Religare Health Insurance V/S Charanjeet Singh - Consumer Court Case

Chandigarh

StateCommission

CC/174/2019

Charanjeet Singh - Complainant(s)

Versus

Religare Health Insurance - Opp.Party(s)

Rohit Bedi, Rajnish Sharma & Mandeep Rawat Adv.

10 Sep 2021

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

Complaint Case No.	:	174 of 2019
Date of Institution	:	02.08.2019
Date of Decision	:	10.09.2021

Charanjeet Singh, aged 61 years S/o Sh. Suram Singh R/o VPO Panjera, Tehsil Nalagarh, Distt. Solan, H.P. – 174101.

...Complainant.

Versus

Religare Health Insurance, RH ICL Gurgaon, HO Vipul, Gurgaon, Haryana – 122009 having corporate office at Vipul Tech Square, Tower C, 3^rd Floor, Sector 43, Golf Course Road Gurgaon, Haryana – 122009 and having Registered Office 5^th Floor, 19 Chawla House Nehru Place, New Delhi.
Yogesh Solakiya, Agent of Religare Health Insurance, RH ICL Gurgaon, HO Vipul, Gurgaon, Haryana – 122009 having corporate office at Vipul Tech Square, Tower C, 3^rd Floor, Sector 43, Golf Course Road Gurgaon, Haryana – 122009 and having Registered Office 5^th Floor, 19 Chawla House Nehru Place, New Delhi.

…. Opposite Parties.

BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

MRS. PADMA PANDEY, MEMBER

MR. RAJESH K. ARYA, MEMBER

Present through Video Conferencing:-

Sh. Rajnish Sharma, Advocate, Advocate for the complainant.

Sh. Ramandeep Partap Singh, Advocate for opposite party No.1.

Opposite party No.2 exparte vide order dated 17.09.2019.

PER RAJESH K. ARYA, MEMBER

This complaint has been filed by the complainant seeking directions to the opposite parties, to pay an amount of Rs.3,76,848/- as sum insured alongwith interest @12% per annum and Rs.25 Lakhs as compensation on account of financial loss harassment, mental agony and permanent disability of speaking and litigation expenses. The case of the complainant is that he purchased medical coverage insurance policy No.12847621 from opposite party No.1 effective for the period from 14.08.2018 to 30.11.2018 under Geographical Scope Worldwide excl. US & Canada with Plan Name as ‘Gold Ex US_Canada (Single)’, for sum insured as USD $50000. The said policy was issued by opposite party No.2 at Chandigarh. The complainant developed health problem in abroad and hospitalized in Alfred Health Hospital, Melbourne on 01.10.2018 and discharged on 04.10.2018. It was stated that as per pre-insurance form and policy certificate, the complainant also provided additional details regarding his previous illness/treatment/injury during last 48 months i.e. “treated for cancer in 2017”. However, the claim of the complainant was rejected by the opposite parties on 22.03.2019 under Clause 2.1.3 (iv) of the Policy that any claim in respect of any insured person for, arising out of directly or indirectly due to Oncology (Cancer disease) shall not be admissible under policy. It was stated that when the complainant had already been treated for cancer in the year 2017, the repudiation done by the opposite parties is incorrect because all the relevant information was provided by the complainant without concealing any fact at the time of acceptance of offer by the opposite parties. It was further stated that the act of the opposite parties in repudiation of the claim is in violation of IRDA License. Alleging repudiation of the claim by the opposite parties as deficiency in rendering service and unfair trade practice on their part, this complaint has been filed.

2. Opposite party No.1, while admitting the factual matrix of the case, has stated in its written statement that the Policy of insurance is the evidence of the terms of the agreement between the insured and insurer and the promise of the insurer to indemnify the assured is subject to the terms and conditions and exceptions of the policy. It was further stated that the complainant visited Australia for a period of 109 days and during the currency of the visit, he was hospitalized in Alfred Health Hospital, Melbourne on 01.10.2018 for Oesophageal Stricture. It was further stated that the complainant underwent Gastroscopy which was done on 03.10.2018 and he was accordingly discharged on 04.10.2018. It was further stated that the complainant filed claim for AUD 5564 = USD 4031.88 i.e. Rs.2,95,157.80ps vide claim form, Annexure R-3. It was further stated that vide email dated 17.10.2018, the complainant was directed to submit necessary documents. It was further stated that as per the claim form signed by the hospital, it was duly mentioned that the current ailment of the complainant is a complication of previous treatment. It was further stated that the opposite parties obtained expert opinion, which opined that the ailment was a known complication of medical condition Laryngeal cancer and thyroidectomy for which the complainant was under treatment prior to policy inception. It was further stated that the claim of the complainant was rightly rejected by the opposite parties under Clause 2.1.3(iv) of the Policy terms and conditions, which was duly communicated to the complainant vide claim rejection letter dated 22.03.2019. Alleging no deficiency in rendering service and unfair trade practice on their part, the opposite parties prayed for dismissal of the complaint.

3. Despite due service, when none appeared on behalf of opposite party No.2, it was proceeded against exparte vide order dated 17.09.2019.

4. The complainant filed rejoinder wherein he reiterated all the averments made in the complaint and controverted those of the written reply filed by opposite party No.1.

5. The contesting parties led evidence in support of their case.

6. We have heard Counsel for the contesting parties and have also gone through the documents on record and the written arguments of the parties, very carefully.

7. Bare perusal of Pre-Insurance Form, Annexure B-1/Annexure R-1, issued to the complainant by the opposite party as proxy to the details provided by the complainant, transpires that the complainant opted for Policy with Geographical Scope as Worldwide excl. US & Canada and Plan Name was ‘Gold Ex US/Canada (Single) for the Sum Insured as USD 50000 for Single Trip, effective for the period from 14.08.2018 to 30.11.2018 and paid premium of Rs.5,411/-. In the table meant for ‘Details of the Insured’, in the column meant for ‘Pre-existing diseases’, the complainant had disclosed the earlier treatment undergone by him in the year 2017 for cancer i.e. Internal Tumors-Malignant, Others. Accordingly, Policy bearing No.12847621, Annexure B-2, was issued to him by the opposite parties, with aforesaid details i.e. Policy Start Date and Policy End Date as ‘14-Aug-18’ & ‘Midnight 30-Nov-2018’ respectively. The sum insured under the Policy was USD 50000 and the pre-existing disease was also mentioned therein as disclosed by the complainant. Annexure D-1 is the copy of Certificate issued by Dr. Jaimanti Bakshi, Professor, Department of ENT, PGIMER, on 05.05.2018 to the effect of the complainant being the known case of carcinoma of larynx T4AN2BM1. It is also apparent from record that the complainant developed health problem in abroad, for treatment whereof, he was hospitalized in Alfred Health Hospital, Melbourne on 01.10.2018 and discharged on 04.10.2018. No doubt, the complainant was treated for “Gastroscopy 3/10/18 demonstrated near complete oesophageal occlusion due to stricture at 16 cm (site of previous surgery and chemoradiation)” i.e. cancer and his past history as regards Laryngeal cancer and Oesophageal stricture – Dilated with gastroscopy in June 2018 in India was also given by treating Doctors of The Alfred Hospital, Melbourne, Australia. It is also an admitted fact that the claim filed by the complainant for treatment taken abroad was repudiated by the opposite parties vide Cashless Rejection Letter dated 22.03.2019, Annexure E-1 under Clause 2.1.3(iv) as under:-

“We have received your request, and hereby inform you that the cashless settlement for hospitalization cannot be approved as per the Policy Terms & Conditions. For ease of your perusal, we have reproduced the reason below:

Clause: 2.1.3 (iv) – “Any claim in respect of any insured person for, arising out of directly or indirectly due to Oncology (Cancer disease) shall not be admissible under policy”.”

8. It is the specific case of the complainant, as averred by him in Para 10 of his complaint, that the opposite parties have not issued the terms and conditions of the insurance to him and when they have not supplied the same, then, they are not entitled to reject the claim and further the said act of the opposite parties is in violation of their IRDA License and statutory provisions. On the other hand, in reply to the aforesaid averment, the opposite parties, in their written statement, have simply denied the said averment. We may state here that the contract of insurance is based upon the cardinal principle of uberrima fides which means that the proposer (i.e. insured) is bound to disclose all relevant facts within his knowledge including his/her pre-existing diseases, which the complainant had duly disclosed at the time of filling up the proposal form. After minutely going through the documentary evidence available on record, it is our firm view that there is nothing on record to show that whether the policy terms and conditions, which the opposite parties have placed on record as Annexure R-2, were ever supplied to the complainant and in case, the same were supplied, what was the mode and manner, in which, the same were supplied. Once a specific averment qua non-supplying of the terms and conditions of the Policy, in question, was taken by the complainant, the onus to refute the said averment by leading cogent and convincing documentary evidence was upon the opposite parties, which the opposite parties have failed to prove. Insurance companies are known to be on the lookout for the slightest of reason/s in order to reject an insured entity's claim. The law on the subject has already been well settled by Hon’ble Supreme Court of India. In Bharat Watch Company Vs. National Insurance Co. Ltd. (Civil Appeal No. 3912 of 2019 arising out of S.L.P (C) No. 25468 of 2016), the Hon’ble Supreme Court has made it amply clear that in the event that the terms of exclusion of a policy are not communicated to the insured, the insurer cannot rely upon the same in order to reject the claim. The issue that arose for consideration before the Hon’ble Supreme Court was that since the conditions of exclusion under the policy document were not handed over to the appellant and in the absence of the Appellant being made aware of the terms of exclusion, would it be open for the Respondent to rely upon the said exclusionary clauses in order to repudiate the claim. The Hon’ble Supreme Court held that in the present case the decision in United India Insurance Co. Ltd. Vs. Harchand Rai Chandan Lal [(2004) 8 SCC 644]. would not be applicable as the conditions of exclusion under the policy were not communicated to the Appellant, rendering them unaware of the terms of exclusion of the insurance policy. Similar view was held by Hon’ble Supreme Court in the case of NEW INDIA ASSURANCE CO.LTD. & ORS. Vs. PARESH MOHANLAL PARMAR, CIVIL APPEAL NO.10398 /2011 decided on 04.02.2020 wherein it was held as under:-

“The judgment of this Court relied by counsel for the respondent in 2019(6)SCC 212 (Bharat Watch Company thro its partner Vs. National Insurance Company Ltd.) supra covers the case, wherein following has been laid down in para 7 & 10: “7 : “The basic issue which has been canvassed on behalf of the appellant before this Court is that the conditions of exclusion under the policy document were not handed over to the appellant by the insurer and in the absence of the appellant being made aware of the terms of the exclusion, it is not open to the insurer to rely upon the exclusionary clauses. Hence, it was urged that the decision in Harchand Rai will have no application since there was no dispute in that case that the policy document was issued to the insured.

“10 : Having held this, SCDRC also came to the conclusion that the exclusion would in any event not be attracted. The finding of SCDRC in regard to the interpretation of such an exclusionary clause is evidently contrary to the law laid down by this Court in Harchand Rai. However, the relevance of that interpretation would have arisen provided the conditions of exclusion were provided to the insured. NCDRC missed the concurrent findings of both the District Forum and SCDRC that the terms of exclusion were not made known to the insured. If those conditions were not made known to the insured, as is the concurrent finding, there was no occasion for NCDRC to render a decision on the effect of such an exclusion.” In view of the above we are of the opinion that no other issue needs to be considered. The appeal of the appellant is liable to be dismissed on the above ground.”



9.                      Not only above, the Hon’ble Supreme Court in the case of United India Insurance Company Ltd. Vs. M.K.J. Corporation, Appeal (civil)  6075-6076 of 199 decided on 21.08.1996 has held as under:-

“It is a fundamental principle of Insurance Law that utmost good faith must be observed by the contracting parties. Good faith forbids either party from concealing (non-disclosure) what he privately knows, to draw the other into a bargain, from his ignorance of that fact and his believing the contrary. Just as the insured has a duty to disclose, "similarly, it is the duty of the insurers and their agents to disclose all material facts within their Knowledge, since obligation of good faith applies to them equally with the assured.”

10. We may also like to add here that the opposite parties at the very right end corner in the Policy, in question, have given the following note:-

“Attached with this Policy Certificate are the Policy Terms & Conditions, Annexures and other documents. Please ensure that these documents have been received, read and understood. If any of these documents have not been received, please email or contact the Company at 1800-200-4488.”

11. In this regard, it may be stated here that the opposite parties had given this note in a very minute and small letters and by giving such a note, they tried to evade their part of responsibility of providing the accompanying terms and conditions of the policy in the hands of the consumer (complainant herein). In our opinion, prime duty, which casts upon the Insurer is to inform and make understand each and every term and conditions of the Policy to the insured at the time of subscribing or providing the policy. In the absence of such terms and conditions, the consumer cannot be taken by surprise by saying that the claim is not covered under exclusion clause. This issue has very well been addressed by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case of Star Health & Allied Insurance Co. Ltd. Vs. Haridas C.K., Revision Petition No.911 of 2014 decided on 01.03.2017, wherein, the Hon’ble National Commission held in Para 6, inter-alia, as under:-

“6………Merely because it has been mentioned that insurance under the policy was subject to conditions, clauses, warranties, exclusion, etc. attached, in the absence of attaching aforesaid conditions, exclusion etc., it cannot be presumed that expenses incurred in treatment of disease were excluded from the coverage.”

12. In view of the foregoing discussion, we are of the considered view that the opposite parties wrongly and arbitrarily rejected the claim of the complainant on 22.03.2019 under Clause 2.1.3 (iv) of the Policy, when they themselves at fault in not providing the governing terms and conditions of the policy, in question, in the absence of which, the claim of the complainant could not be rejected. To our view also, the repudiation of the claim definitely amounted to deficiency in rendering service on the part of the opposite parties, on account of which, the complainant definitely has suffered immense mental agony and harassment. Therefore, the complainant is also entitled to adequate compensation on this account.

13. For the reasons recorded above, the complaint is partly allowed with costs. The opposite parties are, jointly and severally, held liable and directed as under:-