insurance or a clause thereof is unreasonable, unfair or irrational which could make the Court carried the bargaining powers of the contracting parties. It is also not the case of the appellants that in framing the aforesaid questionnaire in the application/proposal form, the respondents had acted unjustifiably or the conditions imposed are unconstitutional.”

Reliance has also been placed on the judgment in Satwant Kaur Sandhu Vs. New India Assurance Company Ltd., 2009 (8) SCC 316 wherein at the time of taking the policy deceased was suffering from Diabetic Nephropathy/chronic renal failure.  This disease was not disclosed while taking the policy, which was within the knowledge of the deceased. After the death of the deceased after 7 months of taking the policy, wife claimed compensation which was repudiated by the insurance company.  It was held that fact suppressed was a material fact. There is no deficiency in service. Insurance company was justified in repudiating the claim.  It was also observed that material fact means any fact which would influence the judgment of a prudent insurer in fixing the premium or determining whether to accept the risk or not. Reliance has also been placed on the judgment Tata AIG Life Insurance Co. Ltd. Vs. Orissa State Co-operative Bank & Anr., 2012 (4) CPJ 310 (NC) wherein the deceased was having diabetic foot. Cause of death was shown due to chronic renal failure. Material facts were suppressed from the Insurance Company. Insured died within six or seven months of obtaining the insurance policy.  The repudiation of the claim was held to be justified.  Reliance has also been placed on Life Insurance Corporation of India & Anr. Vs. Mandava Geetha, 2012 (3) CPJ 644 (NC) wherein fraudulent information was given by the insured at the time of submitting the proposals and the repudiation of the claim was held to be justified.  Reliance has also been placed on the judgment Sadanand Bag Vs. Life Insurance Corporation of India & Anr., 2012 (3) CPJ 398 (NC) wherein the assured had deliberately withheld the information with regard to her suffering for a number of years from oesphageal perforation. She had certified that she was in good health in declaration furnished by her only ten months prior to her death. The said suppression was held to be suppression of material fact. Further reliance has also been placed on LIC of India Vs. Rukma, 2012 (2) CPJ 44 (NC), wherein the death of the insured was due to epilepsy which fact was not disclosed and even he had met with an accident and suffered head injury which was also not disclosed. In these circumstances, it was held that the insured had suppressed material facts pertaining to his previous head injury and health while filling the proposal form which amounts to breach of the terms and conditions of the contract of insurance.

8.         It is admitted fact that the first policy was obtained by the complainant in the year 2013 for one year and the same was subsequently got renewed from time to time and the last policy was valid from 22.1.2015 to 21.1.2016. It is also not disputed that in the month of February 2015, the complainant had some problem in her left knee and ultimately she was admitted in the hospital on 1.5.2015 and was discharged from the hospital on 2.5.2015.  In the hospital various tests were conducted and a surgery on left knee was also performed and the complainant spent Rs.55,036/- on her medical treatment. 
9.         There is no dispute with the principle of law laid down in the judgments (supra) referred by the learned counsel for the OPs that in case material fact regarding pre-existing disease is concealed then the OPs are justified in repudiating the claim. It is also not disputed that as per clause 6.1 of the insurance policy “If any untrue or incorrect statements are made or there has been a misrepresentation, mis-description or non-disclosure of any material particulars or any material information having been withheld or if a Claim is fraudulently made or any fraudulent means or devices are used by the Policyholder or the Insured Person or any one acting on his/their behalf, the Company shall have no liability to make payment of any Claims and the premium paid shall be forfeited to the Company.” The argument of the learned counsel for the complainant that when the current insurance policy was obtained at that time no declaration form was given by the complainant nor obtained by the OPs, as such the complainant was not obliged to give information about her pre-existing disease is devoid of merit because the terms and conditions of the insurance policy had come to the knowledge of the complainant when she obtained the insurance policy for the first time in the year 2013.  At that time, she gave the declaration and similarly in case the complainant was suffering from any pre-existing disease at the time of taking the existing policy, she was under obligation to disclose about her pre-existing disease at the time of getting the policy renewed. The contract of insurance is of utmost good faith.  In a contract of good faith, both the parties are under an obligation to disclose the true facts to each other. So, it cannot be said that the complainant was not obliged to disclose her pre-existing disease at the time of taking the current policy or getting the old policy renewed.
10.         The burden was on the OPs to prove that at the time of getting the policy renewed, the complainant was suffering from a pre-existing disease which was required to be disclosed by her at the time of renewal of the policy. The OPs have placed on record the proforma which was filed by the complainant at the time of taking the first policy in the year 2013. At that time admittedly the complainant did not disclose about any disease.
11.         To prove that at the time of getting the policy renewed the complainant was suffering from hypertension and migraine, the OPs have placed on record a copy of letter (Annexure OP-8) from Dr. Bhownesh Chander Mahajan who certified that the complainant, Ms. Preeti Bedi has been taking medicines for high BP and migraine for last 4 years and she was visiting his clinic as an outdoor patient.  However, the OPs have failed to place on record the affidavit of the said Dr. Bhownesh Chander Mahajan to the effect as to whether he was maintaining any record of outdoor patients in his clinic or as to whether he was having the record of regular visits for the last 4-5 years of the complainant. The letter (Annexure OP-8) obtained from Dr. Bhownesh Chander Mahajan nowhere proves as to whether he was maintaining the record in his clinic regarding the outdoor visits of the complainant or that he was having any record with him about the medicines taken by the complainant for her blood pressure and migraine. It was the duty of the OPs to examine the doctor alongwith the record so that it could be proved that the complainant, Ms. Preeti Bedi was under the treatment of Dr. Bhownesh Chander Mahajan for the last 4-5 years and she was taking the medicines for blood pressure and migraine. In absence of examination of the doctor or any supporting medical prescription, the letter (Annexure OP-8) is not sufficient to prove that the complainant was suffering from hypertension (BP) and migraine for the last 4-5 years. 
12.         The OPs have also relied upon a questionnaire (Annexure OP-6) allegedly obtained from Dr. Santosh Kumar Agrawal of Shivalik Hospital & Trauma Centre from where the complainant got done the surgery of her knee.  In reply to question No.8, since how long the patient was suffering from Hypertension and treatment taken for the same, the answer was “History of hypertension, duration not known (irrelevant)”. Thus, this questionnaire also does not support the OPs because if it is presumed that at the time of admission in the hospital for any surgery, the complainant was suffering from hypertension, even then it cannot be said that the complainant was suffering from hypertension prior to getting her policy renewed. Sometimes because of fear of operation the blood pressure of a patient is on a higher side and after operation it becomes normal. So, this questionnaire is also not sufficient to reach at the conclusion that the complainant was suffering from hypertension prior to getting the policy renewed.
13.         The counsel for the OPs has also relied upon another questionnaire (Annexure OP-7) put to the complainant which bears the signatures of the complainant.   In question No.7 when the complainant was asked to specify since how long she was suffering from hypertension, the complainant replied that she was suffering from hypertension for about 1½ years and taking Metolar 50 Mg OD and no consultation papers were available.  In reference to question No.9, the complainant replied that she was suffering from migraine for past 4-5 years and taking treatment from Dr. Bhownesh Chander Mahajan and since then consultations papers were not available. Migraine is not such a disease concealment of which can be said to be a material concealment.  Migraine has no nexus with the knee problem. Migraine is a type of headache and sometimes people do not bother about such a disease. As such, non-disclosure of such a disease cannot be said to be concealment of a material fact. Though this questionnaire bears the signatures of the complainant and signed by the witness, but, the OPs have failed to prove who filled this questionnaire. As to whether the answers to the questionnaire were in the hands of the complainant or of some employee of the insurance company?  Otherwise also, even hypertension has no nexus with the knee surgery.  The claim of the complainant was repudiated by the insurance company because of hypertension and diabetes, but, later on the correction was made and it was mentioned that the complainant was suffering from migraine not diabetes. Both migraine and hypertension are such diseases that sometimes one may not notice or take them seriously. Until and unless there is authentic evidence of the past history of medical treatment obtained by the complainant for hypertension and migraine, the non-disclosure of the same cannot be said to be intentional concealment of material fact,
14.         In United India Insurance Co. Ltd. & Anr. Vs. S.K. Gandhi, 2015 (2) CLT 71 (NC), the insurance company had not placed on record either the discharge summary of the complainant or any medical document signed by the doctors who treated him in Kailash Hospital, to show that the complainant, when he was admitted to the said hospital, had himself stated that he was suffering from hypertension from last 8-9 years. In that case it was held that it is quite possible that the complainant, despite suffering from hypertension was not actually aware of the same and he cannot be accused of misstatement or concealment. Onus was upon the insurance company to prove that he had made a misrepresentation while obtaining the insurance policy and since the insurance company failed, it was held that it was liable to pay to the complainant to the extent of sum insured by it. In Satish Chander Madan Vs. M/s Bajaj Allianz General Insurance Co. Ltd., 2016 (1) CPJ 613 (NC) it was held that hypertension is a common ailment and it can be controlled by medication and it is not necessary that person suffering from hypertension would always suffer a heart attack.  It was further held that treatment for heart problem cannot be termed as claim in respect of pre-existing disease and the insurance company was held liable. In Oriental Insurance Co. Ltd. Vs. Naresh Sharma & Ors., 2015 (2) PLR 75, the Hon’ble Punjab and Haryana High Court held that the exclusion clause  has to be read to the benefit of patient in genuine circumstances. Where respondent was admitted in hospital suffering from headache, giddiness and hypertension, his claim cannot be rejected on the basis of exclusion clause. Reliance can also be placed on a Division Bench judgment of Hon’ble Punjab and Haryana High Court in CWP No.9738 of 2008-Life Insurance Corporation of India Vs. Permanent Lok Adalat & Anr. decided on 17.10.2008, wherein it was held that the duty to disclose is limited to the facts within the knowledge of the assured, a mistaken statement about a material fact made honestly, that is, with belief in its truth, will not affect the validity of the contract.  Reliance was also placed upon a decision of Division Bench of Hon’ble Madras High Court in All India General Insurance Co. Ltd. & Anr. Vs. S.P. Maheshwari, AIR 1960 Madras 484 wherein it was found that the answers to the questions are representations and a false representation will not operate to vitiate the contract or avoid the policy unless the fact is actually material or clearly intended to be made material by the agreement between the parties.  The insurer can avoid the policy only by proving that the statement is false or fraudulent or that it was false and material to the risk.  It was further observed as under :-

“In the present case, there is no proof of the insured having been suffering from hypertension for a period of 10 years and assuming it to be so, hypertension is a disease which can escape attention of a person and is required to be diagnosed by experts.”

So, in the present case, the OPs have failed to produce any cogent evidence to prove that prior to the date of taking the policy, the complainant was suffering from hypertension and migraine and was getting any treatment and that fact was in her knowledge and she intentionally concealed the same. There is no dispute with regard to the law laid down in the judgments referred by learned counsel for the OPs, but, the same are not applicable to the facts of the present case because in the present case the OPs have failed to produce any cogent evidence to the effect that the complainant had knowledge of hypertension and migraine and had intentionally concealed the treatment. The OPs have failed to prove that the complainant has suppressed material fact while getting the policy renewed.  As such, the OPs were not justified in repudiating the claim of the complainant.

15.         The complainant has placed on record the copies of the bills to prove that she spent a total sum of Rs.55,036/- on her treatment. The complainant was insured for an amount of Rs.5.00 lakhs. As such, the complainant is entitled to the medi-claim of Rs.55,036/-.  The complainant has to suffer because of denial of her rightful claim by the OPs. So, she is also entitled to compensation for mental agony and harassment suffered by her.
16.         In view of the above discussion, the present complaint deserves to succeed. The same is accordingly partly allowed. The OPs are directed as under:-

(i)     To pay Rs.55,036/- to the complainant being the total claim amount with interest @ 9% per annum from the date of filing of this complaint till realization;

(ii)    To pay Rs.10,000/- as compensation for mental agony and harassment caused to the complainant;

(iii)   To pay Rs.5,000/- as costs of litigation to the complainant. 

17.         This order be complied with by the OPs within one month from the date of receipt of its certified copy, failing which they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.
18.         The certified copies of this order be sent to the parties free of charge. The file be consigned.

	Sd/-	Sd/-	Sd/-
30/08/2016	[Suresh Kumar Sardana]	[Surjeet Kaur]	[Dr. Manjit Singh]
hg	Member	Member	President