Haryana

Ambala

CC/209/2021

Gurpreet Singh Sahni - Complainant(s)

Versus

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

Mahadev Maharaj Singh

18 Jan 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	209 of 2021
Date of Institution	:	15.07.2021
Date of decision	:	18.01.2023

 

Gurpreet Singh Sahni, aged about 33 years son of Sh. Manmohan Singh resident of H.No.45/11, Court Road, Bhagat Jaswant Singh Marg, Ambala City, District Ambala-134003.

          ……. Complainant.

                                                Versus

1. Star Health and Allied Insurance Company Limited, registered and Corporate Office 1, New Tank Street, Valluvar Kottam High Road, Nungambakkam, Chennai 600 034, Phone:-044-28302700, 28288800. Email: support@starhealth.in through its authorized  representatives;
2. Star Health and Allied Insurance Company Limited, Branch office: SCO-180, 1 to 3, 3rd Floor, Minerva Complex, Rai Market, Ambala Cantt.-133001 through its Branch Manager/authorized representative, Phone: 0171-4000772, 0171-4000972. Email: ambala.bo@starhealth.in

                                                        

 ….…. Opposite Parties

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

           Shri Vinod Kumar Sharma, Member.           

 

Present:      Shri Mahadev Maharaj Singh, Advocate, counsel for the                                       complainant.

                             Shri Mohinder Bindal, Advocate, counsel for the OPs.                     

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. Rs.25,00,000/- (Rupees Twenty Five Lacs) as cashless hospitalization claim under the said family health- insurance policy alongwith the bonus accrued thereupon alongwith penal interest @ 15% p.a. for the period of default of the payment of said claim.
2. Rs.2,00,000/- being the compensation on account of undue harassment, mental stress, financial burden and agony caused to the complainant;
3. Rs.1,00,000/- being the cost of litigation;

                             Or

Grant any other relief which this Hon’ble Commission may deems fit.

2.             Brief facts of the case are that the complainant got himself, his wife Mrs. Amandeep Kaur and minor daughter Tavgun Sahin insured from OP No.1 for a sum of Rs.25,00,000/- in respect of cashless health policy i.e. Family Health Optima Insurance Plan vide Policy No P/211117/01/2020/000928. The period of family health insurance was w.e.f. 08.06.2019 to midnight of 07.06.2020. He had completed the entire process including, documentation, payment of premium of Rs.22,078/-, medical etc. as required for purchase of the said policy. During the subsistence of the above said policy, the complainant suffered severe pain in his stomach on 31.03.2020 and as such went to Civil Hospital, Ambala City on the same day for treatment. The doctor advised for CT Scan of whole abdomen and other tests to diagnose the reason of pain in abdomen of the complainant. From the CT scan examination and other reports the doctor observed that the complainant had bulky pancreas. Thereafter, on 31.03.2020 the complainant was referred to higher centre for further treatment. Feeling uncomfortable and under severe pain, the complainant went to Fortis Hospital, Mohali on 01.04.2020 at around 2:00/3:00 a.m. vide referral letter of Civil Hospital, Annexure C-3. On 01.04.2020 during the treatment at Fortis Hospital, the relative of the complainant informed the Fortis Hospital at the time of admission that complainant has cashless health insurance policy, upon which the Fortis hospital requested the OPs for the cashless hospitalization and services under the said policy and submitted all the relevant documents to the OPs company for the same purpose. On  01.04.2020, the complainant was shocked to know that the OPs declined /rejected his request/claim by putting his claim under the exclusion No.4(8). It was surprisingly shocking for the complainant that the OPs company mentioned in the rejection letter that complainant has history of alcohol, whereas he never told as such to the hospital. Prior to his admission at Fortis Hospital, the doctors at Civil Hospital kept complainant under their observation for quite sufficient time and did not find any history of alcohol. As a matter of fact the complainant consumes small quantity of liquor seldom; practically he is a tee-totaller. He was enjoying good health and was participating in his day to day activities/affairs of life. The complainant remained admitted in Fortis Hospital w.e.f. 01.04.2020 and was discharged on 20.04.2020. After discharge, the complainant remained as outdoor patient of Fortis Hospital and continued from house to follow up. The complainant himself had to bear all the expenses of the Fortis Hospital and his claim was wrongly repudiated by OP No.1, which has also caused mental shock to the complainant as well as unwanted economic stress. Thereafter, Fortis Hospital doctors told the complainant that he will have to undergo surgery, upon which the complainant visited MAX Hospital on 08.05.2020 for further opinion in this regard, but the doctors at MAX Hospital opined that there is no need of surgery for this ailment. Thereafter, on 18.05.2020 when the complainant had suffered acute pain in abdomen with vomiting he was admitted in MAX Hospital till 21.05.2020. During treatment again a request was made to the  OPs by the MAX Hospital for cashless claim under the said health insurance policy, but the same was also repudiated by  OP No.1 on 19.05.2020 with the same reason and the complainant again had to pay the entire expenses at his own, which caused mental stress as well as harassment to the complainant on account of such unfair trade practice and deficiency in service on the part of  OPs. Thereafter, in the month of June, 2020 the complainant again requested for said claim to OP No.1 by sending required documents through email, those documents were also acknowledged by the  OPs No.1 vide email dated 10.06.2020, Annexure C-9. Consequent thereto, Mr.Chander Sharma, a surveyor of OPs approached the complainant on 16.07.2020 and noted down the grievances of the complainant. On 22.07.2020 the complainant again submitted the entire original documents as demanded by the OPs. But even thereafter OP-company repudiated the claim of complainant on 19.08.2020 through an email, annexure C-10. Feeling aggrieved from this rejection of the OPs to accept the claim of complainant, the complainant sent an email dated 24.08.2020 to grievance department to reconsider his claim as he is not alcoholic. But the grievance department vide an email dated 02.09.2020 rejected the claim of complainant on the same false ground. Thereafter, the complainant filed a complaint on 17.09.2020 against the rejection of claim by OPs before Insurance Ombudsman, Chandigarh and  that request was also declined on the same ground. The complainant is still under treatment with regular checkups from Dr.Atul Sachdev, Chandigarh. The complainant had to bear the entire medical expenses at his own and the OPs repudiated the health claim of Rs.25 lacs under the said health policy without any cogent and legal ground. Hence this complaint.
3.           Upon notice, the OPs appeared and filed written version and raised preliminary objections with regard to jurisdiction, unclean hands and suppressed the material facts, cause of action etc.  On merits, it has been stated that the claim of the complainant against his treatment in Fortis Hospital, Chandigarh from 01.04.2020 to 20.04.2020, was duly entertained in due course and the entire case with all set of papers was duly gone through by the qualified team of the OPs  expertise. Initially a request for a cashless authorization was received for the treatment of complainant for Acute Edematous Pancreatitis from Fortis Hospital, Mohali. On scrutiny of cashless claim papers received from the hospital and further information received in response to the queries made to the hospital, it was observed by the expert medical team of the  OPs  that the complainant was diagnosed acute severe necrotizing pancreatitis with sirs and peripancreatic collection and as such, cashless authorization request was rejected vide letter dated 03.04.2020 being such treatment not admissible and permissible in accordance with exclusion clause no. 4.8 of the terms of the policy. Subsequently, the insured submitted his claim for reimbursement of medical expenses towards his said treatment of acute severe necrotising pancreatitis with sirs and peripancreatic collection. The entire set of documents was considered in detail by the expert medical team of the OPs and after scrutinizing and elaborating the whole facts, situation, records and the evidence, it was observed from the indoor case record dated 01.04.2020 of the aforesaid treatment and documents received in response to the query raised that the insured patient is an alcoholic and the insured-patient has undergone treatment for acute severe necrotising pancreatitis secondary to alcohol consumption. As per Exclusion No. 4 (8) of the above policy, the company is not liable to make any payment in respect of expense incurred at hospital for treatment of the disease due to use of intoxicating drugs/alcohol. Accordingly, the claim of the complainant was rejected and he was duly informed about the fate of his claim vide letter dated 19.08.2020. The complainant has also approached the grievance department of the  OPs  where his entire claim was again reviewed and the medical team of the  OPs  again gave its observation after pursuing all the available treatment record of the complainant that the rejection of the claim was legal. Even thereafter the complainant being aggrieved of the repudiation of his said claim, approached the Insurance Ombudsman Chandigarh and preferred a Complaint No.CHD-H-044- 2021-0291 which was disposed off vide order dated 06.11.2020 which gave a thoughtful and well reasoned finding. Policy is contractual in nature and the claims arising therein are subject to the terms and conditions forming part of the policy. The complainant has accepted the policy agreeing and being fully aware of such terms and conditions and executed the Proposal Form. It is further submitted that upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered by the policy; its terms have to be strictly construed to determine the extent of liability of the insurer. It is settled law that terms of the policy shall govern the contract between the parties, they have to abide by the definition given therein and all those expressions appearing in the policy should be interpreted with reference to the terms of policy. Hence, the Insurance Company and the Insured are to follow all terms and conditions of the Policy correctly. The complainant although being very much aware about the fate of his claim due to concealment of necessary Information, misrepresentation and his alcohol related ailment has filed this false and frivolous complaint by exploiting the process of law in order to put undue pressure. The complainant was legally duty bound to disclose each and every information and material fact about his health and habits at the time of availing the policy but the complainant intentionally and deliberately due to some ulterior motive concealed necessary Information therein. It is relevant to mention here that the terms and conditions of the Policy were explained to the complainant at the time of proposing policy and the same was served to the complainant along with the Policy Schedule. Moreover it is clearly stated in the policy schedule "THE INSURANCE UNDER THIS POLICY IS SUBJECT TO CONDITIONS, CLAUSES, WARRANTIES, EXCLUSIONS ETC., ATTACHED. Rest of the averments of the complainant were denied by the OPs and prayed for dismissal of the present complaint with costs.
4.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CA alongwith documents as Annexure C-1 and C-12 and closed the evidence on behalf of the complainant. Learned counsel for the OPs tendered affidavit of Sumit Kumar Sharma, Senior Manager of the OPs Company-Star Health & Allied Insurance Company Limited, Himalaya House,23, Kasturba Gandhi Marg, New Delhi-110001 and Shri Chander Shekhar Sharma, Investigator, Star Health & Allied Insurance Company Limited, 1^st Floor, Himalaya House, 23, Kasturba Gandhi Marg, New Delhi-11001 as as Annexure OP-A and OP-B respectively alongwith documents Annexure OP-1 to OP-21 and closed the evidence on behalf of OPs.
5.           We have heard the learned counsel for the parties and carefully gone through the case file.
6.           Learned counsel for the complainant submitted that by repudiating the claim on bald ground that the disease for which treatment was undergone by the complainant was result of the alleged consumption of alcohol, which was not covered under the policy in question, the OPs not only have committed deficiency in service but also indulged into unfair trade practice.  
7.           On the other hand, learned counsel for the OPs submitted that since the medical record of the Hospital(s) referred to above, where the complainant  took treatment reveals that he was alcoholic, which resulted into acute severe necrotising pancreatitis with sirs and peripancreatic collection and  any disease flowing out of consumption of alcohol was not covered under the policy in question, as such, the claim of the complainant was rightly rejected by the OPs. 
8.           The fact that the complainant got himself, his wife Mrs. Amandeep Kaur and minor daughter Tavgun Sahin insured from OP  No.1 for a sum of Rs.25,00,000/- under the policy in question on payment of premium; during the subsistence of the above said policy, the complainant suffered severe pain in his stomach, as a result of which, finally he underwent treatment for  acute severe necrotising pancreatitis with sirs and peripancreatic collection; submission of his claim for the expenditure incurred by the complainant; and repudiation of his claim by the OPs vide letter dated 19.08.2020, Annexure OP-17  by putting his claim under the exclusion No.4(8) of the said policy are not in dispute.
9.           Under above circumstances, the question which falls for determination is as to whether, the OPs were justified in repudiating the claim of the complainant or not. It may be stated here that perusal of record reveals that the repudiation of claim of the complainant vide letter dated 19.08.2020, Annexure OP-17 by the OPs is solely based on one writing of a person/doctor on the  Daily Doctor’s Progress Notes, Annexure OP-9 to the effect that “Alcoholic-5 years and that 2 days-before, alcohol had been consumed by the complainant. It is significant to mention here that neither the name of the Doctor who has recorded these progress notes nor his affidavit has been placed on record by the OPs.  Furthermore, the OPs in their written version have also stated that their medical experts have come to the conclusion, after going through the medical record of the complainant, that the claim is not payable, yet, neither the expert report of those medical experts nor their affidavit have also not been placed on record.  Not even an iota of cogent and convincing evidence, in the shape of any medical record of the complainant, issued by any treating Doctor of any hospital, proving that he took treatment for the said disease from any hospital/doctor or that he was alcoholic, prior to obtaining of the policy in question, has been placed on record by the OPs. In Revision Petition No. 200 of 2007 case titled as "Mr. Satinder singh V/s. National Insurance Co. Ltd., decided on 24/01/2011, the Hon’ble National Commission has held as under:-

"…. It has by now become a well settled proposition of law that recording of the history of a patient in the above stated manner, does not become a substantive piece of evidence unless a very cogent and convincing evidence has been brought on record to establish that insured was suffering from a pre-existing for which he had been taking treatment or remained admitted to some hospitals. The records or doctor of such a hospital should be proved/examined…”

10.           The Hon’ble National Commission, in the case of LIC of India Vs. Joginder Kaur 2005 CPJ-78, has held that simple allegations made by the petitioner that the deceased was alcoholic; was suffering from diabetes mellitus and jaundice, etc. would not be sufficient. The unproved case history recorded by some person on the date of admission of Shri Bachan Singh, the deceased, would not be cogent and convincing evidence to repudiate the claim unless it was coupled with medical report for the treatment prior to submission of proposal form.
11.           Furthermore, it is significant to mention here that a similar question as to whether, the notes of a doctor on medical record, in the absence of his  name/affidavit can be treated as primary piece of evidence or not for repudiation of insurance claim, fell for determination before the Hon’ble National Commission in the case titled as LIC Of India vs P.R. Sumanagala on 15 February, 2018, Revision Petition No. 2942 Of 2009,  wherein, the ground of repudiation of claim on such similar ground was nullified.
12.           As far as plea taken by the OPs to the effect that the insurance ombudsman has already passed an order against the complainant, it may be stated here that a similar case came up before the Hon'ble National Commission, having far reaching effect on the authority of Ombudsman whether complainant was debarred from re-agitating his grievances before Consumer Fora under the Consumer Protection Act. Hon'ble National Commission considered various provisions of the rules and was pleased to hold in case "Kameshwari Prasad Singh Vs. National Insurance Co. Ltd." (2005) I CPJ-107 (NC) in Paras No.8,10,11 & 12 as under:-

"8. Apart from the aforesaid general principles, the rules framed by the Central Government nowhere provide that the decision of the Ombudsman would be binding on the assured if he does not agree to the said decision. The agreement by the assured is the basis of passing award and that the recommendation/award made by the Ombudsman is binding on the Insurance Company and the Insurance Company is required to carry out the same.

 

10. In case, if the award is not accepted by the complainant, then the Insurance Company may not implement the said award.

11. The rules quoted above are clear and do not require any further consideration.

12. In view of above discussion, it is held that the decision of the Ombudsman is not binding on the complainant and the decision of the Insurance Company to repudiate the claim is subject to adjudication by the Fora Constituted under the Consumer Protection Act."

13.           Subsequent to pronouncement of above judgment by Hon'ble National Commission, a provision was accordingly made even in the Rules of Insurance Ombudsman. Rule-23 of Insurance Ombudsman (The Redressal of Public Grievances Rules, 1998) under the heading "Award by Ombudsman: whether binding on complainant?" provides as follows:-

"In case, if the award is not accepted by the complainant, then the Insurance Company may not implement the said award. In view of the above discussion, it is held that the decision of the Ombudsman is not binding on the complainant and the decision of the Insurance Company to repudiate the claim is subject to adjudication by the Fora constituted under the Consumer Protection Act."

 

14.           Keeping in view the ratio of law laid down in the aforesaid judgment and the facts and circumstances of the present case, we are of the considered view that the insurance company has not been able to prove the fact on the basis of which they have repudiated the claim of the complainant. Thus the repudiation of the claim done by the insurance company is held to be unjustified and amounts to deficiency in service on its part. Perusal of copy of policy document Annexure C-1, reveals that the basic floater sum insured is of Rs.25,00,000/- (Twenty Five Lacs). The OPs are thus liable to pay the entire admissible claim amount upto the limit of insured value in respect of the policy in question to the complainant. OPs are also liable to pay compensation for the mental agony and physical harassment suffered by the complainant and litigation expenses to the complainant.
15.           In view of the aforesaid discussion, we hereby allow the present complaint and direct the OPs, in the following manner:-

1. To pay the entire admissible claim amount (upto the limit of insured value in respect of the policy in question) to the complainant in respect of his treatment taken in the above-said hospital(s) alongwith interest @4%p.a. from the date of repudiation of claim i.e. from 19.08.2020, till realization.
2. To pay Rs.5,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
3. To pay Rs.3,000/- as litigation expenses.

 

 The OPs are further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order, failing which the OPs shall pay interest @ 6% per annum on the claim amount and also on the amount of compensation, for the period of default, till realization. Certified copies of the order be sent to the parties concerned as per rules.  File be annexed and consigned to the record room.

Announced:- 18.01.2023

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President