BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.256 of 2022
Date of Instt. 01.08.2022
Date of Decision: 16.10.2023
Rakesh Kumar Bhalla aged about 59 years S/o Late Sh. Rajinder Nath Bhalla R/o WP-89, Basti Sheikh, Jalandhar.
..........Complainant
Versus
1. Star Health & Allied Insurance Co. Ltd., No.15, Shri Bala Ji Complex, First Floor, Whites Lane, Royapettah, Chennai- 600014, Through its Chairman/Mg. Director.
2. Star Health & Allied Insurance Co. Ltd., EH-198, Second Floor, Nirmal Complex, G. T. Road, Jalandhar-144001, Through its Senior Divisional Manager/Branch Manager.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Gautam Sehgal, Adv. Counsel for the Complainant.
Sh. A. K. Arora, Adv. Counsel for OPs.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the complainant purchased one Cashless Mediclaim Policy namely Family Health Optima Insurance-2017 bearing Policy note no.P/211215/01/2021/005796 dated 21.12.2020 valid from 21.12.2020 to 20.12.2021 from the OP No.2. The said policy include the coverage of all kinds of risks of medical expenses of medical treatment including major surgeries of the complainant and his wife namely Sujata Bhalla as mentioned in the policy. The yearly premium of policy was Rs.24,142/- and the complainant has paid the said premium to the OPs and the said policy is to cover the risk of medical treatment upto the tune of Rs.5,00,000/- of each insured member plus recharge benefit of Rs.1,50,000/-. At the time of purchase of the policy, the concerned agent assured the complainant that during the validity of the policy, if the complainant will suffer any kind of medical problem including any kind of surgery, the entire treatment will be cashless and the complainant has not to pay even a single penny at the time of hospitalization or otherwise and the OPs is liable to pay all the hospital expenses, medicine expenses as well as other connected expenses to the concerned hospital. Moreover, at the time of purchase of policy the entire formalities as required by the OPs done and only thereafter, after due satisfaction the policy in question is issued to the complainant. During the validity of said policy, in the first week of December, 2021, the complainant first time in his life suffered shortness of breath which was aggravated on exertion and associated with cough with expectoratim. Due to that reason on 13.12.2021, the complainant visited SGL Super Specialty Hospital, Garha Road, Jalandhar. In the said hospital, doctors done the entire tests of the complainant and also done Echo and found that there is a severe problem in the valve of heart of the complainant and recommended for heart surgery. The complainant immediately visited Dayanand Medical College & Hospital Unit-Hero DMC Heart Institute, Ludhiana on 15.12.2021 and the complainant was admitted in the hospital for the purpose of surgery and treatment and doctor recommended for Aortic Valve Replacement (AVR). The complainant submitted the insurance policy to the insurance branch of hospital authorities for cashless treatment and the said officials further take up the matter with the OP No.1 for approval of cashless treatment. But the OPs declined the cashless treatment of the complainant without any rhyme or reason. However, the OPs assured the complainant that after the complete treatment, the complainant should give total detail expenses of medical treatment and OP will reimburse the total expenses incurred by the complainant on his medical treatment. However, under compelling circumstances the complainant has to continue with the medical treatment i.e. heart surgery. At the same time, the complainant was not having sufficient funds and therefore the complainant has to borrow the amount from different persons which is detailed as under:-
Dated Amount Name
17.12.2021 Rs.1,50,000/- Bharti Consultants
26.12.2021 Rs.50,000/- Aditya Industries
The complainant was admitted in the hospital on 15.12.2021 discharged from the hospital on 26.12.2021. The complainant has paid a sum of Rs.6,04,000/- to the DMC Hospital, Ludhiana. Even thereafter the complainant has spent thousands of rupees on post operation treatment. The complainant number of times travels from Jalandhar to Ludhiana for his routine check-up. The receipts of payment made to the hospital authorities in cash and through RTGS. Thereafter, the complainant contacted the agent of the OPs and supplied all the medical bills to the said agent and who got the signatures of the complainant on one claim form which was blank at that time. The complainant asked the said agent to complete the said form and explained all the medical expenses and the said agent assured the complainant that he will do the same at his own level. In spite of completion of all the necessary formalities, OPs repudiated the claim of the complainant vide letter dated 13.04.2022 by which the OPs declined the claim of the complainant on the ground that the complainant is having ‘Pre- existing Disease of heart prior to the inception of first medical (604062) insurance policy’. In fact the complainant was not having any problem of heart throughout his life and never concealed anything from the opposite parties. The complainant is hale and hearty and even do not have any BP or Sugar Problem also. As per medical report, all the arteries were not normal and there was not any blockage in the same. The complainant suffered this problem first time in his life and that requires immediate medical treatment. So there was not any pre-existing disease of heart to the complainant and OPs have wrongly repudiated the claim of the complainant on false and frivolous grounds. The complainant is suffering from mental tension, harassment and agony due to rejection of cashless treatment and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay the claim i.e. premium of the policy Rs.24142/- per year, total Rs.6,04,000/- and Rs.5,00,000/- as compensation for causing mental tension and harassment to the complainant and Rs.55,000/- as litigation expenses.
2. Notice of the complaint was given to the OPs, who filed reply and contested the complaint by taking preliminary objections that the complainant had purchased the Family Health Optima Insurance Plan covering Self- (Mr. Rakesh Kumar Bhalla), His wife-Mrs. Sujata Bhalla for the sum of insured of Rs.5,00,000/- vide policy bearing No.P/211215/01/2021/005796 for a period of 21.12.2020 to 20.12.2021 from the OPs. The said policies was issued with endorsement of pre-existing disease i.e. Diabetes Mellitus and it's complications. 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., attached’. It is further averred that the aforesaid 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 copy was issued to the complainant after he filled the proposal form. As per the claim documents submitted by the complainant, the complainant remained admitted at Dayanand Medical College and Hospital, Civil Lines, Ludhiana from 15.12.2021 to 25.12.2021. He was diagnosed with Aortic Valve Disease, the complainant submitted the cashless request for the hospitalization of the aforesaid disease and it was observed from the hospital records that the said disease was a longstanding ailment but the exact duration of the disease cannot be ascertained based on the records submitted by the insured and hence it required further evaluation to decide the admissibility of the claim. Thus, the cashless request was rejected vide letter dated 16.12.2021. Subsequently, the complainant submitted the claim form along with medical records for 2 the reimbursement of the medical expenses incurred by him to the tune of Rs.605079/- with the answering OPs. The medical team of the answering OPs observed from the documents submitted by the insured for the reimbursement of the medical expenses that the investigation reports shows the said disease is a longstanding one. Moreso, there were longstanding valvular changes, which can be observed from the medical record of the complainant. Thus as per opinion of the medical experts of the answering OPs, the ailment in question was a longstanding disease. Thus, as per the Medical experts of the OPs, complainant had Heart Disease prior to the inception of the first medical insurance policy, thus it was a pre-existing disease. As per Exclusion-Pre-existing disease-Code Excl-01 of the policy issued, the Company is liable to make payment for any pre-existing disease only after the expiry of 48 months from 04.04.2022.
‘As per Exclusion No.1 of the policy. The Company shall not be liable to make any payments under this policy in respect of any expenses what so ever incurred by the insured person in connection with or in respect of.
1. Pre-Existing Diseases-Code Excl 01:
A. Expenses related to the treatment of a pre-existing Disease (PED) and its direct complications shall be excluded until the expiry of 48 months of continuous coverage after the date of inception of the first policy with insurer"
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 4 years for the said undisclosed disease or condition from the date the non-disclosed disease was found out and it is now incorporated in the policy by passing endorsement that Treatment of diseases related to Cardio Vascular System as pre-existing disease/condition. Therefore the claim of the complainant was rightly rejected by the answering OPs. It is further averred that no cause of action has arisen in favor of the Complainant to file the present case. It is submitted that the Respondent/OP has acted strictly on the basis of the terms and conditions contained in the policy. The complaint has been filed by the complainant with the mala-fide intention, and further to grab the public money. Hence, the present complaint is liable to be dismissed. It is stated that the complaint is bound by the terms and conditions as applicable and which were expressly made known to the complainant at the time of his taking the policy in question. The OPs had at the time of issuing the policy explained to the complainant the exclusion clauses and the payment plan. Therefore, the complaint is liable to be dismissed with exemplary costs. It is further averred that the complainant has approached this Forum with unclean hands by not disclosing and misrepresenting material facts. It is pertinent to mention here that the proposal form is the basis of the contract of insurance. Therefore, it is of utmost importance that the insured declares his health condition truthfully in the proposal form and when he fails to do the same, it amounts to breach of trust. The present complaint is false, frivolous, misconceived and vexatious in nature and has been filed with the sole intention of harassing the OPs. The complainant has knowingly and intentionally concealed the true and material facts from this Commission. The present complaint is a gross abuse of the process of law and has been filed only with the motive to harass the OPs and is liable to be dismissed with costs. It is further averred that the complainant has no locus-standi and cause of action to file the present complaint. The policy issued to the complainant under which the dispute has been raised in governed by liability as per various clauses. Without any prejudice to whatever has been stated in this written statement, even admitting without conceding that the company is liable to pay the claim in terms of the contract of insurance issued to the claimant-complainant. On merits, the factum with regard to taking cashless mediclaim policy valid from 21.12.2020 to 20.12.2021 by the complainant is admitted and it is also admitted that the complainant was recommended heart surgery by the doctors of SGL Super Speciality Hospital, Jalandhar and it is also admitted that the complainant submitted the cashless request for hospitalization of the disease, but the same was declined. The other allegations 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.
3. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.
4. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
5. We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for both the parties very minutely.
6. It has been admitted by the OP that the complainant had purchased cashless mediclaim policy valid from 21.12.2020 to 20.12.2021. The copy of the policy has been proved as Ex.C-1. It is also not disputed that the complainant was recommended heart surgery by the doctors of SGL Super Speciality Hospital, Jalandhar. The medical prescription report and test have been proved by the complainant as Ex.C-2. When the doctors recommended for heart surgery, the complainant got himself admitted in DMC Heart Institute for the purpose of surgery and treatment which the doctor recommended for AVR i.e. Aortic Valve Replacement. It is also not disputed that the complainant submitted the cashless request for hospitalization of the disease, but the same was declined by the OP on the ground that as per hospital record, the disease was a long standing ailment and it requires further investigation. The complainant submitted the claim for reimbursement alongwith documents i.e. medical record of the complainant which was also repudiated by the OP.
7. The OP has averred that as per Medical Reports i.e. Ex.OP-11, the patient i.e. the complainant has a history of Asthma and as per investigation report, carried by the appointed investigator Ex.OP16, this fact was being concealed by the family members of the complainant. The OP has repudiated the claim of the complainant on the ground that the complainant was having pre-existing disease and as per exclusion clause-01 of the policy issued, the company is liable to make payment for any pre-existing disease only after the expiry of 48 months from 04.04.2022.
8. Now the point to be considered is as to whether the complainant was suffering from any disease which was pre-existing and was not disclosed to the OP at the time of inception of the policy. The discharge summary Ex.C-3 nowhere shows that the complainant was suffering from heart disease or Asthma as alleged by the OP. As per the history mentioned in Ex.C-3, ‘he was having complaints shortness of breath since 10-12 days which is aggravated on exertion and associated with cough with expectoration. History of decreased appetite. No complaints of TIA’s and syncope. Patient was taken up for surgery after proper evaluation’. The OP has relied upon the opinion of the legal experts Ex.OP-11 and Ex.OP-16. Perusal of the Ex.OP-11 shows that the first page of this document is not legible and on the remaining pages, nothing has been mentioned regarding the previous history of Asthma. As per Ex.OP-14, the complaints, the complainant was having been mentioned as cough and breathlessness on exertion in the initial valuation, nothing has been mentioned that he was suffering or having any previous history of Asthma. Even, if he is assumed to be having Asthma, it has no nexus with AVR. Ex.OP-16 shows that the investigator interacted with the patient and his family members and the family members have categorically stated that the patient was suffering from cough and breathing problem for nearly 30 days prior to admission and on 12th of December, 2021 he felt some severe breathing problem. He was diagnosed with AVR. Self declaration of the complainant is on the file, which has been proved as Ex.OP-17 and he has categorically mentioned in this self declaration that he has never been hospitalized prior to his admission. The OP has repudiated the claim only on the assumptions. The OPs have not got the complainant medically examined from any expert doctor nor have got the opinion of the doctor from the SGL Super Specialty Hospital, Jalandhar or from DMC Ludhiana to conclude that the complainant was having heart problem prior to the time he suffered heart problem and had to go for heart surgery. Merely, on assumption and without any medical opinion, the OP has come to the conclusion that the family members of the OP have concealed the pre-existing disease of Asthma of the complainant. The OP has failed to prove the pre-existing disease which the complainant was allegedly having and the nexus between the pre-existing disease with the AVR due to which the complainant had to undergo for heart surgery. Even in the discharge summary, there is no reference of pre-existing disease rather it has specifically been mentioned that there was no any other complaint with the complainant prior to this. There is no certificate of the doctor to show that the complainant was suffering from Asthma which has caused heart problem and has led to the heart surgery. It has been held by the Hon'ble National Commission, in 2012( 66) RCR Civil 206, case titled as ‘Life Insurance Corp. of India Vs. Priya Sharma & Others’ as well as same titled case reported in 2011 (52) RCR Civil 83, case titled as ‘Life Insurance Corp. of India Vs. Priya Sharma & Ors., it was held by Hon’ble State Commission, Punjab that ‘Life Insurance Repudiation of Claim- Ground of suppression of pre-existing disease which was not disclosed, the deceased was suffering-onus to prove that the insurer was suffering from pre-existing disease on the petitioner i.e. insurance company. The petitioner has admittedly not examined any doctor to prove this fact that insured was suffering from any pre-existing disease at the time of taking the policy-repudiation unjustified’. It has been held by the Hon'ble National Commission, in 2009 (4) CLT 438, case titled as ‘New India Assurance Co. Vs. Arun Krishan Puri’ that ‘Mediclaim Policy Insured undergone operation for Coronary Heart By Pass Surgery-Repudiation of claim on the ground of pre-existing disease suppressed by insured-insurer is under Onus to prove pre-existing disease at the time of taking the policy-Failure on the part of the insurer to produce any evidence in support of concealment of pre-existing disease-complaint allowed by Forum, appeal-against-dismissed- revision petition against-in the verification of discharge summary by doctor who treated/issued discharge summary-no reliance can be placed on it. Impugned order held maintainable. Revision Petition-dismissed.
9. The law referred by the counsel for the OP, of Hon'ble National Commission, in Revision Petition No.429 of 2017, decided on 17.04.2017, titled as ‘Aman Kapoor Vs. National Insurance Co. Ltd. & Ors.’, wherein it is held that ‘Consumer Protection Act, 1986 Section 2(1)(g) Consumer complaint Insurance claim Petitioner availing medical insurance policy from respondents since 2007 He did include the new born in the policy w.e.f. 20.02.2014 As such, P, the son was covered under the impugned policy in force What is contentious is whether the treatment and hospitalization that his son underwent at Narayana Institute of Cardiac Sciences, Bangalore is covered under the insurance policy or not? Dist. Forum allowed reimbursement of total amount spent to the tune of Rs. 1,81,160/- along with 9% interest and some litigation cost-State Commission in appeal dismissed the complaint Hence, present revision Held, it is not possible to meaningfully distinguish between congenital heart defect and congenital heart disease- The moment it is claimed that 'P was born with a defect which later on became a disease, non-disclosure clause of pre-existing conditions would be attracted The burden of proof would then have to be on the petitioner to show that he was not aware of the congenital heart defect As no such claim has been advanced in the complaint nor any relevant evidence put forth in this regard such as a discharge certificate after birth, the claim would qualify for repudiation Petition accordingly dismissed’.
But the same is not applicable to the facts of the present case as in the present case, the OP has nowhere alleged that the complainant was suffering from heart disease and has not specified for how long he suffered this disease nor any document has been proved on the record by the OP nor the complainant was born with any defect. So, there is clear cut deficiency in service to the complainant on the part of OP and thus, the complainant is entitled for the relief.
10. In view of the above detailed discussion, the complaint of the complainant is partly allowed. The OPs are jointly and severally directed to pay the amount of the claim to the complainant as per bills. Further, OPs are directed to pay a compensation of Rs.15,000/- for causing mental agony and harassment to the complainant and litigation expenses of Rs.5000/-. The entire compliance be made within 45 days 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 Jaswant Singh Dhillon Jyotsna Dr. Harveen Bhardwaj
16.10.2023 Member Member President
