Order by:

Smt.Aparana Kundi, Member

1.           The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 on the allegations that complainant no.1 has purchased a Health Insurance Policy bearing no.P/211220/01/2023/006487 for cashless treatment in the year 2022 and paid the whole policy amount to Opposite Parties. Complainants no.1 & 2 alongwith their two dependent children were covered under the policy. Unfortunately, complainant no.2 had a swear pain in her left shoulder on 11.11.2022 and got admitted in Garg Hospital, Moga, who told the complainants that it is minor heart attack and advised to consult some heart specialist. Immediately, the complainant no.2 had got admitted for further treatment at Dayanand Medical College and Hospital (Hero Heart) Ludhiana. As per term and condition of the cashless treatment policy of opposite party, the complainant no.1 approached opposite party no.1 for the approval for cashless treatment. But the request for the approval for cashless treatment was rejected on 12.11.2022 by the opposite party to reason "unable to consider the approval for the cashless treatment of the above diagnosed disease". After that Complainant no.1 again informed to the opposite party regarding cashless treatment but the request for the approval for cashless treatment was again rejected on 14.11.2022 due to baseless, false and frivolous reason. However, the complainant got treatment in Dayanand Medical College and Hospital (Hero Heart) Ludhiana and she was discharged on 16.11.2022, where the complainants spent Rs.36,588/- on the treatment. The complainant visited the Opposite Parties and made various requests to them to pay the claim amount, but to no effect. Due to the aforesaid illegal and unwarranted acts of the Opposite Parties, the complainants have suffered huge mental tension and agony. Hence, this complaint. Vide instant complaint, the complainants have sought the following reliefs:-

a)       Opposite Parties may be directed to pay an amount of Rs.38,989/- spent by the complainants on the treatment of complainant no.2.

b)      To pay an amount of R.50,000/- as compensation on account of damages for physical as well as mental pain and agony suffered by the complainants.

c)       To pay an amount of Rs.10,000/- as travel expenses ad Rs.15,500/- as litigation expenses.

d)      And any other relief which this Commission may deem fit and proper be granted to the complainant in the interest of justice and equity.

2.       Opposite Parties appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that the present pre mature complaint is filed without any cause of the action, as the cashless (Pre-authorization only) claim of the complainant was denied by the answering Opposite Party on the ground of Pre-existing disease & Non-Disclosure of material facts. The complainant had obtained the policy through concealment of material facts. Further alleged that the present complaint pertains to insurance claim under Family Health Insurance Policy No. optima bearing P/211222/01/2023/1067767 valid from 24.09.2022 to 23.09.2023 covering the Complainant self and his wife Rajni Nohria and dependent children namely Painiti and Kiara for a sum of Rs 3,00,000/-. However the aforesaid insurance policy was issued to the insured by the answering Opposite Party subject to the terms and conditions of the insurance policy. The said terms and conditions were handed over and supplied to the insured at the time of the contract. Moreover the terms and conditions of the policy were explained to the complainant at the time of proposing policy and the same were served to the complainant along with policy schedule. The complainant had accepted the policy agreeing and being fully aware of such terms and conditions and executed the proposal form. Therefore it is submitted that in case if any liability would arise against the answering Opposite Party, then it would be subject to the terms and conditions of the insurance policy. Further alleged that the insured requested for a cashless authorization only so far insured patient i.e. his spouse Rajni Nohria hospitalized on dated 11.11.2022 at Dayanand Medical College and Hospital, Ludhiana for the treatment of ACS (Acute Coronary Syndrome). On scrutiny of the cashless claim documents as provided by the insured, it was found and observed by the answering insurance co. and its medical team that the insured patient had been suffering from RA (Rheumatoid Arthritis) since one year and has history of DVT (Deep Vein Thrombosis) in post partum which was not disclosed at the time of procuring the insurance policy. The medical team is of the opinion that the insured patient had a pre existing disease prior to inception of the insurance policy and the insured has not disclosed the medical history in the proposal form and amounts to concealment of PED thus, the cashless claim was found not payable. Complainant had a duty of disclosure of information related to all kinds of pre-existing diseases, which the applicant had prior knowledge before the commencement of the policy. As such, in terms of the said provision of the insurance policy, the insurance company has repudiated the cashless claim of applicant in a proper manner, after due application of mind. The complainant has violated the principle of the insurance, making the contract of insurance voidable and unenforceable. The contract of health insurance is a contract of UBERIMA FIDES and therefore the utmost good faith is required on the part of the person who is about to take the insurance policy and anything essential which is willfully concealed by the policy holder from the insurance company amounts to fraud on the part of policy holder. According to Condition no.6 of the policy, the company shall not be liable to make the payment under the policy in respect of any claim made by the insured person is in any respect fraudulent or if any false statement or declaration is made or used in support thereof or if any fraudulent means or devices are used by the insured person or any one acting on behalf of to obtain any benefit under the policy all benefits under the policy and the premium shall be forfeited. Hence the claim was repudiated and the same was communicated to the insured. Thus, The pre authorization request was rejected vide letter dated 14.11.2022. Further alleged that in this case, the insurance company has rejected only cashless claim and the insured has not approached for the reimbursement of medical expenses. Hence the company is not aware of the exact amount spent by the insured at the time of hospitalization. The Complainant has got no cause of action and locus-standi to file the present complaint. The instant complaint is false, malicious, incorrect and with malafide intention and is nothing but an abuse of the process of law and is an attempt to waste the precious time of this Commission, as the same has been filed by the complainant just to avail undue advantage. No deficient services have been rendered by the answering opposite parties as alleged by the complainant. On merits, all other allegation made in the complaint are denied and a prayer for dismissal of the complaint is made.

3.       Complainant also filed replication to the written reply of Opposite Parties denying the objections raised by it in its written reply.

4.       In order to prove his case, complainant tendered in evidence his affidavit Ex.CW1 alongwith copies of documents Ex.C1 to Ex.C10.

5.       To rebut the evidence of the complainant, Opposite Parties tendered in evidence affidavit of Sh.Sumit Kumar Sharma, Senior Manager, Star Health & Allied Insurance Co. Ltd. Ex.OP1, 2/A alongwith copies of documents Ex.OP1, 2/1 to Ex.OP1, 2/10.

6.       We have heard the counsel for the parties and also gone through the documents placed on record.

7.       The main dispute arises between the parties, when the pre authorization request of the complainant for cashless treatment was rejected by the Opposite Parties, vide letter dated 14.11.2022 on the ground of concealment of pre existing disease. But the repudiation made by the Opposite Parties on the ground of pre-existing disease is not appears to be genuine. If the complainant was suffering from any disease prior to issuance of the policy, in question, the same must not have escaped the notice of the empanelled doctors of the Insurance Company. However, no such investigation record has been produced by the opposite parties. In case Bajaj Allianz Life Insurance Co. Ltd. & Ors. Vs. Raj Kumar III (2014) CPJ 221 (NC), it was held by the Hon’ble National Commission that usually, the authorized doctor of the Insurance Company examines the insured to assess the fitness and after complete satisfaction, the policy is issued. It was held that the Insurance Company wrongly repudiated the claim of the complainant.

8.       Moreover, perusal of the letter dated 14.11.2022, vide which the cashless authorization for the cashless treatment was rejected reveals to the following effect:-

“The insured patient had been suffering from RA since one year and has history of DVT in post partum which is prior to inception of the first policy. Hence it is a pre existing disease. But the insured had failed to disclose this in the proposal form at the time of inception of the first policy.”

It has been held by the Hon'ble State Commission of Punjab in case  Life Insurance Corporation of India Vs. Miss Veenu Babbar and another 2000(1) CLT 619 that repudiation on the basis of history recorded in the hospital records is illegal and arbitrary and the same could not be treated as substantive material to base any decision. Same view has been taken by the Hon'ble National Commission in case Life Insurance Corporation of India & Ors. Vs. Kunari Devi IV(2008) CPJ 89 (NC) that where no document has been produced in support of allegation of suppression of disease at the time of taking policy or revival of policy, history recorded in hospital's bed ticket, not to be treated as evidence as doctor, recording history not examined, suppression of disease not proved, insurer was held liable under the policy.

9.       As the Opposite Parties-Insurance Company has not placed on record any evidence that before issuing the policy they ever got medically examined the insured. Moreover, once the policy was issued to the insurer, the plea taken by the Opposite Parties regarding pre-existing disease of the insured has not appears to be genuine.

10.     Now come to the quantum of amount to be awarded to the complainant. Vide instant complaint, the complainant claimed the amount of Rs.38,989/-, which is fully proved on record, vide Ex.C7 to Ex.C9. Hence we allow the same.

11.     From the above discussion, we partly allow the complaint of the complainant and direct the Opposite Parties to pay an amount of Rs.38,989/- (Rupees Thirty Eight Thousand Nine Hundred Eighty Nine only) to the complainants for the expenses incurred on the treatment of complainant no.2 alongwith interest @ 8 % p.a. from the date of filing the complaint i.e. 24.11.2022 till its actual realization. Opposite Parties are also directed to pay compository costs of Rs.5,000/-(Rupees Five Thousand only) as compensation and litigation expenses to the complainants. The compliance of this order be made by the Opposite Parties within 45 days from the date of receipt of copy of this order, failing which, the Opposite Parties are further burdened with additional cost of Rs.5,000/-(Rupees Five Thousand only) to be paid to the complainants for non compliance of the order. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

Announced on Open Commission