BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.96 of 2016
Date of Instt. 29.02.2016
Date of Decision: 21.01.2019
Mahesh Aggarwal S/o Sh. Jai Parkash Aggarwal, C/o M/s Thakur Dass Jai Parkash Dana Mandi, Phagwara, Distt. Kapurthala.
..........Complainant
Versus
1. Star Health and Allied Insurance Company Ltd., Branch Office- EH-198, 2nd Floor, Nirmal Complex, G. T. Road, Jalandhar Through its Branch Manager.
2. Star Health and Allied Insurance Company Ltd., Corporate Grievance Department No.1, New Tank Street, Valluvar Kottam High Road, Nungambakkam, Chennai-600034 Through its GM/GRO.
3. The New India Assurance Company Limited, Branch Office, G. T. Road Near Bus Stand, Phagwara, District Kapurthala through its Branch Manager.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Jyotsna Thatai (Member)
Present: Sh. K. C. Malhotra, Adv Counsel for the Complainant.
Sh. Nitish Arora, Adv Counsel for the OPs No.1 and 2.
Sh. A. K. Arora, Adv Counsel for the OP No.3.
Order
Karnail Singh (President)
1. The instant complaint has been filed by the complainant, wherein alleged that the complainant has been taking Mediclaim Hospitalization Benefit Policy of insurance from OP No.3 since 2004. The complainant was allured and induced by tempting lucrative benefits of Easy Health Individual Standard Apollo Munich Health Insurance Policy and was advised switching over under portability provision from OP No.3 by authorized agent/representative of OPs No.1 and 2 on the explicit professional gentle man assurance that their health insurance policy is most suitable, beneficial and advantageous to the need and requirement for risk coverage of the complainant than mediclaim insurance policy of OP No.3. On the inducement of OP No.1 and 2, the complainant agreed for switching over under the portability provision from OP No.3 without losing any renewal benefit from OPs No.1 and 2. The OPs No.1 and 2 covered the risk to reimburse/indemnify patient treatment expenses for period more than 24 hours, pre-hospitalization, hospitalization for illness/disease/ailment and surgical treatment including cashless facility of the complainant and his wife and his son under the policy number was allotted P/161125/01/2016/00006552 and also incorporated previous policy No.360800341425 0000006 and current policy period with date of its commencement effective from 07.07.2015 to 06.07.2016. However, date of proposal was 18.06.2015.
2. That the complainant felt chest pain on and off on exertion grade II-III relieved by rest and occasionally at rest for 2 months. The complainant on the basis of these complaints was admitted as in-patient on 07.10.2015, and coronary angiography was done on 07.10.2015 and thereafter, the complainant was discharged in stable condition on following Dr. J. C. Mohan and Dr. Arvind Sethi, Cardiology Consultant performed successful surgery and discharged from the hospital on 09.10.2015. Subsequent to discharge from the said hospital, the complainant submitted a claim on prescribed claim form along with the bills and payment receipts for an amount of Rs.2,65,175/- along with other required documents to the OPs and accordingly, the claim was registered under No.CLI/2016/161125/01958 by OPs.
3. That to the utter shock, astonishment and dismay, the complainant received a letter dated 16.12.2015, whereby the mediclaim insurance of the complainant has been repudiated on the pretext at the portability, the complainant has not disclosed that he has diabetes mellitus for the past 4 years and hypertension for 6 years, which is prior to their policy and as per condition No.8 of the policy issued to the complainant, OPs are not liable to make any payment in respect of complainant's claim. OP No.2 has wrongly, perversely unilaterally, arbitrarily and malafidely repudiated mediclaim of the complainant by invoking clause No.8 of the Health Insurance Policy, which is total incorrect and illegal. The OP has overlooked the factum incorporated in Discharge Summary of Fortis Hospital, which explicitly mentioned on the basis of diagnosis:- Diabetes Mellitus (Newly Detected) and as such, non-settlement of the claim amounts to deficiency of service on the part of the OPs 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 reimburse medical treatment expenses of Rs.2,65,175/- along with interest @ 12% per annum from the date of lodgment of claim upto the date of actual payment and further OPs be directed to reinstate/restore health insurance mediclaim policy of the complainant as well as continue risk of Anju Gupta his wife and Harshil Gupta co-insured from its original date of commencement and further OPs be directed to pay compensation for causing harassment to the complainant, to the tune of Rs.50,000/- and litigation expenses of Rs.10,000/-.
4. Notice of the complaint was given to the OPs and accordingly, OPs No.1 and 2 appeared through its counsel and filed joint reply and contested the complaint by taking preliminary objections that the complainant when applied for the issuing of the aforesaid policy, has categorically declared in the proposal form that he does not have any medical history, accordingly, the complainant was insured with the answering OPs and further submitted that 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 and further submitted that contrary to the stand taken by the complainant of non-performance/deficiency in service, the OPs claims this opportunity to apprise the Forum of the fact that complainant had submitted its duly signed proposal form after fully understanding and deliberating upon the terms and conditions of the policy concerned. The terms and conditions of the policy are in strict adherence to norms set by IRDA and were duly communicated to the complainant. The OPs has taken all the necessary precautions and has kept the complainant adequately informed of his policy terms and conditions and further submitted that the complainant has termed their negligent and callous acts as non-performance/deficiency in service by the OPs and further alleged that no cause of action has accrued to the complainant for filing the instant complaint and even the complainant has concealed the material facts from the Forum and therefore, the complainant is not entitled for the relief claimed. On merits, the factum in regard to purchase of insurance policy by the complainant is admitted and it is also admitted that the claim of the complainant has been repudiated, but on the basis of terms and conditions as envisaged in the insurance policy and lastly prayed that the complaint of the complainant is without merits and the same may be dismissed with cost.
5. OP No.3 appeared through its counsel and filed its separate written reply and contested the complaint by taking preliminary objections that there is absolutely no cause of action in favour of the complainant to file the present complaint qua answering OP, that being so the present complaint is liable to be dismissed with special cost and further averred that the answering OP has been unnecessarily made party to the complaint and has nothing to do with the insurance and non-payment of claim of the complainant by OPs No.1 and 2, thus, the present complaint is liable to be dismissed with special and exemplary cost. On merits, the reply of the paras has been given as denied for want of knowledge and lastly prayed that the complaint of the complainant qua answering OP is without merits and the same may be dismissed with cost.
6. In order to prove the case of the complainant, counsel for the complainant tendered into evidence affidavits of the complainant Ex.CA and Ex.CB along with some documents Ex.C-1 to Ex.C-33 and closed the evidence.
7. Similarly, counsel for the OPs No.1 and 2 tendered into evidence affidavit Ex.OP1/A along with some documents Ex.OP-1 to Ex.OP-19 and closed the evidence.
8. Similarly, counsel for the OP No.3 tendered into evidence affidavit Ex.OP3/A and closed the evidence.
9. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
10. Before imparting with the main issue in controversy in this complaint, we have to take an opportunity to consider the liability of OP No.3 and find that the OP No.3 has categorically took a plea in its written reply in the Preliminary Objection No.2 that answering OP has been unnecessarily made party to the complaint in hand because the answering OP has nothing to do with the insurance and non-payment of the claim of the complainant by OPs No.1 and 2. We have considered the plea of OP No.3 and find that the last insurance policy was obtained by the complainant from OPs No.1 and 2, though on the basis of portability, but the claim of the complainant is qua OPs No.1 and 2 not of OP No.3, therefore, the complaint of the complainant qua OP No.3 is without merits, therefore, the same is dismissed.
11. Coming to the main controversy between complainant and OPs No.1 and 2 and first of all, we like to make it clear that the purchase of the insurance policy under portability provision, from OPs No.1 and 2 is not in dispute rather this fact has been admitted by the OPs No.1 and 2 and further the factum in regard to submitting a medi claim by the complainant to the OPs No.1 and 2 and the same was repudiated is also not in dispute rather it is also admitted.
12. Now question before us only to consider whether the rejection of the medi-claim insurance of the complainant is right or wrong, for that purpose, we are required to firstly go through the repudiation letter just to find out on which ground the medi-claim of the complainant was rejected, the repudiation letter is proved on the file by the complainant as Ex.C-1 and the same has been also proved on the file by the OPs No.1 and 2 as Ex.OP-16. In the said repudiation letter dated 16.12.2015, the main plea taken by the OPs No.1 and 2 is that at the time of portability, the complainant has not disclosed the medical history/health detail in the proposal form and the other documents which amounts to mis-representation/non-disclosure of material facts and accordingly by invoking condition No.8 of the policy, the claim of the complainant has been repudiated. It is admitted that after portability, the complainant has filled a fresh proposal form, which is brought on the file by the OP as Ex.OP-17 and admittedly, in the Proposal Form, the complainant did not disclose his any medical history and as such, the claim of the complainant has been repudiated by the OPs No.1 and 2 by invoking condition No.8 of the policy that the complainant has not disclosed his pre-existing disease i.e. Hypertension for the past 6 years and Diabetes Mellitus for the past 4 years and in order to prove that the said diseases were to the complainant for the last 6 and 4 years respectively, the OP has brought on the file Medical Report of the Dayanand Medical College & Hospital dated 26.09.2015, wherein admittedly it is described in the said report that Diabetes Mellitus for the last 4 years and Hypertension for the last 6 years and also mentioned the prescribed medicines. Alongwith this report, a General Physical Examination report is also available, wherein the BP of the complainant has been shown normal i.e. 120/80 mm. Apart from that the OP has also brought on the file some other medical documents, but that relating to the treatment taken by the complainant in regard to his heart problem.
13. So, we have to consider the medical report dated 26.09.2015 Ex.OP-12 to decide the matter in dispute, in this report there is no basis has been shown from where the doctor has pointed that the complainant is suffering from Diabetes Mallitus for the last 4 years and Hypertension for the last 6 years whether any previous medical treatment of the complainant is produced before the doctor of DMC on 26.09.2015, the answer is no document produced, if produced, the same has to be elaborated by the medical officer in his medical report Ex.OP-12 and further the complainant produced on the file Summary Discharge Ex.C-5 dated 16.10.2015 and in this Summary Discharge Report, the doctor has categorically mentioned that type to Diabetes Mallitus, newly detected, but there is no reference of the disease of Hypertension to the complainant rather the complainant was admitted for the treatment of heart in Fortis Hospital, Shalimar Bagh, New Delhi on 07.10.2015 to 09.10.2015, but the medical report produced by the OP Ex.OP-12 is much prior to the admission of the complainant in Fortis Hospital and if the latest report of the doctor does not show that the complainant is suffering from Hypertension and Diabetes Mellitus for the 6 years and 4 years, then how we can made reliance on the previous report dated 26.09.2015 rather the doctor of Fortis Hospital has categorically mentioned that Diabetes is newly detected, so, it means the complainant was not having any problem of Hypertension and Diabetes at the time of portability of insurance policy i.e. 07.07.2015, if so, then question does not arise to conceal any fact in regard to illness, in the Proposal Form Ex.OP-17. So, the plea taken by the OP in the Repudiation Letter is totally wrong and the same is not based on any documentary evidence or any doctor report and therefore, the judgments referred by the learned counsel for the OPs i.e. 2015(1) C.P.R. 807, titled as “Subhash B. Jatani Vs. National Insurance Co. Ltd.”, 2015(2) CLT 422, titled as “Star Health and Allied Insurance Company Ltd and Others Vs. Gurbax Singh and Others”, 2013 (3) C.P.R. 664 SC, titled as “Satwant Kaur Sandhu Vs. New India Assurance Company Ltd.”, 2009(1) C.P.J 117, titled as “Diwan Surender Lal Vs. Oriental Insurance Co. Ltd and Another”, 2012(1) C.P.J 547, titled as “National Insurance Company Ltd. Vs. Ashok Kumar Gupta” and 2010(1) CLT 481, tiled as “Sangeeta Kaushik and others Vs. Life Insurance Corporation of India and Others”.
14. We have gone through the aforesaid judgments and find that in the aforesaid judgments of the Hon'ble National Commission as well as Apex Court, it is categorically held that non-disclosure of previous ailment, which was well within the knowledge of the insured will effect the right of the insured to get the insurance claim, but the facts of the case in hand are some how different because in the instant complaint, it is not established or proved that there was any previous ailment to the complainant, if so, then the aforesaid judgments are not applicable in the case in hand.
15. From the above detailed discussion, it has become clear that the claim of the complainant has been wrongly and illegal repudiated by the OPs No.1 and 2 and therefore, the said repudiation letter is set-aside and further hold that the complainant is entitled for the relief claimed.
16. As an upshot of our above detailed discussion, the complaint of the complainant is partly accepted and OPs No.1 and 2 are directed to reimburse the medical treatment expenses of Rs.2,65,175/- along with interest @ 12% per annum from the date of repudiation of the insurance claim i.e. 16.12.2015, till realization and further OPs No.1 and 2 are directed to compensate the complainant for causing harassment by paying a sum of Rs.25,000/- and also directed to pay litigation expenses of Rs.5000/-. 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.
17. 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 Thatai Karnail Singh
21.01.2019 Member President
