Haryana

Karnal

CC/71/2023

Nisha Gupta - Complainant(s)

Versus

Star Health And Allied Insurance Company Limited - Opp.Party(s)

Jitender Sharma

19 Sep 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

                                                        Complaint No. 71 of 2023

                                                        Date of instt.27.01.2023

                                                        Date of Decision:19.09.2023

 

Nisha Gupta wife of Shri Kunal Gupta wife of Shri Kunal Gupta, resident of flat no.504, T-1A, JBB Society, Sector-35, Karnal.

 

                                                                  …….Complainant.

                                              Versus

 

1. Star Health and Allied Insurance Company Ltd. Registered & Corporate office at-1, New Tank Street, Valluvar Kottam High Road,  Nungambakkam, Chennai-600034, through its Manager/ authorized person.

 

2. Star Health and Allied Insurance Company Ltd. Branch office at Second Floor SCF 137, Sector-13, Urban Estate, Karnal, through its Manager/authorized person.

 

                                                                …..Opposite Parties.

       

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President.

              Sh. Vineet Kaushik……Member 

              Dr. Rekha Chaudhary……Member

          

 Argued by: Shri Jitender Sharma, counsel for the complainant.

                    Shri Sukhbir Singh, counsel for the OPs (defence

                    struck off, vide order dated 18.05.2023)

 

                    (Jaswant Singh President)

ORDER:                     

          

                 The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that husband of complainant had purchased a medical insurance policy from another health insurance company i.e. New India Assurance Company since 2014 till the policy was transfer to Star Health. The agent of the OPs approached the husband of complainant and convinced him to get switched his mediclaim policy from New India Assurance Company in continuation of policy and shift into Star Health and Allied Insurance Company Limited. On the allured of the agent of the OPs,  on 06.04.2021, complainant purchased a Family Health Optima Insurance Plan from the OPs, vide policy no.P/211114/01/2022/008194, valid from 09.10.2021 to 08.20.2021, by paying premium of Rs.17630/-. The same was got renewed in the year 2022 on dated 09.10.2022, vide policy no.P/211114/01/2023/008194.

2.             It is further averred that complainant filed a claim with the OPs and the same has been rejected after scrutinizing the request for approval for cashless treatment for the diagnosed disease of AUB which was primarily diagnosed on 08.11.2022 by Dr. Urvashi Sehgal (Consultant OBS/Gynae/IVF) without any genuine reason. On 08.11.2022, complainant visited to Phoenix Hospitals, New Delhi as she was having heavy bleeding, pass clots and severe pain which was earlier felled during his periods only and complainant was attended by Dr. Urvashi Sehgal. After checkup, doctor advised some medicines to complainant. However, it was suggested/advised by Doctor that a Total Laparoscopic hysterectomy with left salpingectomy has to done for better treatment. Vide letter dated 09.11.2022, complainant made a request to OPs for approval of cashless treatment for the abovesaid disease first time. It is pertinent to mention here that the mentioning of suffering from this disease since 4-5 years does not mean that complainant is aware of this fact that she is suffering from this disease since 4-5 years although complainant was feeling heavy bleeding for a long time during her periods but at no point of time since 4-5 years this was diagnosed as a disease by any doctor and moreover no treatment was ever taken by complainant for the abovesaid disease ever. It is only first time when complainant feel the bleeding and clots other than her periods, therefore, the disease was first diagnosed by Doctor Urvashi Sehgal on 08.11.2022 and complainant was having no knowledge of the said disease before 08.11.2022. So, no question arises for disclosure of any pre-existing disease. The OPs vide letter dated 11.11.2022 and 14.11.2022 had flatly refused to entertain the abovesaid request of complainant and repudiated the claim stating the reason of pre-existing disease.

3.             It is further averred that on 16.11.2022, as per advice of Doctor, complainant got admitted herself to Fortis La Femme Hospital, New Delhi and remained admitted till date 19.11.2022. During the course of diagnose, various tests were conducted and medicines/injections/infusions and total Laparoscopic hysterectomy with left salpingectomy surgery was done to complainant. Complainant spent Rs.2,86,730/- on her treatment alongwith expenditure of attendant to the tune of Rs.20,000/- and transport charges to the tune of Rs.10,000/-. On 19.11.2022, doctor discharged the complainant and called for follow up treatment. After discharge from the hospital, complainant lodged a claim with the OPs for reimbursement of the said amount and submitted all the required documents but OPs did not pay the claim and rejected the same on the ground that the insured patient has pre-existing condition of AUB prior to port of policy. Thereafter, complainant visited the office of OPs several times and requested to settle the claim but OPs did not pay any heed to the request of complainant. In this way there is deficiency in service on the part of the OPs. Hence this complaint.

4.             It is pertinent to mention here that notice were issued to OPs on 05.04.2023 and OPs appeared on 18.04.2023, but did not file its written version on availing of three opportunities including last two opportunities. Hence, the defence of the OPs was struck off, vide order dated 18.05.2023 of the Commission.

5.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of policy renewal letter dated 07.10.2022 Ex.C1, copy of insurance policy dated 07.10.2022 Ex.C2, copy of premium receipt dated 07.10.2022 Ex.C3, copy of customer identity card Ex.C4, copy of prescription slip dated 08.10.2022 Ex.C5, copy of rejection of authorization for cashless treatment dated 11.11.2022 Ex.C6, copy of rejection letter dated 11.11.2022 Ex.C7, copy of prescription slip dated 12.11.2022 Ex.C8, copy of letter dated 14.11.2022 to insurance company Ex.C9, copy of rejection of authorization for cashless treatment dated 14.11.2022 Ex.C10, copy of rejection letter dated 14.11.2022 Ex.C11, copy of email dated 19.11.2022 Ex.C12, copy of discharge summary Ex.C13, copy of detailed bill dated 19.11.2022 Ex.C14, copy of bill dated 29.10.2022 Ex.C15, copy of receipt dated 31.10.2022 Ex.C16, copies of payment receipts dated 31.10.2022, 31.10.2022, 01.11.2022, 01.11.2022, 09.11.2022 and 26.11.2022 Ex.C17 to Ex.C22, copy of bill dated 26.11.2022 Ex.C23, copy of legal notice dated 14.11.2022 Ex.C24, copy of postal receipt dated 22.12.2022 Ex.C25 and closed the evidence on 13.07.2023 by suffering separate statement.

6.             Learned counsel for the OP has submitted written arguments.

7.             We have heard the learned counsel of the parties and perused the case file carefully and have also gone through the evidence led by the parties.

8.             Learned counsel for complainant, while reiterating the contents of complaint, has vehemently argued that initially, since 2014, complainant had purchased a Health Insurance policy from New India Assurance Company, which continued upto 2021  and thereafter complainant ported the said policy to the OPs. On 08.11.2022, complainant has taken treatment from Phoenix Hospital, New Delhi for having heavy bleeding, pass clots and severe pain and thereafter on 16.11.2022, complainant got admitted in La Femme, Hospital, New Delhi and has also taken treatment for the said disease and discharged on 19.11.2022. The policy was a cashless policy, but OPs denied the cashless treatment to the complainant. Complainant spent total amount of Rs.2,86,730/- on her treatment. Complainant lodged the claim with the OPs for reimbursement of the said amount but OPs did not pay the same and repudiated the claim of the complainant on false and frivolous ground of pre existing disease and prayed for allowing the complaint.

9.             Per contra, learned counsel for OPs argued that the complainant lodged a claim of Rs.2,86,730/-with the OPs on account of reimbursement of medical expenses for her treatment and after examination and verification of medical record, it was found that the complainant has AUB for the past 5 years and the insured has not disclosed the medical history in the proposal form and in portability forms at the time of porting of the policy to the OPs. So, the claim of the complainant is not admissible and prayed for dismissal of the complaint.

10.           We have duly considered the rival contention of the parties.

11.           In the year 2014 insured had availed the health insurance policy from New India Assurance Company, which was ported with the OPs company. This fact has not been denied by the OPs.  During the subsistence of the insurance policy complainant had taken the treatment and admitted in Phoenix Hospital, New Delhi and La Femme, Hospital, New Delhi.          

12.           The claim of the complainant has been denied by the OPs on the ground that complainant is having history of AUB for the past five years, which was not disclosed by her in the proposal form at the time of portal of the policy.

13.           The meaning of portability defined by the IRDA vide its circular Reference No. IRDA/HLT/MISC/CIR/209/09/2011) is as under:-

Portability:  Portability means the right accorded to an individual health insurance policyholder (including family cover) to transfer the credit gained by the insured for pre-existing conditions and time bound exclusions if the policyholder chooses to switch from one insurer to another insurer or from one plan to another plan of the same insurer, provided the previous policy has been maintained without any break.              

14.          There is no break in the medical insurance policy issued by the New India Assurance Company Limited, prior to portal of the same in the OPs company. The OPs have ported the insurance policy and issued the fresh policy Ex.C2 dated 06.10.2021. When the policy was purchased in the year 2014 and got ported in the year 2021 without any break then it cannot be said that complainant was having any pre-existing disease.

 15.          In this regard, we further fortified with the observation of Hon’ble National Commission in case titled as Mrs. Rubi Chandra Dutta Versus M/s United India Insurance Co. Ltd., (2011) 3 scale 654, decided on 16.12.2016 wherein it is held that “It was 2 years before switching over the policy with the OPs. Therefore, once portability scheme was accepted by OPs then they had no right to decline the claim upto the amount of sum assured of previous insurance policy in case it was within the terms and conditions of the policy. The policy with New India Assurance Company was continuing since 2001 and counsel for OPS was unable to pin point how the claim to the extent of Rs.1,30,000/- allowed by the District Forum was not payable under the policy. Clause 1 of the policy speaks that under portability right accorded to an individual health insurance policy holder to transfer the credit gained by the insured for pre-existing conditions and time bound exclusions if the policy holder chooses to switch from the one insurer to another insurer or from one plan to another plan. Under that scheme whatever has been gained by the insured under the policy insured by the previous insured will be gained by the insured under the portability scheme. Therefore, we do not agree with the plea raised by the OPs. Even otherwise, the policy was continuing one since 2001.

16.            Further,  Hon’ble Punjab and Haryana High Court in case titled as New India Assurance Company Ltd. Versus Smt. Usha Yadav & others 2008 (3) RCR (Civil) 111, has held as under:-

“It seems that the Insurance Companies are only interested in earning the premiums which are rather too stiff now a days, but are not keen and are found to be evasive to discharge their liability. In large number of cases, the Insurance companies make the effected people to fight for getting their genuine claims. The Insurance Companies in such cases rely upon clauses of the agreements, which a person is generally made to sign on dotted lines at the time of obtaining policy. This is, thus pressed into service to either repudiate the claim or to reject the same. The Insurance Companies normally build their case on such clauses of the policy, but would adopt methods which would not be governed by the strict conditions contained in the policy”.

 17.          Keeping in view, the ratio of the law laid down in aforesaid judgments, facts and circumstances of the present complaint, we are of the considered view that act of the OPs while denying the claim of the complainant amounts to deficiency in services, which is otherwise proved genuine one.

18.           The complainant spent Rs.2,86,000/-on her treatmnet and in this regard she has placed on file detailed bill Ex.C14, Ex.C15, payments receipts Ex.C16 to Ex.C22 and bill Ex.C23. The said bills have not been rebutted by the OPs. Hence, the complainant is entitled for the said amount alongwith interest, compensation for mental harassment and litigation expenses etc.

19.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to pay Rs.2,86,000/- (Rs. two lakhs eighty six thousand only) to the complainant alongwith interest @ 9% per annum from the date of denial of the claim till its realization. We further direct the OPs to pay Rs.25,000/- to the complainant on account of mental agony and harassment and Rs.11,000/- towards the litigation expenses.  This order shall be complied with within 45 days from the receipt of copy of this order. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:19.09.2023

                                                        President,

                                                   District Consumer Disputes

                                                   Redressal Commission, Karnal.

 

                (Vineet Kaushik)        (Dr. Rekha Chaudhary)      

                      Member                        Member