Punjab

Ludhiana

CC/14/602

Devinder Singh - Complainant(s)

Versus

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

S.S.Lohat

29 May 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

                                                          C.C. No. 602 of 02.09.2014

                                                          Date of Decision: 29.05.2015

Devinder Singh Atli son of Shri Balbir Singh, resident of House No.24, Guru Teg Bahadur Nagar, Near Rest House, Khanna, District Ludhiana. 

                                                                                      … Complainant.

                                             Versus                   

1.Star Health and Allied Insurance Company Limited, Regd. Office: 1, New Tank Street, Valluvar Kottam High Road, Naugambakkam, Chennai-600034, through its Director/M.D.

2.Star Health and Allied Insurance Company Limited, SCF-6, First Floor, GTB Market, G.T.Road, Khanna, District Ludhiana, through its Branch Manager.

3.The New India Assurance Company Limited, G.T.Road, Khanna, District Ludhiana, through its Branch Manager.

                                                                                      …Opposite Parties

          Complaint under section 12 of the Consumer Protection Act,1986

 

Quorum     Sh. R.L. Ahuja, President.

                   Ms.Babita, Member.

                                                                                            

Present:       Sh.Shamsher Singh Lohat, Advocate for complainant.

                   Sh.Amit Sood, Advocate for OP1 and OP2.

                   Sh.Hemant Kalia, Advocate for OP3.

 

                                                ORDER

R.L.Ahuja, President.

1.                Present complaint u/s 12 of the Consumer Protection Act, 1986, has been filed by Sh.Devinder Singh Atli(hereinafter in short to be referred as ‘complainant’) against Star Health and Allied Insurance Company Limited and others(herein-after in short to be referred as ‘OP’)- directing them to make the payment of the claim amount of Rs.60,000/- to the complainant alongwith Rs.30,000/- as compensation for physical as well as mental pain, agony and harassment suffered by the complainant and Rs.5000/- as counsel fee to the complainant.

2.                Brief facts of the complaint are that the complainant availed one family floater insurance policy bearing No.36120034120300000037 from the OP3 and has been regularly availing the insurance policy from the OP3 and he had availed insurance policy for the period 2012-2013 and subsequently, for the period 2013-2014. However, subsequently, the insurance policy of the complainant was transferred to the OP1 and OP2 through portability and the complainant was issued fresh policy No.P/211211/01/2014/00814 which was valid from 15.3.2014 to 14.3.2015. At the time of portability, the signatures of the complainant were obtained on blank papers and forms etc, on the pretext that these are mere formality and the agent of the Ops had himself filled the said forms without disclosing its contents to the complainant. During the subsistence of the abovesaid insurance policy, the son of the complainant namely Aditya Aatali suffered Keratoconus in both his eyes and he was got admitted in Manocha Eye & General Hospitals Pvt. Ltd., Ambala and the son of the complainant had to be operated on for his disease and remained admitted in the hospital for the period 13.5.2014 to 14.5.2014 and a total sum of Rs.60,000/- was incurred on the treatment of the son of the complainant. The abovesaid insurance policy was a cashless policy and the entire costs of treatment were to be paid by the Ops and the complainant was not required to pay anything. However, the complainant had paid the entire amount from his own pocket and lodged the claim with the Ops vide claim Intimation No.CLI/2015/211211/0030558. However, the claim of the complainant was repudiated vide letter dated 2.8.2014 with the observation that “at the time of portability, he has not disclosed the medical history/health details of the insured-person in the proposal form and other documents. The complainant had disclosed regarding the disease of his son to the agent of the Ops and moreover, the insurance policy was a running policy from the year 2012 and as such, it makes no difference as to whether the alleged disease was disclosed in the form or not. Such act and conduct of Ops qua repudiating the claim of the complainant qua the treatment of his son is claimed to be deficiency in service on the part of OPs by the complainant. Hence, this complaint.

3.                Upon notice of the complaint, OPs were duly served and appeared through their respective counsels and filed their separate written replies.

4.                Op1 and OP2 filed their written reply, in which, it has been submitted in the preliminary objections that the contrary to the stand taken by the complainant of non-performance/deficiency in service, the answering Ops claims this opportunity to apprise this Hon’ble Forum of the fact that complainant had submitted its duly signed proposal form after fully understanding and deliberating upon the terms and conditions of the policy concerned. The terms and conditions of the policy are in strict adherence to norms set by IRDA and were duly communicated to the complainant. The answering Ops have taken all the necessary precautions and have kept the complainant adequately informed of his policy terms and obligations. It is further submitted that the complainant has termed their negligent and callous acts, as non performance/deficiency in service by the answering Ops. NO cause of action arisen in favour of the complainant to file the present case as the answering Ops have acted strictly on the basis of the terms and conditions contained in the policy. The complainant does not fall under the definition of the consumer as per the Consumer Protection Act. The relief sought in the present complaint is in violation of the terms and conditions contained in the policy. The complainant is bound by the terms and conditions as applicable and which were expressly made known to the complainant at the time of taking of his policy in question. The answering Ops had at the time of issuing the policy, explained to the complainant the exclusion clauses and the payment plan. The complainant has approached this Hon’ble Forum with unclean hands by not disclosing and mis-representing the material facts. The present complaint is the misuse of the legal process and the same has been filed only with the motive to harass the answering Ops. Reply on facts, it is submitted that the complainant had purchased the insurance policy i.e. Family Health Optima Insurance Policy, vide policy No.P/21211/01/2014/000814, which was valid from 15.3.2014 to 14.3.2015 which is roll over from TNIA. The said policy covers the complainant, his spouse namely Smt.Rupinder Kaur Atli and two dependent children namely Diksha Atli and Aaditya Atli. The sum insured under the said policy was Rs.5 lakh. The complainant had purchased the said policy with his own sweet will and as per his own requirements and further without any pressure only after being satisfied through the terms and conditions of the policy plans. The policy was issued by the answering Ops only on the basis of the proposal form and the declaration so signed by the complainant. Further, it is submitted that the answering Ops received the claim papers submitted by the complainant, whereby he seeks reimbursement of the medical expenses for the treatment for Keratoconus on both eyes. As per the treatment record, the treatment was taken from Manocha Hospital, Ambala on 13.5.2014. The claim papers were thoroughly examined by the Medical experts of the answering Ops and after thorough examination of the hospital record issued by the treating hospital, it was observed as under:-

“As per the treating doctor Certificate dated 18.7.2014, the insured patient had the complaints of difficulty in vision for the past 2 months which is prior to the inception of the policy.”

Further, it is submitted that at the time of portability period which is from 15.3.2014, the insured had not disclosed the above mentioned medical history/health affairs of the insured person in the proposal form, which amounts to mis-representation/nondisclosure of the material facts to take undue advantage of the insurance policy, which further amounts to fraud and cheating upon the answering Ops. The insurance contract is a special contract, which is passed upon the utmost good faith between the parties, any mis-representation of nondisclosure of the material facts relating to the health issue makes the contract of insurance Void-ab-initio. The person insured is supposed to bring all the pre-existing disease, treatment, Hospitalization and all other health related facts, into the notice of the insurer at the time of submitting the proposal papers, which was not do by the complainant knowing and intentionally. The alleged expenses of Rs.60,000/- upon the treatment of the son of the complainant was specifically denied. Further, it is submitted that the claim of the complainant was repudiated as per the terms and conditions of the insurance policy and the same was informed to the complainant as well. The complainant had never disclosed about the health affairs of his son nor the proposal form was filled by the agent of the answering Ops as alleged. Moreover, the alleged agent was never made the necessary party by the complainant knowing and intentionally, with the malafide intention. There is no deficiency in service on the part of the answering Ops. At the end, denying all other allegations of the complaint made in the complaint being wrong and incorrect, answering Ops made prayer for dismissal of the complaint with costs.

5.                OP3 filed the separate written reply, in which, it has been submitted in the preliminary objections that the present complaint of the complainant is not maintainable in the present form as the complainant has not come to this Court with clean hands and has suppressed the material and actual facts from this Hon’ble Court. The complainant has estopped by his act and conduct from filing the present complaint. The present complaint is bad for mis-joinder of the party as the answering OP has no link or connection with the complainant and is not proper and necessary party to the present complaint. No cause of action has accrued to the complainant against the answering OP. The complainant had shifted the policy to the OP1 and OP2 and the claim was lodged with OP1 and OP2. No claim was lodged with the answering OP as the insured was not having any insurance policy with the answering OP. Hence, the complainant is not entitled to claim anything from the answering OP. Reply on facts, it is admitted to the extent that the insurance policy of the complainant was transferred to the OP1 and OP2. Further, it is submitted that the answering OP is in no way answerable to the allegations of the complainant and thus, not liable to pay any compensation as alleged by him. At the end, denying any deficiency in service and all the allegations levelled by the complainant in the complaint being not related to the answering OP, answering Op made prayer for dismissal of the complaint against the answering OP.

6.                Parties have adduced their respective evidence in the shape of their duly sworn affidavits and documents.

7.                We have heard the learned counsel for the parties and have also perused the evidence on record very carefully.

8.                Perusal of the record reveals that it is an admitted fact between the parties that the complainant had availed one family floater insurance policy bearing No.36120034120300000037 from the OP3 and had been regularly availing the insurance policy from the OP3 and he had availed insurance policy for the period 2012-2013 and subsequently, for the period 2013-2014. Further, it is a proved fact on record that subsequently, the insurance policy of the complainant was transferred to the OP1 and OP2 through portability and the complainant was issued fresh policy No.P/211211/01/2014/00814 which was valid from 15.3.2014 to 14.3.2015. Further, it is an undisputed fact between the parties that during the subsistence of the abovesaid insurance policy in question, the son of the complainant namely Aditya Aatali had suffered from Keratoconus disease in his both eyes and he was got admitted in Manocha Eye & General Hospitals Pvt. Ltd., Ambala and he was operated upon for his disease and he had remained admitted in the hospital for the period 13.5.2014 to 14.5.2014 and a total sum of Rs.60,000/- was incurred on the treatment of the son of the complainant namely Aditya Aatali. Further, it is a proved fact on record that the complainant had lodged the claim with the OP1 and OP2. However, the same was not paid by the OP1 and OP2 on the ground that it was a pre-existing disease as per the discharge summary of the treating doctor, who reported that Aditya Aatali s/o Sh.Devinder SinghAatli was suffering from Keratoconus both eyes for the last two months as per document Ex.R8/A. But perusal of this medical certificate reveals that this does not bear the date of issuance. So, it cannot be presumed that whether this medical certificate Ex.R8/A was issued prior to the date of issuance of the repudiation letter or thereafter. Moreover, the discharge certificate Ex.C6 shows that no reference of pre-existing disease has been reported by the treating doctor. Further, the evidence of the Ops reveals that Ops have not placed on record any affidavit of treating doctor namely Dr.Mahesh Manocha that Aditya Aatli was suffering from the disease Keratoconus for the last 2 months nor the Ops have placed on record any such other documents, from which, it could be presumed that Aditya Aatli, son of the complainant was suffering from the disease Keratoconus for the last two months or prior to the inception of the policy. Rather, the copy of insurance policy Ex.OP3/1 which was issued by the New India Assurance Company Limited, in which, Aditya Atli was also insured and this policy was also valid w.e.f.15.3.2013 to 14.3.2014, meaning thereby that prior to the inception of the impugned policy, the complainant alongwith his wife Smt.Rupinder Kaur Atli, his daughter Diksha Atli and son Aaditya Atli were having Family Mediclaim Policy from the New India Assurance Company Limited. Since, it is proved fact that Aaditya Atli, son of the complainant was got operated for disease Keratoconus from Manocha Eye & General Hospitals Pvt.Ltd., Ambala and paid Rs.60,000/- for his treatment. The Ops have failed to prove that the son of the complainant i.e.Aaditya Atli was suffering from the disease Keratoconus i.e. pre-existing disease by leading cogent and convincing evidence on record. As such, he appears to be entitled for the claim for the amount of Rs.60,000/- spent on his treatment. Non-payment of the same by the Ops clearly amounts to deficiency in service on the part of the Ops.

9.              In view of the above discussion, we hereby allow this complaint against OP1 and OP2 only and as a result, we hereby quash the repudiation letter dated 2.8.2014 Ex.C3(Ex.R9/A) and direct the OP1 and OP2 to pay the claim of Rs.60,000/- to the complainant. Further, OP1 and OP2 are directed to pay Rs.5000/-(Five thousand only) as compensation to the complainant on account of mental pain, agony and harassment suffered by him and Rs.2,000/-(Two thousand only) as litigation costs to the complainant. Complaint against OP3 is dismissed as there are no specific allegations have been levelled by the complainant. Order be complied within 30 days of receipt of copy of the order, which be made available to the parties free of costs. File be completed and consigned to record room.

 

                             (Babita)                          (R.L.Ahuja)

                              Member                        President.   

Announced in Open Forum

Dated:29.05.2015

Gurpreet Sharma.