Order by:
Smt.Priti Malhotra, President
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 stating that son of the complainant namely Charanjeev Singh Gugnani has been availing ‘Senior Citizens Carpet Health Insurance Policy’ from the Opposite Parties since 24.01.2022. Before issuing the policy medical tests of complainant was also taken by the penal doctors of Opposite Parties. Earlier, the Opposite Parties issued policy bearing no.P/211222/01/2022/009222 for the period 24.01.2022 to 23.01.2023 with sum insured amount of Rs.15,00,000/-, which was renewed for the period from 24.01.2023 to 23.01.2024 and thereafter again renewed from 24.01.2024 to 23.01.2025 vide renewal endorsement no. 11240632272702. Alleged that unfortunately complainant has suffered problem of knee pain and went to Fortis Hospital, Mohali on 05.04.2024 and concerned doctor of said hospital conducted the medical Tests and X-RAY of the complainant and adviced the complainant to get the Surgery done as she is diagnosed with OA knee problem and the concerned doctor also prescribed medicine to the complainant. Thereafter, the complainant through above said hospital applied for cashless treatment/surgery of her OA Knee on 29.04.2024 with opposite parties, but the opposite parties rejected/denied the cashless approval of treatment of complainant vide its letter dated 29.04.2024 with excuse “Inferential Indicative of PED less than four years policy and through said letter opposite parties also demanded the original documents seeking reimbursement of the expenses incurred towards the treatment of complainant. Thereafter complainant get admitted at Fortis Hospital Mohali for the period 03.05.2024 to 09.05.2024 for her surgery- ‘Bilateral Total Knee Replacement’. Alleged that complainant spent Rs.4,83,557/- on her treatment at the said hospital and said hospital authorities duly informed to opposite parties about the said treatment. Thereafter, the complainant approached the opposite parties alongwith original medical record and bills and submitted her claim for medical reimbursement and opposite parties have also issued the claim intimation no.CIR/2025/211222/0135446 to complainant. However, complainant was in shock when she received a letter dated 31.05.2024 from the office of opposite parties, vide which, they informed the complainant that they are unable to admit the claim as the insured patient has the above disease prior to inception of the medical insurance policy. Hence it is a pre-existing disease. The complainant through her counsel also send a legal notice dated 13.06.2024 to opposite parties, but to no affect. Due to the act and conduct of the Opposite Parties, the complainant has suffered mental tension and harassment. 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.4,83,557/- with interest @ 12 % per annum from the date of filing of present complaint till realization of amount.
b) To pay a sum of Rs.50,000/- as compensation on account of mental tension, harassment and for deficient services.
c) To pay Rs.5500/- as costs of the complaint.
2. Opposite Parties appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that the present complaint is filed without any cause of action, as the claim of the complainant was denied by the answering Opposite Party on the ground of Pre-existing disease & Non-Disclosure of material facts. Averred that the present complaint pertains to insurance claim under ‘Senior Citizen Red Carpet-Revised 2018’ insurance Policy bearing No.11240632272702 valid from 24.01.2024 to 23.01.2025 covering the complainant self for a sum of Rs.1500000/-. However it is submitted that the aforesaid insurance policy was issued to the insured by the answering Opposite Party subject to the terms and conditions of the insurance policy. The complainant had accepted the policy agreeing and being fully aware of such terms and conditions and executed the proposal form. Averred further that the following important features are the Uniqueness of Senior Citizen Policy which may be kept into consideration by the Hon’ble Consumer Commission while deciding the present complaint:-
1. Co pay: A portion of every admissible claim is borne by the policy holder. Declared Pre existing disease covered at 50 % co-payment and Other Illnesses covered at 30% co payment.
2. Sub limit: Total liability is restricted to a specified amount for certain identified illnesses during the policy period.
3. Age at entry: 60 years to 74 years.
4. Renewability: Up to lifetime.
The terms and conditions of the Policy were explained to the complainant at the time of proposing policy and the same were served to the complainant along with the Policy Schedule.
Submitted that the Senior Citizen Red Carpet Policy is a policy which is exclusively provided to senior citizens from the age of 60-74 and can be renewed for life time. The other features of this policy is that 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. Moreover, for the opposite parties to provide coverage with suitable co-payment i.e. 30% in case of all claims which are to be borne by the insured. Some of other terms of Senior Citizen Policy are:-
Co-pay: Co-payment means a cost sharing requirement under a health insurance policy that provides that the policyholder/insured will bear a specified percentage of the admissible claims amount. A co-payment does not reduce the Sum Insured.
Co-payment: This policy is subject to co-payment of 30% for all claims.
Sub limit: Total liability is restricted to a specified amount for certain identified illness during the policy period.
All these terms were very well within the knowledge of the complainant and knowing the same the complainant ported the policy with answering opposite parties.
Averred further that the insured had requested the cashless and submitted the proposed medical expenses towards the treatment ‘Grade 1V OA KNEE at Fortis Hospital, Mohali on dated 29.04.2024 for hospitalization w.e.f. dated 03.05.2024 to 09.05.2024. As per internal verification, the insured patient had the above said disease which was a longstanding ailment and the Opposite Parties were not able to ascertain the duration of the disease based on the documents/details submitted by the insured and it required further evaluation. Subsequently insured has submitted the same in reimbursement. On scrutiny of claim documents, it was observed from the X-ray report submitted by the complainant that longstanding OA changes. Based on this finding medical team of the Opposite Parties is of the opinion that the insured patient has the above disease prior to inception of the medical insurance policy. Hence it is a pre-existing disease. The present admission and treatment of the insured patient is for the pre existing disease. As per Exclusion - Pre-existing disease - Code Excl-01 of the policy issued to insured, the Company is liable to make payment for any pre-existing disease only after the expiry of 12 months from 27.05.2024. Hence, the claim was rejected and the same was informed to the insured vide letter dated 31.05.2024.
Averred further that subsequently, an endorsement dated 21.09.2022 was passed, vide which, it is declared and agreed that the policy is subject to the following Pre-Existing Disease, which has been found only by the claims department when processing the claim in respect of the Insured (RAJINDER KAUR). Pre Existing Disease: Diabetes Mellitus and its complications. For the above said Pre-Existing Disease/s is subject to a waiting period of 12 months with effect from 27-May- 2024."
Averred further that the Proposer, in the Proposal form has affirmed that the Insured person was in Good health and that she 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:-
f) Disease of bones /joints, slipped disc, spinal disorder, injury to ligaments - If Yes, since when - No
From the above findings, it is clearly evident that the insured is well aware of the past medical history of the insured person and failed to disclose the same in the proposal form during the porting of policy, amounting to non disclosure of material facts thus violating the Cardinal Principle of the Insurance, making the Contract of Insurance voidable and unenforceable.
Averred further that intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination, which is not possible in the summary procedure under C.P. Act; the complainant has got no cause of action and locus-standi to file the present complaint; the instant complaint is false, malicious, incorrect and with malafide intent and is nothing but an abuse of the process of law; the complaint is neither maintainable in law nor on facts; no deficient services have been rendered by the 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. In order to prove the case, complainant has placed on record his affidavit as Ex.C1 alongwith copies of documents Ex.C2 to Ex.C18.
4. On the other hand, Opposite Parties have placed on record affidavit of Sh.Sumit Kumar Sharma, Authorized Signatory, Star Health & Allied Insurance Co. Ltd. as Ex.OP1 & 2/A alongwith copies of documents Ex.OP1 & 2/1 to Ex.OP1 & 2/13.
5. We have heard the ld. counsel for both the parties and also gone through the record.
6. It is admitted and proved on record that son of the complainant availed health insurance policy namely ‘Senior Citizen Red Carpet-Revised 2018’ bearing no.11240632272702 for the period 24.01.2024 to 23.01.2025 for covering the complainant for a sum insured of Rs.15,00,000/-. It is also proved on record that during the policy coverage, complainant suffered Grade IV OA knee and got admitted in Fortis Hospital, Mohali on 03.05.2024 and after treatment got discharged from the hospital on 09.05.2024. It is not disputed that the complainant applied to Opposite Parties for cashless request, but cashless request of the complainant was rejected by Opposite Parties, vide letter dated 06.05.2024. Thereafter, the complainant lodged the claim with Opposite Parties for the reimbursement of the expenses incurred on her treatment, but the claim of the complainant was denied/not admitted by the Opposite Parties, vide letter dated 31.05.2024. The contents of said letter are reproduced as under:-
“It is observed that the submitted X-ray knee report shows longstanding OA changes. Based on this finding our medical team is of the opinion that the insured patient has the above disease prior to inception of the medical insurance policy. Hence, it is pre-existing disease. The present admission and treatment of the insured patient is for the pre existing disease.
As per Exclusion- Pre-existing disease- Code Excl-01 of the policy issued to you, the Company is liable to make payment of any pre-existing disease only after the expiry of 12 months from 27.05.2024.
We wish to bring to your kind attention that the above Pre-Existing Disease/s is/are found while processing the claim of the above insured patient.
As per the new IRDA guidelines, if the non-disclosed disease is other than the disease from the list of permanent exclusions, then the insurer can incorporate additional waiting period of not exceeding 1 year for the said undisclosed disease or condition from the date the disease was found out (i.e. 27.05.2024) and it is now incorporate in your policy as pre existing disease/condition by passing endorsement.
7. We have given the due consideration to the admitted and proved facts on record and also considered the rival contentions of the ld. Counsels for both the parties and have gone through the record meticulously. The main contention raised by ld. counsel for the Opposite Parties with regard to repudiation of the claim is that complainant has past history of the OA Knee and suffering from the same prior to the inception of the insurance policy; Claiming it as pre-existing disease and claim declared as not payable.
8. We do not agree with the aforesaid contention of the ld. counsel for the Opposite Parties, as the ailment suffered by the complainant relates to the degenerative process which usually occurs in old age persons. Also degeneration is a natural phenomenon with the age factor and the policy availed by the complainant is ‘Senior Citizen Red Carpet Policy, which is exclusively provided to the Senior Citizens from the age of 60-74. Vide such policy, the Opposite Parties undertake to indemnify the expenses incurred for the ailment suffered during the coverage period, knowing well qua the age related diseases encounted by the old age persons/insured. Thus, it is not right on the part of the Opposite Parties to state that the complainant failed to disclose about her degenerative changes. We are of the considered opinion that the pase of degeneration is not calculative and it is not presumed that the person himself/herself is aware about the intensity of the same in advance which otherwise is been diagnosed when particular tests are being conducted. The Opposite Parties have failed to place on record any of the documents/evidence implying that complainant was in previous knowledge of her ailment or she got conducted her tests before issuing the policy in question which she allegedly concealed at the time of availing the policy in question. There is no clarity in the allegations of the Opposite Parties that since how many years the complainant is suffering from the disease in question. Thus, the allegation that complainant suffering from the ailment in question is pre-existing is baseless and wrong. Moreover, the policy in question is in its third year of continuation. Further the Opposite Parties have not placed on record any document/medical record revealing that the complainant has been suffering from the ailment in question or ever taken the treatment for the for the same prior to inception of the policy. The onus to prove that complainant/insured was suffering from a pre-existing disease as per settled law is on the Opposite Party. For this observations we are well guided by judgments of Hon’ble National Consumer Disputes Redressal Commission in case titled Reliance Life Insurance Co. Ltd & Anr. v. Tarun Kumar Sudhir Halder in Revision Petition No. 2097 of 2019 has also held so:-
"The Insurance Company has not filed any evidence to show that the DLA was taking treatment for the disease prior to filling up of the proposal form. Even if there was disease inside the body, but the life insured did not know about the disease and was not taking any treatment for the same, the insurance claim cannot be denied on mere presumption that the life assured might be suffering from pre-existing disease. Thus, on merits, I am convinced on the (FA-383/2016) PAGE 8 OF 10 basis of the entries in the Medical Attendant Certificate that the disease was complained for the first time by the DLA on 22.06.2011, which is much after the date of the proposal form. The onus to prove the pre-existing disease lies on the Insurance Company and no supporting documents have been filed by the Insurance Company in support of their assertion.
However, in the present case, the Opposite Parties have not produced any documentary evidence/expert medical opinion in support of its case. Hence, the denial/non admission of the claim of the complainant in question by the Opposite Parties is not genuine and legal. From the discussion above, it is concluded that Opposite Parties have rendered deficient services.
9. Vide instant complaint, the complainant claimed the amount of Rs.4,83,557/-, which is proved on record vide Ex.C7, Ex.C8, Ex.C12, Ex.C13 and Ex.C14.
10. The policy document placed on record reveals that the said policy is been issued specifying that the insured is liable for 30% of the co-payment for admissible claims. The term Co-payment is define as under:-
“Co-Payment means a cost sharing requirement under a health insurance policy that provides that the policyholder/insured will bear a specified percentage of the admissible claims amount. A co-payment does not reduce the Sum Insured.”
The perusal of the terms and conditions of the policy placed on record by the Opposite Parties (Ex.OP1 & 2/4) reveals that as per the term Co-Payment, Declared Pre existing disease covered at 50% co-payment and other illnesses covered at 30% co-payment.
11. Sequel to the above discussion, the present complaint is allowed in part and Opposite Parties are directed to pay 70% of the hospitalization expenses with regard to the treatment availed by the complainant and 30% amount is to be borne by the complainant. Opposite Parties are also directed to pay compository costs of Rs.10,000/-(Rupees Ten Thousand only) as compensation and litigation expenses to the complainant. The pending application(s), if any also stands disposed of. The compliance of this order be made by the Opposite Parties within 30 days from the date of receipt of copy of this order, failing which, the Opposite Parties are further burdened with additional cost of Rs.10,000/-(Rupees Ten 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
