BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.102 of 2018

      Date of Instt. 19.03.2018

      Date of Decision: 05.02.2020

1.       Ram Kumar s/o Parkash Chand Sharma

2.       Shama Rani Sharma w/o Ram Kumar both residents H. No.1, Fatehpura, Jalandhar.

..........Complainants

Versus

1.       Star Health & Allied Insurance Co. Ltd., 1, New Tank Street, Valluvar Kottam High School, Nungambakkam, Chennai-600034 Through its Authorized Officer.

2.       Star Health & Allied Insurance Co. Ltd., EH-198, Nirmal Complex GT Road, Jalandhar through its Branch Manager.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Sh. Karnail Singh           (President)

Smt. Jyotsna                   (Member)

Present:       Sh. R. K. Bhardwaj, Adv. Counsel for the Complainants.

Sh. Nitish Arora, Adv. Counsel for the OPs.

Order

Karnail Singh (President)

1.                The instant complaint has been filed by the complainants, wherein alleged that the OPs No.1 and 2 having been availed a Family Health Insurance Plan and accordingly, the complainant was approached by the agent of the OP for purchase of health insurance policy and complainants were allured and accordingly, the complainant No.1 agreed for purchase of health insurance policy for his family and consequently, a Policy No.P/211215/01/2017/001832 was purchased by the complainant valid from 31.01.2017 to 30.01.2018 after paying the premium. The complainants were hale and hearty and they were not suffering from any pre-existing disease nor they had any pre-existing disease at the time of purchasing of insurance policy.

2.                In the month of November 2017, the complainant No.2 started feeling pain in her right breast, so the complainant got medical test from Sardana Labs Jalandhar in turn informed that the complainant No.2 has developed Carcinoma Breast and asked for immediate treatment from DMC Hospital Ludhiana and accordingly, the complainant No.2 was admitted in DMC Hospital Ludhiana on 28.11.2017 and after operation and other medical treatment, she was discharged there-from on 06.12.2017. At the time of insurance of health claim policy, it was assured to the complainants by the OPs that cashless medical facility will be available at DMC Hospital, Ludhiana, but, the OPs did not provide cashless facility and the complainants had to pay the entire hospital bills from their own pocket, though all the documents and bills have been submitted to the OPs. After discharge from DMC Hospital, the complainant submitted an insurance claim alongwith other required documents, but the OP refused to entertain the claim of the complainant rather repudiated the claim of the complainant without any legal and valid reason on the false and frivolous ground, vide letter dated 08.01.2018 and also malafidely and intentionally cancelled the policy qua complainant No.2 without providing an opportunity of being heard and in a reckless and arbitrary manner and issued a new policy in the name of complainant No.1 and sent a cheque of qua the cancelled the policy which has never been accepted by the complainants. This clearly amounts to deficiency in service and negligence in duties towards the customers. The complainants have suffered a lot of mental tension, agony and harassment and of course, loss of money and accordingly, the instant complaint filed with the prayer that the complaint of the complainant may be accepted and OPs be directed to entertain the claim of the complainant as per the medical bills to the tune of Rs.1,50,575.04 already submitted with the OPs and renew the policy qua both the complainants and withdraw its decision to cancel the policy qua complainant No.2 and further, OPs be directed to pay compensation for causing mental tension and harassment to the complainant to the tune of Rs.50,000/- and be also directed to pay litigation expenses of Rs.10,000/-.

3.                Notice of the complaint was given to the OPs, who appeared through its counsel and filed a joint written reply and contested the complaint by taking preliminary objections that the pre authorization request of the complainant has been rightly rejected by the OPs, vide rejection of Pre authorization Request letter dated 30.11.2017 under condition No.9 of the terms and conditions of the insurance policy. It is further submitted that the complainant admitted in the DMC Hospital, Ludhiana on 28.11.2017 for the treatment of RT Breast CA and submitted Pre authorization Request for cashless authorization. On perusal of the consultation report of the DMC Hospital dated 28.11.2017, it was observed that the complainant No.2 has been detected with Bone TB in year 2008. Further, in reply submitted by the complainants in response to query of the OPs dated 28.11.2017, it was stated that the BMI of the complainant Shama Rani Sharma is 41.5 kg/m2. The said BMI was not within acceptable limits and moreover complainant Shama Rani Sharma had gained considerable weight over the last 7-8 years. The complainants have mentioned wrong weight of complainant No.2 in the proposal form and had not disclosed pre-existing disease which amounts to misinterpretation of facts. Therefore, the claim of the complainant has been rightly repudiated by the OPs and further as per condition No.14 of the policy terms and conditions, the policy of the complainant is also liable to be cancelled by the OPs on the basis of misrepresentation/non disclosure of material facts. Therefore, the said policy of the complainant qua Shama Rani Sharma was cancelled on 13.01.2018 and separate policy in the name of Ram Kumar was issued for the same period. It is further submitted that the company’s liability in respect of all claims admitted during the period of insurance shall not exceed the sum insured per family mentioned in the schedule. It is further averred that no cause of action have arisen in favour of the complainant to file the present complaint and even the complainant has concealed the material facts from the Forum, rather the complainant has misused the legal process and as such, complainant has no locus-standi to file the present complaint, therefore, the same may be dismissed. On merits, it is admitted that medical insurance policy was issued to the complainants and it is also admitted that insurance claim was submitted by the complainant, but the same was rejected on legal and valid grounds. The other averments as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

4.                In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit Ex.CW-1/A along with some documents Ex.C-1 to Ex.C-53 and then closed the evidence.

5.                Similarly, counsel for the OPs tendered into evidence affidavit Ex.OP/A alongwith some documents Ex.OP-1 to Ex.OP-18 and closed the evidence.

6.                We have heard the learned counsel for respective parties and also gone through the case file very minutely.

7.                From the very outset, it reveals that the case of the complainant qua purchase a family medical insurance policy by complainant No.1 alongwith his wife i.e. complainant No.2 and copy of the insurance policy is available on the file Ex.C-4. It is also established on the file that the wife of the complainant remained admitted in hospital in DMC Hospital, Ludhiana from 28.11.2017 to 06.12.2017 and during the admission in the said hospital, the complainant submitted ___for providing cashless medical facility, but the same was not provided and ultimately, the complainant paid all the expenses of the hospital from his own pocket and thereafter, submitted an insurance claim, but the same was rejected by the OPs, vide letter dated 08.11.2018, upto this extent, there is no dispute regarding the facts.

8.                Now, we have to scan the repudiation letter, which is available on the file Ex.C-1 qua cashless facility demanded by the complainant, which has been rejected, vide aforesaid repudiation letter Ex.C-1 dated 04.12.2017 on the ground that during the scrutiny of the claim papers, we observed that you have not declared the details, ‘Morbid Obesity’, relating to Shama Rani Sharma, which were found to be pre-existing at the time of taking the policy for the first time during 30.01.2017 to 30.01.2018, this amounts to non-disclosure of material facts and accordingly, by invoking Clause-9 and Clause-14 of the terms and conditions of insurance policy, the claim was rejected. Further, the complainant filed insurance claim after discharge from the hospital, but the same was again rejected by the OP, vide letter Ex.C-5 dated 08.01.2018 by referring the same wording as enumerated in the letter Ex.C-1.

9.                The allegations of the OP are that the insured complainant No.2 concealed the material facts i.e. her pre-existing disease at the time of inception of the policy and for that purpose, the OP has brought on the file proposal form Ex.OP-16, in the proposal form, admittedly the complainant No.2 has shown her weight 70 kg, whereas the OP alleged that the complainant No.2 concealed the factum regarding ‘Morbid Obesity’. First of all, we like to know what is ‘Morbid Obesity’, “Morbid Obesity is diagnosed by determining Body Mass Index (BMI). BMI is defined by the ratio of an individual’s height to his or her weight. Normal BMI ranges from 20-25. An individual is considered morbidly obese if he or she is 100 pounds over his/her ideal body weight, has a BMI of 40 or more, or 35 or more and experiencing obesity-related health conditions, such as high blood pressure or diabetes.” If, we consider the weight of complainant No.2, which is shown 70kg in the proposal form and her height is 5 feet 3 inches as shown in the proposal form, if so, then the weight of the complainant as per medical theory is required to 50 kg to 55 kg, but the weight disclosed by the complainant No.2 is 70 kg and in any manner it cannot be considered 100 pounds over ideal body weight of complainant No.2, if so, then there is no BMI at the time of purchasing of the policy. There is no direct or indirect evidence came on the file that the weight of the complainant is more than 70 kg as explained in the proposal form at the time of purchase of the policy, if so, then how the OP can allege that the complainant was involved in the disease of BMI. We have to take into consideration any disease at the time of inception of the policy not later on. Further, the OP has brought on the file some documents to prove that the complainant No.2 was having some problem and the same was concealed by her intentionally, for reference Ex.OP-3, Ex.OP-5 and Ex.OP-6 and main reliance of the OPs is upon these documents. First of all, if we go through the document Ex.OP-3, which is information obtained by the OPs from the complainant’s husband, wherein the  husband of the complainant mentioned the disease to the complainant No.2 Bone TB since 2008, similarly in the other two documents  Ex.OP-5 and Ex.OP-6, the same problem i.e. Bone TB is mentioned. Reverting back to the repudiation letter Ex.C-1 dated 04.12.2017, but the said letter does not disclose the disease of Bone TB, rather the said repudiation was due to ‘Morbid Obesity’. So, we think these documents are having no concern with this complaint. Further, the OP has also brought on the file two other documents Ex.OP-13 and Ex.OP-15. We have gone through these documents and find therein, the treating hospital has categorically mentioned BMI=41.5kg/m2 and in the document Ex.OP-15, it is categorically mentioned no record is available. It is not clear from both the documents Ex.OP-13 and Ex.OP-15 whether the said disease i.e. ‘Morbid Obesity’ is since prior to inception of the policy or after that. So, we find that the OP has miserably failed to establish on the file that the complainant No.2 was taking any treatment from any hospital qua the disease of BMI, if so, then the claim of the complainant has been wrongly and illegally rejected by the OPs and policy of the complainants was also illegally cancelled relating to period 31.01.2017 to 30.01.2018. However, the period of the policy has been already elapsed, therefore, we will not consider for restoration of the policy. Ultimately, we reached to conclusion that the complainant is entitled for the relief qua reimbursement of the medical expenses incurred by the complainant from her own pocket, which are established from the bill Ex.C-49 which shows the total amount spent by the complainant is Rs.1,41,279/-.

10.              In the light of above detailed discussion, the complaint of the complainant is partly accepted and OPs are directed to pay the said medical insurance claim of Rs.1,41,279/- to the complainant No.2 with interest @ 12% per annum from the date of repudiation of the claim 04.12.2017, till realization and further, OPs are directed to pay compensation of Rs.30,000/- to the complainant No.2 for causing mental tension and harassment and further, OPs are directed to pay litigation expenses of Rs.7000/- to the complainant No.2. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

11.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated                                                 Jyotsna                            Karnail Singh

05.02.2020                                        Member                          President