Punjab

Moga

CC/16/140

Balbir Kumar - Complainant(s)

Versus

Star Health and Allied Insurance co. Lrd. - Opp.Party(s)

Sh. Anish Kant Sharma

15 Feb 2017

ORDER

THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MOGA.

 

 

                                                                                      CC No. 140 of 2016

                                                                                      Instituted on: 22.08.2016

                                                                                      Decided on: 15.02.2017

 

Balbir Kumar son of Sh.Jodhvir Son of Sh. Gopi Chand, resident of Akalsar Road, near Railway Crossing, Moga, District Moga.

                                                                                ……… Complainant

 

Versus

1.       Star Health and Allied Insurance Company Limited, First Floor on ICICI Bank Limited, Ferozpur G.T. Road, Moga, through its Branch Manager.

 

2.       Star Health and Allied Insurance Company Limited, Registered and Corporate Office: 1, New Tank Street Valluvar Kottam High road, Nungambakkan, Chennai - 600034, through its Managing Director/Secretary.

 

3.       Vikas Garg, S.M. of Star Health and Allied Insurance Company Limited., 2716, 1^st Floor, Gagan Complex, Backside Majestic Hotel, Gurdev Nagar, Pakhowal Road, Ludhiana.  

                                                                           ……….. Opposite Parties

 

 

Complaint U/s 12 of the Consumer Protection Act, 1986.

 

 

Quorum:    Sh. Ajit Aggarwal,  President

                   Smt. Vinod Bala, Member

                   Smt. Bhupinder Kaur, Member

 

Present:       Sh. Anish Kant Sharma, Advocate Cl. for complainant.

                   Sh. Vishal Jain, Advocate Cl. for opposite parties.

 

ORDER :

(Per Ajit Aggarwal,  President)

 

1.                Complainant has filed the instant complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the "Act") against Star Health and Allied Insurance Company Limited, First Floor on ICICI Bank Limited, Ferozpur G.T. Road, Moga, through its Branch Manager and others (hereinafter referred to as the opposite parties) directing them to pay Rs.4 lacs alongwith interest @ 18% per annum till the date of payment on account of insurance policy no.P/161114/01/2016005018. Further opposite parties may be directed to pay Rs.5 lacs on account of mental tension, harassment and deficiency in service and Rs.25,000/- as litigation expenses to the complainant. Further opposite parties may be directed not to cancel the abovesaid policy of the complainant and further to restore the policy in case the opposite party had cancelled the abovesaid policy of the complainant immediately or any other relief which this Forum may deemed fit and proper be granted to the complainant.

2.                Briefly stated the facts of the case are that the complainant had purchased a policy from the opposite party nos.1 & 2 bearing policy no. P/161114/01/2012/003362 firstly on 27.09.2011, through opposite party no.3. As per the said policy, opposite party covered 4 persons of the family of the complainant. The family members which included in the policy were Balbir Kumar (himself), Renu Dang (wife), Payal Arora (Daughter), Ekta Arora (Daugther) and paid Rs.12,232/- for the period of 27.09.2011 to 26.09.2012. The complainant renewed the said policy vide policy no. P/161114/01/2013/002819 valid for the period 27.09.2012 to 26.09.2013. As per this policy opposite party covered 3 persons of the family of the complainant i.e. Balbir Kumar (himself), Renu Dang(wife) and Ekta Arora (Daugher). As Payal Arora got married, so she expelled from the policy by the complainant himself. The complainant paid Rs.14,416/-. The said policy was got renewed for the period 27.09.2013 to 26.09.2014, 27.09.2014 to 26.09.2015, thereagter from 27.09.2015 to 26.09.2016. At the time of purchase of 1^st policy in the year, 2011, complainant disclosed all the facts to opposite party no.3 regarding the health of all the family members, especially this fact was disclosed to opposite party no.3 that wife of the complainant had been operated from MAX Super Speciality Hospital, Mohali in the year 2007 and she undergone PTCA Stunting to a LAD on 30.07.2007. But at that time the opposite party no.3 told that as per the policy of opposite party every disease is covered after 48 months whether same is pre-existing or not. The proposal form was also filled by opposite party no.3 and complainant was not sure whether same facts have been mentioned by the opposite party no.3 in the proposal form or not. Even opposite parties did not issue any copy of proposal form to the complainant. On 29.09.2015 Smt. Renu Dang wife of the complainant felt severe pain in her heart and she got admitted in Global Heart Super Specialty Hospital, Ferozpur Road, near Octroi Post, Ludhiana for angiography and after that on 05.10.2015 she got admitted in Max Super Specialty Hospital, Mohali where she was operated by Dr. Sudhir Sexsena M.D.  D.M. Cardiology, Director and HOD Interventional Cardiology done successful PTCA with DES to LAD and LCX and she has been discharged on 06.10.2015. Approximately more than Rs. 4 lac was incurred by the complainant for the medical treatment of his wife. The complainant intimated about the said hospitalization to opposite party no.3, as the complainant was having a cashless policy of opposite party, but to the utter surprise of the complainant, inspite of insurance health cover, opposite parties refused to make the payment in the Max Hospital. The brother of the complainant contacted to opposite parties, but opposite parties told that due to some reason insurance company is not paying the claim of the complainant in cashless scheme, but they will clear the claim of the complainant definitely after some time. Due to this, the complainant had to face financial problem. After some time when complainant contacted opposite party no.3 even then, they assured to the complainant that their claim is genuine one, so the company will have to pay the whole premium. Then all the documents relating to the medical treatment of Smt. Renu Dang handed over to the opposite party no.3. On 07.01.2016, the complainant received a letter of repudiation of claim of the complainant from the office of opposite parties. In this letter, they refused to make the claim of the complainant on the ground that medical history of the insured person has not been disclosed at the time of insurance. On 11.01.2016 another letter had been issued by the opposite parties, in which, the company said "We intend to cancel the policy in respect of the above person w.e.f. 26.02.2016. This letter shall be taken as the notice of cancellation as per the above mentioned condition no.15 of the policy clause". Both the letters issued by the opposite parties are illegal and not binding upon the rights of the complainant under any law. The complainant visited the office of opposite parties number of times and requested them to make his genuine claim, but all in vain. As per the terms and conditions of the policy, the opposite parties are liable to pay all the expenses, which were covered under the said insurance policy. Due to act and conduct of opposite parties, the complainant has suffered mental tension, harassment and financial loss. The aforesaid act of opposite parties amounts to deficiency in service on the part of opposite parties. Hence this complaint.

3.                Upon notice, opposite parties appeared through counsel and filed their written reply taking preliminary objections that the Preamble of the policy clearly stated the Proposal, Declaration and other documents, if any, given by the proposer form the basis of the policy of insurance" subject to terms, conditions, exclusions and definitions contained herein or endorsed or otherwise expressed hereon, the company undertakes if the insured person shall contract any disease or suffer from any illness or sustain any bodily injury through accident and if such disease or injury shall required the insured person, upon the advice of the duly qualified physician/ Medical Specialist/ Medical Practitioner or duly qualified Surgeon to incur Hospitalization expenses for medical/ surgical treatment at any Nursing Home/ Hospital in India as herein defined as an inpatient the Company will pay to the insured person the amount of such expenses as are reasonably and necessarily incurred in respect by or on behalf of insured person upto the limits indicated." That contrary to the stand taken by the complainant of non performance/ deficiency in service, the opposite parties claims this opportunity to apprise this 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 opposite parties taken all the necessary precautions and has kept the complainant adequately informed of his policy terms and obligations; that no cause of action arisen in favour of the complainant to file the present complaint. The opposite parties have acted strictly on the basis of the terms and conditions contained in the policy. The present case is premature as the complainant had not submitted the required documents for the purpose of the claim despite of repeated requests by the opposite parties. The complainant has been filed by the complainant with malafide intention and further to grab the public money. Hence, the complaint is liable to be dismissed. The relief sought in the present complaint is in violation of terms and conditions contained in the policy. The complaint is bound by the terms and conditions as applicable and which were expressly made known to the complainant at the time of taking the policy in question. The opposite parties at the time of issuing the policy explained to the complainant the exclusion clauses and the payment plan; that the complainant has approached this Forum with unclean hands by not disclosing and misrepresenting material facts. The present complaint is false, frivolous, misconceived and vexatious in nature and has been filed with the sole intention of harassing the opposite parties. The complainant has knowingly and intentionally concealed the true and material facts from this Forum. The present complaint is gross abuse of the process of law and is liable to be dismissed with costs; that the present complaint is the misuse of the legal process. The present complaint was filed only with the motive to harass the opposite parties; that the complainant has no locus standi and cause of action to file the present complaint. The opposite parties further submitted that the policy issued to the complainant under which the dispute has been raised in governed by liability as per various clause. That without any prejudice to the defiance, which was taken or to be taken. It is submitted that if at any stage this Forum is of the view that the complainant is entitled for the claim as alleged, even then the claim has to be settled as per the provisions of terms and conditions of the policy and the deductions has to be deducted as mentioned in the policy documents.

                   On merits, it is submitted that the complainant himself purchased the insurance plan from opposite parties i.e. Family Health Optima Insurance, which covers the complainant himself, his spouse namely Renu Dang and dependant child namely Ekta Arora, vide policy no.P/161114/01/2012/003362 valid from 27.11.2011 to 26.11.2012 with his own sweet will and after going through the terms and conditions of the policy. The complainant further renewed the said policy for the period 27.11.2012 to 26.11.2013, 27.11.2013 to 26.11.2014, 27.11.2014 to 26.11.2015, 27.11.2015 to 26.11.2016 from Moga Branch, for the sum insured of Rs.6,00,000/-. It is submitted that all the terms and conditions of the policy were well explained to the complainant at the time of purchasing of the policy and after being satisfied with all the terms and conditions of the policy/insurance contact, the complainant himself purchased the policy as per his own requirement. No false promise, misrepresentations and incorrect information was ever given by opposite parties to the complainant as alleged by him in his complaint. Opposite party no.3 never made any false promise to the complainant at the time of selling of the abovesaid policy nor he was ever authorized for the same. Moreover, the policy pack was delivered to the complainant well within time, wherein all the terms and conditions of the policy were explained, but he has never raised any complaint within free look period, which was provided to him under the policy nor any complaint was ever raised thereafter. The allegations that the complainant disclosed all the facts to opposite party no.3 that the wife of the complainant Smt. Renu Dang had been operated from Max Super Spectialy Hospital, Mohali in the year, 2007 and she had undergone PTCA Sstunting to a LAD on 30.07.2007, but at that time, opposite party no.3 told that as per the policy of opposite parties every disease is cover after 48 months, whether same is pre-existing or not. All the documents were sent to the address of the policy holder, which was mentioned in the policy documents. Moreover, the policy in question was purchased in the year 2011 for the first time by the complainant and the same was renewed for more than 5 times and in these 5 years not objection was ever raised by the policy holder/insured. It is further submitted that the allegation of the complainant that the wife of the complainant namely Renu Dang was got admitted in Global Heart Super Specialty Hospital, Feroozepur Road, Near Octroi Post, Ludhiana on 29.09.2015 for angiography and after that on 5.10.2015, she was got admitted in Max Super Spectlity Hospital, MOhali where she had been operated by Dr. Sudhir, M.D.D.M Cardiology, Director and HOD, interventional Cardiology done successful PTCA with DES to LAD and LCX and she had been discharged after one night on 6.10.2015, is matter of record. As per discharged summary of Global Heart and Super Specialty Hospital for the admission on 26.09.2015, the wife of the complainant is a known case of coronary artery disease and has undergone PTCA stenting to LAD on 30.07.2007, which is prior to the inception of the policy. However, it is submitted that the complainant was well aware about the disease of his wife before the inception of the policy, but the complainant knowing and intentionally concealed about this material fact at the time of inception of the policy, which amounts to misrepresentation and concealment of true and material facts. Therefore, the complainant is not entitled for any claim as alleged. The insurance contact is a special contract, which is based upon utmost good faith between both the parties and any concealment on the part of either party makes the insurance contract Void-ab-initio. Any misrepresentation and non discloser of the material facts makes the insurance contact null and void. Condition no.8 of the terms and conditions of the policy contract specifically states: " 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 claim of the complainant was repudiated as per terms and conditions of the policy contract. All other allegations made in the complaint have been denied and a prayer for dismissal of the complaint with heavy costs has been made.

4.                In order to prove the case, complainant tendered in evidence his duly sworn affidavit Ex.C-1 alongwith copies of documents Ex.C-2 to Ex.C-35 and closed the evidence. 

5.                On the other hand, opposite parties tendered in evidence duly sworn affidavit of Sh. P.C. Tripathy, Zonal Manager, Star Health and Allied Insurance Co. Ltd. as Ex.OPs-1 alongwith copies of documents Ex.OPs-2 to Ex.OPs-7 and closed the evidence.

6.                We have heard ld. counsel for the parties and have very carefully gone through record placed on file.

7.                The case of the complainant is that for the first time in September, 2011, he purchased the mediclaim policy from opposite parties covering himself and his family members including his wife Smt. Renu Dang and since than this policy continuously renewed without any break. At the time of purchase of policy , the complainant disclosed the fact to opposite parties that his wife had been operated from Max Super Specialty Hospital, Mohali in the year 2007 and undergone PTCA  stunting to a LAD and at that time opposite parties told that as per policy terms and conditions every disease is covered under the policy after 48 months whether the same is pre-existing or not. On 29.09.2015 Smt. Renu Dang wife of the complainant felt severe pain in her heart and got admitted in Global Heart Super Specialty Hospital, Ferozpur Road, near Octroi Post, Ludhiana for angiography and after that on 05.10.2015 she got admitted in Max Super Specialty Hospital, Mohali, where she was operated for PTCA with DES to LAD and LCx and she was discharged on 06.10.2015. The complainant spent morethan 4 lac for the treatment of his wife. As per policy complainant and his family members were entitled for cashless treatment in the enlisted hospitals of opposite parties. At the time of admission in the hospital she intimated to opposite parties for the cashless hospitalization, but they refused to allow cashless treatment and assured that after discharge, on lodging of claim they will pay entire expenses borne by the complainant. Accordingly, the complainant lodged the claim with opposite parties and submitted all the required documents, medical record and bills with opposite parties. But vide letter dated 07.01.2016, the opposite parties repudiated the claim of the complainant on the ground that medical history of the insured person had not been disclosed at the time of insurance and they further cancelled the policy. In fact, the complainant never suppressed any medical history of his wife at the time of purchase of insurance policy and disclosed each and every fact to the opposite parties. The complainant visited the office of opposite parties and requested them to make the payment of his genuine claim. The opposite parties are entitled to pay the expenses occurred by the complainant for the treatment of his wife. On the other hand, ld. counsel for opposite parties argued that the complainant purchased the policy in question in September, 2011 with his wife Smt. Renu Dang, after going through the exclusion clause of the policy. He further got renewed the said policy from time to time. At the time of issuance of policy all the terms and conditions of the policy were explained to the complainant and after satisfying with the same, he purchased the policy in question. It is wrong that at the time of purchase of policy, the opposite parties made false promises and misrepresentation regarding the coverage of pre-existing disease in the policy. As per terms and conditions of the policy, the pre-existing disease which are disclosed in the proposal form at the time of purchase of policy are covered under the policy after 48 months of continuation of policy and the pre-existing disease which are not disclosed at the time of purchase of policy are not covered under the policy even after expiry of 48 months. In the present case, the complainant never disclosed the fact regarding the treatment taken by his wife in the year, 2007 from Max Super Specialty Hospital, Mohali and regarding under taken of PTCA Stunting to LAD. At the time of purchase of policy all the terms and conditions of the policy duly explained to the complainant, copy of the same is also supplied to the complainant, who admitted the same to be correct. They admitted that the complainant lodged the claim regarding the reimbursement of medical expenses of his wife Renu Dang. As per claim form, she admitted in Global Heart Super Specialty Hospital, Ludhiana on 29.09.2015 and after that on 05.10.2015 she got admitted in Max Super Specialty Hospital, Mohali, where she had been operated for PTCA with DES to LAD and LCX and discharged on 06.10.2015. As per discharge summary she has a known case of Coronary artery disease and had undergone PTCA stunting to a LAD on 30.07.2007, which is prior to inception of the policy. The complainant was well aware about the disease of his wife at the time of inception of policy, but he intentionally concealed the material facts at the time of issuance of policy, which amounts to misrepresentation and concealment of true and material facts and he is not entitled for any claim as alleged. The opposite parties rightly and legally repudiated the claim of the complainant as per terms and conditions of the policy.

8.                Now, it is admitted case of the parties that the complainant purchased the mediclaim insurance policy from opposite parties in September, 2011 for the first time and renewed the policy from time to tome. The case of the complainant is that at the time of issuance of policy, the opposite parties assured him that after expiry of 48 months of continuous of policy period all the pre-existing are covered under the policy and at the time of purchase of policy, he disclosed the fact that his wife Smt. Renu Dang undergone the PTCA Stunting to LAD in the year, 2007 and opposite parties assured that this disease covered after the expiry of 48 months. Now, on 29.09.2015 wife of the complainant felt severe pain in her heart and got admitted in hospital in Ludhiana and further on 05.10.2015 got admitted in Max Super Specialty Hospital, Mohali and was operated for PTCA with DES to LAD and LCX. He lodged the claim with opposite parties, who repudiated the claim on the ground that this disease is not covered under the policy, as he has not disclosed this pre-existing disease at the time of inception of the policy. Whereas, as per terms and conditions of the policy, pre-existing disease are covered under the policy after expiry of 48 months on continuation of policy period. On the other hand, the plea of the opposite parties is that as per terms and conditions of the policy, in which, pre-existing disease which are disclosed in the proposal form at the time of purchase of insurance policy are covered under the policy after 48 months of continuation of policy and the diseases which are not declared by the insured in the proposal form are not covered under the policy and excluded any benefits under the policy. On it, ld. counsel for complainant argued that if for the sake of arguments, it is admitted that the complainant did not disclose the fact regarding the pre-existing disease of his wife at the time of purchase of policy from opposite parties and it is suppression of fact than in that case also, the opposite parties cannot repudiate the claim of the complainant in toto and in that case the claim is to be decided on non standard basis. He put reliance on the citation on the order dated 26.08.2016 of our Hon'ble National Consumer Disputes Redressal Commission, New Delhi passed in Revision Petition no. 1729 of 2016 titled as PNB Met Life Insurance Company Limited Vs Smt. Sunita Goyal and others, whereas our Hon'ble National Commission, held that when the petition came up before this Commission on 4.7.2016, the petitioner was directed to file an affidavit stating therein as to whether the policy would have been granted to the deceased or not had he disclosed that he had been smoking for more than 5 years before submitting the proposal. The petitioner company, in compliance of the aforesaid direction, has filed an affidavit of Motty John who has stated that had the policyholder disclosed the fact that he had been smoking for more than 5 year before submitting the proposal, the policy would have been issued, but the premium would have been on higher side. Thus, the policy of the insurer was not to deny insurance to a smoker though it would have charged a higher premium while insuring the life of such a person. The affidavit filed by the petitioner company does not indicate the extent to which the premium would have increased in the case of a smoker. Considering all the facts and circumstances of the case, I am of the considered view that the insurer should pay 75 % of the insured amount to the complainants, without any interest on that amount, provided payment is made in a time-bound manner. Such an order, in my view, would meet the ends of justice since there will be some penalty for not disclosing the habit of smoking to the insurer and at the same time it will not fully deny the benefit of the insurance policy to the legal heirs of a person who did not pay the full premium applicable in his case.

9.                The complainant argued that in light of the above decision of Hon'ble National Commission the opposite parties are liable to pay at least 75% of the total claimed amount on non-standard basis presuming it to be violations of terms and conditions of the policy. From the above discussion, in light of the decision of the Hon'ble National Commission, we are of the considered opinion that if it presumed that the complainant have not disclosed the pre-existing disease of her wife at the time of purchase of policy and it is violation of terms and conditions of the policy in that case also, the opposite parties cannot repudiate the claim of the complainant. As it is admitted that the complainant had been purchasing the policy in question continuously for the last five years, as such, it should be decided on non-standard basis and the opposite parties is liable to pay 75% of the claimed amount to the complainant. Hence the present complaint in hand is hereby partly allowed and opposite parties are directed to pay Rs.2,75,075/- i.e. 75% of Rs.3,66,766/- as claimed by the complainant, vide claim form Ex.OPs-5 and Claim Process Sheet prepared by opposite parties alongwith claim form with interest @ 9% per annum from 07.01.2016, when the opposite parties repudiate the claim of the complainant till final realization. Further opposite parties are directed to pay Rs.3000/-(Three thousand only) as litigation expenses to the complainant. Compliance of the order be made within 30 days of receipt of the copy of the order, failing which, complainant shall be entitled to initiate proceedings under section 25 & 27 of the Consumer Protection Act. Copy of the order be supplied to the parties free of costs. File be consigned to record room.

Announced in Open Forum.

Dated: 15.02.2017.

 

                               (Bhupinder Kaur)                 (Vinod Bala)         (Ajit Aggarwal)

                                              Member                           Member                President