O R D E R
K.S. MOHI, PRESIDENT
The complainant has filed the present complaint against the O.Ps u/sec. 12 of Consumer Protection Act, 1986. The facts as alleged in the complaint are that the complainant had taken a mediclaim policy by the name of Star Senior Citizens Red Carpet Insurance policy bearing No.P/161100/01/2013/009062 for the period from 24.11.2012 to midnight of 23.11.2013. The said policy was covered medical expenses towards hospitalization of complainant’s father Sh. Rishi Kesh Dewan, who is a senior citizen, upto a sum of Rs.2,00,000/- and for which an annual premium of Rs.9,500/- was to be paid by the complainant. It is alleged that unfortunately the complainant’s father Sh. Rishi Kesh Dewan i.e. insured person was hospitalized on 11.03.2013 as he was suffering from shortness of breath and distension of abdomen and therefore was admitted for treatment in Max Hospital at Gurgaon. It is further alleged that on 26.03.2013 complainant’s father was discharged from the hospital and a bill of Rs.4,18,292/- was raised towards his hospitalization expenses out of the said amount an amount of Rs.2,14,073/- was received by way of cashless facility by the insured person from his younger son’s insurance policy i.e. Paramount Health Services (TPA) Pvt. Ltd. and the remaining amount of Rs.2,04,219/- as informed by the O.P was paid by the complainant from his own pocket to the hospital. It is alleged that the complainant submitted all the original medical Hospital bills etc. with the O.P to reimbursement of the said amount which was paid by the complainant for treatment of his father. It is further alleged that O.P has not given any claim to the complainant. It is alleged that complainant received a letter dated 09.05.2013 from the O.P whereby alleging that the claim of the complainant was rejected on the ground that the complainant’s father was having pre-existing disease. It is further alleged that O.P vide letter dated 07.06.2013 unilaterally cancelled the policy and refunded the premium amounting to Rs.3,722/- to the complainant vide DD No.256061 dated 05.06.2013 for the year 2012-2013 which the complainant has till date not encashed and sent back the original cheque to the O.P. On these facts complainant’s prays that O.P be directed to pay the mediclaim amount of Rs.2,04,219/- with interest @ 18% p.a. and also to pay cost and compensation as claimed.
2. O.P appeared and filed its written statement. In its written statement, O.P has not disputed that complainant had taken policy referred to above. It is alleged that as per the discharge summary and the treating doctor certificate which form part of the claim form, the insured patient had a past history and a known case of “Hypertrophic cardiomyopathy (HOCM) for the past 10 years and Bronchiectasis 8 years.” It is further alleged that as per condition No.7 of the policy, “if there is any misrepresentation/non-disclosure of material facts whether by the insured person or any other person acting on his behalf, the company is not liable to make any payment in respect of any claim.” It is alleged that the exclusion no.4 of the terms and condition of the policy states as under:- “During the first year of operation of the insurance over the expenses on treatment of benign prostate, Hypertrophy Hernia, Hydrocele, Congenital internal disease/ defect. Fistula in anus, piles, sinusitis and related disorders gallstones and renal stone removal are not payable.” It is further alleged that insured discharge on 26.03.2014 and the claim documents which was mandatory required for the reimbursement has not been supplied/ submitted with the O.P within 15 days which is totally violation of terms and condition No.4 of the policy. It is alleged that as per condition No.10 of the policy the O.P cancelled the policy of the insured and return the premium. Dismissal of the complaint has been prayed for.
3. Complainant has filed his affidavit affirming the facts alleged in the complaint. On the other hand Shri Rajnish Kohli, Assistant Vice President has filed affidavit in evidence on behalf of O.P testifying all the facts as stated in the written statement. Parties have also filed their respective written submissions.
4. We have carefully gone through the record of the case and have heard submission of Ld. Counsel for the O.P.
5. The controversy in the present case is as to whether the repudiation of claim of the complainant by the O.P on the ground of pre-existing disease was justified or not. The answer is in the negative. It has come on record that the insured was rushed to the Hospital with the complaint of severe breathlessness associated with distension of abdomen. The discharge summary indicates that insured was a known case of-HOCM-10 years, Bronchiectasis-8 years. The claim was disallowed by the insurance company by pressing into service the condition No.7 of the policy which provides that “if there is any misrepresentation/non-disclosure of material facts whether by the insured person or any other person acting on his behalf, the company is not liable to make any payment in respect of any claim.” The insurance company also relied on exclusion clause 4 which excluded the particular clause of diseases from consideration. The counsel for the insurance relied upon AIR 1962 Supreme Court 814 and 2006 ACJ 34 and argued that there was active concealment of previous ailment by the insured in the proposal form which disentitled him to claim the medical expenses. The counsel for the complainant on the other hand vehemently stressed that there was absolutely no misrepresentation or concealment of material facts because the insured as per discharge summary was taken to Hospital with complaint of severe breathlessness associated with pain in abdomen and it had nothing to do with previous ailment and the past history would not the considered as previous ailment. The counsel for the complainant has relied upon an authorities reported as Praveen Damani Vs. Oriental Insurance Co. Ltd. IV (2006) CPJ 189 (NC), held as under;
“Insurance-Medi-claim policy-Repudiation of claim on ground of pre-existing disease-Justifiability-Policy effective from 09.06.2000 to 08.06.2001-Before its issuance, complainant underwent complete medical checkup by doctors of O.P-Chest pain and uneasiness developed on 11.08.2000-Insured unaware of this disease till said date-He had no symptoms of heart disease prior to that date-O.P erroneously relied on certificate of Dr.Aggarwal-Assured not examined or seen by him-His report, based on standard text, assumptions and presumptions of experts, cannot be relied upon-Cannot be said insured suppressed pre-existing disease-Repudiation unjustified-Insurer liable.
In Santosh Kanwar Vs. Life Insurance Corporation of India IV (2008) CPJ 19 (NC), held as under;
“Life Insurance-Suppression of material facts-Alleged, insured suffering from various ailments, not disclosed in proposal form-Claim repudiated-Complaint allowed- Forum held, treatment taken by deceased insured for trivial ailments-Fever for some days, pain in abdomen, treatment for URI, tenderness or pain muscles, not serious ailments- Not required to be noted at time of taking of policy-Order set aside in appeal-Hence revision-Deceased died due to ‘left lobe of liver tumour’, not noticed even by doctors who gave first treatment-Employees of Government/ Semi Government bodies take medical leave for various purposes-It should not be made ground for repudiation of claim, unless suppression of disease is material- Ailment referred by insurer has no connection with death of insured-Repudiation unjustified-Order of Forum restored-Rate of interest reduced.”
6. Now the question arises as to whether there has been an active concealment of material facts which led to repudiation the claim filed by the complainant. It has now been established that every concealment is not fatal to the medical claim, it is only the material concealment which was very much in the knowledge of the insured at the time of executing insurance policy. As indicated above the immediate cause of admission of insured with the Hospital cannot be related to the previous ailment. In Aviva Life Insurance Claim Department Vs Sharanjeet Kaur IV (2014) CPJ 124 (PUNJ), death-claim was repudiated on ground of suppression of pre-existing disease. The court held that hypertension is a life style disease, easily controllable with conservative medicine. Insured not deliberately concealed material fact, repudiation was held unjustified. Insurer cannot repudiate the contract unless the fact is actually material. Insurer can avoid policy only by proving that the statement is false, fraudulent. The duty to disclose is limited to the facts which are within the knowledge of the insured alone. Apart from this the insurance company cannot rely on the condition of the policy which was never supply at the time of execution of insurance policy. In this case no evidence has been led by the insurance as to how and in which manner it furnished the terms and conditions to the insured. In case titled IV (2014) CPJ 14A (CL) HAR. Oriental Insurance Co. Ltd. Vs Vivek Rekhan, the claim filed on the basis of mediclaim policy was repudiated by the insurance company on the basis of exclusion clause. The court held that the insurance company vaguely denied without pointing out as to in which manner and on which date terms and condition were supplied to the complainant. Therefore, unless terms and condition have been supplied to the complainant before taking a policy, exclusion clause cannot be enforced.
7. Keeping in view the discussion stated above, we are of the opinion that the repudiation of claim of complainant by insurance company was unjustified, thus there was deficiency in service. We award a sum of Rs.2,00,000/- being sum assured with interest @ 6% from the date institution of the complaint till payment, the further award of Rs.5,000/- towards harassment mental agony loss of time and litigation cost.
Copy of this order be sent to the parties as per rules.
Announced this 02nd day of February, 2016.
(K.S. MOHI) (SUBHASH GUPTA) (SHAHINA)
President Member Member
