BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.285 of 2015
Date of Instt. 30.06.2015
Date of Decision : 09.03.2016
1. Parminder Kaur aged about 41 years widow of Iqbal Singh;
2. Jasleen Kaur aged about 10 years daughter of Iqbal Singh;
3. Jaskirat Kaur aged about 7 years daughter of Iqbal Singh;
Complainants No.2 & 3 through their mother and next friend Parminder Kaur, All residents of 3734, Mohalla Guru Nanak Pura, Nakodar, Jalandhar.
..........Complainants Versus
1. Star Health and Allied Insurance Company Limited, having its regd.& corporate office at 1, New Tank Street, Valluvar Kottam High Road, Nungambakkam, Chennai-600034 through its Manager.
2. Star Health and Allied Insurance Company Limited, having its branch office at E.H.198, 2nd Floor, Nirmal Complex, GT Road, Jalandhar-144001, through its Branch Manager.
.........Opposite parties
Complaint Under Consumer Protection Act.
Before: Sh.Ashwani Kumar Mehta (President)
Ms. Jyotsna Thatai (Member)
Sh.Parminder Sharma (Member)
Present: Sh.Sorav Gupta Adv., counsel for complainants.
Sh.AK Arora Adv., counsel for OPs.
Order
Ashwani Kumar Mehta (President)
1. Complainant Parminder Kaur etc have filed the present complaint against Star Health and Allied Insurance Company Limited etc opposite parties (OPs) under the Consumer Protection Act, on the allegations of deficiency in service with further prayer to direct the OPs to pay claim amount of Rs.4,15,853/- alongwith compensation of Rs.50,000/- for harassment and mental tension and Rs.10000/- as litigation expenses.
2. The case of the complainant in brief is that Iqbal Singh husband of complainant No.1 and father of complainants No.2 & 3 took a Family Health Optima Insurance Policy No.P/161125/01/2014/ 000541 for the period from 5.8.2013 to 4.8.2014 from OPs and paid the premium amount for total insured sum of Rs.3 Lacs; that at the time of taking insurance policy, Iqbal Singh deceased was medically examined by doctors appointed by insurance company and as per proposal form, Iqbal Singh was not suffering from any pre-existing disease; that later on the policy was renewed for the period 5.8.2014 to 4.8.2015 and the premium was again paid by Iqbal Singh and complainant No.1; that Iqbal Singh suffered from Carbuncle-ANT-ABD-Wall, due to which, he was admitted in DMC Hospital, Ludhiana on 17.10.2014 from where he was discharged on 27.10.2014; that Iqbal Singh treated by Dr.Atul Mishra and during the said period, Iqbal Singh and complainant No.1 incurred expenses on treatment of Iqbal Singh from time to time; that Iqbal Singh expired on 27.11.2014; that after discharge from hospital, complainant No.1 filed claim documents for reimbursement of expenses incurred on the treatment of Iqbal Singh alongwith all the medical bills and documents but instead of paying the claim amount, the OPs repudiated the claim vide letter dated 6.3.2015 on the ground that the insured was having pre-existing diseases; that the act and conduct of the OPs is arbitrary and against law and conditions of the policy because from policy as well as from proposal form, the insured was not having any pre-existing disease and was not hospitalized prior to the issuance of policy; that the complainant is also entitled to compensation of Rs.50,000/- on account of harassment and mental agony caused by OP alongwith claim amount of Rs.4,15,853/- and Rs.10,000/- as litigation expenses because there was deficiency in service on the part of the OPs for not reimbursing the claim amount. Hence, complaint was filed.
3. After formal admission of the complaint, notice was issued to the OPs and OPs appeared through counsel and filed written statement contesting the complaint on the preliminary objections that complainant filled a duly signed proposal form after understanding and deliberating upon the terms and conditions of the policy concerned which was duly communicated to the complainant; that no cause of action have arisen in favour of the complainant as the OPs acted strictly on the basis of terms and conditions of the insurance policy and complaint has been filed with malafide intention to grab public money; that the complainant does not fall under the definition of consumer as per Consumer Protection Act and as such this Forum have no jurisdiction to try and decide the present complaint; that the relied claimed by the complainant is in violation of the terms and conditions of the policy and complainant is bound by the terms and conditions of the policy which were communicated to the insured at the time of issuance of policy and as such complainant has come to the Forum not with clean hands and have not disclosed the material facts and complaint is false, frivolous and misconceived and has been filed to harass the OP; that insured has concealed true and material facts relating to his health from the OPs and Forum and as such complaint is misuse and abuse of the process of law; that the complainants have no locus-standi or cause of action to file the complaint and has knowing and intentionally concealed the true and material facts at the time of taking insurance policy. On merit, it was admitted that Iqbal Singh obtained the insurance policy namely Family Health Optima Insurance Policy for himself and his family for total insured sum of Rs.3 Lacs after going through and understanding the terms and conditions of the insurance policy. It was denied if Iqbal Singh was examined by the team of doctors as alleged and complainant have not come to the Forum with clean hands and have concealed the material facts. It was admitted that Iqbal Singh admitted in DMC Hospital, Ludhiana on 17.10.2014 and complainants have submitted claim for reimbursement of the expenses incurred during period of hospitalization but the claim was repudiated by the answering OP. It was asserted that Iqbal Singh was admitted in DMC Hospital, Ludhiana on 17.10.2014 for treatment of DM,DIAB.NEPHROPATHY, ACUTE ON CHRONIC CKD, SEVERE METABOLIC ACIDOSIS, CARBUNCLE-ANT.ABD. WALL, SEPSIS, SHOCK and pre-authorization request from the treating hospital was received but the answering OP denied the cashless authorization on the ground of insufficient documents vide letter dated 24.10.2014 though insured was requested to approach the OPs for reimbursement of medical expenses alongwith complete medical record. The answering OPs after going through the claim record for reimbursement of hospital expenses observed that the patient was known case of Diabetes Mellitus for 12 years and the insured patient also had Chronic Kidney Disease for one to two years and also underwent Hemodialysis one year back and insured was suffering from Diabetic Triopathy with creatinine of 6mg/dl since 1 ½ years but the insured had not disclosed this medical history or detail about his health at the time of inception of the first policy dated 5.8.2013 in the proposal form which amounts to misrepresentation or non-disclosure of material fact and as per condition No.7 of the policy, if there was any misrepresentation or non-disclosure of material fact by the insured, the answering OPs was not liable to make any payment of any claim and as such the claim was repudiated and the same was communicated vide letter dated 12.01.2015; that the insurance contract is a special contract based upon utmost good faith between the parties to the contract and concealment of the same on the part of either party makes the contract void-ab-initio. It was denied if there was any deficiency in service on the part of the OP. All other allegations mentioned in the complaint were also denied on the same lines as were taken in the preliminary objections and a prayer was made for dismissal of the complaint with heavy cost.
4. Both the parties were given sufficient opportunities to lead evidence in order to prove their respective cases.
5. In support of complaint, the learned counsel for the complainants has tendered into evidence, affidavit Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C110 and closed evidence.
6. On the other hand, learned counsel for the OPs has tendered affidavit Ex.OPA alongwith copies of documents Ex.OP1 to Ex.OP10 and closed evidence.
7. We have carefully gone through the record and also heard the learned counsels for the parties.
8. The learned counsel for the complainant contended that the complainant was not aware of any pre-existing disease. He further contended that when insured Iqbal Singh fell ill, he consulted with doctor at Jalandhar who advised him to contact some other doctor and thereafter Iqbal Singh was got admitted in DMC Hospital, Ludhiana. He further contended that there is no evidence on the file to show that Iqbal Singh was suffering from any pre-existing disease or chronic kidney disease, was the result of diabetes. He further contended that initially Iqbal Singh took the insurance policy on 5.8.2013 which was upto 4.8.2014 and thereafter Iqbal Singh got renewed the insurance policy from 5.8.2014 to 4.8.2015. He further contended that the terms and conditions of the insurance policy were not communicated to the insured Iqbal Singh and as such the same are not applicable to him. He supported his arguments with case tilted The Oriental Insurance Co.Ltd(Petitioner) Vs. Naresh Sharma and others (Respondents) 2015(2) Punjab Law Reporter 75. He further contended that complaint is required to be allowed and OPs are required to be directed to pay the relief mentioned in the complaint.
9. The learned counsel for the OPs contended that the complaint is liable to be dismissed on the ground of misrepresentation as complainant was aware of the diseases with which he was suffering but he intentionally did not mention the same in the proposal form and concealed the true facts. He contended that as per clause 7 of the terms and conditions of the insurance policy, the insurance company is not liable to make the payment under the policy if the claim is fraudulent in any manner or is the result of misrepresentation or non-disclosure on the part of the insured. He further contended that the insured deceased was suffering from Chronic Kidney Disease prior to the policy in question and was also a patient of Diabetes Mellitus for about 12 years as mentioned in pre-authorization request letter Ex.OP4 but insured deceased did not give particulars of these diseases in the proposal form and as such have concealed the material facts from the insurance company and misrepresented about his health at the time of obtaining insurance cover. He further contended that the proposal form filled by insured is proved as Ex.OP1 and the insured have not disclosed these diseases in the column meant for this purpose i.e. against disease Diabetes Mellitus and Kidney Disease and as such complaint is false and is liable to be dismissed with special cost. He supported his arguments with case titled as Subhash B.Jatania (Petitioner) Vs. National Insurance Co.Ltd (Respondent) 2015(1) CPR 807 (NC), Sangeeta Kaushik & others (Appellants) Vs. Life Insurance Corporation of India and others (Respondents) 2010(1) CLT 481, Satwant Kaur Sandhu Vs. New India Assurance Company Ltd 2009(4) CPJ 8, Diwan Surender Lal Vs. The Oriental Insurance Co.Ltd 2008(4) CPR 438 (NC).
10. After going through the record of the case, pleadings of the parties, evidence and documents led on the file by the parties, this Forum is of the considered view that insured was suffering from diseases at the time of inception of the insurance policy and insured have concealed these material facts and as such the case of the insured/complainant falls under exclusion clause and complainants are not entitled to relief under the complaint. It is admitted fact that complainant initially got a mediclaim policy from the OP for the period 5.8.2013 to 4.8.2014 Ex.C1. It is also admitted case of the complainant that insured Iqbal Singh again got insurance policy which was effective from 5.8.2014 to 4.8.2015. It is admitted fact that Iqbal Singh fell sick and was admitted in DMC Hospital on 17.10.2014 and was discharged from the hospital on 27.10.2014. OP proved a proposal form Ex.OP1 filled and signed by Iqbal Singh insured. The insured did not give the particular of any pre-existing disease or whether he was undergoing treatment for any disease mentioned in the form particularly Diabetes Mellitus and kidney disease which means the insured was not suffering from these two diseases at the time of inception of the insurance policy as mentioned in proposal form Ex.OP1. As per condition No.7 of the insurance policy, the insurance company is not liable to make any payment under the policy in respect of any claim, if such claim is in any manner fraudulent or is the result of misrepresentation or non-disclosure of true facts by the insured. OPs have proved a pre-authorization request form Ex.OP4 sent by hospital to the OP and the detail filled by the DMC Hospital shows that the insure was suffering from Diabetes for 12 years and was suffering from Chronic Kidney Disease (CKD) for 1 to 2 years. This request form was sent on the admission of insured in DMC hospital on 17.10.2014. It means deceased was suffering from Diabetes and CKD at the time when insured obtained the insurance policy but the proposal form is silent about these material particulars. Consequently, OP denied pre-authorization request for cashless treatment vide letter Ex.OP5. Even a medical certificate Ex.OP7 which was filled by the treating doctor shows that insured Iqbal Singh was suffering from Diabetes Mellitus-2 for 12 years and was also patient of CKD. The discharge summary of the insured is proved on the file as Ex.OP8 and it shows that the insured was having S-Cretinine-6.0 +- 0.5 for 1 ½ years. It means insured was having this S.Cretinine even at the time of inception of the insurance policy but again the insured have not disclosed this material fact in the proposal form and have concealed the same. The claim of the complainant have been repudiated by the OP by detailed letter Ex.OP10. The above stated evidence shows that the insured have concealed the material and true facts about his health which might have varied the decision of the OP regarding issuance of insurance policy. In case titled as Diwan Surender Lal Vs. The Oriental Insurance Co.Ltd (Supra), complainant filed claim which was repudiated by the insurance company on the ground of concealment of material fact but insured gave the history of his illness at the time of admission in the hospital in which he stated that he had suffered a small heart attack in past and after detection of right bundle branch block on his ECG, he was taking beta blocker alongwith aspirin etc and it was a clear admission by complainant about his past illness which he did not disclose in proposal form which was material for issue of mediclaim policy and medical history given by complainant himself to treating doctor was not denied and it was observed by Hon'ble National Commission that there is no deficiency in service if the claim is repudiated by the insurance company. In case tiled as Satwant Kaur Sandhu Vs. New India Assurance Company Ltd (Supra), a complaint was filed under Consumer Protection Act on the allegations of deficiency in service. The deceased in the said case took a mediclaim policy and at the time of taking policy, he was suffering from Diabetes Nephropathy/Chronic Renal Failure but he did not disclose this fact while taking the policy which was within his knowledge and he was required to disclose it under the terms of the policy and the insured died after seven months of taking policy. Wife claimed compensation which was repudiated by the insurance company and it was held by Hon'ble Supreme Court of India that the facts suppressed by the insured was a material fact and as such there was no deficiency in service and insurance company was justified in repudiating the claim. It was further observed that material facts means any fact which would influence the judgment of a prudent insurer in fixing insurer the premium or determining whether to accept the risk or not. In the case in hand also, the insured Iqbal Singh was suffering from Diabetes Mellitus and Chronic Kidney Disease but he did not disclose these facts in the proposal form while taking the insurance policy and suppressed the material facts and as such the repudiation of claim by insurance company can not be termed as deficiency in service on the part of the insurance company. The facts of the case referred by learned counsel for the complainant are quite distinguishable from the facts of the case in hand and as such the same is not applicable to the case in hand. Otherwise, complainant have failed to prove the case on the file.
11. In the light of above discussion, complaint fails and same is hereby dismissed. However, in the peculiar circumstances of the case, the parties are left to bear their own cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.
Dated Parminder Sharma Jyotsna Thatai Ashwani Kumar Mehta
09.03.2016 Member Member President
