| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II Udyog Sadan, C-22 & 23, Qutub Institutional Area (Behind Qutub Hotel), New Delhi- 110016 Case No.326/2015 Sh. Subhash Chand Gupta S/o Late Sh. Mam Chand Gupta R/o H.N.- 01/7, Gali NP.5, Vishwash Nagar, Shadara, Delhi- 110032 ….Complainant Versus Religare Health Insurance Co. Ltd. D3, P3B, District Centre, Saket New Delhi- 110017 ….Opposite Party Date of Institution : 02.12.2015 Date of Order : 14.12.2022 Coram: Ms. Monika A Srivastava, President Ms. Kiran Kaushal, Member Sh. U.K. Tyagi, Member ORDER President: Ms. Monika A Srivastava - The complainant has filed the present complaint praying for Rs.3,00,000/- towards cost of treatment and medicines spent in Max Hospital for the treatment of his wife and on account of physical and mental torture and harassment, litigation expenses.
- It is stated by the complainant that he had taken a Mediclaim policy from the OP vide policy no. 10233187 for a period of two years and paid the amount of Rs. 49,783/- as premium.
- It is stated by the complainant that the policy was given to him by the OP, after getting medical examination conducted. In the proposal form, the wife of the complainant had clearly disclosed that she was suffering from Hypothyriodism.
- The wife of the complainant suffered from pain in chest and was admitted to the hospital on 25.06.2015 and was rushed to Max hospital, Patparganj where the doctor after considering her stage, advised her to be admitted in the hospital.
- Clinical examinations were conducted by the hospital particularly for heart disease and angiography was also done and she was discharged on 29.06.2016 in a stable condition. It is stated by the complainant that no pre-existing disease of any kind was found by the doctors and it was realised that the pain was sudden. In this regard, all the documents pertaining to the hospital have been annexed as Annexure 2.
- It is further stated by the complainant that the total amount incurred by him on the expenditure of treatment of his wife was Rs. 74,219.84/-. It is also stated that after being discharged he spent huge amount on the medicines as advised by the doctors which is also within the purview of post hospitalization expenses in terms of insurance policy provided by the OP.
- It is stated by the complainant that he requested the OP several times to pass his claim however, his claim was rejected on 27.08.2015 vide letter annexed as Annexure 6 on the ground of disease, pre-existing.
- It is the case of the complainant that dishonest and malafide intention of the OP is clear from the repudiation letter as they have fabricated grounds by taking the shield of clause 6.1 of the policy which states that the policy shall be cancelled or claims shall be repudiated if the policy holder has concealed or withheld any information maliciously or with dishonest intention.
- It is stated by the complainant that there has been no withholding of information or concealment from his side at the time of taking the policy which is evident from the fact that the wife of the complainant had fully disclosed that she was suffering from thyroid at the time of taking of insurance policy and this fact is also substantiated by the medical examination conducted by the OP on the complainant and his wife at the time of taking the policy.
- The complainant has stated that in case there was any pre-existing disease at the time of taking of the policy then it would have detected at the medical examination which was got conducted by the OP at the time of taking of policy. Therefore, it is stated that the policy has been wrongly repudiated.
- Per contra, the OP in their reply have stated that the complaint is not maintainable as there has been no deficiency in service on the part of the OP in rejecting the claim of the complainant.
- It is stated by the OP that the claim was rightly repudiated as there was a non-disclosure of chronic obstructive pulmonary disease (COPD) and dyspnea on exertion (DOE) for last 6 months for Ms. Bala Gupta. It is stated that the following non-disclosure came to the notice of the OP from the documents of OPD consultation sheet dated 06.12.2014 from Garg hospital, Delhi wherein it is mentioned that the patient is suffering from dyspnea on exertion (DOE) chronic obstructive pulmonary disease (COPD) along with hypothyroidism and obesity.
- It is also stated that as per the IAS cardiology history sheet of Max hospital dated 25.06.2015 it is mentioned that the patient has a history of dyspnea on exertion (DOE) Class II for last 6 months. The OPD consultation sheet and the IAS cardiology history sheet is annexed as Annexure1 along with the reply.
- It is stated by the OP that accordingly the claim was not payable as per policy’s terms and conditions and was duly repudiated by the OP vide letter dated 27.08.2015. It is stated that in furtherance of its interest the OP vide letter dated 02.11.2015 issued notice of cancellation of policy and that vide letter dated 23.12.2015informed the complainant that his case cannot be considered because of non-disclosure of material information at the time of proposal and had it been disclosed at the time of proposal, OP would not have issued the policy. The claim rejection letter is Annexure 2 and the cancellation documents are Annexure 3.
- It is stated that it is visible from the document submitted to the company that the wife of the complainant had severe health problems prior to taking the policy from the company and only thyroid was disclosed at the time of taking the policy, the complainant has failed to disclose the rest of the diseases about the patients history of COPD and dyspnea at the time of proposal while procuring the policy.
- It is further stated that had the complainant made correct disclosures at the time of the proposal, different set of medical test would have been conducted on his wife. It is stated that the present complaint is not maintainable as the insurance policy in question was obtained by the complainant by concealment /suppression of material facts.
- It is further stated by the OP that the complainant has not challenged the contents of policy cancellation letter dated 23.12.2015 therefore they are deemed to be admitted to be correct by the complainant.
- It is also stated that the complaint is bad in law for non-joinder of Ms. Bala Gupta as party. It is also stated that disputed and complicated question of facts are involved which cannot be decided in a summary trial and which can only be decided by leading it detailed evidences and cross examination in a civil court therefore, it is not maintainable before this Commission.
- The OP has also relied on the judgment of the Hon’ble Supreme Court passed in Satwant Kaur Sandhu vs New India Assurance and Life Insurance Corporation of India vs Smt. Neelam Sharma passed by Hon’ble National Commission.
- In his rejoinder, the complainant has stated that the said OPD slip of Garg hospital dated 06.12.2014 and the IAS cardiology history sheet dated 25.06.2015 of Max hospital but was only for initiating medical examination on doubts created in mind of the doctor but physical and laboratory examination of the patient showed different result.
- It is stated that doctor did not find any dyspnea on exertion (DOE) or COPD after laboratory test. It is stated that the insurer has given the policy after taking a huge amount of premium and after getting all the tests done, nowhere it has been recorded that his wife has any medical condition. It is stated that the onus to prove that the insured had a pre-existing disease is on the OP.
- The complainant has placed his reliance on National Insurance Company vs Raj Narayan judgment of the Hon’ble NCDRC when it is stated that most of the people are totally unaware of the symptoms of the disease that they suffer and hence they cannot be made liable to suffer because the insurance company relies on their clause…. in a malafide manner to repudiate all the claims.
- It is stated that pre-existing disease is one for which the insured would have undergone hospitalization or undergone long treatment or operation. It is stated that the pre-existing disease is one which is in the knowledge of the insured and he places reliance on the judgment of the Hon’ble National Commission passed in New India Assurance vs Vishwanath Manglunia (2006).
- It is stated that though in the morning on 25.06.2015 Max hospital took the patient with symptoms of hypothyroidism acute coronary syndrome, dyspnea on exertion II, severe LV dysfunction but laboratory test and coronary angiography revealed that no such disease existed.
- It is further stated that there is nothing on record to show that before taking the policy on 18.03.2015 the wife of the complainant had the knowledge that she was suffering from the above disease therefore there is no question of suppression of material facts.
- Placing reliance on the judgment ,It is stated that a disease should not only be existing at the time of taking the policy but also should have existed in the near proximity if the insured had been hospitalised or operated upon for the said disease in the near past say 6 months or an year. He is supposed to disclose the said fact to rule out the failure of his claim on the ground of concealment of information as to pre-existing disease. It is stated that if the insured had been otherwise living normal and healthy life and attending to his duties and daily chores like any other person he cannot be declared as diseased person……
- It is stated that insurance company cannot take advantage of its act of omission and Commission as it is under obligation to ensure before issuing mediclaim policy to enquire whether a person is fit to be insured or not.
- Both the complainant and the OP have filed their respective evidence affidavits as well as written arguments, oral arguments have been heard. This Commission has gone through the entire material on record.
- It is seen that that the complainant has been forth right in filling up the proposal form and declaring that his wife was suffering from hypothyroidism. The report of the doctor also categorically states that the weight of the wife of the complainant was 80 kgs. It is also noticed that the medical tests conducted by the OP or the doctor who had conducted the physical examination of the complainant or his wife has nowhere stated that she was suffering from any disease. Nothing amiss is found by the doctor in the medical tests conducted on the complainant or his wife.
- The only document on which the OP, repudiated the claim of the Complainant and placed its reliance is OPD slip from Garg hospital and IAS cardiology history sheet of Max hospital. It seems that the OP has missed the question mark on the slip. This Commission is of the view that those were symptoms with which the wife of the complainant was presented and nothing was found in the tests conducted on her. The OP has not placed on record anything to sufficiently conclude that the wife of the complainant was actually suffering from any such disease.
- The Hon’ble Supreme Court in the matter of SGS India Limited vs Dolphin International AIR 2021 SC 4849 has held the following:-
“The onus of proof that there was deficiency in service is on the complainant. If the complainant is able to discharge its initial onus, the burden would then shift to the Respondent in the complaint.” - In this case the complainant has discharged its onus to prove that there was deficiency in service on the part of OP. This Commission has gone through the pleadings and documents filed by the parties and find that OP has not been able to discharge its onus to prove the allegations on the basis of which the claim of the complainant was repudiated.
- Therefore, the claim of the complainant is allowed and the OP is directed to pay a sum of Rs.74,219.84/- to the complainant within two months from the receipt of this order failing which the OP would be liable to pay this sum along with interest @5% p.a. till realisation. The OP is liable to pay sum of Rs.25,000/- as compensation for the wrongful repudiation to the complainant within two months from the receipt of this order.
File be consigned to the record room after giving a copy of the order to the parties as per rules. Order be uploaded on the website. | |
