BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.140 of 2014

Date of Instt. 5.5.2014

Date of Decision :19.11.2014

Chetan Chugh aged about 33 years son of Late Sh.Ashok Kumar Chugh, R/o 157, Urban Estate, Phase-II, Jalandhar City-144022.

..........Complainant

Versus

1. Anil Kumar, Sr.Branch Manager, National Insurance Company Limited, B.O.III, Above PNB, BMC Chowk, Jalandhar City.

2. National Insurance Company Limited, Chandigarh Regional Office-I, SCO 332,333,334, Sector 34-A, Sub City Centre, Chandigarh, Chandigarh U.T.

.........Opposite parties

Complaint under the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Present: Complainant in person.

Sh.Raman Sharma Adv., counsel for opposite parties No.1 & 2.

Order

J.S.Bhatia (President)

1. The complainant has filed the present complaint under the Consumer Protection Act, against the opposite parties on the averments that his father expired on 20.2.2013 and he is only legal heir of his deceased father. His father was suffering from renal failure and had been treated for the kidney problem at National Kidney Hospital, Jalandhar. His father was medically insured under mediclaim policy of national insurance company since 2009. He has lodged a claim with national insurance for reimbursement of treatment charges and the expenses incurred during his stay in hospital. His claim of Rs. 2 Lacs has been made non payable for no reason. The claim has been rejected by insurance company as per exclusion clause 4.1 stating that "the claim is non payable as the disease is pre-existing(CRF,HTN,DM). For pre-existing diseases according to company, the person should be insured continuously for three years but his father was insured from 2009-2010 and from 2011-2013 but not in 2010-2011. There is no proof of pre-existing disease. On such like averments, the complainant has prayed for directing the opposite party insurance company to pay him the claim amount of Rs.2 Lacs. He has also claimed Rs.30,000/- as compensation .

2. Upon notice, opposite parties appeared and filed a written reply pleading that the complainant does not fall under the definition of consumer or beneficiary as per Consumer Protection Act. It was the father of the complainant who was insured/consumer of the opposite party No.2/National Insurance Co.Ltd under the BOI National Swasthya Bima Policy, a tie-up policy for the account holders of Bank of India for personal indemnification in case of any claim as per terms and conditions of the insurance policy. Right of the insured under the personal indemnification policy does not stand inherited by the legal heirs, as such the complaint is liable to be dismissed. The claims of the deceased father of the complainant were not covered under the scope of the insurance policy and fell under the exclusion clause 4.1 of the insurance policy according to which all diseases/injuries, which are pre-existing when the cover incepts for the first time. The exclusion will be deleted after three consecutive continuous claim free policy years in respect of all diseases provided, there was no hospitalization for pre-existing ailment during such three years of insurance. For this purpose policy/policies issued by other insurance companies for last three continuous consecutive years will be considered, provided there was no hospitalization for pre-existing ailment during such three years of insurance. It is an admitted fact by the complainant that his father Ashok Kumar Chug was insured for the periods 2009-2010 and 2011 to 2013 and was not insured for the period 2010-2011, meaning thereby there were no three consecutive continuous claim free periods for covering all disease. The treating Dr.Sanjay Mittal, MD, Nephrologist has issued a certificate dated 6.2.2013 stating therein that the patient A.K.Chug was a case of hypertension since 3 years/DM since 15 years and ESRD since 20.6.2011 and he was admitted in hospital from 20th June to 27th June and that the patient had two dialysis over here. It is pertinent to mention here that Kidneys are significant organs that contribute to one's overall well-being. But when kidneys function at only below 10 to 15 percent of their normal capacity, they can not effectively do their job, such as remove wasts or excess fluid from blood. End stage renal disease(ESRD) is the last stage of chronic kidney disease(CKD). When CKD, polycystic kidney disease(PKD) or other kidney diseases develop into ESRD, dialysis or a kidney transplant is necessary to live. It is worthwhile mentioning here that the ESRD is the last of CSK and the deceased Ashok Kumar Chug father of the complainant was a case of ARF(Acute Renal Failure) which was not a sudden outburst but the gradual descent and was maintained on Hemo dialysis (HMD) and as such the disease is chronic before the inception of the policy not covered under the scope of the policy. It denied other material averments of the complaint.

3. In support of his complaint, complainant has tendered into evidence affidavit Ex.CA along with copies of documents Ex. C1 to C11 and closed evidence.

4. On the other hand, learned counsel for opposite parties has tendered affidavit Ex.OA alongwith copies of documents Ex.O1 to O7 and evidence of opposite parties closed by order.

5. We have carefully gone through the record and also heard complainant in person and learned counsel for opposite parties.

6. Ex.C-2 is insurance policy and sum insured was Rs.2 Lacs. The objection of the opposite party insurance company that insurance policy was for personal indemnification and complainant who is son of deceased insured has no right to file the present complaint is without any merit. In our opinion after death of the insured the complainant being his son and only legal heir is entitled to file the present consumer complaint. The claim of the complainant has been repudiated by the opposite party insurance company on the ground of pre-existing disease, as per exclusion clause 4.1 of the policy Ex.C-4(also Ex.O4). The onus was on the opposite party insurance company to prove that the deceased was suffering from pre-existing disease before the inception of the policy for the first time. Admittedly father of the complainant was insured for the first time for the period 2009-2010. In order to prove that the deceased was suffering from pre-existing disease, opposite party insurance company is mainly relying upon certificate dated 6.2.2013 Ex.O5 issued by Dr.Sanjay Mittal of National Kidney Hospital where it is mentioned that A.K.Chug was hypertensive since three years/DM since 15 years/ESRD since 20th June 2011 and he was in their hospital from 20th June to 27th June and had two dialysis over there. The complainant has proved certificate Ex.C-10 issued by National Kidney Hospital wherein it is mentioned as under:-

" This is certified that Mr.Ashok Kumar Chugh S/o Sh.Bal Kishan, R/o 157, Urban Estate Phase-II, Jalandhar was suffering from NSAIDS with ARF with HTN with CKD III since 20th June, 2011. We attached the OPD record copy. Patient does not have history of diabetes. Due to staff mistake the earlier letter dispatched wrongly showed history of diabetes. Please refer this letter for claim purpose"

7. So as per this certificate issued by National Kidney Hospital, who had issued certificate Ex.O5 on which the opposite party insurance company is relying the deceased was not having history of diabetes. Ex.C-8 is OPD card dated 20.6.2011 wherein recent DM is mentioned. So OPD card corroborates certificate Ex.C-10 that in the earlier letter or certificate Ex.O-5 DM 15 years was mentioned due to mistake of the staff and patient does not have any history of diabetes. So far as hypertension is concerned, the same is no disease in these days and it can easily be managed.

8. In Birla Sun Life Insurance Co. Limited another Vs Sukhwinder Singh another, First Appeal No.714 of 2011 decided on 04.05.2011 by our Hon'ble State Commission in somewhat similar circumstances, it has been held that :-

"Admittedly the life assured in the present case had not disclosed if she was suffering from hypertension or from diabetes. The appellants have also produced the documents to show that the life assured was suffering from hypertension and diabetes. The question which arises for determination is whether that ground is sufficient for repudiation?

12. So far as diabetes is concerned, the settled law is that this is not a material disease and the Insurance Companies have no right to repudiate the insurance claim on its basis. Majority of the population in India suffers from diabetes but diabetes can be kept under control as this is a cureable disease. It was held by this Commission in First Appeal No.1674 of 2002 “L.I.C. of India and others v. Ramandeep Kaur, and another” decided on 2.2.2009 as under:“

16. So far as the law on the subject is concerned it was held by the Hon’ble Supreme Court in the judgment dated 10.10.1995 recorded in “Biman Krishna Bose vs. United India Insurance Co.” Civil Appeal No.343 8 of 1995 that if a person is suffering from hypertension, the insurance claim of the legal heirs of such a person cannot be repudiated on the ground that the life assured had suppressed this information from the Insurance Company. Moreover hypertension is not a material disease which is fatal in itself.—

13. It was held by this Commission in the judgment reported as “Life Insurance Corporation of India vs. Sushma Sharma” 1(2008) CPJ 213 as under:“

18. 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.”

14. It was also held by this Commission in the judgment reported as “Lfè Insurance Corporation of India vs. Satwinder Kaur” 2008(2) CLT 405 as under:“

11. The settled law is that the Insurance Companies must have solid and convincing evidence to prove that the insured had suppressed material facts while filling the proposal form. The right of repudiation cannot be granted to the Insurance Companies on flimsy grounds or sketchy evidence. After all the Insurance Companies insure a person, take the premium and when it comes to making the insurance claim, they find out one or the other ground to reject the claim. Courts, therefore, have to be cautious while determining the rights of the parties and has to insure that the right of repudiation is exercised by the Insurance Companies judicially and on sound principles.”

9. The opposite party insurance company has not led any reliable evidence to prove that the insured deceased was suffering from renal failure or kidney disease before the inception of the policy for the first time. On the other hand in the letter dated 21.3.2013 Ex.O6 vide which the claim was made not payable it is mentioned that patient suffered from renal failure since June 2011 i.e during the policy period of policy Ex.O2 which was effective from 28.2.2011 to 27.2.2012. It may be mentioned here that the insurance company has earlier paid the claim for Acute Renal Failure(ARF) to the insured and this fact is evident from authorization letter Ex.O-7. In his affidavit Ex.OA, Sh.B.S.Joshan, Assistant Manager of National Insurance Company has mentioned that claim given in 2011 was on pre-authorization given by the Genins India TPA Ltd, the Third Party Administrator of the opposite party No.2 on Provisional Diagnosis of DM with HTN with ARF and was not on merits. This version of the opposite party insurance company that earlier the claim was not given on merit can not be accepted. When under the policy and for the same disease the insurance company has given claim earlier to the insured, it is estopped from refusing to pay the claim subsequently. In our opinion, the opposite party insurance company has wrongly refused to pay the claim to the complainant.

10. In view of above discussion, the present complaint is accepted and opposite party insurance company is directed to pay Rs.2 Lacs to the complainant alongwith 9 % interest from the date of filing of the present complaint till payment. However, it is clarified that interest amount is being granted as compensation. Complainant is also awarded Rs.3000/- on account of litigation expenses. Copies of the order be sent to the parties free of costs under the rules. File be consigned to the record room.

Dated Jyotsna Thatai Jaspal Singh Bhatia

19.11.2014 Member President