Delhi

North East

CC/164/2016

Mr. Amit Ralhan - Complainant(s)

Versus

Royal Sundram Allaince - Opp.Party(s)

19 Sep 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 164/16

 

In the matter of:

	Mr. Amit Ralhan R/o 79A, Pocket-F, GTB Enclave MIG Flats, Opportunity GTB Hospital Delhi-110095	Complainant
	Versus
	Royal Sundaram Alliance Insurance Co. Ltd. Plot No. 136, Rider House Sector-44, Gurgaon Haryana-122002	Opposite Party

 

DATE OF INSTITUTION:     JUDGMENT RESERVED ON:               DATE OF DECISION :

27.06.2016 19.09.2019 19.09.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Concise facts of the complaint sufficient for deciding the case on merits are briefly recapitulated as that complainant had purchased Family Health Protector Policy bearing No. HLAMFF0001 from OP with respect to himself and his family (wife and three minor children) w.e.f. 07.10.2013 to 06.10.2014 for a total sum assured of Rs. 4,00,000/- against payment of premium of Rs. 9,670/-. The said policy was renewed for the period 07.10.2014 to 06.10.2015 against enhanced premium of Rs. 10,832/- paid by complainant to OP. The complainant was hale and hearty at the time of taking the Insurance Cover but felt discomfort in left side of his chest for the first time on 27.11.2013 for which he visited Pushpanjali Crosslay Hospital, (PCH) Ghaziabad where he was attended to by Doctor Sampath Kumar (CTVS) in OPD who diagnosed the complainant with severe Aortic Stenosis (AS) and Aortic Regurgitation (AR) and advised him to undergo Aortic Valve Replacement (AVR) surgery. The complainant was on prescription and advice of the aforementioned Doctor and remained under his medical care till 16.02.2015 when after thorough investigations by the said Doctor’s medical team and several medical tests and procedures and Angiography where the complainant was diagnosed with Coronary Artery Disease and Severe AR, complainant was operated on 17.02.2015 in the said hospital and underwent Aortic Valve Replacement Surgery under G.A. conducted by the said Doctor and remained hospitalized till 21.02.2015 on which date he was given discharge by the said hospital in stable condition. The complainant incurred expenditure of Rs. 4,23,500/- on hospitalization and surgical procedure treatment and medication and lodged a claim with OP in March 2015 for reimbursement. However, OP vide repudiation letter dated 30.03.2015 rejected to consider the claim on grounds of pre-existing heart ailment for last 20 months (from June 2013) which is pre-existing and not disclosed at the time of taking policy and also that the complainant having been suffering from heart ailment for which there is a 2 years exclusion clause in the policy terms & conditions for both reasons claim not payable and also apprised the complainant of cancellation of the policy qua him within 15 days from the date of the repudiation letter. The complainant vide letter dated 06.04.2015 to OP in reply to its repudiation letter stated that he had not being suffering from heart ailment since last 20 months i.e. June 2013 but was a sudden occurrence for which he was operated and there was no misrepresentation or non disclosure. But OP vide letters dated 09.04.2014 and 29.04.2015 stuck to its stand of repudiation in terms of Proposal Form and Part B of RSA Claim Form and Page 1 of Discharge Summary mentioning history of heart ailments suffered by the complainant more specifically prescription dated 27.11.2013 issued by the complainant’s surgeon who diagnosed him with severe AS and AR which cannot develop within 4 months of duration of policy inception and therefore pre-existing. The complainant vide letters dated 11.04.2015, 25.05.2015 and 26.08.2015 to OP kept clarifying his position that the heart ailment date was 27.11.2013 and not June 2013 which is self explanatory from Dr. Sampath Kumar’s prescription for the said date and the heart ailment was not pre-existing prior to the insurance cover and was sudden occurrence for which he immediately rushed to PCH. Lastly, complainant made written representation to the Redressal Officer of OP at its Chennai Head Office narrating the entire history of events more specifically submitting that 20 months had been miscalculated by the hospital in Claim Form Part B but all in vain. The complainant has submitted that the Claim Form Part B was filled by dealing assistant of hospital mistakenly without any documentary support where the ailment has been mention pre-existing for the duration of 20 months  without having “Outpatient Prescription Form” and the complainant was unaware of this lapse since he was not a signatory to the said Claim Form Part B which otherwise also mentioned that “issue of this form is not to be taken as an admission of liability” but the OP instead of enquiring from the hospital declined the mediclaim of the complainant on the pretext of pre-existing ailment of 20 months written on the Claim Form Part B without taking notice of OPD prescription of  Dr. Sampath Kumar dated 27.11.2013 and kept harping on the wrongful repudiation. The complainant submitted re-authenticated Form Part B in which Dr. Sampath Kumar had written against clause e (5) heart ailment since 2003- 20 months since 27.11.2013 and duly signed the said form under the seal of the hospital but OP disregarded the same. Therefore being aggrieved at the wrongful repudiation of his legitimate claim, the complainant was constrained to file the present complaint against OP praying for issuance of directions against the OP to reimburse the mediclaim amount of Rs. 4,23,500/- alongwith interest thereon @ 18% p.a. from the date of payment till realization, payment of Rs. 50,000/- towards physical strain and mental agony and Rs. 10,000/- towards the cost of litigation.

Complainant has attached copy of proposal form no. 0594776 dated 06.10.2013 for taking the Family Health Protector Policy from OP duly signed by the complainant, copy of passbook entry of savings account held with Punjab National Bank highlighting payment of premium of Rs. 9,670/- and Rs. 9,419/- made to OP on 10.10.2013 and 30.09.2015 respectively, copy of Family Health Protector Policy Certificates for the period 07.10.2013 to 06.10.2014 and 07.10.2014 to 06.10.2015 alongwith policy terms & conditions, copy of OPD prescription dated 27.11.2013 issued by Dr. Sampath Kumar for the complainant diagnosing him with severe AS and AR and advising AVR, copy of medical Investigation reports and Angiography report dated 16.02.2015, copy of Doctors Initial Evaluation Reports Pre-surgery alongwith investigation order sheets, copy of operation notes records dated 17.02.2015 for AVR surgery done on complainant, post surgery progress reports from 17.02.2015 to 21.02.2015 alongwith Echo report, copy of invoice dated 21.02.2015 issued by PCH for a sum of Rs. 4,23,500/-, copy of discharge summary issued by Department of CTVS, PCH, copy of Claim Form Part B and copy of re-authenticated Claim Form Part B correcting the duration of Heart disease, copy of repudiation letter dated 30.03.2015 issued by OP to complainant rejecting mediclaim, copyof correspondence dated 06.04.2015, 11.04.2015, 25.05.2015 and 26.08.2015 by complainant to OP clarifying his position of duration of heart disease and response dated 09.04.2015 and 29.04.2015 by OP reiterating its stand of repudiation.

2. Notice was issued to the OP on 14.07.2016. OP entered appearance and filed written statement on 15.09.2015 in which complainant took the preliminary objection that the complainant had himself admitted that repudiation was based on documents issued by the hospital mentioning the duration of heart ailment as 20 months since 2013 and in such event, not declaring the same in proposal form amounts to suppression of material facts and falls within exclusion pre-existing disease which heart disease and expenses incurred thereon is excluded within two years of taking the policy as per policy terms & conditions and the same was communicated to the complainant vide letter dated 30.03.2015. OP resisted the claim on grounds that as per the Claim Form Part B received by OP on 13.03.2015, the complainant was detected with severe AR since 20 months which meant that the disease was pre-existing on the date of issuance of the first policy on 07.10.2013 and therefore the claim was not maintainable for non-disclosure. OP contended that complainant never provided the re-authenticated Claim Form B to the OP and therefore the same is denied and cannot be admissible. OP urged that the plea raised by complainant that severe AR was detected only on 27.11.2013 was an afterthought to overcome the repudiation since this date would fall within the first policy period and prior to it and stated that as even the Discharge Summary of the Hospital clearly records that “patient was diagnosed to have severe AR in 2013” and stated that severe AR cannot develop within 50 days (27.11.2013) of taking policy on 07.10.2013 from OP and therefore Claim Form B received by OP on 13.03.2015 was correct narration of severe AR in existence from 2013 for 20 months which material facts the complainant concealed and therefore OP was constrained to repudiate his claim. The OP further averred that it had even cancelled the insurance cover qua the complainant vide cancellation letter dated 02.06.2015 rendering it void and forfeited the premium paid and the subsequent renewal policy for the period 07.10.2016 to 06.10.2016 clearly shows deletion the name of complainant and grants coverage only to his wife to children which fact was never disclosed by complainant before this Forum for more than a year since complaint filed in June 2016. OP urged that the case of complainant was also hit by Two Years Exclusion Clause as per policy terms & condition from commencement date of cover i.e. October 2013 to October 2015. Lastly, OP relied upon judgment of Hon'ble Supreme Court in Satwant Kaur Sandhu Vs New India Insurance Co. Ltd. IV (2009) CPJ 8 (SC) and judgment of Hon'ble National Commission in LIC vs Madan Gopal III (2015) CPJ 474 (NC).
3. Rejoinder and evidence by way of affidavit was filed by the complainant in reassertion of his grievance against the OP and exhibiting the documents relied upon / filed alongwith complaint as EX. CW-1/1 to CW-1/9.
4. Evidence by way of affidavit was filed by the OP sworn by its senior Executive (Legal) in reiteration the defence taken in the written statement. OP also filed affidavit of its empanelled Dr. Vipin Gupta opining rightful repudiation of claim in view of pre-existing ailment of severe AR of complainant since last 20 months as certified by his treating doctor and as a heart disease also otherwise excluded under the exclusive clause of policy.
5. Written arguments were filed by the both parties in reemphasis of their respective pleadings and stand taken therein. The OP filed judgment compilation during the course of addressing the oral arguments of the referred judgments relied upon.
6. We have heard the rival contentions of both sides and have bestowed our anxious consideration to the arguments advanced and documentary evidence placed on record.

It is not in dispute that the health policy coverage was given / extended to by OP to the complainant for the period 2013-2014 on receipt of premium for sum assured Rs. 4,00,000/- covering the complainant and his family and the said policy was renewed for the period of 2014-2015. The factum of hospitalization of the complainant at PCH from 17.02.2015 to 21.02.2015 is also not in dispute as also the expenditure incurred by him to the tune of Rs. 4,23,500/- on the surgical treatment undergone during the said period. However, the OP has repudiated the claim of the complainant on the basis of medical documents procured from PCH where he was diagnosed with acute severe AS and AR as per prescription dated 27.11.2013 of operating doctor Dr. Sampath Kumar and Claim Form Part B which mentioned heart ailment since 2013, 20 months i.e from June 2013 till date of surgery in February 2015 whereas the policy taken in October 2013. OP also repudiated the claim on the basis of Exclusion Clause D(2)(b) of excluding heart disease for two years of continuous insurance from commencement date of first policy.

7. The short question for adjudication therefore in the present complaint is firstly whether the repudiation of the claim was justified keeping in view the duration and nature of the heart ailment and alleged concealment of its pre-existing nature and secondly whether repudiation were justified as per the Exclusion Clause.
8. As regards the first grand of repudiation on basis of the duration of heart ailment written as 20 months since 2013 in Claim Form B filed as Annexure H with the complaint, the complainant argued that the same was filled by the TPA of OP and OP submitted that the complainant filled it himself in March 2015. As regards the so called re-authenticated Claim Form Part B where insertion of ‘since 27/11/2013 has been made against heart ailment since 2013, 20 months, complainant submitted that the treating Dr. A. Sampath Kumar himself wrote the date to which the OP took the objection the same is unaccompanied by any affidavit or corrigendum. The Discharge Summary issued by PCH simply mentions “patient diagnosed” with severe AR in 2013 and no specific month has been mentioned therein under the Head of Presenting Complaints. To the specific query put by this Forum to the complainant of treatment undertaken between 27.11.2013 to 16.02.2015 before AVR surgery, the complainant submitted that he was being treated conservatively and through oral medication. To this specific query made to the OP by this Forum of any treatment record of complainant for heart disease before taking the policy, OP answered in negative and admitted it could not obtain any medical record of treatment of complainant for heart disease but argued that heart diseases are otherwise excluded for two years under the coverage of policy and therefore claim was not admissible.
9. In so far as Claim Form Part B and discrepancy therein with respect to the duration of heart ailment as 20 months or qualifying/improving the same by specifying the date of ailment as 27.11.2013 is concerned, both parties failed to adduce any conclusive evidence by either producing the dealing assistant of PCH (as alleged by complainant) or his affidavit or in the alternate producing the treating doctor or tendering his affidavit to corroborate their respective statement and counter statement. Therefore, the authenticity of Claim Form Part B is highly questionable and therefore unreliable. No hand writing expert application was filed by either of the sides to establish their respective averments made in that regard. We therefore do not entertain either the plea taken by the complainant or defence of OP in this regard as far as dependence/reliance on Claim Form Part B is concerned as both parties failed to establish any conclusive and authentic credibility of the same.
10. As regards the second issue of repudiation of claim on grounds of Exclusion Clause, we observe that insurance documents are invariably standard form contracts and usually the insured person signs on the dotted line. Medical insurance is primarily obtained for the purpose of unforeseen medical conditions which may affect a person and so long as there has been no fraud, concealment or suppression, at the time of obtaining insurance, policies ought to be honored. The Hon'ble SCDRC Delhi in Pradeep Kumar Garg Vs National Insurance Co. Ltd. III (2008) CPJ 423 (Del) in FA no. 482/2005 decided on 01.08.2008 observed as under:

1. Disease means a serious derangement of health or chronic deep seated disease for which an insured must have hospitalized or operated upon in near proximity of obtaining mediclaim policy
2. Such a disease should not only be existing at the time of taking policy but also should have existed in near proximity
3. Non disclosure of hospitalization / or operation for disease that too in reasonable proximity of the date of mediclaim policy is a ground of repudiation.

11. The Hon'ble National Commission in Ajit Santokchand Surana Vs National Insurance Co. Ltd. III (2017) CPJ 423 (NC) held in a case of knee replacement mediclaim repudiation that knee replacement was due to  age related Osteoarthritis and therefore hit by exclusion clause 4.3 of the policy under which the said claim was not payable till 4 years of continuous coverage. The Hon'ble National Commission in Dr Bihari Lal Singhania Vs United India Insurance Co. Ltd. II (2017) CPJ 68 (NC) upheld the repudiation of mediclaim of Gall Bladder surgery by insurance company on ground of Exclusion Clause as being barred for a period of two years from the date of issuance of policy as not payable for the said lock in period. The Hon'ble Supreme Court in the latest judgment of Life Insurance Corporation of India Vs Manish Gupta III (2019) CPJ 31 (SC) pertaining to Exclusion Clause in mediclaim insurance pertaining to claim repudiation for suppression of pre-existing disease observed a “pre-existing condition” as any medical condition arisen prior to commencement of coverage irrespective of any medical treatment or advice which the principal insured knows, knew or could reasonably have been assumed to have known and any sickness, illness, complication or ailment arising out of or connected to pre-existing illness. The Hon'ble Supreme Court in this said case relied in its previous judgment of Satwant Kaur Sandhu (Supra) in which Hon'ble Apex Court held that contract of insurance involves utmost good faith and set aside the order passed by Consumer Forum Ambala, SCDRC and NCDRC and dismissed the complaint of the complainant on grounds that past history of heart disease was hit by the Exclusion Clause in the policy.
12. It is accepted principle now that the contents of a policy cannot be interpreted differently by the Courts and they have to be interpreted in the terms they are provided. In this regard, I deem it appropriate to refer to the following landmark judgments of the Hon'ble Supreme Court:
    1. General Assurance Society Ltd. Vs Chandmull Jain, (1996) 3 SCR 500 in which it was held that while interpreting documents relating to contract of insurance, the duty of court is to interpret the words in which contract is expressed by the parties and nor for the court to make new contract.
    2. Oriental Insurance Co. Ltd. Vs Sony Cherian II (1999) CPJ 13 (SC) in which Hon'ble Apex Court observed that insurance policy between the insurer and the insured represents a contract between parties in which insurer undertakes to compensate the loss suffered by insure on account of risk covered by the policy and terms of agreement have to be strictly construed to determine the extent of liability of insurer. The insured cannot claim anything more than what is covered by insurance policy. That being so, the insured has also to act strictly in accordance with statutory limitations or terms policy expressly set out therein.
    3.  United India Insurance Co. Ltd. Vs Harchand Rai Chandan Lal, V (2014) CPJ 15 (SC) in which Hon'ble Apex Court held that the terms of policy have to be construed as it is and we cannot add or subtract: howsoever liberally we may construe the policy but we cannot take liberalism to the extent of substitution of word unintended. Further Hon'ble Apex Court held that it is settled law that parties have to abide by the terms of the policy governing the contract and it is presumed when the parties have entered into a contract with their eyes wide open, they cannot rely on definition given in other enactments.
    4. Suraj Mal Ram Niwas Oil Mills (P) Ltd Vs United India Insurance Co. Ltd. IV (2010) CPJ 38 (SC) in which Hon'ble Supreme Court held that in construing the terms of the contract of insurance, the words use therein must be given paramount importance, and it is not open for the court to add, delete or substitute any word. Since the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered under the policy, its terms have to be strictly construed to determine the extent of liability of the insurer which should also be the endeavor of the court.
13. After having exhaustively dealt with the legal discourse and the settled preposition of law in the catena of judgments passed by Hon'ble Supreme Court and Hon'ble National Commission on the aspect of Exclusion Clause and policy terms & conditions to be binding on both parties, the repudiation of mediclaim by OP on ground of Exclusion Clause is justified as per Section D(2)(b) of policy terms & conditions and excluded for two years of continuous coverage of policy. Accordingly, the complaint is dismissed with no order as to cost.
14.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
15.   File be consigned to record room.
16.   Announced on  19.09.2019

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member