Punjab

Ludhiana

CC/20/248

sukhvinder Singh - Complainant(s)

Versus

Star Health and Allied Ins.Co.Ltd. - Opp.Party(s)

Gagan Gupta

21 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:248 dated 19.10.2020.                                                         Date of decision: 21.04.2023.

 

Sukhvinder Singh Walia aged about 47 years son of Sh. Balwant Singh, R/o. Village Sahibpura, Tehsil Khanna, Distt. Ludhiana (Punjab).                                                                                                              ..…Complainant

                                                Versus

1. Star Health & Allied Insurance Co. Ltd., Registered & Corporate Office: # 1, New Tank Street, Valluvar Kottam High Road, Nungambakkam, Chennai, through its Managing Director.
2. Star Health & Allied Insurance Co. Ltd., S.C.F. 6, 1^st Floor, G.T.B. Market, G.T. Road, Khanna, through its Branch Manager.
3. M/s. Heritage Health TPA Pvt. Ltd., Champion Building, Ground Floor, 15, Parsi Panchayat Road, Andheri (E), Mumbai, through its Director.

…..Opposite parties 

Complaint Under section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Gagan Gupta, Advocate.

For OP1 and OP2          :         Sh. Rajeev Abhi, Advocate.

For OP3                         :         Exparte.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                In brief, the facts of the case are that the complainant along with his wife Smt. Ramanjit Kaur and son Satnam Singh planned to visit Canada for a family reunion from 01.06.2019 to 29.08.2019 for which the complainant took overseas travel insurance from opposite party No.1 and 2 on 30.05.2019 for himself and his wife and son for a sum insured of US Dollar1,00,000/- each. The complainant paid an amount of Rs.5640/- as premium for the insurance and was provided the policy No.P/211211/03/2020/000048 in his name. The complainant stated that at the time of taking the policy, he was hale and hearty and was not suffering from any disease whatsoever and eh also provided correct information to the opposite party No.1 and 2 who after verifying the facts, issued  the policy named Star Travel Protect Insurance Policy to the complainant.

2.                The complainant further stated that as per the schedule, he along with his family boarded the flight on the night between 31.05.2019 to 01.06.2019 from New Delhi and arrived in Canada on 01.06.2019 as per the Canadian time. The complainant was residing with his brother Surinder Singh Walia at 8142,164 ST, Surrey, BC V4NOP2, Canada where on the night of 02.06.2019, he felt acute pain in his groin area and he could not pass urine at that time. On 03.06.2019, the complainant was admitted at Surrey Memorial Hospital, Surrey in emergency where after initial check-ups it was found that the complainant had a stone lodged in his prostatic urethra and as such, he was unable to pass urine and was suffering from acute pain. The complainant was operated upon by the doctors of said hospital and he remained admitted till 06.06.2019 vide  discharge summary dated 06.06.2019 issued by Dr. Edmund M. Paulus, M.D. Urology. The complainants further stated that before start of operation of the complainant, his brother the hospital authorities regarding above said overseas travel insurance but they did not accept the same. Then brother of the complainant talked with the officials of opposite parties who advised him that the complainant can claim the amount of expenses for his treatment later on by lodging a claim and before that the complainant has to bear all the expenses from his own pocket. As such, having no other option but to undergo his medical treatment without assistance of opposite parties, the complainant spent about 29,000 Canadian Dollars on his treatment including hospital charges, medicines and other expenses for the tests, doctor’s visiting charges post treatment follow ups etc. The complainant could not arrange the money at that time so his brother Surinder Singh Walia made the payment of the hospital through his credit card and is now paying back the said amount to his bankers in installments. Thereafter, the complainant while in Canada lodged his claim with the opposite parties by completing all the formalities vide the claim form dated 02.07.2019 for the total emergency medical expenses of Canadian Dollars 27911.53 as advised by the officials of opposite party No.1 at the time of admission of the complainant in emergency on 03.06.2019. The complainant was provided the claim No.CLI/2020/211211/0000252 but he was shocked to know that his claim was repudiated by the opposite parties vide letter dated 18.09.2019 on the pretext that the treatment is for the medical condition existing prior to the commencement of this insurance. The complainant further stated that he was not in knowledge of the stone in his body more particularly in kidney either before taking the travel insurance or even before he felt acute pain in his abdomen and could not pass urine on the night of 02.06.2019 and passed few stones thereafter. The complainant further stated that the opposite parties who are talking of the presence of Renal Calculus in his body, have failed to show that a person will be in the knowledge of the presence of any Renal calculus in his body even without getting any scan done on his body or before feeling any pain or some other problem due to Renal Calculus. The ground of repudiation of the claim is whimsical and against the medical norms and without any proof. Thus, the opposite parties are guilty of deficiency in service which has caused huge economical loss to the complainant besides mental and physical harassment. In the end, the complainant prayed for directing the opposite parties to pay amount of Rs.5,00,000/- as compensation and to payRs.14,37,443.79 being converted amount of Canadian Dollars 27911.53 @ Rs.51.50 per dollar (the average rate of 1 Canadian dollar in June 2019).

3.                Notice was sent to opposite party No.3 through registered post on 02.11.2020 but none turned up for opposite party No.3 despite service and as such, opposite party No.3 was proceeded against exparte vide order dated 21.01.2021.

4.                Upon notice, opposite parties No.1 and 2 filed  written statement and by taking preliminary objections, assailed the complaint on the ground of maintainability,  the complainant being estopped by his own act and conduct, concealment of material facts and lack of jurisdiction of this Commission.  Opposite party No.1 and 2 stated that immediately on receipt of the claim it was duly registered, entertained and processed. The opposite parties stated that the insurance policy was issued on the principles uberrimae fides. Utmost good faith is a cardinal principle of insurance. This means that all the parties to an insurance contract must deal in good faith, making a full declaration of all material facts in the insurance proposal. Material facts are those that would influence an underwriter as to whether he should or should not accept the risk. If a party fails to adhere to the principles of utmost good faith the outcome of the claim may be affected. The insurance policy was issued on the basis of the proposal form which forms the basis of contract of insurance. The opposite parties further stated that the insured to declare his health condition truthfully in the proposal form. Non-disclosure of any pre-existing condition/disease amounts to breach of trust specially when the insured is under medication for the same. The complainant had obtained an Overseas Insurance Policy with complainant vide policy No.P/211211/03/2020/000048 for his travel abroad for the period of 1.6.2019 to 29.8.2019. The policy was issued for the sum insured of USD 100000. It is one of the general exclusion clauses in the policy that "this insurance does not cover any pre-existing condition". It is also one of the standard terms and condition in the policy under the head Incontestability and duty of disclosure: "The policy shall be null and void and no benefit shall be payable in the event of untrue and incorrect statements, misrepresentation, misdiscription or on non-disclosure in any material particular in the proposal form, personal statement, declaration and connected documents or any material information having been withheld or a claim being fraudulent or any fraudulent means or devices being used by the insured or any one acting on his behalf to obtain any benefit under this policy."

                   The opposite parties stated that during the visit of complainant to Canada he availed treatment for abdominal pain on 03.06.2019 and found to have renal calculus and was admitted in the hospital with the history of stones as per medical imaging report of Surrey Memorial Hospital. Treatment was taken within second day of reaching Canada by the complainant who had sent the claim documents for reimbursement of the claim under the policy in question which were received by the opposite parties on 10.09.2019. Ongoing through the claim documents, the opposite parties noted that “as per the Discharge Summary of FRASER HEALTH AUTHORITY dated 04/06/2019, the insured was admitted with the complaints of abdominal pain since 3 months, has had difficult voiding and also he had passed about 5 stones earlier, but the patient feel like the stone that it was struck at the bladder level. The patient was admitted via emergency on June 3, 2019, regarding urinary retention, hematuria, UTI. This gentleman apparently has passed 5 stones earlier on and it was most likely that he had a stone lodged in his prostatic urethra.”

                   Opposite party No.1 and 2 further alleged that  it is noted that the complainant has past medical history of renal calculus and complainant also had history of passing 5 stones earlier. Being close proximity claim, history of passing stones earlier the complainant was discharged on 06.06.2019 with the provision that the complainant should seek medical treatment for his bilateral renal calculi upon his return to India. After the receipt of the documents and after scrutinizing the same was placed before the panel doctors of respondent and as per their opinion the current ailment of the complainant for which the claim was lodged for reimbursement is attributable to his pre-existing condition of Renal Calculus. The insurance policy obtained by the complainant specifically excludes any treatment for an already pre- existing conditions/disease as per general exclusion clause. The complainant has also submitted the proposal form with the answering respondent before obtaining the insurance policy. The opposite parties had gone through the proposal form submitted by the complainant for the purpose of taking travel insurance policy. The complainant has not disclosed his past medical history of Renal Calculus in the medical history portion of the proposal form which forms the basis of contract of insurance. It is further stated that it is important for the insured to declare his health condition truthfully in the proposal form which amounts to breach of trust, especially when the complainant is under medication for the same. It is therefore very clear that the policy of insurance was obtained by the complainant by non-disclosing his true health status as such the contract of insurance is void abinitio. After scrutinizing the documents placed in the claim file and after due application of the kind by the officials of the answering respondent in terms of the insurance policy the claim of the complainant was repudiated as no claim vide letter dated 18.09.2019 on the ground that the treatment taken by the insured is for a complication of an already existing condition and on account of non-disclosure of material facts/misrepresentation regarding his rue health status. Copy of the repudiation of the claim dated 18.09.2019 was sent to the complainant through mail on 18.09.2019 which is re-produced as under:-

This refers to your captioned claim preferred with us.

We refer to your above mentioned claim towards the medical expenses incurred during your trip abroad.

We have carefully gone through the medical paper submitted by you and also had expert medical opinion. We note that you have taken treatment for renal stone. We note from the hospital medical records that you have renal calculus earlier, which were not disclosed with us at the time of taking policy from us.

Hence, he treatment is for medical condition existing prior to commencement of this insurance.

Please refer point No.3 under special exclusion of the policy clause which reads as under:

'The company shall not liable to make any payment under this benefit in connection with or in respect of: No.3) A medical condition existing prior to commencement of this insurance'.

In this connection we draw your attention to the point No.1 under 'Standard Terms and Conditions".

1. Incontestability and duty of disclosure:

"The policy shall be null and void and no benefit shall be payable in the event of untrue or incorrect statements, misrepresentation, misdescription, or non-disclosure in any material particular in proposal form, personal statement, declaration and connected documents, or any material information having been withheld, or a claim being fraudulent or any fraudulent means or devices being used by the insured or any one acting on his behalf to obtain any benefit under this policy."

In view of the above, the claim is repudiated.

a) A medical condition existing prior to commencement of this insurance.

b) Due to the fact that the correct health status not been declared with us leading to misrepresentation/non-disclosure of material facts.

Therefore your claim could not be entertained by us.

Our decision to reject the claim has been taken in accordance with terms and conditions of the policy issued by us….."

Opposite party No.1 and 2 further stated that the claim of the complainant has been rightly repudiated as the present admission is due to the attribute of pre-existing disease. The grounds of repudiation are legal, valid and enforceable and are in accordance with the terms and conditions of the insurance policy.

                   On merits, opposite party No.1 and 2 reiterated the crux of averments made in the preliminary objections. Opposite party No.1 and 2 admitted the factum of issuance of insurance policy in question. Opposite party No.1 and 2 have denied that there is any deficiency of service and have also prayed for dismissal of the complaint.

5.                In support of his claim, the complainant tendered his affidavit Ex. CA in which she reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of Star Travel Protect Insurance policy, Ex. C2 is the copy of invoice, Ex. C3 is the copy of advance premium receipt, Ex. C4 and Ex. C5 are the copies of policy documents, Ex. C6 to Ex. C8 are the copies of invoices issued by Surrey Memorial Hospital, Ex. C9 is the copy of final report of Surrey Memorial Hospital, Ex. C10 is the copy of purchase bill, Ex. C11 is the copy of receipt, Ex. C12 to Ex. C18 are the copies of receipts/invoices, Ex.  C19 is the copy of visa of the complainant, Ex. C20 is the copy of claim form for travel protect/insurance, Ex. C21 is the copy of questionnaire, Ex. C22 is the copy of repudiation letter, Ex. C23 is the copy of detail of expenses and closed the evidence.

6.                On the other hand, counsel for opposite party No.1 and 2 tendered affidavit Ex. RA of Sh. Rajiv Jain, Chief Manager of the opposite parties along with documents Ex. R1 is the copy of policy terms and condition, Ex. R2 is the copy of policy schedule, Ex. R3 is the copy of proposal form, Ex. R4 is the copy of claim form, Ex. R5 is the cop of patient discharge instructions, Ex. R6 is the copy of final report dated 04.06.2019, Ex. R7 is the copy of doctor letter dated 05.06.2019, Ex. R8 is the copy of discharge summary dated 04.06.2019, Ex. R9 is the copy of preadmissions screening questionnaire, Ex. R10 is the copy of final bill along with break-up details, Ex. R11 is the copy of medical documents dated 03.06.2019, Ex. R12 is the copy of repudiation letter dated 18.09.2019, Ex. R13 is the copy of billing assessment sheet and closed the evidence.

7.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written replies along with affidavits and documents produced on record by both the parties.

8.                The complainant along with his family reached Canada on 01.06.2019. In the intervening night of 02.06.2019 and 03.06.2019, he felt acute abdominal pain and had difficulty in urinating. He was got admitted in Surrey Memorial Hospital, Surrey on 04.06.2019 Surrey Memorial Hospital, Surrey via emergency and was discharged on 06.06.2019. During hospitalization, the complainant underwent medical procedure with regard to removal of renal stones. Ex. R6 and Ex. R8 are the documents which pertain to admission, treatment and discharge of the complainant from the hospital. In these documents, the doctor has recorded history of the complainant stating therein that this gentleman apparently has passed 5 stones earlier on and feels that the stone has stuck at the bladder outlet. The opposite parties have repudiated the claim admitting the history to be a medical condition that existed prior to commencement of this insurance and the correct health status was not declared by the complainant. The opposite parties treated it to be misrepresentation/non-disclosure of material facts vide letter Ex. R12. At the time of obtaining the insurance policy, a proposal form Ex. R3 was obtained from the complainant. Admittedly the contents of the proposal form were not filled by the complainant. Rather it was filled by one Ravneet Singh. Affidavit of Ravneet Singh had not been placed on the file by the opposite parties to substantiate their claim that the contents were accurately filled and explained to the proposer/complainant. At page No.3 of the proposal form Ex. R3 there is box II with regard to medical history and box III is with regard to medical history of the proposer to be completed by M.D. Cardiologist. All the columns in this box III are lying blank meaning thereby that the complainant was not examined by the cardiologist and the opposite parties accepted the premium without mandatory medical examination. Ex. C21 is the questionnaire which was completed by the attending Dr. Edmund Paulus. There is a column No.8 which stipulates mentioning of past history of the patient as informed to the doctor but it is left blank by the treating doctor. So there arises a material contradiction with regard to the past medical history of the patient by same treating doctor when we refer this document with the discharge summary of the complainant. Even assuming that the complainant had past five stones earlier it would necessary imply as and when stone lefts the body naturally and with the intervention of some medicines, the said Medical Condition ceases to exist.

9.                Recently, the Hon’ble Supreme Court of India in Manmohan Nanda Vs United India Assurance Co. Ltd. And others I (2022) CPJ 20 (SC) has laid down the following principles:-

(i) There is a duty or obligation of disclosure by the insured regarding any material fact at the time of making the proposal. What constitutes a material fact would depend upon the nature of the insurance policy to be taken, the risk to be covered, as well as the queries that are raised in the proposal form.

(ii) What may be a material fact in a case would also depend upon the health and medical condition of the proposer.

(iii) If specific queries are made in a proposal form then it is expected that specific answers are given by the insured who is bound by the duty to disclose all material facts.

(iv) If any query or column in a proposal form is left blank then the insurance company must ask the insured to fill it up. If in spite of any column being left blank, the insurance company accepts the premium and issues a policy, it cannot at a later stage, when a claim is made under the policy, say that there was a suppression or non­disclosure of a material fact, and seek to repudiate the claim.

(v) The insurance company has the right to seek details regarding medical condition, if any, of the proposer by getting the proposer examined by one of its empanelled doctors. If, on the consideration of the medical report, the insurance company is satisfied about the medical condition of the proposer and that there is no risk of pre­existing illness, and on such satisfaction it has issued the policy, it cannot thereafter, contend that there was a possible pre­existing illness or sickness which has led to the claim being made by the insured and for that reason repudiate the claim.

(vi) The insurer must be able to assess the likely risks that may arise from the status of health and existing disease, if any, disclosed by the insured in the proposal form before issuing the insurance policy. Once the policy has been issued after assessing the medical condition of the insured, the insurer cannot repudiate the claim by citing an existing medical condition which was disclosed by the insured in the proposal form, which condition has led to a particular risk in respect of which the claim has been made by the insured.

(vii) In other words, a prudent insurer has to gauge the possible risk that the policy would have to cover and accordingly decide to either accept the proposal form and issue a policy or decline to do so. Such an exercise is dependant on the queries made in the proposal form and the answer to the said queries given by the proposer.

So applying ratio of the above cited judgment, opposite party No.1 and 2 were not justified in repudiating the claim of the complainant and it would be just and appropriate if opposite party No.1 and 2 are directed to consider and pay the claim of the complainant as per terms and conditions of the policy within 30 days from the date of receipt of copy of order along with composite costs of Rs.10,000/-.

10.              As a result of above discussion, the complaint is partly allowed with direction to opposite party No.1 and 2 to consider and pay the claim of the complainant as per terms and conditions of the policy within 30 days from the date of receipt of copy of order. Opposite party No.1 and 2 shall further pay composite cost of Rs.10,000/- (Rupees Ten Thousand only) to the complainant within 30 days from the date of receipt of copy of order. However, the complaint as against opposite party No.3 is dismissed. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

11.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (SanjeevBatra) Member                        Member                                       President         

 

Announced in Open Commission.

Dated:21.04.2023.

Gobind Ram.

 

 

Sukhvinder Singh Vs Star Health & Allied Insurance               CC/20/248

Present:       Sh. Gagan Gupta, Advocate for complainant.

                   Sh. Rajeev Abhi, Advocate for OP1 and OP2.

                   OP3 exparte.

 

                   Arguments heard. Vide separate detailed order of today, the complaint is partly allowed with direction to opposite party No.1 and 2 to consider and pay the claim of the complainant as per terms and conditions of the policy within 30 days from the date of receipt of copy of order. Opposite party No.1 and 2 shall further pay composite cost of Rs.10,000/- (Rupees Ten Thousand only) to the complainant within 30 days from the date of receipt of copy of order. However, the complaint as against opposite party No.3 is dismissed. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)             (SanjeevBatra)

Member                         Member                            President

 

Announced in Open Commission.

Dated:21.04.2023.

Gobind Ram.