Before the District Consumer Disputes Redressal Commission, Room No. 208 2^nd Floor, District Administrative Complex, Tarn Taran

Consumer Complaint No   :          72 of  2018

Date of Institution                      :         04.07.2018

Date of Decision               :         14.10.2021

Santokh Singh son of Mohan Singh resident of village Jhamke, House No. 18, Tehsil and District Tarn Taran.

                                                                             …..Complainant

Versus

1. Star Health and Allied insurance company branch office SCO-25, B-Block, Ranjit Avenue, Amritsar through its Branch Manager,
2. Star Health and Allied insurance company Ltd., Zonal office Rajasthan, at 401, 4^th Floor Vijay City Point, Ahinsa Circle, Ashok Marg, C-Scheme, Jaipur-3020001 through its authorized officer/ Head,
3. Star Health and Allied Insurance Company Ltd. Corporate Office at 1, New Tank Street, Valluvar Kottam High Road, Nungabakkam, Chennai-600034

                                                                             …Opposite Parties

Complaint Under Section  11, 12 and 13 of the Consumer Protection Act

Quorum:               Sh. Charanjit Singh, President

Sh. Jatinder Singh Pannu Member

For Complainant                     Sh. M.P. Arora Advocate

For Opposite Parties               Sh. R.P. Singh Advocate

ORDERS:

Charanjit Singh, President

1        The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 11, 12 and 13 against the opposite parties on the allegations that earlier the complainant Santokh Singh was customer of HDFC Ergo General Insurance company as he has purchased family health insurance plan of HDFC Ergo for whole of his family. He firstly purchased the family health insurance policy in the year 2011 which was renewed on each year and continues up to November 2017, the officials/ agents of the opposite parties i.e. Star Health and Allied Insurance Company Ltd. “hereinafter called the company” have approached to the complainant and told about the insurance policies introduced by the opposite parties. The complainant has told them that he is already having family health insurance plan from the year 2011 onwards as he is continually customer of HDFC Ergo since 2011. The agents/ officials have told that the complainant can port his policy from HDFC Ergo to Star Health and allied insurance company and his policy will be deemed to be commenced from the year 2011 and the complainant will be entitled to all the benefits from the Star Health and Allied Insurance Company for the policy as it has been continuously  issued by the Star Health and Allied insurance company since 2011. The agents have further told that the complainant will also be entitled to some other benefits from Star Heath insurance company which were never given by the HDFC Ergo. The complainant got attracted by the offers as dictated by the agents/ officials of the company and got ready to purchase the family health optima insurance plan vide proposal dated 27.9.2017 and the period of insurance is 9.11.2017 to 8.11.2018. The policy commenced on 9.11.2017 because the earlier policy issued by the HDFC Ergo lasts up to 8.11.2017. The detail of the insured persons is (i) Santokh Singh (Self), (ii) Rajbir Kaur (Spouse), (iii) Gurjinder Kaur (dependent child), (iv) Karanjit (dependent child) The basis floater sum insured is Rs. 10,00,000/- which can be used by any of the insured person. The insured i.e. Rajbir Kaur has suffered with multiple Fibroid Uterus as such she remained admitted in the Hospital namely Dhariwal Hospital near Government Dental College, Opposite Kamal Palace, Batala Road Amritsar from 14.2.2018 up to 16.2.2018, where her treatment with regard to above said disease was undergone by the concerned doctors of the Hospital and the complainant has incurred the total expenditure of Rs. 36,000/- on her treatment and the same were paid by the complainant to the lab, medicos and hospital and intimation with regard to the treatment and expenditure incurred were given by the complainant to the insured company as the insured company is under obligation to reimburse Rs. 36,000/- to the complainant as per the policy. Afterwards, as per the directions of the concerned officials, the complainant has sent all the relevant demanded documents to the insurance company. Further the complainant has also fulfilled all other documentary formalities as directed by the officials of the company. The officials of the company have assured the complainant that his claim will be settled very soon.  After waiting for some time, the complainant has visited the office of insurance company for several times to know about the settlement of claim and further has contacted concerned officials for so many times but no positive response has been given by the concerned officials and further the company has done nothing favourable in this respect in order to settle the claim. Later on the complainant has received correspondence dated 20.4.2018 and he got astonished to see that the company has repudiated the claim by citing the observation which is reproduced as “It is observed that from the prescription dated 5.2.2018 of the above hospital that the insured patient has complaints of menorrhagia for the past 4 months which confirms the insured patient is symptomatic of above disease prior to our policy. The present admission and treatment of the insured patient is for the non disclosed disease.

          You have earlier taken medical insurance policy from HDFC Ergo General Insurance Company Limited for the period from 2013-2014 to 2015-2017 and subsequently taken policy from us from 9.11.2017 to 8.11.2018 under portability.

At the time of porting the policy, you have not disclosed the above mentioned medical history/ health details of the insured person in the proposal form and other documents submitted to us, which amounts to misrepresentation / nondisclosure  of material facts.

As per condition NO. 6 of the policy issued to you, of there is any misrepresentation/ nondisclosure 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.

We are therefore unable to settle your claim under the above policy and we hereby repudiate your claim”.  With these observations, the company has repudiated the claim of the complainant. The complainant has never suppressed any material facts from the company at the time of purchasing the policy. As the company has repudiated the claim by citing condition No. 6 but the company has forgotten to consider the other terms and conditions dictated by the agent and written in booklet of the policy. As the company has forgotten to consider the definition of portability, which means the right accorded to an individual health insurance policyholder (including family cover) to transfer the credit gained for pre-existing condition and time bound exclusions, from one insure to another or from one plan to another plan of the same insurer. Further the company has also forgotten the other clauses with regard to waiting period, as per clause (iii) of heading No. 3 waiting periods, “pre -existing diseases as defined in the policy unit 48 consecutive months of continuous coverage have elapsed, since inception of the first policy with any Indian General/ Health insurer”. Which further holds that the waiting period is subject to portability regulations.” Moreover the company has itself issued policy and its continuity benefit detail, as per which pre-existing disease are covered under the present policy. The above said definition, relevant clause and benefits details make it abundantly clear that when the insured had regular policies from other general/ health insurance companies continuous for the period of more then 48 months, then he is entitled for the claim even for pre-existing disease. The complainant was having family health insurance policy continuously from 2011 up to November 2017 of HDFC Ergo General Insurance and later on the complainant purchased the family health insurance policy of Star Heath and allied insurance company Ltd, which started on 9.11.2017 to 8.11.2018 as such it becomes crystal clear that the complainant is entitled to health cover benefits from Star Health and Allied Insurance Company Limited. The repudiation of the claim is a highly unfair trade practice on the part of the company due to which the complainant has suffered mentally and physically and has made several requests to the opposite parties for settlement of his claim but the opposite parties have done nothing in this respect. The complainant has prayed that the opposite parties may be directed to reimburse the expenses of Rs. 36,000/- as incurred by the complainant on the treatment of the insured and prayed Rs. 20,000/- as compensation, Rs. 10,000/- as litigation expenses from the opposite parties alongwith interest at the rate of 12% per annum from the date of filing of the complaint. Alongwith the complaint, the complainant has placed on record his affidavit Ex. C-1, Copy of Policy Schedule of HDFC Ex. C-2, Ex. C-3, Self attested coy of certificate of HDFC Ex. C-4, self attested copy of HDFC Card Ex. C-5 to Ex. C-8, Self attested copy of Policy Schedule Star Health Ex. C-9, Self attested copy of continuity benefits Ex. C-10, Self attested copy of Star Health Card Ex. C-11, Self attested copy of correspondence Ex. C-12, Self attested copy of premium certificate Ex. C-13, Self attested copy of Bill dated 14.2.2018 Ex. C-14, Self attested copy of Bill dated 14.2.2018 Ex. C-15, Self attested copy of Bill dated 16.2.2018 Ex. C-16, Self attested copy of Bill dated 16.2.2018 Ex. C-17, Self attested copy of Bill dated 14.2.2018 Ex. C-18, Self attested copy of Bill dated 5.2.2018 Ex. C-19, Self attested copy of Bill dated 5.2.2018 Ex. C-20, Self attested copy of Bill dated 5.2.2018 Ex. C-21, Self attested copy of Bill dated 14.2.2018 to 16.2.2018 Ex. C-22, Self attested copy of discharge slip Ex. C-23, Self attested copy of reputation letter Ex. C-24, Self attested copy of Terms and conditions Ex. C-25, Self attested copy of terms and conditions Ex. C-26.

2        Notice of this complaint was sent to the opposite parties and opposite parties appeared through counsel and filed written version taking preliminary objections that the complainant has concealed the material facts from this commission and has not come with clean hands, therefore, he is not entitled for any claim. In this case, the insured Rajbeer Kaur wife of complainant was admitted in Dhaliwal Hospital, Amritsar on 14.2.2018 and he was diagnosed with Multiple Fibroids Uterus and submitted claim records for reimbursement of medical expenses to the tune of Rs. 35,130/- in the 3^RD month of the policy. On scrutiny of the claim records, it was observed from the perusal of prescription dated 5.2.2018 of the hospital that the insured/ patient was complaint of mennorhagia for the past 3-4 months and from above findings it is observed that the insured/ patient was symptomatic prior to the inception of the policy, therefore, the claim was repudiated and the same was communicated to the insured vide letter dated 20.4.2018 as the complainant did not disclose regarding the pre-existing disease in the proposal form submitted by him, therefore, he is not entitled for any claim. At the time of inception of policy the proposal form was filled by the insured but he did not disclose therein regarding pre-existing disease of the insured, which amounts to misrepresentation and nondisclosure of material facts, therefore,  as per condition 6 of the policy,  “the company shall not liable to make any payment under the policy in respect of any claim, if information furnished at the time of proposal is found to be incorrect or false or misrepresentation whether by the insured person or by any other person acting on his behalf”, therefore, the present claim has been rightly repudiated. The complainant has violated the terms and conditions of the policy, therefore, he is not liable for any compensation. The complainant is estopped by his own act and conduct from filing the present complaint, as the complaint has been filed without any cause of action. The complainant has no locus standi to file the present complaint. On merits, it was pleaded that the complainant approached the opposite party for getting the insurance. It was told by the complainant regarding his previous policy, therefore, he was advised to fill the portability form and he submitted the proposal form and relying upon his proposal form, the policy was issued, but now it has come to the knowledge of the opposite party that the insured misrepresented the concealed pre-existing disease of insured patient, therefore, the claim was repudiated. So far as entitlement of all benefits of health insurance from the year 2011 onwards is concerned that is available to the insured only if he give correct information in the proposal form, which is the base of issuance of the policy by the opposite party, but in the present case the complainant did not furnish the correct information in the proposal form and concealed pre-existing disease, therefore, he is not entitled for the present claim. The complainant himself approached the opposite party and showed his willingness to port his previous policy in to family health optima insurance plan of the opposite party. Intimation of the admission of the insured was received and complainant and complainant supplied the medical record and from perusal of medical record, it was observed that the insured Rajbeer Kaur wife of complainant was admitted in Dhaliwal Hospital, Amritsar on 14.2.2018 and he was diagnosed with Multiple Fibroids Uterus and submitted claim records for reimbursement of medical expenses to the tune of Rs. 35,130/-.  When the claim was repudiated, no question of any assurance was arises. So far as entitlement of all benefit of heath insurance from the year 2011 onwards is concerned that is available to the insured only if he give correct information in the proposal form, which is the base of issuance of the policy by the opposite party, but in the present case, the complainant did not furnish the correct information, in the proposal form and concealed pre-existing disease, therefore, he is not entitled to benefit from the year 2011.The opposite parties have denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite parties have placed on record self attested affidavit of Rajiv Jain Ex. OPs 1, 2/1, self attested copy of power of attorney in favour of Rajiv Jain Ex. OP1, 2/2, Self attested copy of policy alongwith terms and conditions Ex. OPs 1,2/3, Self attested copy of repudiation letter Ex. OP1, 2/4, Self attested copy of Proposal form Ex. OP1,2/5, Self attested copy of form of cashless request Ex. OPx1,2/6, Self attested copy of denial of cashless request Ex. OP1,2/7, Self attested copy of treatment record Ex. OP1,2/8. 

3        We have heard the Ld. counsel for the parties and have carefully gone through the record placed on the file.

4        Ld. counsel for the complainant contended that earlier the complainant Santokh Singh was customer of HDFC Ergo General Insurance company as he has purchased family health insurance plan of HDFC Ergo for whole of his family. He firstly purchased the family health insurance policy in the year 2011 which was renewed on each year and continues up to November 2017. The agents/ officials have told that the complainant can port his policy from HDFC Ergo to Star Health and allied insurance company and his policy will be deemed to be commenced from the year 2011 and the complainant will be entitled to all the benefits from the Star Health and Allied Insurance Company for the policy as it has been continuously issued by the Star Health and Allied insurance company since 2011. The complainant got ready to purchase the family health optima insurance plan vide proposal dated 27.9.2017 and the period of insurance is 9.11.2017 to 8.11.2018. The policy commenced on 9.11.2017 because the earlier policy issued by the HDFC Ergo lasts up to 8.11.2017. The insured i.e. Rajbir Kaur has suffered with multiple Fibroid Uterus as such she remained admitted in the Hospital namely Dhariwal Hospital near Government Dental College, Opposite Kamal Palace, Batala Road Amritsar from 14.2.2018 up to 16.2.2018, where her treatment with regard to above said disease was undergone by the concerned doctors of the Hospital and the complainant has incurred the total expenditure of Rs. 36,000/- on her treatment. The insured company is under obligation to reimburse Rs. 36,000/- to the complainant as per the policy. Afterwards the complainant has sent all the relevant demanded documents to the insurance company and fulfilled all other documentary formalities as directed by the officials of the company.  The complainant has received correspondence dated 20.4.2018 and he got astonished to see that the company has repudiated the claim vide Ex.24. He further contended that as the company has repudiated the claim by citing condition No. 6 but the company has forgotten to consider the other terms and conditions dictated by the agent and written in booklet of the policy. He further contended  that the definition of portability means the right accorded to an individual health insurance policyholder (including family cover) to transfer the credit gained for pre-existing condition and time bound exclusions, from one insure to another or from one plan to another plan of the same insurer. As per clause (iii) of heading No. 3 waiting periods, “pre-existing diseases as defined in the policy unit 48 consecutive months of continuous coverage have elapsed, since inception of the first policy with any Indian General/ Health insurer”. Which further holds that the waiting period is subject to portability regulations. Moreover the company has itself issued policy and its continuity benefit detail, as per which pre-existing diseases are covered under the present policy. The above said definition, relevant clause and benefits details make it abundantly clear that when the insured had regular policies from other general/ health insurance companies continuous for the period of more then 48 months, then he is entitled for the claim even for pre-existing disease. The complainant was having family health insurance policy continuously from 2011 up to November 2017 of HDFC Ergo General Insurance and later ion the complainant purchased the family health insurance policy of Star Heath and allied insurance company Ltd, which started on 9.11.2017 to 8.11.2018 as such it becomes crystal clear that the complainant is entitled to health cover benefits from Star Health and Allied Insurance Company Limited and prayed that the present complaint may be allowed.

5        Ld. counsel for the opposite party contended that the present complaint has been filed by complainant for reimbursement of claim of his wife Rajbeer Kaur who was admitted in Dhaliwal Hospital, Amritsar on 14.2.2018 and she was diagnosed with Multiple Fibroids Uterus and submitted claim record for reimbursement of medical expenses to the then of Rs. 35,130/-. On scrutiny of claim records, it was observed from the perusal of prescription dated 5.2.2018 of the hospital that the insured/ patient was complaint of mennorhagia for the past 4 months and from above finding it is observed that the insured/ patient was symptomatic prior to the inception of the policy, therefore, the complaint was repudiated and the same as communicated to the insured vide letter dated 21.4.2018 Ex. OP1,2/4 as the complainant did not disclose regarding the pre-existing disease in the proposal form Ex. OP1, 2/5 submitted by him, therefore, he is not entitled for any claim. The execution of proposal form is not disputed and in complaint, in Para NO. 8, the complainant stated that the pre-existing disease is covered under the present policy, whereas the complainant has not provided any document that pre-existing disease as alleged is covered under present policy, meaning thereby the complainant himself admitted pre-existing disease.  As the time of inception of policy, the proposal form was filled by the insured but he did not disclose therein regarding pre-existing disease of the insured, which amounts to mis-representation and non-disclosure of material facts. He further contended that the complainant has violated the terms and conditions of the policy Ex. OP1, 2/3, therefore, he is not entitled for any compensation and the present complaint has been rightly repudiated. The complainant himself approached the opposite party for getting the insurance. It was told by the complainant regarding his previous policy, therefore, he was advised to fill the portability form and he submitted the proposal form and relying upon his proposal form, the policy was issued, but now it has come to the knowledge of the opposite party that the insured mis-represented and concealed pre-existing disease of insured patient, therefore, the claim was repudiated. The entitlement of all benefits of health insurance from the year 2011 onwards to the complainant are only available to the insured if he give correct information in the proposal form, which is the based of insurance of the policy by the opposite party but in the present case, the complainant did not furnish the correct information in the proposal form and concealed pre-existing disease, therefore, he is not entitled for benefit from the year 2011. The opposite parties relied upon LIC Vs Kuldeep Singh decided on 3^rd June, 2015 by the Hon’ble National Commission,  Jaspreet Singh Vs ICICI Home Finance Co. Ltd. Jalandhar and ICICI Home finance Co. Ltd. Mumbai RP No. 113 of 2013 by the National Commission, Satwant Kaur Sandhu Vs New India Assurance Company Limited (2009)  8 SCC 316 of Hon’ble Supreme Court of India, United India Insurance Co. Ltd. Vs Harchand Rai Chandan Lal Civil Appeal No. 6277 of 2004 of Hon’ble Supreme Court of India and prayed for dismissal of the complaint.

6        In the present case, insurance is not disputed. The opposite party has repudiated the claim of the complainant vide Ex. C-24 only on the ground that the insured patient has complaints of menorrhagia for the past 4 months which confirms the insured patient is symptomatic of the above disease prior to your policy. It was also alleged in the repudiation letter that “you have earlier taken medical insurance policy from HDFC Ergo General Insurance Company Limited for the period from 2013-2014 to 2015-2017 and subsequently taken policy from us from 9.11.2017 to 8.11.2018 under portability. The opposite party has repudiated the claim as per condition No. 6 of the policy that if there is any misrepresentation/ nondisclosure of   material facts whether by the insured person or any other person acting on his behalf.  But it is admitted case of the complainant that the insured have earlier taken medical insurance policy from HDFC Ergo General Insurance Company Limited for the period from 2013-2014 to 2015-2017 and subsequently taken policy from the opposite party from 9.11.2017 to 8.11.2018 under portability. As per condition (iii) of 3 of policy Ex. C-26 it is pleaded that Pre Existing Disease as defined in the policy until 48 consecutive months of continuous coverage have elapse, since inception of  the first policy with any Indian General/ Health Insurer. As the complainant has ported his policy from other Insurance company to the insurance company of the opposite party, therefore, the complainant is entitled to the benefit of portability of the policy in question from other insurance company to the insurance company of the opposite party. The complainant has also placed on record another document of the opposite party Ex. C-10 in which it has been clearly written that pre-existing disease ‘covered’. As such, as per terms and conditions of the opposite party, the complainant is entitled to the insurance claim from the opposite party. The complainant has placed on record policy Ex. C-9 issued by the opposite party for the period from 9.11.2016 to 8.11.2017 and the insured i.e. Rajbir Kaur has suffered from the disease and has taken the treatment during the currency of this policy Ex. C-9.

7        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.

8        We have also gone through the Judgment of Apex Court titled as BIHAR SCHOOL EXAMINATION BOARD vs. SURESH PRASAD SINHA” IV (2009) CPJ 34 (SC), where the Hon’ble Supreme Court of India has held that “It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.”  So, keeping in view the supra judgment of Hon’ble Supreme Court of India, the rulings referred to by the Opposite Party - Insurance Company which are on different facts, have no bearing to the facts of the present case because each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases and we respectfully of the view that rulings cited by the Opposite Parties- Insurance Company are not applicable to the facts of the present case. 

9        In view of above discussion, it transpires that Opposite Party has wrongly  repudiated the claim of the complainant . As such, opposite party is directed to make the insurance claim to the complainant. Complainant is also entitled to Rs.7,500/- ( Rs.Seven Thousand Five Hundred only) as compensation on account of harassment and mental agony and Rs 5,000/- (Rupees Five Thousand only) as litigation expenses from the opposite party. Opposite Party is directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation.  Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.