DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH =============== [Complaint Case No: 539 of 2011] Date of Institution : 23.11.2011 Date of Decision : 14.06.2012 ----------------------------------------- Tirath Ram Sharma son of Late Shri Dina Nath Sharma, resident of House No. 605, Sector 8-B, Chandigarh. ---Complainant. VERSUS[1] Star Health and Allied Insurance Company Limited, through its Zonal Manager, SCO No. 257, 2nd Floor, Sector 44-C, Chandigarh. [2] Star Health and Allied Insurance Co. Limited, through its Branch Manager, SCO No. 257, 2nd Floor, Sector 44-C, Chandigarh. [3] Star Health and Allied Insurance Co. Limited, through its Authorized Officer, SCO No. 257, 2nd Floor, Sector 44-C, Chandigarh. ---Opposite Parties.BEFORE: SHRI LAKSHMAN SHARMA PRESIDENT MRS. MADHU MUTNEJA MEMBER SHRI JASWINDER SINGH SIDHU MEMBER Argued By: Sh. Ashish Bansal, Advocate for the Complainant. Sh. Gaurav Bhardwaj, Advocate for the Opposite Parties. PER JASWINDER SINGH SIDHU, MEMBER. 1. Complainant has filed the present complaint, against the Opposite Parties, on the grounds, that the Complainant is a Sr. Citizen and is a subscriber to “Sr. Citizen’s Red Carpet Insurance Policy” of the Opposite Party since 2008. The agent of the Opposite Parties approached the Complainant in the year 2008, and explained him the benefits of the medi claim insurance policy. The agent while inviting the Complainant to subscribe for the same had told that the Opposite Parties shall pay the expenses incurred by the Complainant on his treatment of any disease or on treatment of any bodily injury through accident during the insured period of the said policy. The Complainant finding this policy beneficial to him, subscribed for the same for the period 2008-2009 and got it renewed for the subsequent periods for 2009-2010 and thereafter, for 2010-2011. The Complainant claims that at the inception of the policy no terms and condition were explained to him and his signatures were obtained on the blank proposal form by giving assurance that this is a mere formality, the Complainant being an illiterate person, signed the form. The Complainant claims that no medical certificate was obtained, nor any medical examination was conducted by the Opposite Parties on the Complainant. The medi-claim policy bearing no. P/16113/01/2011/ 002423 (Annexure P-3) valid from 22.12.2010 to midnight of 21.12.2011, along with other policies of the year 2008-2009 and 2009-2010 are annexed at Annexure C-2 and C-3 respectively. The Complainant, on 9.3.2011, developed cardiac problem, and was admitted to PGI, Chandigarh, during the effective period of the policy (Annexure P-3). The Complainant was hospitalized, and remained admitted from 9.3.2011 to 19.3.2011 at PGI, Chandigarh and was discharged after treatment. The copy of admit card as well as discharge card is at Annexure C-5. The Complainant received a letter from the Opposite Parties dated 10.3.2011 along with claim form (Annexure C-4), which was duly submitted along with original bills, treatment certificates, reports, as well as discharge summary to the Opposite Parties vide claim intimation no. CLI/2011/161113/0103952. The Complainant was shocked on the receipt of letter dated 28.6.2011 through which the Opposite Parties refused to consider the claim of the Complainant, copy of which is annexed with the complaint at Annexure C-6. While intimating its inability to consider the claim of the Complainant the Opposite Parties mentioned that the Complainant had earlier suffered an old inferior wall myocardial infraction in 2005 which was prior to inception of the policy and not disclosed at the time of proposing for insurance policy, thus, the case falls under non-disclosure of material facts. As per Condition No. 7 of the policy, the company was not liable to make any payment. The claim claims that the act of the Opposite Parties in completely against the principles of natural justice, as he had fully recovered from the heart condition for which he was treated in the year 2005, and the present policy through which he had lodged his claim, was subscribed as many as after three years of the earlier heart condition of the year 2005. The Complainant after having received the letter dated 28.6.2011 (Annexure C-6) repeatedly visited the office of the Opposite Parties, but was handed over a false promise that the claim of the Complainant would be settled in a month’s time, but on not hearing anything from the side of the Opposite Parties, aggrieved by the act and conduct of the Opposite Parties, the Complainant has filed the instant complaint, has sought the following relief:- [a] To pay medical expenses amounting to Rs.80,000/- along with interest @18% p.a. from the date of lodging of claim, till the date of realization. [b] To compensate the Complainant to the tune of Rs.1.00 lac under the head of physical harassment and mental torture as the Complainant had been running pillar to post to get his claim and to the tune of Rs.1,00,000/- as litigation expenses. [c] To summon the entire record pertaining to the present case. [d] Any other relief as this Hon’ble Forum may deem fit. The complaint of the complainant is duly verified and supported by his detailed affidavit. 2. The Opposite Parties have contested the claim of the complainant by filing their joint reply/ version. While taking preliminary objections to the present complaint, the Opposite Parties claims that the present complaint is not maintainable, as the Complainant has not come this Hon’ble Forum with clean hands, and no cause of action has approved to the Complainant, to file the present complaint against the Opposite Parties. It is also mentioned that the contract of insurance is based on the principle of “uberrima fide” i.e. utmost good faith. The contract of insurance is based on the information provided by one party to the contract i.e. the Proposer/ insured. Based on this information, the insurance company accepts or rejects the proposal. In the present case, the Complainant suppressed the material information with regard to his health and had not disclosed the disease suffered by him prior to the taking of the policy. The Opposite Parties claim to have repudiated the claim of the Complainant as per policy terms & conditions. The Opposite Parties have also reproduced Condition No. 7 of the Policy, as well as the relevant column of the proposal form to fortify their claim. Even the document of medical officer (R-4), who visited the PGI, Chandigarh, where the Complainant was treated upon, is annexed in support of their defence. On merits, the Opposite Parties have forwarded the same reasoning is repeated as mentioned in the preliminary objections. In reply to para 8, the claim of the Complainant is disputed, and holding the repudiation of his claim to be just and fair, the Opposite Parties claim that the Complainant had suppressed the material fact about his health from the insurance company by not disclosing the treatment taken by the Complainant while he suffered a heart condition of old inferior wall myocardial infraction in the year 2005. In reply to para 9 the Opposite Parties vehemently deny the claim of the Complainant and claim that the policy was issued based upon the information provided by the insured and all the terms and conditions were explained to him. In reply to para 11 the answering Opposite Parties claim that there was misrepresentation and non-disclosure on the part of the Complainant and further state the Condition-7, as per which it is mentioned that “the company shall not be liable to make any payment under the policy in respect of any claim if such claim is in any manner fraudulent or supported by any fraudulent means or device, misrepresentation whether by the insured person or by any other persona acting on his behalf”. Thus, denying all the averments of the complaint, the Opposite Parties pray for the dismissal of the present complaint, qua it. The reply/ version of the Opposite Parties is not verified, but supported by an affidavit of one Sh. C.P. Udayachandaran, Assistant Vice President, Star Health & Allied Insurance Company Ltd. 3. Parties led their respective evidences. 4. Having gone through the entire complaint, version of the Opposite Parties, the evidence of the parties and with the able assistance of the learned counsels for the parties, we have come to the following conclusions. 5. The Complainant having subscribed for the medi-claim policy with the name “Star Sr. Citizen’s Red Carpet Insurance Policy” of the Opposite Party since 2008, and having paid the premiums regularly without even a delay, had lodged the claim, for the reimbursement of the expenses, incurred by him, to the tune of Rs.80,000/-, for the treatment of his ailment, which he had undertaken with the PGI, Chandigarh. 6. The Complainant was aggrieved of the denial of his rightful claim as submitted by him. The Opposite Parties have taken the defence on two grounds firstly, that the claim of the Complainant is denied under condition 7 of the policy, which reads as under:- “The company shall not be liable to make any payment under the policy in respect of any claim if such claim is in any manner fraudulent or supported by any fraudulent means or device, misrepresentation whether by the insured person or by any other persona acting on his behalf”. 7. However, the Opposite Parties did not bring on record anything concrete to prove the allegations of fraudulent claim or misrepresentation by the insured or any other person acting on his behalf. Thus, in the absence of any concrete evidence, the stand taken by the Opposite Parties with regard to Condition-7 is completely hollow, and cannot be accepted. 8. Secondly, while citing the document Annexure R-4, which is titled as “MO’s Hospital Visit Report” (Pg. 19), is a report submitted by the Medical Officer of the Opposite Parties, after he had paid a visit to the PGI, Chandigarh, where the Complainant was treated upon, and while filling up this report, under the heading Clinical Assessment Details, the Medical Officer of the Opposite Parties had mentioned under the head “Past Medical History” as a case of “Old Inferior Wall Myocardial Infraction 2005”. We have gone through this document (R-4) and find no signatures appended anywhere, of the Medical Officer of the Opposite Parties, who is the author of this document. The Opposite Parties have gravely erred in entertaining this document, as it neither carries any signatures, nor the Opposite Parties have tendered the affidavit of this Medical Officer, who had prepared this report. In these circumstances, this piece of paper cannot be considered as valid evidence, on the basis of which the claim of the Complainant could be repudiated. 9. It is also important to mention here that the Opposite Parties in their reply on merits in para 8 have reproduced the relevant column of the proposal form which required an answer from the Complainant, about his medical history, and the sentence is reproduced as under: Medical History (please answer yes or no). A mere dash is not sufficient. Has the proposed person/s suffered from any disease/ illness irrespective of whether hospitalized or not or sustained any accidents. If yes given reasons. | No | a] in the past 12 months | Yes/No | b] before 12 months | Yes/No |
10. The aforesaid column has been answered in English, while mentioning ‘NO’ and thereafter, the two subsequent clauses (a) and (b), which required answer in yes/no, have not been shown to have been answered, meaning thereby that the complainant was either not asked specific questions with regard to these two columns or if the complainant had answered them right, the same was not mentioned in both these columns. As this issue is related with the complainant and the Agent who had helped him in filling up the proposal form, the reply/version of the OPs qua this issue should have come from the agent of the OPs namely one Sh. Vishank Saini having Intermediary Code No.TR0000004083, whose name is found to be mentioned on the policy schedule (Annexure A-3). However, the OPs in Para No.9 of their reply have categorically stated that “the policy was issued based upon the information provided by the insured and all the terms and conditions were explained to him.” We feel that the reply towards this issue as tendered by the OPs is devoid of force and the complainant who has appended his signatures in Hindi and we find the entire proposal form, which is the part of the stationary of the OPs, is in English and even the entries made by the agent of the OPs and for this purpose, the agent of the complainant, are in English, therefore, the entire episode with regard to this column could only be addressed by the reply of the agent of the OPs namely Sh. Vishank Saini alone and nobody else. 11. The denial of the claim of the complainant on the aspect of non disclosure of material information carries no weight as the complainant had made no specific answer to Columns (a) and (b) of Clauses pertaining to Medical History (Annexure R-3 at Page 17). 12. Having gone through the entire terms and conditions of the Policy (Annexure R-2), we have also come across the Column that deals with the definition of “Pre-existing Disease”, which is reproduced as under: - “Pre Existing Disease means any conditions, ailment or injury or related condition(s) for which the insured person had signs or symptoms and/or were diagnosed and/or received medical advice/treatment within 48 months prior to the inception of the insured persons first policy with the Company.” 13. At the same time, the exclusion clause, which denies any claim to an insured in case of a pre-existing disease as claimed by the Opposite Parties and supported by the document of the Medical Officer, is explained as below: - “The Company shall not be liable to make any payments under this policy in respect or any expenses what so ever incurred by the insured person in connection with or in respect of : 1. All Pre-existing disease as defined in the policy existing and suffered by the insured person for which treatment or advise was recommended or received during the immediately preceding 12 months from the date of proposal.” 14. The OPs have alleged that the complainant suffered an inferior wall myocardial infraction in the year 2005 and the policy in question was subscribed for by the complainant on 22.12.2008 i.e. the treatment the complainant had taken from the PGI in the year 2005 as claimed by the OPs was very much within the 48 months period, which would qualify the heart ailment of the complainant as pre-existing disease as mentioned in the definition above. 15. At the same time, the exclusion clause quoted above would have denied the complainant’s claim in question, had he been treated for the same ailment within 12 months prior to the filling up of the proposal form of the policy in question. As the complainant had subscribed for the policy in the year 2008 on 22.12.2008, the OPs have failed to bring on record whether the complainant had either taken advice or treatment for his heart condition during the period of 12 months immediately preceding the subscription of the policy. Even if for the sake of argument, we believe the document tendered by the OPs (Annexure R-4), the Medical Officer who had visited the PGI to investigate the matter too had found that the complainant took treatment for his heart ailment in the year 2005 and never thereafter. Even the discharge summary (Annexure C-5), which was submitted by the complainant with the OPs while lodging his claim, in the Column “Brief Summary” also mentions “HTN, Smoker, old IWMI 2005”, meaning thereby that the complainant is not disqualified to lodge his claim for the treatment that he has undergone during the period 09.03.2011 to 19.03.2011. In these circumstances, the denial of claim of the complainant is a deficiency in service on the part of OPs. 16. Taking into consideration the aspects discussed above, we are of the considered view that the claim of the complainant lodged with the OPs is a genuine one and it qualifies to be entertained. Hence, in the light of above observations, we find a definite deficiency in service on the part of the OPs. The present complaint of the Complainant succeeds against the OPs and the same is allowed. The OPs are directed, jointly & severally:- [a] To pay medical expenses amounting to Rs.80,000/- to the complainant. [b] To pay a compensation of Rs.25,000/- for mental harassment and agony to the Complainant; [c] To pay Rs.10,000/- as litigation costs. 17. The above said order shall be complied within 45 days of its receipt by Opposite Parties; thereafter, Opposite Parties No.1 & 3 shall be liable for an interest @18% per annum on the amount of Rs.80,000/- along with awarded amount of compensation Rs 25,000/- from the date of filing of the present complaint i.e.23.11.2011, till it is paid besides the payment of Rs.10,000/- as costs of litigation. 18. Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room. Announced 14th June, 2012Sd/- (LAKSHMAN SHARMA) PRESIDENT Sd/- (MADHU MUTNEJA) MEMBER Sd/- (JASWINDER SINGH SIDHU) MEMBER
| | MRS. MADHU MUTNEJA, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | MR. JASWINDER SINGH SIDHU, MEMBER | | 
