ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Parties (herein referred to as OPs) under section 35 of the Consumer Protection Act 2019 for the deficiency in service in repudiating the claim of the complainant and for compensation of Rs.25,00,000/- along with interest at 18% per annum and to award cost of litigation and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; the complainant was contacted by agent of OPs and purchased a family coverage policy by paying Rs.35,511/- as the premium which covers major illness for himself and for his wife Ambuja and their two sons Nitish Janardhan and Rohit Janardhan  in the year 2016 and the same was valid till mid night of 04.11.2011 and the same was renewed from time to time by paying premium uninterruptedly whereas no claim was made in between. The policy was in force in 04.11.2019.  Unfortunately he fell ill and when tests were conducted, it was found that he was having “Mucinous Carcinoma left axillary sweat gland cancer” (Cancer of Sweat Gland) and the same was detected during May 2018 and he had to take up investigation with HCG hospital Bangalore and later took treatment with the said hospital and underwent several cycles of chemotherapy and hospital bill was nearly Rs.11,00,000/-.

3.     He made a claim to the OPs in respect of the reimbursement of the admissible claim under the policy. The same was rejected by OP quoting clause 7.1 of the terms of the policy contending that he has suppressed and misrepresented the facts of his health condition at the time of proposal, and not disclosed that he was having hypertension and diabetes mellitous. He has spent lakhs of rupees for his treatment by borrowing money by paying interest. Nowhere in the medical science, hypertension and diabetes mellitus categorized as diseases which causes cancer.  OP cannot reject the claim on that ground. In fact neither diabetes nor hypertension cannot be considered as diseases. Due to the repudiation of the claim by OP, complainant issued legal notice to OP to reimburse the amount admissible under the policy and the OP gave an evasive reply instead of complying the demands. Hence OP by collecting huge premium assuring timely cover for major illness and pre-hospitalization and post hospitalization while collecting the premium, have defrauded, cheated the insured and there is criminal breach of trust hence there is deficiency in service on the part of OPs and prayed the commission to allow the complaint.

4.     Upon issuance of notice, OP-1 and 2 appeared before the commission filed version, contending that the complaint is not maintainable either in law or on facts and the allegations do not establishes deficiency in service on the part of OPs and the allegations made are frivolous, baseless, misconceived and liable to be rejected. It is contended that OP issued health insurance policy under the name care – floater policy commencing from 05.11.2017 to 04.11.2018 for the complainant for his wife and two sons for  Rs.5,00,000/- sum insured which is subject to the terms and conditions of the policy.  The same was got renewed from time to time and the last renewal was to 05.11.2018 to 04.11.2019 after the last policy renewed, has been cancelled by the OP as per underwriting guidelines.

5.     It is contended that, there was a request from the insured complainant from HCG hospital for cash less facility upon the insured got admitted to the said hospital on 27.05.2019 for being provisionally diagnosed with Carcinoma left axillary sweat gland cancer. Upon perusal of the documents received, which was found that the complainant was having diabetes hypertension and cancer. Accordingly a quarry was raised to the treating hospital on 17.07.20219 seeking exact duration and past history of ailment with first consultation paper, along with past treated records pertaining to hypertension, diabetes and cancer. A reminder was also sent to the hospital seeking the said documents.  During their investigation, they found from the discharge summary dated: 24.06.2016 of Manipal Hospital, complainant was having hyper tension for the last 10 years and diabetes for the last 2 to 3 years. In view of the above finding, OP repudiate the cashless request and issued denial letter on 18.07.2019 stating that non-disclosure of material facts/pre-existing ailments at the time of proposal.

6.     It is further contended that, complainant has submitted online proposal form and the policy was issued on the information provided by the insured.  The insured failed to disclose preexisting disease of hypertension and diabetes Hence there is misdeclaration in the proposal form. In the details sought for to the question does any persons to be insured has any preexisting disease the answer given was no.

7.     The insurance is given under the principles “uberrimae fidei”. Not declaring correct and accurate information regarding past ailments, amounts to breach of “at most good faith”. Hence they rejected the claim of the complainant under clause No.7.1 of the policy terms and conditions. Complainant requested through email to include preexisting disease on 06.11.2019 whereas OPs post review of the medical documents, cancelled the policy of the complainant as per the underwriting guidelines and the same was communicated vide email dated 18.11.2019. As per the Insurance regulatory and Development Authority (IRDAI) (protection of policy holders interest) Regulations, 2017 under clause 19(4) enumerating the “General Principles”, casts an absolute duty on the proposal to disclose all material factor to, in order to assess the risk: “The policy holder shall furnish all information that is sought from him by the insurer, either directly or through the distribution channels which the insurer considers as having a bearing on the risk to enable the insurer to assess properly the risk covered under a proposal for insurance.”

8.     The legal notice was received and the was replied giving the reason for rejection of the claim.  Quoting several decisions of the HON’BLE SUPREME COURT OF INDIA AND HON’BLE NCDRC prayed the commission to dismiss the complaint by denying the allegation made against them in each and every para of the complaint.

9.     In order to prove the case, both parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

10.   Our answers to the above points are:-

POINT NO.1 :   In the Affirmative.

POINT NO.2 :   Partly in the Affirmative.

                        For the following.

REASONS

POINT No.1:-

11.   On perusing the complaint, version, documents, evidence filed by the both the parties, it becomes clear that, the complainant obtained insurance from OP and got it renewed till 04.11.2019. It is also not in dispute that the complainant suffered from Carcinoma left axillary sweat gland cancer for which according to him spent about Rs.11,00,000/-  with the HCG hospital and got it cured. Afterwards, he made a claim for Rs. 5,00,000/- which is the assured amount under the policy. 

12.   OPs have repudiated the claim taking shelter under condition No.7.1 of the insurance policy for not disclosing the earlier medical conditions. According to it, after the claim made, it investigated and found by the discharge summary of the complainant by Manipal hospital dated 24.06.2016 that the complainant was having hypertension for 10 years and diabetes mellitus 3 to 4 years and the same was not disclosed and hence repudiated the claim,  which the complainant is challenging before this commission.

13.   It is to be noted here that diabetes and hypertension are not at all diseases where as it is the change in the physiological condition of the person,  which is not at all the reasons for the complainant to suffer cancer in the sweat land.  They are not at all the material facts to be considered while considering that the complainant having cancer in the Carcinoma left axillary sweat gland cancer.

14.   The Hon’ble Supreme Court of India in Civil Appeal No.8386/2015 decided on 06.12.2021 held that: “the object of seeking medi-claim policy is to seek indemnification in respect of a sudden illness or sickness which is not expected or imminent which may occur if the insured suffers a sudden sickness or ailment which is not expressly excluded under the policy. A duty is caste on the insurer to indemnify the complainant for the expenses incurred thereon.”

15.   The Hon’ble Supreme Court of India, Hon’ble High Court of Delhi and Hon’ble NCRDRC in various cases have held that hypertension and diabetes are not at all diseases. When this is taken into consideration the rejection of the complainant’s’ claim regarding reimbursement of the amount holding that there is material suppression of the preexisting diseases is ill-founded, and not relevant to the suffering which the complainant has suffered (Sweat Gland Cancer) and further there is no correlation between hypertension and diabetes mellitus and the Carcinoma left axillary sweat gland cancer. Further added to the repudiation, OP has also cancelled the insurance which is highly unbecoming on the part of OP. At the cost of repetition it is said that the object seeking medi-claim and medical insurance is to seek indemnification of the ill ness. Even the insurance companies provide insurance for the preexisting medical disease after some waiting period.  In view of this, the rejection of the claim, cancellation of the insurance policy shows the high handedness of the OP which has no concern at all to the ailing patients from whom the insurance companies are thinking and surviving.  Hence we answer POINT NO.1 IN THE AFFIRMATIVE.

POINT NO.2:

16.   It is to be noted here that the sum insured for the complainant and for his wife and two sons is Rs.5,00,000/-. Even the no claim bonus as per the rules are to be extended to the complainant.  Complainant has produced Ex.P4 the amount paid to the HCG hospital to the extent of Rs.10,70,290/- the same has not been opposed or objected by OPs.  In view of our answer to Point No.1 in the Affirmative, and in view of the policy sum assured is Rs.5,00,000/- with NCB, the complainant is entitle for the said amount along with interest at 12% per annum on the said amount from the date of repudiation i.e. on 18.07.2019 till payment of the entire amount. Further several judgments of Hon’ble High Courts and Hon’ble NCDRC regarding the BP and diabetes are not at all the disease and it is a common physical disorder which cannot be considered as non-disclosure of the same is not a material non discloser. In spite of this, OPs proceeded to repudiate the insurance claim and cancelled the same intentionally, willfully and vehemently which made the complainant to undergo mental agony and strain in addition to already undergoing tension under the fear of Carcinoma left axillary sweat gland cancer. Hence to compensate the same we intend to impose heavy damages of Rs.1,00,000/- Further the act of OPs made the complainant to approach this commission by spending time, money and energy and also pay the professional fee for which we quantify at the rate of Rs.10,000/-. Hence we answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and  pass the following:

ORDER

1. The complaint is partly allowed with cost.
2. OPs-1 and 2 i.e. “RELIGARE HEALTH INSURANCE COMPANY LIMITED” represented by its General Manager/Authorized Signatory are hereby directed to pay a sum of Rs.5,00,000/- to the complainant along with interest at 12% per annum from the date of repudiation i.e. on 18.07.2019 till payment of the entire amount.
3. Further OPs-1 and 2 are also jointly and severally directed to pay Rs.1,00,000/- towards damages for causing mental agony, physical hardship and financial loss to the complainant and Rs.10,000/- towards the litigation expenses to the complainant.
4. OPs are hereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this Commission within 15 days thereafter.
5. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 29^th day of MARCH 2022)

MEMBER         MEMBER       PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the insurance policy cum certificate.

Ex P2: Copy of the health card issued by OPO.

Ex. P3: Copy of the  proposal form.

Ex P4: Copy of the Bill details issued by HCG hospital.

Ex P5: Copy of the legal notice.

Ex P6: Copy of the reply given by Op.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri Harish N, Branch Operations of OP.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the Authorisation letter.

Ex R2: Copy of the Policy document.

Ex R3: Copy of the request for cashless hospitalization.

Ex R4: Copy of the deficiency letter.

Ex R5: Copy of discharge summary of patient.

Ex R6: Copy of Repudiation letter.

Ex R7: Email correspondences

Ex R8: Copy of the legal notice.

Ex R9: Copy of the reply notice.

MEMBER         MEMBER       PRESIDENT

RAK*