Order by:
Smt.Aparana Kundi, Member
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 on the allegations that the complainant had purchased a Senior Citizen Red Carpet Health Insurance Policy bearing Number P/211228/01/2020/000023 on 18.12.2019 for the period of 18.12.2019 to 17.12.2020 from Opposite Parties. On 01.07.2020, complainant was not feeling well and he got admitted in Satyam Heart & Super specialty Hospital, Namdev Marg, 40th Road Bathinda, where he medically treated by Dr. Rajiv Garg MD (Medicine) DM (Cardiology), Senior Consultant and Interventional Cardiologist and discharged on the same day i.e. on 01.07.2020. The complainant spent Rs.8,000/- for the said treatment. On 23.09.2020, complainant again admitted himself in the above mentioned Hospital as he was not feeling well. Dr. Rajiv Garg diagnosed the complainant for fever, body aches, dyspnea since 2 to 3 days, complainant remain admitted in the above said Hospital from 23.09.2020 to 30.09.2020 and spent about Rs.2,00,000/- on his treatment. After that complainant submitted the requisite documents with the officials of the opposite parties for payment of the claim amount. The official of the Opposite Parties assured the complainant that claim amount will be paid to him within 10 days, but to the utter surprise of the complainant that vide letter dated 30.01.2021 Opposite Parties repudiate the claim of the complainant on the ground that they had made a query from doctor Mr. Rajiv Garg of the said Hospital and in response to their query, said doctor vide his letter dated 18.12.2020 informed to them that "insured patient is a known case of chronic obstructive pulmonary disease for the past 1 year". Thereafter, complainant visited the office of Opposite Parties many times and requested them to pay the claim amount, but officials of the Opposite Parties flatly refused to accept the submission of the complainant. After that the complainant met the said doctor and told him that insurance company repudiate his claim, on this Dr. Rajiv Garg issued a letter dated 15.05.2022 to the complainant that the past history as per his version is only relating to previous date of visit of complainant i.e. 01.07.2020. After that complainant again submitted the said letter dated 15.05.2022 to the officials of the Opposite Parties and requested them to pay the insured amount, but to no effect. Further alleged that entire document relating to the medical treatment of complainant were handed over to Opposite Party No.2 and Opposite Party No.2 did not return the original documents to complainant. Hence this complaint. Vide instant complaint, the complainant has sought the following reliefs:-
a) Opposite Parties may be directed to pay the amount of Rs.2,00,000/- alongwith upto date interest @ 18% p.a. on the basis of policy no.P-211228/01/2020/000023 dated 18.12.2019.
b) To pay an amount of R.2,00,000/- as compensation on account of damages for physical as well as mental pain and agony suffered by the complainant.
c) And any other relief which this Commission may deem fit and proper be granted to the complainant in the interest of justice and equity.
2. Opposite Parties appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that the contents of the complaint are false, frivolous and vexatious and hence, denied in toto. No cause of action has arisen to file the present complaint against answering opposite party. There is no deficiency of services on the part of opposite party insurance company in partly rejecting the claim lodged by the complainant as the same was decided in accordance with the terms and conditions of the contract of insurance between the complainant and answering opposite party insurance company. The present complaint is baseless and flagrant, abuse of process of law to obtain wrongful gain from the answering opposite party. Further submitted that the insured availed Senior Citizens Red Carpet, Covering Mr.Narinder Kumar for the sum insured Rs.3,00,000/- vide policy No. P/211228/01/2020/000023 for the period 18/12/2019 to 17/12/2020. In case of Senior Citizen Red Carpet Insurance Policy medical examination is not required as the entry age must be above 60 years of age. As per terms and conditions of the Senior citizen Red Carpet policy issued to the complainant, only those Pre-existing diseases which are specifically declared by the proposer in the proposal form are covered under the policy. So it is compulsory that the information regarding the health must be provided in the proposal form, to the Opposite Parties to provide coverage with suitable co-payment, i.e. 50% of each and every claim arising out of all pre-existing diseases as defined and 30% in case of all other claims which are to be borne by the insured. 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.” The 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. The present complaint is filed without any cause of action, as the claim of the complainant was denied by the answering OP on the ground of Pre-existing disease & Non-Disclosure of material facts. The insured/complainant by not disclosing the PED before procuring the policy has violated the policy document/contract and also the core principle of insurance i.e. the Principle of Good Faith and had obtained the policy through concealment of material facts.
Further submitted that insured has submitted the reimbursement claim for hospitalization on 23.09.2021 in Satyam Heart Center Bathinda, towards the treatment of COVID PNEUMONIA IN K/C/O HTN, DVD, COPD, BRONCHOPNEUMONIA SARS COV 2. On scrutiny of claim documents, it is noted that although the present admission and treatment of the insured patient is for known case of hypertension, acute coronary syndrome, coronary artery disease, double vessel disease, normal LVEF, bronchopneumonia, SARSCOV2, it is observed from the Doctor letter dated 18.12.2020 of Dr.Rajiv Garg of the above hospital submitted in response to our query that the insured patient is a known case of chronic obstructive pulmonary disease for the past 1 year which confirms that the insured patient has chronic obstructive pulmonary disease prior to inception of medical insurance policy. At the time of inception of the policy which is from 18.12.2019 to 17.12.2020, insured has not disclosed the above mentioned medical history/health details of the insured-person in the proposal form which amounts to misrepresentation / non-disclosure of material facts. Thus, the claim was found not payable and was repudiated and communicated to the insured vide letter dated 30.01.2021.
Further submitted that as per waiting period 3(iii) of the policy issued the company is not liable to make any payment in respect of expenses for treatment of the pre existing disease until 48 consecutive months of continuous coverage has elapsed. The claim was repudiated under the ambit of specific condition no 6 as mentioned under the policy terms and conditions. As the treatment underwent by the insured was already existing before the policy inception and thus the illness was PED. However as per policy terms and conditions, the company is not liable to make any payment on account of any Pre-existing disease which was not disclosed at the time of purchasing the policy. Further submitted that as per section 19 (2) of Protection of Policy Holder Regulation 2017, the requirement of disclosure of material information regarding a proposal or policy apply under its regulations both the insured and insurer.” Further submitted that the Proposer in the proposal form has affirmed that the insured person was in good health and that he has not consulted or taken treatment which could be gathered from the following:
1. Are you in good health and free from physical and mental disease or infirmity. If not give details - Yes
2. Have you consulted / taken treatment/been admitted for any illness/disease / injury /Surgery - If yes, details - No
4. Have you ever suffered or suffering from any of the following
j) Heart disease - If Yes, since when - No
From the above findings it is clearly evident that the insured is well aware of his past medical history and failed to disclose the same in the proposal form during the porting of the policy amounting to non disclosure of material facts thus violating the cardinal principle of the insurance making the contract of insurance voidable and unenforceable. The Complainant has got no cause of action and locus-standi to file the present complaint. That the instant complaint is false, malicious, incorrect and filed with malafide intention and is nothing but an abuse of the process of law and is an attempt to waste the precious time of this Commission, as the same has been filed by the complainant just to avail undue advantage. The instant complaint is neither maintainable in law nor on facts and the same is liable to be dismissed in limine. This Commission has got no jurisdiction to try and decide the present complaint. No deficient services have been rendered by the answering opposite parties as alleged by the complainant. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.
3. Complainant also filed replication to the written reply of Opposite Parties, vide which, all the objections raised by the Opposite Parties in the written reply are denied.
4. In order to prove his case, complainant tendered in evidence his affidavit Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C22.
5. To rebut the evidence of the complainant, Opposite Parties tendered in evidence affidavit of Sh.Sumit Kumar Sharma, Senior Manager, Star Health & Allied Insurance Co. Ltd. Ex.OP1 to 3/A alongwith copies of documents Ex.OP1 to 3/1 to Ex.OP1 to 3/12.
6. We have heard the counsel for the parties and also gone through the documents placed on record.
7. There is no dispute regarding purchase of mediclaim policy by complainant for the period 18.12.2019 to 17.12.2020. During the policy period, complainant suffered with some health problem and admitted in Satyam Heart & Superspecialty Hospital on 10.07.2020 and discharged on the same day. The complainant spent Rs.8000/- for his treatment. Thereafter again due to some health problem, he admitted in the said hospital for the period from 23.09.2020 to 30.09.2020 is not disputed. The main dispute arises between the parties when the claim lodged by the complainant for the expenses incurred by him on his treatment was repudiated by the Opposite Parties. Ld. Counsel for the complainant alleged that Opposite Parties wrongly and illegally repudiated his claim.
9. On the other hand, the plea taken by the Opposite Parties is that complainant was issued Senior Citizen Red Carpet Insurance Policy in which medical examination is not required as the entry age must be above 60 years of age. As per terms and conditions of the Senior Citizen Red Carpet policy issued to the complainant only those Pre-existing diseases which are specifically declared by the proposer in the proposal form are covered under the policy. But the complainant failed to disclose his medical history/health details in the proposal form, so as per the terms and conditions of the policy claim of the complainant was repudiated vide letter dated 30.01.2021. But the Opposite Party could not produce any evidence to prove that whether terms and conditions of the policy were ever supplied to the complainant i.e. insured, when and through which mode? It has been held by Hon’ble National Commission, New Delhi in case titled as The Oriental Insurance Company Limited Vs. Satpal Singh & Others 2014(2) CLT page 305 that the insured is not bound by the terms and conditions of the insurance policy unless it is proved that policy was supplied to the insured by the insurance company. Onus to prove that terms and conditions of the policy were supplied to the insured lies upon the insurance company. From the perusal of the entire evidence produced on record by the Opposite Party, it is clear that Opposite Parties have failed to prove on record that they did supply the terms and conditions of the policy to the complainant insured. As such, these terms and conditions, particularly the exclusion clause of the policy is not binding upon the insured.
10. Further perusal of repudiation letter dated 30.01.2021 reveals that Opposite Parties repudiated the claim of the complainant on the ground that complainant/insured patient is known case of hypertension, acute coronary syndrome, coronary artery disease, double vessel disease, normal LVEF, bronchopneumonia, SARS-COV2. But the diseases on the basis of which, the claim of the complainant is rejected are the common life style diseases and can be arise at any stage of life and all the diseases mentioned above are the complications of the hypertension only, no one come to know about the same unless and until it is diagnosed. We draw support from Life Insurance Corporation of India Vs. Sushma Sharma from II (2008) CPJ 213 wherein Hon'ble State Commission has also held the same.
11. In view of the above discussion, we hold that the Opposite Party-Insurance Company have wrongly and illegally rejected the claim of the complainant.
12. Now come to the quantum of amount to be awarded to the complainant. Vide instant complaint, the complainant claimed the amount of Rs.2,00,000/-, but he has not given any clear detail regarding this amount. However, perusal of the Final Bill attached with Ex.C7 shows that his hospitalization charges are Rs.77,000/- and perusal of copies of other bills placed on record vide Ex.C12 to Ex.C19 shows that an amount of Rs.99,405/- was also spent on medicines. In this way, the complainant spent (Rs.77,000/- plus Rs.99,405/-) totaling Rs.1,76,405/- on his treatment and hospitalization. Hence we allow the same.
13. From the above discussion, we partly allow the complaint of the complainant and direct the Opposite Parties to pay an amount of Rs.1,76,405/- (Rupees One Lakh Seventy Six Thousand Four Hundred and Five only) to the complainant. Opposite Parties are further directed to pay compository costs of Rs.8,000/-(Rupees Eight Thousand only) as compensation and litigation expenses to the complainant. The pending application(s), if any also stands disposed off. The compliance of this order be made by the Opposite Parties within 45 days from the date of receipt of copy of this order, failing which, they are burdened with additional cost of Rs.8000/-(Rupees Eight Thousand only) to be paid to the complainant for non compliance of the order. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced on Open Commission
