Order dictated by:
Sh.S.S.Panesar,President.
- Sh. Subhash Chander complainant has filed the present complaint under section 11 & 12 of the Consumer Protection Act on the allegations that complainant got himself insured from Star Health and Allied Insurance Co.Ltd in the year 2010 which was commenced from 23.11.2010. In the year 2013 the official of opposite party contacted the complainant and requested to shift the policy from Star Health and Allied Co. to opposite party. The complainant shifted his health Insurance policy from Star Health Insurance to opposite party. The policy was commenced from 23.11.2013 to 22.11.2014. After the expiry of this policy, the same was renewed from 23.11.2014 to 22.11.2015 and again from 23.11.2015 to 22.11.2016. Copies of the policies are attached. Since the year 2010 till admission of the complainant in Parvati Devi Hospital , no claim was taken neither from the previous insurer nor from the opposite party. The complainant admitted in Parvati Devi Hospital on 16.7.2015 and remained admitted till 23.7.2015. Treatment was given and the complainant was advised for gastro surgical opinion. On his treatment the complainant has incurred an expenditure of Rs. 57,517/- at Parvati Devi Hospital. All original bills and treatment record were submitted to the opposite party for reimbursement of claim of Rs. 57,517/-. The complainant admitted in Medanta Hospital on 25.7.3015 and remained admitted there till 30.7.2015 and incurred an expenditure of Rs. 1,82,940/- on his treatment at Medanta Hosptial. All the treatment record and bills were submitted to the opposite party for reimbursement. The complainant lodged claim with the opposite party for the payments of Rs. 57,517/- as well as Rs. 1,82,940/- after completion of all the formalities and provided all the documents required for reimbursement of the claim. The abovementioned claims were repudiated . The complainant has already filed a complaint before this Forum which is pending before this Forum. The complainant was diagnosed cancer which is duly covered under the policy. The doctor recommended chemotherapy and the complainant started getting chemotherapy. Due intimation of the claim was given to the opposite party on 27.11.2015 and the claim No. 15111089393 was given and during the treatment of cancer again on 18.12.2015 the complainant informed the opposite party and again claim No. 15121131742 was given for the registration of the claim. The complainant received a letter dated 16.12.2015 from the opposite party and explanation was sought regarding the pre-existing ailment stating that the complainant was suffering from hypertension since 2011 . The reply of the said letter was given on 8.1.2016 and the opposite party was duly stated that complainant was never suffered from hypertension . the complainant has received a letter dated 20.1.2016 showing cancellation of policy. Moreover it has been wrongly mentioned that in reference to request bearing No. 00102886 dated 15.1.2016 the policy is being cancelled and date of cancellation has also been mentioned as 23.11.2015. It is worthwhile to mention that the complainant never requested for cancellation of policy and it has been wrongly stated in the letter. Moreover the complainant had filed a due reply to the earlier letter regarding notice of cancellation policy, therefore, the policy of the complainant cannot be cancelled . It is further submitted that the letter of cancellation of policy is dated 20.1.2016 whereas the date of cancellation of policy has been shown much earlier than the date of application i.e. 23.11.2015 which shows the intention of the opposite party to escape from their liability. The complainant is continuously insuring himself since 2010 and the opposite party is duty bound to continue the policy and to reimburse the expenditure incurred on the treatment duly covered under the policy. Now the opposite party has come to know that the complainant is suffering from cancer which is duly covered under the policy and just to escape from the liability, it has issued the notice for cancellation of the policy. It is worthwhile to mention over here that till now the complainant has not received any amount from the opposite party as alleged in letter dated 20.1.2016, therefore, the policy is in existence and cannot be said to be cancelled. The cancellation of policy is illegal, arbitrary, against the law, principles of natural justice and on the flimsy grounds. The complainant has sought for the following reliefs vide instant complaint:-
- Opposite party be directed to continue the policy and extend all the benefits under the policy to the complainant with direction to renew the policy from time to time ;
- Opposite party be restrained from refund the premium as stated in the letter dated 20.1.2016;
- Opposite party be directed to reimburse the amount of Rs. 86,689/- expenditure incurred on the treatment till filing of present complaint and also be directed to reimburse the amount in future incurred on treatment of cancer ;
- Compensation to the tune of Rs. 50000/- may also be awarded to the complainant alongwith adequate litigation expenses.
2. Upon notice, opposite party appeared and contested the complaint by filing written version in which certain preliminary objections have been taken inter alia that in this case the opposite party had already cancelled the policy and at present there is no policy in existence, therefore, the present complaint is not legally maintainable. It is further submitted that the amount of premium , which was received by the opposite party for renewal has already been refunded, therefore, the complainant is having no right to file the present complaint against the opposite party ; that the complainant has concealed the true and material facts from this Forum. In this case as per medical record of the complainant, the insured was suffering from hypertension since 2011. This fact has been concealed by the insured at the time of obtaining the insurance policy therefore, complainant is not entitled for any claim. Had this been disclosed in the proposal form , the policy would not have been issued to the complainant on the same terms and conditions ; that as per terms and conditions of the policy, the complainant is not entitled for any claim as he was suffering from pre-existing disease ; that complainant is estopped by his own act and conduct from filing the present complaint ; that complaint has been filed without any cause of action against the replying opposite party, therefore, the same is liable to be dismissed ; that the complainant has no locus standi to file the present complaint . On merits, it was submitted that after receiving the claim, opposite party’s investigator, investigated the hospital records and the complainant himself gave a statement regarding his pre-existing disease of hypertension since 2011. The said fact was concealed by the complainant at the time of obtaining the policy from the opposite party, as such the claim of the complainant was rejected vide letters dated 29.10.2015 and 2.11.2015. It was submitted that when it was found that the complainant has violated the terms and conditions of the policy, a notice for cancellation of policy was issued to him and explanation was sought. But no reply was given by the complainant, therefore, the policy was cancelled. A refund of the renewal premium of Rs. 16,283/- has already been made on 20.1.2016 on the complainant’s credit card . Remaining facts narrated in the complaint have been specifically denied and a prayer for dismissal of complaint was made.
3. In his bid to prove the case Sh.S.S.Channa,Adv. counsel for the complainant tendered into evidence his duly sworn affidavit Ex.C-1 alongwith documents Ex.C-2 to Ex.C-45 and closed the evidence on behalf of the complainant.
4. To rebut the aforesaid evidence Sh.R.P.Singh,Adv.counsel for the opposite party tendered into evidence affidavit of Sh.Sahil Chadha Ex.OP1 alongwith documents Ex.OP2 to Ex.OP28 and closed the evidence on behalf of the opposite party.
5. We have heard the ld.counsel for the parties and have carefully gone through the record on the file.
6. Ld.counsel for the opposite party has vehemently contended that the complainant also filed separate complaint before this Forum for reimbursement of his medical claims of Rs. 57,571/- ( expenditure incurred in Parvati Devi Hospital ) and Rs. 1,82,940/-(/- ( expenditure incurred in Medanta Hospital ) and this is the second complaint filed by the complainant for reimbursement of the amount spent for the treatment/chemotherapy as well as for reinstating the policy in question by getting the premium amount from the complainant. It is further contended that as the claim for the reimbursement of the amount of treatment spent by the complainant in Parvati Devi Hospital as well as in Medanta Hospital has already been declined by the opposite parties after due application of mind because the complainant has concealed the material facts regarding previous ailment i.e. hypertension at the time of obtaining the Insurance policy in question. It is,therefore, prayed that instant complaint may be dismissed with cost.
7. But, however, from the appreciation of the facts and circumstances of the case, it becomes evident that on 16.7.2015 i.e. during existence of the policy period the complainant fell ill and remained admitted till 23.7.2015 in Parvati Devi Hospital . Not only that thereafter the complainant remained admitted in Medanta Hospital for the period from 25.7.2015 to 30.7.2015 and in both the treatments the complainant spent Rs. 57,517/- in Parvati Devi Hospital and Rs. 1,82,940/- in Medanta Hospital. Thereafter the complainant filed claim with regard to reimbursement of his aforesaid claims . The complainant thereafter diagnosed as a patient of cancer which is duly covered under the policy in question and on the advice of treating doctor the Chemotherapy was done and due intimation of the claim was also given to opposite parties on 27.11.2015 and thereafter on 18.12.2015. The complainant received a letter dated 16.12.2015 from opposite party in which the opposite party stated that the complainant was suffering from the disease of hypertension since 2011 . But, however, the complainant never suffered from hypertension nevertheless no medical record showing such hypertension has ever been produced by the opposite party on the record. Not only that the complainant also filed claim with regard to reimbursement of the expenditure of chemotherapy but to no effect. Rather, however, vide letter dated 20.1.2016 the opposite party cancelled the policy in question and refunded the amount of premium so deposited by the complainant only with the intention to escape from their legal liability. Vide instant complaint, complainant has sought for reimbursement of the expenditure incurred on chemotherapy amounting to Rs. 86,689/-. But, however, this figure has nowhere been controverted by the opposite party in their written version . However, the opposite parties declined the claim of the complainant in toto without any explanation only on the ground of concealment of material facts of ailment allegedly at the time of obtaining the policy in question by the complainant. It is also not disputed that the complainant has been continuously insuring himself with the opposite party since the year 2010 by paying hefty premium(s) and this contention has nowhere been denied by the opposite parties. In such a situation due to the fact that the policy in question being in operation since the year 2010, the opposite party cannot wriggle out from their liability . Hence, the opposite party is duty bound to continue the policy and reimburse the expenditure incurred on the treatment, duly covered under the policy. The ground on which the claim of the complainant has been repudiated has been that the complainant was suffering from hypertension since 2011 i.e. prior to the issuance of the insurance policy. In such a situation, it is preposterous to presume that said disease was pre-existing or that non disclosure thereof at the time of obtaining the insurance policy on the same amount to concealment. During these days, hypertension is not a material disease, therefore, non disclosure thereof does not amount to concealment. We draw support from Life Insurance Corporation of India Vs. Sushma Sharma from II (2008) CPJ 213 wherein Hon'ble State Commission has held as under:-
“So far as hypertension is concerned, no doubt, it is a disease but it is not a material disease. In these days of fast life, majority of the people suffer from hypertension. It may be only the labour class who work manually and take the food without caring for its calories that they do not suffer from hypertension or diabetes. Out of the literate and educated people particularly who have the white collar jobs, majority of them suffer from hypertension or diabetes or both. If the Life Insurance Companies are so sensitive that they consider hypertension and diabetes as material diseases then they should wind up their business and stop accepting premium. If these diseases had been material Nand Lal insured would not have survived for 10 years after he started suffering from these medical problems. Like hypertension ,diabetes has also infected a majority of the Indian population but the people who suffer from diabetes and continue managing it under the medical advice, they survive for number of years and none of these diseases is fatal and as discussed above, if these diseases had been material deceased Nand Lal insured would not have survived for 10 years.”.
8. We further draw support from Life Insurance Corporation of India Vs. Sudha Jain II (2007) CPJ 452 wherein Hon'ble Delhi State Consumer Disputes Redressal Commission, New Delhi has held that maladies like diabetes, hypertensions being normal wear and tear of life, cannot be termed as concealment of pre-existing disease.
9. Since the disease of cancer is covered under the terms and conditions of the policy in question for which the complainant on the advice of treating doctor undertook chemotherapy and spent an amount of Rs. 86,689/- which is undisputed. As such, the complainant is entitled for reimbursement of the said amount under the terms and conditions of the Insurance policy in dispute. In such a situation the repudiation made by Opposite Party regarding genuine claim of the complainant appears to have been made without application of mind. It is usual with the insurance company to show all types of green pastures to the customer at the time of selling insurance policies, and when it comes to payment of the insurance claim, they invent all sort of excuses to deny the claim. In the facts of this case, ratio of the decision of Hon’ble Apex Court in case of Dharmendra Goel Vs. Oriental Insurance Co. Ltd., III (2008) CPJ 63 (SC) is fully attracted, wherein it was held that, Insurance Company being in a dominant position, often acts in an unreasonable manner and after having accepted the value of a particular insured goods, disowns that very figure on one pretext or the other, when they are called upon to pay compensation. This ‘take it or leave it’, attitude is clearly unwarranted not only as being bad in law, but ethically indefensible. It is generally seen that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. In similar set of facts the Hon’ble Punjab & Haryana High Court in case titled as New India Assurance Company Limited Vs. Smt.Usha Yadav & Others 2008(3) RCR (Civil) Page 111 went on to hold as under:-
“It seams that the insurance companies are only interested in earning the premiums and find ways and means to decline claims. All conditions which generally are hidden, need to be simplified so that these are easily understood by a person at the time of buying any policy. The Insurance Companies in such cases rely upon clauses of the agreement, which a person is generally made to sign on dotted lines at the time of obtaining policy. Insurance Company also directed to pay costs of Rs.5000/- for luxury litigation, being rich.
10. From the aforesaid discussion, it transpires that Opposite Party has wrongly repudiated the claim of the complainant . As such, opposite party is directed to reimburse the amount of Rs. 86,689/- incurred on the treatment of chemotherapy. The opposite party is also directed to reinstate the policy in question by getting requisite premium amount under the policy in question. The costs of the litigation are assessed at Rs.2,000/-. Compliance of this order be made within 30 days from the receipt of copy of the order; failing which, awarded amount shall carry interest @ 9% p.a from the date of filing of the complaint until full and final recovery. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
Dated: 15.09.2016.
